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It is not only my case which is at stake here. There are many people like me. Look at the history of this country. There are many others, many ethnic groups, many foreigners, many oppressed Americans, who have been condemned and shall be condemned like me in the future. In this way, Government will continue to abuse innocent people. I feel that a movement must be created to stop these injustices once and for all.

[Applause.]

Senator DECONCINI. Mr. Chairman, I will cease, and I thank the chairman for his courtesy.

I can only say that having been a prosecutor, and literally prosecuted dozens of defendants, never once did I have one where the jury returned the verdict and the defendant said that yes, I am guilty. I think that is most inherent in human nature, to want to defend yourself, and I admire you, Reverend Moon, for defending yourself. That is part of our system, and you have every right to do that, and to continue to claim your innocence, regardless of any change in the appeal system.

But I also have to say for the record that I think there is a contradiction here, that you cannot have it both ways. You cannot have the freedoms of America, when the jury trial turns out the way you want it, and condemn the whole system when it turns out in a way that does not favor you.

It seems to me your grievance here is more with the Internal Revenue Service. It is a problem with which I am very sympathetic as many of my constituents have had problems with the Internal Revenue Service. That is where the complaint should lie, not with our criminal justice system, and not with a trial by jury. Notwithstanding your conviction, the little bit I know about it, it seems that you had a fair trial. Unfortunately, it did not turn out that way in your beliefs, and in the beliefs of your followers. There may be a problem with the underlying investigation and the prosecution that brought you to the trial, and that to me is worthwhile delving into.

Thank you, Mr. Chairman.

Senator HATCH. Well, if I could add something to it, I used to defend some of these cases in Federal court, and I cannot ever recall a case where, when the defendant, in his best interest, for his own protection, asked for a nonjury trial, where the prosecutor came in and demanded a jury trial.

Now, I am sure that there are

[Applause.]

Senator HATCH. Now, I am sure there are instances, and the prosecution apparently has the right to do it, but that is one of the Constitutional issues that was raised in this case, rightly or wrongly was, and I think rightly, was whether or not the defendant has the right to make that determination, and I think it is a case of first impression, which basically has been denied by the lower courts, and certiorari has been denied by the Supreme Court, but it has not resolved that question.

My concern with your case, Reverend Moon, my concerns, I should say, of course, are based on the U.S. Constitution, specifically the first amendment.

Now, I believe, among other things, that the trial judge should have cautioned, and instructed the jury to not, under any circumstances, substitute its lay views, of the jury members, for the good faith position taken by your own church. I think that was a mistake. I think it was wrong, I think it was a legal error. I think it was constitutional error.

In fact, the judge specifically instructed the jurors to disregard religion entirely in this matter, and I am sure he did that, in my reading of the sterile record, I believe that he did that, because he was worried about this backlash and this problem that Reverend Moon has with a large minority of the people in America at the particular time, and perhaps the prejudices that existed at the time. So he probably did that for the best of purposes, but in this particular case, whether you were entitled to hold these funds in trust, or these properties in trust, was a major issue, and in this particular case you cannot divorce that from the consideration of religion, and I cannot blame you for not wanting a jury trial when the polls were showing that most people in this country were somewhat prejudiced against you.

I do not know that I can blame the prosecutor for demanding a jury trial, knowing that fact, but I think it is a significant constitutional issue whether the defendant in a country where the defendant's rights are always held paramount over the rights of the prosecution, that his rights should be solicitously guarded, that he should not have the right to have a trial before a newly nominated, and confirmed and sitting Federal judge.

So those are important issues, and I did not interpret, Senator DeConcini, Reverend Moon's comments to mean that he does not trust the jury system in this country. I think he does. I think what he was concerned about is could he get a fair trial with the attitude that was permeating our media, rightly or wrongly, and our country, with regard to his own church. And I think his point is a good point, coming from a minority religion, which is now the fifth largest in the United States of America, but in its day it was a distinct minority religion.

