The First Judiciary Act also provided for the appointment of a United States Attorney in each district to handle the prosecution of crimes and to represent the United States in matters in which it was concerned.1 The United States Attorneys, as well as United States Marshals, were wholly independent of the Attorney General. In fact, their assignments emanated from the Treasury Department. As a demonstration of his independence, Attorney General Wirt in 1823 refused to advise a United States Attorney with respect to legal procedure on the ground that it was beyond the scope of his official duties, although he offered to do so as a "private member of the profession of the law." 16

An analysis of the early history of the Attorney General's office gives little direction to the instant inquiry of its lack of consistency. The Attorney General undoubtedly acted as an important member of the Executive establishment from the inception of his office. Yet he maintained an "important advisory relationship to Congress regarding judiciary and legal problems." "17 On the other hand, some Attorneys General adopted a narrow view of the office limiting it to the role of adviser to the Executive.18

A thorough and illuminating description of the Attorney General's office and the Executive departments generally derives from an 1854 opinion of Attorney General Cushing.19 He envisioned heads of Executive departments as having a tripartite responsibility: to the President as confidential adviser; to the law by carrying out legislative directions; and to Congress, as contemplated by the Constitution. As regards the latter, he added:

"This latter relation, that of the departments to Congress, is one of the great elements of responsibility and legality in their action. They are created by the law; most of their duties are prescribed by law; Congress may at all times call on them for information or explanation in matters of official duty; and it may, if it see fit, interpose by legislation concerning them, when required by the interests of the Government."

Directing his attention to the office of Attorney General in particular, he concluded that many of its functions were "quasi-judicial," and that these functions "especially would seem to require to stand on legislative authority." Even when giving advice to the President and heads of departments, Attorney General Cushing viewed his role as having quasi-judicial elements since, practically speaking, he often determined disputes. He was not, he observed, "a counsel giving advice to the Government as his client, but a public officer, acting judicially, under all the solemn responsibilities of conscience and of legal obligation." While the term "quasi-judicial" was not defined in that opinion, from the context of its use it appears not intended to equate the Attorney General with a judge but to broadly describe the Attorney General's role as a national law officer, that is, an official giving advice, rendering legal opinions and making judgments. It thus described a role of the Attorney General having both Executive and quasi-judicial characteristics.

In 1870, the merger into a conglomerate Department of Justice of the law officers of various government departments, including Treasury, Internal Revenue, Navy and State, as well as the U.S. Attorneys and Marshals, marked the genesis of the Department as we know it. However, in the past half century, the delegation to the Department of additional authority, both legal and administrative, along with the increasing complexity of the law and a greatly enlarged work load, has resulted in the emergence today of a vast, highly structured agency. Its functions range from the clearly quasi-judicial or regulatory to the clearly Executive from the adjudicatory and rule-making proceedings of the Immigration and Naturalization Service, Board of Immigration Appeals, or Bureau of Narcotics and Dangerous Drugs, on the one hand, to the huge program for funding state and local governments under the Law Enforcement Assistance Administration and the Attorney General's role as a member of the President's Cabinet, on the other.

Broadly speaking, the Department's legal and related activities include: (1) investigating and prosecuting violations of federal criminal law; (2) furnishing legal counsel in the Government's civil cases; (3) shaping the development of federal law by controlling the access of other agencies to the Supreme Court and, to some degree, to the Courts of Appeals; (4) supervising and directing the activities of the United States Attorneys and Marshals in the various judicial districts; (5) rendering legal advice and opinions, upon

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request, to the President and the heads of the Executive departments, and advising federal agencies generally with respect to the questions of law arising in their operations; (6) assisting the President in the selection of nominees for federal judgeships; and (7) participating in congressional legislature and oversight hearings on matters within the Department's responsibility or otherwise involving constitutional or legal questions.

