REMOVING POLITICS FROM THE ADMINISTRATION OF JUSTICE TUESDAY, APRIL 2, 1974 U.S. SENATE, SUBCOMMITTEE ON SEPARATION OF POWERS, COMMITTEE ON JUDICIARY, The subcommittee met, pursuant to notice, at 10:05 p.m., in room 2228, Dirksen Senate Office Building, Hon. Sam J. Ervin, Jr., presiding. Present: Senator Ervin. 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, and the counsel will call the first witness. Mr. EDMISTEN. Mr. Chairman, the first witness is Prof. Archibald Cox, former Special Prosecutor in the Department of Justice. Senator ERVIN. We are delighted to welcome you to the committee and appreciate very much your willingness to accept our invitation and come and give us the benefit of your views with respect to the study that we are making. STATEMENT OF ARCHIBALD COX, WILLISTON PROFESSOR OF LAW, HARVARD UNIVERSITY, AND FORMER SPECIAL PROSECUTOR IN THE DEPARTMENT OF JUSTICE BIOGRAPHICAL SKETCH OF ARCHIBALD Cox Archibald Cox, a leading authority on labor law, is the Samuel Williston Professor of Law at Harvard University. Professor Cox was Royall Professor of Law at Harvard from 1958 to 1961, when he left the Faculty to become Solicitor General of the United States. Under Presidents Kennedy and Johnson, Professor Cox represented the Federal Government in cases before the Supreme Court until 1965 when he returned to Harvard as the Williston Professor. This was not his first service to Washington. He had served earlier, as Chairman of the Wage Stabilization Board under President Truman, and in various government offices during World War II. Born in Plainfield, New Jersey, in 1912, he received the A.B. (1934) and LL.B. (1937) degrees from Harvard. He spent a year as law clerk to Judge Learned Hand of the United States Circuit Court of Appeals. Professor Cox was then associated with the Boston firm of Ropes, Gray, Best, Coolidge & Rugg from 1938 to 1941, when he entered government service. He joined the Harvard Faculty of Law in 1945, was appointed professor of law the following year, and Royall Professor of Law in 1958. Howard alumni elected Professor Cox to a six year term on the University's Board of Overseers in 1962; he resigned from the board before returning to the Faculty on July 31, 1965. With Professor Derek Bok, now President, he published "Cases in Labor Law" in 1948. The book is now in its 6th edition (1965). Recent publications are "Law and the National Labor Policy," (1960). "Civil Rights (the Constitution, and the Courts" (with Mark DeWolfe Howe and J. R. Wiggins, 1967), and "The Warren Court: Constitutional Decision as an Instrument of Reform," (1968). In 1968, Professor Cox served as chairman of a commission which investigated the disorders at Columbia University and published a book-length report on the origins of the disturbances. In the fall of 1969, the President and Fellows of Harvard College (the Harvard Corporation) delegated to Professor Cox the authority to determine how Harvard would respond to similar disorders, a responsibility he discharged through June, 1971. In 1972, Professor Cox served as counsel to the Massachusetts legislature's Joint Special Committee Established to Study and Investigate the Matter of Justices DeSaulnier and Brogna. He also serves as a member of the Board of Directors of the Harvard University Press and is a member of the American Academy of Arts and Sciences. Professor Cox is married and lives in Wayland, Mass. Mr. Cox. Thank you, Mr. Chairman. It is a pleasure to be back before you again. For the record, my name is Archibald Cox. I am Williston professor of law at the Harvard Law School. I was Solicitor General of the United States from January 1961, until December of 1965; and from May 1973, until sometime toward the end of October, Í was Special Watergate Prosecutor in charge of a separate unit of the Department of Justice. I am going to speak, Mr. Chairman, summarizing the prepared statement that I have filed, chiefly about S. 2803-your bill; to a lesser extent, about S. 2978, a bill introduced by Senator Cranston; and to one or two related matters that I believe will come up in the testimony. I would like to emphasize first the importance of, and my complete. agreement with, what I understand to be the goals of S. 2803: the need for establishing the absolute integrity of the Department of Justice; its freedom from any and every form of partisan or individual political influence; the absence of favoritism of any other kind; and its complete dedication to equal justice for all men under the law. Not only should the Department of Justice have those qualities, as should all members of the bar, but it is important that the people have confidence that the Department of Justice does have them, which is sometimes a matter of appearances and not alone of substance. For those reasons, Mr. Chairman, I have always regretted the appointment of an Attorney General who was either chosen or seemed to be chosen because of his role in directing political campaigns. And it seems to me that it at least equally wrong, and perhaps more wrong, for an Attorney General to have any party-political role while he is in office or to be looking forward to resuming a partypolitical role the minute he leaves office. Even when such an appointment works out well-and some of them have worked out well-still, they do tend to undermine confidence in the detachment and impartially and integrity of the Department of Justice, in its freedom from political influence, because of the appearance of things. The country would be very well served if we could establish a solid tradition that Attorneys General would not be appointed from such a background. That is something which, of course, rests chiefly with future appointing Presidents; but it is also an area in which the Senate Judiciary Committee and ultimately the Senate itself can exert a great deal