/0 2c

C u VEKN VlElv

PARDON OF RICHARD M. NIXON,

AND RELATED MATTERS

Storage J M ENTS

R 1 1975

KANSAS STA TE U N IV E R S IT fl ± J A l v l l M k J 0 T m u . L -it= > K /* r « Y ITT? A PT NTPQ

BEFORE THE

SUBCOMMITTEE ON CRIMINAL JUSTICE

OF THE

= == <

COMMITTEE ON THE JUDICIARY 

HOUSE OE REPRESENTATIVES

NINETY -TH IRD CONGRESS

SECOND SESSION

ON

BILL S AND RESOLUTIONS THAT SEEK TO INSU RE PUBLIC 

ACCESS TO INFORMATION RELA TIVE TO WATERGATE AND 

ITS RELATED ACTIVIT IES

SEPT EMBER 24, OCTOBER 1 AND 17, 1974

Serial No. 60

Printe d fo r the use of the Committee on the Judiciary

PARDON OF RICHARD M. NIXON 

AND RELATED MATTERS

H E A R IN G S

BEFO RE T H E

SUBCOMMITTEE ON CRIM INAL JUSTICE

OF TH E

COMMITTEE ON THE JUDIC IARY

HOUSE OF REPRESENTATIVES

NINE TY -TH IRD CONGRESS

SECOND SESSION

ON

BILL S AND RESOLUTIONS THAT SEEK TO INSURE PUBLIC 

ACCESS TO INFORM ATION RELATIVE TO WATERGATE AND 

ITS RELATED ACT IVIT IES

SEPTEMBER 24, OCTOBER 1 AND 17, 1974

Serial No. 60

Print ed for the use of the Committee on the Judiciary

44-274

U.S. GOVERNMENT PRINTING OFFICE 

WASHINGTON : 1975
COMM ITTE E ON TH E JU DIC IA RY

PET E R W. RO DI NO, 

H AR O LD D. DO NOH UE , M as sa ch us et ts 

JA C K BRO O KS, Tex as

R O B E R T W. K A ST E N M E IE R , W isco ns in 

DO N ED W AR D S, Califo rn ia 

W IL LIA M L. H U N G ATE, Miss ou ri 

JO HN CO N YER S, J r., M ichiga n 

JO SH U A E IL B E R G , Pen nsy lv an ia 

JE RO M E It. W A LD IE , Califo rn ia 

W A L T E R FLO W E R S, Al ab am a 

JA M E S it. MAN N, So ut h Car ol in a 

P A U L S. SA R B A N E S, M arylan d 

JO HN F. SE IB E R LIN G , Ohio 

G EO R G E E. D A N IE LSO N , Califo rn ia 

R O B E R T F. DRIN AN , M as sa ch us et ts 

C H A R LE S B. RAN GEL. Ne w Yor k 

B A R B A R A JO RDAN , Tex as 

R A Y TH O RN TO N , Ark an sa s 

E L IZ A B E T H H OLT ZM AN, Ne w Yor k 

W A Y N E OW EN S. Ut ah 

E D W A R D M E Z V IN SK Y , Io wa

J r., Ne w Je rs ey , C h air m an

ED W A R D H UTCH IN SO N , M ichiga n 

R O B E R T M cC LOIt Y, Il linois 

H EN R Y I’ . SM IT H II I, Ne w Yo rk 

C H A R LE S W. SA N DM AN , J r., Ne w Je rs ey 

TO M R A IL S B A C K . Il linoi s 

C H A R LE S E. W IG G IN S, Califo rn ia 

D A V ID W. DEN N IS , In di an a 

H AM IL TO N F IS H . J r., Ne w Yor k 

W IL E Y M AYN E, Io wa

LA W R E N C E J. IIO GA N, M ar yl an d 

M. C A L D W E L L B U T LE R , V ir gin ia 

W IL LIA M S. CO H EN, Main e 

T R E N T LO TT. M iss iss ip pi 

H AR O LD V. F R O E H LIC H . W isco ns in 

CA R LO S J. M OORH EA D, Califo rn ia 

JO SE PH J. M A It A ZIT I, Ne w Je rs ey 

PA I L N. M cC LO SK E Y, J r., C a li fo r n ia

J er om e M. Z e if m a n , G enera l C o u n sel

Gar ne r J. C l in e, A sso c ia te G enera l C o u n sel

Her be rt F u c h s, C o u nse l

W il lia m P. S h a t t u c k, C o u n sel

H. C h r is to p h er Nol de , C o u nse l

A la n A. Pa r k e r, C ounse l

Jam b s F. F a lco , C o u nse l

Mau ri ce A. B ar bo za, C o u nse l

R ob er t J. T rai nor. C o u nse l

A rth u r I’ . E ndr es , J r. , C o u nse l

Da n ie l L. C oh en, C ounse l

W il lia m P. Dix o n, Cou nse l

J ared B. St a m e l l, C ounse l

F r an k lin G. P o l k , C ounse l

T h om as E. Moo n ey, C o u nse l

M ic h a el W. B lo m m er, C o u n sel

A le xan der B. Co o k, C ounse l

Co n s t a n t in e J. Ge k a s , C o u nse l

A la n F. Co f f e y, Jr ., C o u nse l

K e n n et h N. K l e e, C o u nse l

Subc om mit te e on Cr im in a l J ust ic e

W IL L IA M L. H U N G ATE, Miss ou ri, C hair m an

R O B E R T W. K A ST E N M E IE R , W isco ns in 

DO N ED W AR D S, Califo rn ia 

JA M ES R. MAN N, So ut h Car ol in a 

E L IZ A B E T H H OLT ZM AN, Ne w Yor k

H EN R Y P. SM IT H II I, Ne w Yor k 

D A V ID W . DEN N IS , In dia na 

W IL E Y M AYN E, Iowa 

LA W R E N C E J. HOG AN , M ar yl an d

R ob er t J. T ra in or, C o u nse l

T h o m as W. Hu t c h is o n , C o u n sel

S tep h e n P. L y n c h , R ese a rc h A ss is ta n t

Mic h a e l W . B lo m m er, A sso c ia te C o u n sel
C O N T E N T S

Page

Hearings held on:

September 24, 1974___________________________________________ 1

October 1, 1974______________________________________________ 61

October 17, 1974_____________________________________________ 87

Testimony of:

Abzug, Hon. Bella S---------------------------------------------------------------- 22

Bingham, Hon. Jona than ______________________________________ 53

Prepared stat em ent_______________________________________ 57

P Danielson, Hon. George E_____________________________________ 63

( Prepared s tat em ent_______________________________________ 79

Ford, Hon. Gerald R., President of the United S tates_____________ 90

, Prepared s tat em ent_______________________________________ 151

'

t

, Gude, Hon. Gilbert__________________________________________ 2

Koch, Hon. Edw ard I________________________________________ 41

Prepared s tat em ent_______________________________________ 51

McKinney, Hon. Stewart B___________________________________ 13

Stark, Hon. Fortney H________________________________________ 81

Prepared s tat em ent_______________________________________ 84

Additional statements of:

Heckler, Hon. Ma rga ret_______________________________________ 85

Jordan , Hon. Ba rbara _________________________________________ 61

Additional material:

“The Pardon of Nixon Was Timely, Legal, Jaworski Believes” artic le 

from the Wall S treet Journal_________________________________ 147

U.S. Supreme Court in Ex Parte Garland, 4 Wallace 333; U.S. Supreme

Court in Burdick v. United States, 236 U.S. 79__________________ 111

Appendixes:

Appendix 1:

Buchen, Philip W., Counsel to the President, lette r with enclosures, October 15, 1974, to Hon. William L. llu ng ate, 

chairman, Subcommittee on Criminal Justice_______________ 189

Hungate, lio n. William L., chairman, Subcommittee on Criminal 

Justice, lette r dated September 17, 1974, to Hon. Leon 

Jaw ors ki___________________________ :__________________ 160

Ford, Hon. Gerald R., President of the United States, letters to 

Hon. William L. llu ngate , chairman, Su bcom mitte e on Crim inal 

Justice :

Septemb er 20, 1974___________________________________ 160

Septemb er 23, 1974___________________________________ 187

Septemb er 24, 1974___________________________________

Septemb er 30, 1974___________________________________ 188

- Hun gate , Hon. William L., chairm an, Subcommittee on Criminal

* Justice, letters to President Gerald R. Ford :

Septemb er 17, 1974___________________________________ 159

September 17, 1974___________________________ 159

Septemb er 18, 1974___________________________________ 160

v September 25, 1974___________________________________ 188

October 7, 1974______________________________________ 188

Jaworski, Hon. Leon, Special Prosecutor, lette r dated Septem ­

ber 24, 1974, to Hon. William L. Hungate , chairman, Subcommittee on Criminal Jus tice_______________________________ 187

Press conference of President Gerald R. Ford on September 16,

1974__________________________________________________ 161

Press conferences of Philip W. Buchen:

September 8, 1974____________________________________ 166

September 10, 1974___________________________________ 178

(in)
IV

Appendixes—Continued

Appendix 2: J

’

a £®

House Concurrent Resolution 629_________________________ 236

House Concurrent Resolution 630_________________________ 238

House Concurrent Resolution 632_________________________ 239

House Concurrent Resolution 633_________________________ 240

House Concurrent Resolution 636_________________________ 242

House Concurrent Resolution 643_________________________ 243

House Concurrent Resolution 644_________________________ 244

House Concurrent Resolution 646_________________________ 246

House Joint Resolution 1118_______________________________ 211

House Jo int Resolution 1121_______________________________ 213

House Joint Resolution 1126________________________ 215

House Join t Resolution 1130_______________________________ 217

House J oin t Resolution 1139_______________________________ 219

House J oin t Resolution 1142_______________________________ 221

House J oint Resolution 1149_______________________________ 223

House Joint Resolution 1151_______________________________ 225

House Joint Resolution 1152_______________________________ 226

House Joint Resolution 1155_______________________________ 228

House Join t Resolution 1157_______________________________ 230

House J oint Resolution 1159_______________________________ 232

House Joint Resolution 1168_______________________________ 234

H.R. 16619___________________________ 247

H.R . 16751______________________________________________ 248

H. R. 16756______________________________________________ 250

H.R. 16794______________________________ 252

H R. 16798______________________________________________ 254

H.R . 16816._____ 256

H.R . 16878_________________________________________ 259

House Resolution 1361____________________________________ 191

House Resolution 1363____________________________________ 193

House Resolution 1367____________________________________ 196

House Resolution 1368____________________________________ 199

House Resolution 1370____________________________________ 201

House Resolution 1375____________________________________ 203

House Resolution 1382____________________________________ 205

House Resolution 1385____________________________________ 207

House Resolution 1450------------------------------------------------------- 209

Appendix 3:

Federalist pap er No. 74 ___________________________________ 261

Annotated Con stitu tion, excerpt------------------------------------------- 262

“The Pardoning Power of the President” (ch. I) by W. H. 

Hu mb ert ______________________________________________ 265
PARDON OF RICHARD M. NIXON, AND RELATED 

MATTERS

TU ES DA Y, SE PT EM BER 24 , 1974

H ouse of R ep re se nta ti ves ,

S ubc om mit te e on C r im in a l J us ti ce

of t h e C om m it te e on t h e J ud ic ia ry ,

> Washing ton, D.C.

The subcommittee met, pursuant to notice, at 10:10 a.m., in room 

2141, Rayburn House Office Building, Hon. William L. Hungate 

[chairman of the subcommittee] presiding.

Pres ent: Representatives Hungate, Kastenmeier, Edwards, Mann, 

Holtzman, Smith, Dennis, Mayne, and Hogan.

Also p resent: Representatives Conyers and Fish.

Staff present: Robert J. Trainor, counsel; Michael W. Blommer, 

associate counsel.

Air. Hungate. The committee will be in order.

Today, the Subcommittee on Criminal Justice of the Committee on 

the Judiciary begins hearings on bills and resolutions that seek to 

insure public access to information relative to Wate rgate and its related activities.

Within the last several days, 19 bills and resolutions concerning 

Watergate-related events have been referred to this subcommittee 

for its consideration. Sixty-three Members, Democrats and Republicans, have sponsored or cosponsored one or more of these measures. 

Because of the importance of preserving the public’s right to know 

the full and complete story of Watergate, and the privileged nature 

of certain of these resolutions of inquiry, it is necessary to proceed 

promptly in considering these legislative measures.

Recent events caused many responsible citizens and Members of 

Congress serious concern that the complete story of Wate rgate may 

never be recorded. The pardoning of former President Nixon has 

certainly jeopardized the opportunity for full public disclosure of 

#

inform ation gathered by the Office of the Special Prosecutor bearing

on former President Nixon's role in the Wate rgate affair. Moreover, 

the agreement entered into between the former President and the 

General Services Adm inistration has caused many to fear tha t addit tional information relevant to Wate rgate will be forever withheld

from public scrutiny. Unless the complete story of Watergate is 

known, history may incorrectly record the events of these times.

The Congress has dealt responsibly with Watergate, but Watergate 

will not be behind us until the record of Wate rgate is complete.

We now proceed to review the proposals before the subcommittee 

designed to guarantee that the public’s right to know is protected, 

(l)
2

Before Congress and the Nation are important questions of ownership 

and access to tapes, materials, and related documents prepared and 

created by public officials while on the public payroll. Many of the 

resolutions before us touch these problems. We must see to it that, there 

is full public access to all information concerning W atergate, its coverup. and all related events.

Today, we hear from Members of Congress who have introduced 

resolutions perta ining to these issues. Generally, the proposals to be 

considered relate to the pardon of former President Nixon, the issuance of additional pardons to persons involved in Watergate-related 

activities, the desirability of the Watergate Special Prosecution Force 

to make public information it has compiled relating to the alleged 

criminal conduct of former President Nixon, and the public disclosure 

of all Watergate-related documents and tapes in the custody of the 

U.S. Government.

Mr. Smith—are there other opening statements?

Mr. Smith. Mr. Chairman. I do not believe there are any other opening statements on this side.

Mr. II ungate. If there are no further opening statements, the committee questioning will he done under the 5-minute rule and witnesses 

are urged so far as possible to confine their oral statements to 10 minutes so we may hear and question the maximum number of witnesses. 

No limit will be placed on the length of the statements tha t may be 

fded with the committee for consideration and inclusion in the record.

The committee will now call the first witness, Congressman Gude.

TESTIMONY OF HON. GILBERT GUDE, A REPRESENTATIVE IN CONGRESS FROM THE EIG HTH CONGRESSIONAL DISTRICT OF THE

STATE OF MARYLAND

Mr. Gude. Mr. Chairman, I would like to express my appreciation 

for the oppo rtunity to testify th is morning on House Jo int Resolution 

1118, which I introduced on September 11, 1974, and House Joint 

Resolutions 1126 and 1139, which I subsequently introduced with 19 

cosponsors. Congressman Frenzel has also subsequently introduced 

an identical resolution.

At his first news conference after assuming office, President Ford 

indicated tha t while he thou ght tha t former President Nixon had 

suffered enough, the legal proceedings in the W atergate affair should 

be allowed to run their course before any consideration of a Presidential pardon. I fully supported tha t policy for three reasons. First, it 

reaffirmed the people’s commitment to equal justice under the law regardless of power or position. Second, it insured the right of former 

President Nixon and the country to have a judgment by the courts of 

Mr. Nixon’s involvement, if any, in any offense a gainst the United 

States. T hird, it preserved the President’s options if Mr. Nixon by fair 

and due processes had been found guilty of any crime.

As a result of the decision to pardon former President Nixon, the 

courts now will not be able to make a judgment in this matter, and 

the people will not have the normal judicial resolution, of this matter 

as is appropriate to the American way.

The American people are entitled to all the evidence on both sides 

in this case. They can then intelligently examine the evidence and
3

make an informed judgment if they so desire. It was in furtherance 

of the objective of making all the facts known th at I introduced my 

resolution. Basically, it would require the Watergate Special Prosecutor to present to the public an objective report on all of the evidence 

in his possession concerning former President Nixon's involvement 

in any offenses against the United States. It is my intention t ha t all 

exculpatory evidence as well as any incriminating evidence be reported. The resolution would not expand Mr. Jaworski's auth ority 

to obtain additional evidence. It would merely require tha t he make 

public the evidence he has in his possession.

Having conducted an extensive investigation and published volumes 

of evidence as part of the Judiciary Committee’s impeachment proceedings, some may question the necessity for the Watergate Special 

Prosecutor to publish such a report. While I applaud the outstanding 

work of the Judiciary Committee throughout the course of the impeachment proceedings, I submit tha t there are two reasons for requiring Mr. Jaworski to issue such a report.

First, it appears th at the standard for impeachment and the standard for an offense against the United States may not be identical. 

Indeed, in following your committee's deliberations during the impeachment proceedings there appeared to be some disagreement among 

committee members as to what constitutes an impeachable offense, 

some arguing tha t a crime was not necessary and others maintaining 

tha t only certain crimes were sufficient to prove an impeachable 

offense. Thus, in view of the fact tha t the committee was focusing 

on an impeachable offense rather than a criminal offense, the evidence 

which was marshaled during the impeachment proceedings may not 

include some evidence which reflects upon Mr. Nixon's involvement 

in some Federal offenses.

Second, there appears to be a substantial body of evidence that 

was not available to the committee during the course of the impeachment proceedings. As all of you are aware, this past summer the 

Supreme Court required Mr. Nixon to furnish certain tapes to the 

Special Prosecutor which were never made available to the Judiciary 

Committee. In addition, the impeachment investigation included only 

limited testimony by witnesses while Mr. Jaworski appears to have 

extensive testimonial evidence which was never made available to 

Congress.

Since I believe tha t the American people are entitled to consider 

all of the evidence in this matter, I think it is apparent tha t they 

should not rely solely on the impeachment evidence and report, even 

though it was a complete and thorough compilation of the evidence 

with regard to the commission of an impeachable offense by Ric hard 

Nixon.

Some may also question the propriety of making public testimony 

and evidence presented to a grand jury. While I am no t a lawyer, it 

is my understanding th at the Federal Rules of Criminal Procedure 

manifests a long-established policy of secrecy for grand jury proceedings.

Such a policy is not completely sacrosanct, however. The Supreme 

Court has long held that “disclosure is wholly proper where the ends 

of justice require it.” [United States v. Socony-Vacuum Oil Com pany,

310 U.S. 150, 234 (1940).] I submit that there could not be more
4

compelling circumstances “where the ends of justice require’’ disclosure than in the present case.

I readily admit that the question of protecting the rights of those 

yet to be tried is of gre at concern to me. However, my resolution provides t hat the Special Prosecutor will have 90 days from the date of 

enactment to publish his report. This period should be more than 

ample time to impanel and sequester the jury in the impending conspiracy tria l. Any fu ture prosecutions would not have the same potential for prejudicing defendants’ rights as the conspiracy trial. The 

report would only focus on Mr. Nixon, and any future prosecutions 

would not likely include a conspiracy involving the former President 

in which his acts could be attributed to any coconspirators.

In any event, I would have to say tha t the American people’s rig ht 

to have the evidence necessary to judge Mr. Nixon’s involvement in 

any Federal offense is of such overriding importance tha t it should *

take precedence, and the Jud iciary Committee’s decision to televise 

its impeachment proceedings and the Senate Watergate Committee’s 

decision to televise its hearings clearly support my judgment on this 

matter. •

It seems clear to me th at enactment of this resolution is necessary 

to obtain the goals it is designed to meet. At the present time, there is 

some doubt as to whether Mr. Jaworski has the authority to issue 

such a report. In a letter dated September 10, 1974, to Mr. Jaworski, 

eight members of the Senate Judic iary Committee expressed the opinion tha t his final report to Congress should include “a full and complete record detailing any involvement of the former President in 

matters under investigation by you.” In his response of September 17,

Mr. Jaworski stated that it was his “tentative belief tha t the existing authority for the issuance of reports, to which your letter alludes, 

most likely does not justify the inclusion of a detailed report on the 

matters you suggest.”

My resolution would clarify any ambiquities and insure that Mr.

Jaworski has the authority to issue a report on former President 

Nixon’s involvement in Watergate.

Fo r over 2 years the Nation has been confronted by the series of 

events we refer to as “Watergate”. It has had a deep impact on our 

national conscience. It is now time to make all of the evidence available to the American people so that they can make their own judgment.

I am certain tha t members of th is committee agree that the American people are capable of good judgment i f given all of the evidence.

They have demonstrated their fortitude and strength of character 

throughout the past 2 years, and I am confident that they will rein- •

force those qualities in their examination of the evidence in this case.

In my opinion, this report will serve as a completion and closing of 

the record so tha t the Nation can go forward with its other business.

Thank you, Mr. Chairman. *

Air. ITunoate. Than k you.

Air. Kastenmeier.

Air. Kastenmeier. Thank you, Air. Chairman.

I would like to commend the gentleman from M aryland, Air. Gude, 

for his initiative. I certainly think he has raised in this legislative 

forum a very im portant question. He deserves commendation. How do 

you assess Judge Richey's comments in light of your legislative 

initiative ?
Mr. Gude. I would only say to the extent that there was a court ru ling th at would provide for the release of additional evidence, tha t this 

could further supplement Mr. Jaworski’s report. However, I would 

think with the evidence that he evidently has at hand and which he has 

indicated he has at hand the report would be adequate for the American 

people.

Mr. Kastenmeier. To clarify your statement, I gath er th at you feel 

tha t the evidence that Mr. Jaworski has, which has not heretofore lieen 

made public by this committee or by other sources, which bears on Mr. 

Nixon and his participation in the Watergate, to the extent th at i t does 

offend the rights of others, it ought to be made public. That is the 

thrust of it, is it not?

Mr. Gude. That is the thru st of the statement.

Mr. Kastenmeier. What about those tapes which may still be in the 

possession of the White House and are not in Mr. Jawo rski’s possession ? Is there any way to contemplate those, because clearly I thin k it 

is a well-known fact Mr. Nixon had resisted mightily the turnin g over 

of tapes either to Mr. Jaworski or this committee or, in fact, any other 

source. What about those tapes? Might they not reveal a great deal 

about the tru th of the matter and is there any way tha t you contemplate 

tha t they ultimately end up in the public domain so as to reveal some 

ultimate tr uth with respect to participation ?

Mr. Gude. As I stated, I think Mr. Jaworski, from what he has indicated, has ample evidence on both sides to give the American people a 

picture of the President’s involvement in any offenses against the 

United States. I should th ink that if any additional evidence were to be 

obtained from the Executive that this would have to be through court 

action. I am not sure what legislative vehicle we could use to obtain 

the type of material to which you allude.

Mr. Kastenmeier. Well, I appreciate t hat because I am a little perplexed, too. I think the point is to what extent are we able to learn the t ruth and 

to what extent do we go? Do we merely look at the material in terms of 

assessing it as fa r as the public is concerned that may be in Mr. Jawo rski’s possession or—in fact, of course, there was a great deal of material 

never turned over to this committee, presumably for good and sufficient reasons, in Mr. Nixon’s defense, which may bear on his role in 

Watergate and which Air. Jaworski does not have either, and are you 

not curious as to what that might ultimately reveal ?

Mr. Gude. I would only say that in any legal determination of guilt 

or innocence, there is always the question whether all of the evidence 

was brought forward, and I think tha t there is adequate evidence at 

hand for Air. Jaworski to make a report to the American people th at 

would give them satisfaction of having seen both sides of the case. 

If additional evidence could be forthcoming throu gh the court proceedings, then this could further supplement the report.

Air. K astenmeier. You do not foresee any action by the Congress in 

terms of additional supplemental inquiry by the Congress itself in 

these matters, do you ?

Air. Gude. The Congress could reinstitute impeachment proceedings 

but the leadership has indicated that they do not think this is appropriate and, of course, as I said in my statement, this does not get to 

other offenses which are considered by many as not being impeachable 

offenses.
6

Mr. Kastenmeier. I thank the gentleman for his answers and for 

his initiative.

Thank yon, Mr. Chairman.

Mr. Hungate. Mr. Smith ?

Mr. Smith. Air. Gude, I, too, commend yon for initiating this proposed legislation and those for whom you have also spoken.

I was interested in your statement in the question as to—in the statement that there is a t the present time some doubt as to whether Mr. 

Jaworski has already the authority to issue a report. Among the regulations and order setting up the authority for Mr. Jaworski is one that 

says, and I quo te:

Pub lic Reports. The Special Prosecutor may from time to time make public 

such statements or repo rts as he deems app rop riate and shall upon completion of 

his assignment submit a final report to the app ropriate persons or entities of the 

Congress.

Now, Mr. Jaworski apparently in his response of September 17 to 

members of the Senate Judiciary Committee stated that it was his 

tentative belief that the existing authority for the issuance of reports 

most likely does not justify the inclusion of a detailed report on the 

matters suggested by the members of the Judiciary Committee. Would 

you say, Mr. Gude, tha t under the present powers and authorities of 

the public—of the Special Prosecutor that he now might have the 

authority that your proposed legislation would give him?

Mr. Gude. ITe may well have the a uthority to make just the type of 

report that we are asking for in this resolution, but he is not directed 

to make the report and, therefore, I believe we should specifically direct him to make this report.

In addition, I think it should be the clear direction from Congress 

tha t this report contain all evidence on both sides of the case and, 

therefore, tha t is whv I think this resolution is important. Even 

though lie may have this authority already. I think there should be a 

clear direction by Congress tha t a report be given to the American 

people giving the evidence on both sides of the case.

Mr. Smith. Another thing, Mr. Gude, that interested me is tha t you 

call for—your proposal calls for this repo rt to be. printed and made 

available to the public no later than 90 days afte r the adoption of 

the resolution, and T believe the President has stated tha t the indications are tha t the investigative process and the bring ing of former 

President Nixon to trial, were he not pardoned, might take as long 

as a year and T am wondering whether you feel then that the 90 days 

would be sufficient to give the Special Prosecutor time to present all 

the evidence that might be forthcoming in a complete investigation.

Mr. Gude. It is my belief tha t the preparation and execution of legal 

proceedings would take a longer period of time th an the preparation 

and publication of a report.

Mr. Smith. One other question tha t interested me and that is. if the 

Special Prosecutor were to issue—publish a full and complete report 

stating in detail all the evidence in his possession, and so forth, the 

likelihood is tha t a prosecutor would have in his possession mostly 

evidence tending perhaps toward the establishment of guilt of the 

person that he was investigating or would like to indict or anything 

else, whereas exculpatory evidence to a great extent might not be 

available to the Special Prosecutor.
z

Mr. Gude. That is true to an extent. Although I'm not an attorney, 

I understand tha t a good prosecutor is well aware or makes himself 

aware of the evidence tha t points to the innocence of a defendant as 

well as the guilt. In addition, the intent of this resolution is tha t we 

have explicit instructions from Congress tha t the prosecutor give 

evidence on both sides of the case. Also, I point out th at Air. Jaw orski 

was selected by the former President and he is known to be a decent 

and honorable man. I thin k these are the guarantees of a fair report, 

these three items that I have.

Mr. Smith. I thank the gentleman.

Mr. H ungate. Mr. Edwards.

Mr. Edwards. Thank you, Mr. Chairman.

Mr. Gude, in the Agnew case the prosecutor apparently had the 

permission of Mr. Agnew and his attorneys to issue a very impo rtant 

statement without which a great injustice would have been done to 

the criminal justice system. I think we all agree with tha t. Io not 

have the very important statement by the prosecutor outlining in 

detail the alleged crimes going back a great number of years would 

have been an error, do you agree ?

Mr. Gude. That is right.

Mr. Edwards. In this case we had the beginnings of the impeachment, the pardon, but no permission by Mr. Nixon himself or no 

alleged confession. Is that also correct?

Air. Gude. T hat is right. I thin k that in this instance this repo rt 

would well be comparable to the report th at was released in regard to 

the former Vice President, there are similarities.

Mr. Edwards. Yes. There are certain similarities but it is different 

in that, the Special Prosecutor, Mr. Jaworski, would not have the permission of ex-President Nixon.

Now, it is also different from the Judiciary Committee’s report and 

inquiry in that in all the proceedings, President Nixon was represented 

by counsel and Mr. St. Clair was given the opportunity to call his own 

witnesses and agree to cross-examine other witnesses.

Here in the issuance of a report by Mr. Jaworski, ex-President 

Nixon would have none of those protections.

Mr. Gude. As I stated earlier, I think we clearly instruct the Special Prosecutor that he is to be as even handed in his report as he possibly can, and his selection by the former President himself I thin k is 

a factor. And also his performance as Special Prosecutor I think demonstrates that this would be as even handed a report as could possibly 

be achieved under the circumstances.

Mr. E dwards. Well, I agree with you it is very important that this 

information be made available to the public but I think it is equally 

important t hat the exculpatory information be provided by ex-President Nixon and his attorneys so that there is no misunderstanding that 

it was just a job being done. There are a number of people in our country that still think President Nixon should not have resigned and indeed President Nixon himself claims tha t he is innocent of any impeachable offense or criminal offense.

Air. Gude. I thin k that the committee should take into consideration how much time should be put into the preparation of this report, 

tha t the report is made to the American people within a reasonable 

period of time, so they can make their own determination. I do not
s

know that we would want to be in the position of starting proceedings 

where there would be delays after protracted delays in receiving certain evidence which the former President would feel should be in the 

report. 1 think tha t the committee probably should carefully explore 

what would be involved timewise if this type of proceeding were 

followed.

Air. Edwards. Thank you, Mr. Gude.

Mr. Hungate. Mr. Dennis.

Air. Dennis. Thank you, Air. Chairman.

Air. Gude, as I understand you, you agree tha t under the regulations issued by the Department of Justice and read to you by Air. 

Smith, the probability is that Air. Jaworski now has full power to make 

the type of report suggested in your resolution if he sees fit to do so. Is 

tha t correct?

Air. Gude. T hat is right. He may have the authority as stated in the 

resolution. A t the same time I quoted from his letter of September 10, 

his response of September 17 to the Senators questioning whether he 

did have that au thority, and so I believe that we should clearly direct 

to him to make such a report-----

Air. Dennis. The regulation-----

Air. Gude [continuing]. So that there is no question.

Air. Dennis. The regulation to which Air. Smith referred does say 

that the Special Prosecutor may “make public such statements or reports as he deems appropriate and shall, upon completion of his 

assignment, submit a final re port to the approriate persons or entities 

of the Congress.”

Air. Gude. T hat is what it states, but I thin k there should not only 

be the clear direction tha t such a report be published but tha t report 

refer specifically to the question of evidence regarding the former 

President's guilt or innocence and it also be as even handed as possible. I do not believe the latter specification is in tha t original 

direction.

Air. Dennis. Well, do you not thin k th at if he submits a final repo rt 

as he is instructed under this regulation to do that it surely would 

include his views as to the participa tion or nonparticipation of the 

late President ? I t seems to me it would be like writing him and leaving 

him out if the report did not touch on tha t subject.

Air. Gude. The directions that are given to the Special Prosecutor 

are permissive. I t says he shall make a final report. It says he, from 

time to time, may make interim reports but it does not specify a specific 

report as to the Federal offenses and also there is the matter tha t I 

thin k we should clearly direct, that exculpatory evidence as well as 

incriminating evidence be set forth. So this is the reason for my 

resolution.

Mr. Dennis. Now, you agree, as I understand it, that we are no 

longer faced with the practical possibility of any impeachment 

proceeding.

Air. Gude. That is it, and as I indicated, this resolution goes beyond 

the question of impeachable offenses.

Air. Dennis. And you would agree also, I am sure, tha t under the 

pardon we are not faced with the possibility of future criminal prosecution insofar as Air. Nixon is concerned for these past transactions.

Air. Gude. That is my understanding of the law.
Mr. Dennis. Therefore, the only th ing to be gained at this point is 

the facts. Is that a fair statement?

Mr. Gude. Tha t is right, th at may be the only thing but it is a most 

important thing.

Mr. Dennis. So the differences, if any, in the standard o f proof or 

standard of definition between a criminal offense and an impeachable 

offense, and so on, are really not important at this point so long as we 

get the facts, whatever they may be. Is that not true?

Mr. Gude. Th at is right.

Mr. Dennis. And you do have the complete report, of course, of the 

full Judiciary Committee and you will have the results of the upcoming criminal trials, and you will have the repo rt which Mr. Jaworski 

is alreadv instructed to make. And you will have all of these things 

whether or not we adopt your resolution. Is that not true?

Mr. Gude. We will have tho=e things; we have the report from vour 

committee which, of course, directly relates to the President and impeachable offenses. But in regard to the trials that are going to be held, 

they aiv of a peripheral nature as far as the President is concerned 

and indeed, to be even handed in the matter, events could proceed in 

these trials so that the former President, would be pu t in a shadow of 

guilt in regard to certain matters and tha t guilt m ight not be appropriately attributed if all the facts were known through the publication 

of th is report. So, therefore. I feel a report that directly relates to the 

Federal offenses of the former President is a move in the direction of 

fairness to the former President on both sides.

Mr. IFunoate. Your time has expired.

The gentleman from South Carolina, Mr. Mann.

Mr. Mann. Thank you. Mr. Chairman.

Mr. Gude, you are, of course, aware of the fact tha t the Special 

Prosecutor has explored many areas of Presidential involvement concerning some of which his staff and he may have already concluded 

that there was not evidence sufficient to support a proposed indictment, matters tha t might involve ITT, dairy, foreign gifts, any number of things.

Is it your intention bv this resolution to direct the Special Prosecutor to release the evidence on these, or at least a synopsis of the 

evidence in all of the matters investigated involving the Presidential 

involvement ?

Mr. Gude. Yes. T thin k this idea is a continuation of Mr. Dennis’ 

question, tha t in fairness, where there would, be a question as to the 

President’s involvement and these were rumors and allegations about 

what had occurred, tha t a repo rt of the Special Prosecutor could lay 

out a synopsis of these affairs and repo rt in a particu lar instance th at 

the evidence is such that it would lead a reasonable man to believe that 

he was innocent. I think this is a clearing of the air that is so very 

important insofar as we are able to do it through this device.

Mr. Mann. As we know, there is still a large segment of the American people who think that what the impeachment was all about was 

solely matters related to the Watergate break-in. O f course, this would 

disclose much information that they are really not aware of, or the 

gravity of it.

Now. you put a 90-day limit. You would have no objection to our 

modifying that language so as to provide for the appropriate protection based on the opinion of th is committee, or the Attorney General
10

or some such source, for the protection of the other persons involved, 

insofar ns pending cases were concerned ?

Mr. Gude. I would certainly respect the judgment of a group of fine 

attorneys.

Mr. Manx. I believe that is all.

Than k you, Mr. Chairman.

Mr. II ungate. Thank you.

The gentleman from Iowa, Mr. Mayne.

Mr. Mayne. Thank you, Mr. Chairman.

Mr. Gude, I just wanted to return to the point raised by Mr. Ed ­

wards. that the testimony in th e Special Prosecutor’s file has not been 

subject to any cross-examination. O f course, cross-examination is generally considered to be the greatest fact-finding and truth-finding 

weapon which our Anglo-American system of justice has developed.

Were you aware of this absence of the protection of cross-examination when you prepared this resolution ?

Mr. Gude. Well, Mr. Mayne, I am aware that by this resolution we 

are trying in the best means available to us to obtain for the American 

people what they deserve. T am aware also tha t if the prosecution had 

proceeded without the pardon intervening, tha t a fuller picture might 

be attained. But I see no way to retrieve tha t and I think this is the 

very liest way to get a resolution which would satisfy the American 

people and insure tha t the evidence has been presented, insofar as 

possible, in the American way.

As I said. I think the Special Prosecutor is a good man to do this, 

judging on his past performance.

Mr. Mayne. We have many excellent prosecutors in the United 

States but I am sure you would agree with me that, it is not their p rimary function to seek out exculpatory material or to prepare an evenhanded presentation of defensive as well as the prosecutorial inform ation, would you not?

Mr. Gude. Th at is, of course, not their prime mission but as I understand the work of a prosecutor, he certainly has to become aware of 

exculpatory evidence if he is going to prepare himself for a case. He has to be aware of the arguments on the other side. In the course of 

collecting evidence, a prosecutor may be afte r evidence that ascertains 

guilt but he is certainly going to find evidence as he proceeds that goes 

to the innocence of the accused. I am sure as the Special Prosecutor 

gathered evidence he did not throw the exclupatory evidence in the 

wastebasket. It also became part of the file.

Mr. Mayne. Well, I do not w ant to prolong the ma tter but I do want 

the record to make clear that we are in agreement that this Special 

Prosecutor's report, if used in the way you suggest, would be lacking 

the. assurance of accuracy which is given by cross-examination.

Mr. Gude. I would only add that under the circumstances, because 

the pardon intervened before the legal process was allowed to take its 

full course, tha t this is the best device by which we can give the 

American people what they are entitled to.

Mr. Mayne. I)o you agree with my question ?

Mr. Gude. There is tha t possibility but there are also things tha t 

lean in favor of Mr. Nixon in this resolution.

Mr. Mayne. Thank you, Mr. Chairman.

Mr. Hungate. Ms. Holtzman.

Ms. Holtzman. Thank you, Mr. Chairman.
11

I gather, Mr. Gude, that your resolution reflects a disturbance that 

you have about the manner in which the pardon was issued and its 

failure to take into account the need for disclosure of information 

regarding criminal or other misconduct by Richard Nixon, aside 

from any other problems tha t may be found with the pardon. T share 

tha t concern as well, and 1 think the questioning here has reflected 

a desire to explore the most appropriate ways to seeing tha t the fullest sort of disclosure take place within the bounds of due process.

To my mind, one method of assuring disclosure might be that suggested by Judge Richey this morning: namely, to permit the Special 

Prosecutor or others to challenge the validity of the pardon. I am 

wondering if your resolution could be interpreted or designed to preclude the Special Prosecutor from signing any indictment returned 

by a grand jury against Air. Richard Nixon or could be designed 

a in any respect to limit the prosecutorial judgment in any prosecution against Richard Nixon.

Mr. Gude. I do not believe that the resolution which I and others 

have sponsored would be a barrier to court proceedings moving as 

v you have outlined, but as we have seen, there have been protracted

delays in the production of evidence and going back into the courts 

leads to further delay. I think that Mr. Jaworski has the evidence 

at hand and I think th at he can make a report that would be of satisfaction to the American people in this case. But this would not pre ­

clude the type of proceedings you have outlined.

Ms. H oltzman. Well-----

Mr. Gude. In fact, I do not thin k this in any way conflicts with 

that. Perhaps the committee can make this clear in a report.

Ms. Holtzman. Well, the 90-dav provision might, and I am troubled 

about tha t because it is my understanding that the Special Prosecutor may not have yet reached the bottom of these investigations 

that have been carried out in a number of different areas, and that 

requiring a report in tha t period of time, aside from the question of 

affecting ongoing trials, may really limit the scope of the disclosure 

tha t ought to be made regarding Richard Nixon’s misconduct in 

office.

Mr. Gude. In my judgment, and I of course, could not speak for 

the other sponsors, i f the committee in its wisdom fe lt th at additional 

time were needed, then certainly tha t 90 days could be extended.

Ms. Holtzman. I)o you have the same sense of flexibility about 

allowing the Special Prosecutor to make a report with regard to materials that, are not presently in his possession—tapes, for example—

• but tha t are in possession of the White House at this time?

Mr. Gude. Certainly any additional evidence that came to hand d uring the period in which he was compiling the report should be par t of 

the report, on both sides.

• Ms. Holtzman. Thank you, Air. Chairman. I have no fur the r 

questions.

Air. Hungate. The gentleman from Maryland, Air. Hogan.

Air. Hogan. Thank you, Air. Chairman.

I would like to welcome my good friend and colleague from the 

State of Alaryland here today but T really have to confess that I am 

not overly enthusiastic about his bill. I am troubled bv a number of 

things, the rights of the other defendants who are being prosecuted
12

by Mr. Jaworski being one of them. Since the existing statute under 

which the Special Prosecutor is working gives him the discretion to 

issue a report, interim reports, and mandates tha t he issue a final 

report, it seems to me that tha t really meets the needs of the public’s 

righ t to know. I would ask my friend why he feels th at it is necessary to issue this information sooner than Mr. Jaworski will in due 

couise issue it.

Mr. Gude. I think Mr. Jaworski should be instructed to issue a specific report in regard to any Federal offenses th at might have been 

committed by the former President and we should direct him to be as 

even handed as possible under the circumstances in the issuance of this 

report. Also, our resolution specifically directs th at this report will be 

to the public.

Mr. Hogan. Well, I am sure tha t the report which he ultimately is 

required to make would also be made public, but 1 am wondering when 

we consider the rights of litigants involved in other prosecutions by 4

the Special Prosecutor whether or not the public’s right to know, which 

in this case really does not have any possibility of affecting the events 

tha t have occurred—the President has pardoned the former President. „

The former President, because of the impeachment proceeding, resigned from office. So it seems to me that th at problem really is moot 

at this point and this report would not in any way change those events.

I am also troubled by some of the things that Mr. Mayne and others 

have said. While 1 have great respect for Mr. Jaworski as an individual and as a prosecutor, it is not his prime function to gather exculpatory information and I agree with Mr. Edwards that it is very importan t that, the kind of report that you are contemplating include 

exculpatory information. It seems to me tha t only the President's 

defense lawyers would have this information.

So 1 wonder if you feel tha t there ought to be some amendment to 

your resolution if it is going to be passed to allow President’s counsel 

to file some kind of a dissenting view.

Mr. Gude. Over the period of time tha t the Watergate affair has 

gone on, there have been protracted and prolonged delays in obtaining 

evidence from the Executive and I wonder by such a mechanism if you 

are not again triggering further and further delays and drawing out 

the whole affair.

This is the question I raise and as I stated before, a Special Prosecutor does undoubtedly gather much information on both sides of the 

case in the course of his work.

As far as the rights of the other defendants are concerned, as I indicated, the 90 days I really think is more than ample time to impanel »

and sequester the jury in the pending conspiracy trial. To the extent 

that some of the defendants would avoid trial through information 

that would come forth in this 90-day report, I think the American people’s right to have this function of justice carried out as they see it *

is of overriding importance. I know th at following the resignation of 

the former President, there was a great deal of satisfaction amonsr 

the American people and I think tha t satisfaction in part went to the 

fact tha t they were satisfied that there would be a prosecution.

At the same time the American people were not demanding that 

tho former President be put behind bars. I think they all felt that 

clemency was appropriate. But this question of justice was short circuited. I think the question of justice is very basic to the feeling of the
13

Am eri can peo ple a nd to the ex tent t hat may be some de fend an ts might 

pos sibly esca pe th ro ug h the wo rking s of th is resolu tion, I th in k th is 

constitutiona l question as fa r as the Am erica n peo ple are con cerned 

is ov errid ing .

Mr. H ogan. But my fee lin g is it is not go ing to change an y ot the 

facts as they exist or an y of the eve nts as they have evolved , an d I 

rea lly have to co nfes s th at I do no t sh are th e fee lin g t hat t he Ame ric an 

peo ple are going to be persu aded by the issu ance of any repo rt. Al l 

thro ug ho ut ou r gr ea t St ate of M aryl an d I ra n into a tre me ndous 

numb er of people who in sp ite o f the nume rou s volu mes p ub lished by 

th is c ommittee feel th at the form er Pr es id en t was h ounded ou t of of ­

fice by th e lib era ls in the news me dia an d the facts as they h ave been 

sp read on the publi c rec ord have no t in any way influenced th ei r 

j udgin ent on th at .

Mr. Gude. I do no t t hi nk i n a dem ocracy we ever o bta in a consensus 

an d I wo uld be very suspicious of a tim e when we seem to have un animity on any question in th is co un try , unless it be on such a questio n as a res olu tio n on motherho od. I do not see th is as pr od uc ing a 

unanim ous fee lin g of satis faction fro m the Am eri can people. Am ericans can judg e th e evidence as t he y see fit b ut th is does give t he m the 

same op po rtun ity as they have in re ga rd to ot he r leg al pro ced ures in 

th is c ountry.

Mr. H ungate. Yo ur tim e has exp ired.

I th in k th e mem bers of th e sub com mittee have covered the gr ou nd 

with yo ur assistanc e very well, Mr. Gude, an d we ap prec iate yo ur 

offering the res olu tion an d the tes tim ony you have giv en us toda y 

de aling with a ra th er th or ny pro blem. Fr eq ue ntly th e first witne ss is 

ask ed all the good questions, so we are very ap prec iativ e of yo ur ef ­

fo rts here tod ay.

Mr. Gude. I a pp reciate yo ur co urtesy and th an k you, Mr. Ch airm an .

Mr. H ungate. Th an k you.

Th e next witnes s to be cal led is Co ngres sm an McK inn ey. We are 

please d to have you with us an d if you have a pr ep ar ed sta temen t 

you may p roceed as you see fit, sir.

TESTIMONY OF HON. STEWART B. McKINNEY, A REPRESENTATIVE

IN CONGRESS FROM THE FOURTH CONGRESSIONAL DISTRICT OF

THE STATE OF CONNECTICUT

Mr. McK in ne y. Mr. Ch airm an , I ap pr ec iate th e op po rtun ity to 

te stify befor e yo ur com mittee on my bil l, II .R . 16619, a nd com pan ion 

measures intro du ced by my colleagues.

Thi s op po rtun ity t o testify before you means a ll th e more to m e because I feel str on gl y th at in the pa st m onths the co ncern exp res sed by 

ma ny Am eri can s about the in te gr ity an d du ra bi lity of ou r go ve rnme nta l an d judicia l insti tutio ns was answere d b y t he vi sibly thorou gh , 

delibera te, relent less a nd, fo r t he most paid, no np ar tis an p ur su it of th e 

tr uth by th e mem bers of th is pa rtic ul ar com mittee th ro ug ho ut the 

impeach me nt pro cee dings. Yo ur deli berat ion s, seen as t hey wer e by all 

Am eri ca, were a source of renewed confidence f or the Am erican people.

However , th is confidence in ou r in stitu tio ns an d in the con cept of 

equal jus tic e h as once ag ain been b ro ug ht into q uestion b y the co ntro ­

versial pa rd on of fo rm er Pr es id en t Nix on. I believe th e interests of 

44 -2 74 — 75-----2
14

justice and mercy would have been better served if the question of a 

pardon had been held until a more complete account of the facts, 

attitudes, and events which produced Wate rgate had been made 

public. However, this decision was the President’s and his alone, and 

it is now fact.

It is my concern th at the pardon may premat urely close the book 

on Watergate, thereby denying the American people their righ t to 

view and evaluate the firsthand data now in the possession of the 

Special Prosecutor and in the Nixon tapes. II.R. 16619 would instruct 

the Office of the Watergate Special Prosecutor to turn over to the 

Congress fo r inspection and eventual publication all materials, documents. and reports obtained, prepared, and compiled by tha t Office in 

the course of its investigation of the admin istration of the former 

President. I have introduced this legislation in order to guarantee 

that the American people will be apprised of the facts as discovered 

by the Special Prosecutor regarding affairs in the White House from 

1969 through August 8.1974.

I consider the American people to be mature, wise, and fully deserving of complete and accurate information. When reliable data exists, 

as a result of intensive Government investigation, we cannot ask the 

American people to accept secondhand reports or historical interpretations of the events of this incredible period in our history. It is our 

responsibilitv and even more importantly, our duty to provide every 

possible opportunity fo r each citizen to confront the unscreened facts 

not just to prevent the reoccurrence of these tragedies but also to enable 

each citizen to draw his own conclusion about the guilt or innocence of 

every participant.

Of course. T am aware that the rights of individuals who have been 

named or cited in the data sought to be made public must be protected. 

There are a number of legal actions which are now or will be before 

the courts, and we must be vigilant in assuring th at the release of the 

data will not compromise the constitutional rights of the parties. Thus, 

I have included a provision in my bill which would provide for the 

release of this data to Congress onlv upon such time as the Attorney 

General of the United States shall determine that the parties who are 

named or any parties in related litiga tion have the full protection of 

the law. The factors which T hope would be taken into consideration 

in making this determination include the status of any criminal or 

civil litigation , its progress through the appellate process, and a final 

determination by the highest court in which a litigant can proceed. 

These safeguards will refute claims that the release of this report will 

prejudice the rights of those who are currently on tri al for the offenses 

discovered by the Special Prosecutor.

The Office of the Special Prosecutor was established to investigate 

and prosecute offenses committed against the ITnited States bv those 

including, but not limited to, the White House staff, from 1969 to 1974. 

The Office was formally established bv the President: however, it was 

authorized and funded bv the Congress. And any information discovered by such an investigation should be disclosed to the Congress. 

We are the watchdogs of this democracy. I t ;

s our responsibility to be aware of the activities of other branches of Government and insure 

that these activities are in the best interest o f the Nation. This was the desire of the framers of the Constitution when they included the svs-
15

tern of checks and balances as a guiding principle for our Government. Thus, the information gathered must be revealed in order to 

allow us to properly accomplish this function.

I am not a lawyer but I am advised that Congress has the power 

to request this information from the Special Prosecutor under its investigatory powers which include the a uthority to make inquires concerning surveys into defects in our social and political system fo r the 

purpose of enabling Congress to remedy them. I n 1959, Justice Harlan 

stated, “The power of inquiry has been employed by Congress throughout our history over the whole range of national interests concerning 

which Congress might legislate or decide upon due to investigation, 

not to legislate. The scope of the power, in short, is as penetrating and 

as fa r reaching as the potential power to enact and appropriate under 

the Constitution.” Watk ins v. U.S. (354 U.S. 178 (1957)).

In another case involving Congress’ power to investigate into a 

situation such as exists today, the Supreme Court stated that the power 

of Congress to inquire into the administration of an executive departm ent and sift the charges of malfeasance in tha t administration 

was ratified in sweeping terms. McGrain v. Daugherty, (V&l U.S. 

135,1771 178 (1927)).

Experts on the subject of congressional power f urther state that:

The adm inistrative function, th at is, the functio n of direction, supervision, and 

control of the administrative activities of the Government resides in the Legislative Branch of the Government. Upon it falls the legal obligation to take 

such action as is necessary to insure th at the several administrative organs 

shall he properly directed, supervised and controlled. (W. F. Willoughby, 

Director, Brookings Insti tutio n).

In Kendall v. U.S. (12 Peters 524, 1838), the Supreme Court affirmed a lower court case which gave Congress the power to impose 

•certain duties upon the executive branch. The Court sta ted :

But it would be an ala rming doctrine th at Congress cann ot impose upon any 

execu tive officer any duty that they may thin k proper that is not repugn ant to 

the Constitution, and in such case th at duty and respo nsibility grow out of 

and are subject to the control of the law and not the President.

Titus, Mr. Chairman, I submit that the actions which this bill require are not beyond the powers of Congress. The legislative power 

of Congress encompasses the ability to seek information for the purpose of making the laws and for determining if the laws have been 

properly exercised. This bill will allow us to perform this important 

function.

Mr. Chairman, I would like to suggest two amendments to my bill 

which would eliminate any misunderstanding of its mechanical requirements. First, I think it should be made quite clear that the Congress does not expect the Special Prosecutor to turn over any grand 

jury minutes. This, I believe, would be a gross invasion of the constitutional rights of the individuals who testified before the grand 

jury. The secrecy of the grand jury testimony must be maintained if 

we are to feel secure in our rights under our judicial system. But I 

would add this would certainly not prohibit the Special Prosecutor 

from releasing material that he has handed to the grand jury. It 

would simply protect the testimony of those others.

Second, it is not necessary for the Special Prosecutor to release to 

Congress the original documents which he might have acquired 

throu gh his investigation. Copies of such documents or tapes certified
10

by him can be submitted in th eir place. This will prevent any litigation in the courts on the question of whether the Congress can maintain control of private property, such as private papers and tapes.

Finally, Mr. Chairman, I would like to stress the necessity for a 

bill which provides for congressional action. I firmly agree with 

former Chief Justice Warren, who stated in Watkins v. V.S. (1957) tha t “There is no congressional power to expose for exposure’s sake.” 

Given the circumstances which exist today, I believe that exposure 

which I have proposed is necessary not solely because Congress will 

be exercising its oversight function by being informed of what is 

happening in our Government, but more importantly, to inform the 

American people of these acts in order to help identify and deal with 

them in the future, and I might add, make sure that they do not happen again.

Thank you, Mr. Chairman.

Mr. Hungate. Thank you, Mr. McKinney, for y our usual good job.

Mr. Kastenmeier.

Air. Kastenmeier. Thank you, Air. Chairman.

Your resolution differs somewhat from the resolution just offered 

by the gentleman from Maryland, Air. Gude. I t does not, for example,, 

mention or name the former President, Air. Nixon. I am wondering 

what the purpose is.

Now, once—if this were enacted, this bill, these papers, documents, 

turned over to the Congress, what precisely would the Congress do 

with them? Would they conduct—as you see it—would they conduct 

a public investigation based on these documents to a certain end or 

precisely what would they do with the documents? AVhat would they 

do with the documents once we received them ?

Air. McKinney. Well, as I said, I do not think that Congress can 

responsibly investigate just to investigate. I thin k we are doing two 

things here. One, I thin k tha t we are putting information in front of 

(he American people. And the reason the President’s name is not mentioned, by the way, is tha t we are dealing with something far bigger 

than former President Richard Nixon. We are dealing w ith circumstances and events within the executive branch of Government that 

took place totally outside our laws, our Constitution, and I thin k what 

the American people expect. I th ink th at by puttin g all this information forth , Congress and the people will have a fuller idea of how 

power was abused and what we can do to stop the abuse of power. Certainly there are some good questions I thin k brought forth by the 

behavior of Alessrs. Haldeman and Ehrlicliman perhaps suggesting 

the necessity for the Senate to confirm anyone who will have such vast 

and wide ranging powers within the executive branch of the Government. All of these things, I think, can only be determined with all of 

the facts and how this, you will pardon the expression, “cancer” grew 

within the White House.

Air. Kastenmeier. Yes. Of course, we have the rather long extensive 

and I thin k fruitfu l investigation by the Select Senate Committee in 

the context of campaign reform, the outgrowth of the 1972 campaign 

which revealed a good share of this.

What precisely do you recommend tha t we pursue fur the r in terms 

of investigation ? I take it it is not merely, if I can go back to the words 

of your bill, tha t documents—“materials, documents and reports be
17

transmitted to the Speaker,” and so forth, “to be available for inspection by all Members of Congress.”

Now, tha t does not mention the public or the press. “Available for 

our inspection.” To what end ?

Mr. McKinney. Well, in my short career in Congress I found that 

it does not pay for me to instruct Congress about what to do with 

materials it has. But it would be my hope tha t Congress as a body, 

once the materials were available would publish them and make them 

available to anyone tha t wanted to pay the customary document fees 

to receive them.

Mr. Kastenmeier. Your bill does not specify any time certain that 

the Special Prosecution force transmit these materials. When did you 

have in mind that Mr. Jaworski might do this? At the time he thinks 

appropriate or what?

* Mr. McKinney. When he feels th at he is not going to endanger any 

court case and tha t the Attorney General agrees tha t this will not endanger the normal processes of law involving any individual. I thin k 

tha t if we were to endanger the normal process of law concerning any

« individual we would probably be making the same mistake it appears

to me, the executive branch of Government made in their determ ination of law.

Mr. Kastenmeier. Again, of course, you have called on the Office 

of W atergate Special Prosecutor force to do this. You have not called 

upon the White House to tu rn over copies of the tapes and other materials tha t Mr. Nixon has le ft there which may or may not also reveal 

facts on the same basic question presumably as may be involved here. 

Wh at do you thin k about th at?

Mr. McKinney. Well, I think we have the specific right as I tried 

to review, to do this now. T certainly would not be opposed, in fact, 

I would be delighted to propose a bill which would make all of those 

tapes public property, but as I said at the end of my statement, T think 

there are grave constitutional questions there and I would hate to 

let this particular p art of our job slip by because we get ourselves into 

another constitutional discussion as to the individual tapes.

My concern is simply that we instruct the Special Prosecutor to 

give us all of th e information. At present, he is only required to give 

us a repo rt as he sees fit.

Mr. Kastenmeier. I thank the gentleman.

Mr. Hungate. Mr. Smith.

Mr. Smith. Mr. McKinney, I commend you for beginning this 

legislation before the House, before this committee.

* I have two questions for you. On page 2, your statement says that 

H.R. 16619 would instruct the Office of W aterg ate Special Prosecutor 

to tu rn over to the Congress for inspection and eventual publication. I 

do not find in the bill itself anything about eventual publication.

* Mr. McKinney. You are quite right. As I said, in passing a piece 

of law, I would be loath to instruct the Congress when it is going 

to have general access or as to what to do. I am basically s tating my 

desires as to what T would like to see done. T think, first of all, we are 

talking about a strictly investigatory process tha t ends at the Congress—the congressional level in the House and Senate. And then it 

becomes th eir obligation as to what they would like to do with the 

investigatory material they have.
18

Mr. Smith. Tha t might be so. On the other hand, because this is 

special legislation, not general legislation, it might be required that 

eventual publication might have to be specified.

The other question I wanted to ask you was th at you suggest that 

your bill be amended to make i t clear tha t Congress does not expect 

the Special Prosecutor to turn over any gran d jury minutes because 

this would bo a gross invasion on the "constitutional righ ts of individuals who testified. But if you s trip the Special Prosecutor of grand 

jury minutes in this report, you are going to have sort of a skeleton 

coming up to the Congress.

Mr. McKinney. I do not really think so. I think that we have to be 

very careful on this point. A great many people testify in front of 

our grand juries all over the country and I think to get anywhere 

near the jioint tha t the ir pa rticular testimony could be exposed by any 

branch of the Government would deal a devastating blow to our legal 

system and to the willingness of people to testify in front of a grand 

jury.

I do think tha t all of the information tha t the Special Prosecutor 

put before the grand jury was taken through his investigatory role 

and certainly could be put in the report.

Mr. Smith. But this material tha t the Special Prosecutor may have 

given to the grand jury depends on individual’s testimony, by deposition, by individuals, by whatever—affidavits, whatever means it 

might be. I t is not just something tha t the Special Prosecutor says.

Mr. McKinney. No. I thin k the Special Prosecutor is certainly 

equipped, or the Attorney General is equipped to decide which material was knowingly, individually produced in front of the grand 

jury and is protected, and which depositions are merely a free deposition or one given outside of the grand jury and therefore suitable for 

publication.

Mr. Smith. Your bill does leave that, escape hatch, leaving it to the 

determination of the Attorney General.

Mr. McKinney. Right.

Mr. Hungate. Mr. Edwards.

Mr. Edwards. T have no questions, NTr. Chairman.

Mr. Hungate. Mr. Dennis.

Mr. Dennis. Mr. McKinney, your bill, like Mr. Gude’s. would, o f 

course, require the production of all material that the Special Prosecutor might have on this subject, including matters which he had 

investigated and had determined as a result of his investigation not 

to pursue any further, is that correct ?

Mr. McKinney. Tha t is absolutely right, yes.

Mr. Dennis. Do you think that in the case of matters which the 

Special Prosecutor lias examined and perhaps submitted to a grand 

jury and on which he and the grand jury have determined tha t n othing further be done tha t it is fair to spread all of that material on 

the record ?

Mr. McKinney. I would think so, with a clear statement, from the 

Special Prosecutor tha t there was no indictment or fur the r action. 

It probably would almost have a cleansing effect quite frankly, in 

that aspect.

Mr. Dennis. Have what kind of an effect ?
19

Mr. McKinney. It might also have a cleansing effect if the Special 

Prosecutor stated tha t neither he nor the grand jury had seen any 

reason for prosecution because 1 think what we are dealing with here, 

Mr. Dennis, is a vast feeling of unease and suspicion on the part of 

the American people one way or the other. What I am trying to do 

is to put forth legislation that, will put as much information as possible out and let Congress make up its mind, let people make up their 

minds, and far more important than tha t, see what legislation we 

have to pass to make sure tha t there is no recurrence of these events.

Air. Dennis. I would like to call to your attention the fact—you 

may know of it, you may not know it—tha t under the Organized 

Crime Control Act which is title 18, section 3333, tha t I am referrin g 

to, the Code, it is provided tha t grand juries tile special reports of 

noncriminal activity when they do not retu rn an indictment, but 

which activity is of an organized crime nature, and so on. But it is 

very carefully provided in that section that these reports shall not 

be filed or shall not be made public until the persons named have had 

an o pportunity to testify, to produce witnesses before the gran d jury 

who shall testify, to tile an answer to the report, and in case of a 

prejudice to other possible criminal defendants who may be mentioned, tha t it should not be made public.

Now, all those safeguards are missing in your bill and I suggest th at 

the reason they are there is (a) fairness, and (b) constitutional requirements of due process of law.

Mr. McKinney. Well, I think I very clearly covered in my testimony 

at the end that the Attorney General and the Special Prosecutor should 

be very wary and I would like the bill amended to protect the grand 

jury hearings in any way t ha t this committee, which is composed of 

lawyers, sees fit. I am not a lawyer, Mr. Dennis, and I do not know 

what the appro priate move would be. But I have, I think, very clearly 

stated that I would like it to be amended to totally protect the rights 

of individuals in the grand jury. The fact is that the Special Prosecutor has done a grea t deal of work outside of the grand jury and a 

grea t deal of investigatory work. lie has purview over a great deal of 

material which I thin k should be made available to the American 

people through th eir representatives and their representatives’ desires.

Air. Dennis. Your bill, of course, says that the Attorney General 

should make a determination but tha t is a far cry from the elaborate 

precautions of an adversary nature which Congress has provided in 

the Organized Crime Control Act that I have just referred to.

Air. McKinney. Well, I am not so totally sure that we are in all 

necessities talking about a criminal proceeding. We may be talking 

about civil violations. Certainly that would not be as contentious. I 

would admit tha t the criminal aspect of it, is a contentious problem 

but I think this committee can protect the individuals who testify at 

grand juries from exposure and from meaningless incrimination, let 

us put it th at way.

Mr. Dennis. AIv time has expired and I thank you.

Air. ITungate. Mr. Mann, from South Carolina.

Air. AIann. Air. AlcKinney, I thin k we can agree that the sooner 

this information could be available to the American people, the more 

the settling effect would be.
20

I questioned Mr. Gude about liis 90-day release of this material. 

Perhaps it would be premature in some situations.

I have an equal concern about the timetable as established by your 

language. “ Following a determination by the A ttorney General of the 

United States tha t the rights of the parties named therein will not be 

compromised.” 1 can visualize where there will be some extremely long 

drawn-out litigation and th at is where it implies civil litigation.

I do not have a suggestion, but it would appear to me that a beginning timetable with perhaps a triggering mechanism in the hands of 

the House or Congress ought to be established with the Judiciary 

Committee determining possibly, when tha t deadline arrives, and if 

the Attorney General reports tha t it cannot be released a t this time 

because of thus and so and thus and so and thus and so, then the 

committee perhaps can make a determination that a portion of it can 

be released tha t would not jeopardize those rig hts or that those rights 

were not serious enough to delay further the issuance of tha t report.

Have you any reaction to th at though t 2

Mr. McKinney. Well, I specifically covered myself as generally as 

possible, again not being a lawyer. And I think, however, if you want 

a personal opinion, that this should be an ongoing process and th at this 

committee should be given the power, if this bill is passed, to instruct 

the Special Prosecutor to start turn ing over material as soon as he 

determines in any instance it is not going to violate individual rights. 

There is probably some material, for instance, right now that could 

come forth. Aft er that, he might be required, say, on a 90-day basis or 

every 6 months, to repo rt to a committee of this overall committee 

saying why he has not released any more or what he thinks he can 

release. And I thin k tha t probably would be a very good idea.

I know what you are getting at. I think it needs some force to push 

it along. I just simply did not want to put a wording into the bill that 

I thought perhaps would be unconstitutional or tha t would violate 

rights. One of the things tha t bothers me is th at the Special Prosecutor's role was not accusatory basically. I t was an investigatory process 

and everybody, when you bring the subject up, thinks you are trying 

to accuse the President of something.

Basically, what I am tryin g to say is let us get the information out 

so tha t if it is accusatory, so be it. Other than that, his role was investigatory and then it became—when there were obvious implications of 

crimes—a job of prosecuting.

Mr. Mann. As an old prosecutor I have to agree that you have the 

capacity to be objective.

Thank you.

Mr. Hungate. The gentleman from Iowa, Mr. Mayne.

Mr. Mayne. Thank vou. Mr. Chairman. I have no questions but I do 

want to commend Mr. McKinney on his fine statement.

Mr. McKinney. Tha nk vou, Mr. Mayne.

Mr. H ungate. Ms. Ho ltz man , please.

Ms. H oltzman. I do not have any questions, Mr. Chairman. I want 

to thank Mr. McKinney for coming.

Mr. McKinney. Than k you.

A fr. Hungate. The gentleman from Maryland, Mr. Hogan.

Mr. Hogan. Thank you. Mr. Chairman. T would like to welcome my 

good friend from Connecticut and I wonder if he thinks it would be
21

desirable if the Congress does publish this information, if it is given 

to us under the kind of legislation the gentleman has sponsored, to 

alford the ex-President an opportunity of rebuttal or to comment.

The thing th at troubles me is tha t obviously in any kind of investigation, there will be gathered inform ation tha t will remain forever 

uncorroborated and there will be many areas of investigation where 

there is insufficient evidence to support the prosecution.

Now, under your proposed legislation all of this material would 

be made available to Congress and presumably published and it would 

give, it seems to me, a distorted view where much of it would be 

accepted as fact. If I could digress just for a minute to illustrate the problem tha t I 

foresee, this Judiciary Committee, as you know, thoroughly investigated the background of the former Vice President, now President, 

Gerald R. Ford. One of the witnesses we had a t that time was an individual who made scurrilous charges against the Vice President, a man 

named Winter-Berger. lie came before this committee and was totally 

discredited. I do not think there was one person on this 38-member 

committee that gave even the slightest scintilla of credence to the testimony of Mr. Winter-Berger. li e maligned the character of the Vice 

President. He has now published a new book which is available in paperback 

form where he repeats all of these faults, scurrilous, defamatory 

charges against the President and I am concerned th at the same thing 

could happen with uncorroborated allegations and inform ation in the 

hands of the Prosecutor.

How would you foresee us avoiding this difficulty ?

Mr. McKinney. Well, I agree with you. I would again emphasize I 

am leaning on the investigatory aspects but I would have no objection to this committee amending my bill to add funding and the proper 

right for the President to reply to any investigatory charge which is 

unfair or is accusatory to the President. In fact, it might be generally 

worthwhile for the American people and this Congress.

What I am trying to get at here is I thin k quite frankly that we 

came awfully close to losing a lot of things in this country. I want to 

know how we got tha t close. I want to know why these things hap ­

pened. Why do you have a milk fund, an ITT, and all of the abuses 

that have been supposedly inferred. And I would think it might be a 

very good idea to let the President reply to these th ings if he thoug ht 

they were accusatory and give the historians and the Congress and 

give the people both sides of the picture th at may give us a firm dedication tha t we have got to change something rather quickly.

Mr. Hogan. I have no further questions, Mr. Chairman.

Mr. Hungate. Thank you. I have no questions, Mr. McKinney. I 

commend you for your bill and your appearance here today. We appreciate the contribution you made.

Mr. McKinney. Thank you very much, Mr. Chairman.

Mr. Hungate. The C hair will now call Ms. Abzug who has a privileged resolution. We would hope to reach our colleague, Air. Koch, this 

morning or the first thing this afternoon. I appreciate his courtesy. He 

is a cosponsor of the privileged resolution.

Ms. Abzug.
22

TESTIMO NY OF HON. BEL LA S. ABZUG, A RE PR ES EN TA TIVE IN

CONGRESS FROM TH E 20TH CONGRESSIONAL DISTRICT OF TH E

STA TE OF NE W YORK

Ms. Abzug. Good morning.

In behalf of myself and 13 cosponsors, including members of the 

Judiciary Committee, I welcome this opportunity to appear before you 

to testify for our resolution of inquiry with respect to the unconditional pardon of Richard M. Nixon.

Not since the storm of public reaction to the Satu rday night massacre and the Nixon tape disclosure of August 5 th at led to his forced 

resignation a few days later, has there been such a overwhelmingly 

negative response by the American people to a White House action.

President Ford says the pardon was motivated, at least in part, by 

his desire to heal the wounds of Watergate. He clings to this rationale 

despite the clear evidence th at this totally premature, confusing, and «►

unprecedented pardon is opposed by a m ajority of Americans and is 

viewed as a further coverup of Watergate.

The wounds have, in fact, been reopened, leaving to fester suspicions *

of White House deals, deception, abuse of Presidential power, and 

perhaps further blanket pardons of the Wate rgate culprits. Most 

wounding of all is what Mr. Ford’s action has done to our concept of 

equal justice for all and the belief tha t the President is accountable 

for his actions and not above the law. This is the very concept that was 

supposed to have l>een reaffirmed by this committee in its impeachment 

proceedings and vindicated in Mr. Nixon's forced resignation.

It would be a disservice to tha t concept to leave unchallenged the 

many contradictory and self-serving statements tha t have been issued 

by the principals, their subordinates, and others in this affair. Further,

I believe the legality of both the pardon itself and the arrangement 

under which the tapes are to be returned to Mr. Nixon should be 

challenged.

The Congress and the Committee on the Judiciary have a primary 

responsibility to act in behalf of the American people on all aspects of 

these issues. I am aware that a number of resolutions dealing with these 

matters are before the committee. I will address myself here primarily, 

however, to my resolution of inquiry, which is privileged and can be 

called up on the floor of this House within 7 legislative days afte r 

introduction, and I will also address myself to some observations on 

the legality of the pardon.

I believe approval of the resolution of inquiry is a necessary step in 

an investigation this committee should conduct to determine all the ♦

facts in the events leading up to the issuance of the pardon. The American people have a right to know these facts. They have a right to get 

answers to their questions in an appropriate forum from witnesses 

under oath, instead of in speculative news stories and columns, tele- *

vision interviews, and other publicized unsupported and contradictory 

comments by a host of people who have been involved in the pardon 

controversy in one way or another.

The response, of the President to the questions propounded in the 

Resolution of Inquiry which was sent to him by the chairman of this 

subcommittee reveals a nonserious and triflin g attitude that demeans 

the authority and dignity of this committee and this parliamentary
23

procedure. I t is totally inadequate fo r Mr. Ford to respond by sending 

a batch of White House press releases and an accompanying ietter.

I have in the past introduced a number of resolutions of inquiry 

which have been addressed either to the President or to members of 

his Cabinet. This is the first time in my experience that there has not 

been a point by point specific response to specific questions even though 

in some cases in the past I have felt the answers were not always satisfactory.

It should also be noted tha t this committee is still operating under 

House Resolution 803, adopted on February 6,1974, which authorized 

and directed the Judiciary Committee “to investigate fully and completely whether sufficient grounds exist for the House of Representatives to exercise its constitutional power to impeach Richard M. 

Nixon,” and other matters.

w The committee has not been discharged of this duty. The articles of

impeachment voted out by the full committee were never debated or 

voted upon by the full House, despite its vote to accept the committee 

report. Incidentally, I said at the time that the House should vote on

* approving the articles of impeachment, instead of evading this issue, 

and I believe that events since then have shown it was a mistake not to 

do so. I would also note in passing that the House can still vote on 

impeachment, and if there is no other way to enter on the record books 

the political crimes for which Richard Nixon was forced to resign, 

then I believe the House should proceed to a vote.

Under Resolution 803, this committee is fully empowered to determine whether there is any new evidence relevant to the conduct in 

office of the former President.

My Resolution of Inquiry requires the President to answer specific 

questions about the circumstances leading up to the pardon proclamation. There are, of course, many other questions that can and should 

be asked of the President and others involved in this affair, and I have 

submitted to the chairman a list of those who T believe should be called 

before this committee, including: President Gerald Ford; Attorney 

General William Saxbe; Special Prosecutor Leon Jaworski: Alexander Haig; Benton Becker; Philip Buchen; Herbert J. Miller; Ron 

Ziegler; Dr. Walter Tkach; Dr. John C. Lundgren; Julie Nixon E isenhower, and Richard M. Nixon.

But as a preliminary, it is vital tha t we get answers to the following 

questions from Gerald F or d:

1. Did you or your representatives have specific knowledge of any 

formal criminal charges pending against Richard M. Nixon prio r to

♦ issuance of the pardon ? I f so, what were these charges ?

2. Did Alexander Haig refer to or discuss a pardon for Richard M. 

Nixon with R ichard M. Nixon or representatives of Mr. Nixon at any 

time during the week of August 4, 1974, or at any subsequent time?

• If so, what promises were made or conditions set for a pardon, if any ? 

If so, were tapes or transcriptions of any kind made of these conversations or were any notes taken? If so, please provide such tapes, 

transcriptions, or notes.

3. When was a pardon for R ichard M. Nixon first referred to or discussed with Richard M. Nixon, or representatives of Mr. Nixon, by you 

or your representatives or aides, including the period when you were a 

Member of Congress or Vice President ?
24

4. Who participated in these and subsequent discussions or negotiations with Richard M. Nixon or his representatives rega rding a pa rdon, and at what specific times and locations?

5. Did you consult with A ttorney General William Saxbe or Special 

Prosecutor Leon Jaworski before making the decision to pardon 

Richard M. Nixon and, if so, what facts and legal authorities did they 

give to you ?

6. Did you consult with the Vice Presidential nominee. Nelson Rockefeller, before making the decision to pardon Richard M. Nixon, and 

if so, what facts and legal authorities did he give to you ?

7. Did you consult with any other attorneys or professors of law 

before making the decision to pardon Richard M. Nixon, and, if so, 

what facts or legal authorities did they give to you ?

8. Did you or your representatives ask Richard M. Nixon to make 

a confession or statement of criminal guilt, and, i f so, what language 

was suggested or requested by you, your representatives, Mr. Nixon, 

or his representatives? Was any statement of any kind requested from 

Air. Nixon in exchange for the pardon and, if so, please provide the 

suggested or requested language.

9. Was the statement issued by Richard M. Nixon immediately 

subsequent to announcement of the pardon made known to you or your 

representatives prior to its announcement, and was it approved by 

you or your representatives ?

10. Did you receive any report from a psychiatrist or other physician 

stating that Richard M. Nixon was in other than good health ? If so, 

please provide such reports.

We need direct answers to these direct questions, answers tha t the 

committee can corroborate in the course of an inquiry and hearings. 

There are suspicions th at Richard Nixon may have made a deal on 

the pardon with Gerald Ford before nominating him to the Vice 

Presidency. If Richard Nixon made Fo rd’s elevation to Vice President 

conditional upon the promise of a pardon or even if Mr. Nixon conditioned his own resignation on a promise of receiving a pardon, then 

conceivably Mr. Ford could be charged with accepting a bribe, which 

is an impeachable offense. Grim as this possibility may be. it is nonetheless the duty of this committee to investigate the facts and make a 

determination.

There are suspicions tha t General H aig, who reportedly was instru ­

mental in convincing Mr. Nixon to resign, may have held out to him 

the promise of a pardon. There are suspicions arising from the belief 

tha t in the negotiations for the pardon, the roles appear to have been 

switched, with Mr. Ford acting as supplicant and Mr. Nixon dictating 

the terms of the pardon, the so-called statement of contrition, and 

the agreement on the tapes. There are grave questions as to whether, 

in issuing a pardon before Mr. Nixon was indicted, tried or signed a 

statement of guilt, Mr. Ford abused his pardon powers. And, of course, 

there are a multitude of questions about whether Mr. Nixon’s physical 

or mental condition justified such an unprecedented pardon.

I make no judgment here as to whether these suspicions are justified. I t is a fact, however, that they are widespread and only a full 

investigation by the committee can either confirm some or any of 

them, or lay them to rest.
25

Fo r more than 2 years the American people suffered the consequences 

of having a President who lied and misled them at every opportunity 

throughout the course of the Watergate investigations- The stability of 

our Nation requires that the citizens be able to believe tha t th eir President is telling them the truth, at least most of the time. In the wake of 

the pardon, Gerald Ford has created an enormous credibility problem 

for himself and the Presidency. H e is in a particularly vulnerable position because he is the first nonelected President in the history of our 

Nation and because he was named to the Vice-Presidency by a discredited and impeachable President. The Committee on the Judicia ry 

which recommended confirmation and the Congress which confirmed 

his nomination also have a responsibility to the American people to 

investigate and repo rt to them on the conduct of President Ford in 

connection with the pardon and the agreement on the tapes.

President Ford’s own actions and many conflicting statements have 

added to his credibility problem. On August 28, 1974, in his first news 

conference as President, he advised the American public tha t he was 

not going to make any comment on a pardon “during the process of 

whatever charges were made.” He furt her stated th at it would be “ unwise and untimely” for him to pardon Nixon before any charges had 

been b rought against him. Yet, just 2 days later, on August 30, he 

asked Philip Buchen formally to study the Presidential power of 

pardon. Furtherm ore, according to a repo rt in the September 22 

Washington Post, as early as Friday , September 6, Ford h ad revealed 

to his staff his intention to pardon the ex-President. Thus, it presumably took the White House less than a week to make a study of and 

reach a decision on this highly controversial and explosive issue.

The question naturally arises as to whether the Pres iden t consulted fully on this question with Attorney General Saxbe and Special 

Prosecutor Jaworski to find out whether they considered legally valid 

a pardon, issued before indictment or trial, a pardon that the President himself described as unprecedented, and t ha t did not specify the 

offenses for which the pardon was issued. The question also arises as to 

whether the President asked Saxbe or Jaworski what effect the pardon 

would have on the pending Wate rgate trial and other possible investigations. indictments and trials, or did he already have in mind 

what he late r hinted at—a wholesale pardon for the entire Watergate 

gang. In his pardon proclamation, President For d made the pri or judgment tha t Richard Nixon would be unable to obtain a fai r trial, implicitly an attack on our judicial system, and also expressed his belief 

that “ugly passions would again be aroused” during the long period of 

delay before Mr. Nixon could be brough t to trial. As we know, Mr. 

Ford has accomplished the reverse of what he said he intended to do.

Fina lly President Ford inserted in his statement a sentence which 

said tha t “serious allegations and accusations. .. hang like a sword over 

our former President’s head and threaten his health as he tries to reshape his life . . .” It is this factor th at has become the subject of the 

widest speculation and conflicting reports. Hid President Ford receive 

any new evidence in the interval between August 28 and August 30 

indicating a change in Nixon’s health—physical or mental?

I regret, of course, that Mr. Nixon is ill and has had to be hospitalized. The gravity of his illness can no doubt be determined by 

court-appointed physicians, as may be requested by Special Prosecutor
26

Jaworski. Certainly, no one wishes Mr. Nixon ill health or physical 

punishment, and clearly he is suffering over his fall from enormous 

power. How could he feel anything but regret and anguish? But it is 

a mark of the man and his reputation for trickery and deceit t hat 

even now people are questioning whether he is seriously ill or whether 

he has taken refuge in a hospital to escape testifying at the Watergate 

defendants’ trial, or to develop sympathy as a rationale for the pardon.

Most of the facts respecting Nixon’s health were released following 

the pardon. They appeared to be a well-orchestrated after-the-fact 

attem pt to protect the vitality of the pardon by promoting the notion 

that Nixon was grievously ill. We are all familiar with the alarm ing 

statements issued by Dr. Tkach, Mr. Nixon’s personal physician. According to Dr. Tkach, the former President was a ravaged man who 

had lost his will to fight. However, after Dr. Tkach left San Clemente, 

Communications Director Kenneth Clausen spent 3 hours with the 

former President and said he seemed animated and in no visible pain.

Did Mr. Nixon’s condition suddenly worsen after the pardon? Or 

did Mr. F ord receive new information about Mr. Nixon’s health after 

his first news conference? The American people have a right to know 

all this. Certainly, their deep sense of compassion and fair play should 

not be played upon, if the facts do not warra nt it.

Finally, beyond the questions raised in my Resolution of Inquiry, 

I believe the Judiciary Committee should support efforts to obtain a 

legal test of the validity of the pardon. I have already called upon 

Attorney General Saxbe and Mr. Jaworski to make such a test possibly 

by proceeding with an indictment of Mr. Nixon, if the evidence so 

warrants, and I would like to state my reasons.

I disagree with those who claim the pardon was a constitutional 

exercise of Presidential power and cannot be overturned. President 

Ford himself asserted in his statement announcing the pardon that 

“there are no historic or legal precedents to which I can turn in this 

matter,” and there is already serious debate within the legal community as to the constitutionality of F ord ’s grantin g a pardon before 

formal charges were filed and without a formal admission of guilt 

from Mr. Nixon.

Defenders of the pardon are on weak ground in citing as authority 

for it an 1867 case—Ex parte Garland 71 U.S. 33—a 5-to-4 U.S. Supreme Court decision in which the written opinion explaining the 

ruling s aid:

That, a President’s discretion to pardon is unlimited and extends to every offense known to the law. and may he exercised at any time af te r . . . commis­ sion (of the crime) either before legal proceedings are taken, or during their pendency or a fte r conviction and judgment.

This language is dictum, was not crucial to the decision in the case, 

and does not constitute a precedent.

Moreover, the impact of the Garland case has been eroded for a number of reasons, principal among them being tha t Garland received 

a grant of amnesty ra ther than a pardon. As you will recall, Garland, 

who had been a Senator in the Confederate Government during the 

Civil War, was granted a blanket Presidential amnesty, which applied 

to all crimes th at may have been committed during the war.

The courts have come to draw a distinction, not drawn by the Garlfind court, between amnesty and pardon, and this is a significant distinction as it relates to individual admission of guilt.
27

The phrase “reprieves and pardons’’ as used in article II , section 2 

of the Constitution, has been interpreted as a phrase of a rt including 

within its purview, reprieves, commutations, pardons, both conditional and unconditional, and amnesties {Lupo v. Zerbst, 92 F. 2d 362 

(CA 5th 1937)).

The Supreme Court has recognized that “amnesty and pard on” 

are distinct and different. In an 8 to 0 ruling in Burdick v. United

States, 236 U.S. 79, 94-95, it stated tha t they “ are of different character and have different purposes. The one—amnesty—overlooks offense; the other—pardon—remits punishment. The first is usually addressed to crimes against the sovereignty of the State, to political 

offenses, forgiveness being deemed more expedient for the public 

welfare than prosecution and punishment. The second condones infraction of the peace of the State. Amnesty is usually general, addressed to classes or even communities, a legislative act . . . the act of 

the supreme magistrate,” said the Court.

When the Burdick case went to the Supreme Court, the Justices 

were asked to rule on whether the President had the authority to 

pardon Burdick before he had been indicted. The Court, however, did 

not rule on this issue. They ruled on another issue, whether Burdick 

could decline the pardon. Stating that a grant and acceptance of a 

pardon “carries an imputation of guilt; acceptance a confession of 

it,” the Court held that an individual does not have to accept a 

pardon.

The need for either a confession or judgment in a pardon case is 

evident from the language of the Constitution itself: the power to 

gra nt pardons only goes to “offenses.” Without either a confession 

or at the very least an indictment, there is no offense. Richard Nixon 

has made no confession or admission of guilt and there has been no 

indictment. Instead, in collaboration with President Ford, he has 

made a statement of “contrition” which is a religious rather than a 

legal concept.

The first case examining the power of the President to pardon was 

United States v. !F?7son, 32 U.S. 150 (1833). The question involved 

there was whether it was necessary for an individual to accept the 

pardon in order for it to become effective. The Court held that it was, 

and that a pardon was without effect if the person refused it. Under 

this decision, it was also held that a court cannot take judicial notice 

of a pardon unless it is pleaded in court.

It would appear from this ruling that the Watergate grand jury 

is free to proceed with an indictment of R ichard Nixon, as it had indicated earlier that it wished to do. The court does not have to take 

notice of President Fo rd’s pardon of Richard Nixon unless Mr. Nixon 

pleads it in court. If he should plead that he has been pardoned, he 

would have to state for which offenses he has been pardoned.

Now, there has, of course, been reference this morning in the press, 

to the statement of U.S. District Judge Charles R. Richey, who said 

yesterday tha t it might be desirable to have at least one trial court 

resolve the questions with respect to the validity of the agreement, 

referring to the tape agreement, and the validity of the pardon. The 

issue arose, as you know, before Judge Richey in two remaining unsettled civil cases growing out of the original Watergate break-in.
28

It seems to me that the capacity to test the legality of the pardon 

and the actions th at have been taken relating to the agreement on the 

tapes, and so on, is a very significant development, one that has been 

in my opinion, inherent in the situation from the outset. Apparently, 

there has now begun to grow a greater opinion among legal scholars 

and Members of Congress, as well as the bench, that this appears to be 

rath er significantly critical to dealing with this situation.

It would appear that Special Prosecutor Jaworski has stated tha t 

the Presidential pardon of Mr. Nixon preempts any Federal legal action against him for the period covered by the pardon. However, as I 

have indicated, not only is the legality of th e pardon open to serious 

doubt, but also the pardon itself neither precludes nor preempts grand 

jury action. Consequently, I would strongly urge tha t the grand jury 

proceed with an indictment, if the facts warrant it, and that Special 

Prosecutor Jaworski or Attorney General Saxbe sign it, so th at the 

American people may be assured tha t the syjftem of equal justice prevails and so t hat the groundwork may be laid for a court test of the 

constitutionality of President F ord’s action.

I thin k tha t the pardon itself should be challenged based upon the 

fact tha t it may have interfered with the charter which had been 

agreed to in setting up the office of the special prosecutor, which required tha t the President not exercise his constitutional powers to 

either affect or discharge the prosecutor or to limit his independence 

without the involvement and consent of various Members of Congress. 

This is also very much involved in this discussion here today and the 

matters before this Judiciary Committee.

If it is shown that the pardon was intended to prevent an indictment, or a trial, contrary to President Ford’s stated reasons for the 

pardon, and if it is shown that the agreement on the tapes was intended 

to prevent further information from becoming public, then these are 

very serious actions which m ight well be construed to be an abuse of 

power by President Ford and/o r an obstruction of justice.

In view of the President’s unresponsive reply, it seems to me tha t 

the subcommittee has no alternative but to act favorably in reporting 

this resolution of inquiry to the full committee with the recommendation tha t the full committee likewise report it out favorably to the 

floor of the House.

I would also hope tha t the full committee would support and initiate efforts to investigate the validity of the agreement concerning 

the tapes and take appropriate steps to preserve this valuable evidence 

in whatever way it deems possible.

The committee should also support the resolution which suggests 

tha t the House go on record favoring the grand jury going forward 

with the indictment and Mr. Jaworski signing it.

The committee should also consider lending its support to a legal 

challenge as to the validity of the pardon.

In any case, I wish to thank this committee for its kind consideration of this resolution of inquiry and for agreeing to have me come 

before it to testify this morning.

Mr. II ungate. We appreciate the appearance of the gentlelady from 

New York.

Mr. Edwards.

Mr. Edwards. Thank you, Mr. Chairman. I. too, appreciate the 

splendid testimony of the gentlewoman from New York. I saw for
29

the first time yesterday President Ford's letter to our chairman, Mr. 

Ilun gate, in response to his letter suggesting tha t he answer in detail 

the questions proposed in your resolution of inquiry and I, too, found 

his response not only cavalier hut very close to being disrespectful of 

the House of Representatives and this committee. Instead of answering 

the questions one by one, he really just packaged up a bunch of old 

press releases without numbers, without any comment whatsoever, 

and shot it back and then in his letter to Mr. Ilunga te just said let’s 

get the pardon behind us and bind up the wounds.

Now, this committee has heard this before in relation to the subject 

of our communications with President Nixon over the past year. In 

the event you have all the information you need let us bind up the 

wounds and get Watergate behind us. So I agree tha t a strong argument can be made for approval of your resolution just by the unsatisfactory answer by the President.

Now, Ms. Abzug, do you agree with that?

Ms. Abzug. Yes, I do. As a matter o f fact, th at is the reason I made 

the statement tha t I did in my testimony. Frankly , I was really quite 

surprised by it.

Mr. E dwards. It is not the way we would write to the White House 

or to anybody in the other body or to any department of the U.S. 

Government; indeed, not to a private citizen.

Ms. Abzug. No, I think not.

Mr. Edwards. Is that correct ?

Ms. Abzug. And I am really quite surprised, frankly, in view of 

the fact tha t this hearing has been undertaken by the subcommittee 

in the best interests of Congress, the country, and indeed the Presidency. One would expect tha t in order to deal with what has been 

a very serious criticism of this action, as I said before, it would require 

the utmost of cooperation in order to come to some conclusions which 

can soothe and heal the wounds tha t people justly, I think, feel in this 

country about this pardon.

Mr. Edwards. Well, in ordinary legislative business we have a 

choice as to whether or not to consider a bill. Here we have no choice. 

We have no choice but to consider the bill, really, assuming we still 

want to have some control over the legislative process of the Jud iciary 

Committee. In our letter to Mr. Ford we were not doing anything but 

what was polite and what we had to do under the rules of the Congress.

Well, you are not attacking the constitutional power that President 

For d has to pardon. You are suggesting perhaps tha t this constitutional power has been abused ?

Ms. Abzug. Yes. I am not sure tha t i t was a proper exercise of constitutional power. I question the legality of the exercise of tha t power.

Mr. E dwards. Well, again I thank you, and, Air. Chairman, I yield 

back the balance of my time.

Mr. Hungate. Mr. Smith.

Mr. Smith. Ms. Abzug, I want to commend you on your statement. 

I do not agree with you in every respect in the statement and tha t 

is probably natu ral but I think that you have done a great deal of 

background work and have presented some very interesting propositions of law for our consideration.

