functions which should be characterized by objectivity and impartiality. Second, we must remove the selection of principal law enforcement officials from the arena of partisan politics. First of all, dealing with the separation of functions, the most serious problem in the present Department of Justice is that the Attorney General has a built-in conflict of interests which permeates much of the Department's operations and spills over into the Federal Bureau of Investigation. This is not simply a problem of character and personality which can be corrected by picking a different man for the job. It reflects a fundamental flaw in the original conception of the Department of Justice, and unless and until that flaw is corrected, we will never solve the underlying problem. The difficulty is that we expect the Attorney General to serve two masters at the same time: one is the President, as personal and political adviser; the other is the ideal of nonpartisan, evenhanded justice. Time and time again these two functions collide with each other head on. Whenever it would be politically embarrassing to the President to have some particular investigation or prosecution instituted or pursued, the conflict of interest immediately comes into play. Whenever questions involving policy matters within the jurisdiction of the Department-such as internal security, enforcement of congressional statutes, or immigration-require advice to the President both from a political and legal point of view, the conflict of interest reappears again. Loyalty to the political interests of the administration may often require disloyalty to the goal of impartial justice. Over the course of history, one Attorney General after another has served as personal and political adviser to the President. There is nothing wrong with the President having such an adviser. The problem comes when that very same official is also charged with the evenhanded enforcement of the laws. It is not enough to change the label on the Department of Justice. What must be done is to change the functions of the Attorney General up and down the line. The divergent roles of Presidential political adviser and chief law enforcement officer must be definitively and sharply separated. Until they are, we will always be haunted by the possibility that the awesome powers of the Nation's major law enforcement agency will be used for political purposes. No man can serve two masters, particularly when their objectives are frequently divergent and sometimes completely opposed. I suggest that the committee consider the creation of two distinct senior cabinet positions. In deference to historical tradition, one might still be called Attorney General. The other might be called Chief Prosecutor. Other labels would do as well. In England, the political adviser over the course of history has been known as the Chancellor, while the chief prosecuting officer has been known as Attorney General. The important thing is not the label, but the function. The Presidential adviser should logically be responsible for the following functions now in the Department of Justice, all of which are intimately involved with the policy interests of the administration: the Office of Legal Counsel; Office of Legislative Affairs; Community Relations Service; LEAA, Internal Security; and Immigration and Naturalization Service. 1 The Chief Prosecutor should have a separate agency under his direction possibly a Department of Law Enforcement-which would include all of the existing civil and criminal litigation and law enforcement functions in the Department of Justice, including specifically: the Criminal; Civil; Tax; Civil Rights; Antitrust; and Land and Natural Resources Divisions. The Solicitor General and Pardon Attorney should also be part of such agency, as should the principal investigative agencies the Bureau of Prisons, however, should be elsewhere, in an agency concerned with human resources, such as HEW,2 rather than one concerned with prosecutions-the Chief Prosecutor and the agency under him should have no direct working relationship with the White House. The office should be independent except to the extent that the Constitution requires answerability to the Executive as part of the separation of powers. These same lines of division should also apply to the Federal Bureau of Investigation. It too suffers from an internal conflict of interest. To the extent that the FBI is engaged in internal security work and background checks on the qualifications of prospective Presidential appointees, its primary loyalty is directly to the White House. On the other hand, when it comes to investigation and enforcement of the Federal laws, particularly Federal crimes, the work of the FBI should be completely impersonal and objective and should not be subject to any type of interference from the President or members of the White House staff. We have recently seen the tragic results that flow from combining dual loyalties in the person of the Director of the FBI. In order to please the White House, the Director has willingly made false pub-. lic statements about the use of FBI personnel to investigate newsmen; has destroyed incriminating evidence; and has led midnight secret police raids on the office of the former Special Prosecutor. All three of these examples, you will note, involved three different personalities as Directors of the FBI. Yet each one of them involved a perversion of the proper function of a law enforcement investigative agency, which should not be partisan to any man. The functions of the FBI should be divided, so that those concerned with national security and related matters are in one agency; and those concerned with objective fact-gathering and law enforcement are in another. The head of one agency might be called the Director of Security, and the other Director of Federal Investigations. Once the concept of separating these two conflicting functions is recognized and implemented, then the next step is to work out a process of selection which will insulate the Chief Prosecutor and the Director of Federal Investigations from the political arena. The Ervin bill makes a step in this direction, but does not go far enough. I suggest the committee consider establishing a nominating commis 1 Law Enforcement Assistance Administration. 