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WEDNESDAY, JUNE 26, 1974
HOUSE OF REPRESENTATIVES,
Washington, D.C. The committee met, pursuant to notice, at 10:50 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; Bernard W. Nussbaum, senior associate special 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 and the light photographers and cameras will please leave the room.
The committee will come to order and the Chair would first like to announce, before recognizing the gentleman from Arkansas, that we have received from Mr. St. Clair a letter addressed to Mr. Doar in which he advises Mr. Doar on June 25 that he has received on behalf of the President four subpenas, and "As I advised you by telephone, the President is out of the country, will not return untis approximately July 3, 1974, at which time I will see that the subpenas are brought to his attention. In light of this circumstance, it will not be possible for the President to review these subpenas and respond thereto by the date indicated thereon. Reponse will be made as soon as practicable following the President's return."
And it bears the signature of Mr. St. Clair, and each member will have a copy of this distributed to him so that they will be accordingly informed
I recognize the gentleman from Arkansas, Mr. Thornton. Mr. THORNTON. Thank you, Mr. Chairman. Mr. Chairman, I am prepared to offer a motion for the naming of witnesses to be called to present testimony to this committee.
In connection with calling of witnesses and the selection of witnesses to be called, it is, of course, vital that we discuss in committee fully and completely the nature of the testimony expected to be given by those witnesses, and further the nature of these gaps in the evidentiary material which has hitherto been presented to our committee, which are required to be filled by witnesses' testimony.
Accordingly, in order to discuss fairly and completely and fully which witnesses are to be called, it will be necessary to discuss material which this committee is still bound by confidential rules to maintain confidential. Accordingly, Mr. Chairman, I now move that the committee resolve itself into a closed session to consider the matter of calling witnesses before the committee so that the committee members may feel free to refer to matters still covered by the rule of confidentiality.
Mr. CoNYERS. Question, Mr. Chairman?
Mr. COXYERS. Mr. Chairman, I would like to support that motion, and also indicate that when we go into closed session, assuming it is the will of the majority of the members here, and I hope it is, that I would like to add an amendment that would keep in executive session this committee during the time that we are examining the witnesses. I think that would be extremely appropriate, and there has been a discussion in the committee and among the leadership on this question.
And I would like to add that amendment to the gentleman from Arkansas' motion.
Mr. SEIBERLING. Would the gentleman yield?
The CHAIRMAN. The gentleman will be recognized at the appropriate time for that motion. Mr. Hutchinson.
Mr. HUTCHINSON. Mr. Chairman, I would also like to indicate my support for the motion now being offered by the gentleman from Arkansas, Mr. Thornton, to close the meeting during the discussion of witnesses to be called. I think that he has made the point very clear that in order to fairly consider witnesses, we will have to be able to discuss what they are likely or expected to testify to, and that the rules of the House protecting witnesses and proposed witnesses against defamatory matter and whatnot would certainly warrant our consideration of them in closed session.
And I want to indicate my intention to vote for Mr. Thornton's motion.
Mr. BROOKS. Question, Mr. Chairman.
Mr. McCLORY. Well, will the gentleman withhold his asking the question to be put now? I would like to discuss the motion, if I may, Mr. Chairman, brieflv, anyway.
The CHAIRMAN. Would the gentleman yield? Is this the motion with relation to the closing of the session or the motion concerning the calling of the witnesses that the gentleman from Arkansas intends to present?
Mr. McClory. The motion to close the meeting, Mr. Chairman.
The CHAIRMAN. Well, the question has been put. Does the gentleman
Mr. McCLORY. Will the gentleman withhold?
Mr. McClory. Thank you.
Mr. Chairman, I am not going to oppose the motion of the gentleman. On the other hand, it was suggested by the gentleman from Michigan, Mr. Conyers, that he was going to propose an amendment to that motion which would require that these hearings be closed at the time that we examine witnesses. And I would like to suggest that these be separated, and that we have an opportunity to keep these meetings open insofar as the hearing of testimony is concerned.
I think that it is about time that we let the full light in on these hearings, that we demonstrate that we are not operating here in secret, and in some mysterious or devious way, which I think is the suggestion when we are not public.
And I am hopeful that we can consider that motion separately, and that the members will see fit to open up our hearings so that the public can see exactly what we are doing, can hear the witnesses that testify before us, and can be made aware of this entire proceeding that is being carried on here. Mr. SEIBERLING. Would the gentleman yield? Mr. DANIELSON. Would the gentleman yield? Mr. McClory. Yes, I yield to the gentleman from California.
Mr. DANIELSON. I recognize and I can count, I recognize it is probably futile to oppose this motion, though frankly I cannot in my mind see any reason why we should close the hearing today and then ask to have it open when we interrogate the witnesses themselves. All we are deciding today is the policy of whether or not we should call witnesses in the first place, and if so, which witnesses,
I personally, seě no justification for closing the hearings today.
Mr. McCrory. The only thing I would comment on is that it has been represented that in connection with determining who the witnesses are that we will be discussing what witnesses will be saying, and which material at this time is confidential.
Now, we have already taken action to make public our record so that the record is going to be public, and there seems no reason to me why we should maintain secrecy with regard to a public record, or that we should maintain secrecy in a hearing that the public should be entitled to look in on.
Mr. McCLORY. I yield to the gentleman.
Mr. BROOKS. Mr. Chairman, on my motion, I would withhold it if you wanted to recognize Mr. Waldie for a moment.
