sion of the committee during the course of this inquiry, I would like to associate myself with those who have described these proceedings as eminently responsible, fair and indicative of an effort to establish the truth. To the extent that views have been expressed elsewhere to the contrary, I disassociate myself from those views.

Now, with respect to the presentation of written materials that I had told you last week we hoped to have available today: in fact, for a variety of basically mechanical and administrative problems, which I am sure you can appreciate, given the short time we have had to work on this, we have simply been unable to prepare more than a small portion of those materials for distribution today. During the rest of the week, sections relating to the discussions of the facts and the law in such other areas of the inquiry as time and manpower permit will be distributed to the Members in the belief that so long as the committee is still in the process of deliberating on this matter, it is appropriate to provide views on the facts and the law.

NOTE. The material referred to above may be found in a previ ously published publication entitled "Minority Memorandum on Facts and Law" released by the House Judiciary Committee in July 1974.)

In addition to stating my immense gratitude to the minority staf for their almost super-human efforts these several days, I want to express my appreciation to Mr. Doar's staff for the full cooperation which they have shown in assisting the minority lawyers in preparation of this memorandum. I would like also to say that this is indicative of the spirit of good will and principle which Mr. Doar has exhibited throughout this inquiry.

The subject of my presentation this morning, I think could best be described as the role of politics, with a capital P, in the impeachment process. And by that I mean, ladies and gentlemen, of course not the role of partisan politics, but the role of politics in the sense of government policy-determinations of what is in the public interest.

I would like to discuss the role of politics in the context of several topics. One, the nature of this institution; two, the House of Repre sentatives; three, the nature of the impeachment process; four, the nature of this inquiry and finally the nature of the facts.

As a previous member of the permanent staff of this committee, I have had and do have nothing but the ultimate regard and respect for the House of Representatives as an institution. I was delighted to have the opportunity to come to this committee's staff in December of last year to work on this project.

But, it is important to note that this is a political body in the finest sense of the word. The House of Representatives is designed to funetion as a representative of people. It is essentially bipartisan, and not nonpartisan, in composition, and I think that any congressional enterprise should reflect the character of the institution

It has a bearing on the question of the factfinding process here to discuss briefly the nature of the role of the staff in the conduct of this inquiry And if you will bear with me, I would like to do that for a moment. I think it would be absurd to appear here this morning, in whatever capacity I am appearing, without making any note of the evolution of the staff structure in recent days and weeks. A nonpartisan staff, which is the concept upon which this staff was founded in December and January, is not unprecedented in the history of Congress, but it is certainly atypical. Only where there is an area of inquiry

which requires a great deal of expertise, which is true in the case of the Joint Committee, a modification of the normal congressional system of staffing is deemed appropriate.

But, I would like to make the point again, only because I think it has relevance to the question of the factfinding process, and frankly I am delighted to be able to make the point openly, looking the Members in the eyes, not covertly: in retrospect, I am sorry that the staff was established from the outset as a nonpartisan staff. I think the Members on both sides of the aisle would have been better served if there had been a concept prevailing in the nature of bipartisanship rather than nonpartisanship.

The reason I say that is because, I think, unlike those who have not had the experience of working either with or in a bipartisan staff, I felt, when I worked on this committee staff the first time around, that the degree of mutual trust and cooperation between the minority and majority members of this committee staff was one of the most impressive things that I had experienced in my brief political career. I think that we may have, in an effort to assure the appearance of fairness— and I know this was precisely the motivation, an effort to let the country know that we were all trying to be fair about this matter-simply ignored the benefits to the factfinding process that a recognition of partisan interests that differ would have provided.

The CHAIRMAN. May I interrupt you? And I think it is important that I do interrupt you, Mr. Garrison.

I think that I would be less than fair and candid with this committee if I were not to state that this surprises me that you harbor this kind of an opinion, because if you will recall when Mr. Hutchinson first sent you to see me, and met with me before you were officially hired, I asked whether or not in your view you would take any position other than a nonadvocate, nonpartisan position and I told you then and there that if I thought that you would take an advocate position, I could not, in good conscience, hire you. That was the understanding that I had had with Mr. Hutchinson and you then and there agreed with me that would be the position and the only position that you felt fair to take.

