Lapas attēli
PDF
ePub

Aware of the absolute prosecutorial discretion residing in the executive and heeding the admonition that no man should be a judge in his own cause, the United States Senate set the appointment of an independent special Watergate prosecutor as a condition to the confirmation of Elliot Richardson as attorney general. True to his pledge, Mr. Richardson established within the Department of Justice an Office of Watergate Special Prosecution Force directed by a special prosecutor with, as Mr. Richardson said, "the greatest degree of independence" and who could "not be removed from his duties except for extraordinary improprieties on his part." Mr. Richardson's pledge to the Senate was formalized by an amendment to Title 28 of the Code of Federal Regulations, which was duly published in the Federal Register on June 4, 1973 (38 Fed. Reg. 14688).

THE PREROGATIVE TO PROSECUTE

Despite the grant of what appeared to be invulnerable independence to the special prosecutor, President Nixon's attorneys contended from the start that the president and the president alone had the ultimate authority over the Watergate investigation and prosecution. Thus, in defending the president's right not to release the recordings of his conversations with key Watergate figures, they argued in their brief in the United States District Court for the District of Columbia that the special prosecutor cannot maintain a prosecution if "the executive branch has determined to the contrary on the basis of other governmental interests." This contention foreshadowed Acting Attorney General Robert Bork's dismissal of Archibald Cox on October 20, 1973, after both Elliot Richardson, attorney general, and William D. Ruckelshaus, deputy attorney general, chose to resign rather than violate Mr. Richardson's pledge to the Senate or the amended Justice Department regulations. Although by the end of October it seemed clear that the office of special prosecutor would be reinstituted in one form or another, this action would not alter the fact that, Watergate aside, law enforcement decisions are subject to the political considerations of those in power.

[blocks in formation]

The control may be exercised frequently, as some have charged, or rarely, as is probably the case. Nevertheless, the mere existence of the power casts a pall over our entire society. As the Senate has recognized with regard to Watergate, politics has no place in the enforcement of criminal laws. The rubric that all men are equal under the law must be the institutionalized practice rather than the wistful ideal. The concept of an independent special prosecutor should be extended to free federal law enforcement from the binds of political control.

Indeed, this solution was hinted at by Judges Rives, Gewin, and Bell of the Fifth Circuit in their opinion dissenting in part and concurring in part in United States v. Cox. With the uncertainty of explorers pushing into uncharted territory, they wrote: "To permit the district court to compel the United States Attorney to [prosecute at the behest of the grand jury] would invest prosecutorial power in the judiciary, power which under the Constitution is reserved to the executive branch of the government. It may be that the court, in the interest of justice, may require a showing of good faith, and a statement of some rational basis for dismissal [of an indictment]. In the unlikely event of bad faith or irrational action, not here present, it may be that the court could appoint counsel to prosecute the case" (emphasis supplied).

Under our present system, the heads of the various investigative and prosecutorial agencies are appointed by the president and are subject to what is usually routine confirmation by the Senate. With the exception of the tenure of the late J. Edgar Hoover as director of the F.B.I., each president accepts the resignation of his predecessor's appointees and puts his own men into these highly sensitive positions. As Mr. Gray acknowledged, these men are bound to do the president's bidding, and fair rigorous law enforcement occasionally gives way before the press of political expediency.

To insulate criminal justice from political influence, an independent law enforcement agency should be established. That agency should be free from political control yet not so independent as to develop police state powers. Indeed, the argument that political control is needed to prevent the development of a police state is overrated. An independent agency, lacking a stake in the political process, would not have the motive to develop an apparatus to control that political process. The so-called Huston plan of national surveillance demonstrates that the danger lies not in having law enforcement independent of the political process but dependent on it. It was the independent J. Edgar Hoover, in his last days, who managed to kill the White House project before the monster was able to hatch.

The enforcement of the federal criminal laws depends on the co-ordinated efforts of the various executive agencies that investigate possible offenses against the United States and the Department of Justice, which is charged by statute with prosecution. Both these phases of criminal law enforcement activity can be removed safely from the sphere of political influence.

