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had experience in the Department of Justice which has been quite extensive, and I am sure you will make some very helpful suggestions on the problem that we are studying.
STATEMENT OF HON. J. LEE RANKIN, OF THE LAW FIRM OF
RANKIN & RANKIN, FORMER ASSISTANT ATTORNEY GENERAL OF THE UNITED STATES, FORMER SOLICITOR GENERAL OF THE UNITED STATES
BIOGRAPHICAL SKETCH OF JAMES LEE RANKIN Mr. James Lee Rankin, a native of Hartington, Nebraska, was raised in Lincoln, Nebraska, and was graduated from the University of Nebraska, receiving his AB degree in 1928 and his LL.B degree in 1930. He also holds two honorary degrees of LL.D, one from Nebraska Wesleyan University (1959) and one from the University of Nebraska (1961). Mr. Rankin practiced law in Lincoln from 1933 to 1953.
In January, 1953, Mr. Rankin was appointed Assistant Attorney General of the United States in charge of the office of Legal Counsel, Department of Justice, which post he held until August, 1956.
From August, 1956, to January, 1961, he was Solicitor General of the United States. As Solicitor General, Mr. Rankin shaped the Government's positions in major historical constitutional cases that have become the law of the land.
Mr. Rankin was named General Counsel for the President's Commission to investigate the assassination of President John F. Kennedy, the 35th President of the United States, on December 16, 1963 and served in that capacity until September 24, 1964, when the final report was issued. As General Counsel of this Commission, Mr. Rankin supervised the investigation and preparation of the Report of the Commission.
Mr. Rankin was appointed to the position of Corporation Counsel for the City of New York in January, 1966, in which position he served until August, 1972, at which time he returned to private practice in partnership with his son, James Lee Rankin, Jr., under the firm name of Rankin and Rankin.
Mr. Rankin is a member of the American Bar Association, the Nebraska Bar Association, the New York State Bar Association, the Association of the Bar of the City of New York, the American Law Institute and the American Judicature Society, and has served on numerous committees of these associations.
Mr. Rankin is a resident of New York City and practiced law in this city prior to his appointment as the City's Corporation Counsel. He makes his home at 35 Sutton Place where he lives with his wife, the former Gertrude Carpenter, also of Lincoln, Nebraska. Mr. and Mrs. Rankin have two sons, James Lee Rankin, Jr. of Santa Cruz, California, and Roger Carpenter Rankin of Ogallala, Nebraska, and one daughter, Mrs. Allan E. Stadler, the former Sara Elizabeth Rankin, of Guilford, Connecticut.
Mr. RANKIN. I should like to read to you my remarks, if I may; then I would like to comment on a few things that I have heard this morning that I think need to be commented on, as far as I am concerned, at least to disassociate myself from some of the remarks.
Mr. Chairman and members of the subcommittee, I appear before you today at the invitation of the chairman to express some thoughts concerning the advisability of the bills S. 2803 and S. 2978.
Turning first to S. 2803, it appears that its major purpose is to establish the Department of Justice as an independent agency of the United States. The various provisions of the bill seek to modify the Department and its functions so as to cause it to become independent of the political control and direction of the President.
May I respectfully suggest that this proposal would not appear to be a desirable answer to the grave doubts the country has about the operation of the Department of Justice in this recent period. Even though such doubts are so disturbing that they produced a general lack of confidence in the Department's performance in advising the Executive and enforcing the laws, this bill would not seem to be an acceptable solution.
This suggestion appears to raise serious constitutional questions. The Attorney General can hardly be classified as an inferior officer, and although the President is to continue to have the power to appoint him, the chief legal officer of the Government is to thereupon become independent along with the Department of Justice. Thus they are to be free of control, and the Attorney General apparently of removal, except for cause, by the Chief Executive.
Under article II, section 2 and clause 3 of the Constitution, it is the President who is charged with the duty not to execute the laws but to "take care that the laws be faithfully executed."
