GOVERN MEN

AUTHORITY TO ISSUE FINAL REPORT 

BY SPECIAL PROSECUTOR

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> U M E nt

AUG 9 ,975

"i'H E L I B R A R Y 

Ka n s a s state u n iv e r s it y

H E A R IN G

BEF O R E T H E

SUBCOMMITTEE ON CRIM INAL JUSTICE

OF T H E

COMMITTEE ON TH E JUD ICIARY 

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TO PR OVID E TH E O FFIC E OF T H E W ATE RG ATE SP ECIA L 

PR OS EC UT IO N FO RC E W IT H TH E AUTHORIT Y TO IS SU E A 

FU LL AN D CO M PL ET E FI NAL R EPO R T ON IT S IN VEST IG ATI ON IN TO W AT ER GA TE AN D REL A TE D MAT TE RS

JANU AR Y 30, 1075

Serial No. 9

n

o

P ri n te d fo r th e use of th e Com mitt ee on th e Ju dic ia ry

52-901

U.S. GOVER NM ENT P R IN T IN G O FFIC E 

W ASH IN GTO N : 1975
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COMMITTEE ON THE JUDICIARY

PE T E R W. R OD INO, J r., New Jersey, Chairman

JA CK BRO OK S, Texas 

RO BER T W. K AST EN M EI ER , Wisconsin 

DON EDWA RDS, California

WILL IAM L. H UNGA TE , Missouri 

JO HN CO NY ER S, J r., Michigan 

JOSHUA EIL BERG, Pennsylvania 

WAL TE R FLOW ERS, A labama 

JAM ES R. MAN N, South Carolina 

PA UL S. S AR BA NE S, Maryland 

JO HN F. SE IB ERLIN G, Ohio 

GEO RG E E. DA NI EL SO N, California 

RO BER T F. DRI NAN, Massachusetts 

BA RB AR A JOR DA N, Texas 

RA Y TH ORN TO N, Arkansas 

EL IZAB ET H HOL TZM AN, Now York 

ED WA RD ME ZVINSKY, Iowa 

HE RM AN BA DILL O, New York 

ROMANO L. MAZZOLI, Kentu cky 

EDWA RD W. P AT TI SO N, New York 

CHRIS TOPH ER J. D OD D, Connecticut 

WILL IAM J . HU GHES , New Jersey 

MA RT IN A. RUSSO , Illinois

Earl C. Dudley, Jr., General C ounsel

Garner J. Clin e, St aff Director

H erbert F uchs, Counsel

William P . Shattuck, Coun sel

, Alan A. P arker, Counsel

J ames F. Falco, Coun sel

Maurice A. Barboza, Coun sel

T homas W. H utchison, Counsel

Arthur P. E nder s, Jr. , Coun sel

Daniel L. Cohen, Coun sel

F ranklin G. P olk, Coun sel

T homas E . Mooney, Counsel

Michael W. Blommer, Coun sel

Alexander B. Cook, Coun sel

Constantine J. Gekas, Coun sel

Alan F . Coffe y, Jr., Coun sel

Kenneth N. Kle e, Counsel

EDWA RD HU TC HI NS ON , Michigan 

RO BER T MCCLORY, Illinois 

TOM RA ILSB AC K, Illinois 

CH AR LE S E. WI GG INS , California 

HA MI LT ON FISH , J r., New York 

M. CAL DW ELL BUTLER , Virginia 

WILLIAM S. CO HE N, Maine 

CARLOS J. MO OR HE AD , California 

JO HN M. A Sn BR OOK, Ohio 

H EN RY J. HYDE, Illinois 

THOM AS N. KIND NE SS , Ohio

Subcommittee on Crim ina l J ustice

WILLIAM L. H UNGA TE , Missouri, Chairman

JAM ES R. MAN N, South Carolina CH ARL ES E . WIGGINS , California

RAY TH ORNTON, Arkansas H E N R Y J. HYDE, Illinois

EL IZAB ET H HOLTZM AN , New York

MA RT IN A. RUS SO, Illinois

T homas W. H utchison, Coun sel

Robert J. T rainor, Counsel

Steph en P. Lynch, Research Ass ist an t

Michael W. Blommer, Associate Counsel

In)
C O N T E N T S

Witnesses— Pag e

Henry Ruth, Special Prosecutor, Waterga te Special Prosecution F orce, 2 

Leon Jaworski, Form er Special Prosecutor, Watergate Special Prosecution Force______________________________________________ 2

Prof. James Vorenberg, Assistant to the Special Prosecutor, Watergate Special Prosecution Force_______________________________ 2

Peter Kreindler, Counsel to the Special Prosecutor, Watergate Special

Prosecution Force__________________________________________ 2

(in)

AUTHORITY TO ISSUE FINAL REPORT BY SPECIAL

PROSECUTOR

THU R SD A Y , JA N U A R Y 30 , 19 75

H ouse of R e pr e se n t a t iv e s,

S u bco m m it tee on C r im in a l J u st ic e

of t h e C om m it tee on th e J u d ic ia ry,

Washington, D.C.

The subcommittee met, pursuant to notice, at 9:40 a.m., in room 

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

[chairman of the subcommittee] presiding.

Present: Representatives Hungate, Mann, Thornton, Iloltzm an, 

Hyde, and Hutchinson [ranking minority member of the full committee].

Also present: Robert J. Trainor, counsel; Stephen P. Lynch, research assistant; Constantine J. Gekas, associate counsel.

Mr. Hungate. The subcommittee will be in order.

We welcome today Mr. Henry Ruth, the Special Prosecutor, Leon 

Jaworski, the former Special Prosecutor, and Prof. James Vorenberg, 

Assistant to the Special Prosecutor.

Today, the Subcommittee on Criminal Justice of the Judiciary 

Committee is considering legislation seeking to provide the Office of 

the Watergate Special Prosecution Force with the authority to issue a 

full and complete final report on its investigation into Watergate and 

related matters. Much of the legislation concerning this issue was 

initially introduced in the House and referred to this subcommittee 

in the 93d Congress following President Ford’s pardon of former 

President Nixon.

Several of the sponsors of these proposals appeared before the subcommittee during the previous session of Congress. They were unanimous in stating that their overriding purpose in introducing legislation 

on this issue was to insure tha t a complete record of Watergate and its 

related events is made public.

This committee, along with other congressional committees, has 

issued volumes of testimony, documents and reports on the subject of 

Watergate. The most recent Watergate trial did much to chronicle the 

events leading to the break-in and its coverup. While this information 

has substantially added to the public’s understanding of Watergate, 

many continue to question whether the full and complete story of 

Watergate and related events has been publicly recorded. Many of 

these are hoping that the final report to be issued by the Special 

Prosecutor, as required by Department of Justice Order 551-73, will 

detail the full and complete story of Watergate and other investigations 

undertaken by the Special Prosecutor’s office.

(1)
2

Questions have deve loped concern ing the prese nt au th or ity of the 

Office of the W ate rgate Special Prosecu tion Force to pre pare and issue 

suc h a tho rou gh rep ort. In addition , the sub comm itte e has heard 

tes tim on y expressing concern over the possible violation s of due 

process should such a r ep ort be pub lish ed. In ord er to confr ont thes e 

pro ble ms directly, the sub com mittee has inv ited Special Prosecuto r 

He nry Rut h, former Special Prosecu tor L eon J aworski, and As sis tan t 

to the Special Prosecu tor Jame s Vorenbe rg to offer tes tim ony on these 

issues. I w an t to welcome these three distinguished attorney s a nd tha nk 

them for their willingness to assist th e subcom mittee in its consideratio n 

of this im po rtan t matter. These distinguished pub lic servan ts and the 

office they rep res ent h ave performed the ir sensitive d uties w ith diligence 

and fairness. Because of this, a lam entab le ch ap ter in our N at io n’s 

his tor y has at the same time demon str ated the str en gth and viability 

of our ins tituti ons.

Sha kespeare, in “K ing Lea r,” counsels us as to the danger of 

“ und ivulged crim es unw hipped of justice.” The Special Pr os ec utor’s 

final rep ort , whe n filed, may or may no t divulge any new crim es, bu t 

as long as tlie real vict ims of W ate rgate— the Am eric an people— do 

no t hav e all the available facts, it will be justice which has been 

whi pped. T hat was no t the intention of Congress in estab lishin g the 

Special Pros ecutor’s office. The Congress may be a bea st, as has been 

said, bu t it is a ju st beast.

We welcome you , gentlemen, and you ma y proceed as you.see fit.

Mr. Hu tch ins on, do you care to make any opening s tatemen t?

Mr. H utc hin son. No, Mr. Chairma n.

Mr. II ung ate. Well, the n proceed, Mr. Ru th.

TESTIMONY OF HE NR Y RUTH, SPE CIA L PROSECUTOR, WA TERGATE

SPECIAL PROSECUTION FORCE, ACCOMPANIED BY LEON JAWO RSKI, FOR MER WA TERGATE SPECIAL PROSECUTOR; PROF. JAM ES

VORENBERG, ASSISTANT TO TH E SPECIAL PROSECUT OR; AND

PE TE R KR EIND LE R, COUNSEL

Mr. R ut h. Mr. Chairma n, I appre cia te the op po rtu nity to ap pe ar 

before this subcom mittee to present my views on proposed legisla tion 

th at would req uir e the Special Prosecutor to issue a detailed evi dentia ry r ep or t on forme r Presi dent Ri ch ard Nixon’s inv olv em ent in any 

offense again st the Un ited State s.

At the ou tse t, Mr. Ch airma n, I wan t to than k you and the subcom mittee me mb ers for yo ur pa st su pp ort and yo ur continuing interest in the work of the W ate rgate Special Pro sec ution Force.

As this subcom mittee is aware, the Office’s ch arter states th at :

The Special Prosecutor may from time to time make public such statem ents 

or reports as he deems appropriate and shall, upon completion of his assignm ent, 

subm it a final repo rt to the appropriate persons or entities of the Congress.

Pu rsua nt to this provision, we have issu ed perio dic pub lic stat us 

repo rts of the various pro secutio ns and othe r m atters handled by the 

Office and we will issue a final repo rt upon the ter mination of our 

resp onsibilities.

Th e proposed legislation th at is the subject of this hearing requ ires 

release by a prosecutor’s office of raw evid ence involving M r. Nixon.
3

Presumably, the rationale of such a requirement is the American 

public’s need to know the n ature and quality of any possible corruption in the highest office of the land from 1969 to 1974. I think it 

appropriate first to examine the existing record already available to 

the Congress and the American people.

