and the advice of a broadly representative consultative body. The aim is a balance between public stature, technical and intellectual expertness, and a popular expression in the policy and program of the Institute.

Section 4 provides for the Board of Directors. There are to be 16 directors, a number large enough to have wide representation and yet small enough to assure efficiency and direct responsibility in supervision of the affairs of the Institute. The bill provides that the directors be appointed by the President subject to confirmation by the Senate. While several alternative approaches were considered, including appointment of some members of the Board by Congress, the Chief Justice, representative of the 50 states, or other persons, it was determined that the time-honored method of Presidential selection had the most to recommend it. The Board membership should reflect various points of view concerning the work of the Institute, distribution according to geography and vocation, representativeness according to age and experience, and other factors pertinent to establishing its national stature. Achieving this balance, and at the same time avoiding a Board made up of spokesmen for specific constituencies, would be difficult with multiple sources of appointment.

The directors are to be chosen on the basis of professional stature and civic concern. Members of the Board may include officials of government, including state and local government and judges, but all appointments are to be made without regard to partisan or special interest affiliation and with due concern for establishing a broadly representative group. The cause of justice is far too great to be left entirely in the hands of the legal profession, and a substantial number of directors should therefore be appointed from fields other than law. In making his nominations, the President is requested to solicit and give consideration to suggestions from persons having special concern for the Institute, but he is not obliged to nominate any particular person who may be suggested nor to provide representation to any specified constituencies. The terms of the Board members are four years, in terms staggered to provide continuity. A limit_of two consecutive terms is imposed to provide gradual turnover on the Board and thus the introduction of fresh viewpoints and abilities. The Chairman and other officers of the Board are to be chosen by the Board from its members. It is contemplated that the burdens of time and effort falling on the Chairman will be very substantial, and those on the other officials similar though in lesser degree. The Chairman in particular should therefore be a person who is able and willing to give substantial and continuing attention to the business of the Institute. The Board would be in the best position to know which of its members could most effectively discharge these responsibilities. Section 4(d) authorizes the Board to constitute necessary committees, including an Executive Committee. This will permit the Board to give close and continuing attention to the program of the Institute. To the same effect is the provision in Section 4(e) (1) that the Board shall meet at least quarterly.

The remaining provisions of Section 4 specify responsibilities and authority of the Board. The Board is required by Section 4 (e) (3) to disseminate its program plans and proposed projects on a periodic basis. This provision, as noted earlier, is designed to facilitate coordination of the Institute's program with that of other public and private agencies concerned with law and the administration of justice. It should also provide the Institute with valuable critical commentary on the feasibility and value of projects it is considering to undertake. Section 4 (e) (4) requires the Board to monitor the programs of the Institute, which is its inherent responsibility in any event, and to cause evaluations to be made of the Institute's work. The aim is to make sure that the Board has independent advice concerning the usefulness and progress of projects it has authorized. Section 4(e) (5) requires the Board to make an annual report on behalf of the Institute. The report is to be addressed to the people as a whole and not to any particular agency of government for the points of implementation of its findings or recommendations, depending on their subject and substance, may be either legislative, judicial, or executive at national, state, or local levels of government.

Section 5 provides for an Executive Director to be appointed by the Board. The Executive Director is chief adminstrative and professional officer of the Institute, but is responsible to and subject to the direction of the Board, by whom he may be removed.

Section 6 provides for the Council. The size of the Council is to be determined by the Board within the limits of 50 to 100 members. It is contemplated that the number may vary from time to time, depending on experience as to the participation of Council members and on availability and willingness to serve of properly qualified individuals. The Board is directed to constitute the Council in such a way as to provide very broad representation and should be able to give virtually every state at least one representative while also providing a wide cross-section of civic, vocational, professional and individual interests. It is not intended that any specific area, group or type of organization have a representative on the Council. Thus, no representative from each state or any other group is mandated, although such a proviso was urged by one member. The Council is to express the interest and concerns of the country at large and not any special constituency.

