committees, once the inquiry is underway, and if there is a presiding officer, then counsel is not allowed to communicate constantly with the witness or to interrupt the interrogation, or to impede the questioning, unless it reaches a point of some different subject matter or whatever, unless special permission is obtained from the presiding officer, be it a judge, a magistrate or some other official. So I would suggest that those, and perhaps many others, but those are two areas that could be or might be dealt with by means of investigatory committee rules, rather than trying to enter the thicket of a general code of conduct for lawyers who appear with clients or on behalf of clients before congressional committees. I would think as a general proposition, aside from the specific interrogation and fact finding, that as to general conduct, conflict of interest, duties owed to the law, duty not to misrepresent, and all the other ethical considerations that are included in the code of professional responsibility, that in the event of aggravated violations of those ethical restrictions or directives, the committee ought to exercise its authority by invoking, to the extent possible, the disciplinary procedures and complaint procedures available for all other kinds of lawyer misconduct. But I do think there are some legitimate rules that could be set out, such as the two that I mentioned, which would apply specifically to congressional hearings and might deal with problems that otherwise do not violate the code of professional responsibility of lawyers. Mr. FITHIAN. And you think that if something were worked out in those two areas, that the Congress could balance the right of the witness to adequate advice and counsel on the one hand, against impeding an investigation or obstructing an investigation or delaying an investigation on the other? Mr. CIVILETTI. I think a rule could be devised which would be sound and lawful to do that, and I think it would help. I am not suggesting that a rule alone would completely resolve the difficulties that are inherent in a lawyer trying to do everything he can to protect the interests of his clients or client in a semiadversarial proceeding, and the members of the committee and their counsel trying to find the facts as forcefully and quickly as they can. There will still be difficulties, but it would help I think. Mr. FITHIAN. Thank you. Thank you, Mr. Chairman. Chairman STOKES. The time of the gentleman has expired. Mr. DODD. I have no further questions. Chairman STOKES. Mr Civiletti, let me refer you to part of your testimony on page 3 of your prepared remarks. I am going back once again to the media aspect of the former question that I asked you. Of course you mentioned in your testimony that it is very possible that any incident involving political assassination or attempted political assassination would occur in the presence of the media recorded at least in part on film or tape. You then go on to say that you would expect and in all probability the press or media would be cooperative with you in terms of the investigation and share those types of recordings, photographs, et cetera, with you. But you also cite the fact that in the event that 38-028 0-79-10 they did not, that in all probability you could then resort to the judicial process. And I guess the question that points to is where you are investigating an event, such as a political assassination, to become involved in confrontation in the courts, and the kind of delay that would ensue as a result of that leads me to wondering whether or not in a relative period of calm such as the present, is there any possibility or any merit to the suggestion that some kind of an agreement be worked out with the press relative to such a situation in order to try and avoid this type of confrontation, realizing recently we have had several cases where the press has been very jealous of its prerogatives in terms of assertion of its rights to certain materials? Mr. CIVILETTI. Certainly I would favor discussions to reach some kind of a voluntary understanding with responsible members of newspapers or media or press or whatever, which perhaps would not have the force of law, but certainly in which each side would be honor bound. That might be worthwhile. I would oppose a broadening or increase in any Federal authority to secure, through preemptory means, materials or information or work product of the press or the media, even in the event of allegations of, or suggestions of, or the occurrence of, kidnappings or attempts to assassinate, or assassinations of high public officials. Mr. CIVILETTI. I might further answer, without commenting on the investigations themselves, that as you know perhaps, in some very newsworthy investigations we have had absolute cooperation from the media with regard to availability and the use of materials which were relevant to the occurences. Chairman STOKES. Let me ask you another question, sort of a spinoff of the question being posed to you by Mr. Fithian relative to the appearance of lawyers before a congressional committee. The problem first came to light during the Watergate hearings, of course, where there was joint legal representation by one lawyer for more than one witness appearing before the committee, and this committee encountered the same kind of a problem from the viewpoint of the possibility of the conflict of interest where there is such joint legal representation, and there being no law applicable to the situation under congressional rules and regulations we then resorted to bar association ethics and excluded such representation on the basis of bar association ethics. I wonder if you would have any comments with reference to whether there ought to be some rules or regulations or law enacted in that area? I might just add with reference to your grand juries as well as our executive hearings might be applicable here. Mr. CIVILETTI. I am reasonably content with the soundness and the operation of Federal grand juries now. We have adopted over the course of the last year a great many improvements to meet criticisms of apparent defects or alleged capacity for abuse in the grand jury process, at least 10 major changes adopted by Department of Justice regulations, so I am reasonably content with the authority and use and safeguards that are presently available in the Federal grand jury process. Certainly multiple representation is a concern there. But I am reasonably content with the way the grand juries are now. The trouble is a quid pro quo of a bill or procedure for nonmultiSple representation by