5 Myers v. United States, supra, 272 U.S. at 177; also see id. at 240, 246-47 (Brandeis, J., dissenting). 6 Compare Myers, 272 U.S. at 132-33, with Youngstown Sheet & Tube Co. v. Sawyer, supra, 343 U.S. at 587-88, 632-33; Humphrey's Executor v. United States, supra. In Little v. Barreme, 6 U.S. 170, 177 (1804), Chief Justice Marshall had very early made clear that the President's authority to see to the faithful execution of the laws under Article II, Section 3 was subject to congressionally imposed limitations. 711 Cong. Deb. 518 (1835). 8 Humphrey's Executor v. United States, supra; see Wiener v. United States, 357 U.S. 349 (1958). E.g., In re Neagle, 135 U.S. 1 (1890), in which absent any expression by Congress on the subject, the Court upheld the implied power of the President to designate certain of his subordinates to protect federal officials from harm while performing their duties; also see In re Debs, 158 U.S. 564 (1895). 139 U.S.C. §§ 201, 202, enacted by Pub. L. 91-375,84, Stat. 720 (1970). 1 H.R. Rep. No. 91-1104, 91st Cong., 2d Sess., pp. 12-13 (1970). 12 Youngstown Sheet & Tube Co. v. Sawyer, supra. 343 U.S. at 635-37. See also United States v. Guy W. Capps, Inc., 204 F.2d 655, 659 (4th Cir. 1953). 13 Act of Sept. 24, 1789, § 35, 1 Stat. 93. In all of the colonies except Rhode Island, the appointment of the Attorney General had been made by the Crown. In Rhode Island, the Attorney General was designated by, and responsible to, the legislature. CUMMINGS & MCFARLAND, FEDERAL JUSTICE 9 (1937) [hereinafter "CUMMINGS & MCFARLAND"]. 14 CUMMINGS & MCFARLAND at 26, 78 et seq. 151 Stat. 92-93. The U.S. Attorneys also served the courts in litigation between private parties. CUMMINGS & MCFARLAND at 491. It is noteworthy that the bill as originally drafted provided for the appointment of each U.S. Attorney by the district court, and the Attorney General by the Supreme Court. See Hammond, The Attorney General in the American Colonies, N.Y.U. ANGLO-AMERICAN LEGAL HISTORY SERIES, Ser. No. 2, at 1, 23 (1939). However, as enacted the Judiciary Act gave the President the power of appointment. See Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 HARV. L. REV. 49 (1924). 16 I OPS. ATT'Y GEN. 608, 609 (1823). 17 CUMMINGS & MCFARLAND at 49, 84-85; see 6 OPS. ATT'Y GEN. 326, 329 (1854). 18 CUMMINGS & MCFARLAND at 82-83, 87. 19 6 OPS. ATT'Y GEN. 326 (1854). The quotation in the text are at pages 344, 352 and 334, respectively. 20 Youngstown Sheet & Tube Co. v. Sawyer, supra, 343 U.S. at 610 (Frankfurter, J., concurring). 21 273 U.S. 135, 178 (1927); see 6 OPS. ATT'Y GEN. 326, 341 (1854). 22 Several of the bureaus were transferred to Justice-Immigration and Naturalization Service from Labor; Community Relations Service from Commerce; and Bureau of Narcotics and Dangerous Drugs, in effect, from Treasury and H.E.W. 23 Raffel, Presidential Removal Power: The Role of the Supreme Court, 13 U. MIAMI L. REV. 69 (1958). 24 28 U.S.C. §§ 511, 512, 513, sections merely renumbered by S.2803. . 25 Pub. L. 90-351, § 1101, 82 Stat. 236, effective "as of the day following the date on which the present incumbent in the office of Director [Mr. Hoover] ceases to serve as such. Previously, the Director was appointed by the Attorney General. 28 United States v. Cox, supra, 342 F.2d at 171. For more recent expressions of this position, see United States v. Brown, 481 F.2d 1035, 1042-43 (8th Cir. 1973); Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375, 379-80 (2d Cir. 1973); United States v. Bland, 472 F.2d 1329-1335-36 (D.C. Cir. 1973); Newman v. United States, 382 F.2d 479 (D.C. Cir. 1967); Smith v. United States, 375 F.2d 243, 246-48 (5th Cir. 1967). Writing for the Court of Appeals for the D.C. Circuit in the Newman case, Chief Justice (then Judge) Burger emphasized that the remedy for abuse of the prosecutor's discretion was the supervisory "summary dismissal" power of the President. He stated: "The Constitution places on the Executive the duty to see that the laws are faithfully executed' and the responsibility must reside with that power." 382 F.2d at 482 n.9. 27 Pugach v. Klein, 193 F. Supp. 630, 634 (S.D.N.Y. 1961). See also Smith v. United States, supra, 375 F.2d at 247: "The federal government's decisions concerning enforcement of its criminal statutes comprise a part of its pursuit of national policy. We emphasize that this discretion, exercised in even the lowliest and least consequential cases, can effect the policies, duties, and success of a function placed under the control of the Attorney General by our Constitution and statutes." 