Impeachment Hearings: House Judiciary Committee, July 30, 1974 (1/2)
Impeachment Hearings: House Judiciary Committee, July 30, 1974 (1/2)
[00.47.30] Mr. FISH. I thank the. gentleman. Mr. Thornton, if I could address a question to you, where in Your amendment to the article offered by Mr. McClory you use the language that you discussed a few minutes ago -with Mr. Butler, " demonstrated by other evidence to be, substantial grounds", are you referring there to the substantiation for the subpenaed materials that we received in each instance when a subpena was before us prepared by counsel showing the direct need that the-the, necessity for the subpenaed material by this committee in the course of its inquiry? Mr. THORNTON. If the gentleman will yield, I am referring to the evidentiary material which had been collected and presented to us in Support of the subpenas which were then issued. Mr. FISH. Finally, Mr. Chairman, Just an observation, and I will be glad to be challenged by anybody about this. The matter of going to the court for determination between the executive and the, legislative branch, it seems to me that the decision was made by the President himself that it was equally irrelevant to him whether to go to the court or to the Congress, but rather, he, made the determination himself as to what was relevant and necessary. The CHAIRMAN. The gentleman has consumed 3 1/2 minutes. I recognize the gentleman from New York, Mr., Smith, for 3 minutes and 35 seconds. Mr. SMITH. Mr. Chairman, this committee subpenaed tapes, memoranda and other records of the President. I voted to issue most of those subpenas. The President has furnished some of the material and he has furnished transcripts of many of the tapes and he has declined to furnish the balance, asserting his constitutional right of executive privilege, and the constitutional doctrine of the separation of powers among the three coequal branches of this Government as reasons for his declination to furnish. The committee asserts its constitutional right to reach and have this evidentiary material under the sole power of the House to impeach civil officers of the United States. As was set forth by Mr. Froehlich, here we have a constitutional confrontation between two coequal branches of our Government. Mr. McClory said Congress is pitted against the executive. It seems only natural and proper to me that the third coequal branch of our Government ought to be the umpire or arbiter of this confrontation of claimed constitutional rights and duties, particularly when that branch happens to be the one whose formal function it is to declare the meaning and effect of the Constitution. And so it is that I am one of the six members of this Committee who voted to submit the enforcement. of our subpenas to the courts, a position for which there is impressive support from constitutional scholars such as Prof. Alexander Bickel of Yale. However, the majority of our committee felt otherwise. I think this was a mistake, particularly in view of the recent Supreme Court decision -which upheld the subpena of some of the same material from the President by the Special Prosecutor. Most of us on the committee feel that our case is even stronger than that of Mr. Jaworski but I think it is still a case and I am surprised at 38 lawyers who vote not to submit their case to court, even though they are Congressmen and are asserting the alleged superior and supreme power of the Congress.I still think we should have gone to court to enforce our subpenas. We may have, but probably would not have, taken some additional time. However , even so, in a matter as important. as the impeachment of the President, we should have made this effort to obtain the tapes and the other material through the courts. If we bad received them, -we may have achieved some clear and convincing proof to connect the President personally and directly with the things which cannot be condoned that went on in the Committee To Re-Elect the President and in the White House itself. In my judgment, we do not have, that evidence today. Or the President may have refused to obey all order of the Supreme Court to deliver the materials sought, and clearly my judgment, this would be impeachable conduct. One, other aspect of court enforcement of our subpenas ought, to be, mentioned. We have, a long tradition in this country that the accused in a criminal case shall not be compelled to be a witness against himself. In fact, this what amendment 5 of the Constitution says as Part of the, Bill of Rights.