Crack in the Constitution

[William Kelly]

http://jfkcountercoup.blogspot.com/

THE CRACK IN THE CONSTITUTION

PHILADELPHIA'S National Constitution Center has become a symbolic protest site for demonstrators, most recently by those protesting the violations of the Constitution at the CIA prison at Guantanamo.

During the official opening ceremonies of the Constitution Center, when they pulled on a string to unveil the backdrop to the main stage, the frame and support beam collapsed and fell down on top of the assembled dignitaries, which included Supreme Court Justice Sandra Day O'Conner, Senator Arlen Specter and then Philadelphia Mayor Milton Street.

It was an inauspicious opening of the National Constitution Center which Mayor Street claimed was not an accident, but a conspiracy by the stage union to embarrass and discredit him.

The duel purpose of the center - to educate the public and promote tourism in Philadelphia, is buttressed by the conservative Republican agenda that at first attempted to exclude the fact that the authors of the United States Constitution were slave owning hypocrites. The very site of the center is now recognized as once the slave quarters of the founding fathers.

But the primary problem with the Constitution, as opposed to the Constitution Center itself, is the way it has been continuously violated over the years, without redress.

The spirit of the Constitution is broken and the democratic will of the people violated every time a president is assassinated.

Presidents Lincoln, Garfield, McKinnley, Harding and Kennedy were all murdered while in office, the truths of their deaths were left a mystery, and at least in the case of Kennedy, government records are still being withheld from the public for reasons of national security.

Though technically unbroken, the Constitution only remains officially intact because of the provisions that allow for the Vice President to assume the powers of the presidency upon the death of the President, a little-discussed, but significant trigger and legal extra-Constitutional loophole that has been successfully utilized to seize power.

While these provisions allow for the uninterrupted continuation of the functions of government, when the President is brutally murdered and the Vice President is suspiciously implicated in the crime, as we have seen with Lincoln, McKinley and Kennedy, it is, in essence, a coup d'etat, the violent take over of the government.

Because the Constitution, as amended, requires the Vice President to automatically assume the position, authority and powers of the Presidency upon the death of the President, the new President also assumes control over the government's reaction to the murder, and the official investigations of it.

Staged photos of the swearing in of President Johnson aboard Air Force One, with the former first lady in her blood stained dress, were technically unnecessary, as LBJ automatically became President when JFK's head was blown open, but the photo psychologically demonstrated the succession of power to the public.

Even though new laws were enacted to ensure the public of the continuity of the government, the legality of Presidential succession and the security of the Constitution, the public's confidence in the government began to decline with the assassination of President Kennedy, and continues to do so. But it didn't begin with Kennedy.

GARFIELD

The conspired and premeditated murder of John F. Kennedy, the 35^th President of the United States in 1963, was politically based and orchestrated on the earlier McKinley model, and in some respects on what happened to Garfield.

As Maxim Armbruster points out in The Presidents of the United States (Horizon Press, NY, 1960, 1973), "When Chester Alan Arthur was nominated for Vice President; he was considered a nonentity, while Garfield was considered a man of statesman caliber."

Then on July 2, 1881 Garfield was shot at a Washington D.C. railroad station "by a fanatic of the Stalwart group who shouted Arthur was now President." The Stalwarts, Republicans opposed to the "Half-Breeds" who supported Garfield, were the main force behind a third term for Grant.

MCKINLEY and ROOSEVELT

Twenty years later, New York governor Teddy Roosevelt was nominated to be the Vice President candidate with William McKinley, a political move by his opponents to get Roosevelt out of the limelight. But that plan backfired when McKinley was assassinated on September 6, 1901 at the Pan Am Exposition in Buffalo, New York. McKinley was shot by a "glassy eyed anarchist" who was known to be a threat to the President, but not the Constitution, which remained intact with the elevation of Roosevelt to the Presidency.

McKinley had been the Spanish Civil War hero, and as Armbruster reports, "When, after McKinley's death, Roosevelt became President, he stated he would carry out McKinley's policies. Before long the country realized that the only policies he was interested in were Roosevelt policies."

