Q. Mr. President, now that the Watergate case is over, the trial is over, could you give us your view on the verdict and what implications you see in the verdict on public confidence in the political system?

THE PRESIDENT. No, it would not be proper for me to comment on the case when it not only is not over, but particularly when it is also on appeal.

I will simply say with regard to the Watergate case what I have said previously, that the investigation conducted by Mr. Dean, the White House Counsel, in which, incidentally, he had access to the FBI records on this particular matter because I directed him to conduct this investigation, indicates that no one on the White House Staff, at the time he conducted the investigation-that was last July and August-was involved or had knowledge of the Watergate matter. And, as far as the balance of the case is concerned, it is now under investigation by a Congressional committee and that committee should go forward, conduct its investigation in an even-handed way, going into charges made against both candidates, both political parties. And if it does, as Senator Ervin has indicated it will, we will, of course cooperate with the committee just as we cooperated with the grand jury.

Q. Mr. President, yesterday at the Gray hearings, Senator Tunney suggested he might ask the committee to ask for John Dean to appear before that hearing to talk

9 Presidential Documents 214, 219-20

about the Watergate case and the FBI-White House relationship. Would you object to that?

THE PRESIDENT. Of course.

Q. Why?

THE PRESIDENT. Well, because it is executive privilege. I mean you can't-I, of course-no President could ever agree to allow the Counsel to the President to go down and testify before a committee.

On the other hand, as far as any committee of the Congress is concerned, where information is requested that a member of the White House Staff may have, we will make arrangements to provide that information, but members of the White House Staff, in that position at least, cannot be brought before a Congressional committee in a formal hearing for testimony. I stand on the same position there that every President has stood on. REPORTER. Thank you, Mr. President.

Q. Mr. President, on that particular point, if the Counsel was involved

THE PRESIDENT. He always gets two. (Laughter) Q.-if the Counsel was involved in an illegal or improper act and the prima facie case came to light, then would you change the rules relative to the White House Counsel?

THE PRESIDENT. I do not expect that to happen, and if it should happen I would have to answer that question at that point. Let me sa too, that I know that, since you are on your feet, Clark 1ollenhoff], that you had asked about the Executive Privilege statement, and we will have that available toward the end of next week or the first of the following week, for sure, because obviously, the Ervin Committee is interested in that statement, and that will answer, I think, some of the questions with regard to how information can be obtained from a member of the White House Staff, but consistent with executive privilege. REPORTER. Thank you again.

NOTE: President Nixon's thirtieth news conference was held at 11:08 a.m. on Friday, March 2, 1973, in the Briefing Room at the White House.

Executive Privilege

Statement by the President. March 12, 1973

During my press conference of January 31, 1973, I stated that I would issue a statement outlining my views on executive privilege.

The doctrine of executive privilege is well established. It was first invoked by President Washington, and it has been recognized and utilized by our Presidents for almost 200 years since that time. The doctrine is rooted in the Constitution, which vests "the Executive Power'' solely in the President, and it is designed to protect communications within the executive branch in a variety of circumstances in time of both war and peace. Without such protection, our military security, our relations with other countries, our law enforcement procedures, and many other aspects of the national interest could be significantly damaged and the decisionmaking process of the executive branch could be impaired.

The general policy of this Administration regarding the use of executive privilege during the next 4 years will be the same as the one we have followed during the past 4 years and which I outlined in my press conference: Executive privilege will not be used as a shield to prevent embarrassing information from being made available but will be exercised only in those particular instances in which disclosure would harm the public interest.

I first enunciated this policy in a memorandum of March 24, 1969, which I sent to Cabinet officers and heads of agencies. The memorandum read in part:

"The policy of this Administration is to comply to the fullest extent possible with Congressional requests for information. While the Executive branch has the responsibility of withholding certain information the disclosure of which would be incompatible with the public interest, this Administration will invoke this authority only in the most compelling circumstances and after a rigorous inquiry into the actual need for its exercise. For those reasons Executive privilege will not be used without specific Presidential approval."

