to appoint a continuing Special Prosecutor with the advice and consent of the Senate to handle the narrow classes of cases as to which the President and the Attorney General are likely to have a real or apparent conflict of interest, and to assure the Prosecutor statutory independence in conducting his office. 2. Several policy objections have also been raised:

(a) Suppose we had a Special Prosecutor with the views of Joseph McCarthy or Savonarola or some other Grand Inquisitor? How could he be contained from wrecking the Government or remaking it in his image? But this should pose no greater problem than the risk of appointing an Attorney General with similar views. Presidents are unlikely to make such an error when they select the Special Prosecutor. If they do, the Senate can refuse to confirm. If the Senate also fails us, courts stand ready to throw out prosecutions for "crimes" of the mind, and the Prosecutor himself can always be removed for cause. Moreover, as suggested below, provision can be made for the Attorney General to enter a proceeding in opposition to the Special Prosecutor if the Prosecutor oversteps himself in a particular case.

(b) Can high quality people be recruited for the staff of a permanent Special Prosecutor, or are such people available only for brief periods in great emergencies? No reason appears why a continuing Special Prosecutor could not recruit a staff of at least as high caliber as the staff of the Criminal Division of the Department of Justice and the staffs of the United States Attorneys. For critical investigations and cases, the Special Prosecutor could also be authorized to retain special counsel from the private bar.

(c) Would a continuing Special Prosecutor emasculate the role and esprit of the Attorney General and the Department of Justice? I do not see why it would hurt the Attorney General and the present Divisions of the Department to relieve them of the embarrassment their real or apparent conflicts create in this limited class of cases. The Attorney General and the Department would still have the important responsibility for advising the President, and for enforcing all of the other laws on the books. Every Division of the Department would retain its present functions, except that the Criminal Division (and the criminal wing of the Tap Division) would lose jurisdiction over the two classes in which their performance has been so dismal over the decades. Moreover, as described below, the office of the continuing Special Prosecutor could itself be made a part of the Department of Justice for administrative and investigative purposes, with access to the FBI, as is now true for Mr. Jaworski, with his independence assured by statute rather than by Departmental regulation.

(d) Would a continuing Special Prosecutor ride the White Horse of his office to further his own political ambitions? This risk could be obviated as a practical matter by requiring anyone who accepts the position to foreswear thereafter becoming a candidate for any elective federal office. Whether or not a statutory disqualification along these lines would be constitutional, a solemn promise in a Senate confirmation hearing not to seek future federal elective office would be very difficult to get around.

IV. A CONCRETE PROPOSAL

A statute creating a continuing Special Prosecutor could take many forms. For purposes of discussion, my colleague Theodore Sims and I suggest the following basic outline.

1. The President shall appoint a Public Prosecutor, to be confirmed by the Senate, to serve for a six-year term. The Public Prosecutor shall have been for at least ten years a member of the Bar of the Supreme Court of the United States in good standing. [While Senator Cranston has proposed a Commission, we strongly prefer a single line of responsibility. However, it might provide added strength as well as political balance to authorize Presidential appointment and Senate confirmation of both a Public Prosecutor and a Deputy Public Prosecutor, with a proviso that both could not be of the same political party.] 2. The Public Prosecutor [and his Deputy] shall be subject to removal by the President only for defined types of misconduct in office, for incapacity in physical or mental health, and for fraud or concealment concerning misconduct occurring before he assumed office. If the person removed contests the grounds of removal, he shall be entitled to an APA-type of adjudicatory public hearing before an independent trial examiner, subject to administrative review by the President and to judicial review by the courts. During the period of any such

review, the duties of his office shall be conducted by the next senior official in that office.

3. The Public Prosecutor's office shall be a part of the Department of Justice for administrative purposes, but shall operate in physically separate quarters. The Public Prosecutor shall be entitled to the investigative assistance of the FBI. He shall have an independent budget and appropriations.

4. The Public Prosecutor's jurisdiction shall be limited to cases arising under the Federal Election Laws (including the campaign financing laws) and to cases of federal crimes committed by a present or former federal government official or employee, or by a national political party official or employee, during or preceding incumbency in a federal or party office. Because the Congress finds that real or apparent conflicts of interest are likely to exist, the Public Prosecutor shall be independent of policy guidance or instruction from the Attorney General or the President, or persons under their direction and control, on matters relating to the investigation and prosecution of any case within the Public Prosecutor's jurisdiction. He shall not have jurisdiction over cases involving himself or any person in his office, and in such cases the Attorney General shall have jurisdiction.

5. The federal conflict of interest laws shall be made specifically applicable to the Public Prosecutor and his staff and to other elected or appointed federal officials and employees in their dealings with the Public Prosecutor.