I would like to say in regard to the President’s reply in this connection, I have not seen Mr. Hungate’s letter to the President b ut I 

44 -2 74 — 75------ 3
30

understand tha t it contained some of the questions that the chairman thought were going to be included in House Resolution 1367 and 

then later I understand the chairman did send a copy of H.R. 1367, 

House Resolution 1367 to the President. And I have got to say that 

personally, I would have answered i t in a different way, but I think 

the record ought to show tha t the answer of the President in this 

case consisted of the Proclamation of Pardon dated September 8,1974, 

and the remarks tha t the President made in connection with tha t 

dated September 8, 1974, and the Presidential press conference Xo. 2 

dated September 16, 1974, the press conference of Mr. Philip Buchen 

dated September 8, 1974, the press conference of Philip Buchen dated 

September 10, 1974. I went through those in detail and I did find the 

answers to a g reat many of the questions asked in House Resolution 

1367, perhaps not in the form in which many of us would have preferred, but I think there has been an effort on the part of the President to answer the questions tha t our chairman has asked of the 

President. Whether that—whether the supplying of information by 

the President has been as full and complete as we would like is another question.

Ms. Abzug. May I comment on that, Mr. Smith ?

Mr. Smith. T wish you would.

Ms. Abzug. The right to request information from the President or 

a Cabinet member is in my opinion, one of the most important prerogatives of this House. This is one of the few methods tha t we 

have, of obtaining vital facts from the executive branch. I do not 

believe that press releases or press statements tha t are thrown out to 

tho public, are serious answers in response to serious questions propounded in the exercise of one of the highest prerogatives of this 

House by this privileged resolution of inquiry. If the questions th at 

are propounded in the resolution are taken seriously and if real evidence is presented by either a statement signed by the President indicating his answers, and subsequently, by the oral testimony of the 

President and others voluntarily, it would show a response tha t is 

essential to quiet the concerns tha t the public and the Congress have 

at this time and would show a respect for the procedure.

I must compliment the chairman, Mr. Hungate, and your committee for going into this matter, painful as I know it must be. It 

is p ainful for all of us, having been through what we have just been 

throu gh with the impeachment process, and so on, to have to question the actions of an executive. B ut we have to do so especially here 

because I think tha t a nonelected President must abide by the highest 

standards of responsibility possible. A President tha t is nonelected 

has to respond both to the Congress and to the public in the manner 

which is in the highest manner of performance. Therefore, I cannot 

believe that you would agree that the use of press releases—you said 

you did not think you would answer it tha t way—to answer questions 

tha t have been initiate d by a resolution in this House of Representatives conforms to this high standard.

Moreover i t cannot go unnoticed tha t the White House materials 

contain numerous contradictions. However, in any case, I do not 

choose to conduct a tria l of the facts in my testimony. I thin k it is 

the responsibility of the committee to determine what facts it thinks it 

can elicit and whether it favors this resolution in order to secure this
31

information. We must proceed with the resolution and after the 

resolution is passed then the President will have to decide whether 

or not he will specifically respond to each of the 10 questions contained in the resolution.

Mr. Smith. I appreciate the gentlelady’s tho ughts in this matter.

Mr. Hungate. Air. Mann.

Air. Mann. Thank you. I have no questions, Air. Chairman.

Air. Hungate. Air. Dennis.

Air. Dennis. AIs. Abzug, have you read the tran script of the press 

conference of Air. Buchen, the President's counsel, of September 8, 

1974, which is one of the documents he sent up to this committee?

AIs. Abzug. Yes, I believe I have, Air. Dennis.

Air. Dennis. I s it not true tha t tha t document contains the answer 

or an answer to a great many of the questions asked in your 

resolution?

AIs. Abzug. Well, as far as I know, Air. Buchen is not the President 

of the United States and as fa r as I know, Air. Buchen cannot answer 

this resolution of inquiry since the resolution of inquiry has to be 

directed by the rule itself, as I am sure you know, directly to the 

President or in other instances it may be directed to members of the 

Cabinet. It is a very serious resolution.

We want to find out, you know, directly from the executive d epa rtment what is up, and I th ink that to suggest to me th at Air. Buchen 

should present that inform ation since this has not been addressed to 

him is probably not really what you mean because I know that you take 

very seriously the process of this Congress and this committee.

Air. Dennis. You suggest th at the President cannot answer through 

an agent if he would ?

AIs. Abzug. Of course he can. li e could have answered through this 

agent by sending a letter to this committee as a preliminary step and 

suggested tha t he or his agent would be available for furthe r testimony before this committee bu t not saying, as was said here, that I 

happen to have here some little press releases th at I am going to give 

you for your consideration.

Air. Dennis. You also read the tran script of the President's own 

press conference, have you ?

Air. Abzug. Yes, I have.

Air. Dennis. All right. Now, you say on page 4 of your prepared 

stateme nt:

There are suspicions that Richard Nixon may have made a deal on the pardon 

with Gerald Ford before nominating him to the Vice Presidency. Tf Richard 

Nixon made Ford’s elevation to Vice President conditional upon the promise 

of a pardon or even if Nixon conditioned his own resignation on a promise of 

receiving a pardon, then conceivably Mr. Ford can be charged with accepting 

a bribe.

Do you have any evidence whatsoever to support those suspicions ?

AIs. Abzug. No, and I make it very clear, Air. Dennis, t ha t I make 

no judgment here as to whether these suspicions are justified. I have 

stated th at in my testimony. I am merely attem pting to bring before 

this Congress, as it is my responsibility as a Alember of this Congress 

to do, the reasons why I think having a resolution of inquiry, getting 

specific answers directly from the President with respect to these 

questions, can settle these suspicions one way or another.
Mr. Dennis. I s it your original opinion that the President has no 

constitutional righ t to issue a pardon before a charge is brought?

Ms. Abzug. I tend to view this issue along with other legal scholars 

and constitutional experts tha t there should be either an indictment 

or an admission of guilt before the granting of a pardon, yes.

Mr. Dennis. Now, in Ex parte Garland which you discuss in your 

statement, is it not a fact tha t Mr. Garland had not been charged 

with any offense at the time the pardon was issued to him?

Ms. Abzug. Well, I explained to you what I think of Ex parte

Garland. Actually Ex parte Garland was not a pardon case, but 

rather a general amnesty case and I believe it is an entirely different 

issue than the gran ting of a pardon. I also believe th at the language 

in Garland respecting the limitless nature of the pardon is mere 

dicta and not the holding of the case. The judge added a lot of words 

with respect to the broadening of a pardon but t hat is not the holding 

of the case. Moreover, subsequent decisions of tho court have eroded 

and to some extent overruled the dicta which you refer to.

Mr. Dennis. I s it not a fact tha t Mr. G arland specifically pled and 

relied upon in so many words a pardon issued to him by President 

Andrew Johnson?

Ms. Abzug. Yes, that is true. li e did that.

Mr. Dennis. And the courts upheld tha t contention in part of the 

language quoted by you on page 7 of your statement. Is that not true?

Ms. Abzug. Yes, but as I said, we can differ and legal scholars, I am 

sure, will differ, as to the meaning of th at decision, b ut it is mv view 

tha t Ex parte Garland does not stand for tha t proposition. It certainly contains strong dicta with lots of words backing it up, perhaps 

too many words as we lawyers sometimes tend to fall into.

Mr. Dennis. Let me-----

Ms. Abzug. In any case, I think that tho cases tha t I have subsequently discussed, including the Burdick case and some other cases, 

including the Carlesi case tha t I have not referred to here, would seem 

to indicate that there is some considerable limitation as to the breadth 

of the pardon. I hold the view that it is an issue tha t should be 

tested. I believe there is considerable difference of opinion, as our 

colleague has demonstrated so well.

Mr. Dennis. You hold one view.

Ms. Abzug. That is correct.

Mr. Dennis. A nd the Supreme Court of the United States holds 

another view.

Ms. Abzug. No. I differ with the dicta of a 19th century Supreme 

Court, and you differ with holdings of a 20th century Supreme Court. 

Even the President in grantin g this pardon suggested that this was 

an unprecedented pardon and indeed, I believe it is. But I tend to 

agree with those legal authorities who believe a pardon requires first 

either an indictment or admission of guilt. The purpose of a pardon 

is to remit punishment. The Constitution itself says tha t the President 

may pardon for offenses against the United States. W hat is the meaning of offenses? As you read this whole record, you have no evidence 

whatsoever tha t President Ford has stated that he had acted based 

upon an indictment or an admission of guilt.

And I suggest i f you remit punishment it has to be for something 

which may very well exist. I am not suggesting it does not, but only 

that it has not fully flowered in the legal processes of our judicial 

system.

Mr. Dennis. The chairman tells me my time has expired, so you and 

I will have to defer to a la ter date our interesting legal discussion.
33

Thank yon.

Mr. H ungate. I thank the gentleman. I than k the gentlelady.

The bells have rung for a vote. The committee will be in recess until 

1:30, at which time we will complete this questioning.

[Whereupon, at 12:20 p.m., the committee was recessed, to reconvene at 1:30 p.m., this same day.]

AFTERNOON SESSION

Mr. Hungate. The committee will be in order.

We will resume our consideration of various resolutions. When 

we left we were questioning the gentlewoman from New York, Ms. 

Abzug, concerning a privileged resolution of inquiry.

TESTIMONY OF HON. BEL LA S. ABZUG, A RE PR ES EN TA TIVE IN

CONGRESS FROM TH E 20TH CONGRESSIONAL DIS TR ICT OF TH E

STATE OF NEW YORK —Resum ed

Air. IIungate. NIr. Mayne.

Mr. Mayne. Thank you, Mr. Chairman.

Mr. Chairm an, I, too, was disappointed tha t the President did not 

choose to answer the questions set out in your letter of September IT 

point by point, but rath er he forwarded the text of the Presidential 

proclamation and text of press conferences of the President and Mr. 

Buclien. It is true, of course, tha t the answers to your questions, or most 

of them, can be found in the documents furnished. I still think it would 

have been much better for the President to answer the questions in the 

same manner as they were stated, so it would not be left to a matter of 

our interpretation of those minutes of the press conferences, but that 

we could have the kind of forthrigh t and explicit answer tha t we have 

come to expect and to recognize as characteristic of President Ford.

I think, under all of the circumstances, I would hope that the P resident will reconsider and still submit a point-by-point answer for our 

consideration. I t is not too late for him to do so and I hope tha t he will 

before we conclude our sessions on this important subject.

Thank you, Air. Chairman.

Mr. Hungate. Thank you, Mr. Mayne.

I would thank the gentlelady from New York for bringing this 

problem before us and there has been a considerable response, as she 

knows, and a great deal of interest and concern in this matter. I would 

inquire, do you thin k th at—what is your view on whether any of your 

questions are answered in the documents furnished assuming tha t it 

was not a presumption to force you to look through them ?

Ms. Abzug. Well, I do appreciate the chairman asking me that 

question. I have read that, batch of releases tha t were sent by the White 

House, not studied them thoroughly as yet, and I ask permission of the 

chairman, by the way, to introduce some additional statements with 

respect to those statements afte r the conclusion of this hearing, if th at 

would be all right. I ask unanimous consent-----

Mr. Hungate. The gentlelady requests permission to introduce 

some further statements relating to these questions and matters discussed here today and without objection it is so ordered.
34

Ms. Abzug. Tha nk you, Mr. Chairman, but I might point out that 

rega rding these statements, I not only object to the procedure in which 

they are presented, but more importantly, I do not th ink they directly answer any of the questions. For example, the first question asked, 

“Did you or your representatives have specific knowledge of any 

formal criminal charges pending against Richard Nixon prio r to the 

issuance of the pardon?’’

Now, if you recall, on page 1 ,1 think, of Mr. Buclien’s September 10 

press release, he indicated th at lie had gotten a list of 10 possible-----

Mr. I Iuxgate. Offenses.

Ms. Abzug [continuing]. Charges in confidence from Air. Jaw orski, 

but we have no knowledge as to the delineation of these charges. There 

is no specific answer really with respect to whether the President or his 

representatives had specific knowledge of the formal charges and what 

they were—I use this as one example—even from reading (he materiel tha t is presented to us.

The second question:

Did Alexander Haig refer to or discuss a pardon for Richard M. Nixon, with 

Richard M. Nixon or representativ es of Mr. Nixon at any time during the week 

of August 4th or any subsequent time? If so, what promises were made or conditions set for a pardon, if any? If so, were tapes or transc riptions of any kind 

made of these conversations or were any notes taken? If so, please provide such 

tapes, tran scriptions, or notes.

Clearly, in the press releases that we have received and the press 

statements made by the President and his counsel, there is virtually 

no mention of Mr. Haig, so we do not have an answer to this question. 

We know about some committee of transition that was involved in 

negotiations. We certainly do not have the answer to the rest of the 

questions there.

I do not know whether you want me to go throug h all of them, Mr. 

Chairman, but I am presenting these as illustrations.

Mr. H ungate. Well, let me inquire, do you find any of the 10 to be 

dealt with in the press release?

Ms. Abzug. I think not, Mr. Chairman. As a matter of fact, as a 

result of the question tha t was raised by Mr. Dennis, T reread the 

White House materials very quickly in our recess: I can now say that 

not a single question has been fully answered: most of them are not 

answered at all by the material that is provided. There may be one 

or two which are answered p artia lly. For example; question 5 asked 

the following: “Did you consult with Attorney General William Saxbe 

or Special Prosecutor Loon Jaworski before making the decision to 

pardon Richard M. Nixon and, if so. what facts and legal authorities 

did they give you?” We know from the press material tha t the President had said (hat Air. Jaworski advised him of the length of time 

before a jury could be impaneled and the length of the tria l itself. But 

we do not know an ything beyond that. So th at, even th at question is 

not fullv answered. This is the one that had some answer in it, but is 

not really fully answered.

Mr. Hungate. And the Chair recognizes—of course, there is a shortage of time for everybody in the T-day resolution and there is a 

shortage when the gentlelady gets the mass of material not individual! v directed. Tt would be the Chair's thought-----

Mr. Dennis. Mr. Chairman-----
35

Mr. H ungate. Ju st a moment—subject, of course, to the will of the 

subcommittee and the author of the privileged resolution th at it might 

be quite well to continue these hearings a week from today and in the 

meantime to make some effort to get a more satisfactory response to 

these, and perhaps to have a flesh and blood witness to attend to the 

needs of the committee and seek to provide us with answers. And I am 

inquiring of the gentlelady if she would think that was an orderly and 

proper procedure.

Ms. Abzug. Well, I think, Mr. Chairman, although it is, as you know, 

a privileged resolution which can be called up within 7 (lays after it is 

flled, if this committee wants to proceed to get more inform ation before 

acting upon this resolution, the proper procedure would be to act either 

for or against the resolution which would enable it then to secure more 

information. But if you wish in a preliminary way to continue with the 

hearings and seek witness testimony, certainly I think a t this stage it 

would be very useful and very important.

Lot me make sure tha t I have made myself clear, Mr. Chairman. As 

you know, committees are required under the procedure here to report 

resolutions of inquiry back within 1 week of the reference.

Mr. ILungate. Seven legislative days.

Ms. Abzug. That is correct, sir. Seven legislative days. The procedure 

here could well be that the subcommittee, as I indicated in my earlier 

testimony, would re port the resolution favorably to the full committee 

with a recommendation tha t it report it favorably to the floor. W hat 

does tha t mean? It merely means tha t the committee is saying we 

would like the answers to this question. We agree with you we want 

answers to these quest ions.

The chairman had originally sent a letter including the resolution of 

inquiry questions to the President seeking answers, but we received no 

answers to the questions. Therefore, I am suggesting t ha t the subcommittee is in a position if it determines so to actually act on the resolution itself by approving it and sending it to the full committee for 

subsequent similar action. If the chairman is asking me whether I 

thin k it is within my interpretation of a resolution of inquiry f or him 

merely to hold these hearings open or to continue them and secure additional information without action on the resolution of inquiry, I 

think that is a procedure tha t the committee could follow and I would 

seek to cooperate as much as I could, provided I felt that the committee 

was proceeding to secure the information th at is being requested in the 

resolution.

Mr. ILungate. The Chair appreciates tha t because as various members of the subcommittee have noted here today, the form, if nothing 

more, the form of the response is not satisfactory to the committee, it 

would seem from our discussions, and the Chair would trv to be slow to 

insult, although some would find insult in the answer. But we can always have confrontations and we would seek to cooperate and accommodate because we are really seeking information and we are seeking 

it not just for ourselves but for the public. So tha t is why I wanted to 

get that colloquy in the record with the gentlelady, and the legislative 

days would expire as to her resolution. I think, on Yorn Kippu r, for 

example, which would not be the most fortunate day to call it up.

Ms. Abzug. Although it is the Day of Atonement.

Mr. ILungate. All right. Yes. Tha t is a touche.
36

But gettin g to the work of the Congress, it seems tha t Tuesday would 

be about as reasonable a time before we could get together and complete our work in an orderly way and the Chair would thin k we 

would—we exercise in a sense the rath er awesome power of the Congress and the committee and in doing so we would want to be very 

careful and if we could proceed in this fashion next Tuesday and seek 

to have more information, furthe r information from the gentlelady 

and follow up on this, it would seem to be an orderly procedure.

Does the gentleman from In diana seek recognition ?

Mr. Dennis. Thank you, Mr. Chairman. I merely want to make an 

observation. I certainly would like to see the gentlewoman from New 

York have an opportunity to present anything else she wants to 

present, but I just want to make a couple of observations.

Question 1, which says “Did you or your representatives have specific knowledge of any formal criminal charges pending against Richard Nixon prior to issuance of the pardon?” I would respectfully suggest th at it is a matter of common knowledge tha t no formal criminal 

charges were pending and it seems to me th at question answers itself.

And as to the second question, “Did Alexander Hai g refer to or discuss a pardon for Richard M. Nixon at any time during the week of 

August 4 ? ”, that question, it seems to me, ought to be addressed to Mr. 

Haig or General Ilaig rather than to President Ford.

And if the gentlewoman will take the time when she has the document available again to go throu gh the tran script of Mr. Buchen’s 

press conference of September 8, and I think some of th e other documents, including the Presiden t’s statement also—but I happened to 

go rath er carefully through Mr. Buchen’s conference of September 8— 

I think tha t the gentlewoman will find tha t there are answers given 

there to every question she asks with the exception of No. 2 about General Haig and No. 6 about Governor Rockefeller. I merely make these 

observations for the record a t this time.

Ms. Abzug. May I respond to that, Mr. Chairman ?

Mr. Hungate. The gentlelady may.

Ms. Abzug. Mr. Dennis, it is my understanding as a lawyer tha t 

charges can be pending before a grand jury without an indictment 

having been issued and my question, No. 1, was directed to th at issue. 

Before you came in, Mr. Dennis, I indicated tha t I have made some 

review of the press releases and press conferences th at were included 

in the President’s answer, although not as thorough a one as I would 

like to have made, given the time I had, I answered previous to your 

coming in that on th at question, for example, there is only one statement related to that question. Air. Buclien—in his September 10 press 

conference stated—th at he received a listing of some charges from 

Air. Jaworski in confidence and we know nothing else about that. So 

tha t there is certainly not a complete answer to No. 1 from the materials which we have been given.

I also explained to the chairman before you came in tha t after having reviewed my questions in the resolution of inquiry as against the 

material tha t I reviewed, I could find no question that was answered 

fully, one or two questions were only partially answered, and most of 

them were not really answered at ail by the materials tha t were presented. I asked permission of the Chair to include some additional 

analysis of th at before you came in. So I disagree with that.
37

And with respect to Ha ig, I thin k that he played a role in both President Ford's short administration and Mr. Nixon's, and there is some 

indication tha t he played some role in the transition and further, I 

think it is a very critical question and Mr. Ford can ask Mr. Haig what 

role he played or this committee can ask Mr. Ila ig what role he played 

by bringing him before them. So this question has not been answered.

' Mr. H vngate. I thank the gentlelady and the gentleman from Indiana and I suppose it will be for the subcommittee ultimately to determine those questions.

Ms. Holtzman.

Ms. Holtzman. Thank you, Mr. Chairman.

I want to commend my colleague from New York for introducing 

this resolution of inquiry which I have cosponsored, because I share 

the concern that is reflected in this resolution of inquiry; namely, that 

the suspicions tha t have been generated in th e public about the integrity of governmental processes ought to be laid to rest an d tha t confidence of the public in the integrity of governmental process is importan t for this Congress to preserve.

I am glad to see tha t you will be introducing for the record an 

analysis of President Ford’s press statements in terms of whether or 

not they respond to the questions asked by the resolution. I just wanted 

to draw your attention-----

Ms. Abzug. I just want to say, if I may in terrup t you, Ms. Holtzman, 

that is without prejudice to my position that this is not the way one 

should respond to these questions.

Ms. Holtzman. Well, in light of that T wondered if you reviewed 

the question that is posed in your resolution of inquiry regarding 

health and the role th at it played in the pardon and the answers'given 

by President Ford in his news conference. I refer you to a statement 

on page 3 in which P resident F ord in response to a question regarding 

the reports tha t he, Air. Ford , received on Mr. Nixon's health—said 

“I have asked Lukash to keep me posted in the proper channels.” I 

am just quoting portions. “And I am not at liberty to give any information as to the reports I have received.” Subsequently in this news 

conference, he states that basically the inform ation on health was 

received from press reports tha t he had read in the newspapers. For 

example, on page 4 he said “I could not be oblivious, however, to the 

news accounts I had concerning the P resid ent’s he alth.”

Would you agree t ha t even this conflicting statement regarding the 

inform ation tha t Mr. For d had respecting Mr. Nixon's health, gives 

furthe r impetus to the need for the passage of this resolution of inquiry?

Ms. Abzug. Well, yes, I do very definitely. The thing tha t struck me 

was that, it was unclear to me on what basis Dr. Lukash, who I believe 

is Ford's physician, made the statement he did about some general 

reports, having not examined Mr. Nixon or anything.

The report generally is replete with statements on the health issue 

in a very strange way, th at the President says he put in some statements on health on his own. The basis for this appears to be merely 

some statements tha t he has read in the paper. So the whole issue is 

a very, very critical issue and very much in doubt because as far as I 

can tell, the pardon is grounded on a theory of mercy. I do not see 

many other factors in it and I am not too sure what was the compelling reason. The health issue is a very confused one and I thin k
38

you are. quite righ t in pointing th at out, nor do the documents which 

have been presented to us by President Ford in any way clarify this 

issue.

Ms. Holtzman. Are there any other questions respecting the Presidential pardon that you thin k ought to be inquired into, aside from the 

questions contained in your resolution of inquiry ?

AIs. Abzug. Well, they are prim arily legal in nature. Most of the 

other things th at I think I have referred to I have already mentioned 

in today’s testimony.

Ms. H oltzman. I again want to thank you for your testimony and 

for the contribution th at you have made. I thin k it is especially importan t th at we in the Congress get th e facts respecting the pardon, especially in view of the nature of the agreement t ha t was made with the 

former President in which additional information will have difficulty 

in being exposed, and in view of the fact that there was apparently 

no attempt to deal with the Special Prosecutor to insure th at he would 

have the right to disclose materials or would have the right and access 

to review all Presidential documents and the like. So I again want 

to commend you and thank you for your contribution.

Ms. Abzug. Thank you.

Mr. I Iungate. If there are no furthe r questions, we thank the gentlelady very much.

Mr. Conyers. Pardon me, Mr. Chairman. I arrived late but I would 

like to inquire-----

Mr. Hungate. The gentleman from Michigan.

Mr. Conyers. I appreciate the opportunity to sit on this subcommittee, even though I am not a member and it is my view that the 

gentlewoman from New York has presented the clearest examination 

of the problems tha t we arc confronted with and I thin k has very 

logically analyzed each of them.

She has no doubt noted tha t my resolution of inquiry differs from 

hers in t ha t it does not specifically set forth the questions. I think that 

between the two of them they would form a very adequate basis for an 

inquiry tha t is apparently necessary—necessarily must come forth 

from this particular committee and the Congress.

I am especially impressed by your evaluation of the areas of concern, the agreement of the tapes, the methods by which you suggest 

tha t we review the legitimacy of the pardon, especially in connection 

with the urging of the Special Prosecutor to sign the indictment that 

has already—that, was already attempted by citizens perhaps less informed of the law but more determined th at the facts would be brought 

forward. That would be to me a very important and significant step 

forward in this whole matter. And so I would ask you, have you considered additionally—the only thin g that you have left out, as I review 

your testimony and additional comments, was the fact that eight Senators had sent unanimously a letter to I believe i t was the Special 

Prosecutor. Do you not think we might want to consider that even 

among this committee or among Members of the Congress who share 

your view ?

Ms. Abzug. Sending a letter with respect to the agreement on the 

tapes, are you now saying, or with respect to proceeding with the 

indictment?

Mr. Conyers. Well, I am in the process of securing the letter t hat 

the Senators sent. I t was to Jaworski and I believe it was concerning
39

its elf wi th the me tho d of preservin g the evid ence fro m his work as 

Spe cial Pro sec uto r.

Ms. Abzug. Well, let me ju st te ll you wha t I hav e done. I hav e my ­

self wr itten a le tte r to b oth Atto rney Ge ner al Sax be and Mr. J aw or sk i 

in dica tin g th at it was my view th at i t was th ei r res ponsibi lity t o ailo w 

th e gr an d ju ry t o proc eed wi th its ind ictm en t if one was forth co ming 

an d fo r the m to sig n it. I do no t belie ve th at the pa rdon is leg all y 

susta ina ble , bu t if it is, then Air. Nixon wou ld wa nt to ple ad th is 

pa rdon as a b ar to th e ind ictme nt. T his would p rov ide the courts w ith 

an op po rtun ity to det erm ine t his im po rtan t co nstitution al question.

I also believe th at the agree me nt on the tape s sho uld be set aside. 

I th in k th at the GS A lack ed the juris dictio n to sig n away pr op erty 

belon gin g to the United Sta tes . Th ere has been no legal de term ination 

th at it is the pr op erty of the Pr esiden t an d un til such tim e the tap es 

are the pr op erty of the United State s an d there by the Congress ha s 

pow er over them.

Th e leg ality of the pardon is a serious que stio n th at ou gh t to be 

determi ned by the cou rts. 1 have indic ate d th is to b oth A tto rney General Sax be an d the Spe cial Pro sec uto r. Th erefore, I concur w ith wh at 

Distric t Ju dg e Ric hey has said, th at th e pa rdon its elf may rai se a 

very im po rtan t leg al questio n as to wh eth er the Pr es id en t by virtu e of 

ha ving issue d th is p ardo n is in excess of his au th or ity u nd er the Consti tutio n. Moreov er, lie ma y hav e also in terfered with the ch ar ter establ ishi ng the Office of Special Pros ecutor which pro vid es th at the 

Pr es id en t cannot interfer e with th e dis charg e of the duties of the 

Spe cial Prosecutor with ou t the consent o f ce rta in nam ed persons, the 

major ity , minority lea der s, and I th in k th is c ommittee c ha irm an and 

othe r cha irm en. So I t hi nk thes e are the three are as of v ery conside rable concern th at the com mittee s hould addre ss its elf to. Th e answers 

to m any o f these que stio ns may pro duce fu rt her questions of th e abuse 

of pow er, o bstru cti on of jus tice, a nd issues of th at kind.

Now. I have n ot raised t hi s b ut I have hea rd othe rs raise the qu estion 

an d ans wer if I may, Air. Con yers, one ot he r question as to whe ther 

or not the act ion on th is pa rdon represented any form of conflict of 

interest on the part of th e Pr es id en t in ha vi ng gr an ted a pa rdon to 

some body th at ma de him the Pr es id en t of the United State s. You 

know, th ere are ot he r questions lik e th at , in an swer to you, Air. C ony ers, 

an d to, Afs. Ho ltz man , in yo ur question th at I have not gone into. 

I hav e tried to outline wha t I thou gh t factua lly and leg all y were the 

pro position s th at th is com mittee sho uld con sider in connection with 

th e resolu tions befor e it. Bu t as fa r as the reso lution of innu irv is 

concern ed, which is th e reso lut ion th at I have in tro duced, my ob jective 

there is to see to i t t hat once and fo r all we ha ve a righ t in the C ong ress 

to add ress, and it is ou r high est pr erog ative to add ress, the executive 

branch , to addre ss ou r Pr es id en t an d sav we are concerned, we wan t 

to hav e th ese specific, facts a nsw ered by you. Th is is a verv serious res olutio n and T t hi nk th at we h ave a s erio us res po nsibility to get answers 

to thes e questions and th at is whv T fa vo r th is com mittee ac tin g to 

favo rably repo rt th is resolu tion to the full committee.

Afr. Convebs. Mv time is ju st abo ut up . i f it is n ot. Would yon obiec t 

if the resolu tion th at T have intro du ced would be accented bv th is 

comrnttfpp an d then we would use those qu estions th at vou have fra med 

so b rilli an tly in yo ur own res olu tion? T mea n, would th at not be con-
40

sistent with the whole idea of what we are working toward because we 

would then be able to go even beyond those questions?

Ms. Abzug. Well, I do not—the committee has before it this resolution of inquiry and it has your resolution of inquiry. I think as far 

as the procedure is concerned, Mr. Conyers, the committee, of course, 

has a right to vote for any resolution it chooses, whether it is in this 

form or the form in which you have it. It is not within my province.

The question was raised before you came in, I think, Mr. Conyers, 

as to a procedure. I recommended tha t there be favorable action by 

this committee on this resolution of inquiry, because the questions 

have to he asked. When the resolution is acted on, you have then a directive, a request to the President to answer the questions. Right now 

we are in an informal preliminary stage. The committee should act 

favorably on the resolution and recommend that the full committee 

do likewise and then report it to the floor.

If, on the other hand, the chairman proceeds in the way tha t he 

suggested, I may not have to reach your question yet. The chairman 

has asked me whether it would be consistent with my view or the 

process of the resolution for him to continue these proceedings next 

Tuesday and try to get additional testimony, perhaps witness testimony. in addition to some questions answered from the White House. 

I said that, of course, if I felt that the matter was being processed 

vigorously I would not—I added “vigorously” now; I did not say 

tha t before, Mr. Chairm an; I do not want to trap you as to what I said 

or did not say; but I meant that—that, of course, I would try to cooperate as much as possible. But I do not know whether or not I want 

to exchange resolutions at this point, if you do not mind, Mr. Conyers, 

but based upon our respect for each other as colleagues and our common objective I am sure those problems can be solved as we go along.

Mr. Conyers. T hat is the spirit. Thank you very much.

Ms. Abzug. But I give up no rights.

Mr I Iungate. The time of the gentleman has-----

Ms. Abzug. It is a privileged resolution which enables me to call it 

up to the floor after 7 legislative days following its introduction.

Mr. II ungate. The Chair understands the gentlelady's statement 

and I had a partner of whom the judge used to say he never lost a suit. 

He did not win them all but he never lost one. I understand the position.

Wo are anxious to proceed along. I would say, Mr. Conyers, that 

we do hope to go forward again on the next—a week from today and 

in the exercise of the duties entrusted to this committee and mindful 

of the fact tha t resolutions are sometimes voted down as well as up, 

we want to show that we have proceeded in a thorough and careful 

manner before making any demands on the committee again to exercise 

what I would consider an awesome power in the Congress, although 

if we find ourselves next week where we find ourselves today I would 

not hesitate to use it.

T thank the gentleladv for her testimony.

Ms. Abzug. Thank you, Mr. Chairman. I appreciate very much your 

courtesv and the time and consideration on this important matter.

Mr. I Iungate. Thank you.

The next witness, and we than k him for his patience and the good 

work lie brings to the committee, is Mr. Koch of New York.
41

All right, Mr. Koch. We will be pleased to hear you. You have a 

prepared statement. It will be, without objection, accepted and made a 

pa rt of the record at this point and you may proceed as you see lit.

TESTIMONY OF HON. EDW ARD I. KOCH, A RE PR ES EN TA TIVE IN

CONGRESS FROM TH E 18T H CONGRESSIONAL DIS TR ICT OF TH E

STA TE OF NE W YORK

Mr. K och. Th ank you, Mr. Chairman. I appreciate the courtesy tlie 

committee has extended to me by in viting me to participate in today s 

proceedings. I would, with your permission, rathe r th an read my f ormal statement have it tiled as you suggest and then merely comment 

on it.

Mr. Hungate. You may proceed as you see fit.

Mr. Koch. Fine.

The statement, Air. Chairman, covers four points. It covers public 

access to the Watergate tapes. It covers continuation of the Jawo rski 

investigation of tiie former President. It covers a court test of the 

jsixon pardon and it covers a resolution on no further Watergate 

pardons.

Two of those items, public access to the Watergate tapes and no 

furthe r Watergate pardons, are the subject of a resolution and a bill 

which I prepared and which has been cosponsored by a number of 

our colleagues.

Fir st, let me address myself to those two items.

Public access to the Watergate tapes is addressed in II.R. 10750. 

This bill provides for public access to all WTatergate-related facts 

produced by any investigation conducted by any Federal executive 

olhce and to all Watergate-related documents which were produced 

from Jan uary 20, 1009, throu gh August 9, 1974, and which were in 

the custody of the United States on August 9, 1974.

It seems to me, Air. Chairman, that we cannot tolerate the current 

situation which if it continues will permit an erasure of the historical 

facts in this matter. This has occurred in other governments, such as 

Nazi Germany and the Soviet Union, Where people became nonpersons 

depending on their political position at that particu lar moment in 

time. But our country 1 think should not emulate tha t and if we permit the tapes from Watergate and the other records to be destroyed 

as appears to be permissible under the agreement entered into by the 

GSA and former President Nixon, we will be permitting the erasure 

of history.

i think it is incumbent upon us to terminate th at agreement. I believe that agreement is possibly a violation of the Constitution. In 

any event, 1 believe it to be illegal and not binding. While the Government may enter into an arrangement with respect to the preservation 

of property held by it, there is nothing under the law th at permits it 

to enter into an arrangement for the destruction of such property. And, 

therefore, 1 would urge tha t 11.11. 16750 be adopted by the subcommittee and reported out. I would urge just one modification of the 

bill and tha t appears on page 2 and comes about as a result of a 

suggestion by a member of the full committee. To the phrase on page 2 

which provides that access shall be given as soon as practicable in
an adequate and effective manner, the phrase “subject to due process” 

should be added.

'I he reason that tha t additional language is added to the bill___

Mr. Hungate. Pardon me, Mr. Koch. Would you go over that change 

again on page 22? W hat line?

Mr. Kocii. The bill is very short so with your permission, I will 

read it.

Be it enacted by the Senate and House of Representatives of the United States 

of America in Congress assembled, tha t (a) , the President of the United States 

shall, except with regard to m atters clearly vital to the national security interests 

of the United States, provide as soon as practicable full public access,‘in an adequate and effective manner,

and 1 am suggesting that the words “subject to due process” be inserted at th at point. And then it goes on.

Mr. Hungate. You are at the top of page 2, line 1 ?

Mr. Koch. Yes.

Mr. ITungate. And after the word-----

Mr. Koch. “Manner”, insert “subject to due process” and the purpose is to make certain tha t possible prospective or current defendants are not having their rights violated as a result of information 

which would be adverse to them. Materials related to current or prospective tria ls should not be available publicly until after the regular 

trial procedures.

The second matter to which T want to address my remarks concerns 

House Concurrent Resolution 632. That is the original number. It is 

the same as House Concurrent Resolution 643 which has 20 cosponsors.

This resolution expresses “the sense of the Congress”, and I am now 

reading, “that the pardon of Richard M. Nixon was wrongful and 

premature, and tha t no furth er Watergate-related pardons should be 

granted prio r to indictment, prosecution, and conviction, and then 

only on an individual basis where warranted by special circumstances.”

A comparable resolution was adopted in the Senate on September 12.

Now, with respect to other resolutions which are before you, I support the Gude resolution which would urge continuation of the Jaw orski investigation. I am for the resolution of inquiry that Ms. Abzug 

has described. I am a cosponsor of tha t and I support t ha t as I would 

the Conyers resolution in the same vein.

Now, I think a key point, Mr. Chairm an and members of the committee, is this. There is a myth in the making tha t will in fact become 

accepted unless this committee takes action. The myth is tha t the 

former President was driven out of office. I was here earlier today when 

our colleague, Mr. Hogan, made reference to the fact th at in the State 

of Maryland many people do not believe th at the former President 

was guilty of impeachable offenses, and that in fact he was driven out 

of office by a small band of radicals.

This committee, having been the operative committee which came 

in unanimously on at least one of the articles of impeachment, knows 

how far from the truth that is. But the fact that something is not true 

does not mean it will not be accepted by the public. I think it is our 

job in the Congress to make certain tha t the public learns the truth 

bv having access to the facts. We have a situation now where the 

President is receiving all of the emoluments of office as though he had 

done a good job and had le ft office not under a severe cloud. Indeed, I 

suspect that he would not only have been impeached but he would have
43

been ind icted an d I th in k th at may still ye t occur. Th e Con gress 

retains the pow er of i mp eaching M r. Nixon an d the W aterga te g ra nd 

ju ry can sti ll indict him. In stea d of being viewe d as someone who l ef t 

office un wi llingly, he and his follow ers are now c reatin g the myth th at 

he was d riv en out of office. We have to sto p th at and we c an sto p th at b y pu rsui ng a numb er of 

courses of action. I f we do n ot stop it, tw o thing s will occur asid e fro m 

the my th. One is th at he will ge t h is pension. I c onsider it a n abs olu te 

ou tra ge th at the form er Pr esiden t sho uld ge t a Pr es iden tia l pen sion 

af te r ha ving v iol ate d his oa th of office gro ssly an d ha ving left un de r 

the circ umstance s th at he did . We mu st un de rta ke actio n to prevent 

th at . Sec ond ly, M r. Nixon c an ru n fo r office aga in, a nd I believe, kn ow ing 

him an d h is b and of follo wers, th at it is conceivab le t hat he w ould ru n 

fo r office in 4 or 6 years. I do n ot know w ha t office th at w ould be. M aybe 

it would be Se na tor fro m Califo rn ia. I sus pect an d hope th at th e 

peo ple in Cal ifor ni a would rej ect such a candida cy, bu t at th is tim e there is no thing th at would prev en t it. Th e fa ct is th at we hav e pe rmitted th is possi bility because we did no t pursu e the impea chm ent pro cee din gs t o th e very end. I f we h ad done th at , the n he would n ot be 

eligib le to ho ld any public office. I am suggest ing th at we should pass the bill wh ich rel ate s to th e 

preservatio n of the mate ria l. If the re is a legalis m raised th at th is is pr iv at e pr op erty , I d o n ot ac cep t t hat leg alism be cause it was done on 

Go vernm ent tim e b y G overn me nt employe es with Go vernm ent money. 

But a ssu ming for a m oment t hat we w ere to acc ept t hat a rgum en t, let 

us exercise the pow er of em ine nt dom ain. We hav e done th at in the 

pa st in the Ke nnedy assass ination. Th e U.S. Go vernm ent , as I un de rstoo d it. took possession of the rifle which belonged to the widow of 

th e assa ssin who did no t wan t to relinq uis h it. Th e United States too k possession of the rifle u nd er its p ower of e mi nent doma in. Th ere fore, 

ass um ing f or a m om ent th at t he P resid en t has some lega l title to these 

tap es, which I den y, let us pay him for it. In any event, we ou gh t to 

exercise th at power. And then, even thou gh we believe th at Pr es id en t For d ha s no 

th ou gh t of fu rther pa rd on in g othe r convicted or cu rren t defend an ts 

in the W aterga te pro cee dings, we ou gh t to go on rec ord—th e Senate 

ha s alread y gone on r eco rd— as b ein g o ppo sed to such fu tu re pardo ns. 

My resolu tion, while no t deny ing th at the Pr es id en t has th e ri ght of 

pa rdon ing af te r pro sec ution and con viction , sta tes th at such action 

sho uld not be t ak en except on an indiv idua l basis an d when warrant ed 

by sp ecia l cir cum stan ces. So, Mr. Ch air man, and mem bers of the com mittee, ju st to conclude 

my own testim ony , T am honestly concern ed about the possibility of 

histor y ca rrying a false stor y 20 o r 100 ye ars fro m now. Th e memory 

of man fade s. It is the writ ten record th at pre vails. That is wh at hi sto ry is. I t is the wr itten rec ord of ma nkind . I am af ra id th at histo ry 

will no t ca rry the tru th unle ss these records are preserved.

On that I would conclude m y tes tim ony, Mr. C hairm an.

Mr. H ungate. We ll, on b eh alf of th e com mittee, I th an k the gentl eman fo r his contr ibu tio n and con structive s ugg estion s and I t hi nk it is 

he lpfu l to the com mittee to have before it va rio us rem edie s to deal 

wi th w hat seems to be a somewhat un ique an d ce rta inly c omplex pr ob ­

lem.
44

Let me ask one question before I yield to Mr. Kastenmeier.

Congressman McKinney, in his testimony said something to the 

effect that you might make copies of tapes, copies of documents, and 

then the fellow can keep the originals. IIow does tha t suggestion strike 

you or is there a flaw somewhere ?

Mr. Koch. I would have no objection myself b ut I think for h istorical purposes it is better to keep the original and I think tha t can be done 

while providing him with the copies.

Mr. Hungate. He was seeking to avoid the determination of property ownership.

Mr. Kocii. I do not think i t is really a problem under the power of 

eminent domain.

Mr. Hungate. Yes. That is a separate remedy. Yes.

Mr. Kastenmeier.

Mr. Kastenmeier. Thank you, Mr. Chairman.

In your resolution, House Concurrent Resolution 643, you state th at 

the Senate adopted a similar resolution. I n what respect does it differ 

and why is it different than the Senate resolution which was passed?

Mr. Kocir. It is my understanding, a member of my staff tells me, 

tha t it makes no reference to the pardoning of the former President but 

addresses itself to future pardoning in the Watergate situation.

Mr. Kastenmeier. That is the Senate resolution ?

Mr. Kocii. Yes, sir.

Mr. K astenmeier. Because tha t would seem to be—a resolution 

either of the character of the Senate or the one you have would seem to 

be a reasonable undertaking by the House, the Senate by at least 2 to 1 

margin having passed that, I believe; is that not correct?

Mr. K ocii. T hat is correct. The vote was 55 to 24 on September 12.

Mr. Kastenmeier. I understand you to say tha t you thought the 

court challenge of the Presidential pardon was a desirable end.

Mr. Kocii. Yes.

Mr. Kastenmeier. But you had not provided for it in either of the— 

in either of the bills, apart from the two bills you have introduced?

Mr. Kocii. I think the thrus t of the Gude resolution is the continuation of the Special Prosecutor's investigation and I would assume tha t 

would include the testing of the pardon. But T have not introduced a 

separate resolution. I think it is very key that we do test that, and as 

has been related by the prio r witnesses, judg e Richey announced tha t 

he may very well do that in the McCord case. Mr. Kastenmeier. Yes. I referred to that this morning. In other 

words, no bill or resolution before us provides for that challenge but 

nonetheless, you feel it is either under the resolutions or quite apart 

from the resolutions a proper course of action.

Mr. Kocii. I do, indeed.

^fr

- Kastenmeier. I thank you. I want to commend the gentleman for his initiative.

Thank vou, Mr. Chairman.

Mr. H u ngate. Mr. Smith.

Mr. Smith. Thank you, Mr. Chairman.

Mr. Koch, I thank you for your statement. I was very interested in 

a our suggestion of using the power of eminent domain to acquire tapes 

and documents, and so forth, in case it should be held that President 

A ixon was the owner of them. It is an interesting thought.
45

I thank the chairman.

Mr. I Iunqate. Mr. Edwards.

Mr. Edwards. Than k yon, Mr. Chairman. Mr. Koch, I am pleased to have yon here. Yon always make a great contribution. I certainly have no problem with House Concurrent Resolution 632 and I certainly th ink we should enact th at right away. It would be very important if the President should decide to go ahead 

with a basketful of pardons with Watergate-related people. However, Mr. Koch, when you express alarm tha t down the road people are going to say tha t President Nixon was railroaded and he might run for office, I am afraid 1 might leave you there. The report of the House Jud iciary Committee was total and thorough insofar as his guilt was concerned, as far as the 38 members are concerned, and the Watergate portion of the impeachment was in the view of some of us not the most im portant part, t hat the impeachable offenses that were not included in "Watergate were even more serious than Watergate 

itself. Speaking as a Californian as to whether or not he m ight run for office, I broached that to one of the incumbent Senators and he said I am going to lick my lips looking forward to such a contest, and I certainly thin k we can trust the people of California or any other 

State. There is a certain atmosphere here today tha t disturbs me a little bit and tha t is, and I like your observations on it, not just with your bills because they are good bills and so are the others, but, yes, I think most of us would agree tha t it is unfortunate the House did not go ahead with the impeachment, the Senate did not go ahead with the trial, because we found out that we are sorry now because of the pa r­ don tha t President Fo rd gave to Mr. Nixon. B ut those two affairs were 

disconnected and we are stuck with history. Now there is a very real effort to go back and avoid the constitu­ tional processes again and ordin ary procedures, taking steps which have no precedents, and even perhaps having a minitrial, a minicrimi- nal trial. That is what one of the bills really has in mind, having Jaworski issue a repo rt tha t finds him guilty without any defense lawyers, and so forth. And I am not saying it is all bad because I think public officials should be held to a much, much higher standard and especially in this case where the efforts to hide were so terribly 

important. Now, insofar as II.R. 16751, you are just interested in the W ater­ gate-related documents and tapes. Now, what about all the thousands 

of other tapes tha t are around somewhere ?

Mr. Koon. Well, obviously, I would want to preserve all materials 

related to the Presidential record which ultimately caused this com­ mittee to recommend articles of impeachment. Obviously, I am not privy to the other matters which this committee is and I certainly would supp ort the inclusion of any other relevant documents that this committee in its good judgment believe should also be preserved.

Mr. E dwards. What would you think of a proposition where all of 

the evidence from Mr. J aworski’s office and all of the tapes would be turned over to a committee, either this committee or another com­ mittee for appropriate consideration and for appropriate release to 

the public ? Would that satisfy you ?

4 4 -2 7 4— 75- 4
46

Mr. K ocii. That, certainly would. I would like to comment on somethin g tha t you said earlier. If I understood you correctly, you do not 

believe th at there is a myth growing with respect to former President 

Nixon. 1 believe there is. I have talked to people who have conveyed 

such feeling. Air. Ilo gan attested to it earlier this morning. But I want 

to give you an even better illustration of how convinced I am t ha t 

this myth is growing.

It has already started with former Vice Presid ent Agnew. If you 

interviewed people across this country and asked them if he were convicted of crimes w arran ting his removal from office, I do not know the 

percentage but it would be a substantial number who would say no, 

that he had been railroaded, tha t he did not even plead guilty, because they do not understand th e nature of the nolo contendere plea. 

And the fact is th at Spiro Agnew is running around this country a 

very busy businessman. I am sure he is being retained because people 

thin k he has great contacts. I hope it is not true, but the fact is, that is 

what people undoubtedly assume because he was the Vice President.

This attitude will occur to an even greater extent with respect to fo rmer President Nixon who, one, was not even subject to the court process 

as Agnew was, and two, when granted the pardon refused to acknowledge criminal guilt. If he had done so, it would not have influenced my 

views on the legalistic arguments in the case, but from a compassionate sympathetic point of view, it might have. However, he did not. 

When President Ford held his press conference I hoped he would say 

categorically that Nixon was guilty. lie did not. I listened to his words 

very carefully. lie really skirted that point by saying, yes, there are 

reasons for taking such a position. I t was a very ambiguous statement. 

Five years from now how many people will have read the enormously 

important report of this committee? Very few. Very few. I t is quite a 

comprehensive report., very tough to get through.

All I am saying is that this Congress did not even accept the report 

in the sense that it should have by saying we affirm its conclusions. We 

should have done that. Such an action would have marked it but we 

did not do that, if you will recall. All we did in effect was to sav, well, 

we could print it. I am on the committee which permits the prin ting 

and authorizes it, House Administration. That is really what this Congress did. It said you can rep rint the committee’s report.

I thin k we have to do something much more solid and a number of 

these resolutions and bills have a similar objective.

Mr. E dwards. Thank you.

Mr. Hungate. I f T understand the gentleman from California correctly, he does not believe we will have Hick Nixon to kick around any 

more politically and my hopes are with him and my fears are with 

your mythical proposals.

Mr. Dennis, please.

Mr. Dennis. Mr. Koch, you are familiar, of course, with the opinion 

of the Attorney General of September 8 of this year in which he holds 

tha t both practice from time immemorial by all three branches o f the 

Government and recognition thereof in effect by the Presidential Libraries Act establishes th at these documents, tapes, papers, et cetera, 

are in fact the private property of Air. Nixon, are you not?

Air. Koch. I am familiar wdth it. He is not the court of last resort. 

It is a practice and not legislation.
47

Mr. Dennis. l ie points out, however, th at it has been the practice 

since the early days of the Republic and th at practice is recognized in 

the terms of the Presidential L ibrary Act, a rather recent statute. You 

recall that.

Mr. Koch. All I am saying, Mr. Dennis, is that there is no definitive 

court decision or legislation on tha t matter, or we would not be here 

today. It is of sufficient import th at this question be decided. More importantly—assuming th at everything th at you say is correct and those 

are his papers, you will agree w ith me that under the power of eminent domain, the United States has the right to seize them and pay 

him for it.

Mr. Dennis. I certainly agree with you tha t the Government can 

condemn public pro perty in a proper case under the power of eminent 

domain, private property, I mean, and on the payment of adequate 

compensation. In doing so you would, o f course, recognize that they 

were in fact private property.

Mr. Kocii. If the court so decides then we should pay him.

Mr. Dennis. You say in your resolution here tha t the pardon was 

wrongful and premature. Premature, I can understand the meaning 

of. By wrongful do you mean illegal or merely that you do not thi nk it 

ought to have been done?

Mr. K ocii. I believe the pardoning of the former President prior to 

indictment, prosecution and conviction was wrongful in two senses. 

One is really not the subject of debate because it is a question of how 

you viewr

 it from a moral point of view and we could come to different 

conclusions on that.

I take the position that it was an immoral act. Tha t is No. 1.

With respect to the legality of it, I am saying that it is a questionable act which can only be disposed of ultimately by the Supreme 

Court deciding in this case whether the pardoning power was exercised in a manner consonant with its constitutional prerogatives. So 

I say that question is open.

Mr. Dennis. Would you not agree tha t the Supreme Court in Ex

parte Garland did hold th at it was legal to issue a pardon before any 

conviction or indeed, any charge?

Mr. K ocii. There are two responses th at I would have to tha t. One 

is, I would refer you to what the prior witness, Ms. Abzug, said in 

discussing the legal aspects and other matters and drawing a distinction between pardoning and amnesty. That is her answer and I concur 

with it. I will give you a second answer. The Supreme Court has never considered itself infallible to the point where it has never taken a position—where in fact it has changed its position in various matters.

Mr. Dennis. Well, the court can reverse itself.

Air. K ocii. Yes.

Air. Dennis. AVe all know that.

Air. Kocii. Right.

Air. Dennis. Until it does it supports the law.

Air. Kocii. Righ t, but the question I am raising here is whether 

under these very special circumstances the President exercised a duly 

authorized constitutional power or whether he abused it. I believe he 

abused it but it would take the Supreme Court to make th at ultimate 

decision and all tha t I am suggesting is tha t they be given tha t 

opportunity.
48

Air. Dennis. Let me ask you as a libera l an d a man of g ood will if 

you do not feel th at in ad vo catin g the ide a th at the form er Pr esiden t 

sho uld be legally , i f I understood y ou, prevented in some fashio n fro m 

runn ing fo r office sho uld he wish to, th at you are p ractically advocating what we call a bill of attainde r.

Air. Ko cn . Oh, no. I am ad vo catin g th at we do to him what we 

would have done ha d he been form all y imp eached and con victed, wh ich 

sho uld hav e o ccured, in my jud gm ent. I am also sa yin g th at un de r the 

exist ing sta te of the facts th at is no t beyond th e power of the Congress tod ay. I t may be th at t he C ong ress will no t b ring i tse lf to e xercise th at power. I believe we sho uld. But I am not prom oting an argume nt th at violates our Constituti on. Indeed, ju st the a ntithe sis. The 

Co nstituti on pro vid es th at whe n a Pr esiden t is imp eached and convicted lie shall no t be eligible f or p ublic office. AVould it no t be a n ou trage if R icha rd Nix on ran again ?

Air. Den ni s. I th in k in my rea ding th at the Co nstituti on pro vides 

that th e Senate on a con viction could, if they wished, attach an in ­

eli gibility fo r fu ture office but th at the y do no t have to, and while it 

seems to me unlikely th at Air. Nix on will be elected to office again, if 

the peo ple of the State of Ca lif or nia or some othe r St ate wante d to 

re tu rn h im, it might be th at they would be e qually en titled to do th at, 

th at the people of New Yo rk were to re tu rn A dam C lay ton P owell, for 

inst ance, whi ch was very e loquen tly ar gu ed before the Ho use by people 

who s aid we had no right to deter mi ne fo r the people of the St ate of 

New Y ork th at m atter.

Th e ch air ma n says m y tim e is up. I would love to ta lk to you fu rthe r.

Air. ITungate. Th e ch air man would love t o listen to it f or that m at ­

ter . Th e lega l cal ibe r of the discussion betw een you tw o gentlem en on 

the Supre me Co urt is so gr ea t I th in k you are probably separate bu t 

equal.

Ms. H oltzm an, please.

AIs. H oltzman. Tha nk you very muc h, Air. Ch airm an , and than k 

you, ATr. Koch, for the very for ceful an d inci sive t estim ony th at you 

havo given.

I wan t to ask you a que stio n about yo ur conc urrent resolution because I basically agree wi th it, and, fo r pur poses of l egislati ve history , 

I wa nt to ask yo u wh at you m ean by the w ord “ wro ng fu l” in th at resolu tion, G32.

Air. Koc n. The word “w ro ng fu l” there is the sense of t he Congress 

th at it wa s b oth w rong ful in a mo ral sense and in a legal sense.

AIs. H oltzman. You mea n th at he sho uld no t have done it.

Air. Koc n. Yes.

AIs. H oltzman. T hat is w ha t you mean.

Air. K ocii. Yes.

AIs. H oltzman. But you are no t im plying th at th ere was anv so- called deal? J

Air. Koc n. No. That is n ot w ha t I am sug ges ting. I am no t suggesting base, motives in th is resolution .

AIs. H oltzman. I jus t w anted to clarify th at fo r t he rec ord.

Air. Koc n. Yes.

Ms. H oltzman. Second, with res pect to the bill th at you have in ­

tro duced, do you view it as ov errid ing the agree me nt th at Pr es id en t 

Fo rd en ter ed in to with Ri ch ard Nix on ?
49

Mr. Koch. Yes, I do.

Ms. Holtzman. And when yon use the terms “Watergate" and 

“Watergate-related matters'’ in here, are you referring to the whole 

spectrum of misconduct that took place in the Nixon administration by 

him and his aides?

Mr. Koch. 1 am referring to-----

Ms. H oltzman. Specifically?

Mr. Kocii (continuing). Every item tha t was the subject of your 

original inquiry on the subject of impeachment.

Ms. Holtzman. Is there any reason, then, tha t you allow for the continued nondisclosure of matters dealing with national security 

int ere sts ?

Mr. Kocii. Well-----

Ms. H oltzman. The reason T raise tha t is because one of the things 

we did see in our impeachment inquiry was the abuse of th at term by 

Richard Nixon and, in fact, the use of tha t term for the purposes of 

coverup. I t is hard to see where national security interests are related 

or affected by disclosures in the Watergate case : Tax matters, campaign 

contributions, the plumbers, and the like.

Mr. Kocii. O f course, I did not hear every tape and, therefore, I am 

not privy to the information which you have because you did hear 

every tape. But I was concerned that there have to be safeguards for 

the vital interests of the United States. I am not talking about the 

criminal acts of the President in any of the matters t hat came before 

your committee. I am talkin g about possible matters of which I have 

no knowledge and which ought to be protected. Of course, you come 

to the question of can you protect against an abuse of power.

I have to work on the premise that every law can be abused by bad 

legislators or bad executors because they are the ones who enforce 

the law. I also have to work on the premise th at unless and until you 

are convinced tha t tha t individual is a base person or desirous of violating the law, tha t you have to proceed in good faith. You have to say 

that those who are duly elected to office with certain constitutional prerogatives deserve our good faith. While you will question them when 

you thin k you should, unless there is a pattern which causes us to 

initiate a new impeachment proceeding, I believe that to take the 

position that we can never permit national security to be a consideration because the President and his adm inistration decide what national 

security is would mean that we could not function.

Ms. H oltzman. When you said your bill would abrogate the agreement entered into between Mr. Ford and Richard Nixon, you are 

saying also that all aspects of that agreement will be abrogated, including the transfer of materials from the W1 lite House-----

Mr. Kocii. Yes.

Ms. Holtzman [continuing]. To this so-called vault in San 

Clemente ?

Mr. Kocn. Yes. All aspects. Permission to destroy them, turnin g 

them over to him—all aspects would be abrogated.

Ms. Holtzman. I have no fu rther questions. Mr. Chairman.

Mr. Hungate. Mr. Mayne.

Mr. Mayne. Thank you, Mr. Chairman.

Mr. Koch, you expressed considerable concern about what would 

be the eventual judgment of history in this case and are afraid that the
50

histo ric reco rd might be d ist or ted in some way. Are you fa m ili ar w ith 

the i nte rview in de pth wi th the dis tin gu ish ed m ajor ity counsel of th e 

impea chm ent comm ittee, Mr. Jo hn Do ar, w hic h ap pe ared on thi s subjec t in the New Y ork Times a bout 10 days ago?

Mr. K och. I did no t hav e occasion to rea d it, so I cann ot co mment 

on it.

Mi-. Mayne. Well, to reassu re you, I t hi nk I am pa ra ph ra sing w hat 

Mr. Do ar said correc tly, bu t he ha d a very stro ng fee lin g th at the 

record w hich bad been made before th is committee an d w hic h h as been 

published toge ther with th e adm issions wh ich were ma de by the 

form er Presiden t o n Au gu st 5,1974 , are irr efut ab le an d are so clear ly 

establ ished as the histo ric record th at to his m ind, at lea st, h e has no 

misgivin gs th at there could be a disto rtion s ubs equ ently which w ould 

lead people to believe th at the Pr esiden t, form er Pr es id en t Nixon, 

wou ld no t hav e been imp eached if brou gh t—if th e m at ter ha d been 

brou gh t to the floor of the House an d wou ld no t hav e been convicted 

in th e Sen ate. An d, of course, he is quite an em ine nt au th or ity wi th 

mem bers of this comm ittee, at least, an d ha d reache d th at jud gm ent 

ap pa re ntly a fter very cons iderable an d delib era te thou gh t.

Mr. Koch. May T comm ent on th at , Mr. M ayne?

Mr. Mayne. Sur ely.

Mr. K orn . I know J oh n Doar. In fac t, I consider him an old frien d 

and I wor ked w ith h im in the city of New Yo rk in a numb er of areas, 

li e is a b rilli an t law yer and he is a scholar. Bu t h e is not someone who 

runs f or public office an d has t he fee ling f or w ha t people are th ink ing. 

Ho m ay very well be r ig ht , and I suspect he is, t hat those people who 

have rea d the 43 volumes o f publishe d Ju di ci ar y Com mittee evidence, 

the sch ola rs who will go to the lib rar ies , they know wha t Ri ch ard 

Nixon di d. Th ey know t hat he wo uld have been impeached had we contin ue d the impeac hm ent pro ceeding s.

Bu t there are so many people who never read the proceedings, who 

reall y do not have a conception o f w hat it was all about. H ar kin g back 

to f ormer Vice P resid en t A gne w—people a re accep ting A gnew ’s st atement. Some peop le will also acc ept th e sta tem ents of form er Pr es ident Nixon’s supp orters .

T wou ld be s urprise d if you have not received mail like t hi s because 

I know I have a nd my d istrict I thi nk is like any other distr ict. Le tte rs 

come f rom people who sup po rt form er P resid en t Nixon to da y and who 

attack me fo r m y h av ing been fo r h is imp eachment.

I would be surpris ed if there are mem bers who are sittin g here on 

this com mittee who toda y are n ot ye t rece ivin g such mail fro m at lea st 

a lim ite d numb er who believe th at th e Pr esiden t was railr oa de d by a 

small grou p o f people in th is Con gress.

Mr. Mayne. M y mem ory ma y be pl ay ing me tri ck s bu t is not your 

di str ict th e one w hich a t least used to be referre d to as th e s ilk sto cki ng 

di str ict ?

Mr. K och. Yes. Aly district w as Republican u nt il I came along.

[L au gh ter.]

Mr. Mayne. Well, at th e ris k of losing the Republican ch aracter of 

my di strict, I would l ike to i nvite you o ut there sometime to see n or th ­

west Iowa and I t hi nk you wou ld find th at the re are some diffe rences 

wi th advanta ges both ways between ou r tw o d istricts.

Tha nk you.
51

Mr. II ungate. I thank the gentleman.

Mr. Conyers?

Mr. Conyers. Mr. Chairman, I wanted to make an observation which 

our distinguished colleague from New York might want to comment 

on because in his arguments he has raised 1 think very clearly an 

honest difference of opinion that my good friend Don Edwards has 

some hesitancy about, but T thin k it is very important, that there is a 

myth tha t is developing. The Maryland elections are clearly demonstrative of that fact. So is my mail and so are the kinds of conversations 

tha t I get.

Of course, our accolades to John Doar have piled higher than the 

Rayburn Building but it is a little bit understandable t ha t Jo hn Doar 

would think the matter ought to be sufficiently closed. It is not surprising. I would be shocked if I were to read tha t lie felt that an in-

* complete job had been done and that there was something else required.

But you raise a very fundamental consideration and it is what brings 

this subcommittee back into action. I t is gnawing in different aspects 

away at many of the members, tha t this job has not been completed 

« and we are saying th at without any detriment to this Judiciary Committee and the impeachment work.

The door has been opened by the hand of the President and I am a 

little bit worried. I do not know California. I know some of the vagaries 

of the politics of California. Maybe Nixon cannot get elected out there. 

But if he had been impeached he would not be able to run. If he had 

been indicted there would be no real possibility of him standing for 

office again. And I think, in closing, your notion about eminent domain 

has some great merit and I think you have argued in behalf of your 

resolution most ably.

Nlr. Kocii. Thank you.

Mr. II ungate. I thank the gentleman from Michigan and the gentleman from New York for his contribution.

The committee has one witness to complete this afternoon. We will 

now recess until 3:15. Thank you, Mr. Koch.

Air. Kocn. Thank you.

[The prepared statement of lion. Edward I. Koch follows:]

Statement of II on. E dward I. Ko cn, a Representative in Congress F rom the

State of New York

Mr. Chairman and colleagues, former President Nixon is fast being granted 

all the benefits and honors of a national hero. Despite the circumstances under 

which he resigned, Mr. Nixon is receiving all the emoluments of a chief executive who has left office aft er distinguished service. I hope tha t your subcom-

* mittee will initiate swift action by the Congress tha t will make clear to future 

generations that crimes against the Constitution and the people by any President 

or other high officials will not he swept under the rug, as though they never 

occurred.

In your full committee’s final report on impeachment, you stated your unani-

* mous view tha t Mr. Nixon committed at least one impeachable offense, and a 

majority voted articles of impeachment on two other grounds. There is little 

question th at he would have become the first impeached and convicted President 

in our history, and this is precisely why he was the first President in our history 

to resign. There also was the strongest probability that, in upcoming months, he 

would have been indicted for criminal activities.

The pardon by the President a t this time was an affront to our judicial system. 

Your hearings on the pardon and related questions are a great service to the 

American people. I agree with Professor Philip Kurland of the University of 

Chicago Law School, acknowledged as one of the Nation’s leading constitutional
52

authorities, who has argued that the constitutionality of granting the pardon 

prior to conviction should be challenged in the court. Professor Kurland argues 

that an individual cannot he pardoned before i t is legally determined that he 

committed some crime for which he has been convicted. U.S. District Court Judge 

Charles B. Richey, in the McCord case now before him, has indicated th at he may 

test the validity of the Nixon pardon.

It is incumbent on the Congress to take action. In pursu it of that, I have introduced a concurrent resolution (II. Con. Res. G43) stating the sense of the 

Congress that the pardoning of Richard Nixon was “wrongful and premature”, 

and tha t “no furth er Watergate-related pardons should l>e granted prior to indictment, prosecution, and conviction, and then only on an individual basis where 

warranted by special circumstances.” Twenty House colleagues have joined in 

cosponsoring this resolution, and the Senate adopted a similar resolution on 

September 12.

I also suggest tha t legislation be enacted directing the special prosecutor to 

proceed with his investigation of Presidential activities both in order to bring 

out the facts and to raise before the court the constitutionality of the timing of 

the pardon. Professor Kurland contends tha t if Mr. Nixon used his pardon as a 

defense against specific charges, this would define the crimes covered by the 

pardon. Kurland believes that the judge in the case would then be required to 

rule if the pardon were applicable, as he would rule on any defense motion. Upon 

the judge determining that the pardon is applicable Nixon would then be deemed 

guilty as a matter of record of the crime to which the pardon applies.

I also believe that as soon as consistent with fair justice, materials from W atergate-related investigations, including tha t of the Special Prosecutor, should be 

made public. I have introduced legislation, H.R. 16750, now before your subcommittee, co-sponsored by twenty-eight. Members of Congress, to provide public 

access to all Watergate-related facts, documents, papers, and tapes produced 

by investigations by any Federal Executive Office, department, or agency, and 

all other related materials at the time of Mr. Nixon’s resignation. Only by full 

knowledge of and availability to all the facts and records will the American 

people be assured that an administration cover-up has really stopped and that 

government officials are sincere in attempting to avoid the mistakes of the past. 

The only exception to full public disclosure allowed by the bill relates to materials clearly vital to the National Security interests of the United States and 

required for valid purposes to be sealed.

I believe that the Nixon Administration papers and documents belong to the 

United States, not to private citizen Nixon. The extraordinary factors behind 

his involuntary resignation from office mandate public access to the materials. 

I do not believe that resignation from office negates public access to the materials. 

I do not believe the agreement between G.S.A. and Mr. Nixon disposing of the 

Watergate materials to be constitutional or legally binding. Under articles IV 

of the Constitution, Congress has express power to “make all needful rules and 

regulations respecting the property of the United States.” The materials in question wero produced completely with public funds. In addition, the U.S. Code (44

U.S. Coda Sec. 2108) states that although G.S.A. has authority to accept presidential papers and other historical materials, it shall negotiate “the right to have 

continuous and permanent possession of the materials.” Nowhere is there mentioned any right to negotiate the destruction of materials, as in the Nixon-G.S.A. 

Agreement.

In the Wanhinffton Pont of September 21, 1974, Professor Arthur Miller argues 

tha t “the agreement about destruction is a legal nullity.” He also points out that 

Attorney General Saxbe’s contention tha t there is a custom of pas t presidential 

ownership does not make such a custom legally binding.

If these tapes and other documents, for any present legalistic reason, cannot 

be subjected to public access, the U.S. Government should exercise the power 

it presently has of eminent domain and retain them, even if due process requires 

a payment to the former president for their value. That payment, if any, could 

be offset against what Mr. Nixon owes the Government on monies illegally spent 

on his estates. Such a procedure of eminent domain was used by Federal authorities to obtain the gun assertedly used by Lee Harvey Oswald to kill President 

Kennedy in 1963. The Government paid the value of the gun to a private individual who had bought it, retaining the weapon for U.S. Archives.

Above all. we must not allow the tapes and documents to be destroyed, selectively or collectively. Totalitarian nations, including Nazi Germany, have burnt
53

books and documents in an effort to distort the truth. In the United States, no 

one should have the right to erase the facts of history. The reasons given by President Ford for the pardon shed insufficient light on 

the matter. First and foremost is the question, specifically what crimes was 

Nixon pardoned for? Mr. Chairman, I was pleased to learn of your recent lette r 

to President Ford asking for elaboration on the matter and posing additional 

questions which must be answered. The resolution of inquiry introduced by 

Congresswoman Bella Abzug, if answered without evasion by the President, will 

provide the Congress and the people with information vital for them to make 

informed decisions and judgments in crucial matters. She deserves our congratulations for her initiatives, and I am delighted to be a co-sponsor of tha t resolution. I hope tha t the resolution is passed with rapidity. If the President responds 

to the committee’s letter, the purpose of the resolution will have been served. 

This is a matter which requires immediate action and will not tolerate delay.

History must record the truth before the memory of man fades. The presidential pardon before conviction was, in my judgment, wrong, if not illegal. The 

Congress must reaffirm that no man is above the law, not even a President and 

his advisors. I am hopeful that you will report out legislation stating the sense 

of the Congress in this matter, and guaranteeing access to all the facts and 

records about this, one of the saddest episodes in our history.

I am reminded of the statement in the Gettysburg Address of 1863 which says 

we are a Government of the i>eople, by the people, for the people. Today, the 

people want the facts surrounding Watergate, they are owed the facts, and it is 

the obligation of the Government to provide them. The President’s constitutional 

power of pardon, is not, I submit, unlimited, and those who abuse it must be 

called to task.

f A recess was taken.]

Mr. Hungate. The committee will be in order and resume its sitting. We will now hear from Mr. Bingham. We welcome you Mr. 

Bingham. Wo appreciate your patience. And you have a prepared 

statement.

TESTIMONY OF HON. JONATHAN BINGHAM, A REP RES ENT ATIVE

IN CONGRESS FROM THE 22D CONGRESSIONAL DISTRICT OF THE

STATE OF NEW YORK

Mr. Bingham. I do, Mr. Chairman. I would like to summarize the 

first 3 pages and then possibly read the latter part.

Air. Hungate. All right. Without objection, the complete statement will be made a p art of the record ami you may proceed. Anybody 

who waits this long we give him whatever he needs. Go ahead.

Mr. Bingham. Thank you, Mr. Chairman.

Fir st of all, I would like to compliment you and the subcommittee 

for holding these hearings on what I consider to be a most vital matter.

The resolution which I have introduced and which is before this 

committee is one th at would simply urge tha t the President not consider additional pardons until the criminal justice system has disposed 

of the various Watergate cases. While i t is true th at the President has 

indicated now that he will not do that it might be well for the Congress 

to proceed with some indication and expression of opinion of this sort. 

The President has changed his mind on these pardon matters in the 

past and might again, and I think it would be useful to have an expression of congressional opinion on the subject.

Tha t is all I want to say on the subject of House Concurrent Resolution 629, which I introduced and is before this committee.

I would like to pass now to page 3 of my statement. The question 

which your committee and the Congress must now answer is how we 

should proceed to make the record totally clear and to have all the
54

facts brought before the American people of the Watergate affair 

and its related matters. There are some who argue tha t the House 

should impeach Richard Nixon and send his case to the Senate for 

trial. I have had some suggestions of tha t sort from my own constituents and it is not without merit since it would at least insure a definitive constitutional judgment of Richard Nixon's responsibility for 

high crimes and misdemeanors.

However, in my judgment, resumption of the impeachment process 

is not only unlikely, but it is also worth pointing out that it would 

provide a completed record of misconduct in only those areas covered 

by the articles of impeachment, when in fact the areas of wrongdoing arc far more extensive.

It would be most useful, I believe, for the House Jud iciary Committee to insist t hat its outstanding subpenas be answered and submit 

a supplementary report based on tha t evidence. As I have said since 

Mr. Nixon resigned, th is relatively simple step would produce answers 

to a number of open questions about corruption and other misdeeds 

in the Nixon administration and about Nixon's personal responsibilities therefor.

A national commission of inquiry similar to the Warren Commission which investigated the assassination of President Kennedy has 

also been suggested as a means of completing the record of Watergate 

and related matters. I fear, however, that such a commission would 

mean long and unnecessary delays while its members and staff became 

familiar with all the details already revealed by prior investigations. 

Moreover, its findings might not achieve widespread acceptance. This, 

you will recall, was the fate of the Warren Commission report.

Most importantly, there are the Special Prosecutor and the W atergate grand jury with the capability of carrying throug h with a comprehensive review of Nixon's alleged offenses. Two weeks ago, a group 

of Senators led bv Senator Ed ward Kennedy, urged the Special Prosecutor to include in the final report he must submit to Congress “a full 

and complete record detailing anv involvement of the former President 

in matters under investigation by you.” The Special Prosecutor responded to this suggestion by citing “substantial legal and ethical 

questions as to the statutory authority for the issuance of a detailed 

report on the matters you suggest.”

I urge this committee to take immediate steps to grant the Special 

Prosecutor whatever authority he needs to present such a comprehensive report. However, I urge you not to take any action which might 

preclude the Watergate grand jury from issuing an indictment of 

Richard Nixon for any crimes he might have committed while holding 

the Cilice of President.

I believe that the grand jury not only has the power to issue an indictment of the former President, bu t also th at it should issue such an 

indictment if the evidence justifies it, despite the pardon granted by 

President Ford. Although the public seems generally unaware of 

this point, the Presidential pardon power is nothing more than “an 

act of grace * * * which exempts the individual from the punishment the law inflicts for a crime he has committed” (U.S. v. IF/faon, 32 U.S. 150 (1933)). In 1867, the Supreme Court ruled that a pardon, 

if granted before conviction, “prevents any of the penalties and disabilities consequent upon conviction, from attaching; if granted a fter 

conviction, it removes the penalties and disabilities.” There is no legal
55

precedent, to my knowledge, for a Presidential pardon precluding a 

properly constituted grand jury from issuing an indictment.

If the W atergate grand jury were to issue an indictment of Richard 

Nixon, as it reportedly wanted to do many months ago, he could then 

come into court and plead the pardon to block further court proceedings. This would allow a court test of the legality of the pardon, as 

was only yesterday suggested by a U.S. district court judge.

Grand jury action and the Special Prosecutor's report together could 

tic up all the loose ends left hanging by earlier truncated investigations. These steps would provide the opportunity for filing formal 

criminal charges against the former President and a comprehensive 

statement of the evidence which supports those charges. Parallel action 

by the Congress to insure necessary access to the Presidential tapes and 

documents currently in the custody of the White House would also 

be desirable.

I would like to interpolate there that, since I have heard considerable discussion of that matter before this subcommittee this afternoon,

I have introduced a bill which is before the House Administration 

Committee. This is II.R. 16454 and is similar to a bill introduced in the 

Senate by Senator Bavli and others which would require th at all public documents of all elected officials, and that would include Members 

of Congress as well as the President and the Vice President, be turned 

over to the GSA within 180 days after they leave office.

I understand that a subcommittee of the House Administration 

Committee is going to have hearings on bills of this type early next 

week. I also understand that just today there was reported from the 

Senate Government Operations Committee a bill introduced by Senators Nelson. Frvin , and Javits, which would direct the GSA to obtain 

or retain all Nixon papers, which would prohibit destruction, provide 

for payment to Mr. Nixon if a Federal court were to decide the documents are the property of Mr. Nixon, direct the GSA to issue reasonable regulations permitting public access a fter all court proceedings 

have been completed, and giving Nixon unrestricted access and copying rights.

Difficult questions arise in connection with these various resolutions, 

questions which it may not be easy to resolve. I do not know that the 

law is clear (hat these papers and tapes, and so on, belong to the former 

President. I think by tradition they are tu rned over to him, bu t I do 

not know tha t that creates a property right; and I think that is somethin g tha t will have to bo determined at the appropriate time. But 

I am clear on this, that it is most essential tha t the Government continue to have control and custody of these tapes and the documents 

and t hat they not bo turned over to Mr. Nixon in accordance with the 

agreement reached between him and President F ord ; and to that end 

I believe tha t whatever legislation is appropriate to achieve tha t 

objective should be enacted.

Thank you, Mr. Chairman.

Mr. Hungate. Thank you very much, Mr. Bingham.

If the committee will indulge me, I will read into the record a letter 

we just received from the White House and I think it is quite pertinent 

to the work you are carry ing on.

The President has asked me to reply to your second lette r to him of September 17, 1974, which concerns the disposition of tapes and documents compiled by 

form er President Nixon and curren tly within the custody of the Federal 

Government.
These materials, as you know, are the subject of various subpoenaes and court 

orders and of request for disclosure by the Office of the Special Prosecutor. As a 

result, no further action is being taken to affect the disposition of such m aterials 

until afte r the issues raised by the pendency of the subpoena, court orders, and 

Special P rosec utors requests are resolved. The period of time involved in resolving such issues will of itself operate to assure adherence to the request in the 

second paragraph of your letter. (Seep. 187 for entire letter.)

And it continues with greetings.

I think th at is relevant to our attempt to preserve the Government's 

rights—on availability of tapes.

Mr. Edwards.

Mr. Edwards. Thank you, Mr. Chairman.

Thank you, Mr. Bingham, for your excellent testimony. Perha ps 

now would bo the time to establish title to those things and data. 

Would you agree that in view of the le tter read bv the chairman that 

perhaps we should move ahead and clear the air? Or do you thin k it 

should be up to the court ? I do not thin k so.

Mr. Bingham. No, I-—well. I think, title should be established and 

I think title should be in the Government of the United States, in the 

people, with custody in the GSA. I suppose t hat any action by the 

Congress to that end could be challenged in the courts on the basis that 

the Congress cannot deprive Mr. Nixon of property which is his without duo process of law. And if the legislation in question did not do 

that, then tha t presumably could be challenged.

So I thin k tha t the, determination has to be made first bv the 

Congress and then ultimately would probably come before the court. 

Although my bill frankly does not do that, I think it is a wise inclusion 

in any legislation on the subject to provide that, if the courts find that 

there is a property righ t in the former President, then he should be 

compensated for surrendering tha t right.

Mr. Edwards. I would agree with you and I think tha t we should 

have no problem with House Concurrent Resolution 629. It is a well 

written bill and one that we should enact right away.

I)o you think tha t the committee should move ahead with Ms. 

Abzug’s resolution ?

Mr. Bingiiam. I prefer not to comment on that since I am not too 

familiar with it. I was not here to listen to her testimony.

Mr. Edwards. Very good. Thank you.

Mr. IIungate. Mr. Smith.

Mr. Smith. Mr. Chairman, in view of the fact that we have a vote. 

I am not going to ask Mr Bingham any questions. I thin k it was a 

good statement, Mr. Bingham. Thank you for making it.

Mr. Bingham. Thank you.

Mr. I Iungate. Ms. Iloltzman.

Ms. I Ion tzman. I just want to welcome my colleague from New York 

and I think his testimony is excellent and I appreciate his contribution.

I yield back my time, Mr. Chairman.

Mr. II ungate. Thank you very much.

Air. Dennis.

Air. Dennis. I yield likewise, Air. Chairman, in view of the lateness 

of the hour, not necessarily conceding tha t I agree with everything 

my colleague has stated.

Air. IIungate. Air. Bingham. I wonder if we might have this understanding, that any members of the subcommittee that would like to
57

propound questions in view of our difficult circumstances should submit them in writing by noon tomorrow and you would respond by next 

Tuesday ?

Mr. Bingham. Surely.

Mr. Hungate. We appreciate your patience and your contribution 

is very helpful to the committee.

Mr. Bingiiam. Thank you.

[The prepared statement of Hon. Jonathan Bingham follows:]

Statement by II on. J onathan Bing ha m, a Representative in Congress

From the State of New York

Richard Nixon’s forced resignation and subsequent pardon have stymied an 

historic attempt to reassert the Constitutional principles on which this nation 

was founded and the concept of equal justice under the law which has been its 

hallmark. In the months ahead this nation must decide whether or not it will 

accept this abrupt and incomplete ending or whether it will refuse to close the 

book on the most corrupt chapter in American history until the full story is 

known.

President Ford has chosen the former course, and in pardoning Richard Nixon 

of any and all crimes which he may have committed while in office he hopes to 

put Watergate behind us. For the sake of consistency the White House at one 

point indicated tha t pardons for other Watergate figures were also being considered, but the national uproar which followed tha t announcement led to its 

immediate cancellation. I believe now the President will not consider such 

additional pardons at least until the criminal justice system has disposed of the 

various Watergate cases presently before the courts. However, a formal expression of Congressional opposition to further pardons might strengthen his resolve, 

and I call your attention to II. Con. Res. 629 which I introduced on September 11 

as one vehicle for such a statement.

The Nixon pardon and the possible pardons for his close associates have 

appalled the nation for two reasons. They make a mockery of the principle of 

equal justice under the law for all citizens, regardless of rank or station, and 

they are premature, since they precede action by the courts. The nationwide 

outcry over the Nixon pardon has focused principally on the former because 

the favoritism and dual standard it implies do violence to our sense of fai r 

play. But I submit th at the second reason for opposition to the pardon is equally 

important.

The pardon of Nixon put the cart before the horse, by absolving the former 

President of the consequences of his wrongdoing even before he has been formally charged with any offenses. Millions of people are outraged by the pardon 

not simply because it seems to prevent Nixon from l>eing summoned before a 

court to answer for his conduct, but because it might forever protect the full 

story of the Nixon administration’s violations of the law’ and the Constitution 

from full disclosure.

This is no picayune matter, no petty vengeance against a fallen leader. The 

American people still do not have all the facts about the Nixon adm inistration’s 

misconduct, and without those facts we cannot know their true magnitude and 

significance. Each investigation of Nixon’s administration has been limited 

or aborted. The Senate Watergate investigation focused principally on the 

Watergate affair, election campaign abuses and their coverup, and we now know’ 

tha t Presidential w’rongdoing was not confined to these abuses. Further, the 

Senate Committee was denied access to the best evidence, Nixon's own tapes 

and documents.

The Special Prosecutor is not hampered by these limitations, but his prosecutions to date have not covered the full range of Nixon’s offenses. The formal 

court actions initiated by the Special Prosecutor do not charge Richard Nixon 

himself with any offenses, and Nixon’s role is obviously central to any inquiry.

As for the impeachment inquiry by the House Judiciary Committee, we cannot say that i t was able to fill the gaps in the record left by th e Special Prosecutor’s office. In fact, the President’s response to Committee subpoenas included 

nothing not also furnished to the Special Prosecutor. Although the Committee 

concluded, from the evidence available to it, tha t the President ought to be 

impeached, its inquiry was continually frustra ted by lack of evidence. Article 

II I spoke directly to this point—the President's refusal to comply with subpoenas
5S

properly issued by a Committee of the Congress charged with the responsibility 

of determ ining wheth er or no t the President had committed impeachable offenses.

The evidence which remains hidden is astounding. The Committee issued 

eight sep ara te subpoenas between April 11 and Jun e 24, 1974, for recordings 

and materials rela ting to 147 sep ara te conversations, plus various other documents. The Committee felt th at the subpoenaed ma terials were necessary in 

order to learn the full story of Waterga te, the abuse of the IRS, domestic su rveillance, the dairy case, and the ITT and the Kleindeinst confirm ation hearings. In response to its subpoenas, the Committee received some notes previously 

turned over to the Special Prosecutor, news summaries without the Pre sid ent’s 

notations, and the edited tra nscript of 3G conversations. The Committee received 

none of the lists of meetings and phone calls which had been subpoenaed, and 

no tap e recordings. Even the tra nscripts tur ned out to be of highly dubious 

accuracy.

The cumulative results of both Senate and House Comm ittees’ and the Special 

Prosecutor’s efforts will be an impressive but tru ncate d review of Nixon admin istratio n offenses. There will he no final judgment by the Congress or the 

cou rts on t ha t conduct, and the record will be incomplete and liberally sprinkled 

with gaps and unanswered questions. History and the American people may 

forever suffer an incomplete understand ing of these tra um atic events and the 

lessons they must teach. Corrective changes in our body of laws will be more 

difficult w ithout a clearer unde rstanding of the offenses which must he prohibited. 

Finally, Richard Nixon could some years hence resurr ect his claims of innocence, 

relying heavily on the fac t th at he was never proved guilty of any violation of 

the Constitution nor formally charg ed with crim inal conduct by any court.

These possibilities make imperative furth er investigation, analysis and jud gment of Richard Nixon and his administration. The question which your Committee and the Congress must now answer is how should this he done. There are 

some who argu e that the House should impeach Richard Nixon and send his 

case to the Senate for tria l. This suggestion is not without merit, since it would 

at least insure a definitive, con stitutional judgment of Richard Nixon’s responsibility for high crimes and misdemeanors. However, resum ption of the impeachment process is not only unlikely, it would also provide a completed record of 

Nixon’s misconduct in only those are as covered by the Articles of Impeachment, 

when in fa ct the area s of wrongdoing ar e f ar more extensive.

It would he most useful, however, for th e House Judiciary Committee to insist 

th at its outstand ing subpoenas be answered, and submit a supplem entary report 

based on that evidence. As I have said since Richard Nixon resigned, thi s relativ ely simple step would produce answ ers to a number of open questions abo ut 

corruption and other misdeeds in the Nixon administration and about Nixon’s personal responsibility therefor.

A national commission of inqu iry sim ilar to the Wa rren Commission which 

investigated the assa ssin atio n o f P resident Kennedy has also been suggested as a 

means of completing th e record of Wate rga te and rela ted matter . I fear, however, 

th at such a commission would mean long and unnecessary delays while its members and staff became fami lia r with all the details alread y revealed by prior 

investigations. Moreover, its findings migh t not achieve widespread acceptance. 

This, you will recall, was th e fate of the W arren Commission report.

Most importantly, the re are the Special Pros ecutor and the Wa tergate grand 

jury with the capability of carry ing through with a comprehensive review of 

Nixon’s alleged offenses. Two weeks ago, a group of Senators led by Sen ator 

Edward Kennedy urged the Special Prosecutor to include in the final report he 

must subm it to Congress “a full and complete record detaili ng any involvement 

of the form er President in ma tters under investigation by you.” The Special 

Prosecutor responded to this suggestion by citin g “subst antial legal and ethical 

questions as to the s tatutory authority for the issuance of a detailed rep ort on the ma tters you suggest.”

I urge thi s Committee to tak e immediate steps to gran t the Special Pros ecutor 

whatever auth ority he needs to present such a comprehensive report. However. I 

urge you not to take any action which might preclude the Wa tergate grand jury 

from issuing an indic tmen t of Richard Nixon for any crimes he migh t have 

committed while holding the Office of Presiden t. I believe th at the grand jury 

not only has the power to issue an indictment of the form er President hut also 

th at it should issue such an indictm ent if the evidence justifies it, despite the 

pardon gran ted by President Ford . Although the public seems generally unaware 

of thi s point, the Pre sidential pardon power is nothing more than, quoting from
59

U.S. v. Wilson “an act of grace . . . which exempts the individual from the 

punishment the law inflicts for a crime he has committed” (U.S. v. Wilson, 32 U.S. 

150 (1833)). In 1867, the Supreme Court ruled tha t a pardon, if granted before 

conviction, “prevents any of the penalties and disabilities consequent upon conviction, from attachin g; if granted after conviction, it removes the penalties 

and disabilities.” There is no legal precedent, to my knowledge, for a Presidential 

pardon precluding a properly constituted grand jury from issuing an indictment.

If the Watergate grand jury were to issue an indictment of Richard Nixon, as 

it reportedly wanted to do many months ago, he could then come into court and 

plead the pardon to block further court proceedings. This would allow a court 

test of the legality of the pardon, as was only yesterday suggested by a U.S. 

District Court judge.

Grand ju ry action and the Special Prosecutor’s report together could tie up all 

the loose ends left hanging by earlier truncated investigations. These steps would 

provide the opportunity lor tiling formal criminal charges against the former 

President and a comprehensive statement of the evidence which supports those 

charges. Parallel action by the Congress to ensure necessary access to the 

Presidential tapes and documents currently in the custody of the White House 

would also be desirable.

Mr. II ungate. The committee will stand adjourned for the day.

[Whereupon, at 4:15 p.m., the subcommittee was adjourned, to 

reconvene Tuesday, October 1,1974.]

PARDON OF RICHARD M. NIXON, AND RELATED 

MATTERS

TUESDAY, OCTOBER 1, 1974

H ous e of R ep re se nt at iv es ,

S ub co mmit te e on Cr im in a l J ust ic e,

Com m it te e on t h e J udic ia ry ,

IVash ing ton, D.G.

The subcommittee met, pursu ant to notice, at 10:15 a.m., in room 

2141, Rayburn House Office Building, Hon. William L. Hungate 

[chairman of the subcommittee] presiding. Present : Representatives Hungate, Kastenmeier, Edwards, Holtzman, Smith, Dennis, and Hogan. Staff present: Robert J. Trainor, counsel; Stephen P. Lynch, 

research assistant; and Michael W. Blommer, associate counsel.

Mr. H ungate . The subcommittee will be in order. We will resume 

our hearings into various bills and resolutions relating to (1) the pardon of former President Richand M. Nixon; (2) the issuance of additional pardons to persons involved in "Watergate related activities; 

(3) tho ability and appropriateness of the "Watergate Special Prosecu­ tion Force to make public the information it has compiled relating to 

the alleged criminal conduct of former President Richard M. Nixon: and (4) the public disclosure of all "Watergate related documents and tapes which were in the custody of the United States between Ja nuary 20,1969, and August 9,1974. Primarily the hearing today will be addressed to the second, third, 

and fourth points. The Chair would announce tha t the President has indicated his desire to appear before the subcommittee in response to the two privileged resolutions of inquiry at a time m utually convenient to the Chief Executive and to the committee. I would say that I express the appreciation of the committee for the President’s desire to take this action personally. I think again, it’s consistent with the frankness and openness he regularly displ ayed as a Member of the House. The time of the meeting will be worked out afte r a meeting of the subcommittee members in conjunction with the officials at the White House. At this time, if there is no objection, I will insert into the record a statement submitted to the subcommittee by our colleague, 

Congresswoman Jordan. [The prepared statement of Hon. Barbara Jordan follows:]

Sta teme nt of H on. B arbara J ordan, a Repr esen ta tiv e in Congr ess F rom th e

State of Texa s

SPECIAL PROSECUTOR’S RELEASE OF INFORMATION TO THE PUBLIC

Mr. Chairman, members of the Subcommittee, as members of the House Com­ mittee on the Judiciary, we have weathered a storm which swept a President out of office. When our Constitution was tested, we did not succumb, we did not for- 

(61)

44 -2 74 — 75------ 5
62

sake it, we did not abandon our oaths. The question before us today is whether 

or not a President can resign knowing the injustices he committed while in office, will never be publicly scrutinized. I believe the American people have an 

absolute right to know whether, during his tenure, a President acted legally or 

illegally in executing his duties. No circumstance I can imagine should compromise tha t axiom; not resignation, not death, not assassination, nothing.