The Council is intended to serve as a forum for suggesting matters to which the Institute should give its attention and for reviewing and commenting upon endeavors which the Institute has undertaken. It is empowered to have committees created and to make reports and recommendations to the Board. It is not empowered to speak for the Institute, nor to authorize expenditure of Institute funds. The Council will thus be dependent on the force of persuasion to make itself effective. If the Board exercises its power of appointment with vigor and diligence, as it may be expected to do, the Council can provide both guidance and strong public support for the efforts of the Institute. Sections 7 through 10 are housekeeping provisions, patterned after those in effect for comparable independent agencies already constituted by law. The prohibition in Section 8 on political activities applies to the Executive Director and other staff members of the Institute. It would not prohibit persons who hold political office, for example a state governor, from being on the Board. Section 10 authorizes an appropriation, which must be provided through the normal budgeting and appropriating process. No figure is specified, but it is contemplated that the Institute's budget would initially be on the order of $2 to $5 million annually.

[From the Congressional Record, Feb. 7, 1974.]

REMARKS OF SENATOR CRANSTON ON INTRODUCING S. 2978

COMMISSION ON AN INDEPENDENT PERMANENT PROSECUTOR

Mr. CRANSTON. Mr. President, today I am introducing legislation to establish a commission to study the establishment of an independent permanent mechanism for the investigation and prosecution of alleged wrongdoing by high Government officials.

I believe that we owe the Nation a permanent answer to the need for swift, sure investigation and prosecution of high Government officials when evidence of alleged wrongdoing on their part comes to light.

One of the tragedies of the Watergate affair has been that so much of the early investigation and prosecution was conducted under clouds of suspicion and doubt. It was only through the insistence of Judge John Sirica that the full story has begun to be unraveled-and we are not yet at the end.

To the great credit of Mr. Leon Jaworski and his predecessor, Mr. Archibald Cox, the Special Prosecutor's Office has managed to conduct a steady and thorough investigation which appears to be leading to conclusive results. The office has managed to do this in spite of the disruption caused by the President's precipitous dismissal of Mr. Cox and in spite of the President's continuing reluctance to cooperate fully in the turning over of relevant evidence.

But an improvished Special Prosecutor's Office is not a satisfactory answer to the need for restored public confidence that wrongdoers in positions of public trust in the future will be investigated and prosecuted.

Some ready and reliable way must be found to overcome the built-in conflicts of interest that appear to exist whenever the powerful are asked to investigate themselves.

Too often there has been an appearance that corruption in high places is being swept under the rug. Because of the very nature of the Department of Justice, with the Attorney General so often, in recent years, a chief companion or key political adviser to a President, certain criminal and civil cases

always are subject to question as to whether justice really is being done and whether the public interest is well and fully represented.

When incidents of corruption and scandal occur, administrations always face the temtation to keep such evidence from reaching public attention. Sometimes apparently persuasive reasons can be offered for handling such affairs in a quiet manner, but I believe that such expedient choices have cost the Nation greatly in loss of public confidence in the integrity of our political institutions of government.

I have believed for some time that we need some permanent mechanism which will restore public confidence that persons high in government who are accused of wrongdoing will be investigated and, if the evidence justifies, prosecuted.

The best first step is to study ways to set up a permanent means of triggering independent investigations and prosecutions of alleged wrongdoing by high Government officials.

Last June when the need for a Special Prosecutor in the Watergate affair arose, and our attention was focused on that matter in relationship to the nomination of Elliot Richardson as Attorney General, I asked my staff to consider how, legislatively, we might create some such permanent institution, so that we should not find our country improvising each time a crisis like Teapot Dome or Watergate develops. The matter is complicated, as we discovered.

One possible solution would be to establish machinery for bringing into existence a Special Prosecutor when allegations or actual instances of high official misconduct come to light.