To a large extent, the goal of public disclosure as to the so-called 

Watergate coverup has been accomplished by the impeachment 

hearings and conclusions of the House Judiciary Committee, the 

hearings of the Senate Select Committee on Presidential Campaign 

Activities and the information made public by the Special Prosecutor’s Office through normal judicial channels. As you know, this 

information includes the grand jury report submitted by court order 

to the House Judiciary Committee and the introduction into evidence 

at the recent Watergate trial of the available White House tapes of 

conversations central to the obstruction of justice charges in which 

Mr. Nixon had been named as an unindicted co-conspirator. The 

transcripts of those tapes are now public.

As to non-Watergate matters, the trial in July 1974 as to the 

break-in at the office of Daniel Ellsberg’s psychiatrist, Dr. Fielding, 

revealed much of the available evidence as to that activ ity by the 

so-called White House plumbers group. Several civil suits have also 

revealed much information about many non-Watergate matters. And 

finally, both the impeachment proceedings and the Senate Select 

Committee hearings referred to above involved extensive inquiry, 

and a subsequent massive public release of materials, relating to 

allegations other than the Watergate break-in and coverup.

As to remaining issues warranting public disclosure, the recently 

enacted Presidential Recordings and Materials Preservation Act, 

Public Law 93-526, designed to preserve the tapes and millions of 

documents of the Nixon administration, enables the American public 

to gain access to voluminous data not now available even to the 

special prosecution force. The act requires the Administrator of 

General Services to issue regulations in March to provide controlled 

public access to these materials, with a view toward providing the 

public—in the words of the act—“ * * * the full truth, at the earliest 

reasonable date, of the abuses of governmental power popularly 

identified under the generic term ‘Watergate.’ ” Mr. Nixon is attacking 

the constitutionality of this act in the court system.

With this background of extensive information already in the public 

domain or already legislated to become public, one must address 

the question whether a prosecutor, absent the normal procedural and 

substantive safeguards of a judicial proceeding, should be required to 

take the radical step of releasing raw investigative files or issuing a 

detailed evidentiary report about the possible complicity of one individual, a former President now pardoned for any offense. One must 

address this question also in the knowledge tha t it is virtually impossible to release evidence just as to this one person. A President operates 

primarily through the actions of others, and a report as to Mr. Nixon 

necessarily would involve release of raw evidence and allegations as 

to many other persons.

As a person and a citizen, I understand and sympathize with the 

desire to make public all the available facts concerning former President Nixon’s possible involvement in matters under investigation by
4

our office. But I mu st answer the question at hand firs t with a firm 

eye on the necessa ry and desirab le lim itatio ns th at our freedom and 

our ideals place upon the awesome powers of a pro sec uto r. I believe 

th at Congress always has been attune d acu tely to the na tu re of these 

lim ita tio ns. Th e need for co ns tant checks on the powe r of invest iga tiv e 

and pro sec utive arm s of the Go vernme nt is now reflected by cu rre nt 

congressional inquiries into prote cti on of priva cy and into possible 

abu ses of the intelligence functio n.

As a pro secutio n office, we h ave never re ad our ch arter as perm itting 

the dissemination of evide nce involving specific ind ividuals gathe red 

during the course of our investigations, and I have do ub ts abo ut the 

legality of any legislation which authorizes such con duct. One consequence of such a law is definite. Th e issuance by the Special Pro secutor of an evide ntiary repo rt on the act ivities of ind ividuals no t 

form ally charged in a court of law would be the subje ct of extend ed 

litigat ion . Here are the p roblem s I foresee.

Mu ch of the docume nta ry evidence now in our files has been 

gathe red pu rsua nt to a gra nd jur y or tria l subpena and mu ch of 

the oral testim ony exists in rep orted form only in grand ju ry m inu tes. 

Un der tradit ion al legal principles, evidence received in th at m anner— 

for a pa rti cu lar purp ose—normally ma y no t be used for a wholly 

separat e purpose unconn ected with any judicial proceeding. Fu rthe r 

com pounding this problem is the fact th at much of the rel ev an t material, such as tape recordings of Presiden tial con versations, would be 

alm ost sure ly enveloped in exte nsive litigat ion after challenges filed 

in court on the basis of Ex ecutive privilege.

Fo r exam ple, in United States v. Nixon, 418 U.S. 683, 94 Sup. Ct. 

3090 (1974), the Supreme Co urt did no t hold th at th e tap e recordings 

and other item s sub penaed from the Presi dent for the W ate rgate 

con spiracy tria l were unp rivileg ed; rather, the Co urt ruled un an imo usly th at the ma terials were pre sum ptively privileged from disclosure bu t th at the partic ula rized need for evidence relevant to a 

crim inal proceed ing in th at instan ce was of sufficient force to ou tweigh the privilege. The C ou rt specifically discla imed d ecid ing wheth er 

the privilege would prev ail in other con tex ts where the demo nstra ted 

need for disclosure was not as compelling. We need no t discuss who 

ma y ass ert the privilege—wh at is c lear is th at this office has no power 

to waive it, and, unless it is waived, we would not be free un de r United

States v. Ni xo n to disclose pub licly any tap ed con ver sation s th at 

rem ain confidential.

An equ ally if no t more im po rta nt poten tial prob lem, in my view, 

concerns notions of fundam ental fairn ess which form the core of the 

fifth am endm ent rig ht to due process of law. The tra ditio nal role of a 

prosec uto r is to con duct inv est iga tions leading to the possible pre sen tatio n of criminal charges for adjud ica tio n by the courts with all 

at te nd an t safeguards for ind ivi dual rights. The pro sec uto r is to be 

as adv oca te, no t a judge. 1 do ub t th at the Congress should autho rize 

any pro sec uto r, no m at te r how laudib le the ap pa rent objective, to 

issue an ad hoc pub lic repo rt on an ind ividual’s possible crim inal 

activ ity .

But several of the bills referred to this sub com mittee would allow 

the Special Pro sec uto r the unres traine d au thor ity to issue accusatory, 

pub lic rep orts, unc onn ected with an y judicia l or grand ju ry proceed-
5

ing. And this ma nd ate would issue as to Mr. Nixon who alr ead y has 

been the subje ct of one gra nd ju ry rep ort and concern ing whom gre at 

qu an tities of inform atio n, referred to abov e, have alread y been 

released to the public in various foru ms. Historically, the gra nd 

jury has served to prote ct citizen s again st overreaching or unfair 

accusation s by a Fed eral pro sec uto r. On those rar e occasions when a 

grand ju ry believes it leg itim ate to issue a repo rt of the evidence 

it has hea rd, such as occ urred du rin g the im peach me nt inq uiry, 

those persons adv ersely affected have been give n the op po rtu nity in 

court to seek its suppres sion prior to any public diss emination . 

Ind eed , in the Omnibu s Crim e Control Act passed by Congress in 

19 70 , “sp ecial grand jurie s” were autho riz ed to issue public rep ort s 

ab ou t organiz ed crime and official corru ption only aft er following a 

complex procedure designed to pro tec t due process rights . See 18 

U.S.C. sec. 3333. Before an y rep ort is pub lish ed, a court mus t determine th at it is supported by evidence and th at all affected indiv idu als have had an op po rtu nity to respon d to charges. 1 would be 

surprised if the normal restrain ts on a grand ju ry ’s issuance of an 

evide ntiary rep ort could be cir cumv ented merely by authorizing 

the pro secutor to publish the evidence on his own.

Mo reover, I would be he sita nt to suffer any comprom ise of the 

normal stat us accorde d a prosecutor’s investigatory files, which 

Congress consistently has recognized in tlie Fre edo m of Infor ma tio n 

Act. See 5 U.S .C. sec. 552 (b)( 7). Several citizens have confided in 

our Office on the implicit un de rst an ding th at the evidence they were 

pro vid ing would no t becom e public exce pt whe n nec essary in the 

conte xt of a judicia l proceeding. In ma ny instances, thes e witnesses 

appeare d before the gra nd ju ry and received the add itio nal assuranc e 

offered by the normal rules of grand ju ry secrecy. In addition , it 

should be rem embered th at the re exists evidence in our files, as in 

eve ry prosecutor’s files, which is extrem ely dam aging to certain 

perso ns, bu t which is essentially uncorroborated or does no t su pp ort 

crim inal prosecutio n. Never theless, pub lica tion of this evidence w ould 

“punis h” these ind ividuals wi thou t an y procedures to prote ct their 

rights.

We view our final rep ort as dealing princi pally with the history, 

admi nis tra tio n, and org ani zation of our office, both internally and in 

its dealings with the Dep artm en t of Justice and othe r organs of the 

Fed eral Go vernme nt; the bac kgrou nd and im ple me nta tio n of office 

policies concerning such areas as initia tio n of pr osecution, plea negotia ­

tion, and im mu nit y, as well as a summ ary of the majo r subs tan tiv e 

work of each of our offices tas k forces. We also an tic ipate th at the 

final repo rt will include evalu ations and recom mendations, to the 

exten t th at our experience and degree of expertise wou ld make such 

impressions useful.

In the face of the ma ny pub lic disclosures ab ou t “W aterga te” 

which alr eady hav e been made, and of the even more volumino us 

disclosures which eve ntu ally will occur un der the Pre sidential Recordings and Mate ria ls Prese rvation A ct, I strongly que stio n the n ece ssity 

or desirability of requiring the W ate rgate special pro sec ution force 

to issue an evide nti ary rep ort such as has been proposed, especially 

in light of what I perceive to be the weigh ty legal obj ections to—and 

the extrem ely un fortu na te pre ced ent of— th at acti on.

5 2 -9 0 1— 75 ------ 2
6

Thank you, Mr. Chairman.

Mr. Hungate. Thank you, Mr. Ruth.

Mr. Jaworski, would you care to make a statement now?

Mr. Jaworski. Mr. Chairman and members of the committee, 

I do not have a prepared text. I am familiar and have been familiar 

with Mr. Ru th’s views on this subject because frankly we discussed 

it before I left here.

I also discussed the subject at some length with Mr. Vorenberg.

I do not think there is any difference of opinion in our views. If I 

were to say anything in addition to what Mr. Ruth has pointed out, 

it probably would be that, during my days as special prosecutor I 

was given information on a large number of occasions tha t was quite 

confidential and I received it under the promise th at it would not be 

revealed unless it became necessary to do so in a criminal proceeding.

I, perhaps, should add that I listened to some tape recordings at the 

White House that have not been made public and tha t former President Nixon permitted me to listen to under the assurance that I would 

keep the m atter confidential. His purpose in letting me listen to them, 

Mr. Chairman, was to convince me tha t they had no relationship 

to the charges tha t were being brought and the matters tha t were 

under investigation by the grand jury or grand juries.

I listened to a number of these tape recordings, I do not think I 

would be authorized to disclose what they contained and this presents 

a problem. If we were to write a full and comprehensive report, there 

are many discussions that I had tha t were under the assurance of 

confidence. So I would be in a dilemma of either not disclosing something tha t I knew and yet would be attempting to say that I was 

making a full report of all tha t I knew, or to take the other hand, 

I would be then engaging in the disclosure of something I had promised 

I would not divulge.