When the House Judiciary Committee began reviewing the plethora of information assembled by its impeachment inquiry staff, it soon found it ditficult to 

withhold information from the public. Concerned with the rights of defendants, 

and due process for the President, the Committee released all the information in 

its possession which w ould not degrade or defame. Through the summer months 

the Committee released over 13,000 pages of information. The public had trouble 

digesting it all.

Did the release of the information prejudice any trials? I think not. Did the 

release of the information prejudice the President's case? Members of the 

President's party fully supported the Committee’s action. I would suggest the 

Special Prosecutor follow the example of the House Judiciary Committee and 

release the information at his disposal bearing upon the President’s conduct in 

olfice.

The Special Prosecutor has in his possession tapes, documents and other memoranda not scrutinized by the House Judiciary Committee. Of the tapes subpeonaed by the Committee, sixty-three were not supplied. The Special Prosecutor 

secured possession of the tapes as the result of a Supreme Court decision to which 

rhe Committee was not a party. These tapes and documents contain information 

concerning the President’s involvement, and the alleged culpability of his former 

aides, in covering up the Watergate break-in and its afterm ath.

In addition, the Special Prosecutor has in his possession information gleaned 

from his investigations of possible destruction of evidence, income tax evasion, 

and appropriation of campaign funds for his own personal use. While these investigations had not been completed prior to the time President Ford pardoned 

former President Nixon, the investigation into the possible involvement of other 

individuals is continuing.

To a certain extent, release of some or all of the information in the Special 

Prosecutor’s possession is a matter of timing. Some may emerge during the upcoming trials. Some may be released with the handing down of new indictments. 

During the normal workings of the judicial process, some of this information will 

emerge. But we must go beyond that. We must provide a means whereby the 

American people, within the limits of due process, can be privy to the actions their 

President implemented while in office.

None of the bills before the Subcommittee require the Special Prosecutor to 

divulge information which would jeopardize the rights of defendants or compromise the government’s case. We should not consider for a moment, trading 

rights of due process for the public’s right to know. And yet I cannot help but 

believe tha t between the two, lies a vast middle ground.

The information in the Special Prosecutor’s i>ossession can be classified into 

two categories: inculpatory and exculpatory. Within our normal judicial processes, government prosecutors divulge tha t information which is inculpatory— 

tha t information which will prove their case. Prosecutors are not generally 

required to defend their belief, as a result of their investigation, there is no substantiating evidence to believe, with probable cause, a crime has been committed. 

Prosecutors are not required to defend negative findings. Should the Special Prosecutor be required, by legislation, to divulge information which he believes does 

not inculpate the former President in any criminal act?

Because the question of probable cause is open to judgment, U.S. Attorneys are 

normally given wide latitude to decide whether to bring an indictment. Assume, 

for example, the Special Prosecutor thought the information available to him 

did not substantiate an allegation tha t the President willfully and knowingly 

submitted false tax returns. Should the Special Prosecutor be required, nevertheless, to support his judgment after having been required to divulge the information upon which he based his opinion? I know this Subcommittee will consider this issue carefully before reporting a bill to the full Committee.

Mr. H unqate. At this time I would also include Chapter I of The

Pardoning Power of the President by W. II. Humbert. This work has 

been most helpful to the Subcommittee and its staff in their prepara ­

tion for these hearings. (See p. 265 for Chapter I.) Mr. Smith?
Mr. S mit h. Tha nk you, Mr. Ch airm an . I ju st wan t to say , I ’m 

su re I am speaking for all the M emb ers on th is s ide, we are de lig hted 

th at the Pr es id en t lias tak en th is action , an d ha s ma de know n his 

willin gness to come down here an d ap pe ar befor e th is com mittee in 

re ga rd to these two privi leg ed res olu tions of inqu iry . I th in k it does 

speak well fo r the candor an d fra nk ne ss th at the Pr es id en t has exhibited thu s f ar in h is new term.

Mr. I I ungate. Mr. Kas tenm eier ?

Mr. Kaste nmeier. 1 ju st w anted to join in wi th w ha t the c ha irman 

am i th e rank in g minority member said, an d expre ss my own comp lime nts an d ad mira tio n fo r the work of the ch airm an an d th e ge ntle ­

ma n fro m New York, Mr. Sm ith , in br in gi ng t hi s abo ut. I th in k t hi s 

pa rtic ul ar solution of the Pr es id en t ap pe ar in g before us is in accordance wi th the h ighe st tra di tion , an d 1 am very ple ase d with the work 

of the c ha irm an and the rank in g minor ity member in thi s con nection .

Mr. H ungate. We ap preciate y ou r gener osity. 1 thin k it ’s the firm 

fo r which we wo rk th at gets th e respec t. Are th ere any fu rt her 

sta tem ents ?

We have as firs t w itness today t he Hon orab le G eorge D anielson, c once rning IL K. 16810, a bill to au thorize the J une 5,1972 , Fed er al g ra nd 

ju ry of the Distric t of Colum bia to s ub mit a re po rt t o the co urt concerning its inve stiga tio n of the W aterga te an d related matters .

Mr. Danie lson, we welcome you, a fellow member of the com mittee 

an d a d ist ingu ish ed M ember of th e Congres s. We look fo rw ard to y ou r 

co ntr ibu tio n.

TESTIMONY OF HON. GEORGE DANIELSON, A REP RES ENT ATIVE IN 

CONGRESS FROM THE STATE OF CALIFORNIA

Mr. Danie lson. Tha nk you, M r. Ch airm an , m embers of the c om mittee. I ap prec iate t he op po rtu ni ty to ap pe ar here on be ha lf of my bill, 

IL K. 16816, whic h is no w before you. 1 have a writte n sta temen t w hic h 

has been filed with the com mittee, 1 wou ld like perm iss ion t o have it 

made part o f t he re cor d, and also th e p erm ission to ad lib as I co ver it.

Mr. H ungate. W itho ut ob jection , it ’s so ordered , M r. Danielson.

Mr. Danie lson. I ’m ap pe aring, M r. Ch airm an an d members of th e 

com mittee, on be ha lf of my bill, an d I wa nt to po in t ou t t h at the p u rpose of th is leg islati on is t o seek, to find, to p rovid e a vehicle th ro ug h 

whi ch th is committee can p reserv e fo r all time th e to ta l rec ord o f t h at 

series of ev ents which we a ll now refe r to as Wate rgate.

Th e ap proa ch t h at I have is sl ig ht ly dif fer ent th an t he a pp roac h in 

some of t he o ther bills b efo re th is c ommittee in th at most of the m, or 

some of the m call fo r th e Special Pr os ec utor to file a re po rt as to 

ev erything th at ha s come to h is att en tio n. I tak e a diffe ren t a pp roac h. 

Th e purpose o f m y b ill is to au tho riz e th e W aterga te gr an d ju ry whic h 

has been s pec ially convened an d h as en terta ined th is in ve sti ga tio n now 

fo r close to 2 ye ars , to file a com parab le repo rt, w hich would be a p ublic record.

Th e bill wh ich I have intro du ced is based in larg e p art on th e pro ­

visions of title 18, se ctio n 3333, whic h provide s fo r repo rts to be issued 

by special gr an d jur ies . Thi s is alread y a p art o f th e law of t he land , 

and the approa ch inc lud ed in my bill does no t dep ar t fro m th at 

appro ach.

My bill pe rm its th e gr an d ju ry , on the conclusion of its in ve stig ation, to file a report. Th ere sh ould be Xerox copies of section 3333 of titl e
64

18, attached to my written presentation and I will refer only to the 

lirst subparagraph, that’s subparagraph A (l ). T his authorizes a special grand ju ry, on completion of its term, to subm it to the court a report concerning noncriminal misconduct, malfeasance or misfeasance 

in oflice involving organized criminal activities by an appointed public 

officer or employee, as the basis for a recommendation for removal, disciplinary action, and so forth.

1 have changed the verbs around somewhat, and my bill, II.R. 16816, 

would authorize the special Wate rgate gran d jury to submit to the 

court a report concerning offenses against the criminal laws of the 

United States, and noncriminal misconduct, malfeasance or misfeasance in oflice by elected or appointed public officials, arising out of the 

unauthorized entry of the Democratic National Committee Headquarters, and so forth.

From that point fo rward I have set forth the language which is included in the Cha rter of the Special Prosecutor, the language which 

appears in the Federal Register, and under which Jaworski is 

operating.

So, the bill is, in effect, a combination of the thrus t of section 3333 

of title 18, giving auth ority to the grand jury to make a report, and of 

the Charter of the Special Prosecutor, describing the parameters of the 

subject matter of the investigation. Beyond that it docs not depart 

from any existing law, it’s within the public policy of the United 

States, and I respectfully submit, should probably experience less 

resistance than any other form of legislation because we are not entering into new ground, we are simply providing that th e existing Watergate gran d jury may exercise a reporting function which is already 

conferred upon special gran d juries and within the context of the 

Wate rgate investigation.

Before I depart from this page I respectfully suggest tha t in the 

event this committee should consider to report out this bill, there 

should lie one amendment. At the top of page 2, in line 1, due to my 

own inadvertence, I have set forth this language, “by elected or appointed public officials”. I had intended to have that read, “by elected 

or appointed public officer or employees” as is set forth in section 3333 

of title 18. And in the event the committee should see fit to report this 

bill, I would urge it make a comparable amendment.

Mr. II ungate. Pardon me, Mr. Danielson, would you run throu gh 

that again? As I understand it, you say tha t the special grand jury in 

the normal course of events would have authority to file this sort of 

repo rt to which you allude.

Mr. Danielson. That is correct.

Mr. II ungate. And the Wate rgate grand jury does not have such 

authority.

Mr. Danielson. Th at’s correct.

Mr. II ungate. Now, can you-----

Mr. Danielson. There are very slight technical differences. They do 

not go to the substance of the authority, but they go to the fact tha t 

legally this grand jurv will not have th at authority in the absence of 

new legislation. By “this gran d jur y” I mean the Wate rgate grand 

jury.

In chapter 216 of title 18, it’s a short chapter, four sections, 3331 

’through 3334,^the Congress, this committee, in the big criminal law 

.revision of 1970 provided for special grand juries in districts having 

^populations exceeding 4 million, and so forth.
65

Mr. II ungate. The Safe Streets Act, was tha t w hat that was?

Mr. Danielson. Yes, that’s righ t. And all I ’m doing is taking— 

I have plagiarized the language of tha t chapter deliberately so tha t we 

are n ot invading new ground as to policy, and have blended the Safe 

Street Act provisions in chapter 216 of title 18 with the Charter of the 

Special Prosecutor. Tha t's what we have before us here. That would 

authorize this grand jury to make tha t type of a report.

Now, the benefit of it is, we would, permit the Watergate grand 

jury to make such a report, and it would satisfy at least something 

tha t's consuming to me. It woidd satisfy our need to have a permanent 

public record of the full story of Watergate.

Mr. Smith. Would the gentleman yield ?

Mr. Danielson. I would be pleased to yield.

Mr. Smith. As I read section 3333 here, it concerns a report of a 

special grand jury in regard to organized crime. Is that right?

Air; Danielson. That's right. Now, the W atergate grand jury—I’ve 

often been wrong, so I will not say I can't be wrong again—but as I 

read it, the Watergate grand jury does not have this power that an 

ordinary special grand jury would have. And the thrust of my bill is 

to give the Watergate grand jury the power granted to special grand 

juries in title 18, sections 3331 and following. Tha t's the th rus t of the 

whole bill.

Now, I noticed with great pleasure the news this morning, indicating th at President Ford has agreed to appear before this distinguished 

subcommittee at a convenient time, and I am very pleased to hear that. 

I commend the chairman and the committee for their efforts of having 

his appearance. But, I would be less than frank if I didn’t state, along 

with that, I feel a small degree of apprehension, and I wish to at least 

communicate that to this committee.

I feel this degree of apprehension. We all know th at President Ford 

is one of the most charming, most frank, the most open, the most congenial personalities that ever served in the House of Representatives; 

and I wish to issue a caveat, I wish to caution this subcommittee that 

you may be standing in the position of the farmer’s daughter. I would 

say, beware of Presidents who come with a broad smile because Mr. 

Ford’s charm is so great,-and his openness and frankness upon which 

the chairman commented is so well known that I'm fearful tha t in 

the explanation tha t this was all done in the “spirit o f mercy” we may 

subsume the whole concept of preserving the Watergate story in a great 

warm feeling of camaraderie. So, I would ask that the farmer's 

daughter be very alert in the forthcoming hearings.

Mr. Dennis. Will the gentleman yield ?

Mr. Danielson. Yes.

Air. Dennis. I would like to ask my distinguished colleague who sat 

on this committee with me for many weeks and heard what I believe 

is practically all the evidence on the subject of AYatergate, whether he 

personally has any reason whatsoever to believe that there is.anything behind the pardon other tha n mercy and justice, as conceived by 

the President of the United States.

Air. Danielson. I will be very frank, and I appreciate the question 

of my colleague from Indiana, I don’t thin k there is much of anythin g else behind it.

Mr. Dennis. Frankly, I say to the gentleman, I don't think there is 

anything else behind it.
66

Mr. Danielson. Well, maybe I can respond more explicitly. I think 

we are in total harmony, Mr. Dennis, I don't know of anything else 

behind it, and I will not assume th at there is anything else behind it. 

My own analysis, my very honest analysis is that overwhelmed by a 

feeling of compassion—and I say overwhelmed to the extent that it subordinated any other consideration—but on the basis of compassion, and 

mercy, and humanity, and being overwhelmed thereby, I think tha t the 

gentleman goofed. I think he shot from the hip when lie should have 

taken careful aim.

Now, I am not impugning the Pres iden t’s motives when I say that, 

I'in only intending to emphasize th e fact tha t he was carried away; 

and I think that is a weakness th at all of us are subject to, including 

myself. I just think that we must keep our powder dry in those 

situations.

Mr. Dennis. Well, I'm addressing my remarks to the suggestion 

tha t there is something he could fool us about. Supposing the gentleman is right —and I disagree with him—but supposing he. is righ t that 

this was premature, and a mistake, and so on. There is still nothing to 

hide.

And what I am wondering is why the gentleman and other Members come down here and suggest tha t here is, or suggest tha t we 

have to be alert, that somebody is going to pull the wool over our 

eyes. I’m not worried about that.

Mr. Danielson. I thank you for raising this point because I want to 

assure the gentleman from Indiana th at I don’t think anyone is going 

to pull the wool over our eyes, which in my mind implies an intent to 

deceive; and I don’t thin k that there is, within the President, any 

trace of the intent to deceive.

I do th ink t ha t we have an expansive personality, a warm personality which might be subject to the human frailty of being carried 

away from time to time, and th at is the condition th at I seek to guard 

against. The gentleman from Indiana could not possibly get me into 

an argument on this point because I agree with him fully.

Mr. II ungate. Does the gentleman have further comments on his 

statement ?

Mr. Danielson. On the statement I do have this—I set it forth in 

detail—and I don’t know what me rit would be served by my repeating 

it here. I know that this subcommittee studies these statements 

assiduously.

I would like to assure two of my colleagues, at least, who I know are 

always guided by the principles of civil rights, the human rights, th at 

this bill has three purposes which are set forth at the bottom of page 1 

and the top of page 2 of my statement, and then expanded on through 

the rest of the statement, namely:

1. To produce a complete disclosure of the Watergate affair and 

everything connected with it;

2. To protect the rights of all persons who participated in tha t 

affair, including the rights of former President Nixon. Civil rights 

should be fully protected; and

3. And this is probably the most im portant reason why you should 

consider this bill—a full compliance with the Canons of Professional 

Ethics of the American Bar Association, by which I submit Special 

Prosecutor Jaw orski is bound and guided, and all attorneys are bound 

and guided.
67

The essence of that last point being this, prosecuting attorneys may 

not air their feelings, their personal opinions, on the result of their 

investigations in the arena of public relations. They are under an 

inhibition against making public statements tha t are not backed up 

by an indictment or information in a prosecution. Their forum is 

the courts. They are under an injunction not to communicate to the 

public throu gh the normal channels of communication, but only 

through criminal process.

Now, Mr. Jaworski is very mindful of that restriction on his conduct. and I think that’s why he respectfully declined to comply with 

the request of certain Members of the other House. But, this bill of 

mine would relieve him of th at responsibility and tran sfer the reporting function where it belongs, to the grand jury. We have precedents 

in our existing law for this type of procedure. There are ample safeguards, I invite the committee to study them. The safeguard tha t the 

judge receiving the report of the grand jury may examine it, he must 

first determine that no pending prosecutions are going to be pre judiced; he must determine tha t the due process has been offered. It's 

a system that has built-in safeguards, and I think it would be a valuable route for this committee to follow in this effort that we all have 

of preserving the record of the Watergate.

I have no other affirmative statement. I f any of the members would 

like to ask a question, I ’ll do the best I can to answer it.

Mr. Hungate. I thank the gentleman for his usual thorough and 

helpful job, and we will proceed under the 5-minute rule. Mr. Smith?

Mr. S mith. Thank you.

I want to thank my colleague from California for coming today, this 

is an interesting proposal in your bill. I have a question on the section 

which says in effect, “If such report makes critical reference to an 

identified person, such person shall be afforded the same rights and 

privileges as are afforded to a public officer employed under section 

3333 of title 18.” Then it says, “Provided tha t the subject matter of 

such critical reference will not be resolved”, and so forth.

Is it your intention by th at proviso to say in effect th at if a report 

makes critical reference to an identified person and the subject matter 

of such critical reference will not be resolved in a judicial proceeding, 

tha t the report shall be made in any event, without the rights of due 

process which section 3333 of title 18 grants in the present cases?

Mr. Danielson. As I understand the gentleman's question, here 

would be my answer to it. Section 3333 provides for a report on misconduct, or malfeasance, in a situation in which a peison identified in 

the report would not be subject to prosecution, or is not going to be 

prosecuted, in a criminal proceeding.

The separation here is as follows: If the person whose activities are 

within the repo rt is going to be prosecuted, then the court is the arena 

to which this evidence or inform ation should come forward. But, if 

the person is not going to be prosecuted, then there is nothing in our 

procedure which enables a report to be made. Now, we have that in the 

existing situation, in the Watergate situation. We have a number of 

parties to the Watergate who have been granted immunity, they are 

not going to be prosecuted on the items on which they got immunity.

We have a former President who has been pardoned. He will not 

be prosecuted, he can't be prosecuted. I submit. So. his activities could 

be included in the repo rt of the special grand jury.
68

Now. I'm not going to try to tick off a list of those who have been 

granted immunity, I can't remember them. There are a number of 

people who may not have been granted immunity or a pardon, but 

who, nevertheless, for whatever the reason, the judgment of the prosecutor, are not named as defendants in a criminal proceeding. The main 

difference is this, if their participa tion in the Watergate iS to be 

resolved through an appropriate judicial proceeding, then that's the 

channel through which the information should be made public. But, if 

they are not to be in a judicial proceeding, then the special grand 

jury's report would l>e the vehicle for making these records public.

Mr. Smith. Well, I understand the gentleman, but it looks to me as 

though the present section 3333 allows tha t due process of appearing 

before the grand jury, and so forth, whether there is to be a resolution 

by judicial proceedings, or not because the report in tha t case, under 

present law, is in regard to organized crime conditions in the District, 

for instance.

Now, it’s very likely tha t the report might name certain identified 

people, but they will not be prosecuted, but they are then given a 

chance and opportunity under the present law of appearing, and «

explaining, and doing all these other things.

Mr. Danielson. Well, I would like to say, if I may, that it was my 

intent in drawing the bill—and I did have the assistance of legislative 

counsel in doing so—it was my intent, it was mv desire, and I want 

tho record to reflect this, that a person who may be named in a report 

of the gran d jury will have an opportunity to appear on his own 

behalf if he chooses to do so. T hat is provided for in section 3333. He 

may call witnesses if he chooses to do so. so that his side of the story 

can be told. And as a matter of fact, he would also have the righ t to 

file a report, a written report, which is in effect his own answer to the 

proceedings, if he wishes. The section 3333 provides some excellent 

civil rights safeguards. And it is my intention in II.R. 16816 to incorporate all of those safeguards which are in 3333. into 16816.

Mr. Smith. Well. I appreciate the gentleman's saying tha t. It seems 

to me however th at your clause as provided in section 2 negated some 

of that due process that you had provided in section 2.

Mr. Danielson. 'Well, if the gentleman please, it was not my intent 

to negate, in fact, it was my intent affirmatively to guarantee those 

protections to the person named. I am glad that the record of the committee will reflect that fact.

I might also point, out th at on page 5 of my w ritten statement when 

you get down—well, substantially all of page 5, I ’ll quote a little bit 

of it. *

As you know, Title I of the Organized Crime Control Act passed in 1970. provides th at the grand jur y may sub mit a report to the cou rt on non-criminal 

activities of a public official provided th at cer tain protective procedures are 

observed. Those procedures which are set forth in 18 U.S.C. Sec. 3333. are incorporated fully into my bill by reference. My bill provides th at any person who is 

named in the report, bu t who has not been indicted, will have the opportunity 

to call a reasonable number of witnesses on his own beh alf l>efore the grand 

jury. He is f urther entitled to p repare an answer to the report conta ining a sta tement of the law and facts which con stitute his defense to the charges made in the 

report. The report must be supp orted by a preponderance of the evidence. The 

court would furth er have the autho rity to seal the report if due process has not 

been complied with, or if publication of the report would prejudice the fair 

consideration of any pending crim inal matter.
69

So. my point here is simply to provide a vehicle through which the 

record of the affair on which we have been so long working, the M atergate affair, can lx* piTserved for all tim e; but at the same time to provide every conceivable safeguard to the persons who may be named 

therein. #

.

If my language in IT.lv. 16816 is a bit inarticulate, it it can be 

improved upon—and 1 m sure it can—by this subcomittce, I welcome 

that improvement, and would urge the subcommittee to take whatever 

steps are necessary to insure this protection of the rights of innocent 

people.

Mr. Smith. I appreciate the gentleman's statement.

Mr. 1 Ivxgate. The gentleman from Wisconsin, Mr. Kastenmeier.

Mr. Kastenmeier. Thank you, Mr. Chairman.

I would like to complement my friend from California for a very 

persuasive argument why the grand jury, rather than the Special 

Prosecutor, and for taking the initiative he has.

I have only one or two questions. Fir st, in order to achieve what you 

intend to, to'make the full story of Watergate a public record, what is 

necessary? I ask this because I thin k there are some people who say, 

“Well, isn't the full story already known” ; “H asn't the Senate Select 

Committee on Campaign Expenditures for 2 years, and the House 

Judiciary Committee, and public disclosure throu gh reporters, and 

other transcripts of cases which now may be in part, or fully public, 

isn't this enough to constitute a full story.” And, “Why is it that only 

this particular report is asked for to complete it, what about the tapes 

tha t remain in the custody of the government, ought they not be 

revealed to tell the full story, those tha t have not yet been disclosed."

In other words, what is your answer as to why you selected this 

precise instrument to complete the full story, the disclosure of Watergate to the public ?

Mr. Danielson. Tf the gentleman please, I am not so confident as 

to assume that this would tell the absolute, 100 percent, hermetically 

sealed, full story. But. it would tell a great deal more than the public 

record today will tell. Hopefully it would tell a great deal about the 

tapes. Perhaps it would not bring in all of the 150. more or less, tapes, 

which this committee subpenaed and which were not produced, but 

there are many tapes at least, and the transcripts of many tapes in 

possession of the Special 'Watergate grand iurv which are not a n art 

of the record of this Judiciary Committee; they were not a pa rt of the 

record of the impeachment hearing, and I don’t know where else they 

are a record. But at least my goal would be to reach those, if not for 

the sake of the media, publicity, at least that they be preserved for 

posterity so that at an appropriate time they could be examined, for 

the guidance of our Government in the future.

Now, I would say this, even though this remedy may not—though 

T will no concede that it does not—but it may not reach the entire 

story. Tha t is not an argument to persuade us that we should not go 

this far. Should we not take one step simply because we can’t complete 

the entire journey? I don’t agree with that. I think we should go as 

far as we can, and I respectfullv submit that, preserving, and making 

a record of the entire information before this Watergate grand jury 

will be a huge step in the direction of preserving as much as possible 

for history.
70

Now, I'm a natural-born optimist. I ’m hopeful tha t as this story 

continues to unfold, and as the grand jury continues in its work it will 

obtain more and more of the entire story, and at least to tha t extent, 

let's preserve those pieces of the story for the benefit of the American 

people. I would like to go furthe r, and I don't have so much pride in 

my authorship tha t I would resist any amendments. If you know some 

way th at you could expand the thrust of the bill, or draw a separate 

bill which would reach the entire picture, you would have a very 

ardent supporter in me. I would favor that.

But, this is as far as I know how to go at the present time. And also, 

I have to be mindful of the fact that it’s one thing to draw up a bill, 

it’s quite another one to get it throu gh the Congress.

Mr. K astenmeiek. Yes. And I ’m sure my friend apprehends that I 

ask the question not because I disagree with him, but because the 

question is there, and it does constitute the full story of Watergate. 

Why is this a reasonable initiative to achieve a rather illusive goal, 

perhaps, in that connection.

Mr. Danielson. Well, I think, that which is implicit in the gentleman’s question is something—I think we are in full agreement. 1 

would like to go farthe r and obtain the entire story. This bill is not 

intended to be k

‘the” answer to tha t question. I t is intended to be “an” 

answer to a part of tha t question. But, it would bring into the public 

record, into the public archives, a vastly greater sum of information 

than we now have in the public archives, and 1 think that’s a worthy 

goal, and that’s why 1 urge the adoption of this type of legislation.

Mr. Kastenmeier. I thank my friend for his answers, Mr. Chairman.

Mr. Hungate. The gentleman from Indiana, Mr. Dennis.

Mr. Dennis. Thank you, Mr. Chairman.

Mr. Danielson, as you point out on page 5 of your written statement, 

section 3333 does apply to noncriminal activities of public officials, 

the thrust of the section being tha t in these organized crime matters 

particularly such a report can be made where for one reason or another 

you can't retu rn an indictment.

Your bill, on the other hand, applies also to offenses against the 

criminal laws of the United States, as well as to noncriminal misconduct. So, i t’s really quite a different thing from section 3333, which is 

directed at noncriminal activities, is it not ?

Mr. Danielson. Well, I respectfully submit it's directed at both 

criminal and noncriminal. Fo r example, subsection 2 of subsection (a) 

authorizes a report to include inform ation regarding organized crime 

conditions, for example.

Mr. Dennis. Yes, but tha t is not directed as against any identified 

person. I f you will look under B-2, tha t report is supposed to be not 

critical of an identified person, that’s directed at general conditions. 

And, as far as individuals are concerned, I submit to you 3333 deals 

only with noncriminal activity.

Mr. Danielson. The gentleman is correct. I wish to disabuse the 

gentleman, or any Member who may have the impression that I'm saying that this bill I have before you is identical with section 3333, they 

are addressed to different purposes. Section 3333 is addressed to the 

situation of organized crime more than anything else. H.R. 16S16 is 

addressed to only one thing, the whole milieu of Watergate. I only 

wish to point out that I have plagiarized a substantial part of the
71

language of Section 3333, and have melded it with the charter of the 

Special Prosecutor in order to avoid creating new, foreign, u nfam iliar 

language for this committee, and the full committee, and the Congress 

to adopt. The bill tha t I have before us is not directed at what we normally 

think of as organized crime, or any crime. I'm just using a set of verbs 

as a frame of reference with which we are already familiar. This is 

directed at a very specific thing, the bill before us is, and it isn’t orga ­

nized crime. And, bear in mind one other litle thing, at the bottom of 

page 2 of tho bill, “It ought to be eminently clear here,” and up there 

also, lines G and 7 of page 2. We have the unique situation, a former 

President has been pardoned—and I ’m not going into the merits 

whether he should or should not have been pardoned, that’s another 

subject—but he has been pardoned, he has been granted an immunity 

tha t is a pparently impenetrable. So, could you even say that there is 

any criminal activity ? Let’s just assume, only for the sake of debate, tha t the facts would 

show that former President Nixon was responsible for some ordinary 

criminal activity. Under existing law there is no way t hat you could 

make tha t activity criminal because, apparently, the pardon is full, 

complete and unconditional. But nevertheless, the conduct is conduct 

which under ordinary circumstances, and under my hypothesis, would 

bo criminal.

Mr. Dennis. Well, I certainly agree with you that the section 3333 is 

directed at an entirely different situation from your bill, and tha t's 

why I query, I guess, why section 3333 procedures are appro priate for 

this essentially different situation. I point out to you, for instance, to take advantage of the civil rights 

safeguards provided in section 3333, you would now have to practically 

have a minitrial before the Watergate grand jury, held in secret, in 

order to do tha t because the person who would be named, and the 

witnesses he would want to call, and so on, have not presumably 

appeared before a Watergate grand j ury at this time.

So, you would have to start back and go all over, conduct a trial 

lief ore a grand jury in order to even invoke the safeguards of section 

3333 which you rely upon. Isn’t that true ?

Mr. P anielson. Well, there is a great element of tru th in the gentleman’s question. I ’m thinking of the concept of due process, of the 

concept of civil rights. Due process is, as I understand it, i f you want 

to reduce it to a very simple level, is that a person should have notice 

of anything tha t is charged against him, or sought to be charged 

against him ; he should have an opportunity, the right and the opportunity to appear and tell his side of the story. I n other words, nothing 

should be done behind his back, it ought to be out in the open. Now, 

if a person has a right to appear and doesn't appear, after he's gotten 

notice, th at’s his judgment. But he should have the right to app ear; 

he should have notice; he should have the r igh t to call witnesses on Ins 

own behalf. When wo have achieved those ends, I submit, we have 

achieved due process. Now, I admit th at is a pretty simple exposition of due process, bu t 

I ’ll also submit that it is about right. That’s the essence of due process, 

notice; opportunity to appear; opportunity to call witnesses on your 

own behalf; opportunity to respond with facts and law, in other 

words, a chance properly to defend yourself.
72

Mr. Dennis. Well, the chairman tells me mv time is elapsed, so I 

won’t-----

Mr. Danielson. I f I had time to yield to the gentleman, I would.

Mr. Dennis. I ’m sure the gentleman would, and I appreciate his 

courtesy. I think he and I did a fairly good job to bring the facts of 

this matter out already, that’s another one of the reasons which makes 

mo doubt the necessity of tho gentleman’s measure. But, I than k the 

Chair.

Mr. ITungate. The gentleman from California, Mr. Edwards.

Mr. E dwards. Thank you, Mr. Chairman.

I thank the gentleman from California for his very impo rtant contribu tion this morning. The information that you would like to see 

made public has to do with criminal activity tha t is somehow or other 

protected from disclosure, or from the criminal justice system either 

by the President’s pardon, or by immunity; is tha t correct?

Air. Danielson. Well, if the gentleman pleases, it goes a little further 

than that. You will find t ha t on page 1, lines 9, 10 and following, I 

not. only talk about offenses against the criminal law, criminal activity, 

but I also speak o f noncriminal misconduct, malfeasance, or misfeasance in office. As the gentleman knows, this includes a much broader 

spectrum than criminal.

I ’ve been a prosecuting attorney, I have handled the grand jury, the 

Federal Grand Ju ry for the Southern District of California during 

one term of court, and I know full well th at our procedures then are 

followed in many courts today. There are many cases which come to 

the attention of the prosecuting attorney and the grand jurv which 

for one reason or another do not become the subject of an indictment.

Just the good judgment of the U.S. Attorney oftentimes results in a 

decision that the ends of justice would not be furthered by prosecution, 

even though, technically, there may be a violation; many situations 

come up. Likewise, t hat which starts off as an apparen t violation of 

the criminal laws, turns out to be. when you get into it further only 

some very unsavory conduct, something that would not become a public official at all, as a m atter of fact something that would be d etrimental to good government, but it falls short,, for one reason or another. of being an actual violation of the criminal laws; so, there is no 

prosecution. But, it would be noncriminal misconduct, or malfeasance, 

or misfeasance in office by an elected or appointed officer or employee.

So. it reaches fu rther. I would think the entire milieu of Watergate, 

as this committee has read it, seen it, heard it for months. There are 

many situations in which the conduct of somebody in our government 

was abhorrent to the principals to our government, was detrimental to 

it, but they might not reach the level of criminal misconduct. And I 

think tha t there should be, as a great civics lesson for all time, for tho 

people of the United States, there should eventually be a public 

record of this, as a guide i f nothing else, to what we expect from our 

public officials in tho future.

Mr. Edwards. You are talking more about what a congressional 

committee is supposed to do in its oversight responsibilities, rather 

than the traditiona l role of the grand jur y; isn’t that correct?

Mr. Danielson. I definitely am speaking of something in addition 

to the traditional role of the grand jury. The traditional role of a 

grand jury under the Federal Rules of Criminal Procedure does not 

permit a report. The portions of our Federal Rules of Criminal Pro-
73

cedure relating to the regular grand jury, the standard grand jury , 

are not even in our codified criminal code, they are in the Federal 

liules of Criminal Procedure under rule 6, and there is no provision at 

al I for a report.

1 can remember many, many, many times when I was a prosecuting 

attorney, we had a very distinguished judge in the southern district 

of California, Judge Leon Yankwich who, every time he impaneled 

a grand jury, gave them about an hour long lecture on the fact tha t 

they were not comparable to a California State grand jury, entitled 

to explore into every ramification in government, and report on anything they want. They could not become a runaway grand jury, but 

they must confine their reports to violations of the criminal laws of 

the United States.

Now, tha t is our traditional role of a grand jury under Federal 

Criminal Procedure. But, the Organized Crime Control Act of 1970, 

in which I find section 333,3 of title 18, puts in this other element of a 

report on noncriminal conduct.

Mr. Dennis. Would the gentleman yield to me briefly for a 

comment ?

Mr. Edwards. Yes. Of course I will.

Mr. Dennis. 1 don't want to take your time. T just want to observe 

that there is a good reason for not having the Federal gran d juries 

liave a right to issue reports, normally. And the reason is tha t the ir 

business is not to accuse people unless they’ve got a criminal offense. 

We all know that the grand jury usually reflects the prosecutor. And 

if you get gran d juries going around making general borrowed condemnations of the American people, what you are really doing is 

just letting some U.S. atto rney somewhere say what he thinks is moral 

and righ t, and condemning everybody tha t disagrees with him. And 

th at ’s why we don't let them do that.

Mr. Edwards. Let me follow that up with an observation that 

bothered me. We have the prosecutor, Federal prosecutor arranging 

for immunity with a p articula r witness who is probably subject to the 

criminal justice system for a crime.

Mr. Danielson. Who would otherwise be.

Mr. Edwards. He makes a deal, we'll call it a deal with the prosecutor th at he gets immunity, but usually he gives something in return, 

and t ha t is his testimony. So, immunity is granted. But now we come 

along and pass a law that allows the g rand jury to make an end run 

around the gra nt of immunity and it all comes out anyway, and the 

person who lias been granted immunity has, as our colleague from 

Indiana described, a minicriminal tr ia l; but it's without the safeguards 

tha t the criminal justice system would offer.

Mr. Danielson. I'm most pleased that my colleague from California 

is on this committee because I can assure you, Mr. Chairman, so long 

as he is on this committee, there will be absolutely no erosion of civil 

rig hts; and I favor that. However, I ’m pleased to respond to the gentleman. The gran t of immunity is not some kind of a baptism, he is not 

washed clean, it is not a fiat that this man is above and beyond all 

criticism, tha t lie has done no wrong. It doesn't make him, to use the 

old cliche, as pure as the driven snow on the chapel roof.

It merely means th at he has bartered away some testimony that he 

might otherwise have withheld or given, and he has been given a pass,
74

a weekend pass, he doesn’t get prosecuted this time. But, it is not a 

finding that he is above reproach. He may have been guilty of the most 

horrible conduct, the most terrible conduct. And the fact tha t he doesn’t 

have to go to jail, he doesn’t have to stand tria l, is quite a benefit, and 

he has found it worthwhile. He is willing to give up his testimony in 

exchange for staying out of the prison, or the jail, or whatever it may 

be.

I'm not going to go into the merits of immunity. As a m atter of fact, 

I'm not satisfied tha t our immunity statutes serve a real good purpose 

in the long run. There is something about the immunity statutes tha t 

reminds me very much of coercion, it’s almost like a gun at somebody’s 

head: you testify, or else. I don't like that, a nd I don’t think that the 

gentleman likes that either.

But, we shouldn’t be so naive, or so super-hyper conscientious as to 

deceive ourselves into thinking t ha t because somebody got immunity 

he is thereby innocent above reproach. He isn’t even pardoned. He may 

be a scoundrel, but he’s gotten immunity and therefore he can’t be 

prosecuted.

All I seek, and all tha t we have a r igh t to seek is th at the tru th be 

known. The Watergate situation struck so close to the heart of our 

system of free government th at I submit that the least we can do is do 

our very best, to take every necessary, reasonable step to preserve all 

of the evidence and all of the stories of these events for future 

generations.

Believe me, sir, the wounds of Watergate are still festering, and they 

will never heal unless we lance them open and drain them out, and 

let them heal from the bottom up, otherwise they are going to scar 

over and we will never have recovered, and our country will never be 

as good as it used to be. We must bring this story out, and we must 

do it as effectively and completely as possible.

Mr. Edwards. Than k you very much.

Mr. Hungate. The gentleman from Maryland, Mr. Hogan.

Mr. I Iogan. I have no questions, Mr. Chairman.

Mr. Hungate. The young lady from New York, Ms. Holtzman.

Ms. Holtzman. Thank you, Mr. Chairman.

Thank you, Mr. Danielson. I share your views th at the full story 

has not been told, the whole story of Richard Nixon’s misconduct in 

office, criminal or otherwise, and that there is additional information 

that has not yet been brought to ligh t in a number of areas.

I think that what you are groping for here is the most appropriate 

vehicle for documenting the story in its entirety, or as much of the 

entirety as we can figure out getting at this time. I gath er it is your 

impression t ha t to empower the Special Prosecutor to make that kind 

of report would violate the canons of ethics and would create a problem. In other words, it ’s an undesirable route, and possibly an improper route to require the Special Prosecutor to make the kind of 

report you are asking the grand ju ry to make.

Mr. Danielson. Yes, I do. The answer precisely is “Yes.” I would 

like to elaborate briefly.

This ties in very much to the comments of the gentleman from 

Indiana, Mr. Dennis, relative to the role of the grand jury; and incidentally, I want to associate myself with those remarks. Unless we 

have some safeguards, he pointed out a very critical thing. An over-
75

zealous U.S. attorney, one who might seek publicity, or whatever, or a 

vindictive sort of person, could very easily bring prosecutions against 

someone against whom there should be no prosecution. I thin k th at it’s 

important th at we have these restrictions.

Now, on the whole story-----

Ms. II oltzman. Th at’s a separate question, whether or not the 

grand jury is the proper vehicle for it. W ha t-I ’m asking is: in your 

judgment, is the Special Prosecutor not the proper person to be charged 

with the duty of making a report ? Is th at your basic conclusion ?

Mr. Danielson. That is my belief. If the gentlewoman would please, 

I would like to point out on pages 6 and 7 of my w ritten statement, on 

page G, canon 7, the canons of professional ethics of the American 

Bar Association provides th at: “A lawyer should represent his client zealously within the bounds 

of the law.” Now, that's a first position. W ithin the bounds of the law 

means to me not only th at he may not violate the law himself, but that 

his client may not, with his cooperation. And then we go on to the American Bar Association’s disciplinary 

rule No. 7, on page 7 of my statement, and you find tha t the areas in 

which an attorney is associated with the investigation of a criminal 

matter—and I expect tha t includes Mr. Jaworski in this case—may 

not make public statements except as provided hero in canon 7:

A lawyer par ticipa ting in or associated with the investig ation of a crim inal 

matter shall not make or partic ipa te in making an extra jud ici al statem ent th at a reasonable person would expect to be dissemin ated by means of public communication and th at does more th an state w itho ut elab oration:

(1) Inform atio n c ontained in a public record.

(2) That the inv estigation is in progress. (3) The general scope of the investigation including a description of the 

offense, and, if perm itted by law. the iden tity of the victim. (4) A request for assistance in apprehending a suspect or assista nce in oth er 

matters.

(5) A warning to the public of any dangers.

I feel that Mr. Jaworski is governed by that. I f I were in his shoes I 

would be governed by that, and I thin k my bill seeks to achieve the 

purpose which needs to be achieved without violating these rules.

Ms. I Ioltzman. And you think a report of this natu re that would lie 

submitted by the Special Prosecutor to the court, for example, would 

be an extrajudicial statement that would be prohibited by t ha t canon 

tha t you quoted ?

Mr. Danielson. I feel th at it would, ma’am. I feel tha t it would to 

this extent, using the words “extra judicial statement.” I ’m of the 

belief tha t this was drawn up and intended to encompass only a matter 

directly related to an information, or an indictment, in other words, a 

criminal prosecution, rather than some collateral matters.

Ms. II oltzman. Well, let me ask you another question, then. Why 

do you think tha t the grand jury is a better vehicle than, let’s say, a 

commission for the purpose of documenting the record ?

Mr. Danielson. Well, I respond as follows: The grand jury is 

already in existence; the grand jury is the body which has heard this 

testimony for—I don’t know how long, 18 months, or more. They have 

the records, they have the information. It would seem to me it would 

facilitate the communication if they made a report, rather than delegate it, again, to someone else.
76

Ms. Holtzman. I ’m not necessarily disagreeing with you, but I 

thought it important to get some of your views on the record. I have 

one additional question which is-----

Mr. Danielson. May I, ma’am, inte rrup t, I would like to state 

another good reason to leave it with the grand jury. We have all had 

experience with commissions. I f the new commission were now to be 

appointed, would we not have the samo situation as when a President 

appointed a commission to study the John F. Kennedy assassination; 

or when one was set up to study the causes of civil unrest, and the like.

You are immediately subject to criticism. Well, they picked a few 

old cronies here, and a few old cronies there. This g rand jury is just 

“Mr. and M i' S . District of Columbia,” they are citizens taken from 

every walk of life; they have already demonstrated they do a fairly 

good job. In fact, I'm proud of the way they have done their job, I 

thin k it ’s excellent. I think they are the logical people to make a report, 

and it would shorten time so much, they already have it, they don't 

have to seek it out.

I appreciate the gentlewoman yielding to me there.

Ms. II oltzman. 1 just have one final question—I have a few others, 

but this is something else that concerns me perhaps a little bit more 

than others. Why is the grand jur y’s report not limited simply to 

Richard Nixon?

The reason I ask you this is t hat if the grand jury were to come 

forward with a repo rt respecting offenses against the criminal law 

of the United States in this whole area of jurisdiction, it may be that 

tho grand jury would come out with a report tha t some person had 

committed, in the grand jury’s opinion, a criminal offense, even though 

tha t pei'son may well have been acquitted in a trial.

Is it the focus of what you are saying tha t we want a report documenting Richard Nixon’s activities, rath er than everybody else's, or 

am I m isinterpreting your statement ?

Mr. Danielson. I hope I can remember all of those questions 

because they are good ones. But, you mentioned one, suppose this 

grand ju ry should report that Mr. X was engaged in criminal activity, 

but he's already been tried and acquitted.

If he has already been tried and acquitted, he must have been 

charged, an indictment has already been brought, or an information, 

li e’s been tried, he’s been acquitted. The very fact that the grand jury 

brought an indictment in the first place is a report by the grand jury 

tha t they believed him to be quilty of criminal misconduct, otherwise 

they couldn’t bring in the indictment.

So, I think tha t tha t question sort of answers itself.

I don’t know that I can remember all the subdivisions of the questions. Would you give me another one ?

Ms. Holtzman. It was really pa rt of a question asking whether you 

really wanted the report limited to Richard Nixon’s misconduct.

Mr. Danielson. No, I do not want it limited to Mr. Nixon, I 

definitely do not. I don’t want this even to a ppear tha t it ’s limited to 

Mr. Nixon, though he is included.

For example, when the entire story is told, I ’m just certain that there 

will be evidence that other persons participated in some of the activity 

involved. Let’s use something with which we are all familiar, not
77

necessarily to point a finger, but to illustrate because we already know 

these things.

We know tha t Mr. Strachan, for example, participa ted in some of 

the activities, though he was not a policymaker, he was an implementor 

for Mr. Ilaldeman. We already know about Mr. Strachan, so I don't 

hesitate to use his name. Now, there may be others in similar capacity 

who carried out the instructions of people at a higher level. Now, at a 

certain level you cut off the investigation because they are just supernumeraries. But, there is a level of employee, implementer, which is 

below the policymaker and above the taxicab driver who probably 

should be brought out. We have to delegate that to someone, and I 

think the grand jury is the righ t person.

We all know a name, we know a Larry Iligby. Now, in our long 

deliberations Mr. Higby’s name came up frequently. He was appar ­

ently one or two steps down the ladder from Mr. Strachan, but in tha t 

same chain of command. I don’t know, I ’m not taking on Mr. Iligbv, 

I ’m trying to give you an example.

Maybe a full story would name such a person. Maybe it wouldn’t. 

Now, if it didn't and I were Mr. Ilig by, I would be highly pleased 

because once th at story is out and it shows I ’m not involved, it doesn t 

name me, I could for all time point to tha t report and say, ‘‘Look, 

they told the whole story, and I'm not named.”

I remember now the first pa rt of the lady’s question, tha t she does 

not believe the whole story has been told, and I don’t either. But, I 

don’t know that it hasn’t been told, and I think tha t’s one of the values 

of th is report. I have no fear of any consequences if the whole story 

is told and establishes only tha t which we already know about it. In 

other words, if it goes no further than it has. I ’d be happy. I do not 

believe that to be the case.

But, if someone could reassure me and the American people for all 

times that the whole story has been told, think of the speculation we 

would avoid. People are still, today, debating who killed John F. 

Kennedy. Let’s tell the whole story.

Mr. Hungate. The time of the gentleladv has expired. I yield 2 

minutes of my time to the gentleman from Wisconsin, Mr. Kastenmeier.

Mr. K astenmeier. I than k the chairman, and I will be very brief 

because I know we have other witnesses.

But, as I read the bill, lest someone believes that this mandates a 

public repo rt in a time certain, it merely says that the gran d jury 

may, with the concurrence of the majority, submit to the court a rep ort; 

not necessarily even a public report. There is no time certain, but p resumably durin g a time during which its term may be extended by the 

court.

And therefore, even though you pass this legislation, is it not a fact 

tha t the gran d ju ry could decide not to issue the rep ort; tha t the court 

could decide not to extend its term for that purpose; or indeed, the 

court could even suppress the report, as far as making it public ?

Mr. Danielson. Let me answer those questions sequentially, if I 

can.

There is in effect—there is a practical time certain. It is not a time 

certain, but as you know from civil law, it’s considered certain if it 

can be calculated. Now, in line 6 of page 1 it says that the report shall 

be submitted “upon completion of its term.” That term is going to 

44 -2 74 — 75-------6
78

expire one of these days, it’s bound to. If not, this will be the first grand 

jury in human history tha t didn't complete its term. It's going to 

expire.

Now, it is true, the discretion is in there. Maybe the committee would 

like to eliminate tha t discretion. I submit that the committee should 

not. I submit tha t if this grand jury collectively—and don’t forget, 

this is up to the concurrence of a majority of the members—if the 

majority of the member's of the grand jury feel that they do not have 

a story that needs to be told, then I thin k they should not be compelled 

to state one.

But, if a majority does concur to issue a report, then I think they 

should have the right to do so.

Mr. H ungate. I have one brief question, and we have our colleague, 

Mr. Stark, waiting patiently.

What would you thin k about the publication of the grand jury 

repo rt filed with the Judicia ry Committee, the so-called “Suitcase 

Papers.”

Mr. Danielson. I'd like to see them. I have not been through tha t 

whole suitcase.

Mr. Hungate. Would you consider it authorized ?

Mr. Danielson. I beg your pardon ?

Mr. Hungate. Would you consider publication authorized ?

Mr. Danielson. Yes. I think they should be made available. I don't 

know if I understand your question exactly, but my attitude is, I 

think this information should be made available.

Mr. Dennis. Mr. Chairm an, would you yield for a comment ?

Mr. Hungate. Yes, Mr. Dennis.

Mr. Dennis. I would just like to point out for the record, I think 

I m correct, under section 2 of Mr. Danielson’s bill, in the event that 

the g rand jury does submit the report, then the court shall proceed as 

if it were a report submitted under section 3333-----

Mr. Danielson. R ight.

Mr. Dennis [continuing]. Which definitely contemplates publication.

Mr. Danielson. It contemplates publication, but it does permit the 

court—in fact, it requires the court to find that there was due process; 

to find tha t there was a preponderance of evidence. I think it builds 

in, it incorporates a good number of safeguards. Enough, I believe, 

even to satisfy my colleague from California, Mr. Edwards, who I 

know is assiduous in his desire to protect civil rights, and I commend 

him for it.

Mr. II ungate. The Chair would like to express the committee’s 

appreciation to the gentleman from California for his thorough job. 

I don't know where you went to law school, but I think I wish I went 

there, Mr. Danielson.

I appreciated your warn ing concerning our proceedings and the 

farm er’s daughter. In my case that warning comes 30 years too late. 

I m the traveling saleman’s son who married the farmer’s daughter.

Mr. Danielson. Well, I ’d say, don’t do it again, Mr. Chairman.

Mr. Hungate. All righ t. I shall employ all the caution I have 

learned in dealing with it.

Thank you very much.

Mr. Danielson. Thank you.

[The prepared statement of Hon. George Danielson follows:]
79

Statement of II on George Danielson, a Representative in Congress From

the State of California

Mr. Chairman, I am appearing here today in support of legislation I have introduced, II.R. 10810, to give the Watergate grand jury the authority to file with the U.S. District Court for the District of Columbia, a full report on its investigation, which would become a public record. The report would cover all matters which are under the jurisdiction of the Watergate Special Prosecution 

Force. The purpose of my bill is to assure that the full story of Watergate is told, and that the public has full access to all the relevant facts. My approach is different from some of the other proposals before the subcommittee, in tha t it calls for a report to be fded by the so-called “Watergate” grand jury, rather than 

by the Special Prosecutor. My bill is designed to accomplish three prime objectives : 1. complete public disclosure of all the relevant facts of the Watergate affair, and the actions of all the parties to th at a ffair; 2. the protection of the rights of all the persons who participated in the Watergate affair, including the rights of former President Nixon ; and 3. full compliance with the Canons of Professional Ethics of the Ameri­ can Bar Association, by which Special Prosecutor Jaworski, and all 

attorney’s, are bound.

l . complete Watergate disclosure

We find ourselves today in a situation where alm ost all of the avenues leading to complete Watergate disclosure have been closed by various legal happenings. Of utmost public importance is a full disclosure of the role in Watergate played by former President Nixon. The President is the most public of all public officials; his conduct, or misconduct, his stewardship of the office of the Presi­ dency is a matter of prime concern to all of the American people, of this genera­ tion and of future generations. The American people have a fundamental and inalienable right to a full accounting for his public trust by each and every 

President. The completion of the impeachment process would have resulted in such an accounting, but tha t was aborted by Mr. Nixon’s resignation from the Presidency. The criminal proceedings likewise would have brought about full disclosure, but they were cut short by President Ford’s pardon of former President Nixon. Even the disciplinary proceedings before the State Bar of California were terminated following Mr. Nixon's resignation from the bar, and I submit that Mr. Nixon tendered his 11th hour resignation from the bar for no reason other than to prevent the truth concerning his activities in recent years from coming to light. For more than two years, the coverup consisted of withholding evidence from the appropriate authorities. It is no longer thusly limited—it is now an attempt to conceal that evidence from history. My bill would unwrap tha t evidence, by giving the Watergate grand jury the authority to write a final public report on its entire investigation. The scope of the report proposed in my bill closely parallels the scope of the duties of the Watergate Special Prosecutor. It would include offenses against the United States arising out of the unauthorized entry into Democratic National Committee Headquarters at the Waterg ate; all offenses arising out of the 1972 Presidential Election for which the Special Prosecutor deemed it necessary and appropriate to assume responsibility; allegations involving former President Nixon, mem­ bers of his White House Staff, or his appointees; and any other matters which the Special Prosecutor consented to have assigned to him by the Attorney General. In addition, the grand jury would have authority similar to that of a special grand jury summoned pursuant to Chapter 216 of Title 18, U.S'. Code [18 U.S.C. Secs. 3331-3334], to include in its report matters relating to non­ criminal misconduct, and malfeasance or misfeasance in office by elected or appointed public officials. Title IS, Section 3333, authorizes such a report with respect to “appointed” public officers or employees; II.R. 16816 specifies “elected or appointed public officials.” The latter authority is necessary because Mr. Nixon, by reason of the full, free, and absolute pardon which was grante d to him on September 8, of this year, is probably immune, even from being charged with having committed any offense against the criminal laws of the United 

States.1

1

 Ex parte Garland, 1867, 71 U.S. (4 Wall.) 333 ,18 L. Ed. 366.
80

My bill is necessary, because in the absence of sta tutory autho rity, no repo rt 

subm itted by the Wa tergate grand ju ry could shed light on the role of Mr. 

Nixon in the Wa tergate affair. The well settled rule is tha t, in the absence of 

sta tutory autho rity , a grand jury has no rig ht to file a rep ort reflecting on the 

chara cte r or conduct of public officers or citizens, unless it is accompanied or 

followed by an indictme nt.2

 Th at is because an indictment provides the accused with a vehicle f or resolving the charges in an appro priate jud icial proceedings— 

a crim inal trial. Without an indictment, the accused cannot have the charges 

resolved.

2. OBSERVANCE OF CIV IL RIGH TS

In the past, our committee has grap pled with the problem of permittin g a 

grand jury to write a report which is critical of an individual, but which is not 

accompanied or followed by an indictme nt. As you know, T itle I of the Organized 

Crime Control Act [Title 18, U.S.C., Secs. 3331-3334] passed in 1970, provides 

that a grand jury may subm it a rep ort to the court on noncriminal activities 

of a public official provided that certain protectiv e procedures are observed. 

Those proce dures, which are set forth in 18 L’.S.C. Sec. 3333, are incorporated 

fully into my bill by reference. My bill, H.R. 1681G, provides th at any person 

who is named in the report but who has not been indicted will have the opportun ity to call a reasonable number of witnesses on bis own beh alf before the 

grand jury. He furth er is entitle d to pre par e an answer to the report c ontaining 

a statem ent of the law and fac ts which con stitute his defense to the charges 

made in the repo rt. The rep ort must be supported by a preponde rance of evidence. 

The cou rt would further have the a utho rity to seal the report if due process has 

not been complied with, or if publication of the report would prejudice the fa ir 

consideratio n of any pending criminal ma tter.

In short, the persons named in the report but who are not indic ted would 

have more rig hts with respe ct to the gra nd jury, und er my proposed bill, than 

those persons who ar e indicted.

3. TH E SP EC IAL PROSECUTOR

In an effort to clarify the record of the Wate rga te case, eight members of the 

Senate Judic iary Committee wrote a lette r to Special Prosecutor Leon Jaworsk i, 

asking th at he disclose those charges which would hav e been made aga inst 

Richard Nixon had he not been pardoned. Mr. Jaw orski, however, respectfully 

declined to lis t those charges. The Special Pro secutor’s office has announced his 

opinion th at it would be improper for any prosecuting attorn ey to exceed the 

scope of his responsibilities, which is to prosecute crim inal offenses in court, and 

not to make accusations in the are na of public opinion. Mr. Jawo rsk i’s role is 

to prosecute—not to persecute. He is guided and governed by th at principle, 

and I re spect him for it.

Moreover, Canon 7 of the Canons of Professional Ethics of the American 

Ba r Association pro vid es: “A law yer sho uld represe nt his clien t zealously within 

the bounds of the law.” Th at canon does not only mean that a prosecutor must 

personally obey the la w ; it means th at he is to represe nt his client—the people— 

only within the fram ework of the procedures which our society lias developed, 

and which has been handed down from generation to generation—the fram ework 

of our system for the prosecution of crim inal cases, the system of our courts.

In addition. ABA Disciplinary Rule 7-107(A) which was prom ulgated under 

Canon 7 provid es:

“A lawyer partic ipa ting in or associated with the inve stiga tion of a criminal 

ma tte r shall not make or particip ate in making an extrajud icial statem ent that 

a reaso nable person would expect to be disseminated by means of public communication and th at does more than sta te without ela bo ratio n:

“ (1) Inform atio n contain ed in a public record.

“ (2) Th at the investigation is in progress.

“ (3) The general scope of the inve stigation inclu ding a desc ription of the 

offense, and, if permitted by law. the identity of the victim.

“ (4) A request for assistance in apprehending a suspe ct or assista nce in 

other m atters.

“ (5) A warnin g to the public of an y dangers.”

I submit th at legislation authorizin g or dire cting the Special Pro secutor to 

make charges and public accu satio ns again st form er Pre sid ent Nixon—charges

2

 38 Am. Ju r. 2d, G ra nd J u ry , Sec. 30 (p. 976 ).
81

which cannot be brought to a judicial resolution—could very well place Mr. 

.Jaworski in a position which conflicts with the rules I have just outlined, and 

winch govern Mr. Jaworski and all members of the legal profession.

Instead, my legislation permits the grand jury to report crimes and misconduct within a framework already authorized by Federal law, and with 

ample procedural safeguards for the rights of all concerned. It would accomplish 

all three of the objectives I have outlined, and make the full story of Watergate 

a public record.

Mr. Hungate. We arc pleased to have with us Congressman Stark 

of California. You have a prepared statement, I believe.

Mr. Stark. Yes, Mr. Chairman, I do; and I ’ll try and paraphrase it.

Mr. Hungate. Without objection, we will make it p art of the record 

at this point, and you may proceed as you see fit.

TESTIMONY OF HON. FORTNEY H. STARK, A REPRES ENT ATIVE IN 

CONGRESS FROM THE STATE OF CALIFORNIA

Mr. Stark. Mr. Chairm an, I appreciate the opportunity to testify. 

As a nonlawyer, I ’m here to urge you, as Mr. Danielson did before me, 

to see t hat the American public gets the truth .

Like most of you I have received an avalanche of letters, telegrams, 

phone calls, and pleadings from my constituents since the pardon. 

They want to know why former President Nixon received special 

treatment. They want to know—does the pardon, coming as it did 

l>efore any indictment, imply tha t some men are above the law. These 

are questions that I have heard time and time again, and I think tha t 

the thread t hat runs throu gh these questions is, will we ever learn the 

whole tru th about Watergate. I would like to center my remarks on 

that p articular point because it's the crucial question, I thin k, before 

you today.

The outrage tha t followed the Nixon pardon wasn’t based, in my 

opinion, on any desire for revenge; the protests weren’t made out of 

malice. I think many Americans hoped th at the President would never 

be in danger of going to jail, but our colleagues our constituents, the 

press, they all cried out for the tru th, the whole tr uth and the complete tru th about break-ins. buggings, bribery, all of those sorts of 

activities that have come to be called Watergate.

The pardon seems to present a road block to the judicial process 

which I had felt would provide us with all the facts. Although it’s 

possible that Mr. Nixon may still te stify in various court proceedings, 

it's unlikely th at this limited presentation will yield the complete story. 

And with th at avenue more or less closed, it's up to Congress to insure 

that the public will have the full facts. The exact manner, in which 

these facts arc presented is of secondary importance. If the Special 

Prosecutor can provide us with a definitive report : if the subpenaed 

tapes are released to the public: if the House Jud iciary Committee, 

or a special select committee holds extensive hearings, any of these 

alternatives or a combination will brin g out the truth.

Now, I'm particularly pleased that President Ford has agreed to 

appear before your committee and answer your questions. ITis app earance could very well prove to be the catalyst th at will bring out the 

tru th which we all so urgently need.

I urge you to question Mr. F ord closely. With all due respect for the 

President and the Presidency, your first allegiance in questioning Mr.
82

Ford is no t to the Presi dency, no r to po litica l politeness, bu t to the 

Am eri can peop le who ar e goin g to be looking to you to find t he answers. 

I am con cerned th at Am eri can s kno w wha t crimes Mr. For d thinks 

Mr. Nixon was pa rdon ed from. L et ’s he ar fro m Pr es id en t Ford of 

his own un de rstand ing of I.T. & T., and the milk dea l, an d the use 

of CIA and F B I agents inv olved in dome stic-p olitical proce sses. W ha t 

did M r. Ford thin k was wr ong with wh at M r. Nixon did because th at 

cou ld ve ry w ell establish th e k ind o f legis lat ive his tory by whic h f ut ur e 

Pr es id en ts can be guid ed.

I ’m af ra id if no th in g else works, if it ap pe ars un lik ely th at any 

alternative cou rse will answ er all th ese legitimate qu estions, th at some 

Membe r—and if no Mem ber, th en I, will of necessity tak e to the 

floor, pri or to election, an d call up yo ur impeach me nt res olu tion as 

outlined in Com mittee R ep or t 93 -1 30 5, fo r a vote befo re the fu ll House.

Th is action, ag ain , would no t be t ak en ou t o f malice, however an impeach me nt vote a nd a t ri al in the Se nate may pro ve to be the only way 

th at hi stor y pr op erly rec ord s the se events, but I ce rta inly hop e not. 

I t hi nk t h a t’s th e position th at y ou peo ple are f aci ng. Thi s com mittee 

has lab ored wi th tou gh decisions an d aft er conside rin g all ava ilable 

da ta y ou v ote d to remove the Pr esiden t. I doubt th at th ere are ma ny 

Am eri cans who do n’t belie ve th at M r. Nixon is gu ilty of impeachab le 

offenses, an d pe rhap s con victable crim es.

Th e tr u th o f tim e is such, how eve r, th at if we fai l to pro vid e a definitiv e acc ount of the eve nts of W ater ga te they will become blurred 

an d th ei r meanin g un certa in. I do n’t wan t a Clifford Ir vin g t o wr ite 

th e sto ry of W ater ga te fo r my ch ild ren. I wa nt the Con gress, and 

I wa nt the courts to provide t he fac ts. You hav e he ard th at tim e and 

tim e ag ain th at we have a du ty to prov ide the tr uth , an d I firm ly 

believe th e Ame ric an people deserve definitive actio n f rom th ei r elected 

Re presen tat ives in Congress.

I ca n’t urge you in str on g eno ugh ter ms to proceed with yo ur inve stiga tio n, an d to exp lore every altern ative available, an d to beg in 

the con gressio nal p roce ss wh ich will br in g the facts before the Am erican p ublic in clear, concise term s. I t ’s your oblig ati on and y ou r re sponsib ility to do thus, ju st as it ’s my o bliga tio n an d mv res po nsibility to 

urge an d su pp or t wh atev er action s you decide to take.

Tha nk you fo r lettin g me ad d my wo rds to yo ur te stimo ny.

Mr. II un gate. T ha nk y ou very mu ch fo r yo ur ap peara nce, an d for 

yo ur testim on y to day, M r. St ar k.

Mr. S m ith ?

Mr. S m it h. Th an k yo u, Mr. C ha irm an.

Mr. Sta rk , I do add my th an ks fo r yo ur testim ony toda y, an d for 

th e th ru st of yo ur bill, yo ur pr op osal; and those who are asso ciated 

wi th you in this pro posed leg islation, to arriv e at, it ’s possible, arriv e 

at the t ruth of Wa tergate.

Mr. S tark. Than k you.

Mr. H ungate. Mr. K ast enme ier ?

Mr. K astenmeier. Than k you, Mr. C hairm an.

I wa nt to welcome ou r frie nd fro m Ca lif ornia. I have no questions, 

othe r tha n to obs erve th at th e witnesses, b oth gentlem en fro m C al ifor ­

nia, Mr. Da nie lson and Mr. Sta rk , I note, hav e cauti oned th e committee in term s of th e ap peara nce of the Pr es iden t, no t to be tak en 

in by him. And a pp aren tly thi s is a comm only perceived a pp reh ensio n
83

that Members, and perhaps the public have, tha t we will not deal as 

candidly and fort hrightly and tough with the President as we must 

under o ur mandate. And I assure the gentleman that we will.

Mr. Stark. Thank you.

Mr. Hungate. The gentleman from In dian a, Mr. Dennis.

Mr. Dennis. I have no questions, Mr. Chairman.

Mr. H ungate. The gentleman from California, Mr. Edwards.

Mr. Edwards. No questions, Mr. Chairm an, but I want to thank 

my colleague from north ern California—the other C alifornian being 

from southern California—for his contribution. And I assure him, 1 

certainly trust tha t we will listen to your admonitions and very good 

advice, and will do a thoroug h job in this important hearing that we 

are going to have, I presume next week, at which the President will 

be the witness.

Thank you.

Mr. Hungate. The gentleman from Maryland, Mr. Hogan.

Mr. II ogan. Thank you, Mr. Chairman.

I don’t think there is any doubt tha t the story of Watergate is going 

to be told, has been told, and every shred of inform ation related to the 

case is going to receive public scrutiny.

I ’m sure that our friend from California realizes that the Special 

Prosecutor is already m andated to issue a report, whenever that might 

be. I ’m sure he also shares my concern tha t the rights of other defendants in those trials not in any way be impaired by our effort to 

bring the story of Watergate to public scrutiny.

But, I do want to say, and I say it kindly because I do have a great 

deal of respect for the gentleman from California and the previous 

witness from California, tha t it troubles me very much t hat we have 

reached a point in time where we in the subcommittee are about to 

have the President of the United States appear as a witness on a 

legislative matter—and I might say th at’s the first time tha t's hap ­

pened in over a hundred years—rath er than applaud the action of the 

President in coming in recognition of the equal power of Congress 

in our Federal Government, rath er than applaud that, we are warned 

to make sure tha t we are not hoodwinked by the President of the 

United States. And, don't allow him to come here and mesmerize us, 

and lure us away from our responsibility.

That really troubles me very much because everybody on this committee, and everyone in this Congress, knows the President as a 

personal friend; and they know the depth of his integ rity and his 

honesty, and his candor. And I just don't thin k it's f air to issue those 

kinds of warnings with what is really a historic event.

Mr. Stark. I share the gentleman’s concern. I suppose it's unfortunate, particularly for those of us who may not have had the privilege of serving with the President for very long in the House, that 

all we can base our worry about lack of candor on is previous holders 

of the position, and that creates our concern. We have seen it from 

many members of the executive branch in all areas—a lack of concern, 

and a lack of candor. The Secretary of State telling us what the CIA 

did in Chile; and the Secretary of Defense telling us why he called 

military alerts.

There are some who would contend that we have been consistently 

lied to, and I would not like to see t hat perpetuated. We have a new
84

administration, and I hope that we could do away with the lack of 

candor, and the lack of honesty that existed in the previous one.

Mr. Hogan. Well, I certainly share the gentleman from California’s 

hope. And I certainly agree tha t the deception, and the dishonesty, 

and the lack of candor in the immediately previous administration 

does give one cause to be suspicious. But I thin k tha t's unfortunate. 

I think tha t we ought to give the new President the benefit of the 

doubt, p articularly because we do know his own pa rticular character, 

so that we are not going forward and trying to solve the problems of 

the country with mutual distrust, rath er than mutual confidence and 

trust.

Mr. Stark. I agree with the gentleman and share his remarks.

Mr. Hungate. The gentlewoman from New York, Ms. Holtzman?

Ms. H oltzman. Thank you, Mr. Chairman.

I thin k what my colleague from California—and I want to thank 

him for his testimony—is try ing to say is tha t we don’t have the 

system that exists in England, where the legislative branch freely 

questions the Head of State: and perhaps in prio r administrations 

the (ing re ss felt in too much awe of the Office of the President.

I th ink that Mr. Ford's coming here will hopefully be a long step 

in correcting the balance between the two branches and permitting 

a free flow of information with full candor between both branches. 

I think tha t was the thru st of his concern, and I certainly look forward to seeing tha t happen.

I have no other questions, or comments, Mr. Chairman.

Mr. Hungate. I thank the gentlelady.

Mr. Stark. I'd like to tell the chairman, your committee really has 

been ridin g the crest of a great wave of history; and I hope you keep 

right on top.

I want to thank you very much for a chance to be with you today.

Mr. H ungate. Well, it has 435 legs for support, that’s the secret of 

it. Mr. Stark. I than k you and appreciate your testimony. As we quest 

for the truth, we also want to read Oedipus Rex once a year. Thank 

you. sir.

Mr. Stark. Thank you.

[The prepared statement of Hon. Fortney IT. Stark follows:]

Statement of Hon. Fortney II. (Pete) Stark, a Representative in Congress From the State of California

Mr. Chairman and members of the committee. I appreciate this opportunity 

to testify before your committee. The number of bills and resolutions which have 

been introduced since President Ford’s decision to grant a full and complete 

pardon to Richard Nixon is only one of many indications we have that the 

“Watergate episode” is not yet resolved.

Like many of my colleagues, I have received an avalanche of letters, telegrams, 

and phone calls from constituents who all ask basic, eloquent questions—why did 

Richard Nixon receive special treatment? Does the Nixon pardon, coming as it 

does before any indictment, let alone conviction, for crime had been rendered, 

imply t hat some men are indeed above the law? Will we ever know the whole 

truth about Watergate?

I’d like to center my remarks around tha t last point because I believe it is 

the crucial question before this committee today, before the Congress, and before 

the Nation.

The outrage which followed the Nixon pardon was not based on individuals’ 

desire for revenge. The protests were made not out of malice toward the former 

President—in fact. I doubt if there are many Americans who actually wished to 

see Mr. Nixon behind bars—however, our colleagues, our constituents and the
press have rightfully cried out for the truth, the whole, full and complete truth 

about Watergate.

The pardon prevents the judicial process from providing us with the facts. Although it is possible tha t Mr. Nixon might still testify before either the Watergate conspiracy trial which begins today or in some other court in the future, it is unlikely tha t this limited presentation will yield the complete 

story. With tha t avenue now closed, it is up to the Congress to insure the public tha t it will receive all the facts. The exact manner of presenting these facts is of secondary importance. If the Special Prosecutor can provide us with a definitive rep ort; if the suponeaed tapes are released to the public; if the House Judiciary Committee or a special select committee holds extensive public hearings; any of these alternatives, or a combination thereof, will bring out 

the tru th. I am pleased to learn tha t Mr. Ford has decided to appear before your commit­ tee and answer your questions. His appearance before you may well prove to be the best public forum available for bringing out the truth. I urge you to ques­ tion Mr. Ford closely, for with all due respect to the President, I believe your first allegience in tha t hearing is not to the Presidency, nor to political polite­ ness, but to the American people who will be looking to you to find the answers. I am primarily concerned that Americans know what crimes Mr. Nixon was pardoned from. We owe tha t to our constituents, to the strength of this republic 

and to history. The Judiciary Committee has labored with its tough decisions and finally 

voted to remove the President. Although I doubt tha t there are many Americans today who do not believe tha t Mr. Nixon was guilty of impeachable offenses—and perhaps convictable crimes—the truth of time is such tha t if we fail to provide a definitive account of the events of Watergate, they will become blurred and their meaning un­ certain. I do not think we should rely on second-hand accounts, autobiographical materials, or participants’ interpretatio n of historical events for which there 

exists abundant, more reliable data. History can be confused, make no mistake about it. If this Congress pro­ vides Mr. Nixon with hundreds of thousands of dollars for trans itional expenses, as requested by the Ford administration, and then fails to decide con­ vincingly the question of Mr. Nixon’s guilt in the Watergate case, history may show tha t a President resigned his office because of lack of support from a Congress which then turned around and gave him practically unlimited funds from the public treasury—hardly the way one would expect a man associated with “impeachable” or “convictable” offenses to be treated. We have a duty to provide the truth. I firmly believe tha t the American people deserve definitive action from their elected Representatives in Congress. I cannot urge this subcommittee in strong enough terms to pursue its investiga­ tion, to explore the alternatives available, and to begin the congressional process which will bring the facts before the American public. I t is your obligation and your responsibility to do thus, just as it is my obligation and my responsibility 

to urge and support your actions.

Mr. Hungate. Our colleague, Congresswoman Marg aret Heckler was to be the next witness. She is detained in another committee. I sup­ pose the reform bill that we passed this week will stop such conflicts in the future. They are marking up a bill which she introduced, so we can understand that her first responsibility would be there. She does have a prepared statement which has been presented to the committee; and without objection, it will be made par t of the record 

at this point. [The prepared statement of lion. Marg aret M. ITeckler follows:]

Statement of Hon. Margaret M. Heckler, a Representative in Congress

From the State of Massachusetts

Mr. Chairman. The Watergate excesses of the past two years must never be forgotten. To forget would invite a repeat of the tragedy. This bill assures the American public of a complete and factual record.
86

This sad era has stimulated millions of words of analysis, thousands of hours 

of investigation, and hundreds of charges and innuendoes. The American people 

have been bombarded with the Watergate break-in, misuse of government 

agencies, and a total disregard for the spirit and lette r of the law by those in 

high places. But, years hence, when the emotions and passions of the moment are history, what will the record show of these agonizing days.

There are scattered admissions of guilt and reams of testimony. But much of 

the record has been supplied by second-hand sources and those, espousing a certain interpretation of the facts. The American people deserve better.

I think the most touching illustratio n of the need for this type of legislation 

was a conversation I had just last week with a history teacher from my District. 

The dilemma she faces in the classroom is no doubt repeated in thousands of 

schools and colleges across the country. Today’s young people are losing conlidence in their system of government. After months on end of the Watergate 

trauma these students still have questions for which their Civics books do not 

have an answer. To some, inaction by the Congress would be complicity in the 

last act of the cover-up. What do I tell my students, she asks.

Enactment of this legislation would console our young people with the fact 

that Congress cares enough to provide itself with a complete record from which 

conclusions can be drawn. The facts in all their candor would be there. I would 

lavor a follow-up move by the Congress to make the material public thus exhibiting to the next generation our desire to let the record be known. My teacher 

friend would have an explanation for her students.

Mr. Chairman. This bill would transmit to the Congress all materials, documents, and reports obtained, prepared, and compiled by the Office of the Watergate Special Prosecution Force following a determination by the Attorney 

General that the rights of parties named in the material or parties related to 

the litigation will not be compromised. The natural next step by the Congress would be release to the general public.

We, as Americans, have been hounded by the incessant Watergate controversy 

for over two years. Watergate must not be allowed to whimper into the liistorv 

books without a complete accounting of the facts. The record must be available so tha t a fu ture Watergate is prevented.

Mr. Hungate. There are no further witnesses to come before the 

committee this morning. We will recess subject to the call of the Chair.

[Whereupon, at 11:35 a.m., the subcommittee recessed, subject to the 

call of the Chair.]
PARDON OF RICHARD M. NIXON AND RELATED 

MATTERS

to

THU RSD AY, OCTOBER 17, 1974

11ouse of Representatives,

Subcommittee on Criminal J ustice

ofthe Committee ontiie J udiciary,

IF ashing ton ,I).C.

The subcommittee met, pursuant to notice, at 10:12 a.m., in room 

141, Rayburn House Office Building, Hon. William L. Hungate

[chairman of the subcommittee] presiding. Pres ent: Representatives Hungate, Kastenmeier, Edwards, Mann, 

Holtzm an, Smith, Dennis, Mavne, Hogan, Rodino [chairm an of the full committee], and Hutchinson [ran king minority member of the 

full committee] Also present: Representatives Donohue, Conyers, Eilberg, Flowers, Sarbanes, Rangel, Thornton, Mezvinsky, McClory, Sandman, Fish, 

and Cohen. Staff' pre sen t: Jerome M. Zeifman, general counsel; G arner J. Cline, associate general counsel: Robert J. Trainor, counsel; Fra nklin G. 

Polk, and Michael W. Blommer, associate counsels; and Stephen P. 

Lynch, research assistant.

Mr. Hungate. The subcommittee will be in order.

The Subcommittee on Criminal Justice of the House Committee on 

the Judiciary today welcomes the President of the United States, Gerald R. Ford . We appreciate your willingness, voluntarily, to 

appe ar to respond to the questions posed in two privileged resolutions of inquiry, and to accept inquiries from the subcommittee as it carries 

out the responsibilities assigned it by the House of Representatives. This is perhaps the first documented appearance of a President of 

the United States before a committee or subcommittee of the U.S. 

Congress. The Chair understands, Mr. President, tha t you have a commitment 

at noon, and the House convenes at 11:30 a.m. today. With these con­ straints of time in mind, we shall proceed as quickly as possible to accomplish as much as we can in the available time. The questioning 

will be done by subcommittee members only, and under the 5-minute 

rule. President Ford's appearance demonstrates his commitment to be 

open and candid with the American people. I t is absolutely vital for 

the restoration of the public’s trust in their governing institutions and 

elected officials that frankness be the hallm ark of th is and futu re administrations.

The newspaper “Le Monde,” of Paris, recently wrote:

(8 7)
ss

No European republic invests its President with the right of pardon as sweeping and irrevocable as that which Gerald Ford exercised in favour of Richard Nixon.

In a sense, the royal pardon takes over from the executive privilege behind which the former President took refuge so long, as a way of preventing Con­ gress and the law courts from investigating his conduct.

Since September 8, when as President you issued a full, free, and absolute pardon to former President Nixon for all crimes he com­ mitted or may have committed while serving as President of the United States, several questions have been raised relating to the circumstances surroun ding the pardon, and whether, as a result of the pardon and subsequent agreements entered into by the former President and officials of the executive branch, the full and complete story of Watergate and related activities will ever be known. In an attempt to resolve these questions, more than 70 Members of the House of Repre­ sentatives, Republicans and Democrats alike, have sponsored bills and resolutions seeking to uncover the full story of the pardon and W ater­ gate. These several bills and resolutions are curre ntly pending before the subcommittee.

Included among the 23 bills and resolutions pending before the sub­ committee are the two privileged resolutions of inquiry considered today; one, House Resolution 1367, introduced by Representative Abzug, of New York, and the second. House Resolution 1370, intro­ duced by Representative Conyers, of Michigan. The Rules of the House of Representatives require prom pt committee action on privileged resolutions of inquiry.

Copies of the two privileged resolutions were immediately for­ warded to President Ford requesting a response, and following an exchange of correspondence, the President offered to appear here as he voluntarily does today.

The task we undertake is made easier by the personal friendship and common background we share in the Congress. Pu t to faithfu lly per­ form our respective tasks, we must, insofar as possible, lay aside per­ sonal relationships and considerations.

We are not here because of friendship, but because of the respon­ sibility our governmental system of checks and balances and separation of powers places upon us; to seek and reveal the truth to the American people about the working of their Government by cooperation if pos­ sible, by confrontation when necessary.

I hope the American people, as well as the Congress, appreciate the importance of President Ford’s appearance, as well as the need to do all th at we can to resolve once and for all the questions relating to the pardon of former President Nixon. I am convinced th at the issue of the pardon will not be behind us until the record of the pardon is complete.

The Chair recognizes Chairman Rodino from New Jersey.

Chairman R odino. Mr. President, as chairman of the Committee on the Judiciary, I want to welcome you here, not only as the Chief Executive of this great country, but as a friend, and one who served with all of us for so many years. This historic occasion and your volun­ tary appearance here only demonstrates once more the great institutions tha t we are both proud to be part of. and I know t ha t your effort in coming before this committee voluntarily will assist this subcommittee
89

and th is Committee on the Judiciary in meeting its important responsibilities.

And with th at, Mr. President, I am going to relinquish the responsibility to the chairman of the subcommittee and to the members of 

the subcommittee who will direct inquiries to you.

Thank you for coming here.

Mr. Hungate. The C hair recognizes the gentleman from Michigan, 

Mr. Hutchinson.

Mr. Hutctiinsok. Than k you, Mr. Chairman.

Mr. President, the chairman of the Jud iciary Committee, Mr. 

Podino, and I, as rank ing minority member, are ex officio members 

of this subcommittee. But we appear here this morning only in tha t 

capacity, sitting at the foot of the subcommittee on our respective sides, 

rath er tha n in our familiar places at its head. In this arrangement, Mr. 

Podino does not displace the chairman of the subcommittee, Mr. 

Hungate, nor do I displace Mr. Smith, of New York, as ranking 

minority member of this subcommittee.

Chairman Rodino and I earlier agreed that we will not participate 

in questioning our distinguished visitor this morning, leaving tha t 

function to the members of the subcommittee regularly appointed. Our 

participation will be limited to our opening statements.

Other members of the Ju diciary Committee, the full Ju diciary Committee, who are not members of this subcommittee, some of whom are 

present here today, will not participate at all, but are interested in the 

event that the matter under discussion reaches the full committee. The 

subcommittee has before it a couple of resolutions of inquiry which 

were introduced in the House of Representatives, referred by the 

Speaker to the Judiciary Committee and Chairman Rodino designated 

this subcommittee to consider them.

By a resolution of inquiry, the House of Representatives requests the 

President or directs the head of one of the Departments of Government to furnish certain factual information, presumably to assist the 

House in its legislative function. Since the pardon power is not subject 

to legislative control, I suppose that a question can be raised as to 

whether a resolution of inquiry is legitimate on this question, since the 

question itself cannot be resolved by the legislative branch. In any 

event, the mere introduction of a resolution does not impose a duty 

upon the Executive to respond, and neithe r does committee consideration and, indeed, a resolution would be expected only if the House of 

Representatives then itself adopted such a resolution, and then written 

communication transm itting the factual inform ation called for would 

ordinarily be sufficient.

The personal appearance of the President of the United States before 

this subcommittee does not humble his high office, nor does it violate 

the separation of powers between the executive and the legislative 

branches of Government. It is essential, if our Government is to operate, that the executive and the legislative work together. Your meeting 

with this subcommittee, Mr. President, here on Capitol Hill, is symbolic of that working together in the national interest. But, you do 

not come, Mr. President, in response to any command of the subcommittee, nor even in response to its request, for it made no demand 

upon you or even a request for your presence. Your appearance is
90

entirely voluntary on your part. Your personal appearance here today 

must not be construed to mean that you will personally appear before 

this or any other committee of Congress in the future, and Presidents 

of the United States in the future will be expected to respond to resolutions of inquiry in the future as they have in the past, by written 

communication.

But, Mr. President, I cannot adequately express to you my personal 

feelings of warm friendship and welcome, and my sense of high honor 

tha t you do this subcommittee, the full Jud iciary Committee, and the 

House of Representatives in meeting with us here today.

Thank you, Mr. Chairman.

Mr. Hungate. The Chair recognizes the gentleman from New York, 

Mr. Smith.

Mr. Smith. Thank you, Mr. Chairman.

Mr. President, I, too, join in welcoming you here in your voluntary 

appearance before this subcommittee of the House Committee on the 

Judiciary . You have come to answer questions in regard to your pardon 

of R ichard M. Nixon on September 8, 1974. These questions have been 

propounded by certain Members of Congress, and, generally speaking, 

the Members of Congress and the people of the United States of 

America have a r igh t to know’ the answers as far as this may be possible. Your appearance here has been voluntary and on your own 

motion, and I commend you for taking this initiative. I do not think 

it establishes any precedent, but, on the other hand, it is an example 

of a splendid cooperation betw’een the executive and the legislative 

branches of our Government, which I tru st may be followed many 

times in the futu re by those who may come after you as President of 

the United States of America—the world’s toughest job.

Mr. President, I have known you for almost 10 years, and in tha t 

time I have always found you to be a man of frankness and candor, a 

man in whose word one could have implicit trust, a man of the utmost 

integrity. It is in this s pir it th at I know’ you will answer the questions 

that have been raised about your pardon of Mr. Nixon. And it is in 

this s pirit that I know th is committee will receive your answers and 

w ill interrogate you.

Thank you, Mr. Chairman.

Mr. Hungate. Mr. President, you have an opening statement. Without objection, it will be made p art of the record and you may proceed 

as you see fit. We welcome you here today.

TESTIMONY OF HON. GERALD R. FORD, PRESIDENT OF THE 

UNITED STATES

President F ord. Thank you very much, Mr. Chairman, and members 

of the subcommittee.

W e meet here today to review7

 the facts and circumstances t ha t were 

the basis for my pardon of former President Nixon on September 8, 

1974.

I want very much to have those facts and those circumstances known. 

The American people w ant to know them. And Members of the Congress also want to know’ them. The two congressional resolutions of 

inquiry now before this subcommittee serve those purposes. Th at is 

why I have volunteered to appear before you this morning, and I
91

welcome and thank yon for this o pportunity to speak to the questions 

raised bv the resolutions.

My appearance at this hearing of your distinguished subcommittee 

of the House Committee on tlie Jud icia ry has been looked upon as an 

unusual historic event—one tha t has no firm precedent in the whole 

history of Presidential relations with the Congress. Yet. I am here not 

to make history, but to report on history.

The history you arc interested in covers so recent a period tha t it is 

not well understood. If, with your assistance. I can make for bette r 

understanding of the pardon of former President Nixon, then we can 

help to achieve the purpose I had for granting the pardon when I did.

That purpose was to change our national focus. I wanted to do all 

I could to shift our attentions from the purs uit of a fallen President 

to the purs uit of the urgent needs of a rising nation. Our Nation is 

under the severest of challenges now to employ its full energy and 

efforts in the purs uit of a sound and growing economy at home and a 

stable and peaceful world around us.

We would needlessly be diverted from meeting those challenges if 

we as a people were to remain sharply divided over whether to indict, 

bring to tria l, and punish a former President, who is already condemned to suffer long and deeply in the shame and disgrace brought 

upon the office th at he held. Surely, we are not a revengeful people. 

We have often demonstrated a readiness to feel compassion and to act 

out of mercy. As a people we have a long record of forgiving even 

those who have been our country’s most destructive foes.

Yet, to forgive is not to forget the lessons of evil in whatever ways 

evil has operated against us. And certainly the pardon granted the 

former President w’ill not cause us to forget the evils of the Watergatetype offenses or to forget the lessons we have learned th at a government which deceives its supporters and treats its opponents as enemies 

must never, never be tolerated.

The pardon power entrusted to the President under the Constitution 

of the United States has a long history and rests on precedents going 

back centuries before our Constitution was drafte d and adopted. The 

power has been used sometimes as Alexander Hamilton saw its 

purposes:

In seasons of insurrection * * * when a well-timed offer of pardon to the 

insurgents or rebels may restore the tranquility of the commonwealth; and 

which, if suffered to pass unimproved, it may never be possible afterw ards to 

recall.1 2

Other times it has been applied to one person as:

An act of grace * * * which exempts the individual, on whom it is bestowed, 

from the punishment the law’ inflicts for a crime he has committed.’

When a pardon is granted, it also represents “the determination of 

the ultimate au thority tha t the public welfare will be better served by 

inflicting less than what the judgment fixed.” 3

However, the Constitution does not limit the pardon power to cases 

of convicted offenders or even indicted offenders.4

1

 T he F ed era li st No. 74. a t 79 (C en tr al Law J o u rn al ed. 1914 1 (A. H am il to n!.

2

 M ar sh al l, C. J. , in U ni te d S ta te s v. W ils on . 32 U.S . (7 P et. ) 150, 160 (1 S3 3) .

» Bi dd le v. P er ov ic h, 247 U.S . 480 , 486 (1 92 7) .

* F.x part e Gar land , 4 W all. 333, 38 0 (1 86 7) ; Burdfcfc v. U ni te d S ta te s, 23 6 U.S. 79 

(1 91 5) .
92

Thus, I am firm in my conviction tha t as Presid ent I did have the 

authority to proclaim a pardon for the former President when I did.

Yet, I can also understand why people are moved to question my 

action. Some may still question my authority but I find much of the 

disagreement turns on whether I should have acted when I did. Even 

then many people have concluded as I did, that the pardon was in the 

best interests of th e country because it came at a time when it would 

best serve the purpose I have stated.

I came to this hearing in a spirit of cooperation to respond to your 

inquiries. I do so with the understand ing tha t the subjects to be 

covered are defined and limited by the questions as they appear in the 

resolutions before you. B ut even then we may not mutually agree on 

what information falls within the proper scope of inquiry by the 

Congress.

I feel a responsibility as you do, th at each separate branch of omGovernment must preserve a degree of confidentiality for its internal 

communications. Congress, for its part, has seen the wisdom of assuring that Members be permitted to work under conditions of confidentiality. Indeed, earlier th is year the U.S. Senate passed a resolution which reads in pa rt as follows:

“—no evidence under the control and in the possession of the Senate 

of the United States can, bv the mandate of process of the ordinary 

courts of justice, be taken from such control or possession, but by its 

permission.” (S. Res. 338, passed June 12, 1974).

In United States v. Nixon, 42 U.S.L.W. 5237, 5244 (U.S. July 24, 

1974), the Supreme Court unanimously recognized a righ tful sphere 

of confidentiality within the executive branch of the Government 

which the Court determined could only be invaded for overriding 

reasons of the fifth and sixth amendments to the Constitution.

As I have stated before, Mr. Chairman, my own view is tha t the 

right of executive privilege is to be exercised with caution and with 

restraint. When I was a Member of Congress, I did not hesitate to 

question the right of the executive branch to claim a privilege against 

supplying inform ation to the Congress even if I thought the claim 

of privilege was being abused. Yet, I did then, and I do now, respect 

the right of executive privilege when it protects advice given to a President in the expectation that it will not be disclosed. Otherwise, Mr. 

Chairman, no President could any longer count on receiving free and 

frank views from the people designated to help him reach his official 

decisions.

