INDIVIDUAL STATEMENT BY SENATOR HOWARD H. BAKER, JR. I believe that the activities and inquiry of the Senate Select Committee on Presidential Campaign Activities have been, by and large, useful and appropriate. The bipartisan tone for the Committee was established by the unanimous adoption of Senate Resolution 60 by the vote of 77 to 0 on February 7, 1973. I think, with some exceptions that bipartisan attitude was preserved throughout the long and tedious proceedings. From time to time, there occurred conflicts and disagreements in the Committee, and between the respective staffs, but they usually were resolved. The final act of the Select Committee is to file its Report; and I am pleased. It is not a perfect Report. Some may say that it is without grace or style, and that is probably true; but it is the culmination of an extraordinary effort, and I am particularly gratified that the majority and minority staffs cooperated carefully in comparing their respective views and adjusting the text so that in most instances a satisfactory joint staff position was submitted to the Committee for adoption. The Report is not adjudicatory and indeed it often goes to some lengths to avoid "finding fact" in the traditional sense. This requirement was directed to the Committee staff by the Chairman in deference, I believe, to the sensitivity of litigation in process, or upcoming, and of course to the inquiry into impeachment by the House of Representatives. I commend the Chairman for that point of view. In an historical perspective, I believe that the Committee's principal service may have been in the public ventilation of the facts and circumstances collectively assembled under the title of Watergate. The Committee's gathering and disseminating the often shocking, frequently embarrassing, and sometimes incriminating evidence and testimony before it certainly should exert a deterrent effect; and that effect may be far more important than the Committee's recommendations. I rather suspect that it may be a long while before a future President permits the occurrence of such unfortunate circumstances. If that is the case, then the Committee's laborious effort, the considerable expense, and the national frustration will have been worth the investment. I hope so. Recommendations I. ESTABLISHMENT OF AN OFFICE OF PUBLIC PROSECUTOR WITHIN THE DEPARTMENT OF JUSTICE, APPOINTED BY THE PRESIDENT FOR A FIXED TERM AND SUBJECT TO SENATE CONFIRMATION. The Committee Report recommends the creation of a judicially-appointed Permanent Public Attorney to investigate and prosecute cases in which there are conflicts of interests within the Exécutive Branch. This recommendation and my own evidence recognition that the Federal Government is poorly equipped for investigating and prosecuting crimes allegedly committed by high-ranking Executive Branch officials. Prior to the appointment of the Watergate Special Prosecutor, there did not exist within the Department of Justice a division solely and specifically entrusted with the authority to investigate allegations of official misconduct, cloaked with the requisite independence and statutory authority necessary for unimpeded access to government officials and documents, and I believe the investigation would have proceeded more rapidly and effectively, had such an arrangement existed. Consequently, I agree in principle with the Committee Report's recommending the establishment of a Permanent Public Prosecutor, possessing a statutory mandate to investigate and prosecute allegations of governmental misconduct. I have great doubts, however, regarding the Constitutionality of the Committee's proposal that the Public Attorney be appointed by the representatives of the Judiciary. The appointment of a Permanent Public Prosecutor, within the Department of Justice, for a fixed six-year term as nominated by the President and subject to Senate confirmation possesses none of the potential Constitutional infirmities presented by a judicially-appointed public prosecutor, as were discussed in the Senate debate this past fall on the Hart-Bayh Special Prosecutor Bill. Senator Percy and I, together with Senators Brock, Cook and Young, introduced S. 2734 on November 20, 1973, that provided for the Presidential appointment of a Special Watergate Prosecutor, subject to confirmation by the Senate. Senator Ervin on June 17, 1974, introduced S. 3652, providing for Presidential appointment of a Permanent Public Prosecutor with Senate confirmation and a fixed term of six years. I believe both of these proposals avoid the Constitutional pitfalls of the Committee's recommendation and are attractive alternatives. II. ESTABLISHMENT WITHIN THE CONGRESS OF A JOINT INTELLIGENCE OVERSIGHT COMMITTEE SO AS TO PROVIDE FOR INCREASED CONGRESSIONAL MONITORING OF GOVERNMENTAL INTELLIGENCE GATHERING ACTIVITIES. Both in the Committee Report and in other Committee documents, there is found a substantial body of evidence regarding the activities of the Central Intelligence Agency, the Federal Bureau of Investigation, the National Security Council, and other Governmental intelligence gathering and/or investigative organizations, which provides insight into the activities, as well as the abuses, of these organizations relative to the matters under the Select Committee's perusal. Testimony was presented to the Committee to the effect that there was an attempt by high-ranking White House officials to somehow "involve" the CIA in the Watergate coverup; that the FBI investigation of the Watergate matter was impeded at the very highest levels of the Bureau itself; and that under the supervision of the White House, intelligence-gathering operations, including unlawful activity, was conducted outside the purview of the Congressionally-authorized intelligence and investigative agencies. Moreover, as indicated in separate Committee documents, the CIA provided extensive logistical support to the participants in both the Fielding and Democratic National Committee break-ins and expressed a keen interest in the subsequent investigations. The intelligence-related material before the Committee is not conclusive. It does not answer the question of what the President or other individuals knew or when they knew