stake. The government solicits their opinions because they're experts, but how much of their advice is self-serving? Testimony before a House committee in 1970 revealed there are 1,159 such groups. A representative of the Comptroller General told the committee: "It would appear that Presidential (advisory groups) have definite impact on policies and operations of the government, with little or no apparent supervision." A familiar problem is lobbying in Congress by special-interest groups. Sometimes what they want happens to be in the public interest, sometimes not. In any event, the laws for identification and regulation of lobbyists are loose. Many influence peddlers get by without registering as lobbyists, reporting only a part of their activity. As in the case of campaign contributions, no one is charged directly with enforcement of the law. The Secretary of the Senate and the Clerk of the House receive registrations but make no effort to determine who might have failed to register. Here, too, Justice Department policy has been to investigate only when complaints are received. Prosecutions have been rare. Therefore, administration of the lobbying statutes could be added to the board's jurisdiction. Thank you, Mr. Chairman. This is a broad and ambitious proposal. I hope it has merit, and I trust your Subcommittee will consider it carefully. COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK, HON. SAM J. ERVIN, JR., SCHOOL OF LAW, New York, N.Y., February 12, 1974. Chairman, Subcommittee on Separation of Powers, Committee on the Judiciary, U.S. Senate, Washington, D.C. DEAR SENATOR ERVIN: Thank you for your letter of February 4th inviting me to testify at the hearings scheduled by the Subcommittee on Separation of Powers on S. 2803 and for the copy of the bill that you enclosed. I regret that I shall be unable to attend as I already have commitments for the days on which the hearings will be held, including a scheduled meeting on April 2d of the Commission on the Revision of the Federal Appellate System, of which I am a member. Though I am happy to learn that the problem of safeguarding the administration of federal law from improper political influence is receiving your attention, I do not consider the structural changes that S. 2803 would make to be a helpful approach to solution. The structural changes involved are, as I read the bill (1) to have the Attorney General, Deputy Attorney General and Solicitor General appointed for a term of six years, subject to removal by the President only for "neglect of duty or malfeasance in office"; and (2) to vest the authority to appoint the Assistant Attorneys General, the Director of the Federal Bureau of Investigation, the United States Attorneys and Marshals, as well as subordinate personnel, in the Attorney General alone, with the Director appointed for a four-year term. Since you ask for an expression of my views, I shall comment on these proposals in turn. First. The appointment of the Attorney General, Deputy and Solicitor General for a term would either have no practical effect, as is presently the case with the term of the United States Attorneys, or have effects that I consider undesirable. I do not see how the President could be held legally and politically responsible for the performance of his constitutional duty to "take care that the laws be faithfully executed" if the function of executing the laws were vested in officials meant to be independent of presidential direction. A President who takes the responsibility seriously must, it seems to me, have at the helm of the Department of Justice a person of his own choice in whom he continuously reposes confidence, subject of course to the veto of his selection that the Senate can impose. The only real alternative to that arrangement is, in my opinion, to convert the Attorney General into an elected officer but state and local experience with that plan hardly commends it as a constitutional improvement. My own experience in the Department of Justice, long as it was, occurred half a lifetime ago but I considered then that the position of the Attorney General and the tradition of the office gave him all the independence he could use in dealing with the President, the Congress and the public. The matter is too subtle to be stated in a sentence but you will understand me if I say that an Attorney General who seeks to perform his duty to the law will often need political support that no one but the White House can provide. A term appointee would find himself, I think, with less, not more, autonomy in the enforcement of the law. Once a change in the presidency had occurred, I do not see how he could actually survive. In saying this, I am not as defeatist as I may appear, for I believe that Congress is in strong position to exercise surveillance over departmental performance and to deal with executive irresponsibility in the execution of the laws. If there is need for institutional change, I should myself direct attention to the possibilities of strengthening the function of surveillance. Second. The second group of changes proposed by the bill namely, vesting the appointing power for other departmental officials in the Attorney General alone, seem to me more worthy of attention. The principal goal here, however, would be the elimination of direct senatorial influence in the appointment process. That would not have been a feasible proposal in my time, though I can think of controversies and difficulties that would have been avoided had it been in force. Whether the proposal may have greater feasibility today, I feel no present competence to judge. I recognize, however, that the confirmation process has often served a useful purpose, as surely it did in the recent past. I, at least, have not yet been persuaded that the case for its elimination has been made. Third. There is a final point that merits comment, I believe, namely that you consider it implicit in the bill that the Attorney General would no longer be a member of the Cabinet. I suppose this follows from the removal of the Department of Justice from the statutory category of the "Executive Departments". I do not consider this to be a useful change. The President and the Departments need a larger, not a smaller, legal component in their deliberations and their policy determinations. The presence of the Attorney General at the highest level of consultation and the status of his formal opinions