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BOSTOISI
PUBLIC
UBRARY




SPECIAL PROSECUTOR AND WATERGATE
GRAND JURY LEGISLATION



HEARINGS

BEFORE THE

SUBCOMMITTEE ON CKIMINAL JUSTICE

OF THE

COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

NINETY-THIKD CONGKESS

FIRST SESSION
ON

H.J. Res. 784

A JOINT RESOLUTION TO PROVIDE FOR THE APPOINTMENT

OF A SPECIAL PROSECUTOR, AND FOR OTHER PURPOSES;

AND RELATED MEASURES

AND

H.R. 10937

A BILL TO EXTEND THE LIFE OF THE JUNE 5, 1972, GRAND
JURY OF THE U.S. DISTRICT COURT FOR THE DISTRICT

OF COLUMBIA



OCTOBER 29, 31 ; NOVEMBER 1, 5, 7, AND 8, 1973



Serial No. 18




Printed for the use of the Committee on the Judiciary



SPECIAL PROSECUTOR AND WATERGATE
GRAND JURY LEGISLATION



Ov S . C>^7



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r— '-



HEARINGS

BEFORE THE

SUBCOMMITTEE ON CRIMINAL JUSTICE

OF THE

COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

NINETY-THIKD CONGKESS

FIRST SESSION
ON

H.J. Res. 784

A JOINT RESOLUTION TO PROVIDE FOR THE APPOINTMENT

OF A SPECIAL PROSECUTOR, AND FOR OTHER PURPOSES:

AND RELATED MEASURES

AND

H.R 10937

A BILL TO EXTEND THE LIFE OF THE JUNE 5, 1972, GRAND

JURY OF THE U.S. DISTRICT COURT FOR THE DISTRICT

OF COLUMBIA



OCTOBER 29, 31 ; NOVEMBER 1, 5, 7, AND 8, 1973



Serial No. 18




Printed for the use of the Committee on the Judiciary

U.S. GOVERNMENT PRINTING OFFICE
25-164 O WASHINGTON : 1973






COMMITTEE ON THE JUDICIARY

PETER W. RODINO, JR., New Jersey, Chairman

HAROLD D. DONOHUE, Massachusetts EDWARD HUTCHINSON, Michigan

JACK BROOKS, Texas ROBERT McCLORY, Illinois

ROBERT W. KASTENMEIER, Wisconsin HENRY P. SMITH III, New York

DON EDWARDS, California CHARLES W. SANDMAN, Jr., New Jersey

WILLIAM L. HUNGATE, Missouri TOM RAILSBACK, Illinois

JOHN CONYERS, JR., Michigan CHARLES E. WIGGINS, California

JOSHUA EILBERG, Pennsylvania DAVID W. DENNIS, Indiana

JEROME R. WALDIB, California HAMILTON FISH, Jr., New York

WALTER FLOWERS, Alabama WILEY MAYNE, Iowa

JAMES R. MANN, South Carolina LAWRENCE J. HOGAN, Maryland

PAUL S. SARBANES, Maryland WILLIAM J. KEATING, Ohia

JOHN F. SEIBERLING, Ohio M. CALDWELL BUTLER, Virginia

GEORGE E. DANIELSON, California WILLIAM S. COHEN, Maine

ROBERT F. DRINAN, Massachusetts TRENT LOTT, Mississippi

CHARLES B. RANGEL, New York HAROLD V. FROEHLICH, Wisconsin

BARBARA JORDAN, Texas CARLOS J. MOORHEAD, California

RAY THORNTON, Arkansas JOSEPH J. MARAZITI, New Jersey

ELIZABETH HOLTZMAN, New York

WAYNE OWENS, Utah

EDWARD MEZVINSKY, Iowa

Jerome M. Zeifman, General Counsel

Garner J. Cline, Associate General Counsel

Joseph Fischer, Law Revision Counsel

Herbert Fuchs, Counsel

Herbert E. Hoffman, Counsel

William P. Shattuck, Counsel

H. Christopher Nolde, Counsel

Alan A. Parker, Counsel

James F. Falco, Counsel

Maurice A. Barboza, Counsel

Donald G. Benn, Counsel

Franklin G. Polk, Counsel

Roger A. Pauley, Counsel

Thomas E. Mooney, Counsel

Peter T. Straub, Counsel

Michael W. Blommer, Counsel

Alexander B. Cook, Counsel



Subcommittee on Criminal Justice

WILLIAM L. HUNGATE, Missouri, Chairman

ROBERT W. KASTENMEIER, Wisconsin HENRY P. SMITH III, New York

DON EDWARDS, California DAVID W. DENNIS, Indiana

JAMES R. MANN, South Carolina WILEY MAYNE, Iowa

ELIZABETH HOLTZMAN, New York LAWRENCE J. HOGAN, Maryland

Herbert E. Hoffman, Counsel

Thomas W. Hutchison, Assistant Counsel

Roger A. Pauley, Associate Counsel

Stephen P. Lynch, Research Assistant

(II)



CONTENTS



Hearings held on — ^"S*

October 29, 1973 1

October 31, 1973 27

November 1, 1973 169

November 5, 1973 239

November 7, 1973 329

November 8, 1973 369

Text of bills—

H.J. Res. 784 28

H.R. 10937 1

H.R. 10937 (Union Calendar No. 269) 20

H.R. 11067 38

H.R. 11081 36

H.R. 11135 56

H.R. 11145 60

H.R. 11263 - 431

H.R. 11264 435

H.R. 11401 (Union Calendar No. 287) 487

S. 2611 48

Reports —

93-618 — Extension of Watergate Grand Jury 23

93-660 — Independent Special Prosecutor 463

Testimony of

Bator, Prof. Paul M., Harvard University Law School 334

Prepared statement 334

— • Bayh, Hon. Birch, a U.S. Senator from the State of Indiana 98

Prepared statement 104

Bennett, Hon. Charles E., a Representative in Congress from the State

of Florida 160

Prepared statement 160

Blester, Hon. Edward G., Jr., a Representative in Congress from the

State of Pennsylvania 118

Prepared statement 118

Bork, Hon. Robert H., Acting Attorney General 251

Casper, Prof. Gerhard, University of Chicago Law School 204

Cox, Hon. Archibald, former Special Prosecutor 294

Cramton, Dean Roger C, Cornell University Law School 338

Prepared statement 343

-— ~ Culver, Hon. John C, a Representative in Congress from the State

of Iowa ; accompanied by Mr. Roland S. Hornet, Jr., counsel 63

Prepared statement 63

Dennis, Hon. David W., a Representative in Congress from the State

of Indiana 428

Fuqua, Hon. Don., a Representative in Congress from the State of

Florida 164

Prepared statement 167

Ichord, Hon. Richard, a Representative in Congress from the State

of Missouri 233

Prepared statement 233

Jaworski, Hon. Leon, Special Prosecutor 443

Jordan, Hon. Barbara, a Representative in Congress from the State

of Texas 146

Prepared statement 150

Lacovara, Philip A., counsel to the Special Prosecutor ; accompanied
by Henry S. Ruth, Jr., Deputy Special Prosecutor, and Richard

Ben-Veniste, Assistant Special Prosecutor 4

(HI)



