And we have seen a strange use of the Department of Justice. As I recall, the Department of Justice was furnishing a lawyer to advise one of the defendants in the civil action against certain individuals as a result of the Watergate affair, at the same time when the Department of Justice was supposed to be prosecuting the criminal cases arising out of that.

And then, I had some experience with them; all of us have had experience with them, in this claim for executive privilege. But when the shoe is on the other foot, they have quite a different conception of the Constitution. Senator Saxbe and I were appointed by the Senate to argue on behalf of the Congress on the speech and debate clause, and the Department of Justice came into that case through the aegis of the Solicitor General, and took the position that, while the President had the right of executive privilege, that the Congress had no privileges at all under the speech and debate clause; that an employee acting within the scope of his employment, and acting within the scope of the legislative powers of the Member of Congress, could be compelled to go before a grand jury at the behest of the Department of Justice and reveal what transpired between him and his Senator or Representative. Fortunately, the Supreme Court did not sustain that position. But the Court did go pretty far to sustain the inability of the Senator or Congressman to inform his constituents about what is happening in the Government of the United States. The Court held, in effect, that the only protection that a Senator or Congressman has under the speech and debate clause is that his statements that are confined to the Congressional Record are protected. If he writes his own individual letter to explain, he is apparently subject to being harassed in the

courts.

As I was provoked to say some time ago, I think that the divine rights of rulers passed out of existence in America with the American Revolution. But some people in the Department of Justice and White House have not discovered that yet. [General laughter.]

The inference that I draw from your experience is that the Department of Justice was using coercion to keep you and your employee from trying to get for your constituents something to which they were lawfully entitled under an act of Congress.

1

Mr. ROONEY. Well, Mr. Chairman, this suit is completely stymied. It has been stymied by the Justice Department, and I do hope that Mr. Petersen will conclude his investigation of the member of my staff, Mr. Kovacs, so that we can go to court and let the Court decide as to whether or not it was legal for the President to impound $400 million worth of funds.

Senator ERVIN. I put in the Congressional Record some time ago some memoranda that passed between different members of the White House staff, who were trying to devise some method by which they could make the news media of the country present news in a light more favorable to the administration. And they suggested that they might make threats of prosecution under the antitrust laws, and that it would not be necessary to bring the suit, but the

1 Henry E. Petersen, Assistant Attorney General, Criminal Division, Department of Justice.

coercive power of the threat would make the news media a little more careful about what they say.

Mr. ROONEY. That is why they set up that White House czar back in 1971, Mr. Chairman. I am quite familiar with that. I served in the Communications and Power Subcommittee in the House.

Senator ERVIN. Yes.

Professor MILLER. May I ask one question, Senator, please? [Senator Ervin nods in affirmative.]

Professor MILLER. Would you tell me, sir-I would like to explore just a bit the position of the Department of Justice with respect to Mr. Kovacs. Is he still under investigation?

Mr. ROONEY. Mr. Kovacs was interviewed last week by two FBI agents in my office. The extent of that interview I cannot tell you, Senator.

I called Mr. Petersen last week, and asked him for a conference, and he said, I am not going to give you a conference. I said, why not? I received this letter from you dated February 19, informing me that one of my staff members is under investigation. You could at least give me the courtesy of a conference. He said, there is no need to give you a conference. We merely sent that letter to you as a congressional courtesy.

And basically that was the extent of our conversation.

Professor MILLER. Are you the party of record in this suit?

Mr. ROONEY. There are six plaintiffs; five boroughs and townships, and, myself as a Congressman.

Professor MILLER. Has Mr. Petersen explained why he did not investigate Senator Kennedy when he brought his suit a year or so ago on the pocket veto case, and used his staff members to prepare his briefs, and so on?

Mr. ROONEY. Apparently, he did not see fit to investigate Senator Kennedy's staff, because Senator Kennedy was a lawyer and filed his suit himself. I am not a lawyer. I directed my staff legislative assistant to file the suit. So perhaps this is where the line is drawn. Professor MILLER. When do you expect to get an answer out of the people downtown?

Mr. ROONEY. I wish the Senator would direct that question to Mr. Petersen. It would certainly relieve my staff, and it would relieve me. Senator ERVIN. I am going to ask the subcommittee staff to make the request of Mr. Petersen, and give us a report on this entire

matter.