I would like to emphasize one additional matter, Mr. Chairman. 

That is, I think we do have to draw a distinction between the type of 

report th at a commission or a committee might make and that which a 

prosecutor makes. I think there is a very distinctive difference in the 

two functions. I just do not believe th at the filing of a report on matters 

tha t did not involve the filing of charges is a p art of the prosecution 

function and this is where I draw a strong line in between what has 

been proposed in these bills and what I believe our function is 

under the charter under which we operated.

Thank you very much, Mr. Chairman.

Mr. Hungate. Thank you. Mr. Vorenberg?

Mr. Vorenberg. I have no prepared statement. I would like to 

simply go over a couple of observations really in support of what Mr. 

Ruth and Mr. Jaworski have said.

From the vantage point of somebody who has had for some time 

now special responsibility for worrying about what should be in the 

report of the special prosecutor, it seems to me it boils down to the one 

tha t Mr. Ruth talked about, and that is, essentially, a balance between 

the importance of fullest possible disclosure of all the facts, and in 

evaluating tha t one has to look at not only what has already come 

out, but what is likely to come out under the Presidential Materials 

Reporting Act and the other means Mr. Ruth has talked about.
z

The other side of the balance, even though it may be more subtle, 

and seems to me to be enormously important, is the unfairness tha t 

is involved in a prosecutor releasing raw data tha t he has obtained in 

the way tha t Mr. Ruth has described.

It seems to me that if the Watergate special prosecution office, 

which has had all of the support, has been the focus of so much atte ntion in this country, cannot establish and hold decent standards for 

protecting the rights of individuals as well as its work in investigation 

and prosecution, it raises very serious problems for the administration 

of justice generally.

As somebody who teaches criminal law and who worries a lot about 

the already very broad power of prosecutors in this country, it seems 

to me it would establish a very dangerous precedent if this office 

which has been set up under these circumstances were to cross what I 

think is an extremely im portant protective line.

For tha t reason I fully support w hat Mr. Ruth has said.

Mr. H ungate. Thank you, gentlemen.

The questioning will proceed under the 5-minute rule and the Chair 

recognizes the Congresswoman from New York.

Mr. Ruth. Mr. Chairman, could I introduce the gentleman to my 

left, Peter Kreindler, who is my counsel and counsel to the Watergate 

Special Prosecution Force.

Mr. Hungate. We welcome you. Did you have a statement you 

would like to make?

Mr. Kreindler. No, sir.

Mr. H ungate. Ms. Holtzman.

Ms. H oltzman. Thank you, Mr. Chairman. I would like to welcome all of you and also Mr. Vorenberg who taught at Harvard 

Law School when I was there.

I have a final question tha t is rather brief but goes to the heart of 

some of the assertions you have made here.

You claim tha t publishing evidence tha t you have accumulated 

with respect to President Nixon’s misconduct would somehow violate 

some rights that he may have, and I am extremely curious about this 

assertion you make, because it seems to me tha t when former President 

Nixon accepted a pardon he waived his right to have these allegations, 

this evidence, tested in a criminal forum. He had a right to tha t— 

all of us would have acknowledged it—bu t he waived that right 

when he accepted the pardon. And so it seems to me that your 

concern is really not a substantial concern, as you assert it.

Would you care to comment on that?

Mi. Ruth. Well, when you say he waived the rights by accepting 

a pardon I think he only does tha t in your words because you use 

those words.

There is nothing implicit in the pardon tha t implies a waiver of 

any other constitutional right.

Ms. H oltzman. What is this constitutional right tha t you say he 

has here?

Mr. Ruth. I think what we are looking at is the basic fifth amendment right to due process of law, and w'lien you say to test a criminal 

offense in a court of law, tha t isn’t what these statutes, as 1 understand them, tha t are proposed here say. They say publish all the 

evidence which tells about any involvement by Mr. Nixon in any 

offense.
8

I don’t know what involvement means.

Does tha t mean that as one walked in our door and made an 

allegation tha t Mr. Nixon did this or did tha t under those bills I 

would have to release that?

Now, if you are talking about evidence-----

Ms. Holtzman. Could I interrupt you because I don’t think you 

are really answering my question?

Mr. R uth. I am in the middle of my answer if you let me finish.

Ms. Holtzman. I would like to know what rights you think are 

being violated here, in view of the fact tha t Mr. Nixon has accepted 

a pardon. I am not talking about your problems with the word 

“involvement” or how you would deal with those problems in figuring 

out how to write a report. 1 would like to know how you answer that 

question.

Mr. Ruth. Well, as T understand the law, that any citizen, including Mr. Nixon, who is a citizen, has the right not to have a 

prosecutor release on the public record evidence in his files unless 

a balancing procedure is gone through where the public need is 

measured against the possible damage to an individual.

Now I know what is in a prosecutor’s files as to any particular 

individual. Much of it is pure allegation, much of it is totally uncorroborated, much of it cannot be proved by preponderance of the 

evidence let alone beyond a reasonable doubt. And to just allow 

evidence to be released as to any individual no matter who said what, 

whether i t’s untested, I think you get into a fifth amendment problem 

and you certainly end up in a court of law.

Ms. Holtzman. But you have missed the point I made because Mr. 

Nixon waived his right to have these allegations proved against him 

beyond a reasonable doubt, and that seems to me to be the crux of the 

matter.

Mr. Ruth. You are assuming that every allegation in our files would 

have ended up as a formal accusation against Mr. Nixon.

That is not true.

Ms. H oltzman. I can’t imagine this report calls for you to include 

information that you think is totally unfounded and that you would 

have a problem-----

Mr. Ruth. Then you would have to interpret it.

Mr. II ungate. Would it be possible, Mr. Ruth, tha t there might 

be a different standard or different problem as to Mr. Nixon who has 

been pardoned, and to other individuals mentioned in the investigation as to possible criminal activity?

Mr. J aworski. That is what I wanted to address myself to briefly. 

I understand the point tha t you make. So much of this doesn’t relate 

to Mr. Nixon at all.

For instance, what I addressed myself to in the matters tha t I 

heard involved dozens, actually dozens of other people and their 

rights are very much at stake. If we are going to make a full report and 

if we were to comment on all of the different things that were charged, 

many of which I think were absolutely wrong, as a matter of fact, 

then we would be invading the rights of third parties. It is not just a 

case of Mr. Nixon.

I agree with Mr. Ruth; I think tha t he still has his rights. Just 

because he received a pardon doesn’t authorize us to go ahead and
comment on certain things th at we may have looked into and found no 

basis for charges.

Ms. II oltzmax. May I ask you this question then? I don’t think 

the point is that he received a pardon. I think the point is he accepted 

a pardon. Second, is your argument that you as prosecutors can’t 

write a report hut tha t a commission using the same evidence could 

write a report? Is that the argument—are you saying that it is a violation of due process if you people write a report but it is not a violation 

of due process if a commission writes a report? Let’s leave aside for 

the moment the question of the third party rights because in my judgment tha t is a much more serious question than this one tha t you have 

presented.

Mr. J aworski. I think you would be in violation on both counts 

whether a commission did it or whether we did it. I was merely 

pointing out there were some areas tha t perhaps a commission or a 

committee could go into properly and that a prosecutor doesn’t go 

into.

Mr. II ungate. Mr. Vorenberg.

Mr. Vorenberg. I am rather puzzled by the suggestion tha t the 

acceptance of a pardon carries with it the waiver of these due-process 

rights.

I suppose it is conceivable as a matter of law tha t President Ford 

could have conditioned the pardon on the release of certain information. I am not at the moment dealing with whether that would have 

been a valid condition or not. But 1 don’t understand the notion that 

the acceptance of the pardon carries with it a wholesale waiver of 

every fifth amendment or other due process right that apparently has.

Ms. II oltzman. No, I didn’t say it waived all of his rights. What 

I am suggesting—and it is obvious you haven’t thought about it 

because 1 think your argument reflects the fact that you haven’t— 

what I am suggesting is the fact that he accepted a pardon m eant tha t 

he waived his right to have these charges presented against him in a 

court of law, and to be found guilty with respect to these charges 

beyond a reasonable doubt. So these charges, or the allegations with 

respect to him, need not be presented within the context of a criminal , proceeding. It seems to me that he has waived his right to demand tha t 

kind of due process by accepting a pardon. You keep saying tha t he 

has these “rights,” but I haven’t heard you define what they are.

Mr. Vorenberg. I am simply puzzled, I don’t know what the 

source of tha t waiver is, where you find th at.

It seems to me it may be true that he has waived his right to a trial 

but that waiver does not carry with it a waiver of the right to every 

other protection against the raw release of material.

Ms. IIoltzman. What is a raw release of material?

Mr. Vorenberg. The release of material from the prosecutor’s 

files, which, but for the waiver tha t you seem to think exists here, 

would be unfair and I think unconstitutional.

Ms. Holtzman. You accept the argument that it would be equally 

unconstitutional for a commission to pu t forward these materials 

tha t they found with respect-----

Mr. Vorenberg. 1 think it makes a great difference whether the 

commission is putting forward materials from the Special Prosecutor’s
10

files and, materials tha t it may obtain, let’s say, by a process of eminent domain, Government ownership-----

Ms. Holtzman. Is it a constitutional difference?

Mr. Vorenberg [continuing]. Because I think the difference is the 

process by which they were obtained. Materials tha t were part of the 

official files of the White House and have not been obtained through 

the legal processes of the prosecutor are in a different status than 

materials tha t have been obtained by subpena and the other ways 

that Mr. Ruth has described.

Mr. Hungate. Mr. Vorenberg, is there not a case that holds you 

have to accept a pardon for it to be effective?

Mr. V ORENBERG. Yes.

Mr. Hungate. Tha t would have to be done. So then the question 

would be what the consequence of tha t acceptance would be? In 

other words, a pardon doesn’t happen unless you accept it; is that 

right?

Mr. Vorenberg. Yes, but I think the acceptance does not carry 

with it a complete waiver of rights of every kind. Nobody could say 

that by accepting the pardon Mr. Nixon obligated himself to go on 

television every 5 minutes for the next 5 years and say I am guilty, 

1 am guilty. That might have been built in as a condition.

Mr. Hungate. Some feel tha t once would be nice. [Laughter.]

Mr. Vorenberg. Some people might say tha t should have been 

built in as a condition but it wasn’t, and if we are talking as lawyers it 

seems to me we ought to at least ask ourselves where the waiver 

comes from.

Mr. Hungate. Mr. Jaworski, just two things before we go on here.

As I understand it, President Nixon, then President Nixon, asked 

you to come dowm to listen to certain tapes on the promise tha t you 

would not divulge the information you heard therein, to establish 

tha t these tapes had nothing to do with the investigation underway. 