Also, it is certainly not my intention or even within my authority to 

detract on this occasion or in any other instance from the generally 

recognized rights of the President to preserve the confidentiality of 

internal discussions or communications whenever i t is properly within 

his constitutional responsibility to do so. These rights are within the 

authority of any President while he is in office, and I believe may be 

exercised as well by a p ast Pres iden t if the inform ation sought pertains to his official functions when he was serving in office.

I brin g up, Mr. Chairm an, important points before going into the 

balance of my statement, so there can be no doubt that I remain m indful of th e rights of confidentiality which a President may and ought 

to exercise in appropriate situations. However, I do not regard my 

answers as I have prepared them in the present circumstances or to
93

constitute a precedent for responding to congressional inquiries differen t in nature or scope or under different circumstances.

Accordingly, Mr. Chairman, I shall proceed to explain as fully as I 

can in my present answers the facts and the circumstances covered by 

the present resolutions of inquiry. I shall sta rt with an explanation of 

these events which were the first to occur in the period covered by the 

inquiry, before I became President. Then I will respond to the separate 

questions as they are numbered in House Resolution 1367 and as they 

specifically relate to the period after I became President.

House Resolution 1367 [see app. 2 at p. 196] before this subcommittee asks for information about certain conversations that may have 

occurred over a period tha t includes when I was a Member of Congress or the-Vice President. I n tha t entire period no references or discussions on a possible pardon for then President Nixon occurred until 

August 1 and 2,1974.

You will recall, Mr. Chairman, tha t since the beginning of the 

Watergate investigations, I had consistently made statements and 

speeches about President Nixon’s innocence of either planning the 

break-in or of participating in the coverup. I sincerely believed he 

was innocent.

Even in the closing months before the President resigned, I made 

public statements that in my opinion, the adverse revelations so far 

did not constitute an impeachable offense. I was coming under increasing criticism for such public statements, but I still believed—I believed them to be true based on the facts as I knew them.

In the early morning of Thursday, August 1, 1974,1 had a meeting 

in my vice presidential office, with Alexander M. Ilaig, Jr. , Chief of 

Staff for President Nixon. At this meeting, I was told in a general way 

about fears arising because of additional tape evidence scheduled for 

delivery to Judg e Sirica on Monday, August 5, 1974. I was told tha t 

there could be evidence which, when disclosed to the House of Representatives, would likely tip the vote in favor of impeachment. However, I was given no indication tha t this development would lead to 

any change in President Nixon’s plans to oppose the impeachment 

vote.

Then shortly after noon. General Haig requested another appo intment as promptly as possible. He came to my office about 3:30 p.m. 

for a meeting t ha t was to last for approximately three-quarters of an 

hour. Only then did I learn of the damaging na ture of a conversation 

on June 23, 1972, in one of the tapes which was due to go to Judge 

Sirica the following Monday.

I describe this meeting, Mr. Chairman, because at one point it did 

include references to a possible pardon for Mr. Nixon, to which the 

third and fourth questions in H. Res. 1367 are directed. However, 

nearly the entire meeting covered other subjects, all dealing with the 

totally new situation resnltme- from the critical evidence on the tape 

of June 23, 1972. General Ha ig told me he had been told of the new 

and damaging evidence by lawyers on the W hite House staff who had 

firsthand knowledge of what was on the tape. The substance of his 

conversation was that the new disclosure would be devastating, even 

catastrophic, insofar as President Nixon was concerned. Based on 

what he had learned of the conversation on the tape, he wanted to know 

whether I was prepared to assume the Presidency within a very short 

44-27 4— 75------ 7
94

period of time, and whether I would be willing to make recommendations to the President as to what course he should now follow.

I cannot really express adequately in words how shocked and how 

stunned I was by this unbelievable revelation. First, under these most 

troubled circumstances; and second, the realization these new revelations and disclosures ran completely counter to the position I had 

taken for months, in that I believed the Presiden t was not guilty of 

any impeachable offense.

General Haig in his conversation at my office went on to tell me of 

discussions in the White House among those who knew of this new 

evidence.

General Haig asked for my assessment of the whole situation. He 

wanted my thoughts about the tim ing of a resignation, i f that decision 

were to be made, and about how to do i t and accomplish an orderly 

change of the administration. We discussed what scheduling problems 

there might be and what the early organizational problems would be.

General H aig outlined f or me President Nixon's situation as he saw 

it and different views in the White House as to the courses of action 

that might be available, and which were being advanced by various 

people around him on th e White House staff. As I recall there were 

different courses being considered:

(1) Some suggested “riding it out” by letting the impeachment take 

its course through the House and the Senate trial, fighting all the way 

against conviction.

(2) Others were urging resignation sooner or later. I was told some 

people backed the first course and other people a resignation but not 

with the same views as to how and when it should take place.

On the resignation issue, there were put forth a number of options 

which General Ila ig reviewed with me. As I recall his conversation, 

various possible options being considered included:

(1) The President temporarily step aside under the 25th Amendment.

(2) Delaying resignation until further along the impeachment 

process.

(3) Trying first to settle for a censure vote as a means of avoiding 

either impeachment or a need to resign.

(4) The question of whether the President could pardon himself.

(5) Pardoning various Wate rgate defendants, then himself, followed bv resignation.

(6) A pardon to the President himself, should he resign.

The rush of events placed an urgency on what was to be done. It 

became even more critical in view of a prolonged impeachment trial 

which was expected to last possibly 4 months or longer.

The impact of the Senate trial on the country, the handling of possible international crises, the economic situation here at home, and the 

marked slowdown in the decisionmaking process within the Federal 

Government were all factors to be considered, and were discussed.

General Haig wanted my views on the various courses of action as 

well as my attitude on the options of resignation. However, he indicated he was not advocating any of the options. I inquired as to 

what was the Presiden t’s pardon power, and he answered that it was 

his understanding from a White House lawyer that a President did 

have the authority to grant a pardon even before any criminal action
95

had been taken against an individual, but obviously, he was in no 

position to have any opinion on a matter of law.

As I saw it, at this point the question clearly before me was, under 

the circumstances, what course of action should I recommend tha t 

would be in the best interest of the country.

I told General Haig I had to have some time to think. Further, th at 

I wanted to talk to Jam es St. Clair. I also said I wanted to talk to my 

wife before giving any response. I had consistently and firmly held 

the view previously tha t in no way whatsoever could I recommend 

eithe r publicly or privately any step by the President th at m ight cause 

a change in my status as Vice President. As the person who would 

become President if a vacancy occurred for any reason in that office, 

a Vice President, I believed, should endeavor not to do or say anything which might affect his President’s tenure in office. Therefore, I 

certainly was not ready even under these new circumstances to make 

any recommendations about resignation without having adequate time 

to consider further what I should properly do.

Shortly after 8 o’clock the next morning, James St. Clair came to 

my office. Although he did not spell out in detail the new evidence, 

there was no question in my mind that he considered these revelations 

to be so damaging tha t impeachment in the House was a certainty 

and conviction in the Senate a high probability. When I asked Mr. 

St. Clair if he knew of any other new and damaging evidence besides that on the Jun e 23, 1972, tape, he said “No.” When I pointed 

out to him the various options mentioned to me by General Haig, he 

told me he had not been the source of any opinion about Presidential 

pardon power.

Aft er thought on the matter, I was determined not to make any 

recommendations to President Nixon on his resignation. I had not 

given any advice or recommendations in my conversations with his 

aides, but I also did not want anyone who might ta lk to the President 

to suggest that I had some intention to do so.

For that reason, Mr. Chairman, T decided T should call General 

Haig the afternoon of August 2. I did make the call late th at afternoon and told him T wanted him to understand that I had no intention 

of recommending what President Nixon should do about resigning 

or not resigning, and that nothing we had talked about the previous 

afternoon should be given any consideration in whatever decision the 

President might make. General H aig told me he was in full agreement 

with this position.

My travel schedule called forme to make appearances in Mississippi, 

and Louisiana over Sa turday, Sunday, and part of Monday, August 3, 

4, and 5. In the previous 8 months, T had repeatedly stated my opinion 

tha t the President would not be found guilty of any impeachable 

offense. Any change from my stated views, or even refusal to comment 

further. T feared, would lead in the press to conclusions th at I now 

wanted to see the President resign to avoid an impeachment vote in 

the House and probable conviction in the Senate. For that reason, 

T remained firm in my answers to press questions during my trip and 

repeated my belief in the President’s innocence of an impeachable 

offense. Not until T returned to Washington did I learn th at Preside nt 

Nixon was to release the new evidence late on Monday, August 5,1974.

At about the same time I was notified tha t the Pres iden t had
called a Ca bin et me eting fo r Tu esday morning , Aug us t 6, 1974. A t 

th at me eting in the Ca bin et room, I announced th at I was ma king 

no rec om menda tion s to the Pr es id en t as to wh at he should do in the 

lig ht of th e new evidence. And I ma de no recom me ndations to him 

either at the meeting or a t an y ti me af te r th at .

In summ ary , Mr. Ch airm an , I assure you th at there never was 

at any tim e any agree me nt whatsoev er concern ing a pa rd on to Mr. 

Nixon if he were to res ign an d I were to become Pr esiden t.

Mr. Ch airm an , tu rn in g now to Hou se Resolution 1367, th e firs t 

que stio n o f House R eso lution 1367 asks whethe r I or my representati ve 

ha d “specific kno wle dge of any for ma l crim ina l charg es pe nd ing 

ag ains t Richa rd M. Nixo n.’- T he an swer is: No.

I ha d kno wn, o f course, Mr. Ch airm an , t hat the gr an d ju ry investi ­

ga ting th e W aterga te break-in an d cov erup ha d wa nte d to nam e 

Pr es id en t Nixon as an un indicted coconspir ato r in the cov erup. Also , 

I knew th at an exte nsiv e repo rt ha d been prep ared by th e W aterga te 

Special Prosecution Fo rce fo r the gr an d ju ry and ha d been sen t to 

the Hou se Comm ittee on the Ju di ci ar y, where, I believe, it serv ed the 

staff an d mem bers of the com mittee in th e dev elopm ent of its repo rt 

on th e pro posed art icl es of impea chm ent . Beyon d wh at was disclosed in the publications of th e Ju di ci ar y Comm ittee on the sub ject 

and ad ditio na l evidence rele ased by Pr es id en t Nixon on Au gu st 5, 

1974,1 saw on or sh ortly af te r Septe mb er 4, a copy o f a memorandum 

pr ep ar ed fo r Spe cial Pr os ecutor Ja wor sk i by the De pu ty Special 

Prosecuto r, He nr y Ru th. A copy of th is me mo ran dum ha d been fu rnished by Mr. Ja wor sk i to my counsel an d was la te r made pub lic 

du ring a press briefing at the W hite House on Se pte mb er 10, 1974.

I hav e s upplied th e sub com mittee w ith a copy of this me morandum . 

The memorandum lis ts matters sti ll un de r investigatio n which “m ay 

prove to hav e some direct co nnection to activitie s in which Mr. Nix on 

is perso nally inv olved.” Th e W ater ga te cov eru p is no t inc lud ed in 

this list; and the alle ged cov eru p is me ntioned only as being the 

subject of a separat e me mo ran dum not furnishe d to me. Of those 

matters which are listed in the me mo ran dum, it is sta ted th at none 

of them “a t the mom ent rises to the level of ou r ab ili ty to prove even 

a pro bab le cri mi nal viola tio n by Mr. Ni xo n.”

Th is is all the inform ation I ha d which rel ate d even to the possib ility of form al crim inal charg es inv olv ing the fo rm er Presiden t 

while he had been in office.

Th e second question in th e res oluti on asks w hether A lexa nd er H ai g 

refe rred to or discussed a pa rdon wi th Ric ha rd M. Nix on or his re pres entative s at any tim e du ring th e week of Au gu st 4, 1974, or any 

subsequen t time. My a nswe r to th at questio n is: no t to my know ledge. 

If a ny such d iscussions did occu r, t he y could not have been a factor in 

my decision to gra nt th e pa rdon when I d id, because I was not aware 

of them.

Question s 3 and 4 of House Re solut ion 1367 dea l w ith the firs t an d all 

subsequen t refe rences to, or discussions of, a pa rdon fo r Ri ch ard M. 

Nixon, wi th him o r any of his representat ives o r aides. I ha ve a lre ady 

describ ed at len gth wha t disc ussions too k place on Aug us t 1 and 2, 

1974, and now these disc ussions br ou gh t no recom me ndations or commitments whatsoev er on my pa rt. These were th e only disc ussions related to questions 3 an d 4 before I l>ecame Pr es id en t, bu t question 

4 rel ate s also to subsequent discussions.
97

At no time after I became President on August 9,1974, was the subject of a pardon for Richard M. Nixon raised by the former President or by anyone representing him. Also, no one on my staff brought 

up the subject until the day before my first press conference on August 28, 1974. A t that time, I was advised that questions on the subject might be raised by media reporters at the press conference.

As the press conference proceeded, the first question asked involved 

the subject, as did other later questions. In my answers to those questions, 1 took a position that, while I was the final auth ority on th is 

matter, I expected to make no commitment one way or the other depending on what the Special Prosecutor and courts would do. However, 1 also stated that I believed the general view of the American 

people was to spare th e former President from a criminal trial.

Shortly afterwards I became greatly concerned tha t if Mr. Nixon’s 

prosecution and tria l were prolonged, the passions generated over a 

long period of time would seriously disrupt the healing of our country from the wounds of the past. I could see that the new administration could not be effective if it had to operate in the atmosphere 

of having a former President under prosecution and criminal trial. 

Each step along the way, I was deeply concerned, would become a 

public spectacle and the topic of wide public debate and controversy.

As I have before stated publicly, these concerns led me to ask from 

my own legal counsel what my full rig ht of pardon was under the 

Constitution in this situation and from the Special Prosecutor what 

criminal actions, if any, were likely to be brought against the former 

President, and how long his prosecution and trial would take.

As soon as I had been given this information, Mr. Chairman, I authorized my counsel, Phi lip Buchen, to tell Plerbert J. Miller, as a ttorney for Richard M. Nixon, of my pending decision to gran t a pardon for the former President. I was advised that the disclosure was 

made on September 4,1974, when Mr. Buchen, accompanied by Benton 

Becker, met with Mr. Miller. Mr. Becker had been asked, with my 

concurrence, to take on a temporary special assignment to assist Mr. 

Buchen, at a time when no one else of my selection had yet been appointed to the legal staff of the White House.

The fourth question, Mr. Chairman, in the resolution also asks about 

“negotiations” with Mr. Nixon or his representatives on the subject 

of a pardon for the former President. The pardon under consideration was not, so far as I was concerned, a matter of negotiation. I 

realized that unless Mr. Nixon actually accepted the pardon I was 

preparing to g rant, it probably would not be effective. So I certainly 

had no intention to proceed without knowing if it would be accepted. 

Otherwise, I put no conditions on my grantin g of a pardon which 

required any negotiations.

Although negotiations had been started earlier and were conducted 

throu gh September 6 concerning White House records of the prior administration, I did not make any agreement on t ha t subject a condition of the pardon. The circumstances leading to an initial agreement 

on Presidential records are not covered by the resolutions before this 

subcommittee. Therefore, I have mentioned discussions on that subject 

with Mr. Nixon’s attorney only to show they were related in time to the 

pardon discussions but were not a basis for my decision to gran t a pardon to the former President.
98

The fifth, sixth, and seventh questions of House Resolution 1367 

ask whether I consulted with certain persons before making my pardon decision.

I did not consult at all with Attorney General Saxbe on the subject 

of a pardon for Mr. Nixon. My only conversation on the subject with 

Vice Presidential nominee Nelson Rockefeller was to report to him on 

September 6,1974, tha t 1 was planning to g ran t the pardon.

Special Prosecutor Jaworski was contacted on my instructions by my 

counsel, Philip Buchen. One purpose of their discussions was to seek 

the information I wanted on what possible criminal charges might be 

brought against Mr. Nixon. The result of that inquiry was a copy of 

the memorandum 1 have already referred to and have furnished to this 

subcommittee. The only other purpose was to find out the opinion of 

the Special Prosecutor as to how long a delay would follow, in the 

event of Mr. Nixon’s indictment, before a trial could be started and 

concluded.

At a White House press briefing on September 8,1974, the principal 

portions of Mr. Jaworski's opinion were made public. In this opinion, 

Air. Jaworski wrote tha t selection of a ju ry for the trial of the former 

President, if he were indicted, would require a delay and I quote: 

“of a period from 9 months to 1 year, anti perhaps even longer.” On 

the question of how long it would take to conduct such a trial, he noted 

that the complexities of the jury selection made it difficult to estimate 

the time. Copy of the full text of his opinion dated September 4, 1974, 

I have now furnished to this subcommittee. [See app. 1 at p. 189.]

1 did consult with my counsel, Philip Buchen, with Benton Becker, 

and with my counsellor, Joh n Marsh, who is also an attorney. Outside 

of these men, serving at the time on my immediate staff, I consulted 

with no other attorneys or professors of law for facts or legal authorities bearing on my decision to gran t a pardon to the former President.

Questions 8 and 9 of House Resolution 1367 deal with the circumstances of any statement requested or received from Mr. Nixon. I asked for no confessions or statement of g ui lt; only a statem ent in acceptance 

of the pardon when it was granted. No language was suggested or 

requested by anyone acting for me, to mv knowledge. Aly counsel 

advised me that he had told the attorney for Air. Nixon tha t he believed the statement should be one expressing contrition, and in this 

respect, I was told Air. Miller concurred. Before I announced the 

pardon. I saw a prelim inary dra ft of a proposed statement from Air. 

Nixon, but I did not regard the language of the statement, as subsequently issued, to lx1

 subject to approval bv me or my representatives.

The 10th question. Air. Chairman, covers any repo rt to me on 

Air. Nixon's health by a physician or psychiatrist, which led to my 

pardon decision. I received no such report. Whatever information 

was generally known to me at the time of my pardon decision was 

based on mv own observations of his condition at the time he resigned 

as President and observations reported to me after that from others 

who had later seen or talked with him. No such reports were by people 

qualified to evaluate medically the condition of Air. Nixon’s health, 

and so they were not a controlling factor in my decision. However, 

T believed and still believe, that prosecution and tria l of the former 

President would have proved a serious threat to his health, as I 

stated in my message on September 8,1974.
99

House Resolution 1370 [see app. 2 a t p. 201.] is the other resolution 

of inquiry before this subcommittee. It presents no questions but 

asks for the full and complete facts upon which was based my decision 

to grant a pardon to Richard M. Nixon.

1 know of no such facts tha t are not covered by my answers to the 

questions in House Resolution 1367.

Subp aragraphs (1) and (4) : There were no representations made 

by me or for me and none by Mr. Nixon or for him on which my pardon 

decision was based.

Subparagraph (2) : The health issue is dealt with by me in answer 

to question 10 of the previous resolution.

Subp aragraph (3) : Information available to me about possible 

offenses in which Air. Nixon might have been involved is covered 

in my answer to the first question of the earlier resolution.

In addition, in an unnumbered paragraph at the end. House Resolution 1370 seeks information on possible pardons for Watergate-related 

offenses which others may have committed. I have decided tha t all 

persons requesting consideration of pardon requests should submit 

them through the Department of Justice.

Only when I receive information on any request duly filed and 

considered first by the pardon attorney at the Department of Justice 

would I consider the matter. As yet no such information has been 

received, ami if it does I will act or decline to act according to the 

particular circumstances presented, and not on the basis of the unique 

circumstances, as I saw them, of former President Nixon.

Mr. Chairman, by these responses to the resolutions of inquiry, I 

believe I have fully and fairly presented the facts and the circumstances preceding my pardon of former President Nixon. In this 

wav, I hope I have contributed to a much better understanding by the 

American people of the action I took to g ran t the pardon when I did. 

For having afforded me this opp ortunity. I do express my appreciation 

to you, Mr. Chairman, and to Mr. Smith, the ranking minority member, and to all th e other distinguished members of this subcommittee : 

also to Chairman Rodino of the Committee on the Judiciary, to Mr. 

Hutchinson, the rank ing minority member of the full committee, 

and to other distinguished members of the full committee who are 

present.

In closing. Mr. Chairm an, I would like to reemphasize that I acted 

solely for the reasons T stated in my proclamation of September 8, 

1974. and my accompanying message and that I acted out of my concern to serve the best interests of my country. As I stated then. Mr. 

Chairman, and I quote,

My concern is the immediate future of this great country. . . . My conscience 

tells me it is my duty, not merely to proclaim domestic tranquility, hut to use 

every means that I have to insure it.

Mr. Chairman, I thank vou and the committee members for the 

opportunity to make these views known.

Mr. Hungate. Mr. President, on behalf of the subcommittee, we 

express our appreciation for your appearance here and bringing facts 

that will be helpful to the American people and the Congress.

There will be some who will find the answers fullv satisfactory and 

forthright. There will be others who will not. But I would hope that
100

all would appreciate your openness and willingness to come before the 

American public and the Congress to discuss this important matter.

The gentleman from Wisconsin, Mr. Kastenmeier.

Mr. Kastenmeier. Than k you, Mr. Chairman.

I, too, would like to join my colleagues in welcoming the President.

I do not believe any of us could have anticipated a year ago when the 

President then appeared as a nominee under the 25th amendment for 

Vice President that he would once again appear before this committee as President of the U nited States. And I would only comment no 

matter how well motivated the desire to put Wate rgate behind us, I 

can only acknowledge today several key issues in the news this morning. The President’s appearance before this committee, the trial downtown, the Watergate trial itself, and even the nomination of Mr.

Rockefeller to be the Vice President, occasioned by a vacancy due to 

Watergate, all of these still command the attention of the American 

people and I guess we will just have to be patient. *

Mr. President, you indicated tha t you wanted to spare Mr. Nixon a 

criminal trial. Did you specifically have any other ends in view in 

terms of protecting Mr. Nixon, in terms of a pardon? That is to say, 

whatever a pardon would spare the President, other than a criminal *

trial, were there any other adversities which a pardon would help 

Mr. Nixon with as you saw it ?

President Ford. As I indicated in the proclamation that I issued 

and as I indicated in the statement I made at the time, on September 8. mv prime reason was for the benefit of the country, not for any 

benefits that might be for Mr. Nixon.

I exercised my pardon auth ority under the Constitution which relates only to those criminal matters during the period from Ja nuary 20.1969, until August 9,1974.

Mr. Kastenmeier. T appreciate that , Mr. President, but it must have 

been something you foresaw which could happen to Mr. Nixon which 

justified a pardon. If in fact you were advised, and perhaps you were 

not, that there is no proceeding going to be commenced against Mr.

Nixon, th at nothing would happen to him, really a pardon may have 

been an empty gesture in that event.

President Ford. Well, as T indicated. Mr. Kastenmeier, afte r the 

press conference on August 28, where three questions were raised about 

the pardon or the possibility of a pardon. I asked my counsel to find 

out from the Special Prosecutor what, if any. charges were being 

considered by the Special Prosecutor’s Office, and as I indicated in my 

prepared statement, I received from Mr. Jaworski certain information indicating that there were possible or potential criminal proceedings against Mr. Nixon.

Mr. K astenmeier. But vou did not determine as a matter of fact I

tha t there was any intention to proceed to indictment with any of 

those matters. Is tliat not correct ?

President F ord. In the memorandum I believe of September 4, 

from Mr. Jaworski, prepared by Mr. Ruth , there were 10 possibilities 

listed.

On the other hand, there was I think well known information tha t 

there was a distinct possibility of Mr. Nixon being indicted on the 

grounds of obstructing justice.
101

Mr. Kastenmeier. The effect of the pardon in terms of 10 possible 

areas of investigation as you saw it a t the time was to terminate those 

investigations as well as end any possibilities of indictment on those 

grounds.

President F ord. Well, the power of pardon does cover any criminal 

actions during the stipulated period and as the pardon itself indicated, 

it went from the day that Mr. Nixon first took the oath of office until 

he actually resigned on August 8.

Air. Kastenmeier. My question is, did you have a reason to believe 

that other than the 10 areas of investigation in the coverup, th at the 

former President might need to be protected in any other area where 

a possibility of criminal prosecution existed ?

President Ford. 1 knew of no other potential or possible criminal 

charges; no.

Mr. Kastenmeier. My time has expired, Mr. Chairman.

Mr. JI ungate. The gentleman from New York, Mr. Smith.

Mr. Smith. Mr. President, in regard to your answer, on page 8 of 

your statement, of whether you consulted with certain persons, and 

in that connection, and in connection with question No. 6 of II.Res. 

1367, you stated in regard to the Vice Presidential nominee, Nelson 

Rockefeller, that your only conversation on the subject with him was 

to report to him on September 6, 1974, th at “I was planning to gran t 

the pardon.'* The question asks whether he gave you any facts or legal 

authorities, and my question is, did he do so?

President Ford. Nelson Rockefeller did not give me any facts or 

legal authorities. He was in my office to discuss with me the proceedings concerning his nomination, and at the conclusion of the discussion on th at matter, I felt tha t I should inform him of the possible 

or prospective action tha t I would be taking. But, he gave me no 

facts, he gave me no legal advice concerning the pardon.

Air. Smith. Mr. President, as you were minority leader of the Congress before you became Vice President of the U nited States, did you 

at any time discuss the wisdom or advisability of a possible Presidential pardon for President Nixon with President Nixon or any of 

his representatives, or any member of the White House staff ? This 

was in the period before you became Vice President.

President Ford. The answer is categorically no. Before I became 

Vice President, Mr. Smith, I, on several occasions, and I cannot recall 

how many, indicated to President Nixon himself tha t I thought he 

should not resign. If my memory is accurate, Mr. Smith, before I 

became Vice President, there were individuals, both in the Congress 

and otherwise, who were advocating that Mr. Nixon resign. I do recall 

on one or more occasions telling Mr. Nixon, in my judgment he should 

not, because I though t that would be an admission of guilt, and on the 

information I had at t hat time, I did not believe Mr. Nixon was guilty 

of any impeachable offense.

Mr. Smith. Thank your, Mr. President.

Now, you touched upon your observations of President Nixon’s 

health, and I wonder whether at any time before you became Vice 

President of the United States did you learn any facts about his physical or mental health which later became relevant to your decision to 

pardon Mr. Nixon?
102

President Ford. Well, before I was Vice President I 9aw Mr. Nixon 

periodically coming to the White House for leadership meetings, or for 

other reasons, and during tha t period I had the distinct impression 

that his health was good. And I did not see any discernible change in 

my own opinion until the last day or two of his Presidency. And T did 

notice the last time I saw him in the Oval Office on August 9,1 thought 

he was drawn and possibly a little thinner, but that is the only observation I made.

Mr. Smith. Thank you, Mr. President.

Mr. Hungate. The gentleman from California, Mr. Edwards.

Mr. E dwards. Thank you, Mr. Chairman.

Mr. President, on pages 10 and 11 of your statement, you indicate 

tha t there were some general discussions with General Haig and 

Mr. St. Clair before the resignation about the pardon power in 

general.

Did they have any reason to carry a message to then President 

Nixon t hat this pardon power could possibly be used on his behalf if 

he resigned ?

President F ord. None whatsoever. Categorically no.

Mr. Edwards. Then why, Mr. President, were there those general 

discussions about pardon ?

President Ford. Well, as I indicated in my prepared statement, 

General Haig came to me first to apprise me of the dram atic change in 

tlio situation. And as I indicated in the prepared statement, he told me 

tha t I should be prepared to assume the Presidency very quickly, and 

wanted to know whether I was ready to do that.

Second, he indicated that in the White House, among the President's 

advisors, there were many options being discussed as to what, course of 

action the President should take, and in the course of my discussions 

on August 1 with General Haig , he outlined, as I did in the prepared 

text, the many options tha t were being discussed. He asked for my 

recommendations I would make, and as I indicated in the prepared 

text, I made none.

Mr. E dwards. Thank you, Mr. President.

Mr. Buchen has said several times, and I believe you have mentioned 

tha t the pardon did involve a certain aspect of mercy. Would not the 

same consideration of mercy apply to the Wate rgate defendants downtown who now are putting forth as their chief defense allegations th at 

they were merely acting under orders of Mr. Nixon, then President, 

and their boss?

President Ford. Mr. Edwards, in light of the fact tha t these trials 

are being carried out at the present time, I think it is inadvisable for 

me to comment on any of the proceedings in those trials.

Mr. Edwards. Mr. President, put yourself in the position o f a high 

school teacher, shall we say, in Watts or the barrios of San Jose, or 

Harlem. If you were such a teacher, how would you explain to the 

young people of America the American concept of equal justice under 

law?

President Ford. Mr. Edwards, Mr. Nixon was the 37th President of 

the United States. He had been preceded by 36 others. He is the only 

President in the history of this country who has resigned under shame 

and disgrace. I think th at tha t in and of itself can be understood, can 

be explained to students or to others. Th at was a major, major step and
103

a m at te r of, I am sure, gra ve, grav e delib era tio ns by the fo rm er 

Pr es id en t, an d it certa inly, as I hav e said sev era l tim es, co ns tituted 

sha me and dis gra ce.

Mr. E dwards. Th an k you, Mr. P resid en t.

Mr. Pr esiden t, do you think th at it is wise to pa rdon a man before 

indictm en t or tr ia l fo r offenses th at are com pletely unknown to you 

an d w hich m ight possib ly be ter ribl y serious ?

Pr es id en t F ord. Well, as I ind ica ted , Mr. Ed wards , I did , to the 

bes t of my ab ility, check wi th probably the best au th or ity in the 

co un try on wh at, if any, charg es wou ld be ma de ag ains t Mr. Nixon. 

Those were, o r po tent ially w ere serious charges . I t hi nk th at in ta ki ng 

th e act ion 1 di d concern ing those char ges , 1 was e xer cising in a pr op er 

way the pa rdon a ut ho rity g ive n the Pr es id en t un de r the C on stitutio n.

Mr. E dwards. T ha nk you, M r. Presiden t.

Mr. H ungate. T he gentl em an fro m In di an a, Mr. Den nis.

Mr. D en ni s. Th an k you, Mr. Ch air man.

Mr. Pr esiden t, I would like to sta te th at I too sha re with my 

colleag ues a deep ap prec iatio n fo r yo ur ap pe aran ce here before ou r 

subcom mittee thi s mo rning.

Mr. Pr es id en t, on page 7 of yo ur s tat em en t where you were ta lk in g 

ab ou t yo ur first or yo ur second interv iew wi th Ge neral H ai g on the 

afternoo n o f A ug us t 1, you st ated th at “ I describe th is meetin g because 

at one po int it (lid includ e reference s to a possible pa rdon fo r Mr. 

Nixon.” I tak e it th at you h ave spelled o ut wha t tho se reference s were 

over on pag es 9, w her e th e options are spe lled out, an d 10, wher e you 

state th at you inq uir ed as to wh at was the Pr es id en t's pa rd on in g 

pow er, is th at correct ?

Pr esiden t F ord. Yes. I t is spe lled out in the item ed instan ces , 1 

th ro ug h 6, eig ht various o ptions involv ing a p ard on.

Mr. Den nis A nd does th at include ev erything t hat was s aid at th at 

tim e on the subject of pa rdon , su bs tantially ?

Pr es id en t F ord. Yes, sir.

Mr. Den ni s. Mr. Pr esiden t, I note th at on page 10 you sta te th at 

you asked the Ge neral as to wh at the Pr es id en t's pa rdon pow er was, 

an d he very pr op erly replied th at he ha d ce rta in info rm ation bu t 

could not give a le gal op inion.

When, w here, a nd from wh om did you ul tim ately ob tai n the o pin ion 

th at you were en titled un de r the doctrine of E x parte Ga rland and 

so on to issue a pa rd on wh en the re ha d been no charge or no conv iction ?

Pr esiden t F ord. W hen I came back to the Oval Office, Mr. Dennis, 

fol low ing the pre ss con ferenc e on Aug us t 28, where three questio ns 

were rai sed by th e new s me dia invo lvi ng a pa rdon , I instr uc ted my 

coun sel, Mr. Bu che n, to check in an au th or itat iv e way wh at pardon 

pow er a Pr esiden t had, and he, several days later, I do no t recall 

precisely, came back and brief ed me on my pa rdon p ower as Pr es id en t 

of the Un ite d Sta tes .

Mr. Den ni s. Mr. Pr esiden t, the exercise of executive clem ency is, 

of cours e, a well recogn ized part of the lega l system in th is co un try , 

exercised by you a nd all of you r predecesso rs, is th at n ot th e fact ?

Pr es id en t F ord. Th at is cor rec t, sir.

Mr. Den ni s. And you have giv en th is com mittee, as I un de rstand 

yo ur testimo ny th is m orn ing , yo ur comp lete sta temen t as to yo ur re asons fo r ex erc ising that power in thi s p ar ticu la r case ?
104

Pr esid en t F ord. I h ave, sir.

Mr. Den nis. A nd in answer to my friend , Mr. Ed wards , you hav e 

stat ed the fact th at you fe lt th at fo r an ex -P resid en t of the United 

St ates to re sign und er these circumstance s wa s sufficient, stro ng pu nish ­

me nt, an d th at th at shou ld answer the problem of those who hav e 

rai sed th e question of equal justice un de r law ?

Pr es id en t F ord. Th at is correc t, sir .

Mr. Den nis. And yo u would consider ot he r possible pa rdon s on the 

facts of those par ticu la r cases w hen and if t hey were p res ented to yo u ?

Pr es id en t F ord. Th at is correct.

Air. Den ni s. A nd t hat there was no condition attach ed to th is pardon, an d no so rt of agree me nt ma de in res pect th ereto before it was 

gr an te d ?

Pr es id en t F ord. None w hat soever, sir.

Mr. D enni s. Th an k y ou, Air. Pr esiden t. I have no fu rther qu estions, 

Air. C hairm an.

Air. H ungate. Th e gentlem an fro m So uth Ca rolin a, Air. Alann.

Air. Man n. Th an k you. Air. Ch airma n.

Air. Pr esiden t, Air. K asten meie r a sked you about the term ination of 

th e investigatio n by the Special Pr os ec utor ’s Office.

Was it y ou r inten tio n by the pa rdon to term inate the inv estig ati on 

by the Special Pr os ec utor’s Office in th e 10 are as on which you received 

a re po rt fro m t hat office ?

Pr esiden t F ord. I th in k the net result of the pa rdon was, in effect, 

just th at . Yes, sir.

Air. AIan n. And is t h at pa rt of the reason wh y you did not con sult 

wi th Air. Ja wor sk i with refere nce to the tap e agree me nts as to how 

th at m ight affect his fu rther investigatio ns ?

Presiden t F ord. Well, as I pointed out, the tape agree me nt was 

initiated betw een my lega l counsel and Air. Nixon sometim e before 

the que stio n of a pa rdon ever arose. Th e reason fo r th at , Air. AIann, 

is th at I came into office a nd alm ost im me dia tely there were dem and s 

an d requests, not only f rom the Special Prosecuto r, as I recall, but from 

othe r sources as to those tap es and othe r documents. And one of the 

first things I d id when thes e pro blems came to m y desk w as to ask t he 

Atto rn ey Gener al fo r his opinion as to the ow nersh ip of tho se tape s 

or any othe r doc uments. An d once we got th at inform ation, then we 

fe lt that, there ought to be some discussion as to where the tap es and 

othe r doc uments wou ld be held, and un de r wh at circ umstance s.

Air. AIan n. Now, of co urse, the ma nd ate o f the Spe cial Pr os ec utor’s 

Office w as not dir ected solely at Pr es id en t Nix on, bu t is it not so th at 

the pa rdon , in effect, te rm inated th at inv estig ati on inso far as othe r 

parti es, and other possible de fend an ts are co ncerned a nd g ettin g to the 

true facts of th e matters th at hav e distu rbed ou r na tio na l political 

life d ur in g these past 2 yea rs ?

Pr es id en t F ord. I do n ot believe t hat the action I took in pa rd on in g 

Pr es id en t Nixon ha d any im pact on any othe r manda te th at the 

Spe cial P ro secu tor's Office had.

Air. AIan n. AVhat respon se would you have if the Special Pr os ecu tor's Office now reques ted access to certa in of the tap es now in the 

cus tody of the G overn me nt ?

Pr esiden t F ord. Th e mate ria l th at is sti ll held by the Governm ent 

in m y un de rstand ing of the Supre me Co urt decision pe rm its the Spe-
105

cial Prosecutor to obtain any of that material for its responsibility, 

and I, of course, not in a personal way, would make certain tha t tha t 

information was made available to the Special Prosecutor’s Office.

Mr. Manx. According to press reports, Mr. Clement Stone visited 

President Nixon on September 22 and thereaf ter met with you in 

Washington. Are you at liberty to tell us the gist of the communication 

involving President Nixon from Mr. Stone to you ?

President F ord. Mr. Stone came to see me about a program tha t he 

has used very successfully in his business, a program which he is very 

proud of and he was urging me to institute it in the various bureaus and 

departments of the Federal Government. There was no other message 

conveyed by him from Mr. Nixon to me.

Mr. Mann. Did you ever discuss the pardon with former President 

Nixon a fter his resignation and prior to the grantin g of the pardon ?

President Ford. Would you repeat the question again, please ?

Mr. Mann. Did you have any personal conversation with former 

President Nixon concerning the pardon between his resignation and 

September 8 ?

President Ford. Absolutely not.

Mr. Mann. ’Now, in response to Mr. Edw ards' question about equal 

justice under the law, I know that you make a distinction that here 

we are ta lking about the Office of President of the United States, but 

let us assume that we are talking about the president of a bank or 

Governor of a Sta te or Chief Justice of the U.S. Supreme Court, which 

in the minds of most people are very high offices. Do you think any of 

those persons who are allegedly criminally culpable throu gh resignation should be entitled to any treatmen t different from any other 

citizens?

President F ord. Mr. Mann, I do not think I should answer a hypothetical question of th at kind. I was dealing with reality, and I have 

given in my best judgm ent the reasons for the action t ha t I took, and 

to pass judgm ent on any other person or individual holding any office in public or private, I thin k it would be inap prop riate for me.

Mr. Mann. You have heard the maxim tha t the law is no respecter 

of persons. Do you agree with tha t ?

President Ford. Certainly it should be.

Mr. Mann. Thank you, Mr. President.

Mr. Hungate. The gentleman from Iowa, Mr. Mayne.

Mr. Mayne. Thank you, Mr. Chairman.

Mr. President, I believe that the Chairman and others in their 

questioning have established very clearly tha t your appearance here 

today is an entirely voluntary one on your part, that it was your idea, 

that you had not been requested by the committee to come in person, 

that we had indicated tha t it would be entirely satisfactory as far as 

we were concerned, if some assistant appeared instead.

President Ford. That is correct, sir.

Mr. Mayne. I do not think, however, tha t it has yet been made 

clear in the record, and I think this should be, tha t it is also true tha t 

you were willing to come and to tell this full story as you have done 

before the committee and on television before the American people 

much earlier than today. Is tha t not true ?

President Ford. Yes. I thin k the original schedule was set for 

about a week ago. I have forgotten the exact date.
106

Mr. Mayne. Well, my recollection, and you can correct me if I am 

wrong, is that as early as September 30 you offered and volunteered 

to appear before the subcommittee at our next regular meeting which 

would have been on September—on October 1, but it was indicated 

to you tha t tha t would be too early for the committee to be able to 

accommodate such an appearance.

President F ord. I do not recall that detail, but when I indicated that 

I would voluntarily appear, a member of my staff met with, I think, 

Chairman Hungate and between them they tried to work out what was 

an acceptable, agreeable time as to when I should appear.

Mr. Mayne. There was, of course, the concern which developed 

in the subcommittee as to whether there would be any possible jeopardy 

to the impaneling of the jury in the Watergate cases. But I think this 

timetable should be established and I would ask the chairman if that 

is not his recollection, th at originally the President did say tha t he 

would be glad to appear on October 1.

Mr. Hungate. Not being under oath, the Chair is glad to reply. 

The gentleman’s recollection is the same as mine.

Mr. Mayne. Thank you, Mr. Chairman.

I just think the point should be made tha t there has been no stalling 

at all or delay on the part of the President in making this appearance, 

but tha t he was not only willing to make the statement but to do it 

much earlier.

Mr. Hungate. If the gentleman will yield briefly-----

Mr. Mayne. I am happy to yield.

Mr. Hungate [continuing]. Tha t is precisely the fact and it was 

consideration on behalf of many of us concerning the proper effect on 

any trials tha t held us to this day.

Mr. Mayne. Now, Mr. President, I think there was perhaps one 

part of Mr. Kastenmeier’s questioning of you that was left unanswered 

and I am going to try to go into that again.

Did you by grantin g this pardon have anv intention of stopping 

the investigations of any other defendants or potential defendants?

President F ord. None whatsoever.

Mr. Mayne. Mr. President, ever since I first heard of the Wa tergate break-in I have felt tha t this was a matter which should be fully 

investigated and prosecuted and tha t anyone found to be criminally 

involved should be punished as provided by the law, and I repeatedly 

stated I th ought our American system of justice as administered in the 

courts was fully capable of handling the situation if permitted to 

proceed without interference.

I have been apprehensive tha t the activities of some of the legislative committees and the large amount of publicity attending upon 

those activities might make it impossible for our court system to function as it shoiild, and I have also been fearful that the executive 

branch would intervene to limit or handicap the normal functioning 

of the courts.

Now, Mr. President, I must say to you th at I am deeply concerned 

tha t both the legislative and executive branches have indeed interferred with our courts, making it extremely difficult for the traditional 

American system of justice to proceed in the regular manner in this 

case. And I was very disturbed by the grantin g of this pardon, par-
107

ticularly at such an early sta^e, even though certainly there is no 

question that under the law you had the right to act as you did.

Now, I realize th at hindsight is always better than foresight, b ut I 

am wondering if after all tha t has happened and with further opportunity for reflection, if you do not now feel th at you perhaps acted too 

hastily in this case.

President F ord. Mr. Mayne, I have thought about t hat a great deal 

because there has been criticism of the timing, but as 1 reviewed my 

thoughts prio r to the grantin g of the pardon, I had to look at this 

factual situation. If I granted the pardon when I did, it would as 

quickly as possible achieve the results tha t I wanted, which was to pe rmit our Government, both the Congress and the President, to proceed 

to the solution of the problems.

Now, some people say in th eir criticism, and I understand it and I 

am not critical of the po int they raise, I should have waited until Mr. 

Nixon was indicted, inferring that I should have then pardoned him 

if I was going to do so.

Well, other people say that I should have waited until he was convicted, if he was convicted, and at th at time I should have pardoned.

Others have indicated that I should have waited for a conviction 

and a jail sentence, if that were the result.

Now, all of tha t process, whether it is the indictment, the possible 

conviction, a conviction plus a jail sentence, would have taken, as I 

have tried to explain, at least 1 year and probably much longer, and 

during tha t whole period of time, Mr. Mayne, all of the things th at 1 

wanted to avoid—namely, the opportunity for our Government, the 

President and the Congress and others, to get to the problems we 

have—would have been I thin k deeply upset and roadblocked.

So I am convinced after reflection, as I was previously, that the 

timing of the pardon was done a t the right time.

Mr. Mayne. Thank you, Mr. President.

President Ford. Thank you, sir.

Mr. H unoate. The Representative from New York, Ms. Holtzman.

Ms. Holtzman. Thank you, Mr. Chairman, and Mr. Ford, I too 

wish to applaud your historical appearance here today.

At the same time, however, I wish to express mv dismay tha t the 

form at of this hearing will not be able to provide to the American 

public the full tru th and all the facts respecting your issuance of a 

pardon to Richard Nixon. Un fortu nately, each member of this committee will have only 5 minutes in which to ask questions about this most 

serious matter. And unfortunately, despite my urging, the committee 

declined to provide sufficient time for each committee member to ask 

the questions th at were appropriate. The committee declined to prepare fully for your coming by calling other witnesses, such as Alexander Plaig, Mr. Buchen, Air. Becker, and failed to insist also on full 

production of documents by you respecting the issuance of this pardon. 

I must confess my own lack of easiness at particip atin g in a proceeding th at has raised such high expectations and unfortunately will not 

be able to respond to them.

I would like to point out, Mr. President, tha t the resolutions of 

inquiry which have prompted your appearance here today have resulted from very dark suspicions tha t have been created in the public’s 

mind. Perhaps these suspicions are totally unfounded and I sin-
108

cerely hope tha t they are. But, nonetheless, we must all confront the 

reality of these suspicions—the suspicions tha t were created by the 

circumstances of the pardon, the secrecy with which it was issued, and 

the reasons for which it was issued, which have made people question 

whether or not in fact there was a deal.

President F ord. May I comment there? I want to assure you, the 

members of this subcommittee, the Members of the Congress, and the 

American people there was no deal, period, under no circumstances.

Ms. Holtzman. Well, Mr. President, I appreciate that statement 

and I am sure many of the American people do as well. But they also 

are asking questions about the pardon and I would like to specify a 

few of them for you so tha t perhaps we can have some of them 

answered.

I think, from the mail I have received from all over the country as 

well as my own district, tha t the people want to understand how you 

can explain having pardoned Richard Nixon without specifying any 

of the crimes for which he was pardoned, and how you can explain 

having pardoned Richard Nixon without obtaining any acknowledgement of guilt from him.

How do you explain your failure to consult the Attorney General of 

the United States with respect to the issuance of the pardon even 

though in your confirmation hearings you had indicated tha t the A ttorney General's opinion would be critical in any decision to pardon 

the former President?

How can the extraord inary haste in which the pardon was decided 

on and the secrecy with which it was carried out be explained? IIow 

can you explain the fact that the pardon of Richard Nixon was accompanied by an agreement with respect to the tapes which in essence, in 

the public mind, hampered the Special Prosecutor's access to these 

materials and was done, also in the public's mind, in disregard of the 

public’s right to know the full story about Richard Nixon’s misconduct in office?

In addition, the public, I think, wants an explanation of why Benton 

Becker was used to represent the interests of the United States in 

negotiating a tapes agreement when, at that very time, he was under 

investigation by the United States fo r possible criminal charges.

IIow also can you explain not having consulted Leon Jaworski, the 

Special Prosecutor, before approving the tapes agreement? I think, 

Mr. President, tha t these are only a few of the questions tha t have 

existed in the public's mind and unfortunately still remain unresolved.

Since I have very brief time, I would like to ask you in addition to 

these questions one fu rth er one: Suspicions have been raised that the 

reason for the pardon and the simultaneous tapes agreement was to insure tha t the tape recordings between yourself and Richard Nixon 

never came out in public. To alleviate this suspicion once an d for all, 

would you be willing to turn over to this subcommittee all tape recordings of conversations between yourself and Richard Nixon?

President F ord. Those tapes under an opinion of the Attorney General which I sought, according to the Attorney General, and I might 

add according to past precedent, belong to President Nixon. Those 

tapes are in our control. They are u nder an agreement which protects 

them totally, fully, for the Special Prosecutor's Office or fo r any other 

criminal proceedings. Those tapes will not be delivered to anybody un-
109

til a satisfactory agreement is reached with the Special Prosecutors 

Office. We have held them because his office did request that, and as 

long as we have them, held in our possession for the Special Prosecutor's benefit, I see no way whatsoever that they can be destroyed, that 

they can be kept from proper utilization in criminal proceedings.

Now, those tapes belong to Mr. Nixon according to the Attorney 

General, but they are being held for the benefit of the Special Prosecutor, and I think tha t is the proper place for them to be kept.

Mr. Hungate. The gentleman from Maryland, Mr. Hogan.

Mr. Hogan. Thank you, Mr. Chairman.

I am frankly amazed a t my good friend, the gentlelady from New 

York, and her accusatory opening statement, because certainly the 

gentlelady knows th at it is the usual, ordinary, and routine procedure 

of this subcommittee, and this committee, to operate under the 5-minute rule. There is nothing extra ordinary about us today allocating 5 

minutes of time to each member of the committee. We always operate 

that way. Her other observation about not doing any prep aratory work by 

calling other witnesses was rejected, as fa r as 1 recall, by all of the 

members of the subcommittee on the basis that this resolution of inquiry is directed to the President of the United States, and properly so. 

So, it would be totally inapprop riate for the resolution of inquiry to 

address itself to individuals other than the subject of this resolution 

of inquiry. Mr. President, I would like to join too in commending you for your 

statement and your openness and candor in coming to Congress in this 

very historic event. And frankly, I am concerned over some of the 

questioning by my colleagues, such as asking if all men are not equal 

under the law. Certainly, being the outstanding lawyers that they are, 

they know t ha t the pardoning power itself is inherently inequitable.

But, for a larger purpose, it grants to the Chief Executive of the 

Federal Government or of the State, in the case of State crimes, 

the power to pardon individuals who may or may not have been 

indicted or convicted of crimes. So, we should not expect this concept 

of equality under the law to apply here as if it were a trial of criminal 

otfenses. And furthermore, we also know tha t in our system of criminal 

justice, even the prosecutors themselves exercise prosecutive discretion to bring someone to justice or not. There is no question whatsoever 

that the Constitution gives to the President of the United States 

broad and absolute power to pardon individuals for criminal offenses.

We also know from the debates of the framers of the Constitution 

tha t they specifically rejected including in the Constitution the words 

“after conviction.” They also, in the debate at tha t time, indicated 

situations where it might be necessary or desirable to grant a pardon 

even before indictment, as was the case in this instance.

Now, Mr. President, I know tha t you followed very carefully the 

deliberations of this committee durin g the impeachment inquiry, and 

I know you are also aware tha t this committee unanimously concluded 

that the President was guilty of an impeachable offense grow ing out 

of obstruction of justice. So in a sense, could we not say that this 

was at least the basis for a possible criminal charge, which was 

already spread on the record, with ample evidence to justify it ?

44-274—75----- 8
110

So those who say you should have waited until there were formalized 

charges really are overlooking the fact tha t there was, in fact, a very 

formalized charge, an “indictment,” if you will, by this committee.

President Form. Well, the unanimous vote of the llouse Committee 

on the Judiciary, all 38 members, certainly is very, very substantial 

evidence the former President was guilty of an impeachable offense. 

There is no doubt in my mind tha t tha t recommendation of this full 

committee would have carried in the House which would have been 

even more formidable as an indication of criminal activity, or certainly, to be more specific, an impeachable offense. Of course, the 

prospects in the Senate with such a formidable vote in the committee 

and in the House would have been even more persuasive.

Mr. Hogan. Air. President, referring to the memorandum from Air. 

Ruth to Air. Jaworski enumerating the 10 possible criminal offenses, 

it is true tha t this committee addressed itself, if I am not mistaken, 

to every single one of these charges, and assessed the evidence as to 

each one of them, and we found them wanting. There was not sufficient 

justification for an impeachable offense and presumably a criminal 

offense.

Furthermore, the last paragraph of tha t memorandum says with 

regard to these 10 matters and I quo te: “None of these matters of the 

moment rises to the level of our ability to prove even a probable 

criminal violation by Air. Nixon.”

This memorandum does not include the obstruction of justice charge 

which I addressed myself to earlier, so T thin k we can logically assume 

tha t there would not have been any indictments resulting from any of 

Air. Jaworski's activities, other than in the area of obstruction of 

justice. And with fu rther corrolx>ration of that point, I allude to a story 

in the Wall Street Journal yesterday where Air. Jaworski (who, incidentally, not only agrees w ith your pardon and its legality, but also the 

timeliness of it) says very specifically tha t there w’ere going to be no 

additional disclosures resulting from his activities that the public was 

not already aware of relating to Air. Nixon. Therefore, those who are 

saying tha t you should have waited until there was a formal charge 

I thin k are missing the point tha t there already has been a formal 

charge approved by this committee and there probably would have 

been no others.

Air. President, do you not feel that the very acceptance of the pardon 

by the former President is tantam ount to an admission of g uilt on his 

pa rt ?

President Ford. I do, sir.

Air. Hogan. So again those who say th at they would have preferred 

tha t the former President admit his culpability before a pardon was 

issued are overlooking that fact?

President Ford. The acceptance of a pardon, according to the legal 

authorities, and we have checked them out very carefully, does indicate 

tha t by the acceptance, the person who has accepted i t does, in effect, 

admit guilt.

Air. Hogan. T hank you, Mr. President, and agairt I would like to 

express my personal appreciation for your candor and your openness 

and your cooperation with this coequal branch.

President F ord. Tha nk you very much, Air. Hogan.
Ill

Mr. Hungate. Mr. President, as you can see, the peculiar strength 

of this subcommittee lies in the fact tha t the subcommittee members bring so much knowledge to it and the subcommittee chairman takes 

so little away. I noticed in page 10 of your statement t ha t when you 

were hrst hit with the possibility of this responsibility you indicated 

that you wanted to talk to your wife before making a decision.

Mr. President, did you do that ?

President Ford. I certainly did, Mr. Chairman, because the prob­ ability of or the possibility of my becoming Presid ent obviously would 

have had a significant impact on her life as well as our lives.

Mr. Hungate. T hat destroys my theory tha t if you had talked to 

her you would have waited until indictment or Christmas Eve. Let me ask you if any attempt was made by you or your representa­ tive to contact the Federal pardon attorney as to his opinion as to customary procedures following the issuing of a pardon?

President F ord. I did not, sir.

Mr. Hungate. Now, Nlr. President, I go to page 20, and I am addressing myself to the health question. In the first responses provided by the press releases, one of these a t page 3, it refers to September 1(5. Now, was the date of this press conference after the pardon decision in which you are quoted: “I have asked I)r. Lukash, who is the head physician in the White House, to keep me posted through proper channels as to the former President’s health. I have been informed on a routine, day-to-day basis, but I don't think I am at liberty to 

give information.” My question is, Mr. President, had he reported prior to the pardon 

date or only after?

President F ord. Dr. Lukash gave me no information concerning 

President Nixon’s health prior to the time tha t I issued the pa r­ don. lie did at my request, when I heard rumors about the former President’s health, keep me posted in proper channels, but tha t all occurred a fter the pardon took place.

Mr. H ungate. Is the gentleman from Indiana seeking recognition?

Mr. Dennis. Thank you, Mr. Chairman. I would just like to request 

tha t we make a part of th e record the text of the opinion of the ILS. 

Supreme Court in Ex parte Garland^ 4 Wallace 333; and also the 

opinion of the U.S. Supreme Court in Burdick against the United 

States, 236 U.S. 79, which deals with the point tha t a pardon must 

bo accepted.

Mr. Hungate. 'Without objection, it will be made a part of the 

record.

[The documents referred to follow:]

Ex I’arte Garland

1. The act of Congress of J anuary 24th, 1865, providing that after its passage no person shall he admitted as an attorney and counsellor to the bar of the Supreme Court, and, aft er March 4th, 1865, to the bar of any Circuit or District Court of the United States, or Court of Claims, or be allowed to appear and be heard by virtue of any previous admission, or any special power of attorney, unless he shall have first taken and subscribed the oath prescribed in the act of July 2d, 1862—which latter act requires the affiant to swear or affirm tha t he has never voluntarily borne arms against the United States since he has been a citizen the reo f; that he has voluntarily given no aid. countenance, counsel, or encouragement to persons engaged in armed hostility there to; that he has neither
112

sought nor accepted, nor atte mpted to exercise the function s of any office whatever, und er any autho rity or pretend ed autho rity in hostility to the United 

Sta te s; and that he has n ot yielded a v oluntary support to any pretende d government, autho rity , power, or constitutio n within the United States, hostile or 

inimical thereto —operates as a legislative decree excluding from the practic e of 

the law in the courts of the United States all parties who have offended in any 

of the p artic ula rs enumerated.

2. Exclusion from the practice of the law in the Fed eral courts, or from any 

of the ordinary avocations of life for past conduct is punishm ent for such con­ duct. The exaction of the oath is the mode provided for asc ertaining the parties 

upon whom the act is intended to oi>erate.

3. The a ct being of this chara cte r par tak es of the na ture of a bill of pains and 

l>enalties, and is subject to the con stitutional inhibition again st the passage of 

bills of attain der, under which general designation bills of pains and. pena lties 

are included.

4. In the exclusion which the act adjudges it imposes a punishm ent for some 

of the acts specified which were not punishable at the time they were committed, 

and for other of the acts it adds a new punishm ent to th at before prescribed, 

and it is thu s with in the inhibition of the C onstitution again st the passage of an 

ex post facto law.

5. Atto rney s and counsellors are not officers of the United Sta te s; they are 

officers of the court, adm itte d as such by its order upon evidence of their possessing sufficient legal learn ing and fa ir private chara cter.

6. The order of admission is the ju dgm ent of the court th at the p arties possess 

the requisite q ualifications an d are en titled to appe ar as a ttorne ys and counsellors 

and conduct causes therein. From its entry the partie s become officers of the 

court, and are responsible to it for professional misconduct. They hold the ir 

office during good behavior, and c an only be deprived of it for misconduct ascertain ed and declared by the judg men t of the court after opportunity to be heard has been afforded. Their admission and the ir exclusion ar e the exercise of jud icial power.

7. The righ t of an at tor ney and counsellor, acquired by his admission, to ap pear 

for suitors, and to argue causes, is not a mere indulgence—a matter of grace and 

favo r—revocable at the p leasure of the court, or at the command of the legislature. It. is a right of which he can only be deprived by the judg ment of th e c ourt, 

for moral or professional delinquency.

8. The adm itte d power of Congress to presc ribe qualifications for the office of 

atto rne y and counsellor in the Fed eral cou rts cann ot be exercised as a means 

for the infliction of p unishm ent for the past conduct of such officers, aga inst the 

inhibition of the Constitutio n.

9. The power of pardon conferred by the Constitution upon the President is 

unlim ited except in cases of impeachment. It extends to every offense known to 

the law, and may he exercised at any time after its commission, either before 

legal proceedings are taken or during their pendency, or af ter conviction and 

judgment. The power is not s ubject to legislative control.

10. A pard on reaches the punishm ent presc ribed for an offense and the guilt 

of the offender. If g ranted before conviction it prevents any of the p enalties and 

disa bilities consequent upon conviction from attach ing; if gra nte d af ter conviction it remove the penalties and disa bilities and restore s him to all his civil 

rights. It gives him a new credit and capacity. There is only this limitation to 

its op eration: it does not restore offices forfeited, or property or int ere sts vested 

in other s in consequence of the conviction and judgment.

11. The petitione r in thi s case hav ing received a full pardon for all offences 

comm itted by his par ticipation, direct or implied, in the Rebellion, is relieved 

from all pen alties and disabilitie s attached to the offense of treason, committed 

by such partici pation. Fo r th at offense he is beyond the reach of punishm ent of 

any kind. He cannot, therefore, be excluded by reason of th at offence from continuing in the enjoyment of a previously acquire d rig ht to appear as an attorney 

and counsellor in the Fed eral courts.

STATEMENT OF THE CASE

On th e 2d of July , 1862, Congress, by “An a ct to prescribe an o ath of office, and 

for oth er purposes,” 1

 enacted :

“Th at hereafter every person elected or appointed to any office of honor or 

profit und er the government of the United State s, either in the civil, military,

1 18 Stat. at Large, 424.
or naval dep artments of the public service, excepting the President of the U nited 

States, shall, before entering ui>on the duties of such office, tak e and subscribe 

the following oa th or affirmation :

“ ‘I, A. B., do solemnly swe ar (or affirm) th at I have never voluntarily borne 

arms aga inst the United States since 1 have been a citizen the reo f; tha t I have

voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto; th at I have neither soug ht nor accepted, nor 

attempted to exercise the functions of any office wha teve r, under any autho rity

or pretended authority in hostility to the United St at es ; th at I have not yielded 

a voluntary support to any pretende d government, autho rity , power, or con stitution w ithin the United State s, hostile or inimical thereto. And I do fu rthe r swear 

(or affirm) tha t, to the best of my knowledge and ability, I will sup port and 

defend the Constitu tion of the United States aga inst all enemies, foreign and 

domestic; th at I will bea r tru e faith a nd allegiance to the s ame; th at I take this 

obligation freely, without any mental reservation or purpose of evasion, and th at 

I will well and faith fully discharge the duties of the office on which I am abo ut 

to enter, so help me God ;’ &c. “Any person who shall falsely tak e the said oath shall lie g uilty of per ju ry ;

• and, on conviction, in add ition to the penalties now prescribed for th at offence,

shall he deprived of his office, and rend ered incapable forever af ter of holding 

any office or place unde r the United Sta tes.”

On the 24th of Janu ary, I860,1

 Congress passed a supp leme ntary act exte nding 

w

these provisions so a s to embrace attorn eys and counsellors of the cou rts of the

United S tates. It is as follows :

“No person, af ter the date of this act, shall be adm itted to the ba r of the 

Supreme Court of the United States, or at any time after the fou rth of .March 

next, shall be adm itte d to the bar of any Circuit or Dis trict Court of the United

States, or of the Court of Claims, as an att orn ey or counselor of such court, or 

shall lie allowed to appea r and be hea rd in any such court, by virtu e of any 

previous admission, or any special power of atto rne y, unless he shall have first 

taken and subscribed the oath prescribe d in ‘An act to presc ribe an oath of 

office and for oth er purposes,’ approved Jul y 2d, 1862. And any person who shall 

falsely tak e the said oath shall be guilty of perjury, and, on conviction,” &c.

By the Judic iary Act of 1781), the Suprem e Court has power to make rules and 

decide upon th e qualifications of attorn eys.

At the December Term of 1860, A. II. Garland, Esquire, was admitted as an 

attorney and counsellor of the court, and took and subsc ribed the oath then 

required. The second rule, as it then existed, was as follows :

“It shall be requisite to the admission of attorn eys and counsellors to practice 

in this court, th at they sha ll have been such for three yea rs past in the Supreme 

Cou rt of the Sta tes to which they respectively belong, and that their private and

professional character shall appear to be fair.

“They s hall respectively ta ke the following oath or affirmation, vi z.:

“ ‘I, A. B., do solemnly swear (or affirm, as th e case may lie) th at I will demean 

myself as an attorn ey and counsellor of this court, uprightly, and according to 

law, and th at I will support the C onstitution of the United Sta tes.’ ”

There was then no oth er qualificatio n for attorn eys in this court than such as 

ar e named in this rule. In March, 1865, this rule was changed by the a ddition of a clause requiring an 

oath, in conformity with the ac t of Congress.

At the same term at which he was adm itted, Mr. Garland appeared, and Dr“- 

„ sented printed arguments in several cases in which he was counsel. His narr>°

continued on the roll of attorn eys from then to the present tim e: but the lat° 

Rebellion intervene d, and all business in which he was concerned at the tim° 

of his admission remained undisposed of. In some of the cases alluded to fees 

were paid, and in others they were partially paid. Having taken pa rt in the Re- 

_ hellion again st the United States, by being in the Congress of the so-called Confed era te States, from May, 1861, until the final sur ren der of the forces of such 

Confederate Sta tes—first in the lower house, and aft erw ard s in the Senate 

of that body, as t he rep resentative of the Sta te of Arkansas, of which he was a 

citizen—Mr. Garland could not tak e the oath presc ribed by the act s of Congress 

before mentioned and the rule of the court of March. 1865.

The State, in May, 1861, passed an ordinanc e of secession, purpo rtin g to wi thdra w herself from the U nion : and afterw ard s, in the same year, by anoth er ord inance, attached herself to the so-called Con federate States.

1 18 Stat. at Large, 424.
114

In Ju ly , 1865, Mr. G arlan d rece iv ed fr om th e P re si den t a pa rd on , by which the 

ch ie f m agis tr ate , re ci ting th a t Mr . G ar la nd, “by ta kin g p a rt in th e la te Re be llion 

again st th e go ve rn m en t, had m ad e him se lf liab le to he av y pain s and pen al ties ,’’ 

&c., di d th er eb y

"G ra nt to th e sa id A. II. G arl and a fu ll par do n and am ne st y fo r all offenses by 

him co mm itt ed , ari si ng from part ic ip ati on, dir ec t or im plied, in th e sa id Re be llion, co nd itio ne d as follo ws : T his p ar don to b eg in and ta k e e ffe ct fr om th e d ay on 

which th e sa id A. H. G ar la nd sh all ta k e th e oat h pr es cr ib ed in th e pro cl am at io n 

of th e P re si dent, date d Ma y 29 th, 18 65; an d to be void and of no effect if th e 

sa id A. II. G arl and sh al l h ere aft er a t any tim e ac quir e an y pro per ty w hat ev er in 

slav es, or m ak e us e of sla ve l ab o r; and th a t he first pa y al l co sts w hi ch may ha ve 

ac cr ue d in an y pr oc ee di ng s h it h ert o in sti tu te d again st his pe rs on or pr op er ty . 

And u po n th e f u rth e r co nd iti on th a t th e sa id A. II. G ar la nd sh al l notify th e Se creta ry of S ta te in w ri ti ng th a t he has rece iv ed and ac ce pt ed th e fo re go in g pa rd on .

The o ath re qu ir ed w as t aken by Mr; G arl and and a nnex ed t o th e p ar don. I t was 

to th e p u rp o rt th a t he wou ld th encefo rt h “f ait h fu ll y su pp or t, pr ote ct , and de fend 

th e C onst itution of th e U ni te d S ta te s an d th e un io n of th e S ta te s th e re u n d e r; 

and th a t he wo uld in lik e m an ner abid e by and fa it h fu ll y su pport all la w s an d 

pro cl am at io ns which ha d been m ad e duri ng th e ex is ting Reb ellio n w ith re fe re nc e 

to t he em an ci pat io n of sl av es .”

Mr. G arl and now pr od uc ed th is pa rd on, an d by pet itio n til ed in co urt as ke d 

pe rm issi on to co nt in ue to pra ct ic e as an at to rn ey and co un se llor of th e co ur t, 

w ithout ta kin g th e oa th re quir ed by th e act of Jan u ary 24tli, 1865, an d th e ru le 

of th e co urt . H e re st ed his applica tion pri nci pa lly up on tw o g ro u n d s:

1st. T h a t th e act of Jan u ary 24 th, 1865, so fa r as it af fe cted hi s sta tu s in the 

co ur t, w as unco nst it uti onal an d vo id ; an d,

2d. T hat, if th e act were co nst itutional , he w as re le as ed from co mplianc e with 

it s pr ov isio ns by th e pa rd on of th e P re si den t.

Messrs. R everd y J oh ns on an d M. II . Car pe nter , to r th e pet itio ne r, Mr. Ga rla nd ,

wh o ha d file d a bri ef of his ow n pre se nting fu lly his case.

I. In di sc us sing th e co nst it uti onality of an y la w of Co ng res s, th e re al qu es tio n

is, wo uld th e act ac co mplish a re su lt w hi ch th e C onst itut io n fo rb id s? I f so, no 

m att er w hat may be th e fo rm of th e act , it is unco nst itutional .

Thi s co ur t, in Green v. Ii id dl e, 2

 Bro ns on v. K in zi e, 3

 an d in M cC ra kc n v. H ay­ w ar d* h as he ld, th a t al th oug h th e S ta te s may le gi sl at e a t ple as ure up on remed ies 

merely , ye t if th e pra cti cal effect of su ch le gi slat io n, in a giv en case, be to bu rd en 

th e ri ght of a cr ed it or unr ea so na bl y, or w ithdra w th e debto r’s pro per ty fro m 

th e re ac h of th e cr ed itor, th en su ch la w is unco nst itutional , as im pair in g th e 

ob liga tion s of th e co nt ra ct . In Bro ns on v. K in zi e, C. J. Tan ey say s:

"W hate ver be lon gs merely to th e rem ed y may be alt ere d ac co rd in g to th e will 

of th e Sta te , pr ov id ed th e alt era ti o n do es no t im pair th e ob liga tion of th e co ntr act. B u t i f th a t effe ct is prod uc ed , it is im m ate ri al w het her it is do ne by actin g on th e r em ed y, or d irec tly on th e co ntr act itse lf. In eit her ca se i t is pr oh ib ited by th e C onst itut io n.”

Aga in he s a y s :

“A nd no one, we pr es um e, wo uld sa y th a t th ere is an y su b sta n ti al di fferen ce 

be tw ee n a re tr osp ec tive la w dec la ring a p art ic u la r co ntr act or cl as s of co ntr acts 

to be ab ro ga te d an d void, an d on e which took a w ay all remed y to en fo rc e th em , or 

in cu m be re d it w ith co nd itio ns th at re nd er it us eless or im pr ac tica ble to pu rs ue it. ”

In th e Pas se nger Cases.® th is co urt hel d th a t S ta te laws, nom in al ly m er e hea lth 

or polic e laws, w er e unco nst itutional , becau se, in th ei r effect, th ey am ou nt ed to a re gula tion of co m m er ce ; an d. th er ef ore , w er e an ex er ci se of po wpr ve sted 

ex clus ively in th e Federa l go ve rn m en t.

Th e ju dges of th is co urt ho ld office duri ng good be ha vi or . An act of Congr es s pa ss ed to da y, re quir in g th em to fa ke an oat h th a t th ey w er e no t al>ove 

fo rt y ye ar s of ag e. an d pr ov id in g, as th e ac t in qu es tio n do es in — re la tion to 

at to rn ey s, th at, “a fte r th e 4t h M arch nex t, no ju st ic e of th is co urt sh ou ld be 

ad m it te d to hi s se at , un less bo sh ou ld ta k e such oofh. even if he w er e pr ev io us ly 

a ju st ic e of s ai d co urt ,” wo uld be a pal pab le v io la tion of t he C on stitution, be ca us e 

it wo uld am ou nt to a di sq ua lifica tion to an y m an ab ov e fo rt y years of age, an d

- <3 T,’hp!,tnu i .

’ 1 TTOwn-d, 311.

4 O T ,1 R O S

5

 7 How ar d, 283.
115

be equivale nt to providing th at no justice of this court should rem ain in ofthre 

beyond th at age; while the Constitu tion provides th at the judges sha ll hold 

during good behavior. The C onstitution provides,® th at “no atta inde r of treas on shall work Corruption of blood, or forfeiture, except during the life of the person at tain ted. ” Now, an act of Congress, o r of a State, declaring th at before any heir should enter into his ances tral estates he should tak e an oath th at his ancesto r had not been attainted of treason, would violate this provision; and could be inte nded for no 

oth er purpose. Assault and bat tery is a crime punishable by fine of $50, but not with disqualific ation to hold oflice. Suppose A. today commits t ha t offense, is tried and fined. Tomorrow, Congress passes a law th at no person shall be ad mitted to hold any office of honor, profit, or trus t until he shall subsc ribe an oath th at he has never committed the crime of assault and bat tery. Is it not apparen t th at such 

act, in its pra ctical operation, would be ex post facto, as adding to the pun ishment of assault and battery an important penalty not attachin g when the crime 

was committed? These are instances, and many might be cited, illustra tin g the proposition th at an act is unconstitutional, which accomplishes a res ult forbidden by, or in conflict 

with, the Constitution. II. What, then, is the result accomplished by the act complained of, and how does that res ult accord with the spirit and provisions of the Con stitution?

This may be considered—

(1.) With reference to the petition ; and

(2.) Upon principle generally. 1. Conceding, for the purpose of this argument, that the petitio ner has been guilty of treason, for which, on conviction in the manner provided in the Con­ stitution (on the testimony of two witnesses to the same overt act, or on confession 

in open co urt), he might have been punished with death. , The President has fully pardoned him for this offence; and the constitutiona l effect of th at pardon is to restore him to all his rights, civil and political, in­ cluding the capa city or qualification to hold office, as fully in every respect as though he had never committeed the offence. Previous to the Rebellion, the i>eti- tioner was not only qualified to be, but actu ally was a member of thi s bar. In consequence of his supposed treason, and only in consequence of that, he sub­ jected himself to the liability of for feiture of th at office: but the pardon wipes out both the crime and the liability to punishment, and restores the p etitioner to the rights he before possessed, inclu ding th e rig ht to p ractice a t thi s bar. This act of Congress, however, fixes upon this petitioner, as a consequence of the offence, a perpetual disqualification to hold this or any oth er office of honor, profit, or tru st. In oth er words, the act accomplishes a res ult in direct opposition to the constitutio nal effect of the pardon. Dropping names and forms and considering the substanc e of thin gs the President says, by his pardo n : “You shall not be precluded from pra ctising in the Suprem e Court in consequence of your crim e; I pardon you.” The act sa ys: “You shall never practis e in the Supreme Court without ta k­ ing an oath which will be perjury , and then, on conviction of tha t, th at shall disqualify you.” The Pre sid ent is trying to pardon, and Congress to punish the petitio ner for the same offence; and the only question is, which power prev ails 

over the other? To exam ine thi s subject we must consider first the na ture and effect of the pardon gra nted to the pe tition er: and secondly, the chara cte r and effect of the oath prescribed by the act. I f i t can be shown th at the pardon, in i ts constitutio nal effect, extinguishes the crime and precludes the possibility of punishmen t: and th at th e oath in effect fixes a disqualification, which is in the natur e of a penalty or punishm ent for the same offence, then, of course, the conflict between the two is established, and we presum e it will be conceded, in th at case, th at the pardon 

must prevail.

First , the pardon. The Constitu tion provide s* 7

 th at the Pre sid ent “sha ll have 

power to grant reprieves and pard ons for offences against the United States, except in cases of impeachment.” This language is plain. “Offences,” mean s “all offences;” and then the express exception of cases of impeachment is a repetition 

of the same idea.

In United S tates v. Wilson,8

 Chief Justice M arshall, speaking of the pard oning 

power, s ay s:

8

 A rtic le i il. 5 3.

• Artic le ii. 5 2.

8

 7 Pet er s, 150.
116

“As this power had been exercised from time immemorial by the Executive of 

tha t nation, whose language is our language, and to whose judicial institutions 

ours bear a close resemblance, we adopt their principles respecting the operation 

and effect of a pardon, and look into their books for the rules prescribing the 

manner in which it is to be used by the person who would avail himself of it.”

This court, delivering its opinion by Mr. Justice Wayne, in Ex parte Wells9

quotes this language of Chief Justice Marshall with approval, and says furth er 

that the power granted to the President was the same that had before been exercised by the Crown of England. Now let us turn to the English and American 

authorities.

In Sharswood's Blackstone 10 it is said.

“The effect of a pardon is to make the offender a new man ; to acquit him 

of all corporal penalties and forfeitures annexed to tha t offence for which he 

obtains a pardon; it gives him a new credit and capacity; and the pardon of 

treason or felony, even after conviction or attainder, will enable a man to have 

an action of slander for calling him a traitor or felon.”

Bacon's Abridgement says: "The stroke being pardoned, the effects of it are 

consequently pardoned.” And refers to Cole’s Case, in the old and accurate 

reported Plowden,11 Bacon says, also : 12 “The pardon removes all punishment and legal disability.” 13 In Bishop's Criminal Law it is said :14

•"The effect of a full pardon is to absolve the party from all the consequences of 

his crime, and of his conviction therefor, direct and collateral; it frees him from 

the punishment, whether of imprisonment, pecuniary penalty, or whatever 

else the law has provided.”

In the Pennsylvania case of Cope v. Commonwealth,TM the court says: “We are satisfied, however, tha t although the remission of the fine imposed would not discharge tl»e offender from all the consequences of his guilt, a full pardon of the 

offence would.”

In the Massachusetts case of Perkins v. Sfcvens,’8

 it is said: “It is only a full pardon of the offence which can wipe away the infamy of the conviction, and 

restore the convict to his civil rights.”

And quoting from the attorney-general of tha t State, the court approves the 

following language:

“When fully exercised, pardon is an effectual mode of restoring the competency of a witness. It must be fully exercised to produce this effect; for if 

the punishment only be pardoned or remitted it will not restore the competency, 

and does not remove the blemish of character. There must be a full and free 

pardon of the offence before these can be released and removed.”

In other cas es1, a pardon was held to render the convict a competent witness, 

upon the ground that the pardon removed not only the punishment but the 

stigma of guilt.

These authorities show that the people intended to, and in fact did, clothe 

the President with the power to pardon all offences, and thereby to wash away 

the legal stain and extinguish all the legal consequences of treason—all penalties. all punishments, and everything in the nature of punishment.

The President, for reasons of the sufficiency of which he is the sole and exclusive judge, has exercised this power in favor of the petitioner. The effect of 

the pardon, therefore, is to make it impossible for any power on earth to inflict, 

constitutionally, any punishment whatever upon the petitioner for the crime of 

treason specified in the pardon.

III. The act applied to the petitioner, in substance and effect, visits upon 

him a punishment for his pardoned crime. It will be conceded tha t the effect 

of this act is to exclude the petitioner from this and from all civil office. That a 

permanent disqualification for office is a grievous punishment need not be argued 

in America.

In the matter of Dorsey 19 a motion was made for the admission of Dorsey as an 

attorney, and to dispense with administering to him an oath in relation to dueling,

9

 18 Howard, 815.

10 Vol. 2. p. 402. 

n

 Page 401.

12 Pages 415—16, notes a and b. 13 See, too, Gilbert on Evidence, 128; Brown Smallbrooke, 1 Siderfln, 52. v. Crashaw, 2 Bulstrode, 134 ; Wicks v.

14 S 71.3.

15 28 Pennsylvania State, 297. ’2 24 Pickering, 280.

18’• .Tones v. Harris, 1 Strobh art, 162, and People v. Pease, 8 Johnson’s Cases, 383. Po rter, Alabama, 293.
117

require d by an act of 1826. This act provided th at “all members of the general assembly, all officers and public functio naries, elected or appo inted und er the constitutio n or laws of the State, and all counsellors and attorn eys at law,” before enterin g upon their office, should tak e an oath th at they had never been engaged 

in any duel, and t ha t they never would be. The report of the case occupies about two hun dred pages, and is an able and elab orate discussion of this subject, and a full autho rity for the position we 

tak e in this case. It was the re held : 1. Th at in th at case the law prescribed a qualificatio n for holding office, which an individual never could comply with, and th at such act, as to him, was 

a disqualification. 2. Th at such disqualification was punishment. 3. Th at the retrospectiv e p art of the oath was unconstitutional. 4. Th at as a pa rt of the oath was unc onstitutional, and the cou rt could not separate it, the whole oath was unconstitutional, and the petitioner was entitle d 

to be admitted w ithout taking it.

Gohlthwaite, J., says : ” “I have omitted any argument to show th at disqualific ation from office, or from the pursu its of a law ful avocation, is a pu nis hm ent; that it is so, is too evident to require any illu stra tion ; indeed, it may be questioned whether any ingenuity could devise any penalty which would o perate more forcibly on society.”

In Barker v. Tlic People,"0

 a New York case, the cha ncellor says : “Whether the legisla ture can exclude from public tru sts any person not ex­ cluded by the express rules of the Constitution, is the question which I have alre ady examined, and according to my views of that question there may be an exclusion by law, in punishm ent for crimes, but in no other manner, and for no 

other cause.” In same case, in Supreme Court, where the opinion was delivered by Spencer, 

C. J., it is said : “The disfranchiseme nt of a citizen is not an unusual punishment ; it was the consequence of treason, and of infamous crimes, and it was alto gether d iscretion­ ary in the leg isla ture to extend that pun ishment to other offences.” Indeed, the very act we are considering provides this punishm ent for those who shall be convicted of perjury for tak ing the test oa th falsely. And more tha n all, the Constitu tion of the United States 21 itse lf is to the same 

effect. I t s ay s: "Judgment, in cases of impeachment shall not extend furth er tha n to removal from office, and disqualification to hold and enjoy any office of honor, tru st, or 

profit under the United S tates.” For the highest crimes, then, and on tria l in the most solemn form known to the Constitution, the only punishm ent is disqualificatio n. These authorities, as we ass ert, establish : 1. Th at the pardon absolves th e p etition er from all pu nish men t for his offence; 

and, 2. Th at the act in question does, in its operatio n upon the petitioner, disfranch ise him from holding office; and 3. That such disfran chisem ent is in effect a punishm ent for the same offence for which he has been p ardoned ; and. therefore. 4. That the act and the pardon are in conflict, and the pardon must prevail. IV. The foregoing objections are conclusive as regards Mr. Ga rland: but it might be omitting a duty th at every law yer owes his coun try, not to call atten­ tion to the other general objections to th is act. 1. Wh at right has Congress to prescribe other qualifications that are found in the Constitution: and what is the limit of the power? Of course the power is conceded to make perpe tua l or limited disqualific ation one of the pen alties of crime, applying the act prospectively. Such was the act sustained in Barke r v. The

People, before c ite d; but where does Congress get the power to disfranch ise and disqualify any citizen, except as punishm ent for crimes, whereof the party shall 

have been duly convicted? Congress can exercise none but actually delegated powers, or such as are in­ cidenta l and necessary to carry out those expressly granted. If thi s act is con­ stitutiona l. then the re is no lim it to the oath s th at may be hereafter prescribed. The whole matter rests in the discretion of Congress. A law requiring every public officer to swear th at he voted for a pa rti cu lar candidate at the last elec-

]fl P aw s 366. 368.

20 8 Co won. 686.

21 Article I, § 3.
118

tion, or leave his office, would be more wanton, but not less constitutional, tha n 

the one we are consider ing ; for if it is in the constitutional power of Congress to require these disfran chising oaths to be taken, then Congress alone can determ ine the ir nature. There is no appe al from its determ ination of any ma tte r within its con stitutio nal province.

2. The C onstitution provides : 22

“No person shall be held to answer for a cap ital or otherwise infam ous crime, unless on a presentm ent or indictm ent of a grand ju ry ; except,” &c. . . . “Nor 

shall he be compelled, in any crim inal case, to be a witness again st himself, nor be deprived of life, liberty, or property, without due process of law,” &c.

Now, suppose murder or treaso n to have been in fact comm itted by a public officer, but that there is no witnes s to estab lish the fact. Can Congress pass a law requiring him, as a condition to his furth er continuance in office, or ever after holding any office, to tak e an oath that he has not comm itted murder or trea son? 

If so, all the consequences which can follow from conviction on impeachment, viz., incapacity to hold office, may be visited upon the guilty party without in­ dictm ent, tria l, or witnesses produced again st him, and with out any process of 

law wh atev er; and Congress may by ex post facto laws brand the most trilling offence, or even a difference of political opinion, with total disqualication to 

hold office. Such rapid adminis tration of justice might often reach a correct re­ sult, and disfranchise a guilty man whose absence from office might not endanger the Rep ublic: but the question is, is it a constitutiona l method of es­ tablishing and punishing guilt?

3. The petitioner’s rig ht to practice in this court is property. In 

Holloway,** Wommack v. it was held by the cou rt unanimously, that “the right to exercise an 

office is as much a species of prop erty as any other thing capable of possession : 

and to wrongfully deprive one of it, or unjustly withhold it, is an inju ry which the law can redress in as ample a manner as any other wro ng; and conflicting 

claims to exercise it must be decided in the same manner as other claims involving any other right, if either of the claim ants insist on a j ury.”

In Ex parte H eyfron, 2* it was held to be “error to strike an attorn ey from the roll on motion without giving him notice of the proceeding,” the court sa yi ng : 

“It is a cardinal principle in the administration of justice, that no man can be condemned, or divested of his righ ts, until he has had an opp ortu nity of being hea rd.”

In the matter of Cooper.25 it was held th at the court, in passing upon the ad ­ mission of an applicant to practis e as an atto rney, acted judicially, and its de­ cision was reviewable in the a ppe llate court.

In Ex parte Seeombe,2* this court say (by C. J. Taney) :

“It rests exclusively with the cou rt to determine who is qualified to become one of its officers, as an atto rne y and counsellor, and for what cause he ought to 

be removed. The power, however, is not an arbitrary and despotic one, to be exercised at the pleasure of the court, or from passion, prejudice, or personal ho stili ty; but it is the duty of the court to exercise and regulate it by sound and 

ju st judicia l discretion, whereby the rights and independence of the bar may be be condemned, or divested of his rights, until he has had an opportu nity of being of the cou rt its elf.”

These cases show th at the petitio ner has a vested right in his office as an at­ torney of this court, of which he can only be deprived by some reg ula r judicia l 

proceeding. He may be removed for cau se; but the adjudication of the cou rt in the premises is a judicia l judgment, which may l>e reviewed on appeal.

Depriving the petitioner, therefore, of his office by an enforcement of this act of ( ongress, is depriving him of his prop erty withou t due process of law.

Mr. R. H. Marr, also for the petitioner:

1. The President has granted to the petitio ner a “full pard on and amnesty.” Here are two words, and the meaning of them is different.

The mean ing of the word pardon has been discussed and is well known. The 

word “amnesty” is not of freq uent use in the English law; for the clemency

99 Article V. Amendments. "

1

 2 Alabama, 31.

94 7 Howard’s Mississippi. 127.

” in 6 7 ‘ S e e a l s o 2 0 10 Howard. 9. ’ Str oth er v. S tate . 1 Missouri, 554 or *772.

^

r

‘ M®r r had himself filed a petition similar to th at of Mr. Garland, for nermbsion to ^

r a c t

. 

a n attorn ey and counsellor of the court without taking the oath , 

v

/h e a ct of Congress and the rule of the court. He had been engaged in the Rebel- nnUn v . o received a full pardon from the Pres ident. It was understoo d th at the decision W0U,< is from the brief filed in his own case. I also embrace, in principle, his. The argument here given
119

which is expressed by that word is usually exercised in England by what they call an act of indem nity. Let us inquire into its meaning. Neithe r the English law nor our law thro ws gre at light upon the matter. It may be well to trac e its history, and to see how it was unde rstood originally, how it has been uniformly understood since, and is now understood, by some of the most polished nations of the world. If we tur n our attention to France , par­ ticularly, so long and so often the spo rt of political storms and revolutions, we shall find in her jurisprud enc e a bundant light to guide us in our inquiry as to the 

meaning and effect of the am nesty. The word comes from the Greek, Ayvysna, and means oblivion, the sta te or 

condition of being forgotten , no longer remembered. When Thrasybulu s had overcome and dethroned the Th irty Tyran ts, he induced his followers, by his persuasive eloquence, and by the influence which his noble virtues gave him, to pass an act of perpetual oblivion in favor of an oligarchic al party, from whom they had suffered atro ciou s wro ngs; to forget, to remember no longer, the past offences, grievous a s they w’ere; and this ac t o f clemency, runn ing back to about 

the year 403 B.C., he called A/tjojsrla. The Romans, too, had the ir amnesty, which they called Abolitio, and which 

is thus defined in their law: “Abolitio est deletio, oblivio, vel extinctio aecusationis.” This high prerogative was exercised by the kings of Spain from a very remote pe rio d; and its effec t28 is, to condone the pena lty, and to obliterate, efface 

tin* mark of infamy. From an early period, thi s prerogativ e has been exercised by the kings of France, and its effect has l>een the subject of the most minute jud icial investigation.

Merlin58 defines the wo rd: “Grace du souverain, par laqu-cllc il ven t qu'on

oublie ce qui a dtd fait contre lui on contre sea ordres." Fleming & Tibbins, in t he ir Dictionary, 30 define it: “Pardon qu'on accorde d dcs

rcbelles ou d des ddserteurs.” In the matter of a person named Clemency,31 the Court of Cassation sa y : “If the effect of l ett ers of pardon is limited to the remission of the whole or a pa rt of the pen alties pronounced again st one or more indiv idu als ; if they leave the offence still subsisting, as well as the culpability of the pardoned, and even declare the justice of th e condemnation, it, is otherwise with respe ct to a f ull and

complete amnesty, which car ries with it the extinction of the offences of which it is the ob ject; of the prosecutions commenced or to be commenced; of the con­ demnations which may have been or which may be pronounc ed; so th at these offences, covered with the veil of the law, by the royal power and clemency, are, with respe ct to cou rts and tribunals, as if they had neve r been committe d,

saving to thi rd persons their rig ht to rep ara tion, by civil action, for injury to 

them.” Clemency had been guilty of the ft, in a time of gre at sc ar city ; and was am­ nestied. She a fte rw ards committed the same offence, and the prosecution insisted on inflicting upon her th e accumulated penalties due to a repetition of th e offence. But the court held th at the first offence had been so completely annih ilia ted by the amnesty, th at it could not be considered in law as having ever existed or been committed, insomuch th at the offence for which she was then prosecuted, though in reali ty a repetition of the first, could be considered in law only as a 

first offence, and punished a s such. Girardin was marrie d in 1822. In 1834, by judgment of the court of assizes of the dep artment to which he belonged, he was condemned by default, and sentenced to dea th for some political offence; and civil dea th was a consequence of th at judgment. In 1840, an amnesty was declared by royal ordinance, in favo r of all und er condemnation for political crimes or offences. Supposing, as the effect of the civil dea th pronounced against him operated a dissolution of his marriag e, th at it was necessary to have it celebrated anew. Girardin ins titute d some proceeding, in the na ture of a mandamus, again st the 

mayor of his town, to compel the perform ance of the marria ge ceremony; and the court of first instance ordered the new celebration to tak e place. The mayor ap peale d; and the royal cou rt reversed the decision, upon the 

ground t h a t:

28 Tapia , Fe brero Novissimo, tom o 8. p. 56. § 14.

29 Repert oir e d e Juris prud en ce , Tit. “A mn istie.”

:l" 'fit . “A mn istie.”