IV

Testimony of— Continued ^^^l

Meador, Prof. Daniel J., University of Virginia Law School 208

Prepared statement 208

Miskin, Prof. Paul J., University of California Law School 215

Prepared statement 215

Moss, Hon. John E., a Representative in Congress from the State of

California ^^^

Prepared statement 153

Seymour. Whitney North, former U.S. Attorney, Southern Distiict of

New York "_ 191

Smith, Chesterfield, president, American Bar Association 1^

Prepared statement 174

Whalen, Hon. Charles W., a Representative in Congress from the

State of Ohio 330

Additional material —

Bar Association of San Francisco, letter 246

Bollinger, Lee C, Assistant Professor of Law, University of Michigan

Law School, letter, October 29, 1973 370

Bork, Hon. Robert H., Acting Attorney General, letter, November

7, 1973 290

Concerned Members of the Yale Community, letter, October 24, 1973— 249

Connecticut Bar Association, letter, October 29, 1973 244

Ehlke, Richard, Library of Congress report 372

Federal Bar Association, letter, October 31, 1973 244

Freund, Paul A., Law School of Harvard University, letter, October

25, 1973 77

Gardner, John W., Chairman, Common Cause, letter, November 6,

1973 381

Homet, Roland S., Jr., memorandum on the Special Prosecutor 67

Killian, Johnny H., Library of Congress report 121

Kranz, Harry, Brookings Institution, letter. November 2, 1973 377

Seymour, Whitney North, letter, November 13, 1973 203

Slack, Hon. John, a Representative in Congress from the State of

West Virginia, letter, November 1, 1973 244

"Special Prosecutor . . .," editorial. New York Times, November 2,

1973 239

Stonehill College, petition 250

Teague. Hon. Charles ]NL, a Representative in Congress from the

State of California, letter, October 31, 1973 242

Additional statements —

Railsback, Hon. Tom, a Representative in Congress from the State of

Illinois 380

Rodino, Hon. Peter W., Jr., a Representative in Congress from the

State of New Jersey, Chairman, House Committee on the

Judiciary 2, 61



WATERGATE GRAND JURY LEGISLATION



MONDAY, OCTOBER 29, 1973

House or Representatives,
Subcommittee on Criminal Justice of the

Committee on the Judiciary,

Washington^ D.C.

The subcommittee met, pursuant to notice, at 10 a.m. in room 2141,
Rayburn House Office Building, Hon. William L. Hungate [chair-
man of the subcommittee] presiding.

Present : Representatives Hungate, Kastenmeier, Edwards, Dennis,
and Hogan.

Also present : Herbert E. Hoffman, counsel ; Thomas W. Hutchison,
assistant counsel; Roger A. Pauley, associate counsel; and Stephen
P. Lynch, research assistant.

Mr. Hungate. The committee will be in order. Some of the Mem-
bers have been detained by traffic. We will recess and start at 10 after
10.

[A recess was taken.]

Mr. Hungate. The committee will be in order.

The subcommittee today opens its hearings on two matters of vital
importance and urgency. Today we focus on H.R. 10937, legislation
to extend the life of the Watergate Grand Jury in the District of
Columbia.

On Wednesday, October 31, the subcommittee will begin to receive
testimony on various legislative proposals sponsored by approximately
150 Members of the House, to establish an independent Special Prose-
cutor to continue the work of the former Special Prosecutor, Mr.
Archibald Cox.

At this point, we will place in the record a copy of H.R. 10937,
without objection, and a copy of the executive communication directed
to the Speaker of the House by former Attorney General Elliot- L.
Richardson, requesting its introduction.

[A copy of H.R. 10937 and the executive communication follow :]

[H.R. 10937, 93d Cong., first sess.]

A BILL To extend the life of the June 5, 1972, grand jury of the United States District
Court for the District of Columbia

Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled. That (a) notwithstanding any provision of
rule 6(g) of the Federal Rules of Criminal Procedure, or any other law, rule,
or regulation —

(1) the United States District Court for the District of Columbia is au-
thorized to extend the term of the grand jury of that court which was im-
paneled on June 5, 1972. for an additional period of six months, if the court
determines that the business of that grand jury has not been completed at
the expiration of the term otherwise provided by law ;

(2) the United States District Court for the District of Columbia is au-
thorized further to extend the term of that grand jury for another additional
period of six months, if the court determines that the business of that grand
jury has not been completed at the end of the term as extended under para-
graph (1) ; and

(3) during any period of extension under this Act. the grand jury shall
have the powers and duties of a grand jury during its regular term.

(b) With respect to any failure to extend the term of the grand jury under this
Act, the grand jury shall be considered a special grand jury, and the failure to
extend shall be considered a failure to extend under section 3331(b) of title 18
of the United States Code.