seem to me to be conducive to that end. With high regard and cordial good wishes, I am, Faithfully, HERBERT WECHSLER, Harlan Fiske Stone Professor of Constitutional Law. THE UNIVERSITY OF OKLAHOMA, HON. SAM J. ERVIN, JR., U.S. Senate, Chairman, Subcommittee on Separation of Powers, Committee on the Judiciary, Washington, D.C. DEAR SENATOR ERVIN: I sincerely appreciate your letter of February 4 forwarding me a copy of proposed Senate Bill 2803 on the establishment of the Department of Justice as an independent agency of the United States. It seems to me that this bill grows entirely out of the Watergate situation, as opposed to almost 200 years of reasonably satisfactory experience with Cabinet government in the United States. The Department of Justice belongs in the Cabinet, and I think it should continue there. Therefore, I am opposed to Senate Bill 2803. I know that people in Washington, and you in particular, are concerned about the Watergate situation, as are all of those in the legal profession who are interested in the integrity of government in this country. I would suggest, however, that the impact of the Watergate milieu will be such that a situation of this type is unlikely to occur at any time in the immediate future and hopefully not for at least another 200 years in the history of this nation. It seems to me that the government might better concern itself with a thorough reorganization of the administrative and executive agencies in order that they might function more efficiently and with less overlap. Further, it seems to me that the Congress might concern itself more properly with efforts to make it a more effective arm of government in order that future Watergates will not occur. With best wishes, I remain, Sincerely yours, ROBERT R. WRIGHT, P.S.: One suggestion which I might offer is that Justice continue as it has, but that a separate Ombudsman type of agency be set up as a "watchdog" dealing with various diverse concerns relating to the integrity of government in all of its branches and bureaus. This agency would be independent in nature, although subject to the fiscal powers of the Congress. I would be willing to explore that possibility further if you thought it worthwhile to do so. SUPPLEMENTAL MATERIALS RUFUS L. EDMISTEN, ESQ. AMERICAN BAR ASSOCIATION, Washington D.C., November 26, 1973. Subcommittee on Separation of Powers, DEAR RUFUS: With reference to our telephone conversation this morning, I am enclosing copies of press releases announcing the creation of the American Bar Association Special Committee to Study Federal Law Enforcement Agencies. As I mentioned, we had received assurances from Attorney General Richardson that the Department of Justice was prepared to offer its fullest cooperation in advancing the goals of the Special Committee. I am enclosing a recent mailing accomplished to a number of judges relating to the draft legislative proposal for a National Institute of Justice, together with the report, "Quest for Justice", relating to the development of the concept by our Commission on a National Institute of Justice. You should be aware that the Commission has not yet endorsed specific legislation nor is it prepared to do so. As you may know. Senator Humphrey has introduced legislation which seeks to establish an NIJ. This bill has been referred to the Subcommittee on Improvements in Judicial Machinery. You will note that Ken Pye of Duke is a member of the Commission and could be of considerable assistance to you in this matter. Best regards. Sincerely, JOHN P. TRACEY, ABA CREATES GROUP TO STUDY FEDERAL LAW ENFORCEMENT; MESERVE SUGGESTS REMOVING POLITICS FROM JUSTICE (Press Release of the American Bar Association) HOLLYWOOD, Fla., June 15.-The president of the American Bar Association today announced the creation of a Special Committee to Study Federal Law Enforcement Agencies. In disclosing the action by ABA's board of governors, Boston attorney Robert W. Meserve told members of The Florida Bar that there might be some functions of the U.S. Department of Justice and other agencies "which can somehow be removed from politics more than they have been." The new committee's assignment, Meserve said, will be to study the basic organizational framework for all the investigative and prosecutorial functions of the federal justice system. Meserve said one question the five-man committee would likely examine is whether the Attorney General, "who is politically responsible to the President in the same sense as any other member of the Cabinet," ought to have ultimate responsibility for investigating and prosecuting some types of federal crimes. 1 Not published in this hearing record. "This is another way of saying that there may be some functions presently part of the activity of the Department of Justice or other agencies which can somehow be removed from politics more than they have been," Meserve added. The ABA board resolution creating the new study group emphasized that the panel's work was not intended to impede or interfere with any current investigations or litigation. Its chairman and members will be named in the near future. Meserve also emphasized that the committee "is not intended to probe Watergate." Another Watergate investigation "would only add confusion to an already complicated situation," he said. He told the lawyers meeting here that public apathy toward Watergate and its related scandals represents "a far more serious situation" than the dishonest and criminal acts of those allegedly involved. This apathy, he added, may be Watergate's "most tragic aspect." While Watergate has captured the imagination of many, Meserve said there is "still an underlying mood of apathy" with "far too many who dismiss the entire affair as 'something which everyone does'." "This attitude," he said, "creates a far more serious situation than the dishonest and criminal acts of a few individuals, no matter how highly placed." Meserve also said the current scandals "must be distressing to those tens of thousands of honorable, upright members of the bench and bar who have practiced throughout their professional careers in a matter-of-course observance of the highest standards of professional ethics and morality." He urged citizens and lawyers alike to be "extremely careful in separating what has been or will be proved from what has been alleged and is only speculation." He said this was especially important in the "current spectacle