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

-^ 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-THIRD CONGRESS 

FIRST AND SEX30ND SESSIONS 



LEGAL DOCUMENTS RELATING TO THE 
SELECT COMMITTEE HEARINGS 

WASHINGTON, D.C. 



PART II 




JUNE 28, 19T4 



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



PRESIDENTIAL CAMPAIGN ACTIVITIES OF 19? 

SENATE RESOLUTION 60 



APPENDIX TO THE HEARINGS 



VT 



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 II 




JUNE 28, 1974 

Printed for the use of the 
Select Committee 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 OflSce 
Washington, D.C. 20402 - Price $7.20 



SENATE SELECT COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES 

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



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

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

JOSEPH M. MONTOYA, New Mexico 

Samuel Dash, Chief Counsel and Staff Director 

Fred D. Thompson, Minority Counsel 

Rdfus Li. 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 Summers, Assistant Counsel 

Alan S. Weitz, Assistant Counsel 

Mark J. Biros, Assistant Counsel 

Robert Muse, Assistant Counsel 

Donald G. Sanders, Deputy Minority Counsel 

Howard S. IvIEbengood, 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 Committee 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 47 

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) 



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 Tecum (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 

en 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.)) 



366 



Motion Filed by the Select Committee on 

May 11, 1973 

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 

Ore _'r 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. )) **/ 

37 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 Committee 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 516 

Response of the Special Prosecutor, 

Filed on July 4, 1973 520 

Transcript of the Proceedings beforu 

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. 70-73 (D.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 



Relevant Pleadings of Selected Court Actions— Continued 

Letter from Charles Alan Wright to 

Judge John Sirica, Dated August 23, 

1973, Opposing the Select Committee's 

Request for Consolidation ^^' 

Answer, Filed by President Nixon 

on August 29, 1973 6^4 



Motion by the Select Committee for 

Summary Judgment, Filed on 

August 29, 1973 



660 



Statement by the Select Committee 

of Material Facts as to Which 

There Is No Genuine Issue, Filed 

on August 29, 1973 ^64 

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 . ^°^ 

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 



Relevant Pleadings of Selected Court Actions — Continued 

Page 
Keply 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) 

Motion by tftie Select Committee for an 

Expedited Briefing and Argument 

Schedule and Suggestion for a Hearing 

En Banc, Filed on October 23, 1973 999 

Memorandxim 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 IB, 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 . . . 



Memorandvim of the Select Committee on 

Remand, Filed on January 7, 1974 1048 



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 La\\ 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 



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 
Which 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 

Memorandum 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 Committee'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 
Committee 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 . ^ 
In order to get access to the material, 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 
Conunittee on the Select Committee on 
September 18, 1973 1799 

Motion by the Select Committee to Postpone 

Response to the Subpoena, Filed on September 20, 19 73. . 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 tVie 

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 I ts 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 



Relevant Pleadings of Selected Court Actions — Continued 



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



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.C.)) 

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) 

Supporting Memorandum, 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 en 
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.C. ) ) 

Application for the Immunity Order, 

Filed by the Select Committee on 

November 15, 1973 (Omitted) 

Supporting Memorandum, Filed by 

the Select Committee November 15, 1973 (Omitted) 

Application by Special Prosecutor 

Jaworski to Defer Issuance of the 

Immunity Order, Filed on November 19, 

1973 (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 1899 

Order of the Court, Filed on 

December 12, 1973, Conferring 

Immunity from Service of Process 

upon John Meier 1901 



XIV 

Relevant Pleadings of Selected Court Actions — Continued 

Page 
N. B. : Although the court granted the 
Select Committee authority to confer 
iiratiunity 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 

Orcer, 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 Tempprary Restraining Order 2009 



Plaintiffs' Alternative Motion for 

Summary Judgment, Accompanying 

Statement of Material Facts and Memorandum 

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 Preliminary 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 

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



1229 



THE UNITED STATES COURT OF APPEALS FOR 
THE DISTRICT OP COLUMBIA CIRCUIT 



SENATE SELECT COM>aTTEE 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 Sena,tors 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 



RECEIVED 

FEB 2 1 1574 

CL£RK OF TOE UNITE) 
S TATES C OURT OF APPEALS 

No. 7^-1258 



MOTION TO SET EXPEDITED BRIEFING AND ARGUMENT SCHEDULE 
AND SUGGESTION THAT HEARING BE EN BANC 



Appellants hereby move this Court to set the following 
expedited briefing and argument schedule for this case: 

1. Appellants shall file their brief by February 25, 
197^. 

2. Appellee President shall file his brief by March 11, 
197^. 

3. Argument shall be had on this case on March 19, 197^. 
If appellants desire to file a reply brief they shall 
do so by March I8, 197^. 



34-966 O - 74 - pt. 2 



1230 



-2- 



Appellants also suggest to the Court that hearing in this 
matter be en banc . 

Appellants are again before this Court asking for expedition, 
as they have done at virtually every state of this litigation. ^ 

The current date on which the Committee must file its final 
report is now May .28, 197^, the time having been recently extended 
from February 28 by the full Senate. Even with the extension, 
the time in which the Committee must complete its work is all 
too brief. The tape recordings sought by this lawsuit are vital 
to the Committee's lawmaking and informing functions and are 
needed for the preparation of its final report. Thus the 
Committee has urgent need for the prompt resolution of the 
present controversy. 

Moreover, this case concerns more than the Committee's 
attempt to achieve vital evidence. It now involves the serious 
constitutional question whether a District Judge, in ruling on 
the validity and enforceability of a Congressional subpena, has 
the power to subordinate a demonstrable legislative need to the 
Court's view of the requirements of Judicial administration. 
This is an important constitutional issue that should be promptly 
resolved. 

We perceive no great hardship on appellee, considering the 

resources at his command and the fact that many potential issues 

37 The Select Committee met last Tuesday at the first opportunity 
after the Congressional recess and voted unanimously to prosecute 
this appeal. 



1231 



-3- 



are already briefed, if he Is required to respond to our brief 
on appeal within fourteen days. Appellee's counsel, at an 
earlier stage of this case, agreed that an expedited briefing 
and argument schedule before this Court was appropriate. 
Appellee's counsel were also able to meet the accelerated 
schedule established in the Special Prosecutor's case. 

The appellants also suggest, as they have done before, that 
the important issues in this lawsuit be heard and decided by 
the f\ill bench. Appellee's counsel has informed counsel for 
appellants that appellee is amenable to an en banc hearing. 



Respectfully submitted. 




Chief Counsel 



Sherman Cohn 
Eugene Gressman 
Jerome A, Barron 

Washington, D.C. 
Of Counsel 

Arthur S. Miller 

Chief Consultant 

to the Select 

Committee 
Of Counsel 



Fred Thompson 
Minority Coiinsel 

Rufus Edmisten 
Deputy Counsel 

James Hamilton 
Assistant Chief Counsel 

Richard B. Stewart 
Special Counsel 

Ronald D. Rotunda 
Assistant Counsel 

Dennis Summers 
Assistant Counsel 

Donald S. Burris 
Assistant Counsel 

United States Senate 
Washington, D.C. 20510 
Telephone Number 225-0531 

Attorneys for Appellants 



1232 



■- " ' ^'fc-Uj^HE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 

FEB 25 1974 f 

SENATE SELECT COMMITTEE ON PRESIDENTIAL 
'^'^'^'^BIAMPAgGGlCDACTljVITIES, suing In its 
_ STATES CQIifiS a^5f!aEF/':fiSid fin 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 



No. 7^-1258 



RICHARD M. NIXON, Individually and as 
President of the United States 



Appellee 




Sherman Cohn 
Eugene Gressman 
Jerome A, Barron 

Washington, D.C. 
Of Counsel 

Arthur S. Miller 
Chief Consultant 

to the Select Committee 
Of Counsel 

Frebruary 25, 197^ 



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 
W. Dennis Summers 

Assistant Counsel 

United States Senate 
Washington, D.C. 20510 
Telephone Number 225-0531 

Attorneys for Appellants 



1233 



TABLE OF CONTENI^ 

ISSUES PRESENTED 1 

REFERENCE TO PARTIES AND RULINGS 2 

STATEMENT 2 

ARGUMENT 7 

I. The District Court Had No Authority To Overrule 
A Legislative Determination Of Need Because Of 
Its Ovm View Of The Possible Impact On Future 

Trials 9 

A. The District Court Has Established A 

New Rule Of Law That Congress' Legislative 
Need May Be Subjugated To The Court's Own 
View Of The Need To Prevent An Asserted 
Prejudicial Effect On Potential Criminal 
Trials 9 

B. The Purported Rule Of Law Asserted By 
The District Court Ceuinot Be Sustained; 
A Court Cannot Refuse To Declare A 
Legislative Action Valid Because It 
Differs With The Policy Reasons Behind 

That Action 12 

II. Were It Proper To Weigh Judicial Need Against 
Legislative Need In An Action To Enforce A 
Congressional Subpena, The Balance Must In This 

Case Be Struck In Congress' Favor 2h 

III. The Committee, If This Court Disagrees With The 
Committee's Contentions Above, Will Voluntarily 
Submit To A Protective Order That Will Allow It 
To Fulfill Its Legislative Functions And, At 
The Same Time, Ensure Fair Trials 36 

CONCLUSION 39 



1234 



TABLE OF CI' TIONS 



TABLE OF CASES 



Ansara v. Eastland , 143 U.S. App, D. C. 29, 

442 F. 2d 751 (1971) 6, 17. 22, 39 

♦ Application of United States Senate Select Committee 

on Presidential Campaign Activities , 

361 F. Supp. 1270 (D. D. C. 1973) 18. 21. 32 

♦ Barenblatt v. United States , 360 U. S. 109 13, 15, 16 

(1959) 

Barsky v. United States , 83 U. S. App. D. C. 127, 
167 F. 2d 241 (1947), cert, denied, 
334 U. S. 843 (1948) 15, 16. 17 

Broadview Chemical Corp. v. Loctite Corp. , 
417 F. 2d 998 (2d Cir. 1969), cert, 
denied, 397 U. S. 1064 (1970) 9 

Case v; Morris ette , U. S. App. D. C. , 

475 F. 2d 1300 (1973) 9 

Crosley Corp. v. Westinghouse Electric and Manufacturing Co. , 

130 F. 2d 474 (3rd Cir. 1942) 16 

♦ Delaney v. United States, 199 F. ^d 107 

(1st Cir. 1952) 18, 19. 21 

Dennis v. United States. 84 U.S. App. 

D. C. 31. 171 F. 2d 986 (1948) 15 

Franklin Life Insurance Co. v. Johnson. 

157 F. 2d 653 (10th Cir. 1946) . . . . .". . . '. '. 16 

General Telephone Co. v. United States. 

449 F. 2d 846 (5th Cir. 1971) 15 

Gravel v. United States. 408 U. S. 606, 

619-20 (1972) 6 

Hardware Mut. Casualty Co. v. Schantz. 178 F. 2d 779 

(5th Cir. 1949) 16 

♦ Hutches on v. United States , 369 U. S. 599 

(1962) 11. 16. 17. 18, 19, 20. 21. 22. 23, 24. 28 

♦ in Re Grand Jury Subpoena Duces Tecxim 

Issued to Richard M. Nixon, Misc. , ; 

No. 47-73 (D. D. C. Nov. 14, 1973) 22, 35 

♦ Cases chiefly j^elied upon are marked by an asterisk 



1235 



In Re Motion to Quash Subpoenas and 

Vacate Service , 146 F. Supp. 792 

(W. D. Pa. 1956) 15,17 

McGrain V. Daugherty, 273 U.S. 135(1927) 13, 25, 26,28 

McPhaul V. United States, 364 U.S. 372 

(1960) 11 

The Matter of Hearings Before the Committee on 

Banking and Currency of the United States Senate, 

19 F. R. D. 410 (N. D. 111. 1956) 2 2 

National Treasury Employees Union v. NLxon, 

(D. C. Circ.No. 72-1929, Jan, 25, 1974) (Slip op. at 55-6) 8 

♦ Nixon y. Sirica , U. S. App. D. C. 

, 487 F. 2d 700 (1973)... 4, 6, 12, 14, 29, 33 

Powell V. McCormack, 395 U.S. 486 (1969) 8 

Railway Employee's Department, et al. v. Hanson et al. , 

351 U. S. 225 (1956) 15 

Sanders v. McClellan , 150 U. S. App. D. C. 58, 

463 F. 2d 894 (1972) 6,19, 22, 39 

Senate Select Committee on Presidential Campaign 

Activities, et at. v. Nixon, 36 F. Supp. 51 (1973), 

remanded U.S. App. D. C. , 

__^ F. Z4 , No, 73-2086 (Dec. 28, 1973) 37 

,'■ . , 1 . 

Senate Select Committee on Presidential Campaign 

Activities, et al. v. Nixon, U.S. App. D. C. , 

F. 2d , No. 73-2086 (Dec. 28, 1973) 

(reprinted in Joint Appendix at 138) 2 

Senate Select Conrunittee on Presidential Campaign 

Activities, et al. v. Nixon, C.A, No. 1593-73 (D. D. C. 

Feb, 8, 1974) (reprinted in Joint Appendix at 164) passin:i 

Shelton v. United States , 131 U. S. App, D. C. 315, 
404 F. 2d 1292 (1968), cert, denied, 
(393 U. S. 1024 (1969) 11, 13 , 28 

Silverthorne v. United States, 400 F. 2d 627 (9th Cir. 1968), 

cert, denied, 400 U. S. 1022 (1971) 32 



* Cases chiefly relied upon are marked by an asterisk 



1236 



Sinclair v. United States . 279 U. S. 263 (1929) 25 

Townsen-d v. United States, 6S U.S. App. D. C. 223, 95 F. 2d 

352 a938). cert, denied, 303 U. S. 664 (1938) 13 

United States v. Bryan . 339 U.S. 323 (1950) II. 14 

United States v. Burr , 25 Fed. Cas. 187 

(Case No. 14, 694) (ISG7) 10 

United States v. Hintz, 193 F. Supp. 325 (N. D. 111. 1961) 2 2 

United States v. Interstate Dress Carrier, Inc. , 

280 F. 2d 52 (2d Cir. 1960) 2 2 

United States v. Orman , 207 F. 2d 148 (3d Cir. 1953) 2 2 

United States v. Rumely, 345 U. S. 41 (1953) 26 

* Watkins V. United States, 3 54 U.S. 178 (1957) 13, 14, 23. 25. 28 

*Cases chiefly relied upon are marked by an asterisk 

TABLE OF STATUTES. RULES fe RESOLUTIONS 

2 U. S. C. §193 22 

18 U.S. C. §6005 21 

Public Law 93-190 (Dec. 18. 1973). to be codified as 

18U.S. C, §1364 5.6, 30, 31 

Fed. R. Grim. P. 6(e) 22 

Senate Resolution 60, 93rd Cong. , 1st Sess. (1973) 3 

Senate Resolution 194. 93rd Cong. , 1st Sess. (1973) 5,30,31 

MISCELLANEOUS 

8 Wigmore, Evidence (3d ed. ), i 2268 20 

Wilson, Congressional Government (Boston: 1885) 303 26 

Affidavit of Senator Ervin to the District Court (attached to the 
Supplemental Memorandum in Support of Plaintiff's 
Motion for Summary Judgment) 30 



1237 



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. MDNTOYA, EDWARD J. .OrRNEY, 

and LOWELL P. WEICKER, JR., as United ) No. 7^-1258 

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 
BRIEF OF APPELLANTS 
Issues Presented For Review 

1. Whether the District Court, in determining the legal validity 
of a Congressional subpena for evidence^ may substitute its 
Judgment for the wisdom of the legislature and overrule a 
legislative determination of need because of the Court's own view 
of the possible prejudicial effect on potential criminal trials 
of releasing the tape recordings at issue. 

2, If the District Court was correct in concluding that it 
could overrule a legislative determination of need in certain 
situations, whether that Court erred in doing so in the present 
circumstances where there is a demonstrable, pressing legislative 
need for the evidence subpenaed and the danger to fair trials 



1238 



if this material is released appears minimal. 
3. Whether this Court, to avoid needless friction with the 
Congress, should, at the least, order release of the vltnl 
evidence sought to the Committee under a stringent protective 
order -- to which the Committee would agree — that would allow 
the Committee to perform its legislative functions but prevent 
publication of the contents of the tape recordings at this time. 

This case was previously before this Court in No. 73-2086 
under the same caption as above. The Court's en banc order re- 
manding that matter to the District Court is found at JA I38. '^/ 
References to Parties and Rulings 

The parties to this case are listed in the caption. This 
appeal seeks review of the opinion and order of the Honorable 
Gerhard A. Gesell of the United States District Court for the 
District of Columbia that was entered on February 8, 197^j in 
C.A. No. 1593-73, and dismissed this action without prejudice. 
JA l64. 

Statement of the Case **/ 

The Senate Select Committee on Presidential Campaign 
Activities was created on February 7, 1973* by the unanimous 

57 JA refers to the "Joint Appendix." 

**/ The basic facts relevant to this case are set out in 
Plaintiffs Statement of Material Facts As To Which There Is 
No Genuine Issue (hereinafter referred to as "Statement") found 
at JA 110, and in the undisputed portions of the Complaint and 
Amended Complaint. Appellee does not challenge the facts set 
forth in this Statement and they are thus established for 
purposes of this litigation. 



1239 



-3- 



paasage of Senate Resolution 60, 93d Congress, 1st Session. 

JA 11. Pursuant to this Resolution (Sec. 1 (a)) the 

Committee Is empowered to Investigate "illegal, improper or 

unethical activities" occurring in connection with the 

presidential campaign and election of 1972, and "to determine. . 

the necessity or desirability of new congressional legislation 

to safeguard the electoral process by which the President of 

the United States is chosen." Section 3 (a) (5) of s. Res. 60 

empowers the Committee 

". . .to require by subpena ... 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 its 
investigation and study any. . .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 under 
their control. ..." 

On July l6, 1973, Alexander P. Butterfleld, former Deputy 
Assistant to President Richard M. Nixon, testified before the 
Committee that certain Presidential conversations had been 
recorded by electronic means and were preserved on tapes. After 
informal attempts by the Committee to obtain from the President 
certain tapes and other materials relating to the 1972 presi- 
dential campaign and election had failed, the Committee, on 
July 23, 1973, Issued two subpenas duces tecum to the President 
that were returnable on July 26, 1973- 

The subpena that is the subject of this appeal directed 
the President to make available to the Committee certain tapes 
that recorded five face-to-face conversations "between President 
Nixon and John Wesley Dean III, discussing alleged criminal acts 
Occurj:'ing in connection with the Presidential election of 1972." 



1240 



-4- 

Tr.e five conversations occorrel on Septeaber 15, 1972, 
?e-rr--ar:.- 2S, 1973, March 13, 19^3, ss.i V^rch 21, 1973, there 
b€lng two conversations or. tr.e last -enticnei iate. 

The Presiien-, in a J-J.y 25, 1?''3, letter to San J. Ervin, 
Jr., Ch a i rr^j- rf -he Select Coiialttee, infcmsi -he Cos-ittee 
that he wculi r.zz zrzrly with the si:t«penas directed to him. 
~A 3-. See alsQ JA 36,^. It sucseTuen-ly appeajei that the 

prlviXsSj vr.Lz'r. vas al-legeily asserted to protect the confi- 
dentiality of presidential cr=r^nicatlcns . Hcwever, the 
supposed cortfldentiality protected by this clai- of executive 
privilege has reen repeatedly breached. The President has 
himself revealed -- and has auth:rlred his aides, both past and 
present, tc reveal — — the ccntents zi the tared conversations 
scu^-.t :y this appeal, Statexent, paras. II-I6, 19-2-. JA 11—25. 
Zhe Statement paras. 11-lf) sets fcrth various public acco'unts 
of the ccntents cf these five conversaticns rrovlded zy the 
President, John Sean, H.r. . Halden^n, and ethers. This Court, 

in Mlxoo v. Sirica , V.S. App. Z.C, , -3" ?. 2d 70C, 

717-18 (1973), has taien notice cf the President's authorization 
for public testi^CHiy by his aides relating tc the Vatergate a^'falr 
and the vclurlncus public testiaony resulting from this presi- 
dential detisitn. Ihe five tapes at issue have now been released 
tc the Special Prosecutor and four of them (excluding the 

n. 5, 160, 161. 

Cn Aug"j.£t 9j 19*^3, clalntlffs "crc"usht the present actlcn 
seeidng enforcement cf the subpenas . Ihe ccmplalnt is fo'oni 
at JA 1. Cn A.-Jgust 29 (the earliest date allcwatle) plaintiffs 



1241 



-5- 

filei a motion for surnsar:/ judgaent seeking a declarator^' 
Judgment that the subpenas were lawf^ol and !r^st therefore ce 
coi^liei with, ar.i that the President's refusal to obey the:: 
was illegal and could net be justified by resort to any asserted 
presidential power, prerogative, or privielge. The motion 
did not ask the Coxirt to issue an injxinction against the 
President requiring coapliance with the subpenas. JA 103. 

Cn October 17, the District Court (Sirica J.) denied the 
CoMnlttee's motion and disnissed this action for want of 
JiiTlsdiction. Appellants, on October 19, noted their appeal, 
but subsequently asked this Court to hold the case in abeyance 
pending action on a till then before Congress to give the 
District Court jurisdiction over this suit. Cn 3ece-ber 1?, a 
new jxirisdictional statute. Faille Law 93-190, which the 
President failed to veto, took effect. JA 137. Meanwhile, 
the Senate had unanimously enacted Senate Resolution 194, 93d 
Cong., 1st Sess. (Nov. 2, 1973), which establishes that the 
CoBinittee was and is authorized by the Senate to subpena and 
sue the President and which affir33 that the CoT-ittee, in 
subpenal-tg and suing the President, was and is acting with 
valid legislative purposes and seeking inforaation vital to the 
fulfillment of its legitimate legislative functions. JA 13-. 
■Hiat the Committee does "nave a pressing need to obtain the 
evidence in question in order to fulfill its law-making respon- 
sibilities and its informing function is demonstrated in 
Section II below. 

This Court, on Decet^ber 25, 1973, remanded this case to 
the lower Court "for fuj-ther croceedincs in lisht cf ?--b. L. 



1242 



-6- 



No. 93-190." JA 138. The matter was subsequently reassigned to 
Judge Gesell who, on January 25, 197^, issued three orders: 

(1) He denied the Committee prayer for enforcement of 
the second subpena involved in this lawsuit. JA l48. No 
appeal is taken from this order. */ 

(2) He requested the Special Prosecutor to submit a 
"statement concerning the effect, if any, that compliance with 
/"the subpena at issue_7 would, in his opinion, be likely to 
have upon pending criminal cases or imminent indictments under 
his supervision." JA l44. The Special Prosecutor's response, 
dated February 6, 197^, is found at JA 154. Because of his 
conviction that, with a careful voir dire , "all defendants 
will receive a fair and prompt trial," the Special Prosecution 
took "no position on whether the Court . . . should consider 
the danger of prejudicial pretrial publicity a decisive factor" 
in its decision whether to release the tapes to the Committee. 
JA 159. 

(3) Finding that the President's claim of executive 

privilege was "too general and not sufficiently contemporaneous 

to enable the Court to determine the effect of that claim under 

the doctrine of Nixon v. Sirica ", the Court requested the 

President to submit "a particularized statement addressed to 

specific portions of the subpoenaed tape recording indicating 

whether he still wishes to invoke executive privilege as to 

37 We do note, however, that the Court's "quashing" of this 

subpena appears improper undercomity and speech and debate clause 

principles, particularly since the defendant did not move that 

the subpena be "quashed." See , e.g. , Sanders v. McClellan, 

150 U.S. App. D.C. 58, 463 T^2d~59^ (1972); Ansara v. Eastland, 

.l4j U.S. App. D.C. 29, 442 F. 2d 751 (1971); Gravel v. United States, 

408^U.S. 666, 619-20 (1972). 



1243 



i_ -7- 

these tapes and, with regard to those portions as to which the 
privilege is still asserted, if any, the factual ground or grounds 
for his determination that disclosure to the Select Committee would 
not be in the public interest". JA 139. The President's response, 
also dated February 6, 197^, is found at JA 162. It contains no 
particularized claim of privilege. 

On February 8, Judge Gesell issued a "Memoraxidiim ajid Order" 
which dismissed the complaint herein "without prejudice" because of 
his fear that pretrial publicity generated by release of the tapes 
would pose the risk of bolstering future contentions that judicial 
administration of the Watergate trials was impeded. JA l6h. It is 
this order from which plaintiffs appeal. 

Argument 

The basics of appellants' presentation can be briefly stated. 
The District Court has ruled for appellants on the issues of execu- 
tive privilege, justiciability, and jurisdiction, among others. It 
ruled that the material sought is relevant to the Committee's fiinc- 
tions. It did not dispute the Committee's power to issue the subpena 
in question. The Court, however, has declined to enforce the Commit- 
teete subpena, basing its ruling on an apparently new rule of law that 
a legislative need for relevant evidence may be subjugated to the 
Court's view of the need to prevent an asserted prejudicial effect 
on potential trials. This rule finds no support in decisional law 
and, in fact, is contrary to well-established principles that pro- 
hibit a Court from refusing to issue a declaratory judgment suppoi-tjnr^ 
a Congressional action simply because it disagrees with tho I oc.i;; la- 
tive wisdom or policy behind that measure. Moreover, even if aji 
asserted judicial need can be properly weighed against 



1244 



legislative need in detennining whether a Congrerssional subpena 
should be enforced, the balance should be struck for Congress 
in this case where there is a demonstrable, pressing legislative 
need for the material subpenaed and the danger to fair trials 
from release of the tapes to the Committee appears minimal. 
Finally, this Court, at the least, should decree release of the 
tapes to the Committee under a protective order, to which the 
Committee will agree, which will enable it to fulfill its 
legislative functions, but also prevent public playing of these 
tapes at an inopportune time. 

Before turning to our arguments in detail, several initial 
comments concerning the lower Court's opinion are in order. The 
District Court suggests that plaintiffs, in their motion for summary 
Judgment, sought an "affirmative injunction" directing compliance 
with the subpena, and it ruled that the Committee is not "entitled 
at this particular time to an injunction." JA l64, 169-70. Actually, 
the Committee's motion (as opposed to its complaint) did not seek 
an injunction, but only requested declaratory judgment in its favor. 
Thus, this Court, on review, should decide whether a declaratory 
judgment — not an injunction -- is appropriate.^/ If this Court 
decides that the lower Court's order should be taken as a refusal 
of declaratory relief, it may, "in reviewing the trial court's 
exercise of discretion to . . . refuse declaratory relief, . . . 
substitute its own judgment for that of the lower court" and ri.'vnr:;i' 

♦/Relevant in this regard is the principle that a Court will cuter 
a declaratory judgment in circumstances where it would initially 
decline to issue an injunction out of respect for the person sued or 
to avoid a clash between coordinate branches of government. E.g. , 
Powell V. McCormack, 395 U.S. 486, 499 (I969); National Treasury Em- 
ployees Union v. Nixon (D.C. Clr. No. 72-1929, Jan. 25, 1974) (Slip 
opin. at 55-6. ) 



1245 



if it finds "the determination of the trial court . . . erroneous," 
even if it deems that determination "not arbitrary or capricious." 
Broadview Chemical Corp. v. D^gtite Corp. , U17 F. 2d 998, 1000 (:'(} 
Cir. 1969) cert, denied , 397 U.S. 1064 (1970). In any event, thia 
Court should reverse because the lower Court has applied an erroneous 
rule of law, because its conclusion (JA 169-70) that the Committee 
"has not established by a preponderance of the evidence" that its 
subpenas should be enforced is without "substantial evidentiary sup- 
port" and must leave this Court "with the definite and firm convic- 
tion that a mistake has been committed, and because its refusal to 
grant relief to plaintiffs on the undisputed facts at hand consti- 
tutes a clear abuse of discretion. See Case v. Morrisette , 

U.S. App. D.C. , 475 F. 2d 1300, 1306-08 (1973). 

I. The District Court Had No Authority To Overrule A Legislative 
Determination Of Need Because Of Its Own View Of The Possible 
Impact On Future Trials 

A. The District Court Has Established A New Rule Of Law 
That Congress' Legislative Need May Be Subjugated To 
The Court's Own View Of The Need To Prevent An Asserted 
Prejudicial Effect On Potential Criminal Trials 

Although the District Court ruled that the "tapes are 
relevant to the Committee's functions," (JA l64), it declined 
to enter an order declaring that compliance with the Comnlttee's 
subpena Is required. It is plain from the Court's opinion, 
however, that its refusal to support the Committee's subpena 
was not based on the doctrine of executive privilege: 



" • • ; /~Jc-^6 Court rejects the President's 
assertion tHat the public interest is best 
r^Z^i, Lf ^la^^et, unreviewable claim of con- 
see SixoiJ^ 'iVr-L^^^ Presidential communications, 
HfsT^S^io* ^J^^f* ^"P^^ * ^^ 719-20, and the 
fh! P J^ uHwiningness to submit the tapes for 
the Court's in camera ex parte inspection or in 
any other faiHiorTEo-particularize his claim of 



34-966 O - 74 - pt. 2-3 



1246 



-10- 



executlve privilege precludes recognition of 
that privilege on confidentiality grounds. Cf, 
U nited States V. Burr. 25 Fed. Cas. I87, 192 
(Case No. 14,694) (1807) ."^ JA l6^. */ 

But, the Court indicated, this is not the end of the 
matter. Rather, "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," JA I67 . 

The result of this baleuiclng process, the Court stated, 

favors the Judicial process: 

"No one can doubt that, should the President be 
forced to comply with the subpoena, public dis- 
closure 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 forth- 
coming Judicial proceedings, the risk exists that 
it would bolster contentions that unbiased Juries 
csinnot be impaneled for trial, 

" . . , 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 safe- 
guards and adversary format essential to fact 
finding in the criminal Justice system. Congres- 
sional demands, if they be forthcoming, for tapes 
in furtherajice of the more Juridical constitutional 
process of impeachment wovild 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 
euid fair Judicial administration. 



"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 

▼7 — The Court also held this case justiciable, rejecting the 
President's claim that it involves a "political question, 
and recognized that it had jurisdiction over this matter by 
virtue of Public Law 93-190. JA I65. These matters were 
thoroughly briefed by the parties below. 



1247 



V -11- V ' 

ours is a country that thrives and benefits from 
factional disagreements as to vrtiat 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 domineint 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 Judical processes. Experience and traditibn 
teach that facts surroxuiding allegations of criminal 
conduct shovild 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." JA I67-69. 

Thus the basis for the Court's decision is plainly stated. 
While finding the tapes "relevant to the Committee's functions," 
the Court has substituted its Judgment for the legislature's 
as to the public need for production of these tapes and r\iled 
that, in this instance, the legislative need is subsidiary to 
that of Judicial administration. It has done so in a situation 
where no potential Watergate defendant has entered an appearance 
in this case to complain that release of the tapes may work him 
harm, where the Specieil Prosecutor took no position on what 
action the Court shoiild tak^, and where the President has allowed 
many of his aides to testify fully as to the contents of the 
tapes, an action obviously Inconsistent with the claim of 
prejudicial pretrial publicity he now raises. */ Moreover, the 



^7 The Court has stated that the Executive has the right to 
assert a pretrial publicity claim because of his duty to see 
that the laws are faithfully executed, JA I67. However, the 
President's expressed concern for pretrial publicity was belated 
and was not stated to the Court with any force until the Court 
solicited the opinion of the Special Prosecutor. Significantly, 
the President did not raise this issue before the Committee in 
his refusal to conqjly with the subpena. JA 34-^1. Thus, under 
traditional principles, he shoxild be held to have waived emy 
defense based on this ground. 

"To hold otherwise would enable/^ne subpenaed/ to 
toy with a congressionsG. committee in a manner ob- 
noxious to the rule that such committees are entitled 
to be clearly apprised of the grounds on which /^e^ 
asserts a right of refusal to answer". Hutcheson v. 
United States, 369 U.S. 599, 61I (I962). 




1292, 1299 (1968), cert, denied . 393 U.S. 1024 (I969). 



1248 



-12- - 

Court appears to say that the executive -- or one who might 

be injured by disclosure -- has a "privilege" to refuse to 
produce evidence that might provoke adverse pretrial publicity 
respecting possible criminal trials. The Court, however, 
cites no case for the rule of law that it expounds or the 
apparent "privilege" it creates. Nixon v. Sirica is not pre- 
cedent for this ruling because that case only held that, in the 
executive privilege determination, the public interest protected 
by that privilege -- the need for confidentiality to preserve 
"the effectiveness of the executive decision-making powers" — 
must be weighed against the public interest in disclosure, what- 
ever it may be. See 487 F. 2d at 716-17. That case does not 
allow the Court to create another balancing test and weigh an 
asserted judicial need against legislative requirements in deter- 
ming whether a Congressional subpena should be enforced. 

We submit that the proposition that a Court can refuse to 
support a legislative subpena because of the Court's view that the 
requirements of judicial administration outweigh a legislative 
need to obtain evidence that Congress determines is vital to its 
functions not only finds no support in established law but is 
contrary to fundamental notions of our jurisprudence. Our position 
in this regard is now elaborated, 

B. The Purported Rule Of Law Asserted By The District 
Court Cannot Be Sustained; A Court Cannot Refuse To 
Declare A Legislative Action Valid Because It Differs 
With The Policy Reasons Behind That Action. 

It is useful to initiate this discussion by recounting 
certain fundamental principles respecting legislative investigation. 



1249 



-13- 

beginning with the observation in Watkins v. United States , 

35^ U.S. 178, 187 (1957), that: 

"... The power of the Congress to conduct investigations 
is inherent in the legislative process. That power is 
broad. It encompasses inquiries concerning the adminis- 
tration 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. It comprehends 
probes into departments of the Federal Government to 
expose corruption, inefficiency, or waste ..." 

See also Barenblatt v. United States . 360 D.S. I09, 111 (1959); 

Shelton v. United States , I3I U.S. App. D.C. 315, 319-20, kok 

F. 2d 1292, 1296-97 (1968); Townsend v. United States , 68 U.S. 

App. D.C. 223, 232, 95 F. 2d 352, 361 (1938) cert, denied , 

303 U.S. 664 (1938). 

The Supreme Court, in numerous cases, has affirmed the 

right of Congress to issue subpenas in aid of its investigatory 

processes. For example, in McGrain v. Daughtery , 273 U.S. 135, 

nh (1927), that Court said: 

"We are of opinion that the power of inquiry with 

process to enforce it is an essential and appropriate 

auxiliary to the legislative function." (emphasis added)^ 

See also Shelton v. United States , supra. I3I U.S. App. D.C. at 

319. 

The Supreme Court has also emphasized the duty of all 

citizens to respond to Congressional subpenas : 



"^ In McGrain, the "Court (p. I58) also said: 

"...The Committee was acting for the Senate and under 
its authorization; and therefore the subpoenas which 
the Committee issued and the witness refused to obey 
are to be treated as if Issued by the Senate." 
See also, in the same vein, Watkins v. United States, supj.a, 
at 2C)0-(5l. -^^ 



1250 



-in- 



"It is linquestionably the duty of all citizens to coop- 
erate vd-th the Congress in its efforts to obtain the 
facts needed for intelligent legislative action. It 
is their unremitting obligation to respond to subpoenas, 
to respect the dignity of Congress and its conunlttees 
and to testify fully with respect to matters within the 
province of proper investigation." Watkins v. United 
States , supra at 187-88. 

This duty exists in part because the "fundamental maxim that the 

public... has a right to every man's evidence" is just as 

applicable to legislative as to Judicial subpenas. United States 

V. Bryan , 339 U.S. 323, 331 (1950). As Judge MacKinnon, 

concurring in part and dissenting In part in Nixon v. Sirica , 

aptly stated: 

"/\_7congressional subpoena issued for the purpose 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 differences 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 between 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 facts which become the basis for legis- 
lation 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 othe fT" 48? F.2d at 737. (emphasis added) 



_V The Byran Court continued (p. 331) 

'■ . . . When we come to examine the various claims of exemption, 

we start with the primary assumption that there is a 
general duty to give what testimony one is capable 
of glvins, and that any exemptions which may exist 
are distinctly exceptional, being so many derogations 
from a positive general nale." 



1251 



-15- 



The role of the Courts In reviewing Congressional subpo.ias 
Is limited. 

"' It must be remembered that legislatures are ultimate 

guardians cf the liberties and welfare of the people 

in quite as great a degree as the Courts'. The courts 

have no authority to speaic or act upon the conduct by 

the legislative branch of its own business, so long 

as the bounas of power and pertinencey are not exceeded, 

and the mere possibility that the power of inquiry may 

be abused 'affords no ground for denying the power'"... 

Barsky v. United States 83 U.S. App. D.C. 127, I36, 

167 F. 2d 241, 250 (19^7), cert, denied . 33^ U.S. 8^3 (19^8) 

" ,, ,/T_7t is neither the business or the prerogative 
of tnis Court or any other Court to pass upon either the 
wisdom of Congress in setting up the Committee, the 
private or public character of Members of the Committee 
or the propjriety of the procedure of the Committee 
unless it transgresses the authority committed to it by 
the Congress under the Constitution" Dennis v. United 
States, 84 U.S. App. D.C. 3I, 33, 171 I?'. 2d 986, 
9«tS (1948) (emphasis added) 

See also In Re Motion To Quash Subpoenas And Vacate Service , 

146 P. Supp. 792, 794-5 (W. D. Pa. 1956). V 

Once a Court has determined that a Congressional committee 

acts within its power and seeks information pertinent to its 

functions, its responsibility is "not to pass judgment upon the 

general wisdom or efficacy of the activities of /~a_7 committee 

in a vexing and complicated field." Barenblatt v. United States, 

^Cf. Railway Employees' Department, American Federation of 

Labor, International Association of Machinists v. Hanson, et al. , 
351 U.S. 225, 234, (1956); General Telephone Company of the 
Southwest V. United States, 449 F. 2d 846, 859, (5th cir. 1971) 
and cases cited. In the latter case the Court said: 
"It is, of course, clear that the courts are without 
power to substitute their Judgment for that of the leg- 
islative body whose responsibility it is, in the first 
instance, to decide policy questions," 



1252 



-16- 
supra at 125. "... /"l/t does not lie with this Court to 

say when a congressional committee shotild be deemed to have 
acquired sufficient information for its legislative purposes." 
Hutcheson v. United States , 369 U.S. 599, 6I8, 619 (1962). 

It goes without saying that a Court, in deciding whether 
to render or, refuse a declaratory Judgment, must be governed 
by "fixed legal principles." E.g. Hardware Mut. Casualty Co. 
v. Schantz , I78 F.2d 779, 780 (5th Cir. 19^9); Franklin Life 
Insurance Company v. Johnson , 157 F.2d 653, 656 (10th Cir. 19^6); 
Crosley Corp. v. Westinghouse Electric Eind Manufacturing Co. , 
130 F.2d U74, 475 (3d Cir. 1942); Moore's Federal Practice, para. 
57.08 /~2j7, p. 57-38. Therefore, a Court in deciding whether a 
Congressional subpena must be complied with in the declaratory- 
judgment context, must be controlled by the above "fixed legal 
principles" respecting the relations of Courts and Congress and 
has no discretion to stray from their dictates. A Court simply 
cannot refuse to give force to a legislative measure because it 
disagrees with the policy considerations that underlie that action. 



The application of the above principles to the present case 
is apparent. Most Importantly for our purposes, it is evident 
that the District Court has gone beyond the limits placed on it 
by the principles enunciated in Barsky , Barenblatt, Hutcheson 
and other decisions of that nature. The District Court did not 
find that the Committee lacked the "power" to subpena the 
evidence in question. Moreover, it expressly ruled that the 
tapes subpenaed are "pertinent," stating that "^t_7hese tapes 
are relevant to the Committee's function." J A l64. It did not 
find that any privilege prohibited release of the tapes to 



1253 



-17- 

appellants. But the Court has substituted its Judgment for 
the Committee's as to the "wisdom and efficacy of the activities" 
of the Corainlttee in seeking the tapes in question, stating 
that, in the Court's Judgment, the requirements of Judicial 
administration outweigh the legislative need for production of 
this evidence. The Court, in asserting that the Committee has 
no "pressing need" for the evidence subpenaed, has taken it upon 
itself to say that the Committee has "acquired sufficient 
Information for its legislative purposes." The Court's ruling 
thus constitutes an improper assiimptlon of legislative functions. 
The Congress, of course, must base its Judgments as to how to use evi- 
dence it obtains on an estimate of the rights of the parties 
Involved. "When a congressional Inquiry and a criminal prose- 
cution cross paths. Congress must accommodate the public interest 
in legitimate legislative inquiry with the public interest in 
securing the witness a fair trial" Hutcheson v. United States , 
supra at 624 (Brennan, J., concurring) (emphasis added). */ 

"^ Other Courts have made similar observations. "'It must be 
remembered that legislatures are ultimate guardians of the liberties 
and welfare of the people in quite as great a degree as the Courts.'" 
Barsky v. United States, supra , 83 U.S. App. D.C. at I36. "/We 
may rightly assume that the legislators are sensitive to, and will 
endeavor to act conformably to, the principle that the Bill of 
Rights applies to the legislature's Investigations as well as to 
Its enactments." Ansara v. Eastland, l43 U.S. App. D.C. 29, 32, 
442 F. 2d 751, 754 (1971). "For us to presume that the House of 
Representatives, the body most susceptible to the will of the 
people, will be less sensitive to the Constitutional rights of the 
citizen than will be this Court would authorize a presumption I 
am not prepared to accept." In Re Motion To Quash Subpenas And 
Vacate Service, supra , l46 P. Supp. at 795. And see the lower 
Court's opinion at JA I66, 169. As discussed in more detail in 
sections II and III of this brief, the Committee has taken the 
rights of potential defendants into consideration in charting Its 
legislative actions — Including the decision to pursue enforcement 
of its subpenas through litigation — and it will continue to do 
so in the future. 



1254 



-18- 



But we need not base our conclusion that the Court has 
exceeded its proper role soley on the application of well- 
established general principles, for the lower Court's opinion 
Is contrary to the two leading cases dealing with pretrial 
publicity engendered by a legislative hearing -- Delaney v. 
United States , 199 F. 2d 10? (1st Cir. 1952) and Hutches on v. 
United States, 369 U.S. 599 (1962). Moreover, it also appears 
at odds with Judge Sirica's learned opinion in Application of 
United States Senate Select Committee on Presidential Campaign 
Activities . 36I F. Supp. 1270 (D.D. C. 1973). 

Deleiney involved an appeal from convictions stemming 
from Delaney 's improper conduct while Collector of Internal 
Revenue for the District of Massachusetts. Delaney had 
unsuccessfully sought a continuance of his trial that began 
on January 3* 1952, and resulted in Judgments of conviction 
on January 29, 1952. The basis of the continuance motion 
was the massive adverse publicity against him resulting from 
the public hearings of the House Subcommittee on Administration 
of the Internal Revenue Laws (the King Committee), which was 
investigating criminal conduct into Delaney 's office. The 
hearings had commenced on October I6, 1951* and continued through 
October 22. Both Delaney and the Department of Justice had 
attempted — to no avail — to persuade the King Committee 
to refrain from holding public hearings, at least until 
conclusion of trial. The appellate Court reversed on the grounds 
that the District Court erred in not granting the requested 
continuance, but plainly stated that the King Committee, in 
pursuing its hearings, had acted in lawful fashion. 



1255 
/ -19- 

" , , ,We mean to Imply no criticism of the action of the 
King Committee, We have no doubt that the committee ' 
acted lawfully, within the constitutional powers of 
Congress dvily delegated to It. It was for the ccxmnlttee 
to decide whether considerations of public Interest 
demeinded at that time a full-dress public investigation 
of the affairs of the Internal Revenue Bureau, includine 
particularly the conduct of Delaney's office in Boston. 

« « • 
"...If... the legislative committee deemed that em open 
hearing at that time was required by over-riding con- 
siderations of public interest, then the committee was 
of course free to go ahead with its hearing ..." 199 P. 
2d at 114-15. 

The Hutcheson case is even more significant for present 

purposes. Thla was a contempt of Congress case where the defendant 

had failed to answer questions put to him by the Senate 

Select Committee on Improper Activities in the Labor or 

Management Field (the McClellan Committee). Hutcheson, at 

the time the questions were propounded, was under indictment 

in an Indiana state court, and he contended that requiring 

him to answer the Committee's questions violated his due 

process of law in that the Committee's proceedings cc»istituted 

a "pre-trial" of the state charges against him. */ The two 

dissenters (Warren and Douglas, J.J.**/) argued, in language 

reminiscent of the lower Court's opinion, ***/ that Congress, 



Y? Hutcheson did not, however. Invoke his privilege against 
self-incrimination. 

**/ The Court sustained Hutcheson' s conviction by a 4-2 vote 
Tustice Harlan wrote an opinion in which Justices Clark and 
Stewart Joined, Justice Brennan concurred in the reailt with 
a separate opinion. Justice Harlan's opinion has previously been cited 
by this Court with approval. E.g . , Sanders v. McClellan, supra . 



See JA 169 where the Court declares that it will not lend 
its Jurisdiction "to enforce a subpoena which would exacerbate 
. . . pretrial publicity." 



1256 



-20- 



in such circumstances should not be allowed "to enlist the 

aid of the federal courts" to convict Hutcheson for contempt. 

369 U.S. at 160, 161. See also 369 U.S. at I65. The majority, 

however, took a different view and upheld the conviction. 

Justice Harlan's opinion is worthy of quotation at length: 

"Nor can it be argued that the mere pendency of the 
state Indictment ipso facto closed this avenue of interro- 
gation to the Committee. 

"The suggestion made in dissent that the questions which 
petitioner refused to answer were "outside the power 
of a committee to ask"... under the Due Process Clause 
because they touched on matters then pending in judicial 
proceedings cannot be accepted for several reasons ... The 
reasoning underlying this proposition is that these in- 
quiries constituted a legislative encroachment on the 
judicial function. But such reasoning can hardly be 
limited to inquiries that may be germane to existing 
judicial proceedings; it would surely apply as well to 
inquiries calling for answers that might be used to the 
prejudice of the witness in any future judicial proceeding, 
If such were the reach of *due process' it would turn 
a witness' privilege against self-incrimination into a 
self-operating restraint on congressional inquiry, see 
8 Wigmore, Evidence (3<i ed.), i 2268; p. 20. infra , 
and would in effect pro tanto obliterate the need for 

that constitutional protection. 
* * * 

"/"This would 7 limit congressional inquiry to those 
areas in whicH there is not the slightest possibility 
of state prosecution for information that may be divulged. 
Such a restriction upon congressional investigatory 
powers should not be countenanced." 



"^S_7urely a congressional committee which is engaged 
in legitimate legislative investigation need not grind 
to a halt whenever responses to its inquiries might po- 
tentially be harmful to a witness in some distinct 
proceeding .-.«■ or when crime or wrongdoing is disclosed. 



" in conclusion, it is appropriate to observe that ... 
the Constitution ... imposes on the Judiciary the ... 
duty of not lightly interfering with Congress ' exercise 
of its legitimate functioriin 3t)9 U.S. at bl3, bl4, bltJ, 
53_g 622. (emphasis added) 



1257 



-21- 

Hutchesori j of course, presented a stronger case for 
judicial protection than the present one because, in that case, 
an individual had been convicted for refusing to testify and 
thas his liberty was at stake. Here, as demonstrated below, 
the harm to potential defendants the lower Court seeks to 
prevent is quite speculative. 

Judge Sirica's opinion in Application of United States 

Senate Select Committee On Presidential Campaign Activities 

is also instructive. In this opinion. Judge Sirica refused 

to condition an order conferring use immunity of John Dean 

and Jeb Magruder respecting their testimony before the Select 

Committee on restrictions that would limit the publication 

of that testimony. The initial ground for the Court's ruling 

was that the immunity statute, l8 U.S.C. § 6005, gave it no 

discretion to impose conditions on the Committee. But the 

Court was also asked "to exercise inherent powers /~to condition 

the grant of immunity_7 in the interest of preserving the 

rights of potential defendants." 361 F. Supp. at 1280. The 

Court, however, declined to utilize its discretionary powers 

in this fashion, even though the Committee had invoked its 

jurisdiction and enlisted its aid in the immunity proceeding: 

" ... /~I_7t is clear that the Court could not go beyond 
administering its own affairs and attempt to regulate 
proceedings before a coordinate branch of government... 
On the contrary, decisional law mandates a 'hands-off 
policy on the Court's part." 361 F. Supp. at 1280. 

The Court cited Delaney and Hutcheson, among other decisions, 
for this proposition. The Court's ruling in this regard appears 



1258 



■22 



not to be based on an application of the immunity statute 
but on the Court's view of its proper role when called upon 
to assist the legislative process, j^ 

As already observed, the District Court cites no cases 
that would sustain the rule of law it has propounded or counter- 
act the aut hority we have mar shalled. The Presid ent's letter 



f7 Judge Sirica also entered writs of habeas corpus ad 

testificundum that allowed Watergate figures E. Howard Hunt 

and Bernard Barker to testify publicly before the Committee. 

And he has issued an order in the Special Prosecutor's case 

against the President that would allow the President to 

release the tapes to the Committee or the public at large. 

See In re Grand Jury Subpoena Duces Tecum Issued to Richard 

M. Nixon, Misc. No. 47-73 (D.D.C. November ih, 1973). See P. 35 svpa. 

There are yet other cases that suggest that the lower 
Court's opinion is in error. United States v. Orman, 207 
F. 2d 148 (3d Cir. 1953) and United States v. Hintz, 193 P. Supp. 
325 (N.D. 111. 1961) were both contempt cases where a defendant 
unsuccessfully claimed that compelling him to testify before 
a Congressional committee investigating criminal activities 
would violate his rights in the absence of measures by the 
committee to prevent the publicizing of his testimony. And 
note 2 U.S. C. i 193 which states: 

"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 concurrent 
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." 

Also relevant are cases such as Sanders v. McClellan, supra and 
Ansara v. Eastland, supra where this Court refused to restrain 
Senate committees in the exercise of their legislative fcjictions. 
I n Sanders , this Court, quoting Hutcheson, observed that 
V t__/he judiciary has the duty of not lightly interfering 
with Congress' exercise of its legitimate powers." Cf . In 
The Matter Of Hearings Before The Committee On Banking" And 
Currency Of The United States Senate, I9 F.R.D. 410 (N.D. 
111. 1956) where the Court allowed a Senate Committee, upon 
motion, to examine material that had been submitted to a 
grand jury in the face of a claim that disclosure would violate 
the secrecy of that body as protected by Rule 6 (e) F.R. Crim, 
P. See also , in this vein. United States v. Interstate Dress 
Carrier, Inc., 280 F. 2d 52 (2d Cir. i960). 



1259 



-23- 



of February 6, 197^> contains no reference to such case law and 
we know of none. Moreover, strong policy reasons militate against 
appellate approbation of this rule. If approved, this rule 
apparently would not only give the executive or an individual 
under criminal suspicion a novel defense or privilege in an 
action to enforce a Congressional subpena, but would also provide 
a new and unique defense to a defendant indicted for contempt of 
Congress. Such a defense would seriously debilitate the 
effectiveness of a Congressional committee — like the Select 
Committee -- which investigates areas of criminal conduct and 
which interrogates or seeks information from persons in the 
executive branch or from actual or potential defendants in 
criminal trials. We submit to the Court that the carefully 
guarded protection against self-incrimination and the other 
legitimate privileges now recognized by our law are sufficient 
shields for persons who find themselves in such circumstances. 
See Hutcheson v. United States , supra at 6l4, n. l6. Furthermore, 
as the Supreme Court noted in Watkins v. United States , supra , 
354 U.S. at 200, n. 33, the investigatory powers of Congress 
have their greatest utility when trained on corruption in the 
executive branch. It would be unfortunate if the executive 
in the future could emasculate legislative investigations of 
its conduct simply by instituting a grand jury investigation 
into the same circumstances the Congress is exajnining. 



1260 



-24- 



II. Were It Proper To Weigh Judicial Need Ar.Blnst Legislative 
Need In An Action To Enforce A Congressional Subpenn, The 
Balance Must Tn This Case Be Struck ]n Congress ' Favor 

Assuming arguendo that the law allows a Court, in enforcing 

a Congressional subpena, to weigh the requirements of Judicial 

administration against the legislative need for the materials 

in question, we submit — with due respect to the District 

Court -- that the lower Court erred in determining that the 

interests of the Judiciary were paramount. 

In announcing its views as to desirable public policy, 
the District Court -- although it found the evidence sought 
"relevant" to the Committee's functions (JA l5U) -- declared 
that "/r_7t has not been demonstrated to the Court's satis- 
faction that the Committee has a pressing need for the sub- 
poenaed tapes or that further public hearings before the Com- 
mittee concerning the content of those tapes will at this time 
serve the public interest." JA l66. We have, of course, demon- 
strated above (p.l6) that it is not the fimction of a Court 
"to say when a congressional committee should be deemed to 
have acquired sufficient information for its legislative 
purposes", Hutcheson v. United States , supra at 619. But, 
in any event, the conclusion that the Committee does not have 
a pressing need for the evidence sought is, we respectfully 
submit, contrary to the undisputed evidence at hand. 



1261 



-25- 



Thf IftKlalatlve Intereatti aupportliig dlaelotnire of tho nvLlfruH 
sought are powerful and pervasive. Where wrongdoiiip, 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 explained 
in McGrain v. Daugherty , supra -- which sustained a Senate 
investigation of the Justice Department's role in the Teapot 
Dome scandal — Congress' investigatory power is essential to 
the law-making function, for without information it is impossible 
to legislate wisely or effectively. */ And, as the Supreme 
Court pointed out in VJatkins v. United States , supra , investi- 
gation of executive wrongdoing serves other values as well: 



"/"There is a 7 power of the Congress to inquire 
into and publTcize 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 



"*/ In Mc Grain the Court said (p. 175): 

— " . . .A legislative body cannot legislate wisely or 
effectively in the absence of information respecting 
the conditions which the legislation is intended to 

affect or change. " _, . . 

See also Sinclair v. United States, 279 U.S. 263 (1929) 



34-966 O - 74 - pt. 2-4 



1262 

-26- 

Congress has assiduously performed an 'informing 
function' of this nature. 354 U.S. at 200, n.33. */ 

The above principles fully sustain the Committee's efforts 
to obtain the information sought here. The Committee is charged 
with investigating allegations of serious wrop-gdoing at the 
highest executive levels in connection with the 1972 presi- 
dential campaign and election and is instructed to consider 
the need for corrective legislation. The evidence which the 
Committee seeks from defendant President is vital to the 
completion of its work. In the words of McGraln v. Daugherty , 
supra at 177, presidential elections are "/~p_7lainly /~a subject_7 
on which legislation covQd be had and would be materially aided 
by the information which the investigation was calculated to 
elicit." 

2/ Tnese principles were recently reaffirmed in In Re : Application 
of United States Senate Select Committee on Presidential Campaign 
Activities 36I F. Supp. 1270, I28I-82 (D.D.C. 1973). In United 
States V. R\imely, 3^5 U.S. kl (1953), the Supreme Court termed 
the congressional informing function "indesnensable" and again 
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 co\intry must remain in embarrassing, 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. 



1263 



-27- 



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 our 
Statement 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. JA 113-22. There has also been evidence 
tending to exonerate him of such charges. JA llU. And the 
extent of wrongdoing by other high officials is also the subject 
of sharply conflicting evidence. Although the pertinent evidence 
already obtained consists in considerable part of conflicting 
testimony by witnesses regarding their conversations with the 
President, the Committee's investigations have revealed the 
existence of the tape recordings of p residential conversations 
that it has now subpenaed. This evidence, which bears directly 
on matters in dispute and appears the best evidence in that 
regard, would prove of immense, perhaps decisive, value in 
determining the 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 impor- 
tance 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 



1264 



-28- 



polll.lcril camp;il(.'.tia Im ncfcsa.'iry . *J Mornovfr, r-cvoi at.loii oT 
the extent of corruption in the executive branch coulil hi'lp 
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 and the Congress might be satisfied that lesser measures 
were adequate. **/ 

The evidence sought is also important to Congress' dis- 
charge of its "informing function." We contend that the people 
have a right to know whether or not the nation's highest 
officials were engaged in wrongdoing. ***/ Moreover, so long 

V To employ the language of the Supreme Court in Hutcheson 
v. United States, supra at 6l7 (I962): 

"if these suspicions /q.s to the involvement of the 
President and his associates in wrongdoing/ were 
foionded, they would . . . suppor/~t_7 remedial 
federal legislation." 

See further McGrain v. Daugherty, supra at 175; Shelton v. 
United States, supra '404F.'2d ' at I296. Even if the 

subpenaed tapes would not be made public at this time, as sug- 
gested in Section III below, the Committee needs this material 
at hand in order to determine what legislative recommendations 
it will eventually put forward. It is not unusual for a Congres- 
sional Committee to keep confidential sensitive infomiation 
obtained in its investigations. 

**/!% 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. 

***/ As the Court said in Watkins (p. 200): "The public is, 
of course, entitled to be informed concerning the workings 
of its government." As Watkins makes clear, this observation 
has special impact where governmental corruption may be involved. 
This informing function can be fulfilled even if the Court orders 
the institution of a protective order as suggested in Section III 
below because the tapes at least would be in the public domain 
and would, at some time, be made public and not forever hidden 
from the nation. 



1265 



-29- 



as the executive is allowed to resist full disclosure of 
evidence bearing on its own possible wrongdoing, public confi- 
dence in the self-corrective processes of government will 
remain at low ebb. And public revelation of all Watergate 
facts is needed to deter repetition in the future of wrong- 
doing by governmental officials. */ 

It is not merely the plaintiff Committee that has concluded 
that the evidence sought here is vital to Congress. By the 
adoption of S. Res. 19^ j 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 subpena involved here, and also 
"approves and ratifies" the Committee's institution of this 
litigation to achieve compliance with that subpena. The 
Resolution further provides that: 

^7 Also, as noted by the Court of Appeals in Nixon v. Sirica, 
78? F. 2d at 705, 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 resolving that question. A committee 
not concerned with the integrity of its own processes would be 
both foolish and derelict. 

The District Court states (JA 168 ), that "/~tJ7o suggest 
that at this Juncture the public interest requires pretrial 
disclosure of these tapes either to the Committee or to the 
public is to imply that the Judicial process has not been or will 
not be effective in this matter." We mean no criticism of the 
Judicial branch but do contend that we have a Constitutional 
responsibility to inform the Congress and the public of wrong- 
doing in government that is not vitiated simply because the 
wrongdoing involved is also being examined by the Judicial 
process. The informing function rests primarily with the 
Congress, not the Courts, and there is no assurance that all 
relevant facts relating to the Watergate affair will emerge 
through the judicial process because of the possibility of 
guilty pleas, the strictures of the rules of evidence, etc. 
We fear that the lower Court's ruling, if allowed to stand, 
would place future Congressional investigations into executive 
corruption at the mercy of the executive who could, at any time, 
institute a grand jury to explore the matters of Congressional 
interest and thus foreclose legislative scrutiny. 



1266 



-30- 



"The select committee and Its members, by Issuing 
subpenas to the President and Instituting and pur- 
suing 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 cajn- 
paign and election of 1972 by officers or employees 
of the executive branch of the United States Govern- 
ment 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 determina- 
tion of the need for and scope of corrective legis- 
lation 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 execu- 
tive 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 determining the need for and scope of correc- 
tive legislation .*/ (emphasis added) 

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 subpena previously issued 

by the Committee to the President. Under the circximstances, 

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. The Senate, 

of course, is supportive, as demonstrated by S. Res, 19^. In 



^7~ Senator Ervin, in his affidavit to the District Court 
(attacVied to the Supplemental MeraoraJidum In Support Of Plain- 
tiffs' Motion For Summary Judgment), also described the evidence 
sought by the subpena as "vital to the exercise of the Committee's 
functions." See para. (2) of that affidavit. 



1267 



-31- 



assessing the public interest in disclosure, these actions by 
the elected representatives of the people are, we submit, 
entitled to great deference. But the District Court did not 
refer to S. Res. 19^ in its opinion and did not deal with 
the import of that Resolution and Public Law 93-190 to the 
present case. 

Moreover, we submit, with all deference to the District 
Court, that the danger of pretrial publicity that might result 
from release of the tapes to the Committee is both ill-defined 
and unsubstantial. As observed, the District Judge asked the 
Special Prosecutor, who obviously has a vital interest in fair 
trials, to comment on the potential dangers of pretrial 
publicity if the tapes were released to the Committee. It 
is significant that the perception of the dangers inherent 
in release of the tapes to the Committee held by the Special 
Prosecutor, who has heard the tapes as Judge Gesell has not (JA 
15^, l66.)j is substantially less dire than the lower Court's. 
The essence of the Special Prosecutor's response (JA 159) to 

the Court's request is contained in the following paragraph; 

" We are confident that notwithstanding prior pub- 
licity, if Jurors are selected with the care re- 
quired by^ the gecislons in this Circuit, aH" 
defendants will receive a fair ajid 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 sup- 
port of a claim of prejudicial pre-trial publicity. 
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-trial publicity a decisive 
factor." (emphasis added) 



1268 



-32- 



The Special Prosecutor candidly recognized that, in 
addition to a Court's powers to achieve fair trials, j|^/ 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 (JA 157 ) 
that any possible impact would be reduced if the Committee 
uses the subpenaed material judiciously. We represent to the 
Court that the Committee, ever cognizant of the need for fair 
trials, would voluntarily impose the necessary restrictions on 
itself as to the employment of this material. The Committee 
recently postponed sched\iled hearings because of the proximity 
of the Mitchell/Stans trial in New York City. Even more 
recently it has determined not to hold further public hearings 
at this time- -partially because it does not want to interfere 
with upcoming Watergate trials. And the Committee has, at the 
Special Prosecutor's request, postponed the issuance of its 
final report so as not to hinder any plea bargaining that may 
take place immediately after the Watergate indictments are 
Issued. Similar self-restraint will be shown in the future 
if we receive the subpenaed tapes.**/ 



_*/ As Judge Sirica said in Application of United States 
Senate Select Committee on Presidential Campaign Activities, 
361 F. Supp. 1270, 1280 (D.D.C. 1973), a Court has a "well- 
stocked arsenal of measures designed to preserve the integrity 
of proceedings and the rights of individuals". The Courts, of 
course, "are not concerned with the fact of publicity but with 
the assessment of its nature". Silverthorne v. United States, 
400 F.2d 627, 631 (9th Cir. I968) cert, denied. 400 U.S. 1022 
(1971). 

**/ Moreover, as explained in more detail in Section III, 
this"~Erief, the Committee would be willing to submit to a pro- 
tective order, if such is deemed necessary by this Court, to 
ensure that the contents of the tapes are not revealed at a 
non- Judicious time. 



1269 



( -33- 

The Special Prosecutor has stated (JA I58) that, because 
of the massive publicity these conversations have already had 
resulting from testimony before the Select Committee ajid other- 
wise, "any publicity stemming from compliance with the subpenas 
would add only marginally to previous publicity." This is of 
course true because, as this Court observed in Nixon v. Sirica 
as to four of the conversations at issue here: "The simple 
fact is that the conversations are no longer confidential." 
487 F. 2d at 718. The Special Prosecutor has also referenced this 
Court's ruling 1n Nlxnn v. Sirica (p. 718) that the tapes 
constitute "the best evidence of the conversations available." 
We suggest to the Court that, because this "best evidence" 
would put to rest speculation as to what is on the tapes, the 
volume of publicity respecting the tapes would actually be 
reduced by revelation of their contents. And, as the Special 
Prosecutor noted, the publicity that would flow from release of 
the tapes would be "largely factual" (JA I58); it would not be 
the type of inflammatory publicity generated by rigorous cross 
examination of a hostile witness. 

There are yet other factors that would minimize the 
possible pretrial impact of producing the tapes to the Select 
Committee. It is 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 



27 It is significant that guilty pleas have been obtained from 
Dean, Magruder, Porter, LaRue and Segretti even though they 
testified before the Committee emd thus the facts of their 
respective involvements in "Watergate" were extensively publicized, 



1270 

-34- 

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. 

See the District Court's opinion, JA l64. Ahy 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 forthrlghtly recognizes 

this, stating " /~aJ7t this time it is Impossible to assess the 

precise impact of such publicity on forthcoming trials," JA 

157. The lower Court, itself, made a similar observation, stating 

that "it is impossible ... to assess the precise impact of 

publicity on the forthcoming Judicial proceedings." JA I67. 

In fact, the District Court offered no stronger prognosis of 

the danger to fair trials than the observation that "the risk 

exists that /"public ity_7 would bolster contentions that 

unbiased juries cannot be impaneled for trial" JA 167. ^ 

Moreover, no potential Watergate defendant has lodged a complaint 

in this case that his trial will be prejudiced by release of 

the tapes. 

37 This statement echoes the Special Prosecutor's position. The 
most the Special Prosecutor would say (JA 156-57) 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 prevents 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 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." JA 159. 



1271 



-35- 

Surely, some vague, possible pretrial impact that may 
never occur does not outweigh the vital need of the Committee 
to achieve the tapes in question so it may fulfill its lawmaking 
and informing functions. The Committee's legislative tasks 
should not be frustrated by reliance on an admittedly highly 
speculative assessment of possible pretrial publicity. We 
must concluae that, if the balancing test promulgated by the 
lower Court is indeed appropriate, it was misapplied in the 
present case. */ 

Our conclusion is bolstered by the fact that Judge Sirica, 

a jurist who is certainly concerned with avoiding adverse pretrial 

publicity and will apparently try the main Watergate case, has 

ruled in the Special Prosecutor's case that the President is free 

to release publicly the tapes there involved. In Re Grand Jury 

Subpoena Duces Tecum Issued To Richard M. Nixon (D.D.C. Misc. 

No. 47-73, Nov. l4, 1973). In that case Judge Sirica held that: 

"if the President thinks it advisable to waive any 
privilege and make tapes or other material public, 
he of course is free to do so at any time ." File 
opin. at 2. (emphasis added) 

Since the entry of this ruling. Judge Sirica has heard the tapes 

involved in the Special Prosecutor's case, but apparently not amended 

this ruling. See the Court's order in this case dated December I9, 

1973. There thus seems to be a basic difference of opinion between 
Judge Sirica, who has heard four of the five tapes here involved,* V 
and Jid^e Gesell, who has not, 

37 This case, of course, involves only five tapes conversation — 
not other items subpenaed from the President. Even if some form 
of balancing of legislative and judicial need is appropriate, 
this case must be judged on the possible effect release of those 
five tapes would have, not on the effect that might flow from 
release of other Presidential material. 

**/ The February 28 tape was not involved in the Special 
Prosecutor's litigation, but was subsequently made available 

to him. 



1272 



-36- 

III. The Committee J If This Court Disagrees With The Committee's 
Contentions Above, Will Voluntarily Submit To A Protective 
Order That Will Allow It To Fulfill Its Legislative Functions 
And, At The Same Time, Ensure Fair Trials 

The Committee submits that its arguments above are dispos- 
itive and that full reversal of the lower Court's order is required. 
If this Court does not agree that reversal is appropriate, 
we believe a modification of the lower Court's order is appro- 
priate, as now explained. 

While there are differences between us and the District 
Judge as to the new rule of law he has propounded and its applica- 
tion, we appreciate his proper concern for minimizing pretrial 
publicity .j|_/ It is a concern the Committee also shares, as evidenced 
by the postponement of its hearings so as not to interfere with 
the Mitchell/Stans trial in New York, by its later discontinuance 
of all hearings for the present in order not to impair in any way 
the upcoming Watergate trials, aiid by its decision to seek post- 
ponement of its report filing date so as not to hinder plea- 
bargaining immediately following the Watergate indictments by 
encouraging possible pretrial publicity defenses. The Committee, 
however, must also consider other objectives, i.e. , the fulfillment 
of its lawmaking and informing functions, which are also of great 
social utility. 

Respecting its lawmaking functions, the Committee's chief 
need at this time is to examine the tapes to determine whether 
drastic legislation respecting presidential campaigns is required 
and would eventually receive the public support needed for its 
passage when the contents of the tapes are revealed. The major 

'*? The risk of pretrial publicity appears the only reason that 
The District Court denied enforcement of the Committee's subpena. 
This conclusion, of course, was based on the assumption that the 
Committee would immediately publicly play the tapes. 



1273 



-37- 
concern regarding the informing function is that these tapes 
be released to the Committee so that at some future time they 
may be made public and not forever kept secret from the ;jation. 
We have fears that, linless the Committee performs this function, 
it will not be fulfilled. It is not yet certain whether the 
tapes will eventually be made public through the criminal 
process — the Watergate cases possibly may all be concluded by 
guilty pleas or the tapes, for one reason or the other, may not 
be allowed into evidence. There is also no certainty that they 
will be made public during the Impeachment process. No 
subpena is yet issued for these tapes by the House Judiciary 
Committee and, if issued, it may be dishonored as our Committee's 
subpena has been. If a subpena is refused, it is not assured 
that the House Judiciary Committee would go to Court to obtain 
the material sought axid, in any event, it has no jurisdictional 
statute as does the Committee to facilitate litigation. It 
is thus possible that Judge Sirica's earlier ruling on juris- 
diction in this case would serve as a bar to litigation by that 
body. See 366 F. Supp. 51 (D.D.C. 1973). 

These considerations suggest that one feasible course for 
this Court is to order release of the tapes to the Committee 
under a stringent protective order to which the Committee, waiving 
separation of powers considerations, would agree. That order 
would limit access to the tapes to a severely limited number 
of persons and would prohibit public revelation of their contents 



1274 



-38- 
at this time.V This would allow the Committee presently to ful- 
fill its lawmaking function. It would ensure that the tapes are 
in the public domain and will not be forever hidden under a cloak 
of secrecy from the public that has the right, at some time, 
to know their contents. When it becomes apparent that — for one 
reason or the other — playing the tapes publicly will not pre- 
sent the possibility of pretrial prejudice, or when there is 
some other pressing reason that the contents of the conversations 
be revealed, the Committee would move the District Court to 
lift the order. 

This procedure should satisfy the lower Court's only concern 
-- that the tapes would be played "in the blazing atmosphere of 
ex parte publicity directed to issues that are immediately and 
intimately related to pending criminal proceedings." JA 169. 
Even the District Court, in dismissing the action "without 
prejudice," recognized that there could come a time when release 
of the tapes to Committee would, under its view of the law, 
be permissible .**/ 

37 The Special Prosecutor raised the idea of a protective order 
below, but the District Court declined to follow that suggestion. 

**/ The lower Court's implicit suggestion that the Committee 
could bring a new lawsuit at a later date is wholly unworkable. 
The Committee has a short life span and needs the tapes immediately 
to fulfill its lawmaking functions. Moreover, the President, 
in a new suit, would have 60 days to answer and the litigation — 
with the inevitable appeal -- would surely be protracted long 
beyond the Committee's expiration date. We do not perceive why 
the District Court, under its theory of the case, found it neces- 
sary to dismiss the case (JA 170) instead of only denying the 
motion for summary judgment with leave to renew. The defendajit 
had not moved for dismissal. In any event, the Court's action 
in req-uiring a new lawsuit when circumstances change places 
plaintiffs in an impossible situation because of the Committee's fast 
approaching expiration date. 



1275 



-^ -39- 



Thus the District Court — even if it is correct in its 
view of the law — has gone further than necessary to ensure 
that possible pretrial publicity be minimized. This court should, 
at the least, require modification of the order of the lower 
Court to provide that the tapes be released to the Committee 
under a protective order as described above. Such a ruling 
would properly avoid "needless friction" with a coordinate branch 
(see Sanders v. McClellan, supra , 150 U.S. App. D.C. at 63s 
Ansara v. Eaatland ^ supra , l43 U.S. App. D.C. at 31) and allow 
the Committee to perform the vital functions entrusted to it by 
the Senate and the Constitution. 

Conclusion 

The Judgment of the District Court should be reversed 
or modified in accordance with the suggestions set forth above. 




Samuel Dash 
ehief Counsel 

Fred D. Thompson 
Minority Colons el 

Rufus Edmisten 
Beputy Coxonsel 

James Hamilton 
Assistaxit Chief Counsel 

Ronald D. Rotunda | 
Assistajit Counsel j 

I 



1276 



-40- 



Shermsm Cohn 
Eugene Gressman 
Jerome A. Barron 
Washington, D.C. 
of Counsel 

Arthur S. Miller 
Chief Consultaint to 

the Select Committee 
Of Counsel 



Richard Stewart 
Special Counsel 

Donald S. Burr is 
Assistant Counsel 

W. Dennis Summers 
Assistant Counsel 

United States Senate 
Washington, D.C. 20510 
Telephone Number 225-0531 

Attorneys for Appellants 



1277 



THE UTflTED STATES COUHT OF APPEALS 
FOR THE DISTRICT CF COLW.ffilA CIRCUIT 



SENATE SELECT COMMITTEE CN PPuESIDENTIAL 
CAMPAIGN ACTIVITIES, suing in its 
own name and in the name of the 
UNITED STATES, 

and 

SAM J. ERVIN, JR., HOWARD H. BAKER, JR., 

HERMAIJ E. TALMADGE, DAIHEL K. INOUYE, 
JOSEPH M. KONTOYA, EDV/ARD J. GURI.'F/, 
and LOVTELL P. WEICtCER, JR., as United 
States Senators who are members of the 
Senate Select Committee on Presidential 
Campaign Activities 

Appellants 



No. 7^-1258 



RICHARD M. NIXON, Individually and as 
President of the United States 



Appellee 



Appeal from the District Court of the District of Columbia 



JOINT APPENDIX 



Sherman Cohn 
Eugene Gressman 
Jerome A. Barron 

V/ashington, D.C. 
Of Counsel 

Arthur S. Miller 
Chief Consultant 

to the Select Committee 
Of Counsel 





"T-fiTamuel 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 

Dennis Summers 
Assistant Counsel 



United States Senate 
Washington, D.C. 20510 
Telephone Number 225-0531 

Attorneys for Appellants 



34-966 o - 74 - pi. 2-5 



1278 



JOINT APPENDIX 



TABLE OF CONTENTS 



Page 

Complaint for Declaratory Judement, Mandatory 

InjTinction and Mandamus (filed August 9, 1973) ... 1 

Exhibit to Conylaint: 

Exhibit A, S. Res. 6o (agreed to February 7, 

1973) 11 

Exhibit B, S. Res. 262 (agreed to 1928). . . 25 

Exhibit C, Subpoena Duces Tecum for certain 

specified taped conversations 26 

Exhibit D, Subpoena Duces Tecum for 
documents relating to certain 
specified individuals 29 

Exhibit E, Letter from Richard Nixon to 

Sam J. Ervin, of Jxoly 25, 1973. ... 3^ 

Exhibit F, Letter from Richard Nixon to 

Saia. J. Ervin, of July 6, 1973 36 

Exhibit G, Letter from Richard Nixon to 

Sam J. Ervin, of July 23, 1973. . . . 4o 

Exhibit H, Excerpts from the sworn testi- 
mony of John Wesley Dean, III, and 
H.R. Haldeman before the Select 
Committee at public session 42 

Exhibit I, Affidavit of Fred D. Thompson 

and Memorandum of oral communications 
between President Nixon ajid John 
Wesley Dean, III, and Memorandum of 
Substance of Certain Portions of the 
Enximerated Conversations between 
President Nixon and Mr. Dean (Buzhardt 
version) 71 

Exhibit J, Presidential Press Release of 

May 22, 1973 86 

Exhibit K, Letter from Leonard Garment to 

John Dean, of Jvme 19, 1973 9^ 

Amendment to Complaint (filed January 7, 197^) 95 

AjTisver to Complaint (filed August 29, 1973) 98 

Amended Answer (filed January 17, 197^) 104 

Plaintiffs' Motion for Summary Judgment (filed August 29, 

1973) 108 

Plaintiffs' Statement of Material Facts As To Which There 
Is No Genuine Is sue (filed August 29, 
1973) 110 

S. Res. 19^ (agreed to on November 7, 1973), relating to 
S. Res. 60 (see p. 11, supra this 
Appendix) 13^ 



1279 



Table of Contents 
Paye 2 

Page 

Public Law 93-190, to be codified as 18 U.S.C. 

S136l^ (becaJTie law after midnight, 
December I8, 1973) 137 

Per Curiam Order of the Court of Appeals in C.A. 

1593-73( filed December 28, 1973). • . 138 

First Order of Judge Gesell in C.A. 1593-73 (filed 

January 25, 197^) 139 

Second Order of Judge Gesell in C.A. 1593-73 (filed 

January 25^ 197^) l'^'^ 

Third Order of Judge Gesell in C.A. 1593-73 (filed 

January 25, 197^) I'+S 

Memorandum of the Special Prosecutor (In response to 
January 25 Order of Judge Gesell) 
(filed February 6, 197^) 15^+ 

Letter to Judge Gesell from James D. St. Clair 

(filed February 6, 197*^) I6I 

Letter to Judge Gesell from Richard Nixon (filed 

February 6, 197^^) 162 

MEMORANDUM AND ORDER In C.A. 1593-73 (filed February 8, 
1574) 164 

RELEVANT DOCKET ENTRIES 

Filed 
Complaint August 9, 1973 

Ansv/er August 29, 1973 

Plaintiff's Motion for Summary Judgment August 29, 1973 

Order dismissing plaintiff^' action with prejudice. . October 17, 1973 

liotice of Appeal October 19, 1973 

Remand Order of Court of Appeals .... December 28, 1973 

Amendment to Complaint January 7, 1974 

Amended Ansvmr January 17, 1974 

Crier Requesting Response froin President January 25, 1974 

Order Requesting Response from Special Prosecutor. . . January 25, 1974 

Order Denying Enfor-cem-^nt of -Suboana for 

Documents, etc January 25, 1974 

M^norandum and Order dismissing action without 

prejudice February 8, 1974 

liotice of Apt)eal February 20, 19744; 



1280 

RAGE 1 



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



SENATE SELECT COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES, siiing 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. MC'NTOYA; EDWARD J. GURNEY; 
and LOWELL P. WEICKER, JR., as United 
States Senators who are members of the 
Senate Select Committee on Presidential 
Campaign Activities. 

United States Senate ) Civil 

Washington, D.C. 20510 ) Action 



No. 



Plaintiffs 



RICHARD M. NIXON, individually and as 
President of the United States. 

The White House 
Washington, D.C, 20500 

Defendant 



COMPLAINT FOR DECLARATORY JUDGMENT, 
MANDATORY INJUNCTION AND MANDAMUS 



1. This action seeks a declaratory judgment, a mandatory 
injvinction and a writ of mandamus to direct Richard M. Nixon, 
individually and as President of the United States, to comply 
with two subpenas duces teciim, 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. I^is 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 under Article 
II of the Constitution of the United States, which vests execu- 
tive powers in the President of the United States, 



1281 

PAGE 2 

- 2 - 

Parties 

3. The plaintiff Senate Select Conmlttee 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, which was enacted by a unanimous vote of 
the Senate on February 7, 1973. Under S. Res, 60, 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 new legislation "to safeguard the electoral process 
by which the President of the United States is chosen." The 
Select Committee is further empowered 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 
beh£Q.f 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." 

4. The plaintiffs Senator Sara J. Ervin, Jr., of North 
Carolina (Chairman), Senator Howard H. Baker, Jr., of Tennessee 
(Vice Chairman), Senator Herman E. Talmadge of Georgia, Senator 
Daniel 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 are duly designated members of 
the plaintiff Senate Select Committee on Presidential Campaign 
Activities. Each of the aforementioned members of the Select 
Committee is suing in his official capacity as a member of that 
Committee. 



1282 

PAGE 3 
- 3 - 

5. The defendant Richard M. Nixon is President of the 
United States and was 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. 
§1331, granting to this Court "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." 
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. 813^5, greuiting to this Court "original jurisdiction 
of all civil actions, suits or proceedings commenced by the 
United 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. §1361, 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 
Administrative Procedure Act, 5 U.S.C. 0701-706, giving this 
Court jurisdiction to remedy any "legal wrong" suffered by the 
plaintiffs as the result of Presidential action for which no 



1283 

PAGE k 
- h - 

adequate review proceedinc 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 
invoke the authority of this Court to render declarator^' judg- 
ments and grant other relief under 28 U.S. C. ii 2201 and 2202, 
and to issue "all writs necessary or appropriate in aid of. . . 
/~i.ts7 jurisdictio/^ n7 and agreeable to the usages and princi- 
ples of law" under 28 U.S.C. §1651. 

Sta tem ent of Facts 

11. By virtue of Sec. "S (a) (5) of S. Res. 60, the plain- 
tiff Select Committee is empowered 

"...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 •'ormer 
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 which 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, 1973j addressed two subpenas duces tecum, 
signed by its Chairman, to "President Richard M. Nixon, The 
V/hite House, V.'as:iington,D.C," which sought specified material 
within the defendant President's sole possession, custody or 
control. Both subpenas were duly served on that date. The 
two subpenas, with 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 



1284 

PAGE 5 



-b- 



"betweon President Nixon and John Wesley Dean, III, discussing 
all eged criminal acts occuring in connection vith the Presid- 
entiad election of 1972 which the Committee is authorized to 
investigate pursuant to Senate Resolution 60." /^&nphasis 
added7 

ih. The subpena appended as Exhibit D directed the 
defendant President to make available to the Select Committee 
documents and other materials "relating directly or indirectly 
to /6^7 attached list of individu8G.s and to their activities, 
participation, responsibilities or Involvement in emy alleged 
criminal a cts related to the Presidential election of 1972 
which 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 con^jlied with 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 was emnounced in a letter of July 25, | 
1973j which was addressed to Senator Sara J. Ervln, 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 comply with the subpenas, the 
defendant President relied in part on reasons stated in letters 
dated July 6 eind July 23, 1973, from him to the Chairman (which 
are appended herto as Exhibits P and G). Thus the defendant 
President did willfully and intentionally refuse to comply with 
either subpena, in whole or in part. 

16. At no time has the defendant President moved in this 



12S5 

PAGE 6 
-£- 

Court or any other Court to quash, modify or narrow the scope 
of ei iier subpena. 

17. At no clme has the defendant President denied that ne 
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 therewith. 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, will 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 with the Presidential csimpaign and election of 

1972, are relevant to the subject matters of the Select Commit- 
tee's investigation pursuant to S. Res. 6o. With respect to 
the tapes, the defendant President, in his letter dated July 23, 

1973, to the Chairman of the Select Committee (Exhibit G herer- 

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 Committee. Before their exis- 
tence became publicaly known, I personally listened to 
a number of them. The tapes are entirely consistent with 
what T know to be the truth and what I have stated to be 
the truth. However, as in any verbatim recording of in- 
formal conversations, they contain comments that persons 
with different perspectives and motivations would inevit- 
ably interpret in different ways." 

Moreover, sworn testimony of John Wesley Dean, III, and 

H. R. Haldeman before the Select Committee has demonstrated 

that the subject matter of the five specified conversations 

falls within the investigatory Jurisdiction of the Select 

Committee. (See Exhibit H hereto.) Furthermore, the defendant 

President, acting through his Special Counsel, has revealed allfr.e'^ 



1286 

PAGE 7 
-7- 

facts demonstrating that the subject matter of these conver- 
sations is wi'.hin the Select ConBnlttee's jurisdiction. (See 
Exhibit T hereto.) 

Cause of Action 

19. The defendant President's refusal and failure to 
make available the electronic tapes and other materials in 
resi>onse to the Select Conmittee' s lawfully issued subpenas 
are unlawful, unwarranted and in breach of his legal duty 
to respond to and to comply with such subpenas. 

20. The defendeuit 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 eilleged criminal acts and thus cannot justify 
the refusal of the defendant President to respond to or 
coii5)ly with the two subpenas. 

22. If there be any Presidential power, 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 power, 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 eind 

subordinates, both present and past, to reveal portions 

or versions of these materials. The breach of confidentiality 



1287 

PAGE 8 

- 8 - 

and the waiver of any alleged Presidential power, prerogative, 
or privilege are the result of the following actions (among 
others) : 

(a) The defendant President's statement of May 22, 

1973, that: 

"/~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 and the alleged cover-up." 

(The defendant President's entire statement of this date is 

appended as Exhibit J.) 

(b) The ccMtanunications 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 Conmittee. (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's action in turning over 
certain of the tapes now under subpena to H. R. Haldeman, a 
private citizen, who was instructed 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 Committee'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 work of the Selecti 



1288 



PAGE 9 
-9- 



Coraraittee and the Interests of the United States on >riiose 
behair and in whose name the Select Committee sues. There is 
no remedy at law adequate and appropriate in the present cir- 
cumstances to the resolution of this controversy, which is of 
widespread public interest and concern, auid relief through 
injiinction and/or mandamus is therefore in order. 

2h. 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, auid need for, the swift com- 
pletion of the functions of the Select Committee and the unique 
auid critical Const! tutiontJ. considerations raised by the actions 
of the defendant President warrant expedition of this action 
at all stages and prompt resolution of the dispute. 
Prayer 

Wherefore, the plaintiffs pray that: 

1. This Court issue a declaratory Judgment stating that 

(a) The two subpenas duces tecum were lawfully 
issued by the plaintiff Select Committee, were lawfully served 
upon the defendant President, and must therefore be responded 
to, and complied with, by the defendeuit President. 

(b) The defendant President may not refuse to 
respond to, or comply with, said subpenas on the basis of amy 
claim of separation of powers, executive privilege. Presidential 
prerogative or otherwise. 

(c) The defendemt President, by his actions in 
reveetLing, 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 
waived any claim to the applicability of doctrines of separation 



1289 



-10- 



PAGE 10 



of powers, executive privilef^e or Presidential prerogative 
respecting those materials. 

?. This Courv, if such be deemed necessary, issue 
to the defendant Presidenr. (a) a writ of mandamus and/or 
a mandatory injunction, if It be determined that he is 
withholding the subpenaed mate'ials 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 In the subpenas. 

"51. This Court award the plaintiffs such other and 
further relief as may be deemed Just and equitable under the 
circumstances. 

Re8pec,tl!*ully subrall 




Sherman Cohn 
Eugene Gressman 
Jerome A. Barron 

Washington, D. C. 
Of Counsel 

Arthur g. Miller 

Chief Consultant to 
the Select Committee 
Washington, D. C. 

Of Counsel 



■A(w^_rouMXfes^ 



James Hamilton 
Assistant Chief Counsel 



William T. May ton yC 
Assistant Counsel c/ 



Ronald D. Rotunda 
Assistant Coxinsel 

United States Senate 
Washington, D. C. 20510 
Telephone Number 225-05^1 



1290 



PAGE 11 

EXHIBIT A 



Oni) CONCJUESS 

JsT Hkhhion 



S. RES. 60 



IN THE SENATE OE THE UNITED STATES 

Ferkuary 5, 1973 

Mr. Ervin (for himself and Mr. Mansfield) submitted tlie follo\vin<r resolu- 
tion ; which was ordered to Ik* 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 sdwt committee of the Senate to oonduct an 
investigation and study of the extent, if any, to which 
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. 

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, imi)roper, or 

7 unothical activiti(>s were engaged in by any persons, acting 

\\\ o 



1291 

PAGE 12 

2 

1 either individually or in combination with others, in the 

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

3 canvass conducted by or in l)ehalf of any person seeking 

4 nomination or election as the candidate of any political party 

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

7 rences which may he revealed by the investigation and study 

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 five 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 reconi- 
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 

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 

24 

vie* chairman from among its members, and adopt rules of 

2*5 

procedure to govern its proceedings. The vice chairman shall 

2G .1 • , ., , , ... , . 



1292 



PAGE 13 



3 

1 absence of the chairman, and discliargc siuli other responsi- 

2 bilities as may he assigned to liim hy the select committee or 
.'{ the chairman. Vacancies in the membership of the select com- 

4 mittce shall not affect the authority of the remaining mem- 

5 JM-rM to execute Ihe functions of the select committee and 
(i slmll he lillcd in llic snnic manner as original appointments 

7 to it are made. 

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

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 conmiittee is authorized and 
1:j directed to do everything necessary or appropriate to make 
14 llie investigalion and sindy sjtecified in section 1 (a). Witli- 
IT) out abridging or limiting in any way the authority conferred 
](j upon the select committee by the preceding sentence, the 

17 Senate further expressly authorizes and directs the select 

18 committee to make a com]>lete investigation and study of the 

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

20 nizations of any kind which have any tendency to reveal tbe 

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

22 ( 1 ) Tbe breaking, entering, and bugging of the 
.>;j hwidquarlers or itfliees of the Democratic National i\m\- 
.»4 luiltoe in the WntergiUe Building in Wnslungton. IVistrict 
.»"\ of (Vlumbia ; 



1293 

PAGE U 

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 Conmiittce 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, ])liiiin('d the activities men- 
2;{ 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 



1294 



5 

1 or promises of pavinents of money or other things of 

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

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

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

5 ncction 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 plann'mg 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 gu'dty to the charges preferred against them in 
1* the District Court of the District of Columbia or to 
1^ conceal or fail to reveal any knowledge of any of the 
1® activities mentioned in subdivision (1), (2), (3), 
1*7 (4), or (5) of this section, and, if so, the identities 
1^ of the persons inducing them to do such things, and the 
1^ identities of any other persons or any committees or 
^ organizations for whom they acted ; 

21 (7) Any efforts to disrupt, hinder, inii)ede, or sabo- 

22 tage in any way any campaign, canvass, or activity con- 

23 ducted by or in behalf of any person seeking nomination 
2* or election as the candidate of any political party for the 
25 office of I'resident of the Vnkvd States in li)72 by in- 



PAGE 15 



1295 

PAGE 

6 

1 filtrating any political committee or organization or licad- 

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, conmiunications, 

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

7 person seeking such nomination or election or of any 

8 other person avssisting liim in so doing, or by exercising 

9 surveillance over the person seeking such nomination or 

10 election or of any pei"son assisting him in so doing, or by 

11 reporting to any other person or to any political c(^>m- 

12 mittee or organization any information obtained by such 

13 infihration, eavesdropping, bugging, wiretapping, or 
M: '' surveillance; 

15 (8) Whether any person, acting individually or in 

16 ^ combination with others, or poUtical 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, 

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 infonnation having 

25 the purpose of discrediting any person seeking nomina- 



1296 



1 tkm or efeetM as tke naJidbfr <rf amy pofiticil puty 

i t» tke «fiee «f IVnyri ol tfe Unk^ States in 1972; 

3 (10) Ike flHHi^ of uj of die afrthritks bws- 

4 iMrd ia idliiiiiiiiw (7), (8), «r <9| «f dife <«ttk^ 
1^ twmfktjmg of ilv fulkiputs m ack acdYibes, 

6 ^d. tfae I— III of my ■naeyi <■* tUags of vabe ^rUch 

7 ma^ have beea gx^^em «- fnaned to tfe faitidpuils m 

8 aack arii^kin. kr tkeir serneo, aati tke idcalhifs of 

10 have beea ivc^oh-ed m wr wy at die plaaaiag, pro- 

13 tne, ar ase mi ^ s «r m aaj oAcr co^ 

16 tiy, of aay bc i :' viIm caBrrtrJ or 

luciwoa ■F acT^i_ : r ^ - inc pRaaealad 

18 dectka af 1972 «r ia lay nhtrd raaipaiga or caaTas 

19 «r aetiailies |Biiiifat^ ar aocaa^aaiyiag sadi cfecdoa 
an hy aary ftijaa , giaaf af pcnMs, caaaaittee, ar oig»- 
21 aiatioa of aay kiai adng ar imiftaii^ to act in bdntf 
:ri «f aay aatiaaal pafilini party «r ia lapptil of ar ia 

M to the afce af rii-iiii'at af the Uaite4 Star« in 1972: 



PAGE 17 



1297 

PAGE 18 

8 

1 (12) Compliance or noncompliance with any act 

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

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

4 mentioned in subdivision (11) of this section: 

5 (13) Whether any of the money's 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 ideuiitie-; 

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: 

14 (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 conmiittee is authorized and directed to investigate and 

19 study have been concealed, suppressed, or destmyed by 

20 any jiersons actmg individually or in combiuatiou with 

21 other?, and. if so, the identities and motives of any such 

22 persons or groups of persons; 

23 (15) Any other activities, circnmstances, material-. 

24 or transactions having a tendency to prove or disi»rove 

25 that persons actinsr either individually or in combination 



1298 



PAGE 19 



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 inadequate, cither 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 conmiittee 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- 
l^ }>ensation 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; (o) to hold hearings for 

17 taking testimony on oath or to receive docmnentarj^- 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 conmiittee believes have knowledge or information 
•w concerning any of the matters or (|U(.>tlons it is aufhctrized to 
2:\ investigate and study; (•")) to n-qiiire by subpcnn (.r order 
•'4 any dipartmrnt, agi'iicy. onicir. or employee of the exeeu- 
25 'i^'c branch of the United Slates (i(»vennnenl, .>r any ])rivate 



1299 

PAGE 20 

10 

1 i>crson, firm, or corporation, or any oflRccr or fonuer officer 

2 or employee of any jHilitical committee or organiaition to 
H produce for its consideration or for u>e as evidence in its 

4 investjoration and study any books, cliecks. canceled checks, 

5 correspondence, connnunications, d(Kument, jiapers, pliysical 

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

7 any of the matters or questions it is autli<»rized to investigate 

8 and study which they or any t>f them may have in their 

9 custody or under their control; ((5) 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 res})ect to the willful 

13 failure or refusal of any person to answer (|uestions or give 

14 testimony in his character as a witness during his appearance 

15 before it, or in respect to the willful failure or refusal (»f any 

16 officer or employee of the executive branch of the United 

17 States Government or any pei^son, firm, or coi'jx)ration. or any 

18 officer or former officer or employee of any political connnitte^ 

19 or organization, to produce before the connnittec any lK)oks, 

20 chocks, canceled checks, correspondence, communications. 

21 dt»cument, financial records, papers, i)hysical evidence, rec- 

22 Olds, recordings, tapes, or materials in ol)edience to any sub- 

23 pcna or order; (7) to take de]>ositions and other testinnuiy on 

24 oath anywhere within the United States or in any other 

25 country; (8) to procure the temporarv' or intermittent sen- 



1300 

PAGE 

11 

1 ices of individual consultants, or organizations tlieroof, in I ho 

2 same manner and under the same conditions as a standing 

3 committee of the Senate may procure sue h services under 

4 scetion 202 (i) of the Legislative Keorganizatlun Act of 
f) 194(5; (9) to use on a reimbursahle basis, with the jtrior 
(j c(msent 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 rehnbursable basis or otherwise with the prior con- 

10 st'nt of the chairman of any other of the Senate connnittees 

11 or the chairman of any subcommittee of any conmiittee of 

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

14 of such other Senate committees whenever the select coni- 

15 mittee or its chairman deems that such action is necessary or 
](j appropriate to enable the select committee to make the in- 
17 vestigation and study authorized and directed by this resolu- 
Ig tion; (11) to have access through the agency of any mem- 

19 hers of the select conunifctee m ftfly ei ite invest ig^itory m 

20 iegal au n i o tant fl deuignatcd fey k or ittj chairman ei^ the fttttk- 

21 i«g minori t y member , chief majority counsel, miiwriiy coun- 

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

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

24 evidence, infoi-mation, report, analysis, or document or papers 
2r> relating to any of the matters or questions which it is author- 



1301 

PAGE 22 

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 CSovern- 

4 ment having the power under the hiws of tlie United States 

5 to investigate any alleged crimhuil activities or to prosecute 

6 persons charged with crimes against tlie United States which 

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

8 investigation and study authorized and directed by this rcso- 

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 (he 

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

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

20 ized to administer oaths to any witnesses appearing before 

21 the committee. 

22 (c) In preparing for or conducting the investigation and 
2:i study authorizcid and directed by tliis resolution, the sclccl 

24 committee shall be empowered to exercise the ])owers con- 

25 feired upon committees of the Senate by section 0002 of title 



1302 

PAGE 23 

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 coniniittee shall have authority to 

4 ri'cominend the enactment of any new congressional legis- 
,'» Inlinn \v}ii('li it.s 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 neceis&ry or desirable, to the Senate at the earUest 

13 practicable dat*, but no later than Februar}' 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 mcmths 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 pnKMireiucnt of the services tif individual 
2;{ ciuisiiltnuls or orgnuizatitnis ilun>»)f. Such expen.^ics shall be 
24 l"*'*^ from llic conliiigcnt fund ttf tlic Si-nate upon vouchers 
2o ai»)>ro\((l 'iv the chniniuiii of the select committee. 



1303 

PAGE 2^ 

14 

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

2 third of the professional stuff of the select committee (incluJ- 

3 ing a minority counsel) and stick part of the clerical stuff 

4 as may he adequuie. 



1304 



PAGE 25 



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 iurisdiction 
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 Senai 
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. 



1305 



PAGE 26 



UNITED STATES OF AMERICA 
CONGRESS OF THE UNITED STATES 
SUBPOENA DUCES TECUM 

To: President Richard M. Nixon, The White House, Washington. D. C. 

Pur s uant to lawful authority, YOU ARE HEREBY COMMANDED 
to make available to the SENATE SEJLECT 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 
coxrunittee 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 JII, discussing alleged criminal acts occuring in connection with 
the Presidential election of 1972 ■which the Committee is authorized 'i;o 
investigate pursuant to Senate Resolution 60 including but not limited to 
the break-ins at the Democratic National Commiti;ee offices on or aoou^ 
May 27, 1972, and on or about J\ine 17, 1972, and any efforts made to 
conceal information or to grant executive clemency, pardons or ii-nrAa.i i'4,y 
and payments made to the defendants and/or their attorneys relating to tl.o 
above incidents at the dates and times of the attached list of conversatLor.o; 



1306 

PAGE 27 



September 15, 1972 (personal) 5:27 p.m. to 6:17 p. rn. 

February 28, 1973 (personal) 9:12 a. ir.. 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 
pains and penalties in such cases made and provided. 

To i?i~fu s L ■ gr/ r^ ; -. "Ae /J'lf:?.fi y r^ / -• '---/ x/ 

to serve and return, f;- 

Given under my hand, by order of the 
.comrriittee, this 23;;d day of July, in the 
year of our Lord one thousand nine hundred 
and seventy-three. 






Chairman, Senate Select Comi-nLt"tee oa 
Presidential Campaign Activitss 



i3o: 



PAGE 28 






;■> ; , 












"9 






/ 






lolls 

PAGE 29 

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. rn. , at their 
comm.ittee 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;^, 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 crinainal acts related to the Presidential 
election of 1972 which the Comm.ittee is authorized to investigate purbuan 
to Senate Resolution 60 including but not limited to, the break-ins of the 
Democratic National Conam.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 made to conceal information or to girant executive 
clemency, pardons or imnaunity and payments made to the defendants 
and/or their attorneya relating to the above stated matters. 



1309 



PAGE 30 



Hereof fail not. as you will answer your default under the 
pains and penalties in such cases made and provided. 

TO 'tCuTu 6 I . JzcJi^ /S fe. /J 1 / ./^/JM ? - / / ^.v >v.-^ "^ 

to serve and return. 

Given \inder nay hand, by order of the 
committee, this 23rd day of July, in 
the year of our L.ord one thousand nlno 
hundred and seventy-three 



Chairman, Senate Select CorxYmLvto.^ ^.. 
Presidential Campaign Activite^. 



