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President - Wright Patman Investigation Background (2)
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President - Wright Patman Investigation Background (2)
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Philip W. Buchen Files
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Watergate Affair, 1972-1974
Governmental investigations
Executive-Legislative relations
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The original documents are located in Box 55, folder "President - Wright Patman
Investigation Background (2)" of the Philip Buchen Files at the Gerald R. Ford
Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Some items in this folder were not digitized because it contains copyrighted
materials. Please contact the Gerald R. Ford Presidential Library for access to
these materials.
2. FORD LIBRARY
Taylor Jones
The Charleston Gazette
1974
Wash ms. 10/75 Digitized from Box 55 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
Is the President
a Perjurer?
by Marjorie Boyd
In April 1973 The Washington
reckoning of Watergate, as a part of
Monthly told the story of how the
the Article of Impeachment covering
Nixon White House blocked a pre-
obstruction of justice. So this episode
1972-election investigation of the
already has shown it is capable of
Watergate break-in by Rep. Wright
sending out sizeable ripples. And the
Patman's House Banking Committee.
biggest ripples may be yet to come.
We presented it as a classic illustration
Appearing briefly in The Washing-
of how the White House can put
ton Monthly's story on the Patman
pressure on legislators to prevent
hearings, in the cast of White House
effective review of presidential activ-
spear carriers was the name Rep.
ity. At the time it was difficult to
Gerald Ford. This fact excited no
know how much wider the Watergate
special attention at the time, for he
scandal would expand. The aborted
was only the House Minority Leader.
Patman investigation kept popping up
Just a few months later, in November
here and there during the revelations
1973, Ford was being questioned by
of the next two years. John Dean
Senate and House committees in
testified that it was one of the more
hearing to confirm his nomination as
successful aspects of the cover-up. The
Vice President. At this point, Ford's
House Judiciary Committee included
behavior the previous year became
White House interference with the
more important.
Patman investigation in its final
In the Senate Rules Committee's
hearing on the Ford nomination,
Marjorie Boyd is the author of "The
Senator Robert Byrd was Ford's most
Watergate Story: Why Congress Didn't
Investigate Until After the Election, The
aggressive questioner. Byrd's rise from
Washington Monthly, April, 1973.
butcher in a West Virginia meat
53
FORD
The Washington Monthly/October 1975
GERALD
LIBRARY
Containment
141
obtain the next batch of cash. On this note, he and Herb walked out
of my office like pallbearers. Now Kalmbach was out; LaRue was in.
Such encounters deflated my confidence, but Haldeman usually
pumped me back up. A few days after the Kalmbach ceremony, he
saw me in the hall and invited me into his office for a chat. Bob had
become very friendly and increasingly open. He had to make a few
quick calls, so I wandered around his office examining his mementos.
He had a beautiful tapestry from the China trip which I admired, but
I soon returned to my favorite artifacts: the three dried bullfrog car-
casses. They were gifts from Ehrlichman. As always, I picked up one
of the mummified frogs to examine it. The bodies were shaped to
depict various froglike activities-jumping, smiling, catching flies. I
was absolutely mystified as to why Haldeman would have them on
display or what Ehrlichman had in mind, although Higby had once
said they had something to do with Haldeman's skills as a former
142
II
BLIND AMBITION
hearings. It's going to come to a head pretty soon. Patman's got to
get his committee to vote him subpoena power, and it's a close ques-
tion whether we have the votes to kill it. I've been talking to Bill
Timmons* and Stans and Petersen on this thing, and Mitchell is work-
ing on it, too. We think we can give our guys a leg to stand on by
telling them that an investigation will cause a lot of publicity that will
jeopardize the defendants' rights in the Liddy trial. But that may not
be enough. We really need to turn Patman off."
"Call Connally," said Haldeman. "He may know some way to stop
Patman. And tell Timmons to keep on Jerry Ford's ass. He knows
he's got to produce on this one."
T1 the .
YOUR CONGRESSMAN
Robert G. Stapheres, Dr.
