Raoul Berger, Warren Senior Fellow in American Legal History, told the Senate subcommittees investigating President Nixon's use of executive privilege Thursday that Congress is the "superior power."

In his second appearance before the Senate this week, Berger argued that there is no precedent in Constitutional or English Parliamentary practice for the president to withhold information from Congress.

Berger vs. Nixon

Berger refuted President Nixon's claim that he has the power to prevent any of his 2.5 million subordinates from testifying before Congress. "That is made to order history and is simply untrue," Berger said yesterday.

"When the Constitution was ratified, Congress was called the 'Grand Inquest of the Nation,'" Berger said. He explained that the British Parliament's right of inquiry into the executive branch was adopted by the founders of the U.S. Constitution, and was never questioned until recently.

Berger spent the last 20 months examining parliamentary debates from 1621 to 1742. "This is not a petty quarrel between two branches of government," he said. "Congress must have information in order to act effectively, and that depends on getting rid of Ceasarism."

Berger advised the Senate to follow Senator Sam J. Ervin's (D-N.C.) suggestion to use subpoena and arrest procedures to force the executive privilege matter into the courts.

Joseph L. Picore, counsel to the Subcommittees on the Separation of Powers, said yesterday that Berger "did a great deal to lay to rest the president's misconceptions about his authority."

Alfred J. Friendly, counsel to the Subcommittee on Administrative Practices, predicted yesterday that Berger's words "will put some fire into the Senate for the coming battle with the administration."