That is how I understand it?

Mr. Jaworski. That in substance is correct.

There is one additional factor I should mention. The nature of the 

conversations were highly embarrassing. Some of them related to 

men who were then in public office and some of them are still in public 

office. He wanted to demonstrate that they did not relate to the 

matters tha t we had under investigation but he certainly didn’t 

intend that what had been said about these men in some of the 

conversations should be made public.

Mr. Hungate. The only thing I am thinking, if I could get that 

condition out of a prosecutor, tha t is when I would let him hear the 

one where I robbed the bank. B ut as I understand your general testimony there is nothing in there tha t concerns you particularly of a 

criminal nature, or other substantial nature.

Mr. Jaworski. That is correct, tha t is the reason they weren’t 

used.

May I make this illustration. I think, for instance, tha t the testimony with respect to the Watergate coverup, as it is generally termed, 

is complete. I don’t think you are going to find very much on tha t 

subject tha t hasn’t been made public through the trial. I said this a 

number of weeks ago and I still believe tha t to be true.
11

Now, former President Nixon was named an unindicted coconspirator and as a consequence all of the testimony relating to what 

he had done t hat the prosecutor wanted to use, and I think he used 

everything tha t he had, came out during the course of tha t trial, so 

there is not very much else th at can be added to it.

I think there is an instance where appropriately the evidence has 

been revealed.

Mr. Hungate. As I take your position from your testimony you 

would employ a great deal of caution; if the grand jury is not going to 

indict somebody you are not a grand jury report issuer, printing a 

report and making comments on a bunch of things on which they had 

not seen fit to indict.

Mr. J aworski. I think tha t is right. If you will recall, the grand 

jury did make a report tha t went to the House Judidiary Committee. 

You remember it was a report tha t was very carefully diafted. It 

was not accusatory. I think the courts would not have permitted 

tha t particular report to have gone to your committee, sir, had it 

not been th at it was nonaccusatory in nature. As a matter of fact, the 

court, when the case was argued last, laid stress upon tha t particular 

point. The court felt it was appropriate matter to go to the House 

Judiciary Committee because it was simply a presentation of evidence 

and in no sense made any accusation or any charges.

Mr. H ungate. There is a precedent, however wise or unwise it might 

be, is there not, of grand juries making reports when they declined to 

indict? Sometimes the reports are rather harsh or the individual mentioned, or of the conditions described as when they describe jail 

conditions or how they are running a country or how they are running 

something else. Perhaps the Black Panther grand jury report is an 

example.

Mr. J aworski. There is another factor tha t was in existence, which I 

think is very important to remember. Th at is th at the House Judiciary 

Committee was then sitting in an impeachment inquiry. This is 

what really made it proper in my judgment and I think the courts 

laid much importance on that very fact.

Mr. Hungate. Did Mr. Nixon permit you to listen to tapes heretofore not disclosed for the purpose of attempting to establish his 

noninvolvement in Watergate and the coverup.

Mr. J aworksi. I t didn’t happen just th at way. We asked for certain 

tape recordings th at we thought might have something tha t would be 

of not only interest to us b ut of consequence and t hat might be appropriate evidence to use. He did not want to release those tape recordings 

and we talked in terms of moving to subpena them. Former President 

Nixon then through General Haig advised me tha t he was willing for 

me personally to listen to them to convince me that they did not 

contain material tha t related to any of the matters that we had under 

investigation. I did listen to them and I concluded th at he was right.

Mr. Hungate. Thank you, sir.

One final matter, my time is out.

Mr. Ruth, I think primarily this goes to you. As I understand it, 

from your testimony, some of your concern as to what you could or 

could not release is related to rule 6(e) of the Federal Rules of 

Criminal Procedure, title 18, section 19. We all have these in the back
12

of our heads. Title 19, section 1905; title 26, section 7213, and section 

7107 of the American Bar Association Code of Ethics and Professional 

Responsibility, section 1102 of that, problems of defamation, where 

you may have slander in a grand jury proceeding, as long as it is 

non perjurous it might be permissible there although it might create 

liability if released elsewhere, and the problems of executive privilege. 

Are these some of the constraints with which you are struggling? 

Mr. Ruth. Yes, sir, particularly that much of the evidence, I 

don’t want to give the impression in any way that we have file rooms 

of evidence showing Mr. Nixor’s involvement in offenses either way, 

but much of the evidence is obtained by grand jury subpena and by 

trial subpena, and there are cases in the federal system as to what 

has to be done with evidence once you have used it for the purpose 

for which it was obtained.

Mr. Hungate. Mi. Hyde.

Mr. Il yde. Mr. Ruth, I have read through these bills tha t were 

before the last Congress and we have a draft here of a proposed bill. 

What they do is to require your office to make a full and complete 

report. Such report shall include detailed information.

Now, if this w’ere to become law you would have to decide what 

tha t word “information” means. Does it mean, as you have said, 

“raw accusations,” “unevaluated charges” no matter how wild or 

how’ unfounded?

As 1 read this I think you would have to provide information no 

matter from what source or no matter how spurious it might appear 

to be on its face. You would have to make all of th at public?

Would th at be your evaluation?

Mr. Ruth. Well, if I was resisting the idea of releasing raw evidence, 

I would have to look at the legislative intent, at the w’hole record, 

and try to figure out what the appropriate committee and debate 

on the floor indicates that such a bill intended. But if it was tha t 

broad I guess I would assume tha t that was the intent.

I must sav we would be in couit in about an hour.

Mr. II yde. Right. Do you know of any precedent in jurisprudence 

for a prosecutor revealing all accusations ami all meinorabilia and 

charges and phone calls that are noted, and just everything that has 

come to his atten tion about an individual?

Mr. R uth. The only precedent tha t I know’ of, Congressman, is 

the special grand juries and those reports as to individuals aie limited 

to public officials still in office where a report as to an individual, 

which must go to a court and be approved by a court, is pei missible 

for having that official in office disciplined, suspended or removed.

Mr. Hyde. It would be impossible for you to comply with provisions of this law without involving other persons beyond Mr. Nixon; 

isn’t tha t true?

Mr. Rum . Absolutely.

Mr. II yde. What becomes of their rights of due process when 

you have to reveal unevaluated raw data that had come to your 

attention?

Mr. Ruth. I assume they would be part of the trail of people into 

the courthouse, Congressman.

Mr. Hyde. Y on see an endless process of litigaticn, do yen not, 

on behalf of people whose names would need to be mentioned, no 

matter howr

 they were involved in the situation.
13

Mr. Ruth. Yes, it would be litigation where the court would try 

to balance the public need for the information being released versus 

the harm to any individual rights.

Mr. Hyde. One of the problems, as I recall, with Mr. Cox, Archibald Cox, was Executive interference in the performance of lm duties.

Would it be a fair characterization that this type of legislation 

could be interpreted to be congressional interference in the performance of your duties?

Mr. Ruth. Well, I think as one could construct an argument tha t 

separation of powers problems get involved but 1 am not much for 

Executive privilege. I am not sure 1 would rely on that.

Mr. Hyde. Well, I am not talking about Executive privilege, 1 am 

talking about interference.

As I understand, Mr. Cox’s problems were tha t the Executive 

didn’t like the way he was doing his job and was trying to suggest a 

better way to do it. 1 view this proposed legislation as the Congress 

telling you what to do and how to do it and it seems so to me you 

people should be left alone. The highest and best use of our office 

should be to do it the way you see fit rather than having, whether 

it’s Congress or the Executive, looking over your shoulder, saying, 

“Here, you release this, don’t release this.” I characterize this as 

potential congressional interference with your job.

Mr. Ruth. I would not do that, Congressman, because I think 

there is such a legitimate interest in trying to figure out what kind of 

reforms are needed, as we all look at Watergate, tha t any legitimate 

way of testing what happened and what is needed is something I 

want to help. On the other hand, 1 am terribly concerned about the 

precedent because I don’t know who tomorrow’s villain is going to 

be and I don’t know who tomorrow’s prosecutor is going to be and 

1 don’t know what kind of reports are going to be asked for from 

tomorrow’s prosecutoi about tomorrow’s villains. That is where my 

eye is.

Mr. Hyde. Revealing unevaluated and raw data? Tha t really is 

not the function of a prosecutor, is it?

Mr. Ruth. Evaluation only in the sense th at the prosecutor decides 

what to present to a grand jury, yes.

Mr. Hyde. Right, a grand jury oi in a court of law, in a judicial 

proceeding or a proceeding leading to a judicial proceeding.

You are not a public relations man for any point of view or conduit 

for l aw information.

Mr. Ruth. I think it is obvious I am not a public relations man, 

Congressman.

Mr. Hyde. To your credit.

Would some of the information tha t these bills seek to get from 

you, be classified as presumptively privileged under the United States

v. Nixon case?

Mr. Ruth. Well, any materials tha t would fall within the Presidential privilege because obtained from the White House and relating 

to conversations between the President and his aides would be presumptively privileged under United States v. Nixon. Then you get 

into the balancing question tha t is raised in the opinion of the Chief 

Justice, and on that issue we have the circuit court of appeals here in 

the District establishing the point where the Senate Select Committee 

asked for Dean-Nixon tapes and were turned down because the court
14

said there was a presumptive privilege but on balance the public 

need th at the Senate Select Committee had for the tapes could not be 

overcome by the infringements on the privilege.

Mr. Hyde. My time is up. Thank you.

Mr. Hungate. 1 recognize the guide wires tha t restrict you, I 

think, in these Federal s tatutes that we alluded to earlier.

In line with what we are covering now, has it not been held on 

occasion when testimony or data is sought for its own sake rather 

than to learn what took place before the grand jury, tha t its not a 

valid defense to disclosure tha t the same information was revealed 

to a grand jury or the same documents had been or presently were 

being examined by a grand jury.

Mr. Ruth. I think it is correct tha t documents can have an independent existence even though presented to a grand jury, yes. It 

usually is whether the release of those documents are for the purpose 

of tracking the grand jury investigation. If tha t is the case they fall 

within rule 6(e).

Mr. Hungate. Mr. Thornton.

Mr. Thornton. Thank you, Mr. Chairman.

Mr. Ruth, assuming tha t a good purpose would be served by a 

complete disclosure of the evidence or material which is in your hands, 

and assuming further tha t the questions of law which are involved 

might be resolved, would it be helpful to have legislation directing the 

special prosecutor to prepare a report under the direction of such 

legislation, or could you do so under the present grant of authority?