81 De Villeneuve & C ar rette , vol. 1825, 1S27, p art 1, p. 1S5.
120

‘•The am nes ty ha d annih il ate d th e se nt en ce pr on ou nc ed again st G irar din , had ab ol ishe d th e pa st , an d had re in te gra te d th e am nes tied in th e pl en itud e of hi s civil li fe ; th at, co ns eq ue nt ly, he is to he re gard ed as hav in g ne ve r bee n de pr iv ed of civil li fe ; and th a t th e ne w ce le bra tion wou ld he in some so rt an act of de rision , an d contr ary in ev er y re sp ec t to th e sa ncti ty of m arr ia ge.” "2

By w ri t of err or. G ir ard in so ug ht , in th e C ourt of C as sa tion , th e hi gh es t ju dic ia l tr ib u n al in Fra nc e, a re vers al of th e ju dgm en t of th e ro yal co ur t. B ut th e C ou rt of Cas sa tion re je ct ed th e w ri t of err or, an d aff irm ed th e ju dgm en t of th e ro yal cou rt. Th e c ourt s ay :

“S ince th e ob ject of th e am ne st y is to eff ace, co mpletely, th e p ast —t h a t is to say, to repl ac e th e am ne st ed in th e po sition in which tii ey w er e be fore th e 

co nd em na tio n ha d been in cu rr ed , it fo llo ws th a t it pr od uc es th e co mplete re ­ es ta blish m en t of th e am ne st ie d in th e en jo ym en t of th e ri ghts whi ch th ey ha d be fore th e co nd em na tio n, sa vi ng th e ri g h ts of th ir d pe rs on s.” 33 It may be sa id ge ne ra lly, we th in k, th a t par don is usu al ly gra nte d to an in di­ vi du al ; am nes ty to a cla ss of pe rson s, or to a who le co mm un ity . Pard on us ua lly follo ws co nv ictio n, an d th en it s effect is to re m it th e pen al ty . A mne sty us ua lly preced es, bu t it may fol low tr ia l an d co nv ictio n, an d it s ef fe ct is to obli te ra te the pa st, to leav e no tr ace of th e offenc e, an d to pla ce th e of fend er ex ac tly in th e po sitio n whi ch he occu pied be fo re th e offense w as co m m itted, or in which he wo uld ha ve been if he ha d no t co m m itte d th e o ffence .

II . T he P re si dent had th e ri g h t to g ra n t an am ne st y. The C onst itution giv es him unlim ited po wer in re sp ec t to par don , sa ve on ly in ca se s of im pe ac hm en t. Th e C on st itut io n does not sa y w hat so rt of p ard o n : bu t th e te rm be ing ge ne ric nec es sa rily in cl ud es ev er y spec ies of pa rd on, in div id ual as well as ge ne ra l, co n­ ditio na l as we ll as ab so lu te. I t is, th er ef ore , w ithin th e po wer of th e Pre si den t to lim it his pa rd on , as in th os e ca se s in whi ch it is in div id ual and a fte r con­ viction, to th e m er e re le as e of th e penalt y—it is eq ua lly w ithin his pr er oga tive to ex te nd it so as to incl ud e a who le cl as s of of fend ers— to in te rp ose th is ac t of cleme ncy be fo re tr ia l or convic ti on; and no t merely to ta k e aw ay th e pe na lty, bu t t o f or gi ve a nd o bli te ra te th e offenc e.

It is w or th y of re m ar k, th a t Con gr es s st ands co m m itted as to th e exte nt of th e pard on in g po we r, an d th e mo de of ex er ci si ng th a t po w er by pro cl am at io n. By th e act ap pr ov ed 17 th Ju ly . 1862. en ti tl ed “A n ac t to su pp re ss in su rr ecti o n '' Ac., se ct ion 13, it is de clar ed , th a t “T he P re si dent is he re by au th ori ze d, at an y tim e here aft er, by pr oc la m at io n, to exte nd to pe rs on s who m ay ha ve p art ic i­ pa te d in th e e xis ting Re be lli on in an y S ta te or p a rt th er eo f, pard on and am ne sty, w ith su ch ex ce pt ions an d a t su ch tim e and on su ch co nd itio ns as he m ay dee m ex pe di en t fo r th e pub lic w el fa re .”

Mr. Sp ee d, c on tra , fo r th e U ni ted S ta te s:

Gen tle men pr es en t th em se lv es here wh o w er e onc e p ra cti ti o n ers be fo re th is co urt, bu t wh o confess in fo rm th a t th ey hav e been tr a it o rs , and v ir tu all y co nfes s th a t th ey hav e fo rf ei te d th e pr iv ileg es which th ey had under th e ru le s of th is co ur t. Con fess ing al l th is, th ey m ain ta in th e ir ri ght to ta k e th e ori gin al oat h ag ai n, an d to com e ba ck to pra cti se be fo re th is co urt be ca us e th ey hav e bee n pa rd on ed b y th e P re si den t.

Who is a co un se llo r or att o rn ey ? Opp os sing co un sel see m to th in k th a t a man ha s a n atu ra l .righ t to pra cti se l a w ; th e sa m e so rt of ri g h t th a t he has to loc om o­ tio n. an d ev en to lif e. B ut th is , we su bm it, is no t so. The la st -m en tion ed ri ghts w er e give n to us by th e C re ato r; and go ve rn m en t is m ad e to pre se rv e them . Th e go ve rn m en t doe s no t give th e ri g h t to li fe, no r th e ri ght to loco motion, thou gh it pro te ct s us al l in th e ex er ci se of bo th. W e so m etim es ca ll th e pr iv ileg e to pra ct is e la w a ri ght, but th is is a m er e m an ner of sp eak in g : fo r it is. in tr u th , bu t a pri v il eg e; a pr iv ileg e cr eate d by th e l a w ; h eld under th e la w , an d ac co rd in g to th e te rm s an d co nd iti on s pr es cr ib ed in th e law . Not be ing a n atu ra l ri ght, an d one so pr ot ec te d, but a ri g h t rece ived , an d up on co nd itio ns an d te rm s, th e ou es tio n in th is ca se is. ca n th e le gis la tu re or th is court pre sc ribe su ch co nd i­ tio ns as a re s ta te d in th is o ath ?

W he nc e came th e po wer of th is co urt to ex ac t of an att o rn ey an oat h of an y ki nd ? No oa th is pr es cr ibed in th e C on stitution, nor in th e Ju d ic ia ry Act of 1789. W he nc e come s th e po wer? T’nde r th e ac t of 1789 th is court is dou bt le ss ve ste d w ith th e po wer to pr es cr ib e one . U nde r th a t po wer th is court pr es cr ib ed th e old 34 oa th . B ut why th a t oat h an y m or e th an an y oth er oath ? W h at p a rt of th e

32 v P ’nnp uvp A Car rp ttp, 18 40, p a rt 2, p. 872 , &c.

” T<1. 1 850. p a rt 1. n. 67 2- 3.

34 See it, su pr a, p. 836.
121

Constitution restrains the court to the point of prescribing this oath, and this 

oath only? None. Then if the court could prescribe this old oath, can it not prescribe another and different oath? No, say opposing counsel, it cannot; and 

especially it cannot prescribe a retroactive oath. But really there is no retroaction about this law. Every qualification is retroactive in one sense. A man presents himself to qualify under the old rule as a 

counsellor and attorney of this court. What is the question? It is as to his past life, as to his past conduct, and as to his then sufficiency because of his past life and past conduct. His “private and professional character shall appear to be fa ir,” said the rule. Moreover, we submit tha t every man stands here with a continuing condition of that sort upon him. The condition attaches every hour in which any man stands before the courts. It is not simply tha t he fa, at the time he takes it, a man whose private and professional character appears fair. Could any gentleman, having committed yesterday an offence for which, if the court knew when he was admitted tha t he had been guilty of, he would not have been admitted—could he stand here to-day and contend tha t an exclusion on account of tha t offence would be retroactive? The qualification does not infer 

as a necessity th at the counsellor admitted will both then and for all future time

be qualified. He may disqualify himself. Being once qualified, he must live up to th at rule which qualified him at the first. Suppose a member of the liar of this court, having been once qualified for admission, were guilty of perjury before this court, does he ever afterwards continue qualified? There is, then, nothing 

retroactive in this qualification. Is it a penalty? No; only a qualification. Take it as an original matter, say the opposing counsel, it is one thing; take it as a question retroactive, it is another thing. But it is always an original question whether this court cannot change its rules and repeat the qualification, either as to moral qualities, as to professional skill and ability, and even as to political crimes. Who doubts tha t it is competent for the court to-morrow morning to read a rule here that shall require every gentleman who practises at this bar to submit his pretensions for sufficiency over again? But the power to make the rule contains the power to 

repeal the rule ; the power to make the rule and repeal the rule contains the power to modify and to change the rule as the court may see proper to do. Under the act of 1789, then, it was competent for this court, by the authority 

given under t hat act, to pass such a rule as tha t objected to, and to make such a rule applicable not only to those who present themselves in the future, but applicable to all who appear here with a previous license to practice law. But. if under the act of 1789 the court cannot make the rule, we have the act of Congress of 24th January, 1865. Cannot the legislature prescribe the qualifica­ tions which the counsellor shall have; the length of time he shall have been at the bar ; the number of books, or the very books, tha t he shall have read and understood; tha t he shall not practise in this court at all, unless he shall have 

practised in the Federal courts in the several States; tha t he may practise in this court though he had never appeared before the Supreme Court of a State? Where is the limit? Congress has the power. IIow can you limit tha t power? Can you limit it because Congress may abuse tha t power? Opposing counsel argue about this government becoming a government of faction, a government of party, &c., if these powers exist in Congress. This court has said too often, and it is too familiar to the judges for me to do more than mention it, tha t the fact tha t a 

power may be abused is no argument against its existence.

It is said Congress cannot exact such an oath of office from attorneys, or from 

any one else; but on the face of the Constitution there is such a power given. The word “oath” occurs but three times in the Constitution; once its prescribes an oath to be taken by the President; next, it is declared tha t the senators and representatives before mentioned, and the members of the several State legis­ latures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation to support this Constitution ; “but no religious test, it is ordained, shall ever be required as a quali-,

fieation to any office or public trust under the United States.” Why this exception? 

Simply because the framers of the instrument knew that if the exception was not put in the instrument, there would lie the ability to require a religious test. That one sort of oath alone is forbidden by the Constitution. From tha t provision it is to be inferred that other oaths may be exacted. The inference extends to senators and members of the House of Representatives; it even reach to that 

point—a

 point not now before the court. Some persons have argued that this 

oath in the Constitution cannot be changed by the Senator or House of Repre-
senta tiv es; th at all the Senate or House have to do, is to inquire as to the age 

and residence of the party. Have not the Senate a right to go beyond tha t? Have 

they not the right to expel a man from the body? T ake the case of Breckenridge, 

who was exp elled; the Senate recording upon its jou rna ls th at he was a tra ito r. 

Could th at man present credentials, and demand th at he should be formally 

admitted, even though he might be again expelled? It was in our view of the 

Constitution th at Chief Justice Marshall, in McCulloch v. The Sta te of Mary­ lan d^’ says, that the man would be insane who should say th at Congress had 

not the power to require any oth er oath of office tha n the one mentioned in the 

Constitution.

As to the expediency and the propriety of passing such an act as that of 24th 

January, 1865, th at involves a question o f duty in Congress, with which this 

cou rt has nothing to do. It would seem that, in times such as we have had, 

some oath ought to be required th at would keep from this bench and from this 

bar men who had been guilty, and were then guilty, of treason. There was a 

lat e associate jus tice upon this bench, a gentleman for whom personally all 

had high regard. He lef t this bench and went off to the Confederacy. Suppose 

lie h ad not res ign ed; suppose thnt this judge had come back here and demanded 

to tak e his seat on the bench; could you have received him in your conferenceroom either pardoned or unpardoned? Would the cou rt regard itse lf as discharging its duty, if it took him into conference, guilty, as he confessed himself 

to be, of treason? I know tha t th e court would not.

Will the judges adm it men to minister at the bar of justice, whom they would 

not adm it like men among themselves? Will they say th at it is unco nstitutional 

to keep such men from the bar by an oath like this, bu t th at it is quite con stitutional to keep them from the bench? If a man has a righ t, withou t taking this 

oath, to come here among us, a nd stand a t this bar, and exercise all the functions 

of an attorney and counsellor in his court because he has a pardon, would not a 

judge, though guilty confessedly of treason, have a like rig ht to return to the 

ben ch;—if he had been pardoned ? Why could he not do it? Only because this 

thing of office, this thing of privilege, is a creatur e of law, a nd not a na tural right. 

Being a creature of law, no none can, like a parricide, stab th at law, and claim 

at the same time all its privileges and all its honors. He would destroy the 

very government for which he ass erts a rig ht to act. This he cannot do. The 

case of Cohen v. Wright ““ bore strongly in our favor. The re the constitution of 

Californ ia prescribed an oath, to be taken by “members of the legislature and 

all officers, executive and jud icial.” I t then declared th at “no o ther oath, dec laration. or test, shall be requ ired as a qualification for any office or public trus t.” 

On the 25th April. 1863, the legisla ture passed an act, declaring th at a defendant 

in any suit pending in a court of record might object to the loyalty of the p laintif f; 

and thereupon the plaintiff should tak e an oath, in add itio n to other things, 

th at lie had not, since the passage of the act, aided or encouraged the Confedera te States in their rebellion, and th at he would not do so in the future. 

In defau lt of his tak ing the oath , his su it should be absolutely dismissed, and 

no oth er sui t should be mainta ined by himself, his grantee, or assigns, for the 

same cause of action. All atto rneys-at-law were require d to tak e the same oath, 

and file it in the county clerk’s office of their respective co untie s; and to practise 

witho ut taking it, was declared a misdem eanor. A few days after the passage 

of the act, an action of assumpsit was brought in one of the cou rts on a contract, 

which, as would seem from the opinion in the case, existed at and before the 

passage of the act. The pla intiff was required to tak e the oa th ; and having 

refused to do so, his case was dismissed, and judgment rendered th at it should 

not again be brought. The att orn ey appearing in the cause refused to take the 

oath, and he was debarred . Both questions were passed on by the Supreme Court, 

and the oath sustained as equally applicable to both litigants and attorneys. The 

cou rt say, in reference to a ttorneys, th at the legislatu re “has the power to regulate 

as well as to suppress pa rti cu lar bran ches of business deemed by it immoral and 

prejudicia l to the general good. The duty of government comprehends the moral 

as well as the physical welfare of the state.” In reference to the objection that 

litigants are deprived of rights by a process not known as “due process of law .” 

which is guaranteed by the C alifornia constitution, the cou rt sa y: “As one Sta te 

of the Union. California has the rig ht to deny the use of he r courts to those 

who have committed or inten ded to commit treason aga inst the n atio n.”

35 4 Whaton, 416.

“ California. 225. The report, as given. Is extracted from a printed statem ent of Mr Henderson’s argument in Summings v. Missouri. «<.ciueui. ui air.
123

The California ease, indeed, was, we adm it, decided on a prospective st at ute ; and the court, in t ha t case, say there would be a doubt if it was retroac tive . Upon th at subject, as we have said before, we have no do ub t; because the license and privilege of every gentleman here, at the bar, is upon a continuing condition, and is subject to the power of this court, subject to the power of Congress to change the rule, there being no natural, inaliena ble right to occupy the position. .!//•. Stan bery , special counsel of the United Sta tes, on the same side, and

against the pe titio ner: I. A pardon is not, as argued, all-absorbing. It does not protect the party from all th e consequences of his act. What is th e old Latin maxim th at governs pardon? Itex non potest dare gratian cum injuria et damno aliorum. A pardon, while it. 

absolves the offender, does not touch the r igh ts of others. Suppose th at the re is a lienal sta tute again st an offence, and the policy of the law being to dete ct the offender, there is a promise of reward to the informer, upon his conviction, to be had. If a pardon is given to th at offender, wh at is the consequence upon the informer, who draws his right simply out of the offence and the conviction of the offence? Does it tak e away his rig ht to the fine, or the liab ility to pay him the fine? If the fine is half to the in form er and half to the public, what is the effect? The half to t he public is gone, but the half to the info rmer is not gone. There is one consequence ari sin g out of the offence that the p ardon does not reach. Put another case. Suppose a man is indicted and se nt to th e p enitentiary for life, and th at the consequence of the confinement is declared by law to be th at he is 

civilite r mortuus—dead in the estimation of the law. During his confinement his wife is released from the bonds of matrimony. She is a widow in the estimation of the la w : her husband is dead, so fa r as the law can see. She ma rrie s again. After all th at comes execu tive clemency, make s the offender a new man, pardons the offence, and, if you please, all the consequences. The man is no longer civilite r

mortuus; again he is probus legalis, or legalis homo; but shall he have his wife, 

however willing she may be? Does this pardon divorce the newly-married parties , and annul their marria ge? Does it make the first husband just the man he was, and with all the rights he had when he comm itted the offence? No. Suppose it is some ecclesiastical penalty th at has been in cu rred : th at some incumbent has lost his office as a pa rt of the punishm ent of the offence, and aft erw ard s the king chooses to pard on him. Wh at does Baron Cornyns say, in 

that case, as to restoration to rights?37

“A pardon to the parson of a church of all contempts for acceptanc e of a 

plu rality does not restore him to the former church.” “So a pard on does not discharge a thin g consequent, in which a subject has an intere st vested in him: as if costs are taxed in a spiritua l court, a pard on of the 

offence does not discharge the costs.” Pardon is forgiveness, but not necessarily res to ra tio n; it restores many things— not all things. Fo r centuries, it has been a question in England, whethe r a pardon makes a man fit to si t in the jury-box, where the offence involves a forfeiture of his rig ht to sit in the jury-box : and so whether a pardon restore s a man to com­ petency as a witness, when the crime of which he sta nds convicted excludes him from being a witn ess? On that question, I should suppose th at much depends.on 

the term s of th e pardon. What are the rights of this court and the rig hts of Congress, also, with regard to those who a re to pra ctise here? There are certain things in which neither the executive dep artment nor yet the legis lative depar tment can interfere with this bench: and I am glad it is so. No law can deprive y our honors of y our places here during life or good behavior. No President can remove a judge from this bench : and thank God it is so. No law’ of Congress can remove a judge from thi s bench. I know the re have been laws of Congress th at have removed United States judges from lower benches tha n this, but their validity has been alwa ys questioned. But no Congress has ever dared to pass a law to remove a judg e from this bench, or to abolish this bench, o r change th e struc ture of the Supreme Court of the United 

States. What nex t? Congress, it is certain, cann ot int erf ere with your proper judicia l functions. Wherev er any thing is commanded of you by Congress th at interf ere s with the upr ight and im partial and unfettered judicia l authority th at you have, such a law is void, and invades y our dep artm ent, j us t as dis tinct and una ssailab le as the power of Congress itself or the executive power i ts elf ; so th at if this law, which prescribes an oath to be taken by counsellors of thi s court, invades the prop er and exclusive power of this court—if Congress has no rig ht to say what

sr Vol. 5. p. 244.
124

lawyers shall practise here or what shall be their qualifications—if th at is a 

ma tter exclusively for this court, then, undoubtedly and beyond all question, this 

is a void law.

But let us consider w hat Congress may really do w ith regard to thi s cou rt and 

with regard to its officers; le t us see the gre at field over which legislation walks 

undisturbed in reference to it. Who made this number of ten judges here? 

Congress. And they can pu t twelve here, or tw enty, if they see fit. One they cann ot 

take from here by act of Congress, bu t only by impeachm ent af ter due trial. Wh at 

furth er can they not do? They fix your s al ar ie s; but the moment th e law is passed 

and approved, the sa lary so fixed is beyond the ir power to reduce, not to increase. 

They may force the judg es to tak e more, but they cann ot require them to take a 

dollar less.

Wh at nex t can they do? This court sits here in thi s Capitol. Is th at not by 

autho rity of law? Why is there a chief justice to preside here? Was he made by 

this bench? Not at al l; hut made by law. Why are the judges sitting here now 

to hold a term? Of th eir own motion? Not at a ll ; but und er the a uth ority of law. 

Why are the judges requ ired to visit all the circuits, at gre at personal inconvenience perh aps? On th eir own motion? No; by a uth ority of law.

Passing from the bench. Wh at is the clerk ? An officer of this court, appointed 

by this court; but under wh at autho rity? By law. Who pays him? He is paid by 

law. Wh at is he? An officer merely of this court, or a n officer of th e United States 

under the laws of the United States? He is the la tte r in every respect. Then, your 

marshal; who sends him here, and compels him to he here? Congress. It is by 

au tho rity of law. All the mach inery of the court, so fa r as its officers are concerned, comes to you by statute . The s tatute says you shall have one marshal, not 

tw o; one clerk, not three.

A class remains ; the a ttorne ys and counsellors th at practice here. Under what 

autho rity is it that we have attorn eys and counsellors here, and that they 

have rights to be heard here? Did your honors give us these rights? Is it by g ran t 

from this court th at there are counsellors and attorneys here ? No. It comes by 

act of Congress. The Constitu tion is silent upon it. The word “attorn ey” is not 

mentioned, and the word “counsel” is only mentioned in it as the right of a 

l»erson accused of crime. It is an act of Congress th at creates u s and gives us the 

right to ap pea r here a s attorne ys and counsellors a t law und er c ertain limitations. 

Congress has imposed very few upon us. Congress very wisely have given to 

the court the power to receive or to exclude, and to lay down the term s upon 

which a counsellor sha ll be admitted.

But when you are exercisin g th at power with regard to attorn eys and counsellers you are exercising a power granted by Congress, and we stand here as 

atto rne ys under th at law and say to your honors, “Admit u s ; here are all the 

things th at you have required and all th at the law has req uir ed; adm it us.” Is 

it not so, tha t in everything in which Congress has given you the power over us, 

to adm it us or to exclude us, you ge t t ha t power by law? Who prescribe s the oath 

of the attorney? Is th at left to the court merely, or has th at been exercised by 

Congress? The original oath require d of attorneys is not found in the Con stitution. The Constitutio n, upon the subject of oaths to be administered, rela tes 

only to oath s of office of persons appo inted or elected to office under the Fed eral 

autho rity . Attorneys, as it is adm itte d on the other side, are not such officers, and 

the oatli pointed out by the Constitu tion has nothing to do with lawyers. But 

Congress undertook, in the original Jud iciary Act, to say th at in all courts of the 

United States the parties may plead and manage their own causes personally, 

“or by the assistance of such counsel or attorneys-a t-law as by the rules of the said courts respectively shall he perm itted to manage and conduct causes th ere in.” 

Congress gives power to the court to prescribe the oath ; and to exercise over 

its counsel all wholesome control.

Wh at furth er may Congress do? If under the autho rity thu s given to you over 

atto rne ys you have a right to prescribe an additional oath, may not Congress do 

the same thing? Is there any constitutio nal objection the re? Has Congress exhau sted all its power with reference to such a body of men as attorn eys and 

counsellors in the courts of the United State s, so t ha t it can do nothing furth er 

and lay down no furth er rule for admission or exclusion, for oath, for bond, for 

secu rity ? Not at all. The very first exercise of the power under which we tak e 

our first right to be at torney s and counsellors here remains ; it is not exhausted : 

and no one can assign any reason at this moment why Congress, in its power 

over the attorneys and counsellors of thi s court, may not prescribe rules of 

admission, residence, and a thou sand other things, th at migh t be fixed under a
125

con stitution like ours. In the States we do not leave so much to our cou rts in 

reg ard to attorn eys and counsellors as Congress has, very wisely, I thin k, left 

to this court. We presc ribe almost everything there by stat ut e; fix all the qua lifications through the legislative departm ent, to be observed as to those who 

pra cti se before the judicial department.

Then I tak e it as clear, so far as these persons are concerned, these attorn eys 

and counsellors at law, that there is a power in thi s court to presc ribe oaths and 

addition al oaths, and ju st as clea r a power in Congress to prescribe oaths and 

addition al oaths.

Having shown th at the sub ject-matte r of an oath to be ta ken by attorn eys and 

counsellors of this court is within the competency of legislative authority and 

regulation, quite as fully as it is within the competency of this court by virtu e 

of the Jud iciary Act; having shown th at there is no con stitutio nal objection to 

the exercise of this power by Congress, and th at the only possible objection th at 

can be take n to it, is th at Congress has once exercised the power by la w ; when 

I have shown that th at exercise of power did not exh aus t the power of the legislatu re. then I have shown th at so far thi s is a valid la < and a valid oath. All 

th at i t is necessary for me to say is th is : if the rule is valid, the law, which has 

somewhat more of solemnity and force tha n a rule, is equally valid. 1 do not ask 

for it any greater validity, but equality, so f ar as mere validity is concerned in 

the passage of the law or the passage of the rule. If I am right here, what will the 

bench say to a pardon of the President, who, when a lawy er is ejected from this 

cou rt as unfit to practis e here, gra nts a pardon for the very offence for which 

the court has ejected him? For instance, the lawyer may have comm itted 

forgery or perjury , things which make a man, when convicted of them, very unfit 

to p ractise as an atto rne y and counsellor at law. In consequence of tha t, the court 

may disb ar him. Then the President pard ons him, absolves him from the conviction of pe rjury and forgery, and, according to the position of th e opposite side, 

restores him at once to his right to be here, and defies the rule which you have 

made, and your autho rity to exclude him. If th at cann ot be done in opposition 

to a rule, can the same thing be done in opposition to a law passed by the legislative body that had auth ority over the subject-matte r? Clearly not.

II. Now, passing over the question of th e power of Congress to do it, was it not 

eminently fit th at such a law should be passed at the tim e; th at Congress, then 

charged with the duty of saving the country, should exclude from its courts 

members of the bar in actua l rebellion again st it? It was eminently proper then. 

W hat ! only exclude those who have not yet comm itted treason, and make them 

swear th at they will not commit trea so n; and have no power to exclude those 

who have committed treason, and who come to d emand as a right to practise here, 

with the admission on their lips th at they are tra ito rs, and, if you please, mean 

to continue t ra it ors ; for I am speaking of the thing as it was in 1862, when th at 

law was passed. W hat ! after trea son is committed, and the trai to r comes here 

■flagrante delicto, withou t pardon, if you please, asking no clemency, comes here 

to practise law, and this oath is opposed to him, he says, “It. does not bind m e; I 

have comm itted treason, it is tr u e ; I have never reca nted ; I have not been 

pa rdon ed ; but th at oath is unconstitutional, so f ar as I am concerned, and takes 

away my high privilege of p rac tising in this court at thi s time.” He says th at it 

is ex post facto a nd void, because it makes a thin g a crime which was not a crime 

at the time! Does it impose a crim inal penalty with regard to penal ma tters? 

Th at is the meaning of penalty in th at sense. We have now here before us a law 

th at simply says, th at a p arty who has comm itted a cer tain act shall not practis e 

law in the cou rts of the United State s. Is th at making a new crime? Is th at 

adding a new penalty in the sense of crim inal penalties? Not at all. The act 

prescribing the oath does not say, th at when a man comes here and adm its that 

he has committed the offence, the court shall try and punish him for tha t offence. 

It says, th at in order to practic e he shall tak e an oath th at he has never committed treason, th at he has never joined the Rebellion. Th at is all. He may take 

the oath or not as he pleases. No one compels him to tak e it. Is it a penalty, when 

he must invoke the penalty on his own head if there is pen alty ? Th at oath does 

not punish him, nor authorize anybody to punish him nor say that he has done 

any thing here tofore th at is punishable in the sense of crime or delict. He may 

sta y aw ay ; no one can touch him. He may choose to practise in the Sta te co ur ts; 

and th at is well. All that th e law says is, “If you come here we require you. before 

we give you the privilege to app ear in this court, to sta te und er oath th at you 

hav e not been in rebellion again st thi s government.” Th at is the whole of it.

44- 27 4— 75------ 9
126

Mr. Rev ei dy Johnson, in reply, f or the petitioner:

I. The nin th clause of the first articl e of the Constitu tion declares th at no- 

“ex post facto law shall be passed.” So solicitous were the framers of the 

Constitu tion to pro hib it the enactment of such laws, th at they imposed upon 

every Sta te government the same restriction. They considered laws of that c haracter to be “con trary to the first principles of the social compact, and to every 

principle of sound legislation.” So says Mr. Madison in the 44tli number of the 

Fed era list. In the same number he tells us tha t, however obvious this is, “Our 

own experience has tau ght us nevertheless th at add itio nal fences again st these 

dangers ought not to be omitted. Very properly, therefore, have the convention 

added this con stitutiona l bulwark in fav or of personal secu rity and private 

rig hts .” Mr. Hamilton, in the 78tli number of the same work, advocates the 

necessity of an independent judiciary , upon the ground of its being “essential in 

a limited constitu tion,” and adds: “By a limited con stitutio n I und erstand one 

which contains certain specified exceptions to the legislative authority, such, 

for instance, as that it shall pass no bills of attainder, no ex post facto laics, and

the like. Limitations of this kind can be preserved in practic e in no other way 

than through the medium of the courts of justice, whose duty it must be to 

declare all acts, con trary to th e manife st tenor of the Constitution, void. W ithout 

this, all the reservations of pa rticular rights or privileges would amount to 

nothing.” Is not the act in question, in its appp lication to Mr. Garland, an 

ex post facto law? These term s are technical, and were known to the common 

law of England when the Constitution was adopted. Their meaning, too, was then 

well understood. An English wr ite r says that such a law is one “made to meet 

a particular offence committed.” Another defines it to be “a law enacted purposely to tak e cognizance of an offence already comm itted.” The same meaning was 

given to it as early as 1798, in Calder v. Bull.** And in the subsequent case of Fletcher v. Peck,”0

 it was again defined and adjudged to lie a law which renders 

“an act punishable in a manner in which it was not punishable when it was 

committe d.” T his definition, as is truly said by Chancellor Kent, is “distinguished 

for its comprehensive brevity and p re c is io n a n d Kent correctly tells us th at 

“laws passed after the act, and affecting a person by way of punishment, either 

in his person or estate, are within the definition.” 40

The design, therefore, of this res tric tion was to prohibit legislation punishing 

a man, cither in his person or estate, for an act for which the re was no pu nish­ ment provided when the act was done, or from imposing an additio nal pun ishment to that which was then imposed, or to supply a deficiency of legal proo f 

by adm ittin g testim ony less tha n that before required, or testim ony which the 

cou rts were before prohibited from adm ittin g. With this und erstanding of the 

term , is not the ac t of 1865 an ex post facto law? Does it not punish Mr. G arland for an act in a manner in which he was not punishable when it was comm itted? 

Does it not punish him in fact? Edu cated for the profession, his hopes centered 

in his success in it, his highest amb ition being to sha re its honors, his suppor t 

and that of his family depending upon suc ces s; can any man doub t that a law 

which deprives him of the right to pursue that profession, which defeats such 

hopes, which deprives him of the opportu nity to g ratify so noble an ambition, and 

which deprives him of the means of supp orting himself and those dependent 

upon him, inflicts a severe, cruel, and here tofore in thi s country an unexampled 

punishm ent?

Our sta tut es, indeed, are full of provisions showing that, in the judg men t of 

Congress, sim ilar consequences are punishm ents to be inflicted for crime. Disfranch isem ent of the privilege of holding offices of honor, tru st, or profit, is 

imposed as a punishm ent upon those who are convicted of bribery, forgery, and 

many other offences. And how cru shing is such punis hm ent! To be excluded from 

the public service makes the man virtually an exile in his native la nd; an alien 

in his own co un try ; and whilst subjecting him to all the obligations of the 

Constitution, holds him to strict allegiance and denies him some of its most 

important adva ntages. Can t he imagination of man conceive a punishm ent g rea ter 

than this ? And this is not only the effect of the act, but such was its obvious a nd 

declared purpose. When it was passed the country was engaged in a civil war of 

unexampled magnitude, begun and waged for the purpose of destroying the very 

life of the nation, of dissevering the government which our f athe rs provided for 

its preserva tion. In 1865 nearly all the members of the legal profession in th e 

Southern Sta tes had adopted the heresy of secession as a con stitutio nal righ t,

” 3 Dallas. 380.

” 0 Cranch, 138.

4 0 1 Ken t’s Commentaries, 409.
127

and were, or had been, eith er in the military or civil service of the Confederate 

government, or had given volu ntary “aid, countenance, counsel, or encouragement 

to persons engaged in armed hostility” to the United States, or had yielded a 

voluntary support to some “prete nded government, autho rity, power, or constitution with in the United States hostile or inimical to the same;” and this wa s 

known to Congress. However crim inal such conduct may have been ; however' 

liable the partie s were to prosecution and punishment by the laws then in force^ 

the pa rti cu lar punishm ent inflicted by the act of 1865 could not have been 

awa rded. Th at act does not repeal the laws by which such conduct was the n 

punishable, but imposes (and such was its sole and avowed purpose) the addition al punishm ent of disfranc hisemen t. The law assum es that the acts which that 

oath it prescribes is to deny, have been done by lawyers, and that such act s ar e 

crimes to be punished by a denial or forfeiture of the ir right to app ear as counsel 

in the courts of the Union. Its very design, therefore, and its effect is to inflict 

a punishm ent for the imputed crim e additio nal to th at which the laws in forc e 

when the crime was comm itted provided. It falls, then, with in the conceded 

definition of an ex pout facto law, and is therefore void. It is also obnoxious to 

the same objection, because it changes “the legal rules of evidence and receive® 

differen t testimony than was requisite for the conviction of the offender at th e 

time the offense was perpetrate d.” u

 This is evident. The offense imputed istreason, of which the party at the time of its commission could not have beea 

convicted by refu sing to tak e such an oath as thi s act requires, or any other, 

but only upon “the testim ony of two witnesses to the same overt act, or on 

confession in open court.” “

II. The act is also in conflict with th at pa rt of the fifth article of the amendments of the Constitu tion which provides that no person “shall be compelled, in 

any criminal case, to be a w itnes s a gains t himself, nor be deprived of life, lib erty, 

or pro perty, withou t due process of law’.”

Within the meaning of th e first, part of th is clause, every charge of crime ag ainst 

a part y constitutes a “criminal case.” No matter how made, if it becomes a sub jec t 

of legal inquiry, the party cannot be compelled to testify. The purpose is to prevent his being called upon to prove his guilt; to prevent his being examined in 

rela tion to it against his will. Any law, therefore, which, in term s or in effect, 

makes him “a witness again st himself” is within the clause. Th at a law directly 

compelling him to testify would be within it, will be ad mitt ed ; a nd it is a rule 

of con struction especially applicable to a constitutional provision intended for the 

protection of the citizen, th at wh at cann ot be done directly, cann ot be done 

indirectly. Where the protection is intended to be complete, it cannot be defeated 

by any evasion. What in this particular, does this law provide? It does not say 

th at Mr. Garland shall be compelled “to be a witness again st him sel f;” but it 

does the same thin g by providing th at his guilt is to be considered conclusively 

establish ed unless he will swe ar to his innocence. His refusa l to swe ar that he 

is not guilty is made the evidence of his guilt, and has the same operation as his 

admission of his guilt. If thi s is not a clea r evasion of the clause, and fa tal 

to the protection it is designed to afford, there can be no evasion of it. The law 

in question says, th at unless the lawyer, who is alre ady a counsellor, will sw ear 

to his innocence of the imputed acts, he shall not continue to be such counsellor, 

or, if he was not before one, he shall not be adm itted to th at right. It con stitutes, 

therefore, his oath the evidence of his innocence, and his refu sal to tak e it conclusive evidence of his guilt. Th at this is its effect, if autho rity be needed, is 

decided in the Pennsylvania case of Respublica and Gibbs,*3

 an d the Rhode Island 

case of Green and Briggs.** The reasoning upon the point in those cases, an d 

especially tha t of Pittman, J., in the latter case, is conclusive.

And here allow me to read an ex tra ct from a speech of the la te Lord Erskine.* 

It w7as made during the trou bles we had with England and France, growing out 

of the Be rlin and Milan decrees, and the o rders in council. It w as said there th at 

parties were not obliged to do wh at those laws required, and as they were no t 

obliged the laws did them no harm. Lord Erskine replied :

“Is it not adding ins ult to inj ury to say to America th at her shipping is not 

compelled to come into our ports, since they may return back ag ai n! Let us 

suppose that his majesty had been advised, while I was a pra ctiser at the ba r, 

to issue a proclamation th at no b arris ter should go into Westminster Hall witho ut

4 1 1 Kent’s Commentaries, 409. 42 Con stitution. Article ii, § 3.

« 3 Yentes, 429.

44 1 Curtis. 311. 45 Ha nsa rd’s Parliam entary Debates, F irst Series, folio 10, p. 966.
12S

passing through a partic ular gate at which a tax was to be levied on him. Should 

I have been told gravely tha t I was by no means compelled by such a proclamation to pass through it? Should I have been told tha t I might go back again to 

my chambers with briefs, and sleep there in my empty bag, if I liked? Would 

it be an answer to a market gardener in the neighborhood of London, if compelled 

to pass a similar gate erected in every passage to Covent Garden, tha t he was 

by no means compelled to bring his greens to market, as he might stay at home 

with his family and starve?”

And that is what we are practically told is the ground on which this law is to 

be upheld. The right to be a counsellor in this court, it is said, is not a natural 

rig ht : tha t it grows out of legislation; tliat it may be given, or it may not be 

given : and as it may not be given, the legislature (in whom the power is supposed 

to reside), if it thinks proper to give it at all, may give it on such terms as it may 

prescribe; and opposing counsel apply tha t doctrine even to a case in which the 

right exists, for tha t it is the condition of the gentleman whom I ain here representing. l ie has got your judgment, and the legislature undertakes to say to him, 

“You shall not longer enjoy tha t right, unless you will swear tha t you have not 

done the things stated in the oath which we require you to ta k e a n d he is gravely 

told, “You are not obliged to take it.” Certainly, he is not obliged to take it. 

No man is obliged to follow his occupation ; but unless he takes it he must starve, 

except he have other means of living.

III. The act is void, because it interferes with the rights and powers conferred 

on the judicial department of the government by the third article of the Consti­ tution. By t ha t article the entire judicial power of the United States is vested 

in “one Supreme Court, and in such inferior courts as the Congress may from 

time to time ordain and establish, and the judges are to hold their ‘office during 

good behavior,’ ” receiving a compensation for their services which cannot be 

diminished. When the Constitution was adopted, it was well known tha t courts could not 

properly discharge their functions without the aid of counsel; and it was equally 

well known that such a class of men. in a free government, was absolutely necessary to the protection of the citizen and the defence of constitutional liberty, 

whenever these might be involved, as history had proved they often were, in 

prosecutions instituted by government. The existence and necessity of this class, 

for the protection of the citizen, is recognized in the amendment last referred 

to, securing to the accused, in a criminal prosecution, “the assistance of counsel 

for his defence.” And, further, by the thirty-fifth section of the Judiciary Act, 

passed by a Congress in which were many of the distinguished men who framed 

the Constitution, parties are secured “the assistance of such counsel or attorneysat-law as. by the rules of the said courts (courts of the United States), respectively, shall be permitted to manage and conduct causes therein.” As before stated, 

Mr. Garland, having complied with the terms of your second rule, was admitted as a counsellor of this court. Has Congress the authority to reverse tha t judgment without this court’s assent? This the act does, if it be compulsory upon the 

court. The decision in Ex Parte Secombe 40 is. tha t the relations between a court 

of the United States and the attorneys and counsellors who pra ctise in it, and 

their respective rights and duties, are regulated by the common law : and tha t 

it has been well settled by the rules and practice of common law courts, tha t it 

rests exclusively with the court to determine who is qualified to become one of 

its officers as an attorney and counsellor, and for what cause he ought to be 

removed. Let us consider this question for a few moments. 1st. The admission of counsel, and dismissal when admitted, is evidently, 

by the act of 1789, esteemed a power inhere nt in the courts, and to be exercised 

by them alone; and in the decision just quoted, it is held to be one resting 

“exclusively” with the courts. This being so. the propriety of its exercise cannot 

he questioned by any other department of the government. Belonging exclusively 

to the courts, their judgment is conclusive. 2d. If this was not the rule, and Congress has authority to interfere with or 

revise such judgments, if they can annul them by legislation, as is done by the 

act in question, then they possess a power which may be so used as to take from 

the courts the benefit of counsel, and thereby necessarily defeat the right secured 

to the accused in criminal prosecutions, of having “the assistance of counsel for 

his defence.” A power of this description is, I submit, wholly inconsistent with 

the jurisdiction conferred upon the judicial department of the government, and 

fatal to the objects for which that department was created, and is directly in 

conflict with the provision of the amendment just referred to.

48 19 Howard.
129

IV. If I und erstand the Attorney-General, the only ground upon which he 

ma intain s the validity of the act of 1865, is th at the right to be attorneys and 

counsellors of th is court, or of any c ourt of the United States, is not a n at ur al one, 

but one given by law on ly; a right to be regulated at any time by law, or not l>e 

given at all, or, when given, to be a t any time taken away . Without stopping to 

inquire whether these propositions are correct, I deny, with perfec t confidence, 

th at Congress can prohibit the appeara nce of counsel in the cou rts of the Union. 

The sixth amendment of the Constitution, before quoted, secures to the accused, 

in a crim inal case, “the assista nce of counsel for his defence.” This security is, 

therefore, not depe ndent upon, or subject to, the power of Congress: They have 

no more autho rity to deny an accused the assista nce of counsel, than they have 

to deny him a jury tr ia l; or the r igh t “to be informed of the nature and cause of 

the accusat ion ;” or “to be confronted with the witnesses again st hi m ;” or “to 

have compulsory process for obtaining witnesses in his favor.” The rig ht to 

have counsel is as effectually secured as is either of the other right given by the 

amendment. If that, therefore, can be taken away or impaired by legislation, 

eit her or all of the other rig hts can be so taken away or impaired. It is tru e th at 

courts, by the common law, possess autho rity to adopt rules for the adm ission of 

counsel : but this is to enable them, for their own adv antage and the benefit and 

protection of suitors, to obtain, not to exclude, lawyers of competent legal 

learnin g and of fa ir chara cter. They have no right to use the power so as to 

exclude them. On the con trary, it is one which it is their d uty to execute to obtain 

competent counsel. It would be not only in conflict with the Con stitution, but 

inco nsistent with the principle s of a free government, th at there should exist 

a power to deny counsel. In a free coun try, cou rts withou t counsel could not 

for a moment be tole rate d. The history of every such government demo nstrates 

th at the safety of the citizen greatly depends upon the existence of such a clas s 

of men. The courts also require, for the safe and correct exercise of their own 

powers, tlieir aid. The preservation of libe rty itself demands counsel. In all the 

revo lutionary struggles of the past to attain or retai n liberty, success, where it 

has been achieved, has been ever owing greatly , if not principally, to their 

patriotic efforts. Congress would, therefore, but convert themselves into a mere 

assemblage of tyr ants, rega rdless of the safety of the citizen, rec reant to the 

cause of freedom, and forgetful of the guara ntees of the Constitution, if they 

atte mpted to deny to the c our ts and to the citizen the assistance of counsel.

V. Conceding, for argument sake, the c onstitutionality of the act, Mr. Garland 

is saved from its operation by the Pre sid ent’s pardon, with the term s of which 

he has complied. By the second section of the second article of the Con stitution, 

power is given to the Pre sident “to gran t reprieves and pardons for offenses 

again st the U nited States, except in cases of impeachment.” With th at exception 

the power is unlim ited. It exten ds to every offence, and is intended to relieve the 

pa rty who may have comm itted it or who may be charged with its commission, 

from all the punishm ents of every description th at the law, at the time of the 

pard on, imposes.

That the law in question is a penal one I have a lready proved. That the pena lty 

which it imposes is for the offense imputed to Mr. Garland, and of which he was 

technically guilty, is also, I hope, made cl ea r; for the offense is the one assumed 

by the law, and in denying to him the righ t to contin ue a counsellor of t his court, 

th at denial was designed as pena lty. This being the design and effect of the law, 

the re can be no possible doubt that Mr. Garland is saved from th at penalty by 

his pardon.

May it please the court, every right-minded man—I should think every man 

who has with in his bosom a he art capab le of sympathy—who is no t t he slave to a 

nar row political feeling—a feeling that does not embrace, as it ought to do, a 

nation’s happiness—must make it the subject of his daily thoughts and of his 

pra yer s to God, th at the hour may come, and come soon, when all the Sta tes 

shall be a gain within the protecting she lter of the Union ; enjoying, all of them, 

its benefits, contented and happy and pro sperous; sha ring all of them, in its 

du ties ; devoted, all. to its principles, and partic ipa ting alike in its reno wn: th at 

hour when form er differences shall be forgotten , and noth ing remembered bu t 

our anc ient concord and the eq ual title we have to sha re in the glories of th e past, 

and to labor together for the even greater glories of the future . And may I not, 

with tru th, ass ure your honors th at this result will be hastened by the brin ging 

within these courts of the United States, a class of men. now excluded, who, 

by education, cha rac ter, and profession are especially qualified by their exam ple 

to influence the public sentiment of their respective States, and to bring these
130

Sta tes to the complete conviction which, it is believed, they most largely enterta in —that to support and defend the Constitution of the United States, and 

the government constituted by it, in all its rightful authority, is not only essential 

to their people’s happiness and freedom, but it is a duty to their country and th eir 

<Iod.

Mr. Justice FIELD delivered the opinion of the court.

•On the second of July, 1862, Congress passed an act prescribing an oath to be 

taken by every person elected or appointed to an office of honor or profit under the 

government of the United States, either in the civil, military, or naval departments of the public service, except the President, before entering upon the duties 

of his office, and before being entitled to its salary, or other emoluments. On the 

24th of January, 1865, Congress, by a supplementary act, extended its provisions 

so as to embrace attorneys and counsellors of the courts of the United States. 

This latter act provides tha t aft er its passage no person shall be admitted as 

an attorney and counsellor to the bar of the Supreme Court, and, after the fourth 

of March, 1865, to the bar of any Circuit or District Court of the United States, 

or of the Court of Claims, or be allowed to appear and be heard by virtue of any 

previous admission, or any special power of attorney, unless he shall have first 

taken and subscribed the oath prescribed by the act of July 2d, 1862. It also 

provides t hat the oath shall be preserved among the files of the co urt; and if any 

person take it falsely he shall be guilty of perjury, and, upon conviction, shall be 

subject to the pains and penalties of th at offense.

At the December Term, 1860, the petitioner was admitted as an attorney and 

counsellor of this court, and took and subscribed the oath then required. By the 

second rule, as it then existed, it was only requisite to the admission of attorneys 

and counsellors of this court, t hat they should have been such officers for the three 

previous years in the highest courts of the States to which they respectively 

.belonged, and that their private and professional character should appear to be 

fair.

Iu March, 1865, this rule was changed by the addition of a clause requiring 

ithe administration of the oath, in conformity with the act of Congress.

In May, 1861, the State of Arkansas, of which the petitioner was a citizen, 

passed an ordinance of secession, which purported to withdraw the State from the 

Union, and afterwards, in the same year, by another ordinance, attached herself 

to the so-called Confederate States, and by act of the congress of th at confederacy 

was received as one of its members.

The petitioner followed the State, as was one of her representatives—first in 

the lower house, and afterwards in the senate, of the congress of that confederacy, 

and was a member of the senate at the time of the surrender of the Confederate 

forces to the armies of the United States.

In July, 1865, he received from the President of the United States a full pardon 

for all offenses committed by his participation, direct or implied, in the Rebellion. 

He now produces his pardon, and asks permission to continue to practise as an 

attorney and counsellor of the court without taking the oath required by the act of 

Jan uary 24th, 1865, and the rule of the court, which he is unable to take, by reason 

of the offices he held under the Confederate government. He rests his application 

principally upon two grounds :

1st. That the act of January 24th, 1865, so f ar as it affects his status in the 

court, is unconstitutional and void ; and,

2d. That, if the act be constitutional, he is released from compliance with its 

provisions by the pardon of the President.

The oath prescribed by the act is as follows :

1st. That the deponent has never voluntarily borne arms against the United 

States since he has been a citizen the reo f;

2d. That he has not voluntarily given aid, countenance, counsel, or encouragement to persons engaged in armed hostility there to;

3d. That he has never sought, accepted, or attempted to exercise the functions 

of any office whatsoever, under any authority, or pretended authority, in hostility 

to the United Sta tes ;

4th. That he has not yielded a voluntary supiiort to any pretended government, 

authority, power, or constitution, within the United States, hostile or inimical 

thereto; and,

5th. That he will support and defend the Constitution of the United States 

against all enemies, foreign and domestic, and will bear true faith and allegiance 

to the same.
131

This last clause is promissory only, and requires no consideration. The questio ns presented for our determination arise from the other clauses. These all 

relate to past acts. Some of these acts constituted, when they were committed, 

offences against the criminal laws of the cou ntry; others may, or may not, have 

been offences according to the circumstances under which they were committed, 

and the motives of the parties. The first clause covers one form of the crime of 

treason, and the deponent must declare that he has not been guilty of this crime, 

not only during the war of the Rebellion, but during any period of his life since 

he has been a citizen. The second clause goes beyond the limits of treason, and 

■embraces not only the giving of aid and encouragement of a treasonable natu re 

to a public enemy, but also the giving of assistance of any kind to persons engaged in armed hostility to the United States. The third clause applies to the 

seeking, acceptance, or exercise not only of offices created for the puri>ose of 

more effectually carrying on hostilities, but also of any of those offices which are 

required in every community, whether in peace or war, for the administration 

of justice and the preservation of order. The fourth clause not only includes those 

who gave a cordial and active support to the hostile government, but also those 

who yielded a reluctant obedience to the existing order, established without their 

co-operation.

The statute is directed against parties who have offended in any of the particulars embraced by these clauses. And its object is to exclude them from the 

profession of the law, or at least from its practice in the courts of the United 

States. As the oath prescribed cannot be taken by these parties, the act, as 

against them, operates as a legislative decree of perpetual exclusion. And exclusion from any of the professions or any of the ordinary avocations of life 

for past conduct can be regarded in no other light than as punishment for such 

conduct. The exaction of the oath is the mode provided for ascertaining the 

parties upon whom the act is intended to operate, and instead of lessening, increases its objectionable character. All enactments of this kind parta ke of the 

natu re of bills of pains and penalties, and are subject to the constitutional inhibition against the passage of bills of attainder, under which general designation 

they are included.

In the exclusion which the statute adjudges it imposes a punishment for some 

of the acts specified which were not punishable a t the time they were comm itted; 

and for other of the acts it adds a new punishment to th at before prescribed, and 

it is thus brought within the further inhibition of the Constitution against the 

passage of an ex post facto law. In the case of Cummings against The State of 

Missouri, just decided, we have had occasion to consider a t length the meaning of 

a bill of atta inder and of an ex post facto law in the clause of the Constitution 

forbidding their passage by the States, and it is unnecessary to repeat here what 

we said. A like prohibition is contained in the Constitution against enactments 

of this kind by Congress; and the argument presented in tha t case against certain 

clauses of the constitution of Missouri is equally applicable to the act of Congress 

under consideration in this case.

The profession of an attorney and counsellor is not like an office created by 

an act of Congress, which depends for its continuance, its powers, and its emoluments upon the will of its creator, and the possession of which may be burdened 

with any conditions not prohibited by the Constitution. Attorneys and counsellors 

are not officers of the United States; they are not elected or appointed in the 

manner prescribed by the Constitution for the election and appointment of such 

officers. They are officers of the court, admitted as such by its order, upon evidence of their possessing sufficient legal learning and fair private character. It 

has been the general practice in this country to obtain this evidence by an 

examination of the parties. In this court the fact of the admission of such 

officers in the highest court of the States to which they respectively belong, 

for three years preceding their application, is regarded as sufficient evidence 

of the possession of the requisite legal learning, and the statement of counsel 

moving their admission sufficient evidence tha t their private and professional character is fair. The order of admission is the judgment of the court 

that the parties possess the requisite qualifications as attorneys and counsellors. and are entitled to appear as such and conduct causes therein. From its 

entry the parties become officers of the court, and are responsible to it for professional misconduct. They hold their office during good behavior, and can only 

be deprived of it for misconduct ascertained and declared by the judgment of 

the court after opportunity to be heard has been afforded.47 Their admission or

47 Ex parte Heyfron, 7 H oward, Mississippi, 127; Fle tcher v. Daingerfield, 20 California, 

430.
their exclusion is not the exercise of a mere ministerial power. It is the exercise 

of judicial power, and has been so held in numerous cases. It was so held by the 

Court of Appeals of New York in the matter of the application of Cooper for 

admission.48 “Attorneys and counsellors,” said tha t court, “are not only officers 

of the court, but officers whose duties relate almost exclusively to proceedings of 

a judicial nature. And hence their appointment may, with propriety, be intrusted 

to the courts and the latter in performing his duty may very justly be considered 

as engaged in the exercise of their appropriate judicial functions.”

In Ex parte 8ecomhe*v

 a mandamus to the Supreme Court of the Territory of 

Minnesota to vacate an order removing an attorney and counsellor was denied 

by this court, on the ground tha t the removal was a judicial act. “We are not 

aware of any case,” said the court, “where a mandamus was issued to an inferior tribunal, commanding it to reverse or annul its decision, where the decision was 

in its nature a judicial act and within the scope of its jurisdiction and discretion.” And in the same case the court observed, tha t “it lias been well settled 

by the rules and practice of common law courts, that it rests exclusively with 

the court to determine who is qualified to become one of its officers, as an attorney and counsellor, and for w hat cause he ought to be removed.”

The attorney and counsellor being, by the solemn judicial act of the court, 

clothed with his office, does not hold it as a matter of grace and favor. The right 

which it confers upon him to appear for suitors, and to argue causes, is something more than a mere indulgence, revocable at the pleasure of the court, or a t 

the command of the legislature. It is a right of which he can only be deprived 

by the judgment of the court, for moral or professional delinquency.

The legislature may undoubtedly prescribe qualifications for the office, to which 

he must conform, as it may, where it has exclusive jurisdiction, prescribe qualifications for the pursuit of any of the ordinary avocations of life. The question, 

in this case, is not as to the power of Congress to prescribe qualifications, but 

whether that power has been exercised as a means for the infliction of punishment, against the prohibition of the Constitution. That this result cannot be 

effected indirectly by a State under the form of creating qualifications we have 

held in the case of Cummings v. The State of Missouri, and the reasoning by which th at conclusion was reached applies equally to similar action on the part 

of Congress.

This view is strengthened by a consideration of the effect of the pardon produced by the petitioner, and the nature of the pardoning power of the President.

The Constitution provides that the President “shall have power to grant 

reprieves and pardons for offences against the United States, except in cases 

of impeachment.” M

The power thus conferred is unlimited, with the exception stated. It extends 

to every offence known to the law, and may be exercised at any time afte r its 

commission, either before legal proceedings are taken, or during their pendency, 

or after conviction and judgment. This power of the President is not subject 

to legislative control. Congress can neither limit the effect of his pardon, nor 

exclude from its exercise any class of offenders. The benign prerogative of 

mercy reposed in him cannot be fettered by any legislative restrictions.

Such being the case, the inquiry arises as to the effect and operation of a 

pardon, and on this point all the authorities concur. A pardon reaches both the 

punishment prescribed for the offence and the guilt of the offender; and when 

the pardon is full, it releases the punishment and blots out of existence the 

guilt, so tha t in the eye of the law the offender is as innocent as if he had never 

committed the offence. If granted before conviction, it prevents any of the 

penalties and disabilities consequent upon conviction from attachin g; if granted 

after conviction, it removes the penalties and disabilities, and restores him to 

all his civil rig hts; i t makes him, as it were, a new man, and gives him a new 

credit and capacity.

There is only this limitation to its operation : it does not restore offices forfeited. or property or interests vested in others in consequence of the conviction 

and judgment. 51

The pardon produced by the petitioner is a full pardon “for all offences by 

him committed, arising from participation, direct or implied, in the Rebellion,”

22 New Yo rk. 81. 49 19 Howard 9.

“ A rtic le I I, $ 2.

51 Black stone’s Commentaries, 402 ; 6 Bacon’s Abridgment, tit. Pard on : Hawkins, book 2, c. 37, §§ 34 and 54.
133

and is subject to cer tain conditions which have been complied with. The effect 

of this pardon is to relieve the petitioner from all penalties and disabilitie s 

attached to the offence o f treason, comm itted by his partici pation in the Rebellion. So f ar as th at offence is concerned, he is thus placed beyond the reach of 

punishm ent of any kind. But to exclude him, by reason of th at offence, from 

continuing in the enjoyment of a previously acquired right, is to enforce a 

punishment for th at offence notwithstandin g the pardon. If such exc'usio n can 

be effected by the exaction of an exp urg atory oath covering the offence, the 

pardon may be avoided, and th at accomplished indirectly which cann ot be 

reached by direct legislation. It is not within the constitutional power of Congress thus to inflict punishm ent beyond the reac h of executive clemency. From 

the petitioner, therefore, the oath requ ired by the act of Janu ary 24th, 1865, 

could not be exacted, even if th at act were not subject to any oth er objection 

than the one th us stated. It follows, from the views expressed, th at the pra yer of the petitioner must 

be granted. The case of R. H. Ma rr is similar, in its main feature s, to that of the petitioner, and his petition must also be grante d. And the amendment of the second rule of the court, which requires the oath 

prescribed by the act of Janu ary 24th, 1865, to be taken by atto rne ys and counsello rs, having been unadv isedly adopted, must be rescinded.

And it is s o ordered.

OPINION OF MILLER, J ., THE C.J ., AND SW AY NE AND DAVIS, J .J ., DISSEN TING

Mr. Jus tice MILLER , on behalf of himself and the CH IEF JUS TIC E, and 

Jus tices SWAYNE and DAVIS, delivered the following dissenting opinion, which 

applies also to the opinion delivered in Cumminffs v. Missouri.

I dissent from the opinions of the court ju st announced.

It may be hoped th at the exceptional circumstanc es which give present importance to these cases will soon pass away, and that those who make the laws, 

both sta te and national, will find in the conduct of the persons affected by the 

legislation ju st declared to be void, sufficient reaso n to repeal, or esse ntially 

modify it. For the speedy return of th at better spirit, which shall leave us no cause for 

such laws, all good men look with anxiety, and with a hope, I tru st, not alto ­

gether unfounded. Bu t the question involved, relating, as it does, to the rig ht of the legisla tures 

of the natio n, and of the state, to exclude from offices and places of high public 

tru st, the administration of whose func tions are essential to the very existence 

of the government, those among its own citizens who have been engaged in a 

recent effort to destroy th at government by force, can never cease to be one of 

profound inte rest. It is at all time s the exercise of an extreme ly delicate power for thi s court 

to declare th at the Congress of the nation, or the legislative body of a State, 

has assumed an authority not belonging to it, and by violating the Constitution, 

has rendered void its attem pt at legislation. In the case of an act of Congress, 

which expresses the sense of the members of a coordinate dep artment of the 

government, as much bound by their oath of office as we are to respect th at 

Constitution, and whose duty it is, as much as it is ours, to be careful th at no 

statute is passed in violation of it. the incompatibility of the act with the Constitut ion should be so cle ar as to leave little reason for doubt, before we pronounce it to be invalid. Unable to see this incompatibility, either in the act of Congress or in the 

provision of t he c onstitutio n of Missouri, upon which this court has just passed, 

bu t entertainin g a strong conviction th at both were within the competency of 

the bodies which enacted them, it seems to me an occasion which demands th at 

my dissent from the judg men t of the court, and the reaso ns for th at dissent, 

should be placed on its records.

Tn the comments which T have to make upon these cases, T shall speak of 

principles equally applicable to both, although I shall refer more directly to 

th at which involves the oath requ ired of attorn eys by the act of Congress, 

reserving for the close some rem ark s more especially applicable to the oath 

prescribe d by th e constitution of the State of Missouri.

The Constitution of the United States make s ample provision for the establishmen t of courts of justice to adm inister her laws, and to protect and enforce 

the rights of her citizens. Article iii. section 1, of that instrument, says th at
134

“the judicial power of the United States shall be vested in one Supreme Court, 

and such inferior courts as the Congress may, from time to time, ordain and 

establish.” Section 8 of article i, closes its enumeration of the powers conferred 

on Congress by the broad declaration tha t it shall have authority “to make all 

laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the government 

of the United States, or in any department thereof.”

Under these provisions, Congress has ordained and established circuit courts, 

district courts, and territorial courts; and has, by various statutes, fixed the 

number of the judges of the Supreme Court. It has limited and defined the jur isdiction of all these, and determined the salaries of the judges who hold them. 

It has provided for their necessary officers, as marshals, clerks, prosecuting atto rneys, bailiffs, commissioners, and jurors. And by the act of 1789, commonly called 

the Judiciary Act, passed by the first Congress assembled under the Constitution, 

it is among other thing enacted, tha t “in all the courts of the United States the 

parties may plead and manage their causes personally ; or by the assistance of 

such counsel or attorneys-at-law as, by the rules of the said courts respectively, 

shall be permitted to manage and conduct causes therein.”

It is believed that no civilized nation of modern times has been without a 

class of men intimately connected with the courts, and with the administration 

of justice, called variously attorneys, counsellors, solicitors, proctors, and other 

terms of similar import. The enactment which we have just cited recognizes this 

body of men, and their utility in the judicial system of the United States, and 

imposes upon the courts the duty of providing rules, by which persons entitled 

to become members of this class, may be permitted to exericse the privilege of 

managing and conducting causes in these courts. They are as essential to the 

successful working of the courts, as the clerks, sheriffs, and marshals, and perhaps as the judges themselves, since no instance is known of a court of law without a bar.

The right to practise law in the courts as a profession, is a privilege grante d 

by the law, under such limitations or conditions in each s tate or government as 

the law-making power may prescribe. It is a privilege, and not an absolute right. 

The distinction may be illustrated by the difference between the right of a party 

to a suit in court to defend his own cause, and the right of another to appear and 

defend for him. The one, like the right to life, liberty, and the pursuit of happiness, is inalienable. The other is the privilege conferred by law on a person who 

complies with the prescribed conditions.

Every State in the Union, and every civilized government, has law’s by which 

the right to practise in its courts may be granted, and makes th at right to depend o n . moral character and professional skill of the party on whom the

privilege is conferred. This is not only true in reference to the first grant of 

license to practise law’, but the continuance of the right is made, by these laws, 

to depend upon the continued possession of those qualities.

Attorneys are often deprived of this right, upon evidence of bad moral character, or specific acts of immorality or dishonesty, which show tha t they no 

longer possess the requisite qualifications.

All this is done by law, either statutory or common; and whether the one or 

the other, equally the expression of legislative will, for the common law exists 

in this country only as it is adopted or permitted by the legislatures, or by constitutions.

No reason is perceived why this body of men, in their important relations to 

the courts of the nation, are not subject to the action of Congress, to the same 

extent tha t they are under legislative control in the States, or any other government; and to the same extent the judges, clerks, marshals, and other officers 

of the court are subject to congressional legislation. Having the pow’er to establish the courts, to provide for and regulate the practice in those courts, to create 

their officers, and prescribe their functions, can it be doubted tha t Congress has 

the full right, to prescril>e terms for the admission, rejection, and expulsion of 

attorneys, and for requiring of them an oath, to show whether they have the 

proper qualifications for the discharge of their duties?

The act which has jus t been declared to be unconstitutional is nothing more 

than a statute which requires of all lawyers who propose to practice in the national courts, tha t they shall take the same oath which is exacted of every officer 

of the government, civil or military. This oath has two as pects; one which looks 

to the jxast conduct of the party, and*one to his futu re conduct; but both have 

reference to his disposition to support or to overturn the government, in w’hose 

functions he proposes to take part. In substance, he is required to swear tha t he
135

has not been guilty of treason to tha t government in the past, and that he will 

bear fa ithful allegiance to it in the future.

That fidelity to the government under which he lives, a true and loyal atta chment to it, and a sincere desire for its preservation, are among the most essential qualifications which should be required in a lawyer, seems to me to be too 

clear for argument. The history of the Anglo-Saxon race shows that, for ages past, 

the members of the legal profession have been powerful for good or evil to the 

government. They are, by the nature of the ir duties, the moulders of public sentistruction and enforcement of the laws. From among their numbers are necessarily 

ment on questions of government, and are every day engaged in aiding in the conselected the judges who expound the laws and the Constitution. To suffer 

treasonable sentiments to spread here unchecked, is to permit the stream on 

which the life of the nation depends to be poisoned at its source.

In illustration of this truth, I venture to affirm, th at if all the members of the 

legal profession in the States lately in insurrection had possessed the qualification of a loyal and faith ful allegiance to the government, we should have been 

spared the horrors of tha t Rebellion. If, then, this qualification be so essential 

in a lawyer, it cannot be denied tha t the statute under consideration was eminently calculated to secure that result.

The majority of this court, however, do not base their decisions on the mere 

absence of authority in Congress, and in the States, to enact the laws which are 

the subject of consideration, but insist that the Constitution of the United States 

forbids, in prohibitory terms, the passage of such laws, both to the Congress and 

to the States. The provisions of th at instrument, relied on to sustain this doctrine, 

are those which forbid Congress and the States, respectively, from passing bills o f 

attainder and ex post facto laws. I t is said that the act of Congress, and the provision of the constitution of the State of Missouri under review, are in conflict 

with both these prohibitions, and are therefore void.

I will examine this proposition, in reference to these two clauses of the Constitution, in the order in which they occur in that instrument.

1. In regard to bills of attainder, I am not aware of any judicial decision by a 

court of Federal jurisdiction which undertakes to give a definition of tha t term. 

We are therefore compelled to recur to the bills of attain der passed by the English 

Parliament, tha t we may learn so much of their peculiar characteristics, as will 

enable us to arrive at a sound conclusion, as to what was intended to be prohibited by the Constitution.

The word attainder is derived, by S ir Thomas Tomlins, in his law dictionary, 

from the words attincta and attinctura, and is defined to be “the stain or corruption of the blood of a criminal capitally condemned; the immediate inseparable consequence of the common law, on the pronouncing the sentence of death." 

The effect of this corruption of the blood was, tha t the party attained lost all 

inheritable quality, and could neither receive nor transmit any property or other 

rights by inheritance.

This attainder or corruption of blood, as a consequence of judicial sentence 

of death, continued to be the law of England, in all cases of treason, to the time 

that our Constitution was framed, and, for aught tha t is known to me, is the law 

of that country, on condemnation for treason, at this day.

Bills of attainder, therefore, or acts of attainder, as they were called after 

they were passed into statutes, were laws which declared certain persons 

attained, and their blood corrupted so tha t it had lost all heritable quality. 

Whether it declared other punishment or not, it was an act of attainder if it declared this. This also seems to have been the main feature at which the autho rs 

of the Constitution were directing their prohibition ; for afte r having, in article i, 

prohibited the passage of bills of atta inder—in section nine, to Congress, and in 

section ten, to the States—there still remained to the judiciary the power of 

declaring attain ders. Therefore, to still furthe r guard against this odious form 

of punishment, it is provided, in section three of article iii, concerning the judiciary, that, while Congress shall have power to declare the punishment of treason, 

no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted.

This, however, while it was the chief, was not the only peculiarity of bills of 

atta inder which was intended to be included within the constitutional restriction. Upon an atten tive examination of the distinctive features of this kind of 

legislation, I think it will be found tha t the following comprise those essential 

elements of bills of attainder, in addition to the one already mentioned, which 

distinguish them from other legislation, and which made them so obnoxious to 

the statesmen who organized our government:
136

1. They were convictions and sentences pronounced by the legislative department of the government, instead of the judicial.

2. The sentence pronounced and the punishm ent inflicted were determined by 

no previous law or fixed rule.

3. The investiga tion into the guilt of the accused, if any such were made, was 

not necessarily or generally conducted in his presence, or th at of his counsel, 

and no recognized rule of evidence governed the inquiry.”

It is no cause for wonder th at men who had ju st passed successfully through 

a des perate struggle in behalf of civil libe rty should feel a detesta tion for legislation of which these were the prom inent fea tur es. The framers of our 

political system had a full appreciation of the necessity of keeping sep ara te and 

dis tin ct the prim ary dep artm ents of the government. Mr. Hamilton, in the 

seventy-eighth number of the Fed era list, says th at he agrees with the maxim 

of Montesquieu, th at “there is no liberty if the power of judging be not 

separa ted from the legislative and executive powers.” And others of the ablest 

numbers of that publication are devoted to the purpose of showing th at in our 

Constitu tion these powers are so jus tly balanced and res trained that neither 

will probably be able to make much encroachment upon the others. Nor was it 

less repugn ant to tlieir views of the secu rity of personal righ ts, th at any person 

should be condemned without a hearing, and punished withou t a law previously 

prescribin g the nature and extent of th at punishment. They therefo re stru ck 

boldly at all this mach inery of legislative despotism, by forbidding the passage 

of bills of attainde r and ex post facto laws, both to Congress and to the States. It rema ins to inquire whether, in the act of Congress und er consideration 

(an d the remarks apply with equal force to the Missouri con stitution), there 

is found any one of these featur es of bills of attain de r; and if so, whether ther e 

is sufficient in the act to bring it fairly within the desc ription of th at class of 

bills.

It is not claimed that the law works a corruption of blood. It will, therefore, 

be conceded at once, th at the act does not contain thi s leading fea tur e of bills 

of att ain der.

Nor am I capab le of seeing th at it contains a conviction or sentence of any 

designated person or persons. It is said th at it is not necessary to a bill of 

attainde r that the party to be affected should be named in the act, and the 

attainde r of the Earl of Kildare and his associates is referred to as showing 

th at the act was aimed at a class. It is very tru e th at bills of attainde r have 

been passed aga inst persons by some description, when their names were 

unknown. Rut in such cases the law leaves nothing to be done to render its 

operation effectual, but to iden tify those persons. Their guilt, its nature, and 

its punishm ent are fixed by the statute, and only their personal identity remains to be made out. Such was the case alluded to. The act declared the guilt 

and punishment of the Ea rl of Kildare, and all who were associated with him in 

his ente rprise, and all th at was requ ired to insu re their punishm ent was to 

prove th at association.

Tf this were not. so, then the act was mere brutum fulm en, and the parties oth er tha n the earl could only be punished, notwithstanding the act, by proof 

of t he ir g uilt before some competent tribunal.

No person is pointed out in the act of Congress, either by name or by description. aga inst whom it is to operate. The oath is only required of those who 

propose to accept an office or to p ractice la w ; and as a prerequ isite to the exercise 

of the functions of the lawyer, or the officer, it is demanded of all persons alike. 

It is said to be directed, as a class, to those alone who were engaged in the 

Re bellion; but this is manifestly incorrect, as the oath is exacted alike from 

the loyal and disloyal, und er the same circum stances, and none are compelled to tak e it. Neither does the ac t declare any conviction, eit he r of persons or 

classes. If so, who are they, and of what, crime are they declared to be guilty? 

Nor does it pronounce any sentence, or inflict any punishment. If by any possibility it can be said to provide for conviction and sentence, though not found in the act itself, it leaves the party himself to determine his own guilt or 

innocence, and pronounce his own sentence. It is not, then, the act of Congress, 

but the party interested, th at trie s and condemns. We shall see, when we come to 

the discussion of this ac t in its relatio n to ex post facto laws, th at it inflicts no punishment.

A s tatute , then, which designates no criminal, either by n ame or description— 

which declares no guilt, pronounces no sentence, and inflicts no punishment—can 

in no sense be called a bill of a ttaind er.

M See Story on the Constitution, § 1844.
2. Passing now to consider whether the statute is an ear post fac to law, we 

find th at the meaning of th at term, as used in the Constitution, is a matter which has been frequently before this court, and it lias been so well defined as to leave no room for controversy. The only doub t which can arise is as to the chara cte r of the pa rticu lar case claimed to come within the definition, and not 

as to the definition of the ph rase itself. All the cases agree th at the term is to be applied to criminal causes alone, and not to civil proceedings. In the language of Justice Story, in the case of 

Watson v. Me rce r,53 “Ex post facto laws relate to pe nal and crim inal proceedings, 

which impose punishm ent and forfeiture, and not to civil procedings, which 

affect private rights retrospe ctively.” 61

The first case on the subject is th at of Calder v. Bull, and it is the one in 

which the doctrine concerning ex post facto laws is most fully expounded. The 

cou rt divides all laws which come within the meaning of that clause of the 

Constitu tion into four classes : 1st. Every law th at make s an action done before the passing of the law. and which was innocent when done, criminal, and punishes such action. 2d. Every law th at agg ravates a crime, or makes it greater tha n it was when 

committed. 3d. Every law that changes the punishment, and inflicts a greater p unishm ent 

tha n the law a nnexed to the crime when committed. 4th. Every law th at alt ers the rule of evidence, and receives less or different testim ony than the law requ ired at the time of the commission of the offense 

to convict t he offender. Again, the court says, in the same opinion, th at “ the true distinction is between 

ex post facto laws, and retrospective laws;” and proceeds to show that, how­ ever un just the la tte r may be, they are not prohibited by the Constitution, 

while th e form er are. This exposition of the n atu re of ex post facto laws has never been denied, nor 

has any court or any com mentator on the Constitution added to the classes of laws here set forth, as coming with in that clause of the organic law. Tn looking carefully at these four classes of laws, two thin gs strike the mind as common to 

them a ll : 1st. That they contemplate the tri al of some person charged with an offence. 2d. Th at they contemplate a punishm ent of the person found guilty of such 

offence. Now. it seems to me impossible to show th at the law in question contemp lates eit her the tri al of a person for an offence committed before its passage, or the punishm ent of any person for such an offence. It is tru e that the act requ iring an oath provides a penalty for falsely taking. Bu t thi s provision is prospective as no one is supposed to tak e the oath until after the passage of the law. This prospective pen alty is the only thin g in the law which par tak es of a crim inal cha rac ter. It is in all oth er respects a civil proceeding. It is simply an oath of office, and it is required of all officeholders alike. As fa r as I am informed, this is the first time in the history of jurisprude nce th at taking an oath of office has been called a crim inal proceeding. If it is not a crim inal proceeding, then , by all 

the authorities, it is not an ex post facto law.

No trial of any person is contemplated by the act for any past offence. Nor is any par ty supposed to be charged with any offence in the only proceeding which 

the law provides. A person proposing to appear in the court as an atto rne y is asked to tak e a cer tain oath. The re is no charge made aga inst him th at he h as been guilty of any of the crimes mentioned in that oath. There is no prosecution. There is not even an implication of guilt by reason of tendering him the oath, for it is require d of the man who has lost ever ything in defence of the government, and whose loyalty is w ritten in the honorable scars which cover his body, the same as of the guiltiest trai to r in the land. His refu sal to tak e the oath subjects him to no prosecution. His taking it clears him of no guilt, and acquits him of no charge.

Where, then, is thi s ex post facto law which tries and punishes a man for a 

crime com mitted before it was passed? It can only be found in those elastic rules of construction which cramp the powers of the Federal government when they are to be exercised in cer tain directions, and enlarges them when they are to be exercised in others. No more striking example of this could be given than the

63 8 Pe ters, 88. 54 Ca lder v. Bull, 3 Da llas. 38 6; Fl etch er v. Pec k. 6 Cranch, 87; Ogden a. Sa un ders, 12 

Whea ton , 266 ; Sa tte rlee v. Matthews on, 2 P eters, 880.
138

case s before us, in one of which the Con stitution of the United States is held 

to confer no power on Congress to p revent tra ito rs p ractising in her courts, while 

in the other it is held to confer power on this cou rt to nullify a provision of 

the constitu tion of the Sta te of Missouri, relating to a qualificatio n required 

of ministers of religion.

But the fatal vice in the reasoning of the majority is in the meaning which 

they att ach to the word punishment, in its application to this law, and in its 

relatio n to the definitions which have been given of the phrase, 

Webster’s second definition of the word “pun ish” is th is: “In a loose sense, ex post facto laws.

to afflict with punishment, &c., with a view to amendment, to chasten .” And 

it is in this loose sense th at the word is used by this court, as synonymous with 

chastisement, correction, loss, or suffering to the pa rty supposed to he punished, 

and not in the legal sense, which signifies a penalty inflicted for the commission 

of crime.

And so, in this sense, it is said th at whereas persons who had been guilty 

of the offenses mentioned in the oath were, by the law s then in force, only 

liable to be punished witli dea th and confiscation of all their property, they are 

by a law passed since these offences were committed, made liable to the enormous 

additional punishment of being deprived of the r igh t to p rac tise law !

The law in question does not in reality deprive a person guilty of the acts 

therein described of any right which he possessed before; for it is equally 

sound law, as it is the dictate of good sense, that a person who, in the language 

of the act, has volu ntarily borne arm s against the government of the United 

States while a citizen thereof, or who has voluntarily given aid, comfort, counsel, 

or encouragement to persons engaged in armed hostility to the government, has, 

by doing those things, forfeited his right to app ear in her cou rts and tak e pa rt 

in th e ad min istratio n of her laws. Such a person h as exhibited a t ra it of charac ter 

which, without the aid of the law in question, author izes the cou rt to declare 

him unfit to practise before it, and to strike his nam e from th e roll of i ts attorn eys 

if it he found there.

I have alrea dy shown th at this act provides for no indictmen t or other charge, 

th at it contem plates and admits of no trial, and I now proceed to show th at 

even if the righ t of the c ourt to prevent an attorney, guilty of the acts mentioned, 

from appearing in its forum, depended upon the sta tut e, th at still it inflicts no 

punishment in the legal sense of tha t term.

“Punishm ent,” says Mr. Wh arto n in his Law Lexicon, “is the penalty for 

transgressing the l a w s a n d thi s is, perhaps, as comprehensive and at the same 

time as accu rate a definition as can be given. Now, w ha t law is it whose tra ns ­

gression is punished in the case before us? None is ref err ed to in the act, and 

the re is nothing on its face to show th at it was intended as an additio nal punishment for any offence described in any other act. A p ar t of the ma tters of which 

the applicant is required to purg e himself on oath may amoun t to treason, but 

surely there could be no inte ntion or desire to inflict this sm all additional punishment for a crime whose penalty alread y was dea th and confiscation of property.

In fac t the word punishment is used by the court in a sense which would 

make a gre at number of laws, partakin g in no sense of a crim inal cha rac ter, 

laws for punishment, and the refore ex post facto. A law, for instance, which increase d the fac ility for dete cting frauds by compelling a party to a civil proceeding to disclose his transa ctions under oath would 

result in his punishment in this sense, if it compelled him to pay an hone st 

debt which could not be coerced from him before. Bu t this law comes clearly 

within the class described by this cou rt in Watson v. Mercer, us civil proceedings which affect private right s retrospectively.

Again, let us suppose th at seve ral i>ersons afflicted with a form of insanity 

heretofore deemed harm less, shall be found all at once to be dangerous to the 

lives of persons with whom they associate. The State, therefore, passes a law 

th at all persons so affected shall be kept in close confinement until their recovery 

is assured. Here is a case of punishm ent in the sense used by the court for a 

matt er existing before the passage of the law. Is is a n ex post facto law? And, if not, in what does it differ from one? Ju st in the same manner th at the act of 

Congress does, namely, th at the proceeding is civil and not criminal, and th at 

the imprisonment in the one case and the prohibition to practise law in the other, 

are not punishments in the legal meaning of tha t term.

The civil law maxim, “A’rmo debet bis vexari, pro und ct eadarn causa” has been long since adopted into the common law as applicable both to civil and 

crim inal proceedings, and one of the amendments of the Constitution incorporates
139

this principle into tha t instrument so far as punishment affects life or limb. It 

results from this rule, tha t no man can be twice lawfully punished for the same 

offense. We have already seen tha t the acts of which the party is required to 

purge himself on oath constitute the crime of treason. Now, if the judgment of the 

court in the cases before us, instead of permitting the parties to appear without 

taking the oath, had been the other way, here would have been the case of a 

person who, on the reasoning of the majority, is punished by the judgment of this 

court for the same acts which constitute the crime of treason.

Yet, if the applicant here should afterwards be indicted for treason on account 

of these same acts, no one will pretend that the proceedings here could be successfully pleaded in bar of tha t indictment. But why not? Simply because there is 

here neither trial nor punishment within the legal meaning of these terms.

I maintain tha t the purpose of the act of Congress was to require loyalty as a 

qualification of all who practise law in the national courts. The majority say 

that the purpose was to impose a punishment for past acts of disloyalty.

In pressing this argument it is contended by the majority tha t no requirement 

can be justly said to be a qualification which is not attainable by all, and that to 

demand a qualification not attainable by all is punishment.

The Constitution of the United States provides as a qualification for the offices 

of President and Vice-President tha t the person elected must be a native-born 

citizen. Is this a punishment to all those naturalized citizens who can never 

attain tha t qualification? The constitutions of nearly all the States require as a 

qualification for voting tha t the voter shall be a white male citizen. Is this a 

punishment for all the blacks who can never become white?

Again, it was a qualification required by some of the State constitutions, for 

the office of judge, that the person should not be over sixty years of age. To a 

very large number of the ablest lawyers in any State this is a qualification to 

which they can never a ttain, for every year removes them farther away from the 

designated age. Is it a punishment?

The distinguished commentator on American law, and chancellor of the State 

of New York, was deprived of that office by this provision of the constitution of 

that State, and he was thus, in the midst of his usefulness, not only turned out 

of office, but he was forever disqualified from holding it again, by a law passed 

aft er he had accepted the office.

This is a much stronger case than tha t of a disloyal attorney forbid by law 

to practise in the courts, yet no one ever thought the law was ex post facto in 

the sense of the Constitution of the United States.

Illustrations of this kind could be multiplied indefinitely, but they are unnecessary.

The history of the time when this statute was passed—the darkest hour of 

our great struggle—the necessity for its existence, the humane character of the 

President who signed the bill, and the face of the law itself, all show tha t it was 

purely a qualification, exacted in self-defense, of all who took part in administering the government in any of its departments, and tha t it was not passed for the 

purpose of inflicting punishment, however merited, for past offenses.

I think I have now shown th at the statute in question is within the legislative 

power of Congress in its control over the courts and th eir officers, and that it was 

not void as being either a bill of attainder or an ex post facto law.

If I am right on the questions of qualification and punishment, tha t discussion 

disposes also of the proposition, tha t the pardon of the President relieves the 

party accepting it of the necessity of taking the oath, even if the law be valid.

I am willing to concede that the presidential pardon relieves the party from 

all the penalties, or in other words, from all the punishment, which the law 

inflicted for his offense. But it relieves him from nothing more. If the oath required as a condition to practising law is not a punishment, as I think I have 

shown it is not, then the pardon of the President has no effect in releasing him 

from the requirement to take it. If it is a qualification which Congress had a 

right to prescribe as necessary to an attorney, then the President cannot, by 

pardon or otherwise, dispense with the law requiring such qualification.

This is not only the plain rule as between the legislative and executive departments of the government, but it is the declaration of common sense. The man who, 

by counterfeiting, by theft, by murder, or by treason, is rendered unfit to exercise 

the functions of an attorney or couusellor-at-law’, may be saved by the executive 

pardon from the penitentiary or the gallows, but is not thereby restored to the 

qualifications which are essential to admission to the bar. No doubt it will be 

found tha t very many persons among those who cannot take this oath, deserve
140

to be relieved from the proh ibition of the l aw ; but thi s in no wise depends upon 

the act of the President in giving or refusing a pardon. It remains to the legislative power alone to prescribe under what circumstanc es this relief shall be 

extended.

In regard to the case of Cummings v. The State of Missouri, allusions have been made in the course of argument to the sanc tity of the ministerial office, and 

to the inviolability of religious freedom in this country.

But no atte mpt has been made to show th at the Constitu tion of the United 

States interposes any such protection between the Sta te governments and the ir 

own citizens. Nor can anythin g of thi s kind be shown. The Fed eral Con stitution 

contains but two provisions on this subject. One of these forbids Congress to 

make any law respecting the establishment of religion, or proh ibiting tlie free 

exercise thereof. The oth er is, th at no religious tes t sha ll ever be required as a 

qualificatio n to any office or public tru st un der the United States.

No restr aint is placed by th at instrument on the action of the Sta te s; but on 

the contrary, in the language of Story,55 “the whole power over the subject of religion is left exclusively to the Sta te governments, to be acted upon according 

to th eir own sense of justice and the State co nstitutions.”

If there ever was a case calling upon this cou rt to exercise all the power on 

thi s subject which properly belongs to it, it was the case of the Rev. B. Permoli.“

An ordinance of the first municipa lity of the city of New Orleans imposed a 

penalty on any priest who should officiate at any funeral, in any other church 

than the obituary chapel. Mr. Permoli, a Catholic priest, performed the fun era l 

services of his church over the body of one of his parishioners, inclosed in a 

coffin, in the Roman Catholic Church of St. Augustine. For this he was fined, 

and relying upon the vague idea advanced here, th at the Fed eral Constitution 

protecte d him in the exercise of his holy functions, he brou ght the case to this 

court.

' B ut hard as th at case was, the court replied to him in the following lan gu age: 

“The Constitution (of the United Sta tes) makes no provision for protectin g the 

citizens of the respective Sta tes in their religious lib er tie s; thi s is left to the 

State constitutions and laws ; n or is there any inhibition imposed by the C onstitution of the United States in thi s respect on the Sta tes.” Mr. Perm oli's writ of 

error was, therefore, dismissed for wa nt of jurisdiction.

In th at case an ordinanc e of a mere local corporation forbid a priest, loyal 

to his government, from performing what he believed to be the necessary rite s of 

his church over the body of his dep arted friend. This court said it could give him 

no relief.

In this case the constitu tion of the Sta te of Missouri, the fund ame ntal law of 

the people of t ha t State, adopted hy their popular vote, declares th at no priest of 

any church shall exercise his min iste rial functions, unless he will show, by his 

own oath, th at he has borne a tru e allegiance to his government. This court now 

holds this constitu tional provision void, on the ground th at the Fed eral Constitut ion forbids it. I leave the two cases to speak for themselves.

In the discussion of these cases I have said nothing, on the one hand, of the 

gre at evils inflicted on the co untry by the v oluntary actio n of many of those persons affected by the laws un der consideratio n ; nor, on the other hand, of the h ardships which they are now suffering, much more as a consequence of that action 

than of any laws which Congress can possibly frame. But I have endeavored to 

brin g to the examination of the grace questions of constitutio nal law involved 

in this inqu iry those principle s alone which are calculated to assist in determining w hat the law is, r athe r t ha n what, in my pr iva te judgm ent, it ought to be.

B ur dick v. United Sta tes.

ERROR TO T H E DISTR IC T CO URT OF T H E U N IT ED ST ATE S FOR T H E SOU TH ERN DISTR IC T 

OF N EW YO RK

No. J/71. Argued December 16, 191Jh —Decided January 25, 1915

Acceptance, as well as delivery, of a pardon is essential to its validity; if 

rejected by the person to whom it is tendered the court has no power to force it 

on him. United States v. Wilson, 7 Pet. 150.

58 C o m m e n ta rie s o n th e C o n s tit u tio n , S 1 8 7 8 .

88 3 H o w a r d , 589.
141

Qua’re whether the President of the United States may exercise the pardoning power before conviction.

A witness may refuse to testify on the ground that his testimony may have 

an incriminating effect, notwithstanding the President offers, and he refuses, 

a pardon for any offense connected with the matters in regard to which he isasked to testify

There are substantial differences between legislative immunity and a pardon; 

the latter carries an imputation of guilt and acceptance of a confession of it, 

while the former is non-committal and tantamount to silence of the witness.

There is a distinction between amnesty and pardon ; the former overlooks theoffense and is usually addressed to crimes against the sovereignty of the State 

and political offenses, the latter remits punishment and condones infractions of 

the peace of the State.

211 Fed. Rep. 492, reversed.

The facts, which involve the effect of a pardon of the President of the United 

States tendered to one who has not been convicted of a crime nor admitted the 

commission thereof, and also the necessity of acceptance of a pardon in orde r 

to make it effective, are stated in the opinion.

Mr. Henry A. Wise, with whom Mr. Henry W. Sackctt was on the brief, for 

plaintiff in e rr or :

The proceeding before the grand jury was a “criminal case” within the meaning of the Fifth Amendment. Counselman v. Hitchcock, 142 U.S. 547.

Plaintiff in error was privileged under the Fifth Amendment to decline to 

answer the questions upon the ground tha t his answers thereto might tend to 

criminate him. 1 Burr’s Trial, 244, Coombs; Counselman v. Hitchcock, 142 U.S. 

564 ; Sanderson’s Case, 3 Cranch, 638.

The refusal of a witness to answer questions upon the ground that his answers 

may tend to criminate him does not constitute either an admission or proof of 

his guilt of any offense. 30 Am. & Eng. Ency., p. 1170; Rose v. Blakemore, 21 

E. C. L. Ryan & Moody, 382. 774; Phelin v. Kinderline, 20 Pa. St. 354; State v. 

Bailey, 54 Iowa, 414; Dorcndingcr v. Tschcchtclin, 12 Daly (N.Y.), 34; Greenleaf 

on Evidence, 16th ed., §469d; Wigmore on Evidence, §2272; Act of March 16, 

1878, 20 Stat. SO; Wilson v. United States, 149 U.S. 60; Fitzpatrick v. United

States, 178 U.S. 304, 315; Boyle v. Smithman, 146 Pa. St. 255; Beach v. United

States, 46 Fed. Rep. 754.

The President was without power to issue any pardon to plaintiff in error; 

and consequently the warrant tendered is null, void and of no effect. Art II, § 2, 

Const. U.S.; Martin v. Hunter, 1 Wheat. 304; Cooley’s Const. Urn., p. 11; Ex parte

Wells, 18 How. 307; Ex parte Garland, 4 Wall. 333; 20 Ops. Atty. Gen'l 330; 24 

Am. & Eng. Ency., pp. 575-6; 2 Hawkins, P. C., Ch. 37, § 9, p. 543; In re Nevitt,

117 Fed. Rep. 448; 11 Ops Atty Gen’l 227; Howard’s Case, Sir T. Raymond. 13; 

83 Eng. Rep. (Full R eprint), 7; United States v. Klein, 13 Wall. 128; Armstrong’s

Foundry, 6 Wall. 766; Carlisle v. United States, 16 Wall. 147; Lapcyre v. United

States, 17 Wall. 191; Osborn v. United States, 91 U.S. 474; Wallach v. Van

Riswick, 92 U.S. 202; United States v. Padelford, 9 Wall. 531; Armstrong v. 

United States, 13 Wall. 155; Pargoud v. United States, 13 Wall. 157.

Plaintiff in error having refused to accept the tendered pardon, the same is 

of no effect. Wilson v. United States, 7 Pet. 150; Commonwealth v. Lockwood,

109 Massachusetts, 323; Cooley, Const. Law, 3d ed., p. 115.

The tendered pardon is not an equivalent of the constitutional privilege of 

error of an offense against the United States without trial by jury, and consequently in violation of his rights under the Constitution of he United States. 