The Department's administrative or operating responsibilities, some large portions of which have been created or transferred to Justice within recent years, include: (1) the familiar investigatory, arrest and intelligence functions of the F.B.I., and similar law enforcement roles in specialized areas on the part of other bureaus within the Department; (2) the general administration of the laws relating to immigration, control of access across our borders by individuals, and acquisition of citizenship by naturalization; (3) the regulatory process of identifying and controlling the dstribution of narcotics and dangerous drugs; (4) the administration of the federal penal institutions and parole system; (5) the funding and research programs intended to assist state and local criminal justice systems; and (6) the unique conciliation and monitoring functions of the Community Relations Service in the civil rights field. We are aware that "[d]eeply embedded traditional ways of conducting government . . [can] give meaning" to the Constitution and laws, 20 Nonetheless our search of history discloses no tradition which would compel the conclusion that most of the functions of the Department of Justice are purely and inherently Executive in nature, so as to relegate them solely to the President under the Constitution. On the contrary, as previously noted, even during the early years of the Republic, at a time when the Attorney General spent more time as a counselor to the President than as a government representative in the courts, it was recognized that much of what he did had quasijudicial characteristics. His vastly expanded powers since that time have been largely in various areas of law enforcement. Since at least 1935, when Humphrey's Executor a limited the impact of the Myers case, the courts have recognized that law enforcement, despite its Executive aspects, has quasijudicial qualities as well.

For all of the above reasons, we are unable to read into the Constitution a limitation on the expressly delegated congressional power to create offices. As the Supreme Court said in McGrain v. Dougherty:

"[T]he functions of the Department of Justice, the powers and duties of the Attorney General and the duties of his assistants, are all subject to regulation by Congressional legislation. . .

21

The proposed legislation seeks to create a law department which, as expressed in Section 1(a)(3) of the bill, will be “insulated from the direct political control of the executive branch of Government." It is a congressional attempt to insure objectivity in the administration of justice-an attempt not unlike that sustained by the Supreme Court in Humphrey's Executor and its progeny. Nor does the current proposal prevent the President from exercising his constitutional obligation to see to the faithful execution of the laws. Rather it establishes certain parameters for his exercise of this power. The President's power to appoint the Attorney General remains undisturbed. The appointment of "inferior officers" by the Attorney General falls within the express terms of the Constitution. The President's power to remove for cause remains intact under the bill (Section 2(c)).

We need not speculate as to what the result would be if any or all of these provisions were omitted from the proposed legislation. We deal here with a specific bill and, with respect to its constitutionality, we are persuaded that the teachings of Humphrey's Executor and the Steel Seizure Case point the direction. Notwithstanding our beliefs, as more fully expressed below, that the pending legislation is unwise from a policy perspective, we think that legislation of this type is within the power of Congress to enact. However, we also believe that the breadth of this particular bill does expose a constitutional flaw in its conception.

The constitutional infirmity in S. 2803 stems from its attempt to transfer the total Department rather than dealing with specific departmental functions. The result is to attempt to transfer certain functions which are inherently Executive. For example, Congress cannot, in our opinion, force upon the President an adviser whom the President cannot discharge at will. This

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basic postulate applies to a legal adviser as well as to a counselor on any other aspect of government. The proposed restriction on the President's power to replace the Attorney General, and other key legal advisers in the Department, could compromise the President's ability to carry out his delegated constitutional duties, including most pertinently his responsibility to recommend to the Congress such measures "as he shall judge necessary and expedient" and to approve or veto legislation.

In addition, at least some of the Department's administrative and operating functions enumerated above (see page 6) appear to be as inherently Executive as similar functions carried on, with respect to different subject matter, in other departments. Indeed. some of these very functions of Justice have in the past been lodged in other departments. Even with the gloss of Humphrey's Executor upon Myers insofar as law enforcement is concerned, we do not understand the earlier case to have lost its vitality regarding all Executive functions.

No attempt has been made in S. 2803 to identify and analyze, in constitutional terms, each power delegated to the present Department which the bill purports to transfer to the new Department. Accordingly, we do not pause to make that analysis here. Suffice it to say that such a functional analysis would be essential if a bill like S. 2803 is to withstand constitutional attack.