REPORTS
GEORGIA
10th CONGRESSIONAL DISTRICT
NOT PRINTED AT GOVERNMENT EXPENSE
OCT '1972
STATEMENT ON WATERGATE HEARING BY CONGRESSMAN ROBERT G. STEPHENS, JR.
ON HIS OWN BEHALF AND ON BEHALF OF CONGRESSMAN TOM GETTYS (D-S.C.)
AND CONGRESSMAN CHARLES GRIFFIN (D-MISS.)
We have read the staff report on the Watergate case and we
draw this conclusion. It does not reveal that any law needs to
be changed, but only asks whether any law has been violated.
To be specific, the report asks:
1. Did Mr. Stans and others violate the law that prohibits
foreign nationals from making political contributions?
2. Did any banks violate the Foreign Bank Secrecy Act by
keeping inadequate records?
3. Did any bank violate the law in transfer of campaign funds
between Mexico and the United States?
4. Were the laws that pertain to the granting of a charter
to a new national bank violated by the Comptroller of the Currency?
5. Has the Committee to Re-Elect the President violated any
election laws?
From these facts, we conclude that the staff report shows
that there is no jurisdictional justification for our Banking and
Currency Committee to investigate. Therefore, to proceed further
will place us in the indefensible posture of fostering a political
witch hunt, it being clear that no other reason exists for ou,
intervention.
GERAL# YOU!
Who has jurisdiction if we do not? The United States
Department of Justice in the criminal aspects of the matter. And
the United States District Court in the civil aspects of the matter.
- 2 -
Where, if anywhere, should the Banking and Currency
Committee in its legislative capacity come into the forum? Not
now, at any rate, because it is premature. Action by the
Committee now is premature because there are cases pending which
allege violations of the laWs we passed. These cases must be
made to demonstrate the adequacy of the existing laws. If any
of the statutes alleged to have been violated prove, by the
decisions, to have loopholes, such as in the Foreign Bank Secrecy
Act, then - and not until then - is the time to call the Banking
and Currency Committee - or other proper Committees - into action.
We have also considered the public interest in whether the
Banking and Currency Committee should proceed with what would
surely be a highly publicized and spectacular public hearing.
In assessing this, we profess that the public has a right,
just as in any criminal affair, to expect that the ends of justice
are served in the sordid Watergate Caper in which there are
alleged crimes of burglary, wiretapping, and election laws
violations.
But, let us look at the duty of Congress in this a little
more.
Congress has the responsibility to enact laws implementing
the guarantees of the rights of citizens under our Constitution
and to determine whether laws are administered according to the
intents of Congress. The former is our legislative function. The
latter is our oversight function.
In the matters before us, criminal proceedings are pending
in the United States District Court against several persons
indicted by a grand jury. Furthermore, civil suits are awaiting
trial wherein plaintiffs allege damages as a result of the
SERALD
Watergate Caper. They seek civil redress in these actions.
As clearly outlined, we believe that the Courts of the
United States are the proper places at this time for determining
the guilt or innocence of those indicted and the settlement of the
damage suits.
- 3 -
Congress, as well as the Courts, also has a duty to the
individuals charged in the criminal cases and to those litigants
who are parties in the civil cases. This duty is to assure in
both cases a fair and impartial trial.
It is our firm conviction that widespread publicity stemming
from a forum of the Congress - especially from a forum without
jurisdictional justification - would seriously impede that fair
and impartial trial to which all parties are entitled in the
pending cases.
We do not condone any of the crime or civil wrongs alleged
in this matter. We simply believe the Banking and Currency
Committee is not the proper forum for trial.
Believing firmly in the foregoing analysis of the fairness
to all involved, we believe further action by the Banking and
Currency Committee should be postponed until the conclusion of
the actions now pending in the Courts.
########
October 3, 1972
FORD : SERALD LIBRARY
414 HUNGERFORD DRIVE
LAW OFFICES
ROBERT M. GRAY (1908-1967)
ROCKVILLE, MARYLAND 20850
JACKSON, LASKEY & PARKINSON
301-340-0450
THOMAS SEARING JACKSON
JOHN L LASKEY .