See Fifth and Sixth Amendments, Const. U.S.; 24 Am. & Eng. Ency. 579; 11 Ops. 

Atty. Gen’l 227; Dominick v. Bowdoin, 44 Georgia, 357: Manlorc v. State, 153 

Indiana, 80; Commonwealth v. Lockwood, 109 Massachusetts, 323; People v. 

Marsh, 125 Michigan, 410; United States v. Armour, 142 Fed. Rep. 808.

The tendered pardon is not an equivalent of the constitutional privilege of 

plaintiffs in error. Counselman v. Hitchcock, 142 U.S. 564; Brown v. Walker,

161 U.S. 591; Cooley’s Const. Lim„ pp. 5, 365

The interpretation of the language of the Constitution conferring the pardoning power upon the President, “and he shall have power to grant reprieves and 

pardons for offenses against the United States except in cases of impeachment,” 

(Art. II, § 2, subd. 1) contended for by the United States stretches the actual 

language of the Constitution in tha t it makes the word “offenses” connote 

conjectural or purely hypothetical offenses in addition to ascertained events. 

Assuming for the sake of argument th at this construction Is permissible, upon a 

44- 27 4— 75-------10
142

mere examination of the language, then there is presented a case in which there 

is a choice between two permissible constructions and in such a case the court 

must choose the one which is most in harmony with the Constitution taken as a 

whole and with the spirit of our institutions. Gibbons v. Ogden, 9 Wheat. 1, 188; Legal Tender Cases, 12 Wall. 457, 531-532; In re Griffin, 17 Am. L. R. 358. The construction of the words conferring the pardoning power that is contended 

for by the United States would tend to destroy some of the most essential safeguards of free government. It would pervert the grand jury, which in its origin 

was an institution which stood as a barrier against persecution by the crown 

into an instrument of inquisition tha t might be used by the executive department 

for the purpose of throttling the free and wholesome criticism of the acts of 

public officials. I t would tend to destroy to a dangerous degree the separation of 

powers between the executive and the judicial branches of the government and in 

practical effect would arm the executive with summary powers which ought to 

be possessed only by the judicial branch. It would inevitably create the possibility 

of putting into effect a systems of censorship of news concerning the acts of public officials and tend to the creation of a secret and powerful bureaucracy. Ex parte Bain, 121 U.S. 1, 10-11; Kilbou m v. Thompson, 103 U.S. 108, 100: United States Constitution, Art. Il l, § 1; Art. II, § 1; Art. I, § 1; Fifth Amendment.

The Solicitor General for the United St ates :

The President has the power to pardon a person for an offense of which he has 

not been convicted. It was so in England. 3 Coke’s Inst. 223, c. 105, Of Pardons ; 14 

Blackstone, c. 26, subd. IV, 4, and see c. 28; 6 Halsbury’s Laws of England, p. 404.

In this country from the very first, Presidents have exercised not only the 

power to pardon in specific cases before conviction, but even to grant general 

amnesties. 20 Opt. Atty. Gen’l 339. And see Ex parte Garland, 4 Wall. 333 ; Brown v. Walker, 161 U.S. 591.

In the constitutions of some of the States the power of the governor to grant 

pardons is expressly limited by the words “after conviction,” but in the States 

in which this limitation is not contained in the constitutions the governor may 

pardon before conviction. Dominick v. Bowdoin, 44 Georgia, 357; Grubb v. Bul­ lock,

Woolery,

 44 Georgia, 379; Commonwealth v. Bush, 2 Duv. (Ky.) 264; State n.

 29 Missouri, 300.

A pardon may be granted for an offense which has neither been admitted 

nor proved. It is true tha t a pardon cannot be granted as a license for future 

misdoing, but the pardons involved in the cases at bar do not relate to future 

offenses which the plaintiffs in error have committed or may have committed, or 

taken part in.

A person may be pardoned for an offense which has not been proved. An 

acknowledgment by the person pardoned tha t his answer will tend to incriminate 

him in basis enough for granting a pardon, without any other proof of the offense 

or of his connection with it. This is the basis of the immunity statutes.

A pardon may be granted for the purpose of affording to a witness immunity 

from prosecution. The exercise of the pardoning power of the President for 

this purpose does not amount to a usurpation of legislative functions even if it 

be true tha t it is within the powers of Congress to enact laws securing to witnesses immunity from prosecution in lieu of the constitutional prohibition against 

compelling incriminating testimony. See Brown v. Walker, 161 U.S. 591. The exercise of this power by Congress, however, can have no effect in limiting 

the constitutional power of the President to grant pardons. The President’s power 

of pardon “is not subject to legislation,” and “Congress can neither limit the 

effect of his pardon nor exclude from its exercise any class of offenders.” United States v. Klein, 13 Wall. 128, 141. It cannot be interrupted, abridged, or limited 

by any legislative enactment. The Laura, 114 U.S. 411, 414; Ex parte Garland, 4 Wall. 333, 380.

The immunity afforded by the pardons is as broad as the protection afforded 

by the constitutional provision against compelling a person to be a witness against 

himself. 

Walker,

Counselman v. Hitchcock, 142 U.S. 547, distinguished. And see Brown v. 161 U.S. 591; Int. Com. Comm. v. Baird, 194 U.S. 25; Hale n. Henkel, 201 U.S. 43; Nelson v. United States, 201 U.S. 92. No formal acceptance is necessary to give effect to the pardons. 

Wilson, United States v. 7 Pet. 150, has no application here, and see In re Callicot, 8 Blatchf. 89, 96. Althoiigh a court takes no notice of a pardon unless it is pleaded or in some 

way claimed coram judice by the person pardoned, United States v. Wilson, 7 Pet. 150, and the plaintiffs in error might refuse the benefit of their pardons
143

should they be prosecuted for the offenses which are covered by the pardons, that 

does not affect their validity. The pardons have been executed, formally tendered to plaintiffs in error, have been tiled with the clerk of the court for the jurisdiction in which the testimony is required, and remain at the disposal of plaintiffs in error. They have passed out of the control of the President and of the executive department of the •Government with the intention tha t they shall pass to the plaintiffs in error, so tha t there has been as complete a delivery as it is possible to make, and if they are not irrevocable now they would become so at the very instant tha t the 

required testimony is given. It is the object of the constitutional privilege to protect the witness from the danger of prosecution for a past offense which his evidence may disclose or to which his evidence may give a clue. But, since t ha t danger has been completely removed by the pardons of which the plaintiffs may avail themselves a t any time af ter the moment of testifying, the constitutional privilege cannot be invoked by them, for there is nothing to which it can apply—no danger against which its 

protecting shield is necessary.

Mb. J ustice McKenna delivered the opinion of the court. Error to review a judgment for contempt against Burdick upon presentment of the Federal grand jury for refusing to answer certain questions put to him in an investigation then pending before the grand jury into alleged custom frauds in violation of §§37 and 39 of the Criminal Code of the United States. Burdick first appeared before the grand jury and refused to answer questions as to the directions he gave and the sources of his information concerning certain articles in the New York Tribune regarding the frau ds under investigation. He is the City Editor of tha t paper. He declined to answer, claiming upon his oath, tha t his answers might tend to criminate him. Thereupon he was remanded to appear at a late r day and upon so appearing he was handed a pardon which he was told had been obtained for him upon the strength of his testimony before 

the other grand jury. The following is a copy of it : “Woodrow’ Wilson, President of the United States of America, to all to whom 

these presents shall come, Greeting: "Whereas George Burdick, an editor of the New York Tribune, has declined to testify before a Federal Grand Jury now’ in session in the Southern District 

of New’ York, in a proceeding entitled ‘United States v. John Doe and Richard 

Roe,’ as to the sources of the information which he had in the New York Tribune office, or in his possession, or under his control at the time he sent Henry D. Kinsbury, a reporter on the said New York Tribune, to write an artic le which appeared in the said New York Tribune in its issue of December th irty first 1913, headed ‘Glove Makers’ Gems may be Customs Size,’ on the ground that it would tend to incriminate him to answ’er the questions; and, “Whereas, the United States Attorney for the Southern District of New York desires to use the said George Burdick as a witness before the said Grand Jury in the said proceeding for the purpose of determining whether any employe of the Treasury Department at the Custom House, New York City, has been betray­ ing information tha t came to such person in an official capacity; and, “Whereas, it is believed tha t the said George Burdick will again refuse to testify in the said proceeding on the ground that his testimony might tend to 

incriminate him self ; “Now, Therefore, be it Known, that I, Woodrow Wilson, President of the United States of America, in consideration of the premises, divers other good and sufficient reasons me thereunto moving, do hereby grant unto the said George Burdick a full and unconditional pardon for all offenses against the United States which he, the said George Burdick, has committed or may have committed, or taken par t in, in connection with the securing, writing about, or assisting in the publication of the information so incorporated in the afore­ mentioned article, and in connection with any other article, matter or thing, concerning wdiich he may be interrogated in the said grand jury proceeding, thereby absolving him from the consequences of every such criminal act. “In testimony whereof, I have hereunto signed my name and caused the seal of the Department of Justice to be affixed. Done a t the City of Washington this fourteenth day of February, in the year of our Lord One Thousand Nine Hundred and Fourteen, and of the Independence of the United States the One Hundred 

and Thirty-eighth.” He declined to accept the pardon or answer questions as to the sources of his information, or w’hether he furnished certain reporters information, giving the
144

reason, as before, tha t the answers might tend to criminate him. He was presented 

by the grand jur y to the D istric t Court for contem pt and adjud ged g uilty thereof 

and to pay a fine of $500, with leave, however, to purge himself by testifying 

fully as to the sources of the info rmation sought of him, “and in the ev ent of his 

refusa l or failur e to so answer, a comm itment may issue in add ition until he 

shall so comply," the cou rt deciding th at the President has power to pardon for 

a crime of which the individual lias not been convicted and which he does not 

adm it and th at acceptance is not necessary to toll the privilege a gains t incriminatio n.

Burdick again appe ared before the grand jury , aga in was questioned as before, 

again refused to accept the pardon and again refused to answer upon the same 

grounds as before. A final ord er of comm itment was then made and entered and 

he was comm itted to the custody of the United States Marshal until he should 

purge himself of contem pt or until the furth er order of the court. This writ of 

err or was then allowed.

The question in the case is the effect of the unaccepted pardon. The Solicitor 

General in his discussion of the question, following the division of the Distric t 

Court, contends (1) th at the President has power to pardon an offense before 

admission or conviction of it, and (2) the acceptance of the pardon is not necessary to its complete exculpating effect. The conclusion is hence deduced th at the 

pardon removed from Burdick all dan ger of accusation or conviction of crime 

and that, therefore, the answers to the questions put to him could not tend to 

or accomplish his incrimination.

Plaintiff in error counters the contention and conclusion with directly opposing 

ones and makes other contentions which att ack the sufficiency of the pardon as 

immunity and the power of the Pre sident to grant a pard on for an offense not 

preeeden tly establish ed no r confessed nor defined.

The discussion of counsel is as broad as their contentions. Our consideratio n 

may be more limited. In our view of the case it is not material to decide whether 

the pardo ning power may he exercised before conviction. We may. however, refer 

to some aspects of the contentions of p lain tiff in error, although the case may he 

brought to the narrow question. Is the acceptance of a pardon necessary? We 

are relieved from much discussion of it by United Sta tes v. Wilson, 7 Peters, 150. Indeed, all of th e principle s upon which its solution depends were there considered and the facts of the case gave them a peculiar and interestin g application.

There were a number of indictments aga inst Wilson and one Porter, some of 

which were for o bstructing the mail and others for robbing the mail and putting 

the life of the ca rri er in jeopardv. They were convicted on one of the la tter indictments. sentenced to death, and Po rte r w as executed in pursuan ce of th e sentence. 

President Jackson pardoned Wilson, the pardon reciting that it was for the 

crime for which he had been sentenced to suffer death, rem itting such penalty 

with the express stipulation th at the pardon should not exten d to any judgment 

which might be had or obtained against him in any oth er case or cases then 

pending before the court for oth er offenses wherewith he might stand charged.

To anoth er of the indictme nts Wilson withdrew his plea of not guilty and 

pleaded guilty. Upon being arra igned for sentence the court suggested the propriety of inqu iring as to the effect of the pardon, “although alle.ged to relate to 

a conviction on ano ther indictment.” Wilson was asked if he wished to avail 

himself of the pardon, to which he answered in person th at (7 Pet., p. 154) “he 

had nothing to say. and th at he did not wish in any manner to avail himself, 

in order to avoid sentence in this particu lar case, of the pardon ref err ed to.”

The judges were opposed in opinion and certified to this court for decision two 

propositions which were argu ed by the dis trict atto rne y of the United State s, 

with one only of which we ar e concerned. It was as follows (p. 154) : “2. T ha t the 

pris one r can, und er this conviction, derive no advanta ge from the pardon, without bring ing the same judicia lly before the court by plea, motion or otherwise.” 

There was no appeara nce for Wilson. Attorney General Taney (afte rw ard s Chief 

Justice of this cou rt) argued the case on behalf of the United States. The burden 

of his argum ent was that a pardon, to he effective, m ust he accepted. The proposition was necessary to he established as his contention was th at a plea of the 

pardon was necessarv to ar re st the sentence upon Wilson. And he said, speaking 

of the pardon (p. 156), “It is a gra nt to him [Wilson] : it is his prop erty: and 

he may accept it or not as he pleases,” and. furth er. “It is insisted th at unless 

he pleads if, or in some way claims its benefit, thereby denoting his acceptance 

of the proffered grace, the cou rt can not notice it, nor allow it to prev ent them 

from passing sentence. The whole c urrent of autho rity establishes this principle.”
145

Th e autho rities were cited a nd it was declared th at “the necessity of pleadin g it, or claiming it in some oth er manner, grows out of the nature of the gra nt. He 

mu st accept it.” There can be no doubt, therefore, of the contention of the Atto rney General and we have quoted it in order to estima te accurately the response of the cou rt to it. The response was complete and considered the conte ntion in two aspects, (1) a pardon as the act of the Preside nt, the official act und er the Co nst itution; and (2) the attitud e and right of the person to whom it is tendered. Of the form er it was sai d (p. 100) th at the power had been “exercised from time im­ memorial by the executive of that nation (En gland) whose lang uage is our language, and to whose judicia l ins titu tions ours bear a close rese mblanc e; we adopt their principle s respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manne r in which it is to be used by the person who would avail himself of it.” From th at source of au thor­ ity and principle the court deduced and declared this conclusion: “A pardon is an act of grace, proceeding from the power entrusted with the execu tion of the laws, which exempts the individual, on whom it is bestowed, from the punish­ ment the law inflicts for a crime he has committed. It is the priv ate, [ita lics 

ours] though official act of the executive magistrate, delivered to the individual for whose benefit it is intended.” In emphasis of the official act and its func tional deficiency if not accepted by him to whom it is tendered, it was said, “A p rivate deed, not communicated to him, whatev er may be its cha rac ter, w hether a pardon or release, is tota lly unknown and cann ot be acted on.” Turning then to the other side, tlia t is, the effect of a pardon on him to whom it. is offered and completing its description and expressing the condition of its consummation, thi s was sa id : “A pardon is a deed, to the validity of which de­ livery is esse ntial, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tend ered ; and if it be rejected, we hav e 

discovered no power in a cou rt to force it on him.” Th at a pardon by its mere issue has automatic effect resistless by him to whom it is tendered, forcing upon him by mere executive power wh atever consequences it may have or however he may regard it, which seems to be the contention of the Government in the case at bar, was rejected by the court with p artic ularity and emphasis. The decision is unmistakable. A pardon was denominated as the “p rivate” act, 'the “private deed.” of the executive magistrate, and the denomi­ nation was advisedly selected to mark the incompleteness of the act or deed 

without its acceptance. Indeed, the grace of a pardon, though good its intention, may be only in pre ­ tense or see ming: in p retense, as having purpose not moving from the individual to whom it is offer ed; in seeming, as involving consequences of even grea ter disgrace than those from which it purpo rts to relieve. Circumstances may be made to bring innocence under the penalties of the law. If so b rought, escape by con­ fession of guilt im plied in the acceptance of a pardon may be reje cted ,—pre fer rin g to be the victim of the law rathe r than its acknowledged transg ressor—prefer rin g death even to such cer tain infamy. This, at lea st theoretically, is a rig ht and a right is often best tested in its extrem e. “It may be supposed,” the cou rt said in 

TJnited Sta tes v. Wilson (p. 161), “th at no being condemned to dea th would re­ ject a pa rd on ; but the rule must be the same in cap ital cases and in mis­ demeanors. A pardon may be con dition al; and the condition may be more objec­ tionable than the pun ishm ent inflicted by the judgment.” The case would seem to need no fu rthe r comment and we hav e quoted from it not only for its au tho rity but for its argument. Tt dem onstrates by both the necessity of the acceptance of a pard on to its legal efficacy, and the cou rt did not hesitate in decision, as we have seen, w hateve r th e alte rnati ve of acceptance— whethe r it be death or lesser penalty. The contr ast shows the rig ht of the ind i­ vidual again st the exercise of excessive power not solicited by him nor accepted 

by him. The principles declared in Wilson v. United Sta tes have endured for y ea rs : no 

case has reversed or modified them. In Ex parte William Wells, 1R How. 307. 310. 

this court said. “Tt was with the fullest knowledge of the law upon the subject of pardons, and the philosophy of government in its bea ring upon the Constitu­ tion. when this court ins tructed Chief Justice Ma rshall” to declare the doctrine 

of th at case. And in Commonwealth v. Lockw ood it was said by Mr. Justice G ray, 

speaking for the Suprem e Judicial Court of Massachusetts, be then being a mem­ ber of th at court, “it is within the election of defend ant whether he will avail himself of a pardon from the executive the tbo pardon absolute or conditional).” 109 Massachusetts, 323, 339. The whole discussion of the learned justice will repay
146

a reference. He cites and reviews the cases with the same accurate and masterful consideration that distinguished all of his judicial work, and the proposition 

declared was one of the conclusions deduced.

United States v. Wilson, however, is attempted to be removed as authority by the contention t hat it dealt with conditional pardons and that, besides, a witness 

cannot apprehend from liis testimony a conviction of guilt, which conviction he 

himself has the power to avert, or be heard to say tha t the testimony can be used 

adversely to him. when he himself has the power to prevent it by accepting the 

immunity offered him. In support of the contentions there is an intimation of 

analogy between pardon and amnesty, cases are cited, and certain statu tes of 

the United States are adduced whereby immunity was imposed in certain instances and under its unsolicited protection testimony has been exacted against 

the claim of privilege asserted by witnesses. There is plausibility in the contentions ; it disappears upon reflection. Let us consider the contentions in their ord er:

(1) To hold t hat the principle of United States v. Wilson was expressed only as to conditional pardons would be to asse rt tha t the language and illustrations 

which were used to emphasize the principle announced were meant only to destroy it. Besides, the pardon passed on was not conditional. Tt was limited in that—and 

only in that—it was confined to the crime for which the defendant had been convicted and for which he had been sentenced to suffer death. This was its emphasis 

and distinction. Other charges were pending against him, and it was expressed 

that the pardon should not extend to them. But such would have been its effect 

without expression. And we may say that it had more precision than the pardon 

in the pending case. Wilson had been indicted for a specific statutory crime, convicted and sentenced to suffer death. It was to the crime so defined and established 

that the pardon was directed. In the case at bar nothing is defined. There is no 

identity of the offenses pardoned, and no other clue to ascertain them but the 

information incorporated in an article in a newspaper. And not tha t entirely, for 

absolution is declared for whatever crimes may have been committed or taken 

part in “in connection with any other article, matter or thing concerning which 

ho [Burdick] may be interrogated.”

It is hence contended by Burdick tha t the pardon is illegal for the absence 

of specification, not reciting the offenses upon which it is intended to ope rate; 

worthless, therefore, as immunity. To support the contention cases are cited. It 

is asserted, besides, tha t the pardon is void as l>eing outside of the power of thePresident under the Constitution of the United States, because it was issued before accusation, or conviction or admission of an offense. This, it is insisted, is 

precluded by the constitutional provision which gives power only “to grant reprieves and pardons for offenses against th e United States,” and it is argued, in 

effect, tha t not in the imagination or purpose of executive magistracy can an 

“offense against the United States” be established, but only by the confession of 

the offending individual or the judgment of the judicial tribunals. We do not 

dwell further on the attack. We prefer to place the case on the ground we have stated.

(2) May plaintiff in error, having the means of immunity at hand, that is. the 

pardon of the President, refuse to testify on the ground tha t his testimony may 

have an incriminating effect? A superficial consideration might dictate a negative 

answer but the answer would confound rights which are distinct and independent.

It is to be borne in mind tha t the power of the President under the Constitution 

to grant pardons and the right of a witness must be kept in accommodation. Both 

have sanction in the Constitution, and it should, therefore, be the anxiety of the 

law to preserve both,—to leave to each its proper place. In this as in other conflicts 

between personal rights and the powers of government, technical—even nice— 

distinctions are proper to be regarded. Granting then tha t the pardon was legally 

issued and was sufficient for immunity, it was Burdick’s right to refuse it. as 

we have seen, and it. therefore, not becoming effective, his right under the Constitution to decline to testify remained to be ass erted; and the reasons for his 

action were personal. Tt is true we have said (Brown v. Walker, 161 U.S. 501. 605) tha t the law regards only mere penal consequences and not. “the personal 

disgrace or opprobrium attaching to the exposure” of crime, but certainly such 

consequence may influence the assertion or relinquishment of a right. This consideration is not out of place in the case at bar. I f it be objected that the sensitiveness of Burdick was extreme because his refusal to answer was itself an implication of crime, we answer, not necessarily in fact, not at all in theory of law. It 

supposed only a possibility of a charge of crime and interposed protection against 

the charge, and, reaching beyond it, against furnishing what might be urged or used as evidence to support it.
147

This brings us to the differences between legislative immunity and a pardon. 

They ar e substantial. The latter ca rries an imputation of gu ilt ; acceptance a con1

fession of it. The former has no such imputation or confession. I t is tantamount 

to the silence of the witness. It is non-committal. It is the unobtrusive act of th& 

law giving protection against a sinister use of his testimony, not like a pardon 

requiring him to confess his guilt in order to avoid a conviction of it.

It is of little service to assert or deny an analogy between amnesty and pardon. 

Mr. Justice Field, in Knote v. United States, 95 U.S. 149, 153, said tha t “the distinction between them is one rather of philological interest than of legal importance.” This is so as to their ultimate effect., but there are incidental differences 

of importance. They are of different character and have different purposes. The 

one overlooks offense; the other remits punishment. The first is usually addressed 

to crimes against the sovereignty of the State, to political offenses, forgiveness 

being deemed more expedient for the public welfare than prosecution and punishment. The second condones infractions of the peace of the State. Amnesty is usually general, addressed to classes or even communities, a legislative act, or 

under legislation, constitutional or statutory, the act of the supreme magistrate. 

There may or may not be distinct acts of acceptance. If other rights are dependent 

upon it and are asserted there is affirmative evidence of acceptance. Examples 

are afforded in United States v. Klein, 13 Wall. 128; Armstrong's Foundry, 6 

Wall. 766; Carlisle v. United States, 16 Wall. 147. See also Knote v. United States,

supra. If there be no other rights, its only purpose is to stay the movement of the 

law. Its function is exercised when it overlooks the offense and the offender, 

leaving both in oblivion. Judgment reversed with directions to dismiss the proceedings in contempt

and discharge Burdick from custody.

Mr. J ustice McReynolds took no part in the consideration and decision of 

this case.

Mr. Dennis. And Mr. Chairman, I would also like to make a par t of 

the record, if I may, the article referred to by my colleague, Mr. 

Hogan, which appeared in the Wall Street Journal of October 16, 

1974, and is headed “The Pardon of Nixon Was Timely, Legal, Jaw orski Believes.”

Mr. Hungate. Without objection, it is so ordered.

[The article referred to follows:]

[From the Wall Street Journ al, Oct. 16, 1974]

The Pardon of Nixon Was Timely, Legal, Jaworski Believes

H E SAYS NIXO N’S ACCEPTA NCE CLEARLY SH OW S H IS GU ILT AND MORE EVIDENCE IS DUE

(By Karen J. Elliott, Staff Reporter of The Wall Street Journa l)

Washington.—Special Watergate Prosecutor Leon Jaworski sees nothing 

wrong with President Ford’s decision last month to pardon Richard Nixon.

Mr. Jaworski, talking publicly about the controversy for the first time, concedes that the pardon prevented an indictment and tria l of Mr. Nixon. But he 

believes tha t sufficient evidence has, or soon will, become public to show conclusively that the former President was guilty of obstruction of justice.

“The evidence will show he’s guilty, just as much as a guilty plea.” the special 

prosecutor declared during an interview yesterday in his sparsely furnished office 

here. Next wreek, Mr. Jaworski is leaving the job he has held for 11 months and is 

returning to Houston to resume the practice of law.

The special prosecutor believes, furtherm ore that both the offering of a pardon 

and Mr. Nixon's acceptance of it clearly signify his gu ilt :

“A pardon isn’t just a beautiful document to frame and hang on the wall. You 

are offered a pardon only because it is believed you can be charged and convicted. 

You accept it only if you want to be cleared.”

AN ALL-OUT DEFEN SE

Mr. Jaworski’s attitude about the pardon has been a subject of intense speculation here for weeks. Many have assumed tha t the special prosecutor, who has 

gained a reputation in Washington for toughness and integrity, objected to the 

decision. It even has been suggested in recent days th at his supposed anger over 

the pardon is what prompted him to resign his post.
148

In fact, his statem ents yesterday amount to an all-out defense of the most 

controv ersial aspect of the pa rd on : its timing prior to a Nixon indictment and 

tri al . Thus, the Jaw orski position could have significant political benefit for 

Pre sident Ford, whose popularity with the public h as dropped dramatica lly since 

he granted the pardon.

The special p rosecutor said he has kept silent on th e p ardo n and on Mr. Nixon’s 

role in the Waterg ate cover-up for two reason s: He wanted to wait unt il a jury 

was chosen and sequestered for the trial of five of Mr. Nixon’s form er top aides, 

and he wanted to wait until he had announced his resignation. All t ha t has happened, and now Mr. Jaw orski is tal king : There will be more newspaper interviews, and on Sunday he is scheduled to appea r on NBC’s “Meet the Pre ss” 

program.

Mr. Jaworski denies that the pardon prompted his resig natio n. He said in the 

interview yesterda y th at he decided three weeks ago to resign because he had 

completed what he has alwa ys considered to be his prima ry task—outlinin g Mr. 

Nixon’s role in the cover-up.

His own d eparture, he said, won’t slow the investigations th at the pr osecuto r’s 

office is conducting into the milk-fund scan dal and into illegal political contributions by corporations. Action is expected soon a gains t other companies, he said.

“th e best prepared case”

The special prosecutor said th at evidence to be presented during the curre nt 

Wa tergate tri al will fu rth er enmesh the form er Pre sid ent in the cover-up. Mr. 

Jaw orski, who won’t be particip ati ng in the prosecution, called it “the bestprepared case I ’ve been associa ted with.”

Mr. Jaw orski’s at tit ud e about the controversial pardon rests on th e assumption 

drawn from an early Ford news conference that P res ide nt Ford always inten ded 

to pardon Mr. Nixon even tually. Thus, to Mr. Jawo rski, all tha t is at issue is the tim ing of the pardon.

Mr. Jaw orski insists th at if Mr. Nixon’s case had been allowed to proceed to 

indictm ent and trial, the public would have learned nothing more about the

former President’s role than will come out in the tria l of his former aides. "Tt's

a mistake to believe there would have been more evidence fo r the public i f he had

been tried," the special prosecutor said.

“If he had been pardoned af te r indic tment, the public would h ave no new information. If he had gone to tria l, he could have invoked h is Fifth Amendment guarantees aga inst self-incrimination , pleaded nolo contendere, or even pleaded 

guilty, and we wouldn’t have learn ed any new details,” Mr. Jaworski said.

The special prosecutor wouldn’t say whether he would have prosecuted the 

form er Pre sident if Mr. F ord hadn’t pardoned him. “Nothing is served by talking 

about hypothetical situations now.” he declared.

Bu t Mr. Jawo rski said that i f the former Pre sid ent h ad been charged, his tri al 

wouldn’t have come for many months. “We gave no consideratio n to doing any ­

thing with the form er Presi dent un til af ter the cover-up jury was sequestered,” 

lie said.

A major task still facin g the special prosecution force is a rep ort to Congress 

on the Nixon investiga tion and on oth er aspects of the Wate rga te case. Th at report xvill exclude much evidence again st the former Pre sid ent unless Congress 

specifically authorizes its inclusion. Without such autho rity , Mr. Jaw orski believes, a prosecutor can’t ethically disclose evidence again st a man who hasn’t 

been ch arge d: Mr. Jaw orski has asked Congress for authority to include such 

material in the report.

"W e can paint a v ery full picture o f Mr. Nixon’s role in obstructing justic e, b ut the difficulty arise s in other are as where we didn’t brin g charges.” he said. The 

Wate rga te grand jury named Mr. Nixon as an unindicted coco nspirator in the 

obstruction of justice for which his form er aides are being tried.

Mr. Jaworsk i is tur nin g philosonhical as he nrepares to leave for a res t at his 

Texas ranch, where he will “watch the deer and bird s and thin k about something 

besides Wa tergate for the first time in a y ear .” W atergate, he believes, h as shown 

th at the American governmental system works. “Here are top men in government 

who hav en’t been spared from investigation, exposure and conviction,” he said.

But. he isn’t sorry to be leaving. “The whole thing is a tragedy.” he said. “And 

I don’t get any satisfactio n from being involved in a national trag edy .”

Presiden t Fonr>. M r. Ch airm an , may T add to some thing T sa id just 

to m ake it corr ect ?

Mr. H ungate. Yes, sir .
149

President F ord. Somebody asked about when I last saw the Pre sident. I said that I had seen him on the ninth. I did as he departed. 

But I had also seen the President the morning of the eighth, at the 

time tha t I was asked to come and see him, and at that time we 

spent an hour and 20 minutes together, or thereabouts, when he told 

me that he was going to resign. So I saw him both the eighth and the 

ninth, just to make the record accurate.

Mr. Hungate. All of us are aware of our time constraint. I will 

yield to the gentleman from Wisconsin for a question.

Mr. Kastenmeier. Th ank you, Mr. Chairman. I would like to, for 

the record, indicate that the statement of the gentleman from Mary ­

land, Mr. Hogan, to the effect tha t the proposal tha t this Subcommittee 

will try to contact certain staff members, such as General Ila ig and 

others, was supported by me. I th ink it would have been excellent. AA e 

have in the past done very well in terms of staff work prelim inary to 

hearings. Th at might have helped put some of the questions Ms. 

Holtzman had to rest.

Mr. President, you indicated tha t as far as Mr. Haig was concerned 

tha t he had suggested certain options to you, but did not, in fact, make 

a recommendation to you with respect to the pardon ?

President F ord. Th at is correct. I answered th at I think as fully as 

T can in my prepared statement. He discussed the options. He made no 

recommendations.

Mr. Kastenmeier. Which other persons, to you personally made 

recommendations tha t the former President be pardoned from tha t 

time in early August to the day of September 6 when you made your 

decision ?

President F ord. No other person, to my knowledge, made any recommendation to me from th at time until the time tha t I made the decision 

about September 6. Nobody made any recommendation to me fo r the 

pardon of the former President.

Mr. Kastenmeier. With respect to discussions between General 

Haig and Mr. Nixon, o r other matters in question, you indicated you 

had no personal knowledge, both in writing and in your statement 

today.

I take it you would have no objection if the subcommittee sought 

to question Mr. Haig or others on the subject before us this morning 

to supplement this hearing and this inquiry ?

President F ord. I do not think that is within my prerogative. I 

have come here to testify as to the specific facts as I know them. But. 

what the subcommittee does is a judgment for the subcommittee and 

not me.

Mr. Kastenmeier. Thank you, Mr. President.

Mr. Hungate. The Chair is advised tha t the House is in recess 

waiting for the conclusion of this hearing for reconvening.

So, if I might, I would yield to Mr. Hogan for a question at this 

point, and then to Ms. Holtzman for a question, and we will then 

conclude.

Mr. Hogan.

Mr. Hogan. Thank you, Mr. Chairman.

Mr. President, on page 20 of your statement you talk about the 

health issue, and state tha t you had not gotten any official reports
150

from physicians tha t were controlling in vonr decision. But you 

state tha t observations were reported to you from others. Now, there 

have been press reports that Dr. Kissinger is alleged to have said to 

you tha t he feared tha t former President Nixon would commit 

suicide. Th at appeared in several news accounts. Is there any truth to 

tha t?

President Ford. No truth to it whatsoever, so far as I know.

Mr. Hogax. Well, it appeared in the New York Times and the 

Washington Post as is reported in a research paper prepared for th is 

subcommittee.

President F ord. There was no discussion between Dr. Kissinger and 

myself that included any such comment.

Mr. Hogax. I think, if I might add a gratuitous comment, Mr. 

Chairman, tha t much of the controversy has been generated by the 

press by just such erroneous statements tha t have been given wide 

•circulation.

Thank you, Mr. President.

Mr. Huxgate. I will ask for one concise question because-----

Mr. Edwards. Thank you, Air. Chairman.

Mr. President, what were the precise instructions given to Benton 

Becker by you when he went to San Clemente to negotiate Mr. Nixon’s 

acceptance of the pardon?

President F ord. The precise instructions given to Mr. Becker were 

actually given by my counsel, Mr. Buchen. In general, I knew what 

they were. They were instructions to negotiate the protection of those 

documents, including the tapes, fo r the benefit of the Special Prosecutor in whatever use he felt was essential. And at the same time to 

keep them inviolate durin g a period of time which we felt was a 

proper one.

Mr. Edwards. But not to offer th e pardon unless that agreement 

had been negotiated?

President F ord. Air. Edwards, those negotiations as to the custody 

or ownership of the documents, including tapes, were undertaken prior 

to August 27 because we were more or less besieged—when I say 

“we”, the White House—as to what to do with those documents, including tapes, and tha t negotiation had no relevance whatsoever to 

the decision on my part to pardon the President.

Mr. Edwards. Thank you. Mr. President.

Mr. Huxgate. The Chair would remind all of the constraints of 

time and call on Ms. Holtzman for one final question.

Ms. IToltzmax. Thank you, Mr. Chairman.

Mr. Ford , you stated tha t the theory on which you pardoned Richard 

Nixon was th at he had suffered enough. I am interested in tha t theory 

because the logical consequence of it is tha t somebody who resigns in 

the face of virtually certain impeachment or somebody who is itnpeached should not be punished because the impeachment or the resignation in the face of impeachment is punishment enough. I wondered 

whether anybody had brought to your attention th e fact that the Constitution specifically states that even though somebody is impeached, 

that person shall nonetheless be liable to punishment according to law.

President F ord. Ms. Holtzman, I was fully cognizant of the fact that 

the President on resignation was accountable for any criminal charges, 

but I would like to say that the reason I gave the pardon was not as to
151

Mr. Nixon himself. I repeat, and I repeat with emphasis, the purpose 

of the pardon was to tr y and get the U nited States, the Congress, the 

President, and the American people, focusing on the serious problems 

we have both at home and abroad, and I was absolutely convinced then 

as I am now th at if we had had this serious, an indictment, a tria l, the 

conviction, and anything else th at transpired afte r tha t, that the attention of the President, the Congress and the American people would 

have been diverted from the problems th at we have to solve, and tha t 

was the principal reason for my gran ting of the pardon.

Mr. Smith. Mr. Chairm an-----

Mr. Hungate. Mr. Smith.

Mr. Smith [continuing]. Mr. Chairman, just before we adjou rn th is 

hearing, 1 again would like to commend the President and th ank him 

for coming. I think, Mr. President, that you have probably opened a

* new era between the executive and the legislative departments and I 

am very happy for it.

President F ord. Mr. Chairman, I want to express to you and to the 

other members of the committee or subcommittee, my appreciation 

for the fine manner and I thin k the fair way in which this meeting 

was held this morning. I felt t hat it was absolutely essential because 

I am the only one who could explain the background and the decisionmaking process, and I hope, as I said in my opening statement, Mr. 

Chairman, that I have a t least cleared the air so tha t most Americans 

will understand what was done and why it was done, and again I tru st 

tha t all of us can get back to the job of tryi ng to solve our problems, 

both at home and abroad.

I thank you very, very much.

Mr. Hungate. Mr. Chairman—Mr. Presid ent, on behalf of the sub- 

•committee, we express our appreciation for your appearance here 

today. And in recognition of the responsibility we all have to complete 

this morning and get on with the business.

The transcripts will be furnished as quickly as possible to members 

of the subcommittee.

The subcommittee will adjourn, subject to the call of the Chair.

[Whereupon, at 11:57 a.m., the subcommittee was adjourned, subject 

to the call of the Chair.]

[The prepared statement of President G erald R. Ford follows:]

Sta tem en t of P res id en t Gera ld R. F ord

We meet here today to review the facts and circumstances tha t were the basis 

for my pardon of former President Nixon on September 8,1974.

* I want very much to have those facts and circumstances known. The American 

people want to know them. And members of the Congress want to know them. The 

two Congressional resolutions of inquiry now before this Committee serve those 

purposes. That is why I have volunteered to appear before you tliis morning, and 

I welcome and thank you for this opportunity to speak to the questions raised by

* the resolutions. My appearance at this hearing of your distinguished Subcommittee of the 

House Committee on the Judiciary has been looked upon as an unusual historic 

event—one that has no firm precedent in the whole history of Presidential relations with the Congress. Yet, I am here not to make history, but to report on 

history.

The history you ar e interested in covers so recent a period t ha t it is still not 

well understood. If, with your assistance, I can make for better understanding 

of the pardon of our former President, then we can help to achieve the purpose 

I had for granting the pardon when I did.
152

That purpose was to change our national focus. I wanted to do all I could 

to shift our attentions from the pursuit of a fallen President to the pursu it of 

the urgent needs of a rising nation. Our nation is under the severest of challenges 

now to employ its full energies and efforts in the pursuit of a sound and growing 

economy at home and a stable and j)eaceful world around us.

We would needlessly be diverted from meeting those challenges if we as a 

people were to remain sharply divided over whether to indict, bring to trial, and 

punish a former President, who already is condemned to suffer long and deeply 

in the shame and disgrace brought upon the office he held. Surely, we are not a 

revengeful people. We have often demonstrated a readiness to feel compassion 

and to act out of mercy. As a people we have a long record of forgiving even those 

who have been our country’s most destructive foes.

Yet, to forgive is not to forget the lessons of evil in whatever ways evil has 

operated against us. And certainly the pardon granted the former President will 

not cause us to forget the evils of Watergate-type offenses or to forget the lessons 

we have learned tha t a government which deceives its supporters and trea ts its 

opponents as enemies must never, never be tolerated.

The pardon power entrusted to the President under the Constitution of the 

United States has a long history and rests on precedents going back centuries 

before our Constitution was drafted and adopted. The power has been used sometimes as Alexander Hamilton saw’ its purpose: “In seasons of insurrection . . . 

when a well-timed offer of pardon to the insurgents or rebels may restore the 

tranquility of the commonwealth ; and which, if suffered to pass unimproved, it 

may never be possible afterwards to recall.” 1 2 Other times it has been applied to one person as “an act of grace . . . which exempts the individual, on whom it is 

bestowed, from the punishment the law inflicts for a crime he has committed.” 3

When a pardon is granted, it also represents “the determination of the ultimate 

authority that the public welfare will be better served by inflicting less that what 

the judgment fixed.” 3

 However, the Constitution does not limit the pardon power 

to cases of convicted offenders or even indicted offenders.4

 Thus, I am firm in my conviction that as President I did have the authority to proclaim a pardon 

for the former President when I did.

Yet. I can also understand why people are moved to question my action. Some 

may still question my authority, but I find much of the disagreement turns on 

whether I should have acted when I did. Even then many people have concluded 

as I did that the pardon was in the best interests of the country because it came 

at a time when it would best serve the purpose I have stated.

I come to this hearing in a spirit of cooperation to respond to your inquiries, 

I do so with the understanding tha t the subjects to be covered are defined and 

limited by the questions as they appear in the resolutions before you. But even 

then we may not mutually agree on what information falls within the proper 

scope of inquiry by the Congress.

I feel a responsibility as you do tha t each separate branch of our government 

must preserve a degree of confidentiality for its internal communications. Congress, for its p art, has seen the wisdom of assuring tha t members be permitted to 

work under conditions of confidentiality. Indeed, earlier this year the United 

States Senate passed a resolution which reads in pa rt as follows :

* * * * * * *

* “. . . no evidence under the control and in the possession of the Senate of the

United States can. by the mandate of process of the ordinary courts of justice, 

be taken from such control or possession, but by its permission.” (S. Res. 338, 

passed June 12, 1974)

In United States v. Nixon, 42 U.S.L.W. 5237, 5244 (U.S. July 24, 1974), the Supreme Court unanimously recognized a rightful sphere of confidentiality within 

the Executive Branch, which the Court determined could only be invaded for 

overriding reasons of the Fifth and Sixth Amendments to the Constitution.

As I have stated before, my own view is that the right of Executive Privilege is 

to be exercised with caution and restraint. When I was a Member of Congress, I 

did not hesitate to question the right of the Executive Branch to claim a privilege 

against supplying information to the Congress if I thought the claim of privilege 

was being abused. Yet, I did then, and I do now, respect the right of Executive

1

 T he F ed er al is t No. 74. a t 7 9 (C en tr al Law Jo u rn al ed. 19 14 ) (A. H am il to n). 2

 M ar sh al l. C. J .. In Uni te d S ta te s v. W ilso n, 32 U.S . (7 P et. ) 150, 160 (1 83 3) . 2

 F iddl e v. Per ov ich, 247 U.S . 480 , 486 (1 92 7) .

4 p a r t e Ga rla nd , 4 W all. 333 , 380 (1 86 7) ; B urd ic k v. U ni te d S ta te s, (1 91 5) . 236 U.S . 7 a 
Privilege when it protects advice given to a President in the e xpectation th at it 

will not be disclosed. Otherwise, no President could any longer count on receiving free and fra nk views from people designated to help him reach his official 

decisions. Also, it is certainly not my inte ntion or even within my autho rity to detract 

on thi s occasion or in any oth er instance from the ge nerally recognized rights of 

the President to preserve the confidentiality of intern al discussions or comm unications whenever it is properly with in his Constitutional responsibility to do so. 

These rights are within the autho rity of any Pre sident while he is in office, and 

I believe may be exercised as well by a past Pre sident if the info rma tion soug ht 

l»ertains to his official function s when he was serving in office.

I bring up these important points before going into the balan ce of my statement, so there can be no doubt th at I rem ain mindful of the rig hts of confidentiality which a Pre sident may and ough t to exercise in appro priate situa ­

tions. However, I do not rega rd my answ ers as I have prepare d them fo r purposes 

of thi s inquiry to be prejudicial to those rig hts in the present circumstanc es or to 

constitute a precedent for responding to Congressional inquiries differen t in 

natur e or scope or under differen t circu mstances.

Accordingly, I shall proceed to explain as fully as I can in my present answ ers 

the facts and circumstances covered by the present resolutions of inquiry. I sha ll 

st ar t with an explanatio n of these events which were the first to occur in the 

period covered by the inquiry, before I became President. Then I will respond 

to the sep ara te questions as they are numbered in H. Res. 1367 and as they specifically relate to th e period after 1 became President.

H. Res. 1367“ before this Subcommittee asks for information about cer tain 

conv ersations that may have occurred over a period th at includes when 1 was a 

Member of Congress o r the Vice President. In that e ntire period no references or 

discussions on a possible pardo n for then Pre sident Nixon occurred until August 1 

an d 2, 1974. You will recall th at since the beginning of the W ate rga te investigations, I had 

consistently made stat ements and speeches about President Nixon’s innocence 

of either planning the brea k-in or of par ticipa ting in the cover-up. I sincerely 

believed he was innocent. Even in the closing mon ths before the President resigned, I made public sta tements th at in my opinion the adverse revelations so f ar did not constitute an impeachable offense. I was coming under increasing criticism for such public s tatements. but I still believed them to be true based on the fac ts as I knew them.

In the early morning of Thu rsda y, August 1, 1974, I had a meeting in my Vice 

Presidential office, with Alexand er M. Haig, Jr. , Chief of Staff for President 

Nixon. At this meeting, I was told in a general way about fea rs arisin g because 

of additio nal tape evidence scheduled for delivery to Jud ge Sirica on Monday, 

August 5, 1974. I was told th at there could be evidence which, when disclosed 

to the House of Representatives, would likely tip the vote in favor of impeachment. However, I was given no indication th at this development would lead to 

any change in Pre sident Nixon’s plans to opi»ose the impeachment vote.

Then sho rtly after noon, General Haig requested ano ther appointment as 

promptly as possible. He came to my office about 3:30 l’.M. for a meeting th at 

was to las t for approximately thr ee- quarters of an hour. Only then did I learn 

of the damaging na ture of a conversation on Jun e 23, 1972, in one of the tapes 

which was due to go to Judge Sirica the following Monday.

I describe this meeting because at one p oint it did include references to a possible pardon for Mr. Nixon, to which the third and fou rth questions in II. Res. 

1367 are directed. However, nea rly the entire meeting covered other subjects, all 

dealing w ith the totally new situation resulting from the critical evidence on the 

tape of June 23, 1972. General Haig told me he had been told of the new and dam ­

aging evidence by lawyers on the White House staff who had first-hand knowledge of w hat was on the tape. The substance of his conversatio n was th at the new 

disclosure would be devasta ting , even cata stro phic, insofa r as Pre sident Nixon 

was concerned. Based on what he had learn ed of th e conversation on the tape, he 

wanted to know whether I was prepared to assum e the Presidency within a very 

sho rt time, and whether I would be willing to make recommendations to the 

President as to what course he should now’ follow’.

I cannot really express adequately in words how shocked and stun ned I was 

by this unbelievable revelation. Fir st, was the sudden awaren ess I w’as likely to 

become Pre sid ent und er these most troubled circ umstan ces; and secondly, the

® T ab A at ta ched (se e ap p. 2, p. 19 6) .
154

realization these new disclosures ran completely counter to the position I had 

taken for months, in tha t I believed the President was not guilty of any impeachable offense.

General Haig in his conversation at my office went on to tell me of discussions 

in the White House among those who knew of this new evidence.

General Haig asked for my assessment of the whole situation. He wanted my 

thoughts about the timing of a resignation, if tha t decision were to be made, and 

about how to do it and accomplish an orderly change of Administration. We discussed what scheduling problems there might be and what the early organiza­ tional problems won hl be.

General Haig outlined for me President Nixon’s situation as he saw i t and the 

different views in the White House as to the courses of action tha t might be 

available, and which were being advanced by various people around him on the 

White House staff. As I recall there were different major courses being considered:

(1) Some suggested “riding it out” by letting the impeachment take its course 

through the House and the Senate trial, fighting all the way against conviction.

(2) Others were urging resignation sooner or later. I was told some people 

backed the first course and other people a resignation but not with the same 

views as to how and when it should take place.

On the resignation issue, there were put forth a number of options which 

General Haig reviewed with me. As I recall his conversation, various possible 

options being considered included :

(1) The President temporarily step aside under the 25th Amendment.

(2) Delaying resignation until furth er along the impeachment, process.

(3) Trying first to settle for a censure vote as a means of avoiding either 

impeachment or a need to resign.

(4) The question of whether the President could pardon himself.

(5) Pardoning various Watergate defendants, then himself, followed by resignation.

(6) A pardon to the President, should he resign.

The rush of events placed an urgency on what was to be done. It became even 

more critical in view of a prolonged impeachment tria l which was expected to 

last possiby four months or longer.

The impact of the Senate tria l on the country, the handling of possible international crises, the economic situation here at home, and the marked slowdown 

in the decision-making process within the federal government were all factors 

to be considered, and were discussed.

General Haig wanted my views on the various courses of action as well as 

my attitude on the options of resignation. However, he indicated he was not 

advocating any of the options. I inquired as to what was the President’s pardon 

power, and he answered that it was his understanding from a White House 

lawyer tha t a President did have the authority to grant a pardon even before 

any criminal action had been taken against an individual, but obviously, he was 

in no position to have any opinion on a ma tter of law’.

As I saw it, at this point the question clearly before me was, under the 

circumstances, what course of action should I recommend tha t would be in the 

best interest of the country.

I told General Haig I had to have time to think. Further, that I wanted to 

talk to Jam es St. Clair. I also said I wanted to talk to my wife before giving any 

response. I had consistently and firmly held the view previously t ha t in no way 

whatsoever could I recommend either publicly or privately any step by the 

President th at might cause a change in my statu s as Vice President. As the person 

w’ho would become President if a vacancy occurred for any reason in tha t office, 

a Vice President, I believed, should endeavor not to do or say anything which 

might affect his President’s tenure in office. Therefore, I certainly was not ready 

even under these new circumstances to make any recommendations about resignation without having adequate time to consider further w’liat I should properly do.

Shortly afte r 8:00 o’clock the next morning Jam es St. Clair came to my office. 

Although he did not spell out in detail the new evidence, there was no question 

in my mind that he considered these revelations to be so damaging that impeachment in the House was a certainty and conviction in the Senate a high probability. 

When I asked Mr. St. Clair if he knew of any other new and damaging evidence 

besides that on the June 23, 1072, tape, he said “no.” When I pointed out to him 

the various options mentioned to me by General Haig, he told me he had not been 

the source of any opinion about Presidential pardon power.
155

After fu rthe r tho ught on the ma tter, I was dete rmined not to make any recommendations to Pre sident Nixon on his resignation. I had not given any advice or recommendations in my conversation s with his aides, but I also did not want anyone who mig ht talk to the Pre sid ent to suggest th at I had some 

intention to do so. For th at reason I decided I should call Gene ral Haig the afte rnoon of August 2nd. I did make the call lat e th at afte rno on and told him I wanted him to understand th at I had no inte ntion of recomm ending what Pre sid ent Nixon should do about resigning or not resigning, and th at nothing we had talk ed abo ut the previous afte rnoon should be given any consideration in whateve r decision the Pre sid ent might make. General Haig told me he was in full agreement with this position. My travel schedule called for me to make app eara nces in Mississippi and 

Louisiana over Saturday , Sunday, and pa rt of Monday, August 3, 4, and 5. In 

the previous eigh t months, I h ad repeatedly sta ted my opinion that the P resident would not be found guilty of an impeachable offense. Any change from my sta ted views, or even refusa l to comment furth er, I feared, w’ould lead in the 

press to conclusions th at I now wanted to see the Pre sid ent resign to avoid an impeachment vote in the House and probably conviction vote in the Senate. For that reason 1 remained firm in my answers to press questions during my trip and repe ated my belief in the Pre sid ent’s innocence of an impeachable offense. Not until I return ed to Washington did 1 lea rn th at Pre sid ent Nixon was to 

release the new evidence lat e on Monday, August 5, 1974. At about the same time I was notified th at the President had called a Cabinet 

meeting for Tuesday morning, August 6, 1974. At th at meeting in the Cabinet Room, I announced that I was making no recom mendations to the Pre sident as to w hat he should do in the light of the new evidence. And I made no recommendations to him either at the meeting or at any time af te r tha t. In summary, I assure you th at there never was at any time any agreeme nt 

whatsoever concerning a pardon to Mr. Nixon if he were to resign and I were to 

become Presid ent. The first question of H. Res. 1367 asks whether I or my rep resentative had 

“specific knowledge of any form al criminal charges pending again st Ric har d M. 

Nixon.” The answe r i s : “no.” I had known, of course, th at the Grand Ju ry investigating the Wate rga te 

break-in and cover-up had wanted to name President Nixon as an unin dicted co-conspirator in the cover-up. Also, I knew th at an extensive report had been prepared by the Wate rga te Special Prosecution Force for the Grand Ju ry and had been s ent to th e House Committee on the Ju dic iary, where, I believe, i t served the staff and members of the Committee in the development of its rep ort on the proposed articles of impeachment. Beyond what was disclosed in the p ublicatio ns of the Judic iary Committee on the subject and addition al evidence released by President Nixon on August 5 ,19 74,1 saw on or shortly a fter September 4th a copy of a memorandum prepared for Special Prosecutor .Jaworski by the Deputy Special Prosecutor, Hen ry Ruth.® Copy of thi s memorandum had been furn ishe d by Mr. J aworski to my Counsel a nd was later made public du ring a press b riefing 

at the White House on Septem ber 10,1974. I have supplied the Subcommittee with a copy of this memorandum. The 

memorandum lists matt ers still under investigation which “may prove to have some direct connection to activities in which Mr. Nixon is personally involved.” The Wa terg ate cover-up is not includ ed in this li st; and the alleged cover-up is mentioned only as being the s ubject of a separate memorandum not furnished to 

me. Of those ma tte rs which are listed in the memorandum, it is sta ted th at none of them “at the moment rises to the level of our a bility to prove even a probable 

crim inal violation by Mr. Nixon.” This is all the in formation I had which re lated even to the possibility of “form al 

crim inal charges” involving the former President w’liile he had been in office. The second question in the resolution asks whether Alexander Haig referr ed to 

or discussed a pardon with Richard M. Nixon or his representativ es at any time during the week of August 4, 1974, or any subseque nt time. My answer to th at question is : no t to my knowledge. If any such discussions did occur, they could not have been a fac tor in my decision to gr an t the p ardon when I did because I was 

not awa re of them. Questions t hre e and fou r of H. Res. 1367 deal with the first a nd all subseque nt 

references to, or discussions of, a pardon for Richard M. Nixon, w ith him or any of

6

 T ab B at ta ched (see a pp . 1, p. 19 0).
156

his representatives o r aides. I have already described at length what discussions took place on August 1 and 2, 1974, and how these discussions brought no recom­ mendations or commitments whatsoever on my part. These were the only discus­ sions related to questions three and four before I became President, but question four relates also to subsequent discussions.

At no time after I became President on August 9, 1974, was the subject of a pardon for lticliard M. Nixon raised by the former President or by anyone repre­ senting him. Also, no one on my staff brought up the subject until the day before my first press conference on August 28, 1974. At that time, I was advised tha t questions on the subject might be raised by media reporters at the press conference.

As the press conference proceeded, the first question asked involved the sub­ ject, as did other later questions. In my answers to these questions, I took a posi­ tion that, while I was the final authority on this matter, I expected to make no commitment one way or the other depending on what the Special Prosecutor and courts would do. However, I also stated that I believe the general view of th« American people was to spare the former President from a criminal trial.

Shortly afterwards I became greatly concerned tha t if Mr. Nixon’s prosecu­ tion and tri al were prolonged, the passions generated over a long period of time would seriously disrupt the healing of our country from the wounds of the past. I could see that the new Administration could not be effective if it had to operate in the atmosphere of having a former President under prosecution and criminal trial. Each step along the way, I was deeply concerned, would become a public spectacle and the topic of wide public debate and controversy.

As I have before s tated publicly, these concerns led me to ask from my own legal counsel what my full right of pardon was under the Constitution in this situation and from the Special Prosecutor what criminal actions, if any, were likely to be brought against the former President, and how long his prosecution and trial would take.

As soon as I had been given this information, I authorized my Counsel, Philip Buchen, to tell Herbert J. Miller, as attorney for Richard N. Nixon, of my pend­ ing decision to grant a pardon for the former President. I was advised tha t the disclosure was made on September 4, 1974. when Mr. Buchen, accompanied by Benton Becker, met with Mr. Miller. Mr. Becker had been asked, with my con­ currence, to take on a temporary special assignment to assist Mr. Buchen, at a time when no one else of my selection had yet been appointed to the legal staff of the White House.

The fourth question in the resolution also asks about “negotiations” with Mr. Nixon or his representatives on the subject of a pardon for the former President. The pardon under consideration was not, so fa r as I was concerned, a matter of negotiation. I realized that unless Mr. Nixon actually accepted the pardon I was preparing to grant, it probably would not be effective. So I cer­ tainly had no intention to proceed without knowing if it would be accepted. Otherwise, I put no conditions on my granting of a pardon which required any negotiations.

Although negotiations had been started earlier and were conducted through September 6th concerning White House records of the prior administration, I did not make any agreement on tha t subject a condition of the pardon. The cir­ cumstances leading to an initial agreement on Presidential records are not covered by the Resolutions before this Subcommittee. Therefore, T have mentioned discussions on that subject with Mr. Nixon's attorney only to show they were related in time to the pardon discussions but were not a basis for my decision to grant a pardon to the former President.

The fifth, sixth, and seventh questions of H. Res. 1367 ask whether I con­ sulted with certain persons before making my pardon decision.

I did not consult at all with Attorney General Saxbe on the subject of a pardon for Mr. Nixon. My only conversation on the subject with Vice Presidential nominee Nelson Rockefeller was to report to him on September 6, 1974, tha t I was planning to grant the pardon.

Special Prosecutor Jaworski was contacted on my instructions by my Counsel, Philip Buchen. One purpose of their discussions was to seek the information I wanted on what possible criminal charges might be brought against Mr. Nixon. The result of that inquiry was a copy of the memorandum I have already re­ ferred to and have furnished to this Subcommittee. The only other purpose was to find out the opinion of the Special Prosecutor as to how long a delay would follow, in the event of Mr. Nixon’s indictment, before a trial could be started and concluded.
157

At a White House press briefing on September 8, 1974, the princ ipal portions of 

Mr. Jaw ors ki’s opinion were made public. In thi s opinion, Mr. Jaw orski wrote 

th at selection of a jury for the tria l of the form er Preside nt, if he were indicted 

would require a de lay “of a period from nine months to a year, and p erhaps even 

longer.” On the question of how long it would take to conduct such a trial, he 

noted th at the complexities of the jury selection made it difficult to estimate the 

time. Copy of the full text of his opinion dated September 4, 1974, I have now 

furnished to tills Subcommittee.’

I did consult with my Counsel, Philip Buchen, with Bento n Becker, and with 

my Counsellor, Joh n Marsh, who is also an atto rney. Outside of these men, 

serving at the time on my immediate staff, I consulted with no other attorn eys 

or professors of law for fac ts or legal autho rities bearing on my decision to grant 

a pardon to the form er Presid ent.

Questions eight and nine of H. Res. 1367 deal with the circumstances of any 

statem ent requ ested or received from Mr. Nixon. I asked for no confession or 

statem ent of guil t; only a statem ent in acceptance of the pardon when it was 

granted. No language was suggested or requested by anyone acting for me to 

my knowledge. My Counsel advised me th at he had told the attorn ey for Mr. 

Nixon th at he believed the statem ent should be one expressing contrition, and 

in this respect, I was told Mr. Miller concurred. Before I announced the pardon,

1 saw a preliminary dr af t of a proposed statem ent from Mr. Nixon, hut I did not 

regard the language of the stateme nt, as subs equently issued, to the subject to 

approval by me or my representatives.

The ten th question covers any rep ort to me on Mr. Nixon’s health by a physician or psyc hiatris t, which led to my pardon decision. I received no such report. 

Whatev er inform atio n was generally known to me at the time of my pardon 

decision was based on my own observations of his condition at the time he fesigned a s Pre sid ent and observations repo rted to me after th at from others who 

bad later seen or talk ed with him. No such reports were by people qualified to 

eva luate medically the condition of Mr. Nixon’s health, and so they were not a 

-controlling facto r in my decision. However, I believed and still do, t ha t prosecution and tri al of the form er Pre sident would have proved a serious thre at to his 

health, as I st ate d in my message on Septem ber 8,1974.

II. Res. 13707 8 is the oth er resolution of inquiry before this Subcommittee. It 

presents no questions but asks for the full and complete fac ts upon which was 

based my decision to grant a pardon to R ichard M. Nixon.

I know of no such fac ts th at are not covered by my answers to the questions 

in II. Res. 1367. A lso :

Sub paragraphs (1) and (4) : There were no representations made by me or 

for me and none by Mr. Nixon or for him on which my pardon decision was 

based.

Sub paragraph (2) : The he alth issue is dealt w ith by me in answer to question 

ten o f the-previous resolution.

Subparagraph (3) : Inform atio n ava ilab le to me about possible offenses in 

which Mr. Nixon might have been involved is covered in my answer to the first 

•question of the earl ier resolution.

In addition, in an unnumbered parag rap h at the end, H. Res. 1370 seeks Information on possible pard ons for Wa terg ate-rel ated offenses which others may 

have committed. I have decided th at all persons requestin g consideration of 

pardon requests should subm it them through the Department of Justice.

Duly when I receive info rma tion on any request duly filed and considered 

first by the Pardon Atto rney at the Department of Jus tice would I consider 

the matter. As yet no such info rmation has been received, and if it does I will 

ac t or decline to act according to the particu lar circumstances presente d, and 

not on the basis of th e unique circumstances, as I saw them, of form er President 

Nixon.

By these responses to the resolutions of inqu iry, T believe I have fully and 

fairlv presented the fac ts and circumstances preceding my pardon of form er 

Preside nt Nixon. In this way, I hope I have contributed to a much bette r und erstanding by the American people of th e action I took to grant the p ardon when I 

did. For having afforded me thi s opportunity, I do express my app reciation to 

you. Mr. Chairm an, and to Mr. Smith, the Ran king Minority Member, and to all 

the other distinguished Members of this Subc ommittee; also to Chairman Rodino 

of the Committee on the Jud iciary , to Mr. Hutchinson, the Ran king Minority

7

 T ab C a ttached (see ap p. 1, p. 18 9) .

8

 T ab D at ta ched (se e ap p. 2, p. 20 1) .

44- 27 4— 75-------11
Member of the full Committee, and to other distinguished Members of the full 

Committee who are present.

in closing, I would like to re-emphasize th at I acted solely for the reasons I 

stated in my proclamation of September 8, 1974 and my accompanying message 

and that I acted out of my concern to serve the best interests of m.v country. As I 

stat<>d th en : “My concern is the immediate futu re of this great country. . . . My 

conscience tells me it is my duty, not merely to proclaim domestic tranquility, 

but to use every means th at I have to insure it.”
A P P E N D I X E S

Appen di x 1

There follows pertinent correspondence concerning the subcommitte e’s investigation of the pardon of Richard M. Nixon, former 

Preside nt o f the United States, the issuance of additional pardons to 

persons involved in Watergate-related activities, the ability of the 

Special Prosecutor to make public the information he has compiled relatin g to the alleged criminal conduct of the former President, and the 

public disclosure of all Watergate-related documents and tapes which 

were in the custody of the United States.

September 17, 1974. President Gerald R. Ford,

The White House,

Washington, D.G.

Dear Mr. President : On September 16, 1974, Representative Abzug of New 

York introduced a resolution of inquiry, H. Res. 1367, which lias been referred 

to the Subcommittee on Criminal Justice of the Committee on the Judiciary. 

Under the Rules of the House, the Committee on the Judiciary is called upon to 

consider this resolution within seven legislative days of its introduction.

To assist us in the expeditious consideration of this measure, I respectfully 

request tha t you provide the Subcommittee with tlie following information as requested by this privileged resolution :

1. Did you or your representatives have specific knowledge of any formal 

■criminal charges pending against Richard M. Nixon prior to issuance of the 

pardon? I f so, what were these charges?

2. Did Alexander Haig refer to or discuss a pardon for Richard M. Nixon 

with Richard M. Nixon or representatives of Mr. Nixon at any time during 

the week of August 4, 1974 or a t any subsequent time? If so, what promises were 

made or conditions set for a pardon, if any? If so. were tapes or transcriptions 

-of any kind made of these conversations or were any notes taken? If so, please 

provide such tapes, transcriptions or notes.

3. When was a pardon for R ichard M. Nixon first referred to or discussed with 

Richard M. Nixon, or representatives of Mr. Nixon, by you or your representative s 

■or aides, including the period when you were a member of Congress or Vice 

President?

4. Who participated in these and subsequent discussions or negotiations with 

Richard M. Nixon or his representatives regarding a pardon, and at what specific 

times and locations?

5. Did you consult with Attorney General William Saxbe or Special Prosecutor Leon Jaworski before making the decision to pardon Richard M. Nixon and, 

if so, what facts and legal authorities did they give to you?

Respectfully,

William L. Hungate, 

Chairman, Subcommittee on Criminal Justice.

September 17,1974.

President Gerald R. Ford,

The White House,

Washington, D.C.

Dear Mr. President : As I mentioned in my le tter of September 17, 1974, the 

Subcommittee on Criminal Justice, of which I am Chairman, has pending before 

it H. Res. 1367 relating to the pardon of former President Richard M. Nixon. 

(159)
160

In addition, the Subcommittee lias pending before it a variety of proposals relatin g to the disposition of tapes and documents compiled by form er Pre sident 

Nixon and curre ntly w ithin the custody of the Federal Government.

Under the circum stances, I respectfu lly urge th at no fu rthe r action be taken 

affecting the disposition of such materials until Congress has had sufficient time 

to thoroughly consider the issue.

Respectfully,

William L. H ungate,

Chairman, Subcommittee on Criminal Justice.

September 18, 1974.

President Gerald R. Ford,

The White House,

Washington, D.C.

Dear Mr. President : Subsequent to my lette r to you of September 17. 1974, 

concerning Rep rese ntative Abzug’s resolution of inqu iry, II. Res. 1367, Represen tative John Conyers of Michigan introduced a second resolution of inquiry, II. 

Res. 1370, which also h as been referred to th e Subcommittee on Criminal Jus tice 

of the Committee on the J udiciary.

Under the Rules of the House, the Committee on the Jud iciary is called upon 

to consider these resolutions within seven legislative days of. their introduction. 

I am enclosing prin ted copies of both resolutions and respectfu lly request th at 

you provide the Subcommittee with responses to the inqu iries contained in these 

privileged legislativ e measures.

Respectfully,

William L. Hungate, 

Chairman, Subcommittee on Criminal Justice.

Enclosures [see app. 2 a t pp. 196 and 201].

September 17, 1974.

Leon J aworski, Esquire,

Special Prosecutor, Watergate Special Prosecution Force, 11&5 K Street NW.,

Washington, D.C.

Dear Mr. J aworski : The Subcommittee on Crim inal Justice , of which I am 

Chairman, has currently before it several proposals relating to the disposition of 

tapes and documents compiled by form er Pre sident Ric har d M. Nixon and currently with in the custody of the Federal Government.

Under the circumstances, I urge th at your office t ake all necessary steps to 

ensure that the tapes and documents relating to the W ategate ma tte r remain in 

the ir present location until Congress has had ample oppo rtun ity to give this 

ma tte r thorough consideration.

Respectfully,

William L. Hungate,

Chairman, Subcommittee on Criminal Justice.

The W hi te House, 

Washington, September 20,1911/.

Hon. William L. H ungate.

•Chairman, Subcommittee on Criminal Justice, Committee on the Judiciary, House

of Representatives, Washington, D.C.

Dear Mr. Chairm an: Thank you for your September seven teenth lette r requesting information to assis t the Subcommittee on Crim inal Jus tice of the 

Committee on the Jud iciary in its consideration of H. Res. 1367.

The pardon power conferred upon the Executiv e by Article IT. Section 2. of 

the Constitution needs no elaboration here. Nor do the legal decisions relating 

to pardons. The reaso ns for my exercise of t ha t constitu tional responsibility have 

alre ady been explained. The controlling c onsidera tions which led to my decision 

were the subjects of the pardon proc lamation and my televised message to the 

American people on Septem ber 8 and were the main subjects of my Septem ber 16 

news conference; additional background info rmation was provided at White 

House briefings on September 8 and 10. Copies of these ma terials are enclosed.

Regardless of any background information or advice I may have received, T 

am responsible for the pardon decision. I am satisfied th at it was th e right course
161

to follow in accord with my own conscience and conviction. I hope the Subcomm ittee will agree th at we should now all try, withou t undu e recrim ination 

abo ut the past, to heal the wounds th at divided Americans. We have much to 

get done for the cou ntry 's goals, and I know we can do it together.

Sincerely,

Gerald R. Ford.

Press Conference No. 2 of the P resident of the United States, 8 P.M. E.D.T.,

September 16, 1974, Monday, in the East Room, at the White House,

Washington, D.C.

The P resident. Please sit down.

Ladies and gentlemen, this press conference is being held at a time when many 

Americans are observing the Jew ish religious pew yeHr. It begins a period of 

self-exam ination a nd reconciliation. In opening th is press conference, I am mindful th at tlie spirit of thi s holy day has a meaning for all Americans.

In exam ining one’s deeds of the las t year and in assuming responsibility for 

past actio ns and personal decisions, one cun reach a point of growth and change. 

The purpose of looking back is to go forward with a new und enlightened dedication to our highest values.

The record of the past year does not have to be endlessly relived, but can be 

transform ed by commitment to new insights and new action s in the year to come.

Ladies and gentlemen, I am ready fo r your questions.

Mr. Cormier.

Question. Mr. Preside nt, some Congressional Republicans who have talk ed to 

you have hinted th at you may have had a secret reason for granting President 

Nixon a pardon sooner tha n you indicated you would at the last news conference, 

and I wonder if you could tell us what th at reason was.

The President. At the outset, let me say I had no secret reason, and I don't 

recall telling any Repu blica n that I had such a reason. Let me review quickly, if 

I might, the thing s th at tran spi red following the last news conference.

As many of you know, I answ ered two, maybe three questions concerning a 

pardon at th at time. On ret urn to the office. I felt that 1 had to have my counsel 

und erta ke a thorough e xam ination as to what my righ t of pardon was under the 

Constitution. I also felt th at it was very important that I find out what legal 

actions, i f any. were contemplated by the Special Prosecutor.

That inform atio n was found out, and it was indicate d to me th at the possibility exists, the very rea l possibility th at the President would be charg ed 

with o bstructing ju stice and ten other i>ossible criminal actions.

In addition, I aske d my gene ral counsel to find out, if he could, how long such 

crim inal proceedings would take, from the indictme nt, the carrying on of the 

tri al, et cetera, and I was informed t ha t thi s would take a year, maybe somewhat 

longer, for the whole process to go through.

I also asked my counsel to find out. whether or not und er decisions of the 

jud icial system a fa ir tri al would be given to the form er President.

After I got that information, which took two or three days. I then began to 

evaluate , in my own mind, whethe r or not I should take the action, which I subsequently did.

Miss Thomas.

Question. Throughout you r Vice Presidency, you said th at you didn’t believe 

th at form er President Nixon had ever committed an impeachable offense. I s that 

still your belief or do you believe th at his acceptanc e of a pardon implies his guilt, 

or is an admission of guilt?

The President. The fac t th at 38 members of the House Committee on the 

Jud icia ry, Democrat a nd Republican, have unanim ously agreed in the report tha t 

was filed that the form er Pre sid ent was guilty of an impeachable offense. I thin k 

is very p ersuasive evidence.

And the second question, I don’t recall-----

Question. An admission of guilt?

The President. Was the acceptance of the pardon by the Pre sident an adm ission of guilt? The acceptanc e of a pard on, I thin k, can be construed by many, if 

not all, as an admission of gu ilt.

Yes, Mr. Nessen.

Question. Wh at reports have you received on Mr. Nixon’s hea lth, and what 

effect, if any, did this have on your decision to pardon him now?

The President. I have asked Dr. Lukash, who is the head physician in the 

White House, to keep me posted in prop er channels as to the former President’s
162

health. I have been Informed on a routine day-to-day basis, bu t I don’t think I am 

at liberty to give any information as to those reports t ha t I have received.

You also asked what impact did the President’s health have on my decision. I 

think it is well known tha t jus t before 1 gave my statement at the time that I 

gave the pardon I personally wrote in a phrase “the threat to the President's 

health.”

The main concern th at I had at the time I made the decision was to heal the 

wounds throughout the United States. For a period of 18 months or longer, we 

had had turmoil and divisiveness in the American society. At the same time, the 

United States had major problems both at home and abroad that needed the maximum personal attention of the President and many others in the Government.

It seemed to me th at as long as this divisiveness continued, this turmoil existed, 

caused by the charges and counter charges, the responsible people in the Government could not give their total attention to the problems tha t wye had to solve at home and abroad.

And the net result was tha t I was more anxious to heal the Nation. That was 

the top priority. I felt then, and I feel now, that the action I took will do that. I 

couldn't be oblivious, however, to news accounts tha t I had concerning the President’s health, but the major reason for the action I took related to the effort to reconcile divisions in our country and to heal the wounds that had festered far 

too long.

Question. Mr. President, after you had told us that yon were going to allow the 

legal process to go on before you decided whether to pardon him, why did you 

decide on Sunday morning, abruptly, to pardon President Nixon?

The President. I didn’t decide abruptly. I explained a moment ago the process 

tha t I went through subsequent to the last press conference. When I had assembled all of that information tha t came to me through my counsel. I then most 

carefully analyzed the situation in the country and I decided that we could not 

afford in America an extended period of continued turmoil and the fact that the 

trial, and all of the parts thereof, would have lasted a year—perhaps more— 

with the continuation of the divisions in America, I felt that I should take tinaction th at I did, promptly and effectively.

Question. Mr. President, I would like to ask you a question about the decision 

relating to custody of th e Nixon tapes and documents. Considering the enormous 

interest tha t the Special Prosecutor’s office had in those documents for furthe r 

investigation, I am wondering why the negotiations with Mr. Nixon’s representatives were conducted strictly between the counsel in your office without bringing 

in discussions with either Mr. Jaworski’s representatives or those from the 

Justic e Department.

The President. In the first place, I did receive a memorandum, or legal opinion, 

from the Department of Justice which indicated that in the opinion of the Departm ent of Justice, the documents, tapes, the ownership of them were in the 

hands of the former President. Historically, that has been the case for all Presidents.

Now, the negotiations fo r the handling of the tapes and documents were undertaken and consummated by my staff and the staff of the former President. 1 

believe tha t they have been properly preserved and they will be available under 

subpoena for any criminal proceeding. Now, the Special Prosecutor’s staff has 

indicated some concern. I am saying tonight tha t my staff is working with the 

Special Prosecutor’s staff to try and alleviate any concerns tha t they have. I hope 

a satisfactory arrangement can be worked out.

Question. Mr. President, during your confirmation hearings as Vice President, 

you said tha t you did not think that the country would stand for a President to 

pardon his predecessor. Has your mind been changed about such public opinion ?

The President. In those hearings before the Senate Committee on Rules and 

Administration, I was asked a hypothetical question, and in answer to tha t hypothetical question I responded by saying that I did not think the American 

people would stand for such an action.

Now tha t I am in the White House and don’t have to answer hypothetical 

questions but have to deal with reality, it was my judgment, after analyzing all 

of the facts, that it was in the best interest of the United States for me to take 

the action t hat I did.

I think if you will reread what I said in answer to th at hypothetical question. I 

did not say I wouldn’t. I simply said that under the way the question was 

phrased, the American people would object
163

Bu t I am absolutely convinced when dealing with rea lity in thi s very, very difficult situ atio n, th at I made the right decision in an effort, an honest, con­ scientious effort, to end the divisions and the turm oil in the United States.

Mr. Lisagor.

Question. Mr. Pr esident, is there any safeguard in the tapes a greement tha t was made with Mr. Nixon, first, witli their destruction in the event any thing happens to him, because und er the agreement they will be destroyed, and secondly, should not the tapes be kept in the White House until the Special Prosecutor has finished 

dealing with them?

The President. The tapes and the documents are still in our possession and we are, as 1 said a moment ago, working with the Special Prosecutor's office, to alle viate any concerns they have as to the ir disposition and the ir ava ilab ility. The agreeme nt as to d estruction is quite c learcut. As long as Mr. Nixon is alive and durin g the period of time th at is se t forth, they are available for subpoena by a cou rt involving any crim inal proceedings. I thin k this is a necessary require ­

ment for the protection of evidence for any such action.

Question. Mr. President, recen t Congressional testim ony has indicated th at the CIA, under the direction of a comm ittee headed by Dr. Kissinger, attempted to 

destabilize the Government of Chile und er former Pre sident Allende. Is it the policy of your Administration to att em pt to destabilize the governments of other democracies?

The President. Let me an swe r in general. I think this is a very important question. Our Government, like oth er governments, does t ake certain actio ns in the inte l­ ligence field to help implement foreign policy and protect n ationa l security. 1 am informed relia bly th at Communist nation s spend vastly more money tha n we 

do for the same kind of purposes. Now, in this pa rticu lar case, as I understand it, and there is no doubt in my mind; our Government had no involvement whatsoever in the Allende coup. To my knowledge, nobody has charged that. The fac ts ar e we had no involvement 

in any way whatsoever in the coup itself. In a period of time, three or fou r yea rs ago, the re was an effort being made by the Allende government to destroy opposition news media, both the writin g press as well as the electronic press, and to destroy opposition political parties. The effort that was made in this case was to help and assist the preservation of opposition new spapers and electronic media and to preserve opposition political parties. I thin k thi s is in the best int ere st of the people in Chile, and certainly in our 

best interest.

Now, may I add one fu rth er comment. The 40 committee was established in 194S. I t has been in existence und er Pre si­ dents since th at time. Th at comm ittee reviews every covert operation under­ taken by our Government, and th at info rma tion is relayed to the responsible Congressional committees w here i t is reviewed by House and Senate committees. It seems to me th at the 40 committee should continue in existence, and I am going to meet with the responsible Congressional committees to see whether or not they want any changes in the review process so tha t the Congress, as well as the President, are fully informed a nd are fully included in the opera tions f or any 

such action.

Question. In view of public reaction, do you think the Nixon pardon really serve d to bind up the Nation 's wounds? I wonder if you would assess public 

reaction to tha t move.

The President. I must say th at the decision has created more anta gonism than I anticipated. But as I look over the long haul with a trial or several trials of a form er President, c riminal trials , the possib ility of a form er President being in the dock so to speak, and the divisions th at would have existed not ju st for a limited period of time, but for a long period of time, it seems to me th at when I had the choice between th at possibility and the possibility of taking d irect actio n hoping to conclude it . I am still convinced, desp ite the public reaction so far. th at 

the decision I made was the right one.

Question. Mr. Preside nt, in regard to the pardon, you talk about the rea lities of the situatio n. Now those realities rightly or wrongly included a good many people who speculate about whethe r or not the re is some sort of arr angeme nt— even some of them call a deal—between you and the fo rmer Pre sid ent or between 

your staff and his staff, resignation in exchange for a full pardon.
164

The question is : Is there or was there, to your knowledge, anv kind of under­ standing about this?

The President. There was no understanding, no deal between me and the former President, nor between my staff and the staff of the former President, none whatsoever.

Question. Mr. President, there is a bill that the Treasury Department has put forward, I think it is about 3S pages. Under this bill, which deals with getting hold of the returns. Internal Revenue retu rns of the citizens of the country, you could take action to get those returns whenever you wanted to.

I wonder if you are aware of this, and if you feel tha t you need to get those returns ef citizens.

The President. It is my understanding tha t a President has, by tradition and practice, and by law, the right to have access to income tax ' returns. I personally think tha t is something tha t should be kept very closely held. A l»erson's income tax return is a very precious thing to that individual and, there­ fore, I am about to issue an Executive Order tha t makes it even more restrictive as to how those returns can be handled and I do think tha t a proposed piece legislation tha t is coming to me and subsequently will l>e submitted, as I recollect, of 

to the Congress would also greatly tighten up the availability or accessibility of income tax returns. I think they should be closely held and I can assure you tha t they will be most judiciously handled as f ar as I am concerned. Yes.

Question. Mr. President, looking beyond the Nixon papers and in view of some criticism in Congress, do you believe we may have now reached the point where Presidential White House papers should remain in the Government’s hands as the property of the Government?

The President. As far as I am personally concerned, I can see a legitimate reason for Presidential papers remaining the property of the Government. In my own case, I made a decision some years ago to turn over all of my Congres­ sional papers, all of my Vice Presidential papers to the University of Michigan archives.

As far as I am concerned, whether they go to the archives for use or whether they stay the possession of the Government, I don’t think it makes too much difference.

I have no desire, personally, to retain whatever papers come out of my Administration.

Mr. Mollenhoff.

Question. Mr. President, at the last press conference you said. “The code of ethics tha t will be followed will be the example tha t I set.” Do you find any conflicts of interest in the decision to grant a sweeping pardon to your life-long friend and your financial benefactor with no consultation for advice and judg­ ment for the legal fallout?

The President. The decision to grant a pardon to Mr. Nixon was made primarily, as I have expressed, for the purpose of trying to heal the wounds throughout the country between Americans on one side of the issue or the other. Mr. N ixon nominated me for the office of Vice President. I was confirmed overwhelmingly in the House as well as in the Senate. Every action I have taken, Mr. Mollenhoff is predicated on my conscience without any concern o r consider­ ation as to favor as fa r as I am concerned.

Yes.

Question. If your intention was to heal the wounds of the Nation, sir. why did you grant only a conditional amnesty to the Vietnam war veterans while granting a full pardon to President Nixon?

The President. The only connection between those two cases is the effort that I made in the one to heal the wounds involving the charges against Mr. Nixon and my honest and conscientious effort to heal the wounds for those who had deserted military service or dodged the draft. That is the only connection between the two.

In one case, you have a President who was forced to resign because of circum­ stances involving his Administration and he has been shamed and disgraced by tha t resignation. In the case of the dra ft dodgers and Army and military deserters, we are trying to heal the wounds by the action tha t I took with the signing of the proclamation this morning.

Question. Mr. President another concern tha t has been voiced around the 

country since the pardon is tha t the judicial process as it finally unwinds may not write the definitive chapter on Watergate and perhaps with particular regard to Mr. Nixon's partic ular involvement, however total, however i t may have been
165

in tru th. My question is, would you consider appointing a special commission, with extraord ina ry powers to look into all of the eviden tiary mate ria l and to write th at chap ter and not leave i t to lat er history ?

The President. Well, it seems to me as I look at wh at has been done, I think 

you tlnd a mass of evidence th at has been accumulated. In the first instance, you have the very inten sive investigation conducted by the House Committee on the Judicia ry. It was a very well-conducted investigation. It came up with 

volumes of information. In addition, the Special Prosecutor’s office under Mr. Jaw orski has conducted an inten sive investigation and the Special Pro secutor’s office will issue a report at the conclusion of their responsibilities th at I think will probably make addi­ tional in form ation ava ilab le to the American people. And thirdly, as the various crim inal trials proceed in the months ahead, there obviously will be ad ditional info rma tion made ava ilab le to the American people. So, when you see what has been done and what undoubtedly will be done, I think the full story will be m ade available to the American people.

Question. Mr. P resident, could you give us an idea who would succeed General Haig, an d how ar e you coming on your search for a Pre ss Secretary?

The President. Do I have a lot of can didates here ? (Laughter) No show's. 

(Laughter) I have seve ral people in mind to replace General Haig, but I have made no decision on tha t. It was ju st announced today th at the NATO countrie s have acce pted him as th e officer handling those responsibilities. I think he is to tak e office succeeding General Goodpaster on December 15. He assumes his responsibilities as the head of U.S. militar y forces November 1. In the nex t few days undoubtedly I will make the decision as to the individ ual 

to succeed him. So fa r as the Press Sec retary is concerned, we are actively working on th at an d we hope to have an announcement in a rela tive ly sho rt period of time.

Question. Mr. Preside nt, prior to your deciding to pardon Mr. Nixon, did you have, ap ar t from those repo rts, any info rmation either from associations of the Presi dent or from his family or from any other source about his health, about his 

medical condition?

The President. Prior to the decision th at I made gra nting a pardon to Mr. Nixon, I had no oth er specific inform atio n concerning his hea lth other than wh at I had read in the news media or hea rd in the news media. I had not gotten any information from any of the Nixon family. The sole source was what I had rea d in the news media plus one other fac t. On Saturd ay before the Sunday a member of my staff was working with me on th e several decisions I had to make. He w’as. from my staff, the one who had been in negotiation s on F riday with the Preside nt and his staff. At the conclusion of decisions that were made, I asked him, how did the Pre sid ent look, and he reimrted to me his observations. Bu t oth er tha n wh at I had read or heard and this pa rticu lar incident, I had no precise inform ation concerning the Pre sid ent’s health.

Question. Mr. Pre sident, your own economic advisers are suggesting th at to save the economy which is very bad and very pessim istic, wTe are hea ring the 

word “depression" used now’. I wonder how you feel about whethe r we are hea ding for a depression ?

The President. Let me say very strongly th at the United States is not going to have a depression. The overall economy of the U nited States is strong. Employ­ ment is still high. We do have the problem of inflation. We do have rela ted prob­ lems. and we are going to come up with some answers th at I hope will solve 

those problems. We are not going to have a depression. We are going to work to make sur e th at our economy improves in the months ahead.

Question. Mr. President, in the face of massive food shor tage s a nd the prospects 

of significant starvation, will the United States be able to significantly increase its food aid to foreign countries, and what is our position going to be at the Rome conference on p articipation in the world grain reserve s?

The President. Within the next few’ days a very major decision in this are a will be made. I am not at liberty to tell you wh at the answ er will be because it has not been decided. Bu t it is my hope th at the United States for huma nit ari an purposes will be able to incre ase its contributio n to those nations th at have suffered because of dro ught or any of the oth er problems related to hum an needs.
166

Question. Back to tlie CIA, under wh at intern ational law do we have a right to attem pt to destablize the constitutionally-elected government of ano ther country, and does the Soviet Union have a sim ilar right to try to destabilize the Government of Canada, for example, or the United States? The President. I am not going to pass judgment on whethe r it is permitted or authorized under intern ational law. It is a recognized fac t th at historically, as well as presently, such actio ns are taken in the best intere st of the countries involved.

Question. Mr. Preside nt, last month when you assum ed the Presidency, you pledged openness and candor. Last week you decided on the ex-Preside nt’s pardon in virtually tota l secrecy. Despite all you have said tonight, there would still seem to be some confusion, some contradiction.

My question is th is : Are the watchwords of your A dministration still openness and candor?

The President. Without any question, without any reservation. And I think in the one instance that you cite, it was a sole decision, and believe me, it wasn’t easy, and since I was the only one who could make th at decision, I though t I had to search my own soul af ter consulting w ith a limited number of people, and I did it. and I think in th e longrun it was the right decision.

The Press. Than k you. Mr. President.

Press C

S

onference

eptember

of Phi lip Buchen, Counselor to the President, 8, 1974; the Briefing Room, at 12:12 P.M.

Mr. Ter Horst. Gentleman, if you are read y for the briefing, we have Philip Buchen, the legal counsel of the White House to address your questions on the Presiden t’s statem ent and on the documents you have in your hand. As you know, he is the Pre sid ent’s legal adviser. He was very much a partici­ pant in the preparation of this proclamation and so h ere is Mr. Buchen to take your questions.

I thin k he may have an opening sta tem ent which he may like to read first. Mr. Buchen. Thank you, Jerry.

I appreciate your all being here on this Sunday morning, or midday. I wanted just to say a few thin gs first, because if may answer questions in advance, and at the conclusion of these remarks, I will try to field the questions you throw this way.

In addition to the major developments of this morning when President Ford gran ted a pardon to form er Pre sident Nixon, I have two o ther legal developments to announce which occurred prior to the issuance of the proclama tion of pardon. The first involves the opinion of Attorney General William B. Saxbe and President Ford dealing with papers and other records, inclu ding tapes, retained •during the Adm inistration of form er President Nixon in the White House offices.

In this opinion, the Attorney General concludes th at such materials are the present prop erty of Mr. Nix on; however, it also concluded th at during the time the ma terials remain in the custody of the United States, they are subject to subpoenas and court orde rs directe d to any official who controls th at custody. And in this conclusion, I ha ve concurred.

This opinion was soug ht by the Pre sident from the Atto rney General on August 22.

Question. When you say the Pre sident, you mean Pre sident Ford ? Mr. Buche n. Tha t is right.

The reason for seeking the opinion was the conflict cre ated between Mr. Nixon’s request on the one h and for de livery to his control of the materials, and on the oth er hand , the pending cou rt orders and subpoenas direc ted at the United Sta tes and cer tain of its officials.