Mr. Ruth. Well, our charter, Congressman Thornton, allows a 

final report and I think the only stumbling block th at we are talking 

about today is whether evidence as to individuals should be in tha t 

report. I think the report can include findings and recommendations 

about possible abuses of power or lack thereof by particular agencies, 

and we can send tha t to various oversight committees, but where I 

am drawing the line, and 1 think Mr. Jaworski and Mr. Vorenberg, 

is on the release of evidence as to individuals. I do think that the 

Presidential Recordings and Materials Preservation Act-----

Mr. Thornton. To help me understand, does your objection run 

to putting the evidence together in an accusatory fashion leading to 

conclusions as to guilt or innocence of the parties, or is it to the release 

of factual material which is in your hands, without such legal conclusions being drawn?

Mr. Ruth. Well, as to any case, Congressman Thornton, I suppose 

different individuals could state facts in different ways so tha t they 

would directly point to an opposite conclusion even though they are 

both using the same facts. It is very difficult to state particularly as to 

whether an individual is involved in an offense unless you state, as 

you do in a court of law, the prosecutor presents his side and then you 

get somebody to present the defense side and then a jury makes up 

its mind. So I don’t see how in terms of a factual report a prosecutor 

should be able to speak other than through a grand jury and a court 

of law because you also have the question what really happened because you also have witnesses say this happened and a witness will 

say it didn’t happen, and the juries usually make up their mind about 

wno is right and the prosecutor in releasing evidence would necessarily 

per force be required to decide who is believable and who isn’t and 

those are functions prosecutors aren’t supposed to do publicly.
15

Mr. T hornton. Do you recognize a distinction between furnishing 

to the Congress, pursuant to legislation, factual material requested by 

tha t legislation, as contrasted with the release of factual information 

to the public generally or without authorization from Congress.

Mr. Ruth. Yes, Congress can also subpena Justice Department 

files for a valid legislative purpose.

Mr. T hornton. Do you anticipate that any additional indictments 

or charges may be brought by your office relating to the materials 

which you have on hand, or can you speak to tha t at this moment?

Mr. Ruth. Well, we are finishing a number of investigations and I 

would be reluctant, Congressman, to say at this point whether they 

would be successful prosecutions or insufficient of evidence for 

prosecution.

Mr. Thornton. But some investigations are continuing.

Mr. Ruth. Absolutely, yes, sir.

Mr. T hornton. And the answer to tha t question has not yet then 

been determined?

Mr. Ruth. No, sir, although I would expect some action.

Mr. Thornton. I have no further questions.

Mr. Hungate. Thank you. Mr. Hutchinson.

Mr. Hutchinson. Thank you, Mr. Chairman, for permitting me 

to participate with your subcommittee this morning.

I have only a single question, and tha t is whether the bills that the 

subcommittee has before it and is considering are perhaps not unprecedented in their thrust.

Do any of you know of any law on the books which directs a 

prosecutor to make a public report and the substance of it.

Mr. Ruth. I am not aware of any precedent, Congressman 

Hutchinson.

Mr. J aworski. May I comment?

Mr. H utchinson. Yes.

Mr. J aworski. It occurred to me as the dialog was progressing a 

few minutes ago tha t perhaps this committee would want to have 

before it a copy of the American Bar Association’s Standards on 

Criminal Justice tha t pertain to the prosecution functions. These 

standards were developed over a period of years through the participation of judges and prosecutors and defense counsel. They set forth 

in great detail just what the prosecution function should be and I 

think tha t when you read those standards you will find tha t what is 

proposed here is far afield from what the prosecutor’s job is supposed 

to be.

I think it would be helpful if these were made a part of your record, 

Mr. Chairman.

Mr. Hungate. If you supply them to us, without objection tha t 

would be made part of the record at this point.

Mr. J aworski. Thank you. I am sure Mr. Ruth has a copy in his 

office. I am sure he consults it from time to time just as I did.

[A copy of the American Bar Association’s “Standards on Criminal 

Justice” has been retained in committee files.]

Mr. Hutchinson. I have no further questions and I thank you for 

the response.

Mr. Hungate. In discussing the re port question and the nature of 

the report possible interference, its a part of the charter, is it not,
16

tha t the prosecutor shall upon completion of his statements submit 

a final report to the appropriate persons or entities of the ( 'ongress? 

Mr. Ruth. Yes, and we intend to do so.

Mr. Hungate. We won’t want to lose 414 to 3 as we passed one 

something like tha t so there is some congressional input.

Mr. Ruth. Congressman, there has been tremendous congressional 

help to our office as well, particularly on the ni^ht of October 20, 1973.

Mr. H ungate. Well, I doubt if the full obligation of the Congress 

in the responsible performance of its office is fully publicly understood 

but do you suppose i t will be seen in time what an outstanding job 

has been done by your office—with as much fairness as possible?

Ms. Holtzman.

Ms. Holtzman. Thank you, Mr. Chairman.

Are you taking the position th at tapes which Richard Nixon made 

during the time he was President are privileged, and do you think, 

therefore, tha t this tapes bill tha t Congress has enacted is unconstitutional?

Mr. Ruth. No, the only position taken in here is the fact that we 

have no right to waive tha t privilege.

Ms. Holtzman. Do you have the privilege?

Mr. Ruth. In fact we are in court now under the Presidential 

Recording Act contesting Mr. Nixon in asserting tha t privilege.

Ms. Holtzman. Do you claim tha t he has the privilege in this 

case? W hat position is your office taking?

Mr. Ruth. We are maintaining in that litigation tha t a former 

President doesn’t have executive privilege against an incumbent 

President. I feel very strongly about that.

Ms. H oltzman. Thank you. Is tha t position you’re taking here 

before us now?

Mr. Ruth. My only position is tha t we don’t have the right to 

waive; our only right is to go info court and make an argument, 

under United States v. Nixon.

Ms. Holtzman. You’re not saying, of course, if Congress asked 

you to make public the materials you have on the tapes, you’re not 

saying Congress would be asking you to do something unconstitutional, are you?

Mr. Ruth. No. What I am saying is-----

Ms. H oltzman. The act itself is-----

Mr. Ruth. I would have to go to the current Chief Executive to 

find out if he wanted to exercise the privilege.

Ms. Holtzman. I see. But you’re not saying Richard Nixon has a 

privilege with respect to these?

Mr. Ruth. As I say, we are already in court arguing tha t he does 

not.

Ms Holtzman. Thank you. That is not quite the implication, I 

think of the testimony here with respect to the existence of privileges 

regarding this material. But in any event I would like to ask you one 

other question, and tha t goes to the point tha t you are raising here 

with respect to the issuance of a report. As T see it, the reluctance has 

to do with the fact tha t your activities ought to take the form and 

be conducted in the forum of a criminal prosecution; otherwise it is 

improper to release evidence. Along those lines, since this question 

is before us today, I would like to know whether or not you intend to
17

institute any prosecutions with respect to Richard Nixon, whether 

you are pursuing that in any respect at this time, or whether you 

have abandoned tha t conclusively. And in your response 1 would 

like very much for you to address yourself to the following.

I know and I agree that President Ford has a plenary power with 

respect to pardons but I also know, and I think you are aware, of 

the fact that pardons are lawful only when they are lawfully exercised. 

I would like to know whether you have any intentions of challenging 

the pardon or prosecuting Richard Nixon with respect to the period 

of time covered by pardon or the period of time prior to the pardon 

or the period of time subsequent to the pardon.

Mr. Ruth. Congresswoman Holtzman, we have done extensive 

research and this decision was initially made by Mr. Jaworski when 

he was special prosecutor. I agree with that decision and I have no 

intention of prosecuting or attem pting to prosecute Mr. Nixon for 

an offense covered by the time that is mentioned in the pardon. 

This decision was made, Mr. Jaworski has stated extensively, on the 

basis of extensive legal research tha t we did in our office, which came 

to the conclusion tha t the possibility of successfully challenging the 

pardon was so small as not to justify the initiation of a prosecution.

Ms. Holtzman. Did you do any factual research to reach tha t 

conclusion?

Mr. Ruth. I don’t understand the question.

Ms. Holtzman. Well, my question contained the proposition tha t 

a pardon is lawful if it is lawfully exercised. Tha t is, in part, a legal 

question and, in part, a factual question. I want to know whether 

you have done any factual inquiry into whether or not the pardon 

was lawfully exercised, to make the judgment that you make today.

Mr. Ruth. Well, Mr. Jaworski would have more knowledge of the 

fact of what happened at the time but if you are asking are we investigating whether there was a prior deal between President Ford and Mr. 

Nixon; no.

Ms. H oltzman. I wasn’t asking tha t specifically. I was asking you 

whether you had done any factual research to reach your legal 

conclusions?

Is the answer no?

Mr. II ungate. Anybody else care to comment on that?

Ms. Holtzman. I would like to have an answer from Mr. Ruth. 

Is the answer no?

Mr. Ruth. We are aware of the facts stated in various hearings and 

we have talked with people. We have had no grand jury hearings.

Ms. H oltzman. 1 also asked for the period of time not covered by 

the pardon. Do you feel yourself precluded in that area as well?

Mr. Ruth. Well, the jurisdiction of our office only extends from 

January 20, 1969.

Ms. H oltzman. To?

Mr. J aworski. May 1 make a comment for the record?

Mr. II ungate. Yes.

Mr. J aworski. As Mr. Ruth stated, I had reached a decision after 

considerable research that there was no basis in my judgment for 

attacking the pardon.

The Supreme Court of the United States just a few weeks ago came 

out with a decision, the opinion was written by the Chief Justice, in
18

which the pronouncement, was made tha t before a pardon could be 

attacked you would have to find a limitation to the right to pardon in 

the Constitution. I find none in the Constititution. So it seems to 

me t hat the question is moot, if I may suggest, because I think tha t 

if you read tha t U.S. Supreme Court decision you will find tha t the 

problem really has been laid to rest.

Mr. Hungate. Let me. Is this a private fight or can any Irishman 

get in here.

I wonder, could it be likened to bringing a suit on a note and the 

fellow pleads payment, but he has to plead the payment, then the 

court decides as to whether the payment is adequate or is inadequate.

I have a faint recollection of some case somewhere tha t sort of indicated that, that if you pardon somebody prospectively or in the wrong 

maimer then he can be indicted or charged and if is then his duty to 

plead the pardon and the court will then determine whether it is any 

good or not.

Mr. Vorenberg, have you ever heard of such a case or is tha t 

probable.

Mr. Vorenberg. I think tha t is the way the validity of pardon 

would be tested, that it would have to be pleaded in defense.

Mr. Jaworski. But may I comment on that, Mr. Chairman?

Mr. Hungate. Yes.

Mr. J aworski. As an officer of the court and as a prosecutor I 

would never bring a suit nor let a charge be filed in which I did not 

have personal confidence. I would expect the court to ask me whether 

I in good faith am representing to the court tha t this particular charge 

has a basis in law and I would then expect to answer no, because th at 

is my conclusion.

