The poorest man in his cottage may bid defiance to all the forces of the crown. It may be frail, its roof may shake, the wind may blow through it, the storm may enter, the rain may enter, but the King of England cannot enter. All his force dares not cross the threshold of the ruined tenements. And yet we are told here today, and yesterday, that what the King of England can't do, the President of the United States can. The greatest decision that the Supreme Court of the United States has ever handed down in my opinion is that of Ex parte Millikin which is reported in 4 Wallace 2, and the things I want to mention appear on page 121 of that opinion. In that case President Lincoln, or rather some of his supporters, raised a claim that since the Civil War was in progress that the military forces in Indiana had a right to try for treason, a man who they called Copperheads in those days, who were sympathetic toward the South-a civilian who had no connection with the military forces. So they set up a military commission and they tried this man, a civilian, in a military court, and sentenced him to death. One of the greatest lawyers this Nation ever produced, Jeremiah Black, brought the battle to the Supreme Court and he told in his argument, which is one of the greatest arguments of all time, how the Constitution of the United States came into being. He said that the people who drafted and ratified that Constitution were determined that not one drop of the blood which had been shed throughout the ages to wrest power from arbitrary authority should be lost. So they went through all of the great documents of the English law from Magna Carta on down, and whatever they found there they incorporated in the Constitution, to preserve the liberties of the people. Now the argument was made by the Government in that case that although the Constitution gave a civilian the right to trial in civilian courts, and the right to be indicted before a grand jury before he could be put on trial and then a right to be tried before a petit jury, the Government argued, that the President had the inherent power to suspend those constitutional principles because of the great emergency which existed at that time, when the country was torn apart in the civil strife. The Supreme Court of the United States rejected the argument that the President had any inherent power to ignore or suspend any of the guarantees of the Constitution, and Judge David Davis said, in effect: The good and wise men who drafted and ratified the Constitution foresaw that troublous times would arise, when rulers and people would become restive under restraint and seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of Constitutional liberty would be put in peril unless established by irrepealable law. Then he proceeded to say: And for these reasons, these good and wise men drafted and ratified the Constitution as a law for rulers and people alike, at all times and under all circumstances. Then he laid down this great statement: No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. And notwithstanding that we have it argued here in this year of our Lord 1973 that the President of the United States has a right to sus 96-296 O 73 pt. 6 27 pend the fourth amendment and to have burglary committed just because he claims, or somebody acting for him claims, that the records of a psychiatrist about the emotional or mental state of his patient, Ellsberg, had some relation to national security. Now, President Nixon himself defined the national security in one of his directives as including only two things: national defense, and relations with foreign countries. How in the world opinions of a psychiatrist about the mental state or the emotional state or the psychological state of his patient, even if his patient was Ellsberg, could have any relation to national defense or relations to a foreign country is something which eludes the imagination of this country lawyer. Now, I would like to ask you one question: Why, if the President has this much power, would he not have had the inherent power to have sent somebody out there with a pistol and had it pointed at the psychiatrist and said, "I am not going to commit burglary; I am just going to rob you of those records and give me the records," would he not have had that right under your theory? Mr. EHRLICHMAN. Are you asking me, Mr. Chairman? Senator ERVIN. Yes. Mr. EHRLICHMAN. I think that is the same question Senator Talmadge approached, and undoubtedly in a situation such as I put-for instance, where you knew there was going to be an atomic attack tomorrow-undoubtedly a measure of that kind might be necessary. Senator ERVIN. Was there Mr. EHRLICHMAN. Now, somewhere in between there is a line. Mr. EHRLICHMAN. And the line depends, obviously, on a lot of things that you and I cannot settle here today. I think the thing that your argument artfully chooses to avoid dealing with Senator ERVIN. I am not trying to avoid anything. I am trying to get this proposition to whether the President has power to suspend the fourth amendment to get on Mr. EHRLICHMAN. Mr. Chairman, you interrupted me. You have a delightful trial room practice of interrupting something you do not want to hear. [Laughter.] I would