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Senator ERVIN. We are delighted that you accepted our invitation to testify. We want to thank you for coming to give us the benefit

your experience and views on the matter before us.




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Mr. ROONEY. Thank you, Mr. Chairman.

I would like to express my sincere thanks to you and your committee for permitting me to testify here today on the important subject of whether the Department of Justice should be transformed into an independent agency.

My remarks today are not meant to be a criticism of any one individual or any one institution; rather, I shall attempt to analyze what I consider to be my perception of the problem, and how changes can be effectuated.

Further, Mr. Chairman, I should like to relate to you a problem that I and my statff have had with the Department of Justice, and the destructive consequences such Department of Justice actions may have on this and future Congresses.

One of the main living strengths of our Government has been the doctrine of separation of powers between its branches. This does not mean that each branch has only separate and distinct powers. Rather, it means that each branch has separate and distinct functions, and some of the powers of the distinct branches are exclusive, and some of the powers are shared. The reasoning behind this system was to place a minimum amount of power in any one branch of the Government, and to insure that the different branches could oppose one another as a check on the other's power.

The legislature was to make the laws, the Executive was to enforce and administer the laws. To aid the Executive in his duties, the Congress, as far back as the Judiciary Act of 1789, provided the Executive with an Attorney General whose chief duty it was to prosecute cases for the United States and to render legal advice to the President. Later, the Department of Justice was created with the Attorney General as its head, and its functions were expanded to that of giving legal advice to all executive department agencies, and of defending all suits involving executive department officials. Simply, since 1789, the Congress made the Attorney General the family lawyer for the executive branch of our Government.

This relationship was a smooth one in the sense that when Congress passed a law, the President either vetoed it and sent it back to Congress, or else he signed it and enforced or administered the law.

Recently, as the chairman is most aware, the constitutional process as described above has encountered many snags. Some laws were passed by Congress, signed by the President, and yet they were not enforced by the executive branch. These stalemates between the two branches of our Government turned the Department of Justice from the Nation's law enforcement agency into a weapon that was being used by the executive branch to subvert the powers of the Congress. For almost 190 years, the Department of Justice sought to enforce the laws of this Nation. Today, this Department defends administrators and an Executive who refuses to implement the laws passed by the Congress.

The present situation has completely perverted the original purpose of the Department of Justice. The blame for this perverted effect must be shared by the Congress as well as by the Executive. We in Congress did enact title 28, U.S. Code, sections 501 through 516. It is now time we realize that the continuation of the Department of Justice in its present form can only continue to erode the powers of the Congress, and eventually the power of our representative form of government.

The impoundment and termination of Federal programs places me and every other Member of Congress in a very precarious situation with constituents. The constituents or local governments in the Member's district write the Member about pending applications for grants under Federal programs that have been terminated. It becomes very difficult for me to believe that I am truly representing my constituents, and sincerely defending the Constitution, when I reply to the constituents that the Congress authorized the program, appropriated funds for the program, but that the Executive nevertheless terminated the program, and that there is nothing further that I can do.

I began to think of myself as an errand boy, who carried a little. card that I automatically placed in a voting machine each time the electronic buzzers sounded in the House of Representatives. I voted, but I knew that with the present situation that, even if the Congress enacted a law, or appropriated funds, the law might not be administered or the funds not spent. Simply, my vote, then, had no effect.

Therefore, Mr. Chairman, I decided that my right to vote as a Member of Congress, and my duties to represent my constituents, must be vindicated. I directed my staff attorney to file suit for me, solely as a Member of Congress and not as a private individual, and on behalf of communities I represent in Congress. That suit i was filed against Mr. Lynn and Mr. Ash for their termination of the basic water and sewer facilities program. My legal theory was that the defendants' actions nullified my vote as a Member of Congress, substantially affected my ability to fully represent my constituents, and denied my constituents their Federal rights given to them by the Congress, and signed into law by the President.