In recent weeks, questions have been raised about the availability of officials in the executive branch to present testimony before committees of the Congress. As my 1969 memorandum dealt primarily with guidelines for providing information to the Congress and did not focus specifically on appearances by officers of the executive branch and members of the President's personai staff, it would be useful to outline my policies concerning the latter question.

During the first 4 years of my Presidency, hundreds of Administration officials spent thousands of hours freely testifying before committees of the Congress. Secretary of Defense Laird, for instance, made 86 separate appearances before Congressional committees, engaging in over 327 hours of testimony. By contrast, there were only three occasions during the first term of my Administration when executive privilege was invoked anywhere in the executive branch in response to a Congressional request for information. These facts speak not of a closed Administration but of one that is pledged to openness and is proud to stand on its record.

Requests for Congressional appearances by members of the President's personal staff present a different situation and raise different considerations. Such requests have been relatively infrequent through the years, and in past administrations they have been routinely declined. I have followed that same tradition in my Administration, and I intend to continue it during the remainder of my term.

Under the doctrine of separation of powers, the manner in which the President personally exercises his assigned executive powers is not subject to questioning by another branch of Government. If the President is not subject to such questioning, it is equally appropriate that members of his staff not be so questioned, for their roles are in effect an extension of the Presidency.

This tradition rests on more than Constitutional doctrine: It is also a practical necessity. To insure the effective discharge of the executive responsibility, a President must be able to place absolute confidence in the advice and assistance offered by the members of his staff. And in the performance of their duties for the President, those staff members must not be inhibited by the possibility that their advice and assistance will ever become a matter of public debate, either during their tenure in Government or at a later date. Otherwise, the candor with which advice is rendered and the quality of such assistance will inevitably be compromised and weakened. What is at stake, therefore, is not simply a question of confidentiality but the integrity of the decisionmaking process at the very highest levels of our Government.

The considerations I have just outlined have been and must be recognized in other fields, in and out of govern ment. A law clerk, for instance, is not subject to interrogation about the factors or discussions that preceded a decision of the judge.

For these reasons, just as I shall not invoke executive privilege lightly, I shall also look to the Congress to continue this proper tradition in asking for executive branch testimony only from the officers properly constituted to provide the information sought, and only when the eliciting of such testimony will serve a genuine legislative purpose.

As I stated in my press conference on January 31, the question of whether circumstances warrant the exercise of executive privilege should be determined on a case-bycase basis. In making such decisions, I shall rely on the following guidelines:

1. In the case of a department or agency, every official shall comply with a reasonable request for an appearance before the Congress, provided that the performance of the duties of his office will not be seriously impaired thereby. If the official believes that a Congressional request for a particular document or for testimony on a particular point raises a substantial question as to the need for invoking executive privilege, he shall comply with the procedures set forth in my memorandum of March 24, 1969. Thus, executive privilege will not be invoked until the compelling need for its exercise has been clearly demonstrated and the request has been approved first by the Attorney General and then by the President.

2. A Cabinet officer or any other Government official who also holds a position as a member of the President's personal staff shall comply with any reasonable request to testify in his non-White House capacity, provided that the performance of his duties will not be seriously impaired thereby. If the official believes that the request raises a substantial question as to the need for invoking executive privilege, he shall comply with the procedures set forth in my memorandum of March 24, 1969.

3. A member or former member of the President's personal staff normally shall follow the well-established precedent and decline a request for a formal appearance before a committee of the Congress. At the same time, it will continue to be my policy to provide all necessary and relevant information through informal contacts between my present staff and committees of the Congress in ways which preserve intact the Constitutional separation of the branches.