6. In matters within his jurisdiction, the Public Prosecutor shall have authority to convene grand juries (with the usual court approval), to sign indictments and informations, and to prosecute cases through all trials and appeals. He shall also be authorized to employ and appoint special prosecutors from the private bar to handle particular investigations and cases, subject to applicable conflict of interest laws. The Public Prosecutor and all members of his staff shall be required to observe strict rules of investigative confidentiality, but shall be entitled to provide evidence and information to the Committee on the Judiciary of the House of Representatives in connection with any impeachment investigation, subject to the approval of the court supervising any grand jury inquiry into such matters so as to safeguard the rights of grand jury witnesses and persons under investigation or indictment.

7. The Public Prosecutor shall have no authority to obtain an indictment of an incumbent President, but as to matters within the Special Prosecutor's jurisdiction, the President shall be subject to subpoena and the obligation to testify in the same manner as any other citizen.

8. In cases where the Attorney General disagrees with the position being taken by the Public Prosecutor as to any issue of law or fact in a pending judicial proceeding, the Attorney General shall be entitled to appear and present argument to the court, but not to participate as a party in the proceeding.

We believe that the creation of the Public Prosecutor's Office would be constitutional, that it would be administratively feasible and effective in discharging its duties, that it would strengthen rather than weaken the morale and reputation of the Department of Justice, and that its mere existence would go a long way to restore public confidence in the conduct of government.

[Reprinted from the book Department of Justice, by permission of the copyright holder and author, and Praeger Publishers, Inc., New York]

CHAPTER III. THE DEPARTMENT AS Now CONSTITUTED

(By Luther A. Huston)

On the pediment above the center entrance to the building that occupies the block of land between Pennsylvania and Constitution avenues and Ninth and Tenth streets in Washington, D.C., is enscribed: "The Place of Justice Is A Hallowed Place."

This principal building of the Department of Justice, completed in 1935, is also a remarkably busy place. And, although it is seven stories high and has a gross floor area of 1,237,000 square feet, it is by no means large enough to house all of the headquarters activities of the Department. The Immigration and Naturalization Service, the Bureau of Prisons, the Board of Parole, the Office of the Pardon Attorney, and some sections of other divisions occupy other buildings in the city, or space in them. Congress has authorized construction

of a $65 million building for the Federal Bureau of Investigation, which now uses more than half the space in the parent building.

The problem of space alone tells something about the magnitude of today's Department, and gives a hint of the complexity of its organization. Other statistics are additionally revealing: for fiscal year 1967, the total budget for the Department of Justice was approximately $407 million, and at present count, the Department employs more than 33,000 people, some 15,000 of them in the FBI.

THE RIGHT-HAND MEN AND THEIR FUNCTIONS

Three men comprise what might be called the "inner circle" of those who assist the Attorney General in conducting the multitudinous affairs of the government's law office. They are the deputy attorney general, the solicitor general, and the assistant attorney general in charge of the Office of Legal Counsel. In addition, the pardon attorney, who is appointed by the Attorney General, performs a specialized service under the Attorney General handling applications to the President for pardon, and the Attorney General has an executive assistant and a director of Public Information on his personal staff. The Deputy Attorney General

The deputy attorney general stands closest to the throne. He is the second ranking official in the Department, and, in the absence of the Attorney General or a vacancy in that post, he is the acting Attorney General.

The deputy's duties are largely administrative, and he assists the Attorney General in the over-all direction of the Department. He coordinates the activities of the Department and, in many matters, is the first to be consulted by assistant attorneys general and officials of other government departments and agencies. His authority extends to decisions, subject to the approval of the Attorney General, in many administrative matters.

One of the deputy's most important functions is to screen applications and make recommendations for appointments to the federal judiciary. No man or woman is named to the federal bench until a thorough check of his or her qualifications has been made under the deputy's direction; qualities of diplomacy, tact, political astuteness, and the ability to appraise the character and capabilities of men are requisite to the effective performance of this function. There are very few judges nominated by the President who do not owe their selection to the judgment of some incumbent deputy attorney general.

The deputy also recommends appointments of legal personnel to the Depart

ment and is thus responsible for the employment of qualified lawyers to staff the various divisions and bureaus. (See Appendix IV.)

The Executive Office for United States Attorneys and the Executive Office for United States Marshals are units of the deputy's organization, and he recommends appointment of candidates for those posts in the 92 judicial districts into which the country is divided for administrative purposes. There are 184 U.S. attorneys and marshals all told, and they are the field forces-the "grass roots" staff, as it were of the Department of Justice, in the front line of law enforcement. The direction of their activities sometimes transcends the routine and escalates into virtual command of fighting forces on the battlefields of law and order. (See page 67.)

The deputy is the Department's liaison with Congress. Proposed legislation prepared in the Department or in which the Department has an interest is transmitted to Congress through his office, and he frequently testifies before Congressional committees in support of or in opposition to measures under consideration.

In the exercise of his functions and responsibilities, the deputy attorney general combines policy-making with administration of policy. He participates in the formulation of departmental policies and, as a principal consultant of the Attorney General, indirectly, and to a limited extent, in those domestic and international policies that evolve from the Attorney General's role as legal adviser to the President and his Cabinet.