The court orders have require d th at the custody of the ma terials he main­ tained at their present locations. And both the orders and subpoenas hav e called for the identification and production of certain ma terials allegedly releva nt to court proceedings in which the orders and subpoenas originate d. In addition, we were advised of intere sts of other parties in having certain records disclosed to them und er warning that if they were to be removed and delivered to the control of Mr. Nixon, cou rt action would be taken to pre ven t th at move and to protect the claimed rights to inspection or disclosure. Therefore, it became fully apparen t th at unless thi s conflict was resolved, the present Adm inistratio n would be enmeshed for a long time in answering the disp uted claims over who could obtain info rmation from the Nixon records,
167

how requested info rma tion could, as a practic al ma tter, be extracted from the 

vast volume of records in which it might appear, and how, aud by whom its relevancy in any particu lar cou rt proceeding could be determined, and at the sam e.time to try sati sfying the claims of Mr. Nixon th at he owned the records. Within a week of the request by the Attorney General for an opinion made by President Ford, I was advised informally of wh at its general na ture would be. From that time on, I realized th at the opinion itse lf would not provide a pra c­ tical solution to the handling and managem ent of the papers so as to reconcile rig hts and inter est of private ownership with the limited but very im portant rig hts and interest of litiga nts to disclosure of selected rele vau t pa rts of the 

materials. Thu s I initiate d conversations with the Attorney General’s Office, Special Pro secutor Jaw orski, with a ttorne ys for certain liti gants seeking disclosure, aud 

with Herbe rt J. Miller, as soon as he became atto rne y for Mr. Nixon. The purpose of these conversations was to explore ways for reconciling these differen t intere sts in records of the previous Administration so that Adminis­ tra tio n would not be cau ght in the middle of trying on a case-by-case basis to 

resolve each dispute over the rig ht of access or disclosure. The outcome of these conversations was the conclusion on my pa rt th at Mr. Nixon, as the prin cipal party in inte rest, should be requested to come f orth with the proposal for dealing sat isfactorily with Presidential ma terial of his Ad­ ministration in ways th at offered reasonable protection and safegu ard s to each party who has a legitim ate court-supported rig ht to production of pa rticu lar 

ma terials r elevan t to his case. Mr. Nixon and his attorn ey then agreed to pursue this approach and in com­ pany with White House Counsel, they were able to accomplish the second of 

the developments which I am announcing today. And th at is the lette r agreement, of which you have copies, between form er Pre sident Nixon and Ar thur F. Sampson, Administrator of the General Services 

Adm inistration. These two developments are. of course, much less significant tha n the one you have learned abo ut earlie r. Pre sident For d has chosen to carry out a respon­ sibility expressed in the Prea mble to the Constitu tion of ensu ring domestic tranqu ility, and has chosen to do so by exercise of a power th at he alone has und er the Constitu tion to gran t a pardon for offenses again st the United States. About a week ago, Pre sident Ford asked me to study tra ditio na l prec edents hearing on the exercise of his right to gran t a pardon, par ticula rly with refer ­ ence to whether or not a pardon could only follow indictm ent or conviction. The answer I found, based on considerable autho rity , was th at a pardon could be granted at any time and need not aw ait an indictm ent or conviction. Pre sid ent For d also asked me to investigate how long it would be before prosecution of former Pre sident Nixon could occur, if it were brought, and how 

long it would tak e to bring it to a conclusion. On this point, I consulted with Special Pro secutor Jaw orski and he advised 

me as follows, and has authorized me to quote his language , and I qu ote: “The fac tual situation reg ard ing a tri al of Ric hard M. Nixon within Con­ stitution al hounds is unprecedented. It is especially unique in view of the recent House Jud iciary Committee inquiry on impeachment, resulting in a unanimous adverse finding to Ric har d M. Nixon on the article involving obstruction of 

justice. “The massive publicity given the hearing s and the findings that ensued, the 

reversa l of judgment of a number of Members of the Republican Pa rty follow­ ing the release of the June 23rd tape recording, and their statem ents carried nationwide. And, finally, the resignation of Ric hard M. Nixon require a delay before selection of a jur y is begun of a period from nine months to a year, and 

perhaps even longer.

“This judgm ent is predicated on a review of the decisions of the United States 

courts involving pre jud icial pre -trial publicity.”

Question. Is t hat the end of the quotes?

Mr. Buchen. No, I am going on to indicate somethin g else that will be of 

intere st to you. That is the end of that quote. Another quote from his communication to me is as follow s: “The situation 

involving Richard M. Nixon is readily distinguish able from the fac ts involved in the case of United States versus Mitchell, et al. set for tria l on September 30th. “The defe ndants in the Mitchell case were indicted by a grand jur y operating 

in secret session. They will be called to trial, unlike Richard M. Nixon, i f indicted,
168

without any previous adverse finding by an investigatory body holding public hearings on its conclusions.”

That is the end of the quotation.

Question. Would you end that last sentence again?

Mr. Buchen. Yes. It is an important one. “They,” meaning the defendants, “will lie called to trial, unlike Richard M. Nixon, if indicated, without any previous adverse finding by an investigatory body holding public hearings on its conclusions.”

Except for my seeking and obtaining this advice from Mr. Jaworski, none of my discussions with him involved any understandings or commitments regard­ ing his role in the possible prosecution of former President Nixon, or in the prosecution of others.

President Ford has not talked with Mr. Jaworski, but I did report to President Ford the opinion of the Special Prosecutor about the delay necessary before any possible trial of the former President could begin.

I would also like to add on another subject, no action or statement by former President Nixon, which has been disclosed today, however welcome and helpful, was made a pre-condition of the pardon.

That is a negative because of the word “no” at the beginning. I might add that whether or not it was disclosed today, it was not a pre-condition.

Question. There were no secret agreements made?

Mr. Buchen. That is right.

President Ford in determining to issue a pardon acted solely according to the dictates of his own conscience. Moreover, he did so as an act of mercy not related in any way to obtaining concessions in return.

Question. Would you go over the last phrase? After “mercy”.

Mr. But hen. Mercy not related in any way to obtaining concessions in return. However, my personal view-----

Qwcgffon. Is that yours or Ford’s?

Mr. Buchen. Mine. —is tha t former President Nixon’s words, which* I have had a chance to read, as you have, tha t followed the granting of a pardon, constitute a statement of contrition which I believe will hasten the time when 

he and his family may achieve i>eace of mind and spirit and will much sooner bring peace of mind and spirit to all of our citizens.

Question. Would you review that sentence?

Mr. BucnEN. Yes.

However my personal view—these are my own words—is th at former President Nixon's words expressed upon his learning of the pardon, constitute a statem ent of contrition which I believe will hasten the time when he and his family may achieve peace of mind and spirit and will much sooner bring i>eace of mind and spirit to all of our citizens.

Now I have only one other paragraph that I would like to bring out in con­ clusion. I want to express for the record my heartfelt personal thanks and appreciation to a dear friend of the President’s and of mine. He is Benton Becker, a Washington attorney, who has served voluntarily as my special and trusted consultant and emissary in helping to bring about the events recorded today. Question. Emissary to Mr. Jaworski or Mr. Nixon?

Mr. Buchen. To Mr. Miller and Mr. Nixon, not to Mr. Jaworski.

I also acknowledge with deep gratitude the services of ’William Casselman. II, who is the highly valued counsel—who was the highly valued counsel to Vice President Ford for his whole tenure in t ha t office, and is now my close associate in the service of the President of the United States.

Question. "Who informed President Nixon tha t he was getting a pardon, and also is President Ford basing this pardon only on the fact tha t it would have taken a long time to try the Presidency in his own conscience?

Mr. Buchen. Let me take the first question first.

"When Mr. Becker went to San Clemente on Tliursday evening, he was author­ ized to advise the former President that President Ford was intending to grant a pardon, subject, however, to his furthe r consideration of the matter because he wanted to reserve the chance to deliberate and ponder somewhat longer, but he was authorized to say tha t in all probability a pardon would be issued in the near future.

The second question?

Question. The second question is: There is no admission of guilt here at all and despite your assumptions tha t it is contrition, there is no actual admission of guilt. Do you agree?
169

Mr. Buchen. Well, my interpretation is tha t it comes very close to saying 

that he did wrong, that he did not act forthrightly.

Question. Mr. Buchen, what is the linkage between the agreement between 

Mr. Sampson and Mr. Becker’s negotiations at San Clemente?

Mr. Buchen. The initiative for getting an agreement that would help solve 

our problems came from me and I advised Mr. Miller as attorney for Mr. Nixon 

that tha t was my desire. I so advised him before I knew anything about a 

contemplated pardon.

Question. Mr. Buchen-----

Mr. Buchen. May I finish, please?

However, as we pursued talks on what to do with the papers, I made it very 

clear to Mr. Miller that I wanted the initiative to come from him and his client 

as to the specifics of what he and his client would be willing to do regarding the 

management and ultimate disposition of the papers and tapes.

Question. Mr. Buchen, what will this mean as far as former President Nixon’s 

role as a witness in the upcoming trials are concerned?

Mr. Buchen. It would have no effect on that. If the documents do get tra nsferred in a timely fashion, it may permit him to review the pertinent material 

more adequately so far as his testimony is concerned.

Question. Mr. Buchen, doesn't this pardon eliminate any possibility that the 

former President might invoke the Fifth Amendment to testify?

Mr. Buchen. I think you better ask his own lawyer that. As you know, this 

applies only to offenses against the Un ited States. It does not apply to possible 

offenses against S tate law.

Question. But regarding offenses against the United States, he would have no 

Fifth Amendment rights now that he has been pardoned; is that correct?

Mr. Buchen. I don’t know th at you can separate them when you plead.

Question. Mr. Buchen, why did the President decide to do this now at a time 

before the jury has been sequestered in the September 30th trial?

Mr. Buchen. That will have to be information tha t will have to come from his 

statement. I have nothing to add.

Question. Can you tell us if the President has assured himself that former 

President Nixon is not guilty or liable to accusation of any very serious charges 

that have not been made public so far, that there is no other time bomb ticking 

away?

Mr. Buchen. I don’t think he said that.

Question. No, no, I am saying, has President Ford done anything to assure 

himself th at there is no evidence of any more serious criminality committed by 

former President Nixon than what is generally out in the House Judiciary 

Committee report and this sort of thing?

Mr. Buchen. So far as I know, he has made no independent inquiries. If he 

had wanted to satisfy himself as to the content of the evidence still in the White 

House, of course, tha t would have been an insurmountable task, as you have no 

idea of the huge volumes.

Question. Did you assure yourself-----

Mr. BucnEN. Just a minute. There are huge volumes. However, I did personally consult with Mr. Jaworski as to the nature of the investigation being 

conducted and I was able to tell the President that so far as I was able to learn 

through that inquiry, there were no time bombs, as you call them.

Question. Mr. Buchen, what was the President’s reaction when Mr. Becker 

conveyed this message to him?

Mr. Buchen. I don’t know tha t it was done in person. I don’t think he was 

necessarily in the room, so I don’t believe he can-----

Question. Did you get any reaction from the President, even if it was by mail 

or through counsel, did the President say he was grateful for this?

Mr. Buchen. The only reaction we have gotten is the statement tha t came over 

the wire.

Question. Are you saying that Ziegler got the word from Becker and tha t 

President Nixon was not informed personally at any time by Ford or by any 

emissary ?

Mr. Buchen. I think you will have to ask Mr. Becker that. My understanding 

is that initially the talks went through Mr. Ziegler, but there were also face-toface meetings between Mr. Becker and the President and what occurred by one 

method, and one by the other I don’t know.

Question. There was no personal contact between Ford and Nixon?

Mr. Buchen. None at all.

4 4 -2 7 4— 75- -12
170

Question. You refer to Becker as an emissary and you talk about one meeting 

out there Thursday to notify him. What were tlie reasons for his previous trips 

back and forth? What was discussed?

Mr. Buciien. Becker only went once.

Question. Only on Thursday?

Mr. Buchen. Yes. And not only to discuss that, they had to work out the 

details of that lette r agreement because Miller and Becker were in negotiation 

and Miller had to consult his client and they had to make modifications. And 

they had to call hack to see whether tha t fit in correctly with what General 

Services Administration could feasibly do. So, tha t involved a lot of the time 

he was out there.

Question. Mr. Buchen, did Mr. Jaworksi inform you tha t an indictment, or 

indictments, against former President Nixon were expected?

Mr. Buchen. No, he did not.

Question. May I follow that, then? Isn’t the granting of a pardon at this 

stage an admission that an indictment was expected and tha t conviction was 

probable?

Mr. Buchen. I think you have to recall tha t word came out tha t the Grand 

Jury at one time wanted to name the former President, or then President, as a 

co-conspirator and tha t is one evidence tha t something more would have 

happened.

And I think it is very likely, from all we have read, tha t there would 

be people who would want him prosecuted and would intend to do so, although I 

don’t say tha t that was Mr. Jaworski's view.

Question. Was Mr. Jaworski ever consulted about this pardon, ever asked 

about this?

Mr. Buchen. No.

Question. Did Jaworski agree to what was done today ?

Mr. Buchen. He has no voice in it.

Question. Do you know what his mood or sentiment was?

Mr. Buchen. You will have to ask him. I want to get to Peter, here.

Question. I wanted to follow up t hat line. You know we are not able to get a 

response from Mr. Jaworski’s office and it would really help us for you to tell us 

all you can about the status of the investigation against the President, former 

President Nixon?

Mr. Buchen. I don't have that information, Peter. That is kept in his shop.

Question. But in tha t regard, why was he not consulted about what kind of 

action he contemplated against the President before the pardon was issued?

Mr. Buchen, We didn’t think th at was relevant.

Question. You assumed he would be prosecuted ; is t ha t right?

Mr. Buchen. We assumed that he may be prosecuted.

Question. When was Jaworski told?

Mr. Buchen. About the pardon?

Question. About the pardon.

Mr. Buchen. I called him about three-quarters of an hour before I knew the 

President was going to announce it so tha t he would know it.

Question. Today?

Mr. Buchen. Yes.

Question. What was his reaction? When was that?

Mr. Buchen. He thanked me for advising him in advance of his hearing it 

over the radio or TV.

Question. And he did not object?

Mr. Buchen. He didn’t. He didn’t say anything one way or the other.

Question. As we read this statement, which does not admit guilt whatsoever, 

what is to prevent the former President from going out, say six months hence, 

and saying that nothing was really ever proven against him and he was hounded 

out of office?

Mr. Buchen. I guess he has the right to say tha t because, until an indictment and conviction, I think that would be true in his case as well as anybody 

else’s case who is under a cloud of suspicion.

Question. But President Ford spoke of the historical aspects of this and what 

is going to keep history from getting more muddled than ever?

Mr. Buciien. I think the historians will take care of that.

Question. Mr. Buchen, does President Ford plan to grant a similar pardon to 

the former President’s subordinates who are scheduled to go on tria l late r this

month?
171

Mr. Buchen. To my knowledge, lie has not given tha t matter any thought. 

Question. Can you clarify, was the agreement reached with the GSA about the 

disposal of the tapes and documents? Was the pardon contingent on that?

Mr. Buchen. Neither.

Question. They are not together?

Mr. Buchen. Right.

Question. Number two, why did he choose 10:30, Sunday morning, to make 

the announcement?

Mr. Buchen. I think you will have to ask him that. He figured that this was 

a very solemn moment tha t exemplified, I think, an act tha t was one of high 

mercy and it seemed appropriate, I think, to him tha t it should occur on a day 

when we do have thoughts like that, or should.

Question. Mr. Buchen, I don’t understand why you contrast the treatment of 

Nixon with the treatment of Mitchell coming up. If I understand your statement 

right, you said that Mitchell has not had the publicity and the action by a hearing 

as Nixon had before the House Judiciary Committee.

Mr. Buchen. That was Mr. Jawo rski’s statement. That was not mine.

Question. I don’t understand this and maybe you can explain what you think 

he means there. Mitchell certainly had the hearing with conclusions and explanations of conclusions of a hearing by the Watergate Committee.

Mr. Buchen. There was a hearing, but I don’t know how conclusive the 

findings were.

Question. There was a hearing and Mitchell testified. There was a public 

hearing and there were conclusions and recommendations on that, and a press 

conference on that, and great publicity.

Mr. Buchen. I would judge that Mr. Jaworski does not find those conclusions 

prejudicial to Mr. Mitchell's upcoming case.

Question. Mr. Buchen, the President, in his statem ent this morning, referred 

to this matter threatening the former President's health. Do you have any further 

details on that? Do you know anything about the former President’s health 

tha t we don't?

Mr. Buchen. No, I didn't go out there, so I didn't see the man.

Question. Do you know what he meant by that?

Mr. Buchen. I think it is generally known th at this man has suffered a good 

deal. I think you people who saw him more recently than I have can form 

your own conclusions.

Question. Has Mr. Ford and Mr. Nixon talked this morning?

Mr. Buchen. No, not to my knowledge, but T do not believe they did.

Question. Do you know, was the President in a depression and has the President 

threatened to commit suicide or anything like that?

Mr. Buchen. I have no knowledge.

Question. You say th at you looked into this matter from a constitutional stand ­

point for the President, and I am sure you looked into the history of it. Has 

any President ever grante d a pardon before in history to anyone prior to that 

person being charged with a crime formally?

Mr. Buchen. Oh, yes, there are lots of precedents for that.

Question. Like what?

Mr. Buchen. Well, one of your colleagues, named Mr. Burdick, was pardoned 

before he was asked to testify regarding some alleged criminality involving the 

Customs Service during the Wilson Administration and he was given a pardon.

Question. He was a newsman?

Mr. Buchen. He was a newsman.

And. of course, the pardons granted by President Lincoln, for example—the 

pardons granted after the Whiskey Rebellion and other insurrections, were 

applied to people who were not indicted.

Question. Mr. Buchen. I am a little confused a t your words, more or less dismissing the question of whether or not the President would grant pardons to 

Mr. Haldeman, Mr. Ehrlichman, Mr. Mitchell and the others who will go on trial 

September 30th. Is it not fairly clear to you, or at least do you not, here in the 

White House, admit the possibility tha t their defense now, in light of the 

action of President Ford today, will be that the President has pardoned the man 

under whose orders they were operating and what is your reaction to this possible 

line of defense or line of appeal by the defendants in that trial?

Surely, this must have been given some consideration and I again would 

ask you what you think is going to happen, what you think the President would 

do when confronted with this question?
172

Mr. Buchen. Well, I question you broad characterization tha t the acts for 

which they are being charged were necessarily-----

Question. I am just suggesting this may be their defense.

Mr. Buchen. This may be their defense. Now, tha t will become Mr. Jaworski’s 

problem and, of course, the judge’s problem. You have already seen tha t Mr. 

Jaworski apparently assumes tha t the situation in their case is far different 

from the situation in the former President’s case.

Question. Phil, can I ask you this : Did this process th at led up to the pardon 

today start a week ago when the President came to you?

Mr. Buchen. Yes.

Question. Was there something that happened just prior to his coming to you 

that got his interest working in doing this thing jus t now?

Mr. Buchen. If there was, I don’t know what it was, Ron.

Question. Have they talked on the phone at any time this week, or immediately 

prior to this week ?

Mr. Buchen. They have not talked on the phone since Jack Miller became 

his attorney.

Question. Did this process s tart afte r last Sunday’s publication of the Gallup 

poll that said that the m ajority of the public wanted to see Mr. Nixon prosecuted?

Mr. Buchen. Let me figure my dates. That was Labor Day week-end, was it? 

I worked all Labor Day week-end so it came before that.

Question. To w hat extent did the transition team look ahead to the problem 

of a pardon, and have you done any work at all-----

Mr. Buchen. They didn't consider that. They had f ar too much else to consider.

Question. As a matter of equal justice under law, we have now had the two 

top officials of the United States, both allegedly involved in crimes, namely, 

Vice President Agnew and Mr. Nixon, who have been freed of criminal charges. 

Both of them are entitled to go around the country and represent themselves 

as being innocent. What is a citizen to make of tha t situation when ordinary 

criminals, including the aides involved in this, have to be tried?

Mr. Buchen. Of course I cannot speak at all for the treatment of former Vice 

President Agnew because this Administration was not in any way involved. But 

1 think you have to understand—and maybe it is a good time on Sunday to think 

about it—that there is a difference between mercy and justice.

I don’t think tha t you can assume tha t mercy is equally dispensed or how 

it could be equally dispensed.

Question. Mr. Buchen, is there any pardon being considered for the aides who 

performed their acts allegedly in the name of and in behalf of Richard Nixon?

Mr. Buchen. I have already spoken to that question.

Question. I don’t think you have, Mr. Buchen. I am actually talking about 

those now in prison, not Mr. Nixon. John Dean and others?

Mr. Buchen. So far as I know, no thought has been given to that.

Question. Mr. Buchen, is it now possible under the agreement on the custody 

of Presidential tapes and papers for any tape made during the Nixon Administration to be subpoenaed even though it is not now the subject of a subpoena?

Mr. Buchen. It is possible. In order to get a subpoena, or court order, of course, 

certain showings would have to be made. It is also possible, of course, for 

the owner of the tapes to interject objections.

Question. A follow up to that. If the owner of those tapes doesn’t want to give 

them ui>—he has now been pardoned of everything—what is the leverage?

Mr. Buchen. It doesn’t affect the court orders or subpoenas, and he is subject 

to the consequences of not obeying a valid court order or subpoena.

Question. In other words, tha t would come under the expiration date of August 9 in the pardon : is th at right?

Mr. Buchen. That is right.

Question. Do you feel the agreement with Mr. Sampson has insured tha t the 

Ford Administration cannot be implicated in any Watergate cover-up? Was 

tha t one of your considerations?

Mr. Buchen. That was not involved because I don’t think that is a relevant issue.

Question. Is there any change in the rules of access to documents by former 

White House aides?

Mr. Buchen. The problem is tha t there would, of course, be an interim before 

the Nixon-Sampson lette r agreements can be fully implemented. How we will 

handle the interim arrangements, I am sure can be worked out with Jack Miller 

as attorney for Mr. Nixon.
173

Question. As you recall, in the Agnew case, a paper prepared by the Justice Department listing the law violations by the former Vice President was presented in court on the theory that the American people were entitled to have the full story in addition to the specific charge to which the former \ ice President 

pleaded'! In President Ford’s preparation for today, what thought did he give to the presentation of an analysis by Special Prosecutor Jaworski of the full extent of President Nixon’s role in the Watergate case, and is there any understanding at this point of eliminating Special Prosecutor Jaworski’s ability to pursue tha t 

type of investigation?

Mr. Buchen. There is no limitation on w hat Mr. Jaworski can do except, of 

course, the punative defendant has the defense now of pardon. On the first p art of your question, there is a distinct difference between asking a man to plead guilty to a limited offense and the treatment of Mr. Agnew, of course, was done under very different circumstances by the system of justice. In this case, it was reliance entirely on the pardon powers which involve acts of

Question. You said earlier that you had assumed tha t Mr. Nixon may have been prosecuted, is tha t as far as you are willing to go on tha t issue? Did you 

all think it was likely th at he would be prosecuted?

Mr. Buchen. If you mean tried or indicted?

Question. Indicted?

Mr. Buchen. I think it would be very likely tha t he would be indicted. How 

and when he could be tried was still an open question.

Question. This likelihood, is tha t on the strength of your conversation with 

Mr. Jaworski that you think it was very likely?

Mr. Buchen. No, it was largely on the basis of what the Grand Jury apparently 

intended to do on the basis of less evidence than is now available.

Question. Mr. Buchen, if the ex-President retains the sole right of access to the documents and as I understand this GSA agreement, can even limit access by the Archivist of the United S tates and his staff, why should the United States remain 

as custodian of the documents at all?

Mr. Buchen. There is a double-key arrangement. In other words, access ca n't be obtained by either the former President or the General Services Administration except by their concurrent acts.

Question. But he could conceivably, to prevent himself from embarrassment, limit access—no one could see these documents during the three years the United 

States agrees to act as custodian.

Mr. Buchen. Unless there is a court order or subpoena.

Question. What about the court orders or subpoenas tha t are outstanding?

Mr. Buchen. We will have to take this agreement to the courts involved in those proceedings and seek relief from the present processes and subpoenas on 

the basis of the current agreement.

Question. Mr. Buchen. did you and the President give much consideration to the fact tha t a criminal trial could have cleared Mr. Nixon of the charges of possible guilt, could have cleared him, cleared his name?

Mr. Buchen. We certainly recognized tha t as a possibility. Whether it was 

given any consideration, I don’t know.

Question. I mean by you or the President?

Well, you were there. What was your own view?

Mr. Buchen. My own view is t hat tha t was a possibility. If tha t was what the former President wanted to do, he certainly would have told us. He didn’t have 

to accept the pardon.

Question. Did you recommend the pardon?

Mr. Buchen. I had nothing to do with recommending it or disrecommending it.

Question. Did you ever discuss the political implications of this pardon with 

the President?

Mr. Buchen. I did not.

Question. Mr. Buchen, to follow up on some of these other questions, it seems tha t President Ford has an interest in building into the public record a record of Mr. Nixon's alleged criminality for the same reasons that Mr. Agnew’s alleged criminality was made a pa rt of the record, to prevent him from saying tha t he was driven out by political opponents, et cetera. Is President Ford satisfied tha t former President Nixon’s record of wrongdoing is sufficiently in the public record 

now ?
Mr. Buchen. All I can tell you is that lie knows nothing th at you d on't know.

Question. Mr. Buchen, does the pardon in any way affect Mr. Nixon’s payment 

of back income taxes?

Mr. Buchen. Not at all. Th is does not apply to civil liabilities.

Question. Let's get back to this double-key arra nge ment. This is ju st so much 

lawyer’s language.

Mr. Buchen. I know th at is complicated.

Question. Does t ha t double-key arra nge ment prevent the Preside nt from going 

in there and d estro ying some of those tape s if he wanted to?

Mr. Buchen. Yes, it does.

Question. So, there is a deq uate safeg uards?

Mr. Buchen. Yes.

Question. Does it mean th at if any of those tapes are subpoenaed and he just 

refuses to honor those subpoenas, then wh at would happen?

Mr. Buchen. He would be subje ct to contem pt of th e cou rt th at issued the sub ­

poenas. It doesn't apply to any future acts.

Question. When will the tapes be physically moved to this repository in Californ ia or are they going to remain here?

Mr. Buchen. No, they will be moved to the Californ ia repository as soon as we 

can get rid of, or modification of the existing orders tha t requ ire they be retained 

here.

Question. Is tha t tha t Laguna Niguel py ramid they will be put in?

Mr. Buchen. Yes.

Question. But nobody can get in there by themselves. There will always be 

somebody to watch ; is th at correct?

Mr. Buchen. Yes.

Question. When you say ‘'curr en t”, are you referring to the two court orders 

that, are pending?

Mr. Buchen. The re are a t least three court orde rs th at I know of. One is in the 

Wounded Knee case in Minnesota. Another is in the na ture of an orde r because 

the court declined to issue the order on the assurance thnt documents or tapes 

could not be moved, and th at is the case involving the networks. So, you can get 

Ron to answer your questions on th at.

The third one is the civil suit in North Carolina involving a suit by people kept 

out of a meeting to cele brate Billy G raham Day.

Question. Mr. Buchen, Mr. Jaw orski has, of course, in his possession a considerable number of tapes which are not the originals. They are copies. This 

agreement with Mr. Sampson does not affect tha t, does i t? They don't have to be 

return ed to the mass to be moved o ut to Lagu na?

Mr. Buchen. The copies wil be disposed of as the cou rt orders, I assume.

Question. But this does not requ ire them to be return ed to the big group?

Mr. Buchen. No.

Question. Can I clarify the chronology of all this ? When is the first time the 

President indicated to you he might want to pardon Mr. Nixon?

Mr. Buchen. Just at th e sta rt of th e Labor Day weekend.

Question. On w hich day?

Mr. Buchen. I know I sta rte d to work Friday night, so it must have been 

Friday.

Question. Did you have any contact with Mr. Miller on the issue of a pardon?

Mr. Buchen. Not at th at time. The first contact, I think, was on Thursday of 

this week.

Question. And you can 't suggest what precipitated the Pre sident’s inte rest?

Mr. Buchen. I do not know.

Question. Can you tell us whether the President ever trie d to—I hes itate to 

use “extra ct”—but get any admission of guilt from the President, or was it 

strictly-----

Mr. Buchen. He did not.

Question. Mr. Buchen, you said that President Ford has not talke d to form er 

President Nixon since Mr. Nixon retained Miller. Could you tell us the las t time 

President Ford had c ontact w ith President Nixon, direct con tact?

Mr. Buchen. I don’t know. I thin k it may have been the time of the Rockefeller appointment.

Question. Mr. Buchen, I am not clea r on one thing, and following up Helen’s 

question, your emissary went out on that Thursday, Mr. Becker went out on 

Thursday, tha t was the only time he went out. I am trying to get clear in my 

mind precisely what it was he told the form er Preside nt, or told Mr. Ziegler, and
both of them at different times, tha t President Ford, in all probability would 

grant a pardon. What did he ask either of Mr. Nixon or Mr. Ziegler? What did he ask tha t Mr. Nixon do? Did he ask tha t this statement we have been given today be issued? Did he suggest wording and what it should say or did he ask for 

nothing? Did he ask for more than what we got in this statement? You say at one point the former President could have turned down the pardon.

Mr. BucnEN. Yes.

Question. Did he offer tha t option and did lie say if the pardon was to be 

granted, wliat the former President then should do?

Mr. Buciien. The former President was represented by counsel, you know.

Question. Well, did he make the offer to Mr. Miller?

Mr. Buciien. Mr. Miller is shrewd enough attorney to know that he could 

have advised his client to accept or reject the pardon. To answer your other question, as you can see, that letter agreement is a very complicated one and it involved a lot of practical problems. Before Miller and Becker went out, a rough d raft of Miller’s proposal was in our hands. But it was obvious that we could not work out the details of what would suit Miller’s client and what would suit GSA and what would suit what we thought was the best interests of the Government and of the potential other parties in interest without 

going out and making the final draft out there. And that was done. As far as the statem ent from the former President is concerned, tha t was a matter tha t was le ft entirely up to the discretion of his own counsel and his own 

advisers.

Question. Let me see if I can put it another way. Mr. Buchen. Was the pardon in any of the conversations involving yourself, Mr. Becker, or anyone else, with anyone representing the former President, was this pardon contingent on 

anything?

Mr. Buchen. I have said no and I repeat no.

Question. Are you saying if he had not given this letter at all, if he had said. “Well, I will make no letter agreement,” are you saying categorically that a 

pardon would have been issued anyway ? Mr. BucnEN. I am not sure because President Ford could have changed his 

mind or not made up his mind finally.

Question. When was the package completed that was announced today?

Mr. Buciien. We got the agreement back on early Saturday morning and spent 

that day reviewing it with Mr. Sampson so tha t was wound up.

Question. You mean yesterday morning?

Mr. Buchen. Yes, yesterday morning. The statement, of course, we didn’t 

see until we got it over the wires right after the speech.

Question. Did the President know there was going to be a statement before he 

finally decided on the pardon?

Mr. Buchen. Yes.

Question. Did he have any idea what the contents would be, wliat the tone 

would be?

Mr. Buciien. In a general way, yes.

Question. You are saying that the pardon had nothing to do with this letter 

agreement?

Mr. Buciien. That was not a condition.

Question. That was a completely independent action?

Mr. Buchen. Right. The negotiations for that agreement were started independently before even consideration of a pardon.

Question. The decision to pardon was not made until after this agreement 

was obtained?

Mr. Buciien. That is right.

Question. What you are saying, you cannot say there would have been a pardon 

if the agreement had not been made?

Mr. Buchen. All I can say is tha t the President had the right not to grant a 

pardon because he had not finally made up his mind to do so.

Question. When did he make up his mind to do so?

Mr. Buchen. I suppose until that pen got on paper or until he s tarted making 

the statement.

Question. He made his decision after the agreement was made?

Mr. Buchen. That is correct, but what went on in his mind. I don’t know.

Question. When did he write the speech?

Mr. Buchen. Last night.

Question. In sending this word through the emissary to Mr. Nixon tha t he was thinking of or expected to pardon him but was reserving time judgment, was th at
176

in any way intended as encouragement to Mr. Nixon to get on with the final agree­ ments and possibly offer the kind of a statement tha t he did offer today?

Mr. Buchen. That wras not the intent. If it created tha t impression, it was a 

wrong impression.

Question. Mr. Buchen, you said tha t the President had an indication in a general way of content of the former President’s statement. If I may ask a two-part 

question: How did he obtain this indication, and did he believe, or was he informed, that the statement would be one of contrition ?

Mr. Buciien. The report was through the mouth of Benton Becker, and the 

characterization of it as an act of contrition is mine.

Question. Excuse me, then. What general feeling did the President have that 

the statement would be, what indication did he have of what the statement would 

be? How was it characterized by Mr. Becker?

Mr. Buchen. He in general told the President what it amounts to and in 

particular called attention to the fact tha t there would be an acknowledgement 

of failu re to act decisively and forthrightly on the matter of the Watergate 

break-in after it became a judicial proceeding.

Question. Was th at negotiated a t all ?

Mr. Buchen. It was not negotiated.

Question. Was Mr. Becker informed of that on Thursday at the time he went 

out there?

Mr. Buchen. I think he was informed on Friday because he got out there 

very late on Thursday night. 1

Question. Do you know if tha t information had any effect on Mr. Ford’s 

decision ?

Mr. Buchen. I don’t know. I am sure it pleased him and made him feel that 

it was easier for him to act as he contemplated doing.

We will take three more questions.

Question. Would you please clear up some things about this letter of agreement. I am sorry, but it will take me some time to understand it. Let me see here 

if this is what it means. Unless there is a subpoena or a court order which Mr.

Nixon would reply to, any ordinary citizen of the United States, or any officials, 

outside of Sampson, could not just go in there and look at these tapes or listen 

to them, or see them at any time. They will be shut off completely to the public?

Mr. BucnEN. That is right.

Question. Mr. Buchen, why is the date of July 19G9 mentioned in the pardon?

Mr. Buchen. It is January, the date of inauguration, Janu ary 20. President 

Ford misspoke when he used the word “July”.

Question. How complete was your explanation of case against the former 

President by Mr. Jaworski? Did he go into what areas tha t he might be pursuing, 

what he heard on the tapes tha t have not been made public? Anything like 

that?

Mr. Buchen. The question asked him what matters could arguably involve 

further steps, and it read like a list from one of your newspapers.

Question. Did Mr. Becker talk strictly with you or did he ever speak to Mr.

Ford? Did he deal strictly with you?

Mr. Buchen. Oh, no ; he was also in the room on occasions when I was speaking 

to the President.

Question. Why did he pick Becker to do this?

Mr. Buchen. Pa rt of the problem, as you may know, is we have a rather understaffed legal staff here and Mr. Becker is a man of rare talent tha t helped during 

the confirmation hearings of the Vice President, and he is such a good and trusted *

friend of both of ours that we felt he was the one we should call on.

The Press. Thank you.

Mr. Buchen. All I am going to say is, for the tapes there will be two fiveyear windows. The first of the five-year windows involves controlled access by 

the former President for his listening to copies of tapes, copies to be made by »

an operator who himself does not listen to the originals.

Also, during the first five-year window, anyone with a legitimate court subpoena or order that is upheld can have access or can require the former President to furnish the information contained on relevant portions of the tapes.

At the end of tha t first five-year period, the former President retains his window, but also can order selective destruction of tapes. At the end of the tenyear period, they all get destroyed, all th at remain.

Question. In the second five-year window, is tha t jus t by persons who have 

legitimate subpoenas and court orders closed off?
177

Mr. Buchen. That is right, because there is a five-year sta tute of limitations 

on most, in fact on all, Federal offenses an d most civil matters, so i t is assumed 

the initial five-year window is long enough.

Question. Wh at is the limit on destruction after five years plus one day, or 

can he destroy them all?

Mr. Buchen. He can.

Question. He can?

Mr. Buchen. He can orde r them destroyed.

Question. If they were making any copies, would the originals then be destroyed in the second five-year window?

Mr. Buchen. The originals will be destroyed. The copies will be destroyed 

immediately a fte r they are used.

Question. And he could do it after five years and one day for every thing?

Mr. Buchen. Right.

Question. Now can you go then from ther e to the documents?

Mr. Buche n. The documents are a different category. There is no present gift 

of documents as distin guished from the tapes. However, there is a three-y ear period when there will be controlled access by the owner of those documents requiring the double-key arra nge ment with the General Services Adm inistrator. 

And the former President is under obligation to respond to any subpoena involving documents, jus t as he is to those involving tapes.

During the three-year period involving documents, the former President will 

be under obligation to respond to subpoenas involving those documents. At any 

time, the form er President can designate certain documents by description to 

become the a bsolute p roperty of the United State s.

However, after the three-ye ar period, he may either elect to complete his 

gifts or to withdraw ma terials as he desires. These are documentary materials.

Question. Why the three-y ear limit?

Mr. Buchen. We felt th at as a practic al ma tte r on the documentation that 

would be long enough. It gives everybody a warning. Obviously if there is a 

subpoena out th at was obtained in the thr ee yea rs and the ma tte r of its resolution has not been concluded, the subpoena would prevail.

Question. Can you destroy th e documents a fte r three years?

Mr. Buchen. Yes, if he wants to withdraw them.

Question. By th e way, Mr. Buchen, I may be wrong in what I am about to say, 

but I am going to predic ate a question on it, nevertheless.

I am under the impression th at the tapes, as opposed to documents, the tapes 

were—that thin gs such as tape recordings wTere not covered when Congress covered th at loophole and for that reason, the form er President could dona te those 

tapes to the Government and claim a ta x exemption.

Your second window, the ten-year time of destruction app ears to rule th at 

ou t; is th at rig ht?

Mr. Buchen. He has alre ady given them to the U.S. Government to be a gift 

effective at the end of th e 5-year period.

Question. After he destroys them all?

Mr. Buchen. He can ’t destroy them during the first five-year period.

Question. He has given them as a gift to the United States—we are talkin g 

about tapes now—he h as given them as a g ift to the United States for five yea rs ; 

is th at right?

Mr. Buchen. No, it is the oth er way around. He has reta ined t itle for five years 

and the gift takes effect a t the end of the fifth year.

Question. But he can destroy his gift?

Mr. Buchen. He doesn’t have access to them.

Question. But he can the next day. Didn’t you say five years and one day 

he could destroy them all?

Mr. Buchen. He can order their destruction .

Question. Wh at can he do with the copies? Can he dispose of them for his 

own purpose?

Mr. Buchen. No, the copies will go back into the hands of the G eneral Services 

Adm inistrator and they will be destroyed after he has listened to them.

Question. Mr. Buchen, after the ten-year period, is it m andated t ha t the tapes, 

all tapes and all copies be destroyed?

Mr. Buchen. That is a condition.

Question. So, his gift in the second five ye ars is a limited gift, in time it is a 

limited gift, say lim ited to five ye ar s; is tha t right?

Mr. Buchen. No.

Question. You say he has given them to the United States?

4 4 -2 74 0 - 75 - 13
178

Mr. Buchen. Effective five years from now.

Question. Why a re they going to be destroyed afte r five years?

Mr. B uchen. Well, maybe they never should have been made in the first place. 

This was his desire and I thin k it is consisten t with the fac t that these 

matters do involve conversations with people who had no realization th at their 

voices were being recorded.

As an old spokesman for the righ t of privacy, I thin k there is considerable 

merit for putting these in a sep ara te category from documents.

Question. Mr. Buchen, was any consideration given to the right of history?

Mr. Buchen. I am sure the historians will protest, but I thin k historians 

cann ot complain if evidence for histo ry is not perpetuated which shouldn’t have 

been created in th e first place.

Question. Is there anythin g he can keep, or inte nds to keep?

Mr. Buchen. I am s ure there are items in the documents th at he would intend 

to keep. Of course, it would involve family letters, things of a highly personal 

nature.

Question, Mr. Buchen, if it is Mr. Nixon’s desire to destroy the tapes after 

ten years, would it not be logical to assume he will destroy them after 

five years ?

Mr. Buchen. That is his option, order them destroyed.

Question, What about the gift option? The ta x deduction option?

Mr. Buchen. I am not his tax lawyer and it seems to me if you give a gift 

with instructions th at the items have to be destroyed, that the gift immediately 

loses its value, so I would think it would be very questionable.

[Fo r immediate release]

September 10,19Tlf.

Office ofth e White House Press Secretary

Press Conference of P hil ip Buchen, Council to the President

The Briefing Room At 12 :49 P.M.

Mr. Hushen. As I announced earlier, Mr. Philip Buchen, the Counsel to the 

President has agree d to come back out here today to answer some of the 

questions you have.

Let me say we are going to give them 60 seconds to get some photographs 

and the n they will go away. [Laugh ter]

Let me say at the outset th at the document that is about to be handed out 

is embargoed until the completion of the briefing.

This is a follow-up, of course, of the meeting we had on Sunday. And at that 

time someone asked the question about the disclosures made to me by Special 

Pros ecutor Jaw orski to the are as of investiga tion in which his special force was 

engaged.

And my answer was that the question asked him w as : “Wh at matters could 

argu ably invoke furthe r steps?”

And I reported th at it read lik e a list from one of your newspapers.

You have now before you the document that was furn ishe d to me and, 

although the copy of the Special Pros ecutor’s memorandum from Henry Ruth 

to the Special Prosecutor dated September 3, 1974, on the subject of Mr. Nixon 

was sent to me in confidence, Mr. Jaw orski has since advised me tha t, if I 

were willing to assum e the responsibility for its release, he would raise no 

objection to my doing so.

However, he cautioned that in the event of its release, he would expect th at 

it be made available in its entirety, including the first and las t par agraph s of 

the memorandum, and I quote tha t the first paragraph read s :

“The following ma tters are still under investigation in this Office and may 

prove to have some direct connection to activities in which Mr. Nixon is 

personally invo lved:”

At the conclusion of the memorandum Mr. Ruth , in reporting to Mr. Jawo rski, 

wro te:

“None of these ma tters at the moment rises to the level of our ability to prove 

even a probable crim inal violation by Mr. Nixon, but I thought you ought to 

know which of the pending investiga tions were even remotely connected to Mr. 

Nixon. Of course, the Waterg ate cover-up is the subject of a sep arate memorandum .”
179

Now I will try to field any questions.

Question. Tell us about considering pardons for everybody involved in Water

gate?

Mr. Buchen. I am not involved in that matter.

Question. Well, who is? , , .

Mr. Buchen. I said at the time of the last press conference to my knowledge no thought was being given to tha t and I have not been called in to do any part

of the study so far. I assume I will be.

Question. Who is at this point? Who is considering this, the President?

Mr. Buchen. The President made the statement.

Question. Mr. Buchen, can you tell us if anyone tried to persuade Mr. Nixon to confess guilt prior to the granting of the pardon by President i ord ?

Mr. Buchen. No. Mr. Miller, at the time that I informed him that the Presi­ dent was considering a possible pardon for Mr. Nixon, was told by me that I thought it would be very beneficial in the interests of the country, in the inter­ ests of the present Administration and in the interest of the former President, that as full a statement as possible should be issued by Mr. Nixon but tha t I had been told that that was not a condition to the consideration of the pardon. Mr. Miller at tha t time assured me tha t he agreed with me th at such a statement should be forthcoming from his client.

Question. Mr. Buchen, I was wondering, if, as the President’s legal counsel, would you advise tha t the President in this study about the possibility of giving amnesty to all the Watergate people, tha t excluded from the people doing the study should be all Nixon holdovers? Would you advise, or do you think it is reasonable for Nixon holdovers to participate in a study of possible amnesty 

to all Nixon defendants?

Mr. Buchen. I think tha t is a decision the President will have to instruct

UL1V UI1. Question. How would you advise him? Did you finish your answer to the ea rlier 

question?

Mr. Buchen. I was finished.

Question. Could I follow-up then, sir? Did the former President balk at this, was there negotiation on what finally came out in his statement afterwards? Did you see that statement, sir, or did anyone else in the White House see it 

prior to its issuance?

Mr. Buchen. When Mr. Becker came back from San Clemente, he was able to report the substance of the statement that he thought would be forthcoming 

afte r the announcement was made. But we did not have the statement in the form in which it was ultimately 

delivered.

Question. Are you satisfied that this was as full a statement as possible coming from the former President?

Mr. Buchen. That is something tha t I think would require going into the former President’s mind. Obviously, if you do not condition an act of mercy on the recipient of the mercy doing anything, you are not in a position to do much 

bargaining.

Question. Mr. Buchen, did Mr. Becker go to San Clemente with a much 

stronger statement, or a statement—

Mr. Buchen. He had no statement in hand.

Question. You say he came back with a statement—he reported the substance of the statement he thought would be forthcoming. Was that substance substan­ tially different from the statement that was then issued?

Mr. Buchen. No, the essential feature was the statement tha t the President believed he had not acted decisively and forthrightly in respect to the Watergate once it became a judicial proceeding and the regret for having done wrong was 

in the report that Becker gave us.

Question. Was it your hope or intention early in those negotiations to get Mr. Nixon to agree to a statement in which he admitted his own personal wrong­ doing and involvement in the Watergate cover-up?

Mr. Buchen. Again I had to rely on what Mr. Miller believed would he in the best interests of his client and the country, because I had no authority to extract 

a statement of my own making.

Question. Not what was in the former President’s mind, hut what was in your mind? Do you think tha t the final statement met the standards that you and Mr. Miller discussed at the meeting?

Mr. Buchen. Well, I think they did, because, as some of your papers have already suggested, the very fact tha t a man accepts a pardon does imply that
180

he believes it is necessary for him to have th at pardon, or th at it is useful for 

him to have th at pardon.

And there aren’t many insta nces in which it is useful to have a pardon unless 

there is a strong probability of guilt.

Question. Mr. Buchen, do you thin k that you and President Ford misread the 

public’s acceptance of the term s of this pardon and the acceptance in Congress?

Mr. Buchen. Well, I was not doing much reading on the outside as to what 

might happen. Th at was really outside my bailiwick, so I cann ot tell you.

Question. Mr. Buchen, do you and the President hope th at the former President will at some time, perh aps in the nea r future, release some kind of form al 

statem ent detailing furth er his connection with Waterg ate?

Mr. Buchen. I have not given th at any thought and I assum e that would be 

entirely up to the form er Presid ent.

Question. Mr. Buchen, you were involved in the pre-accession negotiations and 

pre-transition operations of th e Ford A dministration. Was there at any time any 

discussion between any high -ranking member of the Ford group and any member 

of the Nixon group as to the possibility of a pardon for Nixon in advance of his leaving office ?

Mr. Buchen. I answered th at question Sunday and, to my knowledge, there 

was absolutely none and it never came up as a ma tte r to be discussed by the 

transi tion team. And I think I partici pated in virtually all meetings of the 

transition team.

Question. How about between Ford an d Nixon alone?

Mr. Buchen. I don’t believe so.

Question. Can you find out definitely whether there was no deal before Nixon 

left office ?

Mr. Buchen. Well, I know the man in the President’s office quite well and I 

can a ssure you he did not make a deal. I know him th at well.

Question. Mr. Buchen, he assured us in a press conference it would be untimely 

to do such a thing, and he assured us when he was nominated for Vice-President 

that the American people would not stand for it. Can you give us an explanation of this ?

Mr. Buchen. Let’s tak e the fi rs t; the ma tter of untim eliness seems to me to 

involve a debate th at really makes little sense, because a man who had to conside r whether or not to grant a pardon, it seems to me, has to consider the fac t 

that if a pardon is desirable, the e arlie r it comes, the better.

It is like making a man walk a plank. You w ait until he takes the first step. 

You w ait until he gets to the middle of the plank. You wait until he jumps off 

the end, and then dive in to rescue him. I think it represe nts—let me p ut it this 

way. I don’t think an act of mercy can ever be untimely, and it certainly becomes 

less merciful if you postpone the agony.

Question. Mr. Buchen, in that stateme nt, you are suggesting that the form er 

President was going to go off the end of th e plank ?

Mr. Buchen. I think there was a strong possibility.

Question. When Mr. Becker was out at San Clemente, did he discuss in the 

Pre sid ent’s presence what the President might say in a stateme nt, and did the 

President get angry at the suggestions t ha t he a dmit guilt?

Mr. Buchen. I think those nego tiatio ns were entirely with Mr. Ziegler, so I 

don’t think we have any knowledge of what the Presiden t—

Question. The New York Times states this morning as I quoted it. You better 

clea r up what you mean by “walking the p la n k d o you mean suicide or going 

to ja il?

Mr. Buchen. No, as I understand “walking the plan k,” it is because the man 

has been convicted of some crime that offended the ma ster of the ship, or not convicted, say indicted.

Question. What about the question of he al th ; Mr. Buchen, how did that figure 

into this decision?

Mr. Buchen. I don’t know because I wasn’t party to any of the investigations 

or discussions, if th ere were any, about the former President’s health.

Question. Did you say Mr. Becker at no time spoke to Mr. Nixon in San Clemente?

Mr. Buchen. I didn’t say that.

Question. I thought you said the negotiatio ns were entirely with Mr. Ziegler?

Mr. Buchen. I don’t know whether there were nego tiatio ns but the ma tter of 

the content of the Pre sident’s stateme nt, which he conte mplated giving when 

the pardon was issued, was dealt with entirely through Ron Ziegler. The only
face-to-face ma tters taken up with the form er Pre sident dealt with the man ner 

of managing and disposing of his papers and tapes.

Question. Mr. Buchen, did Mr. terHors t ask you on F rida y whether Mr. Becker was involved in discussing a pardon with the form er President during his tri p 

to California, and if he did, what did you tell him?

Mr. Buchen. Well, we better clear th at one up. Jerry terHo rst repo rted to me th at someone had observed Bento n Becker and Jack Miller in the are a of San Clemente. Jerry ter Ho rst asked me what the purpose of my having sent Benton Becker out to San Clemente was, and I said th at the purpose was to tak e a document th at had been prep ared in rough draft before he left Washington, had been p repared by Mr. Miller, which rela ted 

to the management and diposing of the tapes and records. However, we objected and wanted changes in those documents, partly because we were concerned as to the practic ality of some of the proposals made insofar as they involve the Admin istrator of the General Services Administration. The ma tter is very complex, as you see, so I sugegsted, when Mr. Miller said he would have to go and discuss the terms of that document with his client, that Mr. Becker go along, so that there would be a way th at Mr. Becker could be on hand as changes, additions or whatnot were proposed and so th at he would be ava ilable to report back to me on th e progress of the negotiations. That 

was the purpose of the assignment.

Question. We specifically asked you if Mr. Becker was out there engaging 

in pardon negotiatio ns?

Mr. Buchen. There we re no pardon negotiations, th at is the point.

Question. Anything at all? You sent him out with instruction s to say that the President had this under consideration ? Would you a nsw er my question, please?

Mr. Buchen. Mr. Miller knew that the pardon was under consideration, and he could report to his client. It was not necessary for Mr. Becker to do anything 

in connection with th e pardon.

Question. D idn’t Mr. Becker take out a copy of the proposed pardon?

Mr. Buchen. Yes, he did. It was a draft th at he and I had worked on very hurriedly Thu rsday afte rnoon before he had to leave on the plane. I said, “Benton, you are going to be five hours on th at plane, take a copy along, keep working on it, I don’t think it is in the form we want to submit to the Presiden t 

for his consideration. Take it along an d work on it.”

Question. You didn’t te ll Mr. terH orst that?

Mr. Buchen. No, I will ex plain; as you may apprecia te, being counsel to any­ one, or lawyer to anyone, imposes certain restrictions, and I believe, on this matter, I was und er complete restriction as a lawyer to the President not to d is­ close w hat I was doing for the President on a matter that he rega rded as highly 

confidential.

Question. Did the subject of pardon ever—Would you say th at you misled 

Mr. terH orst on F riday?

Mr. Buchen. Let me pu t it this way ; I can see how he could have been mislead.

Question. Can you see how he could have been misled ?

Mr. Buchen. No, I can see how he could have been misled. I don’t say he could not have been. A fter all, if you get a question, why is a man whom you have sent to San Clemente there, and I give him an answer, I can see when he in turn and to respond to the man, or the reporte r making the inquiries, that he would injec t a negative, was he there doing anything else. And I assume tha t Jerry said, “Well, as far as I know he wasn’t,” because I had not told him he was doing a nything 

else.

Question. Did you tell him he wasn’t out there discussing the pard on?

Mr. Buchen. Oh, no.

Question. Why was it something you couldn’t t alk about?

Mr. Buchen. I could tal k about the neg otiations on the tapes.

Question. When he asked you abo ut the pardon?

Mr. Buchen. He didn’t ask me abo ut th e pardon.

Question. Wh at was the precision of language used in President Nixon’s 

statement?

Mr. Buchen. Let me get th e question.

Question. Wh at was the need for the secrecy in the negotiations, whatever 

they were?

Mr. Buchen. In the course of any clien t and atto rne y relationship , usua lly until something happens, you are under obligation not to disclose the 

conversations.
182

Question. I mean, what was the need for secrecy about the fac t th at a pardon 

was being considered, generally, not just your conversations with the President?

Mr. Buchen. Well, generally, th at was the Pre sident’s decision and not mine.

I was jus t bound by my client-attorney relationship.

Question. Mr. Buchen, if Mr. Becker knew all about the pa rdon, the President 

seemed to trus t him with th at inform ation , yet he didn’t trus t Mr. terH ors t with 

tha t information? Or you did n't tru st Mr. terHo rst with it?

Mr. Buchen. I had no power to subdelegate in passing information. The first 

question is why didn’t the President trus t Mr. ter Ho rst to have the information 

at the same time I got it?

Question. No, I mean Mr. Becker. You are talk ing about the attorney-client 

relationship, which involves you and the Pr esiden t; Mr. Becker is someone o utside th at relationship, yet he knew about the pardon because he was working 

on the pard on agreements.

Mr. Buchen. No, he had the same relationship that I had in term s of his being 

a lawyer and working under my supervision as a lawy er for a client. As in a 

law office, if a client comes into an office and the lawyer assigns a law partn er to 

work on it, the obligation extends to the other lawyer as well as the original 

one.

Question. Can you be forthrigh t with us on what is your advice to the Pre sident on pardoning o ther individuals associated with the—

Mr. Buchen. I have not given him any advice.

Question. W hat would be your a dvice ; how do you see the issue?

Mr. Buchen. I haven’t even had tim e to stu dy it.

Question. When did the Pre sident’s other advisers find out th at the pardon 

was under consideratio n or was to be granted, and did they agree with it when 

they found out about it? And did you?

Mr. Buchen. I was in the room at the time when certain advisers were told 

about it on Friday before L abor Day, but I don’t feel free to repo rt their reactions.

Question. Can you tell us what role General Haig played in this granting 

of the pardon? He was in on all of this all the time, wasn’t he? Was he recommending a pardon during this period? What was the question?

Mr. Buchen. I was asked th at question last night and I can tell you that 

every occasion when I was present when the subject was raise d and General 

Haig w as there, he took an absolutely neutral stand.

Question. Did you say you are not part of the study for the oth er Watergate 

defe ndants? Can you tell me when you became aware th at th at study was in 

the works?

Mr. Buchen. I learned from Mr. Ha rtm ann and Mr. Hushen that this ma tter 

was brought up at the early morning conference.

Question. Who brought it up? Today for the first time? Did you say there was 

a connection between the pardon for the others and the reaction against the 

pardon for Nixon? And secondly, if you are the President's lawyer and you are 

not working on it, who is?

Mr. Buchen. Well, I don’t know, Ron. I really don’t.

Question. Wh at about the first pa rt of that question ; is he trying to dampen 

down the reaction by giving out pard ons to the others?

Mr. Buchen. Well, I don’t int erp ret studying a pardon as predicting what the 

results would be.

Question. Mr. Buchen, as a lawyer, can you see a distinction between a Pre sident granting a pardon to a form er President and granting pardons or not 

granting pardons to former subordinates for involvement in the same illegal 

acts ?

Mr. Buchen. Well, the re certain ly is a distinction. I will late r have available 

for distribution—because I don’t thin k there will be many questions on it— 

a memorandum, a copy of a memorandum that Mr. .Tack Miller prep ared for 

the Special Prosecutor in which he rather care fully documents the reason why 

the situatio n of his clien t is distinguishable from the situ atio n of anybody else’s 

remotely involved in the acts, or Waterg ate- rela ted events.

You will remember I quoted a lette r from Mr. Jaworski who did say he thought 

there was a distinction.

Question. Phil, could I ask you this questio n: Does not the mere fac t that 

the White House has made a statem ent saying that pardons for all Watergate 

defe ndants are under study, does th at not intrude upon the judicia l process to 

the point that the trial for the Wate rga te defen dants, the tri al for September 30, 

is somehow intruded upon and inte rfered with by this statem ent?
Mr. Buchen. Well, I don’t think so. You see, af ter all, the f act th at the re can 

be a pardon hangs over the trial of anybody. That is not a unique situ atio n. The 

power to pardon exists in the Federal Constitution and I believe in every State 

Constitution.

Qusetion. This is a matt er of grea t and intense national inte rest. It is not like 

the case of any defendants. This is a case of specific defen dants th at have been 

involved in a gre at national drama or wh at have you, so it is a different case, 

is it not?

Mr. Buciien. Yes, but the Preside ntial pardon power, as well as th at of a 

Governor of a State, hangs over the judicial process all the time.

Question. What purpose was served by announcing this morning, or authoriz ing 

Jac k Hushen to announce it this morning?

Mr. Buciien. Well, I was not party to th at determination so I can’t tell you.

Question. Wh at purpose was served by announcing the Jaworsk i lette r on the 

ten points?

Mr. Buchen. Well, as I indicated, it was given to me on a confidential basis. 

The comments th at have been made around town is th at there was not a consideration given of what was, what someone else called “are there any possible 

time bombs”, and we felt that it would lie in the interest—provided Mr. Jaworski 

consented—tha t we do provide you with the information on which the P resident 

in pa rt acted before he decided to gra nt the pardon.

Question. In this study th at is being undertaken, sir, wh at is your und erstan ding of the philosophy behind it—th at families of all Wa terg ate defe ndants 

have suffered enough, or what other considerations?

Mr. Buchen. I can ’t go beyond the statem ents Jack gave you. Th at is all 

I know.

Question. Where did it first come up? Whe re did this subject of possible 

clemency for all other Wa tergate defe ndants first come up? You didn’t make 

that c’ear. You said “a n early morning conference”.

Question. Wh at morning?

Mr. Buchen. This morning.

Question. What were the circum stances?

Mr. Buchen. I don’t know except it was reported to me by Mr. Hartm ann and 

Mr. Hushen th at it was raised this morning.

Question. Where?

Mr. Buchen. I assume with the President. I don’t know the circum stances.

Question. Is this a reaction, Mr. Buchen? Is this consideration of the study, 

consideration of pardons, and the announcement of this study, is this a reaction 

to the popular outcry ag ain st the pardon of the form er President?

Mr. Buchen. I don’t thin k so because the fac t that two people are brou ght 

into his confidence this morning and th at confidence has been shared with you 

today, doesn’t mean tha t tha t is when the thought came.

I explained on Sunday when the question was asked me as to whethe r any 

thou ght was given to the way in which the pardon power might be exercised, 

if at all, respecting other people involved. I said that to my knowledge—meaning that as fa r as I knew—no thought had been given. But that didn’t mean 

th at the thought processes were n’t going on unbeknownst to me o r unbeknownst 

to the people who got the reports this morning.

Question. Mr. Buchen, in going back to my oth er question, you said mercy 

is never untimely. Was the Presiden t not merciful ten days ago when he said 

it would be untimely, and was the Presiden t lacking in mercy when he told the 

committee th at the American people wouldn’t stan d fo r it?

Wh at caused him to be suddenly merciful? Could you tell us what happened?

Mr. Buchen. I wish you would come up here and explain the theory of mercy. 

You can probably do a much better job than I can.

But let me tell you, it is not whether to be merciful, but how he could be merciful, and I do not think he was aware that he could act before there was any 

formal indictment when he made his statem ent before the press.

Question. Wasn’t the President briefed on that very point before the news 

conference? Wasn’t he briefed th at there would be a question on pardon and this 

was a policy adopted?

Mr. Buchen. T hat is right.

Question. Why was th at policy changed, that there would be no pardon unt il 

the re was due process?

Mr. Buchen. You have lost me, I am sorry.

Question. He announced a policy at that news conference and you say he was 

briefed on that policy.
184

Mr. Buchen. He said th at he would make no commitments. His intention then 

was to make no commitments on the pardon until something had been brought to him.

Question. Why was tha t changed ?

Mr. Buchen. Well, because after the conference, I assume he reflected on the 

matter , and then asked me to find out whether or not he could move quick er than 

he had indicated at the press conference.

Question. Did you brief him prio r to the news conference that the best policy was for him to wa it until there was some-----

Mr. Buchen. No, I did not.

Question. With whom was he in touch with a t that point? Can you tell us who 

he consulted between Wednesday and Friday when he asked you to begin your research into precedents?

Mr. Buchen. I have no notion ; I re ally don’t, Pete.

Question. What is your understand ing of the investiga tion sta tus referre d 

to in the memo? Is Jaw orski going on in his investiga tion of these points? Is he going to fu rnish m aterial to the public?

Mr. Buchen. I know nothing more tha n what is in the memorandum.

Question. The Wa terg ate cover-up, it says, is the subject of a separate 

memorandum. Has th at memorandum reached you?

Mr. Buchen. I t has not.

Question. Do you know what it concerns?

Mr. Buchen. I can imagine what it concerns.

Question. Does it indicate to you, as a lawy er reading this, that that number 

one is ongoing and unlike thi s listing of ten points which according to the memo 

may prove to have some connection, but then says ther e is no po int we can prove 

rega rdin g Mr. Nixon—does that ind icate to you th at it is a different story entirely 

when i t comes to the cover-up?

Mr. Buchen. As you know, this memorandum was issued before the pardon, so 

I don’t know what the effect of the pardon has on the investigation referred to in the las t paragraph.

Question. You must have had some indic ation from the Special Prosecutor 

where he stands w ith regard to the cover-up investigation.

Mr. Buchen. I do not.

Question. In preparing your advice for the President, did you address at all 

the time element of granting this pardon, with specific reference to the possibility th at the W aterga te cover-up t ria l might be affected since the jury had not been sequestered?

Mr. Buchen. I did not discuss th at with the President, but I understand, of 

course, that, one, it is not certain the jur y would be sequestered. I assume it is 

available to the attorneys for the defendant to waive any such requ est; and, 

second, I am not sure that a story like this could possibly have been kept from 

the jury however tightly sequestered.

Question. Mr. Buchen, did you get from Mr. Ziegler or from Mr. Nixon, eith er 

after Mr. Becker returned here or while he was there, some sort of commitment 

th at the Preside nt would not in the futur e make statem ents protesting his innocence?

Mr. Buchen. We did not.

Question. Mr. Buchen, are you saying th at the President did not know or 

understand at the time of the August 28 press conference that the pardoning 

power could be exercised before indictme nt or conviction?

Mr. Buchen. I certainly had not so advised him, and he had not asked my advice.

Question. You didn’t say th at? Do you have reason to believe tha t, th at he 

didn’t believe he could move before the indictme nt was voted?

Mr. Buchen. That I don’t know. I d idn’t ask him.

Question. You so fa r have not given us any explana tion for why Mr. Ford 

changed his mind after th at press conference with the possible exception of his 

receiving this documentation of the investigation.

Does that mean th at the investigation turned out to be so serious th at he thought the former President wouldn’t withstand it?

Mr. Buchen. No ; I think more significant tha n th at was the advice that I 

reported Sunday, namely, th at before there could be a trial, there would have to 

be a delay of a year or more, and I thin k th at was the ma tter that concerned him most.
Question. Don’t many trials take a yea r or more to come to the cou rt or to settle? And why is Mr. Nixon to be tre ate d any differently in thi s respect tha n 

anyone else?

Mr. Buchen. Every defendan t under the law is entitled to a prom pt tri al 

provided he can have a f air tria l by an imp artial jury.

Question. When did you advise the President of the long delay of-nine months 

or a yea r? W as th at after the press conference?

Mr. Buchen. He asked me after the press conference, or that Frid ay, to find the answer. So app arently someone had told him th at tha t probably would be the 

case. But he wanted his own lawyer to as k the Special Pros ecutor who would be the best judge, of how long it might take, and th at is the reason I went to 

Mr. Jawo rski, so we would have an exp ert opinion. I don’t claim to be an expert. On the other hand, I have read the cases that are cited by Mr. Nixon's own atto rne y who makes the same arguments very effectively in a memorandum that you can all take back to your legal counsels, 

because I don’t think you want to read it all.

Question. However you did know th at indictments could be very quick, the question of layin g out the charges on the public record would not have take n 

very long—maybe a month ; is t ha t correct?

Mr. Buchen. As you know7

, the word came out t hat th e fo rme r P resident—then 

the President—was about to be named as an unindicted co-conspirator, so the indictment involves—that involves the defendants, involves probably everything 

that involves Mr. Nixon alone.

Question. But it is not the same, really.

Mr. Buchen. I think it is pretty good evidence of what th at jury inten ded to 

do and would have done if the re had n ot been a pardon.

Question. Was consideration given to the timing of when this jury would have 

done this, vis-a-vis the November elections?

Mr. Buchen. It had nothing to do with the elections. However, it was evident it was the Pre sid ent’s decision to gr an t a pardon before the indictment. He would have to act fairly soon because it was not possible, of course, to grade the 

Grand Jury in the tim e it would act.

Question. May I clear up a question here?

Mr. Buchen. Let me get Phil first.

Question. In view7

 of the la st sentence in thi s memoradum, didn’t you have any qualms about whethe r you could give t he President full legal advice on wh at he could do? When it says here there are oth er ma tters and oth er memo randa which you have not seen, how could you give the Preside nt full advice on what 

he could do on the pardon in view of tha t?

Mr. Buchen. Well, we believed, of course, th at the evidence before the House Jud iciary Committee on this very point th at resulted in the articl e th at brought a unanimous vote ultimately, and based on partic ularly the June 23 tapes, gave every indication of what was involved in the alleged Wa tergate cover-up and we 

didn’t think we needed to know any more than that.

Question. I thin k my notes are correct, that is, you told us earlier, “I do not think (th e Pre sident) was aw are th at he could gran t a pardon before the indictment when he made his press conference statement.” Is that righ t?

Mr. Buchen. As fa r as I know. I don 't believe that he was or that he und erstood what, if any, problems—I am talk ing legal problems, now7—would arise if 

he acted before indictm ent.

Question. The President seemed to say in his news conference th at he wouldn’t act on the imrdon until after an indictme nt and your explana tion, that there would be nine months or a year, perhap s longer, before a trial, doesn’t really 

go to the question of w7hy he changed liis mind about waiting until af te r an 

indic tmen t to act on a pardon.

Mr. Buchen. Well, I guess all I can go back to is my own analogy. If you are going to—if you do come to the conclusion you ought to consider mercy, it doesn’t seem to be very rele vant to consider what other steps you ought to require the 

man to whom you a re granting mercy must take.

Question. And a t the news conference he ha d not made up his mind yet?

Mr. Buchen. He had not made up his mind.

Question. You a re saying the main reason he changed his mind was because somebody told him there would be this long delay and he asked you to check i t out and you did. And then he decided t o grant the pardon? Did someone d ecide th at 

the long delay w’ould w reck Mr. Nixon’s health?
186

Mr. Buchen. Not that I know of.

Question, Has there been any discussion about the form er Preside nt not wish­ ing to testify or be a witness?

Mr. Buchen. Well, he is under subpoena so lie has no choice.

Question, I know, but if you are considering pardons, if there is consideration 

for others, th at would spare the form er President from testifying, is that pa rt of this study ?

Mr. Buchen. I have not seen the study, so I don’t know.

Question. In your discussion of the cover-up memorandum a moment ago, you 

said the Jun e 23 taj>es told you everything you needed to know about that.

Mr. Buchen. I didn’t say everything. I also said the findings of the House Jud iciary Committee.

Question. Right, and earlie r he spoke of the necessity, the acceptance of the 

pardon, the necessity for the pardon. Did this mean th at you and the President 

in offering this pardon to the Preside nt, would make a presumption of guilt?

Mr. Buchen. Fir st, take the “you” pronoun out of that and perhaps I can 

answer it. I did advise the President that a pardon could be characterized as 

implying guilt on the pa rt of the person who was pardoned because there is no 

other reason for grantin g a pardon. But that did not deter or affect his determination to act when he finally made up his mind to do so.

Question. From the perspective of the person who accepts the pardon, does 

the acceptance of the pardon amount to a tac it admission of guilt?

Mr. Buchen. You can so accept it. The question never came up. I couldn’t find 

in any cases where th at question was litigated, so I can’t give you any auth ority. 

But it ju st takes common sense and logic to reach th at conclusion.

Let’s have one of the women.

Question. Thank you.

Throughout this, we have hea rd solely about the consideration of an indictment and the lengthy period of time between indic tmen t and tria l. Did you try 

to determine from Mr. Jaw orski the possibility of a plea from the form er 

Pre sident? Now faced with the prospect of a multicount indictment, as he was 

and as I am sure Mr. Miller advised him, it seems extrem ely likely there might 

have been a plea fa r sooner tha n there would ever have l>een an indic tmen t and tria l. Did you ask for any timin g on this, and if not, why not?

Mr. Buchen. I did consult, of course, with Mr. Nixon’s Attorney, and I was 

pre tty sure from what he told me that in his mind there would never be a plea.

Question. There would have been a trial th en; you are saying he would have gone the whole route had he not been pardoned?

Mr. Buchen. I believe so.

Mr. Hushen. Let’s take two more questions. We been out here for forty-five minutes. Two more questions.

Question. Maybe you have answ ered th is ; why did President Ford w ant mercy for Richard Nixon?

Mr. Buchen. Because I think he truly believed it would be in the best inter ­ ests of the country.

Question. Mr. Buchen, if you are done with that answer, I would like to ask 

you, as a lawyer, do you think it not fa ir and proper tha t, if the Preside nt conside rs amnesty or granting a pardon for persons convicted for or indictments 

for burglary, perjury, conspiracy in Watergate related crimes, th at he should 

give equal consideration to pardoning other persons indicted or convicted of 

burglary, p erjury or conspiracy in non-Watergate related crimes?

Mr. Buchen. I wish I were a better student of the ethics or morality of 

mercy, but I believe a representativ e of the clergy would sub stantiate my remarks th at, throughout o ur religious history—and I don’t mean ju st the Christian 

Religion—there has always been a sep arate category of mercy th at we know has 

never been equally dispensed and we know that it is an act of grace that is many times inexplicable.

I am sure all of us in the room have sought mercy on ma tters that we wanted 

to blame ourselves for, or some adverse consequences, and we didn’t alway s get mercy.

Mercy seems to w’ork in very unequal fashion. That is a point on which Jerry 

terHo rst and I have disagreed. He has a notion, as he said, that mercy should 

be dispensed with in th e same even-handed fashion as we would like to see justice dispensed.

But, I believe history tells us mercy doesn’t work the same way.

Question. Mr. Buchen-----

Mr. Hush en. Thank you, Ladies and gentlemen.

Question. Mr. Buchen, is there any limitation on the power of pardons?
187

Mr. Buchen. I ref er you to-----

Question. Is th ere any limitation on th is a t all?

Mr. Buchen. I refe r you to the Constitution.

Question. Is ther e anything he could do th at was more than this?

Mr. Buchen. No, not th at I could find in the Constitution ; no.

The Press. Thank you.

End (1:37 P.M. EDT)

The White House, 

Washington, September 23, 197b.

Hon. William L. H ungate,

Chairman, Subcommittee on Criminal Justice, Comm ittee on the Ju dicia ry, House of Representative s, Washington, D.C.

Dear Mr. Chairman : I t has been called to my atten tion that a subsequent let­ ter of yours to me dated Septem ber 18, 1974, refe rs not only to H. Res. 1367, but to an additional resolution introduced by Represe ntative Conyers, II. Res. 1370. Please be advised that the response of September 20, 1974, concerning H. Res. 1367 is also applicable to II. Res. 1370.

Sincerely, Gerald R. Ford.

The White House. 

Washington, September 2b, 197bHon. William L. Hungate,

Chairman, Subcommittee on Criminal Justice, Comm ittee on the Judiciary, House o f Representatives, Washington, D.C.

Dear Mr. Chairman : The President has asked me to reply to your second lette r to him of September 17, 1974, which concerns the disposition of tapes and documents compiled by former President Nixon and curren tly with in the custody 

of the Federal Government. These materials, as you know, are the sub jects of various subpoenas and court orde rs and of requests for disclosure by the Office of the Special Prosecutor. As a result, no furth er action is being take n to affect the disposition of such materi als until after the issues raised by the pendency of the subpoenas, court orders, and Special P rosecutor’s requests ar e resolved. The period of time involved in resolving such issues will of itself ope rate to ass ure adherence to the request in the second paragr aph of your letter. I shall, of course, keep you informed, if you desire, of any lat er developments which could lead to a change in the present s itua tion.

Sincerely yours, P hilip W. Buchen, 

Counsel to the President.

Watergate Special Prosecution F orce,

U.S. Department of Justice,

Washington, D.C., September 24,197b.

Hon. William L. H ungate,

Chairmen, Subcommitte e on Criminal Justice, Committee on the Judiciary, House of Representatives, Washington, D.C.

Dear Mr. Chairman : This is to reply to your lette r of September 17. In your lette r you request that this office tak e all necessary steps to ensure th at the tapes and documents compiled by form er-President Nixon relatin g to the Waterg ate ma tte r remain in their present location until Congress has had an opportunity to consider various legis lative proposals subm itted to deal with these issues. We have formally requested that the Adm inistration take no steps to disturb the present location or custody of the tapes and documents produced during Mr. 

Nixon’s Presidency and specifically have asked that no steps be taken to imple­ ment the letter agreement l«etween the form er President and the Administrator of General Services which would tra nsfer the custody and location of these materials. We have been given assuranc es by the Counsel to the Pre sident th at this request will be respected and that no fu rth er change in the sta tus of these items will be made pending furth er discussions about our need to protect our 

interests. We remain read y to cooperate with th e Committee in an y way appropria te. 

Sincerely, Leon J awo rski, 

Special Prosecutor.
188

September 25, 1974. Pre sident Gerald R. Ford,

The White House,

Washington, D.C.

Dear Mr. President : I am in receip t of your let ter s dated September 20, 1974, 

and September 23, 1974, responding to my letters concerning th e priviliged resolutions, H. Res. 1367, and H. Res. 1370, introduced by Representative Abzug and 

Conyers, respectively. A review lias been made of the documents accompanying 

your lett ers of September 20, 1974, for the purpose of dete rmining whether you 

and members of your staff’s prio r statements concerning the pardon of form er 

Pre sident Nixon are responsive to the questions posed in the privileged measures.

Due to the difficulty in dete rmining which portions of these stateme nts you 

mean to apply to each specific question, I respectfully requ est that you respond 

individually to each inqu iry and th at your responses be forw arde d to the Subcommittee on Criminal Jus tice by the close of business on Thursday, September 

26, 1974.

In addition, I furth er respectfully request, after having consulted with the 

bip artisan membership of the Subcommittee on Criminal Justice, th at Philip 

Buchen, Counsel to the President, or someone w ith equivalent knowledge of the 

circu mstances surrounding the pardon of th e former President, appear and testify 

before the Subcommittee on Tuesday, October 1,1974.

Respectfully,

William L. Hungate, Chairman, Subcommittee on Criminal Justioe.

The White House, 

Washington, September 30,1974. Congressman William Hungate,

U.8. House of Representatives, Washington, D.C.

Dear Bill : This is to advise you th at I expect to app ear personally to respond

to the questions raised in House Resolutions 1367 and 1370.

It would be my desire to arr ange this hearing before your Subcommittee at

a m utually convenient time w ithin the next ten days.

Thank you for your help and assistanc e in th is m atter.

Sincerely,

Gerald R. Ford.

Washing ton, D.C.,

October 7,1974. President Gerald R. Ford,

The White House

Washington, D.C.

Dear Mr. President : You are aware tha t certain questions posed in the resolutions of inqury, House Resolutions 1367 (Abzug) and 1370 (Conyers), now pending before the Subcommittee on Crim inal Justice provide for the production of 

tapes, tran scripts, notes, repo rts, statem ents or other documentary information. For example, in the instance of questions two, eight, and ten of House Resolution 1367, specific requests ar e made for the production of certain documents 

and tapes, where available. To the extent relied on in arriving at the responses 

to the questions propounded in these two privileged resolutions, the Subcommittee requests that such documents and tapes, if available , be forwarded to the 

Subcommittee for review prior to your appearance.

Furthermore, there may be add itio nal docum entation that, while not specifically requested by the resolutions of inquiry, would be helpful to the Members 

of the Subcommittee in preparing for your forthcoming appeara nce before the 

Subcommittee. For example, in the insta nce of question five of House Resolution 

1367, a request is made for any facts and legal autho rities provided you by 

Attorney General Saxbe or Special Prosecutor Jaw orski. If any of the information was forwarded to you in written form, it would be appropria ted if you make 

it ava ilable to the Subcommittee p rior to your appearance.

Respectfully,

William L. Hungate,

Chairman, Subcommittee on Criminal Justice.
The White House, 

Washington, October 15,1914-

Hon. William L. Hungate,

Chairman, Subcommittee on Criminal Justice, Comm ittee on the Judiciary,

House of R epresentative s, Washington, D.C.

Dear Mr. Chairman : The President has aske d me to reply to your lette r to

him of October 7, 1974. In your lette r you have requested, in advance of the President’s appeara nce 

on October 17, 1974, copies of documentation to the extent relied on in arriv ing 

at responses to the questions in the two proposed resolutions of inquiry, H. Res. 

1367 and H. Res. 1370. In your first par agr aph you refer to questions by number which specifically 

call for producing certain documentation i f i t exists, namely two, eight, and ten of 

H. Res. 1367. However, question two deals with ma tters not within President 

Ford’s knowledge or awarene ss and, in any event, if any discussions covered 

by the question took place, they could not have been and were not a fac tor in his 

decision to pardon the form er Pre sident because he was not aw are of them. 

In the cases of the other mentioned questions, no documentation is involved 

in the answers of the President. In the second parag rap h you refer to possible documentation not specifically 

requested by the resolutions of inquiry, but, as I und erstand your letter, which 

is directly rela ted to such questions as number five. In th at connection, documentation was supplied to you with the Pre sident’s l etter of September 20, 1974. 

In addition, th ere are now enclosed : copy of a lette r from Special Prosecutor Jaworski to me dated September 4, 

1974 (a portion of th is lette r w as quoted by me to the press on September 8,1974, 

but the enclosure provides the full te xt.) copy of a memorandum furnished by Special Pros ecutor Jaworsk i, which had 

been prep ared for him by Deputy Special Prosecutor Henry Ruth und er date of 

September 3, 1974, which was released from the White House on September 10, 

1974. This is the only information supplied in written form to the Pre sident which 

rela tes to questions such as five, six, or seven.

Sincerely yours, Philip W. Buchen, 

Counsel to the President.

Enclosures.

U.S. Department of J ustice, 

Washington, D.C., Septemb er 4,1914.

Philip W. Buchen, Esq.,

Counsel to the President,

The White House,

Washington, D.C.

Dear Mr. B uchen : You have inquired as to my opinion regarding the length 

of delay th at would follow, in the event of an indictment of former President 

Richard M. Nixon, before a trial could reasonably be ha d by a fa ir an d imp artial 

jury as g uarante ed by the Constitution. The factual situation regarding a tri al of Richard M. Nixon within con stitutional bounds, is unprecedented. It is especially unique in view of the recent 

House Jud icia ry Committee inquiry on impeachment, resulting in a unanimous 

adverse finding to Richard M. Nixon on the Article involving obstruction of 

justice. The massive publicity given the hearing s and the findings that ensued, 

the reversal of judg men t of a number of the members of the Republican Party 

following release of the Jun e 23 tape recording, and their stat ements carried 

nationwide, and finally, the resignatio n of Richard M. Nixon, require a delay, 

before selection of a jury is begun, of a period from nine months to a year, and 

perhaps even longer. This judgment is pred icated on a review of the decisions of 

United States Courts involving prejudicial pre-trial publicity. The Government’s 

decision to pursue impeachment proceedings and the tremendous volume of television, radio and newspaper coverage given thereto , are factors emphasized by 

the Courts in weighing the time a trial can be had. The complexities involved in 

the process of selecting a jur y and the time it will tak e to complete the process, 

I find difficult to estima te a t th is time.
190

The situ atio n involving Richard M. Nixon is readily distinguishable from the 

facts involved in the case of United Sta tes v. Mitchell, et al, set for tri al on September 30th. The defe ndants in the Mitchell case were indic ted by a grand 

jur y operating in secret session. They will be called to tria l, unlike Richard M. 

Nixon, if indicted, without any previous adverse finding by an investiga tory 

body holding public hearing s on its conclusions. It is precisely the condemnation 

of Richard M. Nixon already made in the impeachment process, th at would make 

it un fair to the defe ndants in the case of United Sta tes v. Mitchell, et al, for Richard M. Nixon now to be joine d as a co-conspirator, should it be concluded 

that an indictment of him w as proper.

The United States v. Mitchell, et al, tri al will within itself generate new publicity, some undoubtedly pre judicia l to Richard M. Nixon. I bear this in mind 

when I estimate the earlie st time of tri al of Richard M. Nixon under his constitution al guara ntees, in the event of indictment, to he as indicate d above.

If fu rth er information is desired, please advise me.

Sincerely,

Leon J aworski, 

Special Prosecutor.

Memorandum

September 3,1974. T o: Leon Jaworski.

Fr om : H enry Ruth.

Sub ject: Mr. Nixon.

Tho following matter s are still under investiga tion in thi s Office and may 

prove to have some direct connection to activities in which Mr. Nixon is 

personally involved:

1. Tax deductions relating to the gift of pre-Presidential papers.

2. The Colson obstruction of ju stic e plea in the Ellsberg matter.

3. The tra nsfer of the national secu rity wire tap records from the FB I to the 

White House.

4. The in itiating of wire tapping of John Sears.

5. Misuse of IRS information.

6. Misuse of IRS through attempted initiation of audits as to “enemies.”

7. The d airy industry pledge and its rela tionship to the price supp ort change.

8. Filing of a challenge to the Washington Post ownership of two Florida 

television stations.

9. False and evasive testim ony at the Kleindienst confirmation hearing s as to 

White House partici pation in Departm ent of Jus tice decisions about ITT.

10. The handling of campaign contributions by Mr. Rebozo for the personal 

benefit of Mr. Nixon.

None of these matter} at the moment rises to the level of our ability to prove 

even a probable criminal violation by Mr. Nixon, but I thought you ought to know 

which of t he pending investigations were even remotely connected to Mr. Nixon. 

Of course, the Wa terg ate cover-up is the subjec t of a sep ara te memorandum.

A pp endix 2

There follows copies of all pertinent legislation introduced concerning the pardon o f Richard M. Nixon, former President of th e United 

States, the issuance of additional pardons to persons involved in 

Watergate-related activities, the ability of the Special Prosecutor to 

make public the information he has compiled relating to the alleged 

criminal conduct of the former President, and the public disclosure of 

all W atergate-related documents and tapes which were in the custody 

of the United States.
191

93d C O N G R E S S 

2d S ession H. RES. 136 1

IN TH E HOU SE OF RE PR ES EN TA TI VE S 

S ep te mb er 11,1 974

Mr. Owens submitted the following resolution; which was referred to the Committee on the Judiciary

RESOLUTION

1 Resolved, That it is the sense of the House of Repre2 sentatives that Special Prosecutor Leon Jaworski—

3 (1) should proceed with whatever criminal in4 vestigation and legal action he considers to he appro5 priate with respect to the conduct of Richard Nixon from 

G Jan uary 20, 1969, through August 9, 1974, including

7 proceeding to any indictment or indictments which may

8 be justified by evidence presented to the grand ju ry ; and

9 (2) should, a t such time and in such manner as he

10 deems to be proper and appropriate, release and make

11 part of the public record whatever evidence he may have

12 in his possession with respect to the conduct of Richard
192

• 2

1 M. Nixon from January 20, 1969, through August 9,

2 1974.

3 Sec. 2. It is further the sense of the House of Repre4 sentatives that the fundamental principle of equal justice

5 under law will he damaged, not served, by the granting of

6 Presidential pardons at this time to other individuals charged

7 with or convicted of offenses against the United States with

8 respect to the Watergate matter.
193

93d CONGRESS 

2d Session H. RES. 1 3 6 3

IN TH E HOUSE OF RE PR ES EN TA TI VE S 

September 12,1974

Ms. Abzdo (for herself, Mr. Radillo, Mr. Eilbero, Mr. Helstoski, Mr. Heciiler

of West Virginia, Mr. Dellvms, Mr. Rosenthal, Ms. Holtzman, Mr. 

Koch, Mr. Stokes, and Mr. Symington) submitted the following resolutio n; which was referred to the Committee on the Judic iary

RESOLUTION

1 Resolved, That the President of the United States is

2 hereby requested to furnish the House, within ten days, with

3 the following information:

4 1. Wh at are the specific offenses against the United

5 States for which a pardon was granted to Richard M. Nixon

6 on September 8, 19741

7 2. Wh at are the certain acts or omissions occurring

8 before his resignation from the office of President for which

9 Richard Nixon had become liable to possible indictment and

10 trial for offenses against the United States, as stated in your

11 Proclamation of P ard on1?

V

44 -2 7 4 0 - 75 - 14
194

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

2

3. Did you or your representatives have specific knowledge of any formal criminal charges pending against Richard M. Nixon prior to the issuance of the pardon? If so, what 

were these charges?

4. Did Alexander Ila ig refer to or discuss a pardon for 

Richard M. Nixon with Richard M. Nixon or representatives 

of Mr. Nixon at any time during the week of August 4, 

1974, or a t any subsequent time? If so, what promises were 

made or conditions set for a pardon, if any? If so, were tapes 

or transcriptions of any kind made of these conversations or 

were any notes taken? If so, please provide such tapes, transcriptions, or notes.

5. When was a pardon for Richard M. Nixon first referred to or discussed with Mr. Nixon, or representatives 

of Mr. Nixon, by you or your representatives or aides, including the period when you were a Member of Congress 

and Vice President?

6. Who participated in these and subsequent discussions 

or negotiations with Richard M. Nixon or his representatives 

regarding a pardon, and at what specific times and locations?

7. Did you consult with Attorney General William 

Saxbe or Special Prosecutor Leon Jaworski before making 

the decision to pardon Richard M. Nixon and, if so, what 

facts and legal authorities did they give you?

8. Did you consult with the* Vice Presidential nominee,
195

3

1 Nelson Rockefeller, before making the decision to pardon

2 Richard M. Nixon and, if so, w hat facts and legal authorities

3 did he give you?

4 9. Did you consult with any other attorneys or pro5 fessors of law before making the decision to pardon Richard 

G M. Nixon, and, if so wha t facts or legal authorities did

►

7 they give you?

8 10. Did you or your representatives ask Richard M.

9 Nixon to make a confession or statement of criminal guilt,

10 and if so, w hat language was suggested or requested by you,

11 your representatives, Mr. Nixon, or his representatives? Was

12 any statem ent of any kind requested from Mr. Nixon in ex13 change for the pardon, and, if so, please provide the sug14 gested or requested language?

15 11. Was the statement issued by Richard M. Nixon

16 immediately subsequent to announcement of the pardon

17 made known to you or your representatives prior to its

18 announcement, and was it approved by you or your

19 representatives?

* 20 12. Did you receive any repo rt from a psychiatrist or

21 other physician stating that Rich ard M. Nixon was in other

* 22 than good health? If so, please provide such reports.
93d CONGRESS 

2d Session H. RES. 1 3 6 7

IN TI IE HOUSE OF RE PR ES EN TA TIVE S 

September 16,1974

Ms. Abzuo (for herself, Mr. Badillo, Mr. .John L. Burton, Mr. Dellums, Mr. 

Eilberg, Mr. Heciiler of West Virginia, Mr. Helstoski, Ms. Holtzman, 

Mr. Koch, Mr. Rosenthal, Mr. Stark, Mr. Stokes, Mr. Symington, and 

Mr. Charles H. Wilson of California) submitted the following resolution; 

which was referred to the Committee on the Judicia ry

RESOLUTION

1 Resolved, That the President of the United States is

2 hereby requested to furnish the House, within ten days, with

3 the following information:

4 1. Did you or your representatives have specific knowl5 edge of any formal criminal charges pending against Richard

6 M. Nixon prior to issuance of the pardon? If so, what were

7 these charges ?

8 2. Did Alexander Haig refer to or discuss a pardon for

9 Richard M. Nixon with Richard M. Nixon or representa10 fives of Mr. Nixon at any time during the week of August 4,

11 1974, or a t any subsequent time? If so, what promises were
197

2

1 made or conditions set for a pardon, if any ? If so, were tapes

2 or transcriptions of any kind made of these conversations or

3 were any notes taken1? If so, please provide such tapes,

4 transcriptions or notes.

5 3. When was a pardon for Richard M. Nixon first re6 ferred to or discussed with Richard M. Nixon, or representa7 tives or Mr. Nixon, by you or your representatives or aides,

8 including the period when you were a Member of Congress

9 or Vice Pre sident 1?

10 4. Who participated in these and subsequent discussions

11 or negotiations with Richard M. Nixon or his representa12 tives regarding a pardon, and at what specific times and

13 locations'?

14 5. Did you consult with Atto rney General William

15 Saxbe or Special Prosecutor Leon Jaw orsk i before making

16 the decision to pardon Richard M. Nixon and, if so, what

17 facts and legal authorities did they give to you?

18 6. Did you consult with the Vice Presidential nominee,

19 Nelson Rockefeller, before making the decision to pardon

20 Richard M. Nixon and, if so, wh at facts and legal authorities

21 did he give to you?

22 7. Did you consult with any other attorneys or profes23 sors of law before making the decision to pardon Richard M.

24 Nixon, and, if so, what facts or legal authorities did they

25 give to you?
HIS

3

1 8. Did you or your representatives ask Richard M.

2 Nixon to make a confession or statement of criminal guilt,

3 and, if so, what language was suggested or requested hy

4 you, your representatives, Mr. Nixon, or his representatives?

5 Was any statement of any kind requested from Mr. Nixon

6 in exchange for the pardon, and, if so, please provide the

7 suggested or requested language.

8 9. Was the statement issued by Richard M. Nixon im9 mediately subsequent to announcement of the pardon made

10 known to you or your representatives prior to its announce11 ment, and was it approved by you or your representatives?