Now, I state that because I believe that it is important that that be on the record.

Mr. GARRISON. I agree entirely, Mr. Chairman, that was exactly what you and I discussed and that is why I used the phrase in my presentation that in retrospect I think it was probably a mistake to have established a staff structure which was based upon an erroneous premise that people don't tend to divide philosophically along very, very general lines. And I am thinking of it functionally, also, in terms of the service provided to the members of the committee.

But the chairman is absolutely correct that the original staff structure was one which I had had a part in creating.

I would point out that the question of partisan representation on the staff, though, does not have to be a matter of fighting and scheming and all of the negative things which the public might associate with partisanship. And I would like to point out, for example, that in the selection of minority staff members for this inquiry, in fact 3 of the 11 minority lawyers that I hired have been or are registered Democrats, which is a somewhat higher ratio, if you want to look at it in

those terms, than the 2 or 3 registered Republicans out of 27 majority lawyers.

Now, my only point is that I have never viewed it as the role of minority staff simply to grind a partisan ax or to be an advocate in its own right. The only advocacy in which any members of the staff are really entitled to engage is that on behalf of their Members, on behalf of their clients, but it is that very advocacy of our clients' viewpoints which I think in the context of this inquiry was unfortunately suppressed, and I think it was done so because of the system and not because of anyone's intention to do so.

Mr. MCCLORY. Mr. Chairman, may I make a comment, perhaps relevant to the comment you made and the statement that Mr. Garrison is making now? Because I was a strong supporter of the bipartisan staff, the integrated or bipartisan nature of the staff, and I think that it was, I think it was eminently successful, and I have felt that the staff presentation throughout the entire investigative portion of the inquiry was completely fair and impartial and objective.

The reason I think that we are at this-we are experiencing this sort of shifting staff, or change in status perhaps of staff service, is that at the end of the objective inquiry we come to a point where we have to be decisionmakers and we do have to, we do have to be represented as a Republican and Democratic members of this committee regardless of our views, not that they are diametrically opposed or that they are uniform on one side or the other, which they are not. And so, I would just like to-well, since the tangent that the gentleman is talking about and so I just think that it is appropriate at this time that this partisan or this minority position be emphasized and be represented.

Mr. FLOWERS. Mr. Chairman, are we going to get to the facts sometime this morning?

The CHAIRMAN. Mr. Garrison, please proceed.

Mr. GARRISON. Thank you. The train of thought I was developing, ladies and gentlemen of the committee, is that, in fact, there were implications for the fact finding process in terms of the way that the staff was organized, and that those were sometimes good, sometimes bad in terms of what Mr. McClory referred to as the bipartisan or nonpartisan staff products. Sometimes a presentation of facts was diluted from what it would have been, the force of them, if the minority were not involved, but the unfairness to both sides was that they were diluted enough to make them not quite pleasing to the majority. but they could never be stated in a manner which was really worthy of the endorsement of the minority.

Now, at this point, therefore, we have arrived at a statement of matters which were not brought to the attention of the committee in the presentation by Mr. Doar last week, and this is to serve the function, as I view it, of one counsel as part of a team of counsels being sure that in the time allowed we have not only one side of the facts to view, but all of the revelant considerations.

And I want to turn now to the role of politics in the impeachment process. The framers considered and rejected placing impeachments and the trial of impeachments in the judicial system. Proposals for having the matter adjudicated by the Supreme Court or in a Special Court of the Nation established only for the purpose of trying

impeachments was fully discussed, and a conscious decision was made that this grave matter of removing an officer of an independent, coordinate branch of the Government would be reserved to the most representative body of the three branches of Government, the Congress. We have therefore, a political body reviewing evidence relating to whether or not political crimes, and I use that word crimes without regard to whether there are statutory offenses involved or not, but reviewing whether political crimes have been committed by a political officer of another branch of Government.

These political considerations relating to the public welfare and policy of the Government are in the impeachment process legal considerations, because it is a political process, political considerations are a part of the law of impeachment.

This concept is expressed at pages 9 and 10 of the introduction which was distributed to you this morning, and the only point that is being made here is that, in our view, impeachable offenses are those for which, under the Constitution, impeachment, and removal by the Senate are legally permissible. It is also our view that there is no impeachable offense for which the sanction of removal is mandatory.

