"The critical provision of the Constitution (Art. II, sec. 2, cl. 2) states that the advice and consent of the Senate is required for appointment by the President of "Officers of the United States," and that "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." "Several things are made clear by this provision: First, the President has no inherent, constitutional authority to create offices of the Special Prosecutor. It lies with Congress to create by statute such offices as it deems proper for exercising the powers of the United States government and to decide which shall be "inferior offices." The President has his usual veto powers over such legislation, but he has no independent power to create offices.

"Second, the President has no independent, constitutional power to appoint the persons who will fill the offices created by Congress. The President's power to appoint 'Officers of the United States,' such as the Attorney General, is subject to the advice and consent of the Senate. As to the appointment of lesser officers, the Constitution says merely that Congress may give appointment powers to the President, the courts or department heads. Thus, whatever power he may have to choose personal advisers, the President cannot appoint officers to act for the United States without a delegation of authority from Congress to do so. Furthermore, whether any such appointment will require as a Special Prosecutor, which it might otherwise delegate to the President, the advice and consent of the Senate is basically for Congress to decide. "Finally, it is implicit in the constitutional provision just quoted that Congress may itself retain and exercise the power to appoint lesser officers, such department heads or the courts.

"In short, it is clear from the Constitution that Congress has the power to create an Office of Special Prosecutor. It is equally clear that Congress may withdraw from the President or the Attorney General any previously delegated power to create a Special Prosecutor and, by doing so, terminate the powers of any incumbent prosecutor. Congress may determine the jurisdiction and the powers of the Special Prosecutor it creates and either choose the individual who will hold that office or delegate that function to the courts.

"The fact that a Special Prosecutor had been appointed by a court or directly by Congress would not make him a judicial officer incapable of acting as a criminal prosecutor, or a mere arm of the legislature. The Special Prosecutor would have whatever powers and independence Congress conferred upon him by statute, and he could unquestionably be placed beyond the control or removal of the appointing body other than for gross improprieties or malfeasance." The Washington Post, Nov. 9, 1973, p. A30.

Article I, Section 8 of the Constitution is also in point and supports the legislation. It provides that the Congress shall have power over a wide scope of subject matter, and also "to make all laws which shall be necessary and proper for carrying into execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Offices thereof." As Chief Justice Marshall put it in McCulloch v. Maryland, 4 Wheat. 316, 415 (1910), the "necessary and proper clause" is a provision "made in a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs."

SEPARATION OF POWERS

Even though conceding that Congress has ample power to pass the Federal Special Prosecutor Act, some advance the Doctrine of Separation of Powers as a bar to enactment. This fear that the Doctrine, an interpretative gloss on the Constitution, is a barrier to exercise of the expressly granted Congressional power does not, on a review of the authorities, seem well founded. United States v. Cox is sometimes cited for the broad proposition, that prosecution of offenses is somehow an inherently executive function whose placement in any other branch would violate the Constitutional principle of separation of powers. 342 F.2d 167 (5th Cir. 1965). What the Court of Appeals said is that the prosecutor is "an executive official of the Government. It follows, as an incident of the Constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions." United States v. Cox, supra, at 171. (emphasis supplied) The Federal

Special Prosecutor Act is not inconsistent with this holding because it provides for judicial appointment but not control of a Special Prosecutor. When the regular U.S. Attorney is so entrammeled by a conflict of interest as to be unable to make free exercise of the discretion inherent in the office of federal prosecutor, the court is empowered to appoint someone capable of acting with independent discretion. No power is conveyed on the judiciary by this act, however, to order the performance of specific acts by the Special Prosecutor.

It is clear that merely giving the courts power to appoint Special Prosecutors in no way contravenes the doctrine of the separation of powers. Indeed, 23 U.S.C. 546 provides:

"The district court for a district in which the office of United States Attorney is vacant may appoint a United States Attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court."

United States v. Solomon, 216 F. Supp. 835 (S.D.N.Y. 1963), is the only Federal case to have passed on a Constitutional challenge to judicial appointment of a prosecuting officer. The appointment was made pursuant to 28 U.S.C. $546, above, authorizing the District Courts to fill vacancies in the office of United States attorney, and the court squarely held that this did not violate the doctrine of the separation of powers.

As Senator Bayh said:

"The doctrine of separation of powers is a functional one, stemming from the basic concept that each of the separate powers is designed to serve as a check and balance on the scrutiny and restraint exercised by the other holders of power if arbitrary government is to be avoided. It would be anomalous if this notion of separation of powers could be used to allow the executive to exercise power in its own case unchecked and unscrutinized-and produce the ironic result of the executive branch investigating itself.

"(T) he separation of powers is not a formal, rigid doctrine dividing our government into water-tight compartments. As the Supreme Court said in the famous and important Humphrey's Executor vs. United States, where the Court upheld the power of Congress to prevent that President from dismissing a member of the Federal Trade Commission, 'Whether the power of the President to remove an officer shall prevail over the authority of Congress to condition the power by fixing a definite term and precluding a removal except for cause will depend upon the character of the office.'" Findings and Declarations, supra, p. 6.