33-875-74--15 sion which would be required to compile a limited list of the best qualified candidates, possibly three in number, whenever there is a vacancy in either of these offices, from which the President would be required to make a selection, subject to Senate confirmation. A nonpolitical nominating commission should also be considered to achieve merit selection in other important offices which have been too subservient to political considerations in the past. Foremost among these is the office of U.S. attorney. The office of U.S. attorney was created under the original Judiciary Act of 1789. Each U.S. attorney was vested with complete authority to handle Federal criminal and civil matters in his district. He was not subject to any supervision by the Attorney General until the establishment of the Department of Justice in 1870. Subsequent legislation has now given increasing control to the Attorney General. Properly, the U.S. attorneys should be under the supervision of a nonpolitical Chief Prosecutor, not under the direction of a political adviser to the President. That does not mean, however, that these officials should not be selected by the President, which gives them a stature in keeping with the importance of the office. However, the existing practices in selecting candidates for U.S. attorney-for which the U.S. Senate itself is in large part to blame-have been excessively partisan and political. This partisanship has frequently interfered with the independence and effectiveness of that office. I suggest for your consideration the establishment of a Circuit Nominating Commission in each judicial circuit of the United States, with the responsibility for nominating candidates both for the offices of U.S. attorney and also for U.S. district and circuit judges in that circuit. Such a Commission might be constituted by having the chief judge in each district court select one member of the Commission and the chief judge of the circuit court select three members, one of whom would be designated as chairman. Obviously, protection should be built in to insure that no more than a certain percentage of the Commission members could belong to the same political party and that the members themselves would be ineligible for appointment during their membership on the Commission. Such nominating commissions would be obligated to submit the names of qualified candidates to the President for his selection. Once the President has made his selection from the list, the name would be submitted to the Senate for confirmation. In this way we would preserve the desirable answerability of elected public officials for the appointment of senior executive and judicial officers, while at the same time removing the selection process from partisan politics. When it comes to selection of the Chief Prosecutor and the Director of Federal Investigations, a National Nominating Commission might be constituted, to be made up of the chairmen of the various Circuit Nominating Commissions, plus a chairman to be appointed by the Chief Justice of the United States. This body would then be the originating agency for submitting the names of nominees from which the President would choose the officials. Obviously it is desirable to fix a term of office for the Chief Prosecutor and Director of Federal Investigations and I believe that the 6 years suggested in Senator Ervin's bill is sensible. As for the official who remains as political adviser to the President, whether he be called Attorney General, Chancellor, or whatever, his selection can properly be left to the present method under which the President is permitted to choose those officials who will directly carry out his administration's policies. The same could be true for the Director of Security. The important thing is to carve out of those officials' jurisdiction the responsibility for the enforcement of Federal laws, which should have no part in political or policy considerations. If we can accomplish reforms of this scope, then the agony of Watergate will have been worth the price. If we fail, then we will continue to invite future Teapot Domes and Watergates, and countless other instances of misuse of Federal authority for personal gain and political advantage. Now, Mr. Chairman, since preparing my statement, I have conferred with a distinguished member of the bar of Great Britain, who has supplied me with a summary of the relative duties of the British chief law enforcement officers to which I referred, and if I may, I will just file this, and ask that it be incorporated into the record, so that it can be available for reference. And you will see from that summary that there is, in fact, a Director of Public Prosecutions in Britain, which is quite similar to the concept that I have been talking about here. [The material referred to follows:] SUMMARY OF RESPONSIBILITIES OF PRINCIPAL LEGAL OFFICERS IN GREAT BRITAIN THE LORD CHANCELLOR He is a British Officer of State with 3 main functions: (1) He presides over the House of Lords. (2) He is the head of the judiciary. (3) He is also a minister, a