1828 L STREET, N.W.
Recid.
ARTHUR C. ELGIN
H.DONALD KISTLER
WASHINGTON, D.C. 20036
JUN 29 073
KENNETH WELLS PARKINSON
THOMAS PENFIELD JACKSON
.
ARTHUR c. ELGIN, JR. .
TELEPHONE 466-8850
JAMES P. SCHALLER
AREA CODE 202
KARL H. MICHELET
HERMAN G. LAUTEN
DIANE M. SULLIVAN
JAMES E. BRAMMER
PATRICIA D. GURNE
JOHN S. MILES
NICHOLAS S. McCONNELL
ADMITTED IN MARYLAND
June 29,1973
The Honorable Garry Brown,
404 Cannon House Building,
Washington, D.C.20515
Dear Mr. Brown:
I listened to the testimony of John W. Dean, III on June 25,1973 when
he testified that I had drafted your letter to the Attorney General dated
September 8,1972. Of course, as you know, I did not, nor did I have
anything to do with expressing any of the ideas which you set out in
the letter.
I believe Mr. Dean is confused on this subject. The facts are
that after you wrote your letter to the Attorney General on September 8,
1972, Mr. Dean asked me to prepare a draft response to be signed by
the Attorney General. This I did and I enclose a copy of this draft.
I hope this matter can be cleared up.
Sincerely yours,
Kenneth Wells Parkinson
KWP:daa
Enc.
BERALD FORD LIBRARY
EXHIBIT NO. %
The Honorable Garry Brown,
Rec'd,
Congress of the United States,
JUN 29 XVS
House of Representatives,
Washington D.C.20515 .
Dear Mr. Brown:
I have carefully considered your letter to me of September 8, 1972
noting that Chairman Patman of the House Banking and Currency Committee
has announced that the full Committeewill meet at 10:00a.m., Thursday
morning, September 14, to hear testimony from the Honorable Maurice
Stans, Chairman of the Finance Committee to Re-elect the President,
as well as the testimony of Phillip S. Hughes, Director of the Office of
Federal Elections, General Accounting Office, concerning their knowledge
of the "financial aspects of the Watergate burglary". You say that many
members of the Committee may question the wisdom of still a further investi-
gation of this matter by the Committee and you have asked for my advice with
respect to three important questions as follows:
1.
2.
3.
Let me first say that while the jurisdiction of the Committee to conduct
such an investigation appears to be most unclear as no committee resolution
has been passed to support such an investigation and thus the perameters
of the investigation are unknown, the question of Committee jurisdiction is
a matter for the Committee to decide. Therefore, the appropriateness of
Mr. Stans appearance before the Committee is a question that must be decided
by the Committee in the first instance and finally by Mr. Stans himself.
However, your questions raise many troublesome problems.
LIBRARY GERALD FORD
This Department and the United States Attorneys Office for the District
of Columbia have conducted an intensive investigation of the Watergate
episode of June 17th, a Federal grand jury here bears the responsibility
to present an indictment of those individuals who have violated the law
in that regard. The United States Attorney bears the responsibility,
following indictment, to prosecute those indicted and to insure that justice
is done. At trial the petit jury must decide guilt or innocence.
This process, well known to you, and the members of your Committee mustibe
safeguarded and protected from outside influence, prejudice and passion.
I am therefore deeply concerned that hearings before your Committee, open to
the public, widely reported in the media in this city where the grand jury
sits and from which the petit jury must be selected at trial, must necessarily
have an adverse impact. upon the proper administration of justice in this case.
Government attorneys have sworn to uphold the Constitution of the
United States and the laws of the land, and while we are duty bound to
prosecute those accused of crime we also have a duty to see that the civil
rights of accused are honored and protected.
My answers to your three questions are as follows:
1. It would not be proper for Mr. Stans to testify before your Committee
on these matters which he may have testified on deposition in O'Brien V.