The House in the first instance and the Senate thereafter exercise political judgment which I construe to mean simply balancing the public interest in the premises. The question facing the committee, and thereafter the House, is not simply whether the President did whatever may be alleged. The question is, did the President do it, and if so, what are the implications of that for the Nation in the light of all competing public interests.

In exercising its discretion whether to impeach, the House, and thereafter the Senate, if impeachment occurs, exercises a discretion which, in my judgment, is reviewable only by the people, not by the courts. It is not only permissible, but it is essential to the character of the process, that those political judgments be made.

My own view of the role of the House is that of all of those institutions or roles in other areas of the law to which the House might be analogized, that the role of prudent prosecutor is the most apt. The prudent prosecutor begins his inquiry without bias toward the suspect. He proceeds to gather the evidence from every source, to reach a judgment as to whether the individual should be prosecuted. I tend to feel that the House of Representatives is really to be considered in the role of prudent prosecutor. The House doesn't simply decide that the President should be impeached, if that is its judgment, and then leave it to someone else to go about accomplishing the removal. The House decides whether it will seek to accomplish the removal by going to the Bar of the Senate, bringing the charge from the House and proceeding to prosecute the case.

It seems to me that when your staff reviews the facts and the law pertinent to this inquiry, what we are really doing is serving as your in-house counsel, assisting you to advise, in turn, the rest of the prosecuting body whether or not, simply, there is a case. And I would suggest that you consider whether there is a case that you can win, in the sense that the evidence is sufficient to warrant a reasonable belief on your part that the outcome of the process will be that which the House seeks when it goes to the Bar of the Senate; namely, removala successful prosecution, in other words.

Now, I realize that there can be different views on this. We have prepared a memorandum on the standard of proof, which will be distributed this week as a part of the minority memorandum, and some of the policy considerations which we feel bear upon selecting the appropriate standard of proof are discussed in that memorandum; the analogy to the grand jury and the analogy to the role of the prosecutor.

But, the bottom line, as it is said, of that memorandum, I think, basically is this: that when a member of the committee or a Member of the House votes to impeach, he should do so having made a judg ment that the evidence convinces him that the President should be removed from office. Now, some might say, well, isn't that self-evident. Not necessarily. Some feel that you should only determine whether the President might be removed from office on the basis of the facts. It is our view that the proper test is whether, in voting for impeachment, the member feels the President should be removed from office. that the prosecution should succeed.

The standard of proof does not apply to the law. Standards of proof never apply to the law. One must be convinced as a matter of law that the offense, if proved, is constitutionally a valid charge. One then, we feel, must be convinced in the exercise of his political judg ment that the best interests of the Nation warrant removal rather than retention of the officer.

Then comes into play the standard of proof: the sufficiency of the evidence relating solely to the facts-what really happened, what did the officer do-and it is our view that in reaching a decision as to the sufficiency of the evidence that the members of this committee and the House are again in the role of the prudent prosecutor, who looks over the case, and does not engage in a prosecution which will fail, being concerned not simply about embarrassment in a prosecution that fails, but in the way in which an unsuccessful prosecution affects the public interests.

It would be unfair to the President, it would be embarrassing to the House and, for both reasons equally, it would be tragic for the Nation if the committee were to recommend to the House an impeachment in which, when evidence were laid out in a trial-type situation, a fully contested situation, the evidence fell short.

It always seemed to me, frankly, during the inquiry that it was in the interest of the committee equally as much, if not more, than of the President to utilize devices such as cross-examination and every other rigorous test of the evidence, so that in reaching that judgment as to the sufficiency of the evidence, one would have the maximum degree of confidence as to how the evidence would stand up when subjected to an adversary proceeding.

There are certain problems in this evidence which I think, as one of your counsel, I would have to point out to you, just as if I were on your staff, and you were the U.S. Attorney, or the Attorney General, and you were trying to determine whether or not to initiate a prosecution. You would want someone there to be--I will not use the phrase commonly used to describe playing the role of testing the evidence-but someone who will, in fact, point out the soft spots.

One special factor I would like to take note of here is that reliance has been placed heretofore on utilization of so-called adverse infer