III. POLICY ISSUES

Notwithstanding our conclusion that many of the functions of the Department of Justice might constitutionally be transferred to an independent agency, we seriously question the advisability of such a course. We recognize the need for a law enforcement agency free of partisan influence. At the same time, however, we believe that the nation's principal law enforcement officers should be responsible indirectly to the electorate, and directly responsive to policy decisions made through the political process. Finally, we believe that the evils at which S. 2803 is directed may be remedied through far less disruptive measures.

1. "Insulation" of the Department from the Political Process.

In an attempt to "preserve the independence" of the Department of Justice and "insulate" the Department from partisan political influence, S. 2803 significantly restricts the accountability of principal law enforcement officials to the President (and Congress as well) and, ultimately, to the American people. "Insulation" of the Department from partisan abuse is obviously desirable; "insulation" from the political process is another matter.

Whether characterized as Executive or quasi-judicial, many of the decisions made and actions taken by the Department of Justice necessarily involve matters of public policy. Simply stated, S. 2803 raises the question whether such matters should be determined by officials accountable to the electorate. The judgments will be made, the actions taken in any event. "It is not partisan politics which is inevitable in government, but the politics of ideas, determinations and directives."

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In recent elections, law enforcement policies and the caliber of Justice Department officials have frequently been significant-if not determinative issues. This is only to be expected. Whether in the area of civil rghts, national security or antitrust enforcement policy, the decisions made and actions taken by the Department have largely shaped the position of the national government towards the most pressing of domestic concerns.

S. 2803 would not remove any of these responsibilities from the Department of Justice. Decisions as to the institution of prosecutions and the vigor with which statutes are enforced would remain with the Attorney General. The Attorney General would retain his advisory role and would continue to be required to "give his advice and opinion on questions of law" to the President, the heads of Executive departments and the Secretaries of military departments." The bill would, however, deprive the President of the right to select-with the advice and consent of the Senate the principal officers of the Department and therefore to remove such officers on the basis of policy disagreements. By reason of the fixed terms provided for key officials, a President elected on the basis of issues in which the Department is vitally involved could well confront a "holdover" Justice Department whose principal officials represented programs repudiated by the voters.

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We have already noted our conclusion that the advisory function of the Attorney General must constitutionally be entrusted to an officer responsible to the President. Policy considerations compel the same conclusion. The President and the heads of Executive departments are unlikely to confide in and request the advice of a "holdover" Attorney General, whose views may be sharply antagonistic to those of the incumbent Administration. If government is to operate efficiently, it seems imperative that the President's advisers be men of his own choosing.

While a greater delegation of investigatory and prosecutorial powers to an independent agency may be constitutionally permissible, we believe that such powers should also remain vested in officials responsible to the President (and, through the confirmation process, to the Congress). As recently as 1968, Congress recognized the need for greater accountability of those with investigatory authority by requiring that the Director of the F.B.I. be appointed by the President with the advice and consent of the Senate.25 Historically, prosecutorial discretion has also resided in representatives of the Executive Branch. The Fifth Circuit has described it thus:

"The discretionary power of the attorney for the United States in determining whether a prosecution shall be commenced or maintained may well depend upon matters of policy wholly apart from any question of probable cause. Although as a member of the bar, the attorney for the United States is an officer of the court, he is nevertheless an executive official of the Government, and it is as an officer of the executive department that he exercises a discretion as to whether or not there shall be a particular case.'

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In the exercise of that discretion, many factors will be considered. For the prosecuting attorney "is not a rubber stamp. His problems are not solved by the strict application of an inflexible formula. Rather, their solution calls for the exercise of judgment. .. There are a number of elements in the equation, and all of them must be carefully considered. Paramount among them is a determination that a prosecution will promote the ends of justice, instill respect for the law, and advance the cause of ordered liberty."" In many instances, national policy considerations will be weighed in the balance. Thus, for example, Mr. Justice Jackson, questioned at his confirmation hearings as to his failure while Attorney General to institute a libel proceeding against newspaper columnists, defended his action on the basis of his determination that such a prosecution would tend to impair the freedom of the press. 28 In the 1960's, the Department of Justice rejected the request of a federal grand jury in Mississippi that it prepare perjury indictments against two Blacks who had testified as to the deprivation of their voting rights."9 In the later case, the decision of the Acting Attorney General was clearly based upon the probable effect of such a prosecution upon national civil rights policies.

