Mr. ROGOVIN. Mr. Chairman, I served as Chief Counsel for the Internal Revenue Service. And of the over 65,000 employees of the Internal Revenue Service, only the Commissioner and Chief Counsel are Presidential appointees. Everyone else is part of a blue ribbon career service. And the loss of the Presidential appointee was nothing but a boon to effective administration of the Revenue Service.

Senator ERVIN. And there is no reason to believe that a contrary result would be reached if we placed the U.S. district attorneys and assistant U.S. district attorneys on the career basis, is there?

Mr. ROGOVIN. It is certainly worth a try.

Senator ERVIN. And would it not be very conducive to more efficient law enforcement?

Mr. ROGOVIN. There is no question that the U.S. attorneys office, with political patronage, is a revolving door. The quality of the Government's representation suffers dramatically when assistant U.S. attorneys, fresh out of law school, make a 2-year postgraduate program out of their tour with the Justice Department. In 1960, when the Eisenhower administration was in its waning days, in one particular office-the U.S. attorney's office in Detroit-the U.S. attorney and every attorney in that office resigned and left prior to the appointment of their successor. For about 2 weeks, prior to the inauguration of the new administration, there was not a Federal attorney for that district in place. Now that type of revolving door attitude concerning the enforcement of Federal laws, just cannot continue.

Senator ERVIN. I will have to confess that you make a suggestion here as to how Federal judges should be processed, that is, appointees to Federal judgeships, that gives me concern because of the difficulties in setting up the proper machinery.

Mr. ROGOVIN. Mr. Chairman, I do not have an answer. I do not know where it should go. All I know is where it should not be. The judicial selection process should not take place in the Attorney General's office. I think that is a critical conflict.

Senator ERVIN. There is no doubt of the fact that Federal judges should be released from the appearance of having to enjoy the good will of the side with the most lawsuits in the Federal court, in order to hope for a promotion in the Federal judiciary.

Mr. ROGOVIN. That is correct.

Senator ERVIN. It is essential that in the Department of Justice, above all other departments, not only carry out the functions which it is charged with carrying out, but also it must appear to be doing so, as well.

Mr. ROGOVIN. Yes, sir.

Senator ERVIN. You have given us a most illuminating and penetrating statement from your experience in government which will be most helpful to the committee.

Professor Miller, do you have any questions?

Professor MILLER. May I ask just one or two, Senator?

Could you describe for us the extent to which there was contact between the Special Counsel and the White House when you were in the Department of Justice?

Mr. ROGOVIN. I recall no situation where the Department of Justice or my office had any contact with the White House. I think it is

important to take a look at the delegation of authorities from the Attorney General that exist within the Department.

For example, Professor Miller, in the Tax Division, I never had to get the consent of the Attorney General to bring a prosecution for tax evasion. There was no situation where it was required of me to send the case file to the Attorney General's office or elsewhere before bringing an indictment.

The delegation for criminal prosecution was to the Assistant Attorney General. It was his responsibilities to run his office. To be precise and to respond to your question, I was not involved in any situation where the Special Counsel to the White House ever contacted me or I contacted him.

Professor MILLER. Then, in your position as Chief Counsel for the Internal Revenue Service, was there ever any instance of clearing any decisions with anyone other than the Commissioner?

Mr. ROGOVIN. I am hazy about that, Professor Miller, not because there are a host of situations that I am trying to inventory for you. We dealt with the Treasury Department. Many published rulings and all regulations would go to the Treasury Department for review. From time to time, I know that there were White House assistants at conferences at Treasury on regulations matters and they made an input

Professor MILLER. Prosecution matters?

Mr. ROGOVIN. Not prosecution matters.

Professor MILLER. Matters of tax returns?

Mr. ROGOVIN. No, no, no regulations and on legislative proposals. No individual taxpayer case comes to mind.

Professor MILLER. One other question. Do you see any constitutional impediment to any of the proposals you make or the proposal of taking the Department of Justice away from the Executive Office of the President? I mean make him independent of the President.

Mr. ROGOVIN. I steered a very wide path away from giving Senator Ervin the "benefits" of my views on the Constitution. I believe I made a passing comment about "pressures" on the separation of powers. I am going to refrain from responding to your question on the bill's constitutionality Professor, because it is intimidating with both you and the Senator here. I simply believe such a bill is not good administrative practice.