All the criminal investigative functions of the federal government would be merged into a new agency, the Bureau of Criminal Investigation. Similarly, criminal prosecution jurisdiction would be taken from the Department of Justice and vested in a Bureau of Criminal Prosecution. These two bureaus would be staffed by professionals and would be responsible to and under the general supervision of an independent Board of Criminal Justice.

BOARD SHOULD BE FREE FROM POLITICAL INFLUENCE

The Board of Criminal Justice is the keystone of my proposed reorganization. That board would consist of seven distinquished citizens appointed by the president and subject to Senate confirmation. Each would serve a sevenyear, nonrenewable term. To insulate the board further from political influence, the terms of the members would be staggered with a three-year gap between the expiration dates for the terms of any two. Barring death, disability, or resignation, a president would appoint only three members of the seven-member board in two terms. The members of the board would be removable from their positions only by the impeachment process outlined in the Constitution.

The Board of Criminal Justice would appoint the operating heads of the two law enforcement departments: the directors of the B.C.I. and the B.C.P. The B.C.J. also would have the power to veto choices of each director for his chief assistants. This appointed staff of professional law enforcement officials would be responsible for the day-to-day activities of the bureaus and would serve at the pleasure of the B.C.J. The B.C.J., however, would be more than an overseeing body; it would retain general supervision and control over the two operating bureaus and would have the responsibility to ensure that the criminal laws were being enforced with justice and impartiality.

NATIONAL SECURITY WOULD NOT BE JEOPARDIZED

This reorganization would not interfere with the president's control over the civil side of law enforcement, which is rightfully a tool of national policy. Any alleged criminal violations uncovered in the course of the civil activity would be referred to the B.C.I. for investigation and to the B.C.P. for prosecution. Nor would the reorganization jeopardize national security by compelling the prosecution of a case that, for fear of disclosing vital secrets of state, should be dropped. The Board of Criminal Justice would evaluate the security claims of the executive branch and, after balancing the competing interests, would either stop the pending investigation or order it forward. There is no reason to suppose that the board would be insensitive to legitimate claims of national security.

I hope this plan will initiate discussion and thought, not only on the national level but in the states as well. Law enforcement should not be a weapon in any politician's arsenal. The suspicion of favoritism and the threat of intimidation have no place in an orderly and free society governed by laws and not the random whims of sometimes petty, sometimes vicious

men.

[Reprinted by permission, from Fortune, October 1973]

PUTTING POLITICS IN ITS PLACE AT THE JUSTICE DEPARTMENT

(By Thomas Griffith)

The oracular Mr. Richardson, a shrewder politician than he lets on, is a good bet to restore confidence in "the largest law firm in the world."

Attorney General Elliot Richardson's promise to "remove the Department of Justice from politics" won him a certain amount of praise. The praise is perhaps not surprising. But the promise is one that Richardson cannot possibly keep, and he is, in fact, already entangled in some of the most intensely political issues ever confronted by a U.S. Attorney General. Through Archibald Cox, the man he chose to be special prosecutor, he became involved in the handling of criminal charges related to the Watergate scandal. Richardson himself took on the excruciatingly difficult decision of whether the Vice President of the United States could be indicted on criminal charges. It is no criticism of Richardson to suggest that his behavior in the circumstances has been political.

The Justice Department has always had to deal with an ambiguity in its mandate. It is, of course, charged with embodying of all the nation's ideals about a justice that is administered fairly and impartially. But at the same time it is, and cannot avoid being, the legal arm of a particular Administration, responsive to the Administration's particular priorities. The Kennedys turned the department upside down in their concentration on two perceived priorities, civil rights and organized crime. Richard Nixon, who had made the department itself one of his campaign targets in 1968, all but assured the nation that a change of Attorney General would lower the crime rate. Every head of the Justice Department, then, is inevitably part of a team that is trying to implement a political mandate.

