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they belong. And, of course, the Constitution expressly provides for impeachment. But where it is not a policy question, then it should remain within the branch of Government that is involved. We certainly would not want to divorce from the Congress the power of the Congress to deal with its own Members by giving the President or the Supreme Court a part in the decision as to whether a certain Member should stay in the House or in the Senate. That is something for us to decide. Similarly with reference to a factual determination on the physical or the mental capabilities of a serving President, it would be a question for the executive branch to decide.

Senator BAYH. We differ as to what type of determination the Congress is making in the impeachment. I think in addition to being a policy determination, it is very much a factual determination, too— did the President actually do what he is accused of doing.

Forgive me. Do you have any further questions?

Senator HRUSKA. Perhaps the Attorney General might want to comment on the observations by the chairman?

Attorney General KATZENBACH. I would think that a question of this importance, Senator, could scarcely be regarded as a purely factual question. There are all kinds of gravest considerations of policy involved in the determination that Congress would make the whole question of the confidence of the country, the confidence of the world. Senator BAYH. Are we talking about disability?

Attorney General KATZENBACH. Disability in that kind of a case. I would think that was a policy question, admitting the factual basis of it, but I would think that was a policy question of the highest order. I would think it would be extremely important to know, in the event that a Vice President was taking over the offices, that he had the support in that determination of two-thirds of each House of Congress. I do not see how, just from the point of view of the confidence of the people of the United States, from the point of view of the confidence of foreign governments in our constitutional processes, I find it difficult to see how you could really do away with the political necessity. I mean that in the highest term, meaning, political, of that kind of confirmation of the President's inability to act.

Senator HRUSKA. Mr. Attorney General, if this matter came to a vote in the Congress, it would take a vote of 67 Senators and then twothirds in the House, to determine that the President is unable to discharge the powers and duties of his office. If there were only 63 Senators who would say he is unable to serve, what becomes of your consensus and backing up of the decision made in the Cabinet and by the Vice President in the eyes of the Nation and the world?

Attorney General KATZENBACH. I think it would be a most unfortunate thing if that were to occur, Senator. But I think that is inherent in the problem, not in the procedure here.

I would be very surprised at any Vice President with the political experience of Vice Presidents that I think has been true in all of our history who would even propose to do this unless he were absolutely assured that he was going to have the overwhelming support in the House and Senate. And I cannot imagine responsible Cabinet officials ever putting the country in that position. If there was that kind of doubt in the situation that you could not muster a two-thirds vote, then I do not think that the issue would ever be put. I really do not

consider that I consider the process as a safeguard against usurpation, which is what I think it is intended to be. I think it also-I think the practice would end up, any time it is submitted, with the Vice President being supported. Because it is such a horrible situation to imagine, for him as well as for the country, that I do not think it would ever be submitted except in the clearest kind of situation, where he had in the usual processes of politics the assurance that that was going to be backed up by a majority or by two-thirds of each House.

Senator HRUSKA. Mr. Chairman, this Senator is deeply gratified at that expression of confidence in the Cabinet that has just been expressed. I agree with it even more fully than the Attorney General does, because I would repose such complete confidence in the Vice President and the Cabinet that we would stop right there with their decision. They are people, after all, who have been named by the President. They are loyal to him; they know him. They are able to observe him. They would have every sympathy for the man and with the electorate of this Nation to have that man continue in office. If he does continue in office, that would be the fulfillment of the will of the Nation. They would give every fair intendment to the President. If there was any doubt, I think they would still resolve it in favor of the President.

But I say that is the point at which it should stop and not throw it into the political arena at this end of Pennsylvania Avenue because there have been situations in our history where there have built up tremendous personal and political animosities between the leadership in the Congress and the President or the Vice President. It is in this fashion that I believe we would violate that doctrine of separation of powers and good policy.

Have you any comment on the idea of stopping right there with the Cabinet and its decision jointly with the Vice President, taking all these considerations into your thinking?