34-966 O - 74 - pt. 2 - 7 



1310 

PAGE 31 



Buclianan, Pati'ick J, 
Butioriield, Alexander P, 
Campbell, John 
Caulfieid, Jack 
Chapin, DwLght 
Coisoi-i, Charlee 
Dean, j'olin , 

Ehriichman, John 
Fielding, Fred 
Kaiderrxan, K, Robert 
Higby, Larry 
Howard, Richard 
Hunt, EJ> Howard 
Kehrli, Bruco 
Krogh, Egil 
l^-iRue, Frederick 
liiddy, G,' Gordon 
Jvlagruder, Jeb Stuart 



^^itchell, Joliii 
Moore, Richard A, 
Shumway, DeVan 
Strachan, Gordon 
T irniYions , W ill iam. 
Young, David 
Ziogler, Ron 



1311 

PAGE 32 



1312 



F><///A/r ''o'' 



PAGE 33 









1313 

PAGE 3k 



THE WHITE HOUSE 
WASHINGTON 

July 25, 1973 



Dear Mr. Chairman: 

White House counsel have received on my behalf the two 
subpoenas isuued by you, on behalf of the Select Conuxiittee, 
on July 23 rd. 

One of these calls on nne to furnish to the Select Committee 
recordiiigs of five meetings between Mr. John Deaui and 
myself. For the reasons stated to you in nay 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 
subpoena are Presidential papers that must be kept confidential 
for reasons stated in my letter of July 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 
Con-imittee will be carefully considered and my stcLff and I, as 
we have done in the past, will cooperate with the Select Committee 
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. 



1314 

PAGE 35 



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 members of my staff concerning 
possible criminal conduct or discussions of possible criminal 
conduct. 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 ajid it will 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 otiier docunnents or information relevant to the work of the 
Select Committee and that can properly be made public, I will 
be glad to make these available in response to specific requests. 



Sincerely, 





Honorable Sam J. Ervin 

Chairman 

Select Connmittee on Presidential 

Cannpaign Activities 
United States Senate 
Washington, D. C. 20510 



1315 



PAGE 36 



THE WHITE HOUSE 

WASHINGTON 

The Western White House 
San Clemente 

July 6, 1973 



Exh; 



Dear Mr. Chairman: 

I am advised that membere of the Senate Select Committee 
have raised the desirability of miy testifying before the 
Committee. 1 am further advised that the Committee has 
requested access to Presidential papers prepared or 
received by former members of my 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 my 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 criminal conduct 
or discussions of possible criminal conduct, in the matters 
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 Committee have been 
genuine, extensive and, in the history of such matters, 
extraordinary. 



1316 

PAGE 37 



2 - 



The pending requests, ho'wever, would move us from proper 
Presidential cooperation with a Senate Committee to jeopardizing 
the fundamental 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 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. 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 P/esidential 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-ramging variety and inter- 
mingling of confidential matters, testimony cctn, at least, be 
limited to matters within the scope of the investigation. For 
this 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 woiild 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 



1317 



PAGE 38 



not be recited here. It ie 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 improve upon President Truman's discussion 
of this matter. Therefore, I request that his letter, which is 
enclosed for the Committee's convenience, be made part of 
the Committee's record. 

The Constitutional doctrine of separation of powers is 
fundannental 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 
meantime, in the context of Senate Resolution 60, I consider 
it nny 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 and 



1318 

PAGE 39 



your Committee colleagues equally respect the responsibility 
placed upon me to protect the rights and powers of the 
Presidency under the Constitution. 



Sincerely, 



(^U^^^t:,^^ 



Honorable Sam J. Ervin, Jr. 

Chairman 

Select Committee on Presidential 

Campaign Activities 
United States Senate 
Washington, D. C. 20510 

Enclosure 



cc: Honorable Howard H. Baker 



1319 



PAGE 40 



ii 

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 m© 
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 
tiian to Presidential papers. 

If release of the tapes would 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, 1 personally listened to a number of theni. 
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. 
Fvirthermore, 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 vAty Presidential documents 
must be kept confidential. 



1320 

PAGE ^1 



Accordingly, the tapes, which have been under my sole 
personal control, will remain so. None has been transcribed 
or made public and none will be. 

On May 22nd I described my knowledge 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 pu^icly 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. 

Chaimnan 

Select Committee on Presidential 

Campaign Activities 
United States Senate 
Washington, D. C. 20510 



1321 

PAGE k2 



Exhibit H 



This Exhibit consists of excerpts from the sworn testimony of 
John Wesley Dean, III, and H. R. Haldeman before the Select Connmittee 
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. 



J 

£ 

J 

5 

6 
7 
8 
9 
50 

n 

52 
13 
U 
15 



16 

17i 

1 

(' 
2o; 

.,; 

22 j 

-I 



1322 

PAGE 43 

(D£L\K), 

<3£.-a3 I 2229 | 

I 
document was forwarded direct\\vj)to, or reviewed by, tho j 

i 

President. I later learned thatthe President was pleased • 

i 
£ind w2UitQd a full follow-up on tl-ie i tains in the mcitioranctiiiTj. 

The Karkings on the memo are Mr. Halderaan's raarkincfo. 

It was alBo about this tiaua, later July — early 

Septesiber* that X learned during a ticeting in Mitchell's office 

that Mr. Bhootoer KcPhee was having private discussions with 

Judge Richey regarding the civil ouit filed by the 

Democrats. I believe this fact was known to Mr. Kitci..oll« 

Mr. X<aRuo, Paul O'Brienr aind Ken Pax*kinson (fuid later again by 

HcPhee) , that Judge Richay was going to be helpful whenever 

he could. I subsequently talked witli Mr. McPhec about this, 

as late as March 2nd of this year, when he told ue he was 

going to visit the Judge in the Judge's rose garden over tiie 'Sept'. 

15 
weekend to discuss an aspect of the case. I , 

1 

! I 

i; 



On September 15th the Justice Department announced the 
handing down of the seven indictments by the Federal Grand 
«7ury investigating the Watergate. Late that afternoon X 
received a call requesting ice to coiue to the President's 
oval office. When I arrived at the oval office X found 



J 



1323 

PAGE kk 

2230 15 

HalC G ua n and the Presidaat. Tho President asked cie to sit , 
down. Bot:h mon appeared to be in vary good spirit:s and my 
reception was very warm and cordial. The President then told i 
SKJ tiiat Bob — referring to HaldGi'Uim — had kept hiia posted cnj 

i 

2ay handling o£ the Watergate case, 'i'he President told 2ue I j 
hod done & good job and he appreciated how difficult a task | 
it h£id been and tho Preaideat was pleased that the case had I 

c topped with Itlddy. I responded that I could not take credit ■ ' 

i 
because others had done ziuch more difficult things than I 

I had done. As the President diacusQOd the present status of j 

the situation I told hlis that all that I had been able to ( 

do was to contain the case and aaoict iii Icocping it out of j 

tho White Bouse. I also told him that there was a long wcy tc! 

go boforo this aatter would end zmd that I certainly cculd mslJ. 

CO acourances that tho day would not cczia when this cutter j 

i 

would start to unravel. | 

t 
Early in oixr conversation tlio President said to me tttat j 

j 

fonuior FBI Director Hoover had told him shortly after ho had 

assumed office in 1969 that his ca:upaign had been buggod in 

i 

1SG8. The President said that at soiue point we should got tiic i 
facto out on this nnd uoc tltio to counter tX^e problcns that ! 

wo wore oncountorlxtg . . 

( 
Tho ProKtidont aiilcod mu vhon the criminal case would cgu;.» 

to trial and would it atart before tho election. X told tho 

President thot Z di<l not know. I sc.id that the Juctice 



J 

I 



^1 



!3 
t4 
15 

is 

17 
IC 
13 
20 

2J 

22 

24 
25 



1324 



PAGE it5 

15 

2/:o 

i Dopartaiant had held off as long as possible the return of 
• tho ir.dictffionts, but much would depend on which judge got 
tho ccse. The Prosaidont said that ho certainly hoped tliat the 
so would not C03C to trial before tlic election. 

Yho Prooldcnt tl^oa aclced mo about tl^e civil casos that 
had been filed by tho Dfeiuocratic Natioaal Coamittoo and the 

7 !| ! oor-x>n cauco case and about tho comitex suits that wc had filc-<^:.; 

1 ' 1 ' 

'^ •' I I told hin that tho lavo'crc at the Re-Election CoiamittcQ I . 

'J il I woro handling thooa casea a;^d tiiat ti-.ey did not see tlio co-jaoni ■■ 

■"' j! j couoQ ouit ao any real prcblera before the election because 

! thoy thought they could kaep it ti;2d up in discovery 

! procecdinga.' I thon told tho President that the lawyers at 

i tho Re-Eloction Connaittao ware very hopeful of slowing down 

I tho civil suit filed by the Democratic National Conunittec 

because they had been making ox parte contactc with the judgo 

I handling the case and the judge was vor^' understanding oiid 

j trying to acccsnaodato their problems. Tho Prealdent was ploaeijid; 

]to hear this and responded tottho effect that "Well, that's 

^holpful." Z also recall explaining to the President about the 

suits that tho Ra-Election Couuoittee lawyers had filed against 

i 

J the Oeniocrato as part of their count&r-of f ensivo . 
* There was a brief discussion about the potential 
hearings before tlie Patman Cosanitted. The President asked do 
what we were doing to deal with the hearings and I reported 
that Dick Cook, who had once workud on.Patroan'o Coiiunittoc: 



1325 

PAGE 46 

2232 I 

' -j— ' 

I i,tuf£( was working on the problou;. Vho President indicated 

' j that Sill Viccaono should stay on top of tho hearings, that { 

I j 

I wd did not need the hearings bofore the election. ; 

) ! 

! , I 

i. ThiQ conversation then aov&d to the press coverac^e of the ' 
Watergate incident and how the press was really trying to oakc 
this into a xaajor coaipaign issue. At one point in this 
^ |; convorsation I recall tho President tolling iso to keop a 
^ j good list o£ the press people giving us trooJsle, because V7e 

• ii 

"^ ;| will E5I:q life difficult for thera after the Csioction. Vha 
!j 

'^ ;! conversation then turned to the use of the Internal l^i^ve^iuo 



'' '! 

ii 
12 , 



T4 



i>A 



Service to attack our onoiaiea. I recall telling tSie Pre£:idonti 

that wa had not raade much use of this because tl^o VThite House 

did not have the clout to havo it done, that the Internal 

I 

ISavonuo Sorviae was a rathor dcaiocratlcally-oriented buroaucr;^^^ 

( 
a^ it would bo very dangerous to try any such act! vi tie;;. 

VhQ President- soerood soaieuhat annoyed and said that the 

i ''Ccsrccratic Adsiinlotrations had used this tool well and L.£t&:: 

I' tho election wa would get people in these agencies who would 
b.^ responoivo to the White House requirements. 

Tho conversation then turned to the President's post- 
election plans to replaca people who were not on our to:ua in 
all the agencies. It was at this point that Kaldeatan, I 
j - rgmcjabor , started talcing notou and he also told the President i 
I that ho had boon developing infonaation on which people shouldj 

>\ .»V «»>•» wliti'li nlxMild ii>t »>ri«'> i i>o .>1o<<{ t oil . f r«wT»M. ilmU 



34-966 O - 74 - pt. 2 - 



1326 

PAGE kl 



I Sept 
2233 i ^5 



1 i' versl days after ny aseting witli tho Pireaidenc, I w&s 

' '■ * itiaa to Daa Kingsly, who \?as in charge oi' dcvfjlooing fch>d j 

• jj taix^ - ^ 

3 'i ■• ^ -t for S&ldeaan aa to people who ishouid be re/uov^d arter j 

If *"" ' . ^ ! 

* 1* tte elec-tion. I told Xingsly thac this niiitter tad coa-o up j 

li 

5 tj daziskg ay conversation vxth this President aud ho seiid he had | 

6 i tioaderod what had put. new lifo into his p3:oject as he had 

! i 

7 I zecsived sevcsal calls £rcsa Higby about the status o£ his 

l| j 

6 • o-oject within the liist few days. The meeting ended with a ! 

•! i 

« j! conversation with the President about a book Z was reading. •_ 

' ll"? '■ 

,0 jj , 1 left the aeoting with the impression that tlie President; 

:i li i was well aware of what had been going en regarding the ::ucces<>! 

f~ j* • of keeping the White House out of the tifatergate scandal and ! 

l! "; ' 
i3 ;! , z also had expressed to hist my concern that Z was not confiac^;; 

I ; 

l- ! * that the cover-up could be mnintainod indefinitely. .[_ 

|i " I 

15 ij I voald next like to turn to the White Ztoose efforts to i 

II • . I 

<o j! block the Patman CosBoittee hearings. Aa early as mid-August, i 

17 l| 1372, the Nhite House learned through the Congressional { 

rolatioas sta£f that an invoatigaticn vcs being conducted by 



the staff of the Hoxaee Banking and • ftirroncy Ccs nm ittee, 
P n <S <T the direction of Chairman Patrtan , into many aspects of 
the Watergate incident. The focuc: of the investigation at the 
outset was the funding of the Watergato incident, and other 
j^ssible illegal funding that aay have involved banking 
2* j{ violations. The White Hotiso concern was two-fold: Firat, the 

; l«.->M lit.|ii <.<.<iil.1 Itnvn r«niill.».1 » •« im.i..' ...If. .in., pi «. o !•« ; I on 



■>^. li 



1327 

PAGE 48 



h'Kat had already bean reportw^d to k-o by aaldeaiEzi, tliu'c l\^ i;.- i 
" :! iolG Soxi&tor Bakar that he wo-iild not pcrmi- Kiiifcs BcHUie ytcf Z 
3 ji to cp'>aa3: before tha Select Coawittoe, rather he would only 
^ :; -jcmXt tho taking or uritton ixitsrrorfjatorios • ila nakGd -la it 



i> !j I cgiTcci with this azid I said that V7ritteri interrogatories 

J! i 

V I iicXQ sosscthin? -i;hat could be bs:idled vhereas £ppGaranccs ciight 

^ i crcatQ corious problsriis . Ho told ^ae he would nev^r let i 

I 
••i! ilaidcaan csid Zhrlichmaii go to the liill. Ke also told me that ; 

ii 1 

» ; Scsator Guraey would be vary f riondly to the sCiite House aad | 

;3 jl that it would not ba necessary to contiict hiro because the i 

' I Procidont ecdid Sonator Gurnoy v;o-j;id icnow trtiat to do an his own. j 

Oa the way out of his of fico ho told taa I had done en exoellc^it 

i3 joi> of dealing with this snatter during tha caarpaign; thuit it hi.r. 

•4 

15 

IS 

.7 

•3 

iO 

20 



bsoa tlio only issue that MoSovcra had hed eutd the Democrats 
h&d triad to laake sosiathing out of it but to no av&il. I told I 
bia ca we wore walking together out o£ the of fica that 1 ha^ 
only oaaagcd to contain tho setter during the c&apaign/ but ' 
I wc£ not ouro it could ba contained indefinitely. Ea then j 
told oc that wa would have have to fight back and ho was c &a J id- ;at 
that X could do tha job. 



*" .:! ^e naeting oa February 28th with the President. 



I had roceived word boforo I arrived at icy office that 
tha President wanted to see inc. He Jiiikeu lae if I had talked to 
tho Attorney General regarding Senator Biker. 1 told hlra that 



is 



• ! 



■' il '<'<«< M«<.rn«v i;oii,>i,.l M„ .1, 111) I I \/itti ll^.^l. 



1328 



PAGE kS 

'• Feu. i 

! 2316 ! 

!!'" '!" 

Brvin and Senator Baker, but tiiat a neetiiig date had not yet j 



^ I bocn finaod up. X told him tiiat X VoiSM it was the Attorixoy > 

. I I . 

^ jj Gcnorol'G vloh to turn over the FBI iiiveotigttioa and tho J , 

1 I 

I I 

'^ j ^vouideut cald that he did not thi:i}£ wo chould, but uskGd ud i '; 

^ 11 uhat 1 thought oS the idea. I told him tl-^at I did not thin2c | 

r ■' i • 
<i fj thct there w&Q such damaging iuf oroatiou in the FBI s.nv&ctic;a- 

. t ' ■ 1 ■ 

' 'I tlcn«alti-iouc;h thoru could ha qosio bad p-oblic rQlaticno froia [ 

Ji h 

<- j it.. Qc told sio to thinic about this natter. He Also suid that | 

^ j Ir.o hod road in the ssoming paper about th& Vqsco c&e& zind | 

"^ j aakod 123 what port, if any, his brother Ed had had in i:ha j 

'^ ji mcttor. I told him what I knev; of hio brother's involvenvent, 

,. I i 

''^ I which wais that ho was an innocent agcisr^t in the contribution ! 



i3 
14 
15 
iS 
17 
(Q 
19 
20 
2}: 



2^- 



tranoaction. Wo thon discussed thd look to Time magazine 
of tho fact that the I'ihito Bouse had plsccd wiretaps on 
nciJCSBaa. and White House staff people. Tlic Prasid&nt aoked 
ma if I knew how this had leaked. I told him that I did not; 
thwt I knew several people were aware of it, but X did not 
know ony who had leaked it. He naked me who knew about it. I 
told him that ^2r. Sulliviin had told me 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 ho had heard that this inforsuition had gone to Governor 
Rockofeller and in turn had come back from Governor Rockcfelloi:| 

to Dr. Kissinger. Wo then talked about tho oxocutlvo privilege! 

t 



1329 

PAGE 50 

■; 2317 i 2S 
I; i. 

3 || ata'teaoat out woll in advance of the VJater^jate hearia^ji; 1:0 

« (i i 

2 ' wliiit it did not appear to bs in resisonaa to the VJatergato •: 

^ -i 2icaria<js. Wo also dlocusocd Mr.KolioalioCi's interest i.^ tiio j 

tj I 

"^ ij ?itsc;cr&ld caoo, and he siskcd ra& to look into tho matter xor ; 

» <■ 11::. :jolIcriho£f . Bsfo^e departing hia office, he cgaia raided J 

Jj ' 

6 1] t^*o aattor that I should report dirocfcly to hia end not tiirougl'i f 

7 j Zi.lCasica cad Ehrlichaiaa. 2 told hia tiiat I thought ho chould 

i 
I I:aGw that Z was alco involved -tha poct-Junc l?th activities 1 

1! 
jj rcgcrdin? Vtotercjate. I briefly descxibed to hiia why X taoviSht 

10 j I liad legal problosRs, in that I had been a conduit foi: laany 

3} jj Oif the decisions that wora laade and, therefore, could be 

52 involved in an obetructics of justice. He would not accept Jty j 

I ! 

iS t analysis and didnot want se to get into it in any detail other 1 
14 jj than what X had just related. He reassured sie not to worry, I 

;5 ; that Z had no legal problems. (I raised this on another j 

\ 
occasion with the President, when Diclc Hoore w£ks present.) \ 

Koetlag of March 1st: ' ' 'T 

The first meeting en this date and the afternoon neeting 



17 

(G 
IB 
20 I 
i1 



23 

24 



which ooourred on Karch lot, related to preparing the 
President for his forthcoaing press conference. The President 

atkcd se a number of questions about the Gray noraination hearir.^;^ 

, i 
and facts that had cosie out during these hearings. In particulcr 



X can recall hlxn stating that there should be no problea './Ith 
the fact that I had received the FBI reports. He said that I 

IJ ...^ il<1<f« lift »U lllV'Xjl l<|<>< <••» >••• >>l>*l '>>>•> til. it ( k. Vl>»>l.l li<.> 



1330 

PAGE 51 

;•'! dfral 2323 

!| 
.1 



2 
3 

£; 

6 
7 

C 

r 



Tho phono conversaiiion of March 10 tb.. The Presidaat 
I calXod xaa to tall me that he felt we ohculd got the 

Exocutlva privilege statCKsnt out iiaiEediately; tii&t. this 
should be dono before I was called before the Seaata 
Judiciary Coaaoittea in oonncction with the Gray hoaringa so 
tliat it would not sppcsar that tho st£.temant on Sxecutivo 
I! privilcgo was in reGpcr.so to tlio action by the Senate 

CciT.ri.it tee. 



Mar. 
13 i 



\ "OiiQ naoting of March 13th. This was a rathor lengthy 

",0 \ K£iGting» the bulk of which v;aa takor; up by a discussion about 

I 
'X 1< the Gray hearings and tho fact that the Senate Judicxary 

12 I Coaoiittse hod voted to invite me to appear in connection with 

Gray*s noioination. It was at this timo ws discussed the 

j potential of litigating the matter of Executive privilege £ind 

thereby preventing anybody from going before any Senate 

Coaaiittee until that natter was resolved. The President likod 

tho idea very much, particul£urly when I loentioned to hin that 

it might be possible that he could also olaiia attorney /client 

privilege on ma ao that the strongest potential cose on 

Escacutiva privilege would probably rest on the counsel to tl'.e 

President. I told hia that obviously, this area would have 

to bo raoearchod. He told lac tl>at he did not want Haldonan 

and Ehrlicluoon to go before the Srvin hearings and that if wj • j 



23 

?s 

•J7 

;o 

t9 
2Q 
21 
22 

2:; 



were litigating the matter on Doan, that no one would have to j 

- i 

/MT'^nv. Ti>VfiM-.\ thn oii.X of niM ...ikV... f..il 1,111, wo >|«'«. Int., n 



1331 

PAGE 52 

ii 

; I' tliscuasion of Watoixjate matters cpacifical.'-y. C told 'r.h.M 

i] 

2 1 1 I'^rosidont about fcha fact that thore were money dcKands hcxu'^ 

i 
i J' caaCa by the soven convicted clsjfendea.ts, and that tnti 

., ■ t>Gntencing of these individuals wasj r.ot far off. i't V/as 

curing this conversation that Ilaldezaa:! carae into the office. 

After this briof interruption by Halcloman'3 corair.g in, but 

whilo he was Btill tliore, I told the President about the faci 

J |i th&t there was no aor»ey to pay thcae individualci to iQ30t 

their demands. Ko ackcd zao hov/ uuch it would cost. I told 

',^ j| him that I could only laake an estircati; that it loight be aa 
high as a million dollars or niore. He told u.o that that 
was no problem, and he also looked over at Haldcruon and 



i~ I) 






U 
15 
ii5 
J7 

2D 

22 
23 



epeated the saiae atateioent. Uo tlicn aslced roe who was 



demanding this money and I told hiiia it v/as principally conxing I 

from Hunt through his attorney. The President than referred | 

to the fact that Hunt had been psromisod Executive clemency. j 

Ho said that he had discussed tliis matter with Ehrlichnart | 

i 
and contrary to instructions that Ehrlichmas had given Colson 

not to talk to the President about it, that Colson had also 

• 

discussed it with him later. He expressed soma annoyanca at ( 

t 

the fact that Colson had also discussed this matter with him. 

7he conversation then turned back to a question from the 
President regarding the money that was being paid to the 
defendants. He asked me how this vras done. I told him I 
didn't know much about it othor thc-.n the fact tiiat th<) ...oiioy 



Mar. 
13 



1332 

PAGE 53 

ij ^-^3 • 232b 

i 

I ' 1^ w&s laundered so i^ could no^: b& exceed and t-hen t^cr<3 were 
i li SQcret. dclivorics. I told hiin 1 was loarning " about things I 



Mai 
13 



'2 jl had never knov/n before, but the next tiiv.o I would certainly 



bo wore JcnowledgociblQ, This comiaent got a lauqh out of | 

-^ [li Haldsntan. Tho loeetJing endod on this note and there w&s no i 

L i. 

'2 jl further discussion of the matter end it was left hcunging just i 

-- P 1 

7 ! as I havo described it. ' 

i, 11 ^j- 

" jj Tha liceotings on March 14 th. The nee tings whicli occurred ! 

j| on this duy principally involved preparing the PrQQident 

10 i| for a 2ortlico»ing press conference. I recall tallcing about ' 

1 3 II £::QCUtive privilege and laaking Dean a test case in the ! 

2 {< courts on Executive privilege. The President said that he j 

woxild like very much to do this and if the opportunity come i 

up in the press conference, he would probably so respond. 

I also recall that during the meetings which occurred on this j 

day, that the President was going to try to find an etnswar ! 

that would get Ziogler off the hook of the frequent questiono * 

asked hia regarding the Watergate. Ue said tliat he was going | 

to say that he would take no further question:^ on the Water- I 

gate until the completion of the Ervin hearings and that 

Ziegler in turn could repeat the saxrie statement eind avoid 

future interrogation by the press on tl\e subject. i 

i 

The meeting on March 15th. It v/as late in the afternoon ! 

2A {ifter the President's press conference that he asked Dick Kooro 

?Ji ond I to come over to vinit v/Hl» li1,n, lin w«b in a vr>ry 



i4 
15 
Jo 
17 
S3 
19 
20 
21 
22 



1333 



PAGE Sk 



dfttV 



2329 



7 
I 



iO II 



uossible 2ibou& bho Watergate loattor bocauae X did not thin): 
that he fully realisod all tho iaccn and the implication of 
thoaa facts for people at the V7hite House aa vjell as himself 
Ue said that I should looet with him tho next worning nbout 
10 o'clock. 

Before going in to t«<>ll the President son-.e of these 
things » I decided I should call Ilaldcmon bccauoa X knew that 
his ncase would conte up in the iiidtter. I called HaldoT.ian and 
told hin what I was going to do cuid Haldcman agreed that X 
should proceed to so inform tlic President of the situation. ^T^ 

The nteeting of March 21st. As I have indicated, Piy 



Mar. 

21 

(morning; 



4 

u 

15 
1G' 
17 
35' 
19 
20 
21 . 



purpose in requesting this aceting particularly with tho 



President was that Z felt it necossajry thtt I give hita a full I 

!> 
report of all the facts that I knew and explain to hiiu what I 1 1 

believed to be the implication of those facts. It was my ll 



^M 



particular concern with the fact that the President did not 
seem to understand tho implications of what V7as going on. Por 
cxaople, when Z had earlier told him that 1 tliought Z was 
involved in an obstruction of justice situation he had argued 
with mo to the contrary after Z had explained it to hin. Aloo^ 
when the matter of money demands had ccnie up previously he had 
very nonchalantly told mc that that was no problem and X did 
not know if ho roali'^od that he himself could be getting 
involved in an obstziuction of justice by having promised 

ii<Ui»'UVY to t|iiiil„ WhnI I lii«1 ln-|""1 *" <'^' < I ■> < l> I 'i <•• <■> v<. i i< •. * t './. 



1334 

PAGE 55 

Mar. 
dfaG 2330 21 

I ■ 
was to have the President tell ms that uc had to end the 

jaattar ~ now. Accordingly, I gave conaidersblo thought to 

3 jj ■ how I would present this situation to the President emd try 

to make as dramatic a presontation as Z could to tell hira how 

serious I Ipiought the situation was that the cover-up 

continue. 

I began by telling the President that there was a coricor 

growing on the Presidency and that if the cancar was not remove! 

that the President himself would be killed by it. X also told 

him t^tat it was isiportant that this cancer bo rcmovod 

<^\ ji iiriaediately because it was growing more deadly every day. 

I then gave hiia what I told him would be a broad overviev; of 

the situation and I would cone back and fill in the details 

and answer any questions he might have about the natter. 



I 



13 
!4 

;5 

IG 

n 

10 
10 

2i 
22 

24 
25 



I proceeded to tell hin how the laatter had coirsnenced in / 
lato January and early February' but that I did not knew how •. 



the plans had finally boon approved. I told him I had 
informed Haldeman what was occurring, aiid Haldcman told mo X 
should havo notfiing to do witli it. I told him that I had 
learned that there had bean preosure from Colson on Mugrudor 
but I did not havo all the facta as to the degree of pressure. 
I told him I did not know if Mitclwll had approvod tho 



i! 
)i 



1335 



PAGE 56 

2331 i 21 



plane but: I h&d been t,old tha'c llLtchisll hadl besn a reclpxcnt | 
of thai wiretap inf oxioa^on and laiat Haldczt&n had &Iao rccolved i 

! 

ccmo Infcnaatlosi through SS:rachar>. j 

4 Ij I then proceeded to tell hiiu sorae of the highlights 
^ 5 il that had occurrcsd during the cover up. I told hisi that j 
IColsbach had bacn used tv rftiso funds to pay these seven I 
individuals for their cilence at tlie instructicna of I 

Ehrlichi&an» Ealdessanr and tiitchcll a^d 1 had h'::c^-. the con" 
veyor of thio instruction to KaliobQch. I told hini ti^at after 
the decision had been made that Magrudcr was to remain at tlie 
Re-election Cosmnlttee 1 had as&istcd CCagrudcr in px'«>paring his 
false story for presentation to the grand jury. 1 told him 
that caoli that had been at the Uhite House had been funnolcd 
back to the lUa-electlon Coss&ittsie for the purpose of paying 
the seven individuals to remain silent. 

I then proceeded to tell him that perjury had been coiaai'; 
ted, and for thic cover up to continue it would require cu>re 
perjury and more laoney. I told him that the dersands of the 
convicted individuals vere continually increasing and that 
with sentencing imminent/ the des<ftndo had becorae specific. 
I told him that on Monday the 19th, I had received a 
message from one of the Rc-o lection Connnittoo lawyers 
who had spoken directly with Hunt and tJiat liur»t had uisnt a 
message to me demanding money, I then explained to him the 
r.<(>r»oAgo thrtt H\int UmX toUl V»u1 D'Pi U-ti t lio pro«>o.Ui\.r KrlclnY 



6 

-7 

8 

9 

10 

il 

12 

I 
•J3 

iA 

,5 

'i5 

27 

.'3 

!& 

20 

r 

;;3 

I 



1336 

PAGE 57 

V c.-i:i2 , 21 

•' 2332 I 
J\ >.. 

. •' I 

• ll to bo pasuod on pt m6. I told Uie President I'ct askod O'Bricai ; , 
^ I why to Dean aad o' Brian had asked Sunt tite ecu^c question, out ; 
^ Ij S'CJit had locroly said you just pass thia (.i^ssa^e oa to Dean. 
*^ I Tl'iC isoassago woo thct Bimt wanted $72 « 000 for living eicponcos 
(xud $20,000 for attoruoys fees azid if he did not get the manay 



^ •' 



i2 

:s 
\j 

20 

"1 

is 



C I and got it quicklythat he would h$T£s a lot o£ seamy things to 

-.' ' 

< III ccy about v&at he had done for John Ehrllchiaan v;hile he was 

C fj ct the &7hito Houce. If ho did not receive the money, ho would 
L i\ havo to reconoider his options. 

t'-' M I inforsed the President that X had passed this Ecassage 
%': ?, aZi to both Baldeman and Ehrlichzsan. Hhrlichrami ashed ma if 
I had diccusced the scatter i^rith Mitchell. I had told 
Carlichman that Z had not done so and Ehrlichisan ashed C£ to 
do CO. I told the President I had called Mitchell pursuant 
to Ehrlichison * 3 request but I had no idea of what v;as happen- 
ing with regard to the request. 

1 then told the President tl^at this waa just typical 
o£ the type of blackioail that the VJhitc Eouse would continue 
to be subjocted to and that I didn't know how to deal with it. 
I aloo told the President that X thought that I would as a i 
reoult of toy naae ooudng out during the Gray hearings be calioc 
before the grand jury and that if I was called to testify be- 
fore the grand jury or the Senate Cosonittce I would have to 
toll the ffiots the way I know them. I said I did not know if 

i»KOi'\i<:lvn prlvtlr>y«( would )>'•> n|>|>l 1<.t.1/I o to any a.\;-i»:>ixru\\c<!i 1 



1337 



PAGE 58 

CL~*3 ' Mar. 

2 333 ' 21 



; ^ (| xtigh'c hCi.vo before fcho gr^ir^d jury. I coiicludocl by sayi-ug thu'^: j 

r| I 

^ Ij it ic going -to take contiriued par jury and coi;-tir*u<s<i support. i 

■ jj j 

•* j! of t^<c3c individuals to perpetuate the cover-up and thz^t I didj; 

^ Ij tioC: bcliove it was possible to do continue it; rathor I ! 

^ ji thoutjht it was tioo for surgery on the caucsx* itsel£ aiid tliat < 

. il I: 

^ ij all tbosc involved xaxist. stasd up and {account for th<ustsslve3 ! 

Ij 1 

7 n iisj& that the President hiwself get cut in front of tliiu matter. L 

'] i. 

- t 1 told the President that I did not believe that all j' 

|| of the seven defendants would ataintain their silence forever, : 

'0 [ in f&ct# Z thought that one or more would very likely break ! 

! 

tl I raiili. i 

! ; 

IZ I After I finished, Z realized that Z h&d not re&lly 

^3 cade the President understand becaueo &£tar he aoked e f&v ; 

! 

'i4 <2«iasticso, he ouggooted that it would be an excellent I 

13 idoa if I gave some sort of briefing to the Cabinet and that ; 

i 

13 ho was vory inpressed with my knowledge of the circuBictances I 

'. i' 

t7 but ho did not seea particularly ooncsmed with their isipli" 

'.Q cations . 

!:>) It w&e after oy prcsenatation to the Preoidont and 

20 during our subsequent conversation the Prsident called 

2} Ealdonan into the office and the Preoident suggootod that wo 

22 i havo a suseting with Hitchell, Haldeaian and Elirlicbstan to dis- 

22 cusc how to deal with thi& situation. lAtat cisorgod frcai th;&t 

24 I discussion after Baldeman caiaa into the office wa3 that John 

?3it.oholl nlnouM Aoco«nt for hJr'ooir C-o- f.Ii«i K>vn-,7imr'. 5 7tU-- - 



1338 



PAGE 59 



Mar. 
21 



11 !l 
Ml 

t3 



7 H 



=Ji 



1" 

IS 

17 

IQJ 

i 

20 

I 

21 : 

I 

22 

241 



act:ivlties tmd 'i::}ie President did not seect concerned abcut tho .' , 
CLCsXivities which h&d occurred after Jiuie 17th. ■ ■•]-'■ 

Aftsr I departed the President's offica X subsequantly ; 
uc-at to c si&eting with Haldejcuua asiC Ehrlichsoan to discucs the 
ocLttcx Zurther. ^he sua and substance of that disouesioa 
vfza t2ict the wuy to handle this nov van for ilitchell to step 
fozu^rd and if ^litcholl uero to otcp forvrard ue isight not be 
confronted with the activities of those involved in the l-^iito 
Eouco in the coveir-up. 

&coordinc>ly, Haldcsan^as I recall; called Kitchall and 

£.c!:cd hiss tooo*s3 down the ne^t dity for e loeetincj with iitc 

Proaidcnt on the Vlatergate loatter. 

In the late aftornson of ii&sch 21st, Q&ldcuan &ad ji 

ji 
Ehrlichman end I hed a uecond looeting with the President. :>o- ; ' 

\'' 
foro entering this aeeting I had a brief disouscion in the j 

^ooidont's outer office of the Suecutive Office Building 
Boito with Ealdeoon in which I told him that we had to op- 
tions! 

One is that this thing goes all the way and deals ulth 
both the pro-Qctivitioo iind the post. activities, or the 
second alternative; if the cover-op was to proceed wo would 
have to draw the wagons in a circle around the Vihito House end 
that the Miite Uouso protect itaelf . X told Qaldeisan that it 
hcd been the White House's acsist&ncc to the re-election cc ^;i i*|- ' 
t*<^ that h«d gotten ub into p-.»»oh o? this probloraand now tho 



I Mar. 
afternoon"/ 



1339 

PAGE 60 



H 2335 



J\ 



I 

ill 



'II 



12 

I 

i 

"I 

is! 

.»! 

I 
) 

I 
21 I 
22 
23 

24 



Ml i 

' ' oaly hopo woiild be to protect ouiciS&lves fcosi further involve- ! 



3 11 n»o nsaetlag with tlie Presidant tiiat afteniooa with j 



Hi^ldoatcA, Shrlicbman and E^eelf vas a treocndcus dioappoivxt- | ^ 

Beat to uft b«<c&ii£ie it was quite cloar that the cover-up cs | ', 

I '] 

far as the Uhite Hoasa %fuo coacezned was going to oo£:tx{iue. i ; 

i » 

I rocall tb&t uhilo Haldeaian, Ehrlictuoaxi aad Z were sitting at 



C ! a s«iall tAbIs in front of the President ialiis Sxecutivc 

•;| ii 

13 Of fico Building offica that I for the f irct tiawi said in fro:it i 

•i ; ■ 

fO; I of the Presidont thet I thought that Haidaajan, Shriichiaan c-nd j ) 

li jj Doan wore all indictable for t^structicn of Justice ar.d tliat 

ill i i 

vas the reason I dissgread with sll that was being diccuased j j 



at that point in tine. i E 

1 i 

X could tell that both Haldeican, and particularly j 
Shrlichnan, were very unhappy with ay eo ram e n ts. I had let j 
thoa very clearly know that I was not going to participate in j I 

i i 

the matter any further and that I thought it was time that | \ 

I 'i 
everybody start thinking about telling the truth. > i 

i ■ 

I ag2d.n repeated to thean I did not think it was posQiblo ' 
to perpetuate the cover-up and the itaportant thing now was j \ 
to go t the President out in front. i^. 

The mooting of B^Urch 22nd i tha arrangoraenta had been 
mado to have a izfioting after lunch with the President with 
E3irltchman, Baldeunan* Mitchell and myself. Kz. Hitcholl 
,u,mrj to W«nhl»»M«:ou «li«t «><»>«Jii\«j for « Wfflrttinq in llrtluv»>n»n'3 



1340 

PAGE 61 

,j (HALDEMAN) 

(! 6090 ! 

". ;| request and oaked hlra to stoet with Ehrlichmen that day. 

2 ji I have tumod over to the Committoo a taps recording of thic; 

3 || corivorsatlon. At the time we talXed, Magruder had 

4 ij already decided to tall the full truth, and in fact, t 



I bulicvcr hod done oo in a xaeoting with the U.S. Attornoyc. 
During the phono oonversatlonr Magruder said that his tcstl- 
7 I tuony had not implicated me. Ho also said that one of tl°40 
C I problems ho was facing was that he had coiaiaitted perjury when 
d I ho^tCutified before the Grand Jury and the trial. £ responded 

to 'i tha«: I did not know anything about that, and ho replied that 

P 
;; |! uvcn i£ I didn't, he did. Ho did not contradict nu, thuu ^thcy 

iZ S ii'>g that, at that point in time at least, I did not know ho 

j;^ j' I'kud perjured hiioself . 



(with tho President all afternoon on Sopteniber 15, 1972. At 



,/i !i[ Turning to the September 15 meeting, I was in xaeotinga 

.5 

i|tha end of the aftoriMon, the President had John Dean ca-uo in. 

r^';iio was the day that the indiotments had boon brought- dowv; | 

in tho Watergate oasa, and the President know John Dean had Isec;. 

i 

,;> ' I concontrating for a three-month period on the invest^.^ation 
I 



i7 



20 



22 



for tho vihite Bouce. I am sure therefore that tho ^residoi'tc 
thought it would be a good tixae to give Doon a pat on. the 
back. 

Thero was no mood of o:niberance or oxcitentent on tho 



",1 !' ?rooident's port at the time the indiotments were brought do;^r., 

i'i 
vjj '. UlQ dosa not toko joy from tho misfortunes of other people, oau 

ti' 
ti 



1341 

PAGE 62 



COJl 



1 jj I don't think ho^found it very plcacant that the peoplo had 

2 I beon inulotcd.' 'Naturally^ howovorf it was good news as far o;- 
\ the VThito Uouso and the Adioiniatration woro conccrncfl tliuZ 



3 
4 
5 

6 
7 

8 

9 
10 
i1 
12 

13 
14 
IS 
IC 
I'/ 
10 
19 
'Ji 

:\ 

21 



when tho indictmenta .wore brought down, aftor a thorough iviVCL;^/-; 
gation, it had beei^ established there was not any involvuiaont ! ! 

by anyone in the White House. This confirmed what Mr, Dean { . 

■ ' ■ I 

had boon tolling ua, and we had beon reporting to the Prosi- 

dont over the period of the past three laontha. 

^ As was the case with all meetings in tha Oval Of f ico I '< 

when the President was there, this moating with Mr. Dean w^:;. ; \ 

recorded. At the President's request, 1 recently reviewed tlic : ; 



recording of that meeting (at which I was present throughout) < I 

i 

in order to report oo its contents to the PResident* I choulJ j [ 

inter joot hero that I Also reviewed the recording of tho t-^crc-h _ ' 

21st meeting of the President, Mr. Dean and myself for tlio ' 

I sos^e purpose f and I have made, reports to the President on Low't-< ' 

i 

of those meetings. X have not at any time listened to any cU.cj.: i , 
recordings of the meetings in the President's office or oZ -^..o j 
President's phone calls. j ^ 

The Prooidont did not open the meeting of Soptombor l^tli 
with the st:atoment that "Bob has kept me postod on youz ' , 

handling of the Watergate " or anything even remotely rcsoi.l)ll..j ; '■ 
that. He aaid, "Hi, this was quite a day, you'vo got Wator- 
9Ate on the way" or something to that effect. Doan rosiponCcv^ 
, i3 H>at it U»iX )>«tan iiiilt« a throo iHoiitha Aful th«>a ro|>ort<-.a to i • 
li 



1342 



PAGE 63 

6052 ] 

I •^icaiHii.nt on hoy fclia pr<iqo waa handling tlio indictementa and, 
apiiai'vintly, a Clui'Jc MacGrcgbr prcoo confoircr.co. 

3 11 ■ . ' Vao , diuauaaioa then covered ' tho iaattor of tho new bug 

4 [ tliat hud brecon^jly been dlocov.5rcd in tlio Dcmociratio National 
Coiaali;tco and tlio queo^lcn pf v/hether it had been planted 

g j b/ tiiQ DNC and tho natter of Mr. Nixon' o ciuapaign being bufjgod 
f I in I960 dnd soxaa diucusoion o£ whether to try to get out ovi- 
g I dcnoo o( th&t, There waa eomo diaoussion about Judge Richey 
Q jl hearing the civil case and a comment that he would keep 

JO 

oouifiient about tlie judge trying to accomaxodate Doan's hopas of 

slowing dovm the 8uit« but there was some discussion about 

i; 

the problesi of the civil caoe dcpositiong interfering witli tl-»e ;' 



11 
t2 
t3 
U 

ts 
ie 

17 

t8 

Ij , I'r.t^'.ian comidttee^ but he asoured the President that notliin^; 

i 

20 



I criioinal proaocution — - apparently aa a result of a convoraa- i: 

I ■ !;■ 

^ tion botv/een Judge Richey and Assistant O. S. Attorney Silbart. \j 

Dean Indicated that the ijndictmenta meant the end oi thu p 

investigation by tha Grand Jury and now there would be the 

GAO audit and eosia oongreaaional inquiries, ouch aa tho 



(• 



would cone out to eurprise ua. In other wordo« there waa 
apparently no infonoation that would bo harmful that had not | 

boon unoovored already. The President did at that point ooUiOsnd |'; 
;j i Doan for hio handling of the whole Watergate matter/ which Xi^ib > 
:4 'i A perfaotly natural thing for him to do. Dean reported tliat he 
^ I . ''~^ k eeping a oloao eye on possible campaign low violationc Irj 



1343 

PAGE Gk 

'• 6093 

fch*: oppoait:ion; said there were some probierfis of bittarnt ji 
Rt the Ro-election Coramitfcee beti-zeer. tii'i: Finance Cowuii cteo 
c id Political Group; and said he was trying to keep not-is oii 
I aople who were emerging out of all tlii.'- tljat were clcuriy 
I not: our friends. 
o jj There vaa, as Mr. Dean has indicated, quite a lengUiy 
7 j'i discussion of the Patiuan hearings zmd the various factors in- 
3 Ijl volved in that. There was some discussion of the reluctance 
£. ! ",. of the IRS to follow-up on cowplainfco of possible violaticub 
jij ill against people v/ho were supporting our opi-jonents because tii.e;rt; 

n 

;■) i|()«re so inany Democrats in the iriS bureaucracy that they won'r. 

|i| 

^ If take any action. 

There v/as a discussion of cleaning house after the 
election, taoving quickly to replace people at all levels of 
the Governjnent . Tl:ie meeting closed/ as Z recall, witli a fairly 
long philosophical discussion. 

I totally disagree with the conclusion that the Preai- 



I 

.o li 

li 
li 



i; 
■:oi' 

4 



dent was aware of any type of covor-up and certainly Mr. Daair. I' 
did not advise him of it at the September 15tli meeting. 



•J 

4 
5 
6 
7 
Q 
9 
HO 

n 

•i2 

i3 

14 
15 
16 
17 

:8 

zo 

21 

22 
23 
24 



1344 

PAGE 65 



Mr. Haldeman. I will proco.od then with tlift aclclcsnuii;^ c.i 
the March 21 meeting. I was present for the final 40 adnuccc; 
of the President's meeting witli John Uaan on the jiioraing oi 
March 21. Wliilte 1 was not present for tJic first hour o^ tm-. 
meetingr I did listen to the tapeof 'die entire ineetiiig. 

Following is the substance of tliat roeetiug to the bocjv 
of my recollection. 

Dean reported soma facts regarding tlie planning aiiu 
the break-in of the DNiC and said again there were no '.j^iito 
House personnel involved. Ht He felt Magruder was fully 
aware of the operation, but he v;aa not'sure about i'iitcljuil. 
said that Idddy had given hixa a full rundown right after .v..\. . 
gate and that no one in the White House wac involved, ho 
said that his only concerns regarding the Wiiite House wojlc xu 
relation to the Colson phone call to Magruder which 
might indicate ' White House i^ressure and the possibility tli.v: 
Haldeman got aoias of the "fruits" of the bugging via Stx'achwit 
since he had been told the "fruits" had been supplied to 
Stranchan. 

He outlined his role in the January planning meetiivj... 
and recounted a report he said he made to me regarding the 
second of those meetings. 

Regarding the post-June 1.7th situation, he IndlcAtcvi 
concern about two problems, money and clemency, lio »ai>1 ./>. . 
Coloon hail nniU «oin*tl»ing to Hunt .il>out i.'li>>ii<'u<:y . ilt\ «V<< / > 



It 



5 i| 

A 



i^ 



1345 

PAGE 66 



rfjpoxri: aiiy othez- offers of clemency nlthoucjli he sa;lu i.'i: ft.y, 
V .e defendants eJipocted it.. -iiifi jpriisidenc confir.ir.^d ;,Uc c . 

«:ould ao<; offc-:r cioaivncy arid Dean ;s<-;r',.,l. 

RtKjarcli.ny money. Dean caict ho viivJ iir.<l<(c?n;.n; v/eirc. iii- 
vclved. Thcx-e was a bad uppcaraitcc- which csiuXct bo cieven-^yv 
into a circuiastan^al cliain of evid&noo rv^:tjO..:diii<j obstroctlo;. 

7 lli'of justice. Ho said that KalirJL>acn had raioeu »iioiiv3V >;or tiij 

{If 

3 ,j I defendants I that Baldoman had okayed tuo rati:rn of VKa s'l'JO^fiOu 
9 Sto the Conoaittee; and t'.iat Dean had aunciled rji?-. 6e.i\ing:-. ;.^ - 
;o ijji:ween the parties in doing this. ^lo said tliat the ^ftcney v;., o 

ill 

ii !j|i:or lawyers' fees. 

,2 J Hs aliio reported on a current l\.\xr\\: 'olvtC'Xi^p.Ll rVircot. :... 

^5 I'Jsaid Huiit wao demanding $120,000 oir else he vicul-l '.oXl al>o*>v 

!■ 5 
54 i)|tl-»e seamy things he had dene for Ehrlici/wcir.. The President 

ji, 'Mpursued this in corisiderabl& detail, obviowijly t?rying to auoct 

|i« 
iG jifout what v/as really going on. He led 'D■<:^a:c^- on racjarding t^ie 

J7 Seproceee nnd what he v/ould recoirjuend doing. lie askad aiica tl^in-^ 

;3 jlps ~~ "well, this is the thing you would jreconunend? we o«c",v<.- 

30 "sto do this? is that right?" and he asked whwra the iGOiiey v-c^-. 

■;ijj 'i ilcoiae from? hov; it would be deiiverftd? and so on. Ha aakedho..' ;;, 

2j li |r,oney would be involved over the ve.^i:o and Dean saic*. 'frob.-bl -^ 

■11 
;^;; i| |a .nillion dollars — but tjis prob.'.ea is that it is ha::a to 

raiise." The Preoid2:">t said "thtrci i.n no r'-^-^^';'"'' -fi raiiing .-» 

million dollars; vfs can do that, buc ;lt would lie wrcn^j. " 'i 

iiavo the clear impression titat he vr:.s tryiivg to llnA out wh^ . 



1346 



PAGE 67 

j; 611'. 

1 1< • " *"*' 

? ';} i'c was Dib«in waa saying and what Deai* was rt'CCiiuT.cridin«i . ilc wws 

I'S 

" ! trying to ^ct Dean'o viev/ and he v/as auking hir.. leatling qvjou- 

iij . 
/> '?! tions xn order to do tl^iat. 'i^iis io ivie rasthod tJia VreujLden'c 

!i 

1 l;i ofecn used when he waa moving '.-.ov/ard a deteriaina'cion. 

',' 

iS \\i Dean also mentioned his concern about other uctivitlos 

ii 

6 i i getting out, such ao the Ellsberg break-in, sometiiing ro- 

7 Jugarding Brookings, the other Hvint activities for Colson on 
6 >| Chappaquiddick, the Segretti matter, usa o£ Kal^iibaoh fundi;, 

!ii 

9 Ijietc. 

•ii 
lO 'jl When I entered the meeting, there v/aa anociiar dia- 

iii : 

, ', .1 1 cussioii regarding the Hxint tlireat aiid tiie Pif^sident again 

ill 

52 jU explored in considerable depth thn vai^.i-oua options and tried 

to dravr Dean out on hia reconoiiendation. 

The meeting then turned to the question of hov/ to deal 

with this situation and the President mentioned Ehrlichroan's 
56 ji I recomioendation that everybody should go to the Grand Juri'. 
^y ij The President told Dean to explore all of tliis with Haldeman « 
^3 t||Ehrlichman and Kltchell. 
jy jjs There v;as no discussion while 1 v/as in the room (nor 

20 lij*^* ^ recall anydiscussion on the tape) on the qui^stion of 

y.i 

21 -jiclcn;ency in tlie context of tiie PresiJeat saying that he haU 

iii 
o? <;> discussed thia with sa^rlicl-ouan and with Colson. rziie only 

ill 
2-5 !i!i».antion of clemency was Dean's report that Coison had dic- 

\'l 
2/^ ijcuaacd clemency witli Hunt and the Prouident'ti statexneiit tl-iut 

., '^'.«.' iTould not oi3i>r clMmcnoy and Deun'c ..fjroo.'.'Mint — p.luo <* 



I; 

lb ii 



'" i! 



1347 

PAGE 68 

a cojcment that, Dean thought the othera expectfed it. 

Dean mentioned several tiiaes di\ring thic ideating his £.v;-j:k 
ness that he was telling the Prasident thing=j Uie Prcni-dont h.-.a 
known nothing about. 

I have to sunoise that there is a genuine confusion ia 



6 !' Mr. Dean's mind aa to what happened on March 13th Vfcrav.s what 
happened on March 2l3t, because some o£ v/hat he deBcribe:; 
in quite vivid detail as happening on March 13tli did, in fact, 

S III happen on March 21st. The point about ray laughing at his bcii^t, 

I 
10 j,l raore knov/ledgeable next time, and the question tliat he cayo 



id 

is!! 



he raised on March 13th regarding the million dollars &re £.0 j 



accurately described, up to a poi.ifc, aa to what really happci^od j 
on March 21st that I believe ha is confused bet^^reen the two ', 

U !! dates. ' 

'■I ■ 

;5 jjl Mr. Dean's recollection that the President had told hiui 

!! 

]y} ,j on March 13 that Ehrlichman had discussed an offer of cleirtuuc^' j 
{•/ III toHunt with hiiD and he had also discussed Eunt's clemency 



16 III wifely Coison is at total variance witli everything that I have 
10 lil ever heard from the President, Ehrlicl^ian or Coison. I don't 

i'! 

ii 
2,) I; recall such a discussion xn either tiie March 13 or tl^e Ma*cli 

ii! 

'pn j!|! 21 meeting. 

il 
22 r] Now, to the question of imprcission. Mr. Dean drew 

■'1 
•>vj j ' tlie erroneous conclusion that the "j?r.jsident was fully knowl* - / 

i:i 
;4 j ! able of the cover-up at the time of. the March 13th meeting in 

',iJj ii '*-^^ sense (1) of being aware t^iat money had been paid for 

ii 



1348 



PAGE 69 



6iiC 



2 1: 



., t 



5 

6 
7 
8 

9 
10 
11 
12 
13 
U 
15 
16 
17 
■18 
1-j ! 
£0 
2« 
22 
2o 
>^ 



silence and that (2) -the money dewiinds could reach a wl;. liji. 
dollars and that the President said that was no iirob3em. ilc 
drew his conclusion frora a hypothetical discu.^aion of ques- 
tions since the President told rae later that he had no ir. '. .,- 
to do anything whatever about money and had no knowledgo o£ 
the so-called cover-up. 



1349 



PAGE 70 

6118 



' 1 to tae CoitUEittee? 



'• ji Mr. Dash. Reproduced now. ' 

2 ! Sen.-itor Baker. Thank you very nmch. i 

'^ ;1 Senal:or ERvin, Ttou may proceed with your original state— 

f- ': • " 

•> ;■ mont. . Mar. /'; 

^ ji (aftorno....) 

o Kr. Kaldeman. Thank you, sir. 



7 jj to". Dean, Mr. Ehrlichnian end I met with the President '. l 



1 > 
( ■ 



8 jlj later chat afternoon of the 21st. That raoating dealt with 

9 ji the questions of tlie grand jury, tho Senate Cci&mittee and 
\0 -A executive privilege in connection witli gath.erin<i th6 facta : f 
i , i and cjotting them out. I think thsr-a \r.-i-j gciae dii!><^'Jasion o£ ; . 
i2 rlj JinrlichiiifJi's theory rliat everybody should yo to tlxe grand jur^';' 5 

ji ! ? 

iS ;j ttiJd Dean's reaction that that v/ould be fine as long as we had ; 

ii 1 

i4 j:i iituiiunity. Mr. Ehrlichiaan, as X recall, very strongly shot i \ 

!i! i ^ 

15 1 1 down that thought from Defin saying it did not make any sonso • ' 

iO !| at all. Dean has testified thakt he argued tliat the way to get ; 

y i : the trutii out would be to send everybody to the grand jury witiJ 

'ill ■ ! » 

jg \}\ imjjujiity. That, in itself, is ratliar indicative of the dlffere^it' 

i;^ ■ ! i 

;^ (J attitudes. Mr. Ehrliohinaa was arguing for going to the grQ;ad j < 

ji? ! I 

20 1'^ jury without inaviunity in order to get thf-. trutli out. Mr. Oticjn ] 

<j ! ' 

y-j ,i Vina arguing for going to the grand jury with inuaunity to get , j 

'ill M 

p.. ]'i the truth out. i l 

;ii — H 

.jrj j I recall an incident after that attcrnoon mooting that I^.| 
2/^ . Doan also recalls, but ho says it took pl&ce before and he 

- .',^-' it .'« little bit differently. I i:cjs«jMbcr that Dcfin and 

ii i 



1350 



PAGE 71 



Exhibit I 



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 

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. 



1351 



PAGE 72 



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 information imparted to me by 
Mr. Buzhardt. 




Subscribed and sworn to. before 
me. this _£^ day of ^/y^^s/in^ 




notary Public, D.C. 
[ My Commission E xpires j^j^^^^^^ . IQ.^ 




1352 



PAGE 73 



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 Juno 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 L«idy 

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 



1353 

PAGE Ih 



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 the 
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 Novennber 
and Decennber 1972. 



1354 

PAGE 75 



t J 



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 9:46 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 

- — -- - - ■ ■ ■ - " '. " "~ - - - ■ ■ i ■■ 

March 6, 1973 

AM 11:49 12:00 President met with Mr. Dean in the Oval Office. 

March 7. 1973 

AM 8:53 9;l6 President met with Mr. Dean in the Oval Office. 

March 8. 1973 

AM 9:51 9:54 President met with Mr. Dean in the Oval Office. 



1355 



PAGE 76 



< .J 



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. Haldennan was present from 12:43-12:55) 



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 Officr . 



< f 



1356 

PAGE 77 



March 16, 1973 

AM 10:34 1I: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 Offie*. 



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 talked 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 met with Mr. Dean and Mr. Moore, 

7:29 7:43 President talked with Mr. Dean. (The President 
initiated the call. ) 



1357 



PAGE 78 



( .) 



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 
BOB office. Also present were: 
Mr. Ziegler (departed at 5:25) 
Mr. Haldeman 
Mr. Ehrlichman (5:25 - 6:01) 



March 22, 1973 
PM 1:57 3:U3 



President met with Mr. Dean in the President's 

BOB Office. Also present were: 

Mr. Ehrlichman (2:00-3:^0) 

Mi-. Haldeman (2:01-3:UO) 

Mr. Mitchell (2:01-3:1+3) 



March 23, 1973 
PM 12:UU 1:02 

3:28 3-M 



President talked long distance with Mr. Dean. 
(The President initiated the call from 
Florida to Mr. Dean who was in Washingtoii 
D. C.) 

President talked long distance with Mr. Dean 
(The President initiated the call from 
Florida to Mr. Dean who was in Camp 
David, Md.) 



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's 
BOB Office. 



34-966 O - 74 - Dt. 2 



1358 

PAGE 79 

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. 



1359 



PAGE 80 



MEMORANDUM OF SUBSTANCE OF DEAN'S CALXS 
AND MEETINGS WITH THE PRESIDENT 



September 15, 1972 



February 27, 1973 



February 28, 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 hin 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 nnade known. 



March 1. 1973 



March 6, 1973 



March 7. 1973 



Preparation for press conference -- go ov«f 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 ^aked 
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 him E.B. Williams had 
dropped out of the civil case. 



1360 



PAGE 81 



jirch 8, 1973 
March 10. 1973 

March 13, 1973 



March 14. 1973 



March 15, 1973 



March 16, 1973 



President inquired as to whether Chapia had 
helped Segretti. Dean said no. 



(March 12: Issued statement on executive privilege, 
applies to present and former staffers but will pro- 
vide information. ) 

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. 

Press conference was discussed -- questions and 
answers. Discussed executive privilege. Decided 
they needed a Supreme Court test. Decided that 
the President should discuss his Ij^ft noBition. 
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 also 
discussed. 

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. 



The President reiterated his position on use of raw 
FBI fules. Suggested Dean's written report be 
accompanied by affidavits. Dean suggested i«ntlmely 
release of written report might prejudice rights of 
innocent people. Discussed possibility of getting 



•2- 



1361 



PAGE 82 



March 17, 1973 



Dar.i to intervi .-w Haldeman and 

Ehrlichman. Tho President suggested Dean should 

possibly go to Camp David to write his report. 



V 



President had niade a note on a press survey containing 
an article alleging White House involvement for follow- 
up (Dean possibly has copy of this). Dean again sug- 
gested they bring out 1968 bugging and President 
said Kleindienst had advised against it. Several 
names were discussed as possibly subject to attack: 
Colson, Haldeman, Ehrlichman, Mitchell and Dean 
himself. The President asked Dean point-blank if 
he knew about the planned break-in in advance. Dean 
said no, there there was no actual White House Invol- 
venient regardless 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 Ellsberg break-in but ]}•/ 
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 



March 20. 1973 



It was decided Dean would send a letter or sworn 
statement to the Judiciary Committee answering 
certain questions. 

(Republican leadership had been in that day. ) 
Dean discussed Mitchell's problems with the grand 
jury, 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 oach ' 
member of the Ervin Committee be challenged to 
invite an FBI investigation of his own Senate cainpaign. 
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 
he give the President a more in-depth briefing on 
wliat had transpired. 



1362 



r^, 



PAGE 83 



March 21. 1973 



Dean gave the President his theory of what had 
happened. He still said no prior June 17 White 
House knowledge, 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 
payments. Dean sai d Cols on had talked jo Hunt 
about execu tive clemency . He spoke of Haldeman' s 
return of the $3 50, 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 
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 Eryin Committe< 
that they not use executive privilege but that first 
it should all be put down on paper . 



1363 

PAGE 8^+ 



March 23, 1973 The President called Dean and told him to go to 

Camp David. Liater that afternoon he called Dean 
at Camp David to check on his progress. 



(March 30: After it became obvious Dean would 
write no report, the President directed Ehrlichman 
to investigate. 

On April 14 Ehrlichman reported possible Mitchell, 
Magruder and Dean involvement. The President 
called Kleindienst, who followed up. (Up until now 
the President had assumed Dean was getting much 
of his information from the Justice Department.) 
Kleindienst and Petersen focused in on possible 
involvement of Haldeman, 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 aVnost 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 
demanded 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 
Baying that no White House staffers would receive 
immunity. 

On April 19 Dean said he would not be a scapegoat. 

On April 27 Petersen told the President there is no 
use trying to get Dean to go before the grand jury, 
that ho was denr\anding immunity. 

On April 30 the President made his speech concerning 
HaW«man's and Ehrlichman'* resignations and Dean's 
firing. ) 



1364 

PAGE 85 



March 23, 1973 The President called Dean and told him to go to 

Can^p David. Later that afternoon he called Dean 
at Camp David to check on his progress. 



(March 30: After it became obvious Dean would 
write no report, the President directed Ehrlichman 
to investigate. 

On April 14 Ehrlichman reported possible Mitchell, 
Magruder and Dean involvement. The President 
called Kleindienst, who followed up. (Up until now 
the President had assumed Dean was getting much 
of his information from the Justice Department.) 
Kleindienst and Petersen focused in on possible 
involvement of Haldeman,, 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 aVnost everybody else was called 

in that day. The President told Dean that he must 
go before the grand jury without imnnunity. 

April 16, 1973 The President asks Dean to resign. Had two 

drafts prepared for Dean's signature. Dean 
demanded 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 27 Petersen told the President there is no 
use trying to get Dean to go before the gran4 jury, 
that he was den\anding immunity. 

On April 30 the President made his speech concerning 
Haldeman' 8 and Ehrlichman' e resignations and Dean's 
firing. ) 



• 5- 



1365 

PAGE 86 

mOA iMMiuUiA'i>: K£i^AS£ MAY ii, X973 

0<lic« oi the Whit* House Preaa Secretary 



THE WHITE HOUSE 
STATEMENT BY THE PRESIDENT 

Allegations surrounding the Watergate affair have so escalated 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. result, some national security information has already been made 
public through court orders, through the subpoenaing of documents and 
through testimony witnesses have given in judicial and Congressional 
proceedings. Other sensitive documents are now threatened with disclosure. 
Continued silence about those operations would compromise rather than 
protect them, and would also serve to perpetuate a grossly distorted view -- 
which recent partial diaddsuree 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 relaHoaship to the 

Watergate matter. 

-- Second, to pUce in some perspective some of the more sensa- 
tional .- and inaccurate — of the charges that have filled the headlines u» 
recent days, and also some of tfaa matters that are currently being dis- 
cussed in Senate testimony and elsewhere. 

— Third, to draw the distincti<n between national security operations 
and the Watergate case. To put the other matters in perspective, it wiU 

be necessary to describe the national security operations first. 

In citing these national security matters, it is not my intention to pUce a 
national security "cover" on Watergate, but rather to separate them out 
from Watergate -- and at the aame 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 
operations took place which have subse<luently become entangled in the 
Watergate case, 

— The first operation, begun in 1969. was a program of wiretaps. 
AU 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 an.l 

a directive to strengthen our intelUgence operations. They were protested o/ 
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 1« ••1 " 
of vital security information. X also directed this group to prepare an accur... 
history of certain crucial national security matters which occurred under p. loi 
Administrations, on which the Government's records were incomplete. 

Here is the background of these three security ope^atione- initiated in my 
. Adminietmtlon, 

(MOiUC) 



1366 



PAGE 87 



.2. 



1969 Wiretapa 

By mid-1969, my Administration had begun a number of highly Bcnsltive 
foreign policy initiatives. They were aimed at ending the war in Vietnam, 
achieving a settlement in the Middle East, limiting nuclear amis, and 
establishing new relationships among the great powers. Those involved 
highly secret diplomacy. They were closely interrelated. Leaks of 
secret information about any one could endanger all. 

Exactly that happened. News accounts appeared in 1969, which were 
obviously based on leaks -- some of thera extensive and detailed -- by 
people having access to the nvost highly eUssified security materials. 

There was no way to carry forward these diplomatic initiatives 
unless further leaks could be prevented. This re<)ulred 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 ii^ormation 
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 aoatters in order to curtail further 



The 1970 IntcUigence 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 were 400 bomb threats in 
one 24-hour period In New York City. Rioting 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 guexri'lla- 
"*yle 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 intelligence information. At the same time, 
the relationships between the FBI and other intelligence agencies had been 
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 of the Defense Intelligence Agency (General Donald V. Bonnett) 
and the Director of the National Security Agency (Admiral Noel Gayler). 
We discussed the urgent need for better intelligence operations. I 
apipointed Director Hoovev a* chalrmsLa of an interagency committee to 
prepare recoRumendatiens. 



1367 



PAGE 88 



. 3 . 

On June 25, the conrunittee submitted a report which included specific 
options for expanded intelligence operations, a-nd on July 23 the agencies 
were notified by inen>orandviin of ' the options approved. After reconsideration, 
however, prompted by the opposition of Director Hoover, the agencies wore 
notified five days later, on July 2S, that the approval had been rescinded. 
The options initially approved had included resumption ;of certain intelligence 
operations which had been suspended in 1966. These in turn had included 
authorization for surreptitious entry -• breaking and entering, in effect -- 
on specified categories of targets in specified situations related to national 
secutity. 

Because the approval was withdrawn before it had b««a ImpUmeatad, the 
net result was that the plan for expanded intelligence activities navev want 
into effect. 

The documents spellin," hie 1970 plan are extremely sensitive. They 

include -- and are basea apon -- assessments of certain foreign intelUccnce 
capabilities 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 shorts of our 
national security needs. In July, 19V0, having earlier discontinued the 
FBI's liaison with the CIA, Director Hoover ended the FBI's normal 
liaison with all other agencies excep. the White House. To help remedy 
this, an Intelligence Evaluation Committee was created in December, 19/0. 
Its members included representatives of the White House, CIA, FBI, NSA, 
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 cemmunity and to prepare 
evaluations and estimates of domestic intelligence. I understand that its 
activities are now under investigation. I did not authorise nor do I have 
any knowledge of any illegal activity by this Committee. If it went beyond 
its charter and did engage in any 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 
inotallment of what came to bo known as "The Pentagon Papers. " Not until 
ft few hours before publication did any responsiblo 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. 

AH the Government knew, 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 diplomatic moves in a war that was still going on. 

Moreover, a majority of the documents published with the first three 
installments in The Times had not been included in the 47-volume study -- 
raising serious questions about what and how much els» might have been 
taken. 

There was every xaason to believa this was a security leak of unprecedented 
proportions. 



(MORE) 



1368 

PAGE 89 



It created a situation in which the ability of the Government to carry on 
foreign relations even in the best of circumetancee could have been severely 
compromised. Other governments no longer knew whether they could deal 
with the United States in confidence. Against the background of the delicate 
nogotiations 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 PenUgon Papers publication, I 
approved the creation of a Special Investigations Unit within the White iroiinc-- 
which later came to be known as the "plumbers. " This was a small group at 
the White House whose principal purpose was to stop security leaks and to 
investigate other sensitive security matters. I looked to John £hrlichman 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 extrenaely tight security rules. Its existence and 
functions were known only to a very few persons at the White House. These 
included Messrs. Haldeman, Ehrlichxxian and Dean. 

At about the time the unit was created, Daniel Ellsberg was identified as the 
person who had given the Pentagon Papers to The N«w York Times . I told 
Mr. Krogh that as a matter of first priority, the unit should find out all it 
could about Mr. Ellsberg' s associates and his motives. Because of the 
extreme gravity of the situation, and not then knowing what additional national 
secrets Mr. Ellsberg might disclose, I did impress upon Mr. Krogh the 
vital importance to the national security of his assignment. I did not author- 
ize and had no knowledge of any illegal means to be used to achieve this goal. 

However, because of the emphasis I put on the crucial importance of proto«! i.i;; 
the national security, I can understand how highly motivatod individuals could 
have felt justified in engaging in spoolfio activities that Z would have disapproved 
had they been brought to my attention. 

Consequently, as Presideat, I must »nd do aasume responsibility for such 
actions despit* th« faet that Z, at ao time approved or had knowledge of 

them. o 

I also assigned the unit a number of other investigatory matters, dealinf; 
in part with compiling an accurate record of events related to the Vietnam 
War, on which the Government's records were inadequate (nr>any 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 compro oised the U.S. negotiating position in the SALT talks. 

The work of the unit tapered off around the end of 1971. The nature of its 
work was such that it involved matters that, from a national security 
standpoint, were highly eeaaitive then and reouOn so today. ' 



MORE 



1369 



PAGE 90 



- 5 - 

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 exampio, on 
April 18th, 1973, when I learned that Mr. Hunt, a former member of ta<! 
Special Investigations Unit at the White House, was to bo quoBtione'l 1</ tl-'i 
U.S. Attorney, I directed Assistant Attornoy General Potcroon to jiurun'; 
ovory iHBuo involving Watorgato but to conHno hie invoatigation to Waloi-c, ai! 
and rolivl<>d nialtore and to stay out of national security mattoro. Subnocjmintl/, 
on April 25, 1973, Attorney General Kleindienst informed mo that bccauoo 
tlie Government had clear evidence that Mr. Hunt was involved in the broak-in 
of the office of the psychiatrist who had treated Mr. £llsberg, he, the 
Attorney General, believed that despite the fact that no evidence had been 
obtained from Hunt's acts, a report should nevertheless be made to t)ie 
court trying it.9 EUsberg case. I concurred, and directed that the informa- 
tion be transmitted to Judge Byrne immediately. 

Watergate 

The burglary and bugging of the Democratic National Committee headfiuartors 
came as a complete surprise to me. I had no inkling that any such illegal 
activities had been planned by persons associated with nay campaign; if 1 
had known, I would not have permitted it. My immediate reaction was th.it 
those guilty should be brought to justice and, with the five burglars them- 
selves already in custody, I assunoed that they would be. 

Within a fow 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 involvenrtent of former CIA 
personnel, and because of some of their apparent associations, the invcnii- 
gation could lead to the uncovering of covert CIA operations totally unrelntod 
to the Watergate break-in. 

In addition, by this time, the name of Mr. Hunt had surfaced in connectiou 
with Watergate, and I was alerted to the fact that he had previously been 
a member of the Special Investigations Unit in the White House. Thoroforo. 
I was also concerned that the Watergate investigation might well lead to an 
inquiry into the activities of the Special Investigations Unit itself. 

In this area, I felt it waa important to avoid ditclosure of the details of the 
national security matters with which the group was concerned. I knev/ tbit 
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 the scale of nationnl 
priorities with which I had to deal -- and not at that time having any idr.a 
of the extent of political abuse which Watergate reflected -- I also had to !•.! 
deeply concerned with ensuring that neither the covert operations of the CiA 
nor the operations of the Special Investigations Unit should be compromificd. 
Therefore, I instructed Mr. Haldeman and Mr. Ehrlichman to ensure th.it 
the investigation of the break-in not expose either an unrelated covert 
operation of the CIA or the activities of the White House inve stigatioiis unit -- 
and to see that this was personally coordinated between General Waltorn, 
the Deputy Director of the CIA, and Mr. Gray of the FBI. It was certainty 
not my intent, nor my wish, that the investigation of the Watergate break-m 
or of related acta be impeded in any way. 

(MORS) 



1370 



PAGE 91 



On July 6, 1972, I telephoned the Acting Director of the FBI, L. Patrick 
Gray, to congratulate him on his successful handling of the hijacking of 
a Pacific Southwest Airlines plane the previous day. During the convcr* 
sation Mr. Gray discussed with me the progress of the Watergate invea- 
tigation, and I asked him whether be had talked with General Walters. 
Mr. Gray said that be 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 press 
ahead with his investigation. 

It now seems that later, through whatever complex of Individual motives 
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 comizkittee. 

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 raising for defendanln 
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 summary, thent 

(1) I had no prior knowledge of the Watergate bugging operation, 
or of any illegal surveillance activities for political purposes. 

(2) Long prior to the 1972 campaign, I did set in motion certain 
internal security n^easures, including legal wiretaps, which I felt were 
necessary from a national security standpoint and, in the climate thnn 
prevailing, also necessary from a domestic security standpoint, 

(3) People who had been Involved in the national security operations 
later, vtrithout my knowledge or approval, undertook illegal Activities in 
the political campaign of I972i 

(4) Elements of the early post-Watergate reports led mc to sunpcct, 
incorrectly, that the CIA had been in some way involved. They also led 
me 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 aecurity operation*. 

(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 
clemency for the Watergate defendants. Neither did I know until the 
time of nvy ««inaAV«etl.ga.tlon. of any efforts to provide them with funds. 

(MORE) 



1371 



PAGE 92 



Conclusion 

\/ith hindsight, it is 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. 

With hindsight, several other things also become clean 

-- With respect to campaign practices, and also with respect to campaign 
finances, it should now be obvious that no campaign in history has ever 
been subjected to the kind of intensive and searching .inquiry that has been 
focused on the cannpaign waged ia my behalf in 1972. 

It is clear that unethical, as well as illegal, activities took place In the 
course of that can^paign. 

Nono of these took place with my specific approval or knowledge. To the 
extent that I may in any way iava contributed to the climate in which they 
took place, I did not intend to; to the extent that I failed to prevent them, 
1 should have been more vigilant. 

It was to help ensure agaiiut any repetition^ of this in the future that last 
week I proposed the establishment of a top-level, bipartisan, indopondont 
conuniesioa to recommend 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 national 
security operations in order to cover up any involvement they 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 addroos here. The proper forum for settling those 
matters is in the courts. 

--To the extent that I have been able to determine what probably happened in 
the tangled course of this affair, on the basis of my own recollections ano 
of the conflicting accounts and evidence that I have seen, it would appoar 
thnt one factor at work was that at critical point* various peopU. each 
with his own perspective and his own responsibilities, saw the same situation 
with different eyas and heard the same words with different ears. What 
might have seemed insignificant to one scorned jignificant to another; whnt 
ono'-snw in terms of public reaponslbiliiy, another saw la terms of politicAl 
opportunity; and mixed through it all, 1 am sure, was a concern on the part 
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 -- as the special supervisory 
prosecutor for matters related to the case. Attorney Oenoral-dosignate 
}(.ichardson has demonstrated his own dctormiination to see the truth 
brought out. In this effort he has my fuU support. 

Conoidering the number of persons involved in this case whose testimony 
might be subject to a claim of Executive privilege, I recogniee tbat_ft-Clcas" 
definition of that claim h&« bocome central to the effort to ar/ive at the 
truth. 

(MORE) 



1372 



PAGE 93 



•s- 



Accordingly, Executive privilege will not be invoked as to any testimony 
concerning possible criminal conduct or discussions of possible criminal 
coiKi»»ct, in the matters presently under investigation, including tJie 
V/iitnrgato affair and the alleged cover-up, 

I w.'iiit to empliaoizo that this statement is limited to my own rccolicctiuiin >>( 
wii.d- I «.iid a«d did relating to security and to the Watergate. I havo opocij'iri.i 
.1 voided Aciy attempt to explain what other parties may have said and done. 
hXy own information on those other matters is fragmentary, and to somf^ ext<<i>l 
coDl radictory. >^ddltlonal Information may be forthcoming of whieh I nm 
xiiiAv/nro. It is also nr\y understanding that the infornruxtion which has boon 
convoyed to mo has also become available to those prosecuting these inatto m. 
iiiidcr Buch circumstances, it would be prejudicial and unfair of ino to rond';>- 
my opinions on the activities of others; those judgments must bo left to the 
jMdiciikl process, our best hope for achieving the just result that wo all senl^. 

A a more information is developed, I have no doubt that more questions will oo 
r.-i-iuud. To the extent that I am able, I shall also geek to set forth the facts 
as known to mo with rospoct to those questioas. 



1373 



PAGE 9k 

Exhibit K 



THE WHITE HOUSE 

WASH I NGTON 



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 h: '^ak-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 

34-966 O - 74 - pt. 2-11 




1374 



PAGE 95 



THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



SENATE SELECT COIMITTEE OH PRESIDENTIAL 
CAMPAIGN ACTIVITIES, et al. 



Plaintiffs 



RICHARD M. NIXON, 

individually and as President of the United 

States 



Defendant 



Civil Action 
No. 1593-73 



AMENDMENT TO COMPLAINT 

The Complaint herein, filed on August 9, 1973, is hereby 
amended, with leave of Court^ Aid 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. 

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 Comnittee on 
Presidential Czunpaign 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. 



1375 

PAGE 96 . 

• . -2- 

Committee is authorized to investigate, and 
^jihia/ 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 Conanittee'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 thiscomplaint by reference." 
lespectfully submitted^. 




Fred D. Thompson 
Minority Counsel 

Rufus Edmisten 
Deputy Counsel 

James Hamilton 
Assistant Chief Counsel 



1376 



PAGE 97 



Richard B. Stewart 
Special Counsel 

Ronald D. Rotunda 
Assistant Counsel 



Sherman Cohn 
Eugene Gressman 
Jerome A, Barron 

Washington, D. C. 
Of Counsel 

Arthur S. Miller 

Chief Consultant to 
the Select Comnittee 

Of 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 Plaintiffs 



January 7, 1974 



1377 



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



PAGE 98 



SENATE SELECT COMMITTEE ON PR>:SIDENTIAL 
CAMPAIGN ACTIVITIES, suing in its ovm 
name and in the name of the UNITED 
STATES, 



and 

SAM J. I;RVIN, jr.; HOWARD H. DAKER, JR.; 
HER>UVN 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 



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. 



1378 



Page 99 



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. 



1379 



PAGE 100 



In further defense to the complaint, Richard M. Nixon 
states as follows: 

First Defense 
That t}<L 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. 134 5, 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 Sees. (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 mandamus 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 relevamt 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 . 



1380 



PAGE 101 



Fourth Defense 
That this action presents no justiciable controversy 
as required by Article III of the United States Constitution, 
and 2 8 U.S.C. 22 01 and 2202. 

Fifth Defense 
That plaintiffs lack standing to bring this action. 

Sixth 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 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. 



1381 



PAGE 102 



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 and 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 
ROBF.r.T T. ANDREWS 
THOMAS P. MARINIS, JR. 
RICHARD A. HAUSER 

Attorne ys for the President 

The White House 
Washington, D.C. 20500 
Telephone Number: 456-1414 



BY: 



V4xjlV^ ov>-a- 



1382 

Page 103 



CERTIFICATE OF SERVICE 

I, J. Fred Buzhardt, hereby certify that on this 
29th day of August, 19 73, 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 



1383 



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



PAGE 104 



SENATE SELECT COMMITTEE ON PRESIDENTIAL 

CAMPAIGN ACTIVITIES, suing in its own 
name ^nd 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 LO'.VELL P. WEICKER, JR., as United 
States Senators who are members of 
the Senate Select Committee on 
Presidential Campaign Activities 



Civil Action No. 1593- 



Plaintiffs 



RICHARD M. NIXON, individually and is 
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. 



1384 



^' . PAGE 105 

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 39-1-90 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. 



1385 



PAGE 106 



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, 9 3rd 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. 



1386 



-i- PAGE 107 

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 capable 
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. 

ResE>ectfully 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: 455-1414 



By: 



Of Counsel 

RICHARD A HAUSER 
K. GREGORY HAYNES 
GE0R3E P. WILLIAMS 



1387 



PAGE 108 



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



FILSS 



SENATE SELECT COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES, et aL 

Plaintiffs 



RICHARD M. NIXON, individually and aa 
President of the United States 



Defendant 



AU?5 ■> 9 1373 



^^t:' 



CLEKK 



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 Committee 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. 



1388 



PAGE 109 





The grounds for thla motion are more fully set forth in the accompanying 
Memorandum In Support Of Motion For Sunnmary Judgment and Statement 
Of Material Facta Aa To Which There la No Genuine Issue. 

^apectitilly submitted/ 



Sherman Cohn 
Eugene Greaaman 
Jerome A. Barron 
Washington. D.C. 
Of Counael 

Arthur S, Miller 
Chief Consultant to 
the Select Committee 
Waahington.D.C. 
Of Counael 



imuel Dash 

Chief Counsel 
Fred D. Thompson 

Minority Counael 
Rufua Edmiaten 

Deputy Counsel 
Jamea Hamilton 

Aaaiatant Chief Counsel 
Richard B. Stewart 

Special Counael 
Ronald D. Rotunda 

Assistant Counsel 
United States Senate 
Waahington.D.C. 20510 
Tel. No. 225-0531 
Attorneys for Plaintiffs 



1389 



PAGE no 



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OP COLUMBIA 



SENATE SELECT COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES, et al.. 



Civil Action 
No. 1593-73 



Plaintiffs 



RICHARD M. NIXON, Individually and as 
President of the United States, 

Defendant 



STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE 

ISSTfE 



1. The Senate Select Committee on Presidential Caiq>algn 
Activities l8 a duly authorized and constituted comnlttee of the 
Senate of the United States. It was created by Senate Resolution 
60, 93rd Congress, 1st Session (1973) » *rtilch was enacted by a 
unanimous 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. 6o the Select Committee Is empowered to Investigate 
and study "lllegtil. Improper 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 conq)etent Jurisdiction 
If the committee is of the opinion that the suit is necessaxy 
to the adequate performance of the powers vested in it or the 
duties in^osed on it by the Constitution, resolution of the 
Senate, or other law." 



34-966 O - 74 - pt. 2-12 



1390 



PAGE 111 



-2- 



?. The duly designated members of the Select Committee are 
Senator Sam J. Ervin, Jr., of North Carolina (Chairman); 
Senator Howard H. Baker, Jr., of Tennessee (Vice-Chalrman); 
Senator Herman E. Talmadge of Georgia; Senator Daniel 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. 60, 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 suiy 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 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 which they or any of 
them may have in their custody or xinder their 
control; ..." 

4. On July l6, 1973, Alexander P. Butterfleld, former 
Deputy Assistant 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. Butterfleld '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. '1184. 

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 



1391 



PAGE 112 



of 1 1?'^ had failed, the Committee addreised two subpenas ducrr, 
t ''cuni , signed by its Chairman, to "President Kichard M. Nixon, 
The White House, Washington, U. 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 l6, 1973, of the existence of the tapes by Mr. Butterfleld, 
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 euinounced in a letter of July 25> 
1973, which was addressed to Chairman Ervln eund received by him 
on July 26, 1973. (This letter Is appended to the complaint as 
Exhibit E.) In justification of his refusal to con5)ly with the 
subpenas, the defendant President relied in part on reasons 
stated in letters from him to Chairman Ervln dated July 6 and 
July 23, 1973 (which are appended to the complaint as Exhibits 
F and G ) . 

8. The defendant President has not moved in this Court or 
any other Court to quash, modify or narrow the scope of either 
subpena. 



1392 

^ ^ PAGE 113 

-4- 

'">. Seven imllviduala — G. Gordon l.lddy, iJ. Howard Hunt, 
.lam**,-^ W. McCord, Bernard L. Darker, Frank A. Sturgla, Virglllo R. 
Gonzales and Eugenlo P. Martinez — have boeri 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-count indictment 
in their case charged these seven lndividu«J.s with the crimes of 
conspiracy to commit an offense and to defraud the United States 
(18 U.S.C.837I), second degree burglary (22 D.C. Code § 1801 (b)), 
illegal interception of wire communications and attenqpted Illegal 
interception of wire and oral communications (18 U.S.C. 
§ 2'311)> and illegal possession of intercepting devices 
(23 D.C. Code § 5^3 (a)). Two other individuals, Jeb Stuart 
Magruder and Frederick LaRue, both high officials in the Committee 
to Re-elect the President, have pleaded guilty to crimineil infor- 
mations in lieu of indictment charging them with a conspiracy 
to commit tin offense or to defraud the United States. "Vhe 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 Invest Igation, the 
Grand Jury and at trial, the peiyment of cash fijnds 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 covpr up the true facts of the Watergate episode. E.g., 
S, Tr. 1U83-85, 2400, 2432, 2463, Testimony before the Sele^ . 
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 Illegal conduct, including, e.g., John D. Ehrllchman, 



1393 

PAGE 114 

-5- 

H. K. Haldeman, John N. Mitchell, Robert C. Mardlan, and 
Herbert W. Kalmbach. See, e.g., S. Tr. I899-I9OI, 1907, 191 S-l'*, 
2063-6i4, 2171-73, 2183, 2196, 2199-2200, 2211-16, 2253, 2259, 
2260-65, 2267-71, 2272-73, 2299-2300, 3174-78, 3578-79, 4992, 
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, 5147-48. 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, 34l6- 
17, 3322-23, 3332-33, 3342, 3435-40, 3799, 3803, 5419-37, 5465, 
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 
and John Wesley Dean III, discussing alleged criminal acts 
occurring In connection with the Presidential election of 1972." 
/Emphasis added/ The five conversations occurred on September 15, 
1972; 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 eoBTcrsatlons 
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 Dean version: When Dean entered the Oval 
Office he found the President and Haldeman "in very 
good spirits ajid ^is/ reception was very warm and cordial." 



1394 



-6- 



PAGE 115 



The ivpsldpnt said that "Bob . . . had kept him posted on 
/Deon'j/ handling of the Watergate case." The President 
remarked that Dean "had done a f',ood Job" and that he "was 
pleased the case had stopped with Liddy." Decin 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 urtien 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 ccn9>laint, 
S. Tr. 2229-33, 3166. 

(b) The Haldeman version(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 /and/ ] am sure therefore 
that the President thought It would be a f.ood 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." Tli«^ 
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" 



1395 

PAGE 116 
-7- 

t 

iuid later dirt "commend Dean for his hanrtling of the 

wholo Watory.fite 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 vdiat was happening," 
Haldeman recalled no "comment about the Judge trying to 
slow down the suit." D*an 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 Con?)laint 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 Presidential conversations (see 
Para. 23, infra , and Exhibit J to the con^jlalnt) stated 
only that Dean reported on the Watergate indictments. The 
defendant President, in his August 22, 1973* San Clemente 
news conference, stated that Dean, on September 15th, 
declared that "there was not ... 'a scintilla of 
evidence' indicating that einyone on the White House staff 
was Involved in the j>lanning of the Watergate break-in." 
(En^hasis added) See Washington Post , August 23Ri, pp. AlO-l?. 
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: Dean told the President thaf, he ^Dean) 
"was also involved in the post-June 17th activities 
regarding Watergate" and described to him why he "hari 
legal problems," i.e., he "had been a conduit for many 



1396 

PAGE 117 
-8- 

or the decisions that wei*e made and, therefore, could be 
involved in an obat.niction of Ju: tier." Vhc I'rosidont 
"would not accept, his aneJLyslr," 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 scd.d there was no White House involvement in Watergate, 
that Haurlce Stans was a victim of clrcumsteuicea and that 
Charles Colson was a lightning rod because of his 
reputation. See Exhibit 1 to the con^laint. 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 "planning" 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. Heildeman was present from 

12:43 p.m. to 12:55 p.m. 

(a) Dean version: Dean 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 would 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 "Hvint had been promised Executive clemency, " 
that "he had discussed this matter with Ehrlichman" 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 



1397 



PAGE 118 



laundered so it could not be traced and Lhen there were 
r.ecret delivc'jiey . " See, e.g.. Exhibit 11 to the complaint; 
il.Tr. 2323-2'j. 

(b) Haldemon has no recollection of the events of 
the March 13th meeting. See Sxhlbit 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 
^4itchell and Colson knew of Watergate (presumably beforehand) 
find 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 
August 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 
con5)lalnt. 

(a) Dean's version: Dean's purpose in this meeting 
was to give the President "a full report of aJ.1 the facts 
that ^^ knew and explain to him what ^e7 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 



1398 

"*" ^ PAGE 119 

-10- 

I'rom him to have nothing to do v/lLh Lhr project. lie sai-i 
that Colson hn.l put some pre-WaterRate 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 
Strachaji) had received wiretap Information. Dean then 
recounted "the highlights /of/ the cover-up." He said that 
he, Ehrlichman, Haldemsm, Mitchell and Kalmbach had been 
involved In raising eind paying money to the defendants to 
achieve their silence. He said that money demands from 
the defendants, especially Hunt, 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. Dean told the President that Mar.ruder had 
committed perjury before the Grand .Tviry with Dean's 
assistance. He stated that more money and 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): Deaji said no White House personnel were involved in 
planning 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 suid that Haldeman through Strachan had 
received the "fruits" of the operation. Deeui said he 
made a report to Haldeman after the second pljuinlng meeting. 
"Regarding the post-June 17th situation, he indicated ccncern 
about two problems, money and clemency." He said Colson 
had spoken to Hunt regarding clemency. The President said. 



1399 

PAGE 120 
-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 'blackmail threat " that unless 
he received $120,000 he would reveal the ""searny things' he 
had done for Ehrlichman." Dean said a million dollars 
eventusj.ly would be needed. "The President said, 'There 
is no problem in raising a million dollars, we can do that, 
but it would be wrong.'" The President inquired as to how 
this money could be paid and Dean discussed laundering 
procedures. Haldemeui believes- Dean is confusing the 
meetings of the 13th and the 21st because there is a 
similarity between Dean's version of the meeting on the 13th 
and Haldeman 's view regardinc th< 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 Vfhite House knowledge of WaLerRatn prior to June 17, 
197!?, but then stated that Strachan probably knew and that 
possibly Haldeman, through Strachan, had ueen the "fruits" 
of the wiretaps. He said Magruder probably, and Mitchell 
possibly, had prior knowledge. Also, Colson had made a 
call to Magrader relating to the operation. Ehrlichman 
was vulnerable 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. 
ITie President stated that blackmail was wrong, would not 
work and that the truth would come out anyway. Dean sai i 
Colson talked to Hunt regarding executive clemency. Hr 
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. 



1400 

PAGE 121 

-12- 
Ho said nothing In regard to his role regarding money, 
nor did he discuss his part In the Magmder perjury. See 
Kxhlblt I to the coiiqjlalnt. 

(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 matterc for which 
Ehrlichman had "particular responsibility." The President 
r.ald the figure Deem mentioned as ultimately needed — 
one million dollars — cotad be raised but that "it's 
wrong. It won't work," without executive clemency, which 
he could not give. The President said that getting the 
money to the defendemts was also a "problem" that wovild 
make any payoff plan unworkable. The President gave 
directions "to get this story out." 

13. On the afternoon of March 21st, the President met 
with Dean from 5:20 p.m. to 6:01 p.m. Ilaldcman was present the 
entire time, Ronald Ziegler from 5:20 p.m. to 5:25 p.m. and 
Ehrlichman 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. 2334-35. 

(b) Haldeman version: The meetlnc dealt with 
questions of the Grand Jury, the Senate Committee and 
executive privilege. Ehrlichman stated he believed 
everyone should 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 



1401 

PAGE 122 
-13- 

• c 

Lo the compl"iPt.| S. Tr. 6ll8. 

(c) Ehrllchraan's version basically corresponds with 
Haldeman's. See, e.g., S. Tr. 57l6-l8, 3650. 

(d) Buzhardt version: It was tentatively decided 
that everyone would go to the Grand Jury. Dean, however, 
wanted immunity. Ehrllchman opposed this and also 
suggested that no one should claim executive privilege. 
Haldeman recommended that the whole affair be reduced to 
paper «md the resulting document then released by the White 
House. The President Instructed that these matters be 
discussed with Mitchell. r>ee Exhibit I to the con^laint. 

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 datfed Jidy 23, 1973, to 

Chairman Ervln (Exhibit G to the complaint) stated: 

"The fact is that the tapes would not flntilly 
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 
woxild 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 and other materials "relating directly or 
indirectly to /bn/ 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 ceuinot identify them with 
speciricity. However, testimony before the Select Committee 
suggests certain documents within defendant President's 
possession, custody and control that the subpena may cover, 
for example: 



1402 

PAGE 123 
-14- 

(n) The notes taken by H. R. Haldeman on yellow 
iep.al pads durinp 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 biilk, less than 1/8 Inch In thickness. 
S. Tr. 6054. 

(b) The dally news summaries prepared for the 
defendant President that contain in the margins or otherwise 
his handwritten comments and instinictions relating to the 
Watergate affair. S. Tr. 2555. 

(c) The various memoranda concerning the ITT affair 
referred to in a memorandum from Charles Colson to 

H. R. Haldeman, dated March 30, 1972, that was marked for 
identification before the Seled Committee (see S. Tr. 
6655) and is attached to this statement. The White House 
has JLlready turned over an ITT file to the Special 
Prosecutor that may contain one or more of these memoranda 
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: 

"/S7xecutlve 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 affeiir and the alleged cover-up." 

The defendrjit President' entire statement of that date is appended 



1403 

PAGE Mk 
-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 har. been voluminous. 

21. Tlie defendant President's counsel, Leonard Garment, 
stated In a letter of June 19, 1973, to John Wesley Dean III, 
the defendant President's former counsel, 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 con5>laint 
as Exhibit K. ) 

22. The defendant President, in July 1973, had certain 
tapes. Including the tape recording of his conversation vrith 
Mr. Dran on September 15, 1972, delivered to H. R. Haldeman, a 
private citizen, Mr. Haldeman was asked by the defendewit 
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. TTie defendant President, 
by his counsel, subsequently advised Mr. Haldeman that he would 
not Invoke executive privilege in regeurd 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 eind Mr. Dean during 
the time Mr. Haldeman was present. (See letter of August 10, 
1973, to Chairman Ervin from Frank H, S trickier, Haldeman 's 
attorney, which Is attached to this statemen' .' 

23. In early June 1973, the Vftilte House transmitted to 

the Select Committee a memorandum listing the oral communications, 
both face-to-face and telephonic, between the defendant President 
and Mr. Dean in 1972 eind 1973. This memorandum also detailed 
the dates and times of these communications and, in the case of 



1404 

PAGE 125 
-16- 

fncc-to-face meetlnpis, the locations of those meetings and the 
oth( r participants. If any. Subsequently, Fred D. Thorapson, 
the r.olect Committee's Minority Counriel, received a telephone 
call from J. Fred Buzhardt, Special Counsel to the Preeident, 
during vrtilch Mr. Buzhardt, In considerable detail, gave 
Mr. Thompson his understanding of the contents of certain 
communications between the defendant President and Mr. Dean. 
Mr, Buzhardt's reconstructions were Immediately reduced to a 
memorandum by Mr. Thon5)son. See Exhibit I to the con5>lalnt. 
24. In his San Clemente press conference on August 22, 
1973, defendant President presented his views as to portions 
of the conversations between him and Mr. Dean on September 13, 
10?;', find March 21, 1973. His concl\isionr. ar, 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 conqplaint) contains his version of the entire 
Watergate affair. 

Respectfully submitted, 

Sherman Cohn Samuel Dash 

Chief Counsel 
Eugene Gressman 

Fred D. Thompson 
Jrrome A. Barron Minority Counsel 

Washington, D. C. 
01" Coimsel Rufua Edmlsten 

Deputy Counsel 
Arthur- S. Miller 

Chief Consultant to James Hamilton 
the Select Committee Assistant Chief Counsel 
Washington, D. C. 
Of Counsel Richard B. Stewart 

Special Counsel 

Ronald Rotunda 

Assistant Counsel 

United States Senate 
August 29, 1973 Washington, D.C. 20510 

Telephone Number 225-0b31 
Attorneys for Plaintiffs 



1405 



pag: i_2^: 



^^arch 30. 1972 



M^.MO:iANDUM FORI H.R. IIALDEMAN 

FRO Nil CHARLES COLGON 

V 

i;uDjr:cTi irx 



Tlt^rc .iro four |>ointa in tha anal/^la you outlined to NlacGregor aad 
i-.io thi3 i.iorning with which .^ iActirr^or, Wnlly Johnaon and I dlvagrc*! 

I. Mltcli-'ll, Kloiiiihcnat or M a r<lt.Tn cl.-ali n:{ with KaatlanJ nnd 

M.icl ir",'xor pri»iii.i I'oly 'loalingj with (h« othor momb-irs of Lh« 
("omrrjttoo miar.mtjua a illvirlod apnro.»ch. Ono or the other 
h.ts to (Tall tho 3(iot'j. Klctntiionst haJ alroady this rnorrung 
told ?.iacG.rr>r;or that hr, MacGrogor, ahould rot deal witli any 
of Ihvj other Rc|>u'jlican Sonators (Scott, Coolc, etc. ) but rather 
ohould doal only t'.irou'ih Hruska. lu Iho lUnd of day-to-day 
operntVon thl3 lu, taal la oii-nply ar> untanablo arratisemont. * 

I know you and the I'rcsidont aro concomed that all oi us aro 
talccn away from othor tnoro Important mattars. You ehouid be, 
however, cfnially concerned that MUchoU in tiie laut 30 days hai 
done littlo xv-ith reapcct to tho can'»nal,'tn ond that rriay be a mora 
3i-rioiis lo3i» than '/'acGrrpfor'n time and mine. 

Z. On llj'- or)o hand, you havo thr asticaamont of i\loindien«t, Mardlan 

an J V'ltchull a-j to what will liAppon In tho C'ommiltcc aad on the 
.'•'loop. On the othor hand, yon have tho l.-r,le Intl v-s asaosament 
ot * la< I ir<~<|i>»", i;oljijn niul .1 oliiiBon \vhlch lu vety diffc-rnnt. 
(J.ihnnou ;ipuut f.<>;ii 19^0-1171) .^i» Minority Coiinaiil of Ihlu 
:).iiii-i I'uminl'.lcr- ,Mid hao hocn involved in all of t)io coru'irniation 
Ijaltli'ti of thip /Xdrniiiliilr ition oithur from tho Cominiltco ond or 
from Iho Juiilic? IJopartnient end. lie left tho Committee to go to 
lujtU-i In 1970. MacGroxor :ipont 10 yoara In Con3ro33. I aj>eok 
\ ' , > irn ,'. J a i-jaisr .l.-nate -ijiljtanl and ) yearj in la^w practice, 

tn/olvlng cory conji Jorablo contact with the tlill. The Juatlc« team 
ulmply has not had tlio same experience.) 






34-96G O - 74 - pt. 2 



1406 



PA^-f 1?7 



and I unauim JUS 1/ tio ni)i u<i.o-/<- t'.i.it . .ici.it. h^.t 't ^ a.i .j«i ..j.-.-trmu**., 
Iiy Jiinn I. JiMimrJon «)om nut fcfl \\v « ,>n In- < -cif i r-i-J .-it atl ,n<J 
un tliiH poWit ( am nl lo.-xst tion'itfiil. I n.iph.iai-.'.o l!i.it '.Jiifi i.i nn 
o,>liikoii .»iid a jU'li;iiiont call. IaiIs of tlitn'^i conU h.ippcnj '.Vo 
could p.ct ft bl'{ broak in tlio cnu«t; tlio mrdia coiilJ turn around 
.-\nd become .lympathetic to Klt;iiiiJlcmt; I'lo D>Mnocr.il» could 
docldo that tli.»y aro bettor having l»im in the job tiia.T b.ratin;i 
him. Obvlou.^ly, thore ar« mao/ uatnrwsoon poaiiibilitice, but 
.13 iif now tlt.it is our bret .-• J:i«*3 9mcnt. I would tliink V.\a\ v/hat- 
••/.■^- 'l;>cl»ion V. 1 •.i.T.to .noM' I'lo'il.l i)>> !>"iJ-sd in iS; '-.otX kno'v- 
IrdqAbltf -• :\m\ \ would .ndd tho nrio^k detachad ••• .isaeanment 
of nur Ic'kI jl.»li /« proip«ct«. 

