do regarding some of the material that may or may not come within the purview of the rule, the rule is as stated. I would hope that the members consider the basis on which this rule is founded, that where material has been developed in executive session, because it may have tended to defame or degrade, that same evidence or testimony which was taken in executive sesison may not be released or used in public session without the consent of the committee.

Mr. HUNGATE. Mr. Chairman, may I be recognized?
The CHAIRMAN. Mr. Hungate.

Mr. HUNGATE. May I inquire of the gentleman from Indiana if our legal ground is still firm, and if he still supports the motion? Mr. DENNIS. So far as I am concerned, Mr. Hungate, I still support your motion. I think it is a sensible motion, and I do not see anything contrary to it in the rule that the chairman read.

Mr. McCLORY. Would the gentleman from Missouri yield?
Mr. HUNGATE. I vield to the gentleman from Illinois.

Mr. McCLORY. The question I have is this: I think the rule is applicable if we are going to be discussing in the course of entertaining this motion any sensitive material, any material that we took in executive session, if we are going into the specifics. However, it would seem to me that if there was no occasion to discuss the evidence itself, all we are going to discuss is the principle as to whether or not we are going to release evidence which relates to a particular subject or to a particular inquiry.

Mr. DENNIS. Would the gentleman yield?

Mr. McCLORY. Could you respond? Is there any occasion to discuss specific evidence?

Mr. HUNGATE. Well

Mr. McCLORY. In the course of entertaining this motion?

Mr. HUNGATE. My experience with the learned 38 members of the committee is I never know what they will discuss. And I am not the one to say they should not discuss it. Is the gentleman from California. seeking or asking me to yield?

Mr. WIGGINS. Yes. I wish to inform my colleague from Illinois and the rest of the members that I do intend to discuss the evidence on this motion.

Mr. HUNGATE. I thank the gentleman, and I stay with the motion on advice of counsel.

The CHAIRMAN. Is there any further discussion on the motion? Otherwise, the question is going to be on the motion. The question is on the motion offered by the gentleman from Missouri, Mr. Hungate, to go into executive session under the rules of the House, 27 (o) and the committee is advised that the Chair is not able to ascertain if this motion should be defeated, and we should go into open session, whether or not any member will discuss the substance of the material.

Mr. HUNGATE. Mr. Wiggins indicated he would. Mr. Wiggins has indicated he will.

The CHAIRMAN. Under those circumstances, I think the committee. certainly has further information to consider, and I would put the question on the motion.

And the motion is whether or not to go into executive session in the consideration of the possible release of the materials developed in executive session.

Mr. SEIBERLING. Mr. Chairman, parliamentary inquiry. I did not know that it is an inquiry, but I would just like to make a comment, since I am the one who raised the question on Mr. Waldie's original motion. My question was whether any person intended to discuss material that was received in executive session and since we have a statement now from Mr. Wiggins, at least, that he intends to do so, then my comment or my question has been answered and my position would be, in that case, we have no choice but to vote for executive session.

Mr. McCLORY. Parliamentary inquiry.

Mr. SEIBERLING. But I did not want to do it if there was no actual occasion to do so.

Mr. McCLORY. Mr. Chairman?

The CHAIRMAN. Mr. McClory.

Mr. McCLORY. Parliamentary inquiry. As I understand the rule. there is not occasion for any motion. The Chair must rule that the rules of the House must be complied with. And in the face of Mr. Wiggins' suggestion that specific material would be discussed, I suggest that the motion should not be entertained, that the Chair should rule that we do not go into executive session.

Mr. EDWARDS. Mr. Chairman? Mr. Chairman?
The CHAIRMAN. Mr. Mezvinsky.

Mr. MEZVINSKY. I yield to Mr. Edwards first.

Mr. EDWARDS. Well, thank you. Since it is the ruling of the Chair that matters of confidentiality will be discussed, then I think we have no choice but to go into executive session. However, I do so most reluctantly, because I think that the time that any member would be discussing matters that are confidential that we could go into executive session at that time. But, that is what Watergate, and that is what this hearing is all about, whether we comply with rules and laws and regulations, and certainly I am not going to be a part of any committee. that violates the rules.