member of the Government and of the Cabinet, having under his control all the judicial appointments in the country except those reserved to the prime minister, and a great deal of ecclesiastical patronage. As speaker of the House of Lords, the Chancellor's powers and duties differ considerably from those of the Speaker of the House of Commons. He puts the question but has no power to rule upon points of order. Like the Speaker of the House of Commons, he may take part in debates, and, unlike modern speakers, Chancellors frequently do so. Originally he was an ecclesiastic who acted as the King's secretary, and was keeper of the King's conscience. He is appointed by the delivery of the Great Seal, of which he is the keeper. He is a Privy Councillor and acts as Speaker of the House of Lords, when he sits on the Woolsack. He is the President of the House of Lords, and of the Chancery Division of The High Court. As Speaker of The House of Lords he presides over the House when sitting as the Highest Court of Appeal. He appoints the justices of the peace and the country judges and nominates the judges of the High Court except the Lord Chief Justice. He is the principal legal and constitutional adviser of the Government. He is a member of the Cabinet, not, it is said, as of right, but because his duties as holder of the Great Seal make him a necessary party to the innermost council of the Crown. Retirement from the office of Chancellor is generally understood to involve retirement from the Cabinet. He is also a sworn member of the Privy Council for the same reason, and is said to have a prescriptive right to be such. The Lord Chancellor is, in general, the formal medium of communication between the Sovereign and Parliament. On the meeting of a new Parliament it is his duty, in the event of the Sovereign not being present, to open Parliament in person. Other duties: Custody of Great Seal, Ecclesiastical Patronage etc. ATTORNEY-GENERAL He is the chief law officer of the state or nation and the legal adviser to the chief executive. He is the Crown's representative in courts of law and the legal adviser of the Sovereign and the Sovereign's ministers. He is a member of the Government, but not, nowadays, of the Cabinet. He is a member of the House of Commons. Although he is a minister of the Crown, he exercises the majority of his functions in a quasi judicial manner without regard to political considerations of any kind. Civil proceedings by or against the Crown may be instituted by or against the Attorney-General in lieu of the appropriate Government Department. After proceedings have been instituted he may be substituted for the authorized Government Department, or vice versa. (Crown Proceedings Act 1947, S. 17). The Attorney-General and Solicitor-General, and the Lord Advocate and Solicitor-General for Scotland are members of the ministry. They are usually members of the House of Commons, but not in the Cabinet; of late years, however, there have been exceptional cases of an A-G in the Cabinet, and the A-G and S-G have at different times been out of Parliament. The A-G and S-G are summoned, together with the judges, to attend the House of Lords at the beginning of every Parliament. In peerage cases, the claim being made by petition to the Crown, the petition is referred to the A-G. If he is satisfied that a prima facie case has been established, he generally advises the Crown to refer it to the House of Lords, which refers it to the Committee for Privileges for Report. The A-G attends the hearing before the Committee both as assistant, by virtue of his writ of attendance, and as protector of his interest of the Crown as fountain of honour. The A-G acts as prosecutor both for the House of Lords and the House of Commons. In the case of offences directly concerning the House, the House directs the A-G to prosecute; in offences not directly concerning the House, the House addresses to the Crown a request that the A-G be directed to prosecute. He is the Head of the Bar and has precedence over all Queen's Counsel. DIRECTOR OF PUBLIC PROSECUTIONS His duty is, subject to the superintendence of the A-G, to institute, undertake, carry on or give advice or assistance in criminal proceedings which appear to be of importance or difficulty (Prosecution of Offences Act 1879 and 1908). Only a barrister or solicitor of not less than 10 years' standing may be ap'pointed Director of Public Prosecutions. Proceedings relating to the communication of information concerning plants for the production or use of atomic energy under the Atomic Energy Act 1946, cannot be instituted in England or Wales except by or with the consent of the Director of Public Prosecutions. Where information is given to the Director of Public Prosecutions that any corrupt or illegal practice has occurred in reference to any election, it is his duty to make such enquiries and institute such prosecutions as the circumstances of the case appear to him to require. He must attend the trial of any election petition by himself or by his assistant or representative, nominated by him with approval of the A-G. He is not allowed to cross-examine witnesses called by either party, but is allowed to call witnesses himself. Chief Officers of Police in England and Wales must report to the Director of Public Prosecutions all cases under the Extradition Acts, 1870 to 1935, arising within their districts. The Chief Officer of Police for any police area is under a duty to report to the Director of Public Prosecutions offences of prescribed categories alleged to have been committed within that area; and may consult the Director of Public Prosecutions on any case in which he thinks that advice or as |