\V Ally .fohnxin V.an done a <h'tailcd analysis of thj v.^rious procod- 
iT.il movr^ lh.it .'.rfs llkoly lo be rm;lo in Committrt^ or on tho I-^loor* 
II« lo not niiootin:^ irom tSn hip. Wn h.is nnaly7.«»d it .Tr»d a i^enAt« 
voto In iiIj jii'l'',m.-nt cannot ht .Tciiievcd ijy June I; the DomocralJ 
•.vlU only Icrt it :i) na to .a voto If i!iey have vol«3 lo rejoct iCl;iln« 
'Jienit, v iilcii u '.'a !jA«t desirable oulror-ie. .".'-iir'.er Johnioti, 
■ 'acGrri-ir or C~,l5jn ar« pr-p»rei to p.-.-.!ic: v.-i.-r.Sor we c.t.j 
ho'.J Iho vrif>*i n.'c<»3Jary to confirm hi n sliould t'lo rorpjn.»:lon 
In ia^-t ;;tt to .t viie. 

' aiu.-in^ aet.. • :or, J .:. -.Jon .t.-o CM. on ar.- ».-.: -ct. t!:.-» 
,.,.„ir. I.n. 1 ..'< .r.i--aW:... ;-:. .n.rclyp..:. ; ,. h, rd .-..cla.on 
„•, ,„ ; a, ;.,.n a -,U b.. c..>i.!er V.,1/ >t.d'o ^ V..t,U- poUt.caUy 

; ,M ..t M.t U wUl CO. u, two M.oai:., clo.or to l.u, oloctlon. rn3r« 
l3 o(>lnion. 

■' "-' :■-'- -'' '",r ^•r;:^:;:u;^:^--^''--"•' 

r;»vc til l\u.i utornim -- inori- KM «lndicntt lo 

' « .r. U^ f,, fonlin-uvllon of thiu controver.-.y. WV^ Indicn.i i 

t.>ip<»s>»ri.- by t.vi fonnii ... M .■.r.,;i.»n»t U the b»;st av.^il- 

V ■'-. ■ ••" ••-'"--' t; •^':'. ':,,;v;i...:- vn.^.v.- 
-'•'^'-'• "^- ■"^--:^^ ""? '''.', ';al.,"l^r';U-...-iion,tclov,t.. 



.^ -1 ,,. 1. nil -- bat lit > b.iUl" ovjr 
h.D'tvn I lo .K III II " II 



1407 

PAGF 128 



EKl^lf.3 



-3. 



t!)*i v!j:lblUly ol th« ITT mjtl«r and, iTin^J, p/jarjnt«o« that 
thr r.i.io \'r\\\ Rtay allvr. It ma*/ otay aliva in .iny ovrnt anJ h«aco 
th'i k'^y qunatloa not i\d<ir(tflao<i In your tnal/okj lo whi:thar poo» 
(!-ncy or wIlhiJrn-vAl -jl Iho ivlolodlcoat nomioaUon snrvoa to 
Incr.-.-uo thi Uemocril'n iloilrc to coallouo. That Is tho hard«at 
call til mako but for tho I'oUowiag r^aaooa it raajr b» tho mo«t 
Important point to rialto. 

r.luthor 'Clclodlonot, Mitchell Dor Mardlaa kaow of the potantlmi 
'•3^-»r». I hav*» 'loli^r^tnlr not told -'.leindioaat or ^ lltchell 
.IIDC0 bntb maf bo rocallad a« 'witnoaaos nnd .\(«rdlAn do«« not 
undor.itaad tha problom. O.ilf Fr^ J'loldtng, myaeU and EhxUciw 
rnaa \w<r« fully oxamlaad all tho 'ioctxxnootj aad/or Informatloo 
that cotdd yt>k com* oaU A aummary of ootns oX th*s« l« attaclMd* 



1408 



PAGE 129 



1* Cortalo ITT flloo whbcU wero not ahreddsd l^avA beon turned 

ovor to tha GEO; ihere wan talk ycstorda/ ia tho ComntKtce 
oi daLp<>«naIo{) tbeso /rom ITT. Thet« flloa would ucderrnlo* 
C. T .r'^oid'o tcaUmony that he made the decision not to taka the * 

appeal '.o tbti Cuprom« Court. Corr'Sffpondcnco to Conoally and 
t'oterson croJlta tlio dola/ in Juatlco'a flliog of t>i9 appeal to 
\\\» Suprema Court in Iho Grloali ca3o to direct Intcrvontioo 

■" by Pctornon and Connaily. A memo jcnt bi tho Yica Proaldaqt* . 

addrasoed "Dear Tod", from Nad Cerrity tonda to contradict 
John Mltchell'a testimony becaiue It outUnas KlltchoU's ajr««* 
maat to talk to McLaren following Mitchell'* maatlog tvlta 
Gonaen la Au'^uat 1970. 

It would carry aomo weight In that tha memo was wrltt/aa contaon* 
porsnoou* wtth tha nrtcoting. Doth Mitchell and Ganeoa hava 
tustliioJ thoy •Ji3cua«e<i policy only, not this case, and that 
^.fltchall talked to no one <?lao. Th>} tnan^o further atate* that 
I.hrtlchmaa atsured Gaoean that the Presldaok had "Instruciad'* 
tho Justice nopartment \vith raapect to tho blqoau policy. 
(It Is, of courso, appropriate for the President to Instruct tha 
. Tuatl^ro Dnnartmant on tx>Ilcy, hut in tha conte.-ct of thesa haariagtt 
that rovolation would l^y thla caao on the Pr-aalJant'a doorit»r>*) 
Tbers \b another Internal Ryan to Mcrrlara memo, xhich if not 
In tho handa o£ tho 3EC: It follows the 1770 A^new tneetlnj »ad 
0Ujno>t* that Xlelniianat la tha koy raan to pre^iura McLarai^ 
* Implying that tha Ylco President would inplj-neot tola actio** 

T/e belloNg that all copies ol this have been destroyed. - . 

2* Tbore is a Klain to Haldamao memo dated Juno 30, 1971 which 
of course procedes tha data of the ITT sottlemant, setting forth 
tha $400, 000 arrangement with ITT. Copies were addreasad to 
, Magrudor. N'itchoil and Tlnunons. This memo put tha AO on 
. canstructlve notice at least of the ITT commitment at that tlma 
.' '/nnd bn/oro the aettlameot, facts which he hasdeoied under oath, 
".Vo don't kaow v/hothar wo havs recovered :\ll tha copies. If 
l:nowT», this v/;iuld bs conjlderably more damar^ln^ than Xlleneka'a 
atatcmont. f.'ajrudsr boliavcs it ia possible, thb AG transmitted 
his copy to Maqruder. Magrudor doesn't Ivavo tho copy he rocaived) 
ho only has a '^vrox of the copy. In short, despite a search this 
mwmo could 'm9 lying arouod aaywharo at llQlJit 



1409 



PAGE 130 



3a TJ9 Juultco Dopartrjiont hos thu« lyt ro^tatod a request for their 

(llerf, altooa^L tbelr £(lo« wcro op«aod Xti llobert Ilarrunoad, oii« 
of Turiocr's dopuiku* aad a hold-ov«r v/ho It now a practiclag 
D^mocr.^U= lawyx;r In V« nahioQton. HAmmond hod Mccraa to aovor») 
momoa (hat could ba ombaraaalog. Whether ha kept them or not 
l9 unkiic"-»n, but it \i probublo that hs r^calU tborru Ona Is x mama 
o/ Anrll 1969 fr-)m Ixlolodioost and McLaren to ESrllcbniaa rf*poa»' 
din': Xo MX Zlirllchmaa r<^aofll v^th respect ot th« r^ttoiulo for 
/^ biioglng tho caa« 3i;ial:ut ITT In tho first pUco. 'laaro la « 
jubjequ^nt 7\prll 1970 niomo from Hullio to ?<{cLar<».i staking 
ttvtt /^hrllchmoo had dlacuaxed hla mooting >vlth Cencoa vith 
Cu9 AG, and ouptgootln'j to McLaroD tbat ^UtchoU could glvs 
..<cL.-ir«a "mora n^cLilad (xuldaocc". Thero K% <%aot!^ccmTtamo 
qI JeptATnbir 1970 from llLirUciunjia to tho AG reiarring to aa 
".lad^raUuidloij" with Concoa and comnlaioloQ of McLaron'* 
actions. Tboro ia a T.Ia/ 5, 1971 momo from Chrllchman to 
th» AG oUudlng to dlscuaalooa botwoantho Praoldeat and tho 
y\Q a« to tho "asrood upon ondo" in tho reaolutloa of tba ITT 
caso and aaklag tho AC 'xrhothor Ehrllchmaaeboald tvork dlrcctlf 
with McLoroa or through MltchoLL Thore Is alao a memo to 
' th* Prealdonk In tho sam« tlmo porlod. V/a know wo havo control 
of &n tho copto* of this, but wo don't havo control of tho orijlnal 
£!u*l^hmaa Tnorao t? who AG. Ttila cnomo woalj ooco ojain ccntxs* 
tllel ^(ltcholl'9 tootinaony and rooro Importantljr dlroctly iavol-ro 
iStf 7r'?oldonl. V/o bcliovo wo havo abooloto oecurity on thls/llo 
xvUhIo Jiutlcoy provided oo coploo woro naado within Justice oad 
provided tboro aro no lea'<c3. Wo havo no Idea of tho dlatrlbaUon 
tUakt'^k place tvltlUA Justlco. 

4« ? Itrriana'a tooktmoof will of oaceevttT larrolvo dlrock coataci with 
Jacll Cloaooo, I cao^t boUovo that aftor Mcnrlam'a tookimoaf* 
,G1mi«^ viU Ro*.^ callod aa a witBoso.. 



1410 



PaGF 131 



RINCOOtD HART .•••!•< 
lOMN J CARHODr ,»ai I 
OHN J WILSON 
lARRV L RTAN JR 
JO V MORGAN jn 
rilAHK H aiRICKlLR 
WItllAM C ROLIOW 
UMARir C( J S' 1 1 I ' 
JOHN J. CARMODf JN 
' JAMCS rOWARO AK.AI 
nrvlH W. CARMO.- 1 



law offices 

Whitepord. Hart, Gahmodt 8c Wilson 

sis fifteenth street. northwest 

washington o. c. 2000s 



■August 10, 1973 



CABLE ADDRCaS . i 

WMITCHART WASHINOTON 



MANVi.ANC > 

•rvMsai 

TCLEPHOMC 



1301I »»-» a3s« .""iw *•■ 



OI^NALO L 



The Honorable Sam J. Ervin, Jr. 

Chairman 

Senate Select Committee on 

Presidential Campaign Activities 
united States Senate 
New Senate Office Building, G308 
Mteshington, D. C. 20510 



m 



J^M 



Ottar 3enator Ervin: 



After Mr. Haldeinan finished his testimony I had. 
a further discussion with him concerning details of his 
receipt and return of the President's tapes in July of this 
year. Mr. Haldeman has asked me to advise the Select Coramitee 
of the following details. 

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. Hald^man 
in a case at the residence of Larry Higby. Mr, Bull was on his 
way ham vfhen delivery was made. Mr. Halderaan took them to his .'■ 
residence later that evening and played the full tape of th^ ,<••:'.. 
Sapteniber 15 meeting. He did not play the telephone tapes.' '* ^ ^ 
After listening to ^le tape, he placed the tapes and the ma(!hine ' 
in the case and left same in his closet. 



The next morning, July 11, 1973, Steve Bull delivered*:-, 
tapes of the President's meetings with Dean on three other dates.(^f 
Mr. Halieman is not sure what the other dates were. He also 
believes he vias given nomc telephone tapes, fi>r at least som^ of 
the same dates. Mr. Dull rielivered these items in a manila 
•nvelope to the office Mr. Haldeman %*a8 using in the Executive 
Office Building. Mr. Haldeman took those tapes but, as he 



1411 



r\ 



PAGE 132 



Writekhid, Uabt, Caumouy tit Wilson 



- t - 



•xplained during the hearing, he did not Listen to any of them; 

On July 12, 1973, Mr. Haldeman put the tapes in 
the manila envelope into the case with the machine and other 
tapes and returned the vrhole package to Steve Bull, *i»iO he 
thinks picked up the case at the Executive Office Building. •• ; 

I have discussed this natter with Mr. Pred D. • 
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 aore fonsal subadttali 
please let me know. ^;*> >' 



Respectfully yours. 
Prank H. Stricklar 



«c Boi}. Howard H. Baker, Jr. 

Hon. Heraan E. Talnadge 

Hon. Daniel K. Inouya 

; Bon. Joaeph M. Nontoya 

Bon. Edward J. Gumey 

Bon. Lowell P. l«Bicker, Jr. 




Bon. Saoual Dash 
Bon. Prad D. Thoa^mon 



1412 

PAbb 133 

THE WHITE HOUSE 

WASHrNGTON 

July 30, 1973 



Dear Mr. Wilson: 

This concerns your inquiry as to the extent of the President's 
waivpr of executive privilege with regard to the testimony of 
Mr. Ilaldoman before the Senate Select Connmittee on Presidential 
Campaign Activities. Your inquiry was directed to Mr« Haldeman's 
knowledge of the contents of tape recordings of conversation! 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 or 
portions of meetings which he did not attend, but of which he 
learned solely by listening to a t ape rec ording of such meeting, 
the President has requested that you inform the Committee that 
Mr. Haldem an has been instructed by the President to decline to 
te stify to such rn atters, and that the President, in so instructing 
Mr. Haldeman, is doing so pursuant to the constitutional doctrine 
of separation of powe rs. 



Sincerely, 



/B, FRED 



V^.. V. .,-1^ 



BUZHARDT 
Special Counsel to the President 



Mr. John Wilson 

Whlteford, Hart.Carmody b Wilson 
815 Fifteenth Street, N. W. 
Waahingtdn, D. C. 20005 



1413 

PAGF ]3k 



93d congress 

IST SeSSIOIT 



S. RES, 194 



IN THE SENATE OF THE UNITED STATES " 

November 2, 197S 
Mr. Ehv™, (for himself, Mr. Baker, Mr. Gurnet, Mr. Inoutie, Mr. Montota, 
Mt. Talkadoe, and Mr. Weicker) submitted the following resolution- 
which was ordered to be placed on the calendar 

NOVI ^IBER 7,1973 

* Cbnsiderwl and agreed to ''. 



RESOLUTION 

Relating to S. Res. 60. 

1 Resolved, That— 

2 Section 1. By S. Res. 60, Ninety-third Congress, fir^t 

3 session (1973), secHon 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 m 1972 and is therefore a person whose activities the select 

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



V 



1414 

PAGE 135 

2 

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

2 on July 23, 1973, of two subpenas duces tecum tx) the Prcs- 

3 ident ipr the production of tapes and other materials was 

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

i' 

5 hereby approves and ratifies the committee's issuance of 

6 these subpenas. 

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

8 members instituted salt 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 Coiirt of Appeals for the 

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

14 tion. It is the sense of the Senate tliat 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 . proviaons- of section 6(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 Sbc. 3. The select committee and its members, by issuing 

25 subpenas to the President and instituting and pursuing litiga- 



1415 

PAGE 136 

1 tion to achieve compliance 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 idential campaign and election of 1972 by officers or 

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

6 emment 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. 



1416 



PAGE 137 



?UGl!CU\vV93-190 



^inetg'ihirfl Conjgress of the mnite j States of america 

AT THE FIRST SESSION I 

Begun and h^i at the Gty of TTasJungton an JFednesday, A» third day oj Janxuuy^ 
one thousand nine hundred and seventy-Aree 



3n2lct 

Tto confer JnrlsdlcUoiT opon Uie district conrt of the Onltc4 Bute* of ccrlala 
dTfl mcHom brouebt by the Semite Sdeet Committee ob PiesldeBtlal Campolga 
AcflTltiea, mud for other porpoaeiL 

Be it enacted by the Senate and Houte of RepreeeiUatitet of tht 
United States of America tn Concrete a*»embled. That (a) tlie IKstrici 
Court of the United States for the District of Columbia shall have 
original jurisdiction, trithout regard to the sum or ralue of the matter 
in controversy, of any civil action heretofore or hereafter hroneht by 
the Senate Select Committee on Presidential Campugn Activities, 
n-hich was created on Februaij 7, 197S, 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 berore the said 
Committee of any information, documents, taped recordings, or other 
materinls relevant to matters the snid Committee is auuiorized to 
investigate, and the said District Court shall have jurisdiction to enter 
any such judgment or decree in anv such civil action as may be neoes- 
sarv or appropriate to enforce o&edience to any snch subpoena or 
order. 

(b) The Senate Select Committee on Preadential 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 acdon heretofore or hereafter brought 
bv said Committee to enforce or secure a dedarmtion concerning the 
validity of any subpoena or order heretofore or hereafter issued by 
said Committ^ to the Preddent or Vice Preadent or anv other officer 
of the United States or any officer or employee of any department of 
the United States to procure the production before the saia 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 
dvil action as may be necessary or appropriate to enforce any sodt 
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 under tUsAfiL 






cifZi^CLe^^.,y;t 



Speaker of the House of RepretentativeM. 

y*c»^resiinx*~of-Hf-eiated^lattrvJt* L 

President of the Senate.'C/Ld 



//A-^fZA'O^ 



1417 

■-' ■ '- .•■ PAGE 138 

53mt^S §>icii$B (E^txtt nJ Sippi^nla 



FOR THE OISTSICT OF COLUMBIA CIRCUIT 



No. 73-2086 September Term, 1973 

civil Action 1593-73 
Senate Select Comraittee on Presidential z- 

'Campaign Activities, suing in its own ■ _ ^^ • '"'•~T>-l3 

name I and in the name of the United States, IJniled Sla'lcS GOufl Ci r.;JlJ^-'- 

et al . , for I'iis Chinch ci Cc'.--; : t..--'^ 

^PP^^^-*^^ rj^£0 DEC2 81S73 

Richard M. Nixon, Individually and as riU'^' j_pj,^ 

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 en banc and of 
the responsive pleadings filed with respect thereto, it is 

ORDERED by the Court, £n 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 



1418 



PAGE 139 



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, 



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 Conmittee 
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. 73-19-2, 
73-1967, 73-1989, at 28-33 (D.C. Cir. Oct. 12, 1973), decided 
subsequent to the letteis 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, wif' regard 
to those portions as to which the privilege is still asserted. 
If any, the factual ground or grouids for his determination that 



1419 

PAGE HO 



-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. 



ITED STATES DISTRICT JUDGE 



January 25, 1974. 



1420 



r^-^ PAGE HI 



Exhibit C 

UNITED STATES OF AMERICA i .*-QQ>.7Q 
CONGRESS OF THE UNITED STATES 

SUBPOENA DUCES TECUM -— <-..»wi 

AUG 91973 
^AMES 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 theii.- 
committee room, 318, Old Senate Office Building, the following: 

Any and all original electronic tapes and recorded telephone 
messages of the belcw listed conversations or oral communications, 
telephonic or personal, between President Nixon and John Wesley 
Dean JII, discussing alleged criznii;al acts occur ing 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 payments made to the defendants and/or their attorneys relating to the 
above incidents at the dates and times of the attached list of conversations: 



1421 

/ 



September 15, 1972 (personal) 5:27 p.m. to 6d7 p.m, 

^^^■^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 vvdil answer your default under tha 
paine and penalties in such cases ma.da and provided. 

To P^rf^. S L . T^rl r^ / < ~f <^ /^J ■il^\fi^ V '\'. / : -A-y x/^^ 

to serve and return. f^. 

Given under my hand, by order of the 
.comrrxittee, this 23rd day of July, in the 
year of our Lord on© thousand nine hundred 
•;* ,-'t''- and eeventy-threei- 



Chairman, Senate Select Committee on 
Presidential Campaign Activites 



34-966 O - 74 - pt. 2-14 



1422 



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1423 



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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. 



1424 

,-, PaGF 145 

^3 



Exhibit C 
UNITED STATES OF AMERICA 



193-73 

CONGRESS OF THE UNITED STATES 

SUBPOENA DUCES TECUM ^^ " - *--.C<'z.M 

AUG 91973 

To: President Richard M. Nixon. The White House. Washi^^S. d!^ C^/^' ^M 

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 JII, discussing alleged crimir^l acts occur ing 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 
J^^ay 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 payments made to the defendants and/or their attorneys relating to the 
above incidents at the dates and times of the attached list of conversations: 



1425 



PAGE ]k6 



- r r. 



\r^s>^^- 



September 15. 1972 (personal) 5:27 p.m. to 6:17 p.m. 

-I^bruary 28. 1973 (personal) 9:12 a.m. to 10:23 a.m. 

Marchl3. 1973 (personal) 12:42 p. m. to 2:00 p.m. 

Match 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 

pains and penalties in such cases made" and provided^^^ ,,,"/..,,- 

To \\\\\V>-o — i= '." ^ ' ' ' '- ' " . J' 

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 i- 



^Z>g>^^3--. ^A-^' 



■chnTman. Senate SelectCommittee or. 
Presidential Campaign Activites 



1426 



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^v;,,. .../-.v ...;>/ .i..r-.i-. '-^y J 










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(^y.^.„^-^-^v^=^ ^^-^%^ 



•;'/ .'-vli'" r^i!!5*.t >. 



1427 



PAGE H8 ■ 



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, ET AL. , 

Plaintiffs, 



RICHARD M. NIXON, INDIVIDUALLY AND 
AS PRESIDENT OF THE UNITED STATES, 

Defendant. 

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 the .ein. 
The subpoena is accordingly quashed and the Committee's pray- .- 
for its enforcement denied. 

SO ORDERED. 
Tanuarv 25. 1974. 



UNITED STATES DIST CT JUDGE 



1428 



. ■ Exhibit 

\ ^ 1593-73 

■ ' UNITED STATES OF AMERICA 

CONQRESS OF THE UNITED S T A T EsJ^lll 12^ E . D. 
SUBPOENA DUCES TECUM AUG 91973 

UAMES t DAVEY. Clerk 

To: President Richard M. Nixon, The White House, Washington, D. C. 

P ur ouant 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 records, or copies of records including but not 
linnited to, documents, logs, records, memoranda, correspondence, 
news summaries, datebooks, notebooks, photography, 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 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 Inrvmunity and payments made to the defendants 
and/or their attorneys relating to the above stated matters, . 



1429 

PAGE 15( 



i: ..n.'- 



Hereof fail not, as you will answer your default ur.der 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 
hundred and seventy-three 



Chairman, Senate Select Corri'mi.i.-tee Oi-. 
Presidential Campaign Activites. 



"Buchanan, Patrick J; 

Butterfiold, Alexander P^ 

Campbell, Jolin 

Caulfield, Jack 

ChapLn, D wight " . 

Colson, Charles 

Dean, John 

Ehrlichman, John 

Fielding, Fred 

Haldeman, H. Robert 

Higby, Larry 
Howard, Richard 
Hunt, E/' Howard 
Kehrli, Bruce 
Xrogh-, Egil • : 
IaRuc, Frederick 
Liddy, G,*i Gordon i 

Magruder, Jeb. Stuart 



1430 

"■■ PhGT 151 



XitcheU, John 
I^ooro, Richard A. 
Shumway, DeVan 
Strachan, Gordon 
Timmons, WUljam 
Young, David 
Ziogler, Ron 



1431 

PAG^- 152 



1432 

PAGE 153 



•JL4J &>»<.'• y. I W U'*"^''^ '/ 



1. ^ • "^ J Ci 



^ — ^ — ^ — — ' — "-^ 



1433 



PAGE 154 



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



SENATE SELECT COM.MITTEE ON 
PRESIDENTIAL CAiMPAIGN 
ACTIVITIES, SUING IN ITS 
Oh'N NAME AND IN THE NAJ-IE OF 
THE UNITED STATES, et al.. 

Plaintiffs, 



RICHARD M. NIXON, INDIVIDU- 
ALLY AND AS PRESIDENT OF THE 
UNITED STATES, 



Defendant. 



Civil Action No. 1593-73 



MEMORANDU M OF THE SPEC IAL 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- 
nittee on Presidential Campaign Activities for five record- 
ings of Presidential conversations] would, in his opinion, 
be likely to have upon pending criminal (,m::os or iijiincnt 
indictments under his supr .vision, " 

BACKGROUND 



The grand jury empanelled in the District of Columbia 
on June 5, 1972, has been investigating the so-called V/ater- 
gate break- in and cover-up for more than nineteen months. 
This i.-.vestigation already has resulted in pleas of guilty 
by three persons — John W. Dean III, Frederick LaRue and 
Jcb Stuart Magruder — to one-count informations charging a 



1434 



Page 155 



conspiracy to obstruct justice and defraud the United States 
in violation of 18 U.S.C. 371. A fourth person --•- Kcrbort 
Porter — has pleaded guilty tc 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 io ihe June 
1972 Grand Jury, in violation of 18 U.S.C. 1623. 

The Special Prosecutor expects that the June 1972 Grand 
Jiixy will complete its investigation and return ;aiy indict- 
ments prior to March 1974. Based upon the public testimony 
of those individuals who have pleaded guilty, as well as 
other testim.ony before tlie Senate Select Conmittee on Presi- 
dential Caiiipaign Activities, it is only reasonable to assume, 
as the Court implicitly recognizes in its Order, that indict- 

y 

ments in fact will be forthcoming. 

In this regard, we should advise the Court that four of 
the recordings subject to the Senate Select Coirjtiittee 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 uphold by 
the Court of Appeals. Nixon v. Siri ca, No. 73--1962 (D.C. 
Cir. October 12, 1973). These recordir.cgs v/ill be important 



1/ The Special Prosecutor, who is charged with investi- 
gating "allegations involving the President, members of the 
VThite 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 ^«bove, 
it is expected that these grand juries also will return in- 
dictments in the near future. 



- 2 



1435 

Page \s(> 



and rraterial evidence at any future trials rnsulti.ng from 
the grand jury's investigations, a factor that must be taker, 
into account in assessing the effect of compliance with the 
Senate Select Conanittee subpoena. 

STA TEMENT 

The rnprcm'e Court has describ(;d i he right to a fair 
trial as "tlie i.iost fundamental of all f roci'^r ns" v/hii.-h "i.wi.st 
be maintained at all cents." 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 defendants a fair trial, repeatedly has sought 
to prevent or minimize improper, unwarranted or inf l:'i:r.'.atory 
pre-trial pviblroity. It is thus incr.K-'ltiont on the Special 
Prosecutor to inform the Court thi-.t, in his judgment, com- 
pliance with the Senate Select Coiuiitcce M'l.noi'na .'.lid s>ibse- 
i^uont airing of the recordings during hearings of the Co.mit- 
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 require the exclusion of the bro?.dc.i;;t nedia v/Iien t-he 
v;itnesses testified or might require that '.ho v.itnor.^'^s testify 
in executive session. See "Memorandum on j;ohalf of the Special 
Prosecutor on Application for Orders Conferring Trrrunity'" , 
Ap plication of L'nited States Senate Select Co rrinittee on Pr esi- 
cf>- ;ntial CanF/i(,i n Activitie s, 'j6l .-■. "Supp. 127 (D.D.C. 19737. 
Si-milarly"^ tne Special Pre .Gcutor opposed the request of the 
DeiTiocratic National Committee for access to grand jury mate- 
rials and investigatory files in connection v/ith its civil 
action arising out of the V.'atergate break-in, and suggested 
the sealing of any depositions taken of key Watergate finiires. 
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 Documents and for Leave to 
Depose Persons in Prison", Democratic National Comjnittee v. 
McCord , Civ. No. 1233-72 (D.D.C.) . 

In addition, the Special Prosecutor has asked that the 
Senate Select Corrjnittee defer filing any fact-finding report 
until after the pertinent indictments and trials. 



- 3 - 



1436 

PaGF 157 



with more force than presently available that widespread pre- 
trial p\-.blicity prevents the Government from empanelling an 
unbiased jury lor the trial of the offenises charged, particu- 
larly if cf>mpliance comes wliile i.he dcf(jnJants are actually 

y 

under indictment. See, e.g,. , Delancy v. United States , 199 
F.2d 107 (1st Cir. 1952). 

But \--\\o. n.xjstence of pre-trial publicity, even wide- 
spread publicity, doea not srpport, i^pso f.icto, 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 hut with the assessment of its nature." Silverthorne 
V. nniti\d filiates, 400 F.2d 627, 631 (9th Cir. 1963), cert, 
denied, 400 U.S. 1022 (1971). At this time it is i. possible 
to assess the precise impact of cu(.;h pi.-bTi'city on forthcoming 
trials, but the following factors should !^e 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 Corrjnittee subpoena is valid and en- 
forceable, it might be appropriate for the Court to consider 
iii-^posing reasonable conditions on the use of the recordings 
or sGi uring 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" v/hich pre-trial publicity 



3/ As indicated above, the Special Prosecutor expects 
that Tncictments will be returned during February. Even if 
this Court enforces the Senate Select Comjiiittee ' s subpoena, 
it can 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 - 



1437 



PAGE 158 



may inject into criminal proceedings. Shepp ard 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 dir;cretion • — ti\ibject only to limitations 
of the ncparal.ion of i^^ov/ers — to protect fundamental consti- 
tutional interests. Cf . Krippendorf v. Hyde , 110 U.S. 276, 

I 
283 (1884) . On the ::oparation of powers issue, ;-,c:e generally 

Doe V. McMillan, 93 S. Ct. 2018 (1973) ; Powell v. McCqrmack, 

395 U.S. 486 (1969). But cf. App lication of Unite d States 

S enate Select Committee on Presidential C am paig n Ac tivi ties, 

supra . 

Second, any publicity stemming from compliance with the 
subpoenas v;ould add only marginally to previous publicity. 
In addition, the publicity, as all prior publicity, will be 
largely factual. It ivast be rnnu m.bGrnd , the issue prmented 
to the courts is not whether a proiii:r.ctive juror is ig)-:Orant 
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. Ma xwell , 
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 



34-966 O - 74 - pt. 2-15 



1438 



PAGE 159 



respect to the subpoenaed tapes, hownver, the tapes constitute 
"the best evidence of the conversations available." Nixon v. 
Sirica, supra (slip op. at 32) . See also United States v. 
V.lnM-.e, 401 U.S. 745, 753 (1971). 

We (ire confident that notwithstanding prior publicity, 
if jurors are selected with the care required by the decisions 
in this Circuit, all defendants v/ill rccoivc a fair .'nd prompt 
trial. Against this background, the Special Prosecutor can 
say no nore than that compliance with the subpoena might pro- 
vide prospective defendants v;ith one iiiore discrete incident 
to cite in s'lpport of a claim of prejudicial pro-Lrial pub- 
licity. Accordingly, we take no position on whether the 
Court, if the Senate Select Convmittce subpoena is otherwise 

enforceable, should consider the di'.nqc^r of prejudicial pre- 

1/ 
trial publicity a decisive factor. 

Finally, if the Court decides to direct coiiipliance with 

the Committee's subpoena, the Special Prosecutor suggests 

that compliance be limited specifically to delivery of copies, 

5/ 
and not the original recordings. As indicated above, the 



4/ 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 
Prococutor in this case" (i^lip op. at 30) . This "uniquely 
pov;erful 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 haT>e 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, v/hich were subpoenaed 
by the grand jury, are now in the custody of the District Court, 
pursuant to .the request of Chief Judge Sirica. The White 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 - 



1439 

Page 160 



Special Prosecutor intends to introduce these roccjrdings in 
evidence at any future trials and, thus, it is ODst ntial to 
iiiaintain, insofar as possible, the auLln-nin'city and integrity 
of I lie original renoL-d.ings. Delivery of the originals, at a 
niiniiiAMii, v/uuld create cvidcMiti.iry probleiTis, including proof 

of the chain of custody. Also, since each reel of tape in- 

I 

cludns f33x hours of recording, far i.-.ore than those portions 

siiljjcut to the subpoena, delivery of the original -.ould neces- 
sitate ex(jising all non-subpoenaed portions from l.he original, 
'Chi s v.ould create obvious evidentiary problems. Kx.iui; copies 
of the subpoenaed portions, on the other hand, would satisfy 
ffully the needs of the Senate Select Ccrnmittee. 

The foregoing stateh'ent is filed for whatever nssi:;t^nce 
it may furnish to the Court. 

Respectfully submitted. 



LEOlTjAV.OirSKI 
Special Prosecutor 



:f^-^5-l,•-'^<-f.^- 



DATED: February 6, 1974 



PHILIP A.-LACOVAAA 
Counsel to the .';j.^.:oial 
Prosecutor 



PKTER M. KREINDLER 
Executive Assistant to 
the Special Prosecutor 

Watergate Special Proaocution Force 
1'125 K Street, N. W. 
VJashington, D. C. 20005 

Attorneys for the United States 



- 7 - 



1440 



PAGE 161 



THE WHITE HOUSE 

WAS H I N GTO N 



February 6, 1974 



Dear Judge Gosell: 



Re Senate Select CouMnittce ct al. v. 
Civil Action No. l'393-73 



I enclose hercv-zith the President's response to your order of 
January 25, 1974, in (he above entitled proceeding. 

I havo received a copy of the iaernornndnm of the Special 
Pro:j«":utor in vv'hich he states that four of the recordings 
desci-ibcd in the Senate Select Committee inibpoena were 
received pnirsnajit to the Special Proi^ecutor's ,s\!bpo>Mia. 

I believe your Hoicor should also be aware that tlie t'Ctli 
recording was requested of White House Counsel by the 
Special Prosecutor and was furnished him. for the purpose 
subinitting the same to the Grand Jury. 



VeryTrbly yours. 




^^'^^^^ 




ames D. St. Clair 
Special Coansel 
to the President 



Honorable Gerhard Gesell 
United States Courthouse 
Washington, D. C. 20001 

CC: Honorable T.r.on Jaworski 



1441 

- PAdL-iG.!. 



THE WHITE HOUSE 
'.VASillXG lON 

i-'obrna/.y 6, .1974 



n;-ar JiKt.ga Gesell: 

I have bcoa advised by Special Counsel to the 
?:cesident of the order issued by you on January 
25 f 1974, in which you nolicited my personal re- 
sponse with iro-ToroTK^e to five rr^rcxfied taped 
«x>nvr'i-sations. 

-s i'j'lif.p.: cd in uhe various briefs, pleadings and 
oLnor parcxs filed in this proceeding, it is my 
bslii.^f that the issue before this Court constitutes 
a i^nn- justiciable political question. 

7Ievt:.i.t.iir^T OSS, out of respect for this Conxt, init 
"svi; ••out in any v^ay depa;.. ting from my view that the 
issues pircosonted here are inappropriate for reso- 
lution by the Judicial Branch, I have y^^.^xC^Q a 
determination that the entirety of the five re- 
cordings of Presidential conversatio'is ("'.■^.'■.(-•rribod 
on the subpoena issued by the Son;^t.e '.'. ■•■'.ect Con- 
mittea on Presidential Caropaign ?-vc!:iviI" i.c-s (.c^at'ins 
privj.lcgod (;o"i':iunical;ions , the fli5=c'' osm i.e of v.-'i'ch 
"•'on''d ]v.r'c b;:; in the 'lai-ional :" a>!;.---r(:st . 

"C .ii ;-.. ■■",•* ig i:his position for two primary jreasons. 
i:'|j;st, the Senate Select Committee has made kno\-aa 
its intention to make these materials public. Un- 
like the secret use of four out of five of these 
conversations before the grand ju:cy, the publication 
of all of these tapes to the world at large would 
seriously infringe upon the principle of coufi- 
dontiality, v/hich is vital to the performance of 
my Constitutional responsibilities as President. 

Second, it is incumbent upon me to bo 'aasitivo 
to the possible c •-! verse effects vpoa • '^^^^'ig • ""^ 
forthcoming c'r-^r.i;ial proc-ocli :>Tj.s '.ip/iid l.ia ' .-^a • 
trnts of i-'-i-o :;\:bi.oenaod coavo'.i.'al.iriiis h^'^ ir.r-.de 
public at ,in inappropx-iate tiine. The utJiUjors ' 



1442 



PAGE 163 

-2- 



connected with excessive pre-trial publicity are as 
v/ell-known to this Court as they are to me. Conse- 
quently, iiiy Constitutional mandate to see that the 
Taws are faithfully oxecutcjd rcquiios rriy prohibiting 
the disclosure of any of those rnator.ials at 1 his 
time L3nd in this forum. 



Sincerely, 




'J.'he Honorable Gerhard A. Cesell 

JiH"!<je 

U. S. District Court 

for the District of Columbia 
\'hy s h i ng ton , D . C . 



1443 

' PAGE 164 



IN THE UKITKD STATES I.'ISTR CX COURT 
FOR THE DISTRICT OF CCLUMSIA 



SKr-'ATE Sl'LECT COMMITTEE ON ) 

ITvESIUEKTlAL C/\iMPAIGW ACTIVITIES, ) 
ET AL. . ) 

) 
Plaintiffs, ) 

) 
V. ) Civil Act 1. on I-!c 

) 
RICHARD H. WIXON, individually ) 
and as President of the United ) 
States, ) 

) 
Defendant. ) 



MEMOPJ^NDUM AND ORDER 

The Senate Select Committee on Presidential Caiiipaigii 
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 Ccmniittee's functions and are identified by date 
and time. The Coxdnittee duly served a subpoena duces t:ecum 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 o\r.\ 
enforcement procedures inappropriate, the Committee souj!,ht 
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 prescntrd for j-.Hicial 
contide-L-aiiion. The Committee seeks a declaratory juc^^.rv.a-.it 
clarifying it.s rigrits and f-in affirmative .injunction d'iroctr'np, 
coinp] iancj •.■!L\:\: Lhc subpoena. 

The Co-;; LftPG has moved fnr Ki.'"U:V3i-y j'Kl;;^nrnt r:-<'l 
'■.he Vy<\L.\.:l:i\t . th).c i-li his . oi. .sel , ;:e;,isr:;, r.n] asl;t. i '.y cl:^.. ; J r^:^'- ' 



■J 'J!ir C ; -.f^c Gri;>,inaj.l >.~.i;ed t-,vo ':ubp-;^>i;!': due;.'.; "Cviu-..!, 
: ii.'i -.It o'i 'r.hr^ scc' ibpoc-'.;'. v.i'j (;.tn~-.'-il >iy tlu.; C-'-u.-' 



1444 

I PAGE 165 

-2- 

On the b.Tsis 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 decermined 

chat 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 

A87 F.2d 700 
in Nixon v. Sirica , Nos. 73-1962, 73-1967, 73-1989y(D.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, 

tfie Court requested the Watergate Special Prosecutor to indicate 

what effect, if any, public disclosure of the subpoenaed tapes 

by the Cominittee at this juncture v.'ould have on his 

i espofi.s ibilities- in carrying forward criminal piosC' .'Lions. 

The Court also requested the President to particulci ' ..> and to 

update his claim of pr.ivilcge as it relates to the tapes, 

.'iirce si;b<3tantial time and many events have intervc- since 

the origiu.nl issuance of the subpoena. The Presic! .-; respons- 

!.'! a' tacjlicd . V,-.c CcnOTii.rtcr: h.if. alno clabt).;at.ed i.-. i:s nci-.A 

':>r [.ho Lapc; In rfctv.itily filed j'.'iiio.vs . The Co'i cirrfi;. I'l.;" 



1445 

PAGE 166 



wt-ijihetl these conn i.e. cing a-sscrtioni; of pulilic interest in the 
lij-.hl". of the ra^pectivc rc;quircnientG of tlie parties. 

It has not been dcmoniitratod to the Court's 
satisfaction that the Committee has a pressing nocd for the 
subpoenaed tapes or that further public hearings befoi-a the 
Committee concerning the content of those tapes v/ill 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 
Pre.";idential 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 arc considered in a dignified manmi; .-ind dealt vith in 
accordance v-'itli established ccist J tution-^^1 ])rocesses. Tiie 
President, the Congress and tht- Co'jrtK e-ich have a mutual and 
concurrent oblig;jti:;in to proscrvr; the i."tcjriL:y of thi. cr:.minv~l 
trials arising out cf V.'atcrgr, Lo . Thr; pu'iTJc h-is hj( , i;r,b joctr-^il 
to a mass of information that is both conriicuing a:v v. certain 
in its ini]' ritioiiS. Clearly th.'j public IncevesU dt s tliat th.; 



1446 



PAGE 167 



charges and countercharges engondorecl bc> proiiptly 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 constitution.il mandate to see 
that the laws are faithfully executed and should therefore 
quite properly be concerned with the dangers inherent in exce-isive 
pretrial publicity. That the President hinisclf may be- under 
su.-spicion does not niter t!iis fact, for he no loss than any 
other citizen is entitled to fair treatment and the pre.suraption 



*l A sweeping subpoena seeking some 500 items has apparently 
Ueen served on the President more recently, but it has not 
been brouj;bt into this liti.-,.',nti.on. 



1447 



PAGE 168 



of innocence. The public interest does not require thnt the 
President should be forced to provide evidence, already in 
the hands of an active and independent prof^ecution force, to 
a Senate conunittee 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 forthcoaiing, 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 Pi-esident has invoked neither his Fifth 
Amendment nor his attorney-client privilege v;ith regard to any 
i.)f the conversatio.ic or related niatcri.iJs he hns furnished. 
To suggest that at this juncfrrc the public intorf-r. -oquires 
pretrial disclosure of thfpe tapes tiiiier to Ltio C'. . 'tec or 
to the public is to imply that the judicial proces.'. ..;s not been 
or will not be effective in this i'..atter. All of tl. . evidence 
fit hand is to the ro.itrary. 



1448 

PAGE 169 
-6- 

The Coni.'nittee' s role as a "Grand Inquest" into 
ftoverninental misconduct is limited, for it may only proceed in 
aid of Congress' legislative function. The Corrrnittec bar,, of 
course, ably served that function over the last several r.ionths, 
but surely the time has come to question whether it is in the 
public interest for the criminal investigative aspticts 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 th-it facts surrounding allegations of criminal conduct 
sliould be develrpcd in an orderly fachion during adversary 
proceedings before neutral fact findctrs, so that not only the 
truth but the vhole truth e-.ergcs and the rights of those 
involved zre fully protected. 

Accordingly, the Courc decl =1 cs tV.'ji:. v.'hilc the 
contro^'Or^.y piiisenCi^d is justiciable; tii2 Select CprnmitVce has 

if . ■ 

not t-Gtablishc-i by a preponder.'jirice cjf tho ovi ■'.'.-.:, ck tniit it j.s 



1449 



PAGE 170 



-7- 



entitled at thi;; particular time to an injunction dirc-ctinji 
tne President to comply with its subpoena for chc five tane 
recordings. The application of the President's counsel for 
dismissal of the complaint is granted, and the complaint is 
distnisrcd vjithout prejudice. 
SO ORDERED. 






UNITED ST^iES DISTRICT JUDGE 
February 8, 1974. 



1450 
Tui: wiiiTi: iiorsi: 

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, 1S74, in which you solicited iny 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- justicicible political question. 

Nevertheless, out of respect for this Court, but 
without in any v;ay departing from my view that the 
issues presented here are inappropriate for reso- 
lution by the Judicial Branch, I have made a 
deterniination 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 v;liich 
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 maVe 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 
seriotrsly infringe upon the principle of confi- 
dentiality, which is vital to the performance of 
my Constitutional responsibilities as President. 

Secona , it is incumbent upon m3 to be sensitive 
to tha possible adverse effects upon ongoing and 
f or tl. coning criv.iinal nroceodingr. f:.]!aii.''.d tlv::: con- 
tents of those subpoenaed conversations bo made 
public at an inappropriate time. The dangers 



1451 



P4GE 172 



-2- 



connected v/ith excessive pre-trial publicity are as 
well-hnov/n 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 m.aterials 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. 



1452 



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. GURNERY, 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. 74-1258 



REPLY TO MOTION TO SET EXPEDITED BRIEFING 

AND ARGUMENT SCHEDULE AND SUGGESTION 
THAT HEARING BE EN BANC 

The Appellee, Richard M. Nixon, by his attorneys hereby opposes 

the expedited briefing schedule proposed by the Appellant, Senate 

Committee, for the reasons set forth at length hereafter but 

primarily because the importance of an orderly and complete 



1453 



presentation of the significant Constitutional issues raised in 
this case should not be subordinated to such extreme expedition 
when the need for such haste has not adequately been established. 

Appellee concurs in the suggestion that the hearing in this 
case be en banc. 



On October 17, 1973, Chief Judge John Sirica of the District 
Court dismissed the instant case for lack of jurisdiction. On 
October 19th the Senate Committee filed its notice of appeal. 
Four days later the Senate Committee moved for an expedited 
briefing and argument schedule. On October 25th, appellants 
Avithdrew their request for an expedited briefing and argument 
schedule and represented "their willingness to be governed by 
the normal time schedule provided for by the Federal Rules of 
Appellate Procedure and the general rules of this Court. " The 
appeal was docketed on November 26th, two days before the 
latest day permitted under FRAP 1 1 (a). 

In short, appellants took full advantage of the time period 

permitted under the rules and then, after the enactment of legislation 

purporting to confer juristiction of this dispute upon the District 



-966 O - 14 - pt. 



1454 



Court, they sought to require the President to accede to a 
schedule allowing only one week to respond to their brief. 

This Court, instead of setting any briefing schedule, remanded 
the case to the District Court on December 28, 1973, for further 
proceedings in light of the passage of Public Law 93- 1 90, 28 U. S. C. 
1364. 

After amendnnents to the complaint and answer, and the sub- 
mission of suplementary memoranda by the parties herein and 
the Special Prosecutor, Judge Gerhard Gesell dismissed the 
amended complaint without prejudice. The Senate Committee 
is again before the Court seeking an expedited briefing and argument 
schedule. 

We submit that there is no necessity for shortening the time 
periods set forth under the Federal Rules of Appellate Procedure. 
All of the issues raised in this case have serious Constitutional 
implications. Accordingly, the parties should have the full time 
permitted under the rules to exercise all of their rights and to 
prepare full and complete legal memoranda to assist the Court. 



1455 



Considering the magnitude and innplications of the issues pre- 
sented in this case, the time allowed for preparation should not 
be shortened absent some compelling necessity. 

The plain fact is that there is no compelling need to expedite 
these proceedings. The Senate Committee cites its now ex- 
tended deadline of May 28, 1974, for the submission of its final 
report as its justification for expeditiousness. 

It is submitted that this deadline is, for all practical purposes, 
self-imposed. It has been extended before by the whole Senate 
at the request of the Senate Committee. Furthermore, it has 
been determined that when a subpoena is issued by a Senate 
Committee under Senate authorization, the subpoena should be 
treated as though issued by the full Senate. McGrain v. Daugherty , 
273 U.S. 135, 158(1927). Indeed, it can be said that in the case 
of a Congressional or Senate subpoena, the committee acts as 
the agent of the House or the Senate. Watkins v. United States, 
354 U. S. 178,200-01 (1957). 



1456 



-5- 



When a litigant urges an expedited briefing schedule because 
of a self-inaposed deadline for the submission of a report, and 
it fails to provide any rationale for its self-imposed deadline, 
it should not be permitted to shorten the time permitted for an 
opposing litigant to respond. 

For the foregoing reasons, the Appellant respectfully urges 
that the motion in behalf of an expedited briefing and argument 
schedule be denied. 



Respectfully submitted, 

J. FRED BUZHARDT 
JAMES D. ST. CLAIR 
ROBERT T. ANDREWS 
GEORGE P. WILLIAMS 



Of Counsel Attorneys for the President 

CHARLES ALAN WRIGHT The White House 

RICHARD A. HAUSER Washington, D. C. 20500 

Telephone Number: 456-1414 



1457 



CERTIFICATE OF SERVICE 



I, James St. Clair, hereby certify that on this 28th day of 
February, 1974, I have served the foregoing Reply to Motion 
to Set Eixpedited Briefing And Argument Schedule and Suggestion 
That Hearing Be En Banc 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 



1458 



THE UNITED STATES COURT OF APPEALS) 
FOR THE DISTRICT OF COLUMBIA CIRCUll 



SENATE SELECT COf'TMITTEE 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 



RICHARD M. NIXON, Individually and as 
President of the United States 

Appellee 






No. 71-1258 



APPELLANTS' SUPPLEMENTAL MEMORANDUM IN SUPPORT OP 
EXPEDITED BRIEFING AND ARGUMENT SCHEDULE 

The probable effect of the contention of appellee's counsel 

that this case should proceed on normal course is apparent. As 

appellee's counsel undoubtedly realize, their proposal might result 

in postponing final resolution of this case until after the May 28th 

report filing date established for the Committee by the full Senate. 

Such a result should not be countenanced by this Court. A Committee 

of the United States Senate is entitled to prompt, final resolution 

of a lawsuit that was brought last August and that, as demonstrated 

by S. Res. ig**, has the backing of the entire Senate. The Corrmittee 



-1- 



1459 



-2- 

needs the material in question to prepare its final report and 
meet its lav.'-making and Informing responsibilities, and it should 
be allovjed to fulfill these functions on time. 

The appellee's counsel suggest that the May 28th deadline 
Is not a real one because it is "self-imposed", and they imply 
tliat further extension of this deadline will be possible. (See p-fJ.) 
These conclusions are inaccurate. The extension of the report 
filing date to May 28th, which the Committee reluctantly requested, 
was largely the result of a request by the Special Prosecutor to 
delay the report until well after the announcement of the Watergate 
indictments so that plea bargaining following those indictments 
would not be impaired by the possible Interjection of a pretrial 
publicity defense. Both the Committee and the full Senate, in 
view of the imminent V/atergate prosecutions and the Impeachment 
proceeding, are anxious to end the Committee's role in Watergate. 
It is thus highly unlikely that the Committee v,'ould seek, or that the 
Senate would accede to, an extension of the renort filing date 
past May 28th. 

Appellee's counsel also suggest (p. 2-3) that the appellants' 
request for expedition is at odds with appellants' prior conduct 
before this Court. This is most certainly not the case. When 
previously before this Court on appeal from Judge Sirica's dismissal 
for lack of jurisdiction, appellants withdrew their first request 
for expeditious handling of the appeal because, as they then stated, 
they believed the quickest way to resolve the jurisdictional issue 



1460 



-3- 
was through the enactment of legislation. This course, appellants 
stated, would not only lead to a prompter resolution of the entire 
litigation but would also save considerable judicial time. Surely, 
there Is no inconsistency between that position and the one appel- 
lants now present. Appellants have sought expedition at virtually 
every stage of this litigation. 

Appellee asserts the need for time to brief the Constitu- 
tional issues involved, but many of the controverted issues herein 
were fully briefed below by appellee's counsel. Surely, in this 
circumstance, appellee, with the great resources at his command, can 
file his brief by Monday week. (Appellants' brief vras filed last 
Monday.) His counsel have agreed to expedition in the past in this 
case, and there is no good reason why they cannot meet an expedited 
schedule here, especially since a normal time schedule may deny 
meaningful resolution of this suit to the Committee and the nation. V 

The President has freouently said that it is in the 
national interest that investlpation of the V'atergate affair be 
promptly brought to conclusion, a proposition to which we would 
agree so long as the investigation is thorough and those guilty of 
crimes punished. But the attempt of appellee's counsel to slow 
the progress of this litigation is contrary to his often expressed 
desire to lay the Watergate affair to rest. The result of this 



VThls Court ordered extreme expedition in the Special 
Prosecutor's cases and appellee's counsel were able to meet the 
schedule there imposed. A Committee of the Senate, whose liti- 
gation has the express support of the entire Senate, is likewise 
entitled to expeditious handling of its case. 



1461 



-1- 

attempt might be to prevent final resolution of this suit by delay, 
a result not in the best interest of the nation and one which this 
Court should not accept. 

Respectfully submitted. 



-Sherman- Cohn .-- .^ -■ 
Eugene Gressman 
Jerome A. Barron 

Ivashington, D.C. 
Of Counsel 

Arthur S. Miller 
Chief Consultant 

to the Select Committee 
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 *riSMi.-- -• "" . •• 

Assistant Counsel 
Donald S. Burris 

Assistant Counsel 
V. Dennis Summers 

Assistant Counsel 

United States Senate 
'•'ashington, D.C. 20510 
Telephone Number 225-053r 



March 1, ig?** 



Attorneys for Appellants 



1462 



^:":dfe& ^tal:sj0 (trjitrl 0? !hripmxl^ 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

No. 74-1258 September Term, 5O73 

Seriate Select Committee on Presidential Civil Action 1593"73 
Campaign Activities, suing in its own 
name and" in the name of the United 
States, ot al.. 

Appellants United States Court of Appeals 

for the District of C;li;.T.b:j Circuit 

riLED ^''"^^ "^ '^''• 

Richard M. Nixon, individually and 
as President of the United States HUGH E. KLINE 

CLERK 

Before: Bazelon, Chief Judge; and Wright, McGowan, Leventhal, Robinson, 
KacKinnon and VJilkey, Circuit Judges 

ORDER 

On consideration of Appellants' motion to set expedited briefing 
and argument schedule and suggestion that hearing be en banc , and of 
the responsive pleadings filed with respect thereto, and it appearing 
that under Rule 31(a) of the Federal Rules of Appellate Procedure 
Appellee's brief is due to be filed on or before March 27, 1974, it is 

ORDERED by the Court, en banc , that Appellants' aforesaid motion 
to set expedited briefing schedule is denied. No extensions of time 
for the filing of Appellee's brief will be granted. 

It is FURTHER ORDERED by the Court, en banc , that this case 
will be considered by the Court sitting en banc and argument is 
hereby scheduled for 2:00 p.m. April 17, 1974. 

Per Curiam 

For the Court: 



CM^ 



Hu^h E. Kline 
Clerk 



1463 



THE UNITED STATES COURT OF APPEALS FOR 
TILE DISTRICT OF COLUMBIA CIRCUIT 



SENATE SELECT COMMITTEE ON 

PR h;sidential campa ton 

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 inembers of the 
Senate Select Committee on 
Presidential Campaign Activities 



^E£ 



ellants 



RICHARD M. NIXON, individually and as 
President of the United States 

Appellee 



RECEIVED 

MAR 1 1 1974 

CUhi\ut- IhtuiulED 
STATES COURT ^"^ APPEALS 



No. 74-1258 



MOTION FOR RECONSIDERATION OF DATE SET 
FOR ORAL ARGUMENT 

Appellants hereby move this Court to reconsider the argunnent date 

established by this Court's order of March 7, 1974, and to set oral 

argument in this cause during the week of April 2, 1974. 



1464 



The Court has now directed the President to file his brief on 
March 27 and ruled that argument in this matter will be held 
en banc on April 17. The present motion for reconsideration 
asks that argument be held during the week of April 2. Appellants 
are prepared to file their reply brief on April 2 and suggest that 
argument be held on that date or shortly thereafter during that 
week at the Court's convenience. We fail to see how this request 
can inconvenience appellee who will have the full time allowed 
under the appellate rules to prepare his brief of appellee. 

The schedule now in effect may well mean that this case may not 
be finally resolved before the May 28 date on which the Committee 
must file its final report. It will take this Court some period of 
time to decide this case after the April 17 argument the Court has 
ordered. Moreover, appeal to the Supreme Court after this Court's 
decision is quite possible. It thus appears that, unless every step 
for expedition is taken, this case will languish past May 28. 

The Committee has every intention of filing its report by May 28 
in accordance with its instructions from the Senate. It is highly 
unlikely that the Committee will seek further extension of this date 
or that the Senate would approve an extension. The Committee 



1465 



recognizes the necessity of promptly completing its work, but 
needs the vital information subpoenaed to do so. This Court 
should allow the Committee to meet its nnandate on time and thus 
avoid "needless -friction" with the Congress. Compare, Sanders v. 
McClellan . 150 U.S. App. D. C. 58, 463 F. 2d 894 (1972). 

Because of the urgency of the present request, this motion for 
reconsideration is signed not only by appellants' counsel, but also 
by all seven members of the Select Committee who bring this appeal. 



Respectfully submitted. 




Fred D. TlVsrmpson 
Minority Counsel 



iam-fl y^I^y in, Jr., ChafijTn^ 



Howard H. Baker, Jr. , Vice Chairman 




Daniel K. Inouye 



^ifi^eph M. Montoya / ' y 




1466 

CERTIFICATE OF SERVICE 

I, Samuel Dash, hereby certify that on this 11th day of March, 
1974, I have served the foregoing Motion for Reconsideration 
on counsel for the defendant by causing copies thereof to be 
hand-delivered to their offices. 





Samuel Dash 
Chief Counsel 



1467 

MnxUh ^tai^s Courf 0J Appeals 



FOR THE DISTRICT OF COLUMBIA CIRCUIT 



No. 74-1258 September Term, 19 



73 



Senate Select Committee on Presidential Civil 1593-73 
Campaign Activities, suing in its own 

name and in the name of the United Unifod States Coiift of Ao'^e'r 

States, et al, , far u-j Di:!.-,ct c; Cciinii.i C\;cS,i 

Appellants 

V. fiifg MAK 1 3 ib/^, 

Richard Mo Nixon, individually and HUGH E fCLfNJC" 

as President of the United States clerk 



Before: Bazelon, Chief Judge; and Wright, McGowan, Leventhal, Robinson, 
MacKinnon, and Wilkey, Circuit Judges 



ORDER 



On consideration of Appellants' motion for reconsideration of 
date set for oral argument, it is 

ORDERED by the Court, en banc , that the motion is granted and 
oral argument in the above entitled case is hereby rescheduled for 
Tuesday, April 2, 1974 at 10:00 a.m. in the Court of Appeals 
Courtroom. 

Appellants' reply brief, if any, shall be filed by Noon, 
Monday, April 1, 1974 and need not be printed. 

Per Curiam 

For the Court: 

Hugh E. Kline 
Clerk 

Circuit Judges McGowan and Wilkey voted against Appellants' motion 
for reconsiderationo 



1468 



MmteJt ^f aties Court at App^nla 



FOR THE DISTRICT OF COLUMBIA CIRCUIT 



No. 74-1258 

Senate Select Committee on Presidential 
Campaign Activities, suing in its own 
name and in the name of the United 
States, et al., 

A^qpallzuits 



Richard M. Nixon, individually and 
as President of the United States 



September Term, 1973 

civil Action 1593-73 



Unitod states Court of Appeals 

for t;-.s District c! Cclu.-;:^ Circ.;i 



niED 



MAR 2 lib' 



ORDER 



HUGH E. KUNE 

CLERK 



It is ORDERED, sua sponte , that the Special Prosecutor is 
requested to file an amicus curiae brief on or before March 27, 1974, 
and to be prepared to participate in the oral argument which is 
scheduled for April 2, 1974, if requested. 

For the Court: 



Hu^ Eo Kline 
Clerk 



1469 



No. 74-125f 



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. V7EICKER, 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. 



Appeal from the United States District Court 
for the District of Colvunbia 



AMICUS CURIAE BRIEF OF THE SPECIAL PROSECUTOR 



LEON JAWORSKI 

Special Prosecutor 

PHILIP A. LACOVARA 

Counsel to the Special 
Prosecutor 

PETER M. KREINDLER 

Executive Assistant to 
the Special Prosecutor 

1425 K Street, N. W. 
Washington, D. C. 20005 



34-966 O - 74 - pt. 2-17 



1470 



UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 



No. 74-1258 



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 , 



RICHARD M. NIXON, Individually and as 
President of the United States, 

Appellee. 



AMICUS CURIAE BRIEF OF THE SPECIAL PROSECUTOR 

The Special Prosecutor submits this amicus curiae brief 
pursuant to the order of the Court dated March 21, 1974. Due 
to the short period allowed for filing this brief, the Special 
Prosecutor has not formulated any position v;ith respect to the 



1471 



two constitutional issues presented to the Court — v^hether 
the issues presented are justiciable and whether the Court, 
in an action by the Senate Select Committee to enforce its 
subpoena, may determine de novo whether compliance with the 
subpoena would be in the public interest. Moreover, the 
Special Prosecutor believes it v;ould not be appropriate to 
advise the Court on issues which will not have any collateral 
effects on matters v/ithin his jurisdiction. Accordingly, the 
Special Prosecutor takes this opportunity only to respond to 
the concerns regarding possible pre-trial publicity arising 
from compliance with the Committee's subpoena duces tecum for 
five Presidential conversations. 

STATEMENT 

On March 1, 1973, the June 1972 Grand Jury for the 
District of Columbia returned an indictment charging seven 
persons with various offenses arising out of the so-called 
Watergate affair. United States v. Mitchell, et al. , Crim. 
No. 74-110. This same grand jury, in aid of the investiga- 
tion that led to this indictment, subpoenaed four of the five 
recordings of Presidential conversations now sought by the 
Senate Select Committee. The District Court, in accordance 
with the standards and procedures established by this Court 



- 2 - 



1472 

in Nixon v. Sirica , U.S. App. D.C. , 487 F.2d 700 

(1973) , ruled that these four recordings should be produced 

1/ 
to the grand jury. The fifth recording — the recording of 

the meeting between the President and John Dean on February 

28, 1973 — was produced to the grand jury by the President 

in response to a request by the Special Prosecutor. Each of 

these recordings was considered by the grand jury before it 

returned the indictment in United States v. Mitchell , and the 

recordings may be important and material evidence at trial. 

DISCUSSION 

As we have mentioned above, we offer no observations on 
the underlying constitutional issues. If, however, the Court 
holds that the Judiciary has power to enforce congressional 
subpoenas, and if it agrees with the court below that a court 
has discretion "to weigh the public interests protected by 
the President's claim of privilege against the public inter- 
ests that would be served by disclosure to the Committee in 
this particular instance" (Op. p. 2) , then we submit that the 
District Court properly took into account the likely effect 
of compliance with the Committee's subpoena on the trials on 
any indictments returned by the June 1972 Grand Jury. 



\J See In re Grand Jury Subpoena Duces Tecum Issued to 
Richard M. Nixon, Misc. No. 47-73 (D. D.C. December 19, 1973), 



- 3 - 



1473 



In Nixon v. Sirica , supra , this Court held that a 
generalized claim of executive privilege "must fail in the 
face of the uniquely powerful showing made by the Special 

Prosecutor in this case." U.S. App. D.C. at , 487 

F.2d at 717. This "uniquely powerful showing" was based on 
the "vital function" of the grand jury. Thus, the grand 
jury's subpoena was enforced because of the paramount pub- 
lic interest in the full and fair investigation of allega- 
tions of criminal misconduct by high government officials. 

U.S. App. D.C. at , 487 F.2d at 717-18. The effect 

that compliance with another subpoena would have on the 
integrity of this same investigation must be taken into 
account in any balancing process to determine whether the 
overall public interest lies in sustaining or overruling 
such a claim of privilege in a different context. 

The Supreme Court has described the right to a fair 
trial as "the most fundamental of all freedoms" which "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 defendants a fair trial, repeatedly has 
sought to prevent or minimize improper, unwarranted or 



- 4 - 



1474 



2/ 
inflammatory pre-trial publicity. It is thus incumbent en 

the Special Prosecutor to inform the Court that, in his 
judgment, compliance with the Senate Select Committee sub- 
poena and subsequent airing of the recordings during hear- 
ings of the Committee or use of the recordings in formulating 
a public fact-finding report would increase the risk that the 
defendants in United States v. Mitchell could contend v/ith 
more force than presently available that widespread pre-trial 
publicity prevents the Government from empanelling an unbiased 



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 require 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 Documents and for Leave 
to Depose Persons in Prison", Democratic National Committee v. 
McCord, Civ. No. 1233-72 (D.D.cTTI 

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. 



- 5 - 



1475 



jury for the trial of the offenses charged. See, ©•£• / 
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, as suggested by the 
Committee, for the Court to consider imposing reasonable 

conditions on the use of the recordings or securing voluntary 

i/ 
assurance that such restraint vrill be observed. The Suprem.e 



V Brief of Appellants- pp. 37-39. 

£/ The Committee on the Judiciary of the House of Repre- 
sentatives has adopted rules designed to maintain the con- 
fidentiality of information (including recordings of Presi- 
dential conversations now in its possession) relating to the 
impeachment inquiry. 



- 6 - 



1476 



Court has directed trial courts to take all necessary action 
to "protect their processes from prejudicial outside inter- 
ferences" which pre-trial publicity 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 

5/ 
of powers — to protect fundeimental constitutional interests. 

Cf. Krippendorf v. Hyde , 110 U.S. 276, 283 (1884). 

Second, any publicity stemming from complience 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. 



y 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 Cam- 
paign Activities , supra . ~~~ 

Appellants indicate that the Committee has waived "separa- 
tion of powers considerations" (Brief p. 37). The Special 
Prosecutor takes no position on whether such a waiver is valid 
or cures any jurisdictional defects or on whether reasonable 
conditions could be enforced against members of the Committee. 



- 7 - 



1477 



Dowd, 366 U.S. 717, 723 (1961). Contrast Sheppard v. Maxwell , 
supra ; Rideau v. Louisiana , 373 U.S. 723 (1963). 

Third, the material being sought by the Senate Select 
Coimnittee 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 con- 
siderable public interest and concern and all of the partici- 
pemts have presented publicly their versions of what transpired, 
either in sworn testimony or in press releases or news con- 
ferences . As this Court has held with respect to the sub- 
poenaed tapes, however, the tapes constitute "the best evidence 

of the conversations available." Nixon v. Sirica , supra , 

U.S. App. D.C. at , 478 F.2d at 718. See also United 

States V. White , 401 U.S. 745, 753 (1971). 

We are confident that notwithstanding prior publicity, 
if jvirors 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, 



- 8 - 



1478 



if the Senate Select Committee subpoena is otherwise enforce- 
cible, should consider the danger of prejudicial pre-trial 
publicity a decisive factor. 

Finally, the Special Prosecutor believes it is appro- 
priate to comment on the position he took on behalf of the 
grand jury with respect to the Greuid Jury's Report and 
Pecommendation. The grand jury recommended to the District 
Court that the Report and Recommendation and accompanying 
materials be transmitted to the House Judiciary Committee for 
consideration in connection with the impeachment inquiry. In 
the oral argument before this Court on the petitions for 
extraordinary writs barring the District Court from trans- 
mitting the materials, Chief Judge Bazelon asked Counsel to 
the Special Prosecutor whether the Special Prosecutor had 
considered the risks of pre-trial publicity stemming from 
treuisraittal. Counsel responded that both the grand jury and 
the Special Prosecutor had considered those risks, but that 
under the circumstances, the public interest clearly weighed 
in favor of transmittal. Nothing in that position is incon- 

i/ 

sistent with the ruling of the court below. The needs of 



£/ The District Court specifically referred to this 
distinction (Op. p. 5) : 

Congressional demands, if they be forth- 
coming, for tapes in furtherance of the 
more juridical constitutional process of 
impeachment would present wholly different 
considerations . 



- 9 - 



1479 



a congressional committee in furtherance of its legislative 

y 

functions are far different from the requirements of a com- 
mittee charged with reporting to the House of Representatives 
on "whether sufficient grounds exist for the House of Repre- 
sentatives to exercise its constitutional power to impeach 
Richard M. Nixon, President of the United States." H. Res. 
803, 93d Cong., 2d Sess. (February 6, 1974). Judge Sirica, 
in ruling that the Grand Jury's Report and Recommendation 
and accompcUiying materials should be delivered to the House 
Committee on the Judiciary, stated that "[i]t would be diffi- 
cult to conceive of a more compelling need than that of this 
country for an unswervingly fair inquiry based on all the 
pertinent information . " In re Report and Recommendation of 
June 5, 1972 Grand Jury , Misc. No. 74-21, at 19 (D.D.C. March 
18, 1974) (emphasis added). 



1/ Appellants characterized the need of the Senate 
Select Committee in their brief (pp. 36-37) : 

Respecting its lawmaking functions, the 
Committee's chief need at this time is to 
examine the tapes to determine whether 
drastic legislation respecting presidential 
campaigns is required and would eventually 
receive the public support needed for its 
passage when the contents of the tapes are 
revealed. The major concern regarding the 
informing function is that these tapes be 
released to the Committee so that at some 
future time they may be made public and 
not forever kept secret from the Nation. 



- 10 - 



1480 



Furthermore, in weighing the risk of pre-trial publicity 
from compliance with the subpoena against the need of the 
Senate Select Committee in furtherance of its lawmaking func- 
tions, this Court must take into account that the President 
now has provided the recordings in question to the House Com- 
mittee on the Judiciary. Thus, the Committee's concern that 
these recordings may be "forever kept secret from the Nation" 
(Brief p. 37) is no longer founded. 

The foregoing views are filed for whatever assistance 
they may furnish to the Court. 

Respectfully submitted. 



LEON JAWORSKI 
Special Prosecutor 



DATED: March 27, 1974 



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. VK 
Washington, D. C. 20005 



- 11 - 



[X)J.r9744)3 



1481 

No. 7^-1258 



IN 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. 



ON APPEAL FROM THE UNITED STATES DISTRICT 
COURT FOR THE DISTRICT OF COLUMBIA CIRCUIT 



BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE 



WILLIAM B. SAXBE, 
Attorney, General , 

IRVING JAFFE, 

Acting Assistant Attorney General , 

ROBERT E. KOPP, 
THOMAS G. WILSON, 

Attorneys , 

Department of Justice , 

Washington, D. C. 20530. 



1482 



INDEX 

Page 

Interest of the United States 1 

Question Presented 2 

Statement 2 

Argument 3 

THE DISTRICT COURT PROPERLY REFUSED TO 

ENFORCE THE SUBPOENA OF THE SENATE 

SELECT COMMITTEE. 3 

Conclusion 5 

CITATIONS 

Cases : 

Delaney v. United States, 199 F. 2d 107 

(c.A. 1, 1952)- ^■ 

Kilbourn v. Thompson, IO3 U.S. I68 (I88O) 4 

*Nixon V. Sirica, U.S. App. D.C. , 

487 F. 2d 700 (I973) 4-5 

Watkins v. United States, 354 U.S. I78 (1957) 4 



_^/ Case chiefly relied upon is marked by an asterisk, 



- i - 



1483 



IN THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 



No. 7^-1258 

SENATE SELECT COI^uMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES, suing in its own 
name and in the name of the United 
States, 

and 

SAM J. ERVIN, JR.; HOVJARD.H. BAKER, JR.; 
HERMAN 'E. TAmADGE; 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. 



ON APPEAL FROM THE UNITED CTATES DISTRICT 
COURT FOR THE DISTRICT OF COLTOJBIA CIRCUIT 



BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE 



Interest of the United States 



The appellants, by th.is suit, seek an order directing 
the President to comply with a subpoena duces tecum requiring 
the production of certain tape recordings. In response to 



1484 



that subpoena duces tecum, the President declined to produce 
the documents on the basis of Executive privilege (App. l62). 
The United States has an overriding interest in the proper 
application of the doctrine of Executive privilege, as well 
as protection of the Integrity of the criminal justice system. 

QUESTION PRESENTED 

Whether the district court properly refused to enforce 
the subpoena of the^ Senate Select Committee. 

STATEMENT 

In response to a request of the district court, the 
President, by letter of February 6, 197^, specified the 
grounds upon which he declined to produce the five taped 
conversations in issue here (App. l62). In that letter, 
the President stated that "the disclosure of [the taped con- 
versations] would not be in the national interest" because . 
(1) "the publication of all of these tapes to the world at 
large would seriously infringe upon the principle of confi- 
dentiality" and (2) there would be "possible adverse effects 
upon ongoing and forthcoming criminal proceedings should the 
contents of these subpoenaed conversations be made public at 
an inappropriate time" (App. l62). In considering this 
claim, the district court concluded that "it becomes the 
duty of the Court to weigh the public interests protected by 
the President's claim of privilege against the public 

- 2 - 



1485 



interests that v;ould be served by disclosure to the Ccirmittee 
in this particular instance" (App. 165). The court concluded 
that, because the appellants had not shown a pressing need, 
for the tapes, disclosure should be denied in order to pro- 
tect the integrity of the criminal Justice system (App. 166- 
170). 

ARGUT.IENT 

THE DISTRICT COURT PROPERLY REFUSED TO 
ENFORCE THE SUBPOENA OF THE SENATE 
SELECT COMMITTEE. , 

Appellants contend on this appeal" 'that the district court 
did not base its decision upon a claim of Executive privilege 
and that under those circumstances the mere expression by the 
Committee of its need for the material suffices to require an 
order compelling production of the tapes (Brief, p. 9). It is 
clear, however, that the President's letter of February 6., . 
197^3 invoked Exe^^utive privilege to prevent pre-trial pub- 
licity in criminal matters, as well a^ to protect the confi- 
dentiality of Executive conversations. When the district couri 
weighed the need to prevent unfair pre-trial publicity, it 
properly recognized that that interest constituted a basis for 
refusing to enforce the subpoena of the Committee. 

In refusing to enforce the subpoena, the district court 
applied a balancing of interests test in evaluating that 

- 3 - 



34-966 O - 74 - pt. 2-18 



1486 



claim of privilege. See Kil bourn v. Thompson , 103 U.S. l68 
(1880)5 Wat kins v. United States , 35^ U.S. 173 (1957). Under 

the rule of Nixon v. Sirica , U.S. App . D.C. , 487 F. 

2d 700, 716 (1973) J the court correctly foxind that the need 
to safeguard pending criminal prosecutions from the possibly 
prejudicial effect of pre-trial publicity, outweighed any 
need shown by the Committee. Certainly, the Committee can 
make no substantial showing that it needs the tape recordings 
in order to enact general legislation relating to Presidential 
elections. Nor, as the district court' 'recognized (App. 168), 
can production of the tape recordings be justified on the 
groTind that the public interest requires public disclosure 
by the Committee. On the other hand, there is a clear and 
obvious need to protect pending and prospective criminal pro- 
ceedings from pre-trial publicity. See Delaney v. United 
States , 199 F. 2d 107 (C.A. 1, 1952). Accordingly, the dis- 
trict court was correct in ruling that the Committee had not 
established by a preponderance of the evidence that it was 
entitled to an injunction directing the President to comply 
with the subpoena for the five tape recordings. 

In addition, the interest of the President in protecting 
the confidexntiality of Presidential communications in this 
case also outweighs the needs of the Committee. The 

- 4 - 



1487 



President muct prescrvo a clir-iato in which his staff and the 
public can ccn^'nunicate freely v;ith him, in v;hich he and they 
can examine problems and alternative solutions candidly, 
uninhibited by the fear that later disclosure may bring 
bitterness and harassment from affected interest groups or 
a violent public opinion inforaied by the wisdom of hindsight. 
In Nixon v. Sirica , supra , 487 F. 2d at 717, this Court 
recognized that such conversations were presumptively priv- 
ileged, but that the claim of privilege had to fail in that 
case because of "the uniquely powerful showing" made by the 
Special Prosecutor. In this case, however, no such showing 
has been made. Therefore, the district court's decision 
declining to enforce the Committee's subpoena can also be sus- 
tained on the grounds of confidentiality of Presidential com- 
munications. 

CONCLUSION 
For the foregoing reasons, the judgment of the district 
court should be affirmed. 

Respectfully submitted. 



WILLIAM B. SAXBE, 
Attorney General , 

IRVING JAFFE, 

Acting Assistant Attorney General , 

ROBERT E. KOPP, 
THOMAS G. WILSON, 
Attorneys , 

Department of Justice , 
W'"? :"" p.ln ■'■ ;'.n>''. , [1. v'' . '0^'-!0. 

Telephone: 202-739-3389 or 
202-739-3395 

- 5 - 



1488 



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 mennbers of the 
Senate Select Committee on Presidential 
Campaign Activities 



Appellants 



RICHARD M. NIXON, individually and a= 
President of the United States 



Appellee 



No. 74-125) 



BRIEF OF APPELLEE 



JAMES D. ST. CLAIR 
MICHAEL A. STERLACCI 
JEROME J. MURPHY 
LOR EN A. SMITH 
CHARLES ALAN WRIGHT 
2500 Red River Street 
Austin, Texas 78705 



Of Counsel 



JOHN J. CHESTER 



Attorneys for the President 

The White House 
Washington, D. C. 20500 
Telephone Number: 456-1414 



1489 



TABLE OF CONTENTS 

Page 

List of Authorities iii 

Counter state merit of Issues Presented for Review 1 

References to Parties and Rulings 2 

Counter statement of the Case 2 

Argument 4 

I. The District Court properly ruled that the 
President's immediate interest in faithfully 
executing the laws and the Judiciary's immediate 
interest in safeguarding the constitutional right 
of every individual to a trial free from the 
probability of prejudicial pretrial publicity 
outweigh the interest of the Committee in 
making future laws 4 



A. The District Court's use of balancing 
in this case, assuming justiciability, 
was the proper exercise of a traditional 

judicial function 4 

B. The District Court exercised its balancing 

function correctly in this case 17 

C. The Committee has exceeded its legislative 
authority under the Constitution 26 

II. The District Court properly ruled that the Committee 
failed to meet the burden of proof sufficient to 
obtain a siommary judgment for the relief it requested 
and properly dismissed the case , 46 

A. The order of the District Court should not be 

reversed unless it was clearly erroneous 46 



1490 



TABLE OF CONTENTS 



(Continued) 



Page 



B. The Committee has not met its burden of 
establishing that the District Court's 
decision was "clearly erroneous" and, 
in fact, the evidence indicates it was 
clearly correct in dismissing the 
Committee's suit 49 

III. The Committee may not properly request relief 
from this Court that was not sought from the 
District Court 5 9 

Conclusion 70 



1491 



List of Authorities 



Cases 



Page 



Aetna Life Insurance Coinp>any of Hartford v, 

Haworth , 300 U.Sj 227 (1937) 7 

^ American Air Export k^ Import Co. v. O'Neill , 

95 U.S.App. D. C. 274, 221 F. 2d 829 (1954) 59, 65, 70 

Ansara v. Eastland, 143 U. S;App. D;C. 29, 

442 F, 2d 751 (1971) 69, 70 

Application of United States Senate Select Committee 
on Presidential Campaign Activities , 
361 F.Suppl270 (1973) 



Baker v. Wingo, 407 U.S. 514 (1972) 

Barenblatt v. United States. 360 U.S. 109 (1959) .... 

Beal V. Missouri Pacific Railroad Corp. , 

312 U.S. 45 (1940) 

Best Foods v. United States. 158 F. Supp. 583 (1957) . . . 

Broadview Chemical Corp . v. Loctite Corp. . 

417 F. 2d 998 (2d Cir. 1969), cert, denied, 

397 U.S. 1064 (1970) 46, 49 

Brown v. Rudberg. 84 U.S.App. D. C. 221, 171 F. 2d 831 

(1948) 

Calhoun v. Freeman. 114 U. S. App. D. C. 385, 

316 F. 2d 386 (1963) 60 

* Case V. Morrisette. 155 U.S.App. D.C. 31, 

475 F. 2d 1300 (1973) 46, 47, 4f 



6n. 11. 


12. 




13, 14, 


20. 


23n 


42 






8, 33, 


34, 


45 


15 






63 







^Cases chiefly relied upon are marked by an asterisk. 



62, 


65 




47, 


48 




62, 


65 




60, 


64, 


65 



1492 

Page 

C.I.R. V. Belridge Oil Co., 26 7 F. 2d 291, 

(9th Cir. 1959) 

C.I.R. V. Duber stein, 363 U.S. 278 (I960) 

Continental Can Co. v. Horton, 250 F, 2d 637 

(8th Cir. 1957) 

Dart Drug Corp. v. Parke, Davis &^ Co. , 

120 U.S.App. D. C. 79, 344 F. 2d 173 (1965) 

*Davis V. Ichord , 141 U. S. App. D. C. 183, 

442 F. 2d 1207 (1970) 45 

Delaney v. United States, 199 F. 2d 107 

(1st Cir. 1952) 40, 41, 42 

--i ^Estes V. Texas, 381 U.S. 532 (1965) 19, 25, 36, 41 

Gravel v. United States , 408 U.S.- 606 (1972) 69 

Hadco Products, Inc . v. Frank Dini Co. , 

401 F. 2d 462 (3d Cir. 1968) 48 

Hardy v. Northwestern Fede ral Savings k Loan 
Association et al. , 102 U.S; App. D. C; 371, 
254 F. 2d 70 (1957) 59, 60 

Hayburn's Case. 2 Dallas (1 U.S. ) 409 (1792) 6 

Hentoff V. Ichord. 318 F.Supp. 1175 (1970) 45 

Hormel v. Helve ring, 312 U.S. 552 (1941) 59 

Hughe s Tool Co. v. Varel Mfg. Co. . 336 F. 2d 61 

(5th Cir. 1964) 48 

Hutcheson v. United States , 369 U.S. 599(1962) 40, 43, 44, 

45, 53 



-Iv. 



1493 



Page 

In Re Murchison, 349 U.S. 133(1955) 19 

In Re Report and Recommendation of June 5^ 1972 
Grand Jury Concerning Transmission of 
Evidence to the House of Representatives , 

Misc. No.^riTzi (D. D. C. 1974) 18n, 23n, 

24 

Jackson v. United States, 122 U. S. App. D. C. 324, 

353 F. 2d 862 (1965) 47 

Keyes v. Madsen , 86 U. S. App. D. C; 24, 179 F. 2d 40 

(1949), cert, denied 339, U.S. 928 (1950) 59 

*Kilbourn v. Thompson, 103 U.S. 168 (1880) 

Lundgren v. Freeman, 307 F. 2d 104 (9th Cir. 1962). . . • 

Marbury v. Madison, 1 Cranch (5 U.S.) 137 (1803) 

MarshaU v. Gordon, 243 U.S. 521 (1917) 

McCiilloch V. Maryland. 4 Wheat. (17 U.S^) 316 (1819) ... 8 

McGrain v. Daugherty , 273 U.S. 135 (1927) 26, 33, 34, 50 

Milk Control Board v. Eisenberg Farm Products . ^ 

306 U.S. 346 (1939) ~ 8 

*Nixon V. Sirica, U.S.App. D. C. , 

487 F. 2d 700 (1973) 7, 8, 21, 37 , 3{ 

Osinv. Johnson, 100 U.S.App. D. C. 230, 

243 F. 2d 653 (1957) 60 

Powell V. McCormack . 3 95 U.S. 486 (1969) 7, 44, 45 

Quirmv. United States. 349 U.S. 155(1955) 54 

Sanders v. McClellan. 150 U. S.App. DrC.- 58, 

463 F. 2d 894 (1972) 14, 69 



26, 


27, 


31 




32n 


, 33, 


, 34, 


35 


47, 


48 






6 








26 









15, 


16, 17, 


19, 


25, 41 


33 




63 





1494 



Page 
* Sheppard v. Maxwell, 384 U.S. 333 (1965) 

Sinclair v. United States, 279 U.S.* 263 (1929) 

Smith V. Ray, 140 Ohio St. 394, 79 N. E.2d 116 (1948), 

State Airlines v. Civil Aeronautics Board, 

84 U.S.App. D. C. 374, 174 F. 2d 510 (1949) 63, 64 

Stouper V. Jones, 109 U. S^App. D. C. 106, 

284 F. 2d 240 (I960) 

Ullman v. United States , 350 U.S. 422 (1956) 

U;S. ex. rel. Greathouse v. Pern, 289 U.Sr 352 (1932). . 

United States v. Brewster , 408 U.S. 501 (1972) 

United States v. John N. Mitchell, et al. , 

Criminal Case No^ 74-110 (D.'d. Cr 1974) 

United States v. National Assn. of Real Estate Boards, 

339 U.S. 485 (1950). . . .T .""TT , 

United States v. Rumely, 345 U.S. 41 (1953) 

United States v. United States Gypsum Co. , 333 U.S. 364 
(1947) 

United States v. Yellow Cab Co., 338 U.S." 338 (1949). . . 

United Steelworkers of America v. United States, 

361 U.S.- 1 (1959) . . . . . . , 

* Walters v. City of St. Louis, 347 U.Sr 231 (1954) .... 

* Watkins v. United States, 354 U.S. 178 (1956) 



Zenith Radio Corp . v. Hazeltine , 395 U.S: 100 (196 9). . . 47 



60 




lln 




15 




22 




18, 


52n, 65n 


48 




26, 


34, 35, 36 


47 




47 




lln 




59 




26, 


28, 32, 


34, 


35, 36, 


50, 


55 



1495 



Constitution, Statutes and Rules 

PAGE 
U. S. Constitution: 

Art. I, Sec. 9 o 52 

Arts. I, II 56 

Amend. VI 45 

2 U.S.C. § 192 , 6,43 

18 U.S.C. §S 1621-1623 31 

18 U.S.C. §6005 ,.....,. 11,14 

28 U.S.C. §2201 o. , 12,14 

Public Law 93-190, Act of Decen^ber 18, 1973 3,4 

Federal Rules of Civil Procedure 52(a) . 46 

Federal Rules of Civil Procedure 59(e) • • . . 62 

S. Res. 60, 93rd Congress, 1st Sess. (1973) . . 28, 54 

Miscellaneous 

118 Cong. Rec. S. 16,766, 92nd Cong. 2d Sess 22 

Note, 49 Va. L. Rev. 506 (1963) 48 

Order of Attorney General No. 551-73, 

November 2, 1973 , 22 



1496 



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 nnennbers of the 
Senate Select Committee on Presidential 
Campaign Activities 



Appellants 



RICHARD M. NIXON, individually and as 
President of the United States 



Appellee 



No. 74-1258 



BRIEF OF APPELLEE 



Counter statement of Issues Presented for Revie\y 
L Whether the District Court properly ruled that the President's 
immediate interest in faithfully executing the laws and the Judiciary's 
immediate interest in safeguarding the constitutional right of every individual 
to a trial free from the probability of prejudicial pretrial publicity outweigh 
the interest of the Senate Select Committee in making future laws. 



1497 



II. Whether the District Court properly ruled that the Senate Select 
Committee failed to meet the burden of proof sufficient to obtain a summary 
judgment for the relief it sought. 

III. Whether the Senate Select Committee may properly request 
relief from this Court that was not sought from the District Court. 

This case was previously before the Court in No. 73-2086. This 

Court's en banc order remanding the case to the United States District 

1 / 
Court is found at Joint Appendix 138~ . 

References to Parties and Rulings 

All parties to this cause are set forth in the caption. In this cause 

2/ 
the appellant. Senate Select Committee on Presidential Campaign Activities, 

seeks review of the opinion and order of the Honorable Gerhard A. Gesell of 
the United States District Court for the District of Columbia in C. A. No. 
1593-73 entered on February 8, 1974, dismissing this action without 
prejudice (J. A. 164). 

Counterstatement of the Case 
This action was originally filed by the Committee on August 9, 1973, 
seeking enforcement of two subpoenas directed to the President. One of 
these requested "all conceivable types of documents, recordings and photo- 
graphs relating directly or indirectly to the activities" (J. A. 148) of 25 
individuals with respect to any criminal activities concerning the 1972 



1/ Hereinafter the Joint Appendix will be cited as J. A. followed by the 
appropriate pagination. 

2/ Hereinafter referred to as "Committee. " The brief of the Committee 
will be cited as Br. followed by the appropriate pagination. 



1498 



Presidential campaign. The other, the subject of this appeal, requested 
five Presidential taped conversations. The President answered on 
August 29, 1973, and the Committee on the same day filed a motion for 
summary judgment. At the same tinie the Committee filed "Plaintiffs 
Statement of Material Facts As to Which There is No Genuine Issue" 
(J. A. 110). The facts set forth therein are undisputed for the purpose of 
this litigation. On October 17, 1973 the District Court dismissed the 
Committee's complaint and motion for summary judgment for failure to 
allege a statutory grant of subject matter jurisdiction. The Committee 
on October 19, 1973 filed a notice of appeal. On October 25 the Committee 
withdrew its earlier request for expediting the appeal in order to pursue the 
alternative course of seeking legislation to cure its jurisdictional defect. 

That appeal was docketed with this Court on November 26, 1973. 
The legislation, which the Committee sought, was passed in the form of 
Public Law 93-190. This took effect on December 19, 1973. On the same 
date, the Committee filed another motion for an expedited brief schedule. 

On December 28, 1973, this Court rennanded this case to the District 
Court "for further proceedings in light of Public Law 93-190" (J. A. 138). 
On January 7, 1974, this case was reassigned in District Court from Chief 
Judge John J. Sirica to Judge Gerhard A. Gesell. On the same date the 
Committee amended its complaint to include a jurisdictional allegation under 



1499 



- 4 - 
Public Law 93-190. The President's amended answer was filed January 17, 
1974. Thus, this matter was placed before the District Court on the 
Committee's motion for summary judgment. 

On January 25, 1974, the District Court quashed the Committee's 
subpoena duces tecum for the documents relating to the 25 individuals 
(J. A. 148). The Committee did not appeal this ruling. 

On February 6, 1974, the District Court received in response to two 
of its orders of January 25, 1974, a supplemental memorandum from the 
Special Prosecutor (J. A. 154) and a letter from the President (J. A. 162). 

On February 8, 1974, Judge Gesell dismissed the Committee's 

complaint without prejudice. It is this action that is the subject matter of 

this appeal, the Committee filing on February 20, 1974, its notice of appeal. 

Argument 

I. The District Court properly ruled that the President's immediate 
interest in faithfully executing the laws and the Judiciary's immediate 
interest in safeguarding the constitutional right of every individual to a 
trial free from the probability of prejudicial pretrial publicity outweigh 
the interest of the Committee in making future laws. 

A. The District Court's use of balancing in this case , 
assuming justiciability, was the proper exercise of a 
traditional judicial function. 

It should be stressed at the outset that we continue to believe that 

this case is not justiciable. However, it is not necessary for the Court to 

reach this issue since the decision below was plainly right on the ground on 

which it rested. If this Court wishes to consider the question of justiciability 



1500 



- 5 - 

we incorporate by reference pp. 3-17 of our Response to Plaintiffs' 
Memorandum on Remand in the court below, copies of which have been 
filed with the clerk of this Court. 

The Committee begins its argument with a novel contention (Br. 9-10). 
It suggests that the District Court was not entitled to balance the Committee's 
asserted legislative need for and proposed publication of the subpoenaed tapes 
against the probable danger of prejudicial pretrial publicity to the constitu- 
tional right to a fair trial. At first glance this seems to be an argument that the 
question is not justiciable. The Committee thus appears to have accepted our 
argument below that the case is not justiciable and should properly have been 
dismissed. This is not, however, the real thrust of the Committee's argument. 
In essence, what the Committee is saying is that the issue before the Court 
is only partially justiciable. According to the Committee's logic the District 
Court may only properly decide this case for the Committee, but it has no 
power to deny the Committee the relief it seeks. 

The Committee, in proposing this odd theory, apparently desires to 
have its cake and eat it too. It claims that the "usual nnethods of vindicating 
Congress' authority are not appropriate" here (Plaintiffs' Memorandum on 
Remand at p. 16). Instead, the Committee seeks a judicial forum rather 



1501 



- 6 



than relying on direct Senate legislative enforcement of its subpoenas or 
the contempt procedures embodied in 2 U.S. C. § 192. We take the Committee 
at its word in seeking the judicial forum for reasons of appropriateness. 
However, if the Committee seeks to use the judicial process it must recog- 
nize that it caruiot then turn the courts into mere rubber stamps of the 
Congress, devoid of the basic substance of the judicial power. As was stated 
in Hayburn's Case, a case where the Congress attempted to impose non- 
judicial functions on the federal Circuit Courts: 

That neither the Legislative nor the Executive branches can, 
constitutionally, assign to the Judicial any duties, but such 
as are properly judicial, and to be performed in a judicial 
manner. Hayburn's Case , 2 Dallas (1 U. S. ) 409, 411n(1972). 

The hallmark of the judicial process is the ability to find for or against 

a claimant. If this were not so, then a court's decisions would be illusory 

3/ 
and its function "nothing but a rubber stamp."— Historically, the federal 

judiciary has strenuously resisted efforts requiring it to perform nonjudicial 
types of action. Hayburn's Case , supra . Chief Justice Marshall in Marbury v. 
Madison. 1 Cranch (5 U.S.) 137 (1803), recognized two fundamental limita- 
tions on judicial action: the political question doctrine and the case or 
controversy limitation. The classic definition of the prohibition on advisory 
opinions, the requirement of a real case of controversy, was set forth by 



3^/ Application of United States Senate Select Committee on Presidential 
Campaign Activities , 361 F. Supp. 1280 (1973). Judge Sirica noted 
that a court does more than merely function as a "rubber stamp" for 
Congressional requests. 36l F. Supp. at 1278. 



34-966 O - 74 - pt. 2-19 



1502 



- 7 - 

Chief Justice Hughes in Aetna Life Insurance Company of Hartford v. Haworth, 
300 U.S. 227 (1937). A power to decide a case only one way is not, in fact, 
a power to decide at all and would certainly produce the same undesirable 
result that the case or controversy limitation was designed to prevent, 
namely, allowing the Judiciary to operate in a non-adversary context. 

In further dealing with the Committee's novel contention that the 
District Court's action in balancing "finds no support in decisional law. . . " 
(Br. 7) we need only turn to our fundamental judicial tradition to see other- 
wise. Just as it is clear that the essential nature of the judicial process 
supports the District Court's decision, it is equally clear that the cases do 
also. 

In Nixon v. Sirica, this Court noted: 

We think the Burr case makes clear 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. Nixon v. Sirica, U.S. App. 

D. C. , 487 F. 2d 700, 716 (1973) (emphasis 

added) (footnote omitted). 

If the Executive's most fundamental powers may be weighed by the Court 

so may the Legislature's. If this were not so, separation of powers would 

be a mere incantation without substance. In citing Powell v. Mc Cormack, 

395 U.S. 486 (1969), which held that the refusal of the House of Representatives 

to seat a nnember was reviewable by the Judiciary, even the Committee adnnits 



1503 



that the Court's power extends over legislative actions also {Plaintiffs' 

Memorandum on Remand at p. 13). 

There is no power more elementary nor more firmly established 

than that of the courts, in passing on constitutional issues, to balance 

conflicting claims of individuals, states, the federal government, and 

particular branches of the federal government. By way of example, the 

courts weigh "the conflicting powers of the general and state governments," 

McCulloch V. Maryland , 4 Wheat. (17 U.S.) 316, 405 ( 18 1 9), of individuals 

against the states, e. g. , Milk Control Board v. Eisenberg Farm Products, 

306 U.S. 346 (1939), of different branches of the federal government, e.g., 

Nixon V. Sirica , U.S. App. D. C. , 487 F. 2d 700, 716 (1973), 

and -- most clearly in point -- of Congressional power to obtain information 

against constitutional claims that it need not be produced. See Barenblatt v. 

United States, 360 U.S. 100, 126 (1959), where the Court said: 

Where First Amendment rights are asserted to bar 
governmental interrogation resolution of the issue 
always involves a balancing by the courts of the 
competing private and public interests at stake 
in the particular circumstances shown. 

This fan-iiliar process of balancing is precisely what the District Court did 

here. The Committee's contention that this balancing "finds no support in 

decisional law" (Br. 7) is utterly without foundation and belied by a great 

wealth of judicial precedent, including cases cited by the Committee below 

(Plaintiffs' Memorandum on Remand at p. 14). 



1504 



On reviewing previous positions taken by the Committee in this litigation 

it is difficult to believe that they can now argue that the court below had no 

power to balance the public interest in deciding whether to grant the relief 

the Committee sought. Apparently what is good for the plaintiff is bad for 

the appellant. The Committee began its conclusion to its Memorandum on 

Remand with these words: 

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. (Plaintiffs' Memorandum on 
Remand at p. 31). 

At another point in the same document in a footnote the Committee approvingly 

quotes: 

Mr. Justice Jackson has written that "[slome arbiter is 
almost indispensible 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. 
(Plaintiffs' Memorandum on Remand at p. 18 n ). 

In another document below the Committee's enthusiasm for "balancing" 

by the Court is unabated. 

There is no reason why this Court should pronounce 
itself infirm to rule 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 



1505 



- 10- 



investigations as to judicial proceedings, United States 
V. Bryan, 339 U.S. 323, 331 (1950) thus indicating that 
a claim for evidence should not be unreviewable just 
because it is the Congress that asserts it . (Reply to 
Defendant's Response to Plaintiffs' Memorandum on 
Remand at p. 3) (emphasis added). 

The Committee seems, however, to speak with a "new" approach in this 

appeal. Now it finds the District Court's decision to be "an apparently 

new rule of law" (Br. 7) that allowed the District Court to balance the 

Connmittee's legislative need against the danger to the Sixth Amendment 

rights of criminal defendants. The Committee no longer seems to appreciate 

"[tlhe wisdom of [Justice Jackson's! observation..." (Plaintiffs' Memorandum 

on Remand at p. 18n). While previously the Committee found a wealth of 

cases to support the District Court's balancing (Plaintiffs' Memorandum 

on Remand at pp. 13-14) of constitutional claims like those at issue here, 

now the Committee can remember none of them (Br. 7, 12). 

What has happened seems obvious. The Committee has finally 
realized the full implications of justiciability. If a court can decide a case 
it can decide against either party. If a court can balance constitutional claims 
the balance can fall on either side. If the Committee believes this case is 
justiciable then it nnust live with all the implications of that fact. The 
Committee should not now be heard to argue "heads I win, tails you lose. " 



1506 



- u - 

The Committee seems to place great weight on Application of United 
State s Senate Select Committee on Presidential Campaign Activities, 361 
F. Supp. 1270 (1973), to help it breach the separation of powers in the 
Constitution and overcome the basic lack of legal authority supporting its 
challenge of the District Court's power to balance. The Committee indicates 
by implication that the District Court in the present case has power only to 
comply with the Committee's request for relief. This would make the Court 
a mere "rubber stamp" of the Congress and raise serious constitutional 
questions if it were founded in anything other than the Committee's mis- 
reading of Application of United States Senate Select Committee on 
Presidential Campaign Activities . It should be noted that in Application 
Judge Sirica, quoting the language of the Working Papers of the Commission 
that recommended the immunity act in question (18 U.S.C. § 6005), stated: 

[P]roblems 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 -- ministerial, not discretionary in nature. 
361 F. Supp. at 1276.1/ 



4/ This case is unlike Application , and also unlike such other cases as 

Ullman v. United States , 350 U.S. 422 (1956), and United Steelworkers 
_of America v. United States , 361 U.S. 1 (1959), in which an Act of 
Congress requires the courts to grant certain orders when stated 
prerequisites have occurred, and the matter is held "judicial" because 
the court must ascertain whether the prerequisites are present. 



1507 



- 12 - 

Thus, if the courts are to be constitutionally involved in non-judicial tasks 
at all they must be "weak and paltry" or "ministerial" functions. Id. Would 
any member of the bar seriously suggest that the instant case fits this mold? 
This truly is a major and historic legal dispute. The argument, controversy, 
and parties involved bear witness to its non-ministerial nature. Further, the 
Committee here seeks a declaratory judgment under 28 U.S. C. § 2201. This 
statute authorizes the court to: "[i]n a case of actual controversy. .. declare 
the rights and other legal relations of any interested party. . . Any such 
declaration shall have the force and effect of a final judgment or decree 
and shall be reviewable as such..." 28 U.S. C. § 2201. It is self-evident 
that if a court can decide an application for declaratory relief at all, it has 
the power to rule on the merits and not just in favor of the plaintiff. Thus, 
it is not surprising that the Committee offers no case to support its novel 
position. Moreover, it is very difficult to even maintain that the District 
Court was not able to fully decide the case against the Committee because 
of any suggested analogy to the Application case. 

What, however, of the Committee's other asserted argument, where 
they suggest that the court in Application was unable '"to exercise inherent 
powers [to condition the grant of immunityl in the interest of preserving 
the rights of potential defendants. ' 361 F. Supp. at 1280" (Br. 21). Two 



1508 



- 13 - 

points should be noted that explain and distinguish this issue and one general 
comment that places the case in its proper context. 