McCord, et al., Civil Action No. 1223-72 as Judge Charles R. Richey has ordered
that all depositions be sealed and not be made public in order to protect the
rights of the individual accused.
2. It would not be proper for Mr. Stans or any witness who may have
appeared before the grand jury to testify before your Committee with respect
to testimony given before the grand jury, as this would violate the secrecy
of the grand jury which is fundamental to our system of justice. The
BERALD FORD LIBRARY
secrecy of the grand jury must always be maintained to prevent a miscarriage
of justice resulting from undue influence upon the jury or reprisals
resulting from premature disclosures.
3. Five individuals have been arrested and charged with burglary arising
out of the June 17th event. Their counsel have on numerous occasions
claimed that their constitutional rights to a fair trial before an impartial
jury have been impaired by the very considerable pbulicity in the media since.
June 17th. Further publicity flowing from hearings before your Committee
can only serve to provide them with additional constitutional arguments that
justice may be denied to them.
I trust that your important questions and those answers will receive
the careful attention of your Committee.
LIBRARY GERALD FORD
EXHIBIT NO. 3.
GARRY BROWN
WASHINGTON OFFICE:
30 DISTRICT, MICHIGAN
404 CANNON HOUSE OFFICE GUILDING
WASHINGTON, D.C. 20515
COMMITTEE ON
TELEPHONE: (202) 225-5011
BANKING AND CURRENCY
Congress of the United States
DISTRICT OFFICE,
COMMITTEE ON
ROOM 2-1-36 FEDERAL CENTER
GOVERNMENT OPERATIONS
House of Representatives
74 NORTH WASHINGTON
BATTLE CREEK, MICHIGAN 49017
JOINT COMMITTEE ON
DEPENSE PRODUCTION
Clashington, D.C. 20515
TELEPHONE, (616) 62-1551
September 8, 1972
The Honorable Richard G. Kleindienst
Attorney General of the United States
Department of Justice
Washington, D. C. 20530
Dear Mr. Attorney General:
It no doubt has come to your attention that the Banking and Currency Committee
of the House of Representatives, upon which I serve, has, through its Chairman
and activities of staff members, become interested and involved in the inves-
tigation of the so-called Watergate bugging incident.
Although many of us on the Committee may question the wisdom of still a
further investigation of this matter under the auspices of our Committee, it
would appear that some of the financial transactions tangential to the incident
may come within the purview of our Committee's jurisdiction and, therefore, the
Chairman of the Committee may be justified in the interest he has expressed.
However, the plans of the Chairman for pursuit of this investigation have raised
a serious question in my mind.
The notice members have received from the Chairman indicates that the full
Committee will meet at 10:00 A.M., Thursday morning, September 14 to hear
testimony from The Honorable Maurice Stans, Chairman of the Finance Committee
of the Committee to Re-Elect the President, as well as the testimony of Phillip
S. Hughes, Director of the Office of Federal Elections, General Accounting Office,
concerning their knowledge of the "financial aspects of the Watergate burglary."
I am sure the testimony of these gentlemen would add significantly to the
Committee's knowledge of the incident; however, I am well aware of the restric-
tions which have been placed on or are applicable to the testimony of Mr. Stans
regarding this matter and feel that in the interest of all concerned your advice
with respect to the propriety of Mr. Stans testifying before our Committee in
either Executive or Open Session should be sought.
Specifically, I would appreciate as prompt as possible answers to the following
questions:
1) Would it be inappropriate or improper for Mr. Stans to testify
before our Banking and Currency Committee with respect to his
knowledge of the financial aspects of the Watergate incident in
view of the embargo which has been placed by Judge Richey on his
testimony by deposition which has been taken in the civil suit
arising out of the Watergate incident?
BERALD
FORM
LIBRATA
Honorable Richard G. Kleindienst
- 2 -
September 8, 1972
2) Would it be inappropriate or improper for Mr. Stans to testify
before our Committee with respect to this matter in view of the
pending action of the Grand Jury in returning criminal indictments
arising out of the Watergate incident?