One way to implement this would be to create a permanent Commission, independent and bipartisan, appointed by the President with the advice and consent of the Senate. The Commission, when certain types of allegations of official misconduct, abuse of public trust or political offenses came to light at a high level, would designate a Special Prosecutor to investigate and prosecute offenses against the United States arising out of the events and allegations brought to the Commission's notice.

There may be other and better approaches. So that we can consider and study the matter further, I am offering legislation establishing a special Commission to study the question of how the Nation should prosecute offenses involving high levels of the executive branch, particularly when the Justice Department-its top officials appointed by and answerable to the White House is called upon to investigate itself and the White House.

The Commission which I am proposing to study the feasibility of a permanent prosecutor would be composed of six persons who have achieved eminence in a field of public service, including the administration of justice, and who would be appointed by the Chief Justice of the Supreme Court. The Attorney General would be an ex officio member of Commission.

To preserve further the independence of the Commission, the bill exempts the Commission from those provisions of the Federal Advisory Committee Act which place similar bodies under the control of a full-time Federal employee, who typically is a political appointee of the Executive. This Commission will have the power to select and hire its own executive director and other personnel.

The Commission also is directed to consult with the Special Prosecutor to obtain the benefit of his experience.

The Commission will have 1 year in which to conduct its study and prepare its report. Following submission of the report to Congress and the President, the President and the Department of Justice are directed to respond to the recommendations of the Commission within 90 days. The Commission continues its existence in the meantime and does not expire until 90 days following the submission of the President's response to its recommendations.

Among the questions which the study Commission should consider would

be:

What categories of possible violations of Federal law and other instances of official misconduct should be subject to the jurisdiction of a permanent prosecution machinery? What would trigger action by the permanent prosecution machinery? Who would have standing to bring accusations before it?

Should there be a permanent prosecutor who serves for an extended term, such as 15 years?

Do we want a Special Prosecutor on hand all the time-looking for some high official to prosecute?

Should we have instead a permanent independent and bipartisan Commission empowered, under specified and appropriate circumstances, to designate a Special Prosecutor?

Should Congress confirm the prosecutor?

Under what conditions could the prosecutor be removed from office?

What safeguards would be necessary to protect against mischief, abuses, or political bias by the permanent prosecutor or the permanent Commission for appointment of a special prosecutor?

Should the special prosecutor function as a check on investigations and prosecutions carried out for partisan political purposes? Should the permanent special prosecutor have jurisdiction over all official misconduct to the exclusion of the Department of Justice?

I have no instant answers to any of these questions. I do not believe they, along with similar issues, should be studied by a Commission consisting of experienced and able persons in the field of administration of Justice, as I am proposing today.

Currently, there is renewed interest in the need for solutions to the problems of independent investigation and prosecution of Government officials.

On February 9, the Committee for Public Justice, under the direction of Leon Friedman, will conduct a seminar on establishing a permanent prosecutor. Speaking that morning in room 1202 Dirksen Senate Office Building will be Lloyd Cutler, distinguished Washington attorney, who has written on the need for a permanent prosecutor. The seminar will be part of a 3day series of discussions of the Politics of Justice with emphasis on the problem of political influence in the administration of justice by the Department.

In addition, a group of law students under the direction of Prof. John Banzaff III of George Washington Law School have prepared an excellent memorandum on their proposal for a permanent Federal Special Prosecutor. In their memorandum, Messrs. Peter Dingman and Ira Meiselman list the numerous State statutes providing for special prosecutors. As they observe, "one of the ironies of the furor over a Federal Special Prosecutor is the fact that State governments have traditionally provided for this device and used it successfully in a variety of ways."

Since I believe that this memorandum serves as an excellent source of information and material on the question of a Special Prosecutor, I ask unanimous consent that the full text be printed in the RECORD. I also ask unanimous consent that the text of my bill be printed in the RECORD.

There being no objection, the bill and memorandum were ordered to be printed in the RECORD, as follows: 1

FEDERAL SPECIAL PROSECUTOR ACT OF 1974

(A memorandum by Peter A. Dingman and Ira Meiselman, Co-Chairmen, Special Prosecutor Task Force, National Law Center, George Washington University, Washington, D.C.)