of what appears to be a group, some members of which are trying to save themselves at any cost." Meserve said the number of lawyers accused of wrongdoing in the Watergate and related scandals represent to him "one of the most disturbing aspects." He said that because lawyers as a professional group have historically been more involved in government than other professions, this fact might lead lawyers to expect a few to go wrong among such a large number. "But the relative number of lawyers allegedly in the present cast staggers belief," he declared. Asking what went wrong with lawyers and Watergate, Meserve said it seemed absurd to discuss legal ethics, adding: "Surely, it does not require a close reading of the ABA Code of Professional Responsibility to support the proposition that breaking and entering is wrong-that perjury is wrong— or that bribery is wrong." For lawyers, Meserve said, the lessons of Watergate may be that of constantly being on guard to preserve professional independence and also detachment "not only from the over-zealous client who seeks what is improper, but from the urgings of our own ambition and self-interest." There are some Watergate developments which reflect well on the legal profession, Meserve said. Among those he cited were the roles of Judge John Sirica, Attorney General Elliot Richardson and Special Prosecutor Archibald Cox. Meserve said the common theme running through the Watergate and other scandals is money-funds made available for what evolved as illegal purposes. He said that the legal profession must explore possible alternate means of financing political campaigns. This broad public issue requires leadership responsibility from the legal profession to support constructive reform, he concluded. SPANN NAMED CHAIRMAN OF ABA GROUP (Press release of the American Bar Association) WASHINGTON, D.C., Aug. 3-William B. Spann, Jr., Atlanta attorney and former chairman of the American Bar Association's House of Delegates, today was named chairman of a newly created Special Committee to Study Federal Law Enforcement Agencies. ABA President Robert W. Meserve, Boston, announced formation of the five-member committee on June 15, explaining that its assignment is to study the basic organizational framework for all the investigative and prosecutorial functions of the federal justice system. More specifically, Meserve said the committee would look into some functions of the U.S. Department of Justice and other agencies "which can somehow be removed from politics more than they have been." He added that one question the committee would likely examine is whether the Attorney General, "who is politically responsible to the President in the same sense as any other member of the Cabinet," ought to have ultimate responsibility for investigating and prosecuting some types of federal crimes. "This is another way of saying that there may be some functions presently part of the activity of the Department of Justice or other agencies which can somehow be removed from politics more than they have been," Meserve added. While the panel's assignment from the Association's board of governors is broad in nature, Meserve emphasized that its works "is not intended to probe Watergate." He noted that the ABA board resolution creating the group emphasized that its activities were not intended to duplicate any current investigations but rather to explore ways to make the law enforcement agencies professionally independent legal arms of the government by insulating them from partisan influences." Others named to the committee were: Chester Bedell, Jacksonville, Fla., attorney; New Hampshire Supreme Court Justice William A. Grimes, Dover, N.H.; Keith Mossman, Vinton, Ia., attorney; and Cecil F. Poole, San Francisco attorney. COMMISSION ON A NATIONAL INSTITUTE OF JUSTICE, AMERICAN BAR ASSOCIATION, Washington, D.C., November 16, 1973. DEAR JUDGE: The Commission on a National Institute of Justice has been working for the past several months to formulate and refine a legislative proposal for eventual submission to Congress to effect the creation of a National Institute of Justice. The Commission's efforts have yielded the enclosed "discussion draft" documents: "A Bill for an Act Creating a National Institute of Justice" and an accompanying "Commentary", discussing and elaborating on particular aspects of the Bill. Also enclosed for your information is a three page introductory statement, entitled "The National Institute of Justice," which traces the history of the National Institute proposal and summarizes the major elements of the Commission's discussion draft Bill. The manifest need for a full-scale national program to examine our system of justice and to work for its improvement cannot be ignored. While many improvements have been made in recent years, the sheer growth in size and complexity of our society has exacerbated existing deficiencies and created new ones for our overburdened law enforcement bodies, courts, administrative agencies, and correctional facilities. The piecemeal approach that has characterized past reform efforts in the justice field must give way to a carefully planned program focusing the nation's attention, energies and resources in a concerted and constructive manner on the problems of justice in America. The Commission seeks your help in working toward this objective. The enclosed draft documents are being disseminated to a broad cross-section of prominent lawyers, judges, legal organizations and lay groups concerned about justice in America. This dissemination is being made so that you and the other recipients will be able to provide the Commission with reactions, comments, and suggestions. The Commission plans to meet in January, 1974 to consider all such responses and to revise its proposals where appropriate. I would therefore greatly appreciate your giving me your thoughts and ideas with respect to the enclosed drafts at your earliest convenience. Responses received by December 21 will be distributed to the Commission members for their consideration in advance of the January meeting; those received after that date but before the meeting will be made available to the Commission members at the meeting. We would hope that you would help us in generating nationwide attention for this concept. This can be done in speeches, articles and other ways to acquaint the public with the necessity for an institution like the National |