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REMOVING POLITICS FROM THE ADMINISTRATION OF

JUSTICE

TUESDAY, MARCH 26, 1974

U.S. SENATE,
SUBCOMMITTEE ON SEPARATION OF POWERS,
COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met, pursuant to notice, at 10 a.m., in room 2228, Dirksen Senate Office Building, Senator Sam J. Ervin, Jr., presiding.

Present: Senator Ervin and Senator Mathias.

Also present: Rufus L. Edmisten, chief counsel and staff director; Walker F. Nolan, Jr., deputy chief counsel; J. L. Pecore, assistant counsel; Telma P. Moore, executive assistant; Clair W. Rodgers, Jr., minority counsel; J. Michael Carpenter, professional staff member; and Arthur S. Miller, consultant.

Senator ERVIN. The subcommittee will come to order.

OPENING STATEMENT OF SENATOR ERVIN Today the Subcommittee on Separation of Powers begins hearings on one of the most important subjects facing the American people: the independence of the administration of justice from the winds of partisan politics.

We will consider two bills, S. 2803, which I introduced on December 12, 1973, and S. 2978, introduced on February 7, 1974, by Senator Cranston.

My bill, S. 2803, would establish the Department of Justice as an independent establishment of the U.S. Government, independent from the President. Senator Cranston's bill calls for a commission to be established to study the question of whether an office of Permanent Special Prosecutor should be created. S. 2803, rather than being a finished product, is designed to provide a point of departure for informed discussion of the many problems confronting the system of administration of justice. In that sense it permits the beginning of the study of the need for an independent, permanent mechanism for investigating allegations of official misconduct that S. 2978, Senator Cranston's bill, calls for.

As chairman of this subcommittee I welcome the distinguished panel of witnesses who will appear before it during the scheduled 4 days of hearings. No doubt many diverse views on the two bills will be heard. This we welcome. We look for advice and assistance from the witnesses as well as from those who are submitting written

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statements in helping to eliminate defects in the bills and thus to improve the American system of justice.

That there have been abuses within the system was amply demonstrated in the public hearings conducted in 1973 by the Senate's Select Committee on Presidential Campaign Activities. That committee, which I have the honor to chair, heard testimony from witnesses that clearly revealed that the Department of Justice had been unduly politicized, at least in part. At the very least, the appearance of justice, if not justice, itself, fell into disarray. One consequence, of enormous potential danger, is the growing distrust among the American people generally of their political leaders and institutions. We must try to rectify that. These hearings are a beginning toward achieving the end of restoring trust in government.

I am not among those who believe that Watergate and attendant events prove that our system of government has an inherent weakness. I do believe, however, that we must initiate some additional checks and balances, so as to prevent the misuse of the system of administration of law. The changes called for in S. 2803, and also in S. 2978, are the minimum necessary. They are not radical surgery upon the body politic. Rather, they effect needed correction of sorepoints.

During our 4 days of hearings I am confident that members of this subcommittee, and its staff, will learn much from the testimony we shall hear, particularly with respect to what is desirable and feasible in effecting corrections in the system of administration of justice. We need to preserve the strengths of the system, while eliminating its flaws.

The Department of Justice is the one agency in the Federal Government that has the solemn responsibility of furthering the rule of law. That concept—the rule of law-is the most fundamental tenet of the American Constitution. It is not only testimony before the Senate's Watergate Committee that reveals how far we have strayed from that ideal. Additional evidence may be found in the so-called Saturday Night Massacre, when Special Prosecutor Archibald Cox was summarily fired last October and when the Attorney General and his Deputy both resigned rather than carry out the President's order to discharge Mr. Cox. Those orders, we may note, were subsequently declared illegal by Judge Gehard Gesell of the District Court of the District of Columbia.

Complaints about the Department of Justice are not new. Nor are they novel to the present administration. In 1924, for example, the Senate established a select committee to investigate charges of corruption by Attorney General Harry Daugherty and other officials of the Department of Justice. In 1953, Attorney General McGranery recommended that the U.S. Attorneys be placed in the civil service system and that they be free to move from one district to another. It has become common in recent decades for Presidents to appoint their campaign managers to head the Department of Justice—a practice that can only lead to charges of politics interfering with the administration of justice. That practice was compounded when Attorney General John Mitchell, the campaign manager in 1968,

moved to the Committee to Re-elect the President in 1972. There should be small wonder, then, that there is a growing feeling of uneasiness about the Department of Justice.

All powers of the Attorney General and of the Department of Justice flow from acts of Congress. There can be little doubt in fact, I have no doubt at all—that what Congress gives, Congress can take away. The constitutionality of an independent Department of Justice or of an independent permanent Special Prosecutor cannot be validly disputed. I am aware, of course, that some commentators argue that because the Constitution says that the President has a duty to take care that the laws be faithfully executed, the administration of justice is inherently executive and cannot be altered by the Congress. I firmly reject that notion. There is not one syllable in the Constitution that says that Congress cannot make the Justice Department independent of the President. After all, Congress has established the General Accounting Office, as well as the independent regulatory commissions, all of which "execute" certain laws independently of the President. No one can validly argue that those agencies are contrary to the Constitution.

I do not agree with the assertions of some lawyers that the President has certain "inherent” powers, beyond those given him in the Constitution or by statute. That view was soundly and rightly repudiated by the Supreme Court in the leading case on Executive powers, the Steel Seizure case of 1952. Under no circumstances can it be said that the Presidential duty to execute the laws means that the President can abrogate an act of Congress. Although this subcommittee, in hearings held jointly with an ad hoc subcommittee of the Senate Government Operations Committee, heard testimony to the contrary last year from the Director of the Office of Management and Budget and from the Deputy Attorney General, on the issue of Presidential impoundment of appropriated funds, that view has been firmly repudiated by the vast majority of the courts which have decided impoundment cases during the past year.

