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Nixon Pardon - Hungate Subcommittee Hearing, 9/24/74
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4520701
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Nixon Pardon - Hungate Subcommittee Hearing, 9/24/74
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Philip W. Buchen Files
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Nixon, Richard M. (Richard Milhous), 1913-1994
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The original documents are located in Box 34, folder "Nixon Pardon Hungate
Subcommittee - Hearing 9/24/74" 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States of America his copyrights in all of his unpublished writings in National Archives collections.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.
Exact duplicates within this folder were not digitized.
Digitized from Box 34 of the Philip Buchen Files
at the Gerald R. Ford Presidential Library
abzug
Compres
Fish
Butter
Gene
Present to
Coken
Koch
456-2140
The
Democrate
Republicans
Haltyman
Hogan
Main
Mayne
Edwards
Dennis
Kastenmier
1,884
Smith-Rowking Smith - Ranking
Hungate - Chrm.
Fish (joined)
Conyers(joined)
Mike Blourmer
Counsel
Kastenmier - Witness: Cong. Gude -
How get tapes from Jaworski & White House to
make public? Other material & evidence ?
these items? ? Doh know
Is there a legislative vehicle for obtaining
Smith
Does Jawarski have now the authority to make
rept. to american people releasing E on
both sides of care? Even w/out legis?
Don't know but would take longer to
go them cto._ Would Jawarski make a
fair rept. ? yes
Edwards
What about representation of nixon by
counsel in the making of a rept. by
Jaworski ? Edwards thinks nixon should
BERACH FORD
be represented by attys while rept.
being made so that no one could
say he wasn't given a fair shake.
Dennis
Does not Jaworski already have authority
to make public reget? Why need legis. ?
are we left w/ any possibility of further
Criminal or imperchable implachment
proceedings against niyon? no- Then
only thing that rept. would do would
be to make public the facts, is
that true ? yes-
Mann
Would you respect the rept. a finding of
90 I day release of E premature?
a group of attys, as final? yes. for a
Mayne Do not prosecutors seek mostly to convict
$ not to prove innocence? How could
a group of prosentors present an
assurance of accuracy of fairness?
Feels that this is a possible problem
but still is the best way-
Hotzman would the proposed res. be a barrier
to any criminal proceedings that may
evolve in the future? no-
should E that hasnot yet been obtained
be included in rept. ? yes-
FORD is LIBRABY 0ERALD
Hogan
Why is it necessary to instruct Jawarski
to make rept. sooner that he would
normally do so? Hogan does not behave
that begis. is necessary. Isn't the
issue moot now? Hogan would want an
amend. to the proposed bill that would
views in the rept. He also doesn't
allow defense atty to file dissenting
surprise
feel that the rept. would be of any real
value to the american people, since they
many of them feel Nixon was hounded
out of office by the news media
instead of the true facts anyway.
Hungate
no questions.
Fish
no questions.
- Witness: Me Cong. Kinney -
Kastenmier
What would Cong. do w/ documents once received?
all obtained materials - why When should
Cong. should publish them & make public
this be done? as soon as there is no
danger of garejudicing a criminal case-
me Kinney prefers all documents in her
of a Jawarski rept.
Smith
Why are you limiting (by amend.) the
making public of only Jawarski E & not
Grand Jury testimony ? Isn't Jawarski E
testinions of witnesses also? yes, but
there'sa difference- -
Dennis
What good would it do to make all E
public? So people will know facts &
so Cong. can know how to legislate
to keep such from happening again -
What about rts of Grand Jury witnesses
not to have their test. made public?
This should be protected -
Mann
When should material be released to
Coug. from Jawarski? should be an on-
going process
FORD i LIBRARY GERALD
Mayne
no questions.
Holtzman
no questions.
Edwards
no questions.
Hogan
surprise
rebuttal in the rept. ? Hogan concerned
Would there be ample time & space for
that sewilous, uncorroborated E would
be included in the rept. by Jawarski
against the character of nison. McKinney
not objectionable to an amend. to assure
the former Pres. a rt. to rebut all
accusatory E-
Fish
no questions.
Conyers No questions.
FORD is LIBRARY GERALD
- Witness: Cong. abzug -
[Privileged Res. to challenge the pardon of
nevon a res. of injury from a
legal standpoint]
Edwards
Thought letter from Ford to Hungote was
Does Bella agree ? yes- are you
disrespectful of the House & unsatisfactory.
questioning the Const. rt. to pardon or
the abuse of the President's abuse
of his rt to pardon? The legality
of his pardon- (whatever that meane)_
Smith
Do you not feel that many of the questions
asked in the Hungate letter were
answered in the press releases sent
the response should have directly
by the White House? Maybe so but
just by sending indirect press releases
answered the questions posed & not
Mam
no questions.
FORD is LIBRARY
Dennis
Doesn't Mr. Bachen's press release answer
the questions? not in baby satisfactory
form or Can a Pres. issue should a pardon be
prior to conviction? an
crux
indictment at least or at least
Garlan decision he statement? There
an admission of guilt L What about
subject of pardows- -
a differing legal interpretations on the
RECESS T/L 1:30
CERIAD FORD LIBRARY
UP-147
(PARDON)
WASHINGTON (UPI) -- THE CHAIRMAN OF A HOUSE SUBCOMMITTEE
INVESTIGATING PRESIDENT FORD'S PARDON OF PREDECESSOR RICHARD NIXON
SAID TUESDAY HE MAY CALL A WHITE HOUSE AIDE TO EXPAND ON FORD'S
EXPLANATION OF THE ACTION.
AT LEAST TWO MEMBERS OF THE JUDICIARY SUBCOMMITTEE, REPS. BELLA
ABZUG, D-N.Y., AND DON EDWARDS, D-CALIF., SAID THEY CONSIDERED FORD'S
RESPONSE TO THE PANEL'S INQUIRY INADEQUATE AND EVEN INSULTING.
IN VIEW OF THAT, SUBCOMMITTEE CHAIRMAN WILLIAM HUNGATE, D-MO.,
SAID HE WAS CONSIDERING A REQUEST FOR TESTIMONY BY EITHER PHILIP
BUCHEN OR JOHN MARSH, THE PRESIDENT'S TOP LEGAL ADVISERS.
IN RESPONSE TO A REQUEST BY HUNGATE LAST WEEK, FORD SENT THE
SUBCOMMITTEE A LETTER SAYING THAT EITHER HE OR BUCHEN HAD ANSWERED
ALL OUTSTANDING QUESTIONS ABOUT THE PARDON AT NEWS CONFERENCES,
TRANSCRIPTS OF WHICH WERE ENCLOSED WITH THE LETTER.
REP. ABZUG, AUTHOR OF A RESOLUTION OF INQUIRY WHICH PROMPTED
HUNGATE'S REQUEST, SAID FORD'S REPLY "REVEALS A NON-SERIOUS AND
TRIFLING ATTITUDE THAT DEMEANS THE AUTHORITY AND DIGNITY OF THIS
COMMITTEE AND THIS PARLIAMENTARY PROCEDURE.'
"IT IS TOTALLY INADEQUATE FOR MR. FORD TO RESPOND BY SENDING A
BATCH OF WHITE HOUSE PRESS RELEASES AND AN ACCOMPANYING LETTER, H SHE
SAID.
"I, TOO," SAID EDWARDS, "FIND HIS RESPONSE NOT ONLY CAVALIER BUT
VERY CLOSE TO BEING DISRESPECTFUL OF THE HOUSE AND THIS COMMITTEE. H
HUNGATE HAD ASKED FORD TO EXPLAIN THE REASONING BEHIND THE PARDON,
THE NAMES OF THE PERSONS WITH WHOM HE CONFERRED ABOUT IT, WHETHER THE
ATTORNEY GENERAL OR THE SPECIAL WATERGATE PROSECUTOR WERE CONSULTED,
AND WHETHER FORD HAD KNOWLEDGE OF ANY CRIMINAL CHARGES WHICH MIGHT
HAVE BEEN BROUGHT AGAINST NIXON.
