TESTIMONY OF JAMES HAMILTON, ATTORNEY, GINSBURG, FELDMAN AND BRESS, WASHINGTON, D.C.

Mr. HAMILTON. Good morning, Mr. Chairman.

My name is James Hamilton. Currently, I am a partner in the Washington law firm of Ginsburg, Feldman and Bress. From March 1973 to September 1974, I was Assistant Chief Counsel to Senator Sam Ervin's Senate Select Committee on Presidential Campaign Activities. Included in my responsibilities for that committee was the conduct of most of the litigation in which the committee became involved. It may be of interest to your committee, Mr. Chairman, that I have just completed writing a book on the congressional investigatory process which will be published early next year.

I would like to limit my testimony this morning to two aspects of the legislation now under consideration by this committee. First: Whether a congressional legal counsel is needed to handle litigation growing out of the investigatory process. Two: Whether a jurisdictional statute should be passed giving Congress the right to sue in Federal court to enforce congressional subpenas.

The Ervin Committee, if I may give background, was involved in over 60 separate litigation matters. Some of these were simple and routine for example, obtaining immunity orders or writs of habeas corpus ad testificandum. But others were complex and time consuming. As is well known, the committee engaged in a lengthy battle with President Nixon over Congress' right to White House tapes and documents. There was also a major litigation with Special Prosecutor Archibald Cox concerning the committee's right to present the immunized testimony of John Dean and Jeb Stuart Magruder on television and radio. And the committee had to defend against suits brought by Rabbi Baruch Korff, the Howard Hughes organization, and Charles "Bebe" Rebozo which sought to affect the course of its hearings.

Senator RIBICOFF. Was the committee successful in all its litigation? Mr. HAMILTON. Not in all the litigation; as you undoubtedly know, we were not successful in the suit against the President. If I may say so, I think the reason was that, when the case reached the court of appeals, the situation had changed to such a degree that the court did not feel the need to give us the tapes. The five tapes then at issue had been turned over to the House Judiciary Committee, and they had been made public, at least the transcripts had been made public.

In that circumstance, the court did not feel that we had genuine enough need to override some claim of executive privilege.

But that case, and in fact, several other cases, raised rather complex legal issues, and we found that in the Congress there was no real body of expertise that we could draw on in handling these cases.

Of course, in the case against the President, President Nixon, whatever expertise existed in the Justice Department simply was

not available to us.

Senator RIBICOFF. In other words, you found during this period that the Justice Department was on the opposite side?

Mr. HAMILTON. It was on the opposite side. We did not go the Justice Department.

As perhaps you will remember, Attorney General Saxbe submitted an amicus brief supporting the President in the court of appeals.

Senator RIBICOFF. Even the separation of powers would seem to demand that Congress does have legal counsel. There you had a real head-to-head difference of opinion.

Mr. HAMILTON. That is true.

If it is anticipated in the future that Congress will be engaged in considerable litigation regarding its investigatory powers, then a congressional legal counsel appears necessary. I think the question that must be raised is now much litigation will there be in the future regarding investigatory powers.

It is my view, Senator, that suits by private parties or Government officials to block congressional subpenas or otherwise impede the investigatory process will usually not be successful or require a great deal of effort. As the Supreme Court's recent decision in Eastland v. United States Servicemen's Fund demonstrates, actions against Congressmen to enjoin enforcement of congressional subpenas will normally be unavailing. The speech or debate clause of the Constitution protects Congressmen and aides against suits challenging legitimate legislative activities, such as the issuance of subpenas.

The Eastland case puts a pretty flat prohibition against suing Congressmen and their aides to challenge performance of legitimate legislative activity. There is some question as to what constitutes legitimate legislative activity. For example, in the famous Doe v. McMillian case, the Supreme Court left open a lot of questions regarding Congress' right to distribute committee reports containing defamatory material to the public. The Eastland case, however, should put a halt to most serious attacks on congressional actions taken in the course of the investigatory process.

On the other hand, if it is determined that legislation should be enacted allowing Congress to enforce its subpenas through civil actions rather than by traditional methods, then the need for a congressional legal counsel is increased. This observation raises the question whether a civil action is a feasible way to resolve conflicts over congressional subpenas and requests for information.