Mr. Waldir. Yes, Mr. Chairman. I want to oppose this motion for almost the exact opposite reasons that were stated by Mr. McClory.
It seems to me when we are discussing the reasons for calling witnesses, the alleged reason to close that discussion is because we will be considering evidence that has been, up to yesterday, in a confidential status. Yesterday we voted to open all of that evidence to the public.
Therefore, it seems to me in discussing the necessity of calling witnesses and whatever discussion of the kind of evidence that that would entail would breach no confidentiality because confidentiality really does not exist.
Now, I would think when we get to the point of taking testimony from the witnesses we will be confronting a different situation because we may very well bring in additional evidence that we have not considered as to which confidentiality may justly and properly need to at
tach. But, at this point there is no evidence that is damaging or defaming or degrading, of which I am aware, and any discussion of that evidence in determining what witnesses are needed to fulfill any gaps in the evidence would not seem to me to be damaging to anyone.
And I would suggest that we hold the committee open while we discuss what witnesses we call, and consider closing the committee at such time as those witnesses are identified.
Mr. RAILSBACK. Would the gentleman yield ?
The CHAIRMAN. May I clarify for the gentleman that while yesterday we voted for the releasing of the materials which were developed in executive session, that nonetheless, the rules of confidentiality still obtain until the publication of those materials. And therefore
Mr. Waldie. But you see, I understand that, Mr. Chairman. But again, I think we are in a kind of a “Catch 22” position that reflects adversely on the public. It does not damage anybody to discuss that evidence because it has not been published if it is necessary to discuss that evidence to come to a conclusion the committee is seeking. It might damage someone if we had not already made a decision yesterday that none of the evidence is damaging and should be released.
I would hope that the evidence would be released quickly, but to say that the committee should be hampered because of the mechanics of releasing the evidence would seem to me to be not very fair.
The CHAIRMAN. Would the gentleman yield?
Mr. SEIBERLING. As the committee knows, I raised yesterday a ques. tion on the motion to close the session as to whether, in fact, any. thing was going to be discussed which could reveal material that was received in executive session, and it was brought out that that was the case. Obviously, that is going to be the case today and, therefore, I think logically we have to follow the same procedure we followed yesterday.
I would like to point out, however, with respect to the comments of Mr. McClory that the issue as to whether particular witnesses should be examined in open session not only involves the possible release of material that was received in executive session, and that has not yet been made public, but also involves the possible testimony by those witnesses on matters that might tend to defame or degrade third parties. And I do not see how we can make a blanket ruling that we will have all of those in open session.
And I think it is appropriate to make that point now,
I think we find ourselves in this quandary because we are making a mistake in examining the witnesses at this time. We have no over view of all of the evidence yet, we have had no real in-depth discussions about the possible bill of impeachment might be, and so here we are examining witnesses. What are we going to ask them? Are we just going to try to fill in holes in areas that might not be a part of the bill of impeachment, if any is voted out?
The wisest thing for us to do in the next week or so would be for us to examine the evidence we have and come to some kind of a theory as to what we want to do, and then fill in the gaps with a number of witnesses.
Now, I will go along with the procedure, but I think we ought to, I think I ought to point out that we are making a mistake.
Mr. LATTA. Would the gentleman yield?
Mr. BROOKS. I promised Mr. Flowers, and then I will get to Mr. Railsback and then Mr. Latta, and maybe we can go all morning closing the meeting.
Mr. FLOWERS. Mr. Chairman, in reflecting on yesterday's meeting that we closed, I cannot remember a thing that was disclosed in our subsequent executive session that could not have been just as well done in open session, and I speculate that that is what would be the case today as well.
And I am constrained to agree with my friends from California who say that we might as well be open during that aspect of it.
I think one of the problems, we are getting ready to run full square into, is on when this material is going to be published, Mr. Chairman. We have got a ruling that the rules of confidentiality will obtain until the material is published. Now, will the material be published in complete form and at one specific time, all of the materiał?
The CHAIRMAN. The gentleman recalls that yesterday the Chair advised him that those materials will be published in accordance with the motion, and that the first materials that are ready and available will be sent to the printers, and they will be printed accordingly.
Mr. FLOWERS. In other words, they will be published in installments?
The CHAIRMAN. I do not say they are going to be published in installments, but the gentleman knows we were presenting the materials at the time in various phases of the inquiry. Now, whether or not it will be published all at one time is another question.
Mr. FLOWERS. Well, the problem is, as I see it, Mr. Chairman, and I will not belabor this--we went through it several times—we are going to have part of this subject to the rules of confidentiality, and part of it not, and for how long none of us really knows.
The CHAIRMAN. The gentleman from Texas still has the floor, and I am going to put the question.
Mr. BROOKS. Has Mr. Railsback got a point?
Mr. RAILSBACK. Yes; I will be very brief and I thank the gentleman for yielding
I am going to support the motion of the gentleman from Arkansas. I think that we probably will discuss some of the potential evidence relating to some of the potential witnesses that we want to call. And I think also that there are going to be some amendments probably that will want to include other witnesses that are not under consideration of being called for certain specific reasons. And the chairman is absolutely right, that in our motion yesterday we certainly did reserve the confidentiality of the materials until the published materials are actually released.
So, I think there is certainly merit to the gentleman's motion.
Mr. BROOKS. Congressman Latta? Mr. Latta, did you have a question ?
Mr. LATTA. Yes, Mr. Chairman. This does not happen very often so I had probably better comment on this. I find myself in agreement