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Executive Session

TUESDAY, JUNE 25, 1974


Washington, D.C. The committee met, pursuant to notice, at 11:55 a.m., in room 2141, Rayburn House Office Building, Hon. Peter W. Rodino, Jr. (chairman) presiding.

Present: Representatives Rodino (presiding), Donohue, Brooks, Kastenmeier, Edwards, Hungate, Conyers, Eilberg, Waldie, Flowers, Mann, Sarbanes, Seiberling, Danielson, Drinan, Rangel, Jordan, Thornton, Holtzman, Owens, Mezvinsky, Hutchinson, McClory, Smith, Sandman, Railsback, Wiggins, Dennis, Fish, Mayne, Hogan, Butler, Cohen, Lott, Froehlich, Moorhead, Maraziti, and Latta.

Impeachment inquiry staff present : John Doar, special counsel; Albert E. Jenner, Jr., special counsel to the minority; Samuel Garrison III, deputy minority counsel; Robert J. Trainor, counsel.

Committee staff present : Jerome M. Zeifman, general counsel; Garner J. Cline, associate general counsel; and Franklin G. Polk, associate counsel

The CHAIRMAN. The committee will come to order. I recognize the gentleman from Utah.

Mr. Owens. Mr. Chairman, I ask to be recognized for a series of motions.

The CHAIRMAN. The gentleman intends to offer his motions one at a time?

Mr. Owens. That is right, Mr. Chairman. The motion to be recorded, I think the clerk will read the first.

This is entitled "To Release Executive Session Materials."
The CHAIRMAN. The clerk will report the motion.
The CLERK (reading]:

I move that the committee publish and upon publication release the information and evidentiary material presented to the committee in executive session, exclusive of classified material relating to the bombing of Cambodia. Such material shall include committee transcripts of recorded Presidential conversations with such deletions as have been agreed to by the chairman and ranking minority member.

Until the published materials are released, such materials shall be subject to the rules of confidentiality.

The CILAIRMAN. Mr. Owens.

Mr. OWENS. Mr. Chairman, I think that the arguments to be made for this motion are quite obvious to the members. We have been talking about it individually and together for some time.

I think the big argument is simply that it is now timely. If there was justification for closing our hearings, and the committee decided by majority vote that there was, there is now justification, as we move to the final stages of our inquiry, there is justification that we make public the materials which have been presented to us and compiled by us during the initial investigatory phase. I think that the public has a right to know what is in these materials and if we desire public confidence in the ultimate judgment of this committee and public support for the ultimate decision, then I think we have to prepare the public with the materials which the staff have prepared for our use. I think there is no longer any reason for secrecy. The trial of Mr. Ehrlichman, I think, is to start tomorrow and presumably, the jury will be sequestered prior to the time that these materials can physically be published and released.

A great deal of the sensitive material, sensational material, has already leaked out and the rest will come out sooner or later and probably sooner anyway.

I think it is now important, as we prepare for the witnesses and as we prepare especially for the arguments, that these materials upon which we will base our arguments and our votes on any possible articles of impeachment, I think it essential that these materials be let out so the public has them as the background, so that they are aware of the matters upon which we will base our arguments and our decisions.

Mr. Conex. Will the gentleman yield?
Mr. OWEXS. Yes.

Mr. Cohen. I have two questions I would like to ask. You said it is now timely and the question of time is of great importance to this committee and to the courts. I notice there is no date specified in your motion. I do not think there should be, but perhaps we should have some understanding by the Chair and by the committee that this information should not be released until not only does the trial start of Ehrlichman; they have not empaneled a jury yet and I think it would be unwise for us to release it until the jury has been empaneled, as suggested by Judge Gesell.

Second. I do not think it goes quite far enough in excluding the matters about Cambodia. I am a little concerned about some of the information gathered by the FBI on the wiretaps about the personal lives of some of the reporters, as an example. I do not think that has any place in the public domain.

So with some modification, I can support your motion if it can be a little more restrictive.