Mr. Hungate. Well, on a suit on a note you would be in a position 

when you said he paid it you investigated and believed it had been 

paid and you believed the defense was sufficient, you would not be 

bringing the case if you thought the payment had been made and 

shown?

Mr. J aworski. If I in fact had known the payment had been made I 

would feel I owed it to the court to make a representation.

Mr. Hungate. So if this case has your professional determination 

and study, you believe the pardon was properly issued, you might feel 

it frivolous or at least improper to bring a criminal action when you 

were certain.

Mr. J aworski. You have stated it exactly as I feel, Mr. Chairman.

Mr. H ungate. Mr. Mann.

Mr. Mann. Thank you. Since you have been dealing rather extensively with the Presidential Recordings and Preservations Act, 

what do you foresee as the method by which these tapes may eventually be made public?

Mr. Ruth. Under tha t act, sir, the Administrator of GSA has to 

issue regulations in 3 months which become official regulations if not 

challenged in the Congress in the subsequent 3 months, and those 

regulations will have to specify as required by the act how the administrator is going to release all evidence as to abuses of power which 

are grouped under the generic term “Watergate,” is the way the act 

puts it. So the Administrator of GSA is in the position of putting 

together those proposed regulations.
19

Mr. Mann. Has your office been asked any direct input into those 

regulations?

Mr. Ruth. We helped d raft the initial regulations which were put 

out shortly after the bill was signed by the President in order to try to 

implement the November agreement we made with the White House 

allowing us access to the tapes and documents. Despite that agreement 

we have been held up in court because of Mr. Nixon’s suit.

Mr. Mann. As 1 read your statement with reference to the final 

report tha t your office is going to make, I get the impression that you 

do not intend to give any factual synopsis with reference to any given 

case, or the whole case for t ha t m atter.

Mr. Ruth. Well, I think the testimony addresses the problem of 

release of evidence as to individuals. As to what happened and 

possible abuses of power by agencies, and probably analysis of that, 

and probably recommendations, tha t would be included in the final 

report.

Mr. Mann. Now with respect to the question of release of evidence 

concerning individuals, I do not want to be overly simplistic about it, 

but we are talking about a person who is now immune, I think, and I 

know that with reference to the release of the grand jury re port and 

transmission, which the request was joined in by our office, I think, 

the court said with reference to the report, it renders no moral or 

social judgments, the report is a simple and straightforward compilation of information gathered by the grand jury and no more.

Now, would it be possible to extrapolate from the evidence developed 

by your office, evidence tha t would not infringe upon the rights of 

third parties, or a report for tha t ma tter tha t renders no moral or 

social judgments but is a simple and straightforward compilation 

of information, in the word of the court order, with reference to the 

grand jury report?

Mr. Ruth. Well, again, if you are talking about one individual, 

I think you probably saw that in the impeachment hearings, Mr. Doar 

and Mr. St. Clair both working from the same facts came to totally 

opposite conclusions, depending on how the material was presented 

by each side. And as to what happened say in the Watergate coverup, 

I suppose the trial transcript is the best evidence of that combined 

with all the Senate select committee’s and your own hearings here in 

the impeachment inquiry. I am not sure what a prosecutor’s report 

can add to that.

Mr. Mann. I guess one of my hangups is tha t I know as a member of the impeachment panel I did not have all of the evidence, 

I had not nearly all of the evidence you had, some I did have, the 

trial of course has disclosed some that we didn’t have. But what 

else is there, what do you have tha t no one has had, what do you have 

tha t can contribute to the judgment of history tha t is not going to 

become available through these channels tha t have been referred to, 

the' trial and the impeachment process or the Presidential Recording 

Act?

Mr. Ruth. Well, of course, the tapes tha t we got through the 

Supreme Court decision we did not have at the time of your impeachment hearings. They came at about the time of your vote.

I think I indicated earlier in terms of the Watergate coverup, and 

Mr. Jaworski stated this as well, tha t as to Mr. Nixon, you are just 

not going to find that much more.
20

1 remember everybody wanted a smoking gun and they got the 

smoking gun. We do not have 10 more smoking guns lying around our 

office. And in terms of what happened, there is a great question in 

my mind, particularly for a legislative purpose or public understanding of problems, how much incremental evidence really adds to 

understanding, or does incremental evidence really make people 

focus on it rather th an what does it mean and what do we do about it? 

So I would say as to the Watergate coverup there is nothing lying 

around our office th at is going to ring a whole new spectrum of understanding of what happened or the problems. Indeed, I think that would 

only come if under the Presidential Materials Act somebody sat down 

and played every tape, and th at is going to be fought in court because 

of the obvious privacy problems.

Mr. M ann. Well, I tend to agree with you with reference to the 

incremental evidence, as to who is going to analyze it, but we can be 

assured tha t the chronicles are going to come out of the woodwork 

and study and analyze and correlate and publish as long as we live 

and that additional evidence, if there is anything significant whatsoever, would be available to that ultimate story.

Mr. Ruth. Congressman, let me just say we obviously have not 

had a great amount of time to focus on our final report, and as I 

said earlier, I feel very strongly tha t abuses of power should become 

public so people know about, it and can figure out what to do about 

it. We will continue to focus on this problem but we are strongly 

balancing if, and I feel so strongly about this, the precedent value of 

releasing raw evidence, and once you do it to one person tha t becomes 

the precedent and then next year’s villain and the next year’s villain— 

who knows what tha t would lead to?

Mr. Mann. Thank you, Mr. Chairman.

Mr. Hungate. The gentleman from Illinois, Mr. Hyde.

Mr. Hyde. Mr. Ruth, as I read your charter the Special Prosecutor 

may from time to time make public statements or reports as he deems 

appropriate and shall upon completion of his assignment submit a 

final report to the appropriate persons or entities of Congress.

Now, 1 assume with confidence tha t you are going to issue a final 

report at the appropriate time and it will be a complete report and 

at the same time it would not trample on a lot of other peoples’ right 

of due process. Is th at not true?

Mr. Ruth. I hope so, Congressman. T hat would be our effort. But 

also 1 would add tha t we want to include the maximum amount of 

information that we think is proper.

Mr. Hyde. And you are going to do that?

Mr. Ruth. Yes, sir.

Mr. II yde. All right. Legislation of the sort before us here will not 

assist you in tha t performance of this function, will it?

Mr. Ruth. Well, as to the specific bills pending of which I am 

aware, 1 have the problems that are indicated in my testimony.

Mr. II yde. I accept that. Thank you.

Mr. 11 ungate. Mr. Thornton.

Mr. Thornton. 1 have no questions.

Mr. Hungate. The concluding paragr aph in the sta tem ent, 

Mr. Ruth, says in part, even more voluminous news disclosures will 

occur under the Presidential Record and Materials Preservation Act.
21

Tha t is what we have referred to as the tapes act. The constitutionality of tha t has not as yet been determined. Is that right?

Mr. Ruth. No, sir; it is involved in two lawsuits at the present. 

The second one asking for a three-judge court to determine the 

constitutionality.

Mr. Hungate. And if that case should be determined that tha t is 

unconstitutional, then we will have lost a great deal of our potential 

relief as appropriated here?

Mr. Ruth. Well, a lot of the same issues that are being litigated in 

those two law suits, Congressman, would also be litigated with the 

legislation pending here.

Mr. Hungate. Mr. Jaworski, as I understand it, you consider the 

pardoning power the exclusive prerogative of the Executive?

Mr. J aworski. I am sorry, sir, I did not get the full question.

Mr. JI ungate. The pardoning power, do you consider tha t to be 

the exclusive prerogative of the Executive?

Mr. J aworski. I did, yes sir. And I have been reinforced I think 

in it by the opinion that the U.S. Supreme Court recently released 

relating to a pardon that was granted during the days of President 

Eisenhower.

Mr. Hungate. And in your judgment does acceptance of the pardon 

indicate culpability?

Mr. J aworski. I cannot conceive of an individual accepting a 

pardon unless he feels there is culpability, because I do n ot think it is 

something you want to hang on the wall like you woidd a diploma 

from a college or such as that.

Mr. Hungate. That reminds me of an inappropriate story, but 

go ahead.

You gentlemen, I suppose, would have had access probably to as 

much or more of the information in the Special Prosecutor’s office. 1 

suppose none of it was denied you that had in your own office; you 

had access to study any tapes acquired or any other information, is 

that correct, in the Office of the Special Prosecutor during the time of 

your incumbency?

Mr. J aworski. Yes, sir.

Mr. Hungate. And in your judgment, I ask you as a panel, is there 

any substantial significant information at this point tha t has been 

denied the public tha t will not be contained in your final report?

Mr. J aworski. The only thing I would say is th at I know of some 

information tha t may be termed to be juicy, but I do not know that 

it is particularly significant, it certainly is not significant as far as the 

bringing of charges are concerned. It is information tha t people like 

to hear about and talk about and some of it probably falls actually 

under the heading of national security. But the information tha t I 

had reference to may be determined significant, but not insofar as 

our work is concerned. Not insofar as bringing of charges are concerned. 1 think that is the test.

Mr. Hungate. Well, I suppose when you start an investigation 

you do not know what you will find in total. Is there information there 

that would abet the Nation and public interest to make public although it is unrelated to a criminal prosecution, and for which you 

would think you would need additional statuto rv authority to reveal 

it?
22

Mr. Jaworski. I think tha t this particular information, I had 

reference to, that it would be wholly improper to reveal it, it relates 

to individuals about whom comments were made and who had no 

opportunity to defend themselves in the course of the conversations 

in which these comments were made. I just do not see wherein there 

could be any appropriate authority for releasing something of that 

kind.

Mr. Hungate. Mr. Ruth, at this point how many tapes, White 

House Nixon or Watergate tapes have you acquired, the number?

Mr. Ruth. I think the total is 61, Congressman.

Mr. Hungate. I have seen a figure of 64.

Mr. Ruth. 61 Watergate tapes and approximately 35 were played 

at the Watergate trial.

Mr. Hungate. And tha t includes all of those tha t the Judiciary 

Committee heard, I assume, plus some they did not hear. Is that a 

fair statement?

Mr. Ruth. Yes, sir, we acquired all the tapes pursuant to the subpena tha t ended up in the Supreme Court. We did not play them all 

at the trial for obvious trial reasons. Some of them did n ot have the 

impact or the relevance.

Mr. Hungate. Cumulative?

Mr. R uth. Yes, sir some of them were cumulative, m lawyer’s words, 

yes, sir.

Mr. Hungate. Now, Mr. Jaworski.

Mr. Ruth. Congressman, could I clarify something. I think you 

asked whether we had access to all of the tapes.

The only tapes and documents we have gotten from the White 

House are those primarily through subpena and some things through 

cooperation. But if you are talking about the 42 million documents of 

Mr. Nixon or everything relevant, we have never had free access to 

those.