First, it should be remembered that in Application Judge Sirica 
found that there was "one distinguishing feature found in each [of the cases 
relied upon by the Special Prosecutor in his request invoking the court's 
inherent powers], " 361 F. Supp. at 1280. This "distinguishing feature" was 
the feet that in Application there were no actual criminal indictments. Id. 
These, of course, now exist and played a critical role in Judge Gesell's 
decision. 

Second, it must be remembered what Judge Sirica was refusing to 
do in Application . He was being asked to either limit immunity or limit 
broadcast media coverage of the witness' testimony. 361 F. Supp. at 1280. 
This certainly would have been an "attempt to regulate proceedings before 
a coordinate branch of government" id. , since it would have directly infringe^d 
on the Committee's functioning. The District Court decision in this case, 
however, did almost the opposite of interfering with the Committee. Rather, 
it only stated that it would not allow its own processes to be used to interfere 
with its own constitutional responsibilities to provide every individual a 
fair trial, a trial free from the probability of prejudicial pretrial publicity. 
It in no way restricted the Committee (J. A. 169). 



1509 



- 14 - 

In general, Application points out that there are two general bases 
upon which a court can fashion relief in almost every case. There is that 
discretion which comes from the statutory, constitutional, or common law 
basis of the court's immediate jurisdiction. There is also an inherent basis 
that derives from the Judiciary's basic constitutional function. In Application 
the District Court was denied its discretionary basis by the unique nature of 
18 U.S. C. i 6005, Further, the court felt, rightly or wrongly, that it could 
not exercise its inherent power for granting relief because of a number of 
factors: lack of actual indictments, interference with the congressional 
function, and the immunity context. In the instant case the District Court's 
inherent power is not really at issue since it has more than adequate discre- 
tionary power under 28 U.S.C. § 2201 and its equitable powers to decide this 
case. The District Court found that the Committee's request for a declaratory 
judgment constituted, in effect, a request for injunctive relief. Sanders v. 
McClellan , 150 U.S. App. D. C. 58, 463 F. 2d. 894 (1972).-'' 

Under basic equity theory the court always has the power to decide a 
case against either party on the merits. An appeal to the equity jurisdiction 
conferred on Federal District Courts is an appeal to "the sound discretion, 



_5/ In Sanders v. McClellan, an action also involving both a suit for a 

declaratory judgment and an injunction, this Court noted: "In response 
to this claim [that declaratory relief should be available notwithstanding 
the unavailability of injunctive reliefl the court reasoned, we think correctly, 
that in the situation presented such relief would amount in substance to an 
injunction..." Sanders v. McClellan , 150 U.S. App. D. C. 58, 61, 463 F. 
2d 894, 897 (1972). Ihus the District Court was correct in dismissing the 
\whole case. 



1510 



- 15 - 

which guides the determination of courts of equity, " Beal v. Missouri Pacific 

Railroad Corp . , 3 12 U. S. 45, 50 (1940). "In its sound discretion a court of 

equity may refuse to enforce or protect legal rights, the exercise of which 

may be prejudicial to the public interest. " U_. S. ex. rel. Greathouse v. 

Pern, 289 U.S. 352, 360 (1932). In the instant case the court properly 

recognized that when its equity jurisdiction was invoked it must consider the 

public interest. Judge Gesell wisely discerned: 

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. 
(J. A. 169). 

A particularly critical area to our discussion is where the courts 

balance countervailing constitutional interests concerning the rights of 

defendants to trials free from the probability of prejudicial pretrial publicity. 

In the instant case the District Court was undoubtedly guided and properly so 

by the admonition of the Supreme Court in Sheppard v. Maxwell , 384 U. S. 

333 (1966): 

From the cases coming here we note that unfair and pre- 
judicial news comment on pending trials has become 
increasingly prevalent. Due process requires that the 
accused receive a trial by an impartial jury free from 
outside irLfluences. Given the pervasiveness of modern 
communications and the difficulty of effacing prejudicial 



1511 



16 



publicity from the minds of the jurors, the trial courts 
must take strong measures to ensure that the balance 
is never weighed against the accused . . . [Wie must 
remember that reversals are but palliatives; the cure 
lies in those remedial measures that will prevent the 
prejudice at its inception. The courts must take such 
steps by rule and regulation that will protect their 
processes from prejudicial outside interferences. 
384 U.S. at 362-363 (emphasis added). 

Thus when Judge Gesell noted the "concurrent obligation" of the President, 

the Congress and the Courts "to preserve the integrity of the criminal trials 

arising out of Watergate" and the fact that the Committee had not demonstrated 

"a pressing need for the subpoenaed tapes" and when he questioned "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" he was 

engaging in a balancing process that is the essence of the judicial function 

(J. A. 166, 169). In reaching its careful balance the District Court noted: 

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 disagreennents 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 (J. A. 169). 

In balancing the constitutional interests in this case, the District 

Court properly recognized the Constitution's separation of powers and 

avoided the "needless friction with a coordinate branch" inherent in the 
Committee's position (Br. 39). 



1512 



17 - 



B. The District Court exercised its balancing 
function properly in this case . 

In light of the abundance of support for the District Court's balancing 
of the conflicting claims and the significant concessions made by the Committee 
on this point, all that remains to be determined is whether the District Court 
balanced properly in this case. A thorough analysis of the Coiiimittee' s brief, 
and the absence of legal and factual support for its position, leads to only one 
demonstrable conclusion: that the District Court properly ruled that the 
President's immediate interest in faithfully executing the laws and the 
Judiciary's immediate interest in safeguarding the constitutional right of 
every individual to a trial free from the probability of prejudicial pretrial 
publicity outweigh the interest of the Committee in making future laws. 

The Committee asserts that "[ilt is 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 o> 
non-existent. " (Br. 33). The weakness of the Committee's argument is 
that it attempts to minimize the inviolability of an individual's Sixth Amend- 
ment rights. It relies on possibilities and assumptions that not only ask 
the Court to derogate *he Supreme Court's admonition in the Sheppard case — 
but also ignore the actual facts of this case. In this regard it is significant,--' 



b_l See discussion at pp. 14-15, supra. 

7/ We deem this significant in light of the Committee's assertion that "it 
is significant that guilty pleas have been obtained" from five other 
defendants (Br. 33n ). 



1513 



- 18 - 

and this Court may take judicial notice, that all seven of the defendants in 
United States v. John N. Mitchell, et. al. , Criminal Case No. 74-110, have 

pleaded not guilty at arraignment, and have objected to extrajudicial disclosure 

8/ 
of matters that might adversely affect their pending trial.— 

That the Committee's position, not only on the law as shown above 
but also in its application of the facts, is inconsistent cannot be gainsaid. 
The Committee supports its contention that Sixth Amendment considerations 
are minimal by asserting that "the tapes may be played in the Impeachment 
proceedings" (Br. 33-34), yet only three pages later the Committee in attempting 
to bolster its need to fulfill its informing function states "ftlhere is also no 
certainty that they will be made public during the Impeachment Process. " 
(Br. 37). Once again the Committee relies on contradictory assumptions 
in an attempt to shore up its specious position. 

The Committee further asserts that the tapes may be played "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 subpoenaed. " (Br. 34). 
This statement ignores the possible prejudicial effect pretrial disclosure 
would have on the first such trial. It also ignores the District Court's ability 



8/ This fact is reflected In Re Report and Recommendation of June 5_, 1 972 
Grand Jury Concerning Transmission of Evidence to the House of 
Representative s , Misc. No. 74-21, p. 2, footnotes 6 and 7. 



1514 



- 19 - 

to schedule separate trials in such a manner as to minimize this effect. 
Furthermore, and perhaps most damaging to the Committee's earlier effort 
to minimize the effect of possible prejudicial pretrial publicity, is the 
Committee's realization, later in its Brief, that "the tapes, for one reason 
or the other, may not be allowed into evidence. " (Br. 37). 

The Committee, in stressing the importance of its informing function, 
continues to invite this Court to sweep aside the holdings of the Supreme Court. 
In Sheppard v. Maxwell, 384 U. S. 333 (1966), the Court held that "[tlhe 
exclusion of such evidence in court is rendered meaningless when news media 
makes it available to the public." 384 U.S. at 360. In Estes v. Texas, 381 
U.S. 532 (1965), the Court quoted approvingly from Justice Black's opinion 
in In Re Murchison , 349 U.S. 133 (1955): "A fair trial in a fair tribunal is 
a basic requirement of due process. . . [Olur system of law has always 
endeavored to prevent even the probability of unfairness. . . " 349 U. S. at 
543 (emphasis in original). 

The Committee's statement that "[mloreover, no potential Watergate 
defendant has lodged a complaint in this case that his trial will be prejudiced 
by release of the tapes" (Br. 34) is an example of the Committee's theorizing 
in a vacuum completely isolated from reality. To expect an individual who 
is at the time unindicted to come forward and protest, not only expects too 



1515 



- 20 - 

much, but borders on the ludicrous. In any event, subsequent events have 
caused the significance attributed to this assertion by the Committee to now 
weigh heavily against it. Defendants who were not indicted at the time the 
Committee filed its brief have now come forward and protested. — ' 

The Committee claims in its Brief that because the President "has 
allowed many of his aides to testify fully as to the contents of the tapes" 
that such "action was obviously inconsistent with the claim of prejudicial 
pretrial publicity. " (Br. II). It should be noted in response that at the 
time these witnesses testified before the Committee during the spring and 
summer of 1973 there were no indictments pending or even imminent. This 
is recognized on June 12, 1973, by Judge Sirica in Application of the United 
States Senate Select Committee on Presidential Campaign Activities , 361 
F. Supp. 1270 (1973), where he notes "Counsel for the Special Prosecutor 
at the hearing represented to the Court that indictments in the matter being 
investigated by the Select Committee are sure to be forthcoming, although a 
time cannot be estimated. " 361 F. Supp. at 1280. (emphasis added). 

Our situation at this time provides a stark contrast since the Special 
Prosecutor stated on February 6, 1974, that he "expect[ed] that the June 1972 
Grand Jury [would] complete its investigation and would return any indictments 
prior to March 1974." (J. A. 155). 



^/ See discussion at footnote 8, supra . 



1516 



- 21 - 

In any event in the President's letter of July 25, 1973, to the 

Committee Chairman, the President informed the Chairman that he 

"must respectfully refuse to produce those recordings. " (J. A. 34). 

In this letter the President informed the Chairman: 

I have directed that executive privilege not be invoked 
with regard to testimony by present and former members 
of my staff concerning possible criminal conduct. I have 
waived the attorney-client privilege with regard to my 
former Counsel. . . . Executive privilege is being invoked 
only with regard to documents and recordings. . . that cannot 
be made public consistent with the confidentiality essential 
to the functioning of the Office of the President. (J. A. 35) 
(emphasis added). 

In this regard the Committee's argument, inappropriately presented 

in the statement of the case, that "the supposed confidentiality protected 

by this claim of executive privilege has been repeatedly breached" (Br. 4) 

ignores the inherent distinction between tape recordings and oral testimony. 

Compare Nixon V. Sirica , U.S. App. D. C. , 487 F. 2d 700, ^ 

758-761 (1973) (MacKinnon, J., dissenting). This difference is highlighted 

by the very existence of this law suit. Moreover the Committee's position 

overlooks the common congressional practice, in waiving congressional 

privilege and authorizing oral testimony by congressional staff members 

in court, but refusing to permit submission of related tangible 

material. See Nixon v. Sirica, U.S. App. D. C. , 



1517 



- 22 - 

487 F. 2d 700. (Wilkey, J., dissenting), citing United States v. Brewster , 
408 U.S. 501 (1972); 118 Cong. Rec. S. 16,766, 92nd Cong. 2d Sess, 487 
F. 2d at 772. 

The Committee attennpts to make nnuch of the fact that the Special 
Prosecutor took no position in his response to Judge Gesell's request and 
stated: "We are confident that notwithstanding prior publicity, if jurors are 
selected with the care required by decisions in this Circuit, all defendants 
will receive a fair and prompt trial, " (J. A. 159) (Br. 31). This is undoubtedly 
the proper position for the Special Prosecutor, who is charged with the investi- 
gation and prosecution of alleged criminal wrongdoing emanating from what is 
commonly referred to as "Watergate" (Order of Attorney General No. 551-73, 
November 2, 1973). Thus we cannot be unmindful that at sometime in the 
future he may be required to argue that very point, in accord with that same 
position, before this Court. On the other hand some defense attorneys have 
raised strong objections to extrajudicial disclosure of Grand Jury material 
including the subpoenaed tapes with equal sincerity.-!--' Special Prosecutor 



10 / See discussion at footnotes 8 & 9, supra . 



34-966 O - 74 - pt. 2-20 



1518 



23 



Cox earlier expressed his concern that there was "the danger that pre-trial 
publicity will prevent fair trials from ever being held. " — Similarly at 
the oral argument before this Court on March 21, 1974, concerning the grand 
jury report Mr. Lacovara of the Special Prosecutor's staff acknowledged that 
disclosure by the Judiciary Committee of that material might make it impossible 
for the appealing defendants to have a fair trial and was willing to run the risk 
that the prosecutions against them might have to be dismissed. 

The Committee claims that there is an apparent "basic difference of 
opinion between Judge Sirica, who has heard four of the five tapes here 

involved, and Judge Gesell, who has not, " (Br. 35). To the contrary, the 

1 2 / 
recent decision-!-=^ of Judge Sirica indicates a consistency of approach. His 



11/ See June 4, 1973, letter from Special Prosecutor Archibald Cox to 
Chairman, Select Committee on Presidential Campaign Activities, 
p. 3. The Committee's denial of the Special Prosecutor's request for 
the Committee to temporarily postpone its public hearings, indicates 
that there have been past differences of opinion between the Special 
Prosecutor and the Committee on what constitutes the "necessary 
restrictions." This belies to some degree the Committee's assertion 
of its being "ever cognizant of the need for fair trials. " (Br. 32). 
This difference of opinion is also evidenced in Application of United 
States Senate Select Committee on Presidential Activities , 361 F. Supp. 
1270 (1973). 

12/ See Order filed March 18, 1974, In Re Report and Recommendation q{_ 
June 5, 1972 Grand Jury Concerning Transmission of Evidence To the 
House~of Representatives , Misc. No. 74-21 (D. D, C. 1974). 



1519 



- 24 - 

order turning over Grand Jury evidence, including the tapes involved in this 
case, to the House Judiciary Committee is in accord with Judge Gesell's 
statement that "[c]ongressional demands, if they be forthcoming, for tapes 
in furtherance of the more juridical constitutional process of impeachment 
would present wholly different considerations. " (J. A. 168). It should be 
emphasized that the President did not interpose an objection to this action. 
Nevertheless, Judge Sirica expressed his concern regarding the probability 
of prejudicial pretrial publicity when he inquired if the House Judiciary 

Committee had considered postponing its hearing "until after this so-called 

13/ 
cover-up trial has been tried. " — In this regard he stated: 

I feel strongly. . . one of the problems I am going to 
have in this case is this so-called pre-trial publicity, 
particularly in this case which I expect to preside over. 

The more we can do to give these defendants and every 
other defendant who might be charged in the future a 
fair trial, we should all try to do that. 



13/ Transcript of Hearing on March 6, 1974 in In Re Reporting and 
Recommendation of June ^, 1972 Grand Jury Concerning Trans - 
mission of Evidence To The House of Representatives, Misc. No. 
74-21 [dTd.C. 1974) at p. 25. 



1520 



- 25 



Now I am not trying to direct the Committee or. . . suggest 
to them anything, but it would seem to me that with the 
massive publicity this case has had throughout the co\intry 
and the world that might be a consideration. 

In other words, what harm would be done by say waiting 
until this case is tried. . . /on/ September 9th. . . — 

Thus it is obvious that differences between Judge Sirica and Judge Gesell 

are more imagined than real. 

In an obvious last ditch effort to minimize the weight to be given to 

Sixth Amendment considerations, the Committee asserts "at this time it 

is impossible to assess the precise impact of such publicity on forthcoming 

trials. " (Br. 34). If this assertion is so, it does not, as the Committee 

implies, lessen the responsibility for the Court "to take strong measures 

to ensure that the balance is never weighed against the accused. " Sheppard v. 

Maxwell, 384 U.S. 333, 362 (1966). Indeed the Supreme Court has recognized 

that after a trial the prejudice in denying due process is not always identifiable, 

and it is beyond peradventure that it is even more difficult to measure future 

effects. Thus in Estes v. Texas, 381 U.S. 532 (1965), the Supreme Court 

in setting aside a conviction despite the failure to show any prejudice, stated: 

It is true that in most cases involving claims of due process 
deprivations we require a showing of identifiable prejudice 
to the accused. Nevertheless, at times a procedure 
employed by the State involves such a probability that 
prejudice will result that it is deemed inherently lacking 
in due process. 381 U.S. at 542-543. 

14/ Id. at 26. 



1521 



- 26 - 

Lastly, there is an additional consideration of some import that 

weighs heavily against the Committee in this case. The public is 

entitled to know that wrongdoers will be punished and the innocent 

exonerated. As the Special Prosecutor discerned: 

There is much more to this question than whether 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 time when the Nation's concern 
about crime has focused attention on our system of justice, 
it would be discriminatory and therefore demoralizing for 
the powerful to go scot-free while ordinary citizens are 
sentenced to prison. i2_' 

C. The Committee has exceeded its 



legislative authority under the Constitution. 
The power of 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 that 
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. 



157 

June 4, 1973, letter from Special Prosecutor Archibald Cox to 

Chairman, Senate Select Committee on Presidential Campaign Activitiei 
p. 3. 



1522 



-27- 

Thompson , 103 U.S. 168(1880). 

The Committee has asserted a broad mandate to get evidence to 

determine "the extent of malfeasance in the executive branch" (Br. 27). 

As the predicate for continuing such an inquiry the Committee contends, 

as it did below, that "revelation of the extent of corruption in the 

executive branch could help engender public support needed for basic 

reforms in the electoral system" (Br. 28; again at pp. 9-10 of Plaintiffs' 

Memorandum on Remand), and that the evidence it seeks is of "vital 

importance in resolving" the question of "whether perjury has been 

committed. " (Br. 29), 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. As the court below 

cogently discerned: 

The Committee's role as a 'Grand Inquest' into governmental 
misconduct is limited, for it may only proceed in aid of 
Congress' legislative function. (J. A. l69). 



Clearly the public interest demands that the charges and 
countercharges engendered be promptly resolved by our 
established judicial processes. (J. A. 166). 



To suggest that at this juncture the public interest requires 
pretrial disclosure of these tapes either to the Committee 
or to the public is to imply that the judicial process has not 
been or will not be effective. (J. A. 168). 



1523 



-28- 
Pursuant to S. Res. 60, 93rd Congress, IstSess. (1973), the 
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. " (J. A, 11, 12). Thus the Committee's mandate was 
to identify illegal, improper, or unethical activities and recommend 
corrective legislation, not to resolve conflicts of 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 

Committee can honor its legislative mandate without having access to 

16/ 
the tapes. As the Supreme Court emphasized in Watkins v. United 

States, 354 U.S. 178, 187(1957): 

Congress [is not} a law enforcement or trial agency. These 
are functions of the executive and judicial departments of 
gove rnment. 



16 / It should be noted that at least two members of the Committee and 
the Committee's Chief Counsel 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: 

"I think we can proceed and file an adequate report 
without the tapes, " said Inouye, a member of the 
Senate Watergate Committee. 



1524 



29- 



The Committee asserts that it needs the subpoenaed materials 
so that it can determine "whether perjury has been committed. " (Br. 29). 



16/ (Con't) 



"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 
n:iatter, I would say that the tapes are absolutely nec- 
essary 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 
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 investi- 
gation 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 committee I am 
certain the Committee report can be made. " 

Senator Gurney stated the following views when he was interviewed 
on Capitol Cloak Room on September 16, 1973: 

"Senator, if we can turn to the question of presidential tapes, 
do you think they are essential to the investigation that the 
Senate is conducting?" 

"SENATOR GURNEY: No. No, I don't. What 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 



1525 



-30- 

Manifestly, the determination of whether a crime has been committed is 
outside of the constitutional powers enumerated for the Congress. If the 



16/ (Con't) 



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 does 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 nnake recommend- 
ations to the Senate. " 

See Transcript at 4-6. 

And, at the October 4, 1973, hearing of Plaintiffs' Motion for Summary 
Judgnnent before Judge Sirica, the Committee's Chief Counsel, Samuel 
Dash stated to the Court: 

I think that in perfect candor if we didn't get the tapes there 
is enough information that the Committee has received in which 
a report, an adequate report might be written in which we could 
make some legislative recommendations. 

Transcript of Proceedings, Senate Select Committee on Presidential 
Canipaign Activities v. Richard M. Nixon, Civil Action No. 1593-73, 
October 4, 1973, at p. 7. 



1526 



.31. 



Committee has received conflicting testimony that it believes may involve 

perjury, the matter should be referred to the Department of Justice for 

appropriate legal action under the provisions of the Criminal Code (18 

U.S. C. §§ 1621-1623). As aptly stated by the court below: 

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 
v/hich cannot, by their very nature, provide the procedural 
safeguards and adversary format essential for fact finding 
in the criminal justice system. (J. A. l68). 

However, the Committee in appealing to this Court 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 circumstances 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 



1527 



-32- 

exceeding the limits 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 legis- 
lative action and all citizens' unremitting obligation to respond to sub- 
poenas. However, this duty adheres only with respect to matters within 
the province of proper investigation. Watkins v. United States, jS4 U.S. 
178, 187-188 (1956). In that case the Supreme Court noted that: 

We cannot simply assume, however, that every congressional 
investigation is justified by a public need that overbalances any 
private rights affected. To do so would be to abdicate the 
responsibility placed by the Constitution upon the judiciary to 
insure that the Congress does not unjustifiably encroach upon 
an individual's right[s] .... 



17/ The Court in Kilbourn v. Thompson, observed that: 

It is believed to be one of the chief nnerits 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 exectivc, 
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 per- 
mitted 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. 



1528 



-33- 
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 subse- 
quent cases of McG£ain v. Daugherty , 273 U. S. 263 (1927), Sinclair v. 
United States, 279 U. S. 263 (1929), and Barenblatt v. United States , 360 
U.S. 109 (1959), so heavily relied upon by the Committee. In those cases, 
the Supreme Court expressly acknowledged the requirement that congress- 
ional inquiries be related to a proper legislative purpose. In McGrain, the 
Supreme Court found that an inquiry into the conduct of the office of the 
Attorney General reflected legitimate legislative concerns and upheld a 
subpoena issued to the brother of the fornner Attorney General. Pointing 
out that the office of the 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. 
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 argument that the investigation was not 
in aid of legislation. Similarly, in Barenblatt , the Court noted that Rule 
XI of the House of Representatives, Eighty-third Congress, had a 
'"persuasive gloss of legislative history' which shows beyond doubt that 
in pursuance of its legislative concerns in the domain of 'national security' 



1529 



-34- 

the House has clothed the Un-American Activities Committee with 

pervasive authority to investigate Communist activities in this country. " 

360 U.S. at 118. The Court in Barenblatt also pointed out the limitations 

on congressional inquiries: 

Since Congress may only investigate into those areas in which 
it may potentially legislate or appropriate, it cannot inquire 
into matters which are within the exclusive province of one of 
the other branches of Government. Lacking the judicial power 
given to the Judiciary, it cannot inquire into matters that are 
exclusively the concern of the Judiciary. Neither can it supplant 
the Executive in what exclusively belongs to the Executive. And 
the Congress, in common with all branches of Government, must 
exercise its powers subject to the limitations placed by the 
Constitution on governmental action more particularly . . . the 
relevant limitations of the Bill of Rights. 360 U.S. at 111-llZ. 

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 frame- 
work 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, 354 U.S. 178 (1956); United States 
V. Rumely, 345 U.S. 41 (1953). 



1530 



-35- 



In Rumely 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 -- notwithstanding the subsequent ratification of 
the committee's action by the full 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. Investi- 
gations conducted solely for the personal aggrandizement of 
the investigators or to "punish" those investigated are 
indefensible. 3 54 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. 



1531 



-36- 

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 constitutional right of every 
individual to a trial free from the probability of prejudicial pretrial publicity. 
The Supreme Court has described the right to a fair trial as "the most fun- 
damental of all freedoms" which "must be maintained at all costs. " Estes v. 
Texas, 381 U.S. 532, 540 (1965). Indeed, the court below cogently recognized 
that: 

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. (J. A. 167). 

Watkins is important too for the flat and famous statement in 

which the Court said: "We have no doubt that there is no congressional 

18 / 
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 legis- 
lation is needed in that area. But the Committee is not the proper forum 
for making ultimate factual determinations. As the Court below noted: 



18 / 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 commissions been 
given the authority to compel the testimony of witnesses or the 
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. 



1532 



37 



Experience and tradition teach that the 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. (J. A. 169). 

Moreover, the Committee asserts that "/i/f Presidential involvement 

were shown, there might arise a strong mandate for thoroughgoing 

reforms;" (Br. 28). The Committee's intention, as expressed, is not 

to fulfill a constitutional duty to legislate or even to inform but implies 

a duty to arouse public support for future legislation. As discussed more 

fully at pp. 55-56, infra, this is the antithesis of the legislative process 

intended by the Framers and found in our Constitution. Manifestly, 

what the Committee is interested in here is "to expose for the sake of 

exposure. " As aptly stated by the District Judge: 

/S/urely the time has come to question whether it is in the 
public interest for the criminal investigative aspects of 
/the Committee's/ work to go forward in the blazing atmos- 
phere of ex parte publicity directed to issues that are 
immediately and intimately related to pending criminal 
proceedings. (J. A. 169). 

The Committee can take no comfort in the ruling in Nixon v. Sirica, 

U.S. App. D. C. , 487 F. 2d 700 (1973), because a careful 



reading of that decision reveals that the court emphasized the "narrow 
contours of the problem" and the fact that the decision was liinited to the 
"precise and entirely unique circumstances of the case. " 487 F. 2d at 704. 
Indeed, the exception to the principle of e.xecutive priv^ilege carved out there 
was "made possible by a unique intermeshing of events unlikely soon, if ever, 



1533 



-38- 

to recur." 487 F. 2d at 705. Moreover, this Court has already recognized 

the great weakness which permeates the Committee's brief on this appeal. 

The Committee proceeds throughout its brief as though Richard M. Nixon 

is no different from any other witness whose evidence a Congressional 

committee would like to have. This is patently wrong when he is President 

of the United States: 

We acknowledge that wholesale public access to Executive 
deliberations and documents would cripple the Executive as 
a co-equal branch. But this is an argument for recognizing 
Executive privilege and for according it great weight, not 
for making the Executive the judge of its own privilege. 
487 F. 2d at 715. 

In addition, this Court said that: "application of Executive privilege 

depends on a weighing of the public interest protected by the privilege 

against the public interest that would be served by disclosure in a 

particular case. " 487 F. 2d at 716. No such balancing process is 

required when a committee is investigating Delaney, Hutcheson, or other 

private individuals involved in cases on which the Committee relies so 

heavily (Br. 17-24). 

It should also be noted that the Committee does not find itself 

in a position analogous to that of a grand jury as in Nixon v. Sirica . 

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 



34-966 O - 74 - pt, 2-21 



1534 



-39- 

from returning any perjury indictments if it did not have access to the 
tapes. But the Committee cannot suggest that its primary function -- the 
proposing of legislation --is completely precluded because there is some 
conflict in the testimony given before the Committee. However, the 
Committee spends considerable space in its brief (Br. 25-26, 28-29) 
attempting to support its argument that the evidence sought here is vital 
so that 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 
privilege. The Con-imittee has had volunninous 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 and there are now actual criminal indictments pending 
trial against a significant number of individuals allegedly arising out of 
Watergate- related matters. Some of the defendants have, in fact, objected 
to extrajudicial disclosure of the material in question here. Moreover, 
all material and evidence relating to the subject matter of this litigation 
that has been given to the Special Prosecutor for submission to the grand 
jury, has been given, at the direction of the President, to the appropriate 
forum, the House Judiciary Committee. 



1535 



- 40 - 

Thus the only remaining question is whether this material should be 
turned over a third time, this time to another congressional committee for 
future legislative and political purposes, when its use might endanger actual 
criminal defendants' constitutional rights to a fair trial, without serving a 
vital and pressing legislative need. The doctrine of separation of powers 
leads us to one compelling conclusion. The judicial branch may not forsake 
its constitutional responsibility to safeguard the fundamental right to a fair 
trial in order to grant unnecessary relief, especially where the asserted 
"informing function" relied upon by the Committee has been adequately 
fulfilled. 

The Committee relies heavily upon Delaney v. United States , 199 F. 
2d 107 (1st Cir. 19 52), and Hutches on v. United States , 369 U. S. 599 (1969) 
(Br. 18). This reliance however, is misplaced. In Delaney , the Court 
held that the district court's refusal to grant a continuance in the wake of 
adverse pretrial publicity generated by a congressional committee "seenns 
to us neither right, nor in harmony with the Sixth Amendment." 199 F. 2d at 
114. 

There are several reasons why that case is inapposite. In Delaney 
the district court was never asked by the congressional committee to enforce 
a subpoena nor did it encourage or assist that committee in any way to 
endanger the constitutional rights of the defendant. Instead, the district 
court granted two continuances to assure a fair trial but even that was not 
enough. Here, the Committee invites this Court, as it did below, to 
become a party to the denial of those same constitutional rights to enable 



1536 



-41- 

the Committee to obtain information of dubious value to its legislative 
purpose. 

Unlike Delaney , this case involves a claim of privilege asserted 
by the President of the United States, pursuant to his Article II mandate, 
to see "that the laws are faithfully executed. " As the court below noted 
the President should "quite properly be concerned with the dangers 
inherent in excessive pretrial publicity. " (J. A. l67). 

In Delaney, a 1952 case. Chief Judge Magruder expressed his 
concern about the prejudicial effects of adverse pretrial publicity, by 
acknowledging that, "[P]erhaps the Supreme Court has not spoken its 
last word upon this vexing subject. " 199 F. 2d at 113. Over a decade 
later the Supreine Court spoke on the subject in the cases of E stes v. 
Texas , 381 U.S. 532 (1965) and Sheppard v. Maxwell , 384 U.S. 333 
(1966). In Sheppard , the court said "[d]ue process requires that the accused 
receive a trial by an impartial jury free from outside influences . . . 
[T]he trial courts must take strong measures to insure the balance is 
never weighed against the accused." 384 U.S. at 362 (emphasis added). 
And in E stes the court emphasized that "[tlhe most fundamental of all 
freedoms is the right to a fair trial." 381 U.S. at 540. It is apparent 
that in the instant case the District Judge heeded this admonition. 

Lastly, it must be noted that the Delaney case stands for judicial 
recognition that damaging pretrial publicity results from congressional 



1537 



-42- 

investigations undertaken to fulfill the congressional informing function. 

While a trial court may grant one or numerous continuances in accord 

with the Delaney decision, to insure the defendant's constitutional right 

of a trial by an "impartial jury, " in doing so it may in effect be depriving 

the defendant of his constitutionally guaranteed right to a "speedy. . . trial, 

an issue not addressed by the court in Delaney . The likelihood of depriving 

a defendant of his right to speedy trial increases when it is governmental 

action that causes prejudicial pretrial publicity. As the court in Delaney 

stated: 

We perceive no difference between prejudicial publicity 
instigated by the United States through its executive arm 
and prejudicial publicity instigated by the United States 
through its legislative arm. The prosecution is by the 
"United States of America" against Denis W. Delaney. 
After the United States has imposed this burden upon the 
defendant, by making it difficult to determine his guilt 
or innocence solely on the basis of evidence to be presented 
at the impending trial, it seems to us neither right, nor in 
harmony with the spirit of the Sixth Amendment, for the 
United States to make him stand trial while the damaging 
effect of all that hostile publicity may reasonably be 
thought not to have been erased from the public mind. 
199 E 2d at 114. 

Thus it follows when the government is the cause of the publicity, 

it is also the "reason for the delay. " In discussing the constitutional 

right to speedy trial, the Supreme Court in Baker v. Wingo , 407 U.S. 514 

(1972), lists "reason for delay" as one of the four "factors wh'ch courts 

should assess in determining whether a particular defendant has been 

deprived of his right." 407 U.S. at 530. 



1538 



- 43- 

While it is paramount that this Court protect the Sixth Amendment 
rights of individual defendants, this Court should not be unmindful of the 
ever present public interest that the innocent be exonerated and the guilty 
be punished, and that this be accomplished promptly. 

Nor can the Committee take comfort in the holding of Hutcheson 
V. United States, 369 U.S. 599 (1962). There the Supreme Court upheld 
a contempt citation under 2 U. S. C. I 192, stating that the questions 
Hutcheson refused to answer were within the proper scope of the Com- 
mittee's inquiry and that the factual record did not support a conclusion 
that they were asked to aid in his pending state criminal trial. 

In Hutcheson , the petitioner in refusing to answer the questions 
of the Senate Select Committee on Improper Activities did not invoke the 
Fifth Amendment privilege against self-incrimination. Instead, he 
claimed he was being denied due process of law when asked questions 
relating to a grand jury investigation, a subject concerning the grounds 
for his indictment. Hutcheson is clearly distinguishable from the present 
case because there the Supreme Court did not have to weigh the committee's 
legislative need against the witness' constitutional right to a fair trial. 
There was nothing to weigh. The committee was acting in a constitutionally 
proper manner and when the witness waived his privilege against self- 
incrimination he also surrendered his claim that he was being denied due 
process of law. 



1539 



44- 



It should also be noted that Justice Brennan, in his concurring 

19/ 
opinion, which supported the majority decision of three Justices, 

sounded a warning when he said: 

Any thought that some of our recent decisions, e.g. Barenblatt 
V. United States , 360 U.S. 109; Wilkinson v. United States , 
365 U.S. 399; Braden v. United States, 365 U.S. 431, weakened 
the vitality of our holding in Watkins v. United States, 354, U.S. 
178, 187, that the congressional power of inquiry is not an end 
in itself; it must be related to, and in furtherance of, a legitimate 
task of the Congress, is dispelled by today's strong expression 
of continued adherence to that vital principle .... 369 U.S. at 
624. 

He further noted that the courts: 

will give the closest scrutiny to assure that indeed a legislative 
purpose was being pursued and that the inquiry was not aimed 
at aiding the criminal prosecution. Even within the realm of 
relevant inquiry, there may be situations in which fundamental 
fairness would demand postponement of inquiry until after an 
immediately pending trial . . . 369 U.S. at 625 (emphasis added). 

Subsequent cases clearly demonstrate that the Court has not- 
hesitated to intervene to protect a citizen's constitutional rights when 
endangered by congressional action. In Powell v. McCormack, 395 
U.S. 486 (1968), the Court stated that an individual's claim of a constitutional 
right: 



19/ Justice Black and Justice Frankfurter took no part in the decision of 
the case. Justice White took no part in the consideration or decision 
of the case and Chief Justice Warren was joined by Justice Douglas 
in dissent. 



1540 



- 45 



falls within the traditional role accorded courts to inter- 
pret the law, and does not involve a "lack of the respect 
due /a/ coordinate (branch) of government, .... Our 
system of government requires that federal courts on 
occasion interpret the Constitution in a manner at variance 
with the construction given the document by another branch. 
395 U.S. at 548-549. 

Also, in Davis v. Ichord, 141 U.S. App. D. C. 183, 442 F. 2d 

1207 (1970), the House Committee on Un-American Activities relied 

on Hutcheson v. United States and Barenblatt v. United States to support 

its contention that the separation of powers doctrine precluded a court 

from interfering with a congressional investigation in aid of legislation. 

This Court, citing Powell v. McCormack, dismissed the contention 

stating: 

This judicial admonition /that one branch of government may 
not lightly interfere with another was/ enunciated in cases 
which involved only part of the spectrum of the judiciary's 
responsibility in relation to Congress, /and/ must be read 
with decisions of the Supreme Court where individual rights 
were alleged to be infringed by Congress in circumstances 
which required constitutional adjudication. 141 U.S. App. 
D. C. at 188, 442 F. 2d at 1213. In accord, Hentoff v. 
Ichord, 318 F. Supp. 1175 (1970). 

Thus, the clear case law supports the judgment of the court below 

in refusing to enforce the Committee's subpoena, which threatens to 

jeopardize the inviolability of an individual's constitutional guarantee 

"to a speedy and public trial, by an impartial jury. ..." U.S. Const. 

amend. , VI. This Court can do no less. 



1541 



-46- 



II. The District Court properly ruled that the Committee failed 
to meet the burden of proof sufficient to obtain a summary judgment for 
the relief it sought and properly dismissed the case . 

A. The order of the District Court should not be reversed 
unless it was clearly erroneous. 

It is the contention of the Committee that this Court should reverse 
the District Court's judgment below if it finds that judgment "erroneous" 
even though it is "not arbitrary or capricious. Broadview Chemical Corp . 
V. Loctite Corp. , 417 F. 2d 998, 1000 (2d Cir. 1969), cert , denied , 397 
U.S. 1064 (1970)." (Br. 9). The Committee also noted that "filn any 
event, . . . [the District Court's] conclusion . . . is, without 'substantial 
evidentiary support' and must leave this Court with the definite and firm 
conviction that a mistake has been committed, and .... constitutes a 
clear abuse of discretion. See Case v. Morrisette, 155 U. S. App. D. C. 
31. 475 F. 2d 1300, 1306-08 (1973)." (Br. 9). 

The District Court found that the Committee "has not established 
by a preponderance of the evidence" that its subpoena should be enforced 
(J. A. l69). Since the conclusion of ihe District Court was based on a 
weighing of the evidence and of the inferences drawn from documents and 
undisputed facts, review here is subject to the "clearly erroneous" standard 
of Civil Rule 52(a). Indeed the Committee itself recognizes this by its 
citation (Br. 9) of Case v. Morrisette , 155 U.S. App. D. C. 31, 475 F. 2d 
1300, 1306-1308 (1973), in which this Court thoroughly and correctly 
discusses the application of the "clearly erroneous" standard. This Court 
has consistently held that: 



1542 



- 47 - 



To be sure, the findings are presumptively correct and 

the burden of persuading us that they are "clearly erroneous" 

rests upon [appellant]. Equally certain it is that we are not 

to weigh the evidence de novo, or disturb the findings simply 

because we might have reached a contrary result on the same 

evidence. 

And not only must ■we give 'due regard, . . to the opportunity 
of the trial court to judge of the credibility of the witnesses, ' 
but we must also measure the findings by the 'clearly erro- 
neous' test even when they are based on inferences drawn 
from documents or undisputed facts , (emphasis added) 
(footnotes omitted) (omission in original). Case v. Morrisette, 
155 U.S. App. D.C. 31, 38, 475 F. 2d 1300, 1307 (1973). 

Judge Robinson's learned analysis in Case v. Morrisette, supra , 

is fully supported by controlling authorities. See also United States v. 

United States Gypsum Co . , 333 UiS. 364, 394 (1947); United States v. 

Yellow Cab Co. , 338 U.S. 338, 342 (1949); C.I.R. v. Duberstein, 363 

U.S. 278, 291 (I960): Zenith Radio Corp . v. Hazeltine, 395 U. S. 100, 123 

(1969); Jackson V. United States, 122 U.S. App. D.C. 324, 327, 353 F. 2d 

862, 865 (1965). For a good discussion of this issue, see Lundgren v. Freeman , 

307 F, 2d 104, 113(9thCir. 1962). The Case decision involved an action for 

a declaratory judgment and a mandatory injunction, like the case at bar, "on 

facts not materially in dispute."—'' 155 U.S. App. D.C. at 34, 475 F, 2d at 

1303. There, this Court in applying the clearly erroneous test, 155 U.S. 

App, D.C. at 43, 475 F. 2d at 1312, found that "on the entire evidence, 'we 

are left with the definite and firm conviction that a mistake has been committed. . 



20 / See footnote 5, supra . 



1543 



48 



155 U.S. App. D, Co at 46, 475 F. 2d at 1315. The Committee is required 
to meet this same standard in the instant case if it is to succeed in over- 
turning the order of the District Court. 

This Court is not free to reverse merely because it might, in the 
first instance, have weighed the facts differently nor on any theory that 
seven heads are better than one. See Hughes Tool Co . v. Varel Mfg. Co. , 
336 F. 2d 61, 62 (5th Cir. 1964). As the Supreme Court has said: 

It is not enough that ^ve might give the facts another 
construction, resolve the ambiguities differently, 
and find a more sinister cast to actions which the 
District Court apparently deemed innocent, because 
our mandate is not to set aside findings of fact "unless 
clearly erroneous." United States v. National Assn. 
of Real Estate Boards, 339 U.S. 495, 495-496 (1950). 
See also Hadco Products , Inc. v. Frank Dini Co. , 40 1 
F. 2d 462, 464 (3d Cir. 1968). 

It cannot be contended -- and the Committee does not argue -- that 

the decision below comes within the rule that "conclusions of law do not find 

shelter in the 'clearly erroneous' requirement" Case v. Morrisette, 155 

U.S. App. D.C. 31, 38, 475 F. 2d 1300, 1308 (1973). When, as here, the 

decision of the trial court results from "the application of the fact-finding 

tribunal's experience with the mainsprings of human conduct to the totality 

of the facts, " the "clearly erroneous" standard is controlling C. I. R. v. 

Duber stein, 363 U.S. 278, 289 (I960). See .Iso Lundgren v. Freeman , 307 

F. 2d 104, 115 (9th Cir. 1962); Note, 49 Va. L. Rev. 506, 531 (1963). 



1544 



- 49 - 

The Committee's reliance on Broadview Chemical Corp . v. Loctite 

Corp ., 417 F. 2d 998 (2d Cir. 1969), cert , denied, 397 U.S. 104 (1970) 

(Br. 9), is not relevant to this Court's review, since the court below 

entertained the Committee's action for a declaratory judgment. In 

Broadview, the trial court was overruled because it failed to entertain 

such action. 417 F. 2d at 1001. Here the District Court considered and 

resolved the issue of justiciability in the Committee's favor and then 

decided against the Committee on the merits (J. A. l65). Thus based on 

the well established case law this Court should affirm the decision below, 

as the Committee recognizes, unless it finds it "clearly erroneous." 

B. The Committee has not met its burden of establishing 
that the District Court's decision was "clearly erroneous " 
and, in fact, the evidence indicates it was clearly correct 
in dismissing the Committee's suit. 

The Committee has certainly failed to demonstrate that the District 

Court's decision was "clearly erroneous." The undisputed evidence, on the 

contrary, supports the clear correctness of that decision. In reviewing the 

District Court's decision, this Court should focus primarily upon whether 

the Court below correctly balanced the risks of harm to individuals from the 

probability of prejudicial pretrial publicity against the interest of the 

Committee in making future laws. It should be noted that even the Committee 

seems to recognize that it must meet the burden of showing "a demonstrable, 

pressing legislative need for the evidence subpoenaed" (Br. 1-2) as part of 



1545 



- 50 - 

the balancing test. Thus while the District Court must balance the factual 
inferences, the proper decision depends on both (1) whether there is 
"a demonstrable, pressing legislative need" and (Z) how immediate and 
concrete is the probable danger to fair trials. Unless the Committee can 
show that their "pressing need" is such as to clearly outweigh any 
probability of "danger" to an individual's Sixth Amendment rights, then 
it has not established that the District Court's balancing was "clearly 
erroneous." The Committee's brief on appeal suggests that the Committee 
believes its "pressing need" is self-evident. We cannot agree. From the 
undisputed evidence and the lack of support to be found in the Committee's 
brief, it is manifest that the Committee has clearly failed to meet its 
burden on both points. 

In the Committee's brief it is asserted that "[w]here 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" (Br, 25). Later in its brief the Committee cites the 
language of McGrain v, Daugherty , 273 U^S, 135 (1927), and Watkins v. 
United States, 354 U.S. 168(1957), to support its contention of the 
importance of the informing function of Congress and of the necessity of 
information for the legislative process (Br. 25-26), Of course we agree 



1546 



- 51 - 

that legislation drafted without knowledge is bad legislation. It is, however, 

absurd to assert that the information sought on the tapes is of the type 

necessary to draft corrective legislation. 

Mr. H. R. Haldeman, Mr. John D. Ehrlichman, and Mr. John W. 

Dean, III have testified as to the substance of the material on the tapes. 

In this regard, it is also appropriate to quote from the President's 

July 23, 1973, letter to Chairman Sam J. Ervin of the Committee: 

If release of the tapes would 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 dis- 
closure. 

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. (J. A. 40). 

The only possible additional type of infornnation the tapes could provide 

relates to guilt or innocence and to the credibility of witnesses, if they 

could provide that. This type of information is unnecessary to the 

? 1 / 
Committee's immediate legislative task. -=-5-' Rather, it goes to the key 



Zl/ See footnote 16, supra . 



1547 



- 52 - 

judicial task of determining guilt or innocence and of deciding whether, 
in fact, a person has committed a crime such as perjury. ±ii' 

The Constitution precludes Congress from usurping judicial 
functions. For example, under Article I, Section 9, it may not pass bills 
of attainder. The only arguable area where a proper congressional need 
for the kind of information relating to guilt or innocence is present in an 
impeachment proceeding. And, of course, this is the very area where 
the President has turned over all the material in question to the proper 
forum, the House Judiciary Committee. As noted by the District Judge, 
"Congressional demands, if they be forthcoming, for tapes in furtherance 
of the more juridical constitutional process of impeachment would present 
wholly different considerations..." (J.A„ l68). 

The most important point to be noted is that where the material in 
question has been requested for proper governmental functions -- the 
judicial determination of criminal conduct or the removal of executive 
officers via impeachment for grave crimes -- the President has submitted 



22/ It should again be remembered that the prosecution of perjury, 
whether before a court or a congressional committee, is a 
judicial, not legislative function. While the Committee has 
talked of the need to protect the integrity of its processes 
(Br. 29), when this results in punishing individuals it is a 
judicial task. Indeed the indictment in United States v. 
John N. Mitchell, et. al. , Criminal Case No. 74-110 
(D. D. Co 1974), includes counts alleging perjury before the 
Committee. Thus the Committee's asserted need for infor- 
mation to protect the integrity of its processes is completely 
lacking in merit. 



1548 



-5 3 - 

it to the appropriate forums, the Special Prosecutor and the House 

Judiciary Committee. On the other hand, the Committee has yet to show 

"a demonstrable, pressing need" or, in fact, any persuasive need. 

It has also been alleged by the Committee that in drafting corrective 

campaign legislation it must know whether the President was guilty of the 

alleged act in question (Br. 27-28; again at p. 6 of Reply to Defendant's 

Response to Plaintiffs' Memorandum on Remand). This information, 

according to the Committee, is necessary to determine the nature of 

the proposed legislation. This argument misconceives the nature of the 

legislative process and hence the concept of legislative need. To suggest 

that in order to draft a law you must know if it has been broken defies 

logic! As former Chief Justice Warren, joined by Justice Douglas, stated 

in dissent in Hutcheson v. United States : 

Not only would it be contrary to the holding in Kilbourn 
to conclude otherw^ise, but it is incomprehensible to me 
how it can be urged that Congress needed the-details of 
how petitioner committed this alleged crime in order 
to pass general legislation. . . Hutcheson v. United States , 
369 U.S. 599, 636 (1962). 

In order to prohibit an act it is not necessary to know^ whether an indivi dual 

has, in fact, done the act. Rather we ask whether the action in question is 

of a kind that should be prohibited. In applying this principle, the 

Committee's legislative task is simple: to draft general standards, not to 



1549 



-54- 

find specific instances of guilt. This last function the Constitution has 

delegated to the Judicial Branch. As emphasized by Chief Justice Warren, 

speaking for the majority, in Quinn v. United States , 349 U.S. U.S. 155, 

l6l (1955): 

Similarly, the power to investigate must not be confused 
with any of the powers of law enforcement; those powers 
are assigned under our Constitution to the Executive and 
the Judiciary, 

The Committee's real concern and sole responsibility is, in the 

words of Senate Resolution 60 of the 93rd Congress, which established 

the Committee (J. A. 12); 

to determine whether in its judgment any occurrence 
which may be revealed by the investigation and study 
indicate the necessity or desirability of enactment of 
new congressional legislation to safeguard the electoral 
process by which the President of the United States is 
chosen. 

Upon this task the Committee has gathered thousands of pages of testimony, 

heard from dozens of witnesses, (it should be noted that wherever executive 

privilege or the lawyer-client privilege was applicable to these witnesses 

it was waived by the President so that the Committee might fully perform 

its legislative task) (J, A, 35-36) and conducted its investigation for over 

a year. At this stage of the Committee's business the legal and legislative 

issues involved deal largely with public policy questions and principles. 

For example, should campaigns be publicly financed or should a President 



1550 



.55 - 

be limited to one term? These questions relate to general principles and 

deeply held values, not specific cases of individual conduct. 

It is hardly reasonable to argue, as the Committee did below 

(p. 6 of Reply to Defendant's Response to Plaintiffs' Memorandum on 

Remand), and apparently still does (Br, 27-28), that legislative limitations 

on Presidential participation in the electoral campaign or Presidential 

tenure in office depend for their adoption or rejection on the alleged 

misdeeds of any particular President. Legislati/e need cannot be founded 

on such spurious grounds. As has been noted by the Supreme Court: 

Nor is the Congress a law enforcement or trial agency. 
These are functions of the executive and judicial depart- 
ments of government. 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. 
Watkins V. United States , 354 U.S. 178, 187 (1956) 
(emphasis added). 

Another contention of the Committee is that the tapes sought are 

needed to engender public support for the "needed" reforms in campaign 

legislation (Br. 28). It should be noted that this argument does a great 

disservice to the Congress and to the American people. It implies that 

Congress will not act unless it is emotionally stirred up by disclosures 

of alleged wrongdoing. The Framers thought that the merits of a proposal 

were what should gain it support. They designed an elaborate system for 



1551 



-56 - 

screening out the enthusiasms of the moment and built into the Constitution 
procedures causing legislation to be considered several times before 
becoming law, so that ill-conceived proposals would be less likely to 
become bad laws. U.S. Const., Arts. I, II. The whole suggestion of 
using information relating to potential wrongdoing as a legislative catalyst, 
in this regard, militates against the very essence of constitutional govern- 
ment and due process of law. It certainly cannot be relied upon to support 
a contention of legislative need. Rather, it argues for the political 
significance of the tapes, not their legislative usefulness. A look at 
the language of the Committee's brief leaves no doubt about the political, 
not the legislative, significance of the tapes: 

Moreover, revelation of the extent of corruption in the 
executive branch could help engender the public support 
needed for basic reform in our electoral system. If 
Presidential involvement were shown, there might arise 
a strong public mandate for thorough going reforms; if 
no Presidential involvement were revealed, the public 
and the Congress might be satisfied that lesser measures 
were adequate. .. (Br. 28) (emphasis added). 

Thus it seems clear that the Committee has not significantly shown that 

it has, in its own words, "a demonstrable, pressing legislative need." 

However, even if the Committee had made such a showing the District 

Court's decision is not only not "clearly erroneous, " but clearly correct 

in view of the counterveiling constitutional interests it was protecting. 



1552 



.57 



The District Judge was certainly speaking to the most basic 

values of our constitutional system when he noted: 

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. 
(J. A. 166). 



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 considera- 
tions. 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. (J. A. I68). 



To suggest that at this juncture the public interest requires 
pretrial disclosure of these tapes either to the Committee 
or to the public is to imply that the judicial process has 
not been or will not be effective in this matter. All of the 
evidence at hand is to the contrary . (J. A. I68) (emphasis 
added). 

The District Court upon weighing the implications of the undisputed 

facts opted for the critical value of the right to a fair trial over the 

speculative need for the tapes. This result can hardly be called a "clearly 

erroneous" reading of the facts. 



1553 



-58 



Further, the language of the District Court has been reinforced 
by subsequent developments. First, there are now actual criminal 

indictments pending trial against a significant number of individuals, 

23/ 
allegedly arising out of Watergate-related actions. — Second, some 

of these defendants have, in fact, already objected to extrajudicial 

disclosure of the material in question here. This fact highlights the 

prescience of the District Judge in properly weighing the danger of 

prejudicial pretrial publicity to the constitutional rights of the then only 

potential criminal defendantSo And third, this very same material has 

been turned over to the House Judiciary Committee, the only appropriate 

committee of Congress for inquiring into specific allegations of crime 

against individuals within the executive branch of government. The 

disclosure of the tapes thus now poses an even more immediate concrete 

danger of causing prejudicial pretrial publicity to the rights of actual, not 

potential, criminal defendants. The complete lack of justification for 

extrajudicial disclosure is now even more pronounced. 

In light of these later considerations the District Court's balancing 

of interests, which was correct on the facts then before the Court, would 



23 / At the time the Committee filed its brief its assertion that "no 

potential Watergate defendant has lodged a complaint in this case 
that his trial will be prejudiced by release of the tapes" (Br. 34), 
while factually correct was disingenous. For at that time there 
were no indictments, thus no interested defendants. Now, however, 
this is not true (emphasis added). 



1554 



.59 



today be even more so<, The Committee has certainly not met its burden 

of showing that the District Court's decision is "clearly erroneous." 

Ill, The Committee may not properly request relief from this 
Court that was not sought from the District Court . 

In Part III of its brief (Br. 36-39) the Committee for the first time 
in this litigation puts forward, as an alternative to the full disclosure it 
asks for in the earlier portion of the brief, a request that the tapes be 
turned over to it subject to a protective order that would prevent public 
disclosure of what is in the tapes. Thus it now asks for the first time 
for relief that it did not request from the District Court contrary to the 
well-established rule of appeal and error that a reviewing court "will not 
undertake to review what the court below did not decide." Walters v. 
City of St. Louis , 347 U.S. 231, 233 (1954). Appellate tribunals have 
frequently held that "ordinarily an appellate court does not give considera- 
tion to issues not raised below." Horniel v. Helvering, 312 U.S. 552, 
556 (1941). 

This rule has been consistently recognized in this Circuit, Brown v. 
Rudberg , 84 U.S. App. D, C. 221, 222, 171 F. 2d 831, 832 (1948); Keyes v. 
Madsen , 86 U.S. App. D.C. 24, 26, 179 F. 2d 40, 42 (1949), cert, denied 
339 U.S. 928 (1950); American Air Export &: Import Co. v. O'Neill, 95 U.S. 
App. D.Co 274, 276, 221 F. 2d 829, 831 (1954); Hardy v. Northwestern Federal 



1555 



- 60 



Savings fc Loan Assoc , et al. , 102 U.S. App. D. C. 371, 372, 254 
F. 2d 70, 71 (1957); Stouper v. Jones , 109 U.S. App. D. C. 106, 109, 284 
F. 26 240, 243 (I960); Calhoun v. Freeman , 114 U.S. App, D. C. 385, 
387, 316 F. 2d 386, 388 (1963); Dart Drug Corp . v. Parke , Davis & Co. , 
120 U.S. App. D. C. 79, 89, 344 F. 2d 173, 183 (1965). The holding of 
this Court, speaking through then-Judge Burger in Osin v. Johnson , 100 
U.S. App. D.C. 230, 235, 243 F. 2d 653, 658 (1957), is pertinent to the 
instant case: "[i]t is not the function of this court to resolve whether 
the facts warrant the imposition of a constructive trust since appellant 
failed to point out the possibility of such a course to the District Court. ..." 
Here that teaching may be stated with equal force since it is not the function 
of this Court to resolve whether the facts w^arrant the issuance of a pro- 
tective order when such relief was not requested from the District Court. 

This rule is particularly applicable in the case at bar where the 
new relief is inconsistent with the relief sought in the District Court. 
This patent inconsistency is highlighted by the public disclosure rationale 
upon which the Committee so greatly relied to support its argument in 
the lower Court. Until the Committer filed its brief with this Court it 
never expressed a willingness to accept the evidence subject to a protective 
order or a willingness to waive "separation of powers considerations" 



1556 



-61 - 

(Br. 37)„ That the Committee's present request is not only inconsistent 
with but contrary to the relief sought below is particularly highlighted by 
the Committee's statement in a footnote on page 4 of its "Plaintiffs' 
Observations on the President's Letter and the Special Prosecutor's 
Memorandum" filed on February 7, 1974, a day prior to the District 
Court's ruling. Here the Committee gratuitiously told the District 
Court: "[w]e see no reason for the Court to impose restraints as 
to how such material may be used - a course that, in any event, would be 
of doubtful validity in view of separation of powers and comity considera- 
tions. ..." 

Furthermore, the Committee's argument to the District Court relied 
heavily on the need to make the contents of the tape public. — ' Thus the 
Committee should not now be heard in this forum seeking this relief. It 
v/ould be a novelty in our jurisprudence -- and hardly a desirable one -- 
if a District Court were to be reversed for failure to give plaintiffs a 
relief that they never sought in that court and that is inconsistent with 
the arguments they presented for the relief they did seek. 



24/ Thus at p. Zl of the Plaintiffs' Memorandum on Remand the Connnnittee 
told the District Court that "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." Again at p. 22 of that 
document the Committee said: "Public revelation of all Watergate facts 
is also needed to deter repetition in the future of wrongdoing by govern- 
mental officials." In the footnote at p. 22, and again in the footnote at 
p. 8 of Reply the Committee laments the possibility "that evidence 
submitted to the Special Prosecutor will never become public." Other 
expressions of the supposed iniportance of making this material public 
as a part of the Committee's "informing function" appear at pp. 10, l6, 
and 20 of Plaintiffs' Memorandum on Remand and at p. 7 of the Reply, 



1557 



-62 - 

While this Court may rely on a new ground to affirm the decision of 
the District Court in this case, it may not rely on new grounds to reverse. 
For "[i]t is a familiar rule of appeal and error that decisions may be upheld 
on a ground acceptable to the appellate court (but not relied on by the trial 
court) even though the ground of the trial court is rejected. Except in 
the manifest error cases, it is the rule that an appellant cannot stand on 
a new ground found first in the appeal." C. I. R. v. Bclridge Oil Co., 267 
F. 2d 291, 295 (9th Cir„ 1959); Continental Can Co. v. Horton , 250 F. 2d 
637, 645 (8th Cir, 1957). 

In the case at bar the Committee was not in any way precluded from 
seeking in the District Court the relief it now requests. The Committee 
could have done so in its original pleadings, or in amended pleadings, but 
for some reason it elected not to do so. Even after it received an adverse 
ruling in the District Court it could have filed a motion in that court to 
alter or modify the judgment pursuant to Civil Rule 59(e), but it once again 
elected not to do so. Moreover the Committee's case ^vas dismissed by 
the District Court without prejudice. 

It is interesting to note however that the Committee seeks to circumvent 
the well-established rule of law on this point by attempting to characterize 
the relief it now seeks as a "nnodification" (Br. 36). The District Court 
stated: "the Select Committee has not established by a preponderance 



1558 



-63 - 

of the evidence that it is 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 pre- 
judice." (JoA. 169-170). The District Court's order is straightforward 
and unequivocal. Thus, despite the Committee's assertion, only a super- 
ficial glance is needed to determine that the relief sought is not merely a 
technical modification, but actually a substantive reversal of the District 
Court's order. The word "modify" has been judically construed, "[it] 
means to alter; to change in incidental or subordinate features;..." Smith v. 
Ray , 140 Ohio St. 394, 398, 79N.E. 2dll6, 118(1948), In Best Foods v. 
United States, 158 F. Supp. 583, 589 (1957), the court in discussing the 
verb "modify" noted "[l]t is pertinent also, that it connotes, not a major 
change, but an alteration only in the thing modified." The words of this - 
Court in State Airlines v. Civil Aeronautics Board , 84 U. S. App. D. C. 374, 
378, 174 F. 2d 510, 514-515 (1949) are particularly germane to this case: 

We do not agree with the Board and with Piedmont 
that, .. the routes.,,are a mere modification. Such 
a claim seems to us to be a distortion of reality and 
a totally unreasonable capricious, and arbitrary 
interpretation of the ^vord "modification." To be sure, 
the word "modification" normally connotes change or 
altering, but such a change or altering must not be 



ir)39 



64 - 



great and must not result in so transforming the 
original thing to be modified as to make of it some - 
thing entirely new and different in substance. Volume 
VI of The Oxford English Dictionary (1933 Edition) 
defines "modification" as "the action of limiting, quali- 
fying, or 'toning down' (a statement, etc.); a limitation, 
restriction, or qualification. _|_|^ In Linn v. Linn, /24Z Ala. 
688, 8 So. 2d 187, 188(19422/, the Supreme Court of Alabama 
said: "Modify ordinarily is not used in a sense of com- 
pletely setting aside the thing to be modified, but to limit, 
qualify as moderate." (emphasis added). 

In any event whether the relief sought by the Committee is 
incorrectly denominated as a "modification, " or correctly 
characterized as a "reversal," the Committee is not entitled to 
seek it now in tliis forum. 

While the Committee cannot seek new relief because of in- 
surmountable procedural barriers, courts have on occasion looked to 
the merits of such claims in order to affirm the lo-wer court. Affirming 
the District Court in Dart Drug Corp . v. Parke , Davis Jt Co. , supra, 
this Court, speaking through Judge McGowan, stated: 

Parke, Davis urges upon us with some force that 
Dart should not be allowed to have it both ways, 
that is to say, to present its case on one theory 
to the District Court and then, through new counsel, 
to seek reversal by taking a new tack before us. 
We agree that a decent respect for the principle of 
orderliness in litigation, quite apart from the 
deference due a District Judge who labored mightily 
to guide counsel away from the pitfalls of his own 
position, should make us slow to find reversible 



1560 



6a 



error by reason of new and different contentions 
made here for the first time. But caution is not 
the same as immobility where justice is involved, 
and \ve are confident we have the unreserved con- 
currence of the District Judge in turning to an 
examination on their merits of the points which 
counsel now says should have been made before. 
120 U.S. App. D. C. at 89, 344 F. 2d at 183. 

Judge Bazelon in American Air Export & Import Co . v. O'Neill, supra , 

stated, "since this contention was not urged below^, -we need not consider 

it here. But it is without merit in any evento " 95 U. S. App. D. C. at 276, 

221 F. 2d at 831 (footnote omitted). 

This rule of law taken in conjunction with the principles enumerated 
in C.I. R . V. Belridge Oil Co. , 267 F. 2d 291, 295 (9th Cir. 1959), and 
Continental Can Co . v. Horton , 250 F. 2d 637, 645 (8th Cir. 1957) is 
particularly pertinent to the instant case. Here new material facts reinforcing 
the District Court's order have occurred subsequent to that order, thus 
supplying this Court with additional grounds for affirmance. 

These new facts are as follows. First, there are actual criminal 

defendants whose rights may be adversely affected by the probability of 

25/ 
prejudicial pretrial publicity. — Second, counsel for numerous defendants 

have voiced serious objections to disclosure of information, including the 



25 / United States v. John N. Mitchell et al . , Criminal Case No. 74-110 
(D.D. C. 1974), is presently scheduled for trial on September 9, 1974. 



1561 



-66- 

2f> / 
subject matter of this case, beyond the confines of grand jury proceedings. — 

Third, all material and evidence relating to the subject matter of this 

litigation that has been given to the Special Prosecutor for submission to 

the grand jury has been turned over, at the direction of the President, to 

the appropriate forum, the House Judiciary Committee. In light of 

these recent occurrences, this Court has additional factual grounds for 

affirming the District Court's order. 

The Cominittee's new proposal and its statement in its brief "that 

the order would limit access to the tapes to a severely limited number of 

persons and would prohibit public revelation of their contents. . ." (Br. 37) 

is a triumph of hope over experience. The history of the Committee's 

27/ 
inability to prevent "news leaks" belies its assertion of future confidentiality. — 

Furthermore this claim viewed in light of several significant facts contradicts 

the Committee's position. First, the Committee is scheduled to go out of 

existence on May 28, 1974, and thus plans to make a full public disclosure 



26/ See footnote 8, supra . 

27/ See, for example, the statement of Senator Ervin: "I notice 

in recent months leaks have come out of. ,. every Congressional 
Committee of both Houses of Congress. It is a most deplorable 
state and very unjust to people who have become victims of these 
leaks." Hearings before the Select Committee on Presidential 
Campaign Activities of the United States Senate, 93rd Cong., 
IstSess., bk. 10. at 3904. 



1562 



-67- 

p Q / 

on or before that date,— 2-' The Committee in its "Motion For Reconsidera- 
tion of Date Set For Oral Argument" filed on March 11, 1974, represented 

to this Court "/l/t is highly unlikely that the Committee will seek further 

29/ 
extension of this date or that the Senate would approve an extension." — 

Second, criminal prosecutions are scheduled for trial after the Committee's 

expiration date, — and, clearly, the Committee cannot fulfill its stated desire 

to inform the public without possibly prejudicing the constitutional rights of 

numerous defendants. 



28/ See for example, statement of Committee's Chief Counsel, 
Samuel Dash: "The investigation. ,. will be completed 
shortly and then the Committee will review and release 
publicly the information we gathered and the relevant 
portion of the executive session testimony. There will 
be no concealment of any relevant things. " Washington 
Post , February 20, 1974, p. All, Col. 1. 

29/ This representation weakens the Committee's argument, 
for if in fact this need were so justified the Committee 
would not hesitate to seek an extension of its expiration 
date, nor would the full Senate be reluctant to concur. 
This is particularly evidenced by the obvious fact that 
it is extremely unlikely that there can be a final adjudi- 
cation by the Supreme Court before the Committee's 
expiration date, which the Committee well knew on 
March 11, 1974 when it filed its motion. 

30/ See footnote 2 5, supra . 



1563 



■68 



Moreover, there is a probability that the contents of the tapes 

31/ 
will eventually be made public. — There is an additional substantial 

ground to support this belief in light of the receipt of the material by the 

House Judiciary Committee. Thus the validity of the Committee's argument 

in this regard is considerably diminished, if it is not in fact completely 

destroyed. 

As shown above this pressing need as a practical mattrr is less 
than compelling. In addition, even if the Committee were successful in 
maintaining the confidentiality of the tapes, any report written by the 
Committee with access to information disclosed on the tapes, but without 
actual disclosure of the tapes, would result in inferences and conclusions 
that may or may not be justified by the actual facts. It would be impossible 
to read the report without knowing what the Committee thinks the tapes showed 
about the credibility of witnesses who appeared before it. Thus, the potential 
unfairness to many individuals, including the defendants in various criminal 
prosecutions, is manifest. 

The Committee's claim that "[t]his procedure should satisfy the 
lower Court's only concern -- that the tapes would be played 'in the blazing 
atmosphere of ex parte publicity directed to issues that are immediately 
and intimately related to pending criminal proceedings'" (Br. 38) 



31 / The Special Prosecutor intends that such tapes will be used 
as evidence in future trials (J. A. 156, 160). 



1564 



- 69 - 

conveniently ignores the fact that its present request would produce 
additional concerns for the lower court. The District Court could have 
expressed these concerns if the Committee's request had been presented 
to it. One such concern would be the details and provisions of the re- 
quested protective order. Perhaps an even more overriding concern 
would be the actions to be taken by the District Court in the event there 
was a breach of its protective order. At a minimum the Court could 

address the question of accountability. But in the unlikely event that a 

32/ 
leak could be discovered, — whether the court could hold a Senator or 

an employee of the legislative branch in contempt for violating provisions 

of its protective order raises an additional question of serious magnitude. 

Gravel v. United States , 408 U.S. 606 (1972). 

Thus while the Committee asserts that "this procedure should 

satisfy the lower Court's only concern" (Br. 38) regarding the relief 

sought below, this new procedure would necessarily create other concerns 

and increase the probability for "needless friction" for the court with a 

coordinate branch (see Sanders v. McClellan, 150 U.S. App. D. C. 58, 63, 

463 F. 2d 894, 900 (1972); Ansara v. Eastland, 143 U.S. App. D. C. 29, 31, 



32/ See, for example, the statement of the Committee's Chief Counsel 
Mr. Samuel Dash: "We have had a problem like this before and I 
think we all know that the problem of leaks is one that cannot always 
be solved. " Hearings before the Select Committee on Presidential 
Campaign Activities of the United States Senate, 93rd Cong. , 1st Sess. 
bk. 10 at 3903. 



1565 



- 70 - 
442 F. 2d 751, 753 (1971)) in the event the order which the Committee 
is now seeking were breached. 

Thus since this contention was not urged below, this Court 
need not consider it here. "But it is without merit in any event. " 
American Air Export & Import Co . v. O'Neil, 95 U.S. App. D. C. 
274, 276, 221 F. 2d 829, 831 (1954). 

Conclusion 
For the foregoing reasons, the judgment of the District Court 
should be affirmed. 

Respectfully submitted, 



Of Counsel 



JOHN J. CHESTER 




.^Av.Cf^ 



'JAMES D. 'ST. CLAIR 
MICHAEL A, STERLACCI 
JEROME J. MURPHY 
LOREN A. SMITH 
CHARLES ALAN WRIGHT 
2500 Red River Street 
Austin, Texas 78705 

Attorneys for the President 

The White House 
Washington, D. C. 20500 
Telephone Number: 456-1414 



-966 O - 74 - pt. 2-23 



1566 



CERTIFICATE OF SERVICE 

I, James D. St. Clair, hereby certify that on the 27th day of 

March, 1974, I served the foregoing Brief of Appellees by causing 

copies thereof to be hand-delivered to the offices of 

Samuel Dash 

Chief Counsel 

Senate Select Committee 

on Presidential Campaign 

Activites 
United States Senate 
Washington, D. C. 205 10 




^^^ 



1567 



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 



RICHARD M. NIXON, Individually and as 
President of the United States 



Appellee 



RECEIVED 

APR 1 1974 

" CLERK OF THE UNITED 
-iI*IK_COURTJ)F APPEAIS 



No. 74-1258 



REPLY BRIEF OF APPELLANTS 



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 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 
W. Dennis Summers 

Assistant Counsel 

United States Senate 
Washington, D.C. 20510 
Telephone Number 225--0531 



April 1, 1974 



Attorneys for Appellants 



1568 



TABLE OF CONTENTS 



I. The New Rule Of Law Propounded By The District 
Court Is Not Sustainable 



n. If A Balancing Test Is Proper, The Balance Must 
Be Struck For Congress, Particularly In View Of 
Recent Events 15 

A. The Danger To Fair Trials Is Minimal, ... 15 

B. Appellants Are Fulfilling Valid 
Legislative Purposes And Have A 
Pressing Need For The Material In 
Question 21 

1. Appellants Have Not Exceeded 
Their Legislative Authority 

Under The Constitution 21 

2. The Committee Has A Vital 
Need For The Material At 

Issue 27 

m. If The Court Finds Appellants' Challenges To 
The Lower Court's Opinions Not Sustainable, 
Appellants Will Accept A Protective Order That 
Will Guard Against Pretrial Publicity; This 
Court Has Authority To Rule On The 
Appropriateness Of A Protective Order 34 

CONCLUSION 39 



1569 



TABLE OF CITATIONS 
TABLE OF CASES 

* Application of United States Senate Select Committee on Presidential 

Campaign Activities , 361 F. Supp. 1270 (D. D. C. 1973) 24 

Baker v. Carr , 369 U. S. 186 (1962) 6 

* Barenblatt v. United States, 360 U.S. 109 (1959) 9, 22 

* Barsky v. United States, 83 U. .S.. App. D. C. 127, 167 F. 2d 241 (1947) 

cert, denied, 334 U.S. 843(1948). 9, 30 

Case V. Morrissette, U.S. App. D. C. , 475 F. 2d 1300 (1973^.. 7 

Dart Drug Corp. v. Parke, Davis Si Co . , 120 U.S. App. D. C. 79, 344 

F. 2d 173 (1965) 36 

* Delaney v. United Spates , 199 F. 2d 107 (1st Cir. 1?52) 23 

Dennis v. United States, 84 U. S. App. D. C. 31, 171 F. 2d 986 (1949) 9 

* Haldeman v. Sirica , (C.A.D.C. Nos. 74-1364, 74-1368, March 21, 1974). . 3, 4, 5, 19 

* Hutcheson v. United States, 369 U. S. 599 (1962) 9, 10, 11, 12, 

14,23,24,25, 
29, 30 

* I n Re Report and Recommendation of June 5, 1972 Grand Jury Concerning 
Transmission of Evidence to the House of Representatives, Misc. No. 

74-21(D. D. C. March 18, 1974) 2, 38 

Kilbourn v. Thompson. 103 U.S. 168 (1880) 24 

* McGrain v. Daugherty, 273 U.S. 135 (1927) 21, 22, 23, 

25, 29 

* Nixon V. Sirica, ^U.S. App. D. C. , 487 F. 2d ''OO (1973)... 5,6,7,10 

Powell v. McCormack, 395 U. S. 486 (1969) 6 



* Cases chiefly relied upon are marked by an asterisk 



1570 



Sanders v. McClellan , 150 U.S. App. D. C. 58, 463 F. 2d 894 (1972),.. 11, 23 

Senate Select Committee On Presidential Campaign Activities et. al v. 

Nixon, C.A. No. 1593-73 (D.D.C. Feb. 8, 1974) passim 

Shelton v. United States. 131 U.S. App. D. C. 315, 404 F. 2d 1292 (1968), 

cert, denied , 393 U.S. 1024 (1969) 30 

Silverthorne v. United States , 400 F, 2d 627 (8th Cir. 1968), 

cert, denied, 400, U. S. 1022 (1971) 25 

Sinclair v. United States, 279 U. S. 263 (1929) 23 

United States v. Chapin , Crim. No. 990-73 (Feb. 23, 19''4) 13 

United States v. Costello , 198 F. 2d 200 (2nd Clr. 1952), cert, denied , 

344 U. S. 874 (1952) 23 

United States v. Mitchell , Crim. No. 74-110 (March 1. 1974) 12, 38 

United States v. Orman , 207 F. 2d 148 (3rd Cir. 1953) 23 

United States Servicemen's Fund v. Eastland , U.S. App. D. C, 

488 F. 2d 1252 (1973) 11 

* Watkins v. United States, 354 U.S. 178(1957) 13,22,24, 

29 

Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579(1952) 34 



* Cases chiefly relied upon are marked by an asterisk. 



1571 



TABLE OF STATUTES, RULES & RESOLUTIONS 

Public Law 93-190 (Dec. 18, 1973), to be codified as 18 U.S. C. § 1364... 33 

Fed. R. Civil P. 54(c) 7 

Local Rule 1-27 of The United States District Court for the District of 

Columbia 12, 13 

Senate Resolution 60, 93rd Cong. , 1st Sess. (1973) 4, 25 

Senate Resolution 194, 93rd Cong. , 1st Sess. (1973) 5, 26,31, 

32, 33 

MISCELLANEOUS 

Affidavit of Senator Sam J. Ervin to the District Court (attached to the 
Supplen^ental Memorandum in Support of Plaintiff's Motion for 

Summary Judgment) 32 

Congressional Record, S 2012-13, Nov. 7, 1973 5 

New York Times, pp. Al, A. 26, March 27, 1974 3 

Report and Reconnnnendation, Watergate Grand Jury 4 

Washington Star-News, p. A9, March 22, 1974 3 



1572 



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. ERVIN5 JR., HOWARD H. BAKER, JR. 
HERMAN L. 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. 74-125! 



REPLY BRIEF OF APPELLANTS 
Several significant events have transpired since appellants 
filed their initial brief that have radically changed the context in 
which this appeal must be decided. 



1573 

- 2 - 

On March, 1, 1974, the Watergate grand jury, in addition 
to issuing indictments, filed a document entitled Report and 
Reconnmendation and accompanyine; materials with the United 
States District Court for the District of Columbia. As described 
by Judge Sirica, this document "strongly recommends" that the 
accompanying materials, which deal with the President's in- 
volvement in the matters the grand jury had been investigating, 
be forwarded to the Commiittee on the Judiciary of the House of 
Representatives for its Impeachment inquiry. Ecciuse the 

five tapes Sought in the present liti^-tiori were submitted to the 

** / 
grand jury, it is presunned that relevant portions of those tapes 

were included in the accompanying materials filed with the 

District Court. 

On March 18, 1974, the District Court, over the objections 

of the seven persons named in the Watergate indictment who 

claimed their trials would be prejudiced, ordered the materials 

forwarded to the House Judiciary Committee. It is significant 

that this action was taken with the express urging of the Special 



'(^ / See File Opinion (p. 1 ) in In Re Report and Recommendation of 

June 5, 1972 Grand Jury Concerning Transmission of Evidence 

To the House of Representatives . (D. D. C., Misc. No. 74-21, Mar. 18, 1974 

* */ See Amicus Curiae Brief of the Special Prosecutor, pp. 2-3. 



1574 



- 3 - 
Prosecutor and without objection by the President. The District 
Court imposed no restriction on the use of these materials by 
the House Judiciary Committee. 

This Court, on March 21, 1974, upheld the District Court's 
action. Haldeman v. Sirica (C.A.D. C. Nos. 74-1364, 74-1368, 
March 21, 1974 ) . The Court, in discounting the possibility of 
future prejudice to the seven defendants, took particular note of 
the Special Prosecutor's belief and Judge Sirica's conclusion that 
fair trials would not be tnteriered V/ith by" transmittal of the 
materials to the House. No interesUu p^lty SCUght review of this 
Court's ruling in the Supreme Court and the House now has the 
materials involved. 

Moreover, the President has independently forwarded all 
the materials supplied the Special Prosecutor (including the five 
tapes here considered) to the House Committee. The President 

raised no claim of executive privilege to prevent disclosure of 
these materials to the House. Neither did he assert that their 
release w^ould prejudice the trials of the Watergate defendants. 



*/ Also, the tape of the February 28 conversation between the 
President and John Dean (which we seek) has been released to the 
defendants in the Mitchell/Stans trial in the Southern District of 
New York and a partial transcript of this conversation has been 
publicly used by the attorney for Mr. Stans in his cross examination 
of Mr. Dean. See "Washington Star-News , March 22, 1974, p. A -9; 
New York Times. March 27, 1974, pp. 1, 26. 



1575 



- 4 - 

In view of these developments, we are unable to perceive 
any acceptable argument, based either on the need for fair trials 
or the doctrine of executive privilege, that would prevent production 
of the five tapes at issue to the Select Ccmmittee. The Special 
Prosecutor, the District Court and this Court have concluded that 
the release of the tapes to the House will not endanger fair trials 
even though there are no Court-imposed restrictions on the use 
of the tapes by the House and the likelihood is that they will be 
publicly played. In such circumstance, how can release of the 
nnaterial to the Select Committee be said tc create any danger of 
additional prejudice, especially since the Committee is willing to 
receive the tapes under a stringent protective order if this Court 
concludes that the Com^mittee's challenges to the District Court's 
ruling are not sustainable? Certainly the Select Committee cannot 
be relegated to a position inferior to that of the House Judiciary 
Comimittee by the application of different and stricter standards 
respecting the danger of pretrial publicity. Important as is the 
task of the House Committee in the Imipeachment process, it is 
clearly no more important than the task given the Select Committee 
by a unanimous Senate in S. Res. 60 to conduct a "complete in- 
vestigation and study" (JA 13) into the Watergate affair to enable 
Congress to devise remedies to safeguard the integrity of the 



1576 



- 5 - 
electoral process -- the cornerstone of our democratic system 
of government. 

Furthermore, because the President did not object to the 
release of the grand jury nnaterials to the House Committee and 
in fact has voluntarily given the five tapes to that body, any claim 
that the confidentiality of these tapes shov.ld be protected by appli- 
cation of the doctrine of executive privilege would be utterly un- 
tenable. This Court's observation in Nixon v. Sirica , U.S. 

App. D. C. , 487 F. 2d 700,718 (1973) that';/t/he simple fact 

is that the conversations are no longer coniidential" now applies 
•with added force. Perhaps in recognition of chis point, the President 
in his Brief has effectively relinquished his argument that the tapes 
should be denied the Committee because of the need to protect the 
confidentiality of presidential communications and thus preserve 
the "effectiveness of the executive decision-making process" -- 
the sole rationa].e that supports the doctrine of executive privilege. 
See Nixon v. Sirica, supra , 487 F. 2d at 717. 



* / It is sonaewhat perplexing that the Attorney General in his un- 
expected Brief For The United States As Amicus Curiae contends 
that the interest in protecting the confidentiality of presidential 
comnnunications justifies affirmance of the District Court's ruling 
although the President has effectively dropped his claims based on 
the requirements of confidentiality. It Is also intriguing to note 
that the Attorney General, while a Senator, failed to vote against 
S." Res. 194, which was passed by atinanimous Senate and which 
unequivocally supports the Select Committee's present lawsuit. 
See Cong. Record, S 2012-) 3, Nov. 7, 1973. In any evenfe,his argu- 
ment has no validity, especially in view of recent events. 



1577 

- 6 - 

It is also noteworthy that the President makes only passing 
mention of his claim that this case is not justiciable. (Br 4-5) 
His reluctance to argue this issue is not surprising for the 
District Court's determination that the case is justiciable was 
clearly nnandated by this Court's opinion in Nixon v. Sirica, as 
the District Court recognized. 

The President's Brief is essentially a defense of the District 
Court's r\aling that it could subjugate a recognized and demonstrable 
legislative need to its own public policy view of the need to prevent 
the possible prejudicial effect of pretrial publicity on potential 
crinainal trials. To this and related issues we now turn. 



* / The District Court declared: 

"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 
sitting en banc in Nixon v. Sirica, Nos. 73-1962, 
73-1967, 73-1989, 487 F. 2d 700 (D. C. C ir. 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 congresr^ional 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)." 
Appellants briefed the justiciability issue thoroughly below. See, 
e. g., Plaintiffs' Memorandum On Remand, pp. 12-18; Reply To 
Defendant's Response To Plaintiffs' Memorandum On Remand, pp. 2-5. 



1578 



-7- 



I. The New Rule OlLaw Propounded By The District 
Court Is Not Sustainable 

Because of the misconceptions of our arguments found 
in appellee's Brief, it appears necessary to state again the 
precise basis of our challenge to the lower Court's ruling. 

That ruling, as previously ob.^erved, was not based 
on the vioctrine of executive privilege. To the contrary, the 
Court specifically held that its niling did not rest on the need 
for presidential confidentiality, the only interest protected by 
the privilege. See JA 166; Nixon v. Sirica, supra , 487 F. 2d 
at 717. Rather, the Court's ruling was based on a conclusion 
that, despite its finding that there was no legal bar to enforcing 
the subpena, it could, nevertheless, substitute its policy judgment 
for the wisdom of Congress and overrule a legislative 
determination of need because of the Court's own view of the 
possible prejudicial effect on potential criminal trials of releasing 
the tape recordings at issue. It is this asserted new rule of 
law that appellants challenge. If the lower Court has applied 
an incorrect legal standard, this Court must reverse. */ 



*_l "/_ C_/onclusions of law do not find shelter in the 
•clearly erroneous' requirement". Case v. Morrisette . 
U,S, App. D, C, , 475 F. 2d 1300, 1308 (1973). 



1579 



We believe the authorities we have cited firmly 
establish that a Court, in ruling on the validity of a 
Congressional subpena, may not substitute its judgment for 
the legislature's as to whether public policy demands that the 
subpena be enforced. See Brief of Appellants, pp. 15-23, 
To make this assertion is not to contend, as appellee suggests 
(e.g. , Br 6), that the Courts must become a "rubber stamp" 
for Congress. A Court in an action to enforce a Congressional 
subpena has many issues to resolve. It must decide that the 
Court has jurisdiction and that the case is justiciable. It must 
determine whether plaintiffs have standing to bring their action. 
It must determine whether plaintiffs have the power under the 
Constitution and their authorizing resolution to seek the material 
in question and to initiate suit. It must decide whether the 
information sought is pertinent to plaintiffs' inquiry. Finally, 
it must determine whether the material requested is protected 
by a valid claim of privilege. All these matters were considered 
by the Court below and resolved in plaintiffs' favor. The lower 
Court's role in this case, therefore, was hardly that of a 
"rubber stamp". Moreover, we do not suggest that the lower 
Court become a "rubber stamp", but only urge that it be required 



1580 



■9- 



to follow respected legal principles concerning the enforcement 
of Congressional subpenas. 

However, once the Court has made the legal 
determinations just outlined, it does not have the authority to 
weigh its view of public policy against the legislature's in 
determining whether a subpena should be enforced. A Court's 
responsibility is "not to pass judgment Mpon the general wisdom 
or efficacy of the activities of /_a_/ committee in a vexing and 
complicated field". Barenblatt v. United States , 360 U. S. 109, 
125 (1959). "/_ I_/t does not lie v/ith /_ a_/ Court to say when 
a congressional committee should be deemed to have acquired 
sufficient information for its legislative purposes". Hutcheson 
v. United States , 369 U.S. 599, 618-19(1962). "The courts 
have no authority to speak or act upon the conduct of the 
legislative branch of its own business, so long as the bounds of 
power and pertinency are not exceeded. " Barsky v. Un it ed State s, 

83 U. S. App. D. C. 127, 136, 167 F. 2d 241, 250 (1947) cert. 
denied, 334 U.S. 843 (1948). See also Dennis v. United States , 

84 U.S. App. D. C. 31, 33, 171 F, 2d 986, 988(1948). 



1581 



10- 



The fact that a Court, in passing on a claim of 
executive privilege, may weigh legislative requireinents 
against "the public interest protected by the privilege"- - 
that is, the need for "confidentiality of conversations that take 
place in the President's performance of his official duties . . . 
to protect the effectiveness of the executive decision-making 
process"- -does not mean that the Court has license to balance 
other public policy considerations against legislative need. 
The executive privilege determination is oui generis and the 
balancing test there required to protect executive confidenti- 
ality does not allow a Court, which rejects a claim of executive 
privilege, to weigh other public policy considerations against 
a recognized legislative need. *_l Certainly nothing in Nixon v. 
Sirica authorizes the balancing of any public policy considera- 
tions other than the need for executive confidentiality against 
legislative requirements and, in fact, the Supreme Court's 
ruling in Hutcheson v. United States , supra , is a flat holding 
that a claijn that due process rights in a criminal proceeding 
will be violated by the production of information to Congress 
does not excuse such production. 



*/ Appellants' advocacy of "balancing" in the Court below was 
always in the executive privilege context and thus is not inconsistent 
with the position they now take. We present below strong policy 
reasons why the District Court's balancing test is not desirable. 



1582 



-11- 



Hutches on presented a much stronger case than the 
present one for denying information to a Congressional 
committee on the grounds that fair trials might be endangered 
because there the claim was raised by an actual defendant in 
a criminal trial who had been L^pecifically asked questions 
concerning the subject matter o' hie indictment. Moreover, 
Hutcheson had been convicted of contempt of Congress and his 
liberty was at stake. Nevertheless, the Supreme Court rejected 
the contention that Congress should not be allowed to enlist the 
aid of the Courts to convict him of contempt for failing to give 
testimony relating to the matter under indictment. The case 
is thus a straightforward affirmation of the right of Congress to 
receive information relevant to existing criminal proceedings 
even if pretrial publicity might result. It is controlling here, */ 



^/ This Court has on several recent occasions cited Hutcheson 
with approval. See, e. g., United States Servic e men's F und v. 

Eastland . U.S. App. D. C. , 488 F. 2d 1252 

(1973); Sanders v. Mc Clellan . 150 U. S. App. D. C. 58, 463 F. 2d 
894 (1972). The claim (Br 43) that Hutcheson was decided the way 
it was because the witness, by waiving his claim against self- 
incrimination, also surrendered any argument that he was being 
denied dvie process of law constitutes both a total misreading of 
that case and a misstatement of existing law^; surely one who chooses 
not to assert his Fifth Amendment privilege has the right to due 
process of law. The present case hardly presents a proper situation 
for a retreat from Hutcheson because the President's claim of 
prejudice is derivative and the possibility of additional prejudice if 
the tapes are released to the Select Committee is highly speculative. 



1583 



12- 



Appellee attempts to justify the District Court's 
decision by asserting that Courts have a well-recognized 
discretion to preserve the integrity of criminal trials. While 
that is true as a general statement, there is no authority 
indicating that the Courts may deny evidence to a Congressional 
coniTiittee to further that goal. Indeed, the precedent we have 
cited such as Hutcheson is to the contrary. Also particularly 
relevant are the provisions of the local rules of the United States 
District Court for the District of Colunnbia respecting Free Press-- 
Fair Trial. Local Rule 1-27 authorizes the District Court to 
prescribe stringent "gag" rules to protect fair trails but contains 
a significant exception. Rule 1-27(6) states that "/_ n_/othing in 
this Rule is intended, . . to preclude the holding of hearings or 
the lawful issuance of reports by legislative . . . bodies". This 
is but another recognition of the principle announced in Hutche s on 
that "a congressional committee which is engaged in legitimate 
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 wrongdoing is disclosed". 
369 U.S. at 618. It is significant that Judge Sirica's "gag" 
order in United States V. Mitchell, Crim. No. 74-110, March 1, 1974, 



1584 



13- 



(the Watergate case) specifically referenced the exception 
fo\ind in Rule 1-27. Moreover, Judge Gesell's "Special Order" 
of February 23, 1974, in United States v. Chapin , Grim, No. 
990-73, commanded that Rule ? -27 be strictly enforced, with 
certain exceptions not relevant here. 

Finally, we note again thi«.t there are strong policy 
reasons that militate against the shackling of a legislative 
committee investigating criminal conduct by a rule of law that 
would prohibit it from achieving information that might also be 
relevant to some criminal trial. As Watkins v. United States , 
354 U.S. 178 (1957), emphasizes, a Congressional committee 
performs one of its highest duties when it investigates corruption 
in the executive branch. To allow the executive or a criminal 
defendant to thwart such investigations by the claim that criminal 
trials might be prejudiced would be intolerable. Such a rule 
would present clear potential for abuse for the executive could 
always assert that the matters under legislative investigation 
were or would be the subject of criminal proceedings. 

If the Watergate experience teaches anything, it is the 
need for strong, vigorous Congressional oversight of the 
executive- -without this oversight function, the existence of the 



1585 



-14- 

very tapes at issue here might not have been revealed. This 
oversight function should not be hindered by the establishment 
of unwarranted obstacles to the investigation by Congress of 
criminal matters. In fact, the imposition of restrictions such 
as the one established by the District Court is contrary to the 
historical right of Congress to explore criminal conduct which 
is discussed below. 

There are now sufficient privileges in the law- -most 
notably the privilege against self-incrimination- -to protect the 
rights of those asked to give evidence to a Congressional body. 
See Hutcheson '^ United States , supra . Moreover, the Courts 
have various devices such as careful voir dire to guard against 
prejudiced jurors. ^/ This Court should not condone a new rule 
of law that would give a new privilege to those seeking to avoid 
producing evidence to Congress and thus seriously debilitate the 
effectiveness of Congressional investigations into criminal conduct. 



*/ In the executive privilege determination one of two competing 
interests must completely give way- -either the confidentiality of 
an executive communication is lost or the legislature is denied 
the evidence it seeks. However, if the Committee receives the 
information it requests in this case, this does not mean that fair 
trials might be forever lost for the Courts have many devices to 
insure that fair trials will be achieved. Thus no balancing test 
between the needs of the Congress and the requirennents of fair 
trials is required here even though, in the executive privilege 
context, a balancing test is appropriate. 



1586 



15 



II. If A Balancing Test Is Proper, The Balance Must Be 

Struck For Congress, Particularly In View Of Recent 
Events. 



Appellants' initial brief demonstrates that, on the 
undisputed facts before the lower Court when it rendered 
decision, its conclusion that the need to orotect fair trials 
outweigheil Congressional need for the evidence concerned 
was in error. Events that have occurred since the lower 
Court ruled leave no doubt that the balance must be struck 
for Congress. 

A. The Danger ToFair Trials Is Minimal. 

As observed, the District Court on March 18, 1974, 
over the objections of the seven Watergate defendants, ruled 
that the grand jury materials should be transmitted to the House 
Judiciary Committee. No restrictions were placed by the Court 
(On the use to be made of these materials by the House, 

This Court, on March 21, 1974, upheld the District Court. 

Certain portions of its opinion are highly pertinent for present 

purposes: 

"We note, as did also the District Judge, that, if the 
disclosures to the public so feared by petitioners do in 
fact take place and have the consequences that petitioners 
predict, they will be free at trial to raise these claims in 
the light of what has actually happened, and to seek the 
traditional relief ranging fronn continuance through change 
of venue to dismissal of their indictments. It appears to 



1587 



16 



be premature at the least to make their speculations 
about future prejudice the basis for present employ- 
ment of our extraordinary writ power. With respect 
to the substance of those speculations, we cannot be 
unaware of the fact that the Special Prosecutor has 
concluded that his interests in successful prosecutions 
can be reconciled with this transmittal for consider- 
ation in the impeachment process--thereby suggesting 
that the dangers in his estimation are not great. The 
District Judge who received the indictnnent, perused 
the materials accompanying the rcyort, and expressed 
his general interest in the fairness of the trial over 
which he will preside later this year, also concluded 
that it is unlikely that this transmittal will interfere 
with a fair trial. " File Opinion p. 3. 

This statement is in accord with the District C^-urt's conclusion 

intiiat CaZZ thZt "considerations of possible adverse publicity are 

both prenaature and speculative. " File opinion p, 21. 

The grand jury materials have now been delivered to the 

House. Moreover, before that delivery, the President voluntarily 

subnnitted to the House all materials previously given the Special 

Prosecutor, including the five tapes at issue. The President, at 

that time, miade no protestation that turning over these tapes 

would prejudice the fair trials of Watergate defendants. Similarly, 

he raised no contention that release of the grand jury materials to 

the House would endanger fair trials. His claim to that effect in 

this case is thus both inconsistent with his previous positions and 

unpersuasive. 



1588 



- 17 - 

The fact of the matter is that release to the House of 
the grand jury materials and the materials given the Special 
Prosecutor by appellee presents a far greater danger to 
potential trials than does production of the five tapes to the 
Select Comnnitcee. The Select Committee seeks only five tapes 
whose contents have already been the topic of immense publicity. 
The material now in possession of the House includes not only 
these five tapes, but fourteen more tapes and hundreds of 
documents. In view of what already has been produced, the 
Select Committee's requests are paltry. 

Furthermore, the Select Connmittee has now decided not 
to hold further public hearings (a decision not reached when the 
lower Court ruled) and release of the tapes to it would in all 
probability not result in their public playing, although, unless 

restrained by a protective order, the Committee would use the 

* / 
contents of the five tapes to prepare its final report. _' However, 

the House Committee, where the attention of the nation is now 

riveted, may well play these and other tapes in public sessions 

that may be televised. Surely the impact on further trials of 

such an event would be a hundred-fold greater than use of the 

five tapes by the Select Connmittee in its final report. But this 

Court has concluded that the danger of pretrial publicity respecting 



*/ The Connmittee plans to issue its report on May 28, 1974, 
over three nnonths before the Watergate trial is scheduled to 
begin. The pretrial innpact, if any, of a written report would 
thus probably be dissipated by trial tinne. 



1589 



- 18 - 

release of the grand jury materials to the House was not 
sufficient to prevent that transmittal. We fail to see how this 
Court, in view of that determination, can conclude the contrary 
in this case where the danger of prejudicial publicity is mani- 
festly less substantial. At the risk of repetition , we note 
again that the five tapes at issue ^.r.-? now held by the House and 
it is difficult to conceive how additionz>I prejudice can result 
from their release to the Select Commiittee. 

Before leaving this subject, it is appropriate to comment 
briefly on the observations in the Amicus Brief filed by the 
Special Prosecutor. The position of the Special Prosecutor is 
basically the one he took in the Court below. See JA 154- 160. 
The essence of the Special Prosecutor's views is his conclusion 
that: 

"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. " 

Accordingly, the Special Prosecutor takes no position as to 

whether the Court should consider the possibility of pretrial 

publicity a decisive factor in its deter n-iination respecting the 

enforceability of the Committee's subpenas. */ 



*/ The views of the Special Prosecutor regarding the Watergate 
trials nnust be given far greater weight than those of the Attorney 
General who has no responsibility for those prosecutions. 



1590 



- 19- 

The Special Prosecutor's conclusions, however, must 
be read in light of his actions in the grand jury materials 
matter. As the lower Court there noted, the Special Prosecutor 
"urged" that the materials be submitted to the House. Further- 
more, as this Court remarked in sustaining the lower Court's 
ruling in that case (p. 3): 

". • . / W / e cannot be unaware of the fact that the 
Special Prosecutor has concluded that his interests 
in successful prosecutions can be reconciled with this 
transmittal for consideration in the impeachment 
process- -thereby suggesting that the dangers in his 
estimation are not great. " *_l 

The Special Prosecutor in his Amicus Brief attempts to explain 

the apparent difference in his positions in that case and here by 

reference to the different Constitutional responsibilities to be 

performed by the House Comnnittee and the Select Committee. 

We contend tlsewhere that the Select Comnnittee's responsibility 

to recommend legislation that will safeguard the electoral process 

for future generations is of the highest order and is second to 

none. But the point to be naade here is that, from the perspective 



*/ Appellee fails to inform the Court that the statement at p. 34 
of our initial brief that "/.a_/t this tinne it is impossible to assess 
the precise impact of such publicity on forthcoming trials" was 
first made by the Special Prosecutor. See appellee's Brief at 25. 



1591 



- 20 - 

of the possibility of pretrial publicity, release of the five tapes 
to the Committee poses no greater danger than, or additional 
danger to, that existing from release of those and other materials 
to the House. In fact, as undisputably demonstrated above, the 
dangers are far less pronounced than those accompanying the 
release of the various materials to the House. 



1592 



-21- 

B. Appellants Are Fulfilling Valid Legislative 
Purposes And Have A Pressing Need For 
The Material In Question 

1. Appellants Have Not Exceeded Their Legis - 
lative Authority Under The Constitution 

Appellee, while recognizing (Br 26) that 'V t_/he power 
of Congress to conduct investigations is inherent in the legis- 
lative process and is broad, " nevertne'ess persists in his 
contention that the Select Committee exceeds it legislative 
authority because it is usurping the authority of the judiciary 
and attempting to adjudicate guilt or innocence (e. g. , Br 27- 
28). These untenable contentions were made to the Court 
below and rejected. 

The Congress, since the beginning of the nation, has in- 
vestigated wrongdoing and maladministration by executive officials 
under its Constitutional power to determine the need for new legis- 
lation and fvdfill an associated informing function. Congress is 
not ousted of investigatory power simply because the executive 
conduct under scrutiny may be crinninal and assertions to the 
contrary have 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 



1593 



-22- 

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 appellee. 

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 m Harry M. Daugherty. 
Congress has no such power except in impeachment pro- 
ceedings. " — ' 

This assertion was flatly rejected by the Supreme Court, which 

ruled that: 

(1) 'V T_,/he power of inquiry--with process to enforce 
it -- is an essential and appropriate auxiliary to the 
legislative function. " 273 U.S. at 174. 

(2) The Attorney General's_administration of th_e 
Justice Department was 'V p_/lainly ^ a subject/ on 
which legislation could be had and would be materially 
aided by the information which the investigation was 
calculated to elicit. " 273 U.S. at 177. — ' 



*_l 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 involvement in his brother's alleged wrong- 
doing. 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. 

** / 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 legislative 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) 



1594 



-23- 

(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 McGrain regarding a legislative 
investigation is controlling here where the Congress, with a view 
to corrective legislation, is investigating alleged wrongdoing by 
high executive officials. For another Teapot Dome case in the 
same vein, see Sinclair v. United States. 279 U.S. 263 (1929). 