HARDING

When Warren Harding died suspiciously after becoming sick on a train to California from Alaska, some blamed food poisoning, while others said it was a heart attack, but it effectively removed the man, tainted from the Teapot Dome scandal, from power, and elevated Calvin Coolidge to the Presidency. The Constitution remained intact.

JFK

The shooting of John F. Kennedy in broad daylight in front of hundreds of witnesses and filmed for posterity was not so much a coup d'etat as it was the coup d'grace. The real coup took place in August, 1960 in a Los Angeles hotel during the Democratic national convention when Lyndon Baines Johnson was maneuvered into the Vice President slot, against the determined efforts of Robert F. Kennedy.

Despite taking a stature of lower power and esteem than the one he already had as Speaker of the House in Congress, LBJ himself was convinced to be the candidate for Vice President by Texas governor John Connolly and Phil Graham, the publisher of the Washington Post. Johnson knew he would be too old to run for President after serving eight years as Veep, and only agreed to take the position when told one self-explanatory statistic – 20%, or one out of every five presidents have died in office. Johnson knew those odds could be improved to beyond a certainty. (See Clare Booth Luce's version of this story).

John Kennedy's father Joe Kennedy convinced his son to offer the Vice Presidency to LBJ, a logical choice to help win the southern states, but an offer that Johnson was expected to refuse. It was a strategic move that backfired, just as it had on Garfield and McKinley.

As Vice President, his only real responsibility was casting the tie breaking vote in the Senate, but LBJ was given many new responsibilities (ie. NASA). But it was reported (In the Dallas Morning News of November 22, 1963) that LBJ would be replaced on the ticket before the next election. This was thought to be certain after LBJ was implicated in the Bobby Baker scandal and Johnson may very well have been on the way out of power, until the President was suddenly shot and killed in broad daylight in downtown Dallas.

Suddenly the Vice President became the most powerful person in the world, with all the executive powers of the government behind him, and with LBJ, all the powers of the Presidency were in the hands of a mean, vile, vicious and power hungry man known to have had others killed.

LBJ's crimes, other than conspiracy and murder, also include perjury and treason, perjury committed while swearing an oath of office to uphold the Constitution of the United States.

NIXON and FORD BUSH and REGAN

I suspect the same model was used again during the Watergate era when Vice President Agnew was replaced by Rep. Gerald Ford, with the knowledge that Agnew was found to have accepted bribes as Governor of Maryland, and thus unsuitable to assume the sinking Nixon Presidency. Once it was realized that Nixon would have to resign, Ford was put in place to be able to succeed Nixon when he was forced to resign. Then again in 1980, Vice President George Bush was ready to succeed Ronald Regan had the assassination attempt at the Hinkley assassination attempt been successful.

CONSTITUTIONAL IMPERATIVE

TRUTH IN THE NAME OF NATIONAL SECURITY

The Constitution may have remained technically intact with the death of the President in office, but the spirit of the nation's democratic foundation is lost when the President is violently and publicly executed and the legal and judicial system allows the perpetrators to go unidentified and unpursued.

The only way to restore the public's confidence in their government is to release all of the government records related to the assassination and resolve the murder of the President to a legal and moral certainly.

It used to be that our national security depends on the truth remaining secret. Now our national security depends on the truth being revealed.

No other reason is necessary to justify the release of all the relevant records and the legal pursuit of those responsible other than it is a constitutional imperative, the laws were broken, and our national security depends on it.

BK

Edited June 3, 2008 by William Kelly

[William Kelly]

Comments and critiques welcome.

I am trying to make the case that regardless of what happened at Dealey Plaza, the failure to legally, hisorically and morally resolve the questions now endangers our national security, the very reason they use to keep evidence secret.

Am I really off base here?

Or am I on to something?

I'd appreciate some response, even if negative.

BK

[Michael Hogan]

Comments and critiques welcome.

I am trying to make the case that regardless of what happened at Dealey Plaza, the failure to legally, historically and morally resolve the questions now endangers our national security, the very reason they use to keep evidence secret.

Am I really off base here?

Or am I on to something?

I'd appreciate some response, even if negative.

