Finally, the presidential appointees by such procedure will be subjected to the scrutiny and confirmation of the Senate. One must emphasize the benefit and wider guarantee of independent judgment of the Attorney General and the Supreme Court Justices appointed through a nomination commission. That is so because the personal gratitude of the appointee toward the appointment power, under a nomination commission, would be diluted among the nine or whichever number of commission members and the twelve nominees. Thus, the relations between the President and his choice among them would be more impersonal and objective.

IV.

Another suggestion which should be given due consideration is the creation of the post of Constitutional Ombudsman within the restructured Department of Justice. His function will be to investigate citizen's grievances, or motu proprio investigate the facts about a seeming intrusion of one of the three powers into the other's domain, and to report his findings to the Attorney General, who shall be empowered to effect the necessary corrective action, either by persuasion or through legal action in the Supreme Court, or District Court whichever has jurisdiction on the case.

However, Supreme and District Court Justices while continuing to be selected at the sole discretion of the President, may not be inclined to issue writ of mandamus or injunctive relief upon the findings of the Department of Justice through the Constitutional Ombudsman or otherwise, specially in cases where the controversy arises because of the intervention of the Executive Power.

V.

In relation to The Attorney General Authority To Adopt Its Rules and Regulations, this witness wishes to warn of the danger and risk of granting the Attorney General the unrestrained authority "to adopt, amend, and repeal rules and regulations governing . . . the performance of the powers and duties granted to or imposed upon it by law;" (See page 5, lines 6 to 9) The proper thing to do, in this witness' opinion, is to authorize the Attorney General or for all purposes the Department of Justice, to draft those rules and regulations to be submitted for the approval by the Congress. To leave those rules to the sole discretion of the Attorney General will leave the door open to arbitrariness and injustices (Please refer to Kenneth C. Davis' book Discretionary Justice).

VI.

Finally, referring to The Attorney General Authority To Accept Gifts, it is suggested to add at the end line 12, page 5: "except whereby those gifts or donations are intended for the direct benefit of the Department of Justice, in which case, said authority shall be vested in the Congress." There seems to be no need for giving reasons for the convenience of this clause.

VII.

This witness believes that the need and time for enacting controls for the possible abuse of power and discretion is past due, thus he favors that bill S. 2803, with or without amendments, be approved by the Congress and the President as the cornerstone of a new era of improvement in the government of the people.

Thank you.

THE UNIVERSITY OF UTAH,
COLLEGE OF LAW,
Salt Lake City, Utah, March 22, 1974.

MR. WALKER F. NOLAN,

Deputy Chief Counsel, Subcommittee on Separation of Powers, Committee of the Judiciary, U.S. Senate, Washington, D.C.

DEAR MR. NOLAN: This is responsive to a February 4, 1974, letter of invitation from Senator Sam J. Ervin, Jr., to Dean Samuel D. Thurman with

respect to statements concerning S. 2803. This letter is by way of informal response, for the record, to the Senator's invitation.

I say at once that I share Senator Ervin's concern about political involvement of the Department of Justice as a unit within the executive branch. As is widely known, of course, the politicization of the department is nothing new, but that is hardly comforting. Nor is there any doubt that the problem is one for urgent Congressional consideration. The power is there; the very existence of the department has been and is dependent upon legislative action. As for approach, I am clear that S. 2803 is not the wisest choice.

In the first place it is important to be lucid in one's conception of "political" for present purposes. In the larger sense even the law enforcement functions of the attorney general and the department are in the political sphere in the American tradition. Popular election of state attorneys general is widespread and of local district or prosecuting attorneys is almost universal. This often results in political independence in the partisan sense, but what I am driving at is that such offices are, in the sense of policy making and of both selection and accountability, political offices.

Of course, the line between political in a policy sense and more or less narrow partisanship is not always sharply clear. But there certainly is a difference and it is the latter which is the real focus of concern.