I know that some of our church leaders did not have a very good opportunity for a fair trial, and would not have had under those circumstances. So I do not think-I hope you are not criticizing the criminal justice system of the country, or the jury system, in which both Senator DeConcini and I have profound beliefs.

But I do think that this is a unique situation that really deserves some constitutional consideration.

Yes.

Reverend MOON [through interpreter]. Mr. Chairman, Reverend Moon asked me to thank you for your comment, also, Senator DeConcini, thank you for your care and concern, and we both thank you.

Senator HATCH. I want to thank both of you for being here. I think it has taken a great deal of courage for you to appear at this particular hearing.

Your statement was articulate and eloquent, from your perspective. I cannot tell you what will happen in your case. It appears that most things that can happen, have happened. But I will say that I am deeply concerned about some of the constitutional ramifi

cations of your case, and I am even more deeply concerned that many people in our country feel so incredibly upset about certain agencies of our country, and I wish that we could have all of our agencies operate in such a reasonable and fair way that all of us would feel good about them.

But I want you to know you have this committee's respect for appearing here today. I think you have added a great deal to this hearing. Whether people agree with you or disagree with you, you have exercised your rights to testify in public in the freest of all lands, and that we have to have respect for.

So I want to thank you for taking time to be with us.
Thank you, Colonel Pak, as well.

Reverend MOON [through interpreter]. Mr. Chairman, could I have one small request to make as a conclusion?

Senator HATCH. Surely.

Reverend MOON [through interpreter]. To you, Mr. Chairman, with the help of your committee members, such as Senator DeConcini, that small request is, that I understand the Department of Justice prepared a so-called prosecution memorandum on my case. The prosecution memo prepared by the Criminal Tax Division of the Justice Department recommended that the U.S. Government should not indict Reverend Moon, because their professional opinion was that there was no criminal case there. This was the unanimous opinion of three lower echelons of the Justice Department, if I understand correctly.

In an unusual move, these three levels of attorneys were ordered to do the second review. They reviewed a second time, and still recommended against prosecution. Their recommendation then went up to a high-level, political appointee, with no criminal tax experience, who reversed all the recommendations of his own people, and authorized prosecution by the U.S. attorney in New York, without giving any good reason.

Mr. Chairman, and Senator DeConcini, I am sure the American public, and the religious community would like to know the truth here, and the American media want to know the truth, I am sure.

Could you kindly use your good offices to request the Department of Justice to produce a copy of that memorandum? This would lend credibility to the claim of the religious community that the Federal Government is violating the first amendment, separation of church and State. Furthermore, exposure of this document will show to the world that my prosecution was politically motivated, and there was a conspiracy by certain Government officials to get Reverend Moon.

The world wants to know the truth. And furthermore, I would like to say, Mr. Chairman, in addition to the speech that I gave today, and the prepared text of the speech I would like to request that the Congressional Record be kept open for 30 days, so that I might introduce a longer statement for the record.

Mr. Chairman, I salute you once again for your courage and righteousness in standing up for religious freedom. Thank you very much. God bless you.

Senator HATCH. Thank you.

We will keep the record open for that period of time, and we would also solicit comments from other religious leaders, as well,

concerning their particular concerns and support for religious freedom in America.

We, by necessity, could only have so many witnesses here today, and we may have to hold additional hearings on this subject, which seems to have a great deal of interest, and certainly should have a great deal of interest.

But, again, sir, we are grateful that you have taken time to be with us today, and we appreciate receiving your statement and testimony here today.

Thank you so much.

Reverend MOON. Thank you for your kindness. God bless Amer

ica.

Colonel PAK. Thank you, Mr. Chairman.
Thank you. [Applause.]

Senator HATCH. We were going to call at this time Dr. Bob Jones, Jr., the chancellor of Bob Jones University from Greenville, but this morning he called and said he could not be here. So we will skip over him.

Senator HATCH. I would like now to ask Mr. Tribe and Mr. Ball to reassume their places at the table to discuss again, from the standpoint of the first amendment, some of the issues, viewpoints, and suggestions brought out in the testimony by these past several witnesses.

