Whether or not the Federal Courts could claim the power to appoint a Special Prosecutor as an inherent right, the Federal Special Prosecutor Act will confirm that the Federal District Courts possess this tool to do justice.

CONCLUSION

We have said that there exists an answer to the questions as to the capacity of this government to seek out and prosecute crimes in the higher levels of government. That answer is the Federal Special Prosecutor Act of 1974. There seems to be growing agreement that the time has come to enact such a provision.

As the authors of the American Criminal Law Review article to which we have made reference remark, "There is much evidence that ours is not a government of separate powers, but of blended powers, and ample prcedent exists for the proposition that no harm will obtain when an official of one branch has the authority to merely confer a role upon a member of another branch . . . such a procedure may be the only means of insuring impartial enforcement where a United States Attorney is in the uncomfortable position of having to prosecute his fellows in the executive branch . . . To let a prosecutor continue to act where political interest is present, or to mandamus him where it is likely that he will put forth a half-hearted effort, is to allow him to 'thumb his nose' at the very persons who are responsible for his position in office. For the sake of doctrinal tradition, the entire purpose of public office is defeated. If indeed, a public office is a public 'trust,' then failures to proceed with a single-minded concern for the electors, constitutes an unconscionable breach of duty. A prosecutor who must look in two directions will see clearly in neither and must therefore be prohibited from carrying on a futile attempt." 11 Am. Cr. L. Rev. supra, at 637-8.

Leon Irish, the former Supreme Court law clerk, also quoted above, seems to agree there is a need for such legislation.

"The Constitution enjoins the President 'to take Care that the Laws be faithfully executed.' When a criminal investigation requires examination of allegations involving the President and his closest personal advisers, however, the appearance and perhaps the actuality of faithful execution of the laws is possible only through a Special Prosecutor with sufficient independence and power to follow wherever the trail of evidence may lead.

"The power to prosecute alleged wrongdoing in the executive branch clearly is among those powers vested by the Constitution in the Government. As Chief Justice Marshall wrote in his classic description of constitutional power: 'Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.' (McCulloch v. Maryland). Washington Post, Nov. 9, 1973, p.

A30.

It would be difficult to disagree with Raoul Berger, senior fellow in American Legal History at Harvard Law School, who wrote in the New York Times on November 7, 1973,

"To insist that the President must investigate and prosecute himself, for that is what the argument for executive control of prosecution boils down to, is plainly unreasonable. The power of appointment and the separation of powers were not designed to obstruct justice.

"Let our guide be the utterance of Congressman Bland in the first Congress. Faced with the fact that the Constitution made no provision for removal, he said, 'it was essentially necessary that such a power should be lodged somewhere, or it would be impossible to carry the Government into execution.'

"Somewhere there must exist power to provide for an independent special prosecutor to carry forward an untrammeled investigation of White House participation in a criminal conspiracy. Without straining, it can be found in Article II, Section 2(2). It follows that a statute authorizing a court to appoint a special prosecution would be constitutional." at p. 47.

Forty-six deans of American law schools supported the Bayh Special Prosecutor bill as did the New York Times, Washington Post, and scores of other leading journals and newspapers. As Cardozo remarked: All found, however, in the end that there was a principle in the legal armory which, when taken down from the wall where it was rusting, was capable of furnishing a weapon for the fight and of hewing a path to justice."

33-875-74- -24

The time to focus attention on the broader issues is now. Too often these past few weeks we have heard the Congressmen's aides say we would have to wait-maybe a few years for a complete evaluation of the jobs that Cox and Jaworski did. To us this is terribly wrong. The two aren't connected. What we are talking about has nothing to do with the President or the present crises.

The Federal Special Prosecutor Act is designed to help an individual who in a case like Ernest Fitzgerald's or Gordon Rule's is in a situation where the administration faces an inherent conflict of interest in prosecuting the people who may have wronged him. In a larger sense the Act is designed to help the American people who are wronged whenever justice goes apparently undone. The significance of Watergate here is that it is essential that we act now.

APPENDIX 1A

One of the ironies of the furor over a federal special prosecutor is the fact that state governments have traditionally provided for this device and used it successfully in a variety of ways. What follows is a list of statutes and cases by which the special prosecutor has been established in various states. (Note that some statutes were taken from outdated State Codes.)

APPENDIX 1B

Three typical state statutes are here set out in addition to the Illinois statute set out at page 11. Without reprinting a great many state laws these examples suffice to give the flavor and common terms of the thirty-two state provisions which provide for trial court appointment of a Special Prosecutor.

