have always felt that it was the duty of any legal adviser to give the President his advice with the highest degree of intellectual integrity. And I have found in my own experiences of practicing law that sometimes when you did that, your client went to another lawyer who gave him some contrary advice. And the final result, as far as your client was concerned, was more or less a disaster. And I think it would be a great mistake to do anything which would tend to build up a wall of separation by the addition of staff members at the White House that would isolate the President from the heads of his Departments.

Mr. Cox. The very institutionalization of the Department and the institutional connections and permanence of all except the top echelon of lawyers in it are a very great protection, I think; and of course they greatly increase the chance that the President will, when necessary, get the kind of advice that I referred to at the beginning, the kind of advice that a client may not like to hear, but that is absolutely essential from time to time, as you have just observed from your own experience in private practice.

Senator ERVIN. I am also very much impressed with your observation that it might be well for the Judiciary Committee to study for itself rather than appointing a study commission-the question of whether or not it would be advisable to enact legislation providing for a special prosecutor, on either a permanent or temporary basis. You very positively stated your views that it would be unwise to set up a special prosecutor on a permanent basis. And I am personally very reluctant to establish new commissions, because, although sometimes they are essential, too often they are so numerous they almost trip over one another. And I would think that that would be something that this committee, the Judiciary Committee, could study very well by holding hearings and soliciting the advice of people in whose judgment they have a high degree of confidence.

You have stated your position so well I have very few questions. Mr. Cox. Thank you, Mr. Chairman.

Professor MILLER. May I ask Professor Cox one or two questions? Senator ERVIN. Yes.

Professor MILLER. As I understand it, Professor Cox, your position is that you would oppose establishing a permanent special prosecutor?

Mr. Cox. Yes. I think it waters down responsibility. I doubt the need, I very much doubt the ability to attract to the post the only kind of man who would be acceptable.

Professor MILLER. Let me ask a different question, about your view as a constitutional lawyer on the power of Congress to establish such an office under the Constitution.

Mr. Cox. Well, I think that I testified before the full Judiciary Committee in accordance with my belief that Mr. Jaworski's position could constitutionally be put on a statutory basis. It seems to me that the need for absolute independence is so great and so obvious, that that would support taking out from under the Chief Executive a function that one would normally think of as a proper Executive function. And I refer-I am sure you are familiar with them-to the stress that was put in Humphreys case and in the later case on the

need for independence in men who were performing quasi-judicial functions.

But nevertheless, I think conducting investigations before a grand jury and prosecuting cases in court has enough of the same characteristics to support its constitutionality where there are reasons for requiring that the investigation be independent of the Chief Executive Officer because he either may be personally involved or because men to whom he inescapably feels some kind of personal or political loyalty may be involved.

Professor MILLER. Would it be possible, Professor Cox, as to the inspection service that you visualize as desirable within the Department, to have that as a duty of the Special Prosecutor, the permanent Special Prosecutor?

Mr. Cox. I did not quite catch your question.

Professor MILLER. You advocated an inspection service within the Department. Why not give that duty to a permanent Special Prosecutor?

Mr. Cox. Well, it could be done, but I would think that there were advantages in terms of a sense of responsibility and morale in having it inside the Department and under the Attorney General. It is his job to see that integrity prevails in the Department, and I do not think that job should be diluted.

Professor MILLER. But is that the problem, Professor Cox? The problem is the trust in the administration of justice. If people do not trust the administration of justice, how can we turn to the Attorney General to investigate himself?

Mr. Cox. I do not think we can; I do not think we do; and I do not think it would be desirable to start off with the presumption that our Attorneys General cannot be trusted. The presumption should be the other way, and they should be held responsible when they were proved incompetent or unfaithful. But until there is some evidence of that kind, I do not think that we need or would succeed in having a permanent outside inspection force.

Professor MILLER. But to the problem as it relates to the studies that have been made by the Committee on Government Operations of the Senate on the trust that the American people have in their Government in general, I am wondering whether the establishment of an internal inspection system would fulfill the task of reestablishing the trust of the American people in our Government and the people who govern. I do not really want to pursue the matter. I think it is a political matter.