NOTE: The text of the memorandum to which the statement refers was also made available by the White House Press Once, as follows: March 24, 1969

Memorandum for the Heads of Executive Departments And

ACENCIES

SUBJECT: ESTABLISHING A PROCEDURE TO GOVERY COMPLIANCE WITH CONGRESSIONAL DEMANDS FOR InformatioN

The policy of this Administration is to comply to the fullest extent possible with Congressional requests for information. While the Executive branch has the responsibility of withholding certain information the disclosure of which would be incompatible with the public interest, this Administration will invoke this authority only in the most compelling circumstances and after a rigorous inquiry into the actual need for its exercise. For those reasons Execu tive privilege will not be used without specifc Presidential approval The following procedural steps will govern the invocation of Execntive privilege:

1. If the head of an Executive department or agency (hereafter referred to as "department head") believes that compliance with a request for information from a Congressional agency addressed to his department or agency raises a substantial question as to the need for invoking Executive privilege, he should consult the Attor ney General through the Office of Legal Counsel of the Department of Justice.

2. If the department head and the Attorney General agree, ia accordance with the policy set forth above, that Executive privilege shall not be invoked in the circumstances, the information shall be released to the inquiring Congressional agency.

3. If the department head and the Attorney General agree that the circumstances justify the invocation of Executive privilege, or if either of them believes that the issue should be submitted to the President, the matter shall be transmitted to the Counsel to the President, who will advise the department head of the President's decision.

4. In the event of a Presidential decision to invoke Executive privilege, the department head should advise the Congressional agency that the claim of Executive privilege is being made with the specific approval of the President.

5. Pending a final determination of the matter, the department head should request the Congressional agency to hold its demand for the information in abeyance until such determination can be made. Care shall be taken to indicate that the purpose of this request is to protect the privilege pending the determination, and that the request does not constitute a claim of privilege.

RICHARD NIXON

9 Presidential Documents 253-54

Q. Mr. President, do you plan to stick by your decision not to allow Mr. Dean to testify before the Congress,' even if it means the defeat of Mr. Gray's nomination?

THE PRESIDENT. I have noted some speculation to the effect that the Senate might hoid Mr. Gray as hostage to a decision on Mr. Dean. I cannot believe that such responsible Members of the United States Senate would do that, because as far as I am concerned, my decision has been made.

I answered that question rather abruptly, you recall, the last time it was asked by one of the ladies of the press here. I did not mean to be abrupt, I simply meant to be firm.

Mr. Dean is Counsel to the White House. He is also one who was counsel to a number of people on the White House Staff. He has, in effect, what I would call a double privilege, the lawyer-client relationship, as well as the Presidential privilege.

And in terms of privilege, I think we could put it another way. I consider it my constitutional responsibility to defend the principle of separation of powers. I recognize that many Members of the Congress disagree with my interpretation of that responsibility.

But while we are talking on that subject—and I will go on at some length here because it may anticipate some of your other questions-I am very proud of the fact that in this Administration we have been more forthcoming in terms of the relationship between the executive, the White House, and the Congress, than any administration in my memory. We have not drawn a curtain down and said that there could be no information furnished by members

of the White House Staff because of their special relationship to the President.

All we have said is that it must be under certain circumstances, certain guidelines, that do not infringe upon or impair the separation of powers that are so essential to the survival of our system.

In that connection, I might say that I had mentioned previously that I was once on the other side of the fence, but what I am doing here in this case is cooperating with the Congress in a way that I asked the then President, Mr. Truman, to cooperate with a committee of the Congress 25 years ago and in which he refused.

I don't say that critically of him now-he had his reasons, I have mine. But what we asked for in the hearings on the Hiss case-and all of you who covered it, like Bill Theis and others, will remember-what we asked for was not that the head of the FBI or anybody from the White House Staff testify. There was very widespread information that there was a report of an investigation that had been made in the Administration about the Hiss case. We asked for that report. We asked for the FBI information with regard to that report.

And Mr. Truman, the day we started our investigation, issued an executive order in which he ordered everybody in the executive department to refuse to cooperate with the committee under any circumstances. The FBI refused all information. We got no report from the Department of Justice. And we had to go forward and break the case ourselves.

We did. And, to the credit of the Administration, after we broke the case, they proceeded to conduct the prosecu tion and the FBI went into it.

I would like to say, incidentally, that I talked to Mr. Hoover at that time. It was with reluctance that he did not turn over that information-reluctance, because he

'See Public Papers of the Presidents, Harry S. Truman, 1948 volume, Item 170[+].