Attorney General KATZENBACH. I think that you have eloquently stated the argument, Senator. I continue to believe that it would be important that that decision would be affirmed as overwhelmingly as this contemplates by elected representatives and that we would get an additional measure of security out of that. I do not say that from any lack of confidence in the integrity of the Cabinet, or in the decision that they would make. I say it as I said before, because I do believe that in that kind of a crisis, which, thank God, we have never had in this country and I hope never will, it would be so important to join ranks on both sides of the aisle and to create that kind of confidence among the public of the United States by their elected representatives joining in this very unpleasant and terribly important determination so that as we have in the past, this country could indicate that in such a crisis, it can and will unite.

Senator HRUSKA. The Attorney General states his position well and I respect his declaration of it. I do not quite want to subscribe to it yet, Mr. Attorney General, except for this observation: I think it is fine as far as it goes. But I think there is some hazard and danger in throwing this crisis into the Congress and finding instead of 67 or 68 Senators going along with the Vice President, there would only be 64. Then we would have uncertainty, confusion, and perhaps chaos,

because more than the majority of the Senators and electorate of this Nation would be of a frame of mind that would not be effectuated. Attorney General KATZENBACH. May I comment just very briefly on that?

Senator HRUSKA. Surely.

Attorney General KATZENBACH. If that were the situation and your proposal that simply the Cabinet acted were the law, it is incredible to me that those 36 Senators would remain silent. I think it would be well known to the public that those 36 Senators thought that the Cabinet had acted unwisely, that the President really was able to act, and that they would create exactly the same kind of situation in the country as if you had a vote.

Senator HRUSKA. But 64 would be contending, also, that they were right in saying that the President was unable to act, and they would not be silent.

Attorney General KATZENBACH. You would have exactly the same debate, Senator, whether they voted on it or whether they did not vote on it. You would have exactly the same kind of grave constitutional crisis. It almost comes when you talk two-thirds, and it is a customary figure. On this, it would be my hope that if that situation ever evolved, you would have 100 Senators who would agree. Because it simply becomes an impossible situation, and if it is a close question and a difficult one, it is in that situation where I think the Vice President would not act, the Cabinet would not support him, and they would want to know that they had the support, whether or not, whatever system it as done under, they would surely want to know they had the overhelming support of both Houses of Congress if they were determined to act in this totally unprecedented way.

So I think the problem, the difficulty you state, is inherent in the problem and not in the way in which it is resolved, and that the way it is proposed here to resolve it at least has the effect of showing how united the country would be in the event that that terrible decision had to be made.

Senator BAYH. May I interject one thought, since you indicated you were going to something else? I just wanted to state for those of us who have studied this, as the Senator from Nebraska has, that we differ with him as he very articulately expresses his point of view. But just to rephrase what the Attorney General said, it is our feeling that this business of removing the legally elected President of the United States for any cause is of such a serious nature that we do not want the Vice President or Cabinet or any other group to have the responsibility for doing it. The final determination, we feel, must be made by the representatives of the people. If there were some way we could get the people themselves to make this decision, I would say more power to this. But we have found no practical way of doing this.

Only when the Congress, as the legally representative body of the people, says, "Mr. President, you are unable to carry on the powers and duties that were given to you, this great mandate that was given to you by the people," are we willing to say that he should step down. Now, certainly the Senator from Nebraska feels equally strong about it and I appreciate his opinion. He states it very well. Senator HRUSKA. Thank you, Mr. Chairman.

One other point, Mr. Attorney General. We have raised here the possibilities that the Vice President might discharge the heads of the different executive departments and distort the situation to a point where then he would be in a position to control the thing with his own little white fingers. Again, I would not want to attribute to any Vice President, in all of our history, any such diabolical designs or intent. The way sections 4 and 5 are written now, where the decision of the Vice President must be supported by a majority of the cabinet, is there anything in there that would prevent him, after he became Acting President, from terminating the service of the heads of the executive departments and appointing those who might by sympathetic with him? Is there anything in this language that would prevent him from doing it?