We heard the testimony last week of Mr. Justice Goldberg, who thought there was no constitutional barrier; Mr. Dixon of the Department of Justice thought there was a constitutional problem. If I understand you correctly-and please correct me if I am wrong -you would come down on the side of Mr. Justice Goldberg, that Congress, with carefully drawn statutes, could establish

Mr. Cox. Well, I would think so. It is not free from doubt because if you were to establish such a thing permanently, you would have no basis for asserting a need for independence other than a general presumption; you would not have the concrete facts that are present

in the case of the Watergate affair and those growing out of it. So it is not as strong a case as it is for the constitutionality of a statutory Special Prosecutor in the particular case. But I would think that the probabilities were that it is constitutional.

I do want to emphasize also, as I said before, that I very much doubt whether you could attract to such a permanent position men of sufficient caliber, independence, and public reputation for the establishment of the service to have the consequences in the public view that you would wish.

Professor MILLER. Thank you, sir, I have no further questions.

Mr. EDMISTEN. Professor Cox, in your statement you say that there are areas in the Justice Department where all communications with the White House, the Executive Offices, members of the Senate, or House of Representatives, or other political figures should be shut off.

That goes against accountability, does it not? Do we not need more oversight, especially on the part of Congress of the executive branch of the Government.

Mr. Cox. Well, the thought in my mind-which I may not have expressed very clearly-was that there should be no communication about the handling of particular cases. I did not mean that there should be no scrutiny of what kind of a job they were doing or about whether that precept was being observed. And of course, the President ultimately has got to be sure that the Assistant Attorney General in charge of the Criminal Division is attending to business and not off in the Canary Islands.

So perhaps I stated it more broadly than I meant. I meant that telephone calls asking about the status of the case-a fortiori telephone call suggesting it may be a case to be dealt with in a particular manner-from people in the executive branch or any other source outside of the Department, should be forbidden, that all such calls should be recorded and that not reporting them should be treated as a violation of departmental regulations.

Now, whether these areas can be satisfactorily marked off without creating administrative problems I am not sure, but I suspect it could be done.

But I did not mean-and I am sorry if this is misleading-I did not mean any lessening of general oversight as to the efficiency, honesty, and other qualities with which the business was conducted. I am glad you clarified the question.

Mr. EDMISTEN. Although you do not favor a permanent Special Prosecutor, Professor Cox, what is it that compels the appointment of a Special Prosecutor like you, that occurred in recent months? Is it the Congress that you are depending upon to do that?

Mr. Cox. Well, in the past instance, it was the public demand, and most particularly, as I understand it, the Judiciary Committee and the consequences of the work of the special select committee that impelled that.

Mr. EDMISTEN. And you are depending upon that in the future?

Mr. Cox. Well, I went a little beyond that, because I did endorse the desirability of studying the kinds of mechanism-either in the Congress, the Judiciary, or elsewhere, that might be set up to bring

about the designation of a Special Prosecutor if there came to be a reason to distrust any investigation or an appearance of reason to distrust any investigation under the direction of the President or his Attorney General.

Mr. EDMISTEN. Would you favor placing the U.S. attorneys under the civil service, so that you could have a cadre of professional U.S. attorneys that go on beyond a particular administration? Mr. Cox. I never thought about that, Mr. Edmisten. I have never worked in a U.S. attorney's office, so I just do not know.

Mr. EDMISTEN. I have one more question.

You mentioned a moment ago that it should be forbidden for a campaign manager to become an Attorney General; and you said that it has the appearance of impropriety, if one is an Attorney General and then immediately becomes a campaign director.

Would you favor some sort of a waiting period by statute, that a person could not assume a national campaign role leaving a Cabinet position until some amount of time had elapsed after?

Mr. Cox. I was speaking only of an Attorney General, because that is the area before us and the one that I have thought about. As to the Postmaster, well, there is no Postmaster General in the Cabinet now; but going back to the older setup, I am not sure that I would have said the same thing about the Postmaster General. I am not, offhand, prepared to say that no party manager should have any position that would bring him into the Cabinet.

Mr. EDMISTEN. Thank you.

Senator ERVIN. I want to repeat my thanks to you for your appearance. I have reached the point where I believe in giving people flowers while they can see them.