To remove the "law department" form executive control we might resort to constitutional amendment establishing the office of attorney general as an elective one or we might pursue the statutory independent agency route. In my judgment neither should be done.

Under the Constitution the President is the chief law enforcement officer; it is for him to see that the laws are faithfully executed. I see no reason to remove that responsibility, but I point to the related problem of presidential accountability, which is being given independent consideration. I do note that there is some question as to the constitutionality of S. 2803. Does the Humphrey case apply to an area so closely related to presidential responsibility? Humphrey's Executor v. United States, 295 U.S. 602 (1935).

S. 2803 embraces the analogy of independent regulatory agencies in the Federal Government. I suggest at once that such agencies do not provide an ideal model even within the regulatory sphere. Their detachment from political control may involve more sensitivity to the interests of the regulated than to those of the rest of us. But-more to the point-some risk of abuse must be borne in any governmental operation and here is one for which there ought to continue to be top-level responsibility and accountability.

The bill makes point, in its finding of fact and declaration of policy, that the Department of Justice has responsibility for functions that are both executive and judicial in nature. I do not find this compelling. Only a part of the work of the department involves the judicial process. Even there the primary accountability is to executive authority. On such a key question as that as to prosecution vel non the decision is for the executive branch. United States v. Cox, 342 F. 2d 167 (C.A. 5, 1965).

I would put aside S. 2803. In its stead I have three suggestions:

a. Congressional leaders and leaders of major professional and civic groups should join in calling upon both major political parties to commit themselves to a precedent, that in time might well become a tradition, of selection of an attorney general, after the 1976 election, on merit quite apart from partisan activity. To select on the latter basis, as has not uncommonly been done, is totally insupportable.

b. The cognizant Congressional committees should perform the function of legislative oversight in relation to Department of Justice functions with all the earnestness contemplated by the Legislative Reorganization Act of 1970. c. Congress might well pursue the proposal of Lloyd N. Cutler of the District of Columbia Bar that there be created by statute the office of special prosecutor, on a permanent basis, with responsibility and authority for investigating and prosecuting violations of federal campaign financing and other election laws and crimes involving violations of federal law by federal officers or officials and those of national political parties. This would provide independence in a key watchdog function.

Sincerely,

JEFFERSON B. FORDHAM.

MR. WALKER F. NOLAN,

THE UNIVERSITY OF UTAH,

COLLEGE OF LAW,

Salt Lake City, Utah, March 26, 1974.

Deputy Chief Counsel, Subcommittee on Separation of Powers, Committee of the Judiciary, U.S. Senate, Washington, D.C.

DEAR MR. NOLAN: This will supplement my letter of March 22, 1974.

I did not mean to suggest in that letter that there is no occasion for legislation relating to the Department of Justice as it exists as an executive department. It seems to me that there is basis for very serious Congressional consideration of the "workings" of the Department in criminal law, antitrust and perhaps other areas in which governmental action of a more or less adjudicatory character is taken upon behalf of the government. In my judgment this. is an area of urgent concern as to which, short of the requisite study, I would make no particular policy recommendations.

There is an extra-legal aspect of the work of the Department which has concerned me for many years. As long ago as 1955 I expressed strong objection to the role of the Department in the selection and promotion of federal judges. For the attorney general and his associates to have an important hand here is to have them in a position of influencing substantially the selection and promotion of the very judges before whom they appear as government lawyers. Obviously the President could set up an advisory panel not composed strictly of lawyers to assist him in the discharge of this important responsibility. Sincerely,

HON. SAM J. ERVIN, JR.,

JEFFERSON B. FORDHAM.

BOSTON COLLEGE LAW SCHOOL, Brighton, Mass., February 26, 1974.

Chairman, Subcommittee on Separation of Powers, Committee on the Judiciary, U.S. Senate, Washington, D.C.

DEAR SENATOR ERVIN: I very much appreciate the opportunity of commenting on Senate Bill 2803. The great problems involved in the misuse of the Department of Justice for political purposes justifies strong legislation to develop the necessary remedies.