(1)



Office of the Attorney Genebal,

Washington, B.C.
The Speakeb,
House of Representatives,
Washington, D.C.

Dear Mb. Speaker: On behalf of the Special Prosecutor, I am enclosing for
your consideration and appropriate reference a legislative proposal to authorize
the United States District Court for the District of Columbia to extend the life
of the Watergate Grand Jury beyond December 4, 1973, when it will otherwise
expire.

The Grand Jury hearing the Watergate case is a regular grand jury empaneled
June 5, 1972. Under F.R.Crim.P.Rule 6(g) it cannot continue more than 18
months without a statutory extension.

The legislative proposal provides that if, at the expiration of the present
term of the aforementioned Grand Jury, the District Court determines that the
business of the Grand Jury has not been completed, the court may extend its
term for an additional period of six months. Provision is also made for a further
extension for a second six-month period after a determination that its business
has not yet been completed. During any period of extension of its term, the
Grand Jury shall have all the powers of a grand jury during its regular term.

The legislative proposal further provides that if the term of the Grand Jury
is not extended under this Act, the Grand Jury shall be considered a special grand
jury, and the failure to extend shall be considered a failure to extend under
Section 3331 (b) of title 18 of the United States Code.

The need for extension of the life of this Grand Jury arises from the in-
escapable expenditure of several months in litigating whether the President is
obliged to furnish recordings, memoranda and other papers believed to contain
evidence highly material to key issues. At the present time the constitutional
issue is before the United States Court of Appeals for the District of Columbia
Circuit. Although its decision is expected shortly, the case seems surely destined
for the Supreme Court. A Supreme Court decision cannot reasonably be expected
before mid-November. In the event of a ruling in favor of the Special Prosecutor,
both legal and technical problems may consume further time before the evidence
is actually available, resulting in insufficient time for the Grand Jury to receive
the evidence, pursue any resulting leads, and determine what indictments are
warranted before December 4th.

The present law does not permit judicial extension of the life of a general
grand jury. I recognize that statutory extensions have usually been discouraged,
but the present case seems sufficiently extraordinary to require an exception, not
only because of the unusual constitutional litigation which could not have been
commenced earlier, but also because of the character of the crimes, the potential
defendants, and the questions of public confidence that they raise. Furthermore,
analogous extensions for three 6-month periods are permitted under the Organized
Crime Control Act of 1970, 18 U.S.C. 3331-3334, when a special grand jury has
been empaneled and the usual 18-month period proves insufficient for it to
complete its investigation.

Counsel to the President has asked me to emphasize that submission of this
legislative proposal is not to be construed as an endorsement of the position of
the Special Prosecutor in the aforementioned court action.

I urge prompt consideration and enactment of this legi.slation.

The Office of Management and Budget has advised that there is no objection
to the submission of this proposal from the standpoint of the Administration's
program.

Sincerely,

Elliot Richardson.

Attorney General.

Mr. HuNGATE. Also, at this time, if there is no objection, we will
place in the record a statement by the chairman of the full Committee
on the Judiciary, who introduced the legislation at the request of
^Ir. Eichardson.

[The statement of Hon. Peter W. Rodino, Jr., follows :]

Statement of Hon. Pete^r W. Rodino, Jr.. in Support of H.R. 10937

Mr. Chairman : At the outset. Mr. Chairman, permit me to commend you and
the Subcommittee for your expeditious scheduling of this hearing on my bill,
H.R. 10937, to extend the life of the Watergate grand jury, and on the legisla-



tive proposals relating to the appointment of an independent special prosecutor.
These matters are of great national importance and the utmost urgency.

In compliance with the Subcommittee's announced plan of procedure, I shall
restrict my testimony to the grand jury legislation, H.R. 10937, which I intro-
duced on October 16, 1973.

The grand jury in question was empaneled on June 5, 1972, and has been
hearing testimony on the Watergate break-in and related matters for some 16
months. Because Rule 6(g) of the Rules of Criminal Procedure for the United
States District Courts provides that "no grand jury may serve more than 18
months," this grand jury will expire on December 4th of this year unless ex-
tended by law.