it, nor does it explain why the Democratic National Committee headquarters twice was the target of an illegal entry. It seems apparent, however, that Congressional committee oversight did not function effectively as a deterrent to those who may have sought to utilize governmental intelligence and investigative agencies for unlawful or unauthorized purposes. Thus, because of the cost, the secrecy, the lack of effective supervision, the uncertainty of domestic activities, and the extreme difficulty in obtaining access to classified materials, I am of the opinion that the subject of government intelligence operations requires extensive further examination. I wish to associate myself with the recommenlation in the Committee Report for closer supervision of Central Intelligence Agency activities by the appropriate Congressional oversight committees. I would go one step further and propose that the Congress should consider the creation of a Special Joint Committee on Intelligence Activities. I believe the highly sensitive nature of intelligence operations, the expanding scope of the intelligence gathering requirement, and the enormous cost and dedication of manpower and resources to the intelligence undertaking in the United States, fully justifies a new committee arrangement. Such a committee, not dissimilar to the Joint Committee arrangement. Such a committee, not dissimilar to the Joint Committee on Atomic Energy, could more effectively coordinate among the various intelligence investigative agencies, now subject to Congressional oversight, than can the several committees now having partial oversight responsibilities. Thus, I believe that a joint committee would present no legitimate threat to the intelligence community in terms of jeopardizing or compromising their necessary intelligence operations, and would provide greater assurance that our intelligence gathering and investigative agencies are complying with the law and are working in the best interest of the nation. III. REFORMATION OF CONGRESSIONAL INVESTIGATORY HEARING PROCEDURES SO AS TO PROVIDE INCREASED PROTECTION FOR THE RIGHTS OF INDIVIDUALS. Although this recommendation does not clearly fall within the province of S. Res. 60, the Select Committee hearings highlighted the fact that Congressional investigatory proceedings exhibit a determination to ferret out the facts even if the investigative process may grievously injure the protected rights of individuals who are or may become defendants in judicial proceedings. Thus, I believe that Congress should give careful attention to the codification of Rules of Legislative Hearing Procedure so as to provide the same assurance that individual Constitutional rights are not impaired by legislative hearings as the Federal rules of criminal procedure provide in criminal proceedings. I believe that such rules should provide a mechanism whereby witnesses and proposed witnesses before legislative hearings, who are or may be subject to criminal prosecution, can be identified and afforded additional procedural protections than is now the case. For instance, a "vulnerable" witness might be given the right to have counsel participate in the questioning of other witnesses presenting testimony adverse to the interests of the vulnerable witness. In addition, the Congress should study the advisability of imposing common law and/or federal evidentiary rules in certain types, if not all, legislative hearings. Finally, the Congress may wish to establish a Legislative Public Defender whose duty would be to proctor legislative hearings and investigations so as to provide for the protection of the rights of individuals. As exemplified by the history of the Select Committee, the investigatory power of a Congressional committee is extremely broad and pervasive, and, in actuality, is restricted only by the wording of the resolution or other legislative vehicle creating the committee and the authority of the committee to investigate such matters. While litigation and Congressional discretion have provided some due process limitations upon Congressional investigations, a Congressional committee is not a jury nor a court; and common law anl statutory evidentiary rules are not applicable to committee investigations. The most obvious example is hearsay testimony, which is recited throughout the Committee Report. Moreover, through its contempt power, "use" immunity, and public pressure, a Congressional committee can in many cases indirectly overcome an individual's privilege against self-incrimination in a manner which could never occur in a court of law. As mentioned above, individuals whose conduct is being investigated, often are not afforded the opportunity to have counsel "cross examine" witnesses presenting testimony detrimental to them. Thus, while I will protect jealously the privilege and the right of Congressional committees to conduct inquiries concerning the administration of existing laws, as well as new statutes, I believe that legislation conveying the recognition of the need to protect the rights of potential defendants, the sanctity of criminal trials and the impartiality of the impeachment process can be effected without constituting a detriment to a legislative committee's fact-finding power. IV. CAMPAIGN AND ELECTORAL REFORMS Among the several inadequacies in our political process highlighted by Watergate, none is more glaring than the need for comprehensive campaign and electoral reform. The types of campaign abuses prevalent during the 1972 campaigns, though shocking in terms of their scope, were by no means unprecedented. The fact of the matter is, and has been, that political campaigns take place in a legal vacuum. With the possible exception of the Federal Elections Campaign Act of 1971, there has been no significant attempt by Congress to regulate political campaigns since the Corrupt Practices Act of 1925; and even that was "more loophole than law." Thus, it is not surprising that campaigns have taken on the appearance of a political free-for-all in which the distinction between illegal, unethical, anl immoral conduct is generally obscured. The fallout from that atmosphere is cumulative and has resulted in a devastating erosion of public trust and con |