never created an independent prosecuting office for criminal cases, it has vested officers such as the Comptroller General and the numerous independent regulatory agencies with responsibility for the civil enforcement of many laws, including, in some cases, the power to bring inforcement actions through their own attorneys, rather than those of the Department of Justice. In a majority of the states, the Attorneys General are independently elected, and often are of a different political party than the incumbent governor and executive; they, too, are statutorily and in some cases constitutionally independent of the executive. And, as Mr. Seymour observed this morning, English Attorneys General and Solitors General, while Members of the House and of the Cabinet, have traditionally been independent on policy matters from the government in power at the moment. Lord MacDermott, a leading English jurist whom you and I have talked about before, Mr. Chairman, put this very well in a book he wrote in the 1950's when he said:

"the days are gone when a subservient Attorney [meaning the Attorney General of Great Britain] could be told whom to lay by the heels or whom to spare. He must now maintain complete independence in this difficult and sometimes delicate sphere, and if he fails to do so, the remedy lies in his dismissal, or that of the administration."

Perhaps that is a good text for the House Judiciary Committee. It has been suggested that the creation of an independent Public Prosecutor would be both unconstitutional and unwise. While I do not regard the constitutional objections as frivolous, like Mr. Cox and Mr. Seymour I am not persuaded by them. The President's power of appointment within the executive branch would not be infringed. The Public Prosecutor could be Presidentially appointed and subject to Presidential removal, although only for defined sorts of misconduct, and we have included provisions like that in the draft bill we are submitting to you. The only other objection would come down to the assertion that article II, vesting the power to execute the laws in the President, requires that senior prosecuting officials of the Nation must act under the President's direction and serve at the President's unfettered pleasure, even when he or they have a conflict of interest. Nothing in the Constitution appears to us to compel such a conclusion, and it seems to us that one cannot read the Constitution as forcing us to tolerate conflicts of interest on the part of the President, the Attorney General, and their immediate assistants that we cannot, and do not, tolerate in ordinary judges and lawyers.

Other policy objections have been made, focusing on the quality of the individuals who might serve as Public Prosecutors, or their assistants, on the impact of such a prosecutor on the morale of the Department of Justice, on the dangers of vesting too much power in a single, independent official, and on the fear that a particular individual might employ the power of the Office of Public Prosecutor to enhance a political career.

It seems to me that all of these objections are either not well taken, or that they can be overcome. Perhaps the best way to get them is in the context of the draft bill which Mr. Sims and I have prepared,

1 See draft bill, p. 283.

1

and which is attached to the text of this statement. Under this bill, the statute would create an independent Public Prosecutor with broad powers, but with a limited jurisdiction. The Public Prosecutor would not replace the Department of Justice, which, with certain slight limitations, would continue to function as it now does. In fact, the Public Prosecutor we propose would be within the Department of Justice, although independent of the Attorney General and the President on policy matters. In that regard, it is somewhat similar to Senator Ervin's own bill, which would make the entire Department independent of the President. And while I believe that your approach, Mr. Chairman, or the approach of that bill, would help very clearly to solve the problems that have arisen in the fields of campaign financing and official misconduct, I agree with Mr. Cox that it would raise problems in other areas of law enforcement and impinge directly on legitimate fields of executive discretion.

For these reasons, I think it would be preferable to retain the present relationship of the Department of Justice to the President, but to include within the Department a prosecutor with limited jurisdiction who would be, within that limited field, statutorily independent of both the President and the Attorney General.

Senator ERVIN. I think, Mr. Cutler, that your approach may have a pragmatic advantage over my bill in that my bill would undoubtedly provoke more opposition than a more limited bill.

Mr. CUTLER. This is doing pretty well in provoking opposition, too, but I agree with that.