Mr. ROONEY. I appreciate that very much, Mr. Chairman.

Senator ERVIN. Thank you, sir. Thank you very much. We appreciate very much your appearance.

The counsel will call the next witness.

Mr. EDMISTEN. Mr. Chairman, the next witness is Mr. Lloyd Cutler, of the law firm of Wilmer, Cutler & Pickering of Washington, D.C., the former general counsel to the President's Commission on the Causes and Prevention of Violence.

Senator ERVIN. Mr. Cutler, on behalf of the committee, I want to thank you for accepting our invitation to appear here today and give us the benefit of your views in respect to the matters we are

studying. We are particularly glad to have you, because you have given much study to the related problems in this field, and can be of great help to us.

STATEMENT OF LLOYD N. CUTLER, ESQ., ACCOMPANIED BY THEODORE SIMS, ESQ.

BIOGRAPHICAL SKETCH OF LLOYD N. CUTLER

Born: November 10, 1917, New York, NY.

Residence: 5215 Chamberlin Avenue, Chevy Chase, Md.

Professional Affiliations: Member, Wilmer, Cutler & Pickering, Washington, D.C.; Co-Chairman, Lawyers' Committee for Civil Rights Under Law (197173); Executive Director, National Commission on the Causes and Prevention of Violence (1968-69); Chairman, Section of Individual Rights and Responsibilities, American Bar Association (1969); Member, House of Delegates, American Bar Association (1970); Chairman, District of Columbia Committee on the Administration of Justice Under Emergency Conditions (April 1968 Riots); Chairman, Committee on the Report of the D. C. Crime Commission, Judicial Conference of the D. C. Circuit (1968); Member, American Law Institute, American Society of International Law, American Judicature Society; and Special Counsel, President's Committee on Urban Housing (1967-68).

Civic and Educational Activities: Chairman, Yale Development Board (1973- ); Member, Yale University Council. Chairman of the Committee on the Law School (1967-70); Member of Executive Committee, Yale Law School Association (President 1963–64); and Member of Board of Governors, National Cathedral School (1964–70).

Mr. CUTLER. Thank you very much, Mr. Chairman. I am accompanied by Mr. Theodore Sims, of our firm, who assisted me in preparing this statement, and the draft of a proposed bill that is attached to it

Senator ERVIN. We are glad to have Mr. Sims with us, too.
Mr. SIMS. Thank you, Senator.

Mr. CUTLER. Mr. Chairman, last fall, in an op-ed article in the New York Times, I proposed that Congress create an ongoing Public Prosecutor, independent of direction by the executive branch, and charged with the investigation and prosecution of violations of Federal election laws and Federal crimes committed by Government officials and officials of national political parties. Last month, I expanded on this proposal in a paper delivered before the Committee for Public Justice. Rather than reiterate the substance of that paper, I have taken the liberty of attaching a copy of it to the text of my statement.1

Recent events have stimulated a considerable amount of interest in the notion of creating a permanent, continuing Public Prosecutor. Two bills have been introduced in the Senate which endeavor, in various ways, to address this question: your own, Mr. Chairman, which would make the Department of Justice an independent establishment, and that of Senator Cranston, which would create a commission to study whether, and in what from, any such independent prosecutor should be created.

The reasons for the current interest in the creation of a continuing Public Presecutor are clear. Because the Attorney General and his principal assistants in the Department of Justice are not simply

1 The paper referred to appears at p. 363.

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prosecuting officers but also appointees of the President and members of an administration team that has won election to office and usually hopes to be re-elected, they, as Mr. Seymour has noted, have an obvious conflict of interest when they have the responsibility to investigate and prosecute possible criminal activity in the conduct of Federal election campaigns or arising from the activities of officers of employees of the executive branch. The President, and his White House aides to whom in recent years the Attorney General has tended to report, have an equally obvious conflict. Moreover, because of the live-and-let-live principle of politics in countries like ours which still, fortunately, have regular, democratic transfers of power, they may be similarly reluctant to investigate the conduct of their predecessors and the campaign finances of the opposing party. We tend to follow the supposed rule of the old Chinese war lords that you never killed your prisoners, because in 2 or 3 years' time you were bound to become a prisoner yourself.

Conflicts of this sort are doubly incapacitating. They prevent unfettered and vigorous prosecution of those who should be prosecuted, and equally important, as Messrs. Cox and Richardson have observed from time to time, they breed public distrust of decisions not to prosecute that may be entirely justified on their merits and would be accepted as such if made by a prosecutor free from any conflict of interest.

In recent times we have recognized this need for an independent prosecuting official every two or three decades, when instances of officials misconduct and conflict of interest have become particularly notorious, and our experience with these Special Prosecutors has been salutory. Not only have they successfully prosecuted crimes that had already surfaced, they have also, in the course of their investigations, discovered and prosecuted additional crimes as well. Mr. Cox and Mr. Jaworski, for example, have filed and successfully prosecuted the only significant campaign financing cases that have been brought by the Government of the United States in, I would say, the last 40 years, cases that were not even known about at the time those officials were appointed.

What independent prosecutors uncover once we appoint them suggests to me that official and campaign misconduct is rare, but rather that it tends to flourish whenever there is little reason to fear prosecution, and that Teapot Dome and Watergate are only the tips of icebergs that continuously float in the political waters. Indeed, what may be the most remarkable aspect of Watergate is that this time the offenses have come to light and that the offenders may be punished. But how many of us expect that, as a result, the conduct of political campaigns and the behavior of public officials will fundamentally change? How long will it be before, in Mr. Harding's phrase we once again return to normalcy?

We should not be content with a system that requires massive purgatives once a generation. We can and we should seek to create some continuing mechanism that would reduce the chances for this sort of misconduct to occur, and that would increase the chances of detection and enforcement when it does occur. I believe an ongoing institution devoted to the investigation and prosecution of such

offenses would do both: it would increase the likelihood of bringing offenders to justice, and its very existence could operate to deter the commission of offenses that have gone undiscovered in its absence. Most important, the creation of continuing Public Prosecutor might go a long way to restore the public confidence in our institutions that is essential to the operation of a democracy, and that seems to be diminishing with every passing day.

If I can interpolate for a moment, Mr. Chairman, I believe that in your colloquy with Professor Cox you both agreed that if men of integrity held the offices of Attorney General and the offices directly under them, and the offices in the White House whose occupants deal with the Attorney General, then no other remedy would be needed. I would respectfully disagree with that. I do not think that integrity is enough, because in other situations where men of integrity find they have a conflict of interest-and men of integrity can have a conflict of interest-we say, and we all agree, that their duty is to disqualify themselves, to have someone else do the job, even though they may be men of such high character that they are capable of overcoming the conflict and discharging their responsibilities conscientiously.

There are men who are capable of doing that, as we all know. But, because there are also men who are not capable, and because the danger of the appearance of conflict has always been regarded by lawvers and judges to be equally as important from the standpoint of public confidence in the administration of justice as true conflict itself, it seems to me that having men of integrity operate in the face of conflict is an insufficient protection of the administration of justice, and insufficient to warrant the confidence of the public.

Senator ERVIN. I believe there is a provision in the Constitution that reflects the view you have now expressed, and that is the provision of the Constitution which says that when a President is impeached, and tried by the Senate, the Chief Justice of the Supreme Court, rather than the Vice President, shall preside.

Mr. CUTLER. It certainly reflects the same view, and I think, to take a very recent example of a man in whose integrity all of us would have complete confidence-when Mr. Richardson made the decisions he made in the case of Mr. Agnew, I think he came as close to stretching public credulity in the ability of a man of integrity to deal uprightly with an acute political situation as he possibly could. I believe, myself, he brought it off, but I do not think that we can depend for the administration of our institutions in having heroes like Mr. Richardson around all of the time. And, Mr. Chairman, as a man who probably knew every one of the last 19 or so Attorney General, from Mr. A. Mitchell Palmer, back in Mr. Wilson's day, all the way to the present, you would agree, I take it, that at least one in four out of that group fell short of what we might regard as an impeccable standard of integrity. We certainly have not had 20 consecutive heroes as Attorney General. We have had a few.

As I noted before the Committee for Public Justice, the precedents for the creation of a permanent Public Prosecutor are, if not foursquare, certainly ample. While our own Federal Government has