3) Would it be inappropriate or improper for Mr. Stans to testify
before our Committee with respect to this matter because of the
impact publicizing of such testimony might have on the ultimate
trial of any or all of those indicted as a result of the Grand
Jury action, especially insofar as such publicity might be used
as a basis for a claim that the accused, or any of them, may have
been prejudiced thereby?
I realize that your office is not technically involved in the civil action.
However, your opinion with respect to the substance and significance of Judge
Richey's Order placing an embargo upon the testimony of Mr. Stans in that
action would be most helpful.
With respect to question "2" above, it has also occurred to me that the
absolutely secret nature of the Grand Jury deliberations makes it impossible
for any of us to know whether or not Mr. Stans might be called upon to testify
before our Committee with respect to matters which he may have been called upon
to testify about before the Grand Jury, if he so testified, and that his tes-
timony before the full Committee would be violative of the secrecy mandates
of the Grand Jury proceedings.
Inasmuch as I know not what position Mr. Stans will take with respect to the
Chairman's request that he appear to testify before our Committee on Thursday,
I ask these questions only for the purpose of being better informed should a
confrontation arise and should I be called upon as a member of the Committee
to support or oppose whatever position is taken by Mr. Stans on the Chairman's
request for his appearance. I hasten to add that although this inquiry relates
only to Mr. Stans' testimony. it is equally relevant to whomever else, similarly
situated, the Chairman might feel prompted to call as a witness should this
investigation be expanded upon.
In view of the significance of the questions I have asked and the limited
time involved, I urgently request that my questions receive your immediate
attention and response.
With best regards,
Respectfully,
GARRY BROWN
BERÄLD FORD LIBRARY
EXHIBIT NO. 4.
SARRY BROWN
WASHINGTON CITICLI
DISTRICTION MICHIGAN
404 CARRIOR HOUSE Or OFFICE BUILDING
WASHINGTON, D.C. 20515
TELEPHONE (202) 225-5011
COMMITTEE ON
BANKING AND CURRENCY
Congress of the United States
DISTRICT OFFICE,
ROOM 2-1-36 FEDERAL CENTER
COMMITTEE ON
GOVERNMENT OPERATIONS
House of Representatives
74 NORTH WASHINGTON
BATTLE Check, MICHIGAN 49017
TELEPHONE: (616) 962-1651
JOINT COMMITTEE ON
Washington, D.C. 20515
DEFENSE PRODUCTION
September 8, 1972
The Honorable Maurice Stans
Committee to Re-elect the President
1701 Pennsylvania Avenue, N. W.
Washington, D. c. 20006
Dear Mr. Stans:
Having been out of town yesterday afternoon and this morning, Chairman
Patman's notice of a Banking and Currency Committee meeting set for
Thursday morning, at which you have apparently been requested to appear
and testify, did not come to my attention until this time.
Obviously, I know not whether you have agreed to so testify or what will be
your decision in this regard if you have not as yet accepted or declined the
Chairman's invitation. However, as a lawyer, your proposed appearance and
testimony before the Committee prompts serious questions in my mind.
In view of Judge Richey's embargo upon the depositions which have been taken
in the civil case involving the Watergate incident and in view of the Grand
Jury's deliberations, I feel the propriety of your testifying before the
Committee, especially since it has been suggested in news accounts that such
session would be "open," should be carefully considered.
I, therefore, request that whether or not you have responded to the Chairman's
invitation to testify, you discuss this matter promptly with your legal counsel.
Inasmuch as I would like to be as well informed as possible about the ramifications
of your acceptance or nonacceptance of the Chairman's invitation, I would appre-
ciate being provided with any memorandum your legal counsel might be willing
to prepare in this regard.
Since members of the Committee, including myself, may be called upon to take
further procedural action with respect to a declination of the Chairman's
invitation by you on Thursday morning, I would appreciate receiving any
communication from your legal counsel that you may care to provide at the
earliest possible moment.