While they are taking their places, I might mention that following, Mr. Ball and Mr. Tribe we will receive testimony from several other emminent religious leaders, scholars, and participants in the administration of churches, who may also wish to comment on some of the testimony we have received from several of our past witnesses.

Let us turn the time over to you gentlemen today and why do we not start again with you, Mr. Tribe, and then we will go to Mr. Ball.

Mr. TRIBE. Thank you, Mr. Chairman.

If you would like me to make a couple of statements in reaction to what we heard, I would be glad to, or if you have particular questions, I will be glad to try to answer them.

Senator HATCH. Well, we would love to have some of your statements, if you could keep them to a minimum, I would appreciate it, but then I would have some questions for you.

Mr. TRIBE. I would be glad to.

Let me first say a word or two about Senator DeConcini's concern about the criminal justice system and the fairness of the jury. I am sorry that he had to leave, but I am sure he will have an opportunity to look at the transcript of these remarks.

I think the premise of his remarks was that the jury is always the fairest mode of trial. Yet the premise of the American legal system-at least since 1930, when the U.S. Supreme Court, in United States v. Patten, held that a jury is not mandatory where it has been waived-the premise of our legal system is really very much to the contrary. The premise of our system is that the defendant has a right to a jury of his peers, and ordinarily that is fairer. But in extraordinary cases, in cases of extreme bias, or blindness, it has long been the assumption of the system an accused may have a right to waive a jury, and to submit his case to

an unbiased life-tenured Federal judge, who does not have to risk the wrath of friends and neighbors. Thus, in 1965, in the case of the United States v. Singer, the Supreme Court left open a very profound question: namely, whether there are not some circumstances of defendants whose individual character or cause is so controversial and so unpopular that they should have a right to be tried by a judge.

Now, in my view, Reverend Moon's was such a case. In fact, the trial judge himself in that case made a rather important statement. He said he thought, after hearing the prospective jurors, that it would be fairer to answer Senator DeConcini's precise question-fairer for this case, involving as it does sensitive and symbolically difficult issues of religious freedom, to be tried without a jury. And yet he felt he was powerless, in light of the prosecution's insistence that a jury be used, to act on that belief.

Equally remarkable, the prosecutor in the Moon case gave as her reason for insisting upon a jury the observation that Reverend Moon had the audacity, as he has here today before this committee, to speak to the world in front of the Federal courthouse, his belief that his was a religious persecution.

Senator HATCH. He ought to have had the right to speak in front of a Federal

Mr. TRIBE. I would have thought the first amendment-I would have thought the first amendment, Mr. Chairman, would have given him that right, and yet that was the reason the Government gave for insisting on a jury. They said, ah ha, you question the fairness of our system, we will show you what is fair, we will give you a jury.

Now, in my view, it is still an unsettled constitutional question in this country whether that is consistent with fairness, or consistent with free speech.

The American Civil Liberties Union, the Southern Christian Leadership Conference, and the National Emergency Committee for Civil Liberties were among those who filed friend of the court briefs on this particular issue.

So to Senator DeConcini, I would simply want to say that one can simultaneously believe deeply, as I do, in the jury system, and yet believe that, when the jury is turned from a shield for the accused into a sword of inquisition, that is not the America I know.

Let me only add one other observation with respect to whether all this is a conspiracy, or whether it represents simply the ignorant disregard of people's rights. I think that Reverend Moon's request to see the Government papers in this case, which could well support his belief that this was persecution, is a request that I trust the committee will take seriously.

Senator HATCH. Well, on that point, that is a good request.

My experience is that the Justice Department does not cooperate readily in those types of requests, but I think we will make the request, and I would hope that this is one case where the Justice Department will cooperate, because this is a religious freedom issue, and I am very concerned about this.

I am very concerned about whether there is-whether this case was motivated sheerly out of prejudice, or out of a desire to-out of an improper desire, in any way, shape, or form.

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