FORD'S LETTER SAID IN REPLY:
"REGARDLESS OF ANY BACKGROUND INFORMATION OR ADVICE I MAY HAVE
RECEIVED, I AM RESPONSIBLE FOR THE PARDON DECISION. I AM SATISFIED
THAT IT WAS THE RIGHT COURSE TO FOLLOW IN ACCORD WITH MY OWN
CONSCIENCE AND CONVICTION."
HUNGATE DECLINED TO CHARACTERIZE FORD'S RESPONSE, BUT SAID "IT
SEEMS TO ME IT MAY MAKE IT DESIRABLE THAT SOME LIVING PERSON AT THE
WHITE HOUSE COME UP AND RESPOND TO THE COMMITTEE. # HE SAID HE MAY ASK
BUCHEN OR MARSH TO APPEAR NEXT TUESDAY.
UPI 09-24 06:37 PED
LIBRARY
WITNESS LIFT
COMITTEE ON TI JUDICIARY
SUBCOMETTED OH CRIMINAL JUSTICE
HEARING
I'l BE: Le islation relating to: (1) the pardon of former
Bresident Richard M. Mixon; (2) the issuance of
additional pardons to persons involved in Watercate
related act vities: (3) the ability and apnropriateness
of the Watergate Special Prosecution Force to make
public the information it has compiled relating to the
alleged criminal conduct of former President Richard "A.
Nixon, and (4) the public disclosure of all Watermate
related documents and tanes which were in the custody
of the United States between January 20, 1969 and
August 9, 1974.
Tuesday, Sert -mbor 211, 1974
10:00 a.m.
Room 22/17 - Payburry HOB
1. Honorable Gilbert Cude (R.-Md.) H.J.Res. 1126,
Joint Resolution to require the Watergate Special
Prosecution Force to make available to the public a
report of all information it has concerning former
President Richard M. Nixon.
2. Fenorable Stewart McKinney (R.-Conn) - H.P. 16619,
2 bill to make available to Congress the information
obtained by the Special Prosecutor.
3. Honorable Edward Koch (D.-N.Y.) - H.R. 16750, a
bill to provide for public access to all Watercate
related facts produced by anv investigation conducted
by any Federal executive office. H.Con.Res. 632 -
Concurrent Pesolution expressing the sense of Congress
with respect to certain nardons granted or which T
be ranted the President.
LIBRARY GERALD ? FORD
4. Honorabl B.lla (D.-T.Y.) - I.Res. 1357,
Resolution of insuiry requesting the President to
furnish the Hour with certain specified information
concerning the pardon of former President Mixon.
5. Honorable John Conyers (D. -Mich.) - H.Res. 1370,
Resolution of incuiry directing the President to
furnish the House with the full and complete story
concerning the issuance of a nardon to Fichard 11.
Mixon and the possible issuance of additional pardons
to persons involved in Waterrate related activities.
6. Honorable Jonathan Binnham (D.-N.Y.) - H.Con.Res. 639,
Concurrent Resolution expressing the sense of the Congress
that the President should defer granting any additional
pardons until after all the facts about the Watergate
affair have been revealed by the unfettered operation
of the criminal justice system.
FORD is GERALD LIBRARY
STATEMENT BY
HONORABLE WILLIAM L. HUNGATE
SEPTEMBER 24, 1974
Today, the Subcommittee on Criminal Justice of the Committee on
the Judiciary begins hearings on bills and resolutions that seek to insure
public access to information relative to Watergate and its related
activities.
Within the last several days, nineteen bills and resolutions
concerning Watergate-related events have been referred to this Sub-
committee for its consideration. Sixty-three Members, Democrats
and Republicans, have sponsored or co-sponsored one or more of these
measures. Because of the importance of preserving the public's right
to know the full and complete story of Watergate, and the privileged
nature of certain of these resolutions of inquiry, it is necessary to
proceed promptly in considering these legislative measures.
Recent events caused many responsible citizens and Members
of Congress serious concern that the complete story of Watergate may
never be recorded. The pardoning of former President Nixon has certainly
jeopardized the opportunity for full public disclosure of information gathered
by the Office of the Special Prosecutor bearing on former President Nixon's
role in the Watergate affair. Moneover, the agreement entered into between
the former President and the General Services Administration has caused
many to fear that additional information relevant to Watergate will be forever
FIT ALD + FORD
2.
withheld from public scrutiny. Unless the complete story of Watergate is
known, history may incorrectly record the events of these times.
The Congress has dealt responsibly with Watergate, but
Watergate will not be behind us until the record of Watergate is complete.
We now proceed to review the proposals before the Subcommittee
designed to guarantee that the public's right to know is protected. Before
Congress and the Nation are important questions of ownership and access
to tapes, materials and related documents prepared and created by public
officials while on the public payroll. Many of the resolutions before us touch these
problems. We must see to it that there is full public access to all information
concerning Watergate, its coverup, and all related events.
Today, we hear from Members of Congress who have introduced
legislation pertaining to these issues. Generally, the proposals to be con-
sidered relate to the pardon of former President Nixon, the issuance of
additional pardons to persons involved in Watergate-related activities, the
desirability of the Watergate Special Prosecution Force to make public in-
formation it has compiled relating to the alleged criminal conduct of former
President Nixon, and the public disclosure of all Watergate-related documents
and tapes in the custody of the United States Government.
STATEMENT OF CONGRESSMAN GILBERT GUDE BEFORE THE SUBCOMMITTEE ON CRIMINAL JUSTICE
HOUSE COMMITTEE ON THE JUDICIARY -- SEPTEMBER 24, 1974
Mr. Chairman, I would like to express my appreciation for the opportunity
to testify this morning on House Joint Resolution 1118 which I introduced
on September 11, 1974, and House Joint Resolutions 1126 and 1139, which I
subsequently introduced with 19 co-sponsors.
At his first news conference after assuming office, President Ford indicated
that while he thought that former President Nixon had suffered enough, the
legal proceedings in the Watergate affair should be allowed to run their
course before any consideration of a Presidential pardon. I fully supported
that policy for three reasons. First, it reaffirmed the people's commitment
to equal justice under the law regardless of power or position. Second, it
insured the right of former President Nixon and the country to have a judgment
by the courts of Mr. Nixon's involvement, if any, in any offense against the
United States. Third, it preserved the President's options if Mr. Nixon by
fair and due processes had been found guilty of any crime.
As a result of the decision to pardon former President Nixon, the courts now
will not be able to make a judgment in this matter, and the people will not
have the normal judicial resolution of this matter as is appropriate to the
American way.
The American people are entitled to all the evidence on both sides in this case.
They can then intelligently examine the evidence and make an informed judgment
if they so desire. It was in furtherance of the objective of making all the
facts known that I introduced my resolution. Basically, it would require the
Watergate Special Prosecutor to present to the public an objective report on
all of the evidence in his possession concerning former President Nixon's
involvement in any offenses against the United States. It is my intention
that all exculpatory evidence as well as any incriminating evidence be reported.
The resolution would not expand Mr. Jaworski's authority to obtain additional
avidence. It would merely require that he make public the evidence he has
in his possession.