a lawyer in the grand jury, and that is something I think is not in the best interest of our system of justice. I definitely think, though, that a congressional rule or House rule which prohibited multiple representation would be in the spirit of the code of professional responsibility for lawyers. To the extent that it was-and you would have to look at this quite closely-to the extent that it was effective to prevent the transfer or the communication of attorney-client information obtained by a one-on-one relationship to other clients or attorneys, again singularly represented one-on-one, then I think it would be beneficial. The trouble with it as a panacea is that it is too easily avoided simply by a consortium of otherwise independent clients or independent lawyers, so that you would have to have that extra protection and it would have to be a valid and lawful purpose, one which I think could probably be designed. We are somewhat protected, at least there is the second and third-hand protection of the fact that the grand jury, being a secret investigative body, can move somewhat more quicky with regard to witnesses. Chairman STOKES. I have just one additional question. As you know, this particular committee goes out of business December 31, and a couple of matters have come to the attention of the committee during the course of its investigation. Specifically I would have in mind the Bronson film which has just been turned over to this committee about a week or so ago with reference to movie photographs taken of the book depository window, and then an acoustical tape which this committee has had before it with reference to the shots in Dealey Plaza, and for a committee going out of business in a few days and certain questions being raised with reference to materials of this sort, my question would be whether the Department would be in a position to perhaps pursue further an additional investigation relative to materials of this sort? Mr. CIVILETTI. As a general matter, my answer would be no. As a general policy, the Department of Justice seldom turns down exploring at least or reviewing a petition or reasonable request or whatever. My own view is that the committee's work has been substantial and done well and really remarkable. Of course, we have had in one instance substantiated other efforts which have gone on prior to the committee's work. In the instance of the Reverend Dr. King, the Department did a partial study analysis which was completed sometime I believe around June of 1977, prior to the change in the administration. To some extent, even where we have investigated soundly and prosecuted soundly and there has been conviction and sentencing, incarceration and the rest, to some extent in the best of worlds there is always a question of the imperfection that attends human events as opposed to mathematical calculations or scientific productions or results. It becomes a matter of the public will to a certain extent, but also a matter of judgment that falls within the duties of any particular department or agency of the Government, as to how far and how fruitfully questions which always surround human events can be tracked and explored to a useful or fruitful purpose. I don't pass judgment on the Bronson film or the acoustical tape or whether or not they would be worthwhile to experiment with or examine in themselves, but as a general proposition I would think that there would be little disposition unless there was a substantial showing for the Department of Justice to begin any general evaluation or investigation in this regard. Chairman STOKES. Thank you very much. My time has expired. The gentleman from North Carolina. Mr. PREYER. I have no questions, Mr. Chairman. Mr. FITHIAN. No; I have no questions, Mr. Chairman. Chairman STOKES. Certainly, Professor Blakey? Mr. BLAKEY. Mr. Civiletti, there are some really minor legal questions that have occurred from time to time from the staff. I wonder if a letter was written to the Department we could expect a reasonably prompt answer for some? Mr. CIVILETTI. We can probably get it to you around the first week in January. No, I am kidding. Certainly, Professor Blakey, we will be glad to respond prior to the expiration of your efforts and duties as soon as we can. Mr. BLAKEY. The hour is late and I would not burden anyone with what would look like baroque detail. Mr. CIVILETTI. Thank you. Chairman STOKES. Anything further? There being nothing further, Mr. Civiletti, on behalf of the committee, I want to thank you for your appearance here today and for all of the cooperation you and the Department have furnished this committee. We appreciate it very much. Mr. CIVILETTI. Thank you, Chairman Stokes, Congressmen. ADDITIONAL MATERIAL SUBMITTED BY MR. BENJAMIN R. CIVILETTI THE DEPUTY ATTORNEY GENERAL WASHINGTON, D.C. 20530 January 9, 1979 Honorable Louis Stokes Chairman Select Committee on Assassinations Room 3369, Annex 2 Washington, D. C. 20515 Dear Chairman Stokes: This is to clarify one of the issues that I discussed in my testimony before your Committee on December 12 and to provide a fuller explanation of a question of law that I was asked by Congressman Dodd. I would also like to respond to the questions raised in Mr. Blakey's letter subsequent to the hearings. First, in the early portions of my testimony and in my written statement, I referred to the Department's authority to conduct searches of the media for materials in their possession that might provide information. relevant to an investigation into the assassination or attempted assassination of a public official. To avoid any possible misunderstanding or misinterpretation of those statements, I want to make it clear that when I spoke of exercising our search powers in accordance with the applicable law and regulations, I fully intended for such searches to be covered by the legislative proposal being developed by the Criminal Division which was announced soon after the hearing on December 12. Under that proposal generally, subpoenas would be required first before a search for materials in the possession of the media, and we would be prohibited from searching for work product materials of the press. Second, I would like to apprise the Committee of the results of further research into the question raised by Mr. Dodd concerning the apparent anomaly that 18 U.S.C. 1116 confers United States jurisdiction over individuals who commit various crimes against internationally protected persons if those crimes occur outside the person's home country, whether in the United States or elsewhere, but does not confer |