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sistance would be helpful. Except in cases where advice is sought in any cases of capital and non-capital murder, an offence is not normally reported unless and until there is a prima facie case for prosecution.
He is responsible to the A-G and his functions include initiating criminal proceedings after considering the facts or information brought to his notice by the Chief Constable or A-G or by any other authority or person, representing the Crown in criminal proceedings, including proceedings for such primary offences as he considers should be dealt with by him, and initiating where he thinks proper, prosecutions for offences against any statutory provision in Northern Ireland on behalf of any government department, including a department of the United Kingdom.
He is the second of the law officers. He is a member of the House of Commons. The office is conferred by patent at the pleasure of the Crown.
He acts as assistant or deputy to the A-G. In the A-G's absence or in. capacity, the duties devolve upon the S-G. When the office of the A-G is vacant or the A-G is unable to act through absence or illness or the A-G authorises the s–G to act in a particular case, any functions conferred by an enactment on the A-G may in general be discharged by the S-G. The S-G also represents the Crown where distinct interests require to be separately represented.
They (A-G, and S-G) may not engage in private practice.
Bibliography.-(1) Halsbury's Laws of England; (2) Hood Phillips: Con. stitutional and Administrative Law; and (3) Encyclopaedia Britannica.
Mr. SEYMOUR. I might also say, Mr. Chairman, that the bill offered by Senator Cranston, to have a commission inquire into the desirability of an independent prosecutor, seems to me not very far away from what we are talking about in this total problem area. I think there probably should be extensive hearings before this committee, or a commission, if the committee does not have the time or resources for it, really to see how Federal laws have been enforced under our present Federal law enforcement structure.
I myself believe that you have only seen a dramatic part, albeit, but only a part of the problem of having the Department of Justice politically sensitive and answerable to the White House. And I believe that, with a more thorough examination into how the various areas of Federal law are enforced, it will be perfectly clear that the political side must be separated out from the enforcement side. And obviously, the suggestion I have made, dividing up the De. partment of Justice, really is very similar to the proposal that Lloyd Cutler and others have suggested; having an independent Special Prosecutor. I do not myself like the idea of him being a Special Prosecutor. It seems to me he ought to be the permanent Chief Federal Prosecutor, with broad plenary powers, but sufficiently isolated from the political process so that we will not face these kinds of problems again in the future.
Senator Ervin. You have put your finger squarely on the source of the problems, I think. I had a professor of philosophy, many years ago, who said that the troubles which try our souls, are not choosing between the good on one side and the evil on the other, but that they come when we are forced to choose between conflicting loyalties. He said that each individual might be compared to a dot in many concentric circles, and each circle represents our loyalties; because all of us have many loyalties. And he said that the time
when people's souls are tried, is when they must make a choice between two conflicting loyalties, both of which make demands upon them. And that has certainly been true, as you point out so well in your statement, with respect to the wedding of political obligations, on the one hand, and the duty of being a nonpartisan enforcer of laws on the other, in the office of Attorney General.
I am very much impressed by your suggestions. Of course, we still have the Senate and the House of Representatives—the Senate in particular—that, like mose people, are reluctant to surrender power they once have held, and that is the power of naming Federal judges and U.S. attorneys.
I have just one or two questions. Did you hear Mr. Cox's comments about the antitrust laws, the antitrust division? Your statement says that the prosecution of antitrust cases should be put in the hands of the Chief Prosecutor, rather than the man who corresponds to the English chancellor.
Did you hear his observations about this?
Mr. SEYMOUR. That is a close question. There is no question at all that antitrust enforcement policy can be part of an administration's economic policy. Certainly, Theodore Roosevelt's era was marked by a broad assault on economic disparities, and antitrust enforcement was part of it. But so long as that is going in the direction of vigorous enforcement, I have no problem with it. When it goes in the opposite direction, of withholding prosecutions of flagrant violations of the antitrust laws, then the system is not working correctly. So I think it is entirely possible to either give some concurrent jurisdiction to two offices, or possibly break up the civil from the criminal, or possibly create some kind of independent agency, such as the SEC, to have some input into the process, to insure that there is a policymaking input.