We believe that it is not in keeping with the concept of a representative democracy that such policy considerations be weighed by officials who are wholly "insulated" from the political process. Rather, with former Attorney General Ramsey Clark, we believe that the "[b]asic policy decisions reached through the political process should find their way into law enforcement.' 2. Is There a Need for Broad Institutional Change?

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The abuses loosely grouped under the heading of "Watergate" may be more the product of a failure of individuals than the result of basic institutional inadequacies. Accordingly, we believe that sweeping institutional changes should be approached with extreme caution. No statute or institutional framework can assure the even-handed administration of justice; revisions of methods of appointment or terms of office cannot by themselves eliminate corrupt or partisan officials.

To the extent that S. 2803 diminishes the ability of the President and Congress to approve the appointment and monitor the conduct of officials not directly responsible to the electorate, the bill may, indeed, compound present problems. The "advice and consent" function of the Senate has traditionally been viewed as a protection of the public against ill-considered appointments. S. 2803 would remove this protection as to Assistant Attorneys General, United States Attorneys and the Director of the F.B.I. Similarly, the ability of the President to remove or cause the removal of subordinate officers at will can be a valuable check on the excesses of such officials. By specifying

31

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fixed terms for some officials and making others removable by the Attorney General rather than the President, the bill may make the removal process a cumbersome policing measure. If, in short, the evils to be corrected are individual rather than institutional, approaches such as S. 2803 may be either ineffective or actually detrimental.

In so concluding, we note that far less drastic measures have been proposed to correct the abuses revealed through the Ervin Committee's investigations. It has been suggested, for example, that a permanent Special Prosecutor's office might be created which would have jurisdiction over all election law crimes, violations of the federal criminal law by present or former governmental officers or national political party figures, and lobbying offenses."2 Specific remedial legislation has also been suggested to eliminate violations of civil liberties committed in the name of "national security."

We endorse these approaches. In particular, we agree that establishment interest which inevitably arise when an Administration is called upon to investigate and prosecute wrong-doing by its own officials. Such an agency "would increase the likelihood of bringing offenders to justice; its very existence could operate to deter the commission of offenses that have gone undiscovered in its absence. More important, the creation of a 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.

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Our conclusion that the "insulation" from the political process provided by S. 2803 would not be desirable has primarily been reached with respect to the advisory and prosecutional functions of the Department of Justice. While disagreeing with the "blanket" approach taken by the proposed bill, we believe that the functions of the Department might well be examined in an effort to consider whether any of these might more effectively be performed by an independent agency or agencies. 34 The Department's roles with respect to the prison and parole system or immigration affairs, for example, might not be affected by the same considerations which have led us to conIclude that independent status for the general prosecutorial function would be undesirable.

IV. CONCLUSION

For the policy reasons outlined above, and because the bill appears to be constitutionally infirm as to some of the functions sought to be transferred out of Executive control, we recommend that S. 2803 not be enacted into law.

1272 U.S. 52 (1926). Even U.S. Attorneys, who nominally hold office on a four-year term, are so removable. Parsons v. United States, 167 U.S. 324 (1897).

2 See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634-35 (1952) (Jackson, J., concurring).

Ponzi v. Fessenden, 258 U.S. 254, 262 (1922); see United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965).

Humphrey's Executor v. United States, 295 U.S. 602 (1935); see Quinn v. United States, 349 U.S. 155, 161 (1955). Compare ICC v. Chatsworth Cooperative Marketing Ass'n, 347 F.2d 821 822 (7th Cir. 1965): "[T]he function of initiating a judicial proceeding for the enforcement of a legislative enactment is not the exercise of a prerogative exclusively reserved to the President"; with Pugach v. Klein, 193 F. Supp. 630, 634 (S.D.N.Y. 1961): "The prerogative of enforcing the criminal law was vested by the Constitution. squarely in the executive area of the government." See also Moses v. Kennedy, 219 F. Supp. 762, 764 (D.D.C. 1963).