Prior to the administration of Attorney General Herbert Brownell, Jr., the deputy ranked third in the official hierarchy. The solicitor general was in the Number Two spot and was acting Attorney General in case of a vacancy or in the absence of the Department head. Even in third place, however, the deputy's role in the management of the Department was, in practice, that of first assistant to the Attorney General.

Even though the incumbent is seldom in the public eye, the deputy attorney general's job is prestigious. Several deputies have become Attorney Generalrecent examples being William P. Rogers, who succeeded Brownell; Nicholas deB. Katzenbach, who succeeded Robert F. Kennedy; and Ramsey Clark, who replaced Katzenbach when the latter went to the State Department. At least one deputy, Stanley F. Reed, went from that office to be associate justice of the Supreme Court.

The deputy attorney general is selected by the Attorney General, but his nomination is sent to the Senate by the President and must be confirmed by the Senate.

The Solicitor General

The solicitor general of the United States appears more often in the Supreme Court than any other lawyer. He is the government's advocate in cases brought by the Justice Department or other federal agencies; he is the government's defender when private litigants carry cases involving federal interests to the high court. Since a majority of cases heard by the Court involve government interests, the solicitor general has more business before that tribunal than any private attorney.

The office was created by the Act of June 22, 1870, which established the Department of Justice and was the only new office created by that Act, which specified that the incumbent must be "learned in the law." Since that time, with rare exceptions, incumbents have been selected because of their legal attainments and effectiveness in presenting to the Supreme Court the government's arguments.

In 1870, and until 1952, as noted, the solicitor general was the second ranking official of the Department, serving as acting Attorney General when occasion required. He was relieved of that responsibility in 1952 and now is free from administrative duties except those of his own office. This enables him to devote his time more fully to acting as the government's Supreme Court lawyer. Although third in the official line, he would be acting Attorney General only in the unlikely event of both the Attorney General and the deputy being unable, for any reason, to perform their official duties.

Except for such higher authority as might be exercised by the Attorney General in rare circumstances, the solicitor general has sole jurisdiction to decide which government cases are appealed to the Supreme Court or other appellate courts. If a lower court decision is adverse to the government, it is

the solicitor's function to determine whether the issues are important enough to justify an appeal and whether the government's case is good enough to afford reasonable chances of an appellate victory. If he says no appeal, there is none. When an appeal is taken, the preparation of briefs and other documents is supervised by the solicitor. He is assisted by a small staff and collaborates with other departmental lawyers having special knowledge of the pertinent law and issues.

The solicitor general supervises all oral arguments in the Supreme Court and personally argues the more important government cases. He may assign other members of his staff, other departmental lawyers, or counsel for other Departments or agencies, but the responsibility to see that the government's case is effectively presented is his. He may conduct and argue in any court in the land any case in which the federal government is interested, but, as a practical matter, such cases are handled by U.S. attorneys in the districts, or by departmental counsel especially assigned.

The solicitor wears the traditional morning coat and striped trousers when he appears in the Supreme Court. Thus clad, he stands before the lectern and presents the Department's arguments and answers the questions of the justices. On most days when cases are being heard, he is present at the table where participating lawyers sit. There is always a quill pen on the table in front of him, but not since the earliest days has a solicitor been known to use one.

Like the deputy attorney general, the solicitor general is chosen by the Attorney General, nominated by the President, and confirmed in his office by the Senate.

The Office of Legal Counsel

The assistant attorney general in charge of the Office of Legal Counsel is often described as "the Attorney General's lawyer," because of his responsibility for preparing the formal opinions of the Attorney General, rendering informal opinions and legal advice to the various government agencies, and assisting the Attorney General in the performance of his functions as legal adviser to the President and the Cabinet.

Opinions originating in the Office of Legal Counsel have guided Presidents in many famous executive decisions. For example, in 1940, the "Lend-Lease” opinion of Attorney General Robert H. Jackson gave President Roosevelt legal authority to transfer American destroyers to England in return for the right to establish naval and air bases in British possessions. In 1957, the Office of Legal Counsel justified the use of federal troops in Little Rock, Arkansas, to enforce a court order that the schools be segregated. And in 1963, the Office devised the basis for the quarantine of Cuba during the missile crisis.

All proposed executive orders and proclamations are reviewed and revised for form and legality in the Office before final submission to the President. It also reviews and revises regulations that require the approval of the President or the Attorney General. Also, it performs the legal work entailed by gifts and bequests to the governmnt.

American participation in the United Nations and related international organizations requires coordination with other government departments, and this work is done for the Department of Justice in the Office of Legal Counsel. In the domestic area, the Office is responsible for supervision of studies and recommendations for the improvement of administrative procedures of the various federal agencies. In addition, it has direct supervision over the handling of all conscientious objector cases, other than criminal prosecutions.

The Office was established in 1933, pursuant to an Act of Congress. It was first headed by an assistant solicitor general. In 1951, Attorney General J. Howard McGrath gave it division status with an assistant attorney general in charge, and named it the Executive Adjudications Division. This was changed to Office of