FORD
GERALD
Page 2
Having conducted an extensive investigation and published volumes of evidence
as part of the Judiciary Committee's impeachment proceedings, some may
question the necessity for the Watergate Special Prosecutor to publish such
a report. While I applaud the outstanding work of the Judiciary Committee
throughout the course of the impeachment proceedings, I submit that there
are two reasons for requiring Mr. Jaworski to issue such a report. First, it
appears that the standard for impeachment and the standard for an offense
against the United States may not be identical. Indeed, in following your
Committee's deliberations during the impeachment proceedings there appeared
to be some disagreement among committee members as to what constitutes an
impeachable offense, some arguing that a crime was not necessary and others
maintaining that only certain crimes were sufficient to prove an impeachable
offense. Thus in view of the fact that the Committee was focusing on an
impeachable offense rather than a criminal offense, the evidence which was
marshalled during the impeachment proceedings may not include some evidence
which reflects upon Mr. Nixon's involvement in some federal offenses. Second,
there appears to be a substantial body of evidence that was not available to
the Committee during the course of the impeachment proceedings. As all of you
are aware, this past summer the Supreme Court required Mr. Nixon to furnish
certain tapes to the Special Prosecutor which were never made available to
the Judiciary Committee In addition, the impeachment investigation included
only limited testimony by witnesses while Mr. Jaworski appears to have
extensive testimonial evidence which was never made available to Congress.
Since I believe that the American people are entitled to consider all of the
evidence in this matter, I think it is apparent that they should not rely solely
on the impeachment evidence and report, even though it was a complete and
thorough compilation of the evidence with regard to the commission of an
impeachable offense by Richard Nixon.
Some may also question the propriety of making public testimony and evidence
presented to a grand jury. While I am not a lawyer, it is my understanding
that the Federal Rules of Criminal Procedure manifests a long established
policy of secrecy for grand jury proceedings.
DALO FORD
Page 3
Such a policy is not completely sacrosanct, however. The Supreme Court
has long held that "disclosure is wholly proper where the ends of justice
require it." (United States V. Socony-Vaccuum Oil Co., 310 U.S. 150, 234
(1940).) I submit that there could not be more compelling circumstances
"where the ends of justice require" disclosure than in the present case.
I readily admit that the question of protecting the rights of those yet to
be tried is of great concern to me. However, my resolution provides that
the Special Prosecutor will have ninety days from the date of enactment
to publish his report. This period should be more than ample time to impanel
and sequester the jury in the impending conspiracy trial. Any future prosecutions
would not have the same potential for prejudicing defendants' rights as the
conspiracy trial. The report would only focus on Mr. Nixon, and any future
prosecutions would not likely include a conspiracy involving the former
President in which his acts could be attributed to any co-conspirators. In
any event, I would have to say that the American people's right to have the
evidence necessary to judge Mr. Nixon's involvement in any federal offense
is of such overriding importance that it should take precedence, and the
Judiciary Committee's decision to televise its impeachment proceedings and the
Senate Watergate Committee's decision to televise its hearings clearly support
my judgment on this matter.
It seems clear to me that enactment of this resolution is necessary to obtain
the goals it is designed to meet. At the present time there is some doubt as
to whether Mr. Jaworski has the authority to issue such a report. In a letter
dated September 10, 1974, to Mr. Jaworski eight members of the Senate Judiciary
Committee expressed the opinion that his final report to Congress should include
"a full and camplete record detailing any involvement of the former President
in matters under investigation by you." In his response of September 17,
Mr. Jaworski stated that it was his "tentative belief that the existing auth-
ority for the issuance of reports, to which your letter alludes, most likely
does not justify the inclusion of a detailed report on the matters you suggest."
My resolution would clarify any ambiguities and insure that Mr. Jaworski has
Page 4
the authority to issue a report on former President Nixon's involvement in
Watergate.
For over two years the nation has been confronted by the series of events we
refer to as "Watergate." It has had a deep impact on our national conscience.
It is now time to make all of the evidence available to the American people so
that they can make their own judgment.
I am certain that members of this committee agree that the American people are
capable of good judgment if given all of the evidence. They have demonstrated
their fortitude and strength of character throughout the past two years, and I
am confident that they will reinforce those qualities in their examination of
the evidence in this case.
In my opinion this report will serve as a completion and closing of the record
so that the nation can go forward with its other business.
GERALD GERALD R. FORD
(Democrat-Liberal)
for further information:
Congressman
18th Congressional District
Washington Office
New York (Manhattan)
1134 Longworth Office Building
202 225-2436
Edward I.Koch
Diane Coffey
New York Office:
Room 3139
news release
26 Federal Plaza
212 264-1066
Ronay Arit
FOR IMMEDIATE RELEASE
SEPTEMBER 04, 1974
KOCH TESTIMONY BEFORE JUDICIARY COMMITTEE
1) PUBLIC ACCESS TO WATERGATE TAPES
2) CONTINUATION OF JAWORSKI INVESTIGATION OF NIXON
#) COURT TEST OF NIXON PARDON
4) NO FURTHER WATERGATE PARDONS
(Washington D.C.) In testimony today before the House Judiciary Sub-
committee on Criminal Justice, Rep. Edward I. Koch Manhattan), urged
legislation providing "full public access" to all Watergate-related tapes
and documents, continuation of the Jaworski investigation of Nixon, a court
test of the Nixon pardon, and a sense of the Congress resolution against
the Nixon pardon and any further Watergate-related pardons.
Koch has introduced legislation with twenty-eight co-sponsors, providing
full public access consistent with due process to all tapes and documents
relating to Watergate. The only exception would be,
"materials clearly vital to the national security interests
of the United States and required for valid purposes to be
sealed."
He condemned the Ford-Nixon tape arrangement as unconstitutional and
at the very least, illegal. He pointed out that nowhere in the Constitution
or public law is there "the right to negotiate the destruction of materials,
as in the Nixon-GSA agreement." Koch said that,
"Totalitarian nations, including Nazi Germany, have burnt books
in an effort to distort the truth. In the United States, no one
should have the right to erase history."
Koch urged the Special Prosecuter to continue his investigation and
to test the timing of the pardon in court. He said that, in his opinion,
"An individual cannot be pardoned before it is legally determined that he
committed some crime."
Koch also urged the adoption of his concerrent resolution, now co-
sponsored by twenty members of Congress stating the sense of Congress that
the pardon was "wrongful and premature" and that there should be,
"no further Watergate related pardons prior to indictment,
prosecution, and conviction, and then only on an individual
basis where warranted by special circumstances."
TESTIMONY OF REPRESENTATIVE EDWARD I. KOCH, SEPTEMBER 24, 1974
SUBCOMMITTEE ON CRIMINAL JUSTICE - HOUSE JUDICIARY COMMITTEE
Mr. CHAIRMAN and COLLEAGUES, FORMER PRESIDENT NIXON IS
FAST BEING GRANTED ALL THE BENEFITS AND HONORS OF A NATIONAL HERO.
DESPITE THE CIRCUMSTANCES UNDER WHICH HE RESIGNED, MR. NIXON IS
RECEIVING ALL THE EMOLUMENTS OF A CHIEF EXECUTIVE WHO HAS LEFT OFFICE
AFTER DISTINGUISHED SERVICE. I HOPE THAT YOUR SUBCOMMITTEE WILL INITIATE
SWIFT ACTION BY THE CONGRESS THAT WILL MAKE CLEAR TO FUTURE GENERATIONS
THAT CRIMES AGAINST THE CONSTITUTION AND THE PEOPLE BY ANY PRESIDENT OR
OTHER HIGH OFFICIALS WILL NOT BE SWEPT UNDER THE RUG, AS THOUGH THEY
NEVER OCCURED.