I first became acquainted with you when you were assistant to Senator John F. Kennedy, working on the legislation made necessary by the revelations of the McClellan committee. And then I had the opportunity to observe your work as the Solicitor General of the United States, and your work as the Special Prosecutor. And I think you did a magnificent job in all of these capacities; and as a lawyer. I think your position as a Special Prosecutor was absolutely sound in all respects. You were, in effect, asked to relinquish the proper performance of the duties which evolved upon you, and I rejoice in the fact that your integrity was such that you refused to do that. Mr. Cox. Thank you very much, Mr. Chairman. Senator ERVIN. Thank you very much.

Call the next witness.

Mr. EDMISTEN. The next witness, Mr. Chairman, is the Hon. Whitney North Seymour, Jr., former U.S. attorney for the Southern District of New York.

Senator ERVIN. I want to express the committee's appreciation of your willingness to accept our invitation to give us the benefit of your views with respect to the matters that we are discussing.

STATEMENT OF WHITNEY NORTH SEYMOUR, JR., FORMER U.S. ATTORNEY FOR THE SOUTHERN DISTRICT OF NEW YORK

BIOGRAPHICAL SKETCH OF WHITNEY North Seymour, Jr.

Personal-50 years old. Lives in Greenwich Village with wife Catryna and two daughters, Tryntje, 17, and Gabriel, 15. Princeton, A.B. '47 (Phi Beta Kappa, Magna Cum Laude, and stroke of varsity crew). Yale Law School, LL.B. '50 (Yale Law Journal, Order of the Coif, Phi Delta Phi). Honorary Doctor of Laws, New York Law School '72. World War II veteran. Army Artillery. Served two years in New Guinea, Admiralty Islands, and the Philippines. Rose from Private to Captain.

Public Service-Assistant U. S. Attorney, Southern District of New York, 1953-56 (participated in income tax prosecution of Frank Costello; Chief Appellate Attorney). Chief Counsel, Special Unit, State Commission of Investigation, 1959-61 (conducted investigations into waste and corruption in City government. New York State Senator, 1966-68 (26th District, Manhattan). Gained wide recognition for his work as Chairman of the Senate Committee on Housing and for his independent voting record. Sponsor of 125 new laws over 3-year period. At time of his re-election in 1966, Citizens Union gave him its highest rating, saying: "His legislative program as a whole was one of the most significant and constructive, and his independent voting record, in the Citizens Union's judgment, was one of the best in either party.” United States Attorney, SDNY, 1970-73. Supervised non-partisan staff of 94 Assistant U. S. Attorneys in investigation and prosecution of Federal crimes in such areas as narcotics, white collar crime, and official corruption; and civil enforcement actions in fields such as protection of the environment, civil rights, and consumer fraud. Personally conducted trial of Martin Sweig, administrative aide to Speaker McCormack; Pentagon Papers case; prosecution of major narcotics trafficker Louis Cirillo; and proceedings for release of Mario Biaggi grand jury testimony. Supervised investigation leading to Vesco indictment. Hailed by District Attorney Frank Hogan as the "best U. S. Attorney I have ever worked with."

Author "Why Justice Fails" (October, 1973); "The Young Die Quietlythe Narcotics Problem in America" (1972); “Small Urban Spaces" The Philosophy, Design, Sociology and Politics of Vest-Pocket Parks and Other Small Urban Open Spaces (ed.) (1969).

Community Service-Chairman, Legal Advisory Committee, President's Council on Environmental Quality; Trustee, New York Public Library; Board of Managers, New York Botanical Garden; Member, Citizens Committee for Children; Former President, Park Association of New York City; Former President, Municipal Art Society; Former Director, Citizens Housing & Planning Council; Former Director, Citizens for Clean Air; and Former Member, Junior Council, Museum of Modern Art.

Professional Activities-Chairman of House of Delegates, New York State Bar Association; Chairman, Centennial Commission, American Bar Association; Board of Directors, American Judicature Society; Former Member of Executive Committee, Association of the Bar of the City of New York; Former Director, New York County Lawyers' Association; and Member, American College of Trial Lawyers.

Mr. SEYMOUR. Thank you, Senator. It is important work that you are here about, and I would have walked all of the way here if necessary to add my 2 cents.

I should correct the introduction to this extent. I have a "Junior" at the end of my name, and my father who is still very active in practice would like to have that distinction made clear, although I do not think that he disagrees with my views.

The vantage point from which I appear today includes not only 312 years of service as U.S. attorney in the Southern District of New York, completed last June, but also prior service as an assistant U.S. attorney under J. Edward Lumbard in the administration of