BK

Bill, do you own Garrison's A Heritage of Stone? I think he addressed and predicted the same as eloquently as anyone has.

[William Kelly]

Comments and critiques welcome.

I am trying to make the case that regardless of what happened at Dealey Plaza, the failure to legally, historically and morally resolve the questions now endangers our national security, the very reason they use to keep evidence secret.

Am I really off base here?

Or am I on to something?

I'd appreciate some response, even if negative.

BK

Bill, do you own Garrison's A Heritage of Stone? I think he addressed and predicted the same as eloquently as anyone has.

Yes, Michael, I remember very distinctlly reading Jim Garrison's Heritage of Stone at the Ocean City NJ Library, and immediately recognizing it as important for some of the strategic insights - of his failures to prosecute Clay Shaw, and the tactical facts he develped and didn't bring out in court, but presented in the book - specifically things like the David Ferrie, G. Ray Gill, Jean Aase, Larry Meyers, Jack Ruby telephone connection - certifiable evidence that could hold up in court, if the case ever gets there.

But I guess I am failing in trying to make the case that the JFK assassination must be resolved in order to maintain our national security, a concept that I guess is hard to grasp, and unlikely to catch on.

BK

[Greg Parker]

Comments and critiques welcome.

I am trying to make the case that regardless of what happened at Dealey Plaza, the failure to legally, historically and morally resolve the questions now endangers our national security, the very reason they use to keep evidence secret.

Am I really off base here?

Or am I on to something?

I'd appreciate some response, even if negative.

BK

Bill, do you own Garrison's A Heritage of Stone? I think he addressed and predicted the same as eloquently as anyone has.

Yes, Michael, I remember very distinctlly reading Jim Garrison's Heritage of Stone at the Ocean City NJ Library, and immediately recognizing it as important for some of the strategic insights - of his failures to prosecute Clay Shaw, and the tactical facts he develped and didn't bring out in court, but presented in the book - specifically things like the David Ferrie, G. Ray Gill, Jean Aase, Larry Meyers, Jack Ruby telephone connection - certifiable evidence that could hold up in court, if the case ever gets there.

But I guess I am failing in trying to make the case that the JFK assassination must be resolved in order to maintain our national security, a concept that I guess is hard to grasp, and unlikely to catch on.

BK

Bill, I think you've done an exceptional job in making the case. I just haven't commented due to not only being an outsider... but one with very idiosyncratic ideas about national constitutions, bills of rights etc...

Keep at it. Words like yours are needed.

[Tim Gratz]

Bill wrote:

Johnson knew he would be too old to run for President after serving eight years

Well, tell that to John McCain.

[William Kelly]

Bill wrote:

Johnson knew he would be too old to run for President after serving eight years

Well, tell that to John McCain.

Yea, Right here in river city, Frank Lautenberg, who will be 91 if he finishes out his term, soundly defeated an upstart Congressman who focused on the age issue, which New Jersey voters apparently didn't think that important.

BK

[William Kelly]

http://www.philly.com/philly/hp/news_updat...erty_Medal.html

http://http://www.jpost.com/servlet/Satellite?cid=1212659730473&pagename=JPost%2FJPArticle%

2FShowFullwhttp://www.bizjour://http://http://www.jpost.com/servlet...p://www.bizjour://http://http://www.jpost.com/servlet...p://www.bizjour

Former Soviet President Mikhail Gorbachev will be awarded the 2008 Liberty Medal for his role in helping end the Cold War.

Gorbachev also gave hope to those living behind the Iron Curtain, National Constitution Center officials said in announcing the award Friday. Gorbachev will receive the award Sept. 18 at the Constitution Center. It will be presented by former President George H.W. Bush, who led the US at the time the Soviet Union collapsed in 1991.

Bush is chairman of the board of the Constitution Center; he was awarded the Liberty Medal in 2006, along with former President Bill Clinton, for their efforts to aid Gulf Coast victims of Hurricane Katrina through the Bush-Clinton Katrina Fund.