IN YOUR FULL COMMITTEE"S FINAL REPORT ON IMPEACHMENT, YOU
STATED YOUR UNANIMOUS VIEW THAT MR. NIXON COMMITTED AT LEAST ONE
IMPEACHABLE OFFENSE, AND A MAJORITY VOTED ARTICLES OF IMPEACHMENT
ON TWO OTHER GROUNDS. THERE IS LITTLE QUESTION THAT HE WOULD HAVE
BECOME THE FIRST IMPEACHED AND CONVICTED PRESIDENT IN OUR HISTORY,
AND THIS IS PRECISELY WHY HE WAS THE FIRST PRESIDENT IN OUR HISTORY TO
RESIGN. THERE ALSO WAS THE STRONGEST PROBABILITY THAT, IN UPCOMING
MONTHS, HE WOULD HAVE BEEN INDICTED FOR CRIMINAL ACTIVITIES.
THE PARDON BY THE PRESIDENT AT THIS TIME WAS AN AFFRONT TO OUR
JUDICIAL SYSTEM. YOUR HEARINGS ON THE PARDON AND RELATED QUESTIONS ARE
A GREAT SERVICE TO THE AMERICAN PEOPLE. I AGREE WITH PROFESSOR PHILIP
KURLAND OF THE UNIVERSITY OF CHICAGO LAW SCHOOL, ACKNOWLEDGED AS ONE
OF THE NATION'S LEADING CONSTITUTIONAL AUTHORITIES, WHO HAS ARGUED THAT
THE CONSTITUTIONALITY OF GRANTING THE PARDON PRIOR TO CONVICTION SHOULD
BE CHALLENGED IN THE COURT. PROFESSOR KURLAND ARGUES THAT AN INDIVIDUAL
CANNOT BE PARDONED BEFORE IT IS LEGALLY DETERMINED THAT HE COMMITTED
SOME CRIME FOR WHICH HE HAS BEEN CONVICTED. U.S. DISTRICT COURT JUDGE
CHARLES B. RICHEY, IN THE MCCORD CASE NOW BEFORE HIM, HAS INDICATED
THAT HE MAY TEST THE VALIDITY OF THE NIXON PARDON.
IT IS INCUMBENT ON THE CONGRESS TO TAKE ACTION. IN PURSUIT OF
THAT, I HAVE INTRODUCED A CONCURRENT RESOLUTION (H.CON.RES. 643)
STATING THE SENSE OF THE CONGRESS THAT THE PARDONING OF RICHARD NIXON
WAS "WRONGFUL AND PREMATURE", AND THAT "NO FURTHER WATERGATE-RELATED
PARDONS SHOULD BE GRANTED PRIOR TO INDICTMENT, PROSECUTION, AND
CONVICTION, AND THEN ONLY ON AN INDIVIDUAL BASIS WHERE WARRANTED BY
SPECIAL CIRCUMSTANCES." TWENTY HOUSE COLLEAGUES HAVE JOINED IN CO-
SPONSORING THIS RESOLUTION, AND THE SENATE ADOPTED A SIMILAR RESOLUTION
ON SEPTEMBER 12.
-2-
I ALSO SUGGEST THAT LEGISLATION BE ENACTED DIRECTING THE
OR
SPECIAL PROSECUTION TO PROCEED WITH HIS INVESTIGATION OF PRES-
IDENTIAL ACTIVITIES BOTH IN ORDER TO BRING OUT THE FACTS AND
TO RAISE BEFORE THE COURT THE CONSTITUTIONALITY OF THE TIMING OF
THE PARDON. PROFESSOR KURLAND CONTENDS THAT IF MR. NIXON USED
HIS PARDON AS A DEFENSE AGAINST SPECIFIC CHARGES, THIS WOULD
DEFINE THE CRIMES COVERED BY THE PARDON. KURLAND BELIEVES
THAT THE JUDGE IN THE CASE WOULD THEN BE REQUIRED TO RULE IF
THE PARDON WERE APPLICABLE, AS HE WOULD RULE ON ANY DEFENSE MOTION.
UPON THE JUDGE DETERMINING THAT THE PARDON IS APPLICABLE NIXON
WOULD THEN BE DEEMED GUILTY AS A MATTER OF RECORD OF THE CRIME
TO WHICH THE PARDON APPLIES.
I ALSO BELIEVE THAT AS SOON AS CONS ISTENT WITH FAIR JUSTICE,
MATERIALS FROM WATERGATE-RELATED INVESTIGATIONS, INCLUDING THAT
OF THE SPECIAL PROSECUTOR, SHOULD BE MADE PUBLIC. I HAVE
INTRODUCED LEGISLATION, H.R. 16750, NOW BEFORE YOUR SUBCOMMITTEE,
CO-SPONSORED BY TWENTY-EIGHT MEMBERS OF CONGRESS, TO PROVIDE
PUBLIC ACCESS TO ALL WATERGATE-RELATED FACTS, DOCUMENTS, PAPERS,
AND TAPES PRODUCED BY INVESTIGATIONS BY ANY FEDERAL EXECUTIVE
OFFICE, DEPARTMENT, OR AGENCY, AND ALL OTHER RELATED MATERIALS
ATR THE TIME OF MR. NIXON'S RESIGNATION. ONLY BY FULL KNOW-
LEDGE OF AND AVAILABILITY TO ALL THE FACTS AND RECORDS WILL THE
AMERICAN PEOPLE BE ASSURED THAT AN ADMINISTRATION COVER-UP HAS
REALLY STOPPED AND THAT GOVERNMENT OFFICIALS ARE SINCERE IN
ATTEMPTING TO AVOID THE MISTAKES OF THE PAST. THE ONLY EXCEPTION
TO FULL PUBLIC DISCLOSURE ALLOWED BY THE BILL RELATES TO MAT-
ERIALS CLEARLY VITAL TO THE NATIONAL SECURITY INTERESTS OF THE
UNITED STATES AND REQUIRED FOR VALID PURPOSES TO BE SEALED.
I BELIEVE THAT THE NIXON ADMINISTRATION PAPERS AND DOCUMENTS
BELONG TO THE UNITED STATES, NOTTO
PRIVATE CITIZEN NIXON.
THE EXTRAORDINARY FACTORS BEHIND HIS INVOLUNTARY RESIGNATION
FROM
FORM OFFICE MANDATE PUBLIC ACCESS TO THE MATERIALS. I DO NOT
-3-
BELIEVE THAT RESIGNATION FROM OFFICE NEGATES PUBLIC ACCESS TO
THE MATERIALS. I DO NOT BELIEVE
THE AGREEMENT BETWEEN
G.S.A. AND MR. NIXON DISPOSING OF THE WATERGATE MATERIALS TO BE
CONSTITUTIONAL OR LEGALLY BINDING. UNDER ARTICLES IV OF THE
CONSTITUTION, CONGRESS HAS EXPRESS POWER TO"MAKE ALL NEEDFUL
RULES AND REGULATIONS RESPECTING THE PROPERTY OF THE UNITED
STATES." THE MATERIALS IN QUESTION WERE PRODUCED COMPLETELY
WITH PUBLIC FUNDS. IN ADDITION, THE U.S. CODE (44 U.S. CODE
SEC. 2108) STATES THAT ALTHOUGH G.S.A. HAS AUTHORITY TO ACCEPT
PRESIDENTIAL PAPERS AND OTHER HISTORICAL MATERIALS, IT SHALL
NEGOTIATE "THE RIGHT TO HAVE CONTINUOUS AND PERMANENT POSSESSION
OF THE MATERIALS." NOWHERE IS THERE MENTIONED ANY RIGHT TO
NEGOTIATE THE DESTRUCTION OF MATERIALS, AS IN THE NIXON-G.S.A.
AGREEMENT.
IN THE WASHINGTON POST OF SEPTEMBER 21, 1974, PROFESSOR
ARTHUR MILLER ARGUES THAT "THE AGREEMENT ABOUT DESTRUCTION IS
A LEGAL NULLITY." HE ALSO POINTS OUT THAT ATTORNEY GENERAL
SAXBE'S CONTENTION THAT THERE IS A CUSTOM OF PAST PRESIDENTIAL
OWNERSHIP DOES NOT MAKE SUCH A CUSTOM LEGALLY BINDING.