Mr. OWENS. I have never been one who felt that the release of these materials could substantially prejudice the rights of Mr. Ehrlichman to a trial. Physically, as I said in my remarks, I am doubtful that the materials can be prepared, published, and released prior to the sequestering of the jury on the assumption that that will be done in the next 2 or 3 days anyway. I do think that they ought to be out

Ön the FBI wiretaps, based on articles in the newspapers over the last 10 days, I think it was Time or Newsweek which set forth by name in much greater detail information on those 17 "wiretapees," if

very soon.

that is a term, much more in detail than what we have had, as I recall, available to this committe. So I am doubtful that that can be hurtful.

Mr. Lott. Will the gentleman yield ?
Mr. Owens. Yes, I yield to the gentleman from Mississippi.

Mr. Lott. I have two quick questions. I am inclined to support the gentleman's motion, too. I would like to ask-maybe we should direct this to counsel. Perhaps the gentleman from Utah can answer it.

Do we have executive session material from other legislative committees other than what would be included in this exclusion you have for the Senate Armed Services Committee? I just do not recall, but I think that is something I should be sure about.

Mr. OWENS. There are executive materials. I understand that we may release them. Maybe counsel could tell you on that.

Mr. Doar. We have notified other committees with respect to the possibility that executive session testimony, would be released and have not used any of the testimony except where there is that understanding. We would review that finally, but that is my understanding.

Mr. Lort. All right, sir. One other brief question: Are there other trials, other than the Ehrlichman trial, that might be in some way affected by the release of this material, other individuals whose rights might be in jeopardy, that you can think of?

Mr. Doar. Well, the rule with respect to pretrial publicity is the impact it may have just prior to the time that the jury is selected. There are no other cases set for trial before September 9 at the earliest. So that the only trial that is now set in the next, prior to that time, is the Ehrlichman trial.

Mr. Lott. Thank you.
The CHAIRMAN. The time of the gentleman has expired.
Mr. EDWARDS. Mr. Chairman?
The CHAIRMAN. Mr. Edwards.

Mr. EDWARDS. Mr. Chairman, I will not take long, because my views on this subject are well known. But I am speaking in opposition to the motion by the gentleman from Utah. I am suggesting that this committee must be scrupulous in our standards, that we must observe carefully the procedures and protect the reputations and rights of individuals, whether they are the subject under investigation, witnesses, or merely people, third parties, who are mentioned in the text of the evidence.

We must also observe the rights of the respondent. Just because he is the President of the United States does not mean that the ordinary rules of procedure may be abandoned.

Our job, as established in the resolution of the House, is to sift through the great mass of evidence and then to determine if there are any impeachable offenses. Then, if voted, to publish the bill of impeachment with all of the relevant evidence in support. This motion offered by the gentleman from Utah contemplates publishing all the information relevant or irrelevant, evidence that is defamatory and may or may not be supportive of any count in any bill of impeachment.

I cannot think of any procedure more unfair to the respondent and to third parties than to publish defamatory information that can prejudice the case against the respondent in advance, evidence that is totally irrelevant to any bill of impeachment.

In the Senate, if it were a court of law-and I understand that the rules of criminal evidence do apply in the Senate—the defense counsel could ask for a dismissal just on this ground alone. I would point out in closing, Mr. Chairman, that the precedent-and I think we should have some decent respect for the President—do not support the motion of the gentleman from Utah. In the Andrew Johnson trial, to my knowledge and the knowledge of staff members of the House Judiciary Committee, the evidence gathered by the House Judiciary Committee has never, to this day, been published.

In the Judge Spear impeachment, I quote the chairman. He said, “Evidence challenged on the material can be allowed in the record."" But then the chairman said, “We will scrutinize it and if it is not material, we will not have it published.” That is page 43.