Historically, other methods have predominated. Few suits have been brought by congressional committees to enforce subpenas or gain information. In fact, the law suit brought by the Ervin Committee against Nixon was the first civil action to enforce congressional subpenas issued to the executive branch.

Congress and its committees have a variety of tactics at their command to force production of evidence-particularly evidence held by the executive branch. An administration bill may be shelved in committee until information is forthcoming or defeated on the floor. Appropriations sought by a President may be denied or reduced. An ambassadorial or Cabinet appointment may be rejected. Additional investigations of the executive branch may be initiated. Prominent Congressmen may use their national forums to castigate a President for guile, lack of cooperation or worse.

Such approaches may work. If, for example, the President declines to provide information relevant to legislation he seeks, refusal by Congress to pass it may be sufficient impetus to force production. Similarly, a President may not secure congressional confirmation of

a Cabinet appointment until information relating to his or her past performance in Government is revealed.

But such approaches may prove rough-hewn remedies unsuitable to the task. When executive refusal, as in Nixon's case, does not involve specific legislation it may be inappropriate to employ a wholesale attack on administration legislative proposals as a lever to pry loose facts. Likewise, it may not be propitious to cutoff an appropriation to gain information not related to it. Demonstrations of strength of this order often do little to promote workable Government and may backfire on Congress by creating a negative public image.

An intransigent President is always subject to impeachment for failure to produce materials, but, as the disquieting, enervating struggle to oust Nixon showed, this is a remedy not lightly pursued, one hardly practical to resolve normal disputes between legislature and executive. Judge Sirica recognized this in the Cox-Nixon struggle for the tapes. "Impeachment," he said, "is not a reasonable solution" to executive recalcitrance and "is not so designed that it can function as a deterrent in any but the most excessive cases.'

The realization that trials of strength between the two branches may be destructive suggests that a judicial solution, in some circumstances, may be the preferable mode of resolution. The question then becomes, "How is the issue raised in court."

The courts have traditionally tested Congress subpena powers and right to information in several ways. They have determined the propriety of demands for evidence in the context of criminal contempt proceedings brought against those who defied congressional orders. And they have ruled on habeas corpus petitions or damage actions by those detained by a Sergeant at Arms for failure to testify or produce records. But congressional action putting in motion either of these processess may be undesirable. It would be unseemly-and most probably futile-to send a Sergeant at Arms to arrest the President or to instigate criminal contempt proceedings against him, as the Ervin committee realized when it deliberated the proper course to combat Mr. Nixon's defiance of its subpenas.

Similarly, using a Sergeant at Arms or initiating criminal contempt actions against other high executive officials or even lower echelon employees who are only following orders-may be inappropriate. Moreover, in a criminal or habeas corpus case-where the liberty of an individual is at stake-the courts tend to construe the powers of Congress strictly.

Even if a court ruling eventually favors the congressional claim, the final holding, which may come long after the issue was at a head, may not actually produce the materials sought.

The criminal contempt citation against Henry Kissinger voted by the House Intelligence Committee provides an apt example of the futility of this approach. Even if the full House cites Kissinger for criminal contempt, he most probably will never be prosecuted because prosecutorial discretion rests with the executive branch. If a trial results, the administration's claim of executive privilege may well receive favorable consideration by a court not wanting to stigmatize the Secretary with a criminal conviction. And in the extraordinarily unlikely event that Kissinger is convicted and sentenced, he would probably receive a Presidential pardon. While the contempt

citation may demean Kissinger in some eyes, to others the House Intelligence Committee is itself demeaned by engaging in what some may interpret as a grandstand play.

Senator RIBICOFF. In other words, it is your feeling that all of the proceedings of the Pike committee against Mr. Kissinger are futile? Mr. HAMILTON. I think they are futile from the legal standpoint. There is obviously a battle here for public opinion. I think they are trying to force Mr. Kissinger to comply by the force of public opinion. Senator RIBICOFF. In other words, all Congress has, then, would be public opinion against Mr. Kissinger's activities?

Mr. HAMILTON. I think that is right, Mr. Chairman. I do not think that there is any chance that a criminal contempt action would ever be successful, or that, in itself, it would produce the information sought.