IF THESE TAPES AND OTHER DOCUMENTS, FOR ANY PRESENT LEGALISTIC
REASON, CANNOT BE SUBJECTED TO PUBLIC ACCESS, THE U.S. GOVERNMENT
SHOULD EXERCISE THE POWER IT PRESENTLY HAS OF EMINENT DOMAIN AND
RETAIN THEM, EVEN IF DUE PROCESS REQUIRES A PAYMENT TO THE
FORMER PRESIDENT FOR THIER VALUE. THAT PAYMENT, IF ANY, COULD
BE OFFSET AGAINST WHAT MR. NIXON OWES THE GOVERNMENT ON MONIES
ILLEGALLY SPENT ON HIS ESTATES. SUCH A PROCEDURE OF EMINENT
DOMAIN WAS USED BY FEDERAL AUTHORITIES TO OBTAIN THE GUN
ASSERTEDLY USED BY LEE HARVEY OSWALD TO KILL PRESIDENT KENNEDY
IN 1963. THE GOVERNMENT PAID THE VALUE OF THE GUN TO A PRIVATE
INDIVIDUAL WHO HAD BOUGHT IT, RETAINING THE WEAPON FOR U.S.
ARCHIVES.
ABOVE ALL, WE MUST NOT ALLOW THE TAPES AND DOCUMENTS TO BE
DESTROYED, SELECTIVELY OR COLLECTIVELY. TOTALITARIAN NATIONS,
INCLUDING NAZI GERMANY, HAVE BURNT BOOKS AND DOCUMENTS IN AN EFFORT
TO DISTORT THE TRUTH. IN THE UNITED STATES, NO ONE SHOULD HAVE
THE RIGHT TO ERASE THE FACTS OF HISTORY.
-4-
THE REASONS GIVEN BY PRESIDENT FORD FOR THE PARDON SHED
INSUFFICIENT LIGHT ON THE MATTER. FIRST AND FOREMOST IS THE
QUESTION, SPECIFICALLY WHAT CRIMES WAS NIXON PARDONED FOR?
MR. CHAIRMAN, I WAS PLEASED TO LEARN OF YOUR RECENT LETTER TO
PRESIDENT FORD ASKING FOR ELABORATION ON THE MATTER AND POSING
ADDITIONAL QUESTIONS WHICH MUST BE ANSWERED. THE RESOLUTION
OF INQUIRY INTRODUCED BY CONGRESSWOMAN BELLA ABZUG, IF ANSWERED
WITHOUT EVASION BY THE PRESIDENT, WILL PROVIDE THE CONGRESS
AND THE PEOPLE WITH INFORMATION VITAL FOR THEM TO MAKE INFORMED
DECISIONS AND JUDGMENTS IN CRUCIAL MATTERS. SHE DESERVES OUR
CONGRATULATIONS FOR HER INITIATIVES, AND I AM DELIGHTED TO BE A
CO_SPONSOR OF THAT RESOLUTION. I HOPE THAT THE RESOLUTION IS
PASSED WITH RAPIDITY. IF THE PRESIDENT RESPONDS TO THE COMMITTEE'S
LETTER, THE PURPOSE OF THE RESOLUTION WILL HAVE BEEN SERVED. THIS
IS A MATTER WHICH REQUIRES IMMIEDIATE ACTION AND WILL NOT TOLERATE DELAY.
HISTORY MUST RECORD THE TRUTH BEFORE THE MEMORY OF MAN FADES. THE
PRESIDENTIAL PARDON BEFORE CONVICTION WAS, IN MY JUDGEMENT, WRONG, IF NOT
ILLEGAL. THE CONGRESS MUST REAFFIRM THAT NO MAN IS ABOVE THE LAW, NOT EVEN
A PRESIDENT AND HIS ADVISORS. I AM HOPEFUL THAT YOU WILL REPORT OUT LEGIS-
LATION STATING THE SENSE OF THE CONGRESS IN THIS MATTER, AND GUARANTEEING
ACCESS TO ALL THE FACTS AND RECORDS ABOUT THIS, ONE OF THE SADDEST EPISODES
IN OUR HISTORY.
I AM REMINDED OF THE STATEMENT IN THE GETTYSBURG ADDRESS OF 1863 WHICH
SAYS WE ARE A GOVERNMENT OF THE PEOPLE, BY THE PEOPLE, FOR THE PEOPLE.
TODAY, THE PEOPLE WANT THE FACTS SURROUNDING WATERGATE, THEY ARE OWED THE FACTS,
AND IT IS THE OBLIGATION OF THE GOVERNMENT TO PROVIDE THEM. THE PRESIDENT'S
CONSTITUTIONAL POWER OF PARDON, IS NOT, I SUBMIT, UNLIMITED, AND THOSE WHO
ABUSE IT MUST BE CALLED TO TASK.
Testimony of Honorable Stewart B. McKinney
Before the House Judiciary Committee, Subcommittee on Criminal Justice
September 24, 1974
Mr. Chairman:
I appreciate this opportunity to testify before your Committee on my
bill, H.R. 16619, and companion measures introduced by my colleagues.
This opportunity to testify before you means all the more to me because
I feel strongly that in the past months the concern expressed by so many
Americans about the integrity and durability of our governmental and
judicial institutions was answered by the visibly thorough, deliberate,
relentless and, for the most part, non-partisan pursuit of the truth by
the Members of this Committee throughout the impeachment proceedings.
Your deliberations, seen as they were by all America, were a source of
renewed confidence for the American people.
However, this confidence in our institutions and in the concept of equal
justice has once again been brought into question by the controversial
pardon of former President Nixon. I believe the interests of justice and
nercy would have been better served if the question of a pardon had been
held until a more complete account of the facts, attitudes and events
which produced Watergate had been made public. However, this decision was
the President's and his alone, and it is now fact.
It is =y concern that the pardon may prematurely close the book on Watergate,
thereby denying the American people their right to view and evaluate the
Page Two
first-hand data now in the possesion of the Special Prosecutor and in the
Nixon tapes. H.R. 16619, would instruct the Office of the Watergate
Special Prosecutor to turn over to the Congress for inspection and eventual
publication all materials, documents, and reports obtained, prepared and
compiled by that Office in the course of its investigation of the admini-
stration of the former President. I have introduced this legislation in
order to guarantee that the American people will be apprised of the facts
as discovered by the Special Prosecutor regarding affairs in the White
House from 1969 thru August 8, 1974.
I consider the American people to be mature, wise, and fully deserving
of complete and accurate information. When reliable data exists, as a
result of intensive government investigation, we cannot ask the American
people to accept second hand reports or historical interpretations of
the events of this incredible period in our history. It is our responsi-
bility and even more importantly our duty to provide every possible oppor-
tunity for each citizen to confront the unscreened facts not just to
prevent the reoccurrance of these tragedies but also to enable each citi-
zen to draw his own conclusion about the guilt or innocence of each parti-
cipant.
Of course, I an aware that the rights of individuals who have been named
or cited in the date sought to be made public, must be protected. There
are a number of legal actions which are now or will be before the courts,
and we must be vigilant in assuring that the release of the data will not
GERALE
Page Three
compromise the constitutional rights of the parties. Thus, I have in-
cluded a provision in my bill which would provide for the release of
this data to Congress only upon such time as the Attorney General of
the United States shall determine that the parties who are named or
any parties in related litigation have the full protection of the law.
The factors which I hope would be taken into consideration in making
this determination include the status of any criminal or civil liti-
gation, its progress through the appellate process and a final deter-
mination by the highest court in which a litigant can proceed. These
safeguards will refute claims that the release of these reports will
prejudice the rights of those who are currently on trial for the
offenses discovered by the Special Prosecutor.