Mr. Hungate. I did not phrase my question clearly. I was concerned with the ones your office has and I assume you and Mr. Jaworski 

had all of those available to you?

Mr. Ruth. Yes, sir.

Mr. Hungate. Insofar as any one person on this coast would know 

what is involved in the Watergate and the surrounding problems, 

you would have tha t information available to you, so if you told us 

tha t you thought we had substantially made public the things that 

affected the Government and the Nation’s interest, you would be a 

pretty good source.

Mr. Ruth. Well the problem I have is even for every criminal case 

you make, you might get a hundred allegations, Congressman. If 

the 99 allegations had been true, people should have known about 

them. Now' you go so far.

Mr. Hungate. Let me in terrupt there. Of course, in a prosecutor’s 

office many of us on this committee have had tha t experience, you 

throw some of t hat stuff out, you do not believe it yourself, you may 

be wrong.

Mr. Ruth. There are also times when you believe it, but you cannot 

prove it.

Mr. Hungate. Yes.
23

Mr. J aworski. May I make this comment. It may be of a little 

help. During the days when the honeymoon was on, I am talking about 

my personal honeymoon with the White House, which didn’t last 

very long:, I was permitted to have someone over there for the purpose 

of going into files and filing cabinets taking out those things we thought 

had some relevance. So yet a number of documents were seen tha t we 

never asked for because we jus t did not think that they were material 

to our investigation.

Similarly, the tape recordings I alluded to tha t I listened to, I 

didn’t ask for, and so we never had them.

It just so happens that I know something of what was said and one 

of the matters tha t I specified when I left is t hat I would be available 

to help write this report. I intended to do tha t on my own time and 

without any compensation.

Mr. Vorenberg will have the primary responsibility and Mr. Ruth, 

of course, will have supervisory responsibility and he will make his 

contributions, but certainly those things tha t I can be of assistance 

and properly let be a part of the report, I intend to help, but there 

are some matters I would feel wholly improper for me to disclose and 

I think there is no authority for me to disclose them and I do not think 

the authority can be given.

Mr. Hungate. Let me make another example, the lawyer examining 

a title, then I assume everything will go "wrong th at could be wrong.

Now, assuming that the so-called tapes’ statute is declared unconstitutional, I believe, Mr. Jaworski, you have stated earlier tha t you 

would like to see all tape recordings you have obtained as a result of 

the Supreme C ourt decision made public and I take it that would be 

61 tha t we just talked about and many of which have not been made 

public. Is tha t still your position? And if additional legislation were 

needed to accomplish this, assuming this statute is declared unconstitutional, then you would, I take it, favor additional legislation to 

make sure this occurs.

Mr. J aworski. It would not offend me at all for these particular 

recordings to be made public. In fact, I think tha t most of them have, 

as Mr. Ruth indicated and as you by your question indicated, are 

either probably duplications or cumulative in some instances. In some 

instances they just do not have any value. What we did, we subpenaed 

every single tape recording that w*e thought would shed light on the 

inquiry and we were able to do tha t because we had the benefit of logs 

and we knew what conversations took place, and 'when, and so we 

went about issuing these subpenas.

But after hearing some of them it was found tha t they just were 

immaterial, frankly, they did n ot shed any light on the inquiry. But 

as far as those, sir, that you are asking about, I see no reason why they 

should not be made public. Most of them have been.

Mr. Hungate. I take it when we say made public, I mean in the 

sense of the free press. We do not dictate to them when they were 

dignified or undignified.

Mr. J aworski. Yes, sir.

Mr. Hungate. Th at would keep me from discussing anything.

Mr. J aworski. Right

Mr. Hungate. Mr. Vorenberg.
24

Mr. Vorenber g. I thi nk in one respec t, Mr. Ch air ma n, the assuranc e th at you hav e been seeking th at every thing th at could be of 

any possible pub lic int ere st will come to light is really an assura nce 

th at we cannot give as far as the repo rt is concerned. If the re were 

only one set of int ere sts here, if all we had to be conc erned wi th was 

the public’s valu e of the public of knowing, the n the re would be no 

reason n ot to kind of thro w open all of the files, bu t there really is no 

way th at I thi nk at any point, this would be tru e whe n we write the 

rep ort, th at we can say every thing th at somebody in this co un try 

might wan t to know about, som ething will be there.

Mr. II ung ate. May I in te rrup t ju st a moment and really go bac k 

to Mr. R uth ’s com ment earlier. I do no t thi nk we are talkin g abou t 

thin gs th at a pro sec uto r exam ines and decides. I really do not believe 

it or he raises a more difficult question, wh eth er you believe it and 

cannot prove it. I supp ose you hav e to stop there if y ou ma y believe 

it and do no t hav e enough to prove it where you are satis fied in yo ur 

own mind and think you h ave at least, maybe not beyond a reas onabl e 

doubt, bu t hav e subs tan tia l proo f th at you do believe and think you 

can prove at lea st to the civil degree of conv incing the n, I take it 

yo ur problem is bal anc ing the public inter est again st the indiv idual 

right.

Mr. Vorenberg. T o pu t the problem more specifically, the only 

wa y a pro sec uto r ought to spe ak ab ou t people under inv est iga tio n, 

people who are suspect, is through the grand ju ry and the form al 

charges process. And where for any numb er of reasons an investiga ­

tion does no t lead to th at, where the pro secutor has take n th at step, 

it w ould be ju st a form of massive abuse of an indiv idua l’s righ ts for 

the pro sec uto r to say well, we will split the difference. We wou ld no t 

prosecute bu t we will tell the public wha t we know ab ou t this information .

Mr. II ungat e. As T hav e sought to ind icate, gra nd juries, no t too 

fre quently do th at sort of thing. Do the y no t; the y say we find th at 

the jail con ditions are criminal and this guy is this and th at and 

the y do no t ind ict any bod y bu t they ma ke a big pub lic sta temen t. 

I am no t sure th at is a good thing to do.

Mr. Vorenber g. It seems to me th at is really a fai rly separat e 

fun ction of the grand jury hav e an accusator y fun ction and separat e 

inv est iga tiv e fun ctio ns where they are no t focusing on a po tential 

ind ividual def endant.

Mr. IIungate. I would suggest perha ps this special pro sec uto r has 

a special functio n, which is to pro sec ute where called for, and sha ll 

on com pletion of it assimilate a final rep ort.

Now, is t hat not the area in w hich we no w find ourselves, th at we do 

have a special s itu ation and a re po rt is called for, and let me finish this. 

1 do no t think th at mo st of the Congress, you can no t spe ak for mo st 

of the Congress, particu larly no t this year, bu t pu rsua nt to the 

pro sec ution about from time to time ma kin g pub lic statem en ts or 

rep ort, and Mr. R uth ’s stat em en t we have issued periodic stat us 

repo rt of various prosecutio ns and othe r matters han dled by the 

officer and will issue a final repo rt— wh at I am saying, whe n a Con gressman thinks of a rep ort, I think he thinks of som ething no t this big, 

som ething like th at , th at has an intro du cti on and his tor y and finding 

and conclusion and rec om menda tion , and I do no t think we hav e had 

anyth ing of th at kin d to date.
25

Mr. Vorenberg. Xo, but you will. Mr. Ruth lias said we do envision that that is what the report will be. The area in issue here is the 

question of raw data involving individuals.

Mr. II ungate. Mr. Thornton.

Mr. T hornton. I am concerned that I may have heard two distinct 

and contradictory rationales as to the reason that legislation is not 

called for. On one hand, it has been expressed tha t no material, 

evidentiary material is involved here and the reluctance to include it 

in a report is against making an accusatory statement or drawing a 

legal analysis leading to conclusions of guilt. That rationale seems to 

me to contradict the theory that because of the effect that a pardon 

had upon a failure to prosecute, tha t some material which would 

have been useful and relevant in a prosecution, and which would 

have been made public, must now be restricted.

Now, my question is, which factual situation exists? Do we have 

material tha t would have been useful and would have been made 

public if this pardon had not occurred, or are we dealing with material 

or allegations which are of no consequence?

I do not think you can rest upon both of these positions.

Mr. J aworski. May I answer th at, sir?

I can speak, of course, only during the time tha t I served in the office, 

but 1 have no difficulty with tha t question at all because what I 

believe was obtained and was useful and had any probative force at 

all was used in the coverup trial. I think it has been made public, 

except as we said a while ago, where evidence was purely cumulative. 

So there may be other areas that Mr. Ruth has gone into since my 

departure, I do not know, but I have no problem, I do not see where 

pardon, granting of the pardon has affected tha t situation any at all.

Mr. T hornton. I must say I find the position that you enunciate 

the more reasonable and acceptable of the two positions, and y et I am 

concerned tha t both arguments have been made.

Mr. II ungate. Ms. Holtzman.

Ms. H oltzman. Thank you, Mr. Chairman.

I have two questions to ask you.

One is, how do you deal with the Agnew precedent in terms of your 

statement that it is inappropriate to make a report in the circumstance 

in which a person accepted a pardon—which, of course, Mr. Jaworski 

suggests is not something you hang up on the wall? How do you 

reconcile your assertion with the precedent of the Justice D epartment’s 

releasing a very lengthy factual statement regarding Mr. Agnew?

Mr. J aworski. 1 do not know what the statement said, 1 did not 

read it, frankly.

Ms. Holtzman. Perhaps you might.

Mr. Ruth. I think, as I understand it, the statement of fact accompanying Mr. Agnew’s plea of nolo contendre was pa rt of the plea 

in negotiation and I think alludes to something Mr. Vorenberg said, 

a statem ent as to the facts could have been made a condition of the 

pardon but it wasn’t and we were not, obviously, consulted on that.

Ms. H oltzman. You mean to say if Mr. Nixon had pleaded guilty 

tha t you would not have been in a position to make public at this 

point the various facts as to which he had pleaded?

Mr. Ruth. We are in that position with many other defendants.

Ms. Holtzman. You are saying that with respect to Mr. Nixon, 

is that your answer.
26

Mr. Ruth. I say the plea of guilty in the Agnew case was adopted 

with the specific agreement tha t the Government could release a 

statem ent of facts. On a normal plea of guilty, the Government if 

asked by the judge makes a short statement of the facts. The prosecutor does not release all of the facts in any criminal case where there 

is a plea of guilty.

Ms. H oltzman. So, then, if we were to ask you to release the facts 

in connection with misconduct on the part of Richard Nixon, would 

tha t be unconstitutional?

Mr. Ruth. No, all I am saying tha t would end up in a court of law 

and I have great doubts about the success of it. If I am ordered, I 

will do it, and throw it to the court and people can argue about if for 

5 years. That is all I am saying.

Ms. Holtzman. I want to ask you one final question with respect 

to the pardon and perhaps we do not have time to answer it here, but 

I certainly hope tha t in your final report, when you deal with procedural decisions tha t were made, you will explain your failure to 

challenge it. The point I am making, and I do not disagree with Mr. 

