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poundments cases—arguments concerning: point 1, the clarity of the mandate given by Congress to spend money in a certain area; and

Professor MILLER. Excuse me, I am not talking about impoundment.

Mr. Dixon. Regulations?

Professor MILLER. I am talking about congressional statutes, saying that executive employees are entitled to pay raises. The President said they are not. The court says they are. The Department said they are not going to appeal it to the Supreme Court.

Now, what does that do to your theory of inherent executive powers? Does it not say that Congress has a great deal to say about what happens in the executive branch? Apparently, the Department of Justice thought so, because it did not take it up to the Supreme Court. The wording in the adverse Court of Appeals decision that says the President, in express words, has the duty to put this act into effect.

Mr. Dixon. You are speaking about a matter in a way very close to my heart, because the congressional action recently, in killing the executive level pay raise, although mandated under earlier congressional legislation, affects my pocketbook very directly, and that of many others, too. In this area, I think we will know more about the parameters of Presidential discretion in the money field than we now know, once the full series of impoundment decisions have been run through. I do not think we are yet able to get final answers to some questions in that area, or the critical area you bring into the discussion of the various pay raises.

Professor MILLER. No further questions.

Senator Ervin. In the 1920's, Congress passed a statute taking the power to prosecute the Teapot Dome cases from the Department of Justice, and vesting it in two special prosecutors nominated by the President and subject to Senate confirmation. Was that not a constitutional statute?

Mr. Dixon. Yes. The Teapot Dome situation did involve Presidential appointment, and did not reach the questions of restrictions on the power of removal.

Senator Ervin. Now, why would Congress not have the power? There is an old adage of common law that no man can be a judge in his own case, and it seems to me that it is equally as reasonable to say that no man can be a prosecutor in his own case. Why would Congress not have the authority, under the Constitution, to pass a statute entrusting to the Special Prosecutor the power to prosecute crimes allegedly committed by high administrative officials, subject, of course, to declaring the Prosecutor an inferior officer, and letting him be appointed by the courts?

Mr. Dixon. We feel in either case that the established precedents, which we think are reasonably clear on this, do raise serious constitutional questions, whether it be an advice and consent appointment, or whether it be one made by a court. I have already indicated the Siebold case did not involve putting outside the executive branch any law enforcement-type executive functions.

The Myers case has quite clear and precise language about the unconstitutionality of not putting under the President's power of removal an executive function. We feel that in view of these rather serious constitutional problems, we should not look in that direction. We do feel that in the present arrangement the Special Prosecutor is working out in a way in which the country is entitled to have confidence.

Senator Ervin. But he would be subject to removal at any time by the President, would he not? If the President became displeased with him, if he subpenas a request for further tapes?

Mr. Dixon. Constitutionally, we might envision the repetition of the Archibald Cox episode. Practically and politically, we cannot, because there is additional protection now, too, and this is one that came out of our political process. It is a very important one, but not imposed in the way that causes a constitutional problem; that is, the added protection of the charter that before the present Special Prosecutor could be fired, Mr. Jaworski, there would have to be a 30-day waiting period, and submission to a concensus of congressional leaders.

Senator Ervin. That is an unconstitutional limitation upon the absolute power of the President to fire the Prosecutor. This has no validity whatever from a constitutional standpoint.

Mr. Dixon. The President accepted it, and the record indicates this was done with joint knowledge of the Attorney General and the President. There may be additional things that could be done, such as increasing the visibility of a Special Prosecution force, without taking it out of the executive branch. We might explore the use of grand juries periodically assigned to the area of alleged improper conduct on the part of high officials all inside our constitutional system. I think the outcome of the Agnew investigation by that grand jury indicates that these devices inside our system can and do work.

Senator ERVIN. Well, thank you very much. You have made a very scholarly presentation. I would hate to think that Congress is left in the impotent position by the Constitution of not being able to do much about one of the principal objects of government, and that is the enforcement of law.

Mr. Dixox. Well, we feel that the Founding Fathers accepted certain tradeoffs between making the President an errand boy versus making him an autocrat. There are checks and balances, of course, and the final one is impeachment, which was put in the Constitution.

Senator Ervin. Thank you very much. We appreciate it. You always give us a very scholarly presentation, as you have done on this occasion.

Mr. Marshall, would you like to proceed now, or come back later? Mr. MARSHALL. As you wish, Mr. Chairman.

Senator Ervin. Either way, we will take about a 5-minute recess, because we have been sitting here a long time. If you prefer to goI know you have other important things to do.

Mr. MARSHALL. Senator, if I could come back this afternoon. It would be difficult to come back tomorrow.

Senator Ervin. We could come back this afternoon at 2 o'clock. Mr. MARSHALL. That would be fine, Senator.

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Senator ERVIN. I am sorry we detained you so long.
We will recess until 2 o'clock.

[Whereupon, at 1:15 p.m., the subcommittee recessed, to reconvene at 2 p.m. the same day.)


Senator ERVIN. The subcommittee will come to order and the counsel will call the next witness.

Mr. EDMISTEN. Mr. Chairman, the next witness is the deputy dean of the Yale Law School, Mr. Burke Marshall, who is also a former Assistant Attorney General of the United States, and who has held a number of other positions in and out of the Government.

Senator Ervin. The members of the subcommittee express deep appreciation for your willingness to come and give us the benefit of your views on the matters to be considered concerning which you have had much opportunity for observation and much experience.




1922in Education : Prepared at Phillips Exeter Academy (Class of 1940) ; B. A.Yale, 1943; LL.B.—1951.

Admitted to Bar: D. C.-1951.
Member of the firm of Covington & Burling (Washington, D. C.) 1951-61.