The Office of the Special Prosecutor was established to investigate and
prosecute offenses committed against the United States by those including,
but not limited to, the White House staff, from 1969 to 1974. The Office
was formally established by the President; however it was authorized and
funded by the Congress. And any information discovered by such an inves-
tigation should be disclosed to the Congress. We are the watchdogs of
this democracy. It is our responsibility to be aware of the activities
of other branches of government and insure that these activities are in
the best interest of the nation. This was the desire of the framers of
the constitution when they included the system of checks and balances as
a guiding principle for our government. Thus the information gathered
must be revealed in order to allow us to properly accomplish this function.
Page Four
I am not a lawyer but I am advised that Congress has the power to request
this information from the Special Prosecutor under its investigatory
powers which include the authority to make inquiries concerning surveys
into defects in our social and political system for the purpose of enabling
Congress to remedy them. In 1959, Justice Harlan stated, "The power of
inquiry has been employed by Congress throughout our history over the whole
range of national interests concerning which Congress might legislate
or decide upon due to investigation not to investigate. The scope of the
power, in short, is as penetrating and as far reaching as the potential
power to enact and appropriate under the Constitution." Watkins V. U.S.
354 U.S. 178 (1957) In another case involving Congress' power to inves-
tigate into a situation such as exists today, the Supreme Court stated
that the power of Congress to inquire into the Administration of an
executive department and sift the charges of malfeasance in that admin-
istration was ratified in sweeping terms. (McGrain V. Daugherty, 237 U.S.
135, 1771 178 (1927) .
Experts on the subject of Congressional power further state that "the
administrative function, that is the function of direction, supervision,
and control of the administrative activities of the government resides in
the legislative branch of the Government. Upon it falls the legal obli-
gation to take such action as is necessary to insure that the several
administrative organs shall be properly directed, supervised and controlled.
(W.F. Willoughby, Director Brookings Institute). In Kendall V. U.S.
Page Five
(12 Peters 524, 1838) the Supreme Court affirmed a lower court case
which gave Congress the power to impose certain duties upon the execu-
tive branch. The Court stated "But it would be an alarming doctrine
that Congress cannot impose upon any executive officer any duty that
they may think proper that is not repugnant to the Constitution, and in
such case that duty and responsibility grow out of and are subject to
the control of the law and not the president.
Thus Mr. Chairman I submit that the actions which this bill require
are not beyond the powers of Congress. The legislative power of
Congress encompasses the ability to seek information for the purpose
of making the laws and for determining if the laws have been properly
exercised. This bill will allow us to perform this important function.
Mr. Chairman, I would like to suggest two amendments to my bill which
would eliminate any misunderstanding of its mechanical requirements.
First, I think it should be made quite clear that the Congress does
not expect the Special Prosecutor to turn over any grand jury minutes.
This I believe would be a gross invasion on the Constitutional rights
of the individuals who testify before the grand jury. The secrecy of
the Grand Jury testimony must be maintained if we are to feel secure
in our rights under our judicial system. Second, it is not necessary
for the Special Prosecutor to release to Congress the original documents
which he might have acquired through his investigation. Copies of such
documents or tapes can be submitted in their place.
Page Six
This will prevent any litigation on the question of whether the Congress
can maintain control of private property, such as private papers and tapes.
Finally Mr. Chairman, I would like to stress the necessity for a bill
which provides for Congressional action. I firmly agree with the former
Chief Justice Warren, who stated in Watkins V. U.S. (1957) that "there is
no Congressional power to expose for exposure's sake". Given the circum-
stances which exist today, I believe that exposure which I have proposed
is necessary not solely because Congress will be exercising its over-
sight function by being informed of what is happening in our government,
but more importantly, to inform the American people of these acts in order
to help identify and deal with them in the future.
FORD
LIBRARY
TESTIMONY OF REP. BELLA S. ABZUG
HOUSE COMMITTEE ON_THE JUDICIARY
Subcommittee on Criminal Justice
September 24, 1974
H. Res. 1367: An inquiry relating to Presidential pardon of Richard Nixon.
In behalf of myself and 13 co-sponsors, including members of the Judiciary
Committee, I welcome this opportunity to appear before you to testify for our
Resolution of Inquiry on the unconditional pardon of Richard M. Nixon.
Not since the storm of public reaction to the Saturday night massacre
and the Nixon tape disclosure of August 5th that led to his forced resignation
a few days later has there been such an overwhelmingly negative response by
the American people to a White House action.
President Ford says the parden was motivated, at least in part, by his
desire to heal the wounds of Watergate. He clings to this rationale despite
the clear evidence that this totally premature, confusing, and unprecedented
pardon is opposed by a majority of Americans and is viewed as a further cover-up
of Watergate.
The wounds have, in fact, been reopened, leaving to fester suspicions
of White House deals, deception, abuse of Presidential power, and perhaps
further blanket pardons of the Watergate culprits. Most wounding of all is
what Mr. Ford's action has done to our concept of equal justice for all and
the belief that the Preddent is accountable for his actions and not above the
law. This is the very concept that was supposed to have been reaffirmed by
this committee in its impeachment proceedings and vindicated in Mr. Nixon's
forced resignation.
It would be a disservice to that concept to leave unchallenged the many
contradictory and self-serving statements that have been issued by the principals,
their subordinates and others in this affair. Further, I believe the legality
of both the pardon itself and the arrangement under which the tapes are to be
returned to Mr. Nixon should be challenged.
The Congress and the Committee on the Judiciaryhave a primary responsibility
to act in behalf of the American people on all aspects of these issues. I am
aware that a number of resolutions dealing with these matters are before the
committee. I will address myself here primarily to my Resolution of Inquiry,
which is privileged and can be called up on the floor of the House within seven
legislative days after introduction, and to some observations on the legality
of the pardon.
Rep. Abzug/September 24, 1974/Page 2
I believe approval of the Resolution of Inquiry is a necessary step in
an investigation this committee should conduct to determine all the facts
in the events leading up to the issuance of the pardon. The American people
have a right to know these facts. They have a right to get answers to their
questions in an appropriate forum from witnesses under oath, instead of in
speculative news stories and columns, television interviews and other
publicized unsupported and contradictory comments by a host of people who
have been involved in the pardon controversy in one way or another.
The response of the President to the questions propounded in the
Resolution of Inquiry which was sent to him by the Chairman of this subcommittee
reveals a nonserious and trifling attitude that demeans the authority and
dignity of this committee and this parliamentary procedure. It is totally
inadequate for Mr. Ford to respond by sending a batch of White House press
releases and an accompanying letter.
I have in the past introduced a number of Resolutions of Inquiry which
have been addressed either to the President or to members of his cabinet.
This is the first time in my experience that there has not been a point by
point specific response to specific questions even though in some cases I
have not felt the answers to be satisfactory.
It should also be noted that this Committee is still operating under
House Resolution 803, adopted on Feb. 6, 1974, which authorized and directed
the Judiciary Committee "to investigate fully and completely whether sufficient
grounds exist for the House of Representatives to exercise its constitutional
power to impeach Richard M. Nixon."
The committee has not been discharged of this duty. The articles of
impeachment voted out by the full committee ware never debated or voted
upon by the full House, despite its voter to accept the committee report.
Incidentally, I said at the time that the House should vote on approving
the articles of impeachment, instead of evading this issue, and I believe
that events since then have shown it was a mistake not to do SO, I would
also note in passing that the House can still vote on impeachment, and if there
is no other way to enter on the record books the political crimes for which
Richard Nixon was forced to resign, then I believe the House should proceed
to a vote.
Under Resolution 803, this committee is fully empowered to determine
whether there is any new evidence relevant to the conduct in office of the
former President.