Jaworski, is th at a pardon can be invalid under common law and wellestablished precedents for varous circumstances. For example, if 

fraudulent information is given to obtain the pardon, under wellestablished precedents the pardon is void. This principle goes way 

back in American precedents and English history. If the pardon is 

given for improper purpose, it may be void to begin with. Th at is 

why I asked you the question about the actual research that you had 

done. I would like to know your justification for not undertaking some 

inquiry to understand whether on a factual basis the pardon was 

valid, to enable you to make the judgment tha t you make now, tha t 

you do not think you can win in court if you test the pardon.

Mr. Ruth. You are saying you want us to explain tha t in the final 

report?

Ms. H oltzman. If you could explain it here, I would appreciate it.

Mr. Ruth. Usually a prosecutor does things when there are certain 

allegations or cases of mischief. I do not know how you viewed tha t 

event. I understand the President explained it on the basis tha t he 

thought the national interest so required it and it was not based on 

information about probable sickness or probable innocence or anything else, and in our depositions in the Presidential Recordings and 

Materials Preservation Act there is testimony which is public about 

the background of how the document’s negotiation went and was 

not related to the pardon, so there are a number of questions tha t 

have been raised and answered but when you talk about running 

to a grand jury usually you have some sort of allegation or case of 

mischief.

Ms. H oltzman. But you did not look.

Mr. Ruth. You do not challenge every Presidential act on the 

idea it is illegal, you have to have some indication, I would think, 

unless Watergate has gone further than I thought.

Ms. H oltzman. Thank you.

Mr. Hungate. The gentleman from Illinois, Mr. Hyde.

Mr. Hyde. Professor Vorenberg, in Mr. Ru th’s opening statement 

he said one must address the question whether a prosecutor, absent 

normal procedural and substantive safeguards of a judicial proceeding
should be required to take the “radical” step of releasing raw investigative files or issuing a detailed evidentiary report about the 

probable complicities of one individual. Would you adopt tha t word, 

“th at radical” , what is being asked here about releasing investigative 

files is a “radical step” ?

Mr. Vorenberg. I think it would be radical, if anything a mild 

word. I t would be as far as I know unprecedented in terms of anything 

a responsible prosecutor has done.

Mr. Hyde. Irresponsible may be a better word?

Mr. Vorenberg. I think it would be irresponsible for a prosecutor 

to do i t on his own. Mr. Ruth has described the dilemma he would 

face if he were directed by Congress to do it. It seems to me both the 

suggestions tha t a prosecution ought to be sought and that there 

should be raw releases of data, involve a role, a view that the 

prosecutor’s office can be used as a harassing agency. It seems to me 

that it would be just a radical departure from the notion of a responsible prosecutor for either of those lines to be pursued, so I think 

I endorse the use of the word radical, but typical of Mr. Ruth, it is 

understated.

Mr. Hyde. Mr. Jaworski, would you associate yourself with the 

remarks of Professor Vorenberg if I were to ask the same question?

Mr. J aworski. I would, yes.

Mr. Hyde. Thank you.

Mr. Hungate. Mr. Mann?

Mr. Mann. Well, I find it interesting tha t we are looking for an 

extreme, an extremely presentable word to describe the endeavor to 

bring the details of an important event to the benefit of the future of 

this country and its history. And without attempting to put the blame 

on anyone, unless it is on the Congress, which 1 guess is where it is, I 

think tha t part of the reason we haven’t developed this story better 

is the existence of the Special Prosecutor’s office combined with the 

coincidence of the pardon and the resignation causing the Congress 

perhaps prematurely to terminate its search for the details for the 

benefit of history and the future of this country.

I am well aware of the precedents tha t govern prosecutions and 

prosecutors, and certainly concur in the position you take there, but 

let us not overbroaden the area tha t we are talking about exempting. 

We are talking about the President and a presidential pardon. That is 

the precedent. Let us hope there would not be many such precedents 

anybody else would have the right to rely upon.

Do you believe tha t a narrative type report on your part, however 

we want to describe it, a factual report, involving that evidence th at 

did not go into court, involving that evidence tha t may have gone 

into court had there, in spite of Mr. Jaworski’s belief t ha t most if not 

all of it got there, tha t tha t can be incorporated in a report would be 

embargoed for life of the parties involved or the party involved.

I immediately recognize the sensitive aspects of that suggestion, 

but give me your reaction to it, Mr. Ruth.

Mr. R uth. I think, Congressman-----

Mr. Mann. So far as its constitutionality is concerned and the-----

Mr. R uth. To write something and leave it in our files, I think would 

be fine. The constitutional issue would arise only when someone 

sought to publish it. I think a prosecutor’s office is a limited way to
28

biing out the whole truth of what happened in a particular government because necessarily we are looking for specific ('vents against 

specific Federal criminal statutes and so again we would have something incremental to add, and I suppose our impressions would be 

quite useful, because we run across things, a lot of us have experienced 

in the government that we probably did not agree with but did not 

amount to crimes. I suppose if someone wanted us to leave behind a 

record of those impressions we would do it and let people fight over 

publication. But I still think that a fuller exposition would come out 

if someone stayed on top of litigation of the Presidential Materials 

Preservation Act, and if tha t went badly to try to cure any evil in th at 

the court finding so that an act is passed tha t is constitutional if 

the court finds it unconstitutional, because then you have the record 

upon which to make the judgement.

Comparing mv own experience in local government in New York 

City with experience in Washington in the Federal Government, 

there are too many secrets around here and the best way to do tha t 

would he to have the document themselves and not what a particular 

prosecutor asks for in trying to make a case under a particular statute, 

against a particular individual over which we had jurisdiction. So it 

seems to me that the purpose behind the Presidential Recording Act, 

served I believe what you were talking about and would serve it well. 

If the act tha t is passed does not survive the constitutional test then 

pass one th at is constitutional.

1 happen to think that regulations can be formulated by the Administrator of GSA that will make tha t act quite constitutional as 

passed.

Mr. Manx. Thank you sir.

Mr. Hungate. Ms. Iloltzman.

Ms. Holtzman. I just would like to comment with respect to one 

thing. One of the arguments you presented here is tha t your report 

would be of incremental benefit anyway, assuming all of the other 

arguments were taken care of. And I gather that would probably be 

true with respect to the Watergate coverup that you are referring to.

What about some of the other areas? 1 know the House Judiciary 

Committee went into such as abuse of agencies, IRS, wiretapping, 

and so forth, tax problems and the like. In those areas?

Mr. Ruth. We will include material about those areas and we are 

talking about how to do th at without accusing this or th at individual. 

I think we can talk about what happened in those kinds of abuses 

without talking about evidence as to a particular individual, or what 

did not happen. We intend to try to do that because 1 think in terms 

of the reporting power in the charter to entities of Congress, I think 

we have a duty to various oversight committees and to this committee 

and the full House Judiciary Committee to try to put out as much as 

we can about what we inay jiav e found about abuse of power, not in 

the context of accusing a particular individual of a crime, and we 

could do tha t with the Congress in terms of transmitting it to the 

Congress for Congress not to publish it or to publish it as it sees fit, 

but I think we owe that to the Congress.

Ms. Holtzman. What about such areas as taxes, for example 

which would not necessarily fall within this jurisdiction of agency
29

oversight, Presidential tax questions, campaign contributions. Would 

you in some way get into that in your final report?

Mr. Ruth. Well, those matters are still under investigation, it 

would depend upon whether there was a pending litigation.

Mr. Huxgate. I think 1 now have the standard for criminal justice. 

] believe we will not make it part of the record, we will make it an 

exhibit. There is more to learn about that.

Mr. J aworski. Do you have the volume that is labeled “Prosecution F unctions” ?

Mr. Huxgate. And “Defense Functions.” We have it available 

and we will make it an exhibit.

At the time the pardon of President Xixon was under consideration, 

apparently a request was made by President Ford for information 

that may be under investigation related thereto and 1 understand 

the pardon was granted before the book came out as to what was under 

investigation.

My question is, would those 10 areas mentioned in the letter from 

Mr. Ruth dated September 31, 1974, on that subject, would those 10 

areas be dealt with in one way or another in the final report?

Mr. Ruth. Many of them, Congressman, are still under investigation 

and-----

Mr. II uxgate. Will these investigations, would you issue a final 

report before the investigations are completed. I suppose that is my 

question?

Mr. Ruth. That is a problem we have been discussing as to how to 

handle tha t and 1 do not have an answer because appeals go on for 

2 years or so but we can handle the general area of wh at may have 

happened I suppose without getting into pretrial publicity 

problems-----

Mr. IIungate. What we may need-----

Mr. R uth [continuing]. On a particular individual.

Mr. Huxgate. What we may need then is an interim report as I 

have discretionary authority to give and then with the final report 

coming in after as you indicate, appeals go on for years, is that 

possible?

Mr. Ruth. Well, I think possibly as much tha t is useful as could 

be said except for the factual issue could be said in a report when the 

investigations are completed and not have to wait for 2 years.

Mr. Huxgate. That raises the question, what would be a reasonable 

time to anticipate release of the final report?

Mr. Ruth. I would hope to have a final complete report sometime 

this year.

Mr. Huxgate. That would be made available, T understand from 

the statements, to the Judiciary Committee and perhaps other 

entities of the Congress, is tha t correct?

Mr. Ruth. Yes, sir, there may be information we might want to 

transmit tha t would not be in the report.

Mr. Hyde. Mr. Chairman, I just want to commend Mr. Ruth 

and Mr. Jaworski and Professor Yorenberg for not only their testimony today but for the performance of the very distasteful duty iu 

this entire Watergate mess with real professionalism and real dedication to principle. I think the vitality of the Constitution is served by
30

their performance and I think the label Watergate ought not to repeal 

the fifth amendment requirements of due process and equal protection 

of law. I think these gentlemen are in the trenches seeing tha t th at does 

not happen. I commend them and I have every confidence that the 

national interest will be served when their job is through and their 

report is issued.

Thank you.

Mr. Hungate. Thank you.

One last query. Did I understand correctly th at you said there may 

be some information you would wish to transm it to Congress that 

would not be in the final report?

Mr. Ruth. I ju st say tha t prospectively, I have nothing in mind at 

the moment. I am j ust trying to list all points.

Mr. Hungate. Gentlemen, on behalf of the committee and on 

behalf of the Congress, again we would express our appreciation for 

the fine job tha t you have done and I think you will find us willing 

to do whatever we can do on this end to bring this investigation to a 

satisfactory and thorough conclusion.

The committee will stand adjourned subject to the call of the Chair.

[Whereupon at 11:30 a.m. the subcommittee was adjourned subject 

to the call of the Chair.]

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