The bill was accompanied by oral and written statements by Senator Ervin (Tab A). Senator Ervin made clear that the statute, despite its broad scope, was introduced in response to Judge Sirica's ruling of October 17, 1973, that dismissed this suit for lack of jurisdiction. He emphasized that a civil remedy to resolve the controversy was needed because it would not be appropriate to initiate criminal contempt proceedings or use the Senate's selfhelp procedures against the President. At Senator Ervin's request, the bill was placed on the calendar for consideration on Tuesday, November 6.

S. Res. 194 was also accompanied by oral and written statements by Senator Ervin (Tab A). It is apparent from his statements-as from the text of the resolution-that its purpose was to aid in resolving certain issues raised in this law suit, i.e., the scope of the Committee's authority to subpena and sue the President and investigate wrongdoing in the executive branch. The resolution was also placed on the calendar for consideration on Tuesday, November 6. The resolution was actually called up for consideration on Wednesday, November 7 (see Tab C). Upon its reading, it was unanimously passed by the Senate.

S. 2641 was introduced in the House on November 8, 1973, by Congressman Preyer and others. The bill was immediately referred to the House Committee on the Judiciary (Tab D).

On November 9, a "substitute amendment" to S. 2641, which later became P.L. 93-190, was introduced by Senator Ervin in the Senate (see Tab E). The substitute amendment, which, of course, was limited to suits brought by the Select Committee, passed the Senate that same day. The new bill was substituted by Senator Ervin on the suggestion of Senator Bruska, who viewed the initial bill as overbroad. Bruska, however, opposed even the substitute amendment, claiming that it would cast the judicial branch "in the role of umpire or referee between Congress and the executive in disputes over the production of documents and evidence”. S. 20131. Senator Bruska did express his view that narrowing the bill to deal with the unique controversy presented by the Select Committee's subpenas was a "prudent step". S. 20131.

In several respects, the bill as passed is broader than the original bill. Most importantly, it provides that the District Court "shall have jurisdiction to enter any such judgment or decree in any such civil action as may be necessary or appropriate to enforce obedience to any . . . subpoena" issued by the Committee.

The Senate substitute amendment was considered and passed by the House on December 3 (Tab F), after having been presented by Congressman Kastenmeier. The substitute amendment had previously been reported out of the House Committee on the Judiciary without dissent on November 26 (Tab G). On the floor Congressman Railsback recognized that provision for a civil remedy was necessary because other methods of enforcing a subpena against the President would be "unseemly". H. 10485. Mr. Kastenmeier on the floor and the Judiciary Committee Report both stated that the bill "will leave unresolved any issue of justiciability". This is, of course, correct, for only this Court can determine if this controversy is justifiable. But this statute, which provides that the Court has juricdiction "to enter any . . judgment or decree necessary or appropriate to enforce obedience to any [Committee] subpoena" does serve as a congressional expression of opinion that this controversy is judiciable, especially when juxtaposed with the President's contention that the case is not justiciable because he is immune from Court process. It is plain from the statements of the bill's supporters-Ervin, Kastenmeier, Railsback, Rodino and its opponents-Hruska, McClory, Brooks-that they all recognized that implicit in the bill's passage was the view that this Court should decide the present controversy.

Also significant is the remark of Congressman Rodino who, in support of the bill, observed that "conclusion of the Watergate investigation is critical to the restoration of our people's confidence in the Federal Government". H. 10486. This statement is but another affirmation of the importance of Congress' "informing function", a subject dealt with in depth in our memorandum.

Sincerely yours,

Senate Select Committee on
Presidentail Campaign Activities
Attorney for Plaintiffs.