Senator RIBICOFF. You feel that if there were civil action, that Mr. Kissinger could be made to disclose?

Mr. HAMILTON. I think that there would be a better chance. If the matter could be brought into court on the basis of a jurisdictional statute of some sort, this might be the most efficacious way of resolving disputes between Congress and the Executive, and, in some cases, between Congress and private parties.

The courts would be much more favorable toward the congressional claim for evidence in a civil proceeding rather than in a criminal proceeding. If you look at the history of contempt prosecutions, starting back, say, in the 1940's Congress has not come out very well.

The reason for this largely is that most of the cases arose out of prosecutions initiated by the House Un-American Activities Committee. There was a great judicial distaste for the proceedings of that committee. It is reflected in the decisions. Consequently, the law has tended to go against Congress.

If you switch to the civil context, where a court has a different type of judicial relief to give and has, perhaps, a fuller chance to explore constitutional issues, you may find that Congress comes out better. You may find, if a court issues an injunction or declaratory judgment suggesting or saying to the Executive that information should be produced, that the Executive might be, in that situation, more prone to turn it over.

Senator RIBICOFF. Of course, public opinion in the final analysis in the political process is the most effective weapon.

Looking at the Watergate proceedings, it was the public opinion, after all, that led to the ultimate conclusions, and the ultimate action. With regard to the Pike proceedings, you do not see anything happening to Mr. Kissinger from the criminal contempt angle. Mr. HAMILTON. I am speculating

Senator RIBICOFF. We would appreciate having your opinion from experience.

What would be involved here, then, is Mr. Kissinger's standing in Congress and his ability to have his policies accepted by the House and the Senate once Congress concludes from his actions and activities that he is not being forthcoming and is not playing the game fairly. Based upon past experience, your feeling is that a congressional legal counsel having civil powers would be a proper extension of what we learned from Watergate?

Mr. HAMILTON. I think that is right, Mr. Chairman. You suggested that public opinion was the ultimate force in Mr. Nixon's case. I think that may be right.

I do think that the straw that broke the camel's back was the Supreme Court's decision in the Jaworski case. That is what I believe caused the ultimate downfall, and, of course, the President felt that he had to comply with that case. If Congress had the power to bring a civil action, if a jurisdictional statute was passed and you had a similar confrontation, you may find that the congressional power to sue is quite valuable.

I might say for the record, Mr. Chairman, that I think in many situations that Congress has the right to go to court right now. I think Judge Sirica, in the Ervin committee's case, was dead wrong. He failed to follow precedents in his circuit, and I think upon appellant consideration his decision on jurisdiction might well have been reversed.

Senator Ervin and members of the Watergate Committee thought it would be the better course to seek a jurisdictional statute to allow us to pursue that particular case. That is what we did.

I do think that you can make a very strong argument that Judge Sirica's decision was just in error, and that Congress does have jurisdiction. But I do not see any sense to leave that determination to the whims of a judicial decision, and I think Congress should pass

a statute.

Senator RIBICOFF. Evidently, there is no question in your mind that Congress, even with the separation of powers, does have a constitutional right to have its own legal counsel?

Mr. HAMILTON. I have not studied the whole issue about a counsel. I do not see why there would be a difficulty. Congress certainly has implied powers in the investigatory process. Contempt power is an implied power. There is nothing in the Constitution that flatly says Congress has a contempt power.

Certainly, if it has contempt power, it has a lesser power to go into court and protect its interests in court, it seems to me.

In the suit against the President, the President never really challenged the right of the committee constitutionally to bring a lawsuit. He did challenge it under the committee's resolution. But he never really challenged the constitutional right of Congress to come into court in the investigatory process.

I have a couple of suggestions in regard to what the jurisdictional statute should contain.

I think that the statute should allow Congress to enforce subpenas, not only against the Executive, but also against private parties. I think there are instances when private parties do not comply where the most desirable way of resolution is in a civil action rather than a contempt proceeding. I would not allow either private parties or the Executive to bring their own suits challenging subpenas.

I think in most situations that would be violative of the speech or debate clause.

I would include in the statute a provision requiring that the courts expedite the handling of Congressional litigation. If Congress does not promptly receive the information it wants, the information may be useless.