"Comparison of the spectacular disclosures of corruption made by the N.Y. Extraordinary Grand Jury with Thomas Dewey as special prosecutor and by the Michigan one-man grand juries assisted by special prosecutors with the results of ordinary grand jury investigations conducted by regular prosecutors underscores this conclusion. The burden should be shifted to the district attorney to come forward with evidence of his fitness to conduct an investigation of his political associates." David C. Toomey, "Discretionary Power in the Judiciary to Organize a Special Investigatory Grand Jury," 111 U.Pa.L.Rev. 954, 970 (1963).

As Senator Bayh's bill to create an independent Watergate Special Prosecutor declares in its findings and declarations, "Public confidence in the integrity of the nation's criminal justice system cannot be maintained if the investigation of allegations and prosecution of illegal acts of high officials of the Executive branch of government are carried out under the authority of the Executive branch itself." Findings and Declarations in Support of the Independent Special Prosecutor Act of 1973, p. 3 (Oct. 26, 1973). The Supreme Court states in Humphrey's Executor v. United States, 295 U.S. 602 (1935), "one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter's will.

That's why public sentiment would favor a statute establishing a special prosecutor as an agency completely independent of the President, to be appointed by a court. The power of Congress to establish independent agencies is unquestionable.

THE PROPOSAL

The National Law Center Special Prosecutor Task Force proposes that Congress enact the following bill empowering Federal District Courts to appoint a Federal Special Prosecutor when justice demands it:

A bill to provide for the appointment of a Special Prosecutor to represent the United States in certain criminal cases.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

1) That this Bill shall be known as the Federal Special Prosecutor Act of 1974; and

2) That section 543, title 28, United States Code (chapter 35, part 2), shall be amended to read as follows:

$ 543. Special Prosecutors

a) The Attorney General may appoint attorneys to assist United States Attorneys when the public interest so requires. Each attorney appointed under this subsection (a) is subject to removal by the Attorney General.

b) (1) Whenever it shall appear that a United States Attorney, whose duty it is to attend upon a district court and prosecute as required by law or to conduct other business over which the court has jurisdiction, is disqualified by a conflict of interest or otherwise, disabled or unable to appear for any other reason and the United States Attorney General, after reasonable notice of such disqualification, disability or inability, has filed to act under subsection (a) above, the judge or judges of the district court before which it is his duty to appear shall have full power to appoint such attorney or attorneys as it deems necessary to act as special prosecutor, special counsel to a grand jury or perform such other functions as are required by justice and the public interest. Each attorney so appointed is subject to removal by the court.

(2) Nothing in this section shall be construed to be in derogation of inherent powers of the courts to disqualify counsel from appearing before them when counsel suffer from potential or actual conflict of interest.

(3) The Supreme Court of the United States is authorized to prescribe, from time to time, rules of procedure to carry out the provisions of this section.

(4) The salary and reasonable expenses, including expenses for office space, secretarial and clerical assistance, and necessary equipment, of the Special Prosecutor or Special Counsel appointed by the court shall be paid out of the regular appropriations made for the Department of Justice or such other fund as Congress may appropriate.

STRUCTURE AND CONTENT OF THE ACT

The structure of the proposed act was dictated by its goal: to provide a simple, reliable mechanism for the appointment of an alternative counsel for the government in cases where the regular U.S. Attorney is disqualified to properly exercise the functions of a federal prosecutor.

The present section 543 of Title 28, United States Code is retained. Under this section the Attorney General is given primary responsibility to see that the United States Attorney assigned to any case is not hampered by a personal conflict of interest or other disability. The Federal Special Prosecutor Act is directed only at that extraordinary case in which a disqualification or disability exists and the Attorney General though aware of the situation does not act as justice and the public interest require. In such a case the district court is empowered to act and appoint someone who can represent the people with undivided loyalty.

The first paragraph of the Act contains the major authorization. Leaving specific procedure to be worked out by the judiciary, the new law clearly sets out the basic criteria application of its provisions. The district court, before exercising the authority here conferred, must find: 1) that some matter, over which the court has jurisdiction, demands the attendance at court of the U.S. Attorney; 2) that justice and the appearance of justice are incompatible with appearance in that matter of the regular prosecutor; and 3) that the Attorney General, with knowledge of this detriment to the public interest, had not acted under subsection (a) of the law. Only then could the court appoint an independent counsel to exercise the authority and discretion of counsel for the government as to the pending matter.