Furthermore, as Supreme Court Justice Byron White once observed, "You can't take the politics out of politics." White made the remark when he was serving as Deputy Attorney General (under Kennedy), and it is still cherished in the department. The thrust of the remark is that anyone trying to effect political change cannot entirely avoid the political processes-and Justice, in its relationship with Congress as well as with the White House, is in constant contact with the world of favors, compromises, and scrambling for votes. For an Attorney General, all this implies a continuous tension between the claims of impartial justice and the claims of politics.

An Adminstration that actually tried to do what Richardson has promised, and get the Justice Department entirely out of politics, would simply prove to be ineffectual. But an Administration that tried to resolve the tension between those claims the other way, by letting politics take precedence, would be endlessly entangled in corruption. The Watergate debacle shows, among quite a few other things, what happens when the heads of the department become overwhelmingly political-when the ideal of impartial justice is treated as mere rhetoric.

A NEED FOR DISCRETION

One reason that a certain amount of politics is inevitable is that the Justice Department, as chief litigant for our government, must have a great deal of discretion about when to prosecute, and about when and how to settle. The crucial role that discretion plays in law is often underestimated by those who facilely say that ours should be a government of laws, not of men. It is inevitably a government of laws and men.

The role of discretion in law has an honored lineage going back to Aristotle, who viewed discretion as a means to soften too rigid laws. But the present pervasiveness of discretionary decision making results from the sheer bulk and complexity of modern society. Perhaps the leading authority on this matter is Professor Kenneth Culp Davis of the University of Chicago. To read his book, Discretionary Justice, is to be given a picture of Washington, D.C., as a vast green park dotted with huge buildings, whose long corridors give onto little warrens where, without benefit of clergy, without sufficient sanction of rules or testing in the records, thousands of adminis

trative decisions get made, each crucial to someone. In one year the Federal Communications Commissions issues more than 800,000 licenses while holding only 115 hearings, a ratio of 7,000 to 1. Davis estimates that throughout government the ratio of discretionary adjudications is 50 to 100 to 1. James Hoffa is probably the leading loser and gainer from discretionary justice in our times, having first been the target of Robert Kennedy's special Get Hoffa squad, then having had his sentence prematurely commuted in the Nixon Administration.

The Justice Department needs a lot of discretion. The department's bud get today is approaching $1.8 billion, more than three times what it was when Nixon first took office but Justice could not possibly act on every valid case that comes to its attention. Right now, for example, it rejects 10 to 12 percent of the tax cases referred to it by the Internal Revenue Service. In some areas, the department's responsibility to act as barrister for the federal government has been overwhelmed by the steady growth of litigation. In the age of Ralph Nader, the growth of public-interest law has been a major problem. So have the sweeping new environmental-impact regulations; Erwin Griswold, the Harvard law dean who served both Lyndon Johnson and Nixon as Solicitor General, considers the regulations disastrous. The cases that the Justice Department does act on are becoming more involved and time-consuming. Federal courts are more closely monitoring the department's activities. In criminal cases Justice lawyers find courts increasingly concerned, not only with guilt and innocence, but with the whole process of investigation, arrest, interrogation, and trial. As a result, Griswold estimates, trials last three to five times longer than they did a decade ago. These heavy court loads produce a pressure to settle all kinds of cases as soon as possible. Litigation is the most expensive way to do the government's job, and an axiom among lawyers holds that a poor settlement is better than a good lawsuit. And, of course, a decision not to sue in the first place may be better than a poor settlement. Of all "the many excessive and uncontrolled discretionary powers" in the American legal system, Professor Davis worries most about the power to prosecute or not to prosecute for these decisions are not ordinarily reviewable for abuse of discretion.

In addition, the Justice Department plays a major role in the President's highly discretionary decisions on judicial appointments. There is no statutory basis for this role, but it is now well established that the department scouts around for prospects who will be acceptable to both the Administration and the Senate, and it is also responsible for checking our prospects suggested by Senators. The Deputy Attorney General usually monitors the nominating process, but the Attorney General himself may get involved in nominations to the Supreme Court and is sure to be held accountable when the scouting turns out to be inadequate (as Mitchell was held responsible for some surprises in the Haynsworth and Carswell confirmation hearings).