But, I do not ever think that there should be the power to pull the punches, and to trade off an antitrust violation for a political .contribution, for example.
Professor MILLER. I have just a couple of questions, Senator.
I would like to ask first of all, Mr. Seymour, am I correct in inferring from your statement that you find no constitutional impediment to establishing these two offices the way you described them!
Mr. SEYMOUR. You are correct in inferring that, but you would be incorrect that it came from an oracle on the subject. I defer to wiser heads in that area. I am satisfied that it is a good, pragmatic solution, and I believe it to be constitutional.
Professor MILLER. We heard testimony last week, in the previous 3 days of hearings, concerning the relationships of the Department of Justice itself to the Federal attorneys, and I would like to explore just a moment, if I may, your office in New York City as U.S. attorney. For example, how much direction did you get from Washington, speaking just generally?
Mr. SEYMOUR. Let me say, by way of introduction, that our office in the Southern District of New York is not a very good test of the Nation. The Southern District of New York has been a unique office going back to the days of Henry Stimson, who was appointed by Theodore Roosevelt, and who has been followed by a long line of quite extraordinary lawyers. Indeed, we in the Southern District of New York rather take the view that we lead the way for the Department of Justice in a great many fields, so that there has been quite a bristling sense of independence between that office and the Department. It is sensed by the career people in the Department as well as by the assistants in the office.
1 Securities and Exchange Commission.
And time and time again, there is a confrontation that comes up because of that, and invariably the position of the U.S. attorney is, we will make the decision here, or I will resign. That has been an effective way to insure the independence of that office.
Now, again, that office itself handles all of its grand jury investigations, handles all of its trial work, all of its appeal work. There are, however, notwithstanding that tradition, at least two areas where the Congress, in its—I will not say wisdom, I will say in its confusion-has vested the exclusive power in the Attorney General to institute proceedings. One of those is in the civil rights field, and another is in the internal security field, and in those areas, we do not have the power of independent judgment and decision, and we can be directed by the Attorney General as to what to do.
In those two fields, I say without hesitation, that my experience in the Southern District of New York was substantially unsatisfactory, because we did not have the power to go ahead independently and make our decisions there. And I can think of several instances where we urged the institution of civil rights proceedings which were vetoed in the Department of Justice for reasons I challenge in terms of impartiality. And I can think of at least one instance of an internal security prosecution where, against our judgment, we were directed to institute a proceeding, and saw, to our satisfaction, the case was nolle prossed sometime later, because the Department was wrong and we were right.
Outside of the Southern District-I think there are now two or three other districts that have reached that level of competence and independence, such as the district of New Jersey under Herbert Stern, the district of Northern Illinois under Jim Thompson, and possibly two or three others—George Beall in Maryland. There, the stature of the men on the staff has really struck out a course of independence on the merits, not by statute, but really on the merits. Outside of those offices, by and large, the U.S. attorney is entirely dependent upon the Department of Justice for any legal guidance, civil or criminal, in a controversial or sensitive field. And by_and large
Professor MILLER. Did you say dependent or independent? Mr. SEYMOUR. Dependent—and by and large, not only is he told when to institute those proceedings, but staff is sent out from the Department to conduct the trials and the grand jury presentation.
Professor MILLER. Let me ask this further question, and this relates to a case now, and in New York, and I do not think it is improper to ask it, because the jury is sequestered. The Vesco case, Mr. Seymour—did you originate that yourself, on your own authority
Mr. SEYMOUR. I would very much like to answer that question. Although the jury is sequestered, I read the canons of ethics as barring me from discussing that, as long as that case has any vitality, including its appellate process. So, what I might do is ask if I can defer answering that, until the case is decided, and I would be delighted then, if this is still a live issue, to submit a statement to the committee. It is a subject about which I have considerable pride in that office, and I would like to boast about it, but I cannot.
Professor MILLER. Mr. Chairman, would it be proper to ask Mr. Seymour, at the proper time, to answer some written questions on this?
Senator ERVIN. I am sure.
Mr. SEYMOUR. I would be glad to give it to the committee in executive session, too, but.
Senator Ervin. I can understand why he feels reluctant to make a statement about the matter at this time.