The second paragraph of the Federal Special Prosecutor Act leaves with the Supreme Court of the United States responsibility for promulgating the specific rules of procedures under this section of the law. This seems no more than assigning the task to those best able to perform it. Similar approaches were used in drafting the Federal Rules of Civil Procedure and the Proposed Federal Rules of Evidence. Procedural rules drafted by the judiciary seem more likely than those fashioned by the legislative process to content themselves with governing the form and not the content of the proceeding.

Finally the Act disclaims any intent to limit the common law power of courts to disqualify counsel for any party for appearing in a matter when their loyalty to the client is not complete. There is a real question as to whether any attempt to limit this power would be constitutional. In any event, there is no reason to believe Congress would do so if it could.

Provision is also made for payment of salary and costs out of regular Justice Department funds or special appropriations. This should insure that economic considerations do not interfere with the capacity of a Special Prosecutor to do justice.

STATE EXPERIENCE

The Special Prosecutor device is not a new answer to the problem of conflict of interest in the office of the regular prosecuting office. The overwhelming majority of states, forty-two, have seen the utility of some Special Prosecutor provision. Thirty-two state legislatures have by statute placed appointing authority in trial judges of general jurisdiction. A substantial number of state courts have claimed that appointing authority as an inherent right.

This experience of the states with special prosecutors seems to be relevant in two ways here. First, the use of the device by state governments for over a century indicates the utility of such provisions and their resilience under a variety of court challenges. Second, the success of the state statutes, representative samples of which appear in the appendix, demonstrate the workability of a concise, uncomplicated statutory provision. The samples set out in the appendix were chosen because they reflect the common trends in the various state laws. Almost all are rather short giving authority to trial court judges to appoint a special prosecutor whenever a conflict of interest or other disability disqualify or prevent the regular prosecutor from appearing properly before the court. This should appear also from the table of state provisions in the appendix and statutes there cited.

The table in the appendix includes citations to the state court holdings which assert that the right to appoint a special prosecutor is a right belonging to all courts charged with administering the criminal laws. These cases and those, too numerous for citation here, upholding state special prosecutor statutes are of some interest in indicating that the state courts have refused to find prosecution by a special prosecutor violative of a defendant's due process rights, e.g., Tomlinson v. State, 182 S.E. 2d 320 (Ct. of App. Ga. 1971); People v. Doss, 48 N.E. 2d 213 (App. Ct. III. 1943), cert. denied 321 U.S. 789 (1943). Rather than attempt to annotate the experience of the several states in this area we have chosen to examine a single state's representative experience with the office of special prosecutor.

For extended discussion it is perhaps enough to note the experience of the State of Illinois. That state's law is typical of statutes in many other jurisdictions. (See examples Appendix 1B.)

"Whenever the Attorney General or State's Attorney is interested in any cause or proceeding, civil or criminal, which it is or may be his duty to prosecute or defend, the court in which the cause or proceeding is pending may appoint some competent attorney to prosecute or defend said cause or proceeding and the attorney so appointed shall have the same power and authority in relation to such cause or proceeding as the Attorney General or State's Attorney would have had if present and attending the same." Ill. Rev. Stat. Ch. 14, sec. This law has been challenged as violating Constitutionally mandated separation of powers. The Illinois State Constitution has a clause expressly setting out three branches of government, "Legislative, Executive, and Judicial", and proclaiming that no one, holding office in one branch, “shall exercise any power belonging to either of the others, . . ." Art. III, 1870 Ill. Const. The Illinois Supreme Court held that mere appointment, pursuant to and according to the terms of the statute, was not violative of separation of powers or the state constitution. Tearney v. Harding, 166 N.E. 2d 526 (Ill. Sup. Ct. 1929). Appointing an officer to exercise the prosecutorial function was found not to be an invasion of executive function.