I am somewhat troubled, however, by several items in your proposed bill. There are many times when the Department has acted as the legal arm of the executive in carrying out policies that are a part of the philosophy of the elected executive. In some cases, such as variations in interpretation and enforcement of anti-trust or tax policy, it may well be that consistency is as valuable or more valuable-than the expressions of differing executive policies, even if established by an elected president. But in some of the civil rights situations, most notably under Presidents Kennedy and Johnson, I would be disturbed if the president did not have the power to control the action of the Attorney General.

If the functioning of the Attorney General's office were subject to constant and informed public scrutiny, it would seem that the goal of insulating the office from inappropriate domination by the department might be met. The Attorney General would still, for example, represent the executive offices and departments in attempting to establish their particular doctrines and concepts of what the law required, which might be troublesome under your proposal. The alternative, of course, would be to set up a separate legal office for the executive department, which is not inconceivable since it has been largely done by the use of presidential counsel at least as to the president himself. But this would create another bureaucracy, and should be avoided if possible. Could a review board, made up of members of Congress, representative of the executive, and with a balance of public members be set up to conduct a continuing review and publicity function? Such a board could not do this work itself and would require an alert, intelligent and informed full-time staff. My thought would be to avoid an independent agency but to assure that no undue influence was operating within the Department. I recognize the limitations of this proposal but I am reluctant to remove the control of the Department from an elected president and put it into the hands of an appointed

official. The removal power, as you know, has never proven a very adequate means of controlling appointive officials.

In the light of my worry about the basic concept, I am also troubled by the proposal for a six-year term. A one-term president might never have a power to appoint the Attorney General and I do believe that this amount of control would be desirable under any circumstances.

On balance, I believe I fear that a fourth branch of government might develop under your proposal. The Attorney General, except on the issue of length of tenure, would be as independent as a member of the judiciary. As I conceive of the function of that office, the Attorney General has the duty to represent the executive and to advise and litigate for the executive. This may be a narrow view but I would want to be certain that such representation was possible, even if it meant the creation of another office that would have the function of legal aids to the executive.

I do approve of the removal of the assistant attorneys general, the United States attorneys and particularly the Director of the Federal Bureau of Investigation from political appointment by the president. In a very real sense, these professionals, not beholden to the president or the Congress, would be able to have an independence they do not now have. This would tend to avoid the pressures to which they are now subject.

I congratulate you upon an imaginative and valuable proposal to the problems we all, I think, feel exist and which, even if they did not exist, would still be properly the subject of worry. The concept of an independent agency, if staffed by people of the highest professional quality, is very persuasive. My fear relates to the necessity of assurance of the maintenance of the highest of professional quality and I am uncertain if an independent agency would accomplish this better than the present organizational pattern. I am inclined to believe that the present structure, if the department had to be publicly and visibly accountable, would be effective.

Respectfully yours,

RICHARD G. HUBER, Dean.

BRIEF STATEMENT OF PROF. MISHKIN EXCERPTED FROM A MARCH 28, 1974 LETTER TO SENATOR ERVIN

(Prof. Paul J. Mishkin of the University of California, Berkeley, School of Law (Boalt Hall) was to be a witness at the hearings, but illness prevented him from testifying.)

I hope, Sir, that you will not consider it presumptuous of me to commend you warmly on the nature and the breadth of the hearings you are holding. I share most strongly your sense of the importance that there be assured and visible independence in the major law enforcement agencies of the Federal Government. This is of course especially true as to the Department of Justice. I am not, however, persuaded at this point that the best method to achieve the desired goals would be to establish the independence of the Justice Department from the rest of the Executive.