Mr. MEZVINSKY. Mr. Chairman, I just wanted to add that if we now make this decision, I think we had better understand the implication of it. I think the implication of the decision is that any matter that we take up and I think that would have to be item No. 3, the witnesses, that that too will have to be then done in executive session, because if we are going to have a discussion of the mere release of the material, and a person wants to discuss a matter that comes under the evidence, then I think we will have to apply these same standards to No. 3. I do not like that standard and I am very concerned that in all reality, every session that we are going to have now, until we are finally going to resolve the matter, as to the question of impeachment, may find itself behind a closed door.

Mr. DRINAN. Mr. Chairman?

The CHAIRMAN. I might advise the member that if we should vote in closed session to release the material, then that rule will no longer obtain, since the material would have been released. However, the Chair must state that what the Chair is doing now is merely stating the rules of the House and no committee member or any committee can override or supersede the rules of the House.

Mr. MEZVINSKY. I certainly respect that, and I guess what I shall hope for is that we will release the material.

Mr. DRINAN. Mr. Chairman?

The CHAIRMAN. Father Drinan.

Mr. DRINAN. Let me read the exact rule, Mr. Chairman, and I think that we may be able to have a vote on this. As I read it, the relevant section O, says this: "No evidence or testimony taken in executive session may be released or used in public session without the consent of the committee." Would it be appropriate to have a vote in public on whether or not the committee wants to give its consent at this time to release for use in public session the testimony taken in executive session? Could we not ourselves rule on this rule by giving the consent of the committee to release or use in public session what we have learned in executive session?

Mr. RAILSBACK. Mr. Chairman?

The CHAIRMAN. I would like to advise Father Drinan that before we get to that point the question will have to be on whether or not we are going to consider the release of that material and the consideration of the release of that material, which was developed in executive session, comes within the purview of rule 27-O and therefore the motion is a proper one. Now, whether my position is to release is something quite apart from this ruling and I think that those who are interested in releasing the material would do well to consider that we operate within the rules and, therefore, do not in any way violate the rules of the House so that in the event we do approve the publication or release of the materials that that motion, if adopted, would be inoperative, to use the word.

Mr. RAILSBACK. Mr. Chairman?

The CHAIRMAN. Mr. Railsback.

Mr. RAILSBACK. Mr. Chairman, I just want to briefly concur with what you said and remind Father Drinan of Mr. Wiggin's admonition that he does intend to discuss evidence. I happen to favor the release of the materials to the public. But, I think we ought to get on with it, and, Mr. Chairman, you have the right, I think, as Mr. McClory has suggested, to do that on your own initiative.

Mr. McCLORY. If the gentleman will yield, may I suggest that the chairman declare that we are now in executive session?

The CHAIRMAN. The Chair does not possess that authority. The Chair states again that the Chair is operating within the rules of the House and wants to do only that which the committee permits him to do, and the House permits him to do. And I think it would be well if we acted on the motion which has been presented by the gentleman from Missouri.

Mr. KASTENMEIER. Parlimentary inquiry, Mr. Chairman.
The CHAIRMAN. The gentleman will state it.

Mr. KASTENMEIER. Would it not be equally proper for the Chair to admonish members that they may not discuss in open session confidential materials; that is to say, foreclose Mr. Wiggins so long as we are in open session or any other member from revealing confidential materials? That is equally operative, it seems to me, as a policy decision. And should we, therefore, should the committee vote to open this session, that is to say to fail to go into executive session, turn down the motion by the gentleman from Missouri, in fact, members are foreclosed from discussing confidential materials and we are then, therefore relegated to discuss the matter only in terms of policy. And if someone desires to discuss confidential material at that time, he would

have to renew the request to go into executive session, so that he or she may do so. Are we not in that position, Mr. Chairman?

The CHAIRMAN. No. I regret to say that the Chair feels that any direction that he may give, or any ruling he makes, cannot supersede a rule of the House, which states that the committee, this would have to be with the consent of the committee. And I fail to see where I could, without in any way violating the rules of the House, and the possibility of taking action which might later be declared to be inoperative or a violation of the rules.