In the very recent history the existence of this law has proved dramatically useful to the State and people of Illinois. The entire and more specifically, the City of Chicago had been aroused by the circumstances surrounding the policemilitant shootout at a Black Panther headquarters. An initial county grand jury charged only crimes against seven Panthers. Then a federal grand jury, investigating whether the civil rights of Hampton and Clark (the dead Panthers) had been violated by the police, declined to indict anyone, but did report that the evidence was contrary to some of the police claims. Shortly before the federal grand jury's report. State's Attorney Edward Hanrahan's office had abruptly reversed itself and decided to drop the Panther indictments because of "faulty" evidence.

In the midst of all this and the resulting press and public pressure, a special county grand jury was convened to look into the whole affair. Because of the potential conflict of interest for the regular prosecutor, Chief Criminal Courts Judge Joseph Power appointed a Special Prosecutor for the case. Barnabas Sears, who among other distinctions had once before served in the same post and resolved a police scandal by winning 8 convictions, was appointed to handle this case. This appointment also survived litigation. People v. Sears, 49 Ill 2d 14, 273 N.E. 2d 380 (1971). In light of the situation's obvious potential to produce not just distrust of government, but social upheaval, it is difficult to imagine a better example (except perhaps the appointment of Archibald Cox) of the efficacy of the special prosecutor device in a system of government like our own. Of course in this case, where charges ran directed against the regular prosecutor, a man with close political ties to other members of the Executive Branch of government, there was no suitable alternative to judicial appointment. It may require the judgment of history to proclaim the Sears appointment a total success but the impropriety of asking Mr. Hanrahan to investigate his own office is clear.

It is possible to cite other examples of state special prosecutors who have served both justice and the public interest in maintaining the appearance and fact of justice. From Nadjari and Dewey in New York the use of special pros

ecutors runs back at least to the appointment in White v. Polk Co., an 1864 Iowa case. It should be enough, however, to say that a solution exists, tried, tested and found workable in the laboratory of state government, for what seems an inevitable problem. The logic of adapting such a successful state device to the Federal system seems to require little more argument.

WHY A SPECIAL PROSECUTOR IN THE FEDERAL SYSTEM?

In recent times numerous allegations and even proofs of political influence on the Justice Department have surfaced. This is a tragic development in our system of laws because our government rests fundamentally on a faith that public officials act for the general and not the individual good.

APPEARANCE OF JUSTICE

In this time of uncertainty about the morality of public officials it is extremely important not only that justice be done but that the people believe it is being done. Faith must be restored. Perhaps the very essence of democracy is that the people consent to be governed under a system in which they believe. Democracy is dependent on maintaining the public's faith, trust and confidence.

"The Preamble to the Canons of Ethics admonishes the members of the bar that their conduct should be such as to merit the approval of all good men. That conduct should not be weighted with hairsplitting nicety. We have found no exceptions to the exhortation to 'abstain from all appearance of evil.'" U.S. v. Traffcante, 328, F.2d 117, 120 (5th Cir. 1964).

A case having to do with judges' duties and the importance of maintaining both the fact and the appearance of justice, Saunders v. Piggly-Wiggly Corp., declares, "Parties are entitled to a determination of these rights by an individual to whose acts there should not exist in the mind of either party any doubt but what even and exact justice will be done and an impersonal consideration and determination of the questions is made." 1 F.2d 582, 585 (6th Cir. 1924). The Justice Department in our situation has to make a judgment of whether to prosecute and that decision is as important to the parties as any judge-made decision.

ABA President Chesterfield Smith in a speech on October 25, 1973 pointed to the ABA Standards for Criminal Justice, which provide that the prosecuting officer should have no conflict of interest, or the appearance of a conflict of interest. He concluded:

"Thus, under that standard, it clearly was and is improper for an investigation of the Executive Branch of the government to be conducted by a prosecutor who is under the control and direction of either the President himself or some other person who himself is under the direction and control of the President. (This is so because :) It has never been suggested to my knowledge that the truth of opposing contentions could be fairly and equitably ascertained if one of the opposing parties before the court could determine what evidence and what contentions his opponent could present to the judge or jury for consideration." Speech to Nat'l Legal Aide Defender Assoc., Oct. 25, 1973, pp. 4-6. The Supreme Court in Tumey v. Ohio, said that "the requirement of due process of law in judicial procedure is not satisfied by the argument that men of the highest honor and the greatest self-sacrifice could carry it on without danger of injustice." 273 U.S. 510, 532, (1927). The Supreme Court of Iowa said that it would be "a burlesque upon the law" if crimes went unpunished for lack of power in the courts to appoint a special prosecutor. White v. Polk County, 17 Iowa 413, 414 (1864). The total independence of the prosecutors is the only possible way that the American people will be satisfied that complete fairness, thoroughness and impartiality are being observed. The public must know that the persons in charge of administering justice are totally free from any pressure from the President or his associates.