Attorney General KATZENBACH. Certainly, if he were discharging the powers of the Presidency, he could remove a Cabinet officer. There is no question about that, Senator. He could only effectively appoint one if Congress happened to be out of session at that time. If that were true, he could do it. So exercising those powers, it would be possible, as I read this under the present language-it would be possible to construe this as permitting him to change the Cabinet and thus gain support or to change a member of the Cabinet if it were an almost evenly divided vote, under those circumstances. I think that really is an additional argument for the procedures under section 5 that would permit Congress to pass on this with a two-thirds vote. It is to prevent that kind of contingency, it seems to me, that section 5 was put in, among the other purposes that we indicated. And to an extent, the difficulty of leaving the decision purely to the Cabinet would be really to open up that possibility.

Senator BAYH. May I ask the Senator a question, because I think this is a legitimate question, one with which we had some problems— the Attorney General and myself.

Senator HRUSKA. All questions the chairman asks are legitimate. Senator BAYH. We do not want to enable a situation to exist where the Vice President can indulge himself in a purge. But, by the same token, I do not think we want to permit a situation to exist whereover an extended period of time while the Vice President is actingthe Vice President is prohibited from replacing a Cabinet member, should the necessity arise.

Senator HRUSKA. That is one of the difficulties inherent in the situation. The Government, in its administration, must proceed-it must go on. Maybe in that time the change of one or two members of the Cabinet would make a difference, if it is a close issue. But I just wanted the Attorney General's idea. I raise it only because this horrible possibility was raised in the converse. That is why I raise it, certainly not with the thought that anyone chosen for the office of Vice President would indulge in any behavior of that kind.

Mr. Attorney General, you have been very kind, and so have you, Mr. Chairman. I thank you very much.

Senator BAYH. May I ask a question that I intended to ask before we got off this "immediately" situation?

Attorney General KATZENBACH. Certainly.

Senator BAYH. Looking at this from an interpretative standpoint, it is very difficult, as the Senator knows, and the Attorney General knows, to find language that will do just exactly what you want with

out doing something that you do not want. We have felt, although the Senator disagrees, that "immediately" perhaps comes closer than any other word or group of words. Do we have any different interpretation of "immediately" if it is placed in the Constitution or "immediately" if it is placed in a statute? It has been suggested that maybe "immediately" in a statute would do this.

Attorney General KATZENBACH. I would think mainly the same thing.

Senator BAYH. The Court has to make the eventual determination. Attorney General KATZENBACH. The Court might never make it. I think you have to face, frankly, the fact that it would be really Congress that would make the determination as to what "immediately"

meant.

I do feel you could have the difficulty on this, Senator, of the President, who is disagreeing with the Vice President, sending it down and nothing happening for a period of time, and his saying, "Well, under this provision, it says Congress shall-will-immediately decide the issue. They have not done so, and it says, 'otherwise the President shall resume the powers and duties of the office' and so I am going to resume the powers and duties of the office." You could, in a delayed situation, have that difficulty, as I read it.

Now, I do not know that there is very much more that you can do than to urge on the Congress using "immediately" as a whip to have them decide it. The very possibility of that, it would seem to me, would help to resolve that situation in that way.

Senator BAYH. I wanted to clarify one answer you gave to a question by the Senator from Nebraska: In his question, he combined the need to get expert medical testimony and for Congress to hold hearings to hear from his aids and personal associates of the family, for example, that can compare how the President is acting now with how he acted yesterday or a month ago. He combined this with the filibuster, which is something that I think gets clear out of the "immediately" situation.

Could you state specifically whether you think, as we use the word "immediately," that this would still permit Congress to make a reasoned, intelligent judgment, and to take what time as is necessary to get this evidence to hear this testimony?

Attorney General KATZENBACH. I would certainly think that it would, Senator, and they would have the time under the meaning of the word "immediately." I think the difficulty is going to be only if they do not act with the greatest expedition. I think that is what you are trying to tell them to do. There is no word that you can use that completely resolves that problem. I do not know what "immediately" means, except it means as soon as you can darn well do it.

Senator HRUSKA. Of course, what you have said indicates that you do think the word "immediately" would enable the Congress to inquire of members of the family and psychiatrists and physicians and so forth. Is that true?

Attorney General KATZENBACH. I would think so.

Senator HRUSKA. Would it encompass, also, the matter of the Congress debating the issue?

Attorney General KATZENBACH. I would think that it could encompass the possibility of debate.

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