This widespread exercise of discretionary powers puts a high premium on the kind of men Justice at all levels must attract and hold. The bureaucrats must be willing to do their job even when they dissent from the Administration's politics; the department's leaders, meanwhile, need a sense of how far and in what ways they can reasonably push their political interests. Many of Nixon's people came to Washington viewing the bureaucracy as not only Democratic in sympathy (generally true) but eager to sabotage Republicans. Erwin Griswold, however, believes that-except for a brief flare-up in the Civil Rights Division—the bureaucrats have generally carried out Nixon policy directives quite faithfully.

Some of Nixon's Watergate troubles originated in the fact that the White House, mistrustful of the bureaucracy, inserted its own core of loyalists and "team players" into middle management throughout government. The White House seemed to have cloned a regiment of ambitious lawyers, all wearing corrupt-me-quick expressions and willing to consent to perversions of duty to prove their political loyalty. But in the guerrilla strug

gle between the bureaucrats and the galvanizers and team players, it was the bureaucracy—particularly at Justice-that came out best. Of all the men in the department involved in Watergate, or the handling of the investigation afterward, one of the few who came out with reputation intact was Henry Petersen, the career man who heads the Criminal Division.

The bureaucracy did well in another respect. Its role in the uncovering of numerous details about Watergate has been insufficiently noted. The press has taken most of the credit, as well as the calumny, but a press merely hostile or suspicious of the Administration could not have achieved its victories without vital evidence furnished by discontented bureaucrats. James Madison and Alexander Hamilton never foresaw that one of the crucial checks against a too powerful executive branch would be news leaks coming from within the executive branch.

The core of what most people mean by the Justice Department-those who hale the businessman or taxpayer into court, determine who shall be prosecuted and who not, and who if necessary fight all the government's battles as far as the Supreme Court-is a group of around 3,000 practicing lawyers, half of them in Washington. They constitute what is sometimes called "the largest law firm in the world," and they have but a single client. These litigious fellows are, as Elliot Richardson says with managerial precision, a mere 62 percent of his army-the department has almost 47,000 employees-but they are the part that matters.

The lawyers are arrayed in three tiers. At the top are the politicalspresidential appointees and their aides and assistants, about fifty people who have Administration policies very much on their minds. Then come the 1,000 or so lawyers in the permanent bureaucracy, who know how things work and where the bodies are. Because they are insulated by civil-service status, they are not easily budged by overzealous policy makers.

THE VIEW FROM THE BOTTOM

In the bottom tier are a lively posse of in-and-out young lawyers, on their way to other careers. They come fresh out of law school, lured sometimes by public service or a yen for particular causes, like civil rights, but mostly by the prospect of plenty of action. In a big law firm, at this beginning stage of their careers, they would be carrying other people's briefcases or looking up references. As federal attorneys many get early courtroom experience, spending plenty of time on their feet in oral argument, with no one to rescue them.

One such young lawyer, who worked briefly in a big Detroit law firm, remembers without nostalgia the firm's gentlemanly atmosphere and the way each lawyer was summoned by a well-modulated bell whose tone was particular to him. Now in government, the young man reaches his office down corridors crowded with overflow desks and dilapidated files like cots in the hallway of a Civil War hospital; he shares an office an orderly mess centered around tables stacked with briefs-with another shirtsleeved young lawyer. He prizes the excitement, the diversity of practice, and the toughening.

From 300 to 400 such lawyers are hired each year by the department. The number of applicants varies with the job market; in this year's tight market there have been well over 5,000 applications. One of the glories of the department has been the caliber of the young men it could attract. In the Eisenhower Administration, Herbert Brownell set up an honors program to recruit graduating law students who were in the top tenth of their class at a few top schools. Now the standard is the top 20 percent of the average of all the nation's law-school graduates; the lower standards are explained in part by a desire to recruit members of minority groups. There is general agreement that Robert Kennedy and his impressive array of top lieutenants (Burke Marshall, Louis Oberdorfer, Byron White, John Douglas, John Doar) attracted the best crop of young lawyers that ever came into the department.

« iepriekšējāTurpināt »