And lastly, the only other precedent that I can find is, of course, in the impeachment inquiry of Mr. Justice Douglas by this committee just a couple of years ago. The select committee of the Judiciary Committee heard evidence, a great mass of evidence. By a vote of 3 to 1, it decided not to vote the report favorably a bill of impeachment to the full committee and to this day, that evidence has been sealed.

I therefore would urge a no vote on the motion.
Mr. THORNTON. Would the gentleman yield?
Mr. EDWARDS. Yes; I yield.

Mr. THORNTON. I would like to associate myself to the remarks of the gentleman from California. Thank you for yielding.

Mr. HUTCHINSON. Mr. Chairman?
The CHAIRMAN. The gentleman from Michigan, Jr. Hutchinson.

Mr. HUTCHINSON. Mr. Chairman, I want to say that I agree in substance with the position taken by the gentleman from California, Mr. Edwards. I think, however, that it would be most inappropriate and quite unfair if this committee should publish any materials until after Mr. St. Clair has been heard from and his response also included in such publication. Until that happens, it seems to me as though this is premature.

Mr. OWENS. Would the gentleman yield ?
Mr. HUTCHINSON. Yes; I yield to the gentleman.

Mr. OWENS. I regret that in my opening remarks I did not make a point of that, but that is clearly the express intent, not just of the author of the amendment, but of the chairman, that the presentation of Mr. St. Clair will be made on Thursday and Friday, and the materials cannot be published before that time. While I do not intend to speak for the chairman, that clearly is the intent of the amendment.

Mr. HUTCHINSON. I am glad to have that assurance. I yield back the balance of my time.

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

Mr. FLOWERS. That was one point I wanted to ask of Mr. Owens, what about the inclusion of the St. Clair presentation material. I presume that that would be the Chair's intention, to publish it at the same time?

The CHAIRMAN. Although that matter is premature now, but that is the intention, that if there is to be an evidentiary presentation, it certainly would have to include the publication of the materials of Mr. St. Clair. I think that we could do no less.

Mr. FLOWERS. If this motion were carried, Mr. Chairman, would it be the Chair's intent to release the publication of all of the materia) at the same time?

The CHAIRMAN. That is correct, as it is printed.
Mr. FLOWERS. As it is printed ?
The CHAIRMAN. That is correct.

Mr. FLOWERS. Is it contemplated that it will be printed in installments or part one week, part the next week? Over a period of how long?

The CHAIRMAN. Well, I do not know, frankly, what the physical problems are, what the logistics are, but it would seem to me that in the light of the way the resolution and the motion is drawn, that the material would be all the material.

Mr. FLOWERS. Well, I am a little confused, Mr. Chairman, about when it would be released. All material would be released simultaneously? Is that the Chair's ruling! We are talking about some 8,000 to 10,000 pages of material which would obviously be in different bound volumes, I would presume some being prepared

The CHAIRMAX. This motion includes all of the material. Therefore, it would be that the material would be released upon publication, all of the material.

Mr. FLOWERS. Thank you, Mr. Chairman.
Mr. McCLORY. Would the gentleman yield ?
Mr. CON YERS. Mr. Chairman?
The CHAIRMAN. Mr. Conyers.

Mr. CONYERS. Mr. Chairman, I want to make sure I understand my friend, Mr. Edwards, from California. In terms of his citing precedents, am I to understand that the precedent was the one that you cited during your remarks in opposition to this motion ? Are there any others!

Mr. EDWARDS. I could only find three precedents where the Judiciary Committee either published all of the evidence or did not. In no case could I find a case-and they are very confusing, the cases themselves—where the Judiciary Committee followed the practice that is contemplated in the motion.

Mr. CONYERS. Well, that makes me feel a little bit better as one who supports the motion that, the American people have a right to be advised of what we are doing. It seems to me that my friend's objection turns primarily around the Justice Douglas proceedings, which I presume is the most recent matter in his mind. I would not want to characterize that proceeding as having been one so differently motivated than the matter which brought us to this inquiry. But it does seem to me that reasonable men could draw a distinction between those two

41-018–75—pt. 3—10

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