The National Constitution Center gives the annual award to individuals or organizations whose actions represent the founding principles of the US The medal was first awarded in 1989. Constitution Center President Joseph M. Torsella recalled Friday how Gorbachev phoned Bush as the Soviet flag was being lowered at the Kremlin for the last time.

[William Kelly]

Gorbachev on the Grassy Knoll

In 1998, when I got to Dallas in November for an anniversary conference on the assassination, Bob Groden gave me a ride from the airport and told me that Gorbachev had been to town and visted the Grassy Knoll and picked up a copy of his book.

I also learned that Gorbachev visited the Sixth Floor Museum where he signed the guest book in a very telling fashion:

"I've long been interested in the life of John F. Kennedy. He was certainly a great president of the United States. For us who live in a complicated time of transition of great importance is the vision of John F. Kennedy, his thoughts about peace and about how to live in the world."

"President Kennedy' remarks on June 10, 1963 at American University are of even greater importance today than then. Thirty five years ago he already saw what we have come to understand only now."

"The best memory of this man would be to understand his deeds and thoughts and to translate them in policies and more importance in the life of nations. He looked far ahead and he wanted to change a great deal. Perhaps it is this that is the key to the mystery of the death of President John Kennedy."

Signed

The President of the USSR

Mikhail Gorbachev

October 12, 1998

Courtesy the Sixth Floor Museum at Dealey Plaza

Thanks to Gary Mack

Edited June 19, 2008 by William Kelly

[William Kelly]

So Gorby has a new Green foundation that's run out of California, and uses the occassion of receiving the Philadelphia Constitution Center Freedom Medal as an opportunity to bash the USA and defend Russian imperialism?

I wished he would have said something about political assassination and open records.

Bono won it last year.

BK

Gorbachev on the Grassy Knoll

In 1998, when I got to Dallas in November for an anniversary conference on the assassination, Bob Groden gave me a ride from the airport and told me that Gorbachev had been to town and visted the Grassy Knoll and picked up a copy of his book.

I also learned that Gorbachev visited the Sixth Floor Museum where he signed the guest book in a very telling fashion:

"I've long been interested in the life of John F. Kennedy. He was certainly a great president of the United States. For us who live in a complicated time of transition of great importance is the vision of John F. Kennedy, his thoughts about peace and about how to live in the world."

"President Kennedy' remarks on June 10, 1963 at American University are of even greater importance today than then. Thirty five years ago he already saw what we have come to understand only now."

"The best memory of this man would be to understand his deeds and thoughts and to translate them in policies and more importance in the life of nations. He looked far ahead and he wanted to change a great deal. Perhaps it is this that is the key to the mystery of the death of President John Kennedy."

Signed

The President of the USSR

Mikhail Gorbachev

October 12, 1998

Courtesy the Sixth Floor Museum at Dealey Plaza

Thanks to Gary Mack

[William Kelly]

Since writing Crack in the Constitution, I've thought more about the idea of why the murder of JFK is investigated differently than any other homicide, and the reason is more than the just the fact he was president.

It seems to me that those who killed JFK and set up Oswald as the Patsy ahead of time, originally wanted the "Cuban Commie Conspiracy" to be self-evident and possibly spark an invasion of Cuba. That's a Black Propaganda Operation - blaming the covert action on the oppossition, and as the assassination itself was a covert op it was plausibly deniable See: James Douglas Dallas COPA 2009).

But those who took over the government became responsible for the coverup and switched tactics, or used the multiple choice options that Oswald presented, and decided that they were not going to go with the "Cuban Commie Conspiracy" and instead opt for the "Lone Nut Loser" contingency at an early stage in the proceedings, certainly before the autopsy.

This strategic change in tactics from the highest levels of those who have assumed the new powers is reflected in the radio transmission from McGeroge Bundy in the White House Situation Room to AF1 saying that the assassin had been captured and there was no conspiracy. That this portion of the conversation is not included on the existing tape and transcript says something, as does the fact that this message originated from DC and not Dallas, where it should have come from if it was true.

By establishing the Warren Commission, which was only responsible for issuing a report, and without the capability of indicting anyone even if they found a conspiracy, LBJ headed off the real legal and judicial system from working. This not only protected those responsible for the assassination as well as the assassins, it also protected those responsible for the coverup and who executed such crimes as destruction of evidence, tampering with evidence and perjury.