28 See Schwartz, Federal Criminal Jurisdiction and Prosecutors' Discretion, 13 LAW & CONTEMP. PROB. 64, 83 (1948). Professor Schwartz notes that Senator (and later Mr. Justice) Burton defended Jackson at the time of the hearings in the following words: "The prosecuting attorney, being charged, as he is charged, with the great responsibility of deciding under the laws of the United States, the laws under which he is serving, whether a case should be prosecuted, owes a duty to himself, his community, and the Constitution to decide whether the case should be prosecuted. In my judgment the Attorney General was within his rights when he declined to prosecute, and in stating the grounds as he did state them under the circumstances." Ibid. 29 United States v. Cox, supra. 30 Summary, Conference on "The Politics of Justice," 120 Cong. Rec. $4247-48 (daily ed., March 22, 1974) [hereinafter "The Politics of Justice"]. 31 See e.g., The Federalist No. 75, at 420 (G. Smith ed. 1901). There Hamilton said that Senate confirmation "would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to preventing the appointment of unfit characters. 32 See The Politics of Justice. See also S.2978, which would establish a commission to study the desirability and feasibility of a permanent mechanism "to provide for the independent investigation and prosecution of crimes, misdemeanors, and other offenses or acts of official misconduct alleged to have been committed by high officials in the executive branch of Government." 33 Statement by Lloyd N. Cutler, April 2, 1974, during Hearings on S.2978 and S.2803 before the Subcommittee on the Separation of Powers of the Senate Committee on the Judiciary. 34 See National Academy of Public Administration, Report on Watergate: Its Implications for Responsible Government, p.55 et seq. (1974). HON. SAM J. ERVIN, JR., Washington, D.C. WAKE FOREST UNIVERSITY SCHOOL OF LAW, DEAR SENATOR SAM: I regret that the press of other matters has kept me from responding earlier to your invitation to testify at the hearings on S. 2803. Unfortunately, my schedule is such that I shall be unable to accept this kind invitation. I am of two minds about S. 2803. On the one hand, if you are for it, then it must have substantial merit. On the other hand, I am not at all sure just what we would gain by removing the Attorney General from the Cabinet and making the Department of Justice into an independent agency. Putting aside the horrors of Watergate, I think a strong case could be made for the proposition that the President, as our chief law enforcement official, needs control of the Department in order to perform his constitutional duty. Moreover, all my instincts are against the creation of yet another member of what Arthur Vanderbilt called-very aptly, I think-the "headless fourth branch" of government. I know I need not elaborate that theme for your benefit. Syl Petro and I have discussed this bill, and I can say that he has the same intuitive reservations about it that I do. Neither of us, however, has had the opportunity to analyze the bill or to reflect at any length upon its potential ramifications. With warm regards and all good wishes, I am PASCO M. BOWMAN, Dean. CENTER FOR GOVERNMENTAL RESPONSIBILITY, UNIVERSITY OF FLORIDA, Gainesville, Fla., April 29, 1974. HON. SAM J. ERVIN, JR., Chairman, Subcommittee on Separation of Powers, Washington, D.C. DEAR SENATOR ERVIN: We appreciate the opportunity to react to S. 2803, establishing the Department of Justice as an independent agency. It is encouraging that Congress is pursuing tangible remedies to prevent the likelihood of future Watergates. I agree with your statement, in introducing S. 2803, that, "while flaws are revealed by stress, the inherent strengths of the institutions are also revealed. Now that flaws are apparent, the Congress must act to strengthen our governmental institutions by repairing the flaws." Enclosed is a memorandum reflecting our views on an independent Justice Department. We hope it will prove useful. Sincerely yours, JON L. MILLS, Director. MEMORANDUM ON ESTABLISHMENT OF AN INDEPENDENT JUSTICE DEPARTMENT Re: Senate Bill 2803. From: Center for Governmental Responsibility. Date: April 25, 1974. I. INTRODUCTION Watergate has brought into focus several weaknesses of government. One of the