12 10. Did you receive any report from a psychiatrist or

13 other physician stating that Richard M. Nixon was in other

14 than good health? If so, please provide such reports.
93d CONGRESS 

2d S ession H. RES. 1 3 6 8

IN TH E HOU SE OF RE PR ES EN TA TIVE S 

September 16,1 974

Ms. Holtzman submitted the following resolution; which was referred to the 

Committee on the Ju diciary

RESOLUTION

\\ hereas President Gerald R. Ford granted a full, free, and absolute pardon to Richard Nixon prior to any indictment and 

it was reported that President Ford was considering similar 

pardons for the “W atergate” defendants, which would have 

precluded any trial of some of them, and

Whereas these events have aroused serious public concern and 

widespread public suspicion, and

Whereas it is essential to restore public confidence in the integrity 

of governmental processes: Now, therefore, be it

1 licsolved, That it is the sense of the House of Represent2 atives that President Gerald R. Ford should make a full

3 and voluntary disclosure to the Committee on the Judiciary

4 of all the circumstances surrounding and the reasons promptb ing his grant of a pardon to Richard Nixon on September 8,
200

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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

o

1974, .and should make available for this purpose all notes, 

documents, tape recordings, memorandums, and other things 

in his possession or control, and the testimony of witnesses 

which the Committee on the Judiciary deems necessary for 

a lull understanding of the facts. Such disclosure should include any communications that took place, commitments 

that were made, and understandings that were reached at 

any time (including the time before which Gerald R. Ford 

was nominated for Vice President) between Gerald R. Ford 

or anyone acting on his behalf and Richard Nixon or anyone 

acting on his behalf, regarding any aspect of clemency or 

relief from punishment in any form, whether by pardon or 

otherwise, for any wrongful acts or crimes that may have 

been committed by Richard Nixon or any of his aides or 

associates. '

Sec. 2. In the event such disclosure has not been made 

within fifteen days after the adoption of this resolution, the 

Committee on the Judiciary should investigate fully all the 

circumstances surrounding and the reasons prompting President Gerald R. Ford’s grant of a pardon to Richard Nixon.

Sec. 3. The Committee on the Judiciary should report 

to the House of Representatives its findings of fact, whether 

such facts are obtained under the first section or section 2 of 

this resolution, together with an analysis of the constitutionality and legal validity of the pardon granted to Richard 

Nixon, to the House of Representatives.
201

93d C O N G R E S S 

2d Sessio n H. RES. 1 3 7 0

IN TH E HOUSE OF RE PR ES EN TA TIVE S 

September 17,1 974

Mr. Conyers submitted the following resolution; which was referred to the 

Committee on the Judiciary

RESOLUTION

1 Resolved, That the President is directed to furnish to the

2 House of Representatives the full and complete information

3 and facts upon which was based the decision to grant a par4 don to Richard M. Nixon, including—

5 (1) any representations made by or on behalf of

6 Richard M. Nixon to the President;

7 (2) any information or facts presented to the Pres8 idcnt with respect to the mental or physical health of

9 Richard M. Nixon;

10 (3) any information in possession or control of the

11 President with respect to the offenses which were al-
202

1

2

3

4

5

6

7

8

9

10

11

12

legedly committed by Richard M. Nixon and for which 

a pardon was granted;

(4) any representations made by or on behalf of 

the President to Richard M. Nixon in connection with 

a pardon for alleged offenses against the United States. 

The President is further directed to furnish to the House of 

Representatives the full and complete information and facts 

in his possession or control and relating to any pardon which 

may be granted to any person who is or may be charged or 

convicted of any offense against the United States within the 

prosecutorial jurisdiction of the Office of Watergate Special 

Prosecution Force.
93d CONG RE SS 

2d Session H. RES. 1 3 7 5

IN TH E HOU SE OF RE PR ES EN TA TIVE S

September 18,1974

Mr. Owens (for himse lf, Mr. J ohn L. Burton, Mr. Brown of ( alifom iii, Mr. 

Conyeiis, Mr. Dellums, Mr. Harrington, Mr. II echler of West Virgin ia, 

Mr. Ko cn, Mr. Mitchell of Mar yland. Mr. Bees, Mr. Rosenthal, Ms. 

Schroeder, and Mr. Stark) su bmitted the follow ing resolution: which was 

ref erred to the Committee on the Jud iciar y

RESOLUTION

1 Resolved, That it is the sense of the House of Repre2 sentatives tha t the Special Prosecutor of the Watergate

3 Special Prosecution Force—

4 (1) should proceed with whatever criminal in5 vestigation and legal action he considers to he appro6 priate with respect to the conduct of Richard Nixon from

7 Jan uary 20, 1969, through August 9, 1974, including

8 proceeding to any indictment or indictments which may

9 be justified by evidence presented to the grand ju ry ; and

10 (2) should, at such time and in such manner as he

11 deems to be proper and appropriate, release and make
204

2

1 part of (he public record whatever evidence he may have

2 in his possession with respect to the conduct of Richard

3

 M. Nixon from Jan uary 20, 1969, through August 9,

4 1974.

5

 .Sec. 2. It is further the sense of the House of Rep6 resentatives that the fundamental principle of equal justice

7 under law will be damaged, not served, by the granting of

8 Presidential pardons at this time to other individuals charged

9

 with or convicted of offenses against the United States with 

10 respect to the Watergate matter.
205

93d CONGRESS 

2d Session H. RES. 1 3 8 2

IN TH E HOUSE OF RE PR ES EN TA TI VE S 

September 23,1974

Mr. Howard submitted the following resolution; which was referred to the 

Committee on the Judiciary

RESOLUTION

1 Resolved, That it is the sense of the House of Repre2 sentatives that Special Prosecutor Leon Jaworski—

3 (1) should proceed with whatever criminal in4 vestigation and legal action he considers to be appro5 priate with respect to the conduct of Richard Nixon from

6 January 20, 1969, through August 9, 1974, including

7 proceeding to any indictment or indictments which may

8 be justified by evidence presented to the grand ju ry ; and

9 (2) should, at such time and in such manner as he

10 deems to be prop er and appropriate, release and make

11 part of the public record whatever evidence he may have

12 in his possession with respect to the conduct of Richard
200

2

1 M. Nixon from January 20, 1969, through August 9,

2 1974.

3 Sec. 2. It is further the sense of the House of Repre4 sentatives that the fundamental principle of equal justice

5 under law will he damaged, not served, by the granting of

6 Presidential pardons at this time to other individuals charged

7 with or convicted of offenses against the United States with

8 respect to the W atergate matter.
207

93n CONGRESS 

2d Session H. RES. 1 3 8 5

IN TH E HOUSE OF RE PR ES EN TA TI VE S 

S ep te mbe r 23,1974

Mrs. Mink submitted the following resolution; which was referred to the Committee on the Judiciary

RESOLUTION

1 Resolved, Tha t it is the sense of the House of Repre2 sentatives that Special Prosecutor Leon Jaworski—

3 (1) should proceed with whatever criminal in4 vestigation and legal action he considers to be appro5 priate with respect to the conduct of Richard Nixon

6 from January 20, 19G9, throug h August 9, 1974, in7 eluding proceeding to any indictment or indictments

8 which may be justified by evidence presented to the

9 gran t jury regardless of the p ard on; and

10 (2) should, at such time and in such m anner as he

11 deems to be proper and appropriate, release and make

12 part of the public record whatever evidence he may have
208

2

1 in his possession with respect to the conduct of Richard

2 M. Nixon from January 20, 1969, through August 9,

3 1974, land file such a report to the Congress of the

4 United States.

5 Sec. 2. It is further the sense of the House of Repre6 sentatives that the fundamental principle of equal justice

7 under law will he grievously damaged by the granting of

8 Presidential pardons to other individuals charged with or

9 convicted of offenses against the United States with respect 

10 to the W atergate matter.
209

93d CONGRESS 

2d Session H. RES. 1 4 5 0

IN TH E HOUSE OF RE PR ES EN TA TIVE S 

O ctober 16,1974

Ms. Abzuo submitted the following resolution; which was referred to the Committee on the Judiciary

RESOLUTION

1

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Resolved, That it is the sense of the House of Representatives that the Special Prosecutor of the Watergate 

Special Prosecution Force—

(1) should, notwithstanding the Presidential pardon 

issued to Richard M. Nixon on September 8, 1974, proceed to institute all appropriate legal actions with respect 

to the conduct of Richard M. Nixon from Jan uary -20, 

1969, through August 9, 1974, including but not limited 

to, the issuance of any indictment or indictments which 

may be justified by the evidence presented to or that may 

he presented to a Federal grand jur y; and

(2) should, at such time as deemed appropriate by

4 4-2 74 0 - 75 - 15
210

2

1 the Special Prosecutor, but not later than sixty days after

2 the conclusion of all criminal proceedings within the

3 jurisdiction of the Watergate Special Prosecutor’s Office,

4 issue to the public a full and complete report concerning

5 all the matters that the Watergate Special Prosecution

6 Force has investigated since its establishment, including

7 the conduct of Richard M. Nixon from Jan uary 20,

8 1969, through August 9, 1974. Such report shall in9 elude, hut not be limited to, transcriptions of all tapes,

10 and all documents, and other evidentiary material avail11 able to the Special Prosecution Force since its estahlish12 ment.

13 Sec. 2. It is further the sense of the House of Rep14 resentatives that the fundamental principle of equal justice

15 under law will be damaged, not served, by the granting of

16 Presidential pardons at this time to other individuals charged

17 with or convicted of offenses against the United States with

18 respect to the Watergate matter.
211

93i» CONGRESS 

2d S ession H.J.R ES. 1 1 1 8

IN TH E HO USE OF RE PR ES EN TA TI VE S 

September 11,1 974

Mr. Gude introduced the following joint resolution; which was referred to the 

Committee on the Judiciary

JOINT RESOLUTION

To require the Watergate Special Prosecution Force to make 

available to the public a report on all information it has concerning Richard M. Nixon in offenses against the United 

States.

1 Resolved by the Senate and House of Representatives

2 of the United States of America in Congress assembled,

3 Section 1. The Office of the Watergate Special Pros4 edition Force shall, in addition to its existing responsihili5 ties, compile, prepare, and publish a full and complete report

6 stating in detail all evidence in its possession which sets forth,

7 reflects, refers to, or contains any information concerning

8 any involvement of Richard M. Nixon in any offense against

9 the United States.
212

2

1 Sec. 2. Such report shall be printed and made avail2 able to the public no later than ninety days after the date 

2 of adoption of this resolution.
213

93 d CONGRESS 

2d Session H. J. RES. 1 121

IN TH E HOUSE OF RE PR ES EN TA TI VE S 

September 12,1 974

Mr. Frenzel introduced the following joint resolution; which was referred 

to the Committee on the Judiciary

JOINT RESOLUTION

To require the Watergate special prosecution force to make 

available to the public a report on all information it has 

concerning Richard M. Nixon in offenses against the United 

States.

1 Resolved by the Senate and House of Representatives

2 of the United States of America in Congress assembled,

3 Section 1. The Office of the Watergate Special Pros4 edition Force shall, in addition to its existing responsibili5 ties, compile, prepare, and publish a full and complete report

6 stating in detail all evidence in its possession which sets forth,

7 reflects, refers to, or contains any information concerning

8 any involvement of Richard M. Nixon in any offense against

9 the United States.
214

2

1 Sec. 2. Such report shall be printed and made available

2 to the public no later than ninety days after the date of 

d adoption of this resolution.
215

93d CONGRESS 

2d Session H. J. RES. 1 1 2 6

IN TH E HOU SE OF RE PR ES EN TA TIVE S

September 16,1974

Mr. Gude (for himself, Mr. Badillo, Mr. Sakasin, Ms. Abzuq, Mr. Fauntroy, 

Mr. Reuss, Mr. Roybal, Mr. Coughlin. Mr. S ymington, Mr. Chari.es H. 

Wilson of California, Mr. Conable, Mr. II echler of West V irginia, Mr. 

Gray, Mr. Gibbons, Mr. Sisk, Mr. Won Pat, and Mr. Culver) introduced 

the following joint resolution; which was referred to the Committee on the 

Judiciary

JOINT RESOLUTION

To require the Watergate Special Prosecution Force to make 

available to the public a report on all information it has concerning Richard M. Nixon in ollenses against the United 

States.

1 Resolved by the Senate and House of Representatives

2 of the United States of America in Congress assembled,

3 Section 1. The Office of the Watergate Special Pros4 ecution Force shall, in addition to its existing responsibili5 ties, compile, prepare, and publish a full and complete report

6 stating in detail all evidence in its possession which sets forth.

7 reflects, refers to, or contains any information concerning
216

2

1 any involvement of Richard M. Nixon in any offense against 

~ the United States.

Sec. 2. Such report shall be printed and made avail4

 able to the public no later than ninety days after the date 

of adoption of this resolution.
217

93d CONGRESS 

2d Session H. J. RES. 1 1 3 0

IN T1IE HOUSE OF RE PR ES EN TA TI VE S

September 18,1974

Mr. Gude (for himself, Mr. Harrington, Mr. Forsythe, Mr. Mitchell of 

Maryland, Mr. Dinoell, Mr. Moakley, and Mrs. Heckler of Massachusetts) introduced the following joint resolution; which was referred to the 

Committee on the J udiciary

JOINT RESOLUTION

To require the Watergate Special Prosecution Force to make 

available to the public a report on all information it has concerning Richard M. Nixon in offenses against the I nited 

States.

1 Resolved by the Senate and House of Representatives

2 of the United States of America, in Congress assembled,

3 Section 1. The Office of the Watergate Special Pros4 ecution Force shall, in addition to its existing responsibili5 ties, compile, prepare, and publish a full and complete report

6 stating in detail all evidence in its possession which sets forth,

7 reflects, refers to, or contains any information concerning

8 any involvement of Richard M. Nixon in any offense against

'9 the United States.
218

2

1 Sec. 2. Such report shall be printed and made avail2 able to the public no later than ninety days after the date

3 of adoption of this resolution.
219

93d CONGRESS 

2d Session H. J. RES. 1 1 3 9

IN TH E HOUSE OE RE PR ES EN TA TI VE S 

S ep te mbe r 23,1974

Mr. Gude (for himself, Mr. Seibereino, Mr. Fisi i, and Mr. Koch) introduced 

the following joint resolution; which was referred to the Committee on 

the Judiciary

JOINT RESOLUTION

To require the Watergate Special Prosecution Force to make 

available to the public a report on all information it has 

concerning Richard M. Nixon in offenses against the United 

States.

1 Resolve d by the Sen ate and House of Representa tives

2 of the United States of Am erica in Congress assembled,

3 Section 1. The Office of the Watergate Special Prose4 cution Force shall, in addition to its existing responsibilities,

5 compile, prepare, and publish a full and complete report

6 stating in detail all evidence in its possession which sets forth,

7 reflects, refers to, or contains any information concerning any

8 involvement of Richard M. Nixon in any offense against the

9 United States.
220

2

1 Sec. 2. Such report shall be printed and made available

2 to the public no later than ninety days after the date of

3 adoption of this resolution.
221

93d CONGRESS I f I n r n < - H. J. RES. 1 1 4 2

IN TH E HOUSE OF RE PR ES EN TA TIVE S

September 23,1974

Mr. Robison of New York introduced the following joint resolution; which was 

referred to the Committee on the Judiciary

JOINT RESOLUTION

To require the Watergate Special Prosecution Force to make 

available to the public a report on all information it has 

concerning Richard M. Nixon in offenses against the United 

States.

1 Resolve d by the Sen ate and House of Represen tatives

2 of the United Sta tes of Am erica in Congress assembled,

3 Sect ion 1. The Office of the Watergate Special Pro4 secution Force shall, in addition to its existing responsibili5 ties, compile, prepare, and publish a full and complete report

6 stating in detail all evidence in its possession which sets forth,

7 reflects, refers to, or contains any information concerning any

8 involvement of Richard M. Nixon in any offense against the

9 United States.
222

2

1 Sec. 2. Such report shall he printed and made avail2 able to the public no later than ninety days after the date

3 of adoption of this resolution.
93d

223

H. J. RES. 1 1 4 9

IN TH E HO USE OF RE PR ES EN TA TIVE S

Mr.

k

September 30,1974

Macdonald introduced the following joint resolution; which was referred 

to the Committee on the Judiciary

JOINT RESOLUTION

Expressing the sense of the Congress in favor of continued 

legal action against Richard M. Nixon and in favor of a 

test of the legality of the pardon granted him.

1

Resolved by the Senate and House of Representatii es

o

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of the United States of America in Congress assembled,

That Special Prosecutor Leon Jaw orski

4

(1) should proceed with whatever criminal investi5

gation and legal action he considers to be appropriate

6

with respect to the conduct of Richard M. Nixon horn

7

Jan uary 20, 1969, through August 9, 1974, including

8

proceeding to any indictment or indictments which may

r 9

be justified by evidence presented to the grand jury;

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•

and
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11

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(2) should, at such time and in such manner as he 

deems to he proper and appropriate, release and make 

part of the public record whatever evidence he may. 

have in his possession with respect to the conduct of 

Richard M. Nixon from Jan uary 20, 19G9, through 

August 9, 1974; and

(3) should seek a test of the legality of the pardon 

granted to Richard M. Nixon on September 8, 1974, 

in view of the agreement under which the President 

waived his constitutional powers to limit the independence of the Special Prosecutor.

226

93d CONGRESS 

2d Session H. J. RES. 1 1 5 2

IN TH E HOUSE OF RE PR ES EN TA TI VE S

S ep te mbe r 30,197 4

Mr. T hompson of New Jersey introduced the following joint resolution; which 

was referred to the Committee on the Judiciary

JOINT RESOLUTION

To require the Watergate Special Prosecution Force to make 

available to the public a report on all information it has 

concerning Richard M. Nixon in offenses against the United 

States.

1 Resolved by the Sen ate and House of Representatives

2 of the Uni ted States of Am erica in Congress assembled,

Sectio n 1. The Office of the Watergate Special Pros4 ecution Force shall, in addition to its existing responsibili5 ties, compile, prepare, and publish a full and complete report

6 stating in detail all evidence in its possession which sets forth. 

I reflects, refers to, or contains any information concerning
227

2

1 any involvement of Richard M. Nixon in any offense against

2 the United States.

3 Sec. 2. Such report shall he printed and made avail4 able to .the public no later than ninety days after the date

5 of adoption of this resolution.
228

93d CONGRESS

2d S ess io n H. J. RES, 1 155

IN TH E HOUSE OF RE PR ES EN TA TIVE S 

O ctober 3,1974

Mr. Gude (fo r himself and Mr. Stokes) introduced the following resolution; 

which was referred to the Committee on the Judiciary

JOINT RESOLUTION

To require the Watergate Special Prosecution Force to make 

available to the public a report on all information it has concerning Richard M. Nixon in offenses against the United 

States.

1 Resolved by the Senate and House of Representatives

2 of the United States of America in Congress assembled,

3 Sect ion 1. The Office Of the Watergate Special Pros4 ecution Force shall, in addition to its existing responsibili5 ties, compile, prepare, and publish a full and complete report

6 stating in detail all evidence in its possession which sets forth, 

1 reflects, refers to, or contains any information concerning

8 any involvement of Richard M. Nixon in a ny offense against

9 the United States.
229

2

1 Sec. 2. Such report shall be printed and made avail2 able to the public no later than ninety days after the date

3 of adoption of this resolution.
230

93d CONGRESS 

2d Session H. J. RES. 1 1 5 7

IN THE HOUSE OE RE PR ES EN TA TIVE S

October 7,1974

Mr. Ruppe introduced I lie following joint resolution; which was referred to the 

Committee on the Judiciary

JOINT RESOLUTION

To require the Watergate Special Prosecution Force to make 

available to the public a report on all information it has concerning Richard M. Nixon in offenses against the United 

States.

1 ltesolved by the Senate and House of Representatives

2 of the United States of America in Conyress assembled,

3 Section 1. The Office of the Watergate Special Prose4 cution Force shall, in addition to its existing responsibilities,

5 compile, prepare, and publish a full and complete report stat6 ing in detail all evidence in its possession which sets forth.

7 reflects, refers to, or contains any information concerning any

8 involvement of Richard M. Nixon in any offense against the

9 United States.
231

1 Sec. 2. Such report shall be printed and made available

2 to the public no later than ninety days alter the date of adopt3 tion of this resolution.
232

93d CONGRESS 

2d S essio n H. J. RES. 1 1 5 9

IN TH E HOUSE OF RE PR ES EN TA TIVE S

O ctober 8 , 1974

Mr. Gilman introduced the following joint resolution; which was referred 

to the Committee on the Judiciary

JOINT RESOLUTION

To require the Watergate Special Prosecution Force to make 

available to the public a report on all information it has 

concerning Richard M. Nixon in offenses against the United 

States.

1 Reso lved by the Sen ate and Hou se of Represen tatives

2 of the United Sta tes of Am erica in Congress assembled,

3 Section 1. The Office of the Watergate Special Pros4 ecution Force shall, in addition to its existing responsibili5 ties, compile, prepare, and publish a full and complete report

6 stating in detail all evidence in its possession which sets forth,

7 reflects, refers to, or contains any information concerning any

8 involvement of Richard M. Nixon in any offense against the

9 United States.
233

2

1 Sec. 2. Such report shall be printed and made avail2 able to the public no later than ninety days after the date 

2 of adoption of this resolution.
234

93d C O N G R E S S 

2d S essio n H. J. RES. 1 1 6 8

IN TH E HOUSE OF RE PR ES EN TA TIVE S

October 17, 1974

Mr. Quie introduced the following joint resolution; which was referred to the 

Committee on the Judic iary

JOINT RESOLUTION

To require the Watergate Special Prosecution Force to make 

available to the public a report on all information it has concerning Richard M. Nixon in offenses against the United 

States.

1 Resolved by the Senate and House of Representatives

2 of the United States of Am erica in Congress assembled,

3 Section 1. The Office of the Watergate Special Pros4 ecution I orce shall, in addition to its existing responsibili5 ties, compile, prepare, and publish a full and complete report

6 stating in detail all evidence in its possession which sets forth,

7 reflects, refers to, or contains any information concerning

8 any involvement of Richard M. Nixon in any offense against

9 the United States.
235

2

1 Sec. 2. Such report shall be printed and made avail2 able to the public no later than ninety days after the date 

2 of adoption of this resolution.
236

93d CONGRESS

2d S ession H. CON. RES. 62 9

IN TH E HOUSE OE RE PR ES EN TA TI VE S 

S eptember 11,1974

Mr. Bingham submitted the following concurrent resolution;, which was 

referred to the Committee on the Judiciary

CONC URRENT RESOLUTION

Whereas the unexpected Presidential pardon of Richard M. 

Nixon for any crime he may have committed while holding 

the Office of Preside nt has again thrust the Watergate 

scandal, to the forefront of national attention; and

Whereas the action of President Ford in granting a full and complete pardon to Richard Nixon has been a divisive force 

reopening the wounds of Watergate President Ford has 

pledged to heal; and

Whereas the pardon of Richard Nixon will tend to restrict and 

hinder the full revelation of Richard Nixon’s involvement in 

the Watergate affair; and

Whereas, the White House has indicated that wholesale pardons 

for all aides and assistants of former Presid ent Nixon, whether 

convicted, indicted, or implicated in the Watergate affair, 

are under consideration; and
237

9

Whereas, the American people are entitled to have the full story 

of Watergate laid before them; and

Whereas, it is becoming increasingly clear that the President’s 

a(^Sn\<\ iril resj^ ^to'4l iclia rd 'N ix on and contemplated action with respect to other Watergate figures has caused the 

American people gre at consternation and concern about the 

integrity of this country’s criminal justice system, and

Whereas, the courts have shown lehiency and mercy when it is 

in the interest of justice; and

c V- • ' . 'f , ;

Whereas, the American concept of justice is predicated upon 

equality under the law: Therefore be it

1 Resolved, by the House of Representatives (the Senate

2 Tbflt jfttBgnizing the President’s constitutional

3, power to gran t pardons, it is the sense of Congress tha t the

4. pr es id ent should defer consideration of any additional par5 • \dons until after the facts about Watergate have been revealed

6 through the unfettered operation of the criminal justice 

t system.
93d CONGRESS 

2d Session H. CON. RES. 63 0

IX TI IE HOUSE OF RE PR ES EN TA TI VE S 

S eptember 11,1 974

Mr. du Pont submitted the following concurrent resolution; which was referred 

to the Committee on the Judiciary

CONCURRENT RESOLUTION

1 Resolved by the House of Representatives (the Senate

2 concurring), That it is the sense of the Congress that the

3

 President should not grant blanket pardons with respect 

to Watergate related offenses or offenses being investigated

° by the Special Prosecutor.
239

93d CONGRESS 

2d Session H. CON. RES. 6 3 2

IN T1IE HO USE OF RE PR ES EN TA TI VE S

September 11,1974

Mr. Kocii submitted the following concurrent resolution; which was referred 

to the Committee on the Judiciary

CONCU RRENT RESOLUTION

1 Reso lved by the House of Representatives (the Sen ate

2 concurring), That it is the sense of Congress that the pardon

3 of Richard M. Nixon was wrongful and premature, and

4 that no further Watergate related pardons should he granted

5 prior to indictment, prosecution, and conviction, and then

6 . only on an individual basis where warranted by special

7 circumstances.
240

l)3o CONGRESS 

2d S ession H. CON. RES. 6 33

IN TI IE HOUSE OF RE PR ES EN TA TI VE S 

S ep te mbe r 11,1974

Mr. P eyser submitted the following concurrent resolution; which was referred 

to the Committee on the Judiciary

-

CONCURRENT RESOLUTION

Whereas the President of the United States, exercising his constitutional authority, has granted a full and complete pardon 

to Richard M. Nixon, former President of the United States, 

for all crimes which he committed or may have committed 

while in office; and

Whereas this action has caused great concern among the citizens 

of the United States; and

Whereas there remain others who were associated with what has 

come to be known as the Watergate affair who have been 

convicted of crimes or who face criminal prosecution as a 

result of involvement in the Watergate affair or for other

• possible criminal actions with which Richard Nixon was 

associated; and

Whereas the President of the United States has the authority 

to pardon, and may be considering pardoning others who 

were involved in the Watergate affair: Now, therefore, be it
241

2

1 Resolved, by the House of Representatives (the Senate

2 concurring), That it is the sense of the Congress that the

3 President not gran t any additional pardons to any individuals

4 convicted of, or facing prosecution in connection with the

5 Watergate affair, or other criminal-activities currently under

6 investigation by the Special Prosecutor.

4 4 -2 74 0 - 75 - 17
93d CONGRESS 

2d Session H. CON. RES. 6 36

TN TH E HOUSE OF RE PR ES EN TA TIVE S 

S ep te mb er 16,1 974

Mr. Addabbo submitted the following concurrent resolution; which was referred 

to the Committee on the Judiciary

CONCURRENT RESOLUTION

1 Resolved, by the House of Representatives (the Senate

2 concurring), That it is the sense of Congress that the pardon

3 of Richard M. Nixon was premature, and that no further

4 Watergate-related pardons should be granted prior to indict5

 ment, prosecution, and conviction, and then only on an indi6 vidual basis where warranted by special circumstances.

244

93d CONGRESS 

2d Session H. CON. RES. 6 4 4

IN TH E HOUSE OF RE PR ES EN TA TIVE S 

S ep te mb er 19,1 974

Mr. Steele submitted the following concurrent resolution; which was referred 

to the Committee on the Judiciary

CONCURRENT RESOLUTION

Wher eas the President of the I nited States, exercising his constitutional authority, has granted a full and complete pardon 

to Richard M. Nixon, former President of the United States, 

for all crimes which he committed or may have committed 

while in office; and

Whereas this action has caused great concern among the citizens 

of the United States; and

Whereas there remain others who were associated with what has 

come to be known as the Watergate affair who have been 

convicted of crimes or who face criminal prosecution as a 

result of involvement in the Watergate affair or for other 

possible criminal actions with which Richard Nixon was 

associated; and

Whereas the President of the United States has the authority 

to pardon, and may be considering pardoning others who 

were involved in the Watergate affair: Now, therefore, be it
245

2

1 Resolved by the House of Representatives (the Senate

2

 concurring), That it is the sense of the Congress that the

3 President not grant any additional pardons to any individuals

4 convicted of, or facing prosecution in connection with the

5 Watergate affair, or other criminal activities currently under 

() investigation by the Special Prosecutor.
246

93i» CONGRESS 

2d Session H. CON. RES. 6 46

IN TH E HOUSE OF RE PR ES EN TA TIVE S

S eptember 23,1974

Mr. Rinaldo submitted the following concurrent resolution; which was referred 

to the Committee on the Judiciary

CONC URRE NT RESOLUTION

1 Resolved by the House of Representatives (the Senate

2 concurring), That it is the sense of the Congress that no 

2 pardon should be granted for an offense against the United

4 States until after the person pardoned has been convicted

5 of the offense.
247

93d CONGRESS 

2d S ession H. R. 16619

IN TIIE HOUSE OF RE PR ES EN TA TI VE S 

September 11 ,197 4

Mr. McKinney introduced the following hill; which was referred to the Committee on the Judiciary

A BILL

To make available to Congress the information obtained by the 

Special Prosecutor.

1 Be it enacted by the Senate and House of Represcnta2 tives of the United States of America in Congress assembled,

3 That the Office of the Watergate Special Prosecution Force

4 transm it to the Speaker of the House of Representatives and

5 to the President pro tempore of the Senate, to be available

6 for inspection by all Members of Congress, all materials,

7 documents, and reports obtained, prepared, and compiled

8 by that office pursuant to part 0 of chapter I of title 28,

9 Code of Federal Regulations, section 0.1 (a ), 'subpart G -l ,

10 sections 0.37, 0.38, following a determination by the At11 torney General that the rights of parties named therein or

12 parties to related litigation will not be compromised.
93d CONGRESS V V T X 1 4

^ . oh j-p 16751

IN TH E HOUSE OF RE PR ES EN TA TIVE S 

September 19,1974

Mr. Koch (for himself and Mr. Harrington) introduced the following bill; 

which was referred to the Committee on the Judiciary

A BILL

To provide for public access to all Watergate-related facts produced by any investigation conducted by any Federal executive office and to all Watergate-related documents which 

were produced from Jan uary 20, 1969, through August 9, 

1974, and which were in the custody of the United States 

on August 9, 1974.

1 Be it enacted by the Senate and Hou se of Bepr esenta2 tives of the Uni ted States of America in Congress assembled,

3 That (a) the President of the United States shall, except

4 with regard to matters clearly vital to the national security

5 interests of the United States, provide as soon as practicable

6 full public access, in an adequate and effective manner, to—

7 (1) all facts, and related papers, documents, mem-
249

2

1 orandums, tape recordings, and transcripts, which are re2 lated to Waterga te matters and which have been or shall

3 be produced by any investigation conducted by any Fed4 eral executive office, department, or agency; and

5 (2) all Watergate-related papers, documents, mem6 orandums, tape recordings, and transcripts which were

7 produced during the period from Jan uary 20, 1969,

8 through August 9, 1974, which are not included in

9 paragraph (1 ), and which were in the custody of the 

0 United States on August 9, 1974.
93d CONGRESS 

2d Session H. R. 16756

IN TI IE HOUSE OF RE PR ES EN TA TI VE S

September 19,1974

Mr. McKinney (for himself, Mr. Badillo, Mr. Stark, Ms. Abzvg, Mr. Sarasin, 

Mr. Uellums, Mr. Mitchell of Maryland, Mr. Dingell, Mr. Frenzel, 

M rs. Heckler of Massachusetts, Mr. Lent, and Mr. Steelman) introduced 

the following bill; which was referred to the Committee on the Judic iary

A BILL

To make available to Congress the information obtained by the 

Special Prosecutor.

1 Be it enacted by the Sen ate and Hou se of Tiepresenta2 tines of the United Sta tes o f America in Congress assembled,

3 That tbe Office of the Watergate Special Prosecution Force

4 transmit to tbe Speaker of tbe House of Representatives and

5 to tbe President pro tempore of the Senate, to be available

6 for inspection by all Members of Congress, all materials,

7 documents, and reports obtained, prepared, and compiled

8 by that office pursuant to part 0 of chapter I of title 28,
251

1 Code of Federal Regulations, section 0 .1 (a ), subpart G -l ,

2 sections 0.37, 0.38, following a determination by the At3 torney General that the rights of parties named therein or

4 parties to related litigation will not be compromised.
252

93d CONGRESS 

2d Session H. R. 16794

IN TH E HOUSE OF RE PR ES EN TA TIVE S 

September 23,1974

Mr. Kocii (for himself, Mr. Breckinridge, Mr. Helstoski, Mr. Meeds, Mr. Nix, 

Mr. Rees, Mr. Riegle, Mr. Symington, and Mr. Charles Wilson of Texas) 

introduced the following b ill ; which was referred to the Committee on the 

Judiciary

A BILL

To provide for public access to all Watergate-related facts produced by any investigation conducted by any Federal 

executive office and to all Watergate-related documents 

which were produced from Jan uary 20, 1969, through 

August 9, 1974, and which were in the custody of the 

United States on August 9, 1974.

1 Be it enacted by the Senate and House of Representa2 tives of the United Sta tes o f Am erica in Congress assembled,

3 That (a) the President of the United States shall, except

4 with regard to matters clearly vital to the national security

5 interests of the United States, provide as soon as practicable

6 full public access, in an adequate and effective manner, to—•

7 (1) all facts, and related papers, documents, mem-
253

2

1 orandums, tape recordings, and transcripts, which are

2 related to Watergate matters and which have been or

3 shall be produced by any investigation conducted by

4 any Federal executive office, department, or agency;

5 and

6 (2) all W atergate-related papers, documents, mem7 orandums, tape recordings, and transcripts which were

8 produced during the period from Jan uary 20, 1969,

9 through August 9, 1974, which are not included in

10 paragraph (1 ), and which were in the custody of the

11 United States on August 9, 1974.
254

93d CONGRESS hI f 1 > 1 . r. 16798

IN TH E HO USE OF RE PR ES EN TA TI VE S 

September 23,1974

Mr. McKinney (fo r himself and Mr. Anderson of Illinois) introduced the following bill; which was referred to the Committee on the Judiciary

A BILL

To make available to Congress the information obtained by the 

Special Prosecutor.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 That the Office of the Watergate Special Prosecution Force

4 transm it to the Speaker of the House of Representatives and

5 to the President pro tempore of the Senate, to be available

6 for inspection by all Members of Congress, all materials,

7 documents, and reports obtained, prepared, and compiled

8 by that Office pursuant to part 0 of chapter I of title 28,

9 Code of Federal Regulations, section 0.1 (a ), subpart G -l ,
255

2

1 sections 0.37, 0.38, following a determination by the Attor2 ney General that tlie rights of parties named therein or

3 parties to related litigation will not be compromised.
250

93d CONGRESS 

2d S ession H. R. 16816

IN TH E HOUSE OF RE PR ES EN TA TIVE S 

S eptember 24,197 4

Mr. Danielson introduced the following bill; which was referred to the Committee on the Judiciary

A BILL

To authorize the June 5, 1972, grand jury of the United States 

District Court for the District of Columbia to submit a report 

concerning its inquiry, and for other purposes.

1 Be it enacted by the Sen ate and Hou se of Bepresenta2 tives of the Un ited States o f Am erica in Congress assembled,

3 That the grand jury which was impaneled by the United

4 States District Court for the District of Columbia on J une 5,

5 1972, may, with the concurrence of a majority of its mem6 hers, upon completion of its term, which was extended under

7 the autho rity of Public Law 93-172 , or any subsequent

8 extension thereof, submit to the court a report concerning

9 offenses against the criminal laws of the United States, and

10 noncriminal misconduct, malfeasance, or misfeasance in office
257

2

1 by elected or appointed public officials, arising out of the

2 unauthorized entry into Democratic National Committee

3 headquarters at the Watergate, all offenses arising out of

4 the 1972 Presidential election for which the Special Pros5 ecutor deemed it necessary and appropriate to assume

6 responsibility, allegations involving former President Rich7 ard M. Nixon, members of his White House staff, or his

8 appointees, and any other matters which the Special Pros9 ecutor consented to have assigned to him by the Attorney

10 General.

11 Sec. 2. In the event that the grand jury shall submit

12 the report authorized by section 1 of this Act, the court shall

13 proceed upon such report as if it were a report submitted

14 by a special grand jury under section 3333 of title 18, United

15 States Code, and if such report makes critical reference to

16 an identified person, such person shall be afforded the same

17 rights and privileges as are afforded to a public officer or

18 employee under section 3333 of title 18, United States Code:

19 Provided, Tha t the subject matter of such critical reference

20 lias not or will not be resolved in an appropriate judicial pro21 ceeding, either because such subject matter does not amount

22 to an offense against the criminal laws of the United States,

23 or the person named therein has been granted immunity or

24 has been pardoned, or for such other valid reason as the

25 court may find.

44 -2 7 4 0 - 75 - 18
258

3

1 Sec. 3. The term of said grand jury may be extended

2 by the court in order that the report be submitted, additional

3 testimony be taken, or the provisions of section 3333 of title

4 18, L nited States Code, may be met.

5 Sec. 4. As used in this Act, the term “Special Prose6 cutor” means the Director of the Office of Watergate Special

7 Prosecution Force established under subpart G -l , part 0, of

8 chapter 1 of title 28, Code of Federal Regulations.
259

H. R. 16878

IN TH E HOUSE OF RE PR ES EN TA TIVE S 

S eptember 25,197 4

Mr. Koch (fo r himself, Mr. Fraser, Mr. Lvken, Mr. McCloskey, and Mr. 

Wolff) introduced the following bi ll; which was referred to the Committee 

on the Judiciary

A BILL

To provide for public access to all Watergate-related facts produced by any investigation conducted by any Federal executive office and to all Watergate-related documents which 

were produced from Jan uary 20, 1969, through August 9, 

1974, and which were in the custody of the United States 

on August 9, 1974.

1 Be it enacted by the Sen ate and House of Representa2 tives of the United States of Am erica in Congress assembled,

3 That the President of the United States shall, except with

4 regard to matters clearly vital to the national security in5 terests of the United States, provide as soon as practicable

6 full public access, in an adequate and effective manner, to—

7 (1) all facts, and related papers, documents, mem-
260

2

1 orandums, tape recordings, and transcripts which are

2 related to Watergate matters and which have been or

3 shall be produced by any investigation conducted by

4 any Federal executive office, department, or agency;

5 and

6 (2) all Watergate-related papers, documents, mem7 orandums, tape recordings, and transcripts which were

8 produced during the period from January 20, 1969,

9 tlnough August 9, 1974, which are not included in

0 paragraph (1 ), and which were in the custody of the

1 United States on August 9, 1974.
Appendix 3

The following materials were used by the subcommittee and staff in 

preparation for the hearing s:

(1) Federalist paper number 74.

(2) The section on pardons and reprieves from the Annotated 

Constitution.

(3) Chapter I of “ The Pardoning Power of the President,” by W. 

H. Humbert.

THE FED ERA LIST NO. 74

[73]

AL EXANDER H A M IL T O N1

March 25, 1788.

To the People of the State of New York.

The Pre sident of the United States is to be “Commander in Chief of the army 

and navy of the United States, and of the militia of the several Sta tes when

called into the actual service of the United States.” The propriety of this provision is so evident in itse lf ; and it is at the same time so consonant to the precedents of th e Sta te con stitutio ns in general, th at little need be said to explain or 

enforce it. Even those of them, which have in oth er respects coupled the Chief 

Magistrate with a Council, have for the most pa rt concentred the milita ry au ­

thority in him alone. Of all the cares o r concerns of government, the direction of 

war most pecu liarly demands those qua litie s which distinguish the exercise of 

power by a single hand. The direction of w ar implies the direction of th e common 

stre ng th ; a nd the power of directing and employing the common streng th, forms 

an usual and essential pa rt in the definition of the executive authority.

“The Pre sident may requ ire the opinion in writing of the principal officer in 

each of the executive departm ents upon any subject relating to the duties of th eir 

respective offices.” This I consider as a mere redundancy in the plan ; as the rig ht 

for which it provides would resu lt of itself from the office.

He is also to be auth oris ed “to g rant reprieves an d pardons for offenses aga inst 

the United States except in cases of impeachm ent.” Humanity and good policy 

conspire to dicta te, that the benign prerogativ e of pardoning should be as little 

as possible fettered or emba rrased. The crim inal code of every country partakes 

so much of necessary severity, that without an easy access to exceptions in favor 

of unfortunate guilt, justice would w ear a countenance too sanguinary and cruel. 

As the sense of responsibility is always stro nge st in p roportion as it is undivided, 

it may be inferred that a single man would be most ready to atte nd to the force 

of those motives, which might plead for a mitigation of the rigor of the law, and 

leas t ap t to yield to considerations, which were calculated to she lter a fit object 

of its vengeance. The reflection, that the fat e of a fellow cre atu re depended on 

his sole fiat, would naturally inspire scrpulousness and cau tion: The dread of 

being accused of weakness or connivance would beget equal circumspection, 

though of a different kind. On the other hand, as men generally derive confidence 

from their numbers, they might ofte n encourage each other in an act of obduracy, 

and might be less sensible to the appreh ension of suspicion or censure for an 

injudicious or affected clemency. On these accounts, one man appears to be a 

more eligible dispenser of the mercy of the government than a body of men.

The expediency of vesting the power of pardoning in the President has, if I 

mistake not, been only contested in relation to the crime of treason. This, it has 

been urged, ought to have depended upon the assent of one or both of th e branches 

of the legislative body. I shall not deny that the re are stron g reasons to be 

assigned for requiring in this p art icu lar the concurrence of tha t body or o f a pa rt 

of it. As trea son is a crime levelled at the immediate being of the society, when 

the laws have once ascertained the guilt of the offender, there seems a fitness in 

refe rring the expediency of an act of mercy towards him to the judgmen t of the 

Legislature. And this ough t the rather to be the case, as the supposition of the 

connivance of the Chief Magistrate ought not to be entirely excluded. Bu t there 

are also stron g objections to such a plan. It is not to be doubted th at a single 

man of prudence and good sense, is better fitted, in delicate conjunctures, to bal1

 From The New-York Packet, March 25, 1788. This essay appeared on March 26 In The Independent Journal. It was numbered 74 in the McLean edition and 73 in the newspapers.
262

ance the motives, which may plead for and against the remission of the punishment, than any numerous body whatever. It deserves particular atte ntio n that 

treason will often be connected with seditions, which embrace a large proportion 

of the co mmunity; as lately happened in Massachusetts.2

 In every such case, we 

migh t expect to see th e representatio n of the people ta inted with the same spirit, 

which had given birth to the offense. And when parties were pretty equally 

matched, the secret sympathy of the friends and favorers of the condemned person, availing itse lf of the good n atu re and weakness of others, might frequently 

bestow impunity where the terror of an example was necessary. On the other 

hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the pr incipal arguments for reposing the power of pardoning in this case in the Chief 

Magistrate is this—In seasons of insurrection or rebellion, there are often critical 

moments, when a well timed offer of pardon to the insu rgents o r rebels may restore the tran qui lity of the common wea lth; and which, if suffered to pass unimproved, it may never be possible afterwa rds to recall. The dilatory process of 

convening the Legislature, or one of its branches, for the purpose of obtaining 

its sanction to the measure, would frequently l>e the occasion of letting slip the 

golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. 

If it should be observed th at a discretionary power with a view to such contingencies might be occasionally conferred upon the Pr es iden t; it may be an ­

swered in the first place, t ha t it is questionable w hether, to a limited constitution, 

th at power could be delegated by la w ; and in the second place, th at it would 

generally be impolitic beforehand to take any step which might hold out the prospect of impunity. A proceeding of this kind, out of the usual course, would be 

likely to be construed into an argument of timidity or of weakness, and would 

have a tendency to embolden guilt.

P l u b iu s.

THE CONSTITUTION OF THE UNITED STATES OF AMERICA

A n a l y sis an d I nt er pr et at io n

ANNOTATIONS OP CASES DECIDED BY TH E SUPREME COURT OF TH E UNITED STATES TO

JU NE 29 , 19 72

PARDONS AND REPRIEVES

The Legal Nature of a Pardon

In the first case to be decided concerning the pardoning power, Chief Justice 

Marshall, speaking for the Court, sa id : “As this power had been exercised from 

time immemorial by the executive of tha t natio n whose language is our language, 

and to whose judicial ins titu tion ours bear a close rese mblance; we adopt their 

principles respecting the operation and effect of a pardon, and look into the ir 

books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it. A pa rdon is an act of grace, proceeding from 

the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts f or a crime 

he has committed. It is the priv ate, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the Court. . . . A pardon is a deed, to the validity of which 

delivery is essential, and delivery is not complete witho ut acceptance. It may then 

be rejected by the person to whom it is tend ered : and if it be rejected, we have 

discovered no power in a court to force it on him.” Marshall continued to hold 

th at to be noticed judicially this deed must be pleaded, like any priv ate 

instrum ent.* 1

In the case of Bur dick v. United States, 2

 M arshall’s doctrine was put to a test 

th at seems to have overtaxed it, perhaps fatally. Burdick, having declined to 

testify before a federal grand jury on the ground that his testim ony would tend 

to incriminate him. was proffered by President Wilson “a full and unconditional 

pardon for all offenses against the United States” which he might have committed or participate d in connection with the matter he had been questioned

8

 H am ilto n re ferr ed to Sh avs’ Reb el lio n.

1

 236* USS 79e R6 (m s )”’ 7 P<?t‘ (3 2 U S

’

) 1 5 ° '

1 6 0 - 1 6 1 <1 8 3 3 )-
about. Burdick, nevertheless, refused to accept the pardon and persisted in his 

contumacy with the unanimous supp ort of the Suprem e Court. “The grace of a 

pardon,” remarked Jus tice McKenna sente ntiously, “may be only a pretense . . . 

involving consequences of even gre ate r disgrace tha n those from which it purports to relieve. Circumstances may be made to bring innocence und er the p ena lties of th e law. If so brought, escape by confession of g uilt implied in the acceptance of a j>ardon may be rejected, . . .” 3 * Nor did the Court give any attention 

to the fac t that the President had accomijanied his proffer to Burdick with a 

proclamation, altho ugh a sim ilar procedure had been held to brin g President 

John son’s amnesties to the Court’s notice? In 1927, however, in sus tainin g the 

rig ht of th e P resident to commute a sentence of death to one of life imprisonment, 

aga inst the will of th e prisoner, the Court abandoned this view.” A pardon in our 

days,” it said, “is not a private act of grace from an individual happening to 

possess power. It is a pa rt of the constitutional scheme. When gra nted it is the 

determination of the ultimate autho rity th at the public welfare will be better 

served by inflicting less tha n wh at the judgment fixed.” B Whethe r these words 

sound the death knell of the acceptance d octrine is perhaps doubtful.” They seem 

clearly to indicate t ha t by sub stituting a commutation o rder for a deed of pardon, 

a President can always have his way in such matters, provided the sub stituted 

penalty is authorized by law and does not in common und erstand exceed the original penalty.7 8

Scope of the Power

The power embraces all “offenses aga inst the United States,” except cases of 

impeachment, and includ es the power to rem it fines, penalties, and forfeitures, 

except as to money covered by the Treasury or paid an informer, * 1 2 the power 

to pardon absolutely or conditionally, and the power to commute sentences, which, 

as seen above, is effective without the convict’s consent? It has been held, moreover, in face of ear lier English practice, that indefinite suspension of sentence 

by a court of the United States is an invasion of the presidential prerogative, 

amounting as it does to a condonation of the offense? It was early assumed th at 

the power included the power to pardon specified classes or communities wholesale, in short, the power to amnesty, which is usually exercised by proclamation. 

General amnesties were issued by Wash ington in 1795, by Adams in 1800, by 

Madison in 1815, by Lincoln in 1863, by Johnson in 1865, 1867, and 1868, and 

by the first Roosevelt—to Aguinaldo’s followers—in 1902? Not, however, till after 

the Civil War was the point adjudica ted, when it was decided in favor of 

presiden tial prerogatives?

Offenses Against the United States; Contem pt of Court.—In the first place, 

such offenses are not offenses aga inst the United State s. In the second place, 

they are completed offenses? The President cann ot pardon by anticipa tion, 

otherwise he would be invested with the power to dispense with the laws, his 

claim to which was the principal cause of Jam es I l’s forced abdication? Lastly, 

the term has been held to include criminal contempts of court. Such was the 

holding in Ex parte Orossman* where Chief Justice Taft, speaking for the

8

 Id.. 90 -9 1.

4

 A rm st ro ng v. Uni ted Sta te s. 13 W all . (80 U .S .), 154. 156 (1 87 2) . In B ro wn v. W al ke r,

161 U.S . 591 (1 89 6) . th e Cou rt ha d sa id : “It is alm os t a ne ce ss ar y co ro llar y of th e ab ov e pr op os itio ns th a t, if th e w itne ss has al re ad y rec eiv ed a pa rd on , he ca nn ot lo ng er se t up hi s privile ge , sin ce he st ands w ith re sp ec t to such offe nce as if it ha d ne ve r been co m m itte d. ” 

Id .. 599. ci ti ng B ri ti sh cases .

8

 B iddl e v. Per ov ich. 247 U.S. 480 , 486 (1 92 7) .

• C f. W. H um be rt, Th e Par do ning Po we r of th e P re si de nt (W as hi ng to n : 1 94 1) , 73.

7 Biddl e v. Pe ro vich , 274 U.S. 480 . 486 (1 92 7) .

1

 23 Ops. A tt y . Gen. 360, 363 (1 90 1) ; Il linois Cen tral Ra ilr oa d v. Bos w or th , 13 3 U.S . 92 

(1 8 9 0 ).

2

 E x pa rte W illiam W el ls, 18 Ho w. (59 U.S.) 307 (1 85 6) . F or th e co ntr ary vie w, see som e 

ea rl v op inions o f th e A ttor ney Gen eral. 1 Ops. A tt y. Gen . 341 (1 82 0) ; 2 Ops. A tt y . Gen. 275 

(1 82 9) ; 5 Ops. A tt y . Gen. 687 (1 79 5) ; cf. 4 Ops. A tt y . Gen. 458 (1 84 5) ; Uni te d S ta te s v. 

W ils on , 7 Pet . (32 U. S.) 150. 161 (1 83 3) .

8

 Fa- pa rt e Uni te d Sta te s, 24 2 U.S . 27 (1 91 6) . Amen dm en t of se nten ce , ho we ver, w ithi n 

th e sa me te rm of co ur t, by sh ort en in g th e te rm of im pr is on m en t, al th ough def en dan t ha d 

nl re ad y bee n co m m itted, is a ju dic ia l ac t an d no i nf ri ngem en t of th e par do ni ng po we r. United

Sta te s v. Be nz , 282 U.S . 304 (1 93 1) .

♦ S ee 1 J. Ric ha rd so n. Mess ag es an d Pa pe rs of th e Pre si de nts , (W as hin gto n: 18 97 ), 173 , 

293 : 2 id.. 543 : 7 id., 341 4. 350 8 : 8 id.. 385 3 : 14 id.. 669 0.

* Uni ted S ta te s v. K le in , 13 W all . (80 U.S.) 128 , 147 (1 87 2) . Se e als o U ni te d S ta te s v. 

Pa d el fo rd , 9 W al l. (7 6 U .S .) 531 (1 8 7 0 ).

8

 E x pa rte Gar land , 4 Wall . (71 U.S.) 333 . 380 (1 86 7) .

7 F. M ai tla nd , C onst itutional H is to ry of Eng la nd (L o n d o n : 19 20 ), 302—306; 1 Ops. A tt y .

Gen. 342 (1 82 0) .

8 267 U.S. 87 (1 92 5) .
264

Court, resorted once more to English conceptions as being autho rita tive in construing this clause of the Constitutio n. Said he: “The King of England before our Revolution, in the exercise of his prerogativ e, had always exercised the power to pardon contempts of court, just as he did ordinary crimes and mis­ demeanors and as he has done to the prese nt day. In the mind of a common law lawy er of th e eighteenth century the word pardon included within its scope the ending by the King’s grace of the punishment of such derelictions, whether it was imposed by the court withou t a jury or upon indictment, for both forms of tri al for contem pts were had. [Citing cases.] These cases also show tha t, long before our Constitution, a distinction had been recognized at common law between the effect of the King’s pardon to wipe out the effect of a sentence for contem pt inso far as it had been imposed to punish the contemnor for viola ting the dignity of the court and the King, in the public inte rest, and its inefficacy to halt or inte rfere with the remedial part of the cou rt’s orde r necessary to secure the rights of the injured suitor. Blackstone IV, 285, 397, 398; Hawkins Plea s of the Crown, 6th Ed. (1787), Vol. 2, 553. The same distinction, nowadays referred to as the difference between civil and crim inal contempts, is still main ­ tain ed in English law’.” 8 * Nor w7as any new or special dang er to be apprehended from this view’ of the pardoning power. “If ,” said the Chief Justice, “we could conjure up in our minds a President willin g to paralyz e courts by pardoning all crim inal contempts, why not a Preside nt orde ring a general jail delivery?” In­ deed, he queried further, in view of the pecu liarities of procedure in contempt cases, “may it not be fairly said th at in order to avoid possible mistake, undue prejudice or needless severity, the chance of pardon should exist at lea st as much in favor of a person convicted by a judge without a jury as in favor of one convicted in a jur y t ria l?” 10

Effects of a Pardon: Ex parte Garland.—The gre at leading case is Garland,11 which was decided shortly a fte r the Civil War. By an act passed in 1865 Ex parte

Congress had prescribed that before any person should be perm itted to prac tice in a federal court he must take oath asserting that he had never voluntarily borne arms aga inst the United State s, had never given aid or comfort to enemies of the United States, and so on. Garland, who had been a Confederate sympathizer and so w’as unable to take the oath, had how’ever received from Presiden t Johnson the same year “a full pardon ‘for all offenses by him committed, arising from participation, dire ct or implied, in the Rebellion,’ . . .” The question before the Court was whether, armed with this pardon, Garland was entitled to practice in the federal courts despite the act of Congress just mentioned. Said Justice Field for a divided Cou rt: “The inquiry arises as to the effect and operation of a pardon, and on this point all the author itie s concur. A pardon reaches both the punishment prescribed for the offense and the guilt of the offende r; and when the pardon is full, it releases the punishm ent and blots out of existence the guilt, so th at in the eye of the law the offender is as innocent as if he had never committed the offense. If g ran ted before conviction, it prevents any of the penal­ ties and disabilities consequent upon conviction from attachin g [thereto] ; it granted after conviction, it removes the penalties and disabilities, and restores him to all his civil ri ghts ; it makes him, as it were, a new man, and gives him a new cre dit and capacity.” 12

Jus tice Miller speaking for the minority protected th at the act of Congress involved was not penal in cha rac ter, but merely laid down an appropriate test of fitness to prac tice law. “The man who, by counterfeiting, by theft, by murder, or by treason, is rend ered unfit to exercise the functions of an atto rney or counsellor at law, may be saved by the execution pardon from the penitentiary or the gallows, but he is not thereby restored to the qualifications which are essential to admission to the bar.” 13 Jus tice Field’s language must today be rega rded as much too sweeping in light of a decision rend ered in 1914 in the case of Carlesi v. New York.1* Carlesi had been convicted several years before of com­ mitting a federal offense. In the insta nt case the prisoner was being trie d for a subsequent offense committed in New York. He was convicted as a second offender, although the Pre sident had pardoned him for the earlier federal offense. In other words, the fac t of p rio r conviction by a fede ral court was considered in determining the punishm ent for a subsequent sta te offense. This conviction and sentence were upheld by the Supreme Court. While this case involved offenses

8

 I d. , 11 0-11 1.

10 Id .. 121 . 122.

11 4 W all. (71 U. S.) 333 , 381 (1 86 7) . u

Id ., 380.

» Id .. 39 6- 39 7.

11 233 U .S. 51 (1 91 4) .
265

aga inst different sovereignties, the Court declared by way of dictum th at its decision “must not be understood as in the slightes t degree intimating th at a pardon would operate to limit the power of the United States in punishing crimes aga inst its autho rity to provide for taking into consideration past oflFenses com­ mitted by the accused as a circu mstance of aggravation even altho ugh for such 

past offenses there had been a p ardon granted.” “

Lim its to the Efficacy of a Pardon.—But Jus tice Field’s la titud inarian view of 

the effect a pardon undoubtedly still applies ordinarily where th e p ardon is issu ed 

before conviction. He is also correct in saying tha t a full pardon resto res a ootwncf to his “civil righ ts,” and this is so even though simple completion of the convict’s sentence would not have had that effect. One such right is the right to testify in 

court, and in Boyd v. United Sta tes the Court held th at the disability to testify 

being a consequence, according to the principles of the common law, of t he judgment of conviction, the pardon o blite rated that effect.18 Bu t a pardon cannot “make 

amends for the past. It affords no relief for what has been suffered by the of­ fend er in his person by imprisonment, forced labor, or oth erw ise ; it does not give compensation for what has been done or suffered, nor does it impose upon the gov­ ernmen t any obligation to give it. The offense being estab lished by judicia l pro­ ceedings, that which has been done or suffered while they were in force is pre­ sumed to have been righ tfully done and jus tly suffered, and no sa tisfaction for it can be required. Neither does the pardon affect any rights which have vested in others direc tly by the execution of the judgment for the offense, or which have been acquired by oth ers whilst that judgment was in force. If, for example, by the judg men t a sale of the offender’s prop erty has been had, the purchaser will hold the property notwithstand ing the subsequent pardon. And if the proceeds of the sale have been paid to a par ty to which the law has assigned them, they cannot be subsequently reached and recovered by the offender. Th e rights of the partie s have become vested, and are as complete as if they were acquired in any other legal way. So, also, if the proceeds have been paid into the trea sury, the right to them has so far become vested in the United States that they can only be secured to the form er owner of the property through an act of Congress. Moneys once in the treasu ry can only be withdraw n by an appropriation by law.” 17

Congress and Am nesty

Congress cann ot limit the effects of a presidential amnesty. Thus the act of July 12, 1870, making proof of loyalty necessary to recover property abandoned and sold by the Government during the Civil War, notwithsta nding any executive proclamation, pardon, amnesty, or other act of condonation or oblivion, was pro­ nounced void. Said Chief Justice Chase for the majo rity: “[T]he legislature cann ot change the effect of such a pardon any more t han th e executive can change a law. Yet this is atte mpted by the provision under consideration. The Court is required to receive special pardons as evidence of guilt and to tre at them as null and void. It is requ ired to disregard pardons granted by proclamation on condi­ tion, though the condition has been fulfilled, and to deny them their legal effect. This certainly impairs the executive autho rity and directs the Court to be in str umental to th at end.” 18 On the other hand. Congress itself, under the necessary and proper clause, may ena ct amnesty laws rem itting penalties incurre d under 

the natio nal st atu tes .* 1

’

THE PARDONING POWER OF TH E PRESIDENT 

(By W. H. Humbert)

A m er ic an C o un cil on P ubl ic A ffa ir s

CHAPTER 1—CLEMENCY IN ENGLAND AND T HE AMERICAN COLONIES

Although, the laws of the first Christia n Saxon King, Aethelbirth (560-616),1

contained a reference to clemency,2 3 the King’s prerogative of mercy as such 

appe ared first in the laws of Ine of Wessex (688-725)? The prerogative in

» Id.. 59. «1 42 U.S. 450 (1892).

n Knote v. United Sta tes, 95 U.S. 149. 153-154 (1877). 

m United States v. Klein, 13 Wall. (80 U.S.) 128, 143. 148 (1872).

» The Laura, 114 U.S. 411 (1885).

1

 John M. S tearns. The Oerms and Developments o f the Laws of England, p. 23.

2

 Fo r a more detailed survey of the histo ry of clemency in England, see William W. S mith ­

ers and George D. Thorn, Exec utive Clemency in Pennsylva nia, pp. 1—18; and for a more 

detailed survey of the history of clemency in the American Colonies, see Christen Jensen, 

The Pardoning Power in th e American State s, pp. 1-8.

3

 Henry St. Clair Feilden. A Sho rt Constitutional History of England (1882), p. 157 ; B. 

Thorpe, Ancient Laws and Ins titutes of England, 1 ,125, sec. 36 ; and 107, sec. 6.
266

som ewhat sim ila r form la te r reap peare d successively in th e law s of Alf red th e 

Great,4 * of Athelstan,® of Edmund,® of E dgar, 7

 of Ethe lre d, 8 * of Cnut,® an d of E dw ard th e C onfessor 10 on the eve of the Con quest in 1066. Afte r the Conquest, the p rer ogat iv e of mercy found a place in the new code of law s com piled at the dir ectio n 

of Wi llia m th e Conqueror. Such rep eated rec ognition of the exe cut ive as the 

dis pe nser of mercy mig ht lead to the belief th at the pr erog ati ve of mercy res ted 

exc lusively in the King.

Yet durin g the period from 560 to 1535, th er e were sev era l conte nders for a 

sh ar e of the Kin g’s prer og ati ve o f mercy. The gr ea t Ea rls strov e for and sec ured 

the righ t to exe rcise a pow er of clemency with in t he ir j ur isd ictio ns .11 The Church by obtai nin g a wide ext ens ion of the “benefit of clergy ,” 12 influenced the King in th e exe rcis e of his pardoning power.13 But perhaps the str on ge st opposition to un restr aine d exe rcis e of the pardon ing pow er by the Kin g cam e from P ar liamen t. Ha vin g obse rved th at the Kin g often exe rcis ed the pardon ing pow er at 

his cap rice,14 Pa rli am en t reb uke d him for his fre e use of th e pow er and pas sed 

ac ts fo r the reg ula tio n of its exe rcise. 15 * One of the la ter acts, 18 fo r example pro­ vided th at no par don fo r tre ason , murde r or rape should be allowed unless the 

offense were specifically mentio ned in the ch ar te r of par don .

De spi te the pa rli am en tary dis sa tis faction with roy al clemency, th e Kin g retain ed his power of par don . His position with res pect to this pow er inde ed becam e more sec ure in 1535, wh en Pa rliam en t enact ed th at fro m the first day of 

July, 1536,

“No person or persons, of what es tate or degree soever they be . . . sha ll 

have any pow er or au th or ity to pardon or remit . . . bu t th at the king's high ­

ness, his heirs and successors, kin gs of thi s realm, sha ll have the whole and 

sole pow’er and au th or ity thereo f unite d and kn it to the Im pe ria l Crow n of this 

rea lm, a s o f good r ig ht an d e qu ity it app er taineth . . 17

By th is enactm ent Par lia m en t placed upon th e Kin g the sole respon sibility fo r 

the exe rcise of th e pardoning pow er and, at th e sam e time, term ina ted the 

con ten tio ns of the g reat E ar ls a nd of the Ch urch fo r a s ha re in this power. P arl ia ­

ment, however, showed no dis position to stop leg islati ng with res pect to the 

King’s power. Du rin g the two h undred and fifty ye ars following 1535, P arlia men t 

passe d three i mpo rta nt r es trictiv e acts which affected eith er dire ctl y or in dir ectly 

the pardon ing power. Th e Ha beas Cor pus Act of 1679,18 esta blish ing the pri nciple th at no man sha ll be ar bitra rily imprisoned, ma de it a pr ae mun ire19 “to send any subjec t of this rea lm a pr iso ne r into pa rts beyond th e seas” and prevente d

4

 T ho rp e, I, 67, sec. 7.

8

 Ibi d. , I . °29, sec, 4 ; an d 231 , sec. 5.

8

 Ibi d. , I . 251, sec. 6.

' Ib id ., I . 269 , sec. 7.

•J W d ., I. 299. sec. 16.

0

 Ibi d. , I, 409 , sec. 60.

10 S te ar ns, p. 241.

n

 John Allen . In quir y in to th e Rise an d Gro wt h of th e Ro ya l Pre ro ga tiv e in Eng la nd , p. 109 ; E dw ar d Coke. In sti tu te s o f th e L aw s of En glan d, p t. IV. ch. 36. 12 Ben efit of clergy “O rigi na lly . . . m ea nt th a t an or da in ed cl er k ch arge d w ith felony cou ld be tr ie d on ly in th e E cc le si as tica l Cou rt. B ut . be fo re th e en d of H en ry I l l ’s re sig n, th e ki ng ’s co ur t, thou gh it de liv ered him to th e Ecc le si as tica l C ou rt fo r tr ia l, took a pr el im in ar y in qu es t as to his guilt or inno ce nc e . . . In tim e it [ben efit of cler gy ] ch an ge d an d becam e a co m plicated se t of ru le s ex em pt in g ce rt ai n pe rson s from puni sh m en t fo r ce rt ai n cr im in al offens es. I t was ex tend ed to se cu la r clerks , th en to al l wh o cou ld re ad .” Jo hn Bou vier. A Law D ic tion ar y . . . (1 91 4). I, 338.

13 S ir W illiam Black ston e, Com m en taries on th e Law s o f Eng land (W en d ell ’s ed ., 1 8 4 7 ), IV. 416ff ; T ho m as P itt Tas well-La ng m ea d, E ng lis h C onst itutional H is to ry p. 430. (4 th ed., 189 0),' 

14 W ith re sp ec t to th e K in g’s fr ee us e of th e pa rd on in g po we r, see Sir W ill iam R. An son, Th e Law an d Cu sto m of th e C onst itution (2 nd ed., 18 92 ), pt . I, pp. 297-2 98; Sir H en ry C. Max we ll-Ly te. The G reat Se al o f Eng la nd , p. 393. 15 Owen Ruflfhead. The S ta tu te s at Lar ge fr om Ma gna Ch ar ta to th e End of th e Ldst P ar liam en t, 1761 (1 76 3) . 2 E dw ar d III. c. 2 an d 4 E dw ar d III, c. 13 ; fo r oth er re st ri ct iv e ac ts , see 10 Edw ar d III, sta t. I, c. 3 ; 14 E dw ar d III, sta t. I, c. 15; 27 E dw ar d III , sta t. I, c. 2.

1 8 13 R ic ha rd TI. s ta t. II. c. 1.

17 27 H en ry V II I, sta t. I, c. 24.

13 31 Cha rles II. st at. II . c. 2.

18 Pra em un ire in Eng lis h law is “t he na m e of an offens e again st th e Kin g an d hi s go ve rn ­ men t, th ou gh not su bj ec t to ca pital punis hm en t.” 

Pr ae mun ire. Cy clo pedia of Law an d Pr ocedure, Titl e, In it s ori gin al m ea ni ng pr ae m un ire wa s “i ntr oduci ng n fo re ig n po we r in to th is land (E ngla nd), and cr ea ti ng im pe ri um in im pe rio, bv pa yi ng t h a t o bedience to p ap al pr oc ess wh ich co nst ituti onal ly belonged to th e Kin g alo ne, long be fore th e re fo rm at io n in th e reign H en ry th e E ig hth .” Pen al ti es fo r pr ae m un ire we re used firs t fo r de pr es si ng th e po we r of th e Po pe on ly, but la te r th es e pen al ties we re use d fo r punis hi ng nu m er ou s oth er offens es 

i i » i i ? e x a m P^e

’ a s th a t mad e a pr ae m un ire by th e H ab ea s Cor pu s Ac t. Bl ac ks tone , IV ,
the King from rem itting the punishments imposed for a praemunire of thi s sort. 

The royal power was fu rth er restric ted by the Bill of Rights.* 1

’

1

 Although the 

King had claimed the right both to suspend the execution of a law and to dispense with its execution in particu lar cases, Par liament declared in 1689 th at the royal exercise of both of these alleged powers was illegal.10 Twelve yea rs late r, af ter the 

King had abused his pardoning power by using it to shield his favorites from punishment, Parliam ent provided in the Act of Settlem ent41 “th at no pardon 

under the Grea t Seal of England shall be plead able to an impeachment by the Commons in Parlia me nt.” Though these acts of Parlia ment somew hat restric ted the discretion of the King, he reta ined his prerogative of mercy.

II

When England turned her attention to expansion in the western world she had not envisaged, from a governmental point of view, a colonial empire." In the beginning, especially in the southern colonies, she sought to engage in what was 

prim arily an economic movement.23 Her preoccupation with commerce and her consequent lack of emphasis on principles of government in the c harters did not mean th at those who dep arte d from shores of the “moth er country” would cease either to be Englishmen or to be governed by laws fram ed in harmony with English principles. On the contrary, each chart er embodied a clause to the effect th at adventu rers and settlers were to be considered English subjects with “all liberties, franchises and immunities with in any of our other dominions, to all intents and purposes, as if they had been abiding and born, within this ou r realm of England, or any other of our said dominions.” 24 I n order to retain such righ ts 

and privileges, the charters provided repeatedly that no law in conflict with estab lished English law should be made in the colonies.25

The charters varied greatly in form and in substance. They were alike, how­ ever, in that they transfer red from a superior to an inferior the competence to exercise cer tain prerogatives of sovereignty upon certain conditions and in particular places. The chief officer in each colony was the representativ e of the 

King.2* This representativ e succeeded, with certain necessary limitations imposed by reason of his subo rdin ate position, to the royal prerogatives as they were then understood in England.” Among these prerogatives was that of pardoning offenses and rem ittin g penalties. Although some of the charters failed to include this prerogative, each colony at some time during its history enjoyed, through delegation, the benefits of the royal prerogative of pard on.2* Except in the royal 

colonies, the executive, with assistance at times from oth er colonial author itie s,2* 

exercised the prerogative of pardon with only slight provision for intervention 

by th e English sovereign.30

In the royal colonies the governor possessed the power to grant pard ons in all 

cases except in those of trea so n31 and wilful murder. In these excepted cases he exercised the power of reprieve until the royal pleasure was known. He could remit fines and forfeitures not exceeding ten pounds.32 The royal governor was to 

exercise the pardoning power independently, without the need for securing the

19a 1 W ill iam an d Mary, seas. II, c. 2.

20 S ir W ill iam R. An son, Th e Law an d Cu stom of th e C onst it ution (4 th ed., 1909; re issu e 

rev ., 19 11 ), I. 33 1-33 3.

2 1 12 an d 13 W ill iam III . c. 2.

22 M arcu s W ilson .Ternegan , The A m er ic an Co lon ies , H 9Z—17 50 , p. 4 4 : Ge orge A. Was hbu rn e. Im pe rial Con trol o f th e A dm in is tr ati on of Ju st ic e in th e Thir te en Am er ic an Co lonies,

166i- 1776, p. 17.

23 J er neg an . p. 24 ; H er ber t L. Osg ood , Th e Am er ic an Co lon ies i n th e Sev en te enth C en tu ry ,

p. 6 : P er cy Le wis Ka ye. Co lonial E xe cu tive Pr ior to th e R ev ol ution , p. 7.

24 W ill iam Mac Do na ld. Se le ct Cha rter s Il lu str ati ve of Amer ican H is to ry , 16 06 -1 77 5, p. 8.

25 C ha rter s to Virgi ni a, 160 6, 160 0, 1612 ; F ir st Cha rt er to M as sa ch us et ts , 162 9— MacDon ald, pp. 8. 16. 19. 41.

28 Jo se ph Sto ry , Com men taries on th e C onst itution of

16 9-17 2.

th e Uni ted S ta te s (1833), I,

27 T ho mas Pow nw al l, A dm in is tr ati on of th e Co lonies, pp. 54. 56 ; E v art s B ou te ll Green e. 

The Pro vi nc ia l Gov er no r i n th e Engl is h Co lon ies o f N ort h Am er ic a, p. 9 2.

28 .Tensen, p p. 3ff.

28 G reene, p. 125.

30 J en se n, p. 8.

31 Th om as Culpe pe r. Gov erno r of V irgi ni a. 16 82 -8 3. w as un ab le to li ghte n th e se nt en ce of th e ringle ad er s of th e P la n tc u tt ers in su rr ec tion. Such in su rr ec ti on ha d been de clar ed to be 

rebe lli on un de r an old sta tu te . Co lonial E n tr y Bo ok, 16 61 -1 66 5, p. 152.

32 G ree n, p. 125. W ith re sp ec t to fines an d fo rf ei tu re s, see, for ex am ples . Roy al I nst ru cti ons

to J os ep h Dud ley, G ov er no r o f M as sa ch use tts. M ass ac huse tts H is to ri ca l So cie ty. Co lle ctions ,

(3 rd se ri es ), IX , 106 an d In st ru ctions to Dun mor e of Virgi ni a, 177 1. sec. 43, Asp inwall 

Pap er s, M as sa ch us et ts H is to ri ca l So ciety, Co lle ctions , (4 th se ri es) , X, 630.
268

concurrence of the council.” Out of th e provisions of the commissions and instruc ­ tions, out of the provisions of the charte rs, and ou t of the experiences of th e colo­ nists arose ideas of the pard oning power lat er embodied in the constitutions of the seve ral state s.

II I

At the outbreak of the American Revolution, state governments based upon new constitutions replaced most of the colonial governments. This sudden tran sition represented chiefly the culm ination of the long conflict between the colonists and the English King.34 Viewed in a nother way, however, the con test was one between the colonists in their assemblies and the colonial governors. The governors were the champions of the King's ideas of government in opposition to the desires of the colonists and were the ev er present remin ders of all those offenses which had accumulated during the years. When the colonists determined to rid themselves forever of control by th e King, they, in dra fting their own constitution, n aturally with held powers from the governors a nd displayed more confidence in the legisla­ tors by conce ntrating in them broad authority.36

Under the new constitutions the legislature of each sta te elected the governor. His term of office was restric ted to one year, except in South Carolina and Dela­ ware, and restrictions w’ere placed upon his eligibility for reelection. An execu­ tive council chosen by the legisla ture (except in New Jerse y), served to restric t the governor’s powers, including that of p ardo n; the governor had to consult the council on all imp ortant matters. 38 In short, the aim was to divest the chief magistrate “of all the royal features w’hich made the previous governors ob­ noxious to the people.” 37

As would be expected, considerably alte red provisions for the pardoning power emerged from the constitutio n-making consequent upon the abandonment of the colonial cha rters. In Georgia, the governor was denied the prero gativ e of issuing pardons, altho ugh he might gra nt reprieves or suspend the paym ent of fines until the meeting of the assembly.38 In Connecticut and in Rhode Island, his power was restricted through the contin uance of their colonial cha rters by which the pardoning power was vested in the assembly.3

magistrate could extend clemency only under certain circumstances, or with the ’ In five other states the chief 

advice of his council, or in accordance with predeterm ined limitations. By the constitutions of the remaining five of the thirteen states, the governor was in­ vested with the power to grant pardons. Cases of impeachment w’ere placed be­ yond the reach of the pardoning power in five states. In New York,40 could gra nt pardons in impeachment cases, but not in insta nces of treaso n or of the governor 

murder. In New Jersey, the righ t to g ran t pardons for all offenses was conferred, but the governor was forced to sha re the prerogative with the council.41

IV

The represen tatives of th e states, assembled in Philadelphia in 1787, possessed the opportunities of searching colonial cha rters, sta te constitutions.40 records

33 G ree ne, p. 125. Th e go ve rn or ha d to re sp ec t th e te rm s of his fo rm al in st ru ct io ns. Si r W ill iam Be rkley , fi rs t ap poi nt ed go ve rn or o f Virgi nia in 1641 an d ag ai n aft er th e re st ora ti on of Cha rles II, was au th or iz ed to is su e a pr oc la m at io n of pa rd on from wh ich on ly N at han ie ll Ba con was to be ex ce pted . Berkley w en t bey ond hi s in st ru cti ons an d excepted ot he rs , fo r wh ich he a ft er w ar ds w as co nd em ned by t he K ing. H en in g’s S ta tu te s, 24 I I, 428. W ill iam C. Mo rey, “T he F ir s t S ta te C onst it utions. ” 

Pol itic al a nd So cial S cien ce , Anna ls of th e Amer ican Aca de my of IV, No. 2, Se ptem be r, 189 3, p. 18. 28 I bi d. , pp. 18. 25.

M A rt hur N. Holcombe. S ta te G ov er nm en t in th e Uni ted Sta te s 87 (3 rd e d., 19 31 ), p. 57. M orey, “T he F ir s t S ta te C onst it utions. ” A nn al s of th e Am er ic an Aca de my of Politic al an d So cial Scie nce. IV . No. 2. Se pt em be r 189 3. p. 29. 38 B en jamin Per le y Po ore, U ni te d Sta te s, Fe de ra l, an d S ta te C onst itutions an d Cha rter s, I. 380.

38 Con ne cticut C ha rt er , 166 2, an d Rh od e Is la nd Cha rter , Cha rter s an d C onst itutions of th e U ni te d S ta te s, 1663 ; F ra ncis Ne wt on Th orpe , 

 I. 529 an d VI , 321 1, re sp ec tiv ely ; Mo rey. “T he F ir st S ta te C onst it ution,” A nnals of th e Am er ic an A ca de m y of Pol itic al an d So cial Sc ien ce, IV. No. 2, Se ptem be r, 189 3, p. 19.

*° New Yor k C onst itution, 1776. Po ore. II. 1335. 41 N ew Je rs ey C onst it ution, 1776 , Po ore. II. 1312 . 42 C on ce rning th e va lu e of sta te const ituti ons to th e mem be rs of th e P hilad el phia Co n­ ve ntion. Mr. Ja m es Bry ce ha s sa id : “I t has bee n tr u ly sa id th a t nea rl y ev ery pr ov isio n of th e Fed er al C onst itut io n th a t ha s worke d we ll is on e bo rro wed from or su gg es ted by som e S ta te co nst itution ; nea rl y ev ery pr ov isio n th a t has wo rked ba dl y is on e which th e Co nv en ­ tion. fo r w an t of a pr ec ed en t, was oblig ed to devise fo r it se lf .” Ja m es Br yc e. Co mmon we alth (3 rd ed. , 18 93 ), I, 35 an d Th e Amer ic an Ib id ., A pp endix, no te to c h. IV , p. 671.
269

of English practice, and especially their own experiences," for solutions to the 

various problems which confronted them. From any or all of these sources there 

were available some ideas concerning the prerogative of pardon. Despite this 

fact, neither the Virginia plan nor the New Jersey plan, the principal plans 

presented, embodied provisions for the pardoning power in their projected 

arrangements. But Charles Pinckney’s Draft of a Federal Government provided 

tha t the executive “shall have power to grant pardons and reprieves, except in 

impeachments,” and Hamilton’s Plan of Government provided for “the supreme 

executive authority of the United States to be vested in a governor,” one of whose 

authorities and functions was “the power of pardoning all offenses, except treason, 

which he shall not pardon, without the approbation of the Senate.” 44 The resolutions adopted by the Convention and submitted to the Committee on Detail, 

like the Virginia and New Jersey plans, failed to include a reference to the matter 

of clemency.45 But on the margin of the Randolph or Virginia plan, John Rutledge 

added the following to the clause defining the powers of the executive: “The 

power of pardoning vested in the Executive: his pardon shall not however be 

pleadable to the impeachment.” 45 To convey his suggestion. Rutledge employed 

phraseology which resembled th at of the Act of Settlement of 1701.47

The Committee on Detail adopted the Rutledge suggestion and incorporated 

it in the tenth article of a dra ft constitution reported to the Convention on the 

sixth of August in the form : “He shall have power to grant reprieves and par don s; 

but his pardon shall not be pleadable in bar of an impeachment.” 48 Discussion 

of this article ensued on the twenty-fifth of August, when Roger Sherman moved 

to amend the “power to grant reprieves and pardons” to read “to gran t reprieves 

until the ensuing session of the senate, and pardons with the consent of the 

senate.” 49 His motion failed, for only one state, his own, voted in favor of 

it.50 Subsequent to the failure of this proposal, the Convention inserted afte r 

“pardons” the words “except in cases of impeachment” and removed the w’ords 

“but his pardon shall not be pleadable in bar of an impeachment.” 61 Two days 

later, Luther Martin desired to introduce the words “after conviction” to follow 

the words “reprieves and pardons.” To this alteration James Wilson objected on 

the ground that a pardon before conviction might be necessary in order to obtain 

the testimony of accomplices. Forgeries were cited as cases in which such a contingency might arise. In deference to this argument, Martin withdrew his 

motion." The Convention did not further consider the matter of clemency until the 

tenth of September, when Edmund Randolph presented a motion relating to 

pardons in cases of treason and asked that it be referred to the Committee on Style. Although the Convention granted Randolph’s request, the Secretary of the 

Convention failed to record in the Journal the content of the motion.53 Two days 

before the Committee on Style submitted its report, in which appeared the provision : “and he shall have power to grant reprieves and pardons for offenses 

against the United States, except in cases of impeachment.” 54 It would appear 

tha t the committee had not approved the proposal of Randolph. In the course 

of comparison by the Convention of the report with the articles agreed on Randolph moved to amend the article so as to “except cases of treason” from the 

pardoning power.55 He viewed the prerogative in these instances as too great a

43 T he im portan ce of ex pe rien ce w as su cc in ct ly ex pr es se d by Jo hn Dickins on duri ng th e co ur se of th e de ba tes, wh en he sa id : “E xp er ie nc e m ust be ou r on ly guide. Re ason may misle ad us. ” Ma x F arr an d , Th e Re co rd s of th e Fe de ral Co nv en tio n of 178 7, II . 278. Mr. F arr an d 

Is re sp on sible fo r th e fo llo w ing s ta te m e n t: “In fa ct , m ak in g allo wan ce fo r th e co mprom ise s an d re m em be rin g th a t th e sta te co nst ituti ons were on ly a fu rt h e r de ve lopm en t of co lonial 

go ve rn m en ts, it is po ss ible to sa y th a t ev ery pr ov isio n of th e fe de ra l co nst ituti on ca n be 

ac co un ted fo r in American ex pe rien ce be tw ee n 177© an d 17 87 .” Ma x F arr and. Fra m in g of

th e C onst itution, p. 204.

44 Jo ur nal, A ct s an d Pr oc ee ding s of th e Con ve nt io n, as se mbled at Ph ila de lp hi a, M on da y, May H , an d di ss olve d Se pte m be r 17, 178 7, whi ch fr am ed th e C onst itution o f th e Uni te d

S ta te s (1 81 9) , pp. 78. 131.

45 Ibi d. , pn. 207ff : F arr an d , Fra mina of th e C onst itution, p. 160: W ill iam M. Meigs, Th e

Gro wth of th e C onst it ution in th e F ed er al Con ve nt ion o f 178 7, Ap pe nd ix, pp. 33 3- 33 6.

48 Meigs, p. 216.

47 12 an d 13 W ill iam III. c. 2.

48 F arr an d . Re co rd s, I I. 185 ; Jo urn al, Con ve nt ion, 1787, p. 225 .

49 3 Mad iso n’s Pa pe rs , 1433.

60 F arr an d . Rec or ds . I I. 419 ; Jo urn al, Co nv en tio n, 178 7, p. 295 .

61 Journ al , Con ve nt io n, 178 7, p. 295 ; F arr an d , Rec or ds , I I, 419 .

62 Jo ur na l, Con ve nt io n, 178 7, p. 295 ; F arr an d , Re co rd s, I I. 426 .

63 F a rr an d , Rec or ds , II . 564.

54 Ib id ., II . 599 ; Jo urn al, Con ve nt io n, 17 87, p. 362.

65 F o r th is de ba te, see F arr an d , Re co rd s, II, 62 6- 62 7 ; f o r th e motion, see J ourn al, Co nv en ­

tion, 178 7, p. 382.
270

tru st, conceiving that the President himself m ight be guilty and that the tra ito rs 

might be his own tools. George Mason agreed, but Gouverneur Morris, also envisaging possibilities of misuse of the pardoning power, subm itted that he “had 

rather there should be no pardon for treason, tha n let the power devolve on the 

legislature .” James Wilson thought pardon for treason was necessary and that it 

should be placed in the hands of the executive. Should the Preside nt be a party 

to the guilt, he could be impeached and prosecuted. Rufus King saw a violation 

of the constitutional sepa ration of powers in the event th at the legislatu re be 

given a sha re in the pardoning power. Moreover, he considered a legislatu re unsuited to the purpose since it would be governed too much by the passions of the 

moment. He suggested the expedient of requiring the concurrence of the Senate in 

the acts of pardon. Jame s Madison admitted the force of the objections to allowing 

the legisla ture to exercise the pardoning power, but he felt that the “pardon of 

treason was so peculiarly improper for the President” t ha t rather than give him 

thi s right, he would acquiesce in its tra nsfer to the legislature. His preference in 

the matter would be to associate the Senate, as an advisory council, with the 

President. Randolph, on the other hand, was unwilling to agree to the allocation 

to the Senate of a share in the pardoning power, for in a collusion of tha t body 

and the Presiden t he saw gre at dang er to liberty. Mason in reply to Madison 

said tha t the Senate a lrea dy had been accorded too much power. But he ap peared 

willin g for Congress to exercise the pardoning power in certain instances, for 

he sa id : “There can be no danger of too much lenity in legislative pardons, as 

the Senate must con [sic] concur, and the President moreover can require twothird s of both Houses.”

This closed the debate. On Randolph’s motion to “except cases of trea son” 

from the operation of the pardoning power there were two ayes and eight noes. 

One delegation, th at of Connecticut, was divided on the question. A fter the failure 

of this motion, the Convention accepted the pardon clause as it had been w ritten 

by the Committee on Style. The pardon clause in the Constitution of the United 

States differs in regard to impeachments from the Act of Settlement of 1701.” 

Yet this expression of P arliam ent served as the basis for the pardon clause in our 

Constitution.

V

During the period from the close of the Philadelphia Convention until the 

Con stitution went into effect, there was, as in the Convention itself, comparatively little discussion of the pardoning power. Some argum ents against placing 

the power of g ranting pardons in the executive, except in cases of impeachment, 

were presented. These arguments in turn evoked replies, most of which can be 

found in the number of The Federalist contributed by Ham ilton.67

One critic of the pardon clau se of the Constitution contended that the Pre sident should not have the power to gra nt pa rdon s; 88 ano ther submitted that pa r­ dons in the cases of treason should not be allowed, at least not before conviction 

or withou t the consent of Congress.5* These and oth er critics conceived that this 

was a very dangerous power which the Preside nt might use to shield his own 

confede rates in case of an abortive attem pt to subv ert the Constitution, or to 

stop investigations and, as a consequence, to avoid detection, since he could gran t 

pard ons before ind ictme nt* The gre atest misgivings about confiding this power 

to the President arose out of a contemplation of th e crim e of treason.*1

 The critics held that in treasonable conspiracies the Pre sident himself w’ould likely be involved and, entrusted with the pardoning power, would have in his hands an 

ins trume nt with which he could prevent proper punishment of his confederates. 

If clemency were considered for the offense of treaso n. Congress, not the Pre sident, should be given the power of decision.

Some of the members of the ratifyin g Conventions who favored the con stitution al grant of the pardoning power contended, first, th at such a power should 

be lodged somewhere in a government. They argued th at the testim ony of an

M For the content of the Act of Settlemen t, see 12 and 13 William II I, c. 2 ; for the point of difference, see below, p. 62. 67 The Federalist, A Commentary on the Constitution of the United States, Henry Cabot Lodge, editor, No. 74.

88 Jonatha n Elliot, The Dehates in the Several Sta te Conventions on the Adoption of the Federal Constitution . . . (ed. of 1907). II I. 497. 58 Elliot's Debates. II. 40R. and Elliot's Debates, I. 491. *° See Lu ther Martin : “Genuine Info rmation,” and “An Earlier Stage of Martin ’s Genuine 

Information Farrand. Records, III. 218. 158 : Elliot’s Debates, II I. 497. « The Federalist, Lodge, editor, p. 464 ; Elliot’s Debates, IV, 110-113.
271

accomplice, which was n ecessary to secure a conviction, could best be obtained by clemency from the executive and th at a spy se rving the executive in time of wa r could only be saved by clemency from the executive who alone knew of his se n - ices. The latte r need for clemency would arise if the President, seeking inform a­ tion concerning the enemy, would secretly send a man of some importance as a spy to obtain such information. By feigning resentment against his own country, the spy would possibly be received by the enemy into favo r and confidence, making i t possible for him to get valuable information for the President. After completing his mission and secretly transm itting the information to the President, the spy would retu rn to his own country where he would be regard ed with disfavor by the people fo r his supposed treason, since the people would be un aware of his service to the country. The spy’s life migh t even be endangered. Should not the Pre sident be able to exercise the pardoning i>ower without inte rference from the legislature 

under such circ umstance s?82 In the second place, the proponents of executive 

clemency deemed a legislature unsu ited to the exercise of the po we r; hence the power could not be better placed tha n in the executive. During the d ebate in the Virginia Convention, Madison said it would be extremely improper to vest the power in the House of Representatives and not much less so to vest it in the Senate, since numerous bodies were actuated more or less by passion.83 These 

bodies, moreover, would not alwa ys be in session, which would possibly occasion fatal delay in such a case as a rebellion, when an othe rwise well-timed offer of a pardon to the insu rgents might restore tran quillity. Then, too, in numbers there would be greater dange r of connivance, more encouragem ent to an act of obduracy, and less fea r of suspicion or censure for an injudicious exercise of the power of pardon. But by placing the power to gra nt pard ons in a single executive these 

difficulties would be avoided. As Hamilton e xplai ned: “Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be a s little as possible fettered or embarrassed . . . As the sense of responsibility is alwa ys strongest, in proportion as it is undivided, it may be inferred th at a single man would be most ready to atte nd to the force of those motives which plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection th at the fat e of a fellow-creature depended on his sole

fiat, w’ould n atu rally inspire scrupulousness and ca ution; the drea d of being ac­ cused of weakness or connivance, would beget equal circumspection, though of a 

different kind.” 64

Hamilton furth er argu ed th at a single executive could act with as much dis­ patch as would be requ ired in cases of insu rrec tion or of rebellion. To the con­ tention that Congress rather than the President should have power to grant pardons in cases of high treason, Roger Sherm an replied in The New Haven

Gazette: “It does not appear th at any gre at mischief can arise from the exercise of th is power by the president (though perhaps it might as well have been lodged 

in cong ress).” 88 Sherman pointed out also with respect to the general power of pardon th at the President could not gra nt pardons in cases of impeachment, so 

that impeached officials could alway s be excluded from office. Thus the members of the ratifying Conventions continued the arguments con­ cerning the advisability of entrusting the executive with the power of clemency, but the pardon clause remained as it had been approved by the Philadelphia Convention. The discussion in these ratifying Conventions had served only to stre ss the rela tive advanta ges and disadvantag es of lodging the pardoning 

power in the executive.

92 E llio t’s Deb ates, IV . 11 0- 11 3.

•» E llio t’s De ba tes, I II. 498.

94 T he F ed er al is t, L odge, ed itor , pp. 46 3-46 4.

95 The F ed er al is t an d Oth er C onst it utional Pa pe rs, E . H. Sco tt, ed itor , II, 608.

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