Professor MILLER. All right, sir.
One other question, and this relates to the corps of the assistant U.S. attorneys and marshals and so on, and the staff that you have. This question has been asked before, and it has been proposed that a permanent, professional corps, sort of a Foreign Service Officer's staff for the Department of Justice be created, a professional cadre, in other words.
Mr. SEYMOUR. It is not an easy question, and there are no simple answers. I think the ultimate answer is a mixture, and what I have proposed in the past, to the Department, during a period when we regularly sent memos of recommendation down to the Departmentwhich were never acknowledged, which is one of my quarrels with the current relationship—what I proposed in the past is that there be a permanent cadre on the ratio of about 1-to-10, who were career employees of the Department of Justice, available for assignment to particular U.S. attorney's offices, with the approval of the U.S. attorney, but that it not be anything more than that. Now, the real reason for that is that the great advantage of a senior assistant U.S. attorney is that he knows the procedures to the tips of his fingers. In the Southern District of New York, we have one such man, the chief assistant. Out of 94, 95, 96 assistant U.S. attorneys, there is one such man, who has been there 32 years, and he really knows just the right section and person to call and when we last had that problem, and also has a large measure of common sense.
Beyond that, the most senior men in that office have been there maybe 5 years, and the secret to an office like that, and other offices
5 that have been standout offices over the course of the years, is their ability to attract bright, talented young lawyers, men and women who are anxious to get trial experience, anxious to get a taste of public service, but could not afford to go into career public service.
Now, the examples that we have seen, the career employees of the Department of Justice, although there are many fine people there, by and large, after 4 o'clock in the afternoon, you should not try to get them on the telephone. And, by and large, you should not expect to get an answer back from correspondence you send down there in less than 2 months. And, by and large, you should not expect to get clearance of a pleading in a complicated case, which routinely we'll send through one of the divisions, in less than 3, 4 to 6 months, the kind of thing we do in 1 day or 2. There is something about the career government service which, in some contexts, is wonderful to have, steady and sedate. But in the area of effective law enforcement, a little energy and hard work is the desirable ingredient.
I remind you of Thomas Alva Edison's response to the lady who said, “Mr. Edison, how does it feel to be a genius?” And he replied, “Madam, genius is 1 percent inspiration and 99 percent perspiration.
Professor MILLER. Thank you.
Mr. EDMISTEN. Under your proposal, you have an Attorney General, or by whatever title he might be called, to give political advice to the President?
Mr. SEYMOUR. And also render legal advice in that area, yes.
Mr. EDMISTEN. So that might do away with the situation Senator Ervin referred to a minute ago, the President's having all kinds of legal advisers in the White House.
Mr. SEYMOUR. Exactly, exactly. It comes directly to grips with what Senator Ervin was referring to, and also, I think, deals with the problem that Professor Cox was referring to. There still is a legal officer who is out there for the world to see, whose primary obligation is to give legal advice to the President, and the executive departments. That, after all, is what the Attorney General was originally created to do.
Mr. EDMISTEN. You mentioned perhaps removing the Bureau of Prisons from the Department of Justice, because it is just not really fitting for it to be there. What about the Law Enforcement Assistance Administration? Should the Department of Justice be handing out huge amounts of money ?
Mr. SEYMOUR. Again, that is one of those mixed questions where there is no clear right answer, and I think the ultimate answer is a mixture. I have seen some very unfortunate situations where the allocation of funds to local law enforcement agencies has created very serious problems of cooperation and morale. I have seen other situations where, with some input from the Federal Law Enforcement fellows locally, the money can be used very effectively to increase State-Federal cooperation. So you have really got to figure out a way to intelligently allocate the funds, and yet, at the same time, make sure that those who have purse string responsibility make sure that the money is not used improperly.
Mr. EDMISTEN. Thank you.
I want to commend the great record you have made as U.S. District Attorney for the Southern District of New York. I will go off the record.
[Discussion off the record.]
Mr. EDMISTEN. Mr. Chairman, the next witness is Hon. Fred B. Rooney, a U.S Representative from the 15th District of the State of Pennsylvania.