most dangerous is the vulnerability of the Justice Department to political manipulation. There has long been evidence of a political aspect to the Department of Justice the most obvious manifestation being the practice of Presidential appointment to the Office of Attorney General of men actively involved in National campaign or partisan politics. This condition would appear to have reached its extreme with John Mitchell virtually running the Committee to Re-elect the President from the Office of the Attorney General. L. Chester, C. McCrystal, S. Aris, & W. Shawcross, Watergate 91 (1973). The danger present in a situation where the resources of the Department of Justice can be used for strictly personal or partisan purposes is manifest. It is commendable that Congress has recognized the danger inherent in such weakness and is considering steps to rectify the problem. In recent months actions by the Justice Department have only increased fears of politicization. Even criminal investigations have taken on a political flavor. Administrative Assistant to Congressman Fred Rooney, William Kovacs, was under investigation for alleged violation of the Corrupt Practice Act §205. His supposedly illegal act was to file a complaint as attorney of record in behalf of his Congressman on an impoundment suit. Of course, impoundment was and is a politically sensitive issue to the Executive. The Center's Director, Jon Mills, is of counsel in the case and has personally felt the affects of Justice Department action; the progress of the case has been considerably delayed. While the Justice Department was very active in investigating this extremely tenuous criminal charge, it has not found time to bring anti-trust action against oil companies which are being continually charged with anti-competitive practices. Recent hearings by the Senate Foreign Relations Committee reveal that a hands-off policy on violations by the oil industry has existed for 20 years and has been supported by administrations of both parties. Political motives and pressure obviously exist in both the Kovacs case and the lack of anti-trust activity against oil companies, resulting in questionable action and questionable inaction. II. REMOVAL OF THE DEPARTMENT OF JUSTICE FROM THE EXECUTIVE BRANCH Senate Bill 2803 proposes to "remove" the Department of Justice from the Executive Branch on the theory that if the Department were made independent, it would thereby be immunized from executive influence. While a reassessment of the Justice Department is necessary, such a proposal should not be adopted. The cost of creating an independent justice department outweighs the benefits. The benefit to the nation of Justice Department sensitivity to the wishes of the President has been demonstrated many times, especially regarding civil rights, anti-trust, organized crime, and misfeasance by organized labor leaders. For example, it was President Teddy Roosevelt who spurred the Justice Department into anti-trust action. Complete removal from control would eliminate "healthy" as well as improper pressure. Further, the flaw which has been recently exposed regarding political influence of the Department is largely the result of actions of particular high executive officials not in the Justice Department. Cf. Richardson moves to assert his control of Watergate-shaken Justice Department, 5 Nat'l J. 1011, 1018 (1973). Rather than attempt to immunize the Department through removal of the Attorney General as a cabinet level official, other less drastic alternatives should initially be sought including close scrutiny of the source of the abuses on the system allowing covert influence to be exerted on numerous agencies and departments including justice. If it is determined that the problem of influence must be corrected within the Justice Department, making the Department independent is not the best response available. The kind of covert influence allegedly brought to bear on the Department in recently revealed episodes is of the type which would be attempted regardless of the "independence" of the agency. The so-called independence of the S.E.C. did not discourage alleged attempts by Robert Vesco to affect his securities transactions. Additionally, in those cases where the source of the manipulation appears to have been the Attorney General himself, independence might have little effect. Allegedly the scandal revolving around quashing anti-trust initiatives against ITT