like, if I could, to finish the sentence. The connection, of course, between the psychiatrist's records and the psychiatric profile, and the determination of whether there was a spy ring or a foreign conspiracy which had taken these top secret documents and delivered them to a foreign power, it seems to me, is an unbroken chain of circumstances that explains itself. Now, I recognize for the purpose of your rhetorical approach to the problem that it is fun to say how could a man's emotional state be equated with national security? But in fact, there is a direct linkage step by step in this, which I think we have to lay on the table and look at. Now, this business of going and pointing a gun at somebody, I can conceive of a set of circumstances, a different kind of national security situation, such as this impending attack or something of that kind hypothetically where such a measure might very well be the very thing that the President might determine was necessary, and you will recall that the Congress, in recognizing this power, said, "Such means as the President shall determine." And that I think, as Mr. Wilson pointed out this morning, was endorsed by the committee of which you are the chairman, sir. Senator ERVIN. Well, that is not what that bill said. It said that the President could exercise his constitutional powers when he determined, according to his determination. It didn't say he had any constitutional powers such as you state, because Mr. Wilson and myself both agreed that the court in this case, the thing it held principally, was that you couldn't exercise electronic surveillance without a warrant complying with the fourth amendment for the purpose of gathering intelligence about domestic subversion, and we also agreed that the decision itself flatly held that the statute had nothing whatever to do with the question of national security. Mr. WILSON. Mr. Chairman, can I get into this? Senator ERVIN. Yes, sir. Mr. WILSON. I think this morning you referred to the Judge Field case which is strictly known as Cunningham v. Nagle, isn't it? Do you remember that case? Senator ERVIN. Yes, I remember the case. That held that a Federal marshal wouldn't be guilty of murder for shooting a man that was trying to kill a Federal judge. Mr. WILSON. What was the statute based upon but the constitutional right? Senator ERVIN. I don't know. I don't recall; it has been a long time since I have read it. Mr. WILSON. Shall I prepare Senator ERVIN. It wasn't based on section 2511 of title 18 of the United States Code. Mr. WILSON. No, but it was murder though; it was homicide. Mr. WILSON. Justifiable homicide in a statute which was supported by constitutional theory. Senator ERVIN. And it happened in California, and it was justified, by the principle of the common law, that one person can kill another to prevent the consummation of a felony. Mr. WILSON. Is this something that happened in California and no place else in the country? Senator ERVIN. In a law in any State which had a common law system. Mr. WILSON. We have that everywhere in the country except California and Louisiana. Senator ERVIN. I am unfortunately going to have to obey the 5-minute notice about a vote, but I have no quarrel with the Nagle case, but I do think the Nagle case merely applied the rule that one had right to kill another to prevent a wrongdoer from committing a murder. Mr. WILSON. All I say is there is a murder case that was justified. Senator ERVIN. I regret I have to go and vote, and I would love to prolong this debate with you. Mr. WILSON. I would, too. Senator ERVIN. I think maybe because of the lateness of the hour, that we had just better recess until in the morning at 10 o'clock. Mr. WILSON. Thank you. [Whereupon, at 4:45 p.m., the hearing was recessed, to reconvene at 10 a.m., Thursday, July 26, 1973.] EXHIBITS SUBMITTED FOR THE RECORD EXHIBIT No. 87 WATERGATE SPECIAL PROSECUTION FORCE June 12, 1973 Mr. Fred M. Vinson, Jr., Esq. 800 17th Street, N.W. Washington, D. C. Dear Mr. Vinson: The Government will accept a guilty plea from Mr. Fred LaRue to a one count indictment or information charging a conspiracy to obstruct justice. This will dispose of all other potential charges against your client which might otherwise arise out of the investigation of the so-called Watergate incident and the alleged cover-up relating thereto, including without limitation possible violations of the Federal Election Campaign Act and the Corrupt Practices Act. The Government will join with you in urging that Mr. LaRue's sentencing be deferred until after the trial of those implicated by testimony already given by Mr..LaRue and that Mr. LaRue be permitted to remain on bond or on recognizance pending sentence in order to facilitate his cooperation with the Government. Finally, this understanding is predicaed upon Mr. LaRue's complete cooperation with the Government, including the immediate, full and truthful disclosure of all information in his possession. Ultimately, of course, he will be required to testify as a witness for the Government in any and all cases with respect to which he may have relevant information. The extent of his cooperation will be brought to the Court's attention by the Government before sentencing. |