Senator ERVIN. But not as likely on as broad a front or as deep. Mr. CUTLER. Yes, sir, and as I am going to suggest in a moment there is one way in which the two ideas might come together, and that is since we would propose a Public Prosecutor within the Department, but with statutory independence in a limited field of criminal cases, perhaps both sides would be better satisfied, both sides of the philosophical difference reconciled, if, instead of creating that separtate Public Prosecutor with limited criminal law jurisdiction, we created an independent Public Prosecutor within the Department with substantially total criminal law jurisdiction. You might, for example, put such an official in charge of the Criminal Division and the Tax Division, which are the two divisions that I think bring a large majority of criminal cases. And, although as Professor Cox notes, there is a class of cases in which most of us would give executive discretion a pretty wide range in civil rights cases or antitrust cases-executive discretion really has little application in this straight, hard-core criminal field.

The reason I would not go further than that is that since our society relies so heavily on legal proceedings to implement national policy, many of the activities of the Department of Justice invariably have political aspects in the high sense of the term "political," and should therefore be conducted by persons responsible to political officials. I think that is particularly true of the Civil Division, the Antitrust Division and the Civil Rights Division. I think it is also true of the FBI, which I certainly think should not be free from the restraints of our political institutions. I personally favor keeping the FBI within the Department of Justice as it now is.

It is these reasons that have led me to suggest that we add to the Department of Justice this additional independent official with limited criminal law jurisdiction in cases where the other senior officials of the Department, and perhaps the President and members of the White House staff, have such clear conflicts of interest.

This could be done by providing for a Public Prosecutor who would be appointed by the President with the advice and consent of the Senate, who would serve for a term of 6 years so that he would overlap any given administration, and who could not be reappointed for a consecutive term and would be removable by the President only for neglect of duty, criminal misconduct or some persisting physical or mental disability. He of course also could be removed by impeachment as an officer confirmed by the Senate. We also suggest that if removed by the President, in the light of our recent history, a Public Prosecutor should be entitled to a de novo judicial review in which he could, if he wished, contest the validity of his removal.

As I said, we would make the Public Prosecutor's office a part of the Department for administrative purposes, but I think there is an advantage to giving it physically separate headquarters and independent appropriations, as Messrs. Cox and Jaworski have enjoyed.

We would propose prohibiting the same individual from serving as Public Prosecutor for consecutive terms, and in addition to that, we would provide for a Deputy Public Prosecutor who could not be of the same party. The Deputy would be appointed and subject to removal in the same manner as the Public Prosecutor, also for a 6year term, and his term might be staggered so that his term would begin 3 years after the Public Prosecutor and would last into the term of the next Public Prosecutor.

And we would require, as a further safeguard against the dangers some people see of a Joseph McCarthy, a Savonarola or someone similar somehow assuming this role of Public Prosecutor, that for any formal criminal proceeding to be initiated, both the Public Prosecutor and the Deputy Public Prosecutor would have to sign the indictment or information.

On the issue of whether the Public Prosecutor himself could run rampant, we would provide that the Attorney General, rather than the Public Prosecutor, would be empowered to investigate and prosecute misconduct amounting to a crime by an officer or employee of the Public Prosecutor's office.

We think these arrangements would operate to balance the Public Prosecutor's discretion in the exercise of the powers of his office and to limit the opportunities for abuse of that power. And in recognition of the fact that some ambitious lawyer might want to ride the white horse of this office into the White House, we would, by statute, also require any nominee to the office of Public Prosecutor to sign a statement in which he promises that he will not seek Federal elective political office during, we suggest, the 5-year period following his tenure as Public Prosecutor. That ought to be enough, I think, to discourage a politically ambitious man from taking the job.

We would limit the jurisdiction of the Public Prosecutor to violations of specified provisions of the criminal code, including the conflict of interest laws, the bribery laws, conspiracy related to these and other crimes I will enumerate, election offenses, particularly campaign financing offenses, fraud in Government activities, obstruction of justice and misprision of a felony, or aiding and abetting a felony, when committed by the President or Vice-President, Presidential appointees in the executive branch, employees of the office of the President, officers or employees of political parties or Presidential campaign organizations and any private persons who conspire with or aid any such individuals.

We would also authorize the Public Prosecutor to investigate Presidential activities and report Presidential misconduct to the House, but not to indict an incumbent President, in view of the grave constitutional and, more importantly, practical problems that that would present.