After my staff filed this lawsuit a rather strange situation developed. The Civil Division of the Department of Justice that was charged with the responsibility of defending the case suggested to the Criminal Division of the Justice Department that my staff attorney may have been in violation of criminal law 18, U.S. Code, section 205. On February 21, 1974, I received a letter from Mr. Petersen indicating that his division had initiated an investigation to determine if Mr. Kovacs had violated 18 U.S. Code section 205.

1 The Honorable Fred B. Rooney, et al. V. James T. Lynn, et al., U.S. District Court for the District of Columbia.

This immediately stopped all work on my civil suit, so that we could find out what possible violations may have occurred. We examined the section's legislative history, discussed the section with its author, and presented our problem for an opinion to the House Committee on Standards of Official Conduct. All efforts proved futile. We could not understand how the law may have been violated. 18 U.S. Code 205 is the conflict of interest section, which was drafted to prohibit a Government employee from using knowledge and information obtained from his Government employment for private, nonpublic or nonofficial benefit. There was no such conflict present in this case.

After searching to discover what might possibly be illegal, Mr. Kovacs, through an outside attorney, attempted for several weeks to set up a conference with the Department of Justice. The conference was denied.

Finally, after exhausting all possibilities of discovering any wrong, I submitted the matter to the House Committee on Standards of Official Conduct. This is the House committee with jurisdiction over the actions of House employees. In a unanimous opinion the committee concluded that Mr. Kovacs was acting in the proper discharge of his official duties, since I directed him to file the suit to vindicate my vote as a Member of Congress, and to assist me in fully representing my district. A copy of the committee's opinion is attached, Mr. Chairman. At this time, I would like to have it be part of the record.

Senator Ervin. Yes, I have read the opinion, and I concur in it completely.

[The material referred to follows:]


Washington, D.C., March 14, 1974.
House of Representatives,
Rayburn House Office Building,
Washington, D.C.

DEAR COLLEAGUE: The Committee on Standards of Official Conduct has reviewed your letter of March 11, in which you set forth the case surrounding the Department of Justice's questioning the activities of your Legislative Assistant, William Kovacs, in the filing of the lawsuit captioned Rooney et al. V. Lynn et al., U.S.D.C.D.C., 2010–73

As you have explained the facts, it is the unanimous opinion of this Committee that your Legislative Assistant was acting “in the proper discharge of his official duties” as we interpret the legislative intent of those words in 18 U.S.C. 205.

The essence of the matter is that you directed Mr. Kovacs, as your staff attorney, to file this lawsuit so as to retain the effect of your vote as a Member of Congress and also to better assist you in fully representing your district. We view his activities as an extension of your clear representational prerogative and in no way violative of the intent of the statute.

As you know, there are a number of Constitutional, statutory and Rules' provisions which regulate the conduct of a congressional office, but none specifically setting forth a prescribed method of constituent representation. Rather, within the broader outlines mentioned above, it is left to the judgment of each Member as to how to best represent his constituents. Further, the Congress each year appropriates funds for "clerk-hire" assistance so that the Member may in fact carry out this duty.

It is indeed our duty, directly or through our staffs, to assist constituents with their problems before the Agencies of the Federal Government. Staff activities when directed by a Member of Congress are, we believe, within the official duty of such staff members, and to hold otherwise would be tantamount to closing our doors to our constituents. To conclude, as the Department of Justice seems to imply, that 18 U S.C. 205 prohibits any form of case work would mean that we have been barred from carrying out one of our most basic responsibilities. It is our firm belief that the Congress had not the remotest intention of achieving this result when it enacted 18 U.S.C. 205.

Research into the legislative history of 18 U.S.C. 205 indicates to us that the statute prohibited private representational activity. Since you directed Mr, Kovacs to file the suit for yourself as a Congressman and to guarantee representation of your constituents, it is clear that Mr. Kovacs was not acting in a private matter. He was acting in a manner to assist you in representing your district. This is no different than your staff acting as agents for your constituents to assist them in obtaining other vested benefits. We regard this as entirely proper.