Toward the latter part of last year I did outline my concept of a totally independent Counsel General of the United States-an office which would combine certain prosecutorial and certain ombudsman-like functions-with the broad objective of strengthening the regularity of the use of high power in this country. Though that paper was prepared for a somewhat different framework (the conference cosponsored by the Senate Select Committee on Presidential Campaign Activities under S60 and the Center for the Study of Democratic Institutions), it may serve at least to sketch out major lines of development which I see as necessary. That paper should be published shortly, and an advance copy would undoubtedly be available to your request.

What has been emerging with increasing clarity in general is the recognition that with the constantly increasing size and responsibility of our Federal Government, wisdom may dictate institutional reforms to help maintain and improve the integrity-both real and evident-of the processes of our Government.

Various approaches have been suggested, and certainly no one stands out as the preeminently sound resolution. It is, of course, also true that we seek a solution which will work an enduring, rather than temporary, improvement in our structure of government. For these reasons, I was particularly impressed

by your recent decision to expand the scope of your Subcommittee's hearings to focus also on Senator Cranston's recent bill (S2978). For it may well be that the kind of Study Commission approach which he suggests would prove in fact the most fruitful line of progress at this point.

STATEMENT OF ROBERT MORGAN, ATTORNEY GENERAL OF NORTH CAROLINA

First, I would like to say that all Americans owe a debt to the Subcommittee and to its distinguished Chairman, Senator Sam J. Ervin, for furnishing a forum to discuss the vital issue of ensuring the independence and integrity of the United States Department of Justice.

I am not prepared to endorse or oppose either of the two specific measures that are before the Subcommittee. Senator Ervin has said that his proposal, S. 2803, is designed to provide a point of departure for informed discussion. Senator Cranston's bill, S. 2978, does not propose a final solution, but calls for a commission to study the question of whether a permanent special prosecutor should be created. This moderate approach is commendable. A matter of such importance should undergo thorough consideration before legislation is enacted.

I wholeheartedly support the need for some legislation to remove the Department of Justice from politics, but don't think we are now able to say with certainty what from this legislation should take. This Subcommittee has heard statements by an array of distinguished scholars. The Select Committee on Presidential Campaign Activities probably will have suggestions to make concerning the Department of Justice. The problems that have led to this review are of fundamental importance to the integrity of our government. We must seek solutions that will endure for generations to come and that will ensure the effective administration of justice.

Any legislation adopted should not be viewed merely as an aftermath of Watergate. Rather, it should be seen as an effort to clarity the status of the Attorney General and to prevent recurrence of political status. This is the third time in fifty years that an Attorney General has been implicated in charges of corruption; in 1924 and in 1952 Attorneys General resigned or were dismissed because of scandals. The Watergate scandals and subsequent events have cast an even greater cloud over the Department than these earlier scandals.

We must take steps to insulate the Department of Justice from the political pressures that have brought about these recurrent crises, with their accompanying loss of public confidence. We must end the practice of putting campaign managers or political cronies in charge of the Department of Justice. We must ensure that the Department which is most responsible for the just execution of our laws is not itself party to unlawful activities.

I have been honored to serve as Attorney General of North Carolina. While there are some significant differences between the office of Attorney General at the state and the national level, both still serve the same basic role . . . to act as attorney for the people. We do not act as attorney for a President or a Governor, but for the sovereign power. In America, this sovereign power is the people.

As a state Attorney General, I have served with a Governor of my own political faith and with a Governor of the other party. In neither case have I viewed my job as part of the Governor's staff. My office gives impartial advice, based on our best judgment of the law, to state departments. We exercise our duties in prosecution and appellate cases with no regard to personalities, power or politics. Our state Bureau of Investigation investigates apparent crimes and wrongdoings without reference to the wishes of the Governor, be he Republican or Democrat. We have built an excellent staff, without concern for their political affiliations. Through programs such as our Consumer Protection Division, we have made the resources of the Department of Justice available to all of the people.

This is my concept of the Attorney General-to serve as the state's chief law officer, giving his allegiance to the law, not to political leaders or power groups. To protect this concept, I have chosen to continue to serve as Attorney General while running for the U. S. Senate, to ensure the continued inde