The teaching of McGrain and Sinclair have been reaffirmed 
by more recent decisions that have repeatedly sustained Congress' 
power to investigate unlawful conduct in connection with it legis- 
lative responsibilities. Hutcheson v. United States , 369 U.S. 599 
(196 2) ((Senate Select Committee on Improper Activities in the Laborer 
Management Field; investigation of unlawful use of union funds to 
influence prosecution); Delaney v. United States, 199 F2d 107 
(1st Cir. 1952) (House Ways and Means Subconxmittee 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. 1952). 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 



1595 



-24- 

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 conv-ern because the existence of 

**/ The 
such conduct may weir necessitate remedial legislation. — 

bald assertion by appellee (Br 58) that the House Judiciary Com- 
mittee is "the only appropriate committee of Congress for inquiring 
into specific allegations of crime against individuals within the 
executive branch of government" is thus unacceptable. See further 
Vatkins v. United States, 354 U.S. 178(1957). 



*^/ The very existence of the "use immunity" statute for compelled 
testimony before Congress, which the District Court construed in 
In Re: Application of United States Select Committee on Presidential 
Campaign Activities, 261 F, Supp. 1270(D.D.C, l973),recognizes 
that Congressional investigations may deal with conduct which may 
also be the subject of criminal prosecution. The District Court's 
decision in that proceeding appears to assume the validity of the 
Select Committee's investigation into criminal conduct. 

** / The present case is 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 pending 
bankruptcy proceedings -- could not lead to valid legislation. Appellee 
suggests that the holding in Kilbourn has not been "impaired'* . (Br 33) 
For a contrary view see Justice Harlan's opinion in the Hutcheson 
case, 369 U.S. at 613-14, where he states that Kilbourn has been 
"severely discredited" because of its "loose language. " 



1596 



-25- 

We know of no case holding that a Congressional investi- 
gation into criminaL conduct must cease once the conduct has been 
merely "identified " (see appellee's Brief at 28), and we are confident 
there is none because such a ruling would debilitate Congressional 
investigations. In fact, Hutchesou v. United States , 369 U.S. at 
619, teaches that it is not the function of a Court "to say when a 

Congressional Committee should be 'leemed to have acquired 

*/ 
sufficient information for its legislative purposes. " — It is 

significant that Section 1 (a) of S.Resi)0 instructs the Committee 

"to conduct an investigation and study of the extent ... to which 

illegal, improper, or unethical activities" occurred in the 1972 

presidential campaign and election, JA 11 (emphasis added). 

And Section 2 of S. Res. 60 later admonishes the Committee 

**/ 
that its investigations should be "complete. " JA 130 — 



*^/ In McGrain v. Daugherty, supra , the Supreme Court sustained 
a Congressional investigation upon the determination that the 
administration of the Justice Department was 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, 
which had been issued to the Attorney General's brother, to ascertain 
whether obtaining this evidence was critical for the enactment of 
legislation. 

** / The lower Court's view (JA 169) that the Watergate facts should 
only be developed in judicial proceedings cannot go unchallenged. As 
recently said in Silverthorne v. United States, 400 F 2d 627, 633-34 
(9th Cir. 1968) cert denied , 400 U.S. 1022(1971): 

"J_ T_Aie Senate Committee and the federal grand jury 
are associates in exposing criminal activity and moving 
toward its curtailment. " 



1597 



-26- 

Were there any doubt that the Committee has been and is 

acting with valid legislative purpose in subpenaing and suing 

the President, it has been removed by the Senate through S. Res. 

194. Section 3 of this Resolution states: 

"The select committee and its members, by issuing 
su'^penas to the President and instituting and pursuing 
litigation to achieve compliance with these subpenas, 
v.ere 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 per sons. It is the 
sense of the Senate that, in so doing, che 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 sought by the committee's subpenas are of 
vital importance in determining the extent of such involve- 
ment and in determining the need for and scope of corrective 
legislation. " 

In view of this statement of approbation by the unanimous Senate, 

it is exceedingly difficult for appellee to assert that the Committee 

proceeds without valid legislative purpose. It is even more 

difficult for him to overcome the presumption (referenced above) 

that a legislative committee acts with legitimate purpose. 



34-966 O - 74 - pt. 2-25 



1598 



-27- 

Finally, it is misleading to suggest, as appellee does (Br 28), 

that the lower Court found that the Committee exceeds its 

legitimate legislative function by seeking the tapes in question. 

To the contrary, the Court specifically held that 'V t/hese tapes 

are relevant to the Committee's functions. " JA 164 The lower 

Court did conclude, erroneously we believe, that the Committor 

has no "pressing need" for the tapes in question, and to this 

finding we now turn. 

2. The Committee Has A Vital Need For The Material 
At Issue. 



The focus of the nation is now on the Impeachment inquiry 
and the Watergate criminal proceedings. While these proceedings 
are of extreme importance to the nation, their existence should 
not obscure the fact that the Select Committee also has equally 
crucial constitutional tasks to perform that were mandated by a 
unanimrous Senate. 

The Select Committee is the only body specifically charged 
with devising legislation to rectify the abuses that occurred in 
the 1972 presidential campaign and election. The House Committee 
has no such responsibility and, in fact, its concern is narrower 
than the Select Committee's. The House Committee only examines 
the fitness of the President to remain in office. The 
Select Committee, on the other hand, must deal with possible 



1599 



-28- 
abuses not only by the President but also by other high government 
officials, and must recommend legislative standards that will 
prevent malfeasance in the future. This responsibility is clearly 
of the highest Constitutional order. 

Although the Committee as a whole has not yet considered or 
expressed itself on legislative rec<-'mmendations, there are certain 
possible recommendations that may tarn on the determination 
whether the Piesident or his closest associates were involved 
in criminal conduct in the 1972 campaign. In such circum- 
stances, it is possible that the Committee might consider 
a recommendation to limit presidential tenure to one term 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 suggesting the 
establishment of a permanent special prosecutor, immune from 
presidential removal, to prosecute election- related offenses. 
This special prosecutor might, by legislation, be given automatic 
access to all campaign records and executive materials relating 
to the campaign. The Committee might also recomnriend the 
establishment of a Federal Elections Commission that would have 
authority to investigate and restrain misuse of governmental 



1600 



-29- 

authority by the incumbent administration in election campaigns. 

Or the Committee might undertake a review of certain federal 

criminal laws such as those concerning obstruction of justice, 

misprison of felony, and conspiracy to defraud the United States 

to ascertain whether they are adequate to deal with campaign 

conduct by executive officials, j!^/ 

We could expand on these examples but perceive no need 

to do so. For the point is that, in the words of McGrain v. 

Daugherty , 273 U.S. at 177, presidential elections are '7p_/lainly 

/a subject / on which legislation could be had and would be 

materially aided by the information which the investigation was 

calculated to elicit. " And, as the Supreme Court said in 

Hutcheson v. United States , 369 U.S. at 617: 

"If these suspicions j_ as to the involvement_of the 
President and his associates in wr^ngdoing_/ were 
fovinded, they would . . . suppor _/ t_/ remedial 
federal legislation. " 



* / To posit these legislative possibilities in no way innplies 
that they will, in fact, be the recommendations of the Select 
Committee. Because the Committee has legislative goals in 
mind, it plainly does not seek the tapes in question simply "to 
expose for the sake of exposure". See /Ippellee's Brief 36-7; 
Watkins V. United States, 354 U.S. 178, 200(1957). In any 
event, it is clear from Watkins that exposure for the sake of 
exposure is only condemned where private affairs are involved; 
it is in fact the duty of Congress to expose governraental 
corruption even if it has no legislation immediately in mind. 
See 354 U." S. at 200. 



1601 

-30- 

See further Shelton v. United States, 131 U.S. App. D. C. 315, 

319-21, 404 F. 2d 1292, 1296-98 (1968) cert, denied, 393 U.S. 

±1 
1024 (1969 )• The lower Court, of course, specifically found 

that the materials sought were "relevant" to the exercise of the 

Committee's functions. 

JjCgislation such as suggested above is drastic legislation. 

It should not be undertaken unless the Congress and the public 

are convinced that the abuses are great enough to warrant it. 

For example, the appointment of a permanent Special Prosecutor 

would divest the President of his traditional powers to control 

the administration of justice--a step that should not be taken 

unless the abuse is great enough to warrant it. **/ 



*_/ See also Barsky V. United States, 83 U. S. App. D. C. 127, 
167 F. 2d 241, 245 (1948) cert, denied 334 U.S. 843 (1948) where 
this Court remarked that "the power of inquiry by the legislature 
is coextensive with the power of legislation and is not limited to 
the scope of the content of contemplated legislation. " The appellee's 
statements (Br 21, 39, 54) that he has fully allowed his staff to 
testify before the Select Committee without invoking executive 
privilege and thus supplied sufficient information to the Committee 
are in error. Numerous Administration personnel, since the 
President's initial waiver of executive privilege, have in fact 
invoked that privilege before this Committee. 

♦* / For the proposition that there is no need to know specific 
abuses in order to pass general legislation, appellee, at p. 53, 
cites Justice Warren's dissent in Hutches on which contains a view 
not adopted by the majority in that case. See, e. g. , 369 U.S. 
at 617. 



1602 

-31- 

Furthermore, needed legislation will not pass unless 
it has the popular support that will be produced by a revelation 
of the exact conditions that must be remedied. The President 
suggests (Br 37, 55-56) that it is somehow improper to inform 
the public to gain their support for necked legislation. To 
the contrary, ours is a government of and by the people and 
it is fxuidamental that the populace governs best when fully 
informed. It is the essence of democracy to advise the people 
of governmental corruption so they can urge their elected 
representatives to enact remedial legislation. 

It is not merely the plaintiff Committee that has 
concluded that the evidence sought is vital to Congress. By 
the adoption of S. Res. 194, the entire Senate has unanimously 
endorsed the Committee's efforts to obtain this evidence. 
That Resolution states that the Senate "approves and ratifies 
the committee's issuance" of the subpena here involved, and 
also "approves and ratifies" the Committee's institution of 
this litigation to achieve compliance with this subpena. The 
Resolution further provides that: 



1603 



32- 



"... It is further the sense of the 
Senate that the materials sought by the 
committee's subpenas are of vital 
importance ... in determining the 
need for and scope of corrective 
legislation. " */ 



In addition, the entire Congress has e^.acted Public Law 93-190 
empowering the Committee to naaintain and the Courts to 



* / Senator Ervin, in his affidavit to the District Court, 
(attached to the Supplemental Memorandum In Support Of Plain- 
tiff's Motion For Summary Judgment) has also described the 
evidence sought by the subpena as "vital to the exercise of the 
Committee's functions." See para, (2). The formal statement 
of the Committee's urgent need for the materials subpenaed 
contained in S. Res. 194 is entitled to greater weight than the 
off-the-cuff remarks attributed to Senators Inouye and Gurney 
found in the Brief of Appellee at pp. 28-30. Both those Senators 
are appellants here and fully support this appeal. Moreover, 
the remarks of Chief Counsel Dash found in Appellees' Brief 
at p. 30 are taken out of context. Immediately after making 
the statement appellee quotes, Mr. Dash observed that "the 
Senate _/ is_/ calling upon the Committee to investigate fully 
all the facts in this case and come up not with an adequate 
report, but with the best possible report with the best possible 
legislative recommendations for refornn so these things will 
never happen again . . . Obviously, we are not out of business 
if we don't get the tapes, but obviously it is essential that we get 
the tapes to do the job that the unanimous Senate called upon the 
Committee to do. And I think there is a distinction between an 
adequate report and a really full report that safeguards the 
electoral process for the country. " See the October 4, 1973, 
Transcript of Proceedings in this case at p. 7. 



1604 



-33- 
entertain litigation to enforce the subpena 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 ^ot support the Committee's efforts to achieve the 
materials subpenaed would not have passed a statute that 
aids it in doing so.j^/ 

It is surprising that the President's Brief does not 
even mention S. Res. 194 in discussing the Committee's need 
for the material involved. The lower Court's opinion suffers 
from the same flaw. And neither the Brief nor the opinion 
deals with the relevance of P. L. 93-190 to the issue of the 
Committee's legislative need. But, we submit, in assessing 
the public interests in disclosure, these actions by the elected 
representatives of the people are entitled to great deference. 
Whatever legitimate interest the executive may have in with- 
holding information must inevitably shrii/Jc 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 . 



*_/ The Senate, of course, is supportive, as demonstrated 
by S. Res. 194. 



1605 



- 34 - 

Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 
637 (1952) (Jackson, J. , concurring) . 

This Court, therefore, should conclude that the Committea 
does have significant need for the materials in question and 
that the Committee's need outweighs -^.ny interest in avoiding 
pretrial publicity, especially now that the tapes ut issue have 
been released to the House and likely will be made public some 
time before the Watergate trial begins. 

m. If The Court Finds Appellants' Challenges To The 

Lower Court's Opinions Not Sustainable, Appellants 
Will Accept A Protective Order That Will Guard 
Against Pretrial Publicity; This Court Has Authority 
To Rule On The Appropriateness Of A Protective Order 

Appellants believe the District Court should be reversed 
outright, particularly in view of the crucial events that have 
transpired since its ruling was entered. If the Court dis- 
agrees, appellants will voluntarily submit to a protective order 
that will prevent undue pretrial publicity yet at the same time 
ensure that appellants' legislative missions can be accomplished. 
Such a protective order, which surely can be formulated and 
administered without undue difficiilty, should remove all the 
concerns expressed below by the District Judge. 



1606 

- 35 - 

The President's argument that this Court may not consider 

the appropriateness of a protective order is unpersuasive for 

several reasons. First, the issue was raised in the District 

Court, The Special Prosecutor, in his memorandum to the 

District Court, made the following su^i^estion: 

•'tf the Court holds that the Senate Select Comimittee 
subpena is valid and enforceable, it mighi, 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. " JA 157. 

In req>onse, the Select Committee represented to the 

District Court that it would "voluntarily" inapose "the necessary 

restrictions" upon itself to ensure that future trials would not be 

prejudiced, but suggested to the court that, because self-restraint 

would be shown, a protective order was unnecessary. The District 

Court, apparently rejecting the protective order suggestion, 

dismissed the Committee's complaint without prejudice. 



* / See Plaintiffs' Observations on the President's Letter And 

The Special Prosecutor's Memorandum, February 7, 1974, at 4. 

The Committee stated that: 

"Because the Committee will handle the material it 
receives 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. " (citations omitted) 

As previously noted, the Committee is now prepared to waive 

these legal considerations. 



1607 

- 36 - 

Appellants represent to this Court, as they did to the 
Court below, that they will handle the materials judiciously 
and that a protective order is not necessary. But appellants 
will consent to a protective order iC 'his Court deems it in 
order. In any event, this Court is free to deternnine the 
approp.'iateness of a protective order because it was raised 
below and not "sprung" for the first time on the appellant 
Court. 

In addition, even if the question of a protective order 
had been raised for the first time on appeal, that does not 
deprive this Court of jurisdiction to hear the issue. As this 
Court pointed out in Dart Drug Corp. v. Parke, Davis 8i Co. , 
120 U.S. App. D.C. 79, 89, 344 F. 2d 173, 183 (1965), 
an Appellate Court is not "innmobil j_ e_/ wherw justice is 
involved" and may turn to "an examination on the nnerits of 
the points which counsel now says should have been made before" 



* / When this matter was before the District Court, appellants 
still planned further public hearings. This is not the case now 
and thus the protective order concept is more acceptable to the 
Committee. The protective order would pose no significant 
restrictions on the Committee as to its law-making function. 
And we would hope that events before May 28, the Committee's 
report filing date, would make it possible to lift whatever order 
was entered to allow the Committee to fulfill its informing 
function if such a task is still necessary. 



1()08 



- 37 - 

in the lower Court. Certainly this Court, if it concludes that 
the interests of justice so demand, can remand this case to 
the District Court with instructions to release the tapes under 
a protective order. 

We alfso note that there is no provision . in the law 
that requires the Select Committee to ask for a rehearing on 
the issue of a protective order before appealing to this Court, 
especially since the issue was adequately raised and there is 
no indication that it was not considered by the lower Court. 
And, even if no one had suggested the propriety of a protective 
order, the Court below would have been entitled to grant such 
relief. See Rule 54 (c), Fed. R. Civ. P. Certainly one issue 
on this appeal is whether dismissal without prejudice was 
required or whether another renaedy in the spectrum of judicial 
solutions was more appropriate. 

The President's counsel suggest that a protective order 
would be unavailing because "leaks" from the Committee would 
undercut its provisions (Br 66). Several connnnents are in 
order. As the President's counsel know, the Committee has 



* / It was, of course, difficultto presage the Court's exact 
rviling before it was entered. 



1609 



- 38 - 
received highly confidential national security materials from 
the Administration in the past that have not been "leaked" to 
the press or anyone else. Other sensitive material has been 
handled with tight security and has not been leaked. The obser- 
vation of the District Court in the grand Jury materials matter 
(pp. 19-20) is '•ppropriate here: 

" , , , The /House Judiciary/ Committee has taken 
elaborate precautions to insure against unnecessary 
and inappropriate disclosure of these materials. 
Nonetheless, counsel for the indicted defendants, some 
having lived for a considerable time in Washington, D. C,, 
are not persuaded that disclosure to the Comnaittee can 
have any result but prejudicial publicity for their clients. 
The Couri, however, cannot justify non-disclosure on 
the basis of speculation that leaks will occur, added to 
the further speculation that resultant publicity would 
prejudice the rights of defendants in United States v. 
Mitchell, et al. We have no basis on which to assume 
that the Committee's use of the Report will be injudicious 
or that it will disregard the plea contained therein that 
defendants' rights to fair trials be respected!' (emphasis added) 

We submit that the sensitivity that the Committee has shown in 
the past respecting the need for fair trials-- witness, e. g. , the 
cancelling of its public hearings-- dennonstrates that the materials 
in question would be handled with extreme caution. And we con- 
clude by observing that the Conamittees' willingness to accept a 
protective order is just the type of Congressional accommodation 
that Justice Brennan recommended in his concurrence in Hutcheson 
v. United States, supra, 369 U.S. at 624-25. 



1610 



- 39 - 
Conclusion 
The judgment of the District Court should be reversed 
in all respects or the Court, at the least, should remand with 
instructions to release the tapes to the Select Committee under 
a protective order. 



Respectfully submitted, 

Samuel Dash 
Chief Counsel 

Fred D. Thompson 
Minority Counsel 

Rufus Edmisten 
Deputy Counsel 

James Hamilton 
Assistant Chief Covmsel 

Richard Stewart 
Special Counsel 

Ronald D. Rotunda 
Assistant Covmsel 

Donald S. Burris 
Assistant Counsel 

W. Dennis Summers 
Assistant Counsel 

United States Senate 
Washington, D. C. 20510 
Telephone Number 225-0531 

Attorneys for Appellants 



Sherman Cohn 
Eugene Gressman 
Jerome A. Barron 
Washington, D. C. 
of Counsel 

Arthur S. Miller 
Chief Consultant to 

the Select Committee 
Of Counsel 



1611 



TRANSCRIPT OF PROCEEDINGS 

UNITEE ST„TES COTJST OP APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 



SENATE SELECT COr-^ITTEE ON 
PRESIDENTIAL CAMPAIGN 
ACTIVITIES, etc., et al.. 



Appellants, 



V. 



RICHARD M. NIXON, 
Individually and as President 
of the United States, 

Appellee. 



No. 7^-1250 



Pagea 1 thru 70 



Washington, D. C 
April 2, 197^ 



HOOVER REPORTING COMPANY, INC. 

Official Reporters 

Washington, D. C. 

546-6666 



1612 

UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 



SENATE SELECT COMMITTEE ON 
PRESIDENTIAL CAMPAIGN 
ACTIVITIES, etco, et al. , 



Appellants, 



V, 



RICHARD M. NIXON, 
Individually and as President 
of the United States, 

i^pellee. 



No. 74-1258 



Washington, Do Co, 

Tuesday, April 2, 19 74, 

The above-entitled matter came on for argument at 

approximately 10:00 a«mo 

BEFORE s 

JUDGES BAZELON, VJRIGHT, McGOWAN, LEVENTIIAL, 
ROBINSON, MacKINNON and ITILKEY 

APPEARANCES : 

SAMUEL DASH, ESQ., Chief Counsel, Senate Select 
Committee on President Campaign Activities, on 
behalf of the Appellants.^ with RONALD D. ROT'JITOA and 
^^IES HAiaLTON. 

JOHN J, CHESTER, ESQ,, The VThite House, Washington, 
D. C. 20500; for the Appellee. 

PHILIP A. LACOVARA, ESQ. , Counsel to the Special 
Frosecutor, 1425 K Street, N. V7, , Washington, 
D. C. 20005; for the Special Prosecutor as 
ard cus cur i ae , 



1613 



CONTENTS 

ORAL ARG IJ?-IENT CF: 

"* ■ PAGE 

Samuel Dash, Esq., 

for the Appellants 

In rebuttal 

63 

John J. Chester, Esq., 
for the Appellee 

Philip A. Lacovara, Esq., 

for the Special Prosecutor as amicus curiae 55- 



34-966 O - 74 - pt. 2-26 



1614 



* * * 

ORAL ARGUMENT OF SAMUEL DASH, ESQ., 
ON BEHALF OF THE APPELLANTS 

MR, DASH: * * * tine when we filed 

our complaint. 

The history of the case is shown in our docket 
entries in the Joint Appendix. 

I would like to jxist briefly put the case in the 
context. 

We are here on appeal from the order of Judge 
Gesell, after renicmd by this Court, Judge Gesell dismissing 
oxir complaint without prejudice. 

Our complaint sought a declaratory judgment on the 
validity of a svibpoena issued by the Committee for five taped 
conversations. This subpoena was served on the seure day, 
July 23, 1973, 'as Special Prosecutor Cox served his subpoena 
for the Gremd Jury. 

Both derived from Mr. Butterfield's testimony before 
the Committee revealing the existence of the tapes. 

Judge Gesell was assigned the case on remeuid, to 
reconsider the matter on the basis of the new jurisdictional 
statute Congress ptissed to permit appellant to pursue its 
litigation for the tapes. 

When the case was before Judge Gesell, this Court 



1615 



4 
had already decided Nixon vs. Slrlca » £md the appellee 
President ultimately had surrendered the tapes considered in 
that cewe to the Grand Jury. 

Those tapes , by the way , Include the five taped 
conversations we ask, except for one, the tape of the second 
Conversation on March 21st, and that tape has been given to 
the Grand Jury, aa has been indicated in- the papers before 
this Court. 

Also, since Judge Gesell's order, the Grand Jury 
Indictments have been returned in the Watergate case, and a 
diiaaled report, with sealed' evidence, was submitted to Judge 
Sirica, and Judge Sirica, with the approval of this Court 
finally in Haldeinan vs^ Sirica , turned over the documents 
contained therein to the House Judiciary Committee now con- 
sidering the iti^eachment issue. And this was done without 
bbjection by the President, and with the approval, in fact 
urging of the Special Prosecutor, the apjiroval of the trial 
judge and, as I've said, the approval of this Court. 
• The President has also voluntarily sent over to the 

House Judiciary Committee the taped conversations we seek in 
this proceeding. 

QUESTION: Mr^ Dash, ~ 

MR. DASH: Yes, 

QUESTION: — your subpoena which you seeked before 
in turn asks for any and all original electronic tapes. 



1616 



5 
Are those in the possession of the President? 

MR. DASH: Well, they were in the possession of the 
President as of the time the subpoena was issued. As a result 
of the order of this Court and the final coirpliance by the 
President, those tapes have been surrendered to the Special 
Prosecutor. 

Now, he — I think the Special Prosecutor in his case, 
in his position before the court below, actually recommended that 
what we received is not the originals , since he has the 
originals now, but they are copies of the tapes. And it 
seems to me if the question posed is v^ether a subpoena 
asking for the original tapes is mooted because it's now not 
in the control of the President, it would seem that our 
subpoena asked for the taped conversations euid that the copies 
of them would — 

QUESTION: As I ijnderstand what you're saying, 

that in an injunction or a declaratory judgment would operate 
on the Special Prosecutor? 

MR. DASH: No, we're not — we're not proceeding 
against tiie Special Prosecutor. The case is a case on the 
subpoena on the President. And that the President, I think, 
cam comply and our Committee would accept such con^liance, 
with copies of the tapes. 

I think a subpoena issued ~ 

QUESTION: Does he have copies — 



1617 



6 

MR. DASH: What? 

QUESTION t Does the President have electronic copies 
6f the tapes? 

MR, DASH: I understand that the President has 
electronic copies of the tapes surrendered to the Special 
Prosecutor, and i^ is the practice of any Coninittee svib- 
poenaing documents of a party, including a party such as the 
President, to accept copies in lieu of originals; the taped 
ckinversations is what the Coiomittee wanted. 

And at the tine we issued the subpoena, the 
originals were in the possession of the President. 

QUESTION; So that any court order here would 
operate, as a practical matter, to zrequire the Special 
Prosecutor to make availeible copies of the tapes, wouldn't 

it? 

MR. DASH: Not necessarily. I don't think the order 
6f this court — 

QUESTION: Where would the copies come from? 

MR. D/^Ht The copies came from the — the copies 
are in the possession of the President. I underst2uid the 
President turned over the originals, but before ttirning over 
the originals that the White House techniclzms made copies of 
the tapes. And I'm certain — and I'm sure that counsel for 
the President could — 

QUESTION: So the President has at the moment 



1618 



7 

eletitronic copies of the original tapes. 

MR. DASH: Of the original tapes. And we're not 
asking, before this Court, for ariy order directed to the 
Special Prosecutor; but we — our case is a case on a subpoena 
directed toward the President, and the Conanittee would accept 
copies in lieu of the originala. ' And we tiiink our subpoena 
odn authorize us to do that. 

QUESTIONS I thought there were only transcripts. 

MR. DASH: No, our subpoena calls for electronic 
copies; and, again, unless — 

QUESTION: The Cojnmittee has called for original 
electronic tapes* ~ 

MR. DASH: Original — 

QUESTION: — but copieia of those would be — 

MR« DASH: Right. What I'm saying is that it is — 

QUESTION: I understand the President hM in his 
possession copies, not transcripts, but copies — 

MR. DASH: Copies. And — 

QUESTION: — and you would accept those? 

MR, DASH: We would accept them. That is the practice 
of Committees who subpoena records of banks, records of 
individuals, where they, instead of offering their original 
records, offered to give copies; and the Committee can accept 
copies . 

So we would construe our subpoena at this point to 



161<) 



8 

be a subpoena for copies of ttiB electronic tapes, and not 
seeking the original tapes ^ic^ were transmitted to the 
Special Prosecutor. And the reason they were transmitted, 
the original tapes, was to allow the Special Prosecutor to 
make whatever tests that are necessary as to the' validity of 
the tapes. 

That's not an issue that our Committee is seeking to 
resolve. 

Now, prior to getting into this basic argument, — 

QUESTION: So you're hot asking — I assume you're 
hot asking for a court order for the President to submit even 
the copies of the tapes xinder a declaratory judgment for the 
validity of the taped conversations — 

MR. DASH: Yes, Your Honor. 

QUESTION: That's the way you started, anyway. 
Is that correct? 

MR. DASH: That's — our coit^lednt was for a 
declaratory judgment. It is true that ~ 

QUESTION: You got a dieclaratory judgment saying 
it was valid, then that might be discussion on the clerical 
part of it? 

MR. DASH: Yes, Your HoKor, It is true that Judge 
Gesell below interpreted our complaint as a — and our request 
for relief, not only for declaratory judgment for injunction, 
and in his order 'he denied the declaratory judgment and an 



l()2i) 



9 

injunction; althou^ our motion for summary judgment only 
asked for declaratory judgment. We didn't reach the question 
2IS to how it should be complied with if we did get the 
declaratory judgment. 

I just want to briefly mention something that I 
think goes through this case as a thread, and that's a suggestion 
throughout the proceedings that in some way the appellant 
Select Committee hcis an inferior posture as to the tapes, 
inferior as to the Grand Jury 7 stxtd as to i^ie House Judiciary 
Committee. 

And I suggest that we ripfocus on that issue briefly, 
because memories are short. 

The first official response to the suspicion of 
coverup was the unanimous Select Committee creation by the 
Senate. Not an ordinary committee, . to engage in general 
legislation, but a Select Committee, bom out of crisis and 
to address the Watergate scandal ^ It was given a broad 
memdate in Senate Resolution 60, and the mandate was to make 
a complete investigation to discover the extent of illegality 
during the Presidential can^aign of '72, and,based on the 
facts derived from that Investigation, to devise remedies to 
safeguard the electoral process . 

And I suggest that that responsibility is the highest 
constitutional responsibility th^t a congressional committee 
can have to preserve a democratic form of government. 



1621 



10 

And I really suggest that there is no standard, 
really # that could make the task to reform a system of 
government in future generations inferior to a Grand Jury 
need to determine probable caxise of whether or not an 
individual is indicted. And no standard that could make a 
task to provide remedies to prevent a Watergate from ever 
happening again a task inferior to the House Judiciary 
'Cc»nmittee's responsibility to determine probable cause as to 
whether a particular President should be impeached. 

NOW/ -the Court's opinion below, of Judge Gesell, 
atbtually made the essential legal findings in favor of 
appellant. The Court decided that it had jurisdiction 
based on the new congressional grant of jurisdiction. It 
decided that the controversy was justiciable. It decided 
that the tapes sought were relevant to appellant's function, 
and that decision, by the way, is a decision with regard to 
pertinency and a decision with regard to legislative purpose, 
both from the point of view of constitutional power of the 
Congress and our own resolution. 

And the Court rejected appellee President's clziim of 
executive privilege on confidentiality grounds. 

What the Court had originally asked the President to 
do is to follow. the basis and the formula that this Court set 
down in Nixon vs, Sirica , and that is to submit to the Court 
^particularized reasons conoeniing his claim of confidentiality. 



1622 



11 
The President did not comply with that, but merely made a 
general claim of confidentiality. And the Court found that 
that did not meet this Court's test and rejected the claim 
of executive privilege. 

Also I think it's significant for the Court to 
note that after this Court, concerned with the claim by the 
President, through his counsel, that the conversations might 
be intermingled, and so that those matters which would be 
relevcmt and applicable under the Court's test to the — 
being turned over to the Grand Jury, should be looked at veiy 
carefully. This Court set up a very careful formula, and 
provided a basis for the President to show particularized 
reasons, prior to any turnover to the Gramd Jury, and 
especially even prior to any in camera listening to tapes. 

But when the matter went back to Judge Sirica, the 
President did not assert any particularized reasons to the 
tapes contained in that subpoena, except to the conversation of 
September 15 in part? Judge Sirica ruled on that and withheld 
portions of that tape. 

But cis to all others, including the tapes we seek, 
there v;as no assertion of any particularized reasons, and have 
not been before Judge Gesell. 

Therefore, on the findings made by Judge Gesell in 
the Court belovf, one would expect that the Court would support 
our coitqplaint for declaratory judgment. But the Court, 



1623 



12 

switching from this Court's balancing test, with reference to 
executive privilege, a test that balamced the public interest 
to preserve the confidence of communications of the President 
against the public interest and need of the Grand Jury. 

QUESTION: The question referred to, I take it, 

meeUis that in Nixon v. Sirica , we said that whiere the seeker 
after confidential documents of the President's discussions 
asserts a compelling need, then there is no absolute privilege 
bh the part of the President; and the Court, convinced of the 
strength in the assertion of the need, then proceeded to 
balance that against the compelling need theory. 

Is tliat not what Judge Gesell did? 
' • MR. DASH: No. Judge Gesel did not -- did not 

create a test or use a test with' regard to our request for 
declaratory judgment, as set forth in Nixon vs. Sirica , which 
Was this compelling need of the 'ferand Jury or, in this case. 
Would be the compelling need of our Committee as opposed to 
the public interest-compelling need of the President to 
preserve his, the confidence of the communication. 

What Judge Gesell said 'instead was that he vas going 
to baleince a different set of considerations: the public 
interest that existed in preventing prejudicial pretrial 
publicity as opposed to eUiy need the Congress had for this 
information for legislative purposes. 

QUESTION: But the fact that Judge Gesell did not 



1624 



13 
follow Nixon V, Sirica certainly is no warrant for our 
judgment. 

MR. DASH: No, no. What I'm suggesting is that — 
QUESTION: So that the next question for us is: 

Was there a sufficient compelling need asserted on particulars 
as to bring into play that balancing of — 

MR. DASH: Well, I think, initially. Your Honor, 
the question in determining whether or not there is a compelling 
need, there also has to be a question as to whether or not 
the President has validly asserted an executive privilege 
claim which c£in be supported. 

And the Court below, based on this Court's formula 
that there had to be particularized reasons established that 
there was confidentiality, found that there was no basis for 
the Court to assert any executive privilege. 

I think tliis Court's Nixon vs. Sirica test on 
compelling need cones into play when, in fact, there is a valid 
assertion of an executive privilege claimed by the President. 

i\nd what I am suggesting is that the Court below 
held that there was no valid assertion of executive privilege 
by the President, because there was no evidence by that time 
that there was any confidentiality preserved in these tapes, 
and none asserted by the Presideiit when the Court asked the 
President to identify them. 

I think this Court, even in Nixon vs. Sirica, had 



1625 



14 
ruled that actually there was no confidentiality remaining. 

But this Court did make a finding rejecting the 
President's claim of executive privilege » and therefore, by 
making that finding, there was no need for the Court to bring 
into play this Court's balancing test of compelling need, but 
it did then find that it had to make another determination, 
and that is a public interest issue involving prejudicial 
pretrial publicity, as opposed to compelling need, 

QUESTION: Because it's not a compelling need. 

MR. DASHt Yeah, well, the question that we raise 
here is whether or not a court, where it finds jurisdiction, 
where it finds that the matters requested by the Committee 
are relevant to its functions within its resolution, where it 
find justici^lbility in the controversy, that if there is no 
executive privilege claim, does ttie Court, even in its 
discretion, under — in a complaint for declaratory judgment, 
have the right to interpose its own policy concerns in 
terms of issues of pretrial publicity. 

And we suggest that in exercising its discretion. 
Your Honor, that the Court, although it hais discretion, must 
exercise it within the bounds of strict legal limits. And 
the legal limits in the area of balancing congressional needs 
as opposed to pretrial publicity were clearly established 
by the Supreme Court in the Hutches on caa^f.and in other oases 
such as Delaney , in which the Court held ~ the Supreme Court 



1626 



15 
held in Hutcheson that even -• • emd that weis a much more 
important case than this case in terms of seriousness of 
application -- was that even if the congressional committee 
is seeking information in an investigation of criminal 
conduct, which is the same criminal conduct that is the subject 
of concurrent prosecution, that courts should not limit the 
congressional investigation becaxise of the overriding need 
of Congress to conduct its investigation than the separation 
of powers doctrine. And so we certainly submitted out selves 
to the discretion of the Court in our compleiint for declaratory 
judgment. 

But the issue that the Court resolved in exercising 
its discretion was not within the legal limits that the Court 
could exercise it. It exercised, in essence, its own 
decision that the judicial process is superior cind requires 
priority to legislative process. And I think on two basest 
one is the Court's view that prejudicial pretrial publicity 
has a higher priority pvtblic interest rating than a legislative 
committee need, even in a Select Committee like ours; and the 
second re£tBon was that he preferred the judicial fact-finding 
process over the legislative fact-finding process. 

And I submit t«i the Court that in exercising a 
discretion as to whether pr not to enter declaratory judgment 
on the validity of a subpoena, this is not applying legal 
standards that the Court nhould apply in that way. 



1627 



16 

It seems to me that the Court, where the President 
asserted an executive privilege and rejected it, it didn't 
have the basis upon which to create a new balancing test. 
We're not challenging at all, we think that the balancing test 
that this Court sets forward in Nixon vs. Sirica is a compelling 
one and an important one. 

We also suggest. Your Honor, tiiat we can show a 
compelling need, but we feel that under the Court's own 
finding below that there was no proper claim of executive 
privilege, that what was left for the Court was to determine 
relevance: did our subpoena call for relevance argument? 

QUESTK^i Did they make such a cled.m? 

MR. DASH: There was ~ there was a clcd.m of 
executive privilege presented by the President on the same 
basis that it was presented in the case of the Grand Jtiry 
subpoena. 

And Judge Gesell ruled on that, cihd Judge Gesell 
ruled — rejected it, after he first requested the President 
to submit particularized reasons to stq>port this claim; 
and when the President failed to do so, he rejected the claim 
of executive privilege and moved to other considerations, 
not executive privilege, on the basis of these communications. 

QUESTION: But in Sirica v. Nixon , the sequel to it, 
the requirement of a particularized cl2d.m came after he 
decided compelling need. Isn't that right? 



1G2S 



17 

MR. DASH: Yes, but at that time — at that time 
you had before you the — you had before you a question which 
had not yet been resolved by the Court below in terms of 
whether an executive privilege existed? the issue that was 
decided by Judge Sirica prior to coining to you was the question 
as to v/hether or not there was an unreviewable power in the 
President to refxise, under executive privilege. And that 
issue did not come up before this Court as to whether or not 
the President had actually validly asserted a claim of 
executive privilege. 

And based on the formula that this Court set 
forward, to make that determination v^en it sent the case 
back to Judge Sirica, Judge Gesell was now in a position to 
execute your 'formula and to seek whether or not there was 
any valid claim of executive privilege on particular reasons. 

QUESTION: As I recall the formVala in Nixon v. 
Sirica, it was our characterization of the need for the 
Special Prosecutor in having demonstrated that we chose the 
overwhelming. 

MR, DASH: That's true, and it was first shown 
before this Court, TVnd what I'm suggesting — what I'm saying 
is that after Nixon vs. Sirica , where this Court set guide- 
lines, that was a unique position, the first time a confronta- 
tion between the President himself exerting executive 
privilege against a subpoena, indicating compelling need 



1629 



18 
came before the Court. Judge Sirica did not attempt to 
resolve that issue. This Court set the formula to be applied 
by the court below. 

And what I submit. Your Honor, is that if the Court, 
following this Court's formula, found that there was no basis 
in confidentiality submitted by tlie Presidant for executive 
privilege, then rejected the claim of executive privilege, 
then the compelling need is not necessary. We submit. 
Your Honor, tliat there's plenty in this record if the Court 
wishes to examine whether or not our committee had corbelling 
need. 

Our Committee's resolution mandated t^lis Committee 
to determine the full extent to which illegal acts had been 
committed during the campaign of '72. 

And I submit, Your Honor, that our jurisdiction eis 
a committee to pass on presidential activities is greater 
than the Grand Jury's. Because this was the Select Committee 
on Presidential Campaign Activities, and the Congress has 
jurisdiction to legislate in this area and to legislate as 
to what a Presidant may do as an incuribent President running 
for re-election. 

And so, since our Committee had the — and has the 
power to pass legislation and draft the legislation with 
regard to the power, as to what the incumbent President can 
do in running for re-election; it actually has a broader 



34-366 O - 74 - pt. 2-27 



1(530 



19 
jurisdiction than the Special Prosecutor, when he vas before 
this Court, on the issue of presidential involvement. 

And we also point out that after our original 
resolution, the Senate unanimously passed Resolution 194, 
which reaffirmed the need. And in that resolution, which 
we have in the record, the Senate unanimously said that the 
tapes we subpoenaed ~ this was after we subpoenaed them — 
that were vitally needed by the Committee to perform its 
function, and in the very Act, which was passed by the 
entire Congress, giving jurisdiction, the purpose of that 
Act was to allow this Committee to pursue its litigation for 
the tapes, and certainly the Congress would not have passed 
special legislation to give the district court original 
jurisdiction to let us pursue our litigation for the tapes 
if the entire Congress of the United States did not believe 
that there was a compelling need. 

And we suggest that the presumptions that should 
lie in the determination by Congress as to its need to 
legislation should at least play an important and significant 
role in this Court's decision of compelling need. But the 
very nature of this Committee as a Select Committee to deal 
with the long-term reform system of government emd electoral 
process indicates the very nature of the compelling need we 
have. 

But I do suggest that under Judge Sirica's ~ Judge 



1631 



20 

G€sell's ruling, where he rejects the executive privilege 
claim, that actually the test that this Court set does not 
cone into play, and that he did use a different test. And 
we suggest that the test was not applicable. 

Ilutcheson , I think is a principal case we rely on, 
and Hutcheson is the case which, by the way, was argued 
before the Supreme Court by Special Prosecutor Cox when he 
was Solicitor General; emd it's a similar case to this case, 
in that Congress sought the court's aid, through a contempt 
proceeding, to enforce its process. And it was more serious 
than this. 

This was before the McClellan Committee that 
investigated improper labor activities. And Hutcheson' s 
dilemma was, at the time, and he was a union official, and 
he was asked to testify, The Congress indicted him in 
Indiana, And at the time the law was that if he pled the 
Fifth Amendment in the congressional committee, he couldn't 
really assert a Fiftli Amendment vinder U. S . vs . Murdock , 
where the incrimination would be in a State court. And 
also Indiana had a rule that if he pleaded the Fifth Amendment, 
it could be used against him for impeachment purposes at his 
trial. 

And so he didn't plead the Fifth Amendment, and 
the — Mr. Justice Warren and Douglas dissented in Hutcheson 
on the basis primarily that this — the rule, of law that the 



1632 



21 
Court applied on Fifth Amendment matters placed the subject 
of the investigation in a whipsaw arrangement, so that there 
could be a pretrialing of his case before the Congress and 
ending, he said, even if he pleaded the Fifth Amendment, or 
tried to, could be used against him in the State courts. 

Since then, in Murphy vs. Waterfront Commission , 
the Supreme Court has reversed United States vs. Murdock , and 
also in Griffin vs. California , the Supreme Court heis pro- 
hibited comment on the use of Fifth Amendment. 

Based on these two later decisions, I submit that 
it is a fair guess, at least, that Mr, — former Chief 
Justice V7arran and Justice Douglas, who took very principal 
positions , and I think very important ones in Hutches on , 
probably they would have joined the majority in Hutcheson 
under the present state of the law, 

^"^ llytg hsson is a very strong case, in holding 
that despite — and Justice Harlan held — that despite 
Hutcheson being held in contempt and the Court being asked 
to aid the Congress in pressing its process, in the fact that 
he would still have to go forward as a defendant in a 
criminal case, said that the Court could insist on his — 
the Congress could insist on his testimony, and that the 
Court would uphold the contempt conviction in that case. 

It seems to me that H utcheson is a very strong case 
in our support. 



1633 



22 

We stibmit that there is possibly an argument that 
is being raised by the President and was suggested by the 
court below that aside from the executive privilege for 
confidentiality, that the President, because he has a duty, 
a constitutional duty, to see that the laws are faithfully 
observed or executed, has a right to withhold evidence because 
if he gives us the evidence we would probably use the 
evidence, and this would bring prejudicial'^ re trial publicity 
and the law would not be faithfully executed. 

We suggest that the appellee never raised this 
question until the court below prompted it. X7e don't believe 
that it can be possibly a basis for withholding evidence from 
Congress^ I think we'd be remiss in our duty to this Court 
and to the Committee I serve as Chief Counsel if I do not 
remind the Court that this appellee caused the dismissal of 
Special Prosecutor Cox, who successfully argued I^ixon vs. 
Sirica before this Court, and sought to implement the 
decision in an effort to faithfully execute the laws. 

But Congress creates the laws. Congress makes the 
laws, that must be executed, and it would be an anomaly if 
the duty to execute existing laws could be used to frustrate 
the creation of vitally needed new laws. 

But, more important, the Congress has an equal if 
not greater oversight problem — powers in the administra- 
tion of existing laws, in Watkins in our brief and also a 



16^ 



23 

ir cf ciJ-.er citatiors sxzppcrz. that. Ar.d the obvioas 

'^: ::-rress's oversl^t fmctioD if sTider.oe could be 
•^prer^ei _-i=r a rlain of tbe presideEtial --"-. -r see tr.az 
tlie l?v-= 3.r= faLitfafnlly eaecDteed, oould be that trey — 

QOBSnai: Siat do yoo aean when yoa saf Congzess 
ha^ a rreater oversight rioiit, greater tiian wiKSi? 

MS. D&SB: r^ar. tr.e atpellee President. 2ie 

President's oonstitntiooal cjf/ is tr see tr-at the lav is 
faitr.f"illy execrated, bet Ztr.rress's res p-cr^s Ici Li tN' -- it's 
C:-rre = r -^.at --a.':a= rie l3»-3 , has, as I stcgest, ar. equal if 
tct greater respcr-sicility zo — for cversight o*.-cr t-.e lavs 
it create:S aad ibaices and xxtexz ftrmti nistratica, .\:id this is 
vfcat Watkias t»cir.t= tc, ar.d all the cases poitt tc vhe:: tr.ey 
= £•..• trat ':-Tre = 3 -- trat vtiea Coogzess arts ir. its c ve rs i rr. t 

rrrc-:.-- --?- i - .a-sesticates t.-.e tcssirle rirr.---:- :f the 

ut Its r::-. . — trtaj-.t f_.-:^ir-. 

.\r.z these are the cases, by the way, that distin- 
gnish tfatJcir^ itself a.- i -_- ^ y l'.zz -rr. case, he^aise tney 
■---.'. : : - -re - 3 _: - £l _- :i = tiratit-s into private affairs; 
- .-. ' -r-. ':-r.-%;s is ir.ves ticating — 

'..':; i-- . t ^r probien is aojt^ith-the 

Presile^'" 1" 1" i" ;.- - _ ^.'. .".ire "--sBell's idea tc let the 
cct.rt grar.t -.: c.ers-rr.t, aiid interference with the court's 



1635 



24 

rights. 

MR. DASE: Hell, Hutches on , as I suggest, Toor 

Honor, has ruled on the conrt's right in this area, and the 
Suprene Court in Hatches on said that when these two issoes, 
when these two paths cross, that the right of Congress to 
proceed in its investigation shoTild not be liidted by the 
court. 

QUESTION: Do you thlnX you're particularly Saying, 
then, that asserting in ay CCTigress that access to the 
President's private files are necessary for any refom of 
social legislation would — [indistinct] — 

MR. DASH: No, I wo'old never Biaxe that assertion. 
I think the Court reviews it, and the Court reviews it on 
the basis of whether or not, if there is a valid executive 
privilege, ' 

It se^Eis to Be the assertion- of Congress is 
certainly not in and of itself self-executing. Congress seeJcs 
to get the infomation to — 

QOESTICW: That resolution was net finally adopted — 
the Senate adopted it finally — • is not detensinative here. 

MR. DASE: No, it's certainly not. What it is, 
I think it's only detemlnate. Your Honor, or at least 
persuasive on the conpelling need of the Congress for the 
infomation; but by no Means is the Congress asserting an 
unreviewable power. 



1636 



25 

I think this — we come to the coiirts, as we've 
always argued, that the courts arbitrate that. But within, we 
still say, fixed principles of law. 

What we submit. Your Honor, is that at the' present 
posture of this case, under its recent events — the March 
l8th event, which led to Judge Sirica's decision to turn over 
the docuinents to the House Judiciary Committee, and this 
Court's March 21st decision in Haldeman v». Sirica — has 
really changed the basic nature of the case. 

Even if Judge Gesell's balemcing test is £in 
applicable test, there's really nothing to balance left. 
Because the President, the Special Prosecutor, the trial judge 
and this Court have already taken the risk, emd even a greater 
risk, because of prejudicial pretrial pxiblicity. Because 
the amount of documents that have gone over to the House 
Judiciary Committee, without restriction, with the right to 
use them piiblicly prior to trial, which they most likely will 
have to do to complete their proceedings , is a much greater 
risk than giving us, in fact, the five conversations which 
have received so much publicity already. 

And, in addition, although there was no restriction 
placed on the court, in the House Judiciary Committee, what 
we submit to Your Honors is that we new are in a changed 
position ourselves. When we were before Judge Gesell, the 
Committee had not decided to cancel its public hearings. 



1()3; 



26 

It has now decided to cancel public hearings, in an interest 
not to prejudge or prejudice trial. 

And the Committee does not seek to receive the tapes 
for the purpose of public disclosure, which was the only 
concern that Judge Gesell had. It seeks to use them 
internally for its private determination as to the necessity 
of certain legislation, drastic legislation which will be 
required if the discrepancies that are before the Coniinittee 
resolve through the tapes, 

Therefore, what we submit to Your Honors and submit 
that we can ask for this, because it was raised below, both 
by tlie Special Prosecutor and by us, that we are willing, 
first of all, to assert a very cautious standard in using 
the tapes received, we have adopted tlie same cautious 
provisions which have been found by this Court and the trial 
court in the case of t-he Judiciary Committee in dealing with 
sensitive material. The Special Prosecutor — the I-Jhite 
House has turned over to us, on occasion, national security 
material which we have taken these precautions, and they have 
never become public. And numerous situations have occurred 
in this way. 

But, beyond a voluntary use of precaution, this 
Committee, the appellant, is willing now to submit to a 
protective order if that meets the concern of the Court, 
which was the only concern of the court below, after it 



1638 



27 
resolved the validity of the subpoena, that we would use 
them publicly ~ the assumption was v/e'd tose them pviblicly 
and therefore prejudice the trial. 

We would submit to a stringent protective order, 
so that the Committee would have the tapes for its internal 
use. And we submit that there's a guideline. Deck against 
Hutcheson by Justice Brennan, which gives some clue to how 
this Court can resolve the issue. 

Mr. Justice Brennan said in Hutcheson , in page 624, 
"Ifhen a congressional inquiry and a criminal prosecution 
cross paths, Congress must accommodate the public interst 
in legitimate legislative inquiry with the public interest in 
securing the witness a fair trial," 

And then in suggesting the kind of accommodation, 
the Court, through Mr. Justice Brennan, said in its 
concurring opinion: So long as the subject matter is not in 
cin area in which Congress is forbidden to legislate, the 
mere fact that the conduct under inquiry may have some 
relevance to the subject matter of a pending state indictment 
cannot absolutely preclose congressional inquiry. Surely 
it cannot be said that a fair criminal trial and a full power 
of inquiry or interest that defy accommodation — 

JUDGE BAZELON: Your time has expired. 

MR, DASH: May I jtist conclude — 

QUESTION: I have a question you can respond to. 



1639 



28 

MR* DASH: ~ the last sentence I Weuit to make. 
Your Honor, would be for the accommodation we suggest. 

It v/as what he suggests. Your Honor, without 
concluding the quote. 

JUDGE BAZELON: All right. Now ask your question, 

QUESTION: Is it your view that there is enough — 
that the jurisdictional statute which provides for a 
declaratory judgment has validity as to legislate between — 
that there is no balemcing other than the finding of legis- 
lature purpose — that is, that it requires a predicate of 
legislative purpose; that there is no balancing beyond that? 

MR, DASH: Well, again, if a subpoena — if Congress, 
under Hutcheson , and the cases that follow Hutcheson , issue 
subpoenaed materials within its legislative purpose under its 
resolution, then, except for a valid claim of executive 
privilege, is our submission, Your Honor, that the Court, 
following these Court decisions, has a duty to support the 
subpoena. Of course, — 

QUESTION: Under Watkins , Chief Justice Warren 
points out that now that the legislators have abandoned the 
practice of supporting subpoenas that are in the House or the 
Senate, as the case may be, and gone to the courts, when the 
courts come to consider the matter ~ of course in that ccise 
on criminal defense coming into Congress, — they will balance, 
they will take into account constitutional rights of the — 



1640 



29 

MR. DASH: Oh, yes. 

QUESTION: — person involved. 

Wouldn't the Court also have to tcike into account 
the constitutional rights of the person other than the 
subpoenas addressed to where a subpoena is addressed to a 
bank, the Court might have to consider the right of the 
individual whose records would be disclosed, even though 
he's not directly the subject of the sxibpoena, I \inderstand 
that to be the opinion of the Supreme Court in — 

MR, DASH: I'm not sure that the, ciny cases of the 
Court, or anything that one would read into Watkins or any 
other case, calls for the Court to reach around and determine 
whether or not enforcing the subpoena of the Congress goes 
beyond the -- either the executive privilege issue that a 
President might raise, or a constitutional issue, a Fiirst 
Amendment issue, that the person subpoenaed may have. 

Hutcheson , I think, was the clearest case in a 
contempt case, where the defendant himsei-f — and not only 
himself but other defendants who would be injured by his 
testimony — was compelled, under pain — in fact he refused 
to testify, and the contempt conviction was upheld by the 
Supreme Court, Your Honor, on the basis that the Court should 
not — should not limit. 

Now, the accommodation I was about to get to, and 
1 don't have to quote Mr, Justice Brennan, was that what 



1641 



30 
Justice Brennan suggested, where you get this clash, and 
the crossing of the paths of a congressional inquiry and a 
criminal prosecution, is that the Congress could take the 
evidence in executive session, could postpone and cancel its 
public hearings. 

We've done that. We have — the Congress — we are 
willing — 

QUESTION t Those are all examples of what kind 

of equitable restrictions could '^be imposed, could be 
equitcibly hemdled, that they assumed that there has to be ~ 
' MR, DASH: Well, nc, Mr, Justice Brennan doesn't 

suggest they can be imposed, 

^^ Clutch eson . Justice Brennan concurring, suggests 
that Congress make the accommodation, but not under the 
Court's imposition. Hutch es on stands for the proposition. 
Your Honor, that the Court may not impose those conditions 
unless you have the constitutional right of a person before 
it to bal2mcc, unless you've got the executive privilege. 

QUESTION: Well, that would be whether the 
judicial role is the same under the new jurisdictional 
statutes as it would be in a case of contempt. 

MR. DASH: Well, the — the — 

QUESTION: That is, whether the Act of the 
Congress that authorized it has an affirmative appeal to the 
Court to get its equitable powers, which would mean that any. 



1642 



31 
any disregard would be punishable as a contempt of court, 
not eia a contempt of Congress, doesn't require a court order, 
that is an issued order, not to say what the Congress did 
under its power but under the court's power. Doesn't that 
add something ~ 

MR. DASH: Yes, and — 

QUESTION: ~ as far cis power goes, 

MR, DASH: Yes, and we do submit. Your Honor, that 
we don't go into court, as we did before Judge Gesell, and 
say. Here's our subpoena, and under — here's our new 
jurisdictional statute; enforce it. There's much that the 
Court has to do, aside from even determining the question of 
whether it fits in with our resolution. And it does have 
discretion. But — 

QUESTION: I know there's much that a court heis to 
do, even in a contempt of Congress conviction, 

MR. DASH: Yes. 

QUESTION: I asked you whether there isn't more that 
'a coxirt has to do or has authority to do,' under this 
jurisdictional statute, where its authorization, its action, 
judicial action in the court for the predicate of a contempt 
of court statute? ' - 

MR, DASH : Well , the only response I can make is : 
ho more than it does under any other complaint for declaratory 
judgment. T^d if — 



1643 



32 

QUESTION: But if a complaint for declaratory 
judgment is considered to be sound and equitable, it would 
be an effective complaint for production if the party turns 
around and there is new a balancing. 

MR. DASH: But the balancing, as I indicated 
before, was within legal standards. 

QUESTION: Balcincing of the confidentiality 
against public interest. 

MR. DASH: Within — well, the — 

QUESTIC»I: The ordinary equity balancing apparently 
doesn't fit. 

MR. DASH: Yes, but the public interest in this 
case, which the Supreme Court has ruled in the balancing area, 
is that the pxiblic interest does not supersede the right of 
Congress, where there is a — where there are underlying 
criminal charges. 

What I am saying is that although the Court has 
discretion, the Court has to exercise the discretion within 
the limits of the legal decisions on the issues that it is 
exercising the discretion. 

Nov/, the courts clearly have the discretion on 
balancing issue in executive privilege, it clearly has the 
discretion if a First Amendment or constitutional right were 
being asserted by the party. But on the broad, ptiblic 
interest of whether or not criminal trials take priority 



1644 



33 
over congressional legislation, I stibinit that that wcis outside 
its discretion. I siibmit that Hutcheson rules against that 
exercise of discretion . 

JUDGE BAZELON: Will that be all? 

QUESTION: I have no further questions. 

JUDGE BAZELON: Very well, Mr. Oiester, you may 
proceed. 

ORAL ARGUMENT OF JOHN J. aiESTER, ESQ. , 
ON BEHALF OF THE APPELLEE 

MR, CHESTER: May it please the Court: 

My name is John J. Chester. I am Special Cotinsel 
to the President. I am here on behalf of the President. 

Mr, James D. St. Clair and Charles Alan Wright, 
who are on the brief; at my left are Mr, Sterlacci, Mr. Mui^phy 
eind Mr, Smith, who aire associated with us in the preparation, 
of this matter, 

I would like to just briefly touch on the facts and 
proceedings leading up to this case, to the extent that 
Professor Dash did not cover these particular points. 

As the Court knows, the Senate Select Committee, 
and I'll refer to it simply as Committee in ray argument, 
subpoenaed five tapes. All of these tapes purported to be 
conversations of the President with John Dean cind others, and 
conceimed other aides of the President, 

These tapes were directly amd clearly, as revealed 



1645 



34 

by the subpoena, tapes of conversations that the President had 
with those of his aides who were directly charged with 
assisting hin as the Chief Executive Officer of the country. 

These tapes were refused. Whereupon the Committee 
filed an action, particularly a declaratory judgment. As the 
Court knows, they could have cited the refusal for prosecution, 
they could have brought a contempt proceeding, I think they 
wisely deemed that these actions were inappropriate, and we 
concur with that conclusion. 

But they did bring an action for declaratory 
judgment and an injunction. 

To my knowledge, this is the first time that the 
Congress, the first time that the Congress has gone to the 
courts for the enforcement of a svtbpoena or for a declaratory 
judgment when it seeks information from the Executive in the 
history of the country. 

We would point out, as has been mentioned, that in 
seeking the declaratory judgment they sought also an injunction, 
Ihey sought the compulsory process of the Court. And while 
they sxibsequently filed a motion for summary judgment, the 
summary judgment, if it had been in their favor, certainly 
would have constituted effectually an inj\inction addressed 
to the President by the Court to deliver the sxibpoena. 

Upon the hearing before Judge Gesell, the Court 
Requested a letter from the President relative to executive 



34-966 O - 74 - pt. 2-28 



1646 



35 
privilege, and a memorandtim from the Special Prosecutor 
relative to the pretrial publicity, that pretrial publicity 
might have on pending indictments. 

In response to the request of the Court, the 
President, by letter on February 6th, specified the grounds 
iqpon which he declined to produce the tapes. He' stated 
that the disclosure of these conversations would not be in 
"^e national interest. The publication of these tapes to 
the world at large would seriously infringe upon the 
principles of confidentiality. And there would be possible 
adverse effects upon ongoing and forthcoming criminal 
proceedings should the contents of these subpoenaed 
conversations be made public at an inappropriate time. 

In other words, the assertion of the President 
ri^lative to executive privilege was a two-pronged eissertion. 
One was the assertion of confidentiality of conversations 
of the President with his aides; the second assertion was 
the effects of pretrial pxJaliciUy. 

So that, contrary to vhat Professor Dash has implied 
here, the — Judge Gesell did noh in fact say that there was 
no executive privilege. What he said in effect was that he 
was not honoring the President's ^issertion of confidentiality 
of communications, but he did sustain the President's position 
relative to pretrial publicity. 

Since that hearing, then at the hearing the Court 



1647 



36 
concluded, and we find that we think that this conclusion 
is supported by the evidence that was submitted by the 
Committee, that the appell£uit had not shown a pressing need 
for the tapes, and that disclosuire should be denied in order 
to protect the integrity of the criminal justice system. 

We do not believe, smd we do not £issert that the 
Senate Committee was placed in an inferior position, as 
seems to be the position of Professor Dash here today. 

We think that the Senate Committee has performed an 
outstanding service to the country. We thinJc that that's not 
the question here, of its relative position with the Grand 
Jury or its relative position with the House Judiciary 
Commi ttee . 

We think that it had a job to do. It has done that 
job. And the question solely is, is, Does it need these tapes 
to complete its work? 

Since that — 

QUESTION: Mr. Chester, do you think there's 
anything less to affect judicial integrity on disclosure? 
I mean, hasn't this thing been so massive, so what small 
amount is this thing going to affect in the — [indistinct] 

MR. CHESTER: Well, may it — 

QUESTION: Isn't the country long past that stage? 

MR. CTESTER: VJell, may it please the Court, the 
President is of the opinion that it would have em effect on a 



1648 



37 

fair trial and has so asserted in his letter, asserting 
executive privilege, 

QUESTION: Well- that isn't really — that wasn't 

written yesterday, either. 

MR. aiESTERx No, air, but ~ 

QUESTIONt Are you advancing emy claim on executive 
privilege? 

MR. CHESTER: I am not, sir. 

QUESTION I Oh. 

MR. CHESTER: Neither the claim on executive 
privilege relative to pretrial publicity nor the claim of 
confidentiality of communications. 

I would say at this point, and I would like to make 
it clear, that with regard to the conversations that are on 
these tapes which are of the President's conversations and 
by the President with his aides and assistants, that we 
assert the position that executive privilege applies 
absolutely, and we assert the position that it may not be 
reviewed by the Court and is not a justiciable question. 

We have recognized the practical situation that 
we're in in this Court today, and in the wisdom of Nixon vs. 
Sirica, as applied, 

QUESTION: Well, you're in the same Court here 

today, you know, we could decide it either way. 
[Laughter. 1 



1649 



38 

MR. CHESTER: Well, may it please the Court , I 
would suggest to the Court that we could make It easy for 
eve:rybody If we singly adopted Your Honor's opinion, 
dissenting opinion in Nixon v. Sirica , and adopted that today, 
and we could all go hone and be happy with it. It's already 
written. [Laughing.] 

And with Judge Wilkey's conc\irrence in the dissent. 

QUESTION: In your claim of confidentiality, 
accepting Nixon vs. Sirica to be the law, do you have any 
present claim of executive privilege in the conventional 
sense of confidentiality if we assume that Nixon vs. Sirica 
will not be overruled — [indistinct] . 

MR. CHESTER: We certainly assume that it is a 
confidence, that the conversations are confidential conversa- 
tions. We assume that any conversation with the President is, 
on its face, confidential and is a privileged communication. 

QUESTION: But Nixon vs. Sirica would just throw it 
out as far as the maintenance of the elements that existed, 
and you had there a balancing that these were conversations 
which the President had already agreed would be relayed to 
the Senate Committee, and that this is not now a case of 
covering other than the cCnversations of the President in a 
separation of agreement hearing. 

This does not meem nothing more than would be 
involved in the case before — [indistinct] — be covered in 



1650 



39 

the release of these communl cations, these conversations to 
the Senate Connnlttee. 

What claim of executive privilege as to 
confidentiality remain, asstuning that there's no absolute 
right and all that sort of thing — [indistinct] 

MR. CimSTER: Well, may it please the Court, the 

— there has never been any waiver of the President's right 
to executive privilege pertaining to the tapes and to 
doc\iments. 

QUESTION; But that could come Up, suppose there 
was a doctrine of waiver — 

MR. aiESTER: I understand. 

QUESTION: — there is still the balancing in a case 
where the President has alrea^ said that the taking into . . 
account the needs of the Committee and that only executive 
waiver ~ [indistinct] — is it proper that the Committee 
should have the conversations, testimony about — [indistinct] 

— about the conversations. 

What kind of basis is this to say that executive 

— that the confidentiality aspect presupposes that it 
should not have supporting it the testimony of the witnesses? 

MR. CHESTER: It is our position that there is a 
substantial difference between taped recordings and the 
conversations concerning the taped recordings. 

It is bur position that this points up the very need 



1651 



40 
for executive privilege in this type of thing. 

The tapes — in other words, the tapes, the very 
essence of executive privilege is for, is to protect conversa- 
tions and deliberations that lead up to a final decision, 
and that it is only the final decision that is subject to 
the scrutiny of the public or subject to the scrutiny of the 
Congress. 

QUESTION: Well, the objection to that point was 

inade by Mr. Justice White — 

MR, aiESTER: I xmderstemd. 

QUESTION: — in Nixon v. Sirica . And the Court 
said, well, it may be convictions that he made various points 
about why there might be convictions, and the Court sadd that 
all of those could be accepted, so that what would be turned 
over in the taped recordings was nothing more than scxne type 
of mechanical conversations — [indistinct] 
and from that we cc::7clude that material is not turned over, 
2my part of the tac^ei recordings, so far as I understand it, 
and I don't know how we c^ declare it — - [indistinct] 
That is, other than the conversations. 

Now, I don't know why Nixon vs. Sirica isn't 
controlling on that part of confidentiality. 

MR. CHESTER: We will concede that Nixon vs. Sirica 
is controlling here. But our point is that the tapes — 

QUESTION: And it's also controlling that the 



1652 



41 
tapes don't really give anything more than the conversations, 
once they — [indistinct] . 

MR. CHESTER! Well, this we do not concede. And 
we see — and we have no basis for it, and it is our position 
that the tapes are still privileged, even though we believe 
that Nixon vs. Sirica held that they are Qualified privilege, 
eind subject to the balancing test. This doesn't alter the 
fact that the tapes are still privileged communication. 

And under tlie President's letter. 

We think that the district court in this case has 
properly reviewed, properly ruled that the President's 
inntiediate interest in faithfully executing the laws, and 
the judiciary's iimnediate interest in safeguarding the 
Constitutional right of every individual to a trial free from 
the probability of prejudicial pretrial publicity outweighs 
the interest of the Senate Select Connnittee in making future 
laws . 

And we feel that the second question presented is 
Whether the district court properly ruled that the Senate 
Select Committee failed to meet the burden of proof sufficient 
to obtain a smranary judgment for relief sought, and we think 
an examination of the record clearly indicates that it failed 
to meet the burden of proof* 

And we further state that, as a third issue here, 
that as to %^ether or not the Senate Select Committee may 



1653 



42 

properly request relief from this Court that was not sought 
from the district court. 

In other words, a modification, seeking a 
modification of the decree to permit the entry of a protective 
order. 

We would submit that the tapes are privileged 
communications of the President, being confidential conversa- 
tions with his aides, that under Nixon vs. Sirica , that these 
are qualified privileges that are subject to modification 
upon contrary constitutional rights being asserted. And 
that the privilege depends on weighing of the public interest 
protected by the privilege as against the particular interest 
that would be served by disclosure in the particular case. 

Now, we would submit that with the power of 
congressional investigation, we agree with Professor Deish 
that the Senate has a power to investigate for the purpose of 
legislating; that incidental to this power is some right to 
exposure, right to compel testimony, and a right to investi- 
gate, provided that it is tied to the purpose of legislating. 

But that it may not — the power of investigation 
is not an unlimited power, and it cannot, it must give way to 
certainly the balcuicing test \^en that power is in, becomes 
in conflict with another constitutional power. 

If the Congress is subject, in other words, to the 
^euoe provisions of tireighing or of qualified privilege, that 



1654 



43 

the Executive is, and the same test nust be applied to the 
Congress as is applied to the Executive. 

They have chosen to invoke the powers of the 
Judiciary. This was done at their decision. The judicial 
function, we need not discuss In detail, but to decide cases 
in controversy, this is the power to decide for or ageiinst, 
to weigh and determine the balance of the equity; to issue 
compulsory process. And a function that has arisen since 
the Hutches on case was decided, and that is that the duty of 
the court to protect persons who have been indicted for a 
crime from excessive pretrial publicity, as is set forth in 
the Estes and the Sheppard cases. 

In Judge Gesell's opinion, he stated that the 
President does have an interest in preserving the orderly 
judicial process for resolving the issues that were presented 
to the Court, He stated that the — that with regard to the 
publications of the tapes, that there was no question that 
pxiblication of these tapes would generate extreme publicity. 
He said that the ends of justice will not be served, nor the 
integrity of our system, by the publication of these tapes 
at this time. And that the Committee had presented no 
compelling reason to have these tapes, in the face of the 
President's cledm of executive privilege. 

We submit that the Court can affirm this decision 
on the merits, but we don't agree entirely with the reasoning 



1655 



44 

of the Court/ we do agree and ask the Court to support the 
ooncluslon that's been arrived. 

We do not believe that on the basis of Nixon vs. 
Sirica that the balancing of — that the Court did, and the 
weighing of Inferences, based on what are undisputed facts 
in this case, that there is anything that could be called 
'cTearly erroneous in the Court's position. 

I would state — 

QUESTION: May I ask, covinsel, whether amy trials 
are slated to begin between the present trial in the case 
before the Grzmd Jury at present cuid the trial that is 
pending against -- [indistinct] 

MR, CHESTER: I can only rely on the newspapers 
for my infomation, but it's my tiinders tandlng that there is a 
trial presently scheduled in California, to start this month, 
involving Mr, Ehrlichman, 

QUESTION: Well, I was thinking of the question of 
Judge MacKinnon, which I don't think was really 2mswered, but 
he asked a second question as to confidentiality; that is, 
what amount of pretrial publicity will come out of disclosure 
to the Senate Committee, assuming that would put restrictions 
on the — (indistinct) ~ no public hearings; amd is there 
any reliemce on what the llousfs — [indistinct] 

MR. CHESTER: tfell, may it please the Court, we 
of course do not know what the House Impeachment committee 



1656 



45 
will do with the tapes. We did know that the Grzmd Jury 
would maintain secrecy in its use of the tapes. What the 
House Judiciary Committee will do^ we don't knowi it's only 
speculative. 

All we can se^ is that whoever makes the tapes 
public, we think that this will have, one way or another, a 
profound impact upon public opinion. I think that the 
Court can well take judicial notice of the headlines that 
seem to meet every discussion of tapes that have taken place 
'since last summer, emd they seem to '-- the tapes seem to 
have an intact with the media, an importeince given to thera 
by the media far beyond what would be considered ordinary 
news of evidence, either in a Senate proceeding, a Hoiise 
proceeding, or in a courtroom proceeding. 

QUESTION: Is it your estimation that there is 
still something lurking in the tapes that heisn't been 
disclosed, and would be of such tremendous value eind 
influence on public opinion, one way or another? 

MR. CHESTER: May it please the Court, I have 
Hot heard the tapes, and all I can do is to assert the fact 
that the President has eusserted executive privilege with 
regard to the tapes for reasons best known to himself; and 
the decision is his to assert executive privilege and his 
decision alone. And I'm not in a position, nor do I believe 
'-- nor do I believe is anyone in the position to measure the 



1657 



46 
motivation which may prompt him to do this. 

QUESTICW: Now, let me get it straight, I'm not ~ 

I haven't read all the newspaper accounts or anything else, 
but aren't these the conversations that Dean has already 
testified to with respect to the hearings on the Hill? 

MR. CHESTER: I believe Mr. Dean has testified, 
and I also believe that Mr. Haldeman testified. 

QUESTION: And Mr. Haldeman and Ehrlichman? 

MR. CHESTER} Yes, sir. 

Now, may it please the Court, the — 

QUESTION t You say you haven ' t heard the tapes , 
you're relying on the President's generalized statement of 
what he calls privilege rather them confidentiality — 
[indistinct] — execution of the law, and Judge Ges ell, 
he didn't have the tapes, did he? 

MR. CHESTER: Nb, sir. 

QUESTION: So he hasn't made a statement on the 

basis of his listening to the tapes that there would be a 
disclosure that Would affect the — [indistinct] 

MR. CHESTER: I would submit to the Court that our 
position is that, in the interest of the Presidency, that the 
taptis being conversations of the President with his own aides 
are privileged on their face. 

QUESTION: Well, pardon me, I meant to separate out 
that question of confidentiality privilege, eind I now am going 



1658 



47 
to the question of pretrial publicity, which separates the 
privilege ~ 

MR. CHESTER: Yes, sir. 

QUESTION: — asserted by the President. And I'm 
on that question only for the purpose that whatever we have 
to say fibout confidentiality is already encompassed in the 
question, in your argument. 

But on the question of what Judge Gesell posed, 
and keeping in mind that the reason for any relief he would 
provide on — thiat he had not heard the tapes in order to 
make that judgment. 

MR, CHESTER: That is correct. 

The substance, the substance of the tapes and what 
the tapes deal with is well known by virtue of the testimony 
of Dean and Haldeman and Ehrlichman, and why — cund the 
Senate Coromittee basically is seeking these tapes and is 
seeking the tapes for the perfoirmance of what amounts to a 
judiciary and executive fvinction, in that the — what they 
eure attempting to do is to determine who or if perjury was 
committed, emd there is conflict in the testimony which they 
seek to resolve. 

This in no way can go to the legislative function 
in v^ich they are involved. 

QUESTION: I'm not — we have already found that 
legislative function that may be a very pre&sing function ~ 



1G59 



48 
the word "pressing" seems to be used here as well £U3 
legislative function or ~ 

MR. CHESTER: Or compelling. 

QUESTION J But — wall, in the order the word 
exception has been used -— but I was just wondering, these 
tapes are going to be presented to the Petit Jury eventually, 
presumably on the theory of irtiat has been going on now, 
even if they are, even if they, as ruled — perhaps the 
Committee will tape the conversations, the testiioony before 
the Senate Committee. 

I don't quite know how the publicity operates there 
— [indistinct] -- even if they have to go to trial. Sometimes 
the trial only repeats to the jury >rtiat everybody already 
knows otherwise, that — - [ihdistii^ct] — that's the reason 
for a right to a fair trial. Thaii's the nature of the thing. 

MR, CHESTER: I think that anything — I think that 
anything that involves direct quotations of the President of 
the United States with his aides is something that calls for a 
tremendous impact upon publio opinion, just by the nature of 
the Presidency that is far different from the ordinary and 
compelling situation — the ordihazy situation. 

We find, we — 

QUESTION: How does that bear on the fair trial 
aspect of it, whether the jury will be able to determine this, 
•that, or the other is perjury or not? 



l(it)U 



49 

Wasn't that what it was going to be on — the 
trial would be zdiout vrtiether there weis perjury, wasn't that 
one of the — 

MR. CHESTER: That's one of the points. That's 
one of tile points. 

ftnd we believe that they ~ we believe that the 
publication of the disclosure of the contents of the tapes 
is going to contribute to that pretrial publicity. And the 
President has, in consequence of his constitutional duty, as 
he sees it, has determined that this should not happen. 
And pursuant to his constitutional duties, he has asserted 
the determination, and the trial court found that his 
assertion required a greater balance than did that of the 
Senate Committee in its iissertioh that they needed it for a 
legislative purpose. Because tliere is no conceivably good 
legislative purpose tliat can be performed by their listening 
to the tapes. 

They have already stated ~ it's already been stated 
by two of the Senators on the Committee that they have 
sufficiently adequate information to write their report. 

I would just like, in closing, I would like to 
touch on Hutcheson vs. the United States , the Committee, I 
think, relies very heavily on this case; I do not quite 
understemd why. First of all, the case was decided before 
the Estes case and the Sheppard cases were decided; secondly, 



1661 



50 

it involves an individual and an individual's rights. It is 
not an adjudication of the rights of the President as against 
the rights of the Congress, which are co-equal branches of 
the government. 

The case reaffirms the Watkiiis ca^e as being the 
ruling case in this particular field. 

It further reaffirms Quinn vs. the United States , 
whidli says that the power to iiivestigate must not be confused 
with the powers of law enforcement. 

We submit that behind Judge Gesell's opinion was the 
feeling from the evidence, the conclusion from the evidence 
'that the Committee was intruding into the field of law 
enforcement and had abandoned its legislative intent, and 
that certainly tl-iere is no place, the dignity of the 
judicial process, the dignity of the processes affecting the 
Congress, the judiciary and the President all combine in an 
interest that we do not need, we certainly do not need smy 
more ex parte revelation of testimony by the Senate Select 
Committee. And whether it comes in the form of testimony 
before the Committee or whether it comes in the form of a 
'report by the Committee, because we do not believe that this 
is the best means of reaching the truth. 

QUESTION: Counsel, during the hearings, a number 

of references were made at various times to the fact that they 
were trying to find out who was guilty. Did you extract from 



34-966 O - 74 - pt. 2-29 



1662 



51 
those tapes in the record? 

MR. CHESTER: No, sir. 

QUESTION: Do you recall? 

MR. CHESTER: Yes, sir. 

QUESTION: Don't they agree there is quite a 
severe inpact on the investigative function? 

MR. CHESTER: They certainly do. 11>eir investiga- 
tive — ■ this is our position that they have abandoned the 
position — they have, the Senate Conmittee has sufficient 
information upon vAiich to decide what laws they should adopt; 
they don't need any more information. 

QUESTION: Well, of course, these statements were 
made during the course of the investigation, before they 
made this particular ~ arrived at this stage. It wasn't 
all the Senators", some of the Senators, Iti their questioning, 
indicated that they have a valid legislative purpose in nind. 
But there are others that stated that they wanted to find out 
who was guilty. 

It just seems that those ought to be dociuoented 
for the weight that they bear on it in the particular foriin. 

MR. CHESTER: May it please the Court, we do 
not presume, on behalf of the President, to control the 
Congress. It's one of the three great branches of the 
government. And we do not presume to tell them whether they 
can have hearings or whether they caiuiot have hearings. 



1663 



52 

What we are here today to assert is that in view 
of the compelling constitutional obligations that are on the 
other side, and on behalf of the Presidency, that they 
cannot and should not be able to invoke the powers of the 
judiciary to infringe upon the President's powers in a manner 
that is neither legal nor constitutional, and exceeds the 
bounds of their investigatory powers. 

QUESTION: You haven't argued the political 
question. 

MR. CHESTER} In view of Nixon vs. Sirica , we 

have not argued the justiciability question. Aa I stated 
earlier, we would be glad to, both in that case and in this 
case, to adopt your dissenting opinion. 

QUESTION: Counsel, on this question of you can 

only investigate in this board of elections the function 

to legislate, it's as though there are cases like the 

Daugherty case and the case of the, in the First Circuit, of 

that Internal Revenue fellow, the Delaney case, which 

established that it is a legislative function to investigate 

the way in which the executive perforins as a separate 

function from the function in which ~ 

MR. CHESTER: I do not believe that those cases 

? 
so hold. The Daugherty case was a case in which Mallory 

Daugherty, a brother of the Attorney General, was subpoenaed 

by the Committee and actually taken into cvistody on a contempt 



1664 



53 
proceeding. A writ of hcUbeas corpus was filed to free him, 
and the Coiirt held that ~ and the basis for the writ Wcis 
that the purpose of the investigation was to try Harry 
Daugherty, the Attorney General of the United States. 

The Court held that on the facts as presented in 
that case and at that heating that there was a presumption 
that the Court was serving a legislative purpose when it 
investigated the Department of Justice. And we do not 
assert anything different here. We do not question and have 
not questioned the right of the Senate Committee to 
investigate the Executive — to investigate the Executive 
Department, as indeed it has, and as the President waived the 
executive privilege for the witnesses to testify. 

What we do assert is that in that Ccise there was a 
presumption of — there was a presumption of legislative, 
of legislative purpose. And the presumption was not 
challenged. 

Now, if the case had been somewhat different, and 
the Court would have found that there was not a legislative 
purpose, then Mr. Mallory Daugherty would have been turned 
free. 

QUESTION: I think the presumption is that — 
[indistinct] — as for purpose in fact, but I don't think 
— I don't think, in view of our testimony here, that it 
is a legislative function to investigate the administration 



1665 



54 
of the execution of law by the Executive. 

MR. CHESTER! I think the Watkins case and the 
Hutdieson case both reaffirm, and the Delciney case, both 
reaffina that there must be a legislative purpose to the 
Investigation, or the investigation fails. I don't think 
that there's any question on this point. 

QUESTION: But the point is that there is a 
legislative puirpose in investigating the administration by 
the Executive — (indistinct] — that's the question. 

MR. CHESTBRt That's not the way I read the cases. 

QUESTION: Well, of course, it has a collateral 

effect, of course the question 18 when it stops. When there's 
not enough to legislate, you can't go on and hang the noose. 

MR. CHESTER: That's correct. It's not — 
we're not — in other words, the Senate is not in the law 
enforcement business. 

Thank you, sir, 

JUDGE BAZELON: All right. 

As to time, you were well over — 

MR, DASH: I know. I just — just very briefly. 
I think just to reply to — 

QUESTION: Excuse me, I'd like to ask the amicus 
a question, 

MR. DASH: Yes, sir, 

JUDGE bAZELONi All right, Mr. Lacovara. 



1666 



55 
ORAL ARGUMENT OP PHILIP A. LACOVARA, ESQ., 
ON BEHALF OP THE SPECIAL PROSECUTOR AS 
AMICUS CURIAE 

MR, LACOVARA: Your Honor. 

QUESTION: I might as well ask the specific 
questions, if you want to extend your conmients, you may. 

MR. LACOVARA J Thank you. 

QUESTION: Well, my question, Mr. Lacovara, is 

whether there is really any incremental pretrial publicity 
problem, as a followup on Judge MacKinnon's question. In 
view of the ruling in Haldeman vs. Sirica , if you had to 
face that probleu of taking the risk of pretrial publicity 
in that case, yen were willing to do it, now is there any 
incremental risk of pretrial publicity to Mr. Nixon if the 
tapes are prese:iced to the Senate Select Committee? 

What is the significance, in your view, or your 
reponsibility -• is it your desire to, presuming it would 
do what can be ;one to assure fair trial and minimize the 
-- [indistinct] , 

MR, i;.COVARA: Your Honor, consistent with our 
understandinj >;£ our responsibilities, we have not seen it 
, necessary '-o ofpose the application by the Select 
Committee? for iiccess to these tapes. We have te^cen the 
positicr, which is reflected in our brief before this Court, 
that 3i\ additional publicity that might be generated by 



1667 



56 
whatever use the Cononittee might matke of these tapes, if 
it's held entitled to thein £ind if they are produced, would be 
incremental only and, as we have indicated, even the 
incremental publicity eibout these conversations might not be 
the l^pe of publicity which would be prejudicial or which 
it would be in^ossible for a trial court to deal with at the 
proper time. 

And for that reason we have not found it necessary, 
as we did not find it necessary in suppoirting the Grand Jury's 
action, to take any action that overtly or subtly oppo3ed 
'^the course that was being suggested. 

QUESTION: Hell, what do you mean — in plain 

language, when you're talking about incremental — 

MR. LACOVARA: Yes, sir. 

QUESTION: — tell us what you mean, 

I4R. LACOVARA: It would no doubt — 

QUESTION: On the basis of the facts, 

MR. LACOVARA: On the basis of the facts, without 
getting into the content of the tapes about which there has 
been a good deal of publicity by the participemts in those 
conversations, it would no doubt be true that if the 
Committee obtained access to the tapes and if it elected, 
in some way, or was permitted in some way 'co play the tapes 
publicly, there would be additional newspaper stories about 
that fact. 



1668 



57 

That I would think would be the most extreme use 
of the tapes « from the stemdpolnt of generating publicity, 
although it's conceivable that one could postulate, and we 
have not idea what the Committee would be doing on this score, 
that the Committee might use these tapes to purport to find 
facts, or resolve questions of guilt or innocence, amd might 
— again conceivably, speaking strictly hypothetical ly -- 
issue a report, saying so-and-so was telling the truth, and 
so-and-so lied; and we foxind evidence of certain kinds of 
criminal violations. 

That would lead, no doubt, to considerable public 
attention for sorne time after the Committee made such a 
hypothetical release. 

Whether that would irreparably prejudice all 
potential jurors and prevent them from saying that they 
could decide the case on the base of their own listening to 
'the tapes in the courtroom, ■ to decide for themselvas what 
the significcmce of the tapes would be, is something that I 
frankly dovibt. 

QUESTION: Would it be fair to say that your 
position would be that the risk is more incremental, 
prejudicial to listening would not be enheuiced unless there 
were a con9>elling legislative purpose concerned^?' 

MR» LACOVARAi Well, Your Honor, we tried to 
avoid, as you can tell, being caught in this embrolio, and 



1669 



58 

I'm aure you can understand the reason for that, and I'm 
candid in conceding that to the Court, 

We, as we've said in our various briefs before this 
Court, have tried to do everything that we can to avoid 
even the generation of publicity which we feel would not 
irrepareU^ly damage these prosecutions, simply because we 
don't want any problems where we can avoid them. 

However, it's not a world completely of our own 
meiking, and there are other values to be served besides 
making our lives easier. 

One of tlie values to be served is the value being 
"served by the Select Committee's hearings, and the legislative 
activities in which it's engaged, whether they are viewed 
narrowly ka simply performing a law-making function or 
whetlier they also are read broadly as involving an oversight 
function. ^^^ .' 

My position, then, would be, it would be 
unfortunate for any more publicity to be generated than 
necessary, but whether we would i^ay that there has to be a 
compelling necessity test in order to allow anything else 
to develop that might cause us some problems, I would probably 
have to say I would not support such a test across the board. 

It would depend on each case , what the particular 
"justification was, whether the interest of the body or the 
agency or individual who wanted to do something that might 



1670 



59 
caxise publicity. 

QUESTION: That's a step that we might have to 

teJce on the basis of what the record shows with respect to 
that, isn't it? 

MR. LACOVARA: Yes, sir, 

QUESTION: In other words, we don't ~ [indistict] 

MR. LACOVARA: That's correct," 

QUESTION: Well, your position — I think it's 
stated on page 7 -- is that it would only marginally add to 
previous publicity. You say, "In addition, the publicity, 
as all prior publicity, will be largely factual." 

Now, of course that is going to be largely 
commented on, the fact of the release, isn't itf I mean, 
the pleiin facts that come out is going to be a mere drop 
Vo the tremendous publicity that follows thereafter in the 
'fonn of editorials, news reporting, media comment on it, 
isn't that right? 

MR. LACOVARA: Well, you of course anticipate a 
gloss being placed on the facts, and I'm sure that will happen, 
1i*hat we were suggesting there is that the natuz« of the 
evidence which is at issue here, the mechanical recordings of 
conversations, is such that if it is disclosed, the public 
will have access to the facts and will be in a better 
'position to nake their own assessment than if there were 
■inply editorial comments, drawing inferences from facts about 



1671 



60 

which the public had no particular or direct knowledge. 
That was the ainple point that we were trying to make there. 

QUESTION: Of course that's true of the statements 

before the Senate Committee. 

MR. LACX)VARA: Yes. 

QUESTION: What's been generated out of the facts 

reported in the Senate is ten times the eunount of — 
[indistinct] 

MR. LACOVARA: I think that's true. But it's 
based ob events which the public has been able to evaluate, 
and the piiblic has not been forced to rely on the evaluations. 

QUESTION; Do you think there is — do you think 
they are still remembering what was said in the Senate 
hearings? 

MR. LACOVARA: Well, I can only say that yesterday, 
despite prior claims in the Chapin prosecution, that it 
would be impossible to select a jury in this District that 
would be able to try the defendant fairly. Judge Gesell^ the 
district judge involved in this proceeding, was able to 
select a jury that Weis apparently satisfactory, in several 
hours . 

So apparently the inculcation of Watergate related 
events was not all that deep. 

QUESTION: Let me ask Mr. Dash a question. 

MR. LACOVARA: Your Honor, I have simply one point 



1672 



61 
to make, and the point is conoeinied with the nature of the 
tapes and in response to Judge McGowan's question earlier on 
in the argument. Mr. Dash mentioned that the four original 
tapes which were subpoenaed were in the custody of the 
Special Prosecutor. And this is not accxirate. 

niese tapes have never been in our possession. 
" Pursuant to this Court's memdate in Nixon vs. 

Sirica , the original six-hour reels were surrendered to Judge 
Sirica, and they have been in the custody of the Court from 
that date until this. We have had access to the originals 
only in the custody of a United States Marshal, acconpemied 
by representatives of the White House, for the purpose of 
making tests. 

The tapes, the original recordings have at all 
times been in the custody of the Court. 

The February 28th tape, which was not subpoenaed 
by us, is not in the custody of the Court. I believe that 
is still in the President's custody. A copy of that tape, 
however, in addition to being made available to us cind the 
Grand Jury, and apparently to the House Judiciary Conmittee, 
has — 

QUESTION: I'm sorry, the February 28th tape is 
still in the custody of whom? 

MR. LACOVARA: Of the President, 

QUESTION: Of the President? 



1673 



62 

MR. LACOVARAi Yes, sir. Because that was not 
covered by our subpoena and therefore was not turned over to 
Judge Sirica for the puirpose of his examination for any 
particularized claims of executive privilege. 

QUESTION: Is it your understanding that the White 
Hoviae has electronic copies available to them? 

MR. LACOVARA: Well, counsel for the i^resi dent 
could better address that. Your Honor; but I'm about eis 
confident as I could be that they have kept copies. And I 
believe that a copy of the February 28th tape has been made 
available to the United States Attorney's office in New York 
in connection with the Vesco trlil, and it's been submitted 
to the judge theire, and a transcript of at least portions of 
that tape have been made available to defense counsel, 

QUESTION; It seems to me there might be a 
difference in terms of the Senate Select Committee's need 
between a transcript, a stenographic trcmscript, and actual 
copies, electronic copies of the tape. 

MR. LACOVARA J Well, it would depend on the — 

QUESTION: I presume that that was the purpose, 

what they want, they would need recorded copies of the 
original recording. 

MR. LACOVARA: Yes, I would think that it might make 
a difference, which version or which form the content of 
those tapes came to them in, depending on vrtiether there was 



1674 



63 
an intention to play then at a public session. In which 
case, the recordings, whether originals or copies, would be 
the more pertinent, or whether they were siitiply to be used 
for whatever executive session purposes the Conmittee might 
want in framing its report, in which case perhaps a trcinscript 
might be sufficient. 

But that's a matter, of course, that's beyond our 
kien. 

I have nothing else to add, if the Court has not 
further questions. 
" JUDGE BAZELON: Thauik you very much, 

MR. LACOVARA: Thank you. 

JUDGE BAZELON: Mr. Dash. 

REBUTTAL ARGUMENT OP SAMUEL DASH, fiSQ., 

ON BEHALF OP TtlE APPELLANTS 

MR, DASH; Just very briefly, because I know that 
the Court has listened to much argtunen^. 

I just wanted to point that Judge Leven thai was 
correct in his reference to Daugherty . On page 174, the 
"Supreme Court stated that the power of inquiry with process 
to enforce it is an essential and appropriate auxiliary to 
the legislative function. 

And this has been he Id^ in all of the cases that 
deal with it, including Watkins . 
^ ' I think on the questioh that I think Judge MacKinnon 



1675 



64 
raised as to the Senators asking whether somebody is guilty. 
I think one of the questions that Senator Baker asked 
regularly was "What did the President know, and when?" 

In McGrain , the Stq>rene Court of the Uhlted States 
in McGrain vs. Daucfherty , dealt with the guilt of the Attorney 
General, and the Supreme Court said that Congress, in 
investigating facts to determine legislation, get into guilt 
matters, not for the purpose of a judicial role but to make a 
determination whether or not to legislate in that area. 

I must remind the Court, our Committee is not a 
general Committee, it's a Committee on Presidential Campaign 
Activities, and we have to legislate with regard to the 
President and the incumbent President. And therefore, certeiin 
drastic legislation may depend upon presidential involvement. 

It is true, by the way, that the February 28th tape, 
which we seek, was used in the Vesco case, emd that already 
has been made scmiewhat public, in portions of that, and that 
is out. 

I think it's quite clear — 

QUESTION: [indistinct] — access of the 

transcript in that ~ 

MR. DASH: That portion of the transcript. 

But vAiat I say is that so much of the tapes, these, 
as I said, paltry few tapes that we seek now, not only have 
we had full testimony, but I thiiik it's untrue, by the way. 



1676 



65 
as counsel for the President suggestsv that we've got 
enough cuid our job is done. 

What we have is a major discrepancy. We have Mr. 
Dean's testimony, we have Mr. Haldeman's testinvony, and we 
certfdnly have the public st^atentents by the President. 
It's very important for a committee, in making its findings 
of fact internally, even if it doesn't publish tJiem, to 
come to legislation, it has to reisolve these issues. And 
you certainly can't suggest that a committee abandon its 
responsibility to resolve the issues. 

I just" want to — 
' ' QUESTION : You 'mean made internal by the fact that 

-- as I read Nixon — [indistinct] ~ that there might be 
a problem with respect to the prospects that you are 
controlled not only by what the tape recording says, but 
what it says in view of what that — 

MR. DASH: Yes — 

QUESTION: — they know what their du^ is, 
but %«hat that iii4>lies concerning being in the area in which 
"there are discrepemcies in view of what has been testified. 

MR. DASH: Yes, 

QUESTION: And this might be just for the ptirpose 
of — 

MR. DASH: Yes, sir. 

QUESTION: — [indistinct] — and they could not 



1677 



66 
nake a determination. 

MR. DASH: Yes, sir. That's v^y I used the term 
"internal use". 

We're here now wherd the Ccnnrdttee has again 
showed, I think, its responsibility by cancelling its public 
hearings. Also postponing its report. 

The Committee is seriotisly considering the question 
of whether, because of the public trials that are pending, 
it should make findings of fact. It should even involve 
itself in the question of a public finding on presidential 
involvement, although it will do this internally and 
privately. 

What we're here now before the Court as saying is 
that the only concern — and we're really addressing ourselves 
to what Judge Gesell ruled — of course the Court can tcike a 
-reader view — but Judge Gesell ruled that the only reason 
he did not rule in our favor is because he was concerned 
with our using the tapes publicly to prejudice the trial. 

And what we'r« suggesting to the Court now is that 
his decision to dismiss the conplaint without prejudice was 
an overreach and too broad, that that can be covered, if 
that was the concern, and we're now willing to do so, we are 
not going to have any more public hearings. V7e're willing to 
submit to protective ordei^, we're willing to consider the 
question of internally finding our facts and not including 



34-966 O - 74 - pt. 2-30 



1678 



67 
those findings in the report. 

QUESTION: And do I \inderst£md you to say that 
you will not make any findings of fact and — [indistinct] 

MR, DASH: No, what I'm saying is that we won't 
publish the findings of fact. 

QUESTION: That there will be a protective order 

that the Conunittee will not publish its findings? 

MR, DASH: Well, this is a decision we — I think 
in this particular case, just as you have, you have relied 
on the good faith and the precautions that the House 
"Judiciary Committee, on these very same risks, on their 
precuations. I think you can rely on the Senate Select 
Committee's precaution. We have applied the same precautions, 

And I think it's very fair to say that prior to 
these trials, that the — whatever the Committee does 
internally in terms of using these tapes, it's going to make 
a report to the House as to its findings, and there will be 
ptiblic exposure of everything you turned over, allowed at 
least to turn over to the House Judiciary Committee. 

Therefore, I suggest, that \irtiatever risks the 
pretrial publicity is taking has been taken, and all we're — 
what we ask for is a minimal ared compared to what you've 
already done. 

And just finally, with Judge McGowan's concern of 
compelling need, what we suggest is. Your Honor, that the 



1679 



68 
determination of the extent of compelling need to be 
balanced here on the question of the extent of the 
stjbstantiality of the executive privilege claim. 

And what we find here is that Judge Gesell ruled that 
there really was not substantiality as to that, and pretrial 
publicity is not em executive privilege clcd.ro. 

Therefore, we feel, if you look at this record, 
you will find through our Resolution, through our own state- 
ment of facts, which is just as compelling as Mr. Cox's, 
the con^jelling need for our use for legislation. 
" May I just finally conclude that if we had been 

stopped earlier on the Scune arguinent that was made here 
before, Mr. Cox would not have been eible to make the compelling 
need he did raeike' before this Court, because he wouldn't have 
had the evidence. The testimony would not have come out, 
and the tapes would not have been revealed. 

And that, I think, the Court should remember in 
terms of limiting a congiressional committee that has the 
important responsibility that this Committee has, to look 
into the Watergate scandal and attempt to come up with 
remedies that will safeguard our electoral process. 

Thj^ is a very importemt responsibility, 

QUESTION: Counsel, you say you're willing to 
submit to a protective order, 

MR. DASH: Yes, Your Honor. 



1680 



69 

QUESTION: Of course, any protective order to 

really do any protecting would have to prohibit disclosure 
until after the trials are over, wouldn't it? 

MR. DASH: That protective order may so contain 
that requirement. 

QUESTION: And at that time all this information 
would be made public, wouldn't it? 

MR. DASH: That's true. 

QUESTION: And so really what you're asking for 
is to limit this material into the — [indistinct] 

MR, DASH: No. But not for the purpose of 
publishing it. Your Honor, internally so that — may I 
suggest. Your Honor, that the members of my Committee will 
not recommend to the Congress certain drastic legislation 
which may have to be recommended unless they make certain 
findings, and they can't make these findings unless they see 
the resolution of the discrepancies before the Committee. 

And they can do that internally, without a public 
disclosure and v;ithout prejudicing trials, 

QUESTION: What you're saying, though, is that 
their findings or their recommendations will be an indication 
as to what they have found from the tapes, 

MR. DASH: Oh, well, I would suggest that if you're 
going to look at the possible prejudice to trials from the 
inferential determination that the facts might show, based 



1681 



70 
on a recommendation of a pice of legislation, I do submit. 
Your Honor, that this would carry possible pretrial publicity 
too far. 

I don't think if we recommend, for instance, and 
one of the recommendations may be — and 1 can't speak for 
the Committee, because the Committee hasn't even had it on 
the agenda -- we may, for instance, recommend that there 
be an institutionalized ongoing Special Prosecutor, because 
of the — not being able to trust the conflicts that exist 
between the President and the Department of Jtistice. 

Now, that kind of a finding, and a recommendation 
that a Special Prosecutor should continue as a form of 
omnbudsmcin, I don't believe you could say that you could 
infer from that there was a finding of presidential 
involvement. 

What I'm saying is that I don't believe, from our 
legislative recommendations, that you're going to draw the 
kind of prejudice that would interfere with trials. And we 
ask you to allow us to do our job, that the full Senate asked 
us to do, in insuring that this country has an electoral 
pix>cess that is safeguarded. 

Thank you. 

JUDGE BAZELON: Thank you, gentlemen. 

[Whereupon, at approximately 11:30 a.m., the case 
in the above-entitled matter was concluded, ] 



1682 



THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 



SSaATE SELECT COMMITTEE ON PRESIDENTIAL 
CAi'lPAIGN 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 



RICHARD M. NIXON, Individually and as 
President of the United States 



Appellee 



RECEIVED 

APR 3 1974 I 

.^ CLERK OF THE UNITED - 
STATES COURT OF APPEAIS 



NO. 74-1258 



MOTION FOR LEAVE TO FILE SUPPLEMENTAL MEMORANDUM OF APPELLANTS 

Appellants hereby move the Court for leave to file the 
attached Supplemental Memorandum of Appellants. As grounds for 
this motion, appellants state that the attached Memorandum is 
required to provide a complete response to a question put" 
appellants' counsel at oral argument in this case on April 2, 1974. 

"^■/Respectfully^ submitted. 





Samuel Dash 
Chief Counsel 

Fred D. Thompson 
Minority Counsel 

Rufus Edmisten 
Deputy Counsel 

James Hamilton 
Assistant Chief Counsel 

Ronald D. Rotunda 
Assistant Counsel ' 



1683 



- 2 - 



Richard Stewart 
Special Counsel 



Sherman Cohn 
Eugene Gressman 
Jerome A. Barron 

Washington, D.C. 
Of Counsel 

Arthur S. Miller 
Chief Consultant to 

the Select Committee 
Of Counsel 



Donald S. Burr is 
Assistant Counsel 

W. Dennis Summers 
Assistant Counsel 

United States Senate 
Washington, D.C. 20510 
Telephone Nvunber 225-0531 



April 3, 1974 



Attorneys for Appellants 



1HS4 



THE UI^'ITED STATES COURT OF APE 
PCR TH3 DISTRICT OF COLUMBIA CIR 



SEIATE SELECT COMMXTTSS ON PRESIDENTIAL 
CA>f?AIC}N ACnVTTISS, suing in its 
owii nans and in the nane of the 
UmTSB STATES, 




SA.M J. ERVIli, JR., EC WARD E. BAKER, JR., 

KER>IAH" E. TALI-LADGS, DArflSL K. INOUYS, 
JCSEPH M. I'iCiiTOYA, EDWARD J. GUR2fEY, 
and LOWELL P. WSICKSH, JR., as United 
States Senators who are menbers of ohe 
Senate Select Cormittee on Presidential 
Caspaign Activities 

Aopellants 



No. 7^-1258 



RICHARD M. NIXON, individually and as 
President of the United States 



Appellee 



SbTPLEI'lELnAL MEi-iDRAIDUM OF AP?i 



Ains 



At oral axgnsen"C in this case Judge McGowan asked counsel 

for appellants whether, under Nixon v. Sirica , U.S. 

