out executive leave" and would "be free from executive control." To expect the eye of the executive to look inward and watch the executive for wrongdoing and, in the event of wrongdoing, to expect the arm of the executive to reach inward as the long arm of John Law constitutes probable cause for expecting too much. The Ervin proposal would accomplish the self-determination of national legal investigative and enforcement functions; it would lodge national law enforcement in an autonomous establishment. A separate, distinct and independent Department of Justice would be free to investigate and prosecute, unfettered and untrammeled, any instances of obstruction of justice and other wrongdoing in the executive branch as everywhere else. The Department of Justice would not become a legislative agency; it would be created by the Congress but would be directly amenable and responsible to the American people. National investigation and prosecution of criminal activity is too important a power to invest in any one division of our government. This power in the executive branch has produced a condition of executive hegemony which militates against the foundational doctrine of the absolute coequality of the three branches of government. Enactment of Senator Ervin's bill into law will restore to our government that inter-branch equality so wisely envisioned by the Founding Fathers. HON. SAM J. ERVIN, JR., THE UNIVERSITY OF TULSA, COLLEGE OF LAW, Tulsa, Okla., March 2, 1974. Chairman, Subcommittee on Separation of Powers, Washington, D.C. DEAR SENATOR ERVIN: Pardon the delay in replying to your letter dated February 4, together with Senate Bill No. 2803 that would establish the Justice Department as an independent agency of the United States. There is a good deal of merit to this legislation, however, there are some questions that need answers. I assume from this legislation that it will fall under Article III of the Constitution, although not under the supervisory power of the Supreme Court. This would be a mistake in my opinion. Secondly, and to be equally important, is how do you administer policy-i.e., as in the antitrust, tax, and environmental areas? Obviously various presidents have emphasized various aspects of the Justice Department in the past, such as those listed above, as well as civil rights. It seems to me that some direction, from either the Executive Branch, or the Congress is needed to give this direction. What might be created is an independent agency all right, but might end up working at cross-purposes with the policy of let us say, a vigorous anti-trust section, or environmental law program. I think that it is salutary to take the Department of Justice out of politics, qua politics, but it should have some over-all body or group to which it is responsible for its policy decisions. Respectfully submitted, HON. SAM J. ERVIN, JR., BRUCE PETERSON, DUKE UNIVERSITY, Durham, N.C., January 30, 1974. Chairman, Subcommittee on Separation of Powers, Washington, D.C. DEAR SENATOR ERVIN: I have received a copy of S. 2803 and your request that I respond. After careful consideration I have concluded that I do not think it is wise to create a Department of Justice as an independent agency of the United States. I think I understand your concern about the operation of the Department during recent years and there is obviously much merit in the creation of an independent agency. I have two basic reasons for disagreeing with the proposal. In the first place I do not think that creating the Department as an independent agency would necessarily take it out of politics. The President would appoint the Attorney General and the agency would be required to obtain its appropriations from the Congress. There would necessarily be an element of politics in both the appointment and the appropriations process. I agree that it would be less in politics than is now the case, but this advantage is outweighed by another consideration. I think it extremely important that the President of the United States have available to him an Attorney General whose judgment he respects. In a sense, the Attorney General should be the "Keeper of the King's Conscience" in legal matters. The Attorney General properly should have input into any major executive decision with legal implications. For the contribution to be significant, the Attorney General must be a lawyer in whom the President has confidence. The appointment for a six-year term would mean that some Presidents would be dealing with an Attorney General with whom this relationship would not necessarily exist. The result, I think, is that much of the power of the present Attorney General would become vested in the White House Counsel, serving at the pleasure of the President and generally immune from public scrutiny and the power of Congress. I would prefer that the President obtain his advice from an Attorney General, who must also be responsible for his stewardship to the Congress at least annually when he seeks appropriations for the continuation of the activities of his department. I also think it appropriate that the attitudes of the people as demonstrated by their choice for President be reflected in the policies of the Department of Justice. I also have no reason to believe that career Assistant Attorneys General would generally provide a higher level of lawyering than has traditionally existed in the Department through political appointments to these offices. I am, of course, aware of some unfortunate selections, but in general the level of the Assistant Attorneys General who have served with the administrations with which I have been familiar have been extremely high, and, while political appointments, they have in general provided capable supervision over the affairs of the Department. I appreciate that the experience of recent years properly should result in a reexamination of the manner in which the Department is structured. I think on balance, however, that the model which has served us generally well for the last century is preferable to the independent agency approach. I would prefer a prohibition against the Attorney General and his principal assistants serving as head of a political party or as a personal campaign manager. I have not thought about this matter in depth and I do not consider myself an expert on the affairs of the Department; hence, I do not think that I could be of service to the Committee by testifying. You are authorized to include this written statement in the hearing record. I enclose a recent paper by Professor Arthur Larson of this faculty.1 Footnote 15 may be of particular interest to you. Yours very truly, HON. SAM J. ERVIN, JR., A. KENNETH PYE, Dean. VANDERBILT UNIVERSITY, Nashville, Tenn., April 5, 1974. Chairman, Subcommittee on Separation of Powers, Washington, D.C. DEAR SENATOR ERVIN: In response to your request addressed to Dean Robert L. Knauss for comments on S. 2803, to establish the Department of Justice as an independent agency of the United States Government, the undersigned faculty members of Vanderbilt Law School wish to make the following comments in the hope that they may be of assistance to the subcommittee's deliberations. The thrust