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Senate Select Committee on Presidential Campaign Activities, June 12, 1973
[00.34.16--ERVIN headshot] Senator ERVIN. I have been advised that counsel for the witness desires to make some statement to the committee and we will be glad to hear you at this time. First I would suggest that counsel identify himself for the purpose of the record, STATEMENT OF ROBERT W. BARKER, COUNSEL FOR MAURICE H. STANS Mr. BARKER, Mr. Chairman, I an) Robert W. Barker, legal counsel for the Honorable Maurice H. Stans. Mr. Chairman and members of the committee, I appreciate this opportunity of making clear for the record Mr. Stans' legal position with respect to testifying before, this committee at this time and under the prevailing circumstances. First, I would like to clear Lip two items with respect to some of the confusion that may have arisen in the press. First, Mr. Stans has not requested and does not now request, not to appear before this committee He is merely requesting, Mr. Chairman, that in view of the impending criminal case in New York against him, his appearance be deferred until an appropriate time. Second, no court has ruled or ordered Mr. Stans to appear and testify before this committee. In the criminal proceeding in New York, the judge has invoked the local court, rule which precludes the defendant's or counsel discussing the controversy outside of the courtroom. Since this was made specifically applicable to Mr. Stans as one of the defendants, we applied to Judge Gagliardi for a ruling as to whether rule 8 restrained Mr. Stans and counsel from appearing and testifying before this committee. We did not ask Judge Gagliardi to rule that Mr. Stans could not appear and testify, The court, ruled that rule, 8 did not apply to legislative hearings. It did not rule and reserved for a later ruling on whether the extensive blanket, of publicity generated by the Watergate activities in this committee would impair the right of fair trial, He ruled that that would be considered at the time the trial is scheduled to commence on September 11. Mr. Chairman, members of the committee, as you probably recognize, you have a very unique, and unusual legal problem to face with Mr. Stans being called and subpenaed to testify here today. He is the first witness to appear before your committee who is under an impending indictment for criminal 'matters arising out of the Presidential election campaign. As was pointed out this morning by Judge Sirica in his ruling in the, district court, the cases then before him did not involve people under pending indictments. He considered that an important distinction. The ruling which we will ask you to make is a. very important and fundamental legal ruling. Since it involves Mr. Stans' personal and individual rights under the Constitution, it, is much different than the Position of the special prosecutor, Mr. Cox, when he asked merely that these hearings be deferred. Now, having said this, I would like to take a minute to review some factual background upon which we will ask this committee to base its ruling. The first knowledge Mr. Stans had of the Watergate break-in was on June 18, 1972, when he read about, it in the morning papers. He was just as shocked and just as surprised as any person in this room. Thereafter, consistent with his high standards of ethics and his position as a loyal American, demonstrated by years of service to this country, he set a standard for himself and his staff of complete cooperation with the investigation. When his legal; counsel to the finance committee, Mr. G. Gordon Liddy, refused to cooperate with the FBI investigation, he was promptly discharged, with Mr. Stans' approval. Immediately thereafter, Mr. Stans encouraged his own staff to cooperate and he gave full cooperation himself with all investigatory bodies and authorities. Commencing early in July of 1972, on three occasions, he voluntarily submitted himself to inquiries and discussions with FBI agents concerning the Watergate break-in and the Presidential election campaign. [00.39.41]
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Stanley Cup Finals
In the sixth game of the National Hockey League Stanley Cup Playoffs, the Montreal Canadians win 3 to 2 beating the Detroit Red Wings at home in Olympia Stadium. It's the second consecutive championship for the Canadians and their seventh in the last eleven years. Detroit's Olympia Stadium the Red Wings face the Montreal Canadians, players are all skating on the ice. Sport fans sit in their seats watching the Canadians score first. No. 21 Gilles Tremblay beats Detroit's goalie, Roger Crozier. Detroit Players skate around on the ice consoling each other. Score board reads Montreal 1 Red Wings 0. Canadian Leon Rochefort slams a shot into the net and scores. Scoreboard reading Montreal 2 Red Wings 0. Norm Ullman slams a shot passed the goalie and gives the Detroit home fans something to cheer about. Scoreboard reads Montreal 2 Red Wings 1. Floyd Smith of the Red Wings shoots one past the Canadian goalie and scores to tie up the game. Detroit Fans applauding the goal. The first goal will win it and Rochefort slides into the net with the puck and the game is over, the Montreal Canadians win. 3 to 2. Canadian Plays gather on the ice to congratulate one another. You can see the top of the Stanley Cup being held in the crowd.