OHIO CODE OF CRIMINAL PROCEDURE

§ 2941.63 Counsel to assist prosecutor. (GC § 13439-15)

The court of common pleas, or the court of appeals, whenever it is of the opinion that the public interest requires it, may appoint an attorney to assist the prosecuting attorney in the trial of a case pending in such court. The board of county commissioners shall pay said assistant to the prosecuting attorney such compensation for his services as the court approves.

NORTH DAKOTA STATUTES

11-16-06. Failure of state's attorney to perform duty-Power of courtAppointment of acting state's attorney.-If it shall appear, by affidavit or otherwise, to the satisfaction of a judge of the district court of the judicial district in which the county is situated, that the county has no state's attorney, or that the state's attorney is absent or unable to attend to his duties, or that the state's attorney has refused or neglected to perform any of the duties prescribed in subsections two to six, inclusive, or section 11-16-01, or to institute any civil suit to which the state or the county is a party after the matter has been properly brought to the attention of such state's attorney, and that it is necessary that some act be performed, the judge shall:

1. Request the attorney general or an assistant attorney general to take charge of such prosecution or proceeding; or

2. Appoint an attorney to take charge of such prosecution or proceeding and fix his fee therefor by an order entered upon the minutes of the court, and the attorney so appointed shall be vested with the powers of the state's attorney for the purpose of that action, but for no other purpose, and shall be the only person authorized to proceed in such action. The fee specified in the order shall be allowed by the board of county commissioners and, if so ordered by the court, the amount of such fee shall be deducted from the salary of the state's attorney.

WYOMING CODE

§ 18-117. Assistant prosecutor.-The district court may, whenever it is of the opinion that the public interest requires it, appoint an attorney to assist or act, for the prosecuting attorney, in the trial of cases or before the grand jury, and, while so assisting or acting, such attorney may perform any act or duty which the prosecuting attorney could perform; and the county shall pay such assistants such compensation for his services as the court shall deem proper, which sum, unless otherwise ordered by the court, shall be deducted from the salary of the prosecuting attorney. (laws 1890, ch. 73, § 149, R. S. 1899, § 1110; C. S. 1910, § 1211; C. S. 1920, § 1457; R. S. 1931, § 30-408; C. S. 1945, § 27-608.

SHOULD WE HAVE A PERMANENT PUBLIC PROSECUTOR?

(Outline of paper by Lloyd N. Cutler, Committee for Public Justice)

In a recent Op-Ed article in the New York Times I proposed that Congress create a permanent Special Prosecutor, independent of policy direction by the Executive, and charged with investigating and prosecuting two classes of cases-violations of the Federal Campaign Financing Act and other election laws, and crimes involving violations of federal law by elected or appointed Federal Government officials and officials of national political parties. About the same time, Senator Cranston proposed the creation of an administrative agency in the form of a commission with similar independence and responsibilities. My assignment today is to discuss the pros and cons of these proposals.

I. REASONS FOR THE PROPOSALS

1. The federal election laws-particularly those related to campaign financing-have gone openly and notoriously unenforced for more than 30 years.

Moreover, there are remarkably few instances in which an Administration has vigorously investigated and prosecuted one of its own members or party officials for a crime involving a breach of public trust.

2. An incumbent Attorney General has an obvious conflict of interest in investigating or prosecuting a campaign violation or a breach of public trust by a member of his own Administration or party. And because of the "live and let live" principle of elective politics in countries with frequent transfers of power, the same conflict of interest also carries over to cases involving members of the opposition party. Conflicts of this nature would be regarded as intolerable at the private bar; the same principle should apply to public prosecutors and their superiors as well.

3. Such conflicts are harmful not only when they prevent or delay the prosecution of the guilty; they are just as bad when they create public doubt about prosecutorial decisions not to charge those the prosecutors believe innocent. On the question of whether Mr. Kleindienst should be indicted for perjury, for example, a decision against indicting by Special Prosecutor Jaworski would be accepted at face value, while a decision by Attorney General Saxbe would not. The reason is self-evident: Mr. Saxbe has a real or apparent conflict of interest, while Mr. Jaworski does not. An apparent conflict can do even more harm than creating public doubt; it can also harm those under investigation. It can tempt a prosecutor to indict without adequate evidence because a failure to indict may be interpreted as the result of his conflict. To protect his own reputation as a man of integrity, he may make a personally safe but unfair decision that no man of real integrity ought to make.

4. When particularly heinous crimes by public and party officials come to light-and they usually do so without help from the Department of Justice-we have created interim Special Prosecutors (e.g., Teapot Dome and Watergate) with remarkably effective results. They have not only prosecuted successfully the crimes that had already come to the surface; their very existence led to the discovery and prosecution of additional crimes as well.

5. These experiences suggest that Teapot Dome and Watergate were only the tips of icebergs that float in political waters all the time, and that much more would have been discovered if we had a continuing institutional arrangement for doing so. Moreover, the mere existence of such a continuous institution might serve to deter the commission of offenses that have gone undiscovered in its absence.