EXHIBIT 8

(Opinion in Senate Select Committee v. Nixon)

In the United States District Court for the District of

Columbia

(Civil Action No. 1593-73)

SENATE SELECT COMMITTEE ON PRESIDENTIAL CAMPAIGN ACTIVITIES, SUING IN ITS OWN NAME AND IN THE NAME OF THE UNITED STATES, AND SAM J. ERVIN, JR.; HOWARD H. BAKER, JR.: HERMAN E. TALMADGE; DANIEL K. INOUYE; JOSEPH M. MONTOYA; EDWARD J. GURNEY; AND LOWELL P. WEICKER, JR., AS UNITED STATES SENATORS WHO ARE MEMBERS OF THE SENATE SELECT COMMITTEE ON PRESIDENTIAL CAMPAIGN ACTIVITIES, PLAINTIFFS

V.

RICHARD M. NIXON, INDIVIDUALLY AND AS PRESIDENT OF THE UNITED STATES, DEFENDANT

OPINION

The Court presently has before it a motion for summary judgment filed by plaintiffs. Plaintiffs are the Senate Select Committee on Presidential Campaign Activities, established by Senate Resolution 60, 93rd Congress, 1st Session (1973), and the seven United States Senators who compose the Select Committee. Richard M. Nixon, President of the United States, is defendant. The action is styled "Complaint for declaratory judgment, mandatory injunction and mandamus."

Facts concerning the origin of this action are not controverted. The Senate Select Committee on Presidential Campaign Activities (Select Committee) became a duly authorized and constituted committee of the United States Senate on February 7, 1973, "empowered to investigate and study illegal, improper or unethical activities' in connection with the Presidential campaign and election of 1972 and to determine the necessity of new legislation 'to safeguard the electoral process by which the President of the United States is chosen.'" In the course of its investigatory procedures, the Select Committee heard one Alexander P. Butterfield, formerly a Deputy Assistant to the defendant. Mr. Butterfield testified that the President had electronically recorded conversations occurring

1 "Statement of Material Facts as to which there is no Genuine Issue" filed by plaintiffs on August 29, 1973. at 1. Counsel for the defendant President acknowledged in Court on October 4, 1973, that defendant takes no issue with plaintiffs' statement.

439

in various of his offices during a period of time that included the campaign and election of 1972. This testimony was later confirmed by Presidential counsel, J. Fred Buzhardt.

Upon learning that among these recorded conferences were a series which they regarded as highly relevant to their investigation, plaintiffs commenced informal efforts to secure the pertinent tape recordings as well as various written documents. Plaintiffs were and remain convinced that the recorded account of these Presidential conversations, together with written White House documents alluded to by witnesses at their hearings, would undoubtedly contain information having an important bearing on their investigation and would probably resolve critical conflicts in the testimony of several key witnesses.

When informal attempts proved unsuccessful, the select committee directed two subpoenas duces tecum to the defendant President. Both were served on July 23, 1973, and together with proof of service, are attached as exhibits to the complaint herein. The first required production of the tape recordings of five meetings which were in each instance attended by the defendant President and then White House counsel, John W. Dean, III. Other persons had also been present during some of these conferences. As noted in the subpoena, the meetings ocurred on September 15, 1972, February 28, 1973, March 13, 1973, and March 21, 1973, with two meetings on the last mentioned date. The second subpoena sought documents and other materials "relating directly or indirectly to [an] attached list of [25] individuals and to their activities, participation, responsibilities or involvement in any alleged criminal acts related to the Presidential election of 1972." Defendant filed no objection to either subpoena or to service thereof, although in a subsequent filing counsel have characterized the second subpoena as oppressive. Defendant's sole response consisted of a letter to select committee Chairman Senator Sam J. Ervin, Jr., expressing the President's intention not to comply with the subpoenas and the reasons for his decision. The President's letter is also appended to the complaint herein as an exhibit. It is understood that although the subpoenaed tape recordings had previously been in the custody of others, at the time the subpoenas were issued, and at 2 Id. at 2.

440

present, they are within the sole possession, custody and control of the defendant President.'