Senate Select Committee on Presidential Campaign Activities, June 12, 1973
[00.39.41] [STANS' attorney Robert BARKER continues to argue that STANS should not be required to testify because his testimony would prejudice his chances for a fair trial in a criminal indictment against him] On August 2, 1972, Mr. Stans voluntarily appeared and gave sworn testimony to the assistant U.S. attorney for use before the Watergate grand jury here in Washington, D.C. Subsequently, Mr. Stans voluntarily appeared before the staff of the House Banking and Currency Committee and gave information with respect to campaign finances and cooperated with that, committee, On six different occasions, in addition to submitting the official reports required of the committee, Mr. Stans gave affidavits and discussed matters, with Representatives of the General Accounting Office concerning campaign Finances and activities. He did everything he could to clarify matters. Again voluntarily, he went, to New York and appeared before the U.S. attorney handling the grand jury investigation into the Vesco contribution to the campaign. He then also voluntarily appeared on two occasions before that grand jury and fully and candidly and completely testified as to the matters known to him to the best of his ability. In addition, on three occasions, he has given en deposition-, in the civil litigation arising out of the campaign. He has also testified for the litigation in Florida, a criminal case down there. Subsequently, he appeared before the staff of this committee and on two occasions, gave them information concerning the campaign activities and finances, and he fully intended to appear voluntarily before this committee and to give it, all the cooperation and assistance that he could. However, on May 10, the United States of America, of which this committee is a part, a coordinate branch, changed the whole situation. It brought an indictment against Mr. Stans, charging him with very serious crimes arising out of the campaign and his duties as chairman of the finance committee. As you know, Mr. Stans pleaded innocent. Now, Mr. Stans is before this committee under subpena, with a direction to testify about his function as chairman of the Committee To Re-Elect the President. Inevitably, directly or indirectly, this hearing will influence any jury which might be called to hear the case In New York. This places Mr. Stans in an impossible position and a completely unfair one. Under our constitutional system and the fundamental laws of this land, an accused is entitled to a fair trial by an impartial jury, unimpeded by a deluge of publicity. In other words, as the Supreme Court said in Estes v. Texas, the concept of due process of law entitled the defendant to "both judicial serenity and calm." Now, Mr. Chairman, the inevitable Kleig light of publicity which will result from Mr. Stans' appearance here would preclude any judicial serenity and calm at the trial now set, as I say, for September 11 in New York. It would also tend to deny him the possibility of an impartial jury of the, kind guaranteed by' the sixth amendment. To paraphrase the language, of the Supreme Court in Delaney v. U.S. (199 F. 2d. 107Y 1st cir., 1952), Mr. Stans' appearance before, this committee and the television and other news media, related thereto would accomplish additional investigation and extensive publicity Which would serve no other purpose than to further prejudice Mr. Stans' right to a fair trial. Now, the Supreme Court, in speaking of the problem of publicity and fair trial, has said, the Court has insisted that no one, be, punished for a crime without a charge fairly made and fairly tried in a public trial free of prejudice, passion, commitment, and tyrannical power." (Chambers v. Florida, 309 U.S. 222, 236-237, 1940). Also speaking of freedom Of the Press, the Supreme Court has said it must not be allowed to divert, the trial from the very purpose of the court system, to adjudicate controversies both in the calmness and solemnity of the court-room according to legal procedures. Among the legal procedures is the requirement that the jury's verdict, be based on evidence received in open court, not from outside sources," (Sheppard v. Maxwell, 384 U.S. 333, 350, 351, 1965). The undeviating rule of the Supreme Court was stated long ago by Mr. Justice Holmes, when he said, "The theory of our system is that the conclusions, to be reached in a case will be induced only by evidence and argument in open court and not by any outside influence, whether of private talk or public print." (Patterson v. Colorado, 205 U.S. 454, 4621 1907). [00.45.20]
Senate Select Committee on Presidential Campaign Activities, June 12, 1973
[00.45.20] [STANS' attorney Robert BARKER continues to argue that STANS should not be required to testify because his testimony would prejudice his chances for a fair trial in a criminal indictment against him] Now, this was said in 1907, before the great media of radio and television existed. I am sure that if he were speaking today, he would include those great, media within the. scope of public print. Now, as I have said, the Supreme Court has indicated that a defendant is entitled as part of due process of law to a fair and impartial jury trial free from outside influence. I pose this question: After all the publicity given these hearings; and the Watergate situation in general, where in the United States can an impartial jury, uninfluenced by publicity be found? Moreover, under 'our settled system of due process of law and justice guaranteed by the fifth amendment, an accused has a right to remain Silent, completely silent, and require the Government to go forward with the presentation of its evidence before the defendant need present his case or put on any evidence. By requiring Mr. Stans to appear here before one of the coordinate arms of the Government which has placed these charges would require Mr. Stans to present his case in advance of hearing the Government's case in New York. This clearly would deprive him of due process of law, If Mr. Stans refuses to testify, as we understand it, he, would be Under a severe threat of citation for contempt of Congress and would face imprisonment. This places him under compulsion of either interfering 'with his own fair trial or going to jail. I repeat, this is a, completely unfair position to put, him in. The' only other alternative open to Mr. Stans, Mr. Chairman, is for him to refuse to testify on the grounds of the fifth amendment. This Would tend to degrade and embarrass him and would severely interfere With fair trial, because he would be branded throughout the United States as a former Cabinet officer who had taken refuge behind the fifth amendment. What would a prospective Juror say about that? The courts have recognized and the facts of many cases show that the, taking of the fifth amendment, even though it, is a constitutional right, is likely to severely prejudice a person in the minds of the, public, including prospective jurors. Mr. Chairman and member-, of the committee, Mr. Stans is left no reasonable choice or fair opportunity. As lawyers of broad experience each of you must recognize that fact. Therefore, under the prevailing circumstances, on behalf of Mr. Stans, I respectfully request that the committee, and I strongly urge the committee in the interest of fairness and fair trial, defer Mr. Stans' appearance and testimony until the indictment, in the Vesco case in New York has been disposed of. It is, probably already too late to preclude the publicity which will make a fair trial in that case impossible. However, I sincerely pray that the committee will at least not make the situation worse by proceeding at this time with Mr. Stans' testimony. Thank you, Mr. Chairman and members of the committee. [00.49.11--Sen. ERVIN responds to the statement] Senator ERVIN. Well, Mr. Barker, you have made a very appealing statement to the committee, In view of the fact that the committee was apprised in advance of the nature of the position which would be taken in behalf of the witness, the committee considered this matter at great length this morning. This committee has been authorized and directed by a unanimous vote of the Senate to investigate the question whether any persons, acting individually or in combination with others, engaged in illegal or unethical or immoral activities in connection with the Presidential election of 1972, or in connection with any campaigns of any candidates seeking nomination to run in that election which had the effect of perverting the integrity of the process by which 'Presidents of the United States are nominated and chosen. [00.50.50]
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