With best regards,
Sincerely,
GARRY BROWN
FOERALD FORD
- :
GARRY BROWN
404 CARRON House Orrier -
30 DISTRICT, MICHIORN
WASHINGTON. D.C. 20315
TELEPHONE: (202) 225-5011
COMMITTEE ON
BANKING AND CURRENCY
Conguess of the United States
DISTRICT OFFICE
ROOM 2-1-30 FEDERAL CENTER
COMMITTEE ON
House of Representatives
74 NORTH WASHINGTON
GOVERNMENT OPERATIONS
BATTLE CASER, MICHIGAN 49017
TELEPHONE: (610) 962-1551
JOINT COMMITTEE ON
Washington, D.C. 20515
DEFENSE PRODUCTION
September 26, 1972
The Honorable Richard G. Kleindienst
Attorney General of the United States
Department of Justice
Washington, D. C. 20530
Dear Mr. Attorney General:
You will recall I wrote to you on September 8, 1972 requesting your opinion
with respect to the appropriateness and propriety of the Banking and Currency
Committee calling to testify in Open Session persons connected with the
Committee to Re-elect the President insofar as the testimony of such persons
might have bearing on the Watergate incident. At the time I wrote to you,
my particular interest concerned the calling of former Secretary Stans since
the Chairman of our Committee, Mr. Patman, had already requested his appearance.
Subsequent to my writing to you, I received a telephonic communication from
Deputy Attorney General Erickson's office which advised me that a response
would not be made to my letter at that time since it appeared that issues I
had raised were moot due to the declination by Mr. Stans of Chairman Patman's
invitation to appear before the Committee.
Last evening, I received notification from Chairman Patman that on October 3
a meeting of the Committee would be held for the purposes of considering
further proceedings in connection with the investigation, such notice
specifically stating that a resolution would be presented calling for the
issuance of subpoenas for unnamed persons. I have every reason to believe
that among those called would be former Secretary Stans, former Attorney General
Mitchell, and others who have been named in the media as having had some con-
nection with the financial transactions allegedly associated with the Watergate
incident.
Although the issues raised in my referenced letter may have been moot for a
time, those issues are very real and require comment at this time, especially
since the publicizing of our hearings and testimony of those who may be called
will clearly have an impact upon prosecution of the indictments which have
issued in this matter. I don't presume to consider myself extremely well-
informed on this subject; however, I have reviewed the Delaney case, 199 Fed.
2d 107 (lst Cir. 1952); and find it to be extremely pertinent to what our
Committee proposes to do, especially if any of those who have been indicted
GERALD ? FORD
Honorable Richard G. Kleindienst
- 2 -
September 26, 1972
are called to testify. In turn, it seems to me that the thorough investigation
the Chairman of the Committee proposes to conduct cannot be accomplished
without the calling of some of those who have been indicted.
Your prompt reconsideration of my earlier request and appropriate response
will be much appreciated.
With best regards,
Respectfully,
Sam
GARRY BROWN
LIQUARY GERALD FORD
EXHIBIT NO. 6.
OCI 2 19/2
Hand delivered 4:55
Honorable Wright Patmen
Chairman
Committee on Bonking and Currency
House of Representatives
Washington, D. C.
Dear Mr. Chairman:
Congressman Carry Brown has informed us by letter of
September 26 that the Committee on Banking and Currency of
the House of Representatives is considering extensive public
hearings into financial aspects of the so-called Watergate
"bugging" incident. Mr. Brown's letter and recent Dews-
paper reports of the Committee's plano indicate that the
Committee may hear a number of persons who are likely to
be called as witnesses for the Government or for the defen-
dants in the pending criminal prosecution of seven persons
indicted in connection with the Watergate incident.
While it is of course important that the public be
fully informed concerning the subject matter involved in
the Committee's hearings, the Department of Justice feels
obliged to draw to the attention of the Committee some
law enforcement and civil liberties' considerations that
may bear on the desirability or propriety of such hearings
being held shortly before the criminal trial at which some
of these persons are likely to be called as witnasses.