I hope this letter clearly answers your questions on the subject, and if further clarification is necessary, do not hesitate to contact us. Sincerely,



Ranking Minority Member. Mr. ROONEY. Mr. Chairman, I have discussed this matter with several Members of Congress, both Republican and Democrat alike, and all of the opinions have been unanimous. The Justice Department might wonder why I am or why other Members are so upset about their tactics in this case. Simply, it is up to the Congress and not the Executive to determine what the duties of the congressional staff are. Secondly, the invocation of criminal investigations against a staff member who attempts to secure the Congressman's vote and assists him in representing his district is only one step removed from the actions of the Tudor and Stuart kings who would imprison Members of Parliament for seditious libel against the Crown.

Further, I am deeply concerned that the actions of the Civil Division of the Justice Department may have been motivated to gain an advantage in the civil proceedings. If that were true, it in itself would be a crime deserving of investigation. But who will investigate the Department of Justice?

In the light of the history of the Department of Justice, and its statutory responsibility, which many times may hinder those enforcing the law, and because of my own recent experiences with the Department, I should like to offer a few recommendations.

The Department of Justice must be reconstructed as an independent agency, as free as we can possibly make it from political influence.

That this new agency be headed by several Commissioners or Attorneys General, chosen for their legal qualifications, not party membership of political influence, and that each of the Commissioners or Attorneys General serve a single 6-year term, subject to removal by impeachment.

That the agency be made responsive to requests for advisory opinions from both the legislative and executive branches, and that all such opinions be published.

That the Commissioners be required to issue an annual report of the agency's activities, and that it be furnished to both the executive and legislative branches.

That this independent agency be prohibited from providing legal counsel or defense for any officer of any branch of Government, except through the issuance of published advisory opinions.

That the Congress take immediate steps to establish its own office of Congressional Counsel.

That the Congress establish a review board to monitor the new Commission and report its findings and recommendations to the Judiciary Committees of both Houses.

It is imperative that the Congress move quickly to end any and all practices which allow the Department of Justice to be further utilized as a powerful political weapon, and to insure an atmosphere of independence and neutrality shall facilitate the pursuit of true justice in the future.

Mr. Chairman, I thank you for giving me the opportunity to appear before this committee today, and I will be very happy to answer any questions you may have.

Senator ERVIN. I appreciate very much the forcefulness of your statement.

During recent months, we have had some very peculiar theories of government advanced by the executive branch, one of which you discussed today. Notwithstanding the fact that the Constitution clearly commits the power of the purse to the Congress, and notwithstanding that the only provision of the Constitution which gives the President the power to disapprove of an act of Congress is the one permitting a veto, the President embarked upon the wholesale impoundment of funds which had been appropriated by Congress for specific projects and approved by the Congress, and which had been signed into law by the President himself. In at least one of the instances, the bill had been recommended by the President. The impoundments resulted in depriving the Congress of its right to override a veto, which is the only way that the President has to disapprove of an act of Congress. It was a complete frustration and usurpation of power; the frustration and usurpation of the power of Congress, and the assertion by the President of power that he did not, in my judgment, possess. You were interested in funds which had been appropriated, by an act of Congress, to fund the Basic Water and Sewer Facilities Program and which had been passed by an overwhelming majority over the President's veto, as I recall.

Congress had declared that these funds should be spent for specific purposes, which were very essential, I think, to the Nation's health.

One of the committees on which I serve-in fact, this subcommittee—sitting with the Government Operations Committee, heard some remarkable testimony on a matter that we hear a lot about nowadays—executive privilege. The Attorney General, at that time appearing before the two committees, testified that the President could deny Congress the power to hear the testimony of any one of all the hundreds of thousands of Government employees, and even the charwomen and janitors.

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