6. I have just returned from two weeks in Europe-in countries as politically different from one another as Britain, Switzerland and Spain. In all three, a persistent reaction to Watergate is that such offenses occur in most Governments pretty regularly, and that the unusual aspects of Watergate are that this time the offenses came to light, and for once the offenders are in danger of being punished. But no one in Europe expects that any lasting change will result. Are American expectations any different?

7. Cynicism about the processes of Government can be as devastating as cyanide. Creation of machinery for a permanent Special Prosecutor may help to restore the confidence that is so essential to a democracy.

II. PRECEDENTS FOR A CONTINUING SPECIAL PROSECUTOR

1. There are many precedents in the Federal Government, in state governments and in English practice for an entity empowered to investigate and enforce some or all of the laws, free of ultimate policy direction by the Executive.

a. Federal Practice

(i) The Comptroller General. The Comptroller General serves for a term of 15 years. He is charged with investigating the legality and effectiveness of Government expenditures, and more recently violations of the campaign expenditure laws in Presidential elections. While he has no judicial enforcement power, he has the last word in "disallowing" public expenditures as illegal and obliging the offending official to make repayment. He is independent of any policy direction by the Executive.

(ii) The independent regulatory agencies are all charged with enforcing the laws they administer. In some cases, most recently the FTC, Congress has expressly authorized the agency to bring civil enforcement actions by its own -counsel rather than through the Department of Justice. In other cases (ICC and

FCC), both the "United States" and the agency are separate parties on appeals from Agency orders, and sometimes take opposite positions. While none of these agencies can bring criminal prosecutions, they can enforce the laws they administer in civil proceedings, impose and collect financial penalties, and obtain contempt citations (including jail terms) against defendants who violate court orders.

(iii) Under the campaign financing bill passed by the Senate late in 1973 (which the House has promised to take up this spring) the responsibility for investigating and prosecuting campaign financing violations (including criminal prosecutions) is taken away from the Attorney General and vested in an independent commission. This of course would accomplish one half of the jurisdiction I propose for a Special Prosecution.

b. State Practice

In more than 40 states, the Attorney General is elected rather than appointed, and is often from a different party than the Governor. In such states the Attorney General is constitutionally or statutorily independent of the Governor and the State's Executive Branch on matters of law enforcement. In at least one state (Connecticut) where the Attorney General is elected, the local prosecutors are appointed by the judges of the state courts, and to some extent are independent even of the Attorney General.

c. English Practice

As Lord MacDermott makes clear in his brilliant essays entitled "Protection from Power Under English Law," it has become a matter of English constitutional practice over the past 50 years for the Attorney General not to take instructions from the Administration (i.e., the Executive) on questions of prosecution and enforcement policy, even though he is a member of the Cabinet. In Lord MacDermott's phrase, "The days are gone when a subservient Attorney could be told whom to lay by the heels or whom to spare. He must now maintain a 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."

Interestingly, the episode that led to this development is reminiscent of some recent occurrences here at home. It occurred shortly after the first Labor Government was elected with considerable financial and voter assistance from the labor unions and it involved the question of Cabinet pressure on the Attorney General to drop a criminal syndicalism charge against some important union leaders.

III. OBJECTIONS TO THE PROPOSAL

Both constitutional and policy objections have been raised to the proposal: 1. The asserted constitutional objection is that Article II charges the President with the responsibility for faithfully executing the laws, and that this power cannot be delegated to an officer independent of the President. But the Constitution was certainly not meant to sanctify conflicts of interest, and certainly the President was not intended to be the officer responsible for enforcing the laws against persons as to whom he has a conflict of interestsuch as key leaders of his own Administration and party. Nor should the test be merely that of the federal conflict of interest laws, which define action in the face of certain obvious conflicts as crimes subject to criminal punishments; the test should be a conflict in the ethical sense, as defined in the lawyers' code of Professional Responsibility. We would not allow any other prosecutor the discretion to press or drop a case in which he has a personal, family or business interest on one side or the other, and we cannot afford to apply different rules to the President when he acts as the supervisor of a Government prosecutor. As a matter of legal ethics, the President and all his subordinates with similar conflicts have an absolute ethical duty to disqualify themselves in such cases. This is so even when the individuals concerned are personally capable of ignoring such conflicts in discharging their duties; conflict of interest principles apply not merely to the fact of conflict but also to the appearance of conflict. To maintain public confidence, it is not enough that justice be done in fact; justice must also appear to be done as well.

Moreover, as suggested below, the constitutional objection can be met, in a manner entirely consistent with past precedent, by empowering the President