My resolution requires the President to answer specific questions
about the circumstances leading up to the pardon proclamation.
Rep. Abrug/September 24, 1974/Page 3
There are, of course, many other questions that can and should be asked of
the President and others involved in this affair, and I have munmitted to
the chairman a list of those who I believe should be called before this
committee. including: President Gerald Ford
Attorney General William Saxbe
Special Prosecutor Leon Jaworski
Alexander Haig
Benton Becker
Philip Buchen
Herbert J.Miller
Ron Zeigler
Dr. Walter Tkach
Dr. John C. Lundgren
Julie Nixon Eisenhower
and Richard M. Nixon
But as a preliminary, it is vital that we get answers to the following
questions from Gerald Ford:
1. Did you or your representatives have specific knowledge of any
formal criminal charges pending against Richard Nixon prior to issuance of
the pardon? If so, what were these charges?
2. Did Alexander Haig refer to or discuss a perdon for Richard M. Nixon
with Richard M. Nixon or representatives of Nr. Nixon at any time during the
week of August 4, 1974 or at any subsequent time? If so, what promises
were made or conditions set for a pardon, if any? If so, were tapes or
transcriptions of any kind made of these conversations or were any notes taken?
If so, please provide such tapes, transcriptions or notes,
3. When was a pardon for Richard M. Nixon first referred to or discussed
with Richard M. Nixon, or representatives of Mr. Nixon, by you or your
representatives or aides, including the period when you were a Member of
Congress or Vice President?
4. Who participated in these as a swisegdent dischasions or negotiations
with Richard M. Nixon or his representatives regarding 7. pardon, and at what
specific times and locations?
S. Did you consult with Attorney General William Saxbs or Special
Procecutor Lecn Jaworski before making the decision to pardon Richard M. Nixon
and, if so, what facts and legal authorities did they give to you?
6. Did you consult with the Vice Presidential nominee, Nelson Rockefeller
before making the decision to pardon Richard M. Nixon, and if so, what facts
and legal authorities did he give to you?
7. Did you consult with any other attorneys or professors of law before
making the decision to pardon Richard M. Nixon, and, of so, what facts or
legal authorities did they give to you?
Rep. Abzug/September 24, 1974/Page 4
8. Did you or your representatives ask Richard M. Nixon to make a
confession or statement of criminal guilt, and, if so, what language was
suggested or requested by you, your representatives, Mr. Nixon, or his
representatives? Was any statement of any kind requested from Mr. Nixon in
exchange for the pardon and, if so, please provide the suggested or requested
language.
9. Was the statement issued by Richard M. Nixon immediately subsequent
to announcement of the pardon made known to you or your representatives prior
to its announcement, and was it approved by you or your representatives?
10. Did you receive any report from a psychiatrist or other physician
stating that Richard M. Nixon was in other than good health? If so, please
provide such reports.
We need direct answers to these direct questions, answers that the
committee can corroborate in the course of an inquiry and hearings. There
are suspicions that Richard Nixon may have made a deal on the pardon with
Gerald Ford before nominating him to the Vice Presidency. If Richard Nixon
made Ford's elevation to VicePresident conditional upon the promise of a pardon
or even if Nixon conditioned his own resignation on a promise of receiving a
pardon, then conceivably Mr. Ford could be charged with accepting a bribe,
which is an impeachable offerse. Grim as this possibility may be, it is
nonetheless the duty of this committee to investigate the facts and make a
determination.
There are suspicions that General Haig, who reportedly was instrumental
in convincing Mr. Nixon to resign, may have held out to him the promise of a
pardon. There are suspicions arising from the belief that in the negotiations
for the pardon, the roles appear to have been switched, with Mr. Ford acting
as supplicant and Mr. Nixon dictating the terms of the pardon, the socalled
statement of contrition, and the agreement on the tapes. There are grave
questions as to whether, in issuing a pardon before Nixon was indicted, tried
or signed a statement of guilt, Mr. Ford abused his pardon powers. And, of
course, there are a multitude of questions about whether Mr. Nixon's physical
or mental condition justified such an unprecedented pardon.
I make no judgment here as to whether these suspicions are justified. It
is a fact, however, that they are widespread and only a full investigation
by the Committee can either confirm some or any of them, or lay them to rest.
Rep. Abzug/September 24, 1974/Page 1.5
For more than two years the American people suffered the consequences of
having a President who lied and misled them at every opportunity throughout
the course of the Watergate investigations. The stability of our nation
requires that the citizens be able to believe that their President is telling
them the truth, at least most of the time. In the wake of the pardon, Gerald
Ford has created an enormous credibility problem for himself and the Presidency.
He is in a particularly vulnerable position because he is the first non-elected
President in the history of our nation and because he was named to the Vice
Presidency by a discredited and impeachable President. The Committee on the
Judiciary which recommended confirmation and the Congress which confirmed his
nomination also have a responsibility to the American people to investigate
and report to them on the conduct of President Ford in connection with the
pardon and the agreement on the tapes.
President Ford's own actions and many conflicting statements have added
to his credibility problem. On August 28, 1974, in his first news conference
as President, he advised the American public that he was not going to make any
comment on a pardon "during the process of whatever charges were made." He
further stated that it would be "unwise and untimely" for him to pardon
Nixon befor e any charges had been brought against him. Yet, just two days
later, on August 30, herasked Philip Buchen formally to study the presidential
power of pardon. Furthermore, according to a report in the September 22
Washington Post, as early as Friday September 6 Ford had revealed to his
staff his intention to pardon the ex-President. Thus it presumably took the
White House less than a week to make a study of and reach a decision on this
highly controversial and explosive issue.
The question naturally arises as to whether the President consulted
fully on this question with Attorney General Saxbe and Special Prosecutor
Jaworski to find out whether they considered legally valid a pardon, issued
before indictment or trial, a pardon that the President himself described as
unprecedented, and that did not specify the offenses for which the pardon
was issued, The question also arises as to whether the President asked Saxbe
or Jaworski what effect the pardon would have on the pending Watergate trial
and other possible investigations, indictments and trials, or did he already
have in mind what he later hinted at--a wholesale pardon for the entire
Watergate gang.
Rep. Abzug/September 24, 1974/Page 6
In his pardon proclamation, President Ford made the prior judgment
that Richard Nixon would be unable to obtain a fair trial, implicitly an
attack on our judicial system, and also expressed his belief that "ugly
passions would again be aroused" during the long period of delay before Mr.
Nixon could be brought to trial. As we know, Mr. Ford has accomplished the
reverse of what he said he intended to do.
Finally, President Ford inserted in his statement a sentence which said
that "serious allegations and accusations. . .hang like a sword over our
former President's head and threaten his health as he tries to reshape his
life. It is this factor that has become the subject of the widest
speculation and conflicting reports. Did President Ford receive any new
evidence in the interval between August 28 and August 30 indicating a change
in Nixon's health--physical or mental?
I regret, of course, that Mr. Nixon is ill and has had to be hospitalized.
The gravity of his present illness can no doubt be determined by court
appointed physicians, as may be requested by Special Prosecutor Jaworski.
Certainly, no one wishes Mr. Nixon ill health or physical punishment, and
clearly he is suffering over his fall from enormous power. How could he feel
anything but regret and anguish? But it is a mark of the man and his reputa-
tion for trickery and deceit that even now, people are questioning whether he
is seriously ill or whether he has taken refuge in a hospital to escape
testifying at the Watergate defendants trial, or to develop sympathy as a
rationale for the pardon.
Most of the facts respecting Nixon's health were released following the
pardon. They appeared to be a well-orchestrated after-the-fact attempt to
protect the vitality of the pardon by promoting the notion that Nixon was
grievously ill. We are all familiar with the alarming statements issued by
Dr. Tkach, Mr. Nixon's personal physician. According to Dr. Tkach, the former
President was a ravaged man who had lost his will to fight, However, after
Dr. Tkach left San Clemente, communications director Kenneth Clausen spent
three hours with the former President and said he seemed animated and in
no visible pain.