When that DOD secretary, (Tripp) at the suggestion of the NARA instigator journalist (x), secretly tape recorded Monica Lowenski admitting she had sex with President Clinton, she didn't realize it was against the law to do such a thing in the state of Maryland. When this came out at the Congressional hearings, the DA of Maryland presented the Congressional hearing testimony before a Maryland Grand Jury and had Tripp indicted for the crime.

When two people crashed a private White House party-reception, the DA of DC called them before a Special Federal Grand Jury to testify to determine if any laws had been broken.

But when government employees willfully destroy, or are ordered to destroy evidence in the assassination of President Kennedy, or tamper with evidence, create false evidence, or perjur themselves under oath, nothing happens.

No grand jury, no testimony, no questioning of those who have in fact broken a law that if prosecuted, could lead to others involved in the intelligence network responsible for the assassination of President Kennedy.

That's the way former DA Richard Sprague was approaching his investigation of the assassination. When Dick Russell asked Sprague why he hadn't called some mafia bosses and top CIA guys, he said that the way the system works is that you build a case around the suspected targets of the investigation because you need to build some small cases first in order to get links in the chain to turn states evidence and testify to the truth. And the only way you can do that is to get them for smaller crimes, like destruction of evidence, tampering with evidence and perjury.

And we have plenty of those in the JFK assassination, but noone is following up on them.

Why is that?

Does the Constituion only work for ordinary people, but not for Presidents?

How do you get the Constitution to Kick In and Work as it Should, especially if it is a living and acting document as they say it is?

William Kelly

[John Dolva]

http://www.nytimes.com/1985/12/29/books/ph...mp;pagewanted=2

''Richard M. Nixon, then in private practice, argued the case for Mr. Hill in the Supreme Court. The ''conservative'' politician found an intensely sympathetic audience in a ''liberal'' judge, Justice Fortas, who wrote with passion about the excesses of the press. His unpublished opinion also included an eloquent statement of the constitutional basis for a right of privacy - a more compelling statement, I think, than in any published opinion on this issue.

A majority voted in conference to uphold the New York judgment for Mr. Hill. Chief Justice Earl Warren, who was in the majority, assigned the opinion to Justice Fortas. But it was not a firm majority. Doubts aroused by the dissents led the Court to put the case down for re-argument the next term. In the end five justices supported the Brennan opinion, reversing the judgment for Mr. Hill. Justice Fortas's dissent was joined by the Chief Justice and Associate Justice Tom C. Clark. Justice Harlan also wrote an opinion, dissenting in part."

...

http://www.presidency.ucsb.edu/ws/index.ph...a&st1=nixon

http://www.presidency.ucsb.edu/ws/index.ph...a&st1=nixon

The question of my own testimony, however, is another matter. I have concluded that if I were to testify before the Committee irreparable damage would be done to the Constitutional principle of separation of powers. My position in this regard is supported by ample precedents with which you are familiar and which need not be recited here. It is appropriate, however, to refer to one particular occasion on which this issue was raised.

In 1953 a Committee of the House of Representatives sought to subpoena former President Truman to inquire about matters of which he had personal knowledge while he had served as President. As you may recall, President Truman declined to comply with the subpoena on the ground that the separation of powers forbade his appearance. This position was not challenged by the Congress.

It is difficult to improve upon President Truman's discussion of this matter. Therefore, I request that his letter, which is enclosed for the Committee's convenience, be made part of the Committee's record.

The Constitutional doctrine of separation of powers is fundamental to our structure of government. In my view, as in the view of previous Presidents, its preservation is vital. In this respect, the duty of every President to protect and defend the Constitutional rights and powers of his Office is an obligation that runs directly to the people of this country.

http://www.presidency.ucsb.edu/ws/index.ph...a&st1=nixon

Dear Secretary Shultz:

I hereby direct that no officer or agent of the Secret Service shall give testimony to Congressional committees concerning matters observed or learned while performing protective functions for the President or in their duties at the White House.

