5 and right to information in several ways. They have determined the propriety of demands for evidence in the context of criminal contempt proceedings brought against those who defied Congressional orders. And they have ruled on habeas corpus petitions or damage actions by those detained by a Sergeant-at-Arms for failure to testify or produce records. But Congressional action putting in motion either of It would be unseemly -- and these processes may be undesirable. most probably futile - to send a Sergeant-at-Arms to arrest the President or to instigate criminal contempt proceedings against him, as the Ervin Committee realized when it deliberated the proper course to combat Mr. Nixon's defiance of its subpoenas. Similarly, using a Sergeant-at-Arms or initiating criminal contempt actions against Congress strictly. - - where the liberty of an indi the courts tend to construe the powers of Even if a court ruling eventually favors the Congressional claim, the final holding, which may come long after the issue was at a head, may not actually produce the materials sought. The criminal contempt citation against Henry Kissinger voted by the House Intelligence Committee provides an apt example of the futility of this approach. Even if the full House cites Kissinger for criminal contempt, he most probably will never be prosecuted because prosecutorial discretion rests with the executive branch. If a trial results, the administration's claim of executive privilege may well receive favorable consideration by a court not wanting to stigmatize the Secretary with a criminal conviction. And in the extraordinarily unlikely event that Kissinger is convicted and sentenced, he would probably receive a Presidential pardon. While the contempt citation may demean Kissinger in some eyes, to others the House Intelligence Committee is itself demeaned by engaging in (The contempt citation what some may interpret as a grandstand play. however, dues pul additional pressure on Kissinger G considerations bring us back around to the proposition compromise that a Congressionally instigated civil action with its opportunity for full exploration of constitutional issues and its flexibility for fashioning a just relief may be the most efficacious method These - - to resolve serious disputes between Congress and the executive its subpoenas in a civil action is desirable. In my view such a statute should allow suit not only against executive officials but The jurisdictional statute should force the courts to expedite handling of Congressional cases. If Congress does not receive the information it requests promptly, the information may prove useless. Finally, it may be prudent to include a provision requiring approval of suit by the House involved to interdict any committee which seeks to litigate for partisan advantage, harrassment, or self-aggrandizement. I will be happy to answer any questions you may have. Senator RIBICOFF. Our next witness, Professor Dorsen, has been delayed because of the weather. His plane, however, has landed. I would say that he should be here in about 15 or 20 minutes. Under the circumstances, we will take a recess until Professor Dorsen gets here. The committee will stand in recess for 10 minutes. [A brief recess was taken.] Senator RIBICOFF. The committee will be in order. My appreciation to you, Professor Dorsen, for coming here on such short notice. We understand what inclement weather does to airplane schedules. We are glad you are here. Mr. DORSEN. Thank you very much. Senator RIBICOFF. Please proceed in any way you will, when you are ready. TESTIMONY OF PROF. NORMAN DORSEN, NEW YORK UNIVERSITY SCHOOL OF LAW Mr. DORSEN. It was short notice, Senator, but I did have an opportunity to review the previous hearings, and much of the material that Mr. Schaefer sent to me last week. I think it is very important in connection with this bill to distinguish between the policy questions and the constitutional questions. Policy questions, of course, are tied in with a wide range of considerations that relate to factors other than what the Supreme Court might ultimately do in a challenge to the validity of a statute, if it is passed. I first would like to state my view that, as a matter of policy, this is a sound measure, and one that I would hope would be passed. Senator RIBICOFF. In other words, you disagree with the Justice Department's contention that a congressional legal counsel violates the separation of powers doctrine? Mr. DORSEN. I disagree with that on several levels, although, as I will explain a little bit more fully later, there are certain aspects of the bill that do create some problems. The basic point, I think, has been made by Senator Mondale in his testimony in July. There are a wide range of situations in which Congress, committees of Congress, or individual Members of Congress have a distinctive interest that should be represented by lawyers just as distinctive interests of other organizations, whether public or private, are represented by in-house counsel. Some of these relate to conflicts between the legislative and executive branch, for example, when the legislative branch is seeking to have a subpena honored and if claims of executive privilege are raised. Take the situation pending before the Moss committee in the House, where Secretary Morton in relation to the Arab boycott has declined to give information to a House committee on the ground that the statute, the Export Control Act precludes him from doing so. There seems to be no reason why Congress should not have its own counsel of skill and experience and subject to its control to deal with problems of that sort. The fact that the Justice Department might, in certain circumstances, represent Congress seems to me not at all a satisfactory solution. Senator RIBICOFF. You have the Kissinger situation with the Pike committee. Mr. DORSEN. Exactly. In those situations, the Department of Justice is representing the executive branch. Congress is therefore forced to hire outside counsel. It has done so in certain circumstances. I do not see why a coordinate branch of the Government needs to resort to outside