The question, accordingly, is what does Congress want to do with respect to the Department of Justice. I have become convinced of the utter necessity of removing the Department, insofar as it is possible, from the play of partisan politics. S. 2803 would remove the Attorney General from the President's cabinet and make the Department" independent of the Chief Executive. Much like the regulatory commissions, the Attorney General, Deputy Attorney General, and Solicitor General would be appointed by the President for 6-year terms, subject to Senate confirmation. All subordinate officers in the Department, including the Director of the Federal Bureau of Investigation, would be appointed by the Attorney General. The officers appointed by the President would be removable by the Chief Executive only for neglect of duty or malfeasance in office. They, accordingly, would be protected under the doctrine of the Humphrey's Executor and Wiener cases.

I should like to repeat that S. 2803, as now written, is a framework for discussion, rather than a finished product. No doubt the testimony we shall hear will help the subcommittee to improve it. We have

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sought to obtain the views of experts in the field, both those who might support the objective of the bill and those who might oppose it. I am confident that the ensuing dialog will help the subcommittee to clarify its thinking about this extremely important subject. As Sir Francis Bacon said in 1612, “The place of justice is a hallowed place and ... ought to be preserved without scandal and corruption.” 1 We must begin the task of rebuilding the confidence of the American people in their Government. Without trust in government, our system surely will fail. There is no better place to begin than with the Department of Justice.

Senator Mathias, do you have an opening statement ?

Senator Mathias. Very briefly, Mr. Chairman. OPENING STATEMENT OF Hon. CHARLES McC. MATHIAS, JR., A U.S.

SENATOR FROM THE STATE OF MARYLAND, AND RANKING MINORITY MEMBER OF THE SUBCOMMITTEE ON SEPARATION OF POWERS

Mr. Chairman, the subject that we are addressing today is justice, not merely the great Department of government which bears the name Justice, but the concept which the Department was created to

The hearings which begin today before the subcommittee will help the Congress to examine the operation of the Department of Justice and I think give us a better working knowledge of the way in which the Department is administered. From this we can reach a more informed decision about whether structural reorganization is needed. But in a deeper sense, Mr. Chairman, I hope, that these hearings will go beyond such questions as a fixed term for the Attorney General and the power of appointment for subordinates or removal of this office from the Cabinet, all of which would be accompanied by the creation of new organizational charts for the executive branch. I think it is justice itself and not the Department which commands our real attention and provides a deeper incentive for the hearings. I think we have to recall the words of Edmund Burke who said that “Justice is itself the great standing policy of civil society; and any eminent departure from it, under any circumstances, lies under the suspicion of being no policy at all."

The Subcommittee on Separation of Powers is, I believe, a fitting forum for the consideration of this subject. The chairman has recently noted in quoting Thomas Hobbes, that "freedom is political power divided into small fragments.” From these divisions, of course, flow the checks and balances on the exercise of that power.

Today we are considering the addition of further checks and balances to those provided by the tripartite system of government as we consider dividing the Department of Justice from the executive branch and giving it an independent base.

One desired goal of such a step would be to take politics out of the Department of Justice. I cannot forget that two of our last three Presidents have chosen their campaign managers to be Attorney General. The previous traditional reward for such service was a

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1 Sir Francis Bacon, “Judicature," Essays LVI.

Cabinet post as Postmaster General. And certainly, that type of politics which links campaign contributions to special favors dispensed through the Justice Department, as has been alleged in the İTT' and Vesco 2 affairs, is unpardonable.

But I think there is another side of politics which we must also weigh, and that is the function of expressing the will of the people. Politics is the process through which policies are made by the people. Politics is the means by which we as a nation make government accountable to the people. Thus, independence and accountability can be inconsistent values requiring reconciliation.

The difficulty in balancing accountability and independence is not a new one. Significantly, a good example is presented by the Federal Bureau of Investigation, itself a part of the Department of Justice. The prevailing cry today is to make the Bureau independent and isolate it from the political process. Only a short time ago the most vocal observers of the FBI saw that problem in quite a different light and sought to bring the Bureau under closer control of elected officials.

The bills we are considering today call upon us to strike the balance between independence and accountability and to do so for the entire Department of Justice. This is no easy task, as I am sure the testimony that the subcommittee will receive will' indicate. But should that testimony also indicate that a new balance is needed, Congress should not shirk its duty, however difficult.

Thank you, Mr. Chairman.
Senator Ervin. Counsel will call the first witness.

Mr. EDMISTEN. Mr. Chairman, the first witness is the Honorable Alan Cranston, Senator from the State of California.

STATEMENT OF HON, ALAN CRANSTON, A U.S. SENATOR FROM THE

STATE OF CALIFORNIA

Senator CRANSTON. Mr. Chairman, members of the committee, I deeply appreciate this opportunity to testify on a subject of great importance and, specifically, on one proposal that I have introduced to establish a Commission to study the matter of how to set up a permanent independent prosecutor.

Senator ERVIN. We are delighted to welcome you to the committee, and from my observation of your fight in the Congress for justice, I am sure that you agree that “the place of justice is a hallowed place.” Senator CRANSTON. Right. Thank you very, very much.

These hearings address a question basic to continued public confidence in our system of justice. How are we to keep politics out of the administration of justice?

In my view, the removal of political influence from the Department of Justice even the appearance of such influence is one of the most pressing reforms required by the discoveries of the events involved in Watergate.

1 International Telephone and Telegraph Corp.
> Allegations relating to presidential campaign contributions by Robert L. Vesco.

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