The public interest in a prompt and successful prosecution
may be imperiled by widely publicized hearings held at this
time. And the basic rights of the defendents to a speedy,
fair and impartial trial may be jeopardized by prejudicial
publicity or the delay engendered by it.
LIBRAGA GERALD P FORD
In a remarkably similar situation some 20 years ago,
the conviction of a former public official for corruption
was vacated by the United States Court of Appeals for the
First Circuit because of the pretrial publicity engendered
by a congressional investigation between the time of
indictment and the time of trial. The official, a
Collector of Internal Revenue, was removed from office and
indicted on various charges of corruption in office. Prior
to the trial, the House Ways and Means Committee conducted
an investigation and public hearing of the official's con-
duct, over the protest of both his counsel and the Depart-
ment of Justice. The Government expressed its concern to
the Committee with respect to what the court subsequently
found to be the case: "the committec hearing afforded
the public a preview of the prosecution's case against
Delaney without, however, the safeguards that would attend
a criminal trial." Delancy V. United States, 199 F.2d 107,
110 (C.A. 1, 1952). The defendant's objection to the
hearing was, of course, the adverse publicity which the
court also found had prejudiced the fairness of the trial.
In Delaney the court emphasized that the prejudicial
publicity had been generated by the Government, rather
than by independent press inquiry. It held that the fact
that the hearing was not conducted by the same branch of
Government responsible for the prosecution did not diminish
the harm to the defendant. "[W]e perceive no difference
between prejudicial publicity instigated by the United
States through its executive arm and prejudicial publicity
instigated by the United States through its legislative
arm." 199 F.2d at 114. While the court did not question
the authority of Congress to proceed with the hearing
while the indictment was pending, it held that the consti-
tutional rights of the defendant were nevertheless entitled
to protection either by a change of venue or a delay in the
trial sufficient to offset the adverse publicity.*
** Supreme Court decisions subsequent to the Delaney case
reinforce the Sixth Amendment right of a criminal defendant
to a speedy trial and suggest that a lengthy continuance
may prevent a subsequent prosecution, at least where the
defendant requests an early trial. See Dickey V. Florida,
398 U.S. 30 (1970); Klopfer V. North Carolina, 386 U.S.
988 (1967).
- 2
x.
GENER
"We think that the United States is put to
a choice in this matter: If the United States,
through its legialative department, acting
conscientiously pursuant to its conception of the
public interest, chooses to hold a public hearing
inevitably resulting in such damaging publicity
prejudicial to 3 pending indictment, then the
United States must accept the consequence that
the judicial department, changed with the duty
of assuring the dofendent a fair trial before an
impartial jury, may find it necessary CO postpone
the trial until by lapse of time the danger of
prejudice may reasonably be thought to have been
substantially removed." Id. at 114,
Other courts, in discussing Delmay, have suggested
that the congressional connittee should not have conducted
the public hearings prior to the dofendent's trial. The
Second Circuit, in United States V. Flynn, 216 F.2d 354,
375 (C.A. 2, 1934), cert. denied, 340 U.S. 909, suggested
that the hearings should either have beca postponed until
after Delancy's trial or held in private. Similarly, in
Silverthorne V. United States, 400 F.2d 627, 633 (C.A. 9,
1963) the court commented: "While the reversal in Delaney
was necossitated because of the Each of prejudicial
publicity, this result is inextricably bound up in the
rationale that such publicity MID caused by the action of
the United States Government at a time when restraint
would have been the more prudent course of action."
This emphasis on governmental involvement in the
generation of adverse publicity has been repeated by the
Supreme Court. In Rideau V. Louisiana, 373 U.S. 723
(1963), the Court found a violation of due process LE
the trial of a defendant in the same parish where tele-
vision publicity of his interrogation by the sheriff was
intense.
"Under our Constitution's guarantee of due process,
a person accused of committing a crime is vouch-
safed basic minimal rights. Among these are the
right to counsel, the right to plead not guilty,
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and the right to be tried in a courtroom presided
over by a judge. Yet in this case the people
of Calcasieu Parish saw and heard, not once but
three times, a "trial" of Rideau in a jail, pre-
sided over by a sheriff, where there was no
lawyer to advise Rideau of his right to stand
mute." 373 U.S. at 726-27 (footnotes omitted).