of these comments is to recommend against the adoption of the proposed bill because, in seeking to prevent the improper use of the Department of Justice for political ends, the bill also would insulate the 1 See p. 397. Department from political responsiveness to the wishes of the electorate. Although we believe that the problems with which the bill seeks to deal are real and important ones, the separation of the Department of Justice from the Executive Branch of Government is an inappropriate means for achieving their solution. Senate Bill 2803 seeks to insulate the Department of Justice from the "direct political control" of the executive. [§ 1(a)(3)] To accomplish this end it would create a six-year term for the Attorney General, the Deputy Attorney General and the Solicitor General. [52(b)] It makes these officers removable by the President for neglect of duty or malfeasance in office. [§ 2(c)] (Presumably, these grounds for removal are intended to be exclusive.) All other officers of the Department, including the Director of the Federal Bureau of Investigation, are to be appointed by the Attorney General. [§§ 502, 532] The advice and consent of the Senate to those appointments is apparently not required by the bill. The effect of this proposed reorganization is to create the likelihood that, after the initial appointments by a sitting President, the occupants of the Department's high offices would become less and less likely to reflect the political and governmental philosophies of the President most recently elected. The six year terms provided for in the bill, when staggered against either a four year or an eight year occupancy by each President, would have the effect of separating the Department not only from direct political control by the executive branch, but from the indirect political influence of the electorate as well. An important element of democratic theory is that a government should be so structured that the day to day decisions of its political branches are subject to the continuing influence of the electorate in both policy-making and law-making functions. Under our republican form of government, the electorate's influence is focused upon the process of government through many conduits. The separation of powers together with the constitutional system of checks and balances seek to assure that the people's political judgment will have continuing impact in varying and appropriate degree and form upon the operations of government. The power of the people operates differently through each of the governmental branches. The judiciary is appropriately insulated from rapidly shifting changes in public opinion by life tenure and tradition, but the fact that judicial decisions are not self-enforcing makes the courts continually aware that the effectiveness of their decision-making depends, in part, upon the political process. The legislature is most directly subject in its day to day operations to the force of public opinion, both because of the relative frequency of elections and because it deals openly with identifiable issues upon which popular concern may focus individually. The executive branch gives effect to the will of the electorate in a different way. When the people elect a President, they elect a man to make decisions, to formulate policy and to execute the decisions of the other branches. Votes for a presidential candidate do not, for the majority of voters, represent judgments concerning specific policies or acts to the same degree that they represent the electorates perception of the candidate's general philosophy of government. In one sense, the people elect or reject a personality and, thus, a world view. In the governmental process, that view is given effect by the decisions of the President in executing the laws and by his appointment of persons to high posts who, it is assumed, will generally reflect the perception of his philosophy which the people have endorsed by his election. The assumption of the system is not that the PresiIdent will control the day to day decisions of each of the organs of the executive branch, but that he will exercise general influence over those decisions by the appointments which he makes, and specific control in those instances which he determines to be of sufficiently vital national importance to merit his personal attention. By removing the appointments of the Attorney General, the Solicitor General and the Deputy Attorney General from the control of a recently-elected President, S. 2803 separates the men who will perform those functions from responsiveness to the expressed needs and attitudes of the electorate. To support this proposed separation, the bill characterizes the functions of the Department of Justice as both executive and judicial in nature. It justifies this char acterization by pointing out that all officers and employees of the Department are officers of the courts as well as executive branch officers. This analysis is both simplistic and inaccurate. Officers and employees of the Department are, of course, officers of the courts in the general sense that all members of the bar fall within that category. Functionally, however, and it is to functions that the separation of powers doctrine is directed, the role played by members of the Department under the direct control of the courts is ministerial in nature. These ministerial functions are performed primarily by the Federal Marshals performing functions which do not involve making decisions of policy or of law. The principal functions of the Department can be divided roughly into four categories: they are the functions of counseling, of advocacy, of enforcement, and of administration. Each of these functions involves some element of policymaking. In the performance of no one of these functions should the Department of Justice be insulated from the indirect political influence of the electorate. In the performance of some of them, properly exercised direct political control by the elected executive may be both necessary and desirable. A closer examination of the functions of the Department makes this clear. In its role as counselor, the Department, usually directly through the Attorney General, serves as legal advisor to the President. The subject matter of advice covers the legal spectrum. The Department advises him on what, if any, interpretations of the Constitution will support a contemplated action, it drafts legislation to carry out policies which the President wishes to ask Congress to implement, it makes recommendations concerning presidential pardons, it advises the President on the meaning or intent of existing legislation and on his legal relationships with Congress. In each of these situations, it is important that the President's legal advisor be one of his own choosing if he is to have confidence in that advice and if he is not to be placed in a serious political or ideological confrontation with that advisor. To adopt the proposed approach of S. 2803 would not free these interpretations from the influence of policy value judgments. It would merely replace the policy values of a man whose appointment is traceable to the results of the most recent national election with