The proceedings of a grand jury are secret, but it is no secret that this grand
jury has heard many witnesses and received much evidence. To permit it to
expire before it has had an opportunity to complete its work would be grossly
ineflBcient and highly detrimental to the administration of justice.

As you well know, one of the predicates on which our petit jury system is based
is that jurors should have an opportunity to observe and react to the demeanor
of witnesses. Although this is not universally required with resi^ect to grand
juries, and a successor grand jury can be supplied with the written testimony
of the witnesses who appeared before an expired grand jury, or given sum-
maries or excerpts of that testimony, the advantages of personal observation can-
not be overemphasized. In the instant case, the opportunity to have observed the
witnesses would appear to be particularly important and critical.

Ordinarily, 18 months is an adequate period of time for a grand jury to con-
clude its work. But the work of and problems encountered by this grand jury
are not ordinary. I will not belabor you with a recounting of the obstacles which
have confronted the OflSce of the Special Prosecutor and this grand jury. We
are all aware of these. Suffice it to say, there appears to be good reason why
an extension is essential.

The need for H.R. 10937 was outlined to the Speaker in a letter from former
Attorney General Elliot Richardson, dated October 11, 1973, transmitting the
proposal. Recent events make the extension all the more necessary.

Mr. Chairman, I urge the Subcommittee to report H.R. 10937 promptly and
favorably.

Mr. HuNGATE. Chairman Rodino in his statement restricts his tes-
timony to the grand jury legislation which he introduced October 16,
1973, and states that the grand jury in question was empaneled on
June 5, 1972, and has been hearing testimony on the Watergate break-
in and related matters for some 16 months. Because rule 6(g) of the
rules of criminal procedure for the U.S. district courts provides that
"no grand jury may serve more than 18 months," this grand jury will
expire on December 4 of this year unless extended by law.

The proceedings of a grand jury are secret, but it is no secret that
this grand jury has heard many witnesses and received much evidence.
To permit it to expire before it has had an opportunity to complete its
work would be grossly inefficient and highly detrimental to the admin-
istration of justice.

As you well know, one of the predicates on which our petit jury
system is based is that jurors should have an opportunity to observe
and react to the demeanor of witnesses. Although this is not univer-
sally required with respect to grand juries, and a successor grand jury
can be supplied with the written testimony of the witnesses who ap-
peared before an expired grand jury, or given summaries or excerpts
of that testimony, the advantages of personal observation cannot be
overemphasized. In the instant case, the opportunity to have observed
the witnesses would appear to be particularly important and critical.

Ordinarily, 18 months is an adequate period of time for a grand
jury to conclude its work. The work of. and problems encountered by,
this grand jury are not ordinary. I will not belabor you with a re-



counting of the obstacles which have confronted the Office of the Spe-
cial Prosecutor and this grand jury. We are all aware of these. Suffice
it to say, there appears to be good reason why an extension is essential.

The need for H.R. 10937 was outlined to the Speaker in a letter from
former Attorney General Elliot Richardson, dated October 11, 1973,
transmitting the proposal.

Does Mr. Kastenmeier or any other member have an opening state-
ment?

Mr. Kastenmeier. I do not.

Mr. HuNGATE. Mr. Dennis, any opening statement ?

Mr. Dennis. I think not, Mr. Chairman. Let us proceed with the
business.

Mr. Hungate. The subcommittee is pleased to welcome the repre-
sentative from the Justice Department, Philip A. Lacovara, Counsel
to the Special Prosecutor.

Mr. Lacovara, we express our appreciation for your presence and
ask for the record that you identify the gentlemen with you.

Mr. Lacovara. Thank you, Mr. Chairman. With me this morning are
Mr. Henry S. Ruth, Deputy Special Prosecutor, on my left, and Mr.
Richard Beh-Veniste, who is in charge of the Watergate Task Force
of the Watergate Special Prosecution Force. Mr. Ben-Veniste is on my
right.