This applies to the Senate Select Committee which is investigating matters relating to the Watergate break-in and the current efforts which I am informed are being made to subpoena present or former members of the White House detail of the Secret Service.

You will please communicate this information to the Director of the Secret Service promptly and either you or he should then personally notify the Chairman of the Senate Select Committee. You should further advise the Chairman that requests for information on procedures in the White House will be given prompt consideration when received by me.

Sincerely,

RICHARD NIXON

http://www.presidency.ucsb.edu/ws/index.ph...a&st1=nixon

What is commonly referred to now as "executive privilege" is part and parcel of the basic doctrine of separation of powers--the establishment, by the Constitution, of three separate and co-equal branches of Government. While many functions of Government require the concurrence or interaction of two or more branches, each branch historically has been steadfast in maintaining its own independence by turning back attempts of the others, whenever made, to assert an authority to invade, without consent, the privacy of its own deliberations.

Thus each house of the Congress has always maintained that it alone shall decide what should be provided, if anything, and in what form, in response to a judicial subpoena. This standing doctrine was summed up in a resolution adopted by the Senate on March 8, 1962, in connection with subpoenas issued by a Federal court in the trial of James Hoffa, which read: "Resolved, that by the privileges of the Senate of the United States no evidence under the control and in the possession of the Senate of the United States can, by the mandate of process of the ordinary courts of justice, be taken from the control or possession, but by its permission . . .". More recently, in the case of Lt. William Calley, the chairman of the House Armed Services subcommittee refused to make available for the court-martial proceeding testimony that had been given before the subcommittee in executive session--testimony which Lt. Calley claimed would be exculpatory. In refusing, the subcommittee chairman, Representative Hebert, explained that the Congress is "an independent branch of the Government, separate from but equal to the Executive and Judicial branches," and that accordingly only Congress can direct the disclosure of legislative records.

Equally, the Judicial branch has always held sacrosanct the privacy of judicial deliberations, and has always held that neither of the other branches may invade Judicial privacy or encroach on Judicial independence. In 1953, in refusing to respond to a subpoena from the House Un-American Activities Committee, Justice Tom C. Clark cited the fact that "the independence of the three branches of our Government is the cardinal principle on which our Constitutional system is founded. This complete independence of the judiciary is necessary to the proper administration of justice." In 1971, Chief Justice Burger analogized the confidentiality of the Court to that of the Executive, and said: "No statute gives this Court express power to establish and enforce the utmost security measures for the secrecy of our deliberations and records. Yet I have little doubt as to the inherent power of the Court to protect the confidentiality of its internal operations by whatever judicial means may be required."

These positions of the Courts and the Congress are not lightly taken; they are essential to maintaining the balances among the three branches of Government. Equal firmness by the Executive is no less essential to maintaining that balance.

The general applicability of the basic principle was summed up in 1962 by Senator Stennis, in a ruling upholding President Kennedy's refusal to provide information sought by a Senate subcommittee. Senator Stennis held: "We are now come face to face and are in direct conflict with the established doctrine of separation of powers .... I know of no case where the Court has ever made the Senate or the House surrender records from its files, or where the Executive has made the Legislative Branch surrender records from its files--and I do not think either one of them could. So the rule works three ways. Each is supreme within its field, and each is responsible within its field."

If the institution of an impeachment inquiry against a President were permitted to override all restraints of separation of power, this would spell the end of the doctrine of separation of powers; it would be an open invitation to future Congresses to use an impeachment inquiry, however frivolously, as a device to assert their own supremacy over the Executive, and to reduce Executive confidentiality to a nullity.

My refusal to comply with further subpoenas with respect to Watergate is based, essentially, on two considerations.

First, preserving the principle of separation of powers--and of the Executive as a co-equal branch--requires that the Executive, no less than the Legislative or Judicial branches, must be immune from unlimited search and seizure by the other co-equal branches.

