Senator ERVIN. I deduce from your statement that you think that our troubles come largely from the fact that we have in the Department of Justice and the office of Attorney General, the marrying of two incompatable things. As practiced during recent years, we have an Attorney General who is the chief legal adviser to the Government and the top legal officer of the United States, who also is the political adviser to the President.

Mr. SORENSEN. I do not object to Attorneys General coming from a political background. Some of our most distinguished have. But I do not believe he should continue as the chief political adviser of the President if he is to be the Attorney General.

Senator ERVIN. So in the last analysis, in your judgment, the thing comes down to the man.

Mr. SORENSEN. Exactly.

Senator ERVIN. You point out very correctly that we can have all kinds of laws, but if we don't have the right man in the right place the laws will not work very well.

You do advocate the appointment or establishment of an officer who would be charged with the duty of enforcing criminal statutes against people in high places both in the executive branch of the Government and in legislative and judicial branches also.

Mr. SORENSEN. Yes. Yes, I do because he is not a policymaker as the Attorney General is. There is no harm-indeed, there is benefitin establishing that office as an independent and separate office.

Senator ERVIN. I also take it or infer that it is your judgment that the main features of this bill would be like taking an atom bomb to get rid of a few mice.

Mr. SORENSEN. No, I would not say that, Mr. Chairman, because to be frank with you, I don't think the bill is an atom bomb. I think that to say that you are going to take the Attorney General out of the Cabinet accomplishes nothing. In fact, to have the bill call the Department of Justice independent accomplishes very little.

Senator ERVIN. You have made some very helpful suggestions and have prepared a very brilliant statement and I thank you very much for it.

Senator Mathias?

Senator MATHIAS. Mr. Chairman, very briefly, I was pleased by the reference, in Mr. Sorensen's statement, to Attorney General William Wirt, who was a great Maryland lawyer who contributed much to the Nation, and I was pleased to see that he surfaced in a favorable light at this point.

As a matter of fact, I was trying to do some research on him just the other day, and would be pleased if you have any background notes on Wirt's career, or could guide me in any that I might have missed.

But on a more substantive level, I am a little concerned with the concept of the appointment of the office of Special Prosecutor with a sort of inquisitorial role. It seems to me this could have some backlash of a serious nature, that this office could, over a period of time, acquire a connotation which could be as serious as the problems it is meant to cure, and the Inquisitor or the Special Prosecutor could get a disproportionate kind of influence.

Do you fear that kind of consequence?

Mr. SORENSEN. No doubt Senator Cranston is prudent to suggest that a commission be established to devise the best means of establishing such an office. But, I have no doubt some of the same fears were expressed about the establishment of the office of Comptroller General. He was given a 15-year term, virtually totally independent from the executive branch. And yet that has turned out to be a very responsible and helpful office. I realize that it is not the same level of power.

Senator MATHIAS. No, the Comptroller General is an advisory kind of office, whereas I understand that the office that you are proposing is a prosecutorial office, which would be very different in terms of the awe with which it would be held by everybody within the Government.

Mr. SORENSEN. Perhaps a little awe would be a good thing.

Senator MATHIAS. Well, a little awe might be like a little knowledge. It might be a dangerous thing, too, because it would enhance the position of that man far beyond the role which we today are considering.

I think you are right. It requires study.

Mr. SORENSEN. Bear in mind, Senator Mathias, that this is a man who is going to be appointed originally by a President and confirmed originally by the Senate. I would think that they would take great care not to have an empire builder in that post.

Second, he is only a prosecutor, not a judge and jury and any cases that he would bring would still have to go through our normal procedures.

Senator MATHIAS. Of course. Prosecution in itself is a very heavy burden to bear.

Mr. SORENSEN. Yes.

Senator MATHIAS. Without prolonging this, I do think you have raised an interesting question. I think that further study is required to try to relate the official responsibilities of the U.S. Attorneys around the country to this problem.