App. D.C. , 487 F.2d 700 (1973)a appellants nsist make 

a threshhold showing of comelling need for corrnunlcations 
claimed privileged by the President before any balancing test 
respecting executive privilege is applied. Counsel believes 
his answer to this question was incos:plets and thus sucnits 



1685 



- 2 - 

the follcf'lng exaboralsicn of his response. 

With all deference, we do no~ read IIi:--:cn v. oirica in 

the nanner Judge McCjowan's question suggests. That case 

states that: 

"/~A /-Plication of Executive privilege depends upon 
a~vfeTghlng of the public interest protected by the 
privilege against the public interests triat would 
be ser-zed ay disclosure in a particular case." 
^rSj ?.2d at 716. 

Applying this test, this Court held that 

"... the District Court inay order disclosure of 
pn portions of the tapes relevaint to matters 
within the proper scope of the grand jury's 
investigation _, unless the Coiurt Judges that the 
public interest served oy nondisclos'ore of particular 
statements or information outweighs the need for 
that information demonstrated by the grand jury." 
487 F.2d at 7l3 

rt'e perceive, in these two basic formulations of the 
balancing test, no requirement that comoelling need be first 

V 

shown before the Balancing test is applied. 

It is tru^ that this Court has held that presidential 
conversations are "presumptively privileged." But this 
presumption should fall not only before a showing of con^jallicg 
need, but also, for exas^jle, upon a demonstration that the 
contents of the conversations involved are no longer confidential 
or a shewing that there is a pr-'.ra facie case that the President 
and his closest associates have been involved in criminal 
conduct and the materials sought bear on that involvement. * 

2/ The Cohort in Nixon v. Sirica did fini that the grand jury 
had. a unique need for the materials in question, but dii 
not rule that "such a shc.rf.ng must be made before the balancing 
test is applied. '' 



1686 



- 3 - 



Moreover, even if compelling need is a threshhold question 
in the normal, case, it should not be here in light of recent 
history which makes it impossible to view the conversations 
on the tapes as "presumptively privileged." The five tapes have 
now been heard by the grand jury and turned over to the House 
Judiciary Committee, There are no restrictions imposed by the 
Court or the President on the use to be made by the House of 
this material. Moreover, the Special Prosector states that 
four of the five tapes will be introduced at future trials, 
(JA 155-6) The President has thus lost control of these 
tapes and it appears that eventually they will be publicly 
played , 

These circumstances, as well as the findings of Nixon 
V. Sirica , demonstrate conclusively that there is no longer 
any executive confidentiality — the only interest shielded 
by the privilege — to protect. Consequently, no presumption 
can remain as to the claimed privirege. 



^ The Court found that four of the five conversations here 
sought "are no longer confidential." 48? F.2d at 7l8 



1687 



- 4 - 



Moreover, as we asserted several times below and the 

V 
President has not disputed, the evidence before the Com- 
mittee establishes a prima facie case that the President 
and his closest associates have been engaged in criminal 
conduct that the Committee is authorized to investigate. 
The tapes will supply evidence of that involvement and 
Nixon V. Sirica , 487 F.2d at 717 j establishes that executive 
privilege cannot be successfully invoked to conceal wrong- 
doing by the Chief Executive or his closest associates. 

Thus, it would be to wink at history to claim that the 
conversations sought are "presumptively privileged" at this 
stage. In fact, application of executive privilege cannot 
be justified on ajiy theory. The presumption of privilege 
has thus been dispelled and any assertion that the privilege 
should be upheld on any groimd is wholly untenable. Under 
the vmique circiomstances that now exist, we submit that 
appellants must only show that these taped conversations 
are relevant to its legislative purpose ajnd are needed to 
fulfill its legislative missions. We submit we have estab- 
lished a d emonstrable need for the tapes at issue. 

*/ See, e.g.. Reply To Defendant's Response To Plaintiffs' 
Memorajidum On Remand, pp. 10-11. 

** / Indeed, the Committee believes that it has shown a com- 
pelling need for the material in question. We should note, 
however, that it would be seriously debilitating to Congress' 
important oversight function respecting executive conduct to 
require that compelling need be first shown by Congress 
before a balancing test respecting the interests of Congress 
and the executive is employed. To adopt such a rule might-- 
make the executive all the more resistant to supplying infor-» 
mation the Congress needs to fulfill its oversight responsibilities. 



1688 

- 5 - i- 

Moreover, the Court below found that the "tapes are 
relevant to the Committee's functions". (JA l64). 



Respectfully submitted. 




Samuel Dash 



1689 



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, 
JOSEPHM. 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 



LEE 



ellee 



No. 74-12 5J 



RESPONSE TO APPELLANT'S MOTION FOR 
LEAVE TO FILE SUPPLEMENTAL MEMORANDUM 



The Appellee, Richard M, Nixon, by his attorneys hereby 
submits this Response to Appellant's Motion for Leave to File 
Supplemental Memorandum. Appellee submits that the Committee 



1690 



- 2 - 

has been afforded ample opportunity to address the issues in its briefs 
and at oral argument before this Court. In fact. Appellee did not 
oppose the failure of the Committee to obtain leave of court to file a 
Reply Brief that exceeded the page limitation set forth by Rule 28(g) 
of the Federal Rules of Appellate Procedure. Nevertheless, we concur 
with counsel for the Committee that his response to Judge McGowan's 
question at oral argument was inadequate. Accordingly, we express no 
objection to the Committee's motion if this Court deems it helpful to 
have an additional submission on the question: whether, under Nixon v. 

Sirica , U.S. App. D. C. , 487 F. 2d 700 (1973), the Committee 

must make a threshold showing of compelling need for communications 
claimed privileged by the President before any balancing test respecting 
privilege is applied. However, we feel constrained to point out that the 
Committee has once again misconceived the holding of this Court in 
Nixon v. Sirica and its application. 

Since the Committee has submitted its Supplemental Memorandunn 
before obtaining leave of court, we believe that fundamental fairness 
requires that the Court also have before it our understanding of this 
matter. 



1691 



- 3 - 

The Committee states at p. 2 of its Supplemental Memorandum 
that "[w]e perceive, in these two basic formulations of the balancing test, 
no requirement that compelling need be first shown before the balancing 
test is applied. " This is still an inadequate answer as it ignores logic, 
case law and the Committee's own former position. 

In Nixon v. Sirica, this Court recognized that the conversations 
involved here are "presumptively privileged. " 487 F. 2d at 717. In 
the very next line this Court noted, "[b]ut we think that this presumption 
of privilege premised on the public interest in confidentiality must fail 
in the face of the uniquely powerful showing made by the Special Prosecutor 
in this case. " Id. Simple logic dictates that if a presumption is not to 
be merely illusory then a certain quantum of evidence is needed to 
overcome it. This Court has already noted that a claim of Executive 
privilege is entitled to "great weight." 487 F. 2d at 715. Thus the 
quantum of evidence required to overcome the privilege must be even 
greater. It must at least be "uniquely powerful" or as this Court stated 
in another part of the same opinion with respect to the Special Prosecutor's 
memorandum: 



\m2 



This memorandum contains a particularized showing 
of the grand jury's need for each of the several 
subpoenaed tapes --a need that the District Court 
subsequently and, we think, correctly termed "well- 
documented and imposing. " 487 F. 2d at 705 (footnotes 
omitted). 

Certainly, this language supports the proposition that before a 
court can even engage in balancing the party seeking disclosure must 
show a compelling need to overcome the presumption. Since the 
ComiTiittee has not made a "compelling showing of need" the Court 
below did not even have to balance, though its decision as a result of 
the balancing was correct. 

In any event, such a compelling need must be consistent with 
the Committee's legislative function. Thus the Committee's assertion 
at p. 2 of its Supplemental Memorandum that the presumption should be 
overcome because of "a showing tliat there is a prima facie case that 
the President and his closest associates have been involved in criminal 
conduct and the materials sought bear on that involvement. . . " is a 
finding that the Committee is not constitutionally empowered to make. 
This determination can only be made by the operation of the judicial 
process, and is thus irrelevant to the Connmittee's functions. Quinn v. 
United States , 349 U.S. 155 (1955), Watkins v. United States, 3 54 U. S. 
178 (1956). As stressed by our Brief on Appeal and at oral argument we 



1G93 



- 5 - 

submit that v/he re a compelling need for access to the tapes to determine 
guilt or innocence was shown, the President has in fact turned them over 
to the proper forums, the Special Prosecutor and the House Judiciary 
Cominittee. 

Counsel for the Appellee are unaware that the Committee had 
determined that such a prima facie case had been established. If, in 
fact, the Committee had not made such a deterniination, then the state- 
ment made by the Committee's counsel is not only gratuitous but it is 
also irresponsible. The fact of the matter is that no such prima facie 
case has ever been made. As has been pointed out, the Committee is 
simply not equipped or constitutionally authorized to adjudicate guilt 
or innocence, nor does it purport to do so. The Committee's constitu- 
tional function is to legislate and not to adjudicate crinninal responsibility. 
We submit that the Supreme Court's prescription in Kilbourn v. Thompson , 
103 U.S. 168 (1880), is not only instructive but controlling: 

[W]e are of the opinion that the [Committee] 
not only exceeded the limit of its own authority 
but assumed a power which could only be 
properly exercised by another branch of the 
government, because it was in its nature 
clearly judicial. 103 U.S. at 192. 



34-966 O - 74 - pi. 2-31 



1694 



Like many unsound arguments the Committee's assertion 
proves too much. For, if in fact, a prinna facie case had been made 
out, it would, of course, constitute an adequate basis for curative 
legislation and the Committee's alleged con-ipelling need would not 
exist. Thus the argument that the Committee nnay overconne the 
presumption by a showing of a prima facie case of criminality on 
the part of the President is not only an illogical argument, but it 
is one that does a great disservice to the Committee. 

This Court in Nixon v. Sirica has noted: "[t]hat the President's 

special interests may warrant a careful judicial screening of sub- 

poenaes. . . " 487 F. 2d at 710. If this "judicial screening" is to be 

meaningful, it must occur before a court engages in the balancing 

process. For as this Court observed in quoting approvingly from Chief 

Justice Marshall in United States v. Burr , 25 Fed. Cas. 187 (Case No. 

14,694) (1807): 

The president, although subject to the general 
rules which apply to others, may have sufficient 
motives for declining to produce a particular 
paper, and those motives may be such as to 
restrain the court from enforcing its production, 
***I can readily conceive that the president 
might receive a letter which it would be improper 
to exhibit in public***. The occasion for demanding 
it ought, in such a case, to be very strong, and to 
be fully shown to the court before its production 
could be insisted on. *** 487 F. 2d at 710 (emphasis 
added) (onnissions in original). 



1695 



Other cases also clearly demonstrate that in order for the 

court to balance, the party seeking disclosure must make a threshold 

showing of compelling need or "uniquely powerful" need. In United 

State s V. Reynolds , 345 U.S. 1 (1953), a case relied upon by this 

Court in Nixon v. Sirica, the Supreme Court noted: 

In each case, the showing of necessity which is 
made will determine how far the court should 
probe in satisfying itself that the occasion for 
invoking the privilege is appropriate. Where 
there is a strong showing of necessity, the 
claim of privilege should not be lightly accepted, 
but even the most compelling necessity cannot 
overcome the claim of privilege if the court is 
ultimately satisfied that military secrets are 
at stake. 345 U.S. at 110. 

At another point in Reynolds the Supreme Court stated: 

There are differences in phraseology, but in 
substance it is agreed that the court must be 
satisfied from all the evidence and circumstances, 
and "from the implications of the question, in the 
setting in which it is asked, that a responsive 
answer to the question or an explanation of why 
it cannot be answered might be dangerous because 
injurious disclosure would result. " Hoffnnan v. 
United States , 341 U.S. 479, 487, 487, 95 L ed 
1118, 1123. 1125, 71 S Ct 814 (1951). If the 
court is so satisfied, the claim of the privilege 
will be accepted without requiring further disclosure. 
345 U.S. at 9-10 (emphasis added). 



1696 



- 8 



[W]e will not go so far as to say that the court 
may automatically require a complete disclosure 
to the judge before the claim of privilege will be 
accepted in any case. Id. 

Clearly the Court in Reynolds was admonishing lower courts to 
avoid considering the merits of a claim of privilege (i.e. balancing) 
until a threshold showing of need was convincingly demonstrated. 
The very fact that, in Reynolds , the Supreme Court would not "automatically 
require a connplete disclosure to the judge" proves that a threshold need 
must be shown before the balancing test is even applicable. 

Another case that illustrates this point is Committee for Nuclear 

Responsibility , Inc . v. Seaborg, 149 U.S. App. D. C. 385, 463 F. 2d 

788 (1971). There this Court noted: 

Of course, the party seeking discovery must 
nnake a preliminary showing of necessity to 
warrant even in camera disclosure, . . . 149 
U.S. App. D. C. at 389, 463 F. 2d at 792 
(footnote omitted). 

Lastly, even the Committee in the court below recognized that 

a threshold showing of need was necessary to invoke the District Court's 

balancing; 

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. Reply to Defendant's 
Response to Plaintiffs' Memorandum on 
Remand at p. 4. 



1697 



- 9 - 

In any event, whether "compelling need" is a threshold 
requirement for a court to engage in the balancing process or is a 
part of that process, the Court below correctly found that the Committee 
failed to make a connpelling showing of need. 

At p. 3 of its Supplemental Memorandum, the Committee 
asserts that the five tapes are no longer "presumptively privileged" 
because they have been heard by the grand jury and turned over to the 
House Judiciary Committee. This argument misconceives the nature 
of the privilege that extends to the confidential communications of the 
President. This Court noted that the presumption of privilege could 
be overcome by the grand jury only "in the face of the uniquely power- 
ful showing of the Special Prosecutor in this case, " 487 F, 2d at 717, 
and that "[t]he strength and particularity of this showing were made 
possible by a unique intermeshing of events unlikely soon, if ever, 
to recur. " 487 F. 2d at 705. In addition, this Court in Nixon v. 
Sirica used the terms "critical" 487 F. 2d at 706, and "peculiarly 
necessary" 487 F. 2d at 717, to describe the grand jury's need for 
the subpoenaed tapes. No such descriptions can be used to describe 
the Committee's needs in this case. 

Thus, the Committee's position is not analogous to that of the 
grand jury or the House Judiciary Conrunittee for it has failed to show 



1698 



- 10 - 

it has a compelling need or that it is functioning as a quasi-judicial 

forum with a constitutional responsibility to adjudicate questions of 

guilt or innocence. 

While it is true that this Court in Nixon v. Sirica held that the 

presumption of privilege as to the five tapes may be overcome by a 

unique and compelling showing made by a grand jury and also that under 

a traditional waiver doctrine, the President can elect to waive the privilege 

with respect to the tapes, it does not follow that the privilege is universally 

removed as to anyone requesting access. As a practical matter, disclosure 

to a grand jury with its traditional secrecy and to the House Judiciary 

Committee which has established guidelines for maintaining confidentiality, 

and has yet to breach those guidelines, is fundamentally and substantially 

different from disclosure to the public at large. In this regard, this 

Court stated: 

We acknowledge that wholesale public access 
to Executive deliberations and documents 
would cripple the Executive as a co-equal 
branch. 487 F. 2d at 715. 

It would be anomalous indeed if surrender of the tapes to the grand 
jury because of its unique and compelling need and voluntary disclosure 



1699 



- 11 - 

of them to the House Judiciary Committee, with its important 
constitutional role, werenc^vto make them, as the Committee contends, 
fair game for the whole world. 

It should also be noted that the Committee asserts at p. 3 of 
its Supplemental Memorandum that "[t]he President has thus lost 
control of these tapes. " The existence of this lawsuit and the appeal 
vigorously pursued by the Committee belie this assertion. Yet, if it 
were true, why does the Committee not seek to obtain access from those 
who, consistent with the Committee's assertion, would apparently have 
control of the tapes, the Special Prosecutor or the House Judiciary 
Committee. 

We submit that an overriding purpose of this Court's decision 
in Nixon v. Sirica was to insure the proper functioning of the criminal 
justice system. Is it not paradoxical that the Committee now attempts 
to place itself within the unique and narrow confines of that holding, by 
incorrectly using that decision and inviting this Court to frustrate the 
fair administration of justice? In this regard it should be noted that 
the Committee has never addressed the Supreme Court's holdings in 
Sheppard v. Maxwell, 384 U.S. 333 (1966), and Estes v. Texas, 381 
U.S. 532 (1965), and has completely ignored the public interest in 
preserving a defendant's constitutionally guaranteed right to a trial 



1700 



- 12 - 

free from the probability of prejudicial pretrial publicity, and the 
President's responsibility to protect that right pursuant to the Constitution's 
Article U mandate "to take care that the laws be faithfully executed, " 
Committee's failure to come to grips with the holdings in Sheppard and 
Estes is not surprising since its position is fundamentally inconsistent 
with and contrary to the teachings of the Supreme Court in those cases. 



Of Counsel 



JOHN J. CHESTER 




JAMES D. ST. CLAIR 

MICHAEL A. STERLACCI 

JEROME J, MURPHY 

LOREN A. SMITH 

CHARLES ALAN WRIGHT 
2500 Red River Street 
Austin, Texas 78705 

Attorneys for the President 

The White House 
Washington, D. C. 20500 
Telephone Number: 456-1414 



1701 



ilnitj^tt ^tai^0 Cnttrt of ^pp^ala 



FOR THE DISTRICT OF COLUMBIA CIRCUIT 



■ No. 74-1258 

Senate Select Committee on Presidential 
campaign Activities, suing in its own 
name and in the name of the United 
States, et al. , 

Appellants 



Richard M. Nixon, individually and 
as President of the United States 



September Term, 19 73 

civil 1593-73 



Uhi!e3 States Court of Appeals 

for the District of Columbia ClrcuH f 



HLED 



At^K '1 5 iy^4 



HUGH E. KONE 

CLERK 



Before: Bazelon, Chief Judge; Wright, McGowan, Leventhal, 
Robinson, MacKinnon and wilkey, Circuit Judges. 

ORDER 

On consideration of appellants' motion for leave to file 
a supplemental memorandum and of appellee's response thereto, 
it is 

ORDERED by the Court en^ banc that the motion is granted 
and the clerk is directed to file the lodged supplemental 
memorandum of appellants. 

Per Curiam 



'^y^ ^ tL:^ 



HUGH E. KLINE 
Clerk 



1702 



'ilitit^e^ M>tBit0 it^ntt ni Pippiml^ 



FOR THE DCiTRICT OF COLUMBIA CIRCUIT 



No. 74-1258 

Senate Select Conmittee on Presidential 
campaign Activities, suing in its ovm 
name and in the name of the United 
States, et al.. 

Appellants 

V. 

Richard M. Nixon, individually and 
as President of the United States 



September Term, 19 73 

civil Action 1593-73 



United States Court of Appeals: 

iof i:-3 Oictrirt cf Cciii.ntia Cirouil 

urn ■•■^''2 1974 
HUGH E. KUNE 

CLKRK , 



Before: Bazelon, Chief Judgs; Wright, McGowan, Leventhal, Robinson, 
MacKinnon and Wilke/, Circuit Judges 

C R D E R 

The court takes judicicl notice of the President's address 
to the nation of April 30th last and the subsequent release to 
the puDlic of transcripts, \'ith partial deletions, of each of the 
conversations recorded in the tapes that the Senate Select 
Committee seeks in the subpcena before us in this case. 

It appears to the Cour.: that the factual posture of this 
case is now as follows: 



1. The originals of four of the five tapes subject to the 
Committee's subpoena — thoi e of September 15, 1972, March 13, 
1973, and both tapes of March 21, 1973 — have been delivered 

by the President to the District Court for the District of Columbia, 
pursuant to the District Court's order, see In re Grand Jury 
Subpoena puces Tecum to Nixon, 360 F. Supp. 1 (1973) , and are 
now in that court's possession. 

2. A copy of the fifth of the five tapes has been voluntarily 
transmitted by the President to the Watergate Special prosecutor. 
See Reply Brief of the Senate Select Committee, et al. , at 2-3. 



1703 



llmf^li ^Utiles ^nntt nt Apptul^ 



FOR THE DISTRICT OF COLUMBIA CIRCUIT 



No. 74-1258 -2- September Term, 19 73 

civil Action 1593-73 



3. This being so, the Committee acknowledged at oral argument 
before this Court that, at least with respect to four of the 

five tapes at issue, the Committee would receive only copies 
rather than originals, if its subpoena was enforced in full. 

4. The President has voluntarily submitted copies of each 
of the five tapes at issue here to the House Committee on the 
Judiciary. See Reply Brief at 3. 

5. The Select Committee now has available to it the 
transcripts, of the five taped conversations, that th'j President 
has made public. 

In light of the doctrines of Nixon v. Sirica and of the 
factual posture of this case described above, the Court asks 
the Select Committee to file a supplemental memorandum advising 
the Court of the current sense of the Select Committee as to whether 
it has a present sense of need for the materials subpoenaed. If 
such present sense of need is asserted, the memorandum should 
set forth in what specific respects the transcripts, and the 
materials that can be obtained from the House Judiciary committee, 
are deficient in failing to meet the Select committe'''s current 
need. 

Per Curiam 



1704 



THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 



RECEIVED 

MAY 6 1974 J 

CLERK OF THE UNITED "^ 
STATES COURT OF APPEALS 



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 L. 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. 74-l25f 



APPELLANTS' SUPPLEMENTAL MEMORANDUM 

IN RESPONSE 

TO THIS COURT'S ORDER OF MAY 2, 1974 

This Court has asked appellants to advise it "of the current 
sense of the Select Committee as to whether it has a present need 
for the materials subpoenaed". The Court also requested appellants 
--if they assert a sense of need- -to "set forth in what specific 



1705 

-2- 
respccts the transcripts, and the materials that caa be obtained 
from tliC House Judiciary Coinrnittee, are deficient in failing 
to meet the Select Committee's c^irrent need. " 

The Committee's answer to the inquiry whether it "has 
a present sense oi need for the materials subpoenaed'' is 
unequivocally and emphatically in the affirmative. 

The transcripts released to the public constitute one of 
the most extraordinary documents of our time. Even the 
incomplete, edited and unauthenticated versions of the five 
conversations involved in this lawsuit now in the public domain 
fully vindicate the Committee's long-voiced claim that it should 
obtain these tapes so that it could fulfill its Constitutional duty 
to inform the public of the extent of corruption in the executive 
branch. 

The Committee is now faced with the task of weaving the 
information revealed by the transcripts into the fabric of the 
total Watergate story so that, in its final report, it can inform 
the public of its conclusions as to Watergate. It also must 
evaluate the new information received to determine its bearing 
on legislative recomniendations the Committee may make. 



1706 



It is absoluteiy essential that the Co.-nmittee, in order to 
meet these Constitutional i-esponsibilities, be provided with a 
complete and accurate account of these conversations. This 
can be accomplished only by the provision of the actual tapes 
or verified copies thereof to the Committee. The Committee 
should not have to perform its legislative missions on the basis 
of transcripts that are suspect. 

The public facts denaonstrate that the edited versions 
provided the public are neither complete nor accurate. Thus, 
at the end of the edited version of the September 15 conversation 
the following entry appears: "NOTE (Further conversation 
follo\ving unrelated to Watergate)". See Submission of Recorded 
Presidential Conversations to the Committee of the House of 
Representatives by President Richard Nixon April 30, 1974 
(hereinafter "Subnnission") at p. 75. We know, however, both 
from the testimony of John Dean (3 Hearings 958) and from the 
reconstruction of t his conversation supplied the Committee by 
J. Fred Buzhardt, Special Couns el to the President (JA 80) 
that use oi the IRS to investigate Administration enemies such 
as Lawrence O'Brien was discussed. Mr. Dean also testified 
(3 Hearings 958-9) that the replacement, after the election, of 
persons in the agencies not on the Adnninistration's "team" was 



1707 

-4- 
discussed. The Select Connniittee has spent considerable time 
and effort investigating the politicization of the executive branch 
and the abuse of federal resources. Its report will include 
findings in this regard and nnay recommend significant legislation 
to remedy the abuses found. Clearly, the deleted portions of 
the September 15 conversation are highly relevant to its needs. 

There also appear to be significant deletions respecting 
the February 28 conversation. At p. 98 of the Submission, the 
following phrase appears: "(Material not related to Presidential 
action deleted)". And, on p. 101, the following sentence appears 
twice: "(Material unrelated to Presidential action deleted)". 
The Committee does not know what material was deleted, but 
does note that the entire tape recording of this conversation was 
given the Special Prosecutor and the House Judiciary Committee 
by the President without any claim that parts of the conversation 
^vere not related to their inquiries. 

Moreover, the transcripts made public, in addition to 
numerous deletion of "expletives", are rife with assertions that 
certain statements of the President and others are "inaudible" 
or "unintelligible". In regard to the five conversations here 
involved, there are 99 assertions in the Submission that portions 
of statements made by the President and others cannot be 



1708 

-5- 

deciphered. Fifty-nine of these assertions, which often concern 
omissions of what appear to be highly significant connnf^ents, relate 
to statennents made by the President, twenty-nine to those made by 
Dean.— But John Doar, Counsel to the House Judiciary Committee 
who has heard the tape recordings of a number of presidential tapes, 
including the five at issue here, has publicly stated that purported 
"inaudible" portions of the tapes can be heard and understood by 
the use of more sophisticated equipment than apparently employed 



*/ 

— The crucial nature of certain "inaudible" onnissions is illustrated 

by a passage in the Submission fronn the March 13 conversation at 
p. 123-4: 

D ... what Bill Sullivan's desire in life is, is to 
set up a domestic national security intelligence 
systenn, a White House program. He says we 
are deficient. He says we have never been 
efficient, because Hoover lost his guts several 
years ago. If you recall he and Tom Huston 
worked on it. Tom Huston had your instructions 
to go out and do it and the whole thing just crumbled. 

P (inaudible) 

The Select Committee devoted considerable effort to an inves- 
tigation of the Huston plan and the President's role in it, 
which has never been precisely determined. Its report nnay 
contain findings in this regard and legislative reconnmenda- 
tions to prevent future conduct of this nature. An accurate 
determination of the President's exact response to Dean's 
observations could be quite significant to the Committee regard- 
ing its legislative missions. Other examples of apparently sig- 
nificant omissions of this type are found in the Subnnission at 
pp. 155, 182 (first "unintelligible"), 187, 213, 239. 244, 261. 



1709 

-6- 

• / the White House. See Washington Post, Thursday, May 2, 
- ,'74, p. A 14, col. 3-4. Mr. Doar is also quoted as saying the 
^vTiite House transcriptions "are not accurate". 

It is appropriate, at this juncture, to rennove a possible 
misconception this Court may have. The Court's order may be 
read as based on an assumption that certain materials "can be 
obtained /by the Select Committee/ from the House Judiciary 
Committee. " This assumption, if it exists, is inaccurate. While 
'.he Select Committee has made all the materials in its files 
available to the House Judiciary Committee, the arrangement 
has not been reciprocal. The House Connmittee has not supplied 
"he Select Connmittee with factual information to assist the latter 
_:i its investigations and the attached letter from John Doar 
ndicates that the House Committee has determined that it cannot 
velease the actual tapes of the five conversations to the Select 
Committee even though partial transcripts of these conversations 
are now available. 

Finally, we would point out the obvious--that transcriptions 
.1 tape recordings are never adequate substitutes for actual 
ecordings of conversations. Recordings allow one to hear voice 
one and inflection. Voice tone and inflection are crucial in 
^ternnining the exact thrust and imiport of a conversation 



34-966 O - 74 - pt. 2-32 



1710 

-7- 
especially where the actual words are ambiguous. The President 
himself has stressed the ambiguity of the transcripts and 
certainly some portions are. Thus, only the actual recordings 
\vill allow the Committee fully to understand what was said and 
to meet its Constitutional responsibilities. 

We can see no real reason why the President should object 
to release of the tapes to the Committee at this stage. The 
Comnaittee will still agree to a protective order that will prevent 
the public playing of the tapes and thus the airing of embarrassing 
expletives, adjectives, and characterizations will be avoided. 
Moreover, after disclosure of these transcripts to the public, 
the President can hardly claim that any interest in preserving 
fair trials should prevent release of the actual tapes to the 
Committee. Nor can he legitimately claim that any interest in 
preserving the "confidentiality of presidential conversations that 
take place in the President's performance of his official duties. . . 
to protect the effectiveness of the executive decision-making 
proces3"--the only interest the doctrine of executive privilege is 
intended to protect (see Nixon v. Sirica U. S. App. D. C. 

, 487 F. 2d 700, 717 (1973)--is a reason to deny the 

actual tapes to the Committee. Clearly, the interest in presidential 
confidantiaiitv that led to the establishment of the Nixon v. Sirica 



1711 



balancing test, which gives a President, upon a lesitinT.ate asser- 
tion of privilege, a measure of protection against an otherv/ise 
valid subpoena, is no longer relevant to this case. Because no 
valid claim of executive privilege or the need to protect crinainal 
trials can be asserted, and because the Select Conamittee has a 
demonstrable and compelling need to receive full and accurate 
accounts of the conversation at issue, this Court should declare 
that appellants' subpoena-- which was for tape recordings, not 
transcripts- -is valid and thus allow appellants to complete their 
legislative responsibilities on the basis of complete and accurate 
information. 




Sherman Cohn 
Eugene Gressnnan 
Jerome A. Barron 
Washington, D. C. 
of counsel 

Arthur S. Miller 
Chief Consultant to 

the Select Committee 
of counsel 



Chief Counsel 
Fred D. Thompson 

Minority Counsel 
Rufus Edmisten 

Deputy Counsel 
James Hamilton 

Assistant Chief Counsel 
Richard Stewart 

Special Counsel 
Ronald D. Rotunda 

Assistant Counsel 
Donald S. Burris 

Assistant Counsel 
W. Dennis Summers 

Assistant Counsel 

United States Senate 
Washington, D. C. 20510 
Telephone Number 225-0531 
Attorneys for Appellants 



1712 



NINETY-THIRD CONGRESS 

Krai w. RooiNo, jr. (nj.) chairman 

HAROLD D.>£b»40HUE, MASS. OWARO HUTCHINSON. MICH. 

JACK BROOKS, TIX- 

ROBERT W. KASTENMEICR. Wl 



I L. HUNOATC, MO. 



JEROME R. WALOIC CAUF. 



CHARLES B. RANGEU N.V. 
BARBARA JORDAN, TEX. 
RAY THORNTON, ARK. 
ELIZABCTH H01.TZMAN. H.V. 

EDWAIIO MEZVINSKY. IOWA 



dongrijgs of tilt JBnttBh ^Mt5 

Qlmmtttitcc on ifjc 3I"Mnarg 

^mxse of ^preseniatibes 
■taJasIjutahm, ^M. 20515 



ASSOCIATC OENERAl. COUNSEL^ 



DCLBERT U LATTA. OHIO 



CONST ANTINE J. CEKAS 



May 6, 1974 



Mr. Samuel Dash 
Chief Counsel 
Select Committee on 

Presidential Campaign Activities 
U.S. Senate 
Washington, D. C. 20510 

Dear Mr. Dash: 

This is in reply to your letter of May 2. The Judiciary 
Committee is conducting its impeachment inquiry under 
strict rules of confidentiality. A copy of these rules is 
enclosed. As you can see from these rules, there would 
be no way that I could release to you the materials. 

I know of no way the materials could be obtained from the 
House Judiciary Committee until the Judiciary Committee 
decides in the course of its own inquiry to make them 
public . 




JOHN DOAR 
Special Counsel 



Enc. 



1713 



^ o^ c^o^!^!f^ 1 HOUSE COMMITTEE PRINT 

Ssd Session ) 



PROCEDURES FOR HANDLING 
IMPEACHMENT INQUIRY MATERIAL 



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COMMITTEE ON THE JUDICIARY 
HOUSE OF REPRESENTATIVES 
„: NINETY-THIRD CONGRESS /v. 4. 
SECOND SESSION , •:- ■-. -. 




FEBRUAJIY 1974 



U.S. GOVERNMENT PRINTING OFFICE 
28-960 WASHINGTON : 1974 



1714 



COMMITTEE ON THE JUDICIARY 
PETER W. fiODINO, JB., New Jersey, Chairman 



i . , 

HAROLD D. DONOHDB, Massachusetts . 

JACK BROOKS, Texas 

ROBERT- W. KASTENMEIER, Wisconsin. 

DON EDWARDS, California 

WILLIAM L. HUNGATB, Missouri 

JOHN CONYERS, Jr., Michigan 

JOSHUA EILBERG, Pennsylvania 

JEROME R. WALDIE, California 

WALTER FLOWERS, Alabama 

,JAMES R. MANN, South CaroUna 

PAUL S. SARBANES, Maryland 

JOHN P. SEIBERLING, Ohio ,J l- ? ;; 

GEORGE E. DANIELSON, California 

ROBERT F. DRINAN, Massachusetts - 

CHARLES B. RANGEL, New York 

BARBARA JORDAN, Texas r-r - 

HAY THORNTON, Arkansas - - ' " " 

ELIZABETH HOLTZMAN, New York 

WAYNE OWENS, Utah " '- ' 

EDWARD MEZVINSKY, Iowa 

I Jeeomb M. Zeifman, General Counsel 

I Garneb J. Cline, Associate General Counsel 

'. Herbert Fdchs, Counsel 

' Heebeet E. Hoffman, Counsel 

William P. Shattdck, Counsel 

H. Christopher Nolde, Counsel 

Alan A. Parker, Counsel 

James F. Falco, Counsel 

Maurice A. Barboza, Counsel 

Franklin G. Polk, Counsel 

Thomas B. Moonet, Counsel 

Michael W. Blommer, Counsel 

Alexander B. Cook, Counsel 

Daniel L. Cohen, Counsel 



EDWARD HUTCHINSON, Michigan 
ROBERT McCLORY, lUinois 
HENRY P. SMITH III, New York 
CHARLES W. SANDMAN, Jr., New Jersey 
TOM RAILSBACK, Illinois 
CHARLES E. WIGGINS, California 
DAVID W. DENNIS, Indiana 
HAMILTON FISH, Jr., New York 
WILEY MAYNE, Iowa 
LAWRENCE J. HOGAN, Maryland 
M. CALDWELL BUTLER, Virginia 
WILLIAM S. COHEN, Maine ^. 
TRENT LOTT, Mississippi 
HAROLD V. FROEHLICH, Wisconsin 
CARLOS J. MOORHEAD, California 
JOSEPH J. MARAZITI, New Jersey 
DELBERT L. LATTA, Ohio 



(H) 



1715 



Foreword 

On Febmary 22, 1974, the full Committee on the Judiciary unani- 
mously adopted a set of procedures for handling material gathered 
in the course of its impeachment inquiry. 

I am pleased to make available by this document a copy of the 
adopted procedures.. : ^.-; . .; ....... v.. : 




(lU) 



Peter W. Roors^o,- Jr. 



1716 



Procedures for Handling Impeachment Inquiry 

Material. 

1. The cTiairman, the ranking minority member, the special counsel, 
and the counsel to the minority shall at all times have access to and 
be responsible for all papers and things received from any source by 
subpena or otherwise. Other members of the committee shall have 
access in accordance with the procedures hereafter set forth. 

2. At the commencement of any presentation at which testimony 
will be heard or papers and things considered, each committee mem- 
ber will be furnished with a list of all papers and things that have 
been obtained by the committee by subpena or otherwise. No member 
shall make the list or any part thereof public unless authorized by a 
majority vote of the committee, a quorum being present. 

3. The special counsel and the counsel to the minority, after discus- 
sion with the chairman and the ranking minority member, shall ini- 
tially recommend to the committee the testimony, papers, and things 
to be presented to the committee. The determination as to whether 
such testimonj", papers, and things shall be presented in open or execu- 
tive session shaU be made pursuant to the rules of the House. 

4. Before the committee is called upon to make any disposition with 
respect to the testimony or papers and things presented to it, the com- 
mittee members shall have a reasonable opportunity to examine all 
testimony, papers, and things that have been obtained by the inquiry 
staff. No member shall make any of that testimony or those papers or 
things public unless authorized by a majority vote of the committee, 
a quorum being present. 

5. All examination of papers and things other than in a presenta- 
tion shall be made in a secure area designated for that purpose. Copy- 
ing, duplicating, or removal is prohibited. 

6. Any committee member may bring additional testimony, papers, 
or things to the committee's attention. 

7. Only testimony, papers, or things that are included in the record 
will be reported to the House; all other testimony, papers, or things 
will be considered as executive session material. 

(1) 



1717 



'I Rules for the Impeachment Inquiry Staff ^ 

1. The staff of the impeachment inquiry shall not discuss with any- 
one outside the staff either the substance or procedure of their work 
or that of the committee. ' j "; r. - j : . >. ■ - t . '■ ■ . ■ 

^2. Staff offices on the second floor of the Congressional Annex shall 
operate under strict security precautions. One guard shall be on duty 
at all times by the elevator to control entry. AU persons entering the 
floor shall identify themselves. An additional guard sliall be posted at 
night for surveillance of the secure area where sensitive documents 
are tept.' - . : ■ j . . ^ 

- 3. Sensitive documents and other things shall be segregated in a 
secure storage area. They may be examined only at supervised reading 
facilities within the secure area. Copying or duplicating of such docu- 
ments and other things is prohibited. : ! : .: .: L 

- 4. 'Access to classified information supplied to the committee shall 
be limited by the special counsel and the counsel to tlie minority to 
those staff members with appropriate security clearances and a need 
to know- :: - : . -. . :; 

5. Testimony taken or papers and things received by the staff shall 
not be disclosed or made public by the staff unless authorized by a 
majority of the committee* ... 

6. Executive session transcripts and records shall be available to 
designated committee staff for inspection in person but may not be 
released or disclosed to any other person without the consent of a 
majority of the committee. 

(2) 

• : :■■: . -■ ; O . 



1718 
May 2, 1974 



Mr, John Doar 
Special Counsel 
Comtnlttee on the Judiciary 
House of Representatives 
Washington, D. C. 

Dear Mr, Doar: 

Today the Select Committee received an order from the Court of 
Appeals In our pending case before the Court relating to the 
Commlttee*8 subpoena, I am attaching a copy of this order to this 
letter. 

As you know the subpoena of the Committee Is for the^conversatlons 
In the Oval office between John Dean and the President on September 
15, 1972, February 28, March 13, and March 21, 1973. It Is our 
understanding that copies of these taped conversations have been 
provided to the House Judiciary Committee. 

In the Court's order there appears to be an assumption that materials 
In die possession of the House Judiciary Committee aan be obtained 
by our Select Committee from the House Judiciary Committee. In 
the case of our subpoena such materials could only be the tape 
recordings, ThU assumption Is important since the Court has asked 
the Select Committee to file a supplemental memorandum indicating 
what Is the Committee's "present sense of need for the materials 
subpoenaed," The Court further states in Its order that If the 
Conimlttee asserts that It still has need for the materials subpoenaed 
that Its supplemental memorandurn'sliould set forth "In what specific 
respects the transcripts, and the material that can be obtained from 
the Judiciary Committee are fitaflclent In falling to meet the Select 
Committee's current need, " 

In response to the Court's order, the Committee wishes to file a 
supplemental memorandum as quickly as possible. To properly ' 
file this supplemental memiorandum, we must Inquire of the House 
Judiciary Committee whether the five tape recordings which the 



1719 



Mr. John Doar 

Page 2 

May 2 , 1974 • 



Senate Select Committee subpoenaed from the President may be 
obtained from the House Judiciary Committee by the Select 
Committee, 

I would appreciate your replying to thia question aa quickly ae 

possible so that we can Immediately file our supplem^ental memorandum 

in the Court of Appeals, 

Sincerely, 



Samuel Dash 
Chief Counsel 



1720 



Slitft^Ji &tcii^0 (Bxmtt xA Jippij^la 



f OR THE DISTRICT OF COLUHIBIA CIRCUIT 



No. 74-1258 

senate Select Committee on Presidential 
Campaign Activities, suing in its own 
name and in the name of the United 
States, et al.. 

Appellants 

V. 

Richard M. Nixon, individually and 
as President of the United States 



September Term, 19 73 

civil Action 1593-73 



Mi^^ ^ji\^ Court of Appeals; 

is: Ihs DhhW c Gc!u.T;t!a CirciiTi 



FliEO 



\\: 



i2 1974 



HUGH E. KlINS 

CL-gRK.... 



Before: Bazelon, Chief Judge; Wright, McGowan, Leventhal, Robinson, 
MacKinnon and Wilkey, Circuit Judges 

- O R ^ E R 

The court takes judicial notice of the President's address 
to the nation of April 30th last and the subsequent release to 
the public of transcripts, with partial deletions, of each of the 
conversations recorded in the tapes that the Senate Select 
committee seeks in the subpcena before us in this case. 

It appears to the court that the factual posture of this 
case is now as follows: 



1. The originals of four of the five tapes subject to the 
committee's subpoena — those of September 15, 1972, March 13, 
1973, and both tapes of March 21, 1973 -- have been delivered 

by the President to the District Court for the District of Columbia, 
pursuant to the District Court's order, see in re Grand Jury 
Subpoena Duces Tecum to Nixon, 360 F. Supp. 1 (1973) , and are 
now in that Court's possession. 

2. A copy of the fifth of the five tapes has been voluntarily 
transmitted by the President to the Watergate Special Prosecutor. 
See Reply Brief of the Senate Select Committee, et al. , at 2-3. 



1721 



^l^rfl^a -^taiir^jS (EoniM 0:C ^pJJ^HtS 



FOR THE DISTRICT OF COLUMBIA CIRCUIT 



No. 74-1258 -2- September Term, 19 73 

civil Action 1593-73 



3. This being so, the committee acknowledged at oral argument 
before this Court that, at least with respect to four of the 

five, tapes at issue, the Committee would receive only copies 
rather than originals, if its subpoena was enforced in full. 

4. The President has voluntarily submitted copies of each 
of the five tapes at issue here to the House Committee on the 
Judiciary. See Reply Brief at 3. 

5. The Select Committee now has available to it the 
transcripts, of the five taped conversations, that the President 
has made public. 

In light of the doctrines of Nixon v. Sirica and of the 
factual posture of this case described above, the Court asks 
the Select committee to file a supplemental memorandum advising 
the court of the current sense of the Select Committee as to whether 
it has a present sen&e of need for the materials subpoenaed. If 
such present sense of need is asserted, the memorandum should 
set forth in what specific respects the transcripts, and the 
materials that can be obtained from the House Judiciary Committee, 
are deficient in failing to meet the Select Committed! 's current 
need. 

Per Curiam 



1722 



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 



RICHARD M. NIXON, individually and as 
President of the United States 



Appellee 



No. 74-125J 



MEMORANDUM OF APPELLEE IN RESPONSE 
TO APPELLANTS' MEMORANDUM OF MAY 6tH 



At page 3 of its Supplemental Memorandum in Response to this 

V ■ . 

Court's Order of May 2, 1974, the Committee states that "it is 
absolutely essential that the Committee, in order to meet [its] 
responsibilities, be provided with a complete and accurate account of 
these conversations. This can be accomplished only by the provision 
of the actual tapes or verified copies thereof to the Committee. " This 



\J Hereinafter referred to as "Memorandum in Response. " 



1723 



statement not only contradicts prior statements of some Committee 
members and its counsel but documents the Committee's improper 
insistence in attempting to perform law enforcement and guilt adjudi- 
co^ing functions, itself. Such proposed activity clearly exceeds its 
constitutional authority, and properly falls within the jurisdiction of 
the Special Prosecutor and the Committee on the Judiciary, United States 
House of Representatives. 

Nevertheless, the response to this statement is starkly simple: 
the Committee has been provided with a complete and accurate account 
of all Watergate-related portions of privileged Presidential conversations 
sought by its subpoena. Thus it can hardly be reasonably contended with 
any degree of sincerity that the Committee is being unduly frustrated in 
carrying out its informing function. This is especially highlighted by the 
fact that the transcripts supplement the information the Committee already 
has, consisting of approximately ten thousand pages of public testimony, 
and undovibtcdly many additional pages of non-public testimony taken in 
Executive Session. It must be renicmbered that much of this testimony 
was siipplicd by Presitiontial aides and advisors. And, of course, that 
testimony was available only becavjso the President waived privilege, both 
executive' and a ttor ncy - clit-nt , permitting his airics to testify. 

It is now heyonci (jiiestion th.it af.y afifiition.il tyi)o of information 
t)i.it tlio t.ipos could ]ir()\Ti(> rel.itrs only to e^ilt ar innocence- a nfl to the 

Z_l S<i- t').)tr..itf 1' , iin pp. J-i-^0, of A;iprnef's Brief in tlii.s Court. 



1724 



credibility of witnesses, if they could provide that. A most important 
point to be noted in this rcRard is that where the five tapes in question 
have been requested for proper governmental functions -- the judicial 
dc Jermination of criminal conduct or the removal of executive oificer,s 
via impeachment for grave crimes -- the President has submitted them 
to the appropriate forums, the Special Prosecutor and the House Judiciary 
Committee. 

However, the Committee insists upon performing law enforce- 
ment and guilt adjudicating functions, activity that clearly exceeds its 
constitutional authority and represents an unwarranted, unconstitutional 
usurping of fucKtions expressly assigned by our Constitution, excepting 
impeachment proceedings, to the Executive and the Judiciary. See 
Wntkins V. United States, 354 U.S. 178, 187 (1957); Quinn v. United 
States . 349 U. S. 15 5, 161 (1955); Kilhourn v. Thompson . 103 U. S. 168. 
192 (1880). Thus it is patently obvious that any legitimate need that the 
Conimittce sought to fulfill by the subpoena in question here has been 
completely satisfied. 

Counsel for the Appellee take the strongest possible exception 
to the tone and su'uytance of a gratuitous statement found in the C(jm- 
mittee's Mrniora ndunj in Rcsiionse. At p.iije 3 of tlie Mcniora nduiii in 
Response, Coun'.«-l for tin- Committee .illrge fh.it tl)e "transcripts. . . 
an- sni:>ect. This change cannot be svi:);)o rt »-d hv tlie personal knowledge 



1725 



-4- 

of the Committee as evidenced by the very existence of this appeal. The 
argument must therefore be predicated on considerations of convenience 
and expediency. Minor inaccuracies indeed may exist but there is no 
sviggestion that the transcripts are substan'ively inaccur:^.*f>. .We can 
only assume by this charge that the Committee's counsel believe that 
the transcripts of the tapes sought herein are, in some way, not an 
accurate description of the taped conversations. The President has 
provided the Special Prosecutor and the whole House Judiciary Com- 
mittee with full access to the five taped conversations sought by this 
Committee and no such charge has been made by theni. It defies credulity 
for the Committee's counsel to suggest that the President would not provide 
the best possible transcription and at the same time furnish ii;e House 
Judiciary Committee and the Special Prosecutor the same actual tapes 
from which the transcripts in question were made. 

On April 29, 1974, the President, in a speech to the Nation, 
emphasized that his unprecedented disclosure of over 1,200 pages of 
pri\'i]cqcd, private conversations represented the whole Watergate story. 
The President stated: 



2/ It is reported in tlic New York Tiinrs . May 9, 1974, p. 32, col. 3 
that Mr. Jo)in Doar, S;)c< i.il Counsel to tlie House Judiciary Committee, 
"r rnph.i si /.ed th.it he w .\ s not sayinc t)iero were '^ross inaccuracies or 
distortions' in tlio i'res idet-.t ' s transcripts." It should be retTiombered 
t}iit l!ie C onimittoe's only source for its assertion ct>ncernini; tlie allei;e<i 
in.ir c\; r.i I V of t!ie t r.i ns c ri-pt s is a press report of a st.itrinrnt allev;edly 
made hy Mr. Doar. 



34-966 O - 74 - pt. 2-33 



1726 



-5- 



They include all the relevant portions of all of the 
subpoenaed conversations that were recorded -- that 
is, all portions that relate to the question of what I 
knew about \Vatcrt;ate or the cover-up, and what 1 did 
about it. Tlicy also include transcripts of other con- 
versations which were not subpoenaed, but which have 
a significant b. aring on the question of Presidential 
actions with regard to Watergate. 



As far as what the President personally knew and 
did with regard to Watergate and the cover-up is 
concerned, these materials -- together with those 
already made available -- will tell it all. 

Thus it should be clear that the Select Committee has been provided by the 

President ■with all Watergate-related material concerning the President's 

conversations . 

At page 3 of its Memorandum in Response, the Committee 

attempts to bolster its specious argument that "the edited versions 

pro\'-i'l»'(l tlic public arc ncitlicr complete nor accurate," by stating, 

"at tlic end of the c-rlited version of the September 15 conversation the 

foUouini; entry appears: 'Note (Further conversation following unrelated 

to WaterL;atc). '" The Coniniittce then continues to argue that it needs tliat 

subs cqncnt portion of tlu- convi- r nation to complete its investigation. What 

the C;iin',!inlt <•<• fails to rrali/.r is that the District Court in a previous case 

spri- if ic I lly '!i-.\l! v.i;!i the S<:)1 <■ inix-r I 'i , l'?72, tape in question. Concern- 

ini' tii-.s \-rry •- ^'.w t.ipi-d lonvr r sa tion. t l>o District Court hold: 

1 !,.■ . 1 .i!-.-. of pri.il. -.•<•. \v!;u h related to the- latt.-r 
p>rt-. >:\ "i t)iv rciir'ir'l loiivi- r sation, is sustained 



1727 



6- 



in full for the reason that the privileged portion con- 
sists of discussions with and advice from the President's 
senior assistant and his counsel on matters relating to 
the President's conduct of his official duties, and con- 
tains nothing related to Watergate or anything connected 
therewith. In Re Grand Jury Subpoena Dvices Tecum 
Issued to Richard M. Nixon , or any Subordinate Officer , 
Official or Employee with Custody or Control of Certain 
Documents or Objects , Misc. No. 47-73, Order (D.D.C. 
Dec. 19, 1973) at p, 3. 

There the District Court actually scrutinized in camera the tape that 

the Committee now only speculates it might need. The District Court 

clearly found the material unrelated to Watergate matters. In light of 

this finding, the Committee's argument on completeness and accuracy 

is contradicted by the facts and thus totally lacking in merit. 

In any event, the Committee has no legitimate legislative need 

for the actual tapes. In order to prohibit an act it is not necessary to 

know whether an individual has, in fact, done the act. Rather we ask 

whether the action in question is of a kind that should be prohibited. In 

applying this principle, the Committee's legislative task is simple: to 

draft general standards, not to find specific instances of guilt. This 

last function the Constitution has delegated to the Judicial Branch. As 

emphasized by Chief Justice Warren, speaking for the majority, in 

Quinn V. United States , 349 U. S. 155, 161 (1955): 

Similarly, the power to investigate must not be confused 
with any of the powers of law enforcement; those powers 
are assigned under our Constitution to the Executive and 
the Judiciary. 



1728 



The Committee's real concern and sole responsibility is, in the words 

of Senate Resolution 60 of the 93rd Congress, which established the 

Conimittee (J. A. 12): 

[t]o determine whether in its judgment a»v;t»rx:iirTmce 
which may be revealed by the investigation and study 
indicate the necessity or desirability of enactment of 
new congressional legislation to safeguard the electoral 
process by which the President of the United States is 
chosen. 

At page 4 of its Memorandum in Response the Committee asserts 
"that the entire tape recording of [the February 28] conversation was 
given the Special Prosecutor and the House Judiciary Committee by the 
President without any claim that parts of the conversation were not related 
to their inquiries. " However, the Committee's position is not analogous to 
that of the grand jury or the House Judiciary Committee for it has failed to 
show it has a compelling need or that it is functioning as a quasi-judicial 
forum with a constitutional responsibility to adjudicate questions of guilt 
or innocence. 

Asa practical matter, disclosure to the Special Prosecutor for 
grand jury use, with its traditional secrecy, and to the House Judiciary 
Committee, which has established guidelines for maintaining confidentiality, 
and has yet to breach those guidelines, is fundamentally and substantially 



1729 



1/ 

different from disclosure to the Select Committee or the public at 

large. In this regard, this Court in Nixon v. Sirica , ^U. S. App. 

D. C. , 487 F. 2d 700 (1973), stated: 

We acknowledge that whol€sakc:^UJi*'^-^«r. •.=-•_'/ 
Executive deliberations and documents ■would 
cripple the Executive as a co-equal branch. 
487 F. 2d at 715. 

It would be anomalous indeed if surrender of the actual tapes to the grand 

jury, because of its unique and compelling need, and voluntary disclosure 

of them to the House Judiciary Committee, with its important constitutional 

role, were now to make them, as the Committee contends, fair game for 

the whole world. 

It is also interesting to note that once again the Committee, in 

seeking "actual tapes or verified copies, " (see p. 3 of Memorandum in 



4/ In this regard this Court may take judicial notice of the most recent 
leak concerning a draft of the final report prepared by the staff of the 
Committee. See e. g. , The Washington Post , May 9, 1974, P. AlO, CoLl, 
In this particular article it was reported: 

A memo from chief committee counsel Samuel Dash to 
the committee members emphasizes that "this rough 
draft is part of the final report and is a staff draft -- 
not the committee report until the committee approves it. " 

Dash also cmpliasized in his memo the need for "very 
carcfvil security of the draft submitted to you" because 
of the embarrassment to the committee if the draft report 
leaked. 



1730 



-9- 

Response) is now seeking relief which it not only did not seek in District 

Court, but specifically disclaimed to this Court in oral argument by 

asserting tlie Committee's willingness to accept copies. It now appears 

that "verification" has become the essence of the Committee's need, 

rather than the substance of the material itself, which was zealously 

sought in all earlier stages of this litigation. If, in fact, this is the 

Committee's new position then the subpoena should be directed to the 

party with the actual tapes. 

At page 2 of its Memorandum in Response the Committee contends 

that it must "obtain these tapes so that it could fulfill its Constitutional 

duty to inform Uie public of the extent of corruption in the executive branch. " 

What the Committee continually fails to perceive is that its informing 

function must be incident to a valid legislative purpose. In this regard 

the Supreme Court in Watkins v. United States , 354 U.S. 178 (1957), 

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. 

And, likewise, t}ie Committee cannot legitimatize an improper purpose 

no inntlcr how many times it utters spurious incantations about an un- 

qualifiirl informing fvmction. As was stated by the Supreme Court in 



1731 



-10- 

Watkins v. United States . 354 U. S. 178(1956), "We have no doubt that 
there is no Congressional power to expose for the sake of exposure. " 
354 U. S. at 200. If exposure "for the sake of exposure" were constitution- 
ally permissible, then the mere assertioj of a Congressional caprice to 
obtain any infori..ation would nullify any claims of individual privacy, 
executive privilege or judicial confidentiality, thereby emasculating the 
Fourth Amendment and the Separation of Powers. Clearly, this position 
is untenable. 

With the very hard and historic decision made by the President to 
bare the innermost workings of the Executive's decision making process 
to the American public by publishing the transcripts, the Conxmittee has 
everything it could possibly need from the White House to fulfill its in- 
forming function by recommending curative legislation. All the factual 
material concerning the President's discussions with his aides, of the 
events commonly called Watergate, are presented in the published tran- 
scripts. All the facts needed to draft any possible type of corrective 
campaign legislation are now available to the Committee. The tapes 
themselves will add notliing to the Committee's ability to draft any such 
legislation. This was recognized by the District Court Judge wlicn he 
found "[ijhc five tapes at issue arc sought principally for the light that 
they iiii>;lit shed on the President's ov,n alleged involvement in the Watergate 



1732 



-11- 

coverup, " (J. A. 168). Again we must remind the Committee that since 

its legislative function is not to adjudicate guilt or innocence, it is no 

longer open to serious question that the actual tapes are not needed for 

thv. Committee to perform its legislative function. Moreover, the 

Committee cannot pervert its legitimate power of inquiry in aid of 

legislation into a tenuous need for the tapes by some bizarre convolution 

of logic. 

Also, it should be emphasized that the District Court correctly 

distinguished the functions of this Committee, that of the House Judiciary 

Committee, and the Special Prosecutor when it stated: 

[Cjongressional demands, if they be forthcoming, 
for tapes in the furtherance of the more juridical 
constitutional process of impeachment would 
present wholly different considerations. 

* * * 

"[A]llegations involving the President" are among 
those specifically assigned to the Special Prose- 
cutor for investigation and, if appropriate, for 
prosecution. (J. A. 168). 

That the Committee's purported need for the tapes to fulfill its 
informing function is more imagined and factitious than real and com- 
pelling is further evidenced by the Idct that the proper forums for 
determining tlic credibility of witnesses and ultimately tlie guilt or 
innocrncc of individuals have the subpoenaed tapes, and will undoubtedly 



1733 



-12- 

use them in carrying out their respective tasks. Thus, even if there 

were any substance to the Committoe's claim in this regard, it should 

be recognized that the public will be informed to an even greater extent 

during tlie course of trials prosecvitcd by the Special Prosecutor ^^ud the 

impeachment proceeding conducted by tlie House Judiciary Committee. 

The ComiTiittee recognized this fact when in its Motion for Expedited 

Briefing and Argument Schedule and Suggestion For Hearing En Banc 

filed in this Court on October 23, 1973, it stated the absence of a 

Special Prosecutor made: 

[AJII the more urgent a ruling in this case that 
■would assist in exposing all aspects of the 
Watergate affair to public view. . . (pp. 5-6). 

Because the Committee premised much of its informing function on the 

absence of a Special Prosecutor, it necessarily follows that this is now 

no longer a valid basis for the Committee's asserted need. Tliis is 

especially trvio in light of the fact that the House Judiciary Committee, 

which also has the subpoenaed tapes, is now actively functioning. 

Since there has been no legitimate legislative need shown by 

the Cominittee for the matcri.il, whicli tliis Court has affirmed to be 

"presumptively privileged, " Ni xon v. Sirira, -187 F. 2d 700, 717 (1973), 

tlic Prcsiflent's claim of ]TriviU'L;c sliould not even be reviewed by the 

Court. For as tins Co\irt n-rontly s.iid iti Con^inil 1 cc for X\irlc.nr 

Respon..il)ility . Inc. v. Sc. iln.r); . 11' U.S. Aji]). D. C. 385, li, i F. id 

788 (1971): 



1734 



13- 



Of course, the party seeking discovery nivist make 
a preliminary showinf; of necessity to warrant even 
in camc-ra (iisclosiire, . . . 149 U.S. Ajjp. D. C. at 
389, 463 F. 2d at 792. 

This is fully in accord with the holding of the United States Supreme 

Court in United States v. Reynolds , 345 U; S. 1 (1953), where the 

Court stated: 

In each case, the showing of necessity which is made 
will determine how far the court should probe in 
satisfying itself that the occasion for invoking the 
privilege is appropriate. Where there is a strong 
showing of necessity, the claim of privilege should 
not be lightly accepted, but even the most compelling 
necessity cannot overcome the claim of privilege if 
the court is ultimately satisfied that military secrets 
are at stake. A fortiori, where necessity is dubious, 
a fornnal claim of privilege. . . will have to prevail. 
354 U.S. at 11. 

Clearly the Committee does not need the tapes to complete its 
legislative task now that it has the transcripts. Prior to the disclosure 
of the transcripts the District Court found, "[i]t has not been demonstrated 
to the Court's satisfaction that the Committee has a pressing need forthe 
subpoenaed tapes. . ." (J. A. 166) It goes without saying that the Com- 
mittee's lack of need is now even more obvious. In light of the recent 
disclosure of the transcripts by the President and of the constitutional 
limitations on the Committee's power to investigate in aid of legislation 
and the constit-utional role of the House Judiciary Conamittce, this Court 
has even more reason to affirnn the court below than it liad uhen the 



1735 



-14- 

dccision was made. C.I. R. v. Bclri'li^o Oil Co. , 2t'>7 F. 2d 20, 2'15 
(9th Cir. 1959): Continental Can Co. v. Horton , 250 F. 2d 637. 6-15 
(8th Cir. 1957). 

If this Court determines that the transcripts of the relevant 
portions of the subpoenaed tapes furnished to the Committee sub- 
stantially satisfy and adeqviately fulfill the Committee's needs, as 
we submit they do, this Court may find the issue moot. This would 
be consistent with the long line of cases, beginning in Hayburn's Case , 
2 Dall, (1 U.S.) 409 (1792), holding that the federal courts may not 
give advisory opinions. As Chief Justice Warren wrote for the Court, 
"it is quite clear that 'the oldest and most consistent thread in the 
federal law of justiciability is that the federal courts will not give 
advisory opinions. ' " Flast v. Cohen , 392 U. S. 83, 96 (1968). More- 
over, t}ie Supreme Court has held that "moot questions require no answer. 
Missouri , Kansas , & Texas R. Co. v. Ferris , 179 U.S. 602, 606 (1900). 
The rationale for this holding is that mootness is a jurisdictional 
question because the Court "is not empowered to decide moot questions 
or abstract propositions," United States v. Alaska SS . Co . , 253 U. S. 
113, 116 (1920), quoting California v. San Pablo & Tulare R. Co. , 
149 :U.S. 308 (1893). 



1736 



-15- 

The inability of the Federal judiciary "to review moot cases 
derives from the requirement of Art. Ill of the Constitution under 
which the exercise of judicial power depends on the existence of a 
case on controversy. " See, e. g. , Powell v. McCormack , 395 U. S. 487, 
496, n. 7 (1969): Sibron v. New York , 392 U. S. 40, 50, (1968): and 
Liner v. Jafco , Inc. , 375 U.S. 301, 306, n. 3(1964). This principle 
was recently reaffirmed in DeFunis v. Odegaard , Slip. Op. No. 73-235 
(Sup. Ct. , April 23, 1974) at p. 3. Since the Committee's need has 
been fulfilled, there is no longer a real and substantial controversy 
before this Court. It is true here, as in Hall v. Bcals , 396 U. S. 45, 
48 (1969), and Diffenderfer v. Central Baptist Church , 404 U. S. 412, 
415 (1972), that "[t]he case has * * * lost its character as a present, 
live controversy of the kind that mvist exist if we are to avoid advisory 
opinions on abstract propositions of law. " Accordingly, this appeal 
shovild be dismissed because of mootness. 

Conclusion 
Since the District Court properly dismissed this suit finding 
that the Committee had failed in demonstrating a pressing need for 
tlic subpoenaed tapes, witliovit even addressing tl-.c issue of con-.pliancc, 
in tlie littlit of subsequent events the District Court judgment is certainly 



173: 



-16- 

not clearly erroncovis and sliould be affirmed or, in the alternative, this 
appeal should be dismissed because of mootness. 



Respectfully submitted^ 



Of Counsel 



JOHN J. CHESTER 




^CUuj2^ 




AMES D. ST. CLAIR 
MICHAEL A. STERLACCI 
JEROME J. MURPHY 
LOREN A. S.NUTH 
CHARLES ALAN WRIGHT 
2500 Red River Street 
Austin, Texas 78705 

Attorneys for the President 

The White House 
Washington, D. C. 20500 
Telephone Number: 456-1414 



1738 



> STAFF DIRECTOR 



QlCniicb ^laie!& Genetic 

SELECT COMMITTEE ON 

PRESIDENTIAL CAMPAIGN ACTIVITIES 

(PURSUAKT TO S. RES. M, f)0 COtMRESS) 

WASHINGTON. D.C. ZOSIO 

May 22, 1974 



Hugh E. Kline, Clerk 

United States Court of Appeals 

for the District of Columbia Circuit 
United States Court House 
Washington, D.C. 



RE: 



Senate Select Committee 

V. Richard M. Nixon, No. 74-1258 



Dear Mr. Kline: 



The purpose of this letter is to inform the Court 
of Senate Resolution 327, passed yesterday. May 21, 
1974, a copy of which is attached. 

This resolution extends the date by which the 
Select Committee may file its final report until 
June 30, 1974. The resolution also, in effect, 
provides that the Select Committee shall continue 
to exist until the above-referenced lawsuit is 
concluded and that it may file an addendum to its 
final report if the lawsuit is resolved in its 
favor after that report is submitted. 

Senators Ervin and Baker sought passage of this 
resolution in the belief that the Committee has a vital 
need for complete and accurate versions of the conver- 
sations sought in this lawsuit to complete the Com- 
mittee's legislative missions; it appears even more 
strongly than before from the events of the past 
several days that the Committee does not now have 
such complete and accurate versions. See, e.g. 
Washington Post, Friday, May 17, A26-8, where the 
transcript of the September 15, 1972, meeting released 



1739 



- 2 - 



by the President is compared with a significantly 
different version purportedly prepared by the 
House Judiciary Committee. 





imuel Dash 
Chief Counsel 
Attorney for Appellants 



James St. Clair, Counsel for Appellee 
Leon Jaworski, Special Prosecutor 
Attorney General William B. Saxbe 



1740 



93d congress 

2d Session 



i3* ilfdd* ^dL I 



IN THE SENATE OF THE UNITED STATES 

Mat 20, 1974 

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

AL\T 21,1974 
Considered and ajrreed 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 Hesolved, That section 5 of S. Pes. 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 resuhs of the investigation and study conducted by it 

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

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 reports as it considers appropriate. 

V 



1741 

2 

1 After submission of its final report, the select committ.ee 

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

3 the expu-ation of such three calendar months shall cease to 

4 exist: Provided, however, That m 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 findmgs and legislative 
IS recommendations based on what the taped recordings 
19 disclose.". 



34-966 O - 74 - pt. 2-34 



1742 



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1743 



Notice: This opinion is subject to formal revision before publication 
in the Federal Reporter or U.S. App. D.C. Reports. Users are requested 
to notify the Clerk of any formal errors in order that corrections may be 
made before the bound volumes go to press. 



Mxxxtth BttxttB (Enurt nf Apprala 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 



No. 74-1258 



Senate Select Committee on Presidental Campaign 

Activities, Suing in its Own Name and in the Name 

OF the United States, et al, appellants 



V. 



Richard M. Nixon, Individually and as 
President of the United States 



Appeal from the United States District Court for the 
District of Columbia 



Decided May 23, 1974 

Samuel Dash, Chief Counsel, Senate Select Committee 
on Presidential Campaign Activities, with whom Rufus 
Edmisten, Deputy Counsel, James Hamilton, Assistant 
Chief Counsel, Richard B. Stewart, Special Counsel, 
Ronald D. Rotunda, Assistant Counsel, Senate Select 
Committee On Presidential Campaign Activities, Sherman 
Cohn, Eugene Gressman and Jerome A. Barron were on 
the brief for appellants. 

Joseph J. Chester, with whom Charles Alan Wright was 
on the brief, for appellee. George P. Williams also en- 
tered an appearance for appellee. 



1744 



Philip A. Lacovara, Counsel to the Special Prosecutor, 
with whom Leon Jaivorski, Special Prosecutor and Peter 
M. Kreindler, Executive Assistant to the Special Prose- 
cutor were on the brief for the Special Prosecutor as 
amicus curiae. 

Irving Jaffe, Acting Assistant Attorney General, 
Robert E. Kopp and Thomas G. Wilson filed a brief on 
behalf of the United States as amicus curiae. 

Before: Bazelon, Chief Judge, Wright, McGowan, 
Leventhal, Robinson, MacKinnon, and 
WiLKEY, Circuit Judges 

Opinion for the Court filed by Chief Judge Bazelon. 

Concurring opinion filed by Circuit Judge MacKinnon. 

Concurring opinion filed by Circuit Judge Wilkey. 

Bazelon, Chief Judge: In this suit, the United States 
Senate Select Committee on Presidential Campaign Ac- 
tivities seeks a declaration that President Richard M. 
Nixon has a legal duty to comply with its subpoena duces 
tecum, directing him to produce "original electronic 
tapes" of five conversations between the President and 
his former Counsel, John W. Dean, III. By memorandum 
and order of February 8, 1974, the District Court for 
the District of Columbia denied the Committee's motion 
for summary judgment, and dismissed the suit without 
prejudice.^ The Committee appeals. For the reasons 
stated herein, we affirm. 



The Select Committee was created on February 7, 
1973, by a resolution of the Senate empowering the 
Committee to investigate "illegal, improper or unethical 



^ Senate Select Committee on Presidential Campaign Ac- 
tivities V. Nixon, 370 F. Supp. 521 (D.D.C. 1974). 



1745 



activities" occurring in connection with the presidential 
campaign and election of 1972, and "to determine . . . 
the necessity or desirability of new congressional legisla- 
tion to safeguard the electoral process by which the 
President of the United States is chosen." - In testimony 
before the Committee on July 16, 1973, Alexander Butter- 
field, a former Deputy Assistant to the President, stated 
that certain presidential conversations, presumably in- 
cluding those about which Mr. Dean and others had 
previously testified, had been recorded on electronic tapes. 
The Committee thereupon attempted informally to obtain 
certain tapes and other materials from the President. 
When these efforts proved unsuccessful, the Committee 
issued the subpoena that is the subject of this appeal.^ 

This subpoena directed the President to make avail- 
able to the Committee taped recordings of five conversa- 
tions that had occurred on specified dates ''between Presi- 
dent Nixon and John Wesley Dean, III, discussing al- 
leged criminal acts occurring in connection with the 
Presidential election of 1972." ' The subpoena was duly 
served on the President, together with a second subpoena 
duces tecum, requiring production of all records that 
concerned, directly or indirectly, the "activities, par- 
ticipation, responsibilities or involvement" of twenty-five 
named persons "in any alleged criminal acts related to 



- Senate Resolution 60, 93rd Cong., 1st Sess. § 1 (a) (1973). 

^ Section 3(a) (5) of Senate Resolution 60, supra, empowers 
the Committee: 

* * * to require by subpoena * * * 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 its investigation 
and study any * * * tapes, or materials relating to any 
of the matters or questions it is authorized to investi- 
gate and study which they or any of them may have in 
their custody or under their control * * *. 

* Joint Appendix at 26-27. 



1746 



the Presidential election of 1972." ' Both subpoenas were 
returnable on July 26. By letter dated July 25, 1973, 
addressed to Senator Ervin as chairman of the Select 
Committee, the President declined to comply with either 
subpoena, asserting in justification the doctrine of ex- 
ecutive privilege. The President stated that, although he 
had directed "that executive privilege not be invoked 
with regard to testimony by present and former members 
of [his] staff concerning possible criminal conduct," ex- 
ecutive privilege was being asserted with respect to "docu- 
ments and recordings that cannot be made public con- 
sistent with the confidentiality essential to the function- 
ing of the Office of the President" '' 

The Committee, in its own name and in the name of 
the United States, then brought this action to enforce the 
subpoenas. It alleged in its complaint that "the sub- 
poenaed electronic tapes and other materials are vitally 
and immediately needed if the Select Committee's man- 
date and responsibilities . . . are to be fulfilled." ' On 
August 29, the Committee filed a motion for summary 
judgment, seeking a declaration that the subpoenas were 
lawful and that the President's refusal to honor them, 
on the ground of executive privilege or otherwise, was 
illegal. On October 17, the District Court dismissed the 
Committee's action for want of statutory subject matter 
jurisdiction.^ The Committee appealed to this Court. 

While the appeal was pending, the Senate on November 
2 passed a resolution stating that the Select Committee 



= Joint Appendix at 29-33. 

^ Joint Appendix at 35. 

^ Complaint of the Senate Select Committee on Presiden- 
tial Campaign Activities, et al., at 8; Joint Appendix at 8. 

* Senate Select Comm. on Presidential Campaign Activities, 
et al., V. Nixon, F. Supp. (D.D.C. 1973). 



1747 



is authorized to subpoena and sue the President and that 
the Committee, in subpoenaing and suing the President, 
was acting with valid legislative purposes and seeking 
information vital to the fulfillment of its legitimate 
legislative functions.'' The Select Committee asked this 
Court to hold its appeal in abeyance pending action on 
a bill, then before Congress, which conferred jurisdic- 
tion on the District Court for the District of Columbia 
in any civil action that the Committee theretofore or 
thereafter brought "to enforce or secure a declaration 
concerning the validity of any subpoena." This bill was 
enacted by Congress and, the President having failed to 
exercise his veto, took effect on December 19, lOTS."* On 
December 28, in light of this new jurisdictional statute, 
we remanded the case to the District Court for further 
consideration." 

Following the remand, on January 25, 1974, the Dis- 
trict Court issued an order quashing the Committee's 
subpoena concerning twenty-five individuals. The Court 
found the subpoena "too vague and conclusory to permit 
a meaningful response" and, referring to our intervening 
opinion in Nixon v. Sirica,^- held the subpoena "wholly 
inappropriate given the stringent requirements appli- 
cable where a claim of executive privilege has been 
raised." '' No appeal was taken from this order and 
the matter is not before us. 

At the same time, the District Court issued two orders 
concerning the subpoena of the five identified tapes. In 



« Senate Resolution 194, 93rd Cong., 1st Sess. (1973). 

"Pub. L. No. 93-190 (Dec. 19, 1973), to be codified as 18 
U.S.C. § 1364. 

"Order, No. 73-2086 (D.C. Cir., Dec. 28, 1973) (e7i banc). 

" U.S. App. , , 487 F.2d 700, 716-18 (1973). 

'^ Order, C.A. 1593-73 (D.D.C. Jan. 25, 1974) ; Joint Ap- 
pendix at 148. 



174S 



the first, the Court requested the Watergate Special 
Prosecutor to submit a "statement concerning the effect, 
if any, that compliance with [the subpoena] would, in 
his opinion, be likely to have upon pending criminal 
cases or imminent indictments under his supervision." '* 
In the second order, finding the President's claim of 
executive privilege "too general and not sufficiently con- 
temporaneous to enable the Court to determine the effect 
of that claim under the doctrine of Nixon v. Sirica,^' the 
Court requested the President to submit "a particularized 
statement addressed to specifi-c portions of the sub- 
poenaed tape recordings indicating whether he still wishes 
to invoke executive privilege as to these tapes and, with 
regard to those portions as to which the privilege is still 
asserted, if any, the factual ground or grounds for his 
determination that disclosure to the Select Committee 
would not be in the public interest." ^^' The President 
responded to this order by letter dated February 6, 
1974. Rather than setting forth the particularized claims 
and reasons for which the District Court had called, the 
President reasserted executive pri\dlege generally as to 
all of the subpoenaed material, citing as the bases for 
his claim the need for confidentiality of conversations 
that take place in the performance of his constitutional 
duties, and the possibly prejudicial effects on Watergate 
criminal prosecutions should the contents of the subpoenaed 
conversations become public.^'' The latter concern was 
raised with reference to the President's constitutional 
duty to see that the laws are faithfully executed. 

On February 8, the District Court entered the order 
at issue here. In the memorandum accompanying the 



'^ Order, C.A. 1593-73 (D.D.C. Jan. 25, 1973) ; Joint Ap- 
pendix at 144. 

^^ Order, C.A. 1593-73 (D.D.C. Jan. 25, 1974); Joint Ap- 
pendix at 139-140. 

^« Joint Appendix at 162-63. 



1749 



order, the Court dealt first with the President's asser- 
tion that the matter before it constituted a non-justiciable 
political question. Finding the reasoning of this Court in 
Nixon V. Sirica, which concerned a grand jury subpoena, 
"equally applicable to the subpoena of a congressional 
committee," the District Court held that, under that case 
and the relevant Supreme Court precedents, the issues 
presented to it were justiciable/' The Court then turned, 
in the terms of Nixon v. Sirica, to a weighing of "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 in- 
stance." The Court found, first, that the Select Com- 
mittee had failed to demonstrate either "a pressing need 
for the subpoenaed tapes or that further public hear- 
ings before the Committee concerning those tapes will 
at this time serve the public interest." At the same 
time, however, the Court rejected the President's claim 
of privilege insofar as it was premised on the public 
interest in confidentiality, because, in its view, "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 con- 
fidentiality grounds." '' The Court then, in the discharge 
of its duty as a court of equity, undertook independently 
to weigh the public interest in safeguarding pending 
criminal prosecutions from possibly prejudicial pretrial 
publicity, against the Committee's asserted need for the 
subpoenaed tapes. In the particular circumstances of 
this case, including the fact that the tapes had already 
been made available to the June, 1972, grand jury of 
this district, the Court found it necessary to assign 
priority to the public interest in "the integrity of the 



^' 370 F. Supp. at 522. 



1750 



8 



criminal process, rather than the Committee's need." It 
therefore dismissed the Committee's suit without preju- 
dice. 

11. 

The Select Committee contends that, once having de- 
termined that the President's general confidentiality pri- 
vilege failed, the District Court had no authority to 
engage in a balancing of interests, where the result was 
to pass judgment on the magnitude of need underlying 
the Committee's decision to authorize and issue a sub- 
poena. Alternatively, the Committee argues that any 
such balancing must favor, as more urgently affected with 
the public interest, the Committee's asserted need over 
the public interest in the fairness of the criminal process. 
We find it unnecessary to reach either contention. Neither 
the Committee's position nor, if we read it correctly, that 
of the District Court accurately reflects the doctrines of 
Nixon V. Sirica, doctrines that, at least by analogy, we 
think controlling here. 

In Nixon v. Sirica, we were confronted with a chal- 
lenge to an order of the District Court, entered as a 
means of enforcing a grand jury subpoena, requiring the 
President to produce the subpoenaed items to enable the 
Court to determine by in camera inspection whether the 
items were exempted from disclosure by evidentiary privi- 
lege." In his challenge to this order, the President argued 
that the District Court had acted beyond its jurisdiction. 
He contended that he is absolutely immune in all cases 
from the compulsory process of the courts, and that 
whenever, in response to a grand jury subpoena, he inter- 
poses a formal claim of privilege, that claim without 
more disables the courts from inquiring by any means 
into whether the privilege is applicable. We rejected 
both contentions, holding, contrary to the President, that 



" 487 F.2d at 704. 



1751 



9 



at least with respect to grand jury subpoenas, it is the 
responsibility of the courts to decide whether and to what 
extent executive privilege applies.-'^ And we held further 
that, generally, "application of Executive privilege de- 
pends 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." -^ 

As in the present case, our attention in Nixon v. 
Sirica was directed solely to one species of executive 
privilege — that premised on ''the great public interest in 
maintaining the confidentiality of conversations that take 
place in the President's performance of his official 
duties." " We recognized this great public interest, anal- 
ogizing the privilege, on the basis of its purpose, ''to 
that between a congressman and his aides under the 
Speech and Debate Clause; to that among judges, and be- 
tween judges and their law clerks; and ... to that con- 
tained in the fifth exemption to the Freedom of Informa- 
tion Act." ^^ We recognized, moreover, that protection 
of the presidential decision-making process requires a 
promise that, as a general matter, its confidentiality 
would not be invaded, even to the limited extent of a 
judicial weighing in every case of a claimed necessity for 
confidentiality against countervailing public interests of 
the moment. 

We concluded that presidential conversations are "pre- 
sumptively privileged," even from the limited intrusion 
represented by in camera examination of the conversa- 
tions by a court."* The presumption can be overcome 



'"° 487 F.2d at 708-16. 

^1 487 F.2d at 716. 

22 487 F.2d at 717. 

''Id. 

■'' 487 F.2d at 705, 717-18. 



1752 



10 



only by an appropriate showing of public need by the 
party seeking access to the conversations. In Nixon v. 
Sirica, such a showing was made by the Special Prose- 
cutor : 

[W]e think that this presumption of privilege pre- 
mised on the public interest in confidentiality must 
fail in the face of the uniquely powerful showing- 
made by the Special Prosecutor in this case. The 
function of the grand jury, mandated by the Fifth 
Amendment for the institution of federal criminal 
prosecutions for capital or other serious crimes, is 
not only to indict persons when there is probable 
cause to believe they have committed crime, but also 
to protect persons from prosecution when probable 
cause does not exist. As we have noted, the Special 
Prosecutor has made a strong showing that the sub- 
poenaed tapes contain evidence peculiarly necessary 
to the carrying out of this vital function — evidence 
for which no effective substitute is available. The 
grand jury here is not engaged in a general fishing 
expedition, nor does it seek in any way to investi- 
gate the wisdom of the President's discharge of his 
discretionary duties. On the contrary, the grand jury 
seeks evidence that may well be conclusive to its 
decisions in on-going investigations that are entirely 
within the proper scope of its authority.-' 

We concluded that this strong showing of need was 
sufficient to overcome the general presumption of privi- 
lege premised on the public interest in the confidentiality 
of the presidential decision-making process. We held that 
it was within the power of the District Court "to order 
disclosure of all portions of the tapes relevant to matters 
within the proper scope of the grand jury's investigations, 
unless the Court judges that the public interest served 
by non-disclosure of particular statements or information 
outweighs the need for that information demonstrated 
by the grand jury." "' It became, therefore, incumbent 



^^ 487 F.2d at 717 (citations omitted) 
2« 487 F.2d at 718. 



1753 



11 



upon the President to make particularized showings in 
justification of his claims of privilege, and upon the 
District Court to follow procedures, including in camera 
inspection, requiring careful deliberation before even 
the demonstrated need of the grand jury might be satis- 
fied.^^ 

III. 

The staged decisional structure established in Nixon 
V. Sirica was designed to ensure that the President and 
those upon whom he directly relies in the performance 
of his duties could continue to work under a general 
assurance that their deliberations would remain con- 
fidential. So long as the presumption that the public 
interest favors confidentiality can be defeated only by a 
strong showing of need by another institution of gov- 
ernment — a showing that the responsibilities of that in- 
stitution cannot responsibly be fulfilled without access 
to records of the President's deliberations — we believed 
in Nixon v. SiHca, and continue to believe, that the ef- 
fective functioning of the presidential office will not be 
impaired." Contrary, therefore, to the apparent under- 
standing of the District Court, ""^ we think that Nixon 
V. Sirica requires a showing of the order made by the 
grand jury before a generalized claim of confidentiality 
can be said to fail, and before the President's obligation 
to respond to the subpoena is carried forward into an 
obligation to submit subpoenaed materials to the Court, 
together with particularized claims that the Court will 
weigh against whatever public interests disclosure might 
serve. The presumption against any judicially compelled 
intrusion into presidential confidentiality, and the show- 
ing requisite to its defeat, hold with at least equal force 
here. 



-' 487 F.2d at 718-22. 

-« 487 F.2d at 722. 

^ See text and note at note 18, supra. 



1754 

12 

Particularly in light of events that have occurred 
since this litigation was begun and, indeed, since the 
District Court issued its decision, we find that the Select 
Committee has failed to make the requisite showing. In 
its papers below and in its initial briefs to this Court, 
the Committee stated that it seeks the materials in ques- 
tion in order to resolve particular conflicts in the volumi- 
nous testimony it has heard, conflicts relating to "the 
extent of malfeasance in the executive branch," and, 
most importantly, the possible involvement of the Presi- 
dent himself. '^ The Committee has argued that the tes- 
timony before it makes out "a prima facie case that the 
President and his closest associates have been involved in 
criminal conduct," that "the materials sought bear on 
that involvement," and that these facts alone must defeat 
any presumption of privilege that might otherwise pre- 
vail.^' 

It is true, of course, that the Executive cannot, any 
more than the other branches of government, invoke a 
general confidentiality privilege to shield its officials and 
employees from investigations by the proper govern- 
mental institutions into possible criminal wrongdoing.^- 
The Congress learned this as to its own privileges in 
Gravel v. United States,^^ as did the judicial branch, in 
a sense, in Clark v. United States,^* and the executive 
branch itself in Nixon v. Sirica. But under Nixon v. 



30 Brief of the Senate Select Committee, et al, at 27-28. 

" E.g., Supplemental Memorandum of the Senate Select 
Committee, et at., at 2. 

32 Committee for Nuclear Responsibility v. Seaborg-, 149 
U.S. App. D.C. 385, 463 F.2d 788, 794 (1971). See Gravel 
v. United States, 408 U.S. 606, 627 (1972). 

3M08U.S. 606 (1972). 

^'^ 289 U.S. 1 (1933). 



1755 



13 



Sirica, the showing required to overcome the presump- 
tion favoring confidentiality turned, not on the nature 
of the presidential conduct that the subpoenaed material 
might reveal,^' but, instead, on the nature and appropri- 
ateness of the function in the performance of which the 
material was sought, and the degree to which the mate- 
rial was necessary to its fulfillment. Here also our task 
requires, and our decision implies, no judgment whatever 
concerning possible presidential involvement in culpable 
activity. On the contrary, we think the sufficiency of 
the Committee's showing must depend solely on whether 
the subpoenaed evidence is demonstrably critical to the 
responsible fulfillment of the Committee's functions. 

In its initial briefs here, the Committee argued that 
it has shown exactly this. It contended that resolution, 
on the basis of the subpoenaed tapes, of the conflicts in 
the testimony before it "would aid in a determination 
whether legislative involvement in political campaigns is 
necessary" and "could help engender the public support 
needed for basic reforms in our electoral system." ■"' 
Moreover, Congress has, according to the Committee, 
power to oversee the operations of the executive branch, 
to investigate instances of possible corruption and mal- 
feasance in office, and to expose the results of its in- 
vestigations to public view. The Committee says that 
with respect to Watergate-related matters, this power has 
been delegated to it by the Senate, and that to exercise 
its power responsibly, it must have access to the sub- 
poenaed tapes.^' 

We turn first to the latter contention. In the circum- 
stances of this case, we need neither deny that the Con- 



'' 487 F.2d at 718. 

^^ Brief of Senate Select Committee, et al., at 27-28. 

3^ E.g., Reply Brief of Senate Select Committee, et al., at 
21-23. 



1756 



14 



gress may have, quite apart from its legislative respon- 
sibilities, a general oversight power, nor explore what 
the lawful reach of that power might be under the Com- 
mittee's constituent resolution. Since passage of that 
resolution, the House Committee on the Judiciary has 
begun an inquiry into presidential impeachment. The 
investigative authority of the Judiciary Committee with 
respect to presidential conduct has an express constitu- 
tional source.-^' Moreover, so far as these subpoenaed 
tapes are concerned, the investigative objectives of the 
two committees substantially overlap: both are appar- 
ently seeking to determine, among other things, the ex- 
tent, if any, of presidential involvement in the Watergate 
"break-in" and alleged "cover-up." And, in fact, the 
Judiciary Committee now has in its possession copies of 
each of the tapes subpoenaed by the Select Committee. 
Thus, the Select Committee's immediate oversight need 
for the subpoenaed tapes is, from a congressional perspec- 
tive, merely cumulative. Against the claim of privilege, 
the only oversight interest that the Select Committee can 
currently assert is that of having these particular conver- 
sations scrutinized simultaneously by two committees. We 
have been shown no evidence indicating that Congress 
itself attaches any particular value to this interest. In 
these circumstances, we think the need for the tapes 
premised solely on an asserted power to investigate and 
inform cannot justify enforcement of the Committee's 
subpoena. 

The sufficiency of the Committee's showing of need has 
come to depend, therefore, entirely on whether the sub- 
poenaed materials are critical to the performance of its 
legislative functions. There is a clear difference between 
Congress's legislative tasks and the responsibility of a 
grand jury, or any institution engaged in like functions. 



3« U.S. Const., art. I, § 2, II 5. 



1757 



15 



While fact-finding by a legislative committee is unde- 
niably a part of its task, legislative judgments normally 
depend more on the predicted consequences of proposed 
legislative actions and their political acceptability, than 
on precise reconstruction of past events; Congress fre- 
quently legislates on the basis of conflicting information 
provided in its hearings. In contrast, the responsibility 
of the grand jury turns entirely on its ability to deter- 
mine whether there is probable cause to believe that cer- 
tain named individuals did or did not commit specific 
crimes. If, for example, as in Nixon v. Silica, one of 
those crimes is perjury concerning the content of certain 
conversations, the grand jury's need for the most pre- 
cise evidence, the exact text of oral statements recorded 
in their original form, is undeniable.^" We see no com- 
parable need in the legislative process, at least not in 
the circumstances of this case. Indeed, whatever force 
there might once have been in the Committee's argument 
that the subpoenaed materials are necessary to its legis- 
lative judgments has been substantially undermined by 
subsequent events. 

By order of May 2, 1974, this Court took judicial 
notice of the President's public release of transcripts, 
with partial deletions, of each of the tapes at issue here. 
In light of the President's action we requested the Select 
Committee to file a supplemental memorandum stating 
whether the Committee ''has a present sense of need for 
the materials subpoenaed" and, if so, in what specific 
respects the transcripts now available to the Committee, 
and to the public generally, are deficient in meeting 
that need. In its response to this order, the Committee 
states, first, that it needs access to the tapes in order to 
verify the accuracy of the public transcripts. In fact, 
however, the originals of four of the five tapes subject 



See 487 F.2d at 718. 



34-966 O - 74 - pt. 2-35 



1758 



16 



to the Committee's subpoena have been transmitted by 
the President to the District Court, pursuant to that 
Court's order,'" and are now in the District Court's pos- 
session. Thus, as the Committee's counsel acknowledged 
at oral argument, the subpoena now applies only to the 
copies of the tapes that remain in the President's posses- 
sion. This being so, however, the Committee would en- 
counter, in some measure, the same problem of verifica- 
tion with respect to four of the five tapes as it claims 
now to confront in the transcripts. 

The Committee also says that certain portions of the 
conversations have been deleted from the transcripts, with 
notations that they contain material "unrelated to Water- 
gate" or "unrelated to Presidential action," "' and that, 
were the tapes played on highly sensitive equipment, 
portions that the transcripts designate as "inaudible" 
might be understood. Finally, the Committee argues that 
inflection and tone of voice that the tapes would supply 
are indispensable to a correct construction of the con- 
versations. The Committee has, however, shown no more 
than that the materials deleted from the transcripts may 
possibly have some arguable relevance to the subjects it 
has investigated and to the areas in which it may pro- 
pose legislation. It points to no specific legislative deci- 
sions that cannot responsibly be made without access to 
materials uniquely contained in the tapes or without 
resolution of the ambiguities that the transcripts may 
contain. More importantly, perhaps, insofar as such am- 
biguities relate to the President's own actions, there is 
no indication that the findings of the House Committee 
on the Judiciary and, eventually, the House of Represent- 



*° See In re Grand Jury Subpoena Duces Tecum to Nixon, 
360 F. Supp. 1 (D.D.C. 1973) 

^^ Supplemental Memorandum of the Senate Select Commit- 
tee in Response to this Court's Order of May 2, 1974, at 3. 



1759 



17 

atives itself, are so likely to be inconclusive or long in 
coming that the Select Committee needs immediate access 
of its own. 

IV. 

In approaching our judicial function, we have no doubt 
that the Committee has performed and will continue to 
perform its duties fully in the service of the nation. We 
must, however, consider the nature of its need when we 
are called upon, in the first such case in our history, to 
exercise the equity power of a court at the request of a 
congressional committee, in the form of a judgment that 
the President must disclose to the Committee records of 
conversations between himself and his principal aides. We 
conclude that the need demonstrated by the Select Com- 
mittee in the peculiar circumstances of this case, includ- 
ing the subsequent and on-going investigation of the 
House Judiciary Committee, is too attenuated and too 
tangential to its functions to permit a judicial judgment 
that the President is required to comply with the Com- 
mittee's subpoena. We therefore affirm the order dis- 
missing the Committee's action without prejudice, al- 
though on grounds that differ from those announced by 
the District Court. 

Ajfirmed. 



1760 



MacKinnon, Circuit Judge, concurring: I concur in 
the result reached by the foregoing opinion but have 
some additional comments. 

As I argued in dissent in Nixon v. Sirica, U.S. 

App.D.C. , , 487 F.2d 700, 729-62 (1973), the 

President, as distinct from the executive establishment 
generally, possesses a constitutionally founded privilege 
enabling him to protect the confidentiality of conferences 
with his advisors. Recognition of that presidential privi- 
lege would dispose of the demands made by the instant 
subpoena, but failing majority consensus on this point I 
concur generally in the reasoning of the foregoing opinion 
as embracing an accurate analysis and sound application 
of the principles established in Nixon v. Sirica. This posi- 
tion evidences no retreat from my previously expressed 
views on the force, validity and importance of congres- 
sional subpoenas, id. at , 487 F.2d at 737-38, nor 

does it reflect a comparatively higher esteem for judicial 
subpoenas. Rather, my concurrence today is premised on 
the basic proposition that enforcement of any subpoena, 
whether congressional or judicial, depends in the first 
instance upon an assessment of the immediate purpose, 
object and need which prompted its issuance. Thus, even 
though recognizing that the legislative function is no 
less important than the prosecutorial, I agree that the 
Senate Committee has failed to demonstrate a present 
need of sufficient urgency to overcome even the qualified 
presidential privilege recognized by the majority in Nixon 
V. Sirica. Additionally, while I would not characterize 
the Senate Committee's need as "merely cumulative," it 
bears particular emphasis that legislation involves a 
cooperative effort of both the House and the Senate, that 
the House Committee on the Judiciary already possesses 
the recordings sought here, and that these materials more 
than likely eventually will be released to the public. 



1761 



WiLKEY, Circuit Judge: On my own analysis our 
logical first conclusion should be that the constitutional 
principle of separation of powers makes the issue here 
a political question and therefore not justiciable {Baker 
V. Carr, 369 U.S. 186 (1962); Powell v. McCormack, 
395 U.S. 486 (1968); and Nixon v. Sirica, 487 F.2d 
700, 762-99 (1973) (Wilkey, J., dissenting)); how- 
ever, I agree that, taking the majority opinion in Nixon 
V. Sirica as still prevailing, Chief Judge Bazelon's opin- 
ion is likewise a sound basis for the action we take, and 
I therefore join therein without further reservation. 



1762 



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMIUA 



COMMON CAUSE, et al, , 



Plaintiff 



FINANCE COMMITEE TO RE-ELECT 
THE PRESIDENT, et al. , 

Defendants 



STIPULATION 



Civil Action 
No, 1780-72 



p ! L r-: D 

Au;; 2 4 19/5 

-■AMES r. DAVcY, Clerk 



1. The members of the Senate Select Committee on 

Presidential Campaign Activities, or authorized staff representatives 
of the Select Committee, in pursuance of the responsibilities delegated 
to it by Senate Resolution 60 of the 93rd Congress, 1st Session may 
inspect and copy 

(a) The records of organizations soliciting funds for 
Richard M. Nixon from January 1, 1971 to April 7, 1972 delivered and 
to be delivered to the Clerk of the United States District Court for the 
District of Columbia, pursuant to the stipulation and order of said 
Court entered on November 1, 1972; 

(b) The depositions and documents taken and to be 
taken, pursuant to the order of this Court entered on October 17, 1972, 
as modified by orders of said Court entered on April 18, 1973, April 30, 
1973, and May 16, 1973, whether said depositions are sealed or unsealed 
under prior order of this Court. 



1763 



2 - 



2, Neither the parties, the deponents, their counsel, 

nor the members of the Select ConiTnittee or its agents sliall disclose, 
publicize, or publicly cominent upon any of the testimony given or 
documents produced subject to the seal of the Court^^'^' ^ 

Lcnneth J^^,/Ouido, Jr. 
Zpo M S^eet, N. W. 

Washington, D. C. 20036 
Attorney for Coinmon Cause 

'J>iL Hi) ■ diUiLcn[_/ 

Kenneth Wells Parkinson 
Jackson, Gray & Parkinson 
1828 L Street, N. W. 
Washington, D. C. 20036 
Attorney for Finance Committee 

to Re-Elect the President, 
Victory '72 Dinner Committee, 
Media Committee to Re-Elect 

the President 
Television Committee to Re-Elect 

the President, 
Radio Committee to Re-Elect the 

President 




Daniel Webster Coon 
1425 H Street, N. W. 
Washington, D. C. 20005 
Attorney for the Finance Committee 
f>T the Re-Election of the President 



i^ tne Ke-Ji,lectio 



^/ lK/^!l4i(^ — ;. 

1735 New York Avenue, N. W. 
Washington, D. C. 
Attorney for defendant 
Maurice H. Stans 



1764 




Siiinuel Dash 
Chief Counsel 

Senate Select Coiranittee on 
Presidential Campaign Activities 




Rufu/ L. Edmisten 
l^epuCy Counsel 
Senate Select CouLmittee on 
Presidential Campaign Activities 



1765 



IN ini-: UNITED STATES DISTPaCT COURT 
yOR THE DISTRICT OF COLUMBIA 



COiMMON CAUSE, ct al, , 



Plaintiffs, ^A' 



FINANCE COMMITTEE TO RE-ELECT 
THE PRESIDENT, et al. , 

Defendants 






Civil Action 
No. 1780-72 



CONSENT ORDER 



Upon the motion of the members of the Senate Select 
Conni-pittee on Presidential Campaign Activities, and the consent 



of the parties herein, pursuant to Rule 29 of the Federal Rules of 
Civil Procedure, it is by the Court this ^> / day of 




y 



, 1973, 



ORDERED, that said motion be, and it is hereby, granted, 
and that with respect to records of organizations soliciting funds for 
Richard M. Nixon from January 1, 1971 to April 7, 1972 delivered and to 
be delivered to the Clerk of this Court, pursuant to the order of this 
Court entered on November 1, 1972, the Clerk of the Court be, and 
hereby is, ordered and directed to maintain, safeguard, and secure 
said records in a room under his control which shall be locked at all 
times except as shall hereinafter be provided: 



1766 



(a) That at a suitable, convenient, and experlitious time 
to be detcrin'ncd by the Clerk, tlio Clerk shall permit the members or 
any authorized staff representatives of the Select ConiiTiittee, to 
inspect and copy said records for use by the Committee in the duties 
assigned to it pursuant to Senate Resolution 60, 93i-d Congress, 1st 
Session. 

(b) All rights which the defendants, plaintiffs, and the 
Finance Committee for the Re-Election of the President may have in 
and to the records, documents, communications, and other writings 
which by this order have been impounded with the Clerk of the Court 
be, and they are hereby, preserved, 

IT IS FURTHER ORDERED that with respect to depositions 
and documents, taken and to be taken herein, pursuant to the order of 
this Court entered on October 17, 1972, as modified by orders of this 
Court entered on April 18, 1973, April 30, 1973, and May 16, 1973, 

(a) That the parties, the deponents, their counsel, and 
the Clerk of this Court, be, and hereby are ordered and directed to 
permit the members or any authorized staff representatives of the 
Select Committee, to inspect and copy said depositions and documents, 
whether sealed or unsealed under prior orders of this Cou-t, for use 
by the said Committee in the duties assigned to it pursuant to Senate 
Resolution 60, 

(b) That neither the parties, the deponents, their 
counsel, nor the members of the Select Committee or its agents 

shall disclose, publicize, or publicly comment upon any of the testimony 
given or documents produced subject to the seal of the Court, > i nnpt irt . 



1767 






p ,?'.rl!i'C.^a£. A'ie~£»^ '. 



yj 




Washington, B.C. 20036 
Attorney for Common Cause 



^/^ 






%t/.'iL.-^ 



Kenneth Wells Parkins on 
Jackson, Gray & Parkinson 
1828 L Street, N. W. 
Washington, D. C. 20036 
Attorney for Finance Committee to 

Re-Elect the President, 
Victory '72 Dinner Committee, 
Media Committee to Re-Elect the 

Pr esidenti 
Television Committee to Re-Elect 

the President, 
Radio Committee to Re-Elect the 

President 




'^Daniel Webster Coon 
1425 H Street, N. W. 
Washington, D. C. 20005 
Attorney for the Finance Committee 
for the Re-Election of the President 

■tjLUH T, i^wimr 72tHS/*'f »V, 



/^/i^y^'jf/C 



1735 New York Avenue, N. W. 

Washington, D. C. 