the judgments of a man whose policy values are not necessarily responsive to the most recent statement of the electorate's judgment. Controls over the ultimate effect of this legal advice are present in the operations of the courts or in the interacting processes of the political branches. Thus, safeguards against outright political partisanship in the interpretation of the laws exist under the present system. In its role as advocate, the Department is the attorney for the Executive Branch. It appears in the lower courts through United States District Attorneys or through Department members from Washington. It appeals the government's cases through the Office of Solicitor General. It appears as an amicus advocate or sometimes intervenes directly in cases involving third parties where a public interest in the outcome of the case is present. The government cannot and should not litigate every case. Selectivity in litigation is essential. The official who makes the selections as to litigation thereby contributes to policy-making. The selection or arguments, decisions concerning which cases to bring and which to omit, decisions concerning where intervention is appropriate, decisions concerning which cases should be appealed and on what grounds-all are policy decisions which should be influenced, though not necessarily controlled, by the prevailing political climate in the country, given indirect expression through the elected President and his appointees. In particular, the non-litigating agency which refers its matters to the Department of Justice must, to a great extent, depend upon the Department's discretion in selecting cases for litigation. Faced with this responsibility, litigating lawyers should be in a broad-guage agency controlled by a senior political official, equipped to reflect the general policies of the elected government. The law enforcement function is performed not only through the police activity of the Federal Bureau of Investigation, but by criminal and civil prosecutions. These functions involve policy decisions concerning where to allocate investigative resources and how and when to exercise prosecutorial discretion. These policy decisions should, in turn, be subject to the general political influence of the nation as expressed in the electoral process. Otherwise, both political responsiveness and political responsibility is sacrificed. To insulate the law enforcement function from the political control of the electorate creates poten 33-875-74-22 tial hazards which are not outweighed by any benefits which might be achieved by making them independent. Lastly, the administrative role of the Department involves, not only the day to day administration of its own functional operations, but making recommendations and providing investigative assistance in selecting judicial and other appointees. This role is clearly one in which political empathy, at least between the President and the Attorney General, is desirable. The Department of Justice is not analagous to existing adminstrative agencies in which a degree of separation from political influence is sought to be achieved by making them "independent" of the current political process. First, each of those agencies is charged with operating in a comparatively narrow and relatively technical field. Often, their decisions must be based upon information and value judgments barely understandable to the general electorate. The political judgment of the electorate is reflected in the creation of those agencies for specific purposes, not in their day to day operations. Second, the decisions of those agencies and their procedures are more easily subject by the nature to regular review by the courts and, thus, the need for political control is lessened. Direct judicial review of many of the activities of the Department of Justice, particularly those involving policy-making functions, is unavailable and impossible to achieve. Thus, the check and balance of electoral influence is much more important to maintain accountability where the Department of Justice is concerned than for an administrative agency. Third, much of the criticism aimed at administrative agencies has focused upon the proposition that they are not responsive to the more immediate needs of the nation, even within those fields in which they have the greatest expertise. To the extent that this criticism is correct, separation from political influence of the electorate is not a condition to be emulated in the Department of Justice. Not only indirect, but direct political control of the Department by the executive may in some situations be not only possible, but desirable. This can best be illustrated by posing a single hypothetical case and testing its outcome under the proposal and under the existing framework. Suppose that a President is elected after a campaign, a principal theme of which was the need for increased attention to the preservation of law and order. He selects an Attorney General who will strengthen the criminal laws of the nation and who will see that much of the energy of the Department is devoted to an attack upon organized crime. After two years of the term, that Attorney General leaves office, perhaps for reasons of health, and another of similar persuasion takes his place. At the next Presidential election, a candidate is elected whose principal emphasis is upon the need for increased government attention to the enforcement of civil rights legislation. Under the existing system, that President would merely, as a matter of course, appoint an Attorney General whose values in the area of civil rights enforcement matched his own. Under the system of the proposed bill, that new President would have to wait out his entire first term with an Attorney General who was at least in part responsible for the lack of civil rights enforcement against which President had campaigned. Suppose that later, in his second term, he was at least able to appoint an Attorney General who he felt would carry out his civil rights program. After the appointment, however, he finds the enforcement not nearly as vigorous as he would like. Under the existing system, he has the option of informing his Attorney General that he is to either step up his civil rights activity, or step out of office. Under the proposed bill, the President faces another full term in which a principal goal of his administration will be ineffectively implemented. In fact, neither the danger of political control, nor the effect of the popular voice upon the day to day operations of the Justice Department is as great as either the proposed bill or the above discussion would imply. The Executive Branch of Government is not a monolith. The Department of Justice is a complex organ of a complex government. These complexities make complete political control of the Department's operations a practical impossibility, not only for the President, but also for the Attorney General, or even for his assistants. Every President to take office in recent years has been heard to complain that his policies and attitudes are not adequately or accurately reflected in the daily administration of the Attorney General and the Department of Justice. |