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The Augusta News-Review - August 23. 1973 -
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The present supreme court tends to support
SENATOR SAM ERVIN’S COMMITTEE AGAINST PRESIDENT
NIXON IN THE BATTLE OF THE TAPES. IN 1972, THE HIGH
COURT TOOK A STAND IN THE BRANZBURG V HAYES
LITIGATION, BETTER KNOWN IN THE TRADE AS THE
CALDWELL CASE, WHERE NEWSPAPERMEN WERE
ORDERED TO DISCLOSE THEIR SOURCES TO THE GRAND
JURY.
President Nixon is standing hard by what he thinks is his
constitutional confidentiality to save the powers and prerogatives
of the presidency. Thus he will not relinquish his White House
papers and tapes. The President evidently holds that he is doing
nothing less than defending the Constitution and the separation of
powers in the same manner of all his predecessors. The entire
civilized world is wondering if the President’s stand is basicly sound.
It is a rarity in this country that a court or a Congressional
Committee has called for a President’s testimony. There is no
known president on a direct question whether the separation of
powers shelters the presidency from compulsory process by the
Judiciary or the Congress. Nevertheless, the President has a strong
argument.
The most famous case goes back to 1807, when tough-minded
Chief Justice John Marshall, sitting in circuit as judge in the famous
trial at Richmond Virgina of Aaron Burr for treason. The Chief
Justice subpoenaed President Thomas Jefferson, in doing so
Marshall began by stating that it is not incompatible with
presidential diginity for Jefferson to submit to the voice of the
courts. The English principle that the King could do no wrong, did
not apply to he United States where the President could be
impeached, and removed from office.
The crusty Jurist contended that the President may be
subpoenaed, and examined as a witness, and required to produce
any paper in his possession. This tough edict was reinforced with a
dogmatic reminder that this order was not controverted. Os course
many legal and moral axioms have been eroded over the years.
President Jefferson certainly could not contest the principle layed
down by the Chief Justice without saying in part that the President
could do no wrong. But he was damned if he would go to
Richmond. What he did was to send a deposition.
Mr. Jefferson contended that a President had a higher obligaiton
to the particular set of duties imposed on him. In short, his theory
was that the President was not above subpoenas, but no rational
person would expect the President to abandon his superior duties at
will. If a President was forced to honor every subpoena, the courts
would be forcing a breach of separation of powers, and keep the
President hopping to and fro, anywhere his enemies so desired.
The 1807 incident ended with Chief Justice Marshall establishing
the rights to subpoena the President, and President Jefferson
standing on his presidential rights not to show up. Marshall, in other
words, had said that the President was subject to the same law as
anybody else; and President Jefferson said, that’s partly true, but
the President also had more solemn responsibilities than other
people. Both Marshall and Jefferson were surely correct. The
answers always are in he tact of finding a sensible balance,
somewhere in etween.
PRESIDENT ANDREW JOHNSON KEEPING THE SOUTH IN
LINE
Sixty years after the Justice Marshall-President Thomas
Jefferson tangle, the state of Mississippi tried to enjoin President
Johnson from enforcing the Reconstruction laws. The case wnet to
he Supreme Court, which declared that Johnson was immune from
judicial jurisdiction in carrying out the laws arising out of the Civil
War. But the High Court ruled that the President was not exempt
from judicial or legislative process.
The Court stated that carrying out the law was an official duty;
breaking it, for example, is not. The Federal Attorney-General
argued “that the President’s case put it to the Court, he was not
relying upon any personal immunity that the individual who
happens to be President; upon any idea that he cannot do wrong, nd
upon the idea that there is any paricular sanctity belong to him. As
is the case with one who has royal blood in his veins.”
This decision did not set a precedent holding that a President was
never to appear in a court of law. Johnson’s successor, President
Grant, wanted to testify as a witness for the defense when his
private secretary was prosecuted by his own Department of Justice,
and he did file a deposition in the unfortunate General Bobcock's
behalf.
It can be plainly seen that the separation of powers has never
been conceived as inhibiting all direct intercourse between
President and Congress. President George Washington on a
momentous occasion in 1789 went to Congress to ask its advice on a
tready. The Congress was outraged by the President coming to
them, it discouraged him from doing that again
3 THE GREAT MAN HONORED THE CONGRESS WITH HIS
PRESENCE -
President Abe Lincoln, the great Emancipator went before the
House Judiciary Committee in 1862 to discuss the leak of his
State-of-the-Union message to The New York Herald, and he also
went to a session of the Committee on Conduct of the War to deny
that his wife was a Confederate spy. Many Presidents have invited
committees of Congress to talk at the VTiite House.
Many of the Presidents in the past have looked forward to going
before the committees and the entire Congress. But President
Andrew Jackson was not one of these. He was the stoutest of all
defenders of the presidential prerogative. 1846 Another President
tangled with the lower branch of Congress. It was President James
K. Polk, another hard champion of the presidency. The House of
Representatives requested him to tum over information about
secret intelligence operations conducted by the previous
administration.
President Polk, like President Nixon, refused to do so. Mr. Polk
pointed out a complex constitutional situation, if he yielded to he
Congressional demand. President Polk wanted to know what was
Congress’ intent in this information. He feared this probe swould
penetrate too far into the most secret recesses of the Executive
Department.
Mr. Sam’s Committee had better think out this current
confrontation or it just might put the nation in a totally irreparable
condition.
THE AUGUSTA NEWS-REVIEW
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. By J ►
Verno" E. Jordan, Jr. g/ k
IN MEMORIAM, GEORGE WILEY
George Wiley’s sudden death in a boating accident was a terrible
blow to all who shared his passionate concern for equal rights. What
follows are excerpts from my remarks at the moving memorial
service held in his memory in Washington, D.C.:
“George transcended the mean barriers of a racialist society to
make all of this society’s victims his concern and all will miss him.