The leading commentators agree that the Separation of Powers Doctrine cannot be stretched to infringe the express appointment power of Congress. Leon Irish notes,

"As to separation of powers, the realities of government do not present themselves neatly creased in three labeled piles, nor does the Constitution require that we force all governmental functions into three preconceived molds. By virtue of congressional enactment, there already exists a 'headless fourth branch' (e.g., the independent regulatory agencies) which for all practical purposes operate independently of Congress, the President or the courts." supra, p. 30.

Raoul Berger, a leading Constitutional Law Authority wrote,

"Had the framers considered that appointments and functions fell into ironclad compartments, they would have lodged all ‘executive' appointments in the President. Instead they gave him quite limited powers of appointment and left the bulk of the appointment power in the discretion of the Congress. They left Congress free, in the present extraordinary circumstances, to place a prosecutorial function outside the executive department when quite plainly it could not be trusted to investigate and prosecute itself." New York Times, Nov. 7, 1973, p. 47.

And Anthony Lewis concludes,

"Separation of powers in the American Constitution is not a notion of neat and totally distinct packages. The idea rather is a system of sometimes overlapping, even conflicting authority.

"The constitutional purpose, Justice Brandeis said, was 'not to promote efficiency but to preclude the exercise of arbitrary power.' It would be ironic to put it mildly to say that a principle designed to avoid arbitrary power requires Presidential appointment of a prosecutor to investigate the President." New York Times, Nov. 12, 1973, p. 33.

INHERENT POWER

Indeed so far is the Federal Special Prosecutor Act from violating Separation of Powers it may very well only confirm an inherent power in all courts of criminal jurisdiction to appoint a Special Prosecutor when the need arises. There can be no doubt that a Federal District Court possesses the inherent power, and has the duty, to disqualify an attorney for conflicts of interest. E. F. Hutton & Co. v. Brown, 305 F. Supp. 371, 378 (S.C. Texas 1969) and cases cited therein. As Canon Six of the Canons of Professional Ethics provides, an attorney has no "obligation to represent the client with undivided fidelity", and "it is unprofessional to represent conflicting interests . . ."

"It is consistent with the public interest and welfare for any law enforcement officer directly or indirectly to represent any person involved in a criminal matter, except the state, or receive any personal profit or gain as a result of the arrest, conviction, or acquittal of one charged with the infraction of the law. The books are replete with cases indicating that any appearance of evil connected with the administration of public office should and must be avoided." State v. Detroit Motors, 62 N.J. Super. 386, 168 A. 2d 227, at 230 (1960) (emphasis added).

The standards for the disqualification of an attorney upon these grounds are "potential, no less than actual conflict of interest." International Brotherhood of Teamsters v. Hoffa, F. Supp. 246, 256 (D. Ct. D.C. 1965). Disqualification should be ordered whenever an attorney has "potentially conflicting obligation." Id. As the Second Circuit recently stated, the court had discretion to "nip any potential conflict of interest in the bud." Tucker v. Shaw, 378 F.2d 304, 307 (1967). See Annot. Disqualification of Prosecuting Attorney on Account of Relationship with Accused, 31 A.L.R. 3d 953, for discussion of the court's power to disqualify a prosecuting attorney and its duty to appoint a special prosecutor to replace him.

Thus it can be argued (and it has been by a noted George Washington University Law Professor) that Federal District Courts might create a Special Prosecutor by disqualifying a U.S. Attorney for conflict of interest, then replacing him by appointment under 28 U.S.C. 546 (judicial authority to fill vacancies in the office of U.S. Attorney). In the matter of the Grand Jury enpaneled December 5, 1972, petition of intervenor John F. Banzhaf III (filed October 9, 1973 D. Md., Hoffman, J.), Professor Banzhaf rests his argument on the strong state precedents holding a court of criminal jurisdiction must have such authority if it is to do justice. One court has gone so far as to suggest that this is a power that the legislature has no right to abridge. State v. Henderson, 123 Ohio St. 474, 479, 175 N.E. 865, 867 (1931). In Taylor v. State, the Florida Supreme Court asserted:

"The power of removal in the Governor may act as a deterrent, and if applied, would prevent a recurrence of the wrong, but it does not afford a remedy-much less an adequate remedy-in the particular case. The law does not contemplate lapses through which the guilty, by reason of the complacency, good fellowship, or what not, of the state attorney, may escape indictment, and then suffer vicarious punishment through removal of the officer." 49 Fla. 69, 76-77, 38 So. 380, 383 (1905).

The Supreme Court of Florida more recently pointed out:

"(I)t is a universally accepted principle of law that such power of appointment is an inherent power of a court possession criminal jurisdiction. No statute is necessary to the exercise of such inherent power."

