August 1, 1973
Page 27146
EXECUTIVE PRIVILEGE CLAIM OVERRULED
Mr. MUSKIE. Mr. President, it is extremely difficult for Members of the Senate – as it is for the public at large – to keep abreast of every development in the testimony and argument being presented before the Select Committee on Presidential Campaign Activities. Even though the hearings are being televised and extensively reported in the printed press, it is possible for significant events to go unnoticed or be imperfectly understood.
One such event occurred 2 days ago when the Senator from North Carolina (Mr. ERVIN) as chairman of the committee, overruled a Presidential invocation of the much-disputed doctrine of executive privilege. To the best of my knowledge, his action on behalf of the committee is the first instance in our history of a congressional committee's using its power to compel testimony which a President specifically refused to make available. In the long and increasingly important discussions of executive privilege, Chairman ERVIN's ruling is a precedent of great weight. I believe the Senate should take note of its occurrence as a matter of historical fact and as a guide to the future implementation of the power of Congress to exercise compulsory process in carrying out its investigative authority.
In the course of his testimony on the afternoon of July 30, Mr. H. R. Haldeman disclosed that, at the President's request, he had listened to two tape recordings of meetings in the White House and had heard passages of conversation between the President and Mr. John W. Dean which took place on March 21, 1973, before Mr. Haldeman joined their meeting. Mr. John Wilson, Mr. Haldeman's counsel, presented a letter he had received that day from Mr. J. Fred Buzhardt, Special Counsel to the President, affirming a Presidential instruction to Mr. Haldeman not to divulge the substance of that portion of the conversation which Mr. Haldeman had heard on the tape but not actually participated in.
The relevant portion of that letter, which Mr. Wilson transmitted to the committee, said–
The President has requested that you inform the committee that Mr. Haldeman has been instructed by the President to decline to testify to such matters, and that the President, in so instructing Mr. Haldeman, is doing so pursuant to the constitutional doctrine of separation of powers.
Before presenting that letter to the committee, Mr. Haldeman indicated that he was seeking its judgment on the Presidential instruction to him which the letter formalized. He said–
I shall obey the decision of the committee and its ruling thereon.
In response Senator ERVIN noted his view "that the matters which this committee is authorized by Senate resolution No. 60 to investigate are not covered by executive privilege of any kind."
Inviting any member of the committee to disagree with him, the chairman then said–
But as far as I am concerned I overrule the claim of executive privilege interposed in the last paragraph of Mr. Buzhardt's letter.
The Senator from Tennessee (Mr. BAKER), the vice chairman of the committee, noted his concurrence in the chairman's ruling. Mr. Haldeman asked what that ruling was. And Senator ERVIN repeated:
The ruling is that the claim of executive privilege is not valid in the view of the Committee ... that you can tell us what the tapes said or your version of it ...
It is my view that those few words, that brief exchange, marked a moment of great significance in our constitutional history. The ruling of the committee and Mr. Haldeman's subsequent obedience to that ruling clearly established the right of Congress to obtain information despite a Presidential instruction that such information be withheld.
The whole issue of executive privilege can be presented as the question of who is to decide the validity of a claim of privilege, whether or not the President of the United States, in asserting a claim in a given instance, can be challenged and overruled by another branch of government. In presenting the view that the President has absolute and unreviewable discretion to make such claims and make them stick, then Attorney General Richard G. Kleindienst told me in public hearings on April 10, 1973–
Your power to get what the President knows is in the President's hands.
The committee's ruling of July 30 deflates that sweeping assertion. On two previous occasions Senate committees have upheld Presidential refusals to provide them information, once concerning the testimony of Gen. Omar Bradley about the dismissal of Gen. Douglas MacArthur in 1951 and once relating to Secretary of Defense Robert McNamara's testimony on military speech review policies in 1962. In both instances, privilege was claimed, and the claim, upon review, was upheld. Two days ago, the claim was made and rejected.
I applaud the ruling of Senator ERVIN, and I note that it conforms in many respects to the procedure set forth in Senate Concurrent Resolution 30, which he and I introduced June 8 as a measure setting forth the power of committees of Congress to rule on Presidential instructions that information be withheld from Congress. I hope the Senate will take note of the significance of the committee ruling and will be reminded, as the committee moves forward in litigating another related claim of privilege, that we do have the power to compel the production of information we require. It is only important that we exercise that power wisely.