were a result of Attorney General John Mitchell's actions without direct White House influence. The argument can be made that freedom from removal would reduce likelihood of Attorneys General acting at the request of the President, but removal would not prevent activities by an Attorney General who is himself corrupt. Senate Bill 2803 proposes no change in the system of choosing the Chief Officer of the Department of Justice. Whether the Justice Department is made independent or left a part of the Executive Branch, the quality of the appointment made by the President and reviewed by the Senate is still the major question. In light of the legislative approval of heads of independent agencies such as Alexander Butterfield of the FAA, where the President was clearly aiming at control by appointing demonstrably loyal men to head “independent" agencies, there is little indication that granting "independence" would automatically spur Congress to more incisive scrutiny of nominees for the office of Attorney General. The primary effect S. 2803 would have is the six-year scrutiny of tenure offered the appointee. Although this immunizes the Attorney General from executive removal, it also may subject the nation to an Attorney General who may be almost as hard to remove gracefully as the Chief Executive himself. Further, inconsistent performance of the Senate in such similar situation as the review of the multiple Nixon appointees to the Supreme Court is an illustration of how poorly such a procedure can work. L. Kohlmeier, “GOD SAVE THIS HONORABLE COURT!" (1972). III. THE EXECUTIVE FUNCTION OF THE JUSTICE DEPARTMENT In the preamble to S. 2803 a primary reason cited for the severance of the Justice Department from the Executive Branch is that the Department also serves a "quasi-judicial" function which must be protected from Executive influence. However, it seems illogical to sever from the Executive Branch a department whose functions are clearly executive, in order to protect a function whose maximum categorization requires the qualification of "quasi." See, H. FRIENDLY, THE FEDERAL ADMINISTRATIVE AGENCIES, 8-10 (1962). The Department of Justice has been, since its creation, a department of the Executive. See United States v. Cox, 342 F. 2d 167 (5th Cir. 1965); Ponzi v. Fessenden, 258 U.S. 254 (1922). The office of Attorney General throughout its long history in English and American law has been designed to serve the executive office. Since it is the Executive who must be responsible for the "faithful execution" of the laws, it is not reasonable to remove from his supervision this single department of government whose function is most directly that of examination, explication and enforcement of the law. The 1971 report on the office of the Attorney General prepared by the National Association of Attorneys General states that most Attorneys General see themselves primarily as executive officers, their position as "officers of the Court" notwithstanding. In fact, the only function which is reported to be "quasi-judicial" is the function of judicial issuance of advisory opinions-an aspect of the Justice Department's activities not bound up in the recent scandals. Additionally, while the idea of a Justice Department immune from "harmful" executive influence is desirable, the result would inevitable immunize the Department from beneficial executive influence. Since it is virtually undisputed that large bureaucracies run on a dynamics of their own, it is doubtful that many of the vigorous responses by the Department to prodding from the Chief Executive would have taken place if the Department were independent. The Department of Justice backed by the authority of the Chief Executive has sometimes been able to soften the effect of bills passed into law, the utility, wisdom, or even constitutionality of which might be doubtful. In his book on the Justice Department in the 1960's, Crime, Dissent and the Attorney General (1971), John Elliff describes the mechanics of the passage of titles II and III of the Omnibus Crime Control Act of 1968 and points out that because President Johnson and Attorney General Clark felt the provisions unwise, the policy of the Johnson Administration was to simply not apply them. It is difficult to see how this concept of responding to material needs or popular political sentiment by selectively accelerating or decelerating prosecution of unlaw conduct could be readily implemented