Attorney for defendant Maurice Stans 



1768 

UNITED STATES DISTRICT COURT 
for the 
DISTRICT OF COLUMBIA 



NATIONAL CITIZENS' COMMITTEE FOR 
FAIRNESS TO THE PRESIDENCY, INC. , 

618 Industrial Bank Building 

Providence, Rhode Island 

BARUQH KORFF 

Rehoboth, Massachusetts 

OLOF V. ANDERSON 

North Kingston, Rhode Island 



P. HOYT FITCH 
17 Irving Avenue 
Providence, Rhode Island 

JOSEPH E. FERNANDES 
Norton, Massachusetts 

THOMAS W, PEARLMAN 

705 Industrial Bank Building 
Providence, Rhode Island 

JOHN S. BOTTOMLY 
Cressbrook Farm 
Norfolk, Massachusetts 02056 

VS. 



Petitioners 



SENATE SELECT COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES, 

U. S. Senate Office Building 

Washington, D. C. 






1758-73 



CA No. 



SAM J. ERVIN, JR. 

U. S. Senate Office Building 
Washington, D. C. 

HOWARD H. BAKER, JR. 
U. S. Senate Office Building 
Washington, D. C. 

EDWARD J. GUERNEY 

U. S. Senate Office Building 
Washington, D. C. 

DANIEL K. INOUYE 

U. S. Senate Office Building 
Washington, D. C. 

JOSEPH M. MONTOYA 

U. S. Senate Office Building 
Washington, D. C. 



;E|z:r.L!:E D. 

^EP 14 1973 
'JAM^ F- DAVEY, Clerk 



1769 



HERMAN E. TALMADGE 
U.S. Senate Office Building 
Washington, D. C. 

LOWELL P. WEICKER.'JR. 

U. S. House of Representatives 
Washington, D. C. 

Respondents 



1758-73 

SEP 14 1973 
^AMESE. DAVEY, Clerk 



PETITION FOR DECLARATORY AND INJUNCTIVE RELIEF 

1. This petition for declaratory and injunctive relief arises under 
Senate Resolution 60 of the First Session of the Ninety-Third Congress 
and the Constitution of the United States, particularly Article I, Section 
2, Paragraph 5 thereof, and Article I, Section 3, Paragraphs 5 and 6 
thereof, and Article I, Section 8 thereof, and Article III, Section 2, 
Paragraph 3 thereof, and Article V of the Articles of Amendment 
thereof, as hereinafter more fully appears. The matter in controversy 
exceeds, exclusive of interest and costs, the sum of Ten Thousand 
($10,000.00) Dollars. This Court has jurisdiction of this action under 
28 U.S. C. § 1331, 1343(4), and 2201 and 2202. 

Parties 

2. Petitioner National Citizens' Committee For Fairness To The 



Page 1 



1770 



Presidency, Inc. (hereinafter at times referred to as The Fairness 

Committee) is a non-profit, non-partisan corporation organized under 

l' and chartered by the laws of the State of Rliode Island to educate the 

i: public to United States traditional and consrimtional processes and 

procedures intended to assure fairness to all United States citizens, 

to inculcate justice and patriotism, and to advance and promote civic, 

charitable, educational, constitutional, non-profit causes, and to taVe 

any and all lawful actions to implement and support those general 

purposes. The first meeting of the incorporators of the Fairness 

Committee was held on July 27, 1973. The Fairness Committee. now 

has more than sixteen thousand (16,000) sponsor-members and in excess 

of twenty-five thousand (25,000) supporting members. A sponsor 

member is a person who has contributed money or services to the 

Fairness Committee to pay for and promote its activities. A 

supporting member is a person who has authorized in writing the 

Fairness Committee to inform the world in such manner as it deems 

appropriate that said person supports the purposes and the activities 

of the Fairness Committee. The members of the Fairness Committee 

total more than forty thousand (40,000) as of the date of the filing 

of this petition. In accordance with its charter and by-laws the Board 

I 
of Directors of the Fairness Committee at a duly called and convened j 

meeting at which a quorum was present throughout unanimously voted | 

to authorize and direct the officers and counsel of the Fairness i 

Committee to bring this Petition for and in the name of the corporation j 

in its own right and in its capacity as a representative of its members \ 

as they are members of the classes hereinafter described. j 

3. Petitioner Baruch Korff (hereinafter referred to as KORFF) '■ 

jj is a citizen of the United States of America (hereinafter at times 

i! ' referred to as USA), resident in the Town of Rehobcth, Commonwealth 
!' Page 2 



1771 



li of Massachusetts (hereinafter referred to as MASS.). USA, and is 

|i 

j an incorporator, director and sponsor-member of the Fairness 

Committee. 

4. Petitioner Olof V. Anderson (hereinafter referred to as 
ANDERSON) is a citizen of the USA, resident ia the Town of North 
Kingston, State of Rhode Island (hereinafter referred to as RI), USA, 
and is an incorporator, director and sponsor-member of the Fairness 
Committee. 

5. Petitioner P. Hoyt Fitch (hereinafter referred to as FITCH) 
is a citizen of the USA; resident in the City of Providence, RI, USA, 
and is an incorporator, director and sponsor -member of the Fairness 
Committee. 

6. Petitioner Joseph E. Fernandes (hereinafter referred to as 
FERNANDES) is a citizen of the USA, resident in the Town of Norton, 
MASS., USA, and is an incorporator, director and sponsor -member 
of the Fairness Committee. 

7. Petitioner Thomas W. Pearlman (hereinafter referred to as 
PEARLMAN) is a citizen of the USA, resident in the City of Providence, 
RI, USA, and is an incorporator, director and sponsor-member of the 
Fairness Committee. 

8. Petitioner John S. Bottomly (hereinafter referred to 
as BOTTOMLY) is a citizen of the USA, resident in the Town of 
Norfolk, MASS,, USA, and is a sponsor-member of the Fairness 
Committee. 

9. Petitioners KORFF, ANDERSON, FITCH, FERNANDES and 
PEARLMAN, as they are officers and directors of petitioner Fairness 

Page 3 



1772 



Committee, have been informed, believe and aver that all sponsor - 
members and all supporting members of the Fairness Committee 
are citizens of the United States of America. 

10. KORFF, ANDERSON, FITCH, FERNANDES, PEARLMAN and 
BOTTOMLY petition this Honorable Court as they are members of 
that class of persons known as Citizens of The United States of 
America, for themselves, individually and collectively, for the members 
of the Fairness Committee as they are officers and directors thereof, 
and for and on behalf of all members of said class^^f persons known as 
Ujiiied El ates cit izens and by virtue thereof entitled as individuals and 
as members of said class of persons to the privileges, processes, 
protections, and rights created by and enumerated in the Constitution 

of The United States of America and by the laws duly enacted, 
executive orders duly promulgated, and judicial decisions duly 
made by the authority of said Constitution. Petitioner Fairness 
Committee and its members have a direct interest in the integrity 
and maintenance of the privileges, processes, protections and rights 
created by the United States Constitution, and in insuring compliance 
with legislation and judicial decisions enacted and made to preserve 
and protect the foregoing interests. 

11. Respondent Senate Select Committee on Presidential Campaign 

Activities was created by Senate Resolution 60, considered, amended 

and agreed to on February 7, 1973 in the Senate of the United States 

during the First Session of the Ninety-Third Congress, and has its 

usual place of business in the Senate Office Building in the District of 

Columbia. 

Page 4 



1773 



. 12. Respondent Sam J. Ervin, Jr. is a member of the 
Senate of the Ninety-Third Congress of the USA, from the State 
of North Carolina with an office in the Senate Office Building 

ij in the District of Columbia, USA, and is hereinafter referred to 

|l 

jl as Senator ERVIN. 

W 

■i 13. Respondent Howard H. Baker, Jr. is a member of the 

li 

ij Senate of the Ninety -Third Congress of the USA from the State 

li 

il of Tennessee with an office in the Senate Office Building in the 

District of Columbia, USA, and is hereinafter referred to as 

Senator BAKER. 

14. Respondent Edward J. Guerney is a member of the Senate 
of the Ninety-Third Congress of the USA from the State of Florida 
with an office in the Senate Office Building in the District of Columbia, 
USA, and is hereinafter referred to as Senator GUERNEY. 

15. Respondent Daniel K. Inouye is a member of the Senate 
of the Ninety-Third Congress of the USA from the State of Hawaii with 
an office in the Senate Office Building in the District of Columbia, 
USA, and is hereinafter referred to as Senator INOUYE. 

16. Respondent Joseph M. Montoya is a member of the Senate 
of the Ninety -Third Congress of the USA from the State of New Mexico 
with an office in the Senate Office Building in the District of Columbia, 
USA, and is hereinafter referred to as Senator MONTOYA. 

17. Respondent Herman E. Talmadge is a member of the Senate 
of the Ninety-Third Congress of the USA from the State of Georgia 
with an office in the Senate Office Building in the District of Columbia, 
USA, and is hereinafter referred to as Senator TALMADGE. 

Page 5 



34-966 O - 74 - pt. 2-36 



1774 



I 18. Respondent Lowell P. Weicker, Jr. is a mennber of the 

I 

I Senate of the Ninety-Third Congress of the USA from the State 

I of Connecticut with an office in the Senate Office Building 

! in the District of Columbia, USA, and is hereinafter referred to as 

■: Senator WEICKER. 

;• Class Actions 



j; 19. Petitioners KORFF, ANDERSON,. FITCH, FERNANDES, 

j! PEARLMAN and BOTTOMLY bring this action for declaratory and 
j injunctive relief, pursuant to Rule 23 of the Federal Rules of Civil 
Procedure, on behalf of themselves and all other members or classes 
of persons similarly situated. These classes consist of: (1) all citizens 
of The United States of America; and (2) all members of the Fairness 
Committee who are also members of the aforesaid class. Said classes 
of persons are so numerous that joinder is impractical; there are 
questions of law and fact presented herein which are .common to the 
entire classes of persons identified above; the claims of petitioners 
KORFF, ANDERSON, FITCH, FERNANDES, PEARLMAN and 
BOTTOMLY herein are typical of the claims of said classes; and said 
Petitioners will fairly and adequately protect the interests of said 
classes. The respondents herein have acted on grounds generally 
applicable to the classes, thereby making appropriate declaratory 
and injunctive relief with respect to each class as a whole. 
U.S. Senate Resolution 60, First Session, Ninety-Third Congress 

20. On February 7, 1973, the Senate of the United States 
considered, amended, and agreed to the resolution submitted by 
Senator ERVIN on February 5, 1973, being S. RES. 60, which 
is hereby incorporated by reference in this Petition and constitutes 
an integral part hereof. A copy of said S. RES. 60 is appended 
to this Petition as Attachment No. I hereto. S. RES. 60 established 
the Select Committee on Presidential Campaign Activities (hereinafter 
referred to as the Senate Select Committee). 

Page 6 



1775 



Operative Facts 

21. In accordance with the provisions of Section I (b) and 1 (c) 

of S. RES. 60 the Respondents, Senators ERVIN, BAKER, GUERNEY, 
INOUYE, MONTOYA, TALMADGE, and WEICKER, were appointed 
as members of the Senate Select Committee with Senator ERVIN 
selected Chairman and Senator BAKER vice-chairman thereof. 

22. The Select Committee has held and announced on September 

12, 1973 that it proposes to hold additional public hearings to implement 
S. RES. 60. 

23. The Select Committee established for itself as a part of its 
procedure that all witnesses required or volunteering to testify before 
the Select Committee be first interviewed by the staff of the Select 
Committee and that each member of the Select Committee be thereafter 
informed of the testimony to be given by each witness before said 
witness testified formally before the Select Committee in public or 
executive session. 

24. As a result of the operation of the procedures established 

by the Respondents for the Select Committee as outlined in Paragraph 
23. of this Petition, the Respondents knew or should have known when 
witnesses would give testimony alleging that individual citizens of the 
USA had engaged in criminal conduct. 

25. In accordance with the mandate of Section 2 of S. RES. 60, 
and the rules of the Select Committee its members have interrogated 
individual witnesses under oath in public hearings about 

a) AUedgedly criminal conduct of a witness; and 

b) Allegations of criminal conduct of persons other than 
the witness being questioned; and 

c) Allegations, circumstances, and opinions not within 
the direct personal knowledge of a witness; and 

d) Allegations of criminal conduct by persons other than 

Page 7 



1776 



the witness on the basis of information not within 
the direct, personal knowledge of the witness being 
questioned. 

26. The Respondents have admitted that the procedures and rules 
governing admission of testimony established by the Respondents for 
the Select Committee permit witnesses and may require witnesses, at 
the risk of being cited for contempt of the Senate, to testify about 

■I matters and circumstances not directly known to them, but in connec- 

i| 
il 

tion with allegations of criminal conduct by a citizen or citizens of 

the USA, other than such witnesses. 

27. The Respondents failed to establish procedures for the 
Select Committee requiring or permitting the examination under Oath 
of witnesses before the Select Committee, who in their testimony 
allege criminal conduct by a citizen or citizens of the USA, either 
by such citizen or citizens of the USA against whom such testimony 
is directed or by counsel of their choice on their behalf. 

28. Respondents have authorized and required witnesses to testify 
at public hearings of the Select Committee about matters and in 
accordance with procedures set forth in Paragraphs 23, 24, 25, 26, 
and 27 of this Petition. 

29. The public forum for the testimony described in Paragraphs 
25, 26, and 29 of this Petition has included the simultaneous, un- 
edited transmission of such testimony by television to any an all 
who may have or may have had the use of equipment capable of 
receiving and displaying the sounds and sights so transmitted. 

Page 8 



1777 



30. As a result of the operation of the procedures established 
j and practiced by the Respondents as set forth in Paragraphs 23 through 
[ 29 of this Petition, the Respondents knew or should have known that 
I the order in which witnesses testified before public hearings of the 

Select Committee would effect materially the impact ef such testimony 

I 

: on citizens of the United States of America. 

1 31. As a result of the facts, procedures, and circumstances 

i 

j set forth in Paragraphs 23 through 30 of this Petition, and the 

1 selectively prejudicial testimony knowingly elicited from some 

I witnesses by the operation thereof, the Respondents have deliberately 
I 

and inequitably disrupted the domestic tranquility of the United States 

of America by undermining the confidence of citizens of the United 

Stales in the integrity of the administration of the Department of 

Justice and the Judiciary of the Government of the United States of 

America, to the damage of all citizens of the United States of 

America, wherever situated. 

32. The manner in which the Select Committee has conducted its 
public hearings to date and its procedures, and the consequences as 
hereinabove set forth, were not necessary to and interfered with the 
proper discharge of the duty and authority of the Senate to conduct 
investigations and to hold hearings in the course of preparing and 
evaluating proposed or existing legislation. 

Cause of Action 

33. By their deliberate and coercive enforcement of the procedures 
established by them as set forth in Paragraphs 23 through 30 of this 
Petition, the Respondents have impaired and damaged the privileges, 
protections, and rights of citizens of the USA provided and quaranteed 
by the Constitution of the USA by 

a) Usurping on behalf of the Senate the power dele- 
Page 9 



1778 



gated to the House of Representatives by Article 

1, Section 2, Paragraph 5 of the Constitution of 
the USA; and by 

b) Exceeding the powers delegated to the Congress in 
Article 1, Section 8 of the Constitution of the USA; 
and by 

c) Usurping for the Senate the Judicial Power delegated 

to other divisions of government by Article II, Section 

2, Paragraph 3 of the Constitution of the USA; and by 

d) Denying to citizens of the USA the protection and 
benefits es.tablished by Article III, Section 2, Paragraph 
3 of the Constitution of the USA, thereby impeding 

the establishment of justice; and by 

e) Impairing the impartial and fair operation of Article I, 
Section 3, Paragraph 6 of the Constitution of the USA 
should the House of Representatives elect to exercise 
the power delegated to it by Article I, Section 2, 
Paragraph 5 of the Constitation of the USA; and by 

f) Nullifying the protection of rights conferred by Article 
V of the Articles of Amendment of the Constitution of 
the USA. 

34. The dimunltion or impairment or violation by the Respondents 
of any of the privileges, protections, and rights of one citizen of the 
USA established and guaranteed by the Constitution of the USA creates 
a precedent which diminishes, impairs, and damages the privileges, 
protections, and rights of any and all members of that class of 
persons known as citizens of the USA. 

Page 10 



1779 



|i 35. The conduct of some of the members and some of the staff 

|| of the Select Committee during its many televised public hearings is 

j; more repetitive and theairical than during executive sessions of the 

li 

ji Select Committee, and results in the cost of entering the substance 

of testimony in the record during public hearmgs being greatly in 

j excess of the cost of entering into the record the same substantive 

testimony in executive sessions of the Select Committee. As a result 

of the operation the announced procedures of the Select Committee 

set forth in Paragraph 23 hereinabove, substantive testimony in public 

hearings is in most cases a duplication of previous statements in 

closed sessions or to members of the staff of the Select Committee. 

The cost of operating the Select Committee is paid from the Treasury 

of the United States at the expense of citizens of the USA. 

Absence or Inadequacy of Other Remedies 

36. Respondents had the power and knowledge to establish the 
order in which witnesses have testified so as to minimize the results 
described in Paragraph 31 of this Petition. Respondents had the power 
to call Assistant Attorney General Henry Peterson as its first witness. 
Respondents did not so exercise their power to the damage of Petitioners 
and all other members of that class known as citizens of the United 
States. Petitioners therefore believe and aver that neither they nor 
other citizens of the USA have a legislative remedy a yailable to 
prevent further damages arising from the procedures adopted and 
employed by the Respondents as the Select Committee. 

37. Petitioners have no adequate remedy at law. 
Page 11 



1780 



;! 38. Continuance by the Respondents of the procedures and conduct 

■i 

!l hereinabove set forth will cause irreparable damage to the constitutional 

ji 

.j rights and privileges of the Petitioners and all persons in that class 

It known as citizens of the USA. 

i: 

!■ Pravers For Relief 

!| i. 

i! WHEREFORE, your Petitioners pray that this Honorable Court 

I! 

1. Enjoin Respondents until further order of this Court 

from holding any public hearings of the Select Committee 

on Presidential Campaign Activities established by S. RES. 60 

of the First Session of the Ninety-Third Congress; and 

2. Enjoin the Respondents until further order of this Court 
from conducting any public hearings of the Select Committee 

on Presidential Campaign Activities established by S. RES. 60 

ji 

!j of the First Session of the Ninety-Third Congress if the 

!l Respondents or members of their staff know or have reasonable 

il 

i cause to suspect that the testimony of a witness ordered 

ji 

i or volunteering to appear before the Select Committee may 

i| include matters about which the witness has no direct know- 

! ledge; and 

I 

i' 3. Enjoin the Respondents until further order of this Court from 

II 

li conducting any public hearings of the Select Committee on 

j! 

]! Presidential Activities established by S. RES. 60 of the First 

jl Session of the Ninety -Third Congress if the Respondents or 

ij members of their staffs know or have reasonable cause to 

w 

l; 

■A suspect that the testimony of a witness ordered or volunteering^ 

\\ 

j; to appear before the Select Committee may include allegations 

ii 

|: Page 12 



1781 

of criminal acts by a specific person or persons of which 
such person or persons have not been convicted by a duly 
constituted Court of Law in conformity with the provisions 
of the Constitution of the USA or any State of competent 



i jurisdiction; and 

i 



4. Enjoin the Respondents until farther order of this 
Court as they are members of the Select Committee on 
Presidential Campaign Activities established by S. RES. 60 
of the First Session of the Ninety-Third Congress from 
ordering or peirmitting any witness to testify before them in 
public hearing about allegations of criminal conduct by a 
person other than said witness without giving reasonable 
prior notice to such person about whom such allegations 
are expected to be made, or about whom Respondents have 
reasonable grounds to suspect may be made; and 

5. Enjoin the Respondents until further order of this Court 
as they are members of the Select Committee on Presidential 
Campaign Activities established by S. RES. 60 of the First 
Session of the Ninety-Third Congress from ordering or per- j 

mitting any witness to testify before them in public hearing j 

I 
about allegations of criminal conduct by a person other than j 

such witness without authorizing Immediate cross-examination | 

of such witness by an attorney-at-law designated by such j 

i 
person about whom such allegations are expected to be made | 

I 
or about whom Respondents have reasonable cause to suspect 

may be made; and 

Page 13 



1782 



6. Order speedy completion of the pleadings in this action; and 

7. Designate an early date for oral argument and submission 
of written briefs by the parties hereto; and 

8. Declare null and void Section 2 of S. RES. 60 of the First 
Session of the Ninety-Third Congress as it exceeds the 
authority of the Congress at set forth in Article I, Section 
8 of the Constitution of the United States of America in that 
it directs a Committee of the Senate ". . . to reveal the 
full facts in respect to . . . " specific criminal conduct 

by particular individuals. 

9. Declare null and void Section 2 of S. RES. 60 of the 
First Session of the Ninety-Third Congress as being in 
violation of Article III, Section 2, Paragraph 3 of the 
Constitution of the United States of America in that said 
Section 2 of S. RES. 60 directs a Committee of the Senate 

to exercise a Judicial power as set forth in said Paragraph of 
said Constitution by revealing the ". . . full facts in respect 
to . . . " specific criminal conduct by particular individuals. 

10. Declaie mil and void Section 2 of S. RES. 60 of the First 
Session of the Ninety-Third Congress in that it violates Article 
V of the Articles of Amendment to the Constitution of the 
United States by directing a Committee of the Senate 

". . . to reveal the full facts in respect to . . . " 
specific criminal conduct by particular individuals without 

Page 14 



1783 



due process of .law. 



NATIONAL CITIZENS' COMMITTEE FOR 
FAIRNESS TO THE PRESIDENCY. INC. , 
BARUCH KORFF, OLOF V. ANDERSON, 
P. HOYT FITCH, JOSEPH E. 
FERNANDES, THOMAS W. PEARLMAN, 
JOHN S. BOTTOM LY 

By their Attorneys: 

''I n / // -J /J 



John S. Bottomly Z' 

Steph^ Leonard " ' *^ 



VERIFICATION OF PETITION ^ '^Cf^ ^ X, C - 

The undersigned attorney for petitioners hereby swears that he is 
familiar with the subject of the petition in this action, that he had read 
the foregoing petition, and that, to the best of his knowledge, the 
factual allegations contained therein are true and correct. 

a/ '' 



/(^/^f.^J(/r ./C^T^C^^-^ 



JOHN S. BOTTOMLY 7 

Attorney for Petitioners / ,.""""."."'""., 

Sworn to before me this I^AM- d ay of September, 1973. /^. "^ 



My commission expires 




1784 



UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 



•NATIONAL CITIZENS' COMMITTEE FOR 

I FAIRNESS TO THE PRESIDENCY, INC. 

; BARUCH KORFF 

: OLOV V. ANDERSON 

■ P. HOYT FITCH 
JOSEPH E. FERNANDES 

■ THOMAS W . PEARLMAN 
JOHN S. BOTTOMLY 



1758-73 



Patitioners CA NO. 



|; SENATE SELECT COMMITTEE ON PRESIDENTIAL 

i; CAMPAIGN ACTIVITIES : 

ll SAi'I J. ERVIN, JR. 

i' HOWARD H. BAKER, JR. : 

!; EDWARD J. GUERNEY 

|: DANIEL K. INOUYE ' : 

jl JOSEPH M. MONTOYA SEP 14 197'? 

i HERMAN E. TALMADGE, and : 



LOWELL P. WEICKER, JR. 

Respondents 



SEP 14 1973 
^AMcS F. DAVEY, Clerk" 



;■ MOTION FOR PRELIMINARY INJUNCTION 

jl 

|i and for 

jl 

ii EARLY HEARING ON THE MERITS 

ii 

i: 

J! 

li 1. Petitioners move this Court to issue a preliminary 

ii 

ij injunction pursuant to rule 65 of the Rules of Civil Procedure 
,1 for the United States District Courts, and in support thereof 

Ii states : 

ii 

ii (a) Petitioners file herewith a verified pct- 

i! ition for Preliminary Injunction and for other relief, as well 



1785 



as a Memorandum of Points and Authorities in support of this 
Motion. 

{b)A copy of all papers filed herein have been 
served upon Respondents, Senate Select Committee on Presidential j 
Campaign Activities, Sam J. Ervin, Jr., Howard H. Baker, Jr., 
Edward J. Guerney, Daniel K. Inouye, Joseph M. Montoya, Herman E. i 
Talmadge, and Lowell P. Weicker, Jr. ] 

(c) As stated in the verified Petition, Respon- 
dents intend to hold public hearings of the Senate Select Committee 
on Presidential Campaign Activities in contravention of said Pre- 

I liminary Injunction, beginning again on September 24, 1973. 

j (d) As further indicated in the said verified 

Petition, immediate and irreparable injury, loss and harm will 

I 

I thereby result to Petitioners and the ends of justice will be 

I subverted before trial of this action can be had, unless a pre- 

I liminary injunction order is entered against the Respondents. 

i (2) The issuance of a Preliminary Injunction will not 

[adversely affect the legitimate interests of the Respondents. 

I (3) Petitioners herein, by their attorneys, further 

I 

'move this Court for an order setting a hearing on Petitioners' 

i 

I request for a Declaratory Judgment and Permanent Injunction at 

I 

I the earliest practicable date on the grounds that expedition will 

reduce cost, delay and will avoid permanent and irreparable 



1786 



injury to Petitioners. 

WHEREFORE, Petitioners pray the Court: 

(a) To enter an Order in accordance with the 
Preliminar-/ Injunctions actached hereto as Exhibits "A" through 
"E" and containing such other provisions as justice may require, 
and 

(b) To grant Petitioners such other and further 
relief as justice may require. 




/ John S . Bottoitiiy ~/ 



Stephen Leonard 
Federal Bar Building 
1815 "H" Street, N W. 
Washington, D. C. 20006 
(202) 393-1565 



1787 



UNITED STATES DISTRICT COURT 
For The 
DISTRICT OF COLUMBIA 



NATIONAL CITIZENS' COMMITTEE 

FOR FAIRNESS TO THE PRESIDENCY, INC. 

ET AL 

Petitioners 



VS. 



SENATE SELECT COMMITTEE ON 
PRESIDENTIAL CAMPAIGN PRACTISES ET AL 



Respondents 



1758-73 



CA No. 



MEMORANDUM IN SUPPORT OF MOTION OF PETITIONERS 



FOR A PRELIMINARY INJUNCTION 



EmuZEZJZ 

SEP 14 1973 
liAMES E^DAVEY, Clerk 



1788 



CONTENTS 



i Page 

jj I Facts — f- 
!! 

II Necessity of Expeditious Relief to Avoid 2 
Irreparable Harm 

III The Relief Requested Will Not Unduly Burden 3 
Respondents 

IV The Petitioners Have Standing 4 
to Bring This Action 

V Conclusion c 



1789 



j! Petitioners herein, by their attorneys, state in support of 

ll . ■ - 

i| their motion for a Preliminary Injunction, 
li 

ii 

Ij I. FACTS 

|! This action was filed on Friday, September U, 1973 by 

\\ Petitioners as mdividual persons and as representatives of a class 

;; consisting of citizens of the United States of America. The Petition 

|i was filed in response to the announcement on September 12, 1973 

ji of early resumption of public hearings on September 24, 1973 by the 

Senate Select Committee on Presidential Campaign Practises hereinafter 

referred to as Select Committee created on February 7, 1973 by 

Senate Resolution No. 60 of the First Session of the Ninety -Third 

Congress. Petitioners assert that said Senate Resolution No. 60 does 

not conform to the requirements of the United States Constitution. In 

addition and perhaps of more immediate concern are the practises 

and procedures of the Select Committee evidenced by its previous 

'I 

: public hearings. The operation of tliCO'i procedures has resulted 

j in the Respondents knowing prior to its public hearings the testimony 

i 

I to be given by a witness at such hearings. The Respondents have 

i 

] admitted that notwithstanding such advance knowledge they have permitted 
I and required witnesses to testify in public hearings about 

a) Alleged criminal conduct of a witness; and 
; b) Allegations of criminal conduct of persons other than 

• the witness; and 

I 

c) Allegations, circumstances, and opinions not within the 

direct personal knowledge of a witness; and 

d) Allegations of criminal conduct by persons other tlian 
the witness on the basis of information not within the 
direct, personal knowledge of the witness. 

Page 1 



34-966 O - 74 - pt. 2-37 



1790 

I Respondents have failed to establish procedures permitting examination 
; under oath of witnesses before the Select Committee who allege 

l! 

\. criminal conduct by persons other than the witness, either by such 
j; ochc-r persons against vhom such testimony is directed or by counsel 
:;' of chair choice on their behalf. The previous public hearings of the 
j: Select Committee have been televised in whole or in part on one or 
more national television networks. The deliberate enforcement of the 
procedures of the Select Committee has impaired and damaged the 
privileges, protections and rights of citizens of the United States 
provided and guaranteed by Articles I and III of the United States 
Constitution and Article V of the Amendments thereof. 

The public hearings to date of the Select Committee have included 
frequent repetition by various Respondents of questions previously asked 
of the same witness, often with considerable attendant theatrics, so that 
the cost of obtaining information through public hearings is substantially 
greater than if it were gathered by staff interviews or in closed sessions 

II. NECESSITY OF EXPEDITIOUS RELIEF TO 

AVOID IRREPARABLE HARM 



Petitioners and all members of the classes they represent 
will suffer irreparable injury if this Court does not expeditiously grant 
the Motion of Petitioners for a Preliminary Injunction. 

The further dimunition or impairment or violation of any of 
the privileges, protections and rights of one citizen of the United States, 
established and guaranteed by the United States Constitution, creates 
Page 2 



1791 



li a precedent which diminishes, impairs, and damages the privileges, i 

f I 

i protections, and rights of all citizens. ! 

;; ■ 1 

jl The purpose of Congressional hearings is to obtain information j 

l| " I 

!■ to help the Congress evaluate existing and proposed legislation. That I 

ji function must not be impaired. However, it also must not be allowed i 

i; I 

to, and indeed it need not, subvert clear language of the Constitution j 

|i I 

:! establishing procedures for impeachment and separation of powers. Nor 

j! I 

ji should it override or ignore the rights of individual citizens. Aduevemerjt 

Ij of the purposes of the Congressional power to investigate does not 

require it to avoid clear language of the Constitution or deny any 

individual the protection of Constitutional rights. Yet the record of 

public hearings to date of the Select Committee contains many examples 

of such consequences resultmg from the manner in which the 

Respondents conduct those hearings. There has been no indication 

by Respondents that they have or intend to change those procedures 

which governed their prior public hearings. There is therefore every 

reason to believe that Respondents will continue to ignore certain 

Constitutional provisions and to transgress upon and irreparably damage 

the Constitutional rights of more citizens of the United States before 

an audience of millions of people who have not been and cannot 
li 
il be fully informed about all material and relevsmt facts. 

ji 

|i III. THE RELIEF REQUESTED WILL NOT UNDULY BURDEN 

I; THE RESPONDENTS 

If this Court enters Orders granting requests of the Petitioners 

the substantive work of the Select Committee will not be impaired. In 

Page 3 



1792 



ji fact the elimination of public hearings will expedite the work of the 

'i Select Committee and reduce the cost thereof to the taxpayers by 

j! 

;! eliminating repetitive and histrionic questioning and duolicate entries 

j; of the snme substantive 'es"'monv into the 'ecords of rhe SeleC" Committed 

, In an interview bv Reporter Leslie Stahl of CBS Television News 

broadcast during the evening of September 12, 1973, Respondent Senator 

ji Guerney of Florida said in substance that the Select Committee could 

p garner enough knowledge and facts from closed hearings and staff 

j: interviews to write the report required of the Select Committee. 

IV. THE PETITIONERS HAVE STANDING TO 

BRING THIS ACTION 

Article III of the United States Constitution provides that 
Federal Constitutional Courts may only resolve questions arising 
from "cases" or "controversies. " In order for a dispute to be 
justiciable by Federal Courts, the party who initiates the action must 
have "standing to sue." (See Flast v. Cohen , 392 U.S. 83 (1968). 

"The fundamental aspect of standing is that it focuses on the party 
seeking to get his complaint before a Federal Court and not on the 
issues he wishes to have adjudicated. The 'gist of the question of 
standing' is whether the party seeking relief has 'alleged such a 
personal stake in the outcome of the controversy as to assure that 
concrete adverseness which sharpens the presentation of issues'" upon 
which the court must rely for ohe illumination of difficult questions. 
Id. , at 99. 

Page 4 



1793 

!J Alt±iOugh the Court in Flast drew the distinction between the 

J! 

J! capacity of a particular party to request an adjudication of an issue 

i! 

Ij and the capacity of the Court to adjudicate the issue itself, the court 

il has more recently hedged a bit from this position - over the dissent 
I; 

I' of Justice Brennan.^/ In Association of Data Processing Service 

]■ Organizations, Inc., et al v. Camp , at al, 397 U.S. 150 (1970), 

ij 

{i the Court held that in order for a plaintiff to have standing to sue it 

ii 

must be alleged that the plaintiff has suffered "an injury in fact" 

and that such injury must have arguably occurred within the "zone 

on interests" which the statute or regulation in question was designed 

to protect. Id. , at 152-153. 

In a recent decision concerning standing, the Supreme Court 
dealt with the question of what must be "alleged by persons who claim 
injury of a non-economic nature to interests that are widely shared. " 
In Sierra Club v. Morton , 92 S. Ct. 1361 (1972), the Court reaffirmed 
two trends in the law of standing. First, it restated that injuries 
other than economic harm are sufficient to form the basis for a 
party's standing to seek redress for such injury in Federal Court. 
Id. , at 1367-1368. Second, it reaffirmed that "an organization whose 
members are injured may represent those members in a proceeding 
for judicial review. Id. , at 1368l 

See also Common Cause et al v. Finance Committee to Re-elect 



! the President et al, USDC (D of C) CA No. 1780-72. 



Justice Brennan argued in his dissent to Data Processing 
that the plaintiff need only meet the first test in order 
to have standing under Flast. Determination of whether 
the second test had been met, in Brennan's view, went 
to the merits of the case, and should therefore be post- 
poned until all threshold questions had been resolved. 
Id. , at 167-169 



Page 5 



1794 



j The members of the Fairness Committee and citizens of the 

Ij United States have suffered an "injury in fact" and such injury has 

|! occurred within ttie "zone of interest" which the Constitution and Title 

ii 

li 28. Section 1343(4) of the United States Code were designed to protect. 

i' Both standards of Association of Data Processing Service Organizations, 

i! 

j Inc. ei al v. Camp et al . 397 U.S. 150 (1970) are satisfied in the present 
case. 

The purposes of 28 USC §1343(4) and the meaning of "due pro- 
cess" as it has evolved from Article V of the Articles of Amendment, 
U.S Constitution are manifold. The intent of Article III, Section 2, 
Paragraph 3 of the U.S. Constitution manifestly is to provide definite 
i procedural protections to individuals during "... a complete investiga- 
tion and study of the activities of any and all persons or groups of 
j persons or organizations of any kind which have any tendence to reveal 
j the full facts in respect to. . . " jS. RES. 60, First Session, 93D 
Congress, February 7, 1973, page 3, Sec. 2, lines 18 through 2lj the 
crimes listed in Sec. 2 of S. RES. 60, Id . 

Respondents have violated the Constitutional and statutory rights 
of Petitioners and members of the class they represent by their refusal 
and failure to establish procedures guaranteeing to witnesses testifying 
before them about alleged criminal conduct or to persons about whom 
ii testimony of alleged criminal conduct is given to Respondents by others 
in public hearings the same privileges, protections and rights afforded 
by the Federal Courts, including, but not limited to confrontation by 
an accused of an accuser, cross-examination of an accuser by an accuse 
and the exclusion of public testimony by a witness about matters not 
within the direct personal knowledge of the witness, and the exclusion 
of motion picture, still and television cameras during any such 
hearings. 

Page 6 



I 



1795 



{ Petitioners and every member of the class they represent 

\\ are threatened with injury in fact because if Respondents continue 

!j to conduct public hearings as they have in the past without the 

!; procedural and evidentiary protections afforded by judicial proceedings 

I any and all Committees of Congress can at any time violate the 

Ij Constitutional and Statutory rights of any citizen of the United States 

without recourse. 

!i 

Absent resolute and definitive action by this Court by granting 

the Motion of Petitioners for Preliminary Injunctions the rights, 

privileges and reputation of any member of that class made up of 

citizens of the United States can and may be destroyed at the whim 

of a majority vote of Respondents without prior notice or any means 

for effective refutation or defense. 

Petitioners Fairness Committee, Korff, Anderson, Fitch, 

Fernandes, Pearlman and Bottomly do not fall within the pitfall of 

the Sierra Club majority opinion because the gravamen of their 

complaint is the injury to the membership of the Fairness Committee 

and to the class of persons represented by the other individual 

Petitioners. The "personal stake in the outcome" test of Flast v. 

ji Cohen , the "zone of interest" standard of Data Processing, and the 

;' Sierra Club test of suffering an injury in fact having all been met the 

j: Petitioners have standing to maintain this action. See also Common 

I Cause et al v. Democratic National Committee et al , 333 F. Supp. 

j 803 (D. C. D. C. 1971) and Common Cause et al v. Finance Committee 

I: 

!: to Re-Elect the President et al. (D. CD. C. Civil Action No. 1780-72) 

i 

i Page 7 



1796 



V. CONCLUSION 

For all of the foregoing reasons Petitioners respectfully 
request that the Court issue: 

(A) The Preliminary Injunctions restraining the Respondents, 
their agents, employees, and all others in active concert 
with them from doing or performing any or all of the 
following acts: 

(1) Holding any public hearings of the Select Committee 
on Presidential Campaign Activities established by 
Senate Resolution 60 of the First Session of the 
Ninety-Third Congress; and 

(2) Holding, conducting, causing to be held and/or 

conducted any public hearings of the Select Committee 

on Presidential Campaign Activities established by 

Senate Resolution 60 of the First Session of the 

Ninety-Third Congress when and if the Respondents 

or their agents, servants, employees, attorneys 

and/or other persons in active concert or participation 

with said Respondents know or have reasonable cause 

i to suspect that the testimony of a witness ordered 

p 

}l or volunteering to appear before the Select Committee 

li 

jl may include matters about which the witness has no 

ij 

j direct knowledge; and 

i 
i 

! 

j Page 8 



1797 



(3) Conducting any public hearings of the Select 
Committee on Presidential Campaign Activities 
i| established by Senate Resolc:ion 60 of the First 

ij Session of the Ninety -Third Congress if the Re- 

Ij spondentt, vt any of them, tiieir agents, servants, 

i'i 

jj employees, attorneys, and/or other persons in 

I 

jl active concert or participation with said Respondents 

'i 

know or have reasonable cause to: suspect that the 
testimony of a witness ordered or volunteering to 
appear before the Select Committee may include 
allegations of criminal acts by a specific person 
or persons of which such person or persons have 
not been convicted by a duly constituted Court of 
Law in conformity with the provisions of the 
Constitution of the United States of America or 
of any State of competent jurisdiction; and 
(4) Ordering or permitting any witness to testify before 
said Respondents in public hearing about allegations 
of criminal conduct by a person other than such 
witness without authorizing immediate cross-examina- 
tion of such witness by an attorney-at-law designated 
by such person about whom such allegations are 
expected to be made or about whom Respondents havei 
reasonable cause to suspect may be made; and 
Page 9 



1798 

(5) Ordering, causing to be ordered, permitting or 
causing to be permitted any witness to or from 
testifying before said Respondents in public hearing 
about allegations of criminal conduct by a person 
othfc-r than said witness without giving reasonable 
prior notice to such person about whom such alle- 
gacioas are expected to be made, or about whom 
Respondents have reasonable grounds to suspect 
may be made; and 
(B) An Order setting a hearing on request of Petitioners for 
declaratory judgment and permanent injunctions at the 
earliest, practicable date. 

Respectfully submitted, 

John S. Bottom ly / 

/ Bottomly Office 
^ Box 301 

Millis, Massachusetts 02054 



^tepi^en Leonard 
ISTH 



< 



ISl^H Street, N. W. 
Washington, D. C. 20006 



Page 10 



1799 



CIVIL SUPPOENA 



Hmt^b ^tat^s iBietrict Court 

for the 

iSiatrtct of (Eoluuibia 

NATIONAL CITIZENS' COMMITTEE FOR 

" Piaintig.' 

SENATE SELECT '«^- COMMITTEE ON PT^.RSI- Civil Action No. .. .17=^8.- 73. 
DENTIAL CAMPAIGN ACTIVITIES, et al 



Defindant. 

To: __Senate_SelectCornrnittee_ on Presidential Campaign Activities 
(serve Hon. Sanri J^ Ervin, Jr. , Chairman) 

You Are Hereby Commanded to appear in (thi.s court) (8^8}ffi&85& 



20th 



day of September 



to give testimony in the above-entitled cause on the 

at --?.*J?.y o'clock P:- m. (and bring with you) .. 

See Attachment hereto which is made a.part_hereof 



7.3 



and do not depart without leave. 



September 18, 1973 



ROBERT M. STEARNS, Clerk 



Deputy Clerk. 



Date. 
Step hen Leo nard, Fe deral _Ba^_B_ld£, 

1815 "H" St. TN. Wuon^ey for " '^l^!'"'/- 

Washington, D. C. < fytf^t^t.- 

20006 RETURN ON SERVICE 

Tel. (202) 393-156,5 

Summoned the above-named witness by delivering a copy to h and tendering to h the fees 

for one day's attendance and mileage allowed by law, on the day of , 

19 , at - - - 

Dated 



Subscribed and sworn to before me, a 
, 19 



this 



day of 



Note. — Affidavit rcquirej only if service is made by a person other than a U. S. Marshal or his deputy. 



1800 



CIVIL SL^POENA - L'NITED STATES DISTRICT COLTRT FOR THE DISt-RICT OF 

COLL'N'BIA 

ATTACHMENT TO: 

NATIONAL CITIZENS' COMMITTEE FOR 
FAIRNESS TO THE PRESIDENCY, INC. , et al 



CIVIL ACTION NO. T^S - 73 



SENATE SELECT COMMITTEE ON 
PRESIDENTIAL ACTIVITIES, et al 

(aFj bring with you) 

1. Any and all records, memoranda and transcripts of conferences and discussions 
(rormal and informal) and testimony relating to deliberations, considerations, discussions 
and determinations by Defendant Committee regarding proceedures to be employed by 
Defendant Committee pursuant to Title 2 United States Code, Sec. 190 a-1. and in 
particular Title 2 United States Code, Sec. 190 a -1(b). 

2. A copy of the written statement of proposed testimony of John W. Dean III filed 
with the Clerk of Defendant Committee and the digest thereof prepared by the staff of 
Defendant Committee pursuant to Title 2 United States Code, Sec. 1^0 a-1. (c). 

3. Any and all records, memoranda and transcripts of conferences and discussions 
(formal and informal) and testimony relating to deliberations, considerations, discussions 
and determinations by Defendant Committee and its members and others: 

(a) relating to or concerning the relationship between the House of 
Representatives and the Senate regarding the sole power delegated to 
the House of Representatives for impeachment granted by Article I. 
Section 2 of the Constitution and the sole powers granted to the Senate 
pursuant to Article I, Section 3 of said Constitution, 

(b) relative to the relationship of the proceedings of the Defendant Committee 
and the Judicial Branch of the United States of .^merica concerning the 
possible interference of proceedings of the Defendant Committee with 
Article III. Section 2 of the Constitution of the United States, and 

(c) providing for the protection of the rights of witnesses and any other 
persons under due process of law as set forth in Article .^ of the 
Articles in .Addition to and Amendment of the Constitution of the 
United States of America. 



1801 



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1802 



THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



NATIONAL CITIZENS' COMMITTEE FOR 
FAIRNESS TO THE PRESIDENCY, INC^.et al 

Plaintiffs 



SENATE SELECT COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES, et al 

Defendants 




Civil Action 
No. 1758-73 



MOTION TO POSTPONE RESPONSE TO SUBPENA 

Defendant Select Committee, by its attorneys, hereby moves 
the Court to postpone defendant's response to the subpena of plaintiff dated 
September 18, 1973, until October 19, 1973. The reasons for this motion are 
set out in the accompanying Memorandum in Support of Motion To Postpone 
Response to Subpena. 

Respectfully submitted. 



Sherman Cohn 
Eugene Gressman 
Jerome A. Barron 

Washington, D. C. 
of Counsel 

Arthur S. Miller 

Chief Consultant to 
the Select Committef 

of Coons el 



Samuel Dash 

Chief Counsel 

Fred D. Thon-ipson 
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 Coxinsel 

Ronald D. Rotunda 
Assistant Counsel 

United States Senate 
Washington, D. C. 20510 
Telephone Number 225-0531 
Attorneys for Plaintiffs 



1803 



THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



NATIONAL CITIZENS' COMMITTEE FOR 
FAIRNESS TO THE PRESIDENCY, INC. , et al 

Plaintiffs 



SENATE SELECT COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES, et al 

Defendants 



Civil Action 
No. 1758-73 



MEMORANDUM IN SUPPORT OF MOTION 
TO POSTPONE RESPONSE TO SUBPENA 



On September 19, 1973, only two days after defendant Select 
Committee was served with the complaint in this case, plaintiff served a 
subpena on the Select Committee that, on its face, seeks both testimony and 
the production of records. The present motion asks for postponement of 
defendant's response to this subpena until October 18, 1973. 

The Select Comnnittee and the seven Senator defendants in this 
case will file tomorrow, September 21, a motion to dismiss this case. We 
hope this motion can be resolved before the date we have suggested for 
response to this subpena, October 19, 1973. If the motion is resolved in 

defendants' favor --- as we have every reason to believe it will be 

response will not be required. 

In any event, postponing response to October 19 will give 
defendant adequate time to determine how to respond. A 30 day extension 
is hardly an unreasonable request. This subpena principally seeks the 
production of certain records assertedly held by the Select Connmittee, 



1804 



The normal method for production of such docunnents would be to serve a 
request to produce under Rule 34 on defendant. Under that rule a 
defendant usually has 30 days from the request to respond, but need not 
respond until 45 days from service of the complaint has elapsed. The use 
of Rule 45 in this case to avoid the timing provisions of 34 is improper. 
We do not insist on the 45 days from service of the complaint allowed 
defendant by Rule 34, but do feel that a 30 day period to October 19 



is appropriate and fair.— 



Respectfully submitted. 



Sherman Cohn 
Eugene Gressman 
Jerome A, Barron 

Washington, D, C, 
of Counsel 

Arthur S. Miller 

Chief Consultant to 
the Select Committee 

of Counsel 



Samuel Das^ 

Chief Counsel 

Fr«d D. Thompson 
Minority Counsel 

Rufus Edmisten 
Deputy Counsel 

James Hamilton 

Assistant Chief Counsel 

Richard B. Stewart 
Srpecial Counsel 

Donald S, Burris 

Assistant Counsel 

William T. Mayton 
Assistant Counsel 

Ronald D, Rotunda 
Assistant Counsel 

United States Senate 
Washington, D. C. 20510 
Telephone Nun-iber 225-0531 

Attorneys for Plaintiffs 



*/ The subpena also asks for defendant "to give testimony". This request, 
in effect, is a notice of deposition. The taking of depositions is governed by 
Rule 30, which provides that a defendant cannot be served with a notice of 
d«position until 30 days after the service of the complaint. This time, of 
course, has not elapsed. Moreover, Ru.e 30 also states that "reasonable 
notice of a deposition" shall be given. Local Rule l-l6(b) instructs that five 
daya constitutes reasonable notice. Thus the subpena we received on 
September 19 asking for testimony on September 20 does not provide 
reasonable notice. 



1805 



Civil Action 
No. 1758-73 



THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



NATIONAL CITIZENS' COMh^TTEE FOR 
FAIRNESS TO THE PRESIDENCY, INC ,et al 

Plaintiffs 



SENATE SELECT COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES, et al 

Defendants 



ORDER 

This matter having come before the Court on defendant Select 
Committee's motion to postpone response to plaintiffs' subpena dated 

September 18, 1973, until October 19, 1973, it is hereby this 

day of September, 1973, 

ORDERED that defendant's motion be and is granted and that 
defendant need not respond to said subpena until October 19, 1973. 



June L.Green 
United States 
District Judge 



34-966 O - 74 - pt. 2-38 



1806 



1 

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UNITED STATES DISTRICT COURT 

FOR THE 

DISTRICT OF COLUMBIA 



K'ATIOMAL CITIZENS' COMMITTEE FOR 
FAIRNESS TO THE PRESIDENCY, INC. et. al, 



CA No. 1758-73 



SENATE SELECT CO:C-nTTEE ON 

PRESIDENTIAL C.'\MPAIGN ACTIVITIES et. al. 



MEMORANDUM IN OPPOSITION TO MOTION OF 
DEFENDANT TO POSTPONE RESPONSE TO SUEPENA 

The Senate Select Committee on Presidential Campaign 
Activities (Senate Select Committee) announced on September 
12, 1973 that it would resume public hearings on September 
24, 1973. 

The Petition in this action was filed in the morning of 
September 14, 1973. During the early afternoon of that day the 
the Clerk of the Court informed counsel for the Petitioners 
that the Chief Judge of the United States District Court for 
the District of Columbia (U. S . D. C. D. C. ) had previously issued 
a general instruction that he wished to examine any initial 
pleadings in cases arising from the hearings or activities of 
the Senate Select Committee. During the same conversation the 
Cleric of Court also informed counsel for the Petitioners that 
Chief Judge Sirica would not be able to examine the initial 



1807 



pleadings in this case until Monday, September 17, 1973 at the 
earliest. 

In response to inquiry on Tuesday, September 18, 1973 
counsel for Petitioners were informed by the Clerk of Court 
that this case had been assigned to the Honorable June L. Greer 
Contact was made as soon as possible with the Clerk for Judge 
Green. In due course counsel for Petitioners were informed 
orally that the hearing on their Motion for Preliminary Injunc- 
tionhad been set for 3:00 p.m., Thursday, September 20, 1973. 
Counsel for Petitioners immediately caused to be issued and 
served on Respondents Senate Select Committee and the Honorable 
Sam J. Ervin, Jr., Chairman the Subpena response to which 
Ei-spondents have moved to postpone. The Subpena was dated 
September 18, 1973 and was returnable at 2:30 p.m., Thursday, 
September 20, 1973, that is thirty minutes before the hour when 
counsel for Petitioners, at the time the Subpena was issued, 
believed their Motion for Preliminary Injunction was to be 
heard. 

The Subpena was issued under Rule 45(a) and 45(b) and 
45(e). It is essential to a full and fair hearing on the 
Motion of Petitioners for Preliminary Injunctions that the 
documents requested in the September 18, 1973 Subpena and that 
a Respondent able to testify about the contents and authent ici tjy 
thereof be available to the court and to the Petitioners at 
that time. Trial of an issue of fact necessitates opportunity 



1808 



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Injunction had been postponed to 2:00 prra. , Friday, September 
21, 1973. On the same day counsel for Petitioners were served 
with the Motion against the allowance of which this memorandum 
is directed and were informed that Respondents will file a 
Motion to Dismiss on Friday, September 21, 1973 for argument a 
2:00 p-.m. on that day. 

Not withstanding the validity and continuing force of th<: 
September 18, 1973 Subpena, hereinabove described, counsel for 
Petitioners have caused to be issued and served on Respondents 
Senate Select Committee and Hon. Sam J. Ervin, Jr. , Chairman 
an identical Subpena except that it is returnable at 1:30 p.m., 
friday, September 21, 1973. With the service of this Subpena, 
as was the case when the September 18, 1973 Subpena was served, 
Petitioners caused Respondent Ervin to be paid the witness fees 
and mileage required by Rule 45(c), 

The Memorandum in Support of Motion to Postpone Response 
to Subpena (Respondent Memorandum) submitted by Respondents 
asserts that Petitioners must rely on Rule 34 for the productioh 
of documents. In effect Respondents argue that Rule 45(e)(1) i 
a nullity, and that it is not available to Petitioners. 

Respondent Memorandum also incorrectly asserts that 

Petitioners caused the September 18, 1973 Subpena to issue only 

I 

jto circumvent the Rules governing discovery by deposition. 

Had discovery and production of documents under Rule 34 

been the intent of Petitioners they wiould have filed a Motion 



1809 



1 for Early Discovery. 

2 Respondent Memorandum states: "In any event, postponing 

3 response to October 19 will give defendant adequate time to de- 

4 termine how to respond." During the afternoon of Wednesday, 

5 September 19, 1973 counsel for Respondents informed counsel for 

6 Petitioners that they would file a Motion to Quash the Subpena 

7 on the ground that the information, records and documents re-. 

8 quested are "confidential". Disallowance of the Motion to ' 

9 Postpone Response to Subpena will not deprive Respondents of 

10 the right to file and Motion to Quash the Subpena under Rule 

11 45(b). 

12 It is also appropriate to note that some published reports 

13 have indicated that the Respondent Senate Select Committee may 

14 well expect and hope to make this action meet on or before 

15 October 19, 1973 at least insofar as it seeks to enjoin public 

16 hearings by the Senate Select Committee. 

17 Production of the documents required by these Subpcnae 

18 of the Petitioners is not unreasonable or oppressive. The 

19 subject matters to which th.e documents relate have been 

20 described with specificity. The Respondents have a large and 

21 I highly skilled staff. Routinely their deliberations are 

22 recorded by stenotypists and transcribed into typeiv'ritten form 

23 immediately thereafter. It is not unreasonable to believe that 

24 the professional staff of Respondents has caused their files 

25 and records to be organized by subjects in a manner which make? 



1810 



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1 

2 

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4 

5 

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8 

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16 "[w]hen a motion for Preliminary Injunction is 
presented to a court in advance of hearing on 

17 the merits , it is. called upon. to exercise its 
discretion upon the basis of a series of es- 

18 tiinates: the relative importance of the rights 
asserted and the acts sought to be enjoined, the 

19 irreparable nature of the injury alledgedly 
flowing from denial of preliminary relief, the 

20 probability of the ultimate success or failure 
of the suit, the balancing of damage and con- 

21 venience generally" " Perry v. Perry , 88 U.S. 
App. D.C. at 338, 190 F.2.d at 602 



the production of the records requested a matter of adminis- 
trative routine. 

At all times during the pendency of this case and since 
they were formally served on Monday, September 17, 1973 Respon- 
dents knew that they intended to resume public liearings of the 
Senate Select Committee on Monday, September 24, 1973. 
Respondents have known since Monday, September 17, 1973 that tlje 
first, immediate objective of Petitioners is to obtain Orders 
from this Court enjoining, temporarily at least, the resumption 
of those public hearings of the Senate Select Committee for the 
reasons more fully set forth in the Petition in this case and the 
accompanying Memorandum in Support of Motion for Temporary 
Injunction. 

It has been the rule in the District of Columbia since 
Perry v. Perry, 88 U.S. App. D.C. 337, 190F, 2d 601 (1951) that: 



This Court will be unnecessarily and seriously hampered 
in making such a "series of estimates" if it does not have 
available to it the documents and records of the Respondents 
requested by the Subpenae of Petitioners hereinabove described 



1811 



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In connection herewith the attention of the Court is 
respectfully invited to the Addendum to Memorandum in Support 
of Motion of Petitioners for a Preliminary Injunction. 

Respectfully submitted. 



John S. Bottoraly 

Stephen Leonard 
Attorneys for Petitioners 



1812 



CA No. 1758-73 



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



NATIONAL CITIZENS' COMMITTEE FOR 
FAIRNESS TO THE PRESIDENCY, INC., et al 



SENATE SELECT COMMITTEE ON 
PRESIDENTIAL CAMPAIGN ACTIVITIES, et al 



ADDENDUM TO MEMORANDUM IN SUPPORT OF 
MOTION OF PETITIONERS FOR A PRELIMINARY INJUNCTION 

This Addendum is respectfully submitted for consideration 

with the Memorandum siibmitted with and in support of Motion of 

Petitioners for a Preliminary Injunction and in anticipation of 

a Motion to Dismiss which Respondents informed Counsel for 

Petitioners they would file on September 21, 1973. 

THIS COURT HAS JURISDICTION OF THIS ACTION 
A distinct basis of jurisdiction is that provided by 
28 U.S.C. i 1331(a) over Federal questions where the amount in 
controversy exceeds $10,000. The chief aim of the jurisdic- 
tional amount limitation in i 1331 is to avoid consuming the 
resources of the Federal courts in resolving petty controversies, 
Healy v. Ratta . 292 US 263 (1934), S. Reg. No. 1830 85 Cong. 
2d Sess. (1958) . The courts have usually looked "to the object 
sought to be accomplished by the Plaintiffs' complaint," Ronzio 
V. Denver s R.G.W. R.R. 116 F2d 604, 606 (CAIO 1940) in deter- 
mining the matter in controversy. See also Hatridge v. Aetna 
Casualty & Surety Co. , 415 F2d 809, 814-816 (CAB 1969); Hedberg 
V. State Farm Mutual Automobile Ins. Co. 350 F2d 924 (CA8 1965) . 
Where constitutional rights are basically at issue in a § 1331 
suit, the Supreme Court has construed the jurisdictional amount 
requirement liberally. In Flast v. Cohen , 392 US 83 (1968), 
for example, it entertained without discussion of the juris- 



1813 



dictional basis the appeal of a Federal taxpayer seeking to 
enjoin the operation of portions of the Elementary and Secondary 
Education Act of 1965 as violating the Free Exercise and 
Establishment Clauses of the First Amendment. The Court noted 
that "the challenged program involves a substantial expenditure 
of Federal tax funds" 392 US at 103, while nowhere mentioning 
any alleged monetary value of the Plaintiff's claim. See also 
Common Cause v. Democratic National Committee , 333 F Supp 803, 
807 (DDC 1971) . 

A second and independent basis of Federal jurisdiction 
lies under 28 U.S.C. 1 1343 (4) which provides jurisdiction "To 
recover damages or to secure equitable or other relief under any 
Act of Congress providing for the protection of civil rights...." 
This action is clearly maintainable under i 1343 (4) in view of the 
manner in which the public hearings of Respondents have been con- 
ducted to date, and the provisions of 2 USC Sec. 190a-l(b) and 
its legislative history and purpose and its relationship to 
House Rule XI Clause 33 as more fully set forth elsewhere in 
this memorandimi. (See also 3 U.S. Cong. & Adm. News 1970 , Vol. 2, 
p. 4417 et seq . ) 

THIS SUIT IS AN APPROPRIATE CLASS ACTION 
Defendants claim that this suit may not be maintained 
as a class action because Plaintiffs do not represent all members 
of the Fairness Committee or all members of the public who would 
be affected by the result. 

It is well established, however, that an organization 
whose members are injured may represent those members in a 
proceeding for judicial review. Sierra Club v. Morton , 405 



-2- 



1814 



U.S. 727, 739 (1972); NAACP v. Button , 371 U.S. 415, 428 (1963); 
NAACP V. Alabama ex rel Patterson, 357 , U.5. .449, 458-460 (1958) j..^ 
Bates V. City of Little Rock , 361 U.S. 516, 523 n9 (1960). '" 
Recently, Common Cause, a non-profit District of Columbia cor- 
poration, conducted an action against the Democratic and 
Republican National Committees to obtain injunctive and de- 
claratory relief against illegal political contributions and 
expenditures. The suit was designated a class action, pursuant 
to Fed R. Civ. Proc. 23(a), (b)(1), and (b)(2), as to "all 
members of Common Cause who are also registered voters or who 
make lawful contributions from time to time to candidates or 
to political committees and political organizations for purposes 
of supporting [candidates] for Federal elective office, or who 
otherwise participate in campaigns of candidates for elective 
federal office." Common Cause v. Democratic National Committee, 
333 F Supp. 803, 815 (D.D.C. 1971). In the instant suit. 
Respondents have pointed to no issues on which the organizational 
interests of the Fairness Committee differ from those of its 
individual members. 

The Fairness Committee may properly represent all the 
citizens of the United States in a class action such as this. 
Although the class is large, it is clear that the prerequisites 
of Rule 23(a) are met, since (1) the class is so numerous that 
joinder of all members is impractical; (2) there are questions 
of law on fact common to the class; (3) the claims of the Fairness 
Committee are typical of the claims of other members of the 
class; (4) the Fairness Committee will fairly and adequately 
protect the interests of the class. In addition, the require- 
ments of both Rule 22 (b) (2) and Rule 22 (b) (3) are met since 
the Respondents have refused to act on grounds applicable to the 



-3- 



1815 



class as a whole and since the questions of law and fact common 
to members of the class predominate over any questions affecting 
only individual members. 

The fact that a class is numerous does not mitigate 
against allowance of the suit as a class action. Carpenter v . 
Hall , 311 F Supp. 1099 (ED Tax 1970); Katz v. Carte Blanche 
Corp . , 52 F.R.D. 510 (E.D. Pa 1971), and the actions of 
Respondents have deprived all citizens of the United States 
of the protection of the Constitution and the due process of 
law guaranteed thereby. 

Common Cause has already been determined to be an 
appropriate representative of, inter alia , "all registered 
voters in the several states and the District of Columbia" in 
a suit which sought to afford greater access to candidates' 
finances for the voting public. Common Cause v. Jennings, D.D.C . 
(Civ. Action No. 848-72 June 20, 1972). Petitioner Fairness 
Committee has status analogous to Common Cause in its cases 
cited herein as an appropriate representative of a class, in 
this case, all citizens of the United States, seeking to protect 
civil rights of the same importance as the right to vote. 

STATUTES AND RULES OF CONGRESS RELATIVE 
TO CONDUCTING AND BROADCASTING HEARINGS 

Title 2 U.S. Code Sec. 190a-l(b) provides: 

"Each hearing conducted by each standing, select 
or special committee of the Senate (except the 
Committee on Appropriations) shall be open to the 
public except when the committee determines that 
the testimony to be taken at that hearing may 
relate to a matter of national security, may tend 
to reflect adversely on the character or reputation 
of the witness or any other individual, or may 
divulge matters deemed confidential under other 
provisions of law or Government regulation. When- 
ever any such hearing is open to the public, that 
hearing may be broadcast by radio or television, 
or both, under such rules as the committee may 
adopt." (Emphasis supplied) 



-4- 



1816 



In its present form 2 USC Sec. 190a-l (b) was enacted 
as Section 112(a) of P.L. 91-510, Legislative Reorganization 
Act of 1970 , passed by the House of Representatives October 8, 
1970 and the Senate October 6, 1970, effective January, 1971. 
The House Bill — H.R. 17654 — was passed in lieu of the 
Senate Bill (hereinafter at times referred as the bill) . The 
House Report (No. 91-1215) is set out in 3 U.S. Cong . & Adm . 
News 1970 , Volume 2, page 4417. 

Section 112 of the bill relates to open hearings of 
Senate and House standing, select, and special committees. Id. , 
pp. 4482, 4483. Section 112(b) of the bill provides that each 
hearing conducted by each House standing, select, and special 
committee shall be open to the public except when the committee, 
by majority vote, determines otherwise. Id., p. 4483. 

Section 116 of the bill pertains to the broadcasting 
on radio and television of the hearings of Senate and House 
standing, select, and special committees. Id., p. 4487. Section 
116(b) of the bill adds a new clause 33 to House Rule XI pro- 
viding for the coverage of House committee hearings by radio 
and television broadcast and still photography. Id., p. 4487. 
Quoted herewith is a portion of House Report No. 91-1215, said 
new clause 33 through paragraph f(2) thereof: 
"House of Representatives 

With respect to the House, section 116(b) adds a 
new clause 33 to House Rule XI providing for the 
coverage of House committee hearings by radio and 
television broadcast and still photography. 

Paragraphs (a) , (b) , and (c) of the proposed 
new clause 33 state the purpose and intent of the 
new clause. 

Paragraph (a) states the purpose of providing 
education, perspective, and enlightenment to the 
public generally with respect to the House of 

-5- 



1817 



Representatives as a legislative and representative 
body, the public issues confronting the House, its 
consideration and resolution of those issues, and 
fronting the House, its consideration and resolu- 
tion of those issues, and the role of the House under 
the Constitution of the United States as a part of 
the Federal Government. Paragraph (a) also em- 
phasizes the observance of acceptable standards of 
dignity and decorum in connection with the coverage 
of House committee hearings by radio, television, 
and still photography. 

Paragraph (b) states the intent that radio and 
television tapes and television film of the cover- 
age of committee hearings shall not be used or made 
available for use as partisan political campaign 
material to promote the candidacy of any person for 
elective public office. 

Paragraph (c) states the intent that the coverage 
of each hearing by radio, television, and still 
photography, and the personal behavior and conduct 
of all parties at that hearing, conform to tradi- 
tional standards of dignity, propriety, courtesy, 
and decorum and not be such as to distort the ob- 
jectives of the hearing and the activities of House 
Members or to discredit tTie House or any Member." 

Paragraph (d) emphasizes that the permitted cover- 
age of House committee hearings is a privilege made 
available by the proposed clause 33 of House Rule 
XI which may be exercised only in accordance with 
the stated purpose, intent and requirements of that 
clause. 

Paragraph (e) incorporates into the House Rules 
provisions constituting the actual grant of authority 
to each standing, select, or special committee of the 
House to permit the coverage, by radio, television, 
and still photography (or by any of such methods of 
coverage) , of any hearing conducted by that committee 
whenever the hearing is open to the public. This 
coverage of any open hearing may be permitted only 
by majority vote of the committee and may apply, as 
the Commmittee determines appropriate, to all or 
part of the hearing. However, the coverage may be 
effected only if the committee has adopted written 
rules providing for radio, television, and still 
photography coverage of its open hearings and these 
written rules must be in full accord with all of the 
purposes, provisions, and requirements of the pro - 
posed clause 33 of House Rule XI. When the coverage 
of an open hearing is actually permitted by majority 
vote of the committee, that coverage must be conducted 
in accordance with the purposes, provisions, and re - 
quirements of the proposed clause 33 and in accordance 
with the committee rules. 



-6- 



1818 



Moreover, paragraph (f) requires that these 
written rules adopted by a House committee must 
contain provisions, .-gove^ningiith^ actualL.conduct-_-c 
of the coverage activities^ 'which^arfe to^the *->^° 
same effect '^as* the ptovisiohs.i set fortR"in>^sub-^"h- 
paragraphs (1) to (13) , inclusive, of paragraph 
(f ) . These provisions of subparagraph (f) are 
of sufficient importance to set forth in this 
report, as follows: 

(1) If the television or radio coverage of the 
hearing is to be presented to the public as live 
coverage, that coverage shall be conducted and 
presented without commercial sponsorship. 

(2) No witness served with a subpena by the 
committee shall be required against his will 
to be photographed at any hearing or to give 
evidence or testimony while the broadcasting . 
of that hearing, by radio or television, is 
being conducted. At the request of any such 
witness who does not wish to be subjected to 
radio, television, or still photography cover - 
age, all lenses shall be covered and all 
microphones used for coverage turned off . 
This subparagraph is supplementary to para- 
graphs (f) (2) (A) and (m) of clause 27 of this 
Rule, relating to the protection of the rights 
of witnesses." (Emphasis supplied) 

The legislative purposes to be served by investigations 
and hearings conducted by the House are the same as those of 
the Senate. House Report No. 91-1215 makes clear that both 
the Senate and House each wish to provide as much information 
as possible to the citizens of the United States consistent with 
discharge of their legislative duties. There is no evidence 
that the House performs those duties less effectively than 
the Senate although it requires its committees to conform with 
its Rule XI, Clause 33, paragraph f(2), quoted hereinabove. 

House Report 91-1215 constitutes substantial evidence 
that at least one Branch of Congress requires its committees 
to protect the rights granted to citizens of the United States 
by the U.S. Constitution. The record to date of the public 
hearings of the Senate Select Committee on Presidential Campaign 



-7- 



1819 



Activities (Select Conunittee) provides overwhelming evidence 
that it has either ignored the provisions of 2 USC Sec. 190a-l 
(b) or has not made reasonable decisions in good faith in 
accordance therewith. 

The continuing and successful operation of House 
Rule XI, Clause 33 demonstrates both that a legislative body 
■with responsibilities equal to the Senate recognizes the 
necessity for the expeditious relief of the type sought by 
the Petitioners and that without it irreparedjle harm will be 
suffered by witnesses and other persons if public hearings 
of the Select Committee are allowed to resume. The successful 
operation of the same Clause 33 of House Rule XI is compelling 
evidence that the relief requested will not unduly burden the 
Respondents . 

Respectfully submitted. 



/'x^d 



Jdhn S. Bottomly 




Jdl 



w _ 

Stephen Leonard 



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1820 



CERTIFICATE OF SERVICE" '- 

I Hereby Certify that the foregoing Addendum tOiMemorandum.ini 
Support of Motion of Petitioners for a Preliminary Injunction vas served 

upon 

counsel for all Respondents herein, this 21st day of September, 1973, by 
hand -delivering a copy thereof in Court Room 7, Second Floor, United 
States Court House, Washington, D. C. 



Stephen Leonard 
Attorney for Petitioners 



1821 



IJL UlNilJl^J-* SiAiiL^ iJi;>iKlL/i (^U JK 1 , 

FOR THE DISTRICT OF COLUMBtl^^™ StP ' ^ 



NATIONAL CITIZENS' COMMITTEE FOR 
FAIRNESS TO THE PRESIDENCY, INC. , et al 

Plaintiffs 

V. 

SENATE SELECT COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES, et al 

Defendants 



MOTION TO DISMISS 




Civil Action 
No. 1758-73 



Defendants, by their attorneys, hereby move the Court pursuant 

to Rule 12(b) (6), F. R. Civ. P. , to dismiss this action against them on the 

grounds that the complaint fails to state a claim upon which relief can be 

granted. Supportfor this motion is found in the accompanying Memorandum 

In Opposition To Plaintiffs' Motion For Preliminary Injunction And In 

Support of Defendants' Motion to Dismiss. 

Respectfully submitted. 



•^a^ r^-^^.j 



Sherman Cohn 
Eugene Gressman 
Jerome A. Barron 

Washington, D. C. 
of Couns el 

Arthur S. Miller 

Chief ConsTiltant to 
the Select Committee 

of Co'onsel 



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 

William T. Mayton 
Assistant Counsel 

Ronald D. Rotunda 
Assistant Counsel 

United States Senate 
Washington, D. C. 20510 
Telephone Number 225-0531 

Attorneys for Plaintiffs 



34-966 O - 74 - pt. 2-39 



1822 



THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



NATIONAL CITIZENS' COMMITTEE FOR 
FAIRNESS TO THE PRESIDENCY, INC. , et al 

Plaintiffs 



SENATE SELECT COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES, et al 

Defendants 



Civil Action 
No. 1758-73 



ORDER 

These matters having come before the Court on plaintiffs' 
Motion for Preliminary Injunction and defendants' Motion to Dismiss and 
the Court being of the opinion that plaintiffs' motion should be denied and 
defendants' granted, it is hereby this day of September, 1973, 

ORDERED, that plaintiffs' Motion for Preliminary Injunction 
be and is denied, and it is further 

ORDERED, that defendants' Motion to Dismiss be and is granted. 



June L. Green 
United States 
District Judge 



1823 



THE UNITED STATES DIST 3T COURT 
FOR THE DISTRICT OF COLUMBIA 



NATIONAL CITIZENS' COMMITTEE FOR 
FAIRNESS TO THE PRESIDENCY, EMC. , et al 



Plaintiffs 



SENATE SELECT COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES, et al 



Defendants 



MEMORANDUM IN OPPOSITION TO PLAINTIFFS' MOTION FOR 
PRELIMINARY INJUNCTIONS AND IN SUPPORT OF DEFENDANTS' 
MOTION TO DISMISS 



Introduction 



Civil Action 
No. 1758-73 



Plaintiffs have sued to stop the Select Committee's public 
hearings and moved for preliminary injunctive relief. Defendants oppose 
this motion and, by their own motion filed herewith, ask the Court to 
dismiss this action. 

This suit and motion for preliminary injunction are spurious. 
They constitute nothing more than a willful effort to obstruct and delay 
the conduct of a congressional investigation on rnatters of pressing 
public concern. 

Plaintiffs contend that the public bearings have been and will 
be conducted in a fashion that contravenes the Constitution and injures 
them and the Gargantuan class -- all the citizens of the United States -- 
they profess to represent. The illegal actions they claim ai'e several. 
It is, they contend, unlawrful for the Committee to investigate and reveal 
criminal activities. It is further illegal, they say, for the Committee 
to receive hearsay evidence, to refuse to allow cross-examination by 
those implicated in testimony and to present publicly testimony that has 
been previously received in private session. These claims have no 
merit. As demonstrated below, defendants' conduct in these respects, 
even accepting the factual allegations of the complaint as accurate, has 
been totally lawful and proper. The complaint should thus be dismissed. 



1824 



The complaint is also dismissable for other reasons. 
First, the Speech and Debate clause of the Constitution protects the 
defendant Senators and the Committee from suits calculated to restrain 
the exercise of their official legislative duties. Second, plaintiffs have 
not and cannot demonstrate that they have standing to bring this action. 

Because Plaintiffs do not state a proper cause of action, it is 
obvious that the motion for preliminary injunction must be denied. 
Furthermore, plaintiffs cannot demonstrate that failure to grant 
preliminary relief will work them irreparable harm or that the public 
interest demands that the injunction issue -- both strictures plaintiffs 
must meet before the relief they request is allowable. 

We now proceed to explain in more detail why the motion 
to dismiss must be granted and the motion for preliminary injunction 
denied. 



1825 



-3- 



I. The Speech and Debate Clause Forecloses this Suit Against the 
Select Committee and its Members; Moreover, Defendants' 
Conduct Respecting the Public Hearings Has Been in all Respects 
Proper and LaTyful __^_ 



Only the Select Committee and its members (all United States 
Senators) are named as defendants in the present lawsuit. They are 
sued solely because of official acts performed in the exercise of their 
legislative responsibilities. The Speech and Debate clause of the 
Constitution (Art. I, Sec. 6, CI. 1) -- a privilege linnited to the 
Legislative Branch of Government -- protects such official activity. 
Gravel v. United States , 408 U.S. 606, 619-20 (1972); Tenney v. 
Brandhove , 341 U.S. 367 (1951); Hearst v. Black, 66 U.S. App. D. C. 
313, 316-17, 87 F. 2d 68, 71-72 (1936). 

Directly controlling here is the Supreme Court's recent 

decision in Gravel. While narrowing the scope of Speech or Debate 

immvinity in other respects, the Court made clear that committee 

hearings are a central part of a Senator's official duties, and that a 

Senator is therefore immune from suit for his conduct of such hearings: 

"... I_ A/ Member's conduct at legislative committee 
hearings. . . may not be made the basis for a civil or 
criminal judgment against a member because that conduct 
is within the 'sphere of legitimate legislative activity'. " 
408 U.S. at 624. 

And last term in Doe v. McMillan, 93 S. a.. 2018, 2025(1973), the 

Supreme Court reasserted that: 

"Congressmen and their aides are immune from liability 
for their actions within the legislative sphere even though 
their conduct, if performed in other than legislative context, 
^vould in itself be unconstitutional. ..." 



1826 



-4- 



*/ 
Accordingly, this suit must be dismissed. — 

Moreover, none of the acts challenged by plaintiffs' are, 

in fact, unconstitutional or illegal, as now demonstrated. 



*/ In United States Servicemen's Fund v. Eastland U.S. App. 

"D. C. , , F. 2d (No. 24, 279, 24, 412, 71- 

2034, Aug. 30, 1973), the Court of Appeals refused, at the outset of 
litigation, to dismiss congressmen defendants from a lawsuit challenging 
the issuance of a congressional subpena. That, however, was a suit 
brought by the target of the subpena, and the Court concluded that the 
subpena served no legislative purpose and was an unconstitutional invasion 
of the target organization's own First Amendment rights. In these 
circumstances, the Court concluded that there was a sufficiently 
substantial question whether the subpena involved "legislative" acts to 
make it inappropriate to dismiss the congressmen as parties. That 
ruling has no bearing here where the Committee's activities are plainly 
"legislative, " the activities are not challenged by the targets of the 
investigation, and the challenge is plainly insubstantial. 



1827 



A, The Select Committee is Fully Authorized 
to Investigate and Publicize Corruption in the 
Executive Branch. 



Plaintiffs assert that investigation of criminal conduct by the 
Select Committee is illegal, (see, e.g., para, 24 of compl. ) It is, 
however, well settled that a congressional committee may investigate 
and publicize criminal activity by the executive branch and others; indeed, 
this function is among the most important responsibilities of the legislature. 

As the Supreme Court recognized in McGrain v, Daugherty, 
273 US 135 (1927), congressional committees, since the beginning of the 
nation, have investigated wrongdoing and maladnninistration by executive 
officials under the constitutional power of Congress to determine the need 
for new legislation and fulfill an associated informing function. In McGrain 
a Senate investigation into Justice Department laxity in the Teapot Dome 
scandal was resisted on the grounds that it was "an attempt to prosecute, 
try, and determine the guilt or innocence of Harry M, Daugherty, the 

Attorney General. , Congress has no such power except in impeachment 

*/ **/ 

proceedings.' — ' (Argument for Appellee, 71 L Ed. 58) — • This assertion 

-- substantially similar to the arguments of plaintiffs in the present case -- 

was flatly rejected by the Supreme Court, which upheld the validity of the 

investigation and ruled that: 

(1) "/Tjhe power of inquiry -- with process to 
enforce it -- is an essential and appropriate 
auxiliary to the legislative function" 273 U.S. 
at 174. 



*/ Plaintiffs also claim that the Select Connmittee is violating the 
impeachment provision of the Constitution. Complaint, para. 33 (a). 

**/ The Respondent in the case was Mally S. Daugherty, brother of 
Attorney General Harry M, Daugherty, 



1828 



-6- 

(2) The Attorney General's administration of the 
Justice Department was "^p^/lainly £a subject7 on 
■which legislation could be had and would be materially 
aided by the information which the investigation 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. 

See also e.g., Sinclair v. United States , 279 U.S.' 263 (1929) (Supreme Court 
rejected claim that Senate investigation of Teapot Dome scandal was invalid 
because it dealt -with allegedly unlawful conduct within the exclusive province 
of the judiciary);*/ Hutches on v. United States, 369 U.S.- 599 (1962)(Senate 
Select Committee on Improper Activities in the Labor Management Field 
could properly investigate unlawful use of union funds to influence prosecu- 
tion); 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 valid). 

Indeed, the very existence of the "use immunity" statute for 
compelled testimony before Congress, which this Court construed in In 
Re: Application of United States Senate Select Committee on Presidential 
Campaign Activities (D.*D.*Cf , Misc. No. 70-73, June 12, 1973), recognizes 
that congressional investigations may deal with conduct which may also be 
the subject of criminal prosecution. 

Congressional investigation of crinninal conduct has an especially 
strong foundation where executive wrongdoing is in issue. As pointed out in 
Delaney v. United States . 199 F. 2d 107, U5, (1st Cir. 1952), the leading case 

involving pretrial publicity provoked by a congressional hearing: 

"In such a situation ^. e. , a legislative hearing relating 
to a public official not then under indictment/ the inves- 
tigative 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 enforced; and it is informing the public 
so that democratic processes may be brought to bear to 
correct any disclosed executive laxity. " 

*l Sinclair repudiated the argunnent, advanced by plaintiffs here (Con^plaint 
para. 33 (c)), that a legislative investigation of unlawful conduct constitutes 
an unconstitutional usurpation of Article m judicial power. 



1829 



-7- 



The Select Committee would be unpardonably remiss if, in this 

time of public doubt in the integrity of our governmental system, it did not 

push forward to full revelation of the facts. It would be equally remiss if 

it closed its hearings to the public which has a right to be accurately informed 

of the corruption that infected the 1972 Presidential campaign and election. 

Beck V. United States. 298 F. 2d 622, 628 (9th Cir. 1962). See also 

Silverthorne v. United States, 400 F. 2d 627, 633-34 (9th Cir. 1968): 

"/Tryhe Senate Committee and the federal grand jury 
are associates in exposing criminal activity and 
moving towards its curtailment, " 

If the position of plaintiffs were accepted, the testimony of 
critically important witnesses would be excluded from public view. It 
was, however, the judgment of a unanimous Senate in Senate Resolution 
60, 93d Congress, 1st Session (1973) that there is a pressing need to explore 
remedial legislation and to expose for public scrutiny all the facts relating 
to the Watergate scandal. There can be no doubt that the informing process 
is a necessary concomitant to the enactment of legislation, for it is widely 
recognized that proposed legislation lacking popular support rarely survives. 

The "informing function" of Congress, while important to its 

legislative mission, also serves other important values. Our democratic 

system is premised on the principle that there is a need to inform the 

public simply because of the right of the public to know the truth about 

misconduct by executive officials -- even though some people may find the 

truth distasteful. As the Supreme Court stated in Watkins v. United States, 

354 U.S. 178, 200 (1957): 

"/j'here is a7 power of the Congress to inquire into 
and publicize corruption, maladministration or 
efficiency in agencies of the Governnnent, That 
is the only kind of activity described by Woodrow 
Wilson in Congressional Government when he wrote: 
'The informing function of Congress should be pre- 
ferred even to its legislative function, ' Id, , at 303, 
From the earliest times in its history, the Congress 
has assidously performed an 'informing function' of this nature," 
*/ Plaintiffs claim they have no adequate legislative remedy, Compl, para, 
36. But the Senate can stop the Select Committee at any time by cutting off 
(continued on following page) 



1830 



-8- 



In United States v, Rumely, 345 U.S. 41 (1953), 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 scrut- 
inize 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 nnost 
important that it should understand and direct. The 
informing function of Congress should be preferred 
even to its legislative function. ' Wilson, Congressional 
Government, 303. " Idj_ at 43. 

This lawsuit -- a rash and belated —'attempt to shut off the hearings by 

self-appointed spokesmen for the nation -- thus has no legal basis insofar as 

it claims that the Committee is barred from investigating and exposing 

criminal conduct. 



B, The Select Committee May Properly Conduct 

Hearings Without Granting a Right of Cross Exam- 
ination to each Witness and Without Adopting Jury- 
Trial Rules on the Admissibility of Hearsay Evidence. 



At the hearings before the Select Conxmittee -- as in any 
legislative hearing -- there are no defendants, no plaintiffs, and no 
civil or criminal penalties. In such circumstances it has long been 
recognized that the rules of evidence — particularly the technical rules 
on the admissibility of hearsay evidence -- are inapplicable. Yet plaintiffs 



*/ (continued from preceding page) its funding or rescinding its Resolution. 
That it has not done so signifies its approval. 

*/ The Plaintiffs appear to suggest that not until September 12, 1973 did they 
realize that the Select Committee would conduct further hearLags. Complaint, 
para. 22. Yet it -was well publicized last August that the hearings would only 
go into recess for the latter part of that month. Thus, plaintiffs knew, or 
should have known, at least a month ago that the hearings wovild continue. 



1831 



object that there is no general right of cross examination-/ for every 
witness or for every person mentioned in testimony. Complaint, para. 27. 
They also object to the admiss ability of hearsay evidence. Complaint, para, 
25.^4 These objectives are totally groundless. 

Even when an individual's liberty is at stake, a grand jury may 
indict on the basis of hearsay evidence. Costello v. United States, 350 U.S. 
359 (1956). And of course there is no cross-examination allowed in a grand 
jury proceeding. Id, An administrative tribunal may base a decision on 
hearsay evidence, with its concomitant lack of cross-examination. 
Richardson v. Perales. 402 U.S. 389 (1971); Davis Administrative Law 
Treatise il405. 

If such adjudicatory tribunals may properly restrict cross- 
examination and hearsay rights, a fortiori an investigative tribunal with 
no adjudicatory functions -- such as this Select Committee -- should not be 
and is not bound by the technical rules of evidence. ***/ In Hannah v, Larche, 



*/ "However the counsel /ot a witness"/ may submit in writing any 
questions he wishes propounded to his client or any other witness, " 
Select Committee Rules of Procedure, Rule 24. 

**/ These objections are one and the same: the real objection to 
hearsay is that the witness may not be subjected to cross-examination 
on the truth of the matters on which testimony is given. 

***/ Moreover, much of the hearsay admitted in the Select Committee 
hearings -- i. e, , the hearsay statements of an alleged co-conspirator -- 
are fully admissable in any court of law under a well-recognized exception 
to the hearsay rule. United States v, Publiese, 153 F. 2d 497 (2d Cir. 1945); 
United States v. Annunziato, 293 F. 2d 373 (2d Cir. 1961); Allen v. United 
States, 4 F, 2d 688 (7th Cir. 1925); Krulewitch v. United States, 336 U,S. 
440 (1949). 



1832 



-10- 



363 U.S. 420 (I960), the Supreme Court, relying on the practice of 

congressional committees, held that the due process clause of the Fifth 

Amendment does not require an investigatory body to observe the requirement 

of confrontation and cross-examination applicable to criminal prosecutions. 

See 363 U.S. at 441-42. 

The Court went on to hold that such procedural safeguards are 

unnecessary even through the investigative proceedings that might lead to 

criminal prosecutions. Id. at 443. If criminal prosecutions in fact 

eventuate, the person accused will be entitled to the appropriate procedural 

safeguards in the prosecution. _Id^ at 446, In the meantime, the Court 

observed, it would be seriously disruptive and inefficient to allow various 

witnesses to turn a purely investigative proceeding into a trial: 

/rC7he investigative process could be completely 

disrupted if investigative hearings were transformed 

into trial-like proceedings, and if persons who nnight 

be indirectly affected by an investigation were given 

an absolute right to cross-examine every witness called 

to testify. Fact-finding agencies without any power to 

adjudicate would be diverted from their legitimate 

duties and would be plagued by the injection of collateral 

issues that would make the investigation interminable. 

Even a person not called as a witness could demand the 

right to appear at the hearing, cross-examine any 

witness whose testimony or sworn affidavit allegedly 

defamed or incriminated him, and call an unlimited 

number of witnesses of his own selection. This type of 

proceedings would make a shambles of the investigation 

and stifle the agency in its gathering of facts. Id. at 443-44 _ ' 

As recognized by the Court of Appeals for this Circuit in United 

States v. Fort, 143 U.S. App . D. C . 255, 443 F.2d 670 (19 7^, the rulings in 



*/ In support of its holding, the Court in Hannah noted that legislative 
investigatory committees have only rarely accorded witnesses procedural 
rights such as the opportunity to cross-examine other witnesses. The 
Appendix to the Court's opinion, which tabulates executive agencies and 
legislative committees and the investigative procedures established by 
each, demonstrates that the Select Committee has accomplished as much 
as any of its predecessors in ensuring procedural fairness to those accused 
of wrongdoing in the course of its hearings. See the Select Committee's 
Rules of Procedure and Guidelines, attached hereto. 



1833 



Hannah a re fully applicable to legislative investigations. In Fort, the 
Court flatly rejected the claims of a congressional witness that he should 
be afforded the rights of confrontation and cross-examination, even though 
the congressional investigation was directed at wrongdoing in which the 
witness might be implicated. Following Hannah the Court pointed out 
that "the congressional investigation with which we are here concerned is 
an investigative proceeding " and that "Congress is not empowered to 
adjudicate criminal sanctions on a witness" (143 U.S. App. D, C, at 264), 
and held that the committee therefore was not required to allow confrontation 
and cross-examination. 

The decision of the Supreme Court in Hannah a nd the decision 
of the Court of Appeals for the Circuit in Fort are controlling here. 
Plaintiff's procedural claims are without merit. 



1834 



-12- 



II. Plaintiffs Have No Standing to Bring This Action . 

Plaintiffs sue on their own behalf and on behalf of two 
alleged classes: (1) All persons who are citizens of the United States; 
(2) All members of plaintiff Fairness Committee who are members of 
the first class. There is no claim that any named plaintiff expects to be 
called before the Select Committee to testify. It is not alleged that any 
member of the plaintiff Committee will be called before the Select 
Committee. It is clear, in the circumstances of this case, that 
plaintiffs have no standing to bring this action, as now demonstrated. 

We fail to see how the named plaintiffs, who have not been 
and vrill not be called to testify before the Committee, can claim any 
injury. As the Supreme Court said in Sierra Club v. Morton 405 U.S. 
727 (1972), ^vhich also involved an organization's claim to represent 
wide-ranging interests, standing to sue in the federal courts requires 
that there be an "injury in fact" and that the plaintiffs be "among the 
injured. " 405 U.S. at 735. Assuming, arguendo, that there might be 
some "injury" caused by the Committee's hearings, neither the 
individual plaintiffs nor the plaintiff Committee can, by any stretch of 
the imagination, be considered to be "among the injured. " 

Plaintiffs cannot achieve standing for themselves by the claim 
that members of their putative classes have suffered injury. The 
"stated rule is that l_ a plaintiff/ may not assert the rights of some other 
person. " Wright, Law of Federal Courts 43 (1970). This principle 
has been specifically applied in the class action context; it has been 
held that, absent injury to themselvea. named plaintiffs are not endowed 



1835 



-13- 



with standing simply because certain members of the class they 
allegedly represent have been injured. Bailey v. Patterson , 369 U.S. 
31, 32 (1962); Greenstein v. Paul , 275 F. Supp. 604, 605 (S. D. N. Y. 
1967), aff'd , 400 F. 2d 580 (2d Cir. 1968); Broomer v. Schultz, 239 F. Supp. 
699, 705 (E.D. Pa. 1965), aff'd , 356 F. 2d 984 (3d Cir. 196 6). 

Plaintiffs claim this is a taxpayers suit and seek solace in 
Flast V. Cohen 392 U.S. 81 (1968), but that opinion provides no support 
for their claim of standing. To show standing under Flast , a plaintiff 
must establish, first, "a logical link between [_ the tajcpayer^/ status and 
the type of legislative enactment attacked- " 392 U.S. at 105, and, second, 
"a nexus between that status and the precise nature of the constitutional 
infringement alleged. " Id. at 102-03. As to the first, it is "not. . . 
sufficient to allege an incidential expenditure of tatx funds. " Id. at 105. 
As to the second, "the taxpayer must show that the challenged enactment 
exceeds specific constitutional limitations imposed upon the exercise of 
the congressional taxing and spending power and not simply that the 
enactment is generally beyond the powers delegated to Congress by 
Article I. I 8. " Id. at 102-03. 

Plaintiffs fail to meet either standard set forth in the Flast 
case. They do not attack the constitutionality of the appropriation for the 
Committee, but seek only to prohibit use of these funds to support public 
hearings conducted under the procedures now employed. Such an 
" incidental expenditure of taji funds" is insufficient to establish the 



^ A corroUary principle is that, in order to bring a class action, at least 
one named plaintiff must actually be a member of this class. "The purpose 
of this threshhold requirement is to ferret out officious intermeddlers who 
do not possess the substantive right to litigate the claim sought to be 
litigated on behalf of others. " Rockier & Co. v. Graphic Enterprises, Inc. 
52 F. R.D. 335, 338 n. 4 (D. Minn. 1971). See also MacDonald v. 
Shawnee Country Club, Inc. , 438 F. 2d 632 (6th Cir. 1971); Carroll v. 
Associated Musicicins of Greater New York, 316 F. 2d 574 (2d Cir. 1963). 



1836 



-14- 

requisite link between the appropriation and the plaintiffs' status as 
taxpayers. And, without any specific challenge to the constitutionality 
of the appropriation, it can hardly be claimed that the second Flast 
test is met. This case is thus clearly distinguishable from Flast , where 
the asserted effect of the challenged expenditure itself was to violate 
the Establishment Clause. See Doremus v. Board of Education , 342 U.S. 
429 (1952); Frothingham v. Mellon , 262 U.S. 447 (1923). 

There is thus no basis upon which plaintiffs can establish 
standing in the present circumstance. Moreover, to permit plaintiffs 
to sue in a case such as this would pave the way for numerous unwarranted 
suits in the future by persons unhappy with the discretionary expenditure 
of appropriated funds, whose interest in such expenditures is quite remote. 
Such a ruling would invite litigious harassment of Congress and other 
branches of government. The complaint must be dismissed for want of 
standing. 



1837 

-15- 
III. Plaintiff's Motion for Preliminary Injunction Must be Denied 

It is settled law that a motion for preliminary injunction must 
be rejected if plaintiffs have little chance of ultimate success. Embassy 
Dairy v. Camalier, 93 U.S. App. D.C. 364, 367, 211 F. 2d 41, 43 (1954), 
Perry v. Perry , 88 U.S. App. D.C. 337, 190 F. 2d 601 (1951); Green v. 
Kennedy, 309 F. Supp. 1127, 1133 (D.D.C. 1970)appeal dismUaed 392'. 
U.S. 956 (1971). As we have demonstrated in the preceding three sections 
of this brief, plaintiffs have n£ chance of success in this suit. Their 
motion must therefore be denied. But even if they had some favorable 
prospect, preliminary relief would be inappropriate for several reasons. 

A motion for preliminary injunction is unsupportable unless 
plaintiffs can show that failure to grant it will work them irreparable 
harm. Younger v. Harris , 401 U.S. 37, 47 (1970); Beal v. Missouri Pac. 



Ry., 312 U.S. 45, 49 (1941); Cline v. Frink Dairy Cg , 274 U.S. 445, 452 
(1927). There is no such showing here. Plaintiffs assert in their papers 
(Complaint, para. 31) that the Committee has'Bisrupted the domestic 
tranquility of the United States ... to the damage of all [_ its_/ citizens", 
but this is merely ipse dixit . To say it does not make it so. We can 
assert, ivith much more plausibility we think, that the hearings have been 
beneficial and therapeutic to the citizenry, that they have exposed shameful 
corruption to public view, that they have restored vigor to our system 
of criminal justice and that they have reinstilled a recognition of the 
importance of integrity of government. We recognize that our assertions, 
like plaintiffs', are not proper proof, but the point to be stressed is that 
the burden is on plaintiffs to make a factual sho^wing of irreparable harm. 
In this task they have failed. 



34-966 O - 74 - pt. 2-40 



1838 



-16- 

Similarly, plaintiffs have not shown that the public interest 

demands a preliminary injunction, a regimen they must meet before such 

process may issue, Yakus v. United States , 321 U.S. 414, 440 (1944); 

Va. Ry. V. System Federation No. 40, 300 U.S. 515, 552 (1937); Va. 

Petroleum Jobber Assn. v. F. P. C. , 104 U. S. App. D. C. 106, 112, 259 

F. 2d 921, 927 (1958). The Court cannot reach this conclusion on the 

basis of their unsupported claims. We submit, moreover, that these 

claims are counterfactual. Senate Resolution 60 establishing the 

Committee, which was passed by a unanimous vote of the Senate, 

represents a legislative judgment that the conduct of the Committee's 

*/ 
business in full public view is in the public interest. We also suggest that, 

in a democracy, it is hardly in the public interest to impose some form of 

prior censorship on the dissemination of information respecting corruption 

in government. In any event, without an affirmative demonstration by 

plaintiffs that the public interest weighs against the hearings in their 

present format, their motion must be rejected. 



*6ee 2 U.S.C. 190 a-1 (b) and the Sebect Committee's Guidelines, which 
allow televised hearings. 

**^e would also reference the tens of thousands of letters , telegrams, 
telephone calls, etc. , that the Select Committee has received from the 
public urging continuance of the hearings in current form. Communication! 
supporting our efforts far outweigh those that are negative. 

.***/lt would also be inappropriate to issue a preliminary injunction before 
the question whether there is a proper class has been determined. 
Dorfman v. Boozer 134 U.S. App. D. C. 272, 414 F. 2d 1168 (1968). We fail 
to see how a nationwide class can be sustained because, e. g. , there are 
obvious conflicts of interests and antagonisms in that group; certain 
Americans may feel the hearings should be non-public, but many others 
strongly approve public hearings. See, e.g., Hansberry v. Lee, 311 U.S. 
32 (1940), Shulman V. Ritzenburg 47 F. Supp. 202, 207 (D, D. C. 1969) 

Finally, w^e observe that plziintiffs have made no offer to 
satisfy the security provisions of Rule 65 (c) , F. R. Civ. P. We suggest 
that plaintiffs' motion for preliminary injunction, which if granted would 
seriously handicap the Committee's work and debilitate its effectiveness, 
should not even be considered unless they represent that they are prepared 
to post bond in considerable amount. 



1839 



-17- 
Conclusion 

We have demonstrated that the Speech and Debate clause 
prevents this action against the Committee and its members and that, 
in any event, the Committee's conduct of its hearings is entirely lawful. 
We have also demonstrated that plaintiffs have no standing to bring this 
action. Finally, we have shown that plaintiffs have no chance of success in 
this suit and assert no facts to prove that they will suffer irreparable 
harm if a preliminary injunction is not granted or that the public interest 
demands such relief. The conclusion must be that the motion for 
preliminary injunction should be denied and the suit dismrased. Plaintiffs 
should not be permitted to tamper with the inner-workings of a lawful 
congressional committee. Neither the defendants nor the Court should be 
forced to trifle further with a lawsuit that is utterly without merit. 
Respectfully submitted. 



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 D. Thompson 

Minority Counsel 

Rufus Edmisten 

Deputy Counsel 

Jeimes 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 Niamber 225-0531 

Attorneys for Plaintiffs 



1840 



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



NATIONAL CITIZENS' COMMITTEE FOR 
FAIRNESS TO THE PRESIDENCY, INC. , et al 



Petittoners 



SENATE SELECT COMMITTEE ON PRESIDENTIAL) 
CAMPAIGN ACTIVITIES, et al 



Civil Action 
No. 1758 - 73 



Respondents 
MEMORANDUM IN OPPOSITION TO MOTION OF RESPONDENTS TO DISMISS 



INTRODUCTION 

In their Memorandum in Support of Motion to Dismiss, Respondents 
state that this suit is "spurious" and "constitutes nothing more than a 
willful effort to obstruct and delay the conduct of a Congressional investi- 
gation on matters of pressing public concern". Petitioners cannot allow 
such statements, no matter how unwarranted or self-serving, to stand un- 
answered on the record. 

In the first place, as the Court has no doubt noted. Petitioners do not 
seek "to obstruct and delay" the investigation of the Respondents. For 
reasons stated in the Petition, the Motion for Preliminary Injunction, and the 
Memorandum and Addendum thereto in Support of that Motion, the Petitioners 
pray that this Court will enjoin any further public hearings of the Senate 
Select Committee on Presidential Campaign Activities (Select Committee). 



1841 



Closed hearings under the protection of procedures in Costello >'. United 
States, 350 U. S. 359 (1956), cited by Respondents on page 9 of their 
Memorandum, are precisely the relief which Petitioners seek to protect the 
rights of all citizens of the United States. 

Until the Select Committee conducted its public hearings and announced 
its intention to renew such hearings, neither Petitioners nor any other person 
could expect or comprehend that Respondents would ignore 2 USC 190 a -1(b) 
and the House of Representatives. 

I. THE SPEECH AND DEBATE CLAUSE DOES NOT FORECLOSE 
THIS ACTION AGAINST RESPONDENTS 

The Speech and Debate, clause of the U. S. Constitution (Article I, 

Section 6, Clause I) was intended to and does immunize Congressmen and 

their raides from "liability " (emphasis supplied) for their actions within 

the legislative sphere. . . " Doe v. McMillan, 93 S. Ct. 2018. 2025 (1973). 