How the President is to perform this responsibility or be accountable for failure to do so, if his principal Cabinet officer skilled in the law and the Department of Justice are to be made independent of him, is not explained. Nor is there any suggestion of how, thus handicapped and in addition burdened with all of the risks and problems resulting from the creation of an independent chief legal officer and legal department, and its possible interference with the President, he is expected to remain an effective Chief Executive.
While it is recognized that the President is not charged with faithfully executing the laws himself, the Congress has provided for him to select his own Attorney General, not independent of him, with the advice and consent of the Senate, almost since the founding of the Republic. Although it supplemented this action by establishing the Department of Justice in 1870, Congress was not unaware of the staff the Attorney General had before that.
Thus, although the function of the President is to take care that the other executive and administrative officers of the Government faithfully perform their duties, as regulated and prescribed by the acts of Congress, all would agree that he requires a large number of legal officers to assist him. They must help him to determine that those responsibilities currently are being discharged.
How would it benefit the country to substitute a new staff in the White House to aid the President in the discharge of this part of his official duties and to replace the independent one taken from him is not shown.
In addition, there could result the spectacle of an independent legal staff in the new department, the members of which might expect their most rapid political advancement, should they have such ambitions, by attacking the administration in any and all possible ways. This would further hamper the President in his conscientious efforts to take care that the laws are faithfully executed.
Although there can be no question about the power of Congress to inquire, investigate and legislate concerning the Executive's performance of the responsibility to take care that the laws are faithfully executed, it is not the branch of the Governrent charged
with the performance of that obligation. It cannot therefore assume the function. However, one can imagine that under this proposal the newly created independent department would be under constant pressure and just might be dominated by at least some members of Congress in its activities. The opportunity to gain support for appropriations and political approval for acting against those in the executive branch is obvious and might be too strong to resist. Possibly such a result should be anticipated, especially as the Department, then independent, found itself no longer supported politically by the President.
But probably the greatest mischief in this proposal, should the Department of Justice actually become independent, would be the loss of the political backing of the President with all that, that would mean within and without the Government. Because most major litigation is controversial, it needs political support. In the initiation, questions are raised as to whether it should even be started. Later, doubts are expressed concerning the pursuit of the action. In almost every stage of the proceeding there is opportunity for attack aganst the person, the means of the manner in which it is conducted. It is difficult to anticipate how the Attorney General and his assistants could have any prospect of maintaining themselves without a political officer to speak in their behalf. They would need that backing in defense of their actions. The uneven contest between the President and the independent department would be obvious should he conclude that the action taken is misconceived or the prosecution not justified. The department would be indeed fortunate then if it could gain sufficient public support in such debate to press forward with the action.
While it is recognized that this suggestion proceeds out of a series search for a solution to some of the difficulties observed in the administration of justice under the present structure, it could nevertheless provide more troubles than it would resolve.
There is ample evidence in history that when the Department of Justice has been strong and acted without fear or favor the laws generally have been faithfully executed. Such a result was probably not merely from the prosecutions or suits brought, but more importantly from a healthy respect for the assurance that similar action would occur without extraneous interference for other breaches of the law. In this manner the deterrent had its impact within and without the Government.
Nor should it be overlooked that the unfortunate weaknesses and frailities generating proposals such as these are rare and extraordinary in the Nation's experience. This fact suggests that in the search for solutions, great caution should be exercised that such a temporary condition not be treated as permanent and that the correction not be illusory. Surely a short-lived and unusual weakening of the Department is to be preferred over a permanent ineffectiveness. This goal, of course, is a long-term strengthening.
Another infirmity in the proposal is the provision for appointment of Assistant Attorneys General by the independent Attorney General rather than the President. This arrangement could be expected to draw less able and competent men to the Department. Under the practice, the Attorney General and the President usually have agreed on the selection of assistants, but the appointment by the Chief Executive has had a special attraction in the recruiting process. It has also given some assurance of protection to an assistant performing a difficult task with ability and dedication when an appointed official hesitates to support the effort, but a political officer answerable at the polls does not dare to abandon him.