Plaintiffs next proceeded to file with the Court the present civil action. They deliberately chose not to attempt an adjudication of the matter by resort to a contempt proceeding under Title 2, U.S.C. 192, or via Congressional common-law powers which permit the Sergeant at Arms to forcibly secure attendance of the offending party. Either method, plaintiffs state, would here he inappropriate and unseemly. On the day defendant filed his answer to the complaint, plaintiffs submitted a motion for summary judgment. A response to the motion and other memoranda were subsequently filed, and the matter came on for oral argument on October 4, 1973. In their subsequent pleadings and at oral argument, plaintiffs have emphasized that portion of the complaint which seeks a declaratory judgment. It is argued that such judgment include the following statements:

(1) That the two subpoenas were lawfully issued and served by plaintiffs and must be complied with by defendant President;

(2) That defendant President may not refuse compliance on the basis of separation of powers, executive privilege, Presidential prerogative or otherwise;

(3) That defendant President by his action to date has breached the confidentiality of the materials subpoenaed and waived any privilege that might have applied to them.

The prayer for a mandatory injunction and/or relief by way of mandamus has been referred to the Court's discretion and otherwise ignored by plaintiffs.

The case presents a battery of issues including jurisdiction, justiciability, invocation of the declaratory judgment statute, executive privilege, waiver of privilege, validity of the Select Committee's investigation, and authority of the Select Committee to subpoena and bring suit against the President. Because of its ruling, the Court has found it necessary to consider only one question, that being whether the Court has jurisdiction to decide the case. The Court has concluded, for the reasons outlined below, that it lacks such jurisdiction, and the action is therefore dismissed with prejudice.

3 Id. at 3.

441

I.

The Court has recently decided another case involving some of the same tape recordings that are here at issue. As its caption indicates, that matter concerned a subpoena duces tecum issued to the President by a grand jury. It was there ruled that compliance with the subpoena could. be judicially required as to unprivileged matter and that the Court was empowered to determine the applicability of any privilege. The case is presently the subject of appellate review.

This present case, by contrast, is a civil complaint, and in such actions particularly, jurisdiction is a threshold issue. Some elementary principles perhaps need restating here. For the federal courts, jurisdiction is not automatic and cannot be presumed. Thus, the presumption in each instance is that a federal court lacks jurisdiction until it can be shown that a specific grant of jurisdiction applies. Federal courts may exercise only that judicial power proIvided by the Constitution in Article III and conferred by Congress. All other judicial power or jurisdiction is reserved to the states. And although plaintiffs may urge otherwise, it seems settled that federal courts may assume only that portion of the Article III judicial power which Congress, by statute, entrusts to them. Simply stated,

In Re Grand Jury Subpoena Duces Tecum Issued to Richard M. Nixon, etc., 360 F. Supp. 1 (D.D.C. 1973).

The Supreme Court and the Court of Appeals for this Circuit have affirmed that jurisdiction fails "if the cause is not one described by any jurisdictional statute." Powell v. McCormack, 395 U.S. 486, 512-513 (1969) citing Baker v. Carr, 369 U.S. 186, 198199 (1962). See also, Cary v. Curtis, 3 How. (44 U.S.) 236, 245 (1845) and United States Servicemen's Fund v. Eastland

F.2d (No. 24,279 August 30, 1973) (D.C. Cir. 1973). Reference to Article III, § 2 alone is insufficient.

For the contrary proposition plaintiffs cite six decisions: New York Times Co. v. U.S., 403 U.S. 713 (1971); Sanitary District of Chicago v. U.S., 266 U.S. 405 (1925); In Re Debs, 158 U.S. 56£ (1895); U.S. v. Arlington County. 326 F.2d 929 (4th Cir. 1964): U.S. v. Brand Jewelers, Inc., 318 F. Supp. 1293 (S.D.N.Y. 1970); and U.S. v. Brittain, 319 F. Supp. 1058 (N.D. Ala. 1970). None of these cases, however, holds that the government or anyone else may invoke jurisdiction of the federal courts without utilizing a specific jurisdictional statute. Each were initially brought by the United States and jurisdiction apparently invoked under 28 U.S.C. § 1345, or its predecessor, an independent statutory base applicable to the government.

71-846 O-76 16