Mr. Hungate. Do you have a prepared statement which has been
furnished to the committee ?

Mr. Lacovara. I do, Mr. Chairman.

Mr. Hungate. Without objection, it may be made a part of the
record at this point and you may proceed as you wish.

Mr. Lacovara. Thank you.

TESTIMONY OF PHILIP A. LACOVARA, COUNSEL TO THE SPECIAL
PROSECUTOR, ACCOMPANIED BY HENRY S. RUTH, JR., DEPUTY
SPECIAL PROSECUTOR, AND RICHARD BEN-VENISTE, ASSISTANT
SPECIAL PROSECUTOR

Mr. Chairman, I am pleased to appear before this committee to
testify on H.R. 10937, a bill to provide for extension of the life of the
June 5, 1972, grand jury of the LT.S. District Court for the District
of Columbia, the grand jury that is investigating the Watergate break-
in and the possible obstruction of justice and other offenses following
that incident. The purpose of the legislation is to enable this grand
jury to continue and complete its investigation after resolution of the
current litigation arising out of the grand jury's subpenaing of tape
recordings and other documents in the White House. Mr. Ruth, Mr.
Ben-Veniste, and I are appearing on behalf of the Department of
Justice which has requested introduction and enactment of this legis-
lation. And with the subcommaittee's permission, I would like Mr. Ruth
to explain the current status of the Watergate Special Prosecution
Force before I continue with my testimony about this bill,

Mr. Hungate. Mr. Ruth.

Mr. Ruth. Thank you, Mr. Chairman.

As you all know, as of Friday, October 19, we were tlie Watergate
Special Prosecution Force operating under guidelines of independence



between then Attorney General Eiclicarclson and the Special Prosecutor
Mr. Cox.

Saturday night that arrangement was abolished and when w^e came
to work on Monday, the Watergate Special Prosecution Force was
reconstituted by Acting Attorney General Bork in the Criminal Divi-
sion of the U.S. Department of Justice and the new head of the Special
Prosecution Force was Mr. Henry Petersen, Assistant Attorney Gen-
eral of the Criminal Division of the Department.

We were instnicted by Mr. Bork and Mr. Petersen to proceed with
full, fair, and thorough nivestigation as we had previously; and so on
Tuesday morning, after the Federal holiday, we did just that.

We have two grand juries operating. They operated all last week.
The staff is intact. We are operating under the directions of Mr. Bork
and Mr. Petersen to proceed thoroughly ahead and we are here this
morning testifying for the Department on the Grand Jury Extension
Act.

Mr. HuNGATE. Thank you, sir.

Mr. Lacovara. The Department has sought extension of the term of
the grand jury that has been investigating the complex Watergate
matter over the past 16 months in order to avoid the delay and possible
prejudice to the Government, to witnesses, and to the general public
that would result if its term were allowed to expire before the com-
pletion of its investigation, thus necessitating presentation of great
masses of evidence to a new grand jury.

Under existing law, w^hich is set forth in rule 6(g) of the Federal
Rules of Criminal Procedure, a re.q-ular grand jury may not serve
more than 18 months. The June 5, 1972, grand jury is a regular grand
jury and its term, accordingly, would ordinarily expire on December
4, i973. It is no longer unusual or exceptional, however, for grand
juries to sit longer than 18 montlis. In title I, section 101(a) of the
Organized Crime Control Act of 1970, 18 U.S.C. § 3331-3334, Con-
gress provided for the summoning of special grand juries to investigate
criminal activity and to serve for 18 months. However, if at the end of
that term "the district court determines the business of the grand
jury has not been completed," the court may enter orders extending the
term of the grand jury for additional 6-month periods, up to a maxi-
mum term of 36 months (and, in certain circumstances, beyond that
period when it is necessary to hear additional testimony in connection
with the preparation of the grand jury's report). Such special grand
juries are now regularly called in each of the largest Federal judicial
districts and in other districts where the Attorney General certifies
that "a special grand jury is necessary because of criminal activity in
the district."

Legislation authorizing extension of the life of the June 5, 1972