PROSECUTORIAL CONFLICT OF INTEREST

There is ample judicial authority that a prosecuting attorney must not allow personal interest to influence his tactics or handling of a case. In State ex rel. Williams v. Ellis, the court said, "The prosecuting attorney owes a duty to both state and defendant, and, if the facts are such as to preclude the exercise of

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his full duty to both, he should step aside." 112 N.E. 98 (1916). The prosecutorial function cannot accommodate a split allegiance, for it is a position "... to be held and administered wholly in the interest of the people at large and with a single eye to their welfare." Attorney General v. Tuffs, 239 Mass. 468, 489, 132 N.E. 322, 326 (1921).

The entire matter of Special Prosecutor and particularly the concept of a prosecutor's qualifications as a proper concern of the judiciary is well treated in an article by three Georgetown Law Students working under the supervision of Samuel Dash. Their authoritative and exhaustive research is especially in point here.

"In accordance with this strong distrust of the 'interested' prosecutor, state courts have further recognized that it is not only their right, but their duty, to fill the need for impartial enforcement. In State ex rel. Latham v. Spencer Circuit Court, the court found cause to appoint a special prosecutor where it was shown that the regular district attorney was hostile and prejudiced toward the interest of the one for whom the prosecution was brought. The proposition that an attorney cannot properly represent one where he maintains an antagonistic interest toward that party was deemed 'elementary.' In that instance, the prosecutor concedes his incapacity to act and it is the court's affirmative responsibility to replace him as to that matter. Similarly, in Hendicks v. State, the court granted a request for the appointment of a special prosecutor due to the district attorney's prejudice and voluntary inaction in the face of racketeering, professional gambling, corruption and high crime. Recognizing that but for its action citizens would be helpless in their desire for 'an active, good-faith prosecution,' the court deemed such circumstances to justify the disregard of prosecutorial discretion." Schneider, Greenspan and Anazalone, "The Special Prosecutor in the Federal System: A Proposal," 11 Am. Crim. L. Rev. 576 (1973) (footnotes omitted).

The Supreme Court of Missouri has declared it essential that a prosecutor's discretion "be exercised in accordance with the established principles of law, . . . (and) according to the dictates of his own judgment and conscience and not that of any other person." State v. Wallach, 353 Mo. 312, 322-23, 182 S.W. 2d 313, 318-19 (1944). And the Supreme Court of the United States has held that it violates due process of law for a judge to have a pecuniary interest in the outcome of a case. Tumey v. Ohio, supra, 273 U.S. 510 (1927).

Enactment of the Federal Special Prosecutor Act of 1974 would go a long way toward insuring that our Federal Prosecutors are free to investigate political corruption and abuse of office wherever it appears. Further it would guaranty to the people and defendants in politically connected trials the kind of even handed justice the Tumey Court held is demanded by due process.

CONSTITUTIONAL CONSIDERATIONS

Something should be said as to the constitutional implications of enactment of the Federal Special Prosecutor Act. The discussion which occurred concerning various Watergate Special Prosecutor proposals indicate that two points should be clarified. First, Congress clearly has the power to authorize judicial appointment of Special Prosecutors. Secondly, the cases and leading commentators do not support any contention that exercise of this Congressional power would in any way infringe the Doctrine of Separation of Powers.

CONGRESS HAS THE POWER

There can be no serious question but that the United States Constitution gives to the Congress ample power to enact this law. "The Congress may by Law vest the Appointment of such inferior officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." Art. II, sec. 2, cl. 2. This power was exercised in the enactment of the present $543 (a) under which the Attorney General acted to appoint Messrs. Cox and Jaworski. No reason appears, however, to assume that the current law is any exhaustive exercise of the Congressional power to provide for the appointment of public officials. The Federal Special Prosecutor Act should be seen as merely a further use of that power.

Leon Irish, former clerk to the United States Supreme Court and respected member of the District of Columbia Bar, has written a thorough exposition of this point.