The courts, largely because of a proper concern for
freedom of the press, have been reluctant to regulate
press coverage of sensational trials. At the same time,
the courts have the responsibility to preserve the right
of criminal defendants to an impartial trial. Perhaps
the most extensive judicial discussion of the balancing
of these interests in recent years was the decision in
Sheppard V. Maxwell, 384 U.S. 333 (1966). There the
Court agaín vacated a criminal conviction because of
excessive publicity, not only prior to but during the
trial. While there were a variety of factors involved
in that case, the Court emphasized the special obliga-
tion of insuring that government officials, in that casa
the prosecutor, police officers, and the coroner, not
contribute to the production of adverse publicity. 384
U.S. at 359.
The United States District Court here in the
District of Columbia has recognized its responsibility
in this regard by adopting a special rule to guard
against adverse publicity prior to criminal trials.
Rule 100 of the Court's rules strictly enjoins court
personnel and prosecutors not to disclose matter proju-
dicial to the defendant and further authorizes the judge
in a widely publicized or sensational case to issue a
special order governing extrajudicial statements by
parties and witnesses. It was this rule that Judge Richey
invoked in a pending civil action, also emanating from the
Watergate incident, in order to protect the rights of the
criminal defendants.
This Department is seriously concerned that public
hearings on matters related to the Watergate case at this
4
BERALD R. FORM
time may not only jeopardize the prosecution of the case
but also seriously prejudice the rights of the defendants.
It is distinctly possible that matters which adversely
reflect on the defendants, and which would not be admiss-
ible at the criminal trial, will become known to the public
and to potential jurors as a result of the proposed con-
gressional investigation. This was the result of the
advance publicity in the Sheppard case and was one of the
principal reasons for the reversal of the conviction.
This matter of prejudice through adverse pretrial
publicity has been a matter of grave concern to all lawyers
in the United States. It was for this reason that the
American Bar Association commissioned a study of the prob-
lem as part of its formulation of minimum standards for
the administration of criminal justice. In the report on
Fair Trial and Free Press the Committee on Minimum
Standards observed:
"Freedom of speech and of the press are
fundamental liberties guaranteed by the United
States Constitution. They must be zealously
preserved, but at the same time must be exer-
cised with an awareness of the potential impact
of public statements on other fundamental rights,
including the right of a person accused of
crime, and of his accusers, to a fair trial by
an impartial jury.
* It is important both to the community
and to the criminal process that the public be
informed of the commission of crime, that corrup-
tion and misconduct, including the improper
failure to arraign or to prosecute, be exposed
whenever they are found, and that those accused
of crime be apprehended. If, however, public
statements and reporting with respect to these
matters assume the truth of what may be only
a belief or a suspición, they may destroy the
reputation of one who is innocent and may
seriously endanger the right to a fair trial in
the event that formal charges are filed.
[D] uring the period prior to trial,
public statements originating from officials,
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LIBRARY GERALD R. FORM
attorneys, or the news media that assume the
guilt of the person charged, that include
inaccurate or inadmiosible information, or
that serve to inflame the community, may
undermine the judicial process by making
unobtainable a jury satisfying the requisite
standard of impartiality." PP. 16-17.
Committees of Congress have been careful in the past
to give proper regard to law enforcement and civil liber-
ties' concerns in performing their investigative functions.
The Department of Justice is highly concerned that a well
publicized congressional investigation at this time will
jeopardize the rights of criminal defendants and endanger
the prospects of a prompt and successful prosecution. For
these reasons the Department, as it did in the Delancy
case, asks that the Committee give serious consideration
to these concerns before holding hearings on this matter
which will undoubtedly come to trial in the very near
future.
Sincerely,
Henry E. Petersen
Assistant Attorney General
Criminal Division
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LIBRARY GERALD R. FORD