of influence. It occurred to me on the plane this morning that it was also possible that legislation could be adopted writing such a requirement into law. I think such a limitation, such a narrow limitation, on the group from which an Attorney General would be chosen would not constitute an unconstitutional interference with the President's power of appointment. It is also important to confidence in the administration of justice that every attorney, from the Attorney General down to the most junior lawyer, reject and be expected to reject every attempt to exert personal or political influence upon the administration of justice, whatever its source. And finally, I would emphasize that there are times, as you know, Mr. Chairman, when it is every lawyer's duty to give his client advice that the client may not like to hear, to tell him what his obligations are under the law. That obligation rests upon an Attorney General in dealing with his client, the President, just as it does on all other lawyers. In these senses, Mr. Chairman, the Department of Justice must be truly independent. And I have a few modest suggestions that I think might help establish that independence. But, on the basis of my experience, I am not able to agree that the purely professional functions of lawyers can be so generally separated from questions of policy in the best and highest sense of that word, so as to warrant enacting legislation that would make the Attorney General and the Department independent of the President. So it seems to me that while S. 2803 points to an important problem which concerns us greatly, I think as the bill stands it would be unwise, that it would lead to duplication, conflict, and therefore be wasteful of human and financial resources. I might first call attention to my affirmative suggestions that are at the end of my statement. The first is what I have already mentioned: My view that the Attorney General should be a lawyer who has no place in party machinery and who has not recently participated in the direction of political campaigns. As I say, that could be done either by establishing a solid tradition or, I now think, supplementing my statement, by the enactment of legislation. Second, there certainly are many functions in the Department of Justice that involve no questions or judgments of broad policy. My impression is that virtually all cases dealing with the enforcement of the Criminal Code and the Internal Revenue, Code fall in this category. I would expect it to be true of the great bulk of the business of the Lands Division; of many cases, but not so large a pro portion, in the Civil Division. I do think that it might be possible to identify the kind of area I have described more particularly and to adopt measures probably by departmental regulation, but approved by the Chief Executive-that would shut off all communications between the Department and outsiders on such matters-communications of any kind with the White House, the executive offices of the President, members of the Senate or House of Representatives and their staffs or obviously other political figures in or out of government, except those in government who have a direct responsibility for law enforcement in the area. This is a technical problem that would deserve further study, but I think it is worthy of consideration. Third, the suggestion that an inspection service be established within the Department deserves careful study. It is not my thought that every man needs somebody else looking over his shoulder. Indeed, my experience is quite the opposite. But I think an inspection service could be set up in such a way that it would quickly relieve suspicion when the suspicion was unwarranted; that it would strengthen what I think is the will of most of the attorneys in the Department to act impartially and independently of political influence. And, of course, it could dig out those cases in which there has been improper political contact or other form of undue influence. Fourth, I would like simply to mention-but not go into at this time, although I am not hinting at anything terribly mysterious— the importance sometime of this committee or another committee or subcommittee of the Judiciary Committee giving careful study to the distribution of information gathered in the course of investigations. I particularly have in mind distribution of intelligence gathered by the FBI in the course of electronic surveillance. Senator ERVIN. I might state that the Subcommittee on Constitutional Rights is dealing with legislative proposals on that specific point at this time. Mr. Cox. It certainly is a very important one-both the substance and also the matter of where the information goes if this method of investigating is to be tolerated any longer. Finally, Teapot Dome, Watergate, and all its associated wrongdoings have taught us the sad lesson that crime and the interference with the administration of justice can reach toward the top of the executive branch. Where there is reason to believe that this may have happened, investigation and prosecution cannot be left under the Attorney General or Assistant Attorney General or others in the Department of Justice appointed by the President and necessarily answerable to him. The pressures, the tensions of divided loyalty are too much for any man, and as honorable and conscientious as any individual might be, the public could never feel entirely easy about the vigor and thoroughness with which the investigation was pursued. Some outside person is absolutely essential. The question is what, if anything, should be done. I suppose that the choice lies between (1) setting up a permanent office, which would have the duty of investigating possible wrongdoing in the executive branch, (2) providing for a study, such as Senator Cranston proposes, of a permanent mechanism which would |