Professor MILLER. Well that is interesting, at least. I have no further questions.

Senator ERVIN. As a matter of fact, I interpret your statement to indicate that you are a strong believer in the doctrine of separation of powers of government. I say that because you want to separate, as far as possible-you cannot do it entirely-the selection of Federal judges from the executive branch of the Government so as to make them independent of the executive branch in the discharge of their duties.

Mr. ROGOVIN. Since we cannot plant them in the ground and have them come full-grown, we have to have some starting point. The Constitution gives the President nomination authority, but nowhere in the Constitution does it says he has to have all of this handled by the Department of Justice.

That is my quarrel. Put it in the FCC. It would probably do a better job. [General laughter.]

Senator ERVIN. In the old days when the Postmaster General was the chief political adviser to the President, he did not have very much to do, except to read the postal cards-so that was rather noncontroversial.

You have quoted from my remarks at the time of Attorney General Mitchell's original confirmation hearing. At this time, I said there is something incompatible in wedding the duty of the chief enforcer of the laws and the obligation to be a political adviser and political agitator

Mr. ROGOVIN. I think that "agitator" phase, is particularly apt. Senator ERVIN. Yes, and that has been true in recent years, to some degree, in all the administrations, whether Democratic or Republican.

Mr. ROGOVIN. Mr. Chairman, I did some research in preparation for these hearings and it is fascinating to see the substantial political background of almost all our Attorneys General. As Mr. Sorensen said, some of them did excellent jobs. But the fact remains that they came out of campaigns, and I have always been of the viewpoint that a successful nominee, after the election, should bring in all of his campaign aides, present them all with gold watches, thank them profusely, and never see them again. [General laughter.]

And yet we see them day after day in high office.

Mr. EDMISTEN. Let me ask one question that I asked Mr. Sorensen. Do you not believe, that when a President is running for reelection, there ought to be a waiting period before any cabinet official, and most specifically an Attorney General, can resign that office and become the presidential campaign manager?

Mr. ROGOVIN. I agree with that. We have conflict-of-interest laws that prevent the Attorney General from going out and handling a piece of litigation that was pending while he was in office. You put it so well before about the heavy mantle that he takes out of that office. He ought not to be involved. Under my theory he would not have even been selected as Attorney General. We would have been looking for a different kind of man, and the President would have been ill-advised to select him as his campaign manager because he is such a different man.

You may wish to obtain a pledge from nominees when they come before the Judiciary Committee with respect to their prospective campaign activities. It is a shame that you do not have a string to yank these people back after they go back on their promises given in testimony at their confirmation hearings.

Professor MILLER. Senator, may I ask one more question?
Senator ERVIN. Yes.

Professor MILLER. This is sort of a personal matter.

Mr. Rogovin, when did your concern about this begin? Was it prior to January_1969?

Mr. ROGOVIN. Take the judicial selection process. It has always struck me as being awkward. I saw it going on in the Department of Justice when I was there. I saw people work diligently to try to find appropriate nominees and to check their records. At that time I had

a feeling that it was awkward. I think the last year and a half has sharpened my focus as to the practices within the Department of Justice. My views are full-blown today. I am very much opposed to the practice.

Professor MILLER. So that it is fair to say, I take it, that your concern on this has come to fruition in recent years?

Mr. ROGOVIN. Yes, Professor Miller. You may wish to look at the chapter in Victor Navasky's book, Kennedy Justice, for an illuminating report in how the author found the selection of judges was conducted in the Department during Robert Kennedy's Attorney Generalship.

Professor MILLER. Did you have anything to do with the decisions made by Attorney General Kennedy?

Mr. ROGOVIN. No, I was not in the Department of Justice when Robert Kennedy was Attorney General. I was Chief Counsel of Revenue.

Senator ERVIN. Thank you very much.

If we did not receive any other paper than the one you have given us, all of the efforts that went into organizing these hearings would have been well worth it.

Mr. ROGOVIN. That is very kind of you. Thank you.
Senator ERVIN. Will counsel call the next witness?