Did Mr. Nixon's condition suddenly worsen after the pardon? or did Mr.
Ford receive new information about Mr. Nixon's health after his first news
conference? The American people have a right to know. Certainly their deep
sense of compassion and fair play should not be played upon, if the facts
do not warrant it.
Rep. Abzug/September 24, 1974/Page 7
Finally, beyond the questions raised in my Resolution of Inquiry, I believe
the Judiciary Committee should support efforts to obtain a legal test of the
validity of the pardon. I have already called upon Attorney General Saxbe and
Mr. Jaworski to make such a test possibly by proceeding with an indictment of
Mr. Nixon, if the evidence so warrants, and I would like to state my reasons.
I disagree with those who claim the pardon was a constitutional exercise of
presidential power and cannot be overturned. President Ford himself asserted
in his statement announcing the pardon that "there are no historic or legal
precedents to which I can turn in this matter, "and there is already serious debate
within the legal community as to the constitutionality of Ford's granting a
pardon before formal charges were filed and without a formal admission of guilt
from Mr. Nixon.
Defenders of the pardon are on weak ground in citing as authority for it
an 1867 case -- Ex Parte Garland 71 U.S. 33 -- a 5-to-4 U.S. Supreme Court
decision in which the written opinion explaining the ruling said--
That a President's discretion to pardon is unlimited and
extends to every offense known to the law, and may be exercised
at any time after. commission (of the crime) either before
legal proceedings are taken, or during their pendency or after
conviction and judgment.
This language is dictum, was not crucial to the decision in the case, and does not
constitute a precedent.
Moreover, the impact of the Garland case has been eroded for a number of
reasons, principle among them being that Garland received a grant of amnesty
rather than a pardon. As you will recall, Garland, who had been a Senator in the
Confederate Government during the Civil War, was granted a blanket Presidential
amnesty, which applied to all crimes that may have been committed during the war.
The courts have come to draw a distinction, not drawn by the Garland court,
between amnesty and pardon, and this is a significant distinction as it relates
to individual admission of guilt.
The phrase "reprieves and pardons" as used in article II, section 2 of the
Constitution has been interpreted as a phrase of art including within its
purview reprieves, commutations, pardons, both conditional and unconditional,
and amnesties (Lupo VS. Zerbst, 92 F2d 362, 365 (CA 5th 1937).
The Supreme Court has recognized that "amnesty and pardon" are distinct
and different. In an 8-to-0 ruling in Burdick VS. United States, 236 U.S. 79,
94-95, it stated that they "are of different character and have different purposes.
The one--amnesty--overlooks offense; the other--pardon--remits punishment. The
first is usually addressed to crimes against the sovereignty of the State, to
Rep. Abzug/September 24, 1974/Page 8
political offenses, forgiveness being deemed more expedient for the public welfare
than prosecution and punishment. The second condones infraction of the peace
of the State, Amnesty is usually general, addressed to classes or even
communities, a legislative act, the act of the supreme magistrate."
When the Burdick case went to the Supreme Court, the justices were asked to
rule on whether the President had the authority to pardon Burdick before he had
been indicted, The court, however, ruled on another issue, whether Burdick
could decline the pardon. Stating that a grant and acceptance of a pardon
"carries an imputation of guilt; acceptance a confession of it," the court
held that an individual does not have to accept a pardon.
The need for either a confession or judgment in a pardon case is evident
from the language of the Constitution itself: the power to grant pardons
only goes to "offenses." Without either a confession or at the very least an
indictment, there is no offense. Richard Nixon has made no confession
or admission of guilt and there has been no indictment. Instead, in collaboration
with President Ford, he has made a statement of "contrition" which is a religious
rather than a legal concept.
The first case examining the power of the President to pardon was United
States V. Wilson, 32 U.S. 150 (1833). The question involved there was whether it
was necessary for an individual to accept the pardon in order for it to become
effective. The court held that it was, and that a pardon was without effect if
the person refused it. Under this decision, it was also held that a court cannot
take judicial notice of a pardon unless it is pleaded in court.
It would appear from this ruling that the Watergate grand jury is free to
proceed with an indictment of Richard Nixon, as it had indicated earlier. that
it wished to do. The court does not have to take notice of President Ford's
pardon of Richard Nixon unless Mr. Nixon pleads it in court. If he should
plead that he has been pardoned, he would have to state for which offenses he has
been pardoned.
Special Prosecutor Jaworski has stated that the Presidential pardon of
Mr. Nixon preempts any Federal legal action against him for the period wovered
by thepardon. However, as demonstrated in my testimony, not only is the
legality of the pardon open to serious doubt, but also the pardon itself neither
precludes nor preempts grand jury action. Consequently, I would strongly urge
that the grand jury proceed with an indictment, if the facts warrant it, and
that Special Prosecutor Jaworski or Attorney General Saxbe sign it. so that the
Rep. Abzug/September 24, 1974/Page 9
American people may be assured that the system of equal justice prevails and
so that the groundwork may be laid for a court test of the constitutionality
of President Ford's action.
If it is shown that the pardon was intended to prevent an indictment
or a trial, contrary to the President's stated reasons for the pardon, and
if it is shown that the agreement on the tapes was intended to prevent
further information from becoming public, then these actions. night well
be construed to be an abuse of power by President Ford and/or an obstruction
of justice.
In view of the President's unresponsive reply it seems to me that
the subcommittee has no alternative but to act favorably in reporting this
Resolution of Inquiry to the full committee with the recommendation that the
full committee likewise report it out favorably to the floor.
I would also hope that the full committee would support and initiate
efforts to investigate the validity of the agreement concerning the tapes
and take appropriate steps to preserve this valuable evidence in whatever
way it deems possible.
The committee should also support the resolution which suggests that
the House go on record favoring the grand jury going forward with the indictment
and Mr. Jaworski signing it.
The committee should also consider lending its support to a legal
challenge as to the validity of the pardon.
I want to thank this committee for its consideration of this matter
and for agreeing to have me come to testify before it.
#
Legal authorities on pordon cited to President
No formal written opinion VLDS provided
to the President, but I reviewed form legal
procedents, including a compre he examplos nsive of pardons under
the U. S.Constitution wh ch hodboen
review ot Court decisions and precedents
1650c prepared by Solicitor (although this General depit with mainly class
1
Wm. 4.Taft in 1892 A rincipal decisions
orconsistion)
reported on to him were Ex Parte A. H. Garland,
71 U.S. 366 (180 and Burdick U.S. 036 U.S. 79(1915)
The Lotter involved an individual pardon
before indictment. Numerous other court decisions
authorities were checked but not regarted on
to the President. I did point out that
the under certoin to to consti tutions,
the pordon power could be exercised
only after conviction, but that was
because ot, express limitation which is
absent from thell. S, Constitution
A copyot 2 legsl memorand um
propored by Guarrs) Prosecutor for the
Special Procecutor by Richard Nixon's
sttorney waspiven me in
draft ftor thepending pordon decision
wasdisclosed earlier to such oltorney, A find
droft is filed, was distributed to the
pross on Sopte mber 10, 1974. Decisions
dealt with in that memorandum
roisted to the offect of pre-trial
publicity on due process require ments
for 2 fair trial by on importial jury
particularly in reference to Mr. Nixon's
Gxt situation. Thordecisions cited
/
supported the opinion to me
of the Special Prosentor 25 to
BERRUD FORD
the delay required before a trist of
the former President could have been hold,
but I believe that oginion was issued
before the legal memorandum had
been filed with the Special Prosecutor,
FORDS is 071438 LIBRAR,