counsel. Senator RIBICOFF. Dean Griswold suggests that by setting up a congressional legal service, we are overburdening the courts by requiring them to decide essentially political questions. Do you think there is any substance to that? Mr. DORSEN. Nobody likes to have the courts overburdened. The fact of the matter is that the problems that are intended to be dealt with in this bill go to the very heart of the governmental situation in the United States. If the courts are not open and available to deal with those problems, I think we are in a sorry way indeed. Dean Griswold, who is my former Dean, and a very experienced man, may have leaned over a little bit to give the Executive point of view. One other related objection which I also find of questionable validity is that by giving Congress its own lawyer, the problems of interbranch harmony will be politicized in some way by having these cases in the courts. A lot of problems which otherwise would be solved in a better way would become political problems. In fact, I think the contrary is true. Under the present circumstances, for example in executive privilege cases, political strength frequently determines the result in these including backdoor bargaining, political armtwisting, and persuasion. These, of course, are time-honored means of settling the business of Government. If you did have a counsel, and that counsel were prepared to go to court to represent the legitimate interests of the committees or individuals, in proper cases, or the Congress as a whole, the situation would no longer be a political question. It would be a legal question. Those who think that the courts are unable to deal with that sort of problem need only be reminded of cases such as United States v. Nizon, the impoundment cases, Youngstown Sheet & Tube, Kennedy, v. Sampson, and a whole range of other cases where the court took jurisdiction. There are some aspects of the bill that, I think, deserve special attention, both from the point of view of separation of powers, as you mentioned, Senator, and also from the point of view of other legal doctrines, such as standing to sue, and political questions. I see only two provisions of the bill, where a serious problem exists. One is section 5(a)2 where the Office of Congressional Legal Counsel would be authorized to sue the Executive, to enforce a statute that, in its opinion, is not being properly enforced. From the point of view of separation of powers, I do not think that there is a serious problem. In my judgment, there is a very big difference between enforcing a statute which is in fact an Executive responsibility, and suing to require the Executive to enforce the statute. In other words, Congress has passed the statute. It has an interest, which I will get to later in another connection under the standing doctrine, in seeing that the law is enforced in the proper way so that the votes of Members of Congress are not nullified. Its job is not to enforce the law. It seems to me that there is no aspersion, no undercutting of the Executive prerogative, if the executive branch does not enforce the law, and the courts state to the executive branch, in a suit by the Congress, that it must do so under the Constitution. The second aspect of that problem is that Members of Congress, some say, lack standing to bring such a suit. There are many cases that have upheld congressional standing in suits by members of Congress-the Mink case, Kennedy v. Sampson, various others. The Mink case, as you know, was a case where the courts upheld the standing by Members of Congress acting in their individual capacities. In the Kennedy case the court upheld a suit brought in Senator Kennedy's official capacity. One case that is particularly instructive is Mitchell v. Laird, where 13 Congressmen sued for a declaratory judgment that the Vietnam war was unconstitutional and for an injunction against the continuation of the war. The court explicitly grounded its decision in favor of standing on the ground that a declaratory judgment would bear on the duties of the plaintiffs-Members of Congress-to consider whether to impeach, make appropriations, or take other legislative action. That was in Court of Appeals of the District of Columbia. It seems to me that in a case where the Executive, in the judgment of Congress, is not enforcing a statute properly, the same kind of standing would apply. Members of Congress are interested in deciding how to make appropriations and whether to take other legislative action, as well of course to safeguard their vote. Indeed, under the bill there are two stronger arguments in favor of standing. First, as I understand the bill, one House or the Congress as a whole must grant authority to a committee to sue, or must itself authorize the Office of Congressional Legal Counsel to sue. This suggests a much greater official interest than the interests of the 13 Congressmen who were suing in the Mitchell case. Put another way, there is a clearer relationship between the official duties of the Congress as a whole when a full committee has authorized a suit, or one House has authorized a suit, or both Houses have authorized a suit, than in the case of suits by individual Members of Congress where courts have already upheld standing. On the other hand, situations will arise where an individual Member, or group of Members, may wish to bring a legitimate controversy before the courts, but want to utilize private counsel to do so. They may be forced to do this because they can not muster a committee or the full House to utilize the congressional counsel, or they might just choose to do so for their own reasons. The right to bring such a suit should be protected. The legislation (or at least the legislative history) should make clear that all Members bringing suits in their official capacities, and certainly any suit that the congressional legal counsel is empowered to bring, should enjoy similar standing rights before the courts, regardless of what counsel is selected. This leads to another point. Under a section 5(a) suit, there is no guarantee that a court will actually decide the case. There may be |