Mr. HUNGATE. Mr. Chairman ?
Mr. FLOWERS. Mr. Chairman?
The CHAIRMAN. Mr. Flowers.

Mr. FLOWERS. Mr. Chairman, it is with great fear and reluctance that I would cut off this stimulating debate, but I move the previous question.

The CHAIRMAN. The question is on the motion offered by the gentleman from Missouri.

All those in favor of the motion, please say aye.

[Chorus of "ayes."]

The CHAIRMAN. Opposed?

[Chorus of "noes."

Mr. WALDIE. Rollcall, Mr. Chairman.

The CHAIRMAN. A rollcall was demanded, and all those in favor please say aye and all those opposed, no.

The CLERK. Mr. Donohue.

Mr. DONOHUE. Ave.

The CLERK, Mr. Brooks.

Mr. BROOKS. Aye.

The CLERK. Mr. Kastenmeier.

Mr. KASTENMEIER. NO.

The CLERK. Mr. Edwards.

Mr. EDWARDS. Ave.

The CLERK. Mr. Hungate.
Mr. HUNGATE. Aye.
The CLERK. Mr. Conyers.
Mr. CONYERS. No.

The CLERK. Mr. Eilberg.
Mr. EILBERG. No.

The CLERK. Mr. Waldie.

Mr. WALDIE. No.

The CLERK. Mr. Flowers.

Mr. FLOWERS. No.

The CLERK. Mr. Mann.

Mr.MANN. Aye.

The CLERK. Mr. Sarbanes.

Mr. SARBANES. No.

The CLERK. Mr. Seiberling.

Mr. SFIBERLING. NO.

The CLERK. Mr. Danielson.

Mr. DANIELSON. NO.

The CLERK. Mr. Drinan.

Mr. DRINAN. No.

The CLERK. Mr. Rangel.

Mr. RANGEL. Aye.

The CLERK. Ms. Jordan.
MS. JORDAN. Aye.

The CLERK. Mr. Thornton.
Mr. THORNTON. Ave.
The CLERK. Ms. Holtzman.
Mrs. HOLTZMAN. Aye.
The CLERK. Mr. Owens.
Mr. OWENS. No.

The CLERK. Mr. Mezvinsky.
Mr. MEZVINSKY. No.

The CLERK. Mr. Hutchinson.
Mr. HUTCHINSON. Ave.
The CLERK. Mr. McClory.

Mr. McCLORY. Ave.

The CLERK. Mr. Smith.

Mr. SMITH. Ave.

The CLERK. Mr. Sandman.

Mr. SANDMAN. Aye.

The CLERK. Mr. Řailsback.
Mr. RAILSBACK. Ave.
The CLERK. Mr. Wiggins.
Mr. WIGGINS. Aye.

The CLERK. Mr. Dennis.

Mr. DENNIS. Aye.

The CLERK. Mr. Fish.

Mr. FISH. Ave.

The CLERK. Mr. Mayne.

Mr. MAYNE. Aye.

The CLERK. Mr. Hogan.

Mr. HOGAN. Aye.

The CLERK. Mr. Butler.

Mr. BUTLER. Aye.

The CLERK. Mr. Cohen.

Mr. COHEN. Ave.

The CLERK. Mr. Lott.

Mr. LOTT. Ave.

The CLERK. Mr. Froehlich.

Mr. FROEHLICH. No.

The CLERK. Mr. Moorhead.

Mr. MOORHEAD. Ave.

The CLERK. Mr. Maraziti.

Mr. MARAZITI. No.

The CLERK. Mr. Latta.

Mr. LATTA. No.

The CLERK. Mr. Rodino.

The CHAIRMAN. Aye. The clerk will report the vote.

The CLERK. Twenty-four members have voted aye, 15 members have voted no.

The CHAIRMAN. And the motion is agreed to and the Chair will declare that the session will be closed. And will those who are not members of the committee or staff please leave the room.

[Short recess.]

[Whereupon at 11:55 a.m. the committee went into executive session.]