if the Justice Department were immune to all external pressures from political officers. IV. THE PROBLEM OF INDEPENDENCE Independent government agencies present unique problems. Senator Magnuson recently emphasized the tremendous power that such agencies wield and noted that these agencies are not controlled (legitimately at any rate) by a President or by law. Further, in his words, ". . . they get kind of lost you know; they are not headline makers. They can do a lot of things, and they do." 31 CONG. Q. 3447 (1973). The administration of federal justice is too vital to be "lost" in an independent Department of Justice. The Chief Executive should have direction over such a function even though propriety should keep him from interfering with specific investigations and prosecution of violations of law. Even if it were desirable to make the Department of Justice independent, the probability of being truly independent is remote. Simply declaring that the Department is independent will not make it so. It was suggested by former Justice of the Supreme Court and Attorney General Tom Clark in a discussion of this question with the staff of the Center of Governmental Responsibility that the severance of the Justice Department from the Executive Branch and its establishment as an independent department would weaken the Department in its ability to withstand outside pressure and greatly diminish the force of its assertion of law enforcement authority which it has by virtue of its inclusion in the Executive Branch. Further, one of the strongest reasons for retaining the Department of Justice within the Executive Branch is the obvious need for uniform and co-ordinated law enforcement policies. With the Department of Justice under the same general direction as the other major departments of government, a uniform cohesive program of enforcement can be achieved. If, however, the Department of Justice is pulled out of this organization and set apart to choose its own focus, speed and method of enforcement, the chances of duplication, clumsiness, friction and unnecessary interference with industry and the individual citizen are multiplied. Additionally, it should be emphasized that use of the Justice Department by the Nixon Administration did not take place in a vacuum. The President won a landslide victory partially on his philosophy of the administration of justice. This philosophy had already manifested itself in terms of his selection of John Mitchell as Attorney General; the lack of prosecution of civil rights violations by the Nixon Administration; the implications of the ITT affair; the reaction of the Administration to freedom of the press as in the Pentagon Papers Case; and the harassment of newsmen, such as the investigation of Daniel Shorr. All of these things were manifest indications that the Department of Justice was becoming politicized, and none of them inspired either the people or the Congress to act in the defense of the Justice Department. V. ALTERNATIVES Although an independent Justice Department may not be the proper alternative, some structural reform in the Department of Justice may be necessary. Significantly, Congress has a wide range of alternatives available to it less extreme than total separation of the Justice Department from the Executive Branch. Congress can implement legislation limiting the possibilities of misuse of the Department for private or partisan purposes. Further, the Congress has full access to control by investigation of the Department's activities. See HARRIS, CONGRESSIONAL CONTROL OF ADMINISTRATION (1964). Other alternatives include a suggestion by former Attorney General Richardson to create an "Inspector General." See 5 NAT'L J. 1649 (1973). Additionally, permanent procedures could be established to trigger into operation an independent investigator/prosecutor in the event of alleged criminal misconduct within the Executive Branch. See 119 CONG. REC. S. 1401 (daily ed. Feb. 3, 1974). Further, internal guidelines within the Department could be clarified so that employees of the Department would know their responsibilities vis-a-vis the Executive Office and what their response should be to any attempts to apply pressure or influence It is also worth noting that the adoption of "open government" legislation which would regulate ex parte communications within the various departments of government could severely limit the atmosphere favoring and the attitudes |