That, however, does not provide grounds for dismissal of this action. T^e 

history and the deliberations resulting in the inclusion of that protection of a 

Member of Congress make it clear that it is intended to and does prevent any 

citizen or group of citizens from attempting to recover damages from the 

purses of individual Congressmen for any acts by them in the discharge of 

their legislative duties. 

II, PETITIONERS DO NOT ASSERT SELECT COMMITTEE IS NOT 
AUTHORIZED TO INVESTIGATE CORRUPTION IN ANY BRANCH 

OF THE GOVERNMENT 

Respondents cite McGrain v. Daugherty 273 U. S. 135 (1927) as 
dispositive of the prayers of Petitioners because it included arguments 

substantially similar to the arguments of" Petitioners. There is a similarity 
in sone of the arguments, but the facts relating to McGrain v. Daugherty and 
the instant case are substantially different. 28 USC Par. 1331 and 1343 (4) 



1842 



did not exist in 1927. Rule 23 (b) (3) did not exist in 1927. Radio broad- 
casting was a relative infant in 1927. Television broadcasting did not 
exist. The technical and legal developments since 1927 vastly increased the 
potential of any public hearing of Congress to establish precedents 
impairing and irreparably damaging the Constitutional rights of citizens of 
the United States. Concomittant with those technical developments, but 
necessarily lagging behind has been the establishment of statutory and case 
law and rules of procedure to continue the protection of the constitutional 
rights of citizens of the United States. Broad judicial acceptance of the 
wisdom and necessity of the expansion of who could ask the Courts to 
protect those rights is evident in the cases cited in Memorandum of 
Petitioners in Support of Preliminary Injunction and Addendum thereto. 
That this particular Court is a leader in recognition and nurturing that 
growth has been most recently demonstrated by the Common Cause cases 
cited in the said Memorandum of Petitioners. This case constitutes a 
logical extention of those continuing developments to protect citizens of the 
United States from the tyranny of technological advances. 

Respondents argue on page 7 of their Memorandum in Support of 
Motion to Dismiss that "the public has a right to be accurately informed. . . " 
There is no support for the accompanying contention of Respondents that 
the right of the public to information overrides the constitutional protections 
of citizens of the United States. The development of those Congressional 
procedures discussed in the Addendum to the Memorandum of Petitioners 
in support of Motion for Preliminary Injunction is contra to the contentions 
of Respondents in this regard. The "informing function" of Congress must 



1843 



be and in the case of the House has been circumscribed with protections of 
the individual. A witness before a Congressional committee is entitled to the 
protection of due process of law. Yellen v. U. S. 374 U. S. 109, Watkins 
V. U. S. , 354 U. S. 17 8, Sinclair v. U. S. 279 U. S. 263. The procedures 
necessary to assure that protection must adapt and have adapted to changing 
technology. The constitution and its implementation are not static 

The power of inquiry must be exercised with due regard to the rights 
of witnesses, U. S. v. DeCarlo, 102 F. Supp. 597, 602: U. S. v. Rumely 
345 U. S. 41. 

This action is not a rash and belateid action. It has been commenced in 

good faith as soon as possible, as the facts upon which it is based become 

known. It is consistent with and analagous to actions by similarly chartered, 

non-profit corporations presently pending in this Court. (Common Cause 

cases, op. cit). It is well within 28 USC 1343 (4) and Rule 23 (b) (3). 

III. PETITION THAT SELECT COMMITTEE GRANT RIGHT 
OF CROSS EXAMINATION 



Respondent Sam J. Ervin, Jr. jias stated in effect that the subject 
matter of the investigation of the Select Committee is more traumatic than 
tfie Civil War, Notwithstanding the expression of that opinion Respondents 
lave adopted procedures which ignore the impact of modern, instant 
communication of events on both participants and observers. TTie right of 
;ross examination has in the past been granted to some witnesses before a 
Congressional investigating committee, specifically during the so-called 
\rmy-McCarthy hearings of 1954. ""hile the Senate stated ". . . these 



1844 



procedural rules are not in any waj' to establish a precedent" that the 
Senate did not wish cross-examination to extend to all hearings. (See Sen. 
Res. No. 2507, 83rd Congress, 2nd Sess. (1954). At the same time It is 
clear that during a governmental crisis of major significance the Senate 
did provide the right of cross-examination. Among the many factors vhich 
persuaded the Senate so to act must be included the impact of broadcasting 
those hearings on national television. 

Analagous authority may be taken from the procedures followed by 
the committees of the House of Representatives. A review of the precedents 
indicates that committees of Congress have allowed cross-examination of 
witnesses even by persons who were not members of Congress. United 
States V. Fort, 143 U. S. App. D. C. 255 (1970) at 265. 

Respondents cite the fact that a grand jury may indict on the basis 
of hearsay evidence in support of their allowing such testimony. They rely 
on Costello v. United States, 350 U. S. 359 (1956). The thrust of that case 
provides more support to the Petitioners because it must be noted that 
grand jury proceedings are conducted in secret. The Petitioners are not 
seeking the total secrecy of a grand jury, but more the protection of individ- 
uals afforded the Courts by their rules governing press and broadcasting 
coverage during trials. 

For purpose of their Memorandum in Support of Respondents Motion 
to Dismiss they have joined for considerations the prayers of Petitioners 
relating to cross-examination and hearsay. Admissions of hearsay evidence 



1845 



without cross-examination by administrative tribunals and the Civil 
Rights Commission (Hannah v. Larche, 363 U. S. ^20 (1960)) are cited by 
Respondents to justify their similar rules. Again, as in their reliance of 
the inaccurate analogizing of the Select Committee with a grand jury, the 
Respondents ask this Court to ignore the fact that the proceedings of the 
Select Committee are in public and on national television while the proceed- 
ings giving rise to Richardson v. Terales 402 U. S. 389 (1971) and 
Hannah v. Larche , op. cit. were public only in the most superficial sense 
of that word and certainly were not broadcast on national television. 

The footnote on page 10 of Memorandum of Respondents in Support of 
Motion to Dismiss displays again the consistency with which Respondents 
omit relevant information. TTie inference of that footnote is that the 
Select Committee is as procedurally fair as any Congressional comminee, 
an allegation which is demolished by a comparison of House Rule XI, 
Clause 33 with those procedures. (See Addendum to Memorandum in 
Support of Motion of Petitioners for a Preliminary Injunction, pp. 4-8). 
Once again in relying on United States v. Fort , 143 U. S. App. D. C. 25.S 
Respondents fail to inform this Court that the hearings which gave rise 
to that case were not broadcast on national television. 

Selectivity is expected in the choice of cases to be cited to support 
contentions in memoranda, briefs and arguments. However, the consistent 
failure of Respondents to refer to the procedures of the only near analogy - 
the Army-McCarthy hearings of 1954 - and to the protection of individuals 
provided by provisions of Clause 33 of House Rules XI must be construed 



1846 



^s ;in effort to divest the attention of the Court from a stated and major objec- 
ivc of this action - to prevent infringement of the Constitutional rights of U. S. 
[jltizens by abuse of the power of modern technology. 

In the same spirit, the Respondents argue on page 7 of their Memoran- 
dum in Support of Motion to Dismiss that they would be unpardonably remiss if t 
iid not push :forward to revelation of the facts by "accurately" informing the 
jublic of governmental corruption. TTiat is a proper duty for any instrument 
3f government, but it must be discharged under circumstances which protect 
:he rights of each and every individual citizen. The admitted hearsay charac- 
:er of much of the evidence developed by the Respondents cannot fail to cast 
joubt on their stated presumption that they are "accurately" informing the 
3ublic. No legislative purpose would be frustrated by the cessation of public 
lea rings of the Select Committee (See House Rule XI, Clause 33). Even with- 
3Ut the Respondents honoring the subpena duces tecum duly served on them, 
it is evident from the conduct of Respondents during public hearings and 
slscwhere that they are not causing public scrutiny of all (emphasis 
supplied) the facts relating to the Watergate scandal. 

IV. PETITIONERS HAVE STANDING TO BRING THIS ACTION. 
See Memorandum of Petitioners in Support of Motion for Preliminary 

[Injunction, pp 4 through 7 and Addendum thereto, pp I through 4. 

V. MOTION OF PETITIONERS FOR PRELIMINARY INJUNCTION MUST 
BE ALLOWED 

See Memorandum of Petitioners in Support of Motion for Preliminary 

Injunction, pp 2, 3 and 4 and Addendum thereto, pp 4 through 8, particularly 

p. 8. 



ley 



Respectfully submitted, 

aA L.a.jA../. 



1847 



. CERTIFICATE OF SER\aCE 

I hereby certify that the foregoing -Memorandum in Opposition to 
Motion of Respondents to Dismiss was served upon all Respondents hereto 

by hand -delivering a copy thereof to -- - -- — - ■• 

Attorney for such Respondents this 2lst day of September, 1973 in Court 
Room 7, Second Floor, United States Court House, Washington, D. C. 



Stephen Leonaj-d 
Attorney for Petitioners 



1848 

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



NATIONAL CITIZENS' COMMITTEE FOR 
FAIRNESS TO THE PRESIDENCY, INC., et al., 

Plaintiffs , 



SENATE SELECT COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES, et al.. 

Defendants . 



CIVIL ACTION 
NO. 1758-73 



TRANSCRIPT OF PROCEEDINGS 



Washington, D. C. 

Date: September 21, 1973 



Volume No. 
Pages: 1-27 
Prepared for: 



SENATE SELECT COMMITTEE 



ELAINE O. WEUL5 
OFFICIAL COURT REPORTER 

united stateb court house 
Wabhinoton, O. C. ZOOOI 



1849 



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



NATIONAL CITIZENS' COMMITTEE FOR 
FAIRNESS TO THE PRESIDENCY, INC., et al . , 



CIVIL ACTION 
NO. 1758-73 



Plaintiffs, 



SENATE SELECT COMMITTEE ON PRESIDENTIAL 
"AMPAIGN ACTIVITIES, et al . , 



Defendants , 



Washington, D. C. 

Friday, September 21, 197|3 

The above-entitled cause came on for hearing before 

THE HONORABLE JUNE L. GREEN, United States District Judge, 

it two p.m. 

APPEARANCES : 

JOHN S. BOTTOMLY, ESQUIRE 
STEPHEN LEONARD, ESQUIRE 

For the Plaintiffs 
ejaNAID D. ROTUNDA, ESQUIRE 

JAMES HAMILTON, ESQUIRE 
For the Defendants 



1850 



2 

THE DEPUTY CLERK: Civil Action No. 1758-73, National 
Citizens' Committee, et al . , vs. Senate Select Committee, Mr. 
Leonard for the plaintiff, Mr. Hamilton for the defendant. 

MR. LEONARD: May it please the Court, I am Stephen 
Leonard, counsel for the petitioners in this matter. 

I would like to present to the Court John S. Bottomly, 
a member of the court of Massachusetts, and I would like to 
move his admission for this case. 

THE COURT: We are glad to have you. 

MR . BOTTOMLY : Thank you , Your Honor . 

MR. LEONARD: I would like also. Your Honor, to introdjuce 
to the Court Rabbi Korff, one of the principal petitioners in 
this matter, who has come to Washington to participate in the 
proceedings . 

THE COURT: Very well. 

MR. LEONARD: Thank you. Your Honor. 

THE COURT: Would the defense care to introduce the 
people at their table? 

ilR. HAMILTON: Your Honor, my name is James Hamilton 
and I am Assistant Chief Counsel for the Senate Select Committee 
on Presidential Campaign Activities, and I represent all of 
the defendants in this case. 

v;ith me at the table are Mr. Ronald Rotunda, who is 
an Assistant Counsel for the committee, and Joel Kleinman,who 



1851 



who is a Research Assistant for the committee. 

THE COURT: Very well. 

First, I would like to ask the petitioners about the 
standing of your plaintiffs. 

MR. BOTTOMLY: Yes, Your Honor. 

v;e have dealt with that subject in our motion in sup 
port of the preliminary injunction and v/e have prepared an 
addendum to that which is on its way from the typist. It is 
in response to the motion -- excuse me. Your Honor. It is on 
its way from the typist. 

THE COURT: You are prepared to argue it at this time 
are you? 

MR. DOTTOMLY: I would like. Your Honor, if I may, to 
have you with the addendum before you while we argue it, but if 
you wish I will be glad to go f orv;ard . 

THE COURT: Do you have an idea as to when we might 
expect it? 

MR. BOTTOMLY: Momentarily, Your Honor. We expected 
it by this time -- before this time. 

Your Honor, we did not get the motion to dismiss 
from the respondents until 10:45 this morning, and we have been 
preparing since our responses to that. 

I am sure the Court is aware that the respondents had 
the pleadings as early as Monday, but they did not deliver a 
copy of their motion to dismiss to us until 10:45 this morning. 



1852 

4 

THE COURT: I didn't know they were served as early as 
Monday . 

MR. BOTTOMLY: They were, Your Honor. 

MR. HAMILTON: If I may say something, though. Your 
Honor, we did have the pleadings on Monday afternoon but we 
didn't know that the hearing was going to be this afternoon unt^l 
Wednesday . 

Of course, under local rules, we have ten days to reply 
to a motion for a preliminary injunction. 

MR. BOTTOMLY: In response to that. Your Honor, I vrau^d 
like to point out that just a cursory reading of the pleadings 
would indicate that our prayers were for an injunction against 
continuation of the public hearings next Monday. 

THE COURT: It v7asn ' t in the nature of a temporary re- 
straining order, however, vi^hich is one that vrould have brought 
it up more expeditiously. 

A preliminary injunction is not generally required 
to be set so rapidly. 

MR. BOTTOMLY: Yes, Your Honor, hut I just brought the 
point up as a factual matter that the respondents, when they 
read the pleadings, knew that we v/ould be seeking a hearing 
prior to next Monday. 

THE COURT: Can you give us an estimate as to how 
long you think it might be before we receive the papers? 

MR. BOTTOMLY: Well, v;e were informed at about 1:40 



1853 



5 

by the secretarial service, that they had been typed. We sent 
a messenger to get them, and it is a traffic problem at this 
point. Your Honor. 

MR. HAMILTON: Your Honor, if it would expedite these 
aroceedings, I am happy, even though I suppose I should go secon|d 
to go first, and make the arguments on standing and on any other 
points you would like to hear on at this time. 

THE COURT: Very well. Suppose you do. 

MR. HAMILTON: May it please the Court, my name is 
7ames Hamilton and, as I have said, I represent all of the 
lefendants in this matter. 

There are two motions before the Court this afternoon 
slaintiffs' motion for a preliminary injunction, and our motion 
for a dismissal. 

If I may I would like to deal first with our notion foj: 
lismissal . 

THE COURT: Very well. 

r4R. HAMILTON: As I read this complaint, plaintiffs' 
Claims are in essence this : 

First, that the Select Committee's actions are unlawfu 
|)ecause it is investigating criminal activity and exposing its 
indings to public view; 

Second, the Committee's activities are unlawful becaus 

bertain jury trial rights, the right to the exclusion of hearsay 

svidence, and the right to cross-examination by persons impli- 

ated in the testimony, are not observed by the Committee. 



34-966 O - 74 - pt. 2-41 



1854 



6 

Moreover, these plaintiffs assert that they may enjoin 
Senators from the exercise of their legislative duties even 
though none of the plaintiffs have been called or will be called 
before the Select Committee to testify. 

I would respectfully submit to the Court that rarely 
las a suit been brought that is so devoid of merit. 

First, it is a well settled principle that the Speech 
nd Debate clause of the Constitution protects Congressmen 
:rom suits that interfere with their official legislative duties. 

The recent Gravel case, which I am sure is well known 
bo the Court, eraphasizes that committee proceedings are a part 
)f a legislator's official duties and thus fall under Speech 
ind Debate immunity. 

But we need not rely solely on the immunity granted 
)y the Speech and Debate clause, because I believe that it is 
:lear that all of the actions challenged by the plaintiffs in 
:his suit are entirely legal. 

I submit that it hardly could be plainer that Congress 
has the power and the authority to investigate criminal ac- 
tivity in high administrative places. 

Perhaps the clearest expression of this principle is 
Eound in the Supreme Court's opinion in McGrain v. Daugherty, 
F/hich we cite in our brief. 

But I submit that the cases holding that a Congressional 
tommittee may investigate corruption and criminality, these 



1855 



7 

cases are legion, and Congress has exercised the power from the 
earliest days of the nation. 

It is also completely established that the Congress 
has the right to expose its findings regarding criminality and 
corruption to the public view. 

The Supreme Court, in the Watkins case and the Rumely 
case, which we cite in our brief, has emphasized the importance 
Df the Congressional informing function and, indeed, has said 
that this function is just as important as the function of 
snacting legislation. 

Now, there is no more justification for plaintiffs' 
claims that jury trial protections, such as exclusion of hearsay 
evidence, and the confrontation through cross-examination, should 
ae required or are required in Congressional hearings. 

This claim not only ignores the history of Congressionajl 
Investigations, but it also goes squarely against decisions by 
the Supreme Court and by our Court of Appeals. 

VJe have cited in our papers the Hannah case and the 
Fort case, which indicate quite clearly, I believe that hearsay 
and cross-examination rules do not apply to Congressional hear- 
ings, and that in fact it would be disruptive and unduly time- 
consuming to apply these jury trial protections to investiga- 
tory proceedings. 

Now, Judge Green, we submit that not only are plaintiffs 
claims on the merits unfounded, but that they have no standing 



1856 



to make these claims . 

As I have said, no named plaintiff has been called to 
testify before our Committee, and none will be. 

It is thus difficult to see how the plaintiffs have 
suffered any injury in fact, and I submit that any alleged injuijy 
to the public generally, if such does exist, is much too remote 
to create standing in plaintiffs as part of that public. 

The fact that some of the members of the mcunmoth class 
that the plaintiffs profess to represent, that is, all the 
citizens of the United States, will be called to testify before 
the Committee, is not sufficient to establish standing. 

I think it is settled law that a plaintiff can not 
bootstrap his ov/n standing by purporting to represent a class 
that includes certain members who will have standing to sue. 

I cite for this proposition the Supreme Court's early 
1960 opinion in the case of Bailey v. Patterson, which I think 
is dispositive in this regard. 

Now, plaintiff s' claim that as taxpayers they have 
standing to challenge the discretionary expenditure of a 
[Congressional appropriation is even more farfetched. 

Plaintiffs make no challenge to the actual appropria- 
tion itself, but only to the incidental expenditure of this 
pppropriation. 

Nothing in the opinion of Flast v. Cohen, which is the 
leading opinion in this area, gives them any standing to make 



1857 



9 
this claim. In fact, the Flast case indicates that taxpayers 
have no standing to challenge such incidental expenditures 
as involved in the present case. 

Uo\! , if I may, Your Honor, I v/ould like to say some- 
thing about plaintiffs' notion for a preliminary injunction. 

Of course, because plaintiffs have no chance of succe 
in this case, as I hope that I have demonstrated, any pre- 
liminary relief is inappropriate. 

But even if they had some sanguine prospect, relief 
would still be inappropriate. 

It is an elementary principle that a preliminary 
injunction v/ill not issue unless the plaintiffs can show 
that failure to grant it v/ill cause them irreparable harm and 
unless they can show that the injunction is in the public 
interest. 

They can meet neither of these tests. We cannot see 
how plaintiffs -- 

THE COURT: Counsel, the Court was hearing you solely 
on the basis of standing at this time, and on your motion to 
dismiss . 

We will permit the petitioners to respond. 

MR. HAMILTON: Thank you. Your Honor. 

MR. BOTTOMLY : Your Honor, on the matter of standing, 
I would like to present an exhibit if I may, please? 

THE COURT: Would you show it to the opponents, pleasi 



1858 



10 
THE DEPUTY CLERK: Plaintiffs' Exhibit No. 1 marked 
for identification. 

(Plaintiffs' Exhibit Mo. 1 marked 
for identification.) 
(Exhibit shown to Court.) 

THE COURT: I believe this letter asks not to have 
is name mentioned. 

MR. BOTTOMLY: That is correct. 

THE COURT: I don't see how we can receive it if in 
ood faith it was asked not to be mentioned. 

MR. BOTTOMLY: Well, Your Honor, if the Court would 
impound it --it is entirely up to counsel for respondents, 
if you are willing to do that. 

But this gentleman is a member of the corporate 
petitioner, and is represented by its Board of Directors and 
officers who are the other petitioners. 

THE COURT: I don't see how a suit can be brought by a 
named plaintiff who is not a named plaintiff, and asks that his 
name not be included or made public. 

This is beyond the Court's understanding. 
MR. BOTTOMLY: Well, Your Honor, I don't think, with 
all due respect, that it is far beyond the Common Cause actions 
that have been accepted by this court and are now pending, where 
the corporate non-profit organization was the principal petitioner 
ind one member was joined as a member of a class of individuals 



1859 



11 

in that case voters. 

If I may, Your Honor, I will get my memorandum now 
and speak to you on the issue of class. 

THE COURT: Mo. 

MR. BOTTOMLY: And our standing. 

THE COURT: The one member was one who would be likely 
to be injured or was injured. 

MR. BOTTOMLY: Yes, Your Honor. 

We believe that the dilution or invasion or failure 
to protect the rights of any citizen of the United States by a 
Congressional committee in the pursuit, or alleged pursuit of 
its legislative investigative function, dilutes and diminishes 
the rights of any citizen in the United States because 
it creates a precedent which may be used against 
any and. all citizens who appear before subsequent comm.ittees . 

THE COURT: First of all, we refer you to the Speech 
and Debate clause of the Constitution, Article I, Section 6. 

MR . BOTTOMLY : Yes , Your Honor . 

THE COURT: Which protects members of the committee 
from suits calculated to restrain the exercise of their official 
duties . 

MR. BOTTOMLY: I think the history of that and the 
Federalist papers and its operation has been that it was intended 
to restrain civil actions in an attempt to impose liability 
upon members of Congress in the exercise of their legislative 



1860 



12 
duties or some injury that might be alleged by a citizen as 
a result of the exercise of those duties. They — 

THE COURT: Are you not — 

MR. BOTTOMLY: Excuse me. 

THE COURT: Are you not offering to show that certain 
members of the class would be injured in the exercise of the 
Congressional duties? 

MR. BOTTOMLY: No, Your Honor. 

We are not asking for any monetary damages. We are 
not claiming any liability on the part of any of the respondents 
to us as individuals, or to members of the class we represent. 

We are representing that their conduct should be re- 
viewed by the court for the reasons stated in our petition, that 
they are subject to review by the court, that the actions of 
Congress are repeatedly reviewed by the courts, and that the 
citation of the clause by the respondents to avoid revie^^? of 
committee activity is not supported by a whole lin% of cases 
in which the court reviewed, for example. House Un-American 
Activities procedures and conduct, and, as Your Honor well knows], 
there is a very long line of such cases. 

The court has reviewed the Army McCarthy hearings in vjhich 
Inembers of the legislature had to respond to the action of the 
:ourt. 

It is in that context. We are not seeking any personap. 
iamages from any individual respondent. We are trying to 



1861 



13 



bring before the court our contentions that they have acted in 
a manner which damages the constitutional guarantees of the 
individuals under due process, that 4e facto, the record 
of the Select Committee will show that they have usurped the 
sole power of tlie House to impeach the President. 

One quotation — 

THE COURT: Well, now, I am sorry, but the Court doesn 
understand that there is any impeachment proceeding going on. 

MR. BOTTOMLY: I said de facto, Your Honor, and I 
base it on the statement of the Vice Chairman repeatedly made 
that his main interest in the hearings is: V7hat did the 
President know, when did he know it, and what did he do about i1^? 
I Now, if his inquiry is directed solely to the conduct 

of the President of the United States, we submit respectfully 
to the Court, that it amounts de facto to an impeachment pro- 
Iceeding. 

THE COURT: Let's get back to the parties in your 
action, since it is alleged that they lack standing. 

Now, I would have to call upon you at this time to 
either enter the gentleman's name as a party to the action or 
that the Court v/ould not be able to consider it. 

MR. BOTTOMLY: Rabbi Korff has authorized me to enter 
his name as a party. Your Honor. 

THE COURT: Although he says in his letter he does not 
wish it? 



1862 



14 

RABBI KORFF: If I may respond. He did not — 

THE COURT: Excuse me. I am afraid you can't talk 
from back there. We can't hear you. 

You may come forward, if indeed your counsel wants 
you to. It wasn't anticipated we would take any testimony, so 
I was directing the question to counsel for the organization. 
You are one of the plaintiffs, I believe. 

RABBI KORFF: Yes, Ma'am. 

THE COURT: I was simply asking that either the gentle- 
nan be named a party plaintiff, or not be, and I didn't know hov 
the Court could accept it when he has asked not to be named. 

It is that simple. 

MR. BOTTOMLY: Your Honor, by leave of the Court, if 
^abbi Korff could address Your Honor on this subject, because 
the letter is addressed to him, 

I don't feel authorized to speak. 

RABBI KORFF: As Your Honor will note, Mr. Colson made 
I contribution of $5.00. The only reason, and he explains it 
.n his letter, why he does not wish us to use him as sponsor is 
>ecause he might be a witness before the Senate Select Committee 
ie so spells it out. 

But any contributor to our cause is a member, and so 
^s far as we are concerned, Mr. Colson is a member. 

While I am at this pulpit for a moment. Your Honor, 
I want to point out that I look upon any court as a sanctuary, aiid 



1863 



I 15 

when I am here I feel as if I am in a sanctuary. 

MR. BOTTOMLY: If I may. Your Honor, a sponsor in the 
organization is one who gives Rabbi Korff authority to use his 
or her name in the advertisements which the organization has 
caused to be printed in various papers throughout the United 
States, and paid for by the proceeds or from contributors such 
ps this gentleman. 

THE COURT: The Court understands at this time you 
ish to amend your pleadings to include Mr. Colson's name, or 
ot? 

MR. BOTTOMLY: Those are my instructions, yes. Your 
Ijionor . 

THE COURT: Now, I would like to direct your attention 
:o the ability to sue the members you filed suit against, the 
Senate Select Committee on Presidential Campaign Activities, 
ind each and every member thereof. 

MR. BOTTOMLY: In addition to the remarks I have already 
lade about the Speech and Debate clause? Are you referring to 
:he class action aspect of the case, Your Honor? 

THE COURT: No. I am referring primarily to the pro- 
hibition against same by the Constitution of the United States. 
MR. BOTTOMLY: V'Jell, the Speech and Debate clause of 
Ihe United States Constitution was intended to and does immunize 
( ongressmen and their aides from liability for their actions — 
THE COURT: Then that means they can't be sued, isn't 
Ihat correct? 



1864 



16 

MR. BOTTOMLY: No, Your Honor, not in our judgment. 
It means that they have ro liability. They have no economic 
consequences . 

It is analogous to the criminal immunity which members 
of Congress have going to and from sessions of Congress, and 
it is a very limited -- 

THE COURT: But it states specifically that it protects 
the members of the committee from suits calculated to restrain 
the exercise of official duties. 

Now, isn't that exactly what this case is? 

MR. BOTTOMLY: V^Jell — 

THE COURT: It is an attempt to restrain the members 
of the Senate Committee from the exercise of their Senatorial 
duties? 

MR. BOTTOMLY: No, Your Honor, it is not. 

I think the injunction is very carefully worded, 
as is the petition, that all we seek in these orders is restrair|t 
from public hearings. 

We are not at this time putting forth any argument 
to restrain investigation by the Committee. 

Our draft orders v^hich are put before Your Honor refer 
[constantly to public hearings only. 

We are not in any way trying to restrain them from 
[what we consider -- and this goes to the merits of the case, 
of course — the proper exercise of their legislative functions, 



1865 



17 
and in that connection, Your Honor, which, of course, in order 
to h»ve you act favorably on the preliminary injunction, it is 
incumbent on us to at least attempt to persuade you that we 
have some merit to our case. 

In that connection, I would like to read a portion 
of our memorandum. 

THE COURT: Now, the Court has it before it. Is that 
what you have filed or what is coming? 

MR. BOTTOMLY : No, this is new material. Your Honor, 
which we wrote in response to the — 

THE COURT: Which we do not have yet? 

MR. BOTTOMLY: No, Your Honor, just simply because 
of the typing. 

This is an addendum which is respectfully submitted 
for consideration with the memorandum submitted with and in 
support of the motion of petitioners for a preliminary injunction, 
and in anticipation of a motion to dismiss which respondents 
informed counsel for the petitioners they would file on 
September 21, 1973. 

THE COURT: Will you talk a little louder, please? 

MR. BOTTOMLY: Yes, Your Honor. 

The Court has jurisdiction of this action. A distinc 
basis of jurisdiction is that provided by 28 U.S.C. Section 
1331(a) over Federal questions where the amount in controversy 
exceeds $10,000. 



1866 



18 

The chief aim of the jurisdictional amount limitation 
in Section 1331 is to avoid consuming the resources of the Fedei 
courts in resolving petty controversies. 

THE COURT: You said that it didn't involve money, 
didn't you? 

MR. BOTTOMLY: It involves public funds. Your Honor. 
It involves the taxpayers' funds and, as we have alleged in our 
pleading, the conduct of these hearings in private v/ould be 
substantially less expensive to the taxpayers and more producti\ 
to the legislative purpose than if they are held in public. 

THE COURT: Is it your thought that this Court has the 
authority to tell not only the Senate Committee how it shall 
conduct its hearings, but with specificity? 

MR. BOTTOMLY: Well, I think that, yes. Your Honor, 
it can speak only in very broad terms, and all we are asking 
the Court to do is to speak in broad terms as comparing a 
private or executive session with the public session. 

Now, the respondents rely heavily on McGrain v. 
baugherty as being dispositive of the prayers of the petitioner 
Decause, it is alleged, it includes argument substantially 
similar to the arguments of petitioner. 

There is a similarity in some of the arguments but 
tfe submit. Your Honor, that the facts relating to McGrain v. 
Jaugherty and the instant case are substantially different. 

28 U.S.C. Section 1331 and 1343(4) did not exist in 



al 



1867 



19 
1927. Rule 23(b)(3) did not exist in 1927. 

Radio broadcasting v/as a relative infant in 1927, 
Television broadcasting did not exist in 1927. 

The technical and legal developments since 1927 
[vastly increased the potential of any public hearing of Congress 
to establish precedents impairing and irreparably damaging the 
constitutional rights of citizens of the United States, 

Concomitant with those technical developments, but 
necessarily lagging behind, has been the establishment of 
statutory and case law and rules of procedure to continue the 
protection of the constitutional rights of all citizens of the 
United States. 

Broad judicial acceptance of the wisdom and the 
hecessity of the expansion of who could ask the court to protect 
:hose rights is evident in the cases cited in the memorandum 
3f petitioners in support of preliminary injunction and addendum 
thereto . 

That this particular court is a leader in recognition 
land nurturing that growth has been most recently demonstrated 
by the Common Cause cases cited in the memorandum of petitioners 

This case constitutes a logical extension of those 
Icontinuing developments to protect citizens of the United States 
from the tyranny of technological advances. 

Respondents argue on page seven of their memorandum 
in support of motion to dismiss that the public has a right to 



1868 



. 20 
be accuratelv informed. 

There is no supnort for the accomoanvinq contention 
of respondents that the right of the public to information 
overrides the constitutional protection of the citizens of the 
United States. 

The development of those Congressional procedures 
discussed in the addendum to the memorandum of petitioners in 
support for preliminary injunction is contra to the contentions 
of respondents in this regard. 

The informing function of Congress must be and, in 
the case of the House of Representatives , has been circum- 
scribed v;ith protections of the individuals. 

A V7itness before a Congressional Committee is en- 
titled to the protections of due process of law, Watkins v. 
United States. 

The procedures necessarv to assure that protection 
must adapt and have adapted to changina technoloav. 

The Constitution and its implementation are not 
static. The power of inauirv must be exercised with due regard 
to the rights of witnesses. 

This action is not a rash and belated action. It has 
been commenced in good faith as soon as possible as the facts 
UPon which it is based became known. 

It is consistent with and analogous to actions by a 
similarly chartered uon-profit corporation presently pending in 



1869 



21 
this court. 

Respondent Sam J. Ervin has stated in effect that the 
subject matter of the investigation of the Select Committee is 
a more traumatic experience to the United States than was the 
Civil War. 

In that connection. Your Honor, and in response to the 
contention in the motion to dismiss, the right of cross- 
examination has in the past been granted to some witnesses in 
front of Congressional investigating committees — 

THE COURT: That may have been done but there is no 
requirement for it, counsel. 

MR. BOTTOMLY: May it please the Court, I think the 
continuity of the argument I hope is persuasive, that it all 
tiopefully ties together. 

That was specifically done during the Army McCarthy 
hearings. Special rules for this unusual proceeding were ii 
fact adopted by the Committee on Government Operations. 

The statutes and rules of Congress relative to con- 
iucting and broadcasting hearings appear to be important on this 
point. 

Title 2 of the U. S. C. Section 190a-l(b) provides 
- quote — each hearing conducted by each standing, select , or 
Special committee of the Senate, except the Committee on 
Appropriations, shall be open to the public except when the 
;ommittee determines that the testimony to be taken at that hearihg 



34-966 O - 74 - pt. 2-42 



1870 



22 

may relate to a matter of national security, maf tend to refleci: 
adversely on the character or reputation of the witness or any 
other individual, or may divulge matters deemed confidential 
under other provisions of law or Government regulation. 

Whenever any such hearing is open to the public that 
hearing may be broadcast by radio or television or both under 
such rules as the committee may adopt. 

In its present form 2 U.S. Code, l^Oaol-d^) was 
enacted as Section 112(a) of public law 91-510, Legislative 
Reorganization Act of 1970, passed by the House of Representa- 
tives October 8, 1970, and the Senat^ October 6, 1970, to be 
effective in January 1971. 

The House bill H.R. 17654 was passed in lieu of the 
Senate bill, hereinafter at times referred to as the bill. 

The House report No. 91-1215 is set out in 3 United 
States Congressional Administrative News 1970, Volume 2, at 
page 4417. 

Section 112 of the bill relates to open hearings of 
Senate and House standing, select and special committees. 

Section 112(b) of the bill provides that each hearing 
;;onducted by each house standing, select and special committee, 
shall be open to the public except when the committee by a 
najority vote determines otherwise. 

Section 116 of the bill pertains to the broadcasting 
dh radio and television of the hearings of Senate and House 



1871 



23 
standing, select, and special committees. 

Section 116 (b) of the bill adds a new clause, 33, 
to House Rule 11, providing for the coverage of House committee 
hearings by radio and television broadcast and still photo- 
graphy. 

Quoted herewith is a portion of House Report No. 91 -124-5, 
said new clause 33, through paragraph (f) (2) thereof. 

With respect to the House Section 116(b) — 

THE COURT: Do you want to just confine it to the 
Senate since that is the only one we have before us at the 
moment? 

MR. BOTTOMLY: Your Honor, the burden of our case is 
that the Senate lags behind the House and that in the protection 
of the rights of individual citizens who appear before public 
hearings, it is -- 

THE COURT: Excuse me. This doesn't apply to the 
Senate, what you have been reading? 

MR. BOTTOKLY: I beg your pardon? 

THE COURT: It doesn't apply to the Senate. Is that 
what you are saying? 

MR. BOTTOMLY: I am saying that it is House rules and 
I am saying. Your Honor — 

THE COURT: I guess we will have to go by the Senate 
rules in a case involving the Senate. 

MR. BOTTOMLY: Well, Your Honor, if I may, one of the 



1872 



24 
problems which we must address ourselves to when we request a 
preliminary injunction is that we are not imposing an undue 
burden on the respondents and I offer this evidence, if you wil] 
this documentation, to support the contention that a co-equal 
branch of the Congress not only does not consider what we ask 
a burden, but it requires it of its committees when they are 
in public session and on television. 

That is the premise upon which I offer this to the 
Court, Your Honor. 

THE COURT: This is a request for a preliminary 
injunction and we feel rather limited in scope as to hov; far we 
can go on that, and we would not certainly be able to go far 
afield in considering something that does not apply to the 
Senate. 

MR. BOTTOMLY: Well, Your Honor, I think it applies 
to your decision under the Perry case on a preliminary injunctic 
in relation to v^;hether it is an undue burden on the respondents 
and whether the expeditious relief is reasonably requested, 
whether the relief we are asking is reasonable, is necessary, 
and whether or not the burden that relief would impose on the 
respondent is onerous, and we submit. Your Honor, that the 
House Uule 11, clause 33, is evidence that a co-equal branch of 
Congress does not consider it burdensome. 

We don't say that the House Rule applies to the 
Senate. We submit it to Your Honor hopefully to be persuasive 



1873 



25 
[that the relief we seek is not burdensome on the Senate. 

You do not wish me to continue to read? 

THE COURT: I do not wish to hear any more of the House 
Rules . 

MR. BOTTOMLY: All right. Your Honor. 

Your Honor, there has been filed — if I may, unless 
you wish to direct me to some other specific point at this time 
I would like to bring up another matter. 

THE COURT: All right. You may go ahead. 

ME. BOTTOMLY: We have been hampered considerably, 
Your Honor, by the fact that the respondents refused to produce 
information and documents which were requested by a duly issued 
subpoena of this court. 

The respondents served us yesterday with a motion to 
postpone their response to the subpoena. We believe that the 
material that would be made available to the court by a positive 
response to the subpoena would be most helpful to it in making 
a decision about the preliminary injunction requested by the 
petitioners . 

With your permission. Your Honor, I would like to reac 
to you our memorandum in opposition to the postponement. 

THE COURT: Has it arrived yet? I would like it filec 

MR. BOTTOMLY: This is the one — the subpoena. 
Their motion, I presume -- 

THE COURT: V-Je haven't reached that point at this 



1874 



26 
stage, so we will not go into it at this time, since at this 
time the question is whether or not this action may be maintained, 

MR. BOTTOMLY: Well, we submit. Your Honor, that the 
production of those documents is necessary to a decision on that 
by the Court and if by your direction to me you are instructing 
me not to submit our memorandum in opposition at this time -- 

THE COURT: You may file it, indeed, if you like. 

MR. BOTTOMLY: For your consideration at this time, I 
would like to take exception to that. Your Honor. 

THE COURT: You may file it, certainly, in the case. 
We are not considering it at this time. 

MR. BOTTOMLY: Well, I would like to urge again. Your 
Honor, that the production of these documents is, in our 
judgment, essential to the Court for it to make a decision on 
our preliminary prayers, for preliminary injunction, and I 
would like to present our arguments in that regard to the Court 
for its consideration. 

THE COURT: The Court must first of all consider whether 
or not the petitioners have standing and, secondly, whether or 
not the Constitution permits them to attempt to enjoin the duties 
of the Senators while they are actually serving in the Senate. 

The Court will have to resolve that against the 
petitioners and, therefore, I don't believe it would be necessarjy 
for us to consider the question of subpoena duces tecum. 
Accordingly, the suit is dismissed. 



1875 



27 
MR. BOTTOMLY: I give the Court notice of appeal, 
Yoiur Honor. 

THE COURT: Certainly. 

****** 

The foregoing is certified to be the official 
transcript of the proceedings indicated. 



'^^— BKfine 0.~Wells 

Official Court Reportei 



1876 



THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



NATIONAL CITIZENS' COMMITTEE FOR 
FAIRNESS TO THE PRESIDENCY, INC. , et al 

Plaintiffs 



Civil Action 
No. 1758-73 



SENATE SELECT COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES, et al 

Defendants ) IT I I P» r^ 

SEP 2 1 19n 

JAil£S i. vAVti, Clerk 
These matters having come before the Court on plaintiffs' 
Motion for Preliminary Injunction and defendants' Motion to Dismiss and 
the Court being of the opinion that plaintiffs' motion should be denied and 



ORDER 



defendants' granted, it is hereby this 



') 



day of September, 1973, 



ORDERED, that plaintiffs' Motion for Preliminary Injunction 



be and is denied, and it is further 



ORDERED, that defendants' Motion to Dismiss be and is granted. 




Juiie L. Green 
United States 
District Judge 



1877 



CIVIL SUBPOENA 



Mititrti #tatrs ^tatrirt Court 

for the 

jOiatrict of (Ealumbta 

NATIONAL CITIZENS' COMMITTEE FOR 
FAIRNESS TO THE PRESIDENCY. INC. , et al 

Plaintiff. 

SENATE SELECT ^s.cOMMITTEE ON PRESI- Civil Action No. .1758-73. 
DENTIAL CAMPAIGN ACTIVITIES, et al 



Defendant. 

-Pq. Senate Select Committee onJPresidential Campaign Activities 
(serve Hon. _Sam_J. Ervin, Jr. _, Chairman} 

You Are Hereby Commanded to appear in (this court) (i 



) 



to give testimony in the above-entitled cause on the 2lst_ day of September... , 19.. 7.3, 

2*00 P 
at —.J.—— o'clock ... m. (and bring with you) — 

See Attachment hereto which is made a part hereof 



and do not depart without leave. 



^^^^ 



^.September 2\, 1973 
Tt'ephen "LeonaraT'T'eaeraT'Far 
Washingt on, P. C. 20006 
Tel. 393-1565 
(202) 



ROBERT M. STEARNS, Clerk 



Attorney for • ^'"'"'5' , 
' Defendant. 



By 



RETURN ON SERVICE 



Summoned the above-named witness by delivering a copy to h 
for one day's attendance and mileage allowed by law, on the . . 
19 , at 



Dated 



Deputy Clerk. 



and tendering to h the fees 

day of . , 



Subscribed and sworn to before me, a 
, 19 



this day of 



Note. — Affidavit required only if service is made by a person other than a U. S. Marshal or his deputy. 



1878 



•r\'n, ' '•I'.i'oiMA - I--TI i"n v' \i i<; n;'. i \nc:\ coim'v for the ni.s'imrT or 

' "1 ( '\i|UA 
I'AC'IIAM'N'I 'lO: 



'JiATfONAI, ( 



'I r(zi.>'s' (:oMMn"'i i;!-: I'ou 

■AFRNI'SS -lO 'I 111' ni^xl-Sfni'NflY, FX'C. , oral 



iT-NATE SnT.FCT COK4MrTTnE ON 
1U'SIi:)ENTIAL AO'I [VniES, er al 



CIVFL ACTION NO. 17.S8 - 73 



land brin(T wivli \'ou) 

\. Anv and all records, memoranda and transcripts of conferences and discussions 
[formal and informal) and testimony relating to deliberations, considerations, discussions 
|n'i(l determinations by Defendant Committee regarding proceedures to be employed by 
pefendani Committee pursuant to Title 2 United States Code, Sec. 190 a-1. and in 
jwrticular litlc 2 United States Code, Sec. 190 a-l(b). 

I 

2. A copy of the vritten statement of proposed testimony of John V^ Dean III filed 
vith the Clerl: of Defendant Committee and the digest thereof prepared by the staff of 
~>efendant Committee pursuant to Title 2 United States Code, Sec. 190 a-1. (c). 

3. Any and all records, memoranda and transcripts of conferences and discussions 
formal and informal) and testimony relating to deliberations, considerations, discussions 
ind determinations by Defendant Committee and its members and others: 

(a) relating to or concerning the relationship between the House of 

Representatives and tlie Senate regarding the sole power delegated to 
the House of Representatives for impeachment granted by Article I, 
Section 2 of the Constitution and the sole powers granted to the Senate 
pursuant to Article I, Section 3 of said Constitution, 

(h) relative to the relationship of the proceedings of the Defendant Committee 
and the Judicial Branch of the United States of America concerning the 
possible interference of proceedings of the Defendant Committee with 
Article III, Section 2 of the Constitution of the United States, and 

(c) providing for the protection of the rights of witnesses and any other 
persons under due process of law as set forth in Article 5 of the 
Articles in Addition to and Amendment of the Constitution of the 
United States of America. 



1879 




1880 



UNITED STATES DISTRICT COURT 

FOR THE 

DISTRICT OF COLUMBIA 



FHJTO SEP » 4 isra, 



J«fV" P, V/EY 



NATIONAL CITIZENS' COMMITTEE FOR ) 
FAIRNESS TO THE PRESIDENCY, INC. et. al.) 



) CA No. 1758-73 



SENATE SELECT COMMITTEE ON ) 

PRESIDENTIAL CAMPAIGN ACTIVITIES et. al.) 



NOTICE OF APPEAL 



Notice is hereby given that Petitioners above •named, : 
hereby appeal to the United States Court of Appeals for the 
District of Columbia Circuit frcm the dismissal of the petition 
entered in this action on the 21st day of September , 1973. 




DOUGLAS E. BYWATER,' ESQUIRE 
DUVALL, TATE, BYWATER McNAMARA and 

DAVIS 
10560 Main Street 
Fairfax, Virginia 22030 
591-4900 



^ 



^r)^ufm^^. 



DWARD COOPERSTEIN, ESQUIRE 
Taunton, Massachusetts 



1881 

IN THE SUPREkE COURT 

OF THE 

UNITED STATES 



NATIONAL CITIZENS' COMi-lITTEE FOR 
FAIRNESS TO THE PRESIDENCY, INC. et. al. 



SENATE SELECT COl-lMITTEE ON 
PRESIDENTIAL CAMPAIGN ACTIVITIES et. a. 



A -2 1^ 



PETITION FOR INJUNCTION 
PENDING APPEAL 

Come now the Petitioners, by counsel, and respectfully 
move this Court, pursuant to Rule 8 of the Federal Rules of 
Appellate Procedure, to grant an injunction during the pendency 
of the appeal^ in the above-styled case, and as reason therefore 
state as follows: 

1. On September 21, 1973, the District Court for the 
District of Columbia, the Honorable June Green presiding, 

dismissed the petition for declaratory and injunctive relief. 

2. The reason stated by the Court below for the 
dismissal was an asserted lack of "standing" to bring suit. 

3. Petitioners have standing to assert this claim, 
and to represent all members of the Fairness Committee, and 
all United States citizens who are in Petitioners' class. 

See the attached copies of the Pleadings filej in the Court below, 
and the Points and Authorities cited hereafter. 



ARGUMENT 

The Fifth Amendment to the United States Constitution 
provides, in pertinent part: "No person shall . . . be deprived 
of life, liberty, or property, without due process of law . . . ' 

The Sixth Amendment to the Constitution provides in 
pertinent part: "In all criminal prosecutions, the accused 
shall enjoy the right to a . . . public trial, by an impartial 
jury ..." 



1882 



No branch or instrumentality of The United States 
Government, including The United State Senate, ought to be 
allowed to embark upon a deliberate, concerted effort to ' ■'> 
deprive citizens of The United States of their rights under the 
Fifth and Sixth Amendments. 

The Senate Watergate Committee, pursuant to its power 
and authority as a part of The Government of The United States, 
subpoenas witnesses to testify before it. These hearings are 
publicized by the media, including live television and radio. 
Witnesses before this Committee have in the past,- with prior 
knowledge of the Committee, made allegations of criminal 
conduct against members of Peitioners' class. These witnesses 
were not subject to cross-examination by the accused members of 
Petitioners' class nor was their testimony subject to the rules 
of evidence. 

Petitioners have cause to believe that on the 24th 
day of September at 10:00 a.m. The Senate Watergate Committee 
will continue hearings conducted in the manner as above described. 
If allowed to continue, no member of Peitioners' class, who 
may be accused of criminal conduct, will be able to obtain a 
fair trial as guaranteed to each citizen of The United States 
by the Fifth and Sixth Amendments. The probability that a 
prospective juror will have seen and heard an accusing witness 
testify, without the Constitutional safeguards of cross- 
examination, confrontation, and the rules of evidence is exceed- 
ingly great. 

Enjoining The Senate Watergate Committee to prevent 
its witnesses from publicly accusing other citizens of 
criminal conduct, without the Constitutional safeguards, will 
not in any manner inhibit The Committee's right to gain the same 
information in private session; but will protect Petitioners 
from irreparable harm. 



-2- 



1883 



Wherefore, Petitioners pray that a Preliminary 
Injunction issue, enjoining The Senate Select Committee 
from pioblicizing the testimony of any witness that it has 
reasonable cause to believe will accuse a member of Petitioners' 
class of criminal conduct. 

MAJOR POINTS AND AUTHORITIES 

Jurisdiction: 

Fifth Amendment, U.S. Constitution 
(right to due process of law) 

Sixth Amendment, U.S. Constitution 
(right to trial by impartial jury) 

28 U.S.C. 1343 (4) 

any person can seek equitable relief 
under any Act of Congress providing 
protection of Civil Rights (e.q. 2 
U.S.C. 190a - 1 (b) ) 

Yeller v. United States , 374 U.S. 109; Waticins 
V. United States , 354 U.S. 178; Sinclair 
V. United States , 279 U.S. 263; United States 
V. DeCarlo, 102 F. Supp. 597, 602; United 
States V. Rumely , 345 U.S. 41 

(witnesses before Congressional Committees 
are accorded due process rights; a fortiori 
persons not present who may be accused of 
criminal conduct should be accorded 
procedural fairness in situ^ations wherein 
they have no opportunity to respond, and in 
which the charges are sensationally 
broadcast to millions.) 

Bivins v. Six Un)cnown Named Agents of Federal 
Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 
2d 619 (1971); Williams v. Rogers , 449 F 2d 
513 (8 Cir. 1971); Bethea v. Reid, 445 F. 2d 
1163 (3Cir. 1971) 

Federal personnel who deprive persons of their 
federal constitutional rights can be sued for 
demages and other (equitableiand declaratory) 
relief, under 28 U.S.C. 1331, since such 
actions arise under the Constitution of the 
United States. Not only Fourth Amendment rights, 
but all federal constitutional rights are here 
protectable, including substantive and 
procedural due process, and the fair trial 
guarantees of the Fifth and Sixth Amendments. 
If the Executive Branch is subject to suit for 
violation of Fourth Amendment rights, the 
Legislative as a Co-Equal Branch of Government »i 
likewise subject to restraint against the 
unlawful deprivation of rights under the Fifth 
and Sixth Amendments. 



-3- 



standing 



1884 



Flast V. Cohen, 392 U.S. 83 (1968) 
Federal taxpayer has standing to 
enjoin operation of portions of Elementary 
and Secondary Education Act of 1965 as 
violative of the Free Exercise and 
Establishment clauses of the First Amendment. 
Issue is whether Petitioner has alleged such 
a personal stake in the outcome as to 
assure that concrete adverseness which sha^ens 
presentation of issues uponAfeourt relies for 
illumination of difficult question. 

Rule 23, Federal Rules of Civil Procedure 
(pertains to class actions) 

Association of Data Processing Service v . 

Camp, et. al ., 397 U.S. 150, 152-153, (1970) 
(Petitioner has "injury in fact" and the 
injury must come within the "Zone of 
interests" which regulation Ofi statute 
designed to protect. 

Sierra Club v. Morton , 92 S. Ct. 1361, 1367-68 
(1972) . (1) Injuries other than economic 
oS^ are sufficient to give standing. 
(2) An organization whose members are 
injured may represent those members 
in a proceeding for judicial reviews. 

Carpenter v. Hall, 311 F. Supp. 1099 (E.D.Tex. 
1970); Katy-v. Carte Blanche Corp ., 52 
F.R.D. 510 (E.D. Pa. 1971) . The fact that 
the class is numberous does not mitigate against 
allowance of the suit as a class action. In the 
instant case, all U.S. citizens face the 
prospect that the accusing finger may point to 
them, as the result of Respondents^manner 
of conducting the hearings. 

Common Cause, et. al. v. Democratic National 



Ccxnmittee, 


et. al., 333 F. Supp. 803 


(D.C. D.C. 


1971); Common Cause, et. al. 


V. Finance 


Committee to Re-Elect the President, 



et. al. (D.C. D.C. Civil Action No. 1780 - 72); 
Common Cause v. Jennings (D.C. D.C. Civil Action 
No. 848 - 72 June, 1972). 

Common cause allowed to represent, among others, 
"all registered voters in the several states and 
the District of Columbia" in suit to obtain 
greater access for the voters to candidates ' 
finances. The rights sought to be protected in 
this petition are as important as the right to 
vote. 



-4- 



1885 



Perry v. Perry , 88 U.S. App. D.C. 337, 
190 F. 2d 601, 602 (1951) 

(balancing of damage to Petitioners against 
conveniences of Respondents) 



CERTIFICATE OF SERVICE 

Counsel for Petitioners hereby certify that a copy 
of this Petition was hand delivered to Counsel for Respondents 
this 24th day of September, 1973. 




;las 

3UVALL , 
AND DAVI 
10560 Mai 
Fairfax, 
591-4900 



EDWARD COOPERSTEIN, ESQUIRE 
Taunton, Massachusetts 



-5- 



34-966 O - 74 - pt. 2-43 



1886 

■S&i!fe& liSsi';^ €-mv^i m ^nn^^tih. 



ron TM!; DiST.TicT or coi umoia circuit 



No. 73-2012 September Term, S973 

National Citizens' Conur.ittei;: ior Fairness Civil Action 1758-73 

to f)o Presidency^ Inc., et v.\., 

Appellants .< -. , -..a - s^-. ■■■. ■■ - ;. 

f:,- i;.i Oistr.ii :.' C;i--c:j Ci:;... 
v« 

Senate Select Coiiiniittee on Presidential iitLiJ 

campaign Activities, et al. HUGH E. KLINE 

CLERK 

Before: Eazelon, Chief Judge; and Wilkey, Circuit Judge 



ORDER 



On consideration of the petition for injunction penc ing appeal, 
and of tho memorandum in opposition to plaintiffs' motion for 
preliminary injunctions cind in support of defendants' motion to 
dismiss, it is 

ORDERED by the Court that the aforesaid petition fc-: injunction 
pending appeal is denied. 

Per Curiaim 

For the Court: 



Hugn E. Kline^ 
Clerk 



mn 



1887 



SUPREME COURT OF THE UNITED STATES 

OFFICE OF THE CLERK 

WASHINGTON. D.C. 20543 



September 27, 1973 



Gilbert K. Davis, Esqiilre 

Duvall, Tate, By.7ater, MclJamara & Davis 

10560 Main Streat 

Fairfax, Virginia 22030 



RE: National Citizens* Committee for Fairness 
to the Presidency, Inc., et al., v. Senate 
Select Conmi ttee on Presidential Campaign 
Activities, et al.. A-319 



Dear Mr. Davis: 

Your application for an injxmction 
pending appeal in the above-entitled case was 
presented to Mr. Chief Justice Bxirger, who has 
endorsed thereon the following: 

"Denied. 9/26/73. 
W. E. B." 

Kindly advise other coimsel of this 
action. 

Very truly yotirs, 

MICHAEL KODAK, JR., Clerk 

By 



Arthur G. Chris tean 
lab Deputy Clerk 

vjC<J: Sanxiel Dash, Esquire 
Cliief Counsel 
Senate Select Committee on 

Presidential Campaign Activities 
United States Senate 
VJashington, D. C. 20510 



1888 



United states court of appeals 

HUGH E. KUN£ ^^'^ '''•^^ DISTRICT Or COLUM3!A CIRCUIT 



cumc 



WASHINGTON. D. C. 20001 



January 31, 1974 

In Rer No. 73-2012 National Citizens* Committee for 
Fairness to the Presidency, Inc., et al . v. 
Senate Select Committee on PresidentiaT Cam - 
paign Activities, et al . 



Douglas E. ByA'ater, Esquire 
10560 Main Street 
Fairfax, Virginia 22030 



Dear Mr. Bywater: 

The docket in the above case reflects that an order 
was entered on September 24, 1973, denying the petition 
for injunction pending appeal. 

Also, the docket reflects that on that same date a 
certified record of certain pleadings was prepared and 
hand- delivered to the Supreme Court. To my knowledge this 
office has not received notice from the Clerk's Office of 
the Supreme Court that a petition for writ of certiorari 
has been filed. 

Would you kindly advise me of the status of the 
proceedings in order that our docket records m.ay be kept 
up to date. " 

Very truly yours, 

Hugh E. Kline, Clerk 



.niel M, Cathey V 



By: 

Daniel M, Cathey 
Deputy Clerk 



DMC/pm 



1889 



ISnit^Jit #taf ^s Court ot Appeals 



FOR THE DISTRICT OF COLUMeiA CIRCUIT 



■ No. 73-2012 September Term, 19 73 

civil Action 1758-73 

National citizens' Committee for Fairness 

to the Presidency, Inc., et al„, Li'"-' ' 5?.'!=" Cj"'-- rf ';--,--,. 

Appellants ■• rs'-c' rj c-i --^ '•■JJ^ ^ 



V. 



ffltD APR 2 9)974' 



Senate Select committee on Presidential HUGH E KLIf-JP" 

Campaign Activities, et al, clerk 

Before: Bazelon, Chief Judge and Wilkey, Circuit Judge. 

OR D E^^ 

On consideration of appellants* unopposed motion to 
dismiss, it is 

ORDERED by the Court that the motion is granted and 
this appeal is hereby dismissed. 

The Clerk is directed to transmit a certified copy of 
tihis order to the Clerk of the District Court as promptly 
as the business of his office permits. 

Per Curiam 



1890 

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COL 1MB I A 

IN THE MATTER OF THE APPLICATION OF THE 

UNITED STATES SENATE SELECT COMMITTEE ON MISC. NO. 70-73 

PRESIDENTIAL CAMPAIGN ACTIVITIES 

(John J. Ragan) 

Friday, October 5, 1973 
BEFORE THE HONORABLE CHIEF JUDGE JOHN J. SIRICA. 

APPEARANCES : 

RONALD ROTUNDA, ESQ., On Behalf of the Senate Select 
Ccmmlttee 

PHILLIP HERRICK, ESQ., On Behalf of John J. Ragan. 



NICHOLAS SOKAL 

OFTICIAL COURT REPORTER 
4800 -F UNITED STATES COr RT nO SZ 

WASHINGTON, D C -m'ii 
426 - 7454 



1891 



2 
PROCEEDINGS 

(10:00 a.m.) 

THE COURT: All right. 

MR. ROTUNDA: Good morning, Your Honor. 

On behalf of the Select Canmittee we would like to 
apply for immunity for Mr. John J. Ragan. As our application 
which we have already submitted to the Court indicates, on Sept^bei 
12 the Select Committee voted to grant Mr. Ragan immunity. On 
September 14 the Attorney General and his designated special 
prosecutor was notified. Ten da/s have elapsed and the govern- 
ment has not asked for a twenty-day deferral. The application 
indicates the other procedural requironents have been met and 
we respectfully request that the order issue. 

THE COURT: Have you examined the papers, Mr. Herrick^ 

MR. HERRICK: Yes, I have. Your Honor. 

THE COURT: Are they in proper form? 

MR. HERRICK: Yes, Your Honor. 

I would like to make one short reservation, if I may. 
Just in case it ever becomes important and I don't think it ever 
will, I would like to reserve and not waive my right to claim 
that the Committee is acting without jurisdiction in this case 
because it is primarily i nterested in Mr. Ragan because of an 
incident in 1969 which jurisdiction of course as Your Honor 
knows is limited to the Presidential election of 1972. And with 
that short statement of reservation there is no problem, we will 



1892 



have Mr. Ragan here and he will testify. 

THE COURT: All right. Is that agreeable to you? 

MR. ROTUNDA: Yes, Your Honor. 

For the record, the Select Committee always contended 
that the '72 election started the day after — the '72 campaign 
started the day after the '68 election. I think that is probabl.y 
the most realistic view. 

THE COURT: Now this is something that will have to b^ 
decided by the Committee, won't it, in executive session? 

MR. ROTUNDA: Yes, Your Honor. 

MR. HERRICK: I don't w ant anyttlng to be construed 
as a waiver, that's all, 

MR. ROTUNDA: We have no objection. Your Honor. 

THE COURT: All right. 

(The Court signs document.) 
* * * 

CERTIFICATE 

It is certified the foregoing is the official 
transcript of proceedings indicated. 

lilCHOLAg SOKAL 
Official Reporter 



1893 



); UITITED STATES DISTRICT COURT 

y, FOR THE DISTRICT OF COLUIOIA 



'• In the Matter of the Ajplication of 
I! 

•j ; UHITED STATES SENATE SELECT . 
;; COMMITTEE OK PRESIDEHTIAL 
r CA.MPAIGK ACTIVITIES 



Misc. No. 70-73 



ij ORDER COIJFERRDiG B-IT^irMITY UPON AND COMPELLDIG^^b, ''^/'J I 

j; TESTIMONY AND PRODUCTION OF H.TOHJIATION FROM ^S fr j 

I; JOHN J. RAGAN " "^^^fy j 

}j The United States Senate Select Committee on Presidential Caanaign 

j! Activities, having made written application for an order cDnferring immunity 

|l ur>on John J. Ragan and comoelling him to testify and provide other inforica- 

ji tion before it, pursuant to Title l8. United States Code, Sections 6002 and 

\\ 6005, and on Court finding that all procedures specified by 16005 have been 

jl duly folloved, it is hereby this ^'^ /^'V day of. October, 1973. 

1} ORDERED that the said Vfitness in accordance with- the provisions 

ji of Title 18, United States Code, section 6002 and 6OO5, shall not be excused 

li 

|i from testifying or providing other information before the Select Committee 

ii 

■j on Presidential Campaign Activities on the ground that the testimony or 

ji other information sought may tend to incriminate him. 

II 

;j AND IT IS FURTHER ORDERED that the said V/itnsss aooear -rfhen 

I! 

ij subpoenaed by said Committee and testify and provide such other information 
i that is sought v;ith respect to the matters under inquiry by said Coro.-iittee. 
; AITO IT IS FURTHER ORDERED that no tesi;imony or other information 

j; comnelled under this ORDER (or for any other information directly or indirectly 

Ij derived from such testimony or other information) may be used against the 

jl 

j; '.■'itness in any criminal case, except for perjury, giving a false stateraent, 

,'- « 

ij or otherwise failing to comply v;ith this ORDER. ' 



^ / 7 - f ■ ' 

in tr. Sirica/ Chief Judge 



Jo, 

United States 



V 



1894 

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



IN THE MATTER OF THE APPLICATION OF THE 

UNITED STATES SENATE SELECT COMMITTEE ON MISC. NO. 70-73 

PRESIDENTIAL CAMPAIGN ACTIVITIES 

(John H. Meier) 



Thursday, December 6, 1973 

BEFORE THE HONORABLE CHIEF JUDGE JOHN J. SIRICA. 

APPEARANCES : 

RONALD D. ROTUNDA, U.S. Senate Select Ccnmittee 

R(»ERT H. VnfSHAK ) 

LILLIAN W. \f!fSHAK ) for John H. Meier 



NICHOLAS SOKAL 

OFFICIAL COURT REPORTER 

4800 -F UNITED STATES COURT KO SE 

WASHINGTON, D. G. -'MOi. 

426 V.j'i4 



1895 



2 _ 

P^OCEED_ING_S 

(2:00 p.m.) 

THE COURT: Good afternoon. 

MR. ROTUNDA: Good afternoon. Your Honor. I am 
Ronald D. Rotunda, Assistant Counsel, U.S. Senate Select Committee 
on Presidential Campaign Activities. 

On behalf of that committee we are applying for an 
order conferring immunity upon and compelling testimony and the 
production of information from Jbhn H. Meier pursuant to Title 
18 U.S. Code, Section 6002 and 6005. We already submitted an 
application to the Court and served it upon the Special Prose- 
cutor, and Mr. Meier's attorneys indicate that all procedural 
requirements of the statute have been met. 

The Special Prosecutor asked for and received a twenty 
day deferral in issuance of the order in addition to ten days 
we gave him and those entire thirty days expired and therefore 
move that the order be granted. 

In addition. Your Honor, Mr. Meier's attorneys, 
Lillian and Robert Wyshak are here before the Court. Mrs. 
Wyshak represented to me she is a member in good standing of the 
Bar of California and the U.S. Supreme Court. Mr. Wyshak has | 
represented t ome he is a manber of the California and Massachusettj 

Bars as well as the U.S. Supreme Court and I ask on those reprej- 

i 
sentations they be admitted for purposes of th - oral argument. i 

THE COURT: They may be admitted. ■ 



1896 

3 

Counsel, step forward. 

MR. WYSHAK: Good afternoon. Your Honor. 

THE COURT: Have both of you examined the papers file^ 
in this case? 

MR. WYSHAK: Yes, Your Honor. 

THE COURT: Do you find them in proper form? 

MR. WYSHAK: They a ppear to be. Your Honor. 

THE COURT: You have no objection to the Court signing 
the order? 

MR. WYSHAK: We have no objection except in one respec 
that this morning we filed an application for an order conferrirg 
immunity from service of process on Mr. Meier while he is at- 
tending proceedings and conferring with investigators of the 
Senate Select Committee. I have here a handwritten waiver which 
I would like to file at this time waiving his appearance today 
(handed to the Court) . 

THE COURT: This may be filed. This waives Mr. Meier' 
appearance today. 

MR. WYSHAK: Yes, Your Honor. And I understand Your 
Honor has not had an opportunity to look at this application tha^ 
we filed this morning. I feel that the relief therein requested 
should be included in the order granting him immunity. 

THE COURT: Now, Mr. Rotunda, does your office object 
to the relief? 

MR. ROTUNDA: I am authorized to state that we take no 
position on Mr. Wyshak's application. 



1897 



THE COURT: Let me see it. (Handed to the Court) 

You can't get a better authority than Judge Holtzoff. 
I will sign the order. 

MR. WYSHAK: Thank you, Your Honor. 

THE COURT: Do you have a separate order about the 
immunity and service of process? 

MR. ROTUNDA: No, I don't. Your Honor. 

THE COURT: Suppose you prepare a copy and submit it 
to the clerk. 

MR. ROTUNDA: Very well, and we will try to lodge it 
this afternoon. 

THE COURT: All right. 



CERTIFICATE 



It is certified the foregoing is the official 
transcript of proceedings indicated. 



Nicholas sokal 

Official Reporter 



1898 



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



In the Matter of the Application of 

UNITED STATES SENATE SELECT COMMITTEE 
ON PRESIDENTIAL CAMPAIGN ACTIATETIES 



Misc. No, 70-73 






ORDER CONFERRING IMI«IUNITY UPON AND COMPELLlfNG> g-o ^S/j 

— l^fiStlMoNY And prodUCTioN o^ infori-iatioIT "* ^ a. 

FROM JOM H. MEIER ^^^K r 



lerff 



The United States Senate Select Committee on Presidential 

; Campaign Activities, having made written appllcatiai for an 

order conferring immunity upon John H. Meier (the "Witness") 

and con5)elllng him to testify and provide other information before 

it, pursuant to Title l8. United States Code, Sections 6002 and 

6005, and on Court finding that all procedures specifie;! by 

i 6005 have been duly followed, it is hereby this ^ vTl^ day 

of December, 1973, 

ORDERED that the said Witness in accordance with 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 ground that the testimony or other information 

sought may tend to incriminate him, 

AND IT IS FURTHER ORDERED that the said Witness appear when 

subpenaed by said Committee 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 

Information compelled under this ORDER (or for any other Inforraa- 

'■ tion 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 

.;: falling to comply with this ORDER. 

!i A TRUE COPY 

;! JAMES F. DAVEY, Clerti. _^ __^__^____ 

' /2 ^ , /Pr^ ^v^^. ^^Johii J. Sirica, Chief Judge 
i! „ Mf^yy^jrC^^^A.-^^^-V-^^,^A^^ states District Judge 




1899 



1 

2 
3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

29 

30 

31 

32 



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 



ftCac. No. 70-73 



APPLICATI_OW TOR ORDER C ONFER RING IMMUNITY 
FROM SER'VICE OF PROCESS ON JOHNK. MEIER 



The witness, John H. Meier, by and through his counsel, 
Wy.shak & Wyshak, by Robert Wyshak and Lillian Worthing Wyshak, 
hereby applies to the Court for an order conferring Immunity on 
John H. Meier from service of any process, whether summons, subpoena 
warrant or otherwise, v;hlle conferring with or testifying before 
the Senate Select Committee on Presidential Campaign Activities 
or their investigators and while travelling from his home in Canada 
and back for such purposes. 



Dec. 6, 1973 WYSKAX & WYSHAX 



9255 Sunset Blvd. ,/«'1125 
Los Angeles, Cal. 9C069 
213-273-20'*'J yp 



Lillian Worthlng'Wyshak 



POINTS & AUTHORIT IES 

Counsel has found- only one case involving a Congressional Com- 
mittee v/hich did afford the witness immunity, "iou-pe u. 5tra3ser,113 
F. Supp. 289(P-D-C.1953)ap peal dis'd as premat ure , 213 F.2d 6l3(D.C.Cl|r. 
195'f). a' xerocopy of said opinion is attached hereto. Immunity has 
been similarly made available to a witness before a State Bar.Seefel/:<: 
y. Superior Court, ^0 Cal. 2d 289. 

Consistent with these authorities, the Court should in its 
Drder conferring immunity under l8 USC§§6002,5005, grant immunity 
to the witness as set forth above. 



1900 



-' YOUPEv. 

cite as 113 

„ together with satisfactory evidence 
|V-/.ving positive Action on his part to ef- 
»/-iuatc such intent. In this case the gov- 
»r-imcnt stands as a stakeholder. To com- 
.\;e the change of beneficiary is but a 
P -^istcrial act. Collins v. United Sutes, 
I) Cir., 161 F.2d 64. 

In the circumstances plaintiff should 
L»ve judgment. 

judgment is granted in favor of plain- 
i-f\ and against defendants in the sum of 
j^'OO dollars. • . .► - 



I nsiiM> 



YOUPE et al. v. STRASSER et al. 
Civ. No. 1492. 

Uuited States District Court 

District of Columbia. 

June 16, 1953. 

Proceeding upon motion to quash service 
ef Kiiinmons and complaint which were 
•rrvcd upon nonresident while he was in 
i:irinlnnce as congressional witness. The 
IHstrlct Court, HoltzoflP, J., held that wit- 
trst was immune from such service. 

Motion granted. 

I. Ftdaral Civil Procedure <S=>4I5 

Immunity of nonresident witness 
from service of process applies not only to 
• iiiicsses before judicial tribunal but also 
lo witnesses before bodies of legislative 
kfjnch of government. 

I Federal Civil Procedure <S=4I5 

Nonresident, who was in attendance 
i» witness before congressional committee, 
»35 immune from service of summons and 
cuniplaint. 



Marvin J. Sonosky, Washington, D. C, 
for the motion. 

J. R. Thompson, Jr., Washington, D. C, 

crposed. 

HOLTZOFF, District Judge. 

This is a motion to quash service of sum- 
■^ons and complaint on a non-resident while 
(it latter was in attendance as a witness 
lit F.Supp.— 19 



STRASSER 289 

F.Supp. 238 

before a committee of Congress. The 
ground of the motion is that such a witness 
is immune from service of civil process 
while in attendance as a witness and while 
traveling to and from the place where he 
was called upon to testify. 

Admittedly, a witness who is a non-resi- 
dent and who appears before a judicial 
tribunal has such an immunity. It was 
held, however, by the Supreme Court of the 
District of Columbia in 1874 in Wilder v. 
Welsh, 8 D.C. 566, 1 MacArthur 566, that 
the immunity does not extend to a witness 
in attendance before a Congressional com- 
mittee. The opinion is a very short per 
curiam opinion and the only ground given 
for the decision is that the privilege of a 
witness before a Congressional committee 
stands on the same footing as the privilege 
of members of that body, and that this 
exemption does not extend to freedom from 
service of civil process. ' ' 

[1,2] This Court is unable to see the 
cogency of that reasoning. But, be that as 
it may, the Court of Appeals for the Dis- 
trict of Columbia, in Engle v. Manchester, 
46 App.D.C. 220, applied such an exemption 
to a witness appearing at a hearing before 
an administrative official. In other words, 
the immunity of a non-resident witness to 
service of process applies not only to wit- 
nesses before a judicial tribunal, but also to 
witnesses before bodies of the executive" 
branch of the government. This being the 
case, no reason appears for not applying' 
this immunity to witnesses appearing be- 
fore the legislative branch of the govern- 
ment. As a matter of fact, there is good 
reason for applying the immunity to wit-' 
nesses before any one of the three' 
branches. The investigative power of Con- 
gress constitutes important implementation 
of its legislative and appropriating func- 
tions, and there is as good a reason for 
facilitating the application of this process 
by giving the above-mentioned exemption 
to witnesses before Congressional bodies as 
there is for granting it to witnesses before 
the judicial and executive branches of the 
government 

In view of these considerations, t'.ie 
Court holds that the immunity applies and,' 
therefore, motion to quash service will be 
granted. 



1901 



UNITED STATES DISTRICT COURT 
FOR TlIE DISTRICT OF COLUMBIA 



In the Matter of the Application of 



UNITED STATES SENATE SELECT 
COMMITTEE ON PRESIDENTIAL 
CAMPAIGN ACTIVITIES 



Misc. No. 70-73 



X 



ORDER CONFERRING IMMUNITY FROM SERVICE " ^ f 
OF PROCESS ON JOHN H. MEIER 



■''^ It V 



■ '^■<^'ih 



Good cause appearing therefor, 

IT IS HEREBY ORDERED that while he is conferring with or testifying 
before the Senate Select Committee on Presidential Campaign Activities or 
their investigators and while he is travelling to and from his home in 
Canada for such purposes, JOHN H. MEIER shall be immune from service of any ' 
writ or process, whether summons, subpoena, warrant or otherwise, and any 
papers or records delivered by John H. Meier or his counsel to the Senate 
Select Committee on Presidential Campaign Activities or its investigators 
shall be similarly immune.. 



December 



IZ 



73 



Submitted by 
WYSHAK & WYSHAK 
9 255 Sunset Blvd. 
Los Angeles 90069 
213-273-2044 




A TRUE COPY 
JAMES F. DAVEY, Clerk, 



By 



The Senate Select Committee on Preside; tial Campaign Activities 
takes no position on this Order. 

t-'onald D. Rotunda 

Assistant Co- nsel- 



34-966 O - 74 



1902 



CIVIL ACTION NO. 148-72 



IN THE UNITED STATES DISTRICT COURT " F ( I FFV 
FOR THE DISTRICT OF COLUMBIA i . q,^,^ « - 

RALPH NADER, et al . , ) " JAMES F. DAVEY, Clerk 

Plaintiffs, 

V. 

EARL BUTZ, et al , , 

Defendants . 

PROTECTIVE ORDER 

This matter having come before the Court at a hearing on 
December 19, 1973, and defendants having orally moved for a 
protective order which would prohibit the premature disclosure 
by counsel of material furnished under subpoena in this case " 
but not yet publicly filed with the Coui't, and counsel for 
plaintiffs having indicated that plaintiffs offered no objec- 
tion to said motion as limited, and the Court finding that 
guwu oause exists lor tfte issuance of such an order, it is, 
therefore, this pL/y^'^ day of bf-^-C^^j^o^/^ 1973 hereby 

ORDERED 

That counsel in this case are directed not to publicly 
disclose material submitted to them under subpoena unless and 
until such material is publicly filed with the Court in some 
appropriate manner or otherwise appropriately utilized in 
this judicial proceeding. 



UNITED STATES DISTRIC.T'^JUDGE 



1903 



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLU>!BIA 



RALPH 


NADE 


R» 


et al., ) 
Plaintiffs, ) 


V 








EARL BUTZ, 


et 


al.. ) 








Defendants. ) 



Civil Action No. 148-72 



MOTION FOR CLARIFICATION OF PROTECTIVE 
ORDER OR IN THE ALTERNATIVE FOR MODIFICATION THEREOF 

1. On December 21, 1973, without opposition, this Court 
entered a protective order directing counsel "not to publicly 
disclose material submitted to them under subpoena." 

2. On January 10, 1974, the undersigned counsel for plain- 
tiffs was served with the attached subpoena duces tecum for docu- 
ments covered by the protective order. The undersigned declined 
to comply, believing that he was prohibited from doing so by the 
protective order. 

3. Plaintiffs move the Court for clarification of the 
protective order, to wit whether the prohibition against public 
disclosure prohibits counsel from complying with the subpoena, 

or in the alternative for modification of the protective order to 
permit counsel to comply with the subpoena. 

Respectfully submitted. 



WILLIAM A. D03R0VIR 
' . ANDRA N, OAKES 

2005 L Street, N.W. 
' , Washington, D. C. 20036 

January 30, 1974 Attorneys for Plaintiffs 

Certificate of Service 

I hereby certify that I have served a copy of the foregoing 
Motion, Points and Authorities and Order on Irwin Goldbloora and 
David Dorsen by first class mail, this 30th day of January, 1974. 



William A. Dobrovir 



1904 



IN THE UNITED STATES DISTRICT COORT 
FOR THE DISTRICT OF COLUMBIA 



RALPH NADER, 


et al.. 








Plaint 


iffs, ) 




V. 






EARL 


BUTZ, e 


t al.. 








Defend 


ants. ) 



Civil Action No. 148-72 



POINTS AND AUTHORITIES 
This Court's order of December 21, 1973. 

Respectfully submitted. 



January 30, 1974 



WILLIAM A. DOBROVIR 
ANDRA N. OAKES 
2005 L Street, N.W. 
Washington, D. C. 20036 

Attorneys for Plaintiffs 



1905 



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLU:-13IA 



RALPH NADER, 


3t al., ) 






Plaintiffs, ) 




V. 




EARL 


BUTZ, et 


al., ' ) 
Defendants. ) 



Civil Action No. 148-72 



ORDER 
This Court's protective order of December 21, 1973, is 
hereby clarified as follows: 



Date 



United States District Judge 



1906 



» 1 - -. 




- ^' ■ i - 


1374 


•. -u F. a, 


vLy,(/,;i 



Civil Actio 1 No, 148-72 



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



RALPH NAD'':R, et al„ , 
Plaintiffs, 

V, 

KARL BUTZ, et al. , 

Defendants. 

OPPOSITION TO PLAINTIFFS' MOTION FOR 

CLARIFICATION OF PROTECTIVE OROF-R OR 
IN_T IEj\LTERNA'l IVE FOR MODIFICAT ION T HKRl OF 

The .Vhite House Custodian of Records, by his under- 
signed attorneys, hereby opposes the Motion of Plaintiffs 
for Clarification or, Alternatively, for Modification of the 
Px'otective Order entered by this Court on December 21, 1973. 
The grounds for this opposition are that production of the 
documents in question to the Senate Select Committee would 
be contrary to the purposes for which the Protective Older was 
issued, tliat compliance with the subpoena would be at odds 
with this Court's judgment in Senate Select Committee on Presi- 
dential Campaign Activities v. Nixon , U.S.D.C. D.C., C.A. No. 
1583-73, February 8, 1973, and that the Conunittee should be 
required to proceed against the real party in interest, and 
not counsel in this case who hold the docuinents in a confi- 
dential capacity. In support of this opposition the Court is 
respectfully referred to a letter to the Chairman of the 
Senate Committee from Irving Jaffe, Acting Assistant Attorney 
General, Civil Division, Department of Justice, dated 



1907 



January 21, 1974, attached as Exhibit A hereto, and to the 
Points and Authorities filed herewith. 

Respectfully submitted. 



IRVING JAFl-W *■* : 

Acting Assistant Attorney General 



law I N GOLD ILOOM ^ — 



DTiVID J. a: DERSON 

Attorneys, Department of Justice 

Attorneys for White House 
Custodian of Records 



- 2 - 



1908 

Iliijnitun.Nit of ■iiu:.liri 

F § L S D 

January 21, 197^ .'-".^ l- 12 ]974 

Hoi orable Sam J. Ervin, Jr. 
Che irmsn. Senate Select Committee on 
Presidential Cimpaign Activities 
Wa jhinoton, D.C. ^.0510 

Dec r Mr. Chairman: 

Tliis letter is in response to the two si'bijoonas 
issjed l^y you c^s C airman of the Senate Select Committee on 
Presidential Campaign Activities and received by me ond by 
Irwin Goldbloom, Acting Deputy Assistant Attorney General, 
on Januiry 10, 19 74. 

We have also received a copy of a letter to the 
Ho lorable William Jones, U.S. District Judge, from David 
Doisen, Assistant Chief Counsel for the above Committee in 
co; nection with the issuance of these subpoenas. 

As you may knov/, the Department of Justice has 
possession of the documents listed in the attachm.ent to the 
su;:ipoenas by virtue of our representatic n as cr.unsel Tor the 
Custodian of Records of the White House in connerticii with 
subpoenas issued in the case of Nad er, et al . v. Sut:-: , et g l . , 
17i-72, U.S. D.C , over which Judge Jones is presiding. 

Certain other documents involved in that litigation 
are the subject of a subpoena j- c.ied by your Committee to 
President Nixon. President Ni declined to produce such 
documents in his letter to you uiuary 4, 1974. 



EXHIBIT A 



1909 



-2- 



On December 21, 1973, the district court in the 
above litigatio): issued a protr?ctive ordor p'rohibitirio tlie dis- 
closure by all counsel, except for purposes of the litigation, 
of evidence obtained under subpoena find through the discovery 
process. The government sought that piotective order so as to 
protect against extra-judicial use of the material obtained by 
discovery proceedings in the litigation and to insure Ihot the 
issues in the case be judicially resolved without the impact of 
extra-judicial use of evidence. 

Fjor the foregoing reasons and upcm the .uthoiity of 
the Attorney General, as set forth in 28 C.F.R. , §]C>,?.4, we must 
respectfully decline lo comply with the subpoena in crdtjr to pro- 
tect the interests of the government in the litigation in which we 
are participating. We are confident that the issues cncon^r issed 
in such litigation will, in this manner, receive a fair judicial 
resolution. 



S^]cerely yours, 





r7 



Irvjng-ji'rfc 
Acting Assistant Aliorney G^eneral 



1910 



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



RALPH NADER, et nl., ) ... .^.,, , 

) "■ "•"• '■•■•-»i'-^ 

Plaintiffs, ) 

) 

V. ) Civil Action No. 148-72 

) 

EARL BUTZ. et al. , ) 

) 
Dofeiidants. ) 

» 

POINTS AND \UTI10RITIES IN OPPOSITION 
TO PLAINTII/S' :wOT10N FOR CLARIFICA- 
TION OF PRCTECTIVE ORDER OR IN THE 
ALTERNATIVE FOR MODIFICATION THEREOF. 



Statement 
On December 21, 1973, this Court entered a Pi'otective 
Orc'er in this case, directing counsel not to publicly dis- 
close material obtained under subpoena unless and until that 
material is filed wi 1 h the Court ox' otherwise appropriately 
utilized in tliis judicial pi- iccoding. The Senate Watergate 
Conmittee, apparently stymied in its attempts to obtain 
material directly from the White House, has now served sub- 
poenas on counsel for both sides in this action, demanding 

cei tain documents surrendered by the Wliite House Custodian 

1/ 
of Records under subpoena of this Court. Plaintilfs' 

nov seek clarification or modification of the Pi-otective 
Ore er to allow Iheir counsel to comply with tlie Senate Com- 
mittee subpoena. The Custodian opposes that motion because 
it would frustrate the purposes for which the Protective 



1/ Government counsel declined to produce the material by 
Tetter to the Committee from Acting Assistant Attorney General 
Jaffa, dated January 21, 1974, a copy of which is attached to 
the opposition as Exhibit A. 



1911 



Order was originally issued, because the Senate Committee 
is attempting to collaterally attack the judgment of another 
Judge of this Court that such subpoonas should not be en- 
forced in the present context and finally beca\ise counsel 
hild the documents in question in a fiduciary capacity and 
the Committee should be required to seek such documents 
a^.ainst the parties from whom they emanated. 

I Argument 

1. The Protective Order issued by the Court in this 
case was sought by the government so as to protect against 
extra-judicial use of the material obtained by discovery 
proceedings in this litigation and to insure that the issues 
in this case be judicially resolved without the impact of 
extra-judicial use of evidence. While admittedly there is 
little parallel between the events leading to issuance of 
Ihe F>rotective Order and the uses to which the material might 
ba put by the Senate Committee, nevirthelcss tie purpose of 
insuring a fair judicial resolution without extra-judicial 
use of evidence may well be compromised if these subpoenas 
were deemed to take precedence over these proceedings, and 
the Committee were enabled to publicly disclose these docu- 
ir.ents. Cf., Senate Select Committee on Presidential Campaign 
Activities v. Nixon , U.S.D.C. D.C., C.A. No. 1593-73, Febru- 
ary 8, 1973. 

2, Moreover, the issue of precedence would seem to be 
resolved adversely to the Committee by Judge Gesell's opinion 
in Senate Select Committee , supra , where this Court held that 
fair resolution of pending criminal prosecution required that 



- 2 - 



1912 



the Committee's subpoenas not be enforced. The same general 
considei'ations woulil apply to this civil litigation and, in 
fact, principles of collateral estoppel \sould appear to fore- 
close tlie Coii!inittee from ai yuing to tlie coiiti-ary. See gener- 
ally Commissioner v. Sunnor. , 333 U.S. 591, 597-599 (1948). 
3. Finally, the docu:ients in question do not belong 
to counfjel for either side They wex'e surrendered by the 
White House Custodian of Records under subpoena of tliis Court 
for use in this prO':eeding Attorneys lioldinvj documents in 
such a capacity should not be subject to claims by a third 
party against one of the p.'incipals. The Committee, which 
has statutory autliovity to seek judicial enforcement of its 
subpoenas, see generally Se nate Select Committee , supra , 
should be required to proc< ed against the real party in 

interest and not counsel wl o are acting in this instance 

2 
as officers of the Court. 

Cone" usion 
For the above reasons. Plaintiffs' Motion to Clarify 
or Modify this Court's Projective Order should be denied. 



A 



Respectfully submitted, 

IRVING -JAFFE^ ■ 

Acting As'sistnnt Attorney General 



irwin goldbloom 
dAvid j. aj^def son 

c ■ 

Attorneys, Department of Justice 
Attorneys for White House 
Custodian of Records 



2/ Indeed, in any judicial proceeding to enforce the Committee 
subpoenas against counsel, there would apparently be no case or 
controversy. Plaintiffs' present Motion demonstrates that there 
is no real adversity between them and the Committee. The real 
party in interest is the President who is not a party here and 
who has declined to turn over the documents in question. 



- 3 



1913 



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



Civil Action No. 148-72 



RALPH NADER, et al, , 
Plaintiffs, 

v., 
EARL I UTZ, et al, , 

Defendants. 

> 

O RDER 

This matter having come before the Court on Plaintiffs' 
Motion for Clar if ic£ t ion of Protective Order or in the Alter- 
native for Modif ica1 ion Thei-oof, and the opposition of the 
White House Custodian of Records thereto; and the Court having 
considered that motion and opposition and all relevant plead- 
ings; and the Court liaving concluded that plaintiffs' motion 
is not well taken; it is thereloro tliis day of February, 
1974 Hereby 

ORDERED -^ 

That Plaintiffs' Motion for Clarification of Protective 
Order or in the Alternative for Modification Thereof be and 
is hereby denied. 



UNITED STATES DISTRICT JUDGE 



1914 

CERTIFICATE OF SERVICE 

I hereby certify that I have served the foregoing 

Opposition to Plaintiffs' Motion for Clarification ojf 

Protective Order or in the Alternative for Modification 

thereof, alonf.^ with the supporting Points and Authorities 

and pi'oposed Order upon plaintiffs by mailing a copy, 

postage prepaid, this !>■- day of February, 1974, to their 

counsel, 

I 

William A. Dobrovir, Esq. 
2005 L Street, N.W. 
Washington, D.C, 20036 






DAVID J. ANDERSON 







1915 



THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



Ralph 


Nad 


V. 


et 


al,, ) 
Plaintiffs ) 


Earl 


Butz 


, et 


al 


• > 1 

Defendants ) 



Civil Action No. 118-72 



MOTION FOR LEAVE TO FILE 
BRIEF AMICUS CURIAE 
t 

1. On January 30, 197'), counsel for olaintlffs filed a 

motion for clarification of the orotective order issued by this 
Court on December 21, 1«I73. 

2. The Senate Select Corunittee on Presidential Camoalpn 
Activities resoectfully moves for leave to file the accomnanyinK 
brief amicus curiae for ournoses of olaintiffs' motion only. 
Both plaintiffs and defendants have consented to the filing of 
the Committee's brief. In the event the Court schedules oral 
argument on plaintiffs' motion, the movant respectfully requests 
to be heard. 

Accordingly, for the reasons stated in the accompanying 
memorandum, the Committee respectfully requests that this 
motion to file a brief amicus curiae be granted. 

Resoectfully submitted, 

Sanuel Oas h 
Chief Counsel 

Fred Thompson 
Minority Counsel 

David M. Dorsen 
Assistant Chief Counsel 

James Hamilton 
Assistant Chief Counsel 

Alan S. Weitz 
Assistant Counsel 

W. Dennis Summers 
Assistant Counsel 

United States Senate 
Washington, D.C. 20510 
Telephone Number 225-0531 
Attorneys for Movant 



1916 



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



Ralph 


Nader, 


et a 


1., ) 










Plaintiffs ) 






V. 






Earl 


Butz, 


et 


al. 


1 ' 

Defendants ) 



Civil Action No. 118-72 



MEMORANDUM OF POINTS AND AUTHORITIES 
IN SUPPORT OF MOTION FOR LEAVE 
I TO FILE BRIEF AMICUS CURIAE 

1. The Senate Select Committee on Presidential Campaign 
Activities (the movant) Is a duly authorized and constituted 
committee of the Senate of the United States. It was created 

by Senate Resolution 60, 93d Congress, 1st Session (1973), which 
was enacted by a unanimous vote of the Senate on February 7, 1971). 
(A copy of S. Res. 60 Is attached hereto as Exhibit B. ) 

2. The movant has issued suhnenas duces tecum to counsel 
In this case, seekln? documents relevant to Its Investigation of 
the Administration's 1Q71 milk orlce sunoort decision. Both 
counsel for nlalntlffs and counsel for defendants have declined 
to comnlv with the Committee's suboenas on the pround that this 
Court's protective order of December 21, 1973 nrecludes them 
from doing so. On January 30, 197^, counsel for plaintiffs 
filed In this Court a motion for modification or clarification 
of the protective order to permit counsel to comply with the 
Committee's subpenas. 

3. The Committee's Interest In obtaining the subpenaed 
materials Is one of the principal matters at issue in connection 
with plaintiffs' motion. The Committee, therefore, is vitally 
Interested in the disposition of plaintiffs' motion for 
clarification or modification of the protective order. Further- 
more, the Committee, as a legislative and investigative body. 



1917 



believes that It Is in a unique position to bring to the 
Court's attention certain compelling reasons for permitting 
counsel to comply with the subpenas . In conclusion, the 
movant believes that, if its motion for leave to file is 
granted, it can clarify the issues raised by plaintiffs' 
motion. 

Accordingly, the Committee's motion for leave to file a 
brief amicus curiae should be granted. 

Respectfully submitted, 



Su^j^ I v/Jo 



^^ 



Samuel Dash 
Chief Counsel 

Fred Thompson 
Minority Counsel 

David M. Dorsen 
Assistant Chief Counsel 

James Hamilton 
Assistant Chief Counsel 

Alan S. Weitz 
Assistant Counsel 

W, Dennis Summers 
Assistant Counsel 

United States Senate 
vrashington, D.C. 20510 
Telephone Number 225-0531 
Attorneys for Movant 



34-966 O - 74 - pt. 2-45 



1918 



THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBJA 



Ralph 


Na 


der. 


et 


al., ) 
Plaintiffs ) 




V. 






Earl 


Butz, et 


al 


Defendants ) 



Civil Action No. 1^*8-72 



, ORDER 

This matter having come before the Court on the Committee's 
Motion for Leave to File Brief Amicus Curiae, and the Court 
being of the opinion that said motion should be granted, it is 
hereby this day of February, IS?**, 

ORDERED, that the Committee's ?^otlon for Leave to File 
Brief Amicus Curiae is granted. 



William B. Jones 
United States District Judge 
United States District Court 
for the District of Columbia 



1919 



THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



RalDh 


Nader 

V. 




et al. , ) 
Plaintiffs ) 


Farl 


Butz, 


et 


al., ) 

Defendants ) 
) 



Civil Action No. l')8-72 



BRIEF OF AMICUS CURIAE IN SUPPORT 

( OF PLAINTIFFS' MOTION FOR CLARIFICATION 

OR MODIFICATION OF PROTECTIVE ORDER. 

On January 10, 19 T* , the Senate Select Committee on Presi- 
dential Campaign Activities served upon William Dobrovlr, 
counsel for plaintiffs In this action, and Irving Jaffe and 
Irwin Goldbloom, counsel for defendants, V subpenas duces tecum 
(copies of which are attached as Exhibits A-1, A-2 , and A-3). 
Counsel declined to comoly with the Committee's suboenas on the 
pround that this Court's protective order of December 21, 1973 
orecluded them from dolnp so. On January 30, 197'*, counsel 
for Dlalntlffs filed In this Court a "Motion for Clarification 
of Protective Order or In the Alternative for Modification 
Thereof" to permit compliance. The Select Committee submits 
this brief In support of plaintiffs' motion. The Committee's 
position Is that the protective order should be clarified, or 
In the alternative, modified, to permit counsel to comply with 
Its subpenas. 

BACKGROUND 
The Senate Select Committee on Presidential Campaign 
Activities Is a duly authorized and constituted committee of 



VMessrs. Jaffe and Goldbloom are also serving as 
counsel to the White House Custodian of Records In this 
action. 



1920 



-2- 

the oenate of the United States. It was created by Senate 
Resolution 60, 93d Congress, 1st Session (1973) (S. Res. 60), 
which was enacted by a unanimous vote of the Senate on 
February 7, 1973. (a cooy of S. Res. 60 Is attached hereto as 
Exhibit B). 

Under S. Res. 60 the Select Committee is emoowered to 
Investigate and study "Illegal, improper, and unethical activi- 
ties" 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 
empowered, by Section 3 (a) (5) of S. Res. 60, to subpena any 
department, agency, or employee of the executive branch of the 
United States Government, or any private person, for 
production of documents and materials in' his custody or 
control. Pursuant to S. Res. 60, the Select Committee is 
investigating the relatlonshio , if any, betv;een the March, 1971, 
decision by the President to Increase the milk price support 
level and the promise of contributions by dairy cooperatives 
to President Nixon's 1972 campaign. 

On April 10, 1973, plaintiffs subpenaed from the White 
House Custodian of Records all materials in his possession 
relating to. Inter alia, the Administration's milk price 
support decision and political contributions from the dairy 
lobby. In response to this request, J. Fred Buzhardt, Special 
Counsel to the President, Issued several interim lists of 
documents in the possession of the Custodian relating to the 
decision and to dairy contributions. 

On December 5, 1973, Mr. Buzhardt filed a final list, 
dividing Into two categories all documents In the possession 
of the Custodian and covered by plaintiffs' subpena: Category 
I of the documents described consists of those items as to 
which no claim of executive privilege was asserted and copies 
of which were turned over to plaintiffs' counsel. Category II 
consists of documents as to which executive privilege was 



1921 



-3- 
clalmed and copies of which were turned over to this Court for 
In camera inspection for the purpose of determining the applica- 
bility of this privilege. Mr. Buzhardt later discovered a tape 
recording of the meeting between President Nixon and dairy 
industry leaders on March 23, 1971. This recording, which falls 
within Category I, was also turned over to counsel for 
plaintiffs.*/ 

Beginning In October, 1973, the Select Committee made a 
number of written and oral requests, both to Mr. Buzhardt and 
to counsel for the defendants, for these materials, copies of 
which are in their possession. All of these requests were 
either refused or unanswered. Prior to December 21, 1973, no 
specific reason for these refusals was proferred. After 
issuance of the Court's protective order on that date, counsel 
for the defendants cited that order as a reason for their 
refusal when they were asked for copies of the documents. 

The Committee must complete its investigation, and then 
report its findings and legislative recommendations to the full 

Senate all in a matter of the next several weeks or months. *J 

In view of this obligation and in view of the rejections of its 
requests for materials, the Committee, on January 10, 197*1, 
served upon William Dobrovir, counsel for plaintiffs, and 
Irving Jaffe and Irwin Goldbloom, counsel for defendants, 
the attached subpenas duces tecum (Exhibits A-1 , A-2 , and A-3) 
for Category I documents only . **» / In his letter of January 21, 
197*1 (attached hereto as Exhibit C), counsel for defendants 
declined to comply with the Committee's subpenas on the ground 
that this Court's protective order of December 21, 1973, 



VIn addition, counsel for the defendants have publicly 
filed, as Exhibit C to a pleading dated January 13, 197'l, an 
additional document relating to "milk money" and presumably also 
falling within Category I. However, we can find no record of thr 
Custodian specifically Informing the Court or plaintiffs' 
counsel of the existence of this document. 

"/Under S. Res. 60, the Committee is required to report to 
the Senate no later than February 28, 19 T* • The Committee has 
voted to seek an extension until May 28, 197't. 

*»»/ The Committee on December 18, 1973, served a separate 
subpena duces tecum on the President, through his counsel, 
requesting the production of Category II and certain other 
documents. The Committee's subpenas for Category I and 
Category II documents, in their specific terms, do not overlap. 
Therefore, no question of executive privilege can be raised 
in connection with plaintiffs' motion. 



1922 



precluded them from doing so. Similarly, counsel for plaintiffs 

declined to comply with the Committee's subpena and filed a 

motion requesting the Court to clarify or amend the order to 

permit counsel to comply. 

fls we discuss below, there Is no dispute as to the validity 

of the Committee's suboenas and of counsel's obligation, absent 

any applicable court order, to comply fully. In view of the 

Committee's need for the subpenaed Items and of the circumstances 

leading to the entry of the protective order, this Court should 

grant plaintiffs' motion and clarify or amend Its order to permit 

such compliance. 

ARGUMENT 

I. THE VALIDITY AND SCOPE OF THE COMMITTEE'S SUBPENAS IS 
UNDISPUTED AND COUNSEL HAVE AN OBLIGATION, ABSENT THE 
COURT ORDER, TO COMPLY FULLY. 

The validity and enforceability of the Committee's subpenas , 
In all respects, Including the Committee's authority, the 
relevancy of the suboenaed materials and the scone of the 
subcenas , Is unassailable. Since no claim of executive or any 
other prlviledge can be asserted to wlthold the documents, 
counsel have an obligation, absent any applicable court order, 
to comply with the subpenas. 

a. Authority, Relevancy and Scope: There Is no dispute 
that the Committee's subpenas duces tecum j addressed to and 
served on counsel on January 10, 19 T* , were Issued pursuant to 
the Committee's authority. Nor can It be disputed that the 
subpenaed Items are relevant to the Committee's investigation 
of the President's March 25, 1971, decision to Increase milk 
price supports and to dairy contributions. Indeed, the 
Custodian, himself, has admitted that these materials are 
relevant to such matters. V Furthermore, no tenable 

»_/The relevance of the suboenaed documents to the Committee "Is 
Inquiry Is Illustrated by the three memoranda attached to the 
"Memorandum of White House Custodian of Records In Support of 
Claim of Executive Privilege" filed in this Court on January l8 , 
197^. These memoranda contain references to "milk money," 
the"'hillk project" and the "commitment" from dairy cooperatives tc 
President Nixon's 1972 campaign. The nature of this commitment 
and the possibility that It Influenced the President's milk 
price support decision are Issues central to the Committee's 
Investigation. These memoranda, which counsel for th^ defendant 
have themselves stated are a "representative sampling o£„^^f^^ 
Category I materials, underscore the'relevance of the subpenaea 
materials to the Committee's Investigation. 



1023 



argument can be made that the Committee's subpenas are either 

overly broad or burdensome. "TTie Committee's subpenas seek only 

the 30 enumerated items Identified by the Custodian and produced 

In response to plaintiffs' subpena. 

b. Privilege : No Issue of executive privilege can be 

raised by plaintiffs' motion. It Is obvious from a glance at 

the Custodian's "representative sampling" V of Category I 

materials — which relate to "milk money" and other political 

matters — that< they are far beyond any arguable purview of 

executive privilege. But the Court need not addr