Second, the voluminous body of materials that the Committee already has--and which I have voluntarily provided, partly in response to Committee requests and partly in an effort to round out the record--does give the full story of Watergate, insofar as it relates to Presidential knowledge and Presidential actions. The way to resolve whatever ambiguities the Committee may feel still exist is not to pursue the chimera of additional evidence from additional tapes, but rather to call live witnesses who can place the existing evidence in perspective, and subject them to cross-examination under oath. Simply multiplying the tapes and transcripts would extend the proceedings interminably, while adding nothing substantial to the evidence the Committee already has.

Once embarked on a process of continually demanding additional tapes whenever those the Committee already has failed to turn up evidence of guilt, there would be no end unless a line were drawn somewhere by someone. Since it is clear that the Committee will not draw such a line, I have done so.

One example should serve to illustrate my point. In issuing its subpoena of May 15, the Committee rested its argument for the necessity of these additional tapes most heavily on the first of the additional conversations subpoenaed. This was a meeting that I held on April 4, 1972, in the Oval Office, with then Attorney General Mitchell and H. R. Haldeman. The Committee insisted that this was necessary because it was the first meeting following the one in Key Biscayne between Mr. Mitchell and his aides, in which, according to testimony, he allegedly approved the intelligence plan that led to the Watergate break-in; and because, according to other testimony, an intelligence plan was mentioned in a briefing paper prepared for Mr. Haldeman for the April 4 meeting. Committee members made clear their belief that the record of this meeting, therefore, would be crucial to a determination of whether the President had advance information of the intelligence activities that included the break-in.

As it happens, there also was testimony that the ITT matter had been discussed at that April 4 meeting, and the Committee therefore also requested the April 4 conversation in connection with its ITT investigation. On June 5, 1974, a complete transcript was provided to the Committee for the purposes of the ITT probe, together with an invitation to verify the transcript against the actual tape. This transcript shows that not a word was spoken in that meeting about intelligence plans, or about anything remotely related to Watergate--as the Committee can verify.

I cite this instance because it illustrates clearly--on the basis of material the Committee already has--the insubstantiality of the claims being made for additional tapes; and the fact that a Committee demand for material does not automatically thereby convert the requested material into "evidence."

As for your declaration that an adverse inference could be drawn from my assertion of Executive privilege with regard to these additional materials, such a declaration flies in the face of established law on the assertion of valid claims of privilege. The Supreme Court has pointed out that even allowing comment by a judge or prosecutor on a valid Constitutional claim is "a penalty imposed by courts for exercising a Constitutional privilege," and that "it cuts down on the privilege by making its assertion costly." In its deliberations on the Proposed Federal Rules of Evidence, the House of Representatives-in its version--substituted for specific language on the various forms of privilege a blanket rule that these should "be governed by the principles of the Common law as they may be interpreted by the courts of the United States in light of reason and experience .... "But as adopted in 1972 by the Supreme Court-the final arbiter of "the principles of the Common law as . . . interpreted by the courts," and as codification of those principles-the Proposed Federal Rales clearly state: "The claim of a privilege, whether in the present proceeding or in a prior occasion, is not the proper subject of comment by judge or counsel. No inference may be drawn therefrom."

Those are legal arguments. The common-sense argument is that a claim of privilege, which is valid under the doctrine of separation of powers and is designed to protect the principle of separation of powers, must be accepted without adverse inference---or else the privilege itself is undermined, and the separation of powers nullified.

A proceeding such as the present one places a great strain on our Constitutional system, and on the pattern of practice of self-restraint by the three branches that has maintained the balances of that system for nearly two centuries. Whenever one branch attempts to press too hard in intruding on the Constitutional prerogatives of another, that balance is threatened. From the start of these proceedings, I have tried to cooperate as far as I reasonably could in order to avert a Constitutional confrontation. But I am determined to do nothing which, by the precedents it set, would render the Executive branch henceforth and forevermore subservient to the Legislative branch, and would thereby destroy the Constitutional balance. This is the key issue in my insistence that the Executive must remain the final arbiter of demands on its confidentiality, just as the Legislative and Judicial branches must remain the final arbiters of demands on their confidentiality.

Sincerely,

RICHARD NIXON

(BTW Crack in the constitution is apt from the point of view of the powder packing Bush and the Iran Contra Drugs matters)