Wewill miss him as we miss Martinis we mourn Whitney, as we miss
other great warriors of justice. George’s death leaves a gaping void in
our ranks . . . That George must join the long line of fighters for
justice untimely ripped from us, tries our faith and tests our will.
“With souls heavy, we must carry on. Just as did when we lost
Martin; just as we did when we lost Whitney. We must carry on the
work of George’s life, even as he has left it; we must work from his
blueprints, flesh out his sketches and breathe life into his plans. We
must continue to plod the weary path of righteousness and fight the
evils he fought; help the people he helped.
“In doing this , we must be ever reminded of what was unique
about this man, what was special about his leadership, which roads
he trod and we should follow.
“George understood the underlying dynamics of social
movements. He knew that human rights could be won through
different tactics, so long as the overall strategies were based on
humane principles of justice without hatred, unity without
uniformity, progress without vengeance.
“It was his special gift to understand that attempts to change a
system of exploitation demand a variety of roles and functions that
must be assumed by a variety of people and organizations working
in harmony toward the same ends.
“It was his special gift to know that while race has been the most
divisive factor in this country, used to oppress black people and to
keep them from joining with their white brothers, that the
structures of racial oppression would fall before the onslaughts of
economic justice.
“George knew that poverty afflicts blacks and browns, but that it
also scars the lives of whites, too. And he set for himself the task of
bringing poor people of all races together in a movement for
economic justice. He fought to tear down the barriers, the artificial
barriers of color and of race, the barriers that enslave millions in
their wretchedness and poverty. He fought to help create a society
in which children didn’t go hungry, women go homeless and men go
jobless.
“Now it is we who must carry on his fight, keep his dreams before
us as we march into the dark and unknown future. It is we who must
help bring about the economic justice George tried to secure for
millions upon millions of poor Americans. It is we who must
rekindle the faith he had that this system can change, that it can be
made, in spite of itself, to change. It is we who must keep alive the
flickering flame of belief in peaceful change that restores this nation
to its allotted place as home of humanity, dignity and fulfillment.
“It is we who must bear witness to the lessons Goerge taught us. For
above all, George was a teacher. He chose to abandon his test tubes,
taking his Ph.D. into the human laboratory of social action,
teaching people pride and respect. He went among our society’s
outcasts and taught them there was no shame in welfare, that the
shame lay in an economic system that forces people into
dependence. And he taught that the evil was not in taking the
check, but in the fact that the check wasn’t large enough and that it
came with so many strings attached and that the society unfairly
condemned as it gave. He organized welfare recipients and created
an organization self-confident in it pursuit of decency and fairness.
“Yes, George taught us lessons, but he also has left us some
homework to do. He dissected our society and showed us where it is
diseased. He organized a new constituency of people newly active in
the human rights movement. He created a dynamic new thrust for
us to follow. This, his legacy, his unfinished legacy, is the
homework our good teacher left us.”
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JIM HINTON’S RELATIVE IS HIGH FEDERAL OFFICIAL
Subject for today’s column is a special feature article in the
travel section of the Sunday N.Y. Times. It is all about Miss
Barbara Watson, a high State Dept, official who has to do with
visas and passports. She is a sister-in-law of Augusta’s Attorney
James Hinton
NOTES: TRAVEL TROUBLES ARE HER BUSINESS
With about eight million Americans traveling abroad this year
and another 1.5 million living overseas, many of the 250
consular offices of the United States around the world are
being kept pretty busy these days. It is to these offices that
Americans abroad take their problems. They may have lost
their passports, or lost their money, or they may have been
robbed, or found themselves stranded, or they may need
medical attention or legal advice, or they may be unable to find
their missing spouses. Worst of all, they may have run afoul of
the narcotics laws.
Busy though the personnel in the consular offices may be,
the woman who supervises them all, Miss Barbara M. Watson,
urges American travelers in other countries to take full
advantage of them. “All those in serious need of assistance or
advice are welcomed,” Miss Watson said in her Wasington office
the other day, “and, in some instances, at least, consular offices
can supply invaluable and even life-preserving advice.”
Miss Watson is Administrator of the Bureau of Security and
Consular Affairs, which directs visa and passport matters in
addition to its responsibility for a variety of consular services.
She is the first woman, and the first black person, to hold such
a senior position in he State Department.
The nation’s number one travel-problem solver is a native of
New York City and the duaghter of the late Judge and Mrs.
James S. Watson. Her father was the first black person elected
to a judgeship in New York. Miss Watson, who graduated from
New York Law School, joined the State Department in 1966.
Commenting on the number of Americans who get into some
kind of trouble while overseas, she said, “In many cases this is
due to nothing more than a lack of knowledge of local
customs, mores and language.” The more serious incidents
ususally involve Americans who are arrested, andof these she
points out: “It comes as a shock to many Americans, who feel
that all they have to do is to say that they are Americans and
they will be let free or, at worst, will be tried under American
law, to discover that this is not the case at all.”
What can the consulate do? It can help, says Miss Watson, by
making sure that those arrested “understand the nature of the
charge” and by providing a list of local attorneys. It can also
insure that jailed Americans are not discriminated against and
are given the same rights available to local citizens.
A happier task for the consular offices, which are located
127 countries and staffed by 2,000 American and local
employes, is to advise Americans planning to buy property in
other countries. The consulates maintain lists of local attorneys
who can insure that buyers’ interests are protected. To be safe,
Miss Watson advises, potential buyers should acquaint
themselves with the legal requirements. “Otherwise,” she says,
“they may discover too late that the property they ‘purchase’
will one day not be theirs any more-if it ever was.”
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