Kirk v. Baker, 224 So. 2d 311, 317-18 (1969). See also Williams v. State, 188 Ind. 283, 123 N.E. 209, 215 (1919); State v. Spencer Circuit Court, 244 Ind. 552, 194 N.E. 2d 606 (1963); State v. Jones, 306 Mo. 437, 268 S.W. 83 (1924). "Most states by statute authorize the court to appoint a special prosecutor when the regular prosecuting attorney is absent because of death or illness or when he is disqualified because of interest' in the outcome of the investigation . . . Absent such statutory authority, courts have held that, as a matter of discretion, they could appoint special prosecutors under these same circumstances in the exercise of their ‘inherent power' . . . (T) the courts' interest in supervising the proper use of their machinery and protecting the judicial system from political or personal misuse justified their exercise of extraordinary power." supra, 111 U. Pa. L. Rev. 954.

...

Whether or not the Federal Courts could claim the power to appoint a Special Prosecutor as an inherent right, the Federal Special Prosecutor Act will confirm that the Federal District Courts possess this tool to do justice.

CONCLUSION

We have said that there exists an answer to the questions as to the capacity of this government to seek out and prosecute crimes in the higher levels of government. That answer is the Federal Special Prosecutor Act of 1974. There seems to be growing agreement that the time has come to enact such a provision.

As the authors of the American Criminal Law Review article to which we have made reference remark, "There is much evidence that ours is not a government of separate powers, but of blended powers, and ample prcedent exists for the proposition that no harm will obtain when an official of one branch has the authority to merely confer a role upon a member of another branch . . such a procedure may be the only means of insuring impartial enforcement where a United States Attorney is in the uncomfortable position of having to prosecute his fellows in the executive branch . . . To let a prosecutor continue to act where political interest is present, or to mandamus him where it is likely that he will put forth a half-hearted effort, is to allow him to 'thumb his nose' at the very persons who are responsible for his position in office. For the sake of doctrinal tradition, the entire purpose of public office is defeated. If indeed, a public office is a public trust,' then failures to proceed with a single-minded concern for the electors, constitutes an unconscionable breach of duty. A prosecutor who must look in two directions will see clearly in neither and must therefore be prohibited from carrying on a futile attempt." 11 Am. Cr. L. Rev. supra, at 637-8.

Leon Irish, the former Supreme Court law clerk, also quoted above, seems to agree there is a need for such legislation.

"The Constitution enjoins the President 'to take Care that the Laws be faithfully executed.' When a criminal investigation requires examination of allegations involving the President and his closest personal advisers, however, the appearance and perhaps the actuality of faithful execution of the laws is possible only through a Special Prosecutor with sufficient independence and power to follow wherever the trail of evidence may lead.

"The power to prosecute alleged wrongdoing in the executive branch clearly is among those powers vested by the Constitution in the Government. As Chief Justice Marshall wrote in his classic description of constitutional power: 'Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.'" (McCulloch v. Maryland). Washington Post, Nov. 9, 1973, p.

A30.

It would be difficult to disagree with Raoul Berger, senior fellow in American Legal History at Harvard Law School, who wrote in the New York Times on November 7, 1973,

"To insist that the President must investigate and prosecute himself, for that is what the argument for executive control of prosecution boils down to, is plainly unreasonable. The power of appointment and the separation of powers were not designed to obstruct justice.

"Let our guide be the utterance of Congressman Bland in the first Congress. Faced with the fact that the Constitution made no provision for removal, he said, 'it was essentially necessary that such a power should be lodged somewhere, or it would be impossible to carry the Government into execution.'

"Somewhere there must exist power to provide for an independent special prosecutor to carry forward an untrammeled investigation of White House participation in a criminal conspiracy. Without straining, it can be found in Article II, Section 2(2). It follows that a statute authorizing a court to appoint a special prosecution would be constitutional." at p. 47.

Forty-six deans of American law schools supported the Bayh Special Prosecutor bill as did the New York Times, Washington Post, and scores of other leading journals and newspapers. As Cardozo remarked: All found, however, in the end that there was a principle in the legal armory which, when taken down from the wall where it was rusting, was capable of furnishing a weapon for the fight and of hewing a path to justice."

33-875-74- -24

The time to focus attention on the broader issues is now. Too often these past few weeks we have heard the Congressmen's aides say we would have to wait-maybe a few years for a complete evaluation of the jobs that Cox and Jaworski did. To us this is terribly wrong. The two aren't connected. What we are talking about has nothing to do with the President or the present crises.

The Federal Special Prosecutor Act is designed to help an individual who in a case like Ernest Fitzgerald's or Gordon Rule's is in a situation where the administration faces an inherent conflict of interest in prosecuting the people who may have wronged him. In a larger sense the Act is designed to help the American people who are wronged whenever justice goes apparently undone. The significance of Watergate here is that it is essential that we act now.

APPENDIX 1A

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. What follows is a list of statutes and cases by which the special prosecutor has been established in various states. (Note that some statutes were taken from outdated State Codes.)