INTRODUCTION

This pamphlet proposes the enactment of the Federal Special Prosecutor Act of 1974. Adoption of this law would, without any extreme alteration of governmental machinery, put the Federal District Courts in a position to circumvent any conflict of interest in the office of the United States Attorney without subjecting the nation to new crises or abusing faith in our system of justice by expecting the public to believe that a prosecutor can fulfill the high duties of his office impartially when the accused are friends and colleagues.

The Federal Special Prosecutor Act of 1974 is based on successful state experience with judicially appointed special prosecutors. Research into the prob

1 See S. 2978 at p. 264.

lem of conflict of interest in the office of the prosecuting attorney by the National Law Center Special Prosecutor Task Force reveals that the overwhelming majority of state governments have recognized the seemingly inevitable possibility that a prosecuting attorney may be called upon by the duties of his office to investigate those toward whom he cannot be impartial. Forty-two states have by statute provided for the appointment of a special prosecutor in such circumstances. These laws have worked for the states and the Federal Prosecutor Act of 1974 would adapt their form and substance to the Federal System.

Congress has the power to enact this law. Article II, section 2 of the United States Constitution vests with the Congress the power to grant courts authority to appoint public officers. The Federal Special Prosecutor Act of 1974 would exercise this power to place appointing authority in the least political arm of government and the one best suited to pass on the qualifications of counsel who would appear before the bench. Because the authority conferred on the courts would be only appointing authority and not power to interefere with the exercise of prosecutorial discretion, the Doctrine of Separation of Powers would not be infringed.

The Federal Special Prosecutor Act of 1974 is the answer to a problem unavoidable where the duty to investigate and prosecute political corruption is placed on men with strong personal and political ties to those who may be accused of crime. Similar laws have met with success in state experience. Recent events suggest it is already past time for Congress to use its power to enact such a statute.

THE PROBLEM

The continuing uncertainty swirls around one constant: the U.S. system is not very thoughtfully set up for dealing with misconduct that involves the top ranks of an Administration. Time, Dec. 3, 1973. p. 73.

The Problem addressed here is, quite simply, a crisis in public confidence in the integrity of elected government and its ability to cleanse itself of officials who abuse their offices. More specifically, suspicions, allegations and actual revelations of mishandling and improper influence of cases before the United States Department of Justice have denigrated faith in Justice as a vigilant prosecutor of crimes against the public trust. Within very recent history the nation has been shocked by too many instances where the impartiality of investigation and prosecution has been left an open question. The inference is easily gathered that some crimes go unpunished.

If we look back only a couple of years we find that the special prosecutor has been used in several prominent cases-Nadjari in New York, Cox for Watergate, Sears for the Hanrahan case, and quite possibly one should have been appointed for Agnew. Even though there may be only a few cases which would require a special prosecutor it would be well worth it even if it's needed only once because these cases are so important.

It is a shame to go from crisis to crisis if we don't have to. We should not wait for a new crisis to pass a comprehensive bill. One thing our proposal would do would be to influence the Justice Department and other government agencies. They would be aware of the possibility of a disinterested person checking into the matter. This is not an insult to the Justice Department. The states have recognized the possibility of this sort of conflict of interest and have provided for it.

The problem was defined well in Governor Rockefeller's statement of September 19, 1972 announcing the appointment of Nadjari as special prosecutor to investigate corruption in the New York City criminal justice system. “Under the present circumstances only an independent agency with citywide authority, assigned a clear and specific mission and armed with full prosecutorial power and independent investigation capacity, can break through the natural resistence of government agencies to investigate themselves of their close allies."

A University of Pennsylvania Law Review article puts it:

"The realities of political life raise serious doubts that an investigation controlled by a prosecutor who owes his position and salary to those under investigation will be faithfully and rigorously pursued.