I think that perhaps a clearer understanding of what the U.S. Attorneys are supposed to do and their relationship to the Department of Justice and to the Attorney General and the line of command from the President through the Attorney General to the U.S. Attorneys is all very closely related to this problem, and so is a very appropriate field of study before us.

Mr. SORENSEN. Very much so. I think that you will find a good many judges and lawyers who deplore the constant turnover in the U.S. Attorney's office as the result of political patronage and the inadequacy of law enforcement or the ineffectiveness of law enforcement that often results from that.

Senator MATHIAS. Some people would like it to turn over more often, too.

Mr. SORENSEN. No doubt.

Senator MATHIAS. Thank you, Mr. Chairman.

Mr. EDMISTEN. Mr. Sorensen, you have stated that the Attorney General should pledge not to continue as chief political adviser to the President.

Don't you think there ought to be some kind of waiting period for a Cabinet member who, say, resigns and then goes to head up the national campaign for a presidential candidate? He takes along with him, does he not, the trappings of power of that Cabinet office? Mr. SORENSEN. That would undoubtedly be a prudent idea. I am more concerned with what they carry with them when they go in the executive branch than what they carry with them when they leave.

Professor MILLER. Would you describe for us, Mr. Sorensen, briefly, the relationship to the Department of Justice of your job as Special Counsel to the President?

Mr. SORENSEN. I would like to begin, unless the chairman rules it out of order, by telling a true story.

Senator ERVIN. I never rule the truth out of order. [General laughter.]

Mr. SORENSEN. There was no post of Special Counsel to the President prior to the second term of Franklin Roosevelt. Sam Rosenman had been Franklin Roosevelt's Counsel in New York when Franklin Roosevelt was Governor. He had then gone on the bench and commuted between New York and Washington; it got to be difficult for both of them, and Roosevelt asked him to come down and join the White House staff. They then began to discuss what the title should be and finally thought the best title would be the old title they had used up in New York, and Rosenman would be called Counsel to the President.

About a week later, Rosenman told me, Roosevelt called him on the telephone and said, we have run into a snag. Attorney General Biddle insists he is Counsel to the President and therefore, we cannot appoint such an office. However, he said, I have decided to compromise in two ways. First, we will call you Special Counsel to the President, and second, we will announce it when Attorney General Biddle is out of the country next week. [General laughter.]

The Counsel to the President or the Special Counsel to the President has had a wide variety of duties depending upon the incumbent in the Oval Office. Certainly the duties taken on by Mr. Dean and Mr. Colson were wholly unlike anything taken on by any of their predecessors.

My own position as the Special Counsel to President Kennedy involved me as a policy adviser to the President with respect to legislation, with respect to his programs and messages, with respect to Executive orders, and with respect to those few formally legal problem, which come to the White House, such as appeals from international route cases from the CAB,1 the divided decisions of the Tariff Commission, and a very few others. It's largely a legislative and policy function which does not overlap in any way with the Department of Justice.

I think the two ought to be kept separate and the White House should not involve itself with the law enforcement functions of the Department of Justice in the slightest.

Professor MILLER. Is it accurate then to say that you did not involve yourself in the Department of Justice?

1 Civil Aeronautics Board.

Mr. SORENSEN. That is correct.

Professor MILLER. You did not, for example, on Executive orders or anything like that, get in touch with them or they get in touch with you?

Mr. SORENSEN. Infrequently we would work together on a legal opinion or the draft of an Executive order, particularly if it pertained to civil rights.

Professor MILLER. Who had the final say, Mr. Sorensen? Who had the final power as between the lawyers, you or the Assistant Attorney General?

Mr. SORENSEN. The President of the United States.

Professor MILLER. Between the lawyers. Of course the President has the final power.

Mr. SORENSEN. We did not work as to who had the final say. It was a matter of collaboration. If there was a disagreement, it would be decided by the President.

