did under the aegis of the Sergeant at Arms, incarcerate members of the public who were contemptuous.

Senator HELMS. I am not being argumentative. I want to understand your position.

Let me ask you this question:

Were the Pentagon papers stolen documents, in your view?

Mr. CELLA. Senator, let me say very frankly, if I may on this question. It is not for Senator Gravel, it is not because of his presence on this committee, all I can say with certainty and I can't really give you a direct answer. I am not really-am not that informed in my position to be able to make a judgment honestly in answer to your question directly.

It seems to me, I can say this, if Senator Gravel did anything which in the judgment of his colleagues in the Congress was improperSenator HELMS. I wasn't referring to Senator Gravel. I was referring to Mr. Ellsberg.

Mr. CELLA. I would say, Senator, generally, this is an issue which is currently before the courts

Senator HELMS. I accept that as your answer. Let me state a hypothetical case.

Suppose a thief, a former employee entered the office of, say, the distinguished Senator Gravel and made photostats of documents which the Senator for whatever reason satisfactory to him, wished to regard as confidential, even though these documents may well have related to public matters, then let's suppose that these copies of the Senator's documents were turned over to someone in the executive branch and a representative of the President, however far down the line of the level of the echelon of the bureaucracy, decided to release the information? Now, would you say that the President's representative should be able to do this with immunity and impunity? Would the shoe fit both ways, or is this a one-way street?

Mr. CELLA. I would say, Senator, and here I suppose I depart from testimony I heard from Senator Gravel this morning, this is just on general principles of the operation of doctrine of the separation of powers, there ought to be a recognizable area of executive privilege. I don't think it is at all as far-reaching-I don't think it has a historical basis or constitutional basis as yet, I would root this privilege in the doctrine of separation of powers, I don't quite know how far this goes. I am not that familiar with all the intricacies of executive privilege to draw the line precisely.

I have the impression that the claims of the Chief Executive at the present time are far beyond what executive privilege probably should mean, but I do recognize there ought to be legitimate areas of executive privilege.

Senator HELMS. I was referring to the acquisition of documents, hypothetical documents, and I don't understand the contradictions that I hear relating to Wategate, for example. Please understand that I am totally opposed to bugging or breaking and entering and any other violation of the law.

I don't understand one set of rules for one side and another set of rules for that one.

I was interested in your opinion on that. I was hopeful you could clear it up for me.

Thank you very much, Doctor.

Mr. CELLA. Thank you, Senator.

Chairman METCALF. Congressman Dellenback, I know that you will read with a great deal of interest Mr. Cella's position this morning because it is an area in which you have some concern, and I think maybe at least he has touched upon some of the matters in which you are interested.

Representative DELLENBACK. I appreciate that, Mr. Chairman.

I regret we have had before our Interior Committee on which I serve, a bill of considerable importance to Oregon and we have just finished acting on it and voting it out fairly, and we hope the Senate will move it with expedition through as soon as we get it through the floor of the House.

Chairman METCALF. As a member of the Senate Interior Committee, I will give it every expeditious dispatch as possible.

Senator GRAVEL. I would like to pursue something. I just think we have a very unusual person here with us, and I think we have got some interesting concepts, and that is the one advanced by my colleague.

Suppose there is a theft of papers that show malfeasance in office, and you have that information to use. Maybe it is the executive that has it on a Member of Congress or maybe it is the Congress that has it on a member of the executive. Should the information not be used because of the nature of the acquisition, if it shows wrong?

Should I, if I acquired that which shows something wrong, because of how it was acquired-maybe I acquired it illegally-should I then after I read it, close my mind to that information and go on with my life? What are the legal ramifications of that?

Mr. CELLA. I am not sure I can answer all the legal ramifications. I would like to take a brief stab at it.

It seems to me, obviously, every public official that takes an oath to uphold the Constitution, the laws of the country, if evidence comes into his possession, regardless of how he may acquire that evidence which indicates malfeasance in public office, I cannot believe that he then has an obligation merely to sit there and do nothing about it.