Mr. EDMISTEN. The next witness, Mr. Chairman, is Dr. Santo P. Amadeo, a former professor of law in Puerto Rico who is now of the law firm of Amadeo and Amadeo, and who has been a frequent contributor to many of our efforts over the years.

Senator ERVIN. We want to thank you for your current appearance and the help you have been to us on several occasions. We have always found your views helpful.

STATEMENT OF DR. SANTOS P. AMADEO

BIOGRAPHICAL SKETCH OF DR. SANTOS P. AMADEO

Santos P. Amadeo was born in Salinas, Puerto Rico on the 9th of June, 1902, the son of José Vincente Amadeo and Teresa Semidey.

He is married to María de los Angeles Navas Amador and the father of two: his son José Enrique Amadeo, a lawyer and, María Teresa Amadeo Navas, a professor of Statistics at the University of Puerto Rico.

He graduated from East Greenwich Academy, Rhode Island, in 1923. He received his B.A. specialize in Politics Sciences and Sociology from the University of Michigan in 1926. His M.A. specialize in Politics Sciences and Sociology from the University of Michigan in 1927. In 1935, at Northwestern University he obtained the degree of Doctor of Jurisprudence (Juris Doctor). In 1938 he obtained his LL.M. from Columbia University, and in 1944 his degree as Doctor of Law Science (Jur. Sc. D.), from the same University.

His doctoral thesis, Argentine Constitutional Law, a study of the impact of the Constitution of the United States in the constitution of Argentine was published by the Columbia University Press sponsored by the Coordinator of Interamerican Affairs of the Department of States of the United States, and distributed to libraries around the world.

He received a scholarship from the Guggenheim Foundation in 1941.

A Professor of Law and Political Sciences at the University of Puerto Rico from 1928 until 1969, he has been Professor Emeritus of the School of Law of the University of Puerto Rico from 1970 until the present time.

He was legal advisor to the Board of Economy of War and the Department of State of the United States in Washington, and in 1942 a special aide to the Ambassador of the United States in the Dominican Republic.

As a lawyer he has distinguished himself as constitutionalist and defender of the civil rights. He is a legal advisor of the Civil Rights Commission.

Dr. AMADEO. Mr. Chairman, Members of the U.S. Senate's Subcommittee on Separation of Powers, ladies and gentlemen, deeply honored I am by your invitation to express my views on Senate bill 2803 to establish the Department of Justice as an independent establishment of the United States, introduced December 12, 1973, by the Chairman, Hon. Sam J. Ervin, Jr.

Conscientious of my American citizenship and a firm believer in our system of government, especially in the separation of constitutional powers which the framers of our Constitution deemed essential, and which the bill under consideration seeks to strengthen, I cannot but subscribe to the philosophy and purpose of the bill so brilliantly expounded by Senator Ervin in his introductory remarks upon submission of the bill. In a statesmanlike manner, suffused with constitutional acumen, Hon. Senator Ervin's remarks should serve as an inspiration not only to us who are preoccupied with the constitutional evolution of our system, but to all who hold faith in the greatness of our Nation.

There is no denying that events of the past year have eroded in weaker souls the trust in some of our more vital institutions, the highest office of the land not excepted. Despair, cynicism, hopelessness and suspicion are palpably rising their ugly heads in the Nation. But when the remedy is at hand-S. 2803-hope is renewed, and brighter is the future of our people and our Nation.

In creating a Department of Justice as an independent establishment of the United States, S. 2803 not only removes it from the tainted shadows of political influence by the executive branch, but preserves and enhances and guarantees the required independence in the administration of justice, one of the mainstays of our democracy.

Most appropriately, and consistent with Anglo-American philosophy of government, S. 2803 seeks to confine the role of the Attorney General to that of what he should have been, and should be-the legal adviser to the government, an officer whose primary duties are mainly ministerial, someone not involved in policymaking. With minor exceptions, the office of the Attorney General, as contemplated in S. 2803, is likened to its British counterpart.

It is admittedly hard to improve on S. 2803, but the opportunity arises to advance some proposals aimed at streamlining the functions of the Department of Justice and of the Attorney General, mindful, however, of the ultimate goals of the bill under consideration.

PROPOSED AMENDMENTS

1. Procedure of Appointments of the Attorney General and subordinate officers:

To further preserve the independence essential to the proper administration of justice and to insulate the Department of Justice