Professor MILLER. So the Department of Justice then, I infer, did take an independent position at times from you?

Mr. SORENSEN. Certainly

Professor MILLER. They did?

[Mr. Sorensen nods in the affirmative.]

Professor MILLER. I have one or two other brief questions. Would you place all of the U.S. attorneys under the Hatch Act? In your testimony you mentioned they should be out of politics.

Mr. SORENSEN. I have complaints about the present scope of the Hatch Act. I would exclude from political activity generally all personnel of the Department of Justice, including the U.S. attorneys,

yes.

Professor MILLER. I have one further question. As I understand your testimony, you are disturbed by recent revelations but not by less recent revelations, is that correct?

Mr. SORENSEN. No.

Professor MILLER. Do you have any other examples other than prior to January 1969, to be disturbed about?

Mr. SORENSEN. Oh, yes. There were revelations in the Justice Department at the time of President Truman, at the time of President Harding, and undoubtedly others.

Professor MILLER. Is it fair then to say that your testimony is: Appoint good people and tell them to be good?

Mr. SORENSEN. No.

Professor MILLER. Then what checks are there on the power of the Attorney General or anyone? It seems to me what you are suggesting, Mr. Sorensen, is what the New York Times called yesterday "Super-Presidency." 1

Mr. SORENSEN. I have tried to suggest at the close of my statement, Professor Miller, what I think are steps that would help improve the situation in terms of the Attorney General's independence and in terms of the Attorney General's freedom from political interference. But I am inclined to feel that in large measure it is going to depend upon the caliber of the individual and the care with which the U.S. Senate confirms that individual.

1 The editorial referred to appears at p. 525.

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Professor MILLER. Well, I would take it then that you do thinkand this is my final question, Senator-that the Attorney General cannot be separate from the operation of the White House. Even though you quote Mr. Bates, nonetheless you also quote Andrew Jackson, I believe; and I take it that the Attorney General, in your view, should follow orders from the President?

Mr. SORENSEN. No, I certainly have not said that. As I have tried to indicate, the Attorney General is an officer of the court. He has professional obligations. I have been a member of the bar for some years. I do not follow all orders given to me by my clients. I have some regard for my professional obligations. I think most Attorneys General will also.

But the Attorney General is also a policy maker and policy spokesman for the executive branch and when he acts and speaks on matters of national policy, I do believe he should reflect Presidential policy.

Professor MILLER. One final question: Can you give us any examples of any time in your experience when the Attorney General's office did tell the President that he could not do something?

Mr. SORENSEN. Those, unfortunately, rarely come to public notice. Professor MILLER. Can you give us one? Can you make it public knowledge?

Mr. SORENSEN. The point is that I am not aware of them myself. Professor MILLER. So the Attorney General is subject to the President's orders.

Mr. SORENSEN. No.

Professor MILLER. No further questions.

Senator ERVIN. With reference to the misgivings of Senator Mathias about the abuse of power, I just want to make this suggestion that whenever you grant power, grant liberty, you necessarily grant them under the unhappy condition that either of them may be abused.

Mr. SORENSEN. That is correct.

Senator ERVIN. And the only thing you can do with respect to power is try to define the limits to that power as carefully as possible. That's about the only protection that you have outside of the characters of the individuals who exercise the power. Is that not true?

Mr. SORENSEN. I think that is exactly right.

Senator ERVIN. Thank you very much for a most illuminating

statement.

Mr. SORENSEN. Thank you, Mr. Chairman.

Senator ERVIN. Senator Hartke, you will be our next witness. You were not in at the time, so we substituted Mr. Sorensen.

Let the record show that while the bill, S. 2615, introduced by Senator Hartke is pending before the Committee on Government Operations, that this committee is going to study that bill along with the evidence because the concept embodied in the bill is very germane to what we have considered in these other bills.

Also, I will tell you that we will also give you a hearing on that bill and the other bill that you mentioned the other day in the