Assistant Attorney General for the Civil Rights Division, Department of Justice, 1961-65.

Vice President and General Counsel, International Business Machine Corporation, 1965–69; Senior Vice President, 1969–70.

Deputy Dean and Professor of Law, Yale Law School, 1970–

Chairman: National Advisory Commission on Selective Service, 1967; UNA Policy Panel on the Non-Proliferation Treaty; Vera Institute of Justice; Center for Community Change; Special Committee on Courtroom Conduct (Association of the Bar of the City of New York).

Author: Federalism and Civil Rights (1964); various articles.
Married to Violet Person: Children-Josephine, Catherine, Jane.

Mr. MARSHALL. Thank you, Senator. I have made a prepared statement which I have given to the committee staff and I would like to summarize that rather than read it all through.

Senator Ervin. That would be perfectly all right and we will print the entire statement in the record immediately after your remarks.

Mr. MARSHALL. Thank you, Senator.

I thank the committee for inviting me to testify on both S. 2803 and on S. 2978, which is Senator Cranston's bill, which I will comment on briefly at the end of my statement on S. 2803.

Both bills are intended, understandably, to prevent a recurrence of the efforts to corrupt the processes of law that comprise the events collectively known as Watergate. It is understandable and proper in view of the magnitude of those events, that some legislative reaction to them to prevent their repetition be considered.

It is important, however, I think to remember that these efforts to prevent investigation and prosecution by the Department of Justice did not succeed in the end. The evidence of that lies in the indictment of some 28 persons thus far, including high former Government officials, as well as the consideration of impeachment that is now proceeding in the House of Representatives in accordance with the provisions of the Constitution.

It is also, I think, important since the bills before this committee deal with the Department of Justice to note that the corruption did not stem from the Department of Justice as an institution, but from the White House.

And, finally, I want to stress how critical, Senator, I think it is that the response to the outrages of the Watergate affair be such that it does not, in order to prevent future like abuses of power, undercut the institutional structure of Government that enables it to do its job under honest and responsible leadership which I believe to be the usual and not the abnormal condition in the United States.

My comments on both bills are made with these factors in mind and I hope that you will take them in that light.

With regard to S. 2803, then, it seems to me that there are two major issues that the committee should consider. One is the potential effect of passage of the bill on the Department of Justice as an institutional or administrative matter. The other is the issue of the authority of Congress to pass the bill in the light of the structure of Government established by the Constitution. I will discuss those two issues in that order.

As to the first of these problems, my comments with respect to S. 2803, Senator, are of course based on my own experience in large part in the Department of Justice and the way it was conducted at the time I was there and the relationship between the Department of Justice and the White House at that time. That may not be a typical time, but as far as I know it is not untypical either.

I think on the whole that there would be serious problems at any time for the administration of justice by the Department were S. 2803 to be enacted in its present form.

The bill is designed-because of the events to which it is a response—to prevent or at least dilute policy direction of the work of the Department from the White House.

I believe that such action should be taken only after the most serious consideration of its consequences. And I mention some areas that would be affected.

One plainly is in the enforcement of the civil rights laws, which is the function with which I am most familiar. As the chairman and committee well know, law enforcement in this area demands policy direction. It affects the lives of millions of people and the emotions and passions of millions of others. It seems right, not wrong, to me that an administration give policy direction on such matters as busing, employment quotas, school district consolidations, and private discrimination in places of public accommodations, as much as I disagree with the policy established by the present administration in most of these areas.

These are all matters within the framework of the law as stated by the Congress and by the Federal courts, for which the President should have responsibility and political accountability:

There are other areas. First, it seems to me that this is true of the priorities and processes followed by the criminal division in the enforcement of Federal criminal laws. And I am thinking of the use of wiretaps, Senator, and I am also thinking of the matter of priorities in such areas as organized crime.

Second, is in connection with the application of the Sherman Act and other antitrust statutes to the economic structures of our industry, especially with respect to conglomerate mergers, with respect to the so-called structural theories of the monopolization provision of section 2 of the Sherman Act, and with respect to the relationship between antitrust policy and foreign affairs, foreign trade, and our balance of payments.

A third area is the degree to which internal security laws are used to suppress political dissent-an issue that has recurred many times in our history. And I would like to point out, Senator, that in all three of these areas, the policy direction can go in the form of control over the Department of Justice as well as in the form of stimulating new activity,

Even the priorities and direction of such relatively obscure parts of the Department as the lands and civil divisions involve important policy issues, in such matters as the treatment of Indian claims, for example. And the Office of Solicitor General handles numerous cases each term of the Supreme Court in which the Government's position turns on consideration of national policy.

It seems to me that under our political system, Presidential candidates are entitled to run, and, more important, the Nation's voters are entitled to vote for candidates on the basis of such issues.

The thrust of S. 2803 as I read it is to prevent this. This is true of the provision for the 6-year term of office and it is also true of the restraints on the President's right of removal.

These sections, I may also note, create the possibility of at least a 2-year period, and, dependent upon the date of the appointment of the Attorney General, possibly a longer period in which the Attorney General and the rest of the Government, including the Departments such as HEW, with which coordination is crucial, are essentially in adversary positions.

In short, I do not believe that the abuse of power by the White House that has taken place, justifies this grave an institutional change-one that would both permanently insulate the Department of Justice from accountability to the policy direction and priorities of the administration, and at the same time, insulate the President from political accountability for the conduct of the law enforcement functions of the Department.

In addition, it seems to me that there is at least fair reason to doubt that the change would, in fact, prevent future abuse of prosecutorial discretion, or of the power to make important law enforcement decisions.

The Department of Justice cannot operate in a policy vacuum. One possibility is that it would come to be primarily responsive to

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