However, even if the Department of Justice is not to be made independent, the Assistant Attorneys General should be appointed by the President in accordance with the past practice. At any rate, the Attorney General, Solicitor General, and Assistant Attorneys General have always been the President's major agents through whom he could take care that the laws are faithfully executed. Only the people can change that obligacion of the President. Furthermore, the country cannot countenance a system which leaves the President less accountable as he is deprived of both adequate selection and control of the agents upon whom he must so largely rely to accomplish the constitutional direction.
Some may say that the President can assure the desired performance by removing the Attorney General. Even if so provided for, without cause, that may not be a solution. It could be the assistant whose work is considered unsatisfactory for valid reasons and yet the Attorney General be unwilling to remove him. The President should not be placed in that position. Again, he is answerable if his dissatisfaction has an improper basis. Ths accountability of the elected official is the people's major protection. It should not be diluted.
S. 2978 does not raise most of the serious questions inherent in S. 2803 because it merely provides for a commission. The commission is to study how there can be established an independent permanent mechanism for independent investigation and prosecution. The subject of such action is to be misconduct of high officials in the Federal Government. Such a mechanism would replace the Department of Justice only as to charges of misconduct by high officials. The balance of its present authority and responsibility would remain with the Department. Presumably it might have to assume the defense of such officials where the President and Attorney General considered it proper and the action involved their oflicial acts. The changes contemplated here are not as radical. But the independent feature presents major difficulties.
The duplication of present responsibilities is inherent, but that defect can be eliminated. However, the Federal Bureau of Investigation now has the duty to investigate misconduct by high officials. It also has the legal obligation to report the evidence it secures of the commission of a crime to the proper officials in the Department of Justice. Such oflicials are obligated to act on the evidence according to law. Now the prevailing system has been found to be effective over a long period of years. It only broke down where the alleged misconduct involved the White House staff or those claimed to have been associated with members of that staff in unlawful activities. Thus, the question now is whether the entire system should be changed because of these recent events.
It is doubtful whether it is wise to relieve the Federal Bureau of Justice, or the President of their present obligations to investigate and punish official misconduct. The Bureau in its daily work is likely to discover evidence of misconduct as a part of its performance of its regular duties.
However, if it is assumed that the present authorities charged with it cannot or will not investigate and prosecute official misconduct of high officials, what will the permanent and independent new mechanism provide that is better? Who are the new officers to be independent of?
Presumably, they are to be free from interference by everyone who is a potential subject of investigation. That would involve all areas of the Government, since the record establishes the possibility in all three branches. To provide complete independence of all governmental control except as to the appropriations and expenditures would allow Congress to interfere to a degree with any independence; removal power by the appointing authority would also limit independence, and of course impeachment possibilities are one more encroachment on independence. But nonetheless, there would be left an independence not enjoyed by most other Government officials.
What kind of men are to be found who can be trusted with such almost unlimited power without the hard discipline involved in facing election and reelection? The lessons from the Constitution and the teachings of the Founding Fathers recommend dividing power and not concentrating it. Few devices could be found with such a potential for destruction to threaten our system of Government.
Possibly the President's and Attorney General's obligations to eradicate official misconduct with the able assistance of the Bureau could be preserved and yet have satisfactory increased enforcement. Another Assistant Attorney General added to the Department of Justice whose responsibility was to clean out all official misconduct might provide this. Such an arrangement would leave control of the function where it should be, under the Constitution, and make the right persons answerable for results. It is conceded, however, that this is not a solution if it is assumed that the President will be involved personally in misconduct. That would have to be reached in another way.
Do such comments mean that there are no other possible improvements if there is no shift in constitutional responsibility ? No, there are other suggestions. Without intending to reflect on what has happened in the past, in which the people have appeared to acquiesce, the Senate may decide to strengthen its advise and consent participation in the appointment process. It may exercise it hereafter in light of recent experience.
Over the years there has grown up a tradition that the President should be allowed to have such assistants as he chooses to serve with him. This does not appear to have been the constitutional purpose in involving the Senate in the process. While the Senate was not to originate appointments, it was able to check them and satisfy itself that those oppointed are qualified, that they recognize that they are the people's and the the President's officers.
In the Senate's action there is the opportunity to learn in detail of appointees' attitudes toward the responsibility to be assumed,