It seems to me that depending upon where he sits either on the executive branch or legislative branch, there ought to be appropriate means available to him to further pursue this. If it is a Member of Congress, I suppose, for example, he can undertake or attempt to get some kind of an investigation started of the department or agency involved.

If it is an executive branch official, I suppose his proper role really is—if it is an executive branch official with information about a Member of Congress, I suppose that at the present time where there are general criminal statutes applicable to Congress, then it is his obligation to report such information to appropriate law enforcement officers.

Senator GRAVEL. If this includes wiretapping, does this precludeMr. CELLA. It may well preclude its introduction as evidence into the courts, but I think we are talking in terms about what he does with the information, does he have an obligation, or does he ignore it and pretend it never came to his attention. I think this would be highly improper for an executive official or congressional official.

If we were to get to a situation where we had something approximating the absolute immunity, that I think the Member of Congress ought to have-if you abolished bribery statutes, conflict of interest statutes as they applied to Congressmen, then it seems to me somebody in the executive branch would not be able to go to law enforcement officials. He would have to come to someone in Congress to attempt to persuade the Congress to deal with it.

Senator GRAVEL. Understanding as you do how the Congress works-it is a system of accommodation-we would not be prone to "rat" on each other. I use the word "rat" in quotes, meaning to discipline each other. It is a very hard thing to do. We are going to look across each other at the table. I may be mad at him, but I may need him, and I may not be too keen on going around and disciplining a chairman. Maybe it is unrealistic that we really could do that.

Mr. CELLA. In my opinion, I am well aware of the enormous problems in this area. I don't mean to minimize them for a moment. I can't imagine anything more unpleasant to any member of a legislative body than having come to his attention that one of his colleagues is violating his public trust and feeling he must take some action, and naturally his colleague in the Congress must act to discipline or punish that Member.

I think all of us would like to believe, all of us who serve or have served, are equally as dedicated to the public interest and the protection of public interest.

Senator GRAVEL. We have to chase all day long to serve the public interest. We don't have to. We have options. If I know of a colleague doing something wrong, I can choose to make that my thing. But then I would have so many things I can focus on. So I let that go. I am sure most of our colleagues feel the same way about it.

Mr. CELLA. I don't think the tendency is to that kind of thing. You are dependent upon each other and the good will and confidence and respect of each other. There is no desire on anyone's part and yet it seems to me if you take this perspective, and you see the consequences to the operation of the system which are going to ensue from decisions such as Gravel and Brewster and from permitting this legislative political distinction, for example, to continue to operate, what are the alternatives? It seems the alternative to that is that Congress itself must police and discipline its own Members. I don't minimize the difficulties involved. They are enormously difficult and enormously unpleasant.

It seems to me unless you are prepared to say, we will delegate away to someone else and thereby open the whole range of possibilities of hostile or unfriendly executives and judiciaries getting involved here, I think of necessity you must then come back to the position that the Congress itself has to develop the greater sensitivity to the necessity for dealing with its own Members. You can't claim this absolute immunity to any extent and turn around in the next breath and say, on the other hand, for these kind of built-in reasons, we are not going to do anything to discipline these Members.

Senator GRAVEL. I don't think history has recorded the great skill of Congress at disciplining itself.

Mr. CELLA. I don't think that the record of the Congress is encouraging, although it is getting better, Senator.

Senator GRAVEL. It seems to fly against human nature. I think the system of letting things be known, as was in the case of the California. situation, Technicolor, just the mere knowledge of it causes the constituency to discipline a Member.

Mr. CELLA. I don't think I am unrealistic in my opinion of this, I do have an appreciation of the problems and the historical

Senator GRAVEL. Could I ask an imposition? If time permits, would you supply for the record a brief history of the evolution of the possible increase in the Congress' ability to discipline itself?

Would that be too much?

Mr. CELLA. Senator, time might best be served by my referring to one or two items that I know of dealing with this subject. The Committee on Rules and Administration of the Senate has compiled cases of election, expulsion and censure involving Members of that body. That compilation covers all cases between 1793 and 1972. I don't know of any comparable House document. I might also mention a recent law review article by associate professor Gerald McLaughlin of Fordham University Law School. That article, "Congressional Self-Discipline: The Power to Expel, to Exclude and to Punish," appeared in the October 1972 edition of the Fordham Law Review.