As I said, Mr. Chairman, an alternative which might be equally workable for the area we are concerned about would be to vest this Public Prosecutor with authority over enforcement of the entire criminal code and the tax code in its criminal sense-substantially the jurisdiction now exercised by the Criminal Division and the Tax Division of the Department of Justice.

We have tried to solve the practical problem of just when the Public Prosecutor's functions or jurisdiction would take over and when the Attorney General would cease to deal with such casesfor example, cases where the Department of Justice is investigating, let us say, a contract fraud and runs into some evidence indicating bribery in high places which, under our notion, should go to the Public Prosecutor. What we have done is to give the Public Prosecutor and the Attorney General coextensive power over this limited class of cases over which the Public Prosecutor would have jurisdiction, and we have provided that if the Attorney General does get into a matter within the jurisdiction of the Public Prosecutor, he must notify the Public Prosecutor and the Public Prosecutor can then decide whether to take over that matter himself, or to join with the Attorney General, that is the Criminal Division, in investigating it, or simply to let the Criminal Division continue, with appropriate procedures for notification back and forth.

Further, as an additional check on the arbitrary or possible arbitrary exercise of the Public Prosecutor's power, we have provided in this bill that if the Public Prosecutor should indict and the Attorney General disagreed with the filing of that indictment, or with any other action taken by the Public Prosecutor in the course of a criminal proceeding, the Attorney General, as a matter of right, would be entitled to appear before the court as a friend of the court and present his views before the judge presiding over the case.

There are many other details, practical details that must really have to be faced in drafting any bill of this scope, that we have tried to resolve in the draft I have submitted with my statement. But having gone through that effort, it is our conclusion that the creation of a Public Prosecutor's office would be constitutional, that it would be administratively feasible and effective in discharging its duties,

that it would strengthen rather than weaken the morale of the Department of Justice, by relieving it of the embarrassment of discharging responsibilities as to which it has a real or an apparent conflict of interest, and that its mere existence would go a long way to restore diminishing public confidence in the conduct of our national Government.

Thank you very much.

Senator ERVIN. Let the record show that the draft of the bill and the statement which Mr. Cutler made before the Committee for Public Justice will be printed in full in the body of the record.1 [The prepared statement of Lloyd N. Cutler follows:]

PREPARED STATEMENT OF LLOYD N. CUTLER

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 investigating and prosecuting 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 and, rather than reiterate the substance of that paper, I have taken the liberty of attaching a copy of it to the text of my remarks here today.

Recent events have stimulated a considerable amount of interest in the notion of creating a permanent, independent Public Prosecutor. At least two bills have been introduced in the Senate which endeavor in various ways to address this question. Senator Ervin's bill [S. 2803] would make the Department of Justice an independent establishment of the United States Government. Senator Cranston's bill [S. 2978] would create a special commission to study whether, and if so in what form, any such independent prosecutor should be created. I shall comment briefly on these proposals in a moment

The reasons for the current interest in the creation of a permanent Public Prosecutor are clear. Because the Attorney General and his principal assistants in the Department of Justice are not simply 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 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 official activities of officers or employees of the Executive Branch. The President, and his White House aides to whom the Attorney General reports, have an equally obvious conflict. Moreover, because of the "live-and-let-live" principle of politics in countries with regular transfers of power, they may be similarly reluctant to investigate the conduct of their predecessors and the campaign finances of the opposing party. Conflicts of this sort are doubly incapacitating: they prevent unfettered prosecution of those who should be prosecuted and 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 taint of conflict.

In recent times we have recognized the need for an independent prosecuting official every two or three decades, when instances of official misconduct and conflict of interest have become particularly notorious and egregious, and the experience 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.

What independent prosecutors uncover once we appoint them suggests to me not that official and campaign misconduct are rare occurrences, but rather that they tend to flourish when there is little reason to fear prosecution, and that Teapot Dome and Watergate are only the tips of icebergs that continually float in the political waters. Indeed, what may be the most remarkable aspect of Watergate is only that the offenses have come to light and that

1 The draft of the bill referred to appears at p. 283 and the statement referred to appears at p. 363.