Senator GRAVEL. Do these materials back up the thesis you just made that we have been improving.

I would like to see where.

Mr. CELLA. Both these documents are more historical treatments of the congressional self-discipline role. While they may not show an improvement in the discharge of that role, they enumerate the instances where action has been taken. I am thinking particularly, I suppose, of the Adam Clayton Powell case. You did act. You could argue that you should have acted earlier or-I don't know, but there have been situations which the Congress

Senator GRAVEL. The Dodd case.

Mr. CELLA. Yes. I think there is a growing awareness, at least I sense this, maybe I am wrong. I think you are a much better judge of the attitudes of your colleague. Logically it seems you have to have a greater awareness, or you are going to have to say, we are going to have to delegate to someone else the power to deal with our Members for any of their violations of public trust. I think that opens up a Pandora's box of undermining the independence of Congress.

Senator GRAVEL. Would you add that the someone else is the people?

Mr. CELLA. Ultimately, of course, it is the people. The people will vote out if they know, and I am confident the American public is not going to tolerate, it seems to me, the return to office of those whom they are sufficiently informed have violated their public trust.

Chairman METCALF. Thank you very much. We have kept you much too long. We have enjoyed your testimony and I know it is helpful to the committee and it will be helpful to the Congress when appropriate committees consider this important matter.

Mr. CELLA. Thank you very much, Senator, and the committee for their kindness and courtesy in listening to me this morning.

Chairman METCALF. We are going to try to get through Mr. Dixon and Congresswoman Mink will come back this afternoon, and in the meantime we will also hear from Congressman Curtis.

Representative DELLENBACK. Who will be the first witness?

Chairman METCALF. I think we will call Mrs. Mink, first. She was supposed to be a witness this morning and we didn't reach her. Representative DELLENBACK. Two o'clock?

Chairman METCALF. Two o'clock, hopefully.

The next witness is Assistant Attorney General Dixon. Mr. Dixon has been a former professor of law at George Washington University; has been consultant on administration of Federal criminal laws and has been outstanding in law school, a member of Phi Beta Kappa. He has only been a member of this official position for 1 month, as I understand it, but has appeared at previous times before committees, I understand, Mr. Dixon, that you were consultant to some of the constitutional conventions of some of our sister States when they were under consideration.

So we welcome you here this morning as a spokesman for the Department of Justice and executive branch, Mr. Dixon.

The time is late. You very courteously and under the rules submitted your statement.

Would you mind submitting it for the record instead of reading it?

Mr. DIXON. I would be pleased to do that. I did not have in mind reading the entire statement anyway. Perhaps I could present it selectively.

Chairman METCALF. We will put your statement in the record and be glad to have you highlight it.

STATEMENT OF ROBERT G. DIXON, JR., ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF

JUSTICE; ACCOMPANIED BY MR. WARREN GRIMES, ATTORNEYADVISOR

PREPARED STATEMENT OF ROBERT G. DIXON, JR., ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL

Mr. Chairman: I am pleased to have the opportunity to appear before this committee as a representative of the Department of Justice to discuss the current state of the law with respect to the congressional immunity granted by the speech or debate clause in article I, section 6 of the Constitution. The central thrust of the speech or debate clause is to insure that Members of Congress will express their views openly and vigorously in discharging their legislative functions, free from the threat of harassment by criminal prosecutions and civil proceedings. The clause may also have implications with respect to powers of congressional inquiry, including the gathering and dissemination of information concerning the operations of the Federal Government.

While the Supreme Court has given the speech or debate clause a relatively broad interpretation, the Court has also made it clear that the immunity granted by the clause does not extend to the furthest limits of its logic. Like other fundamental constitutional guarantees, including the first amendment's guarantee of free speech, the interests underlying the speech or debate clause must be balanced against weighty countervailing governmental or constitutionally protected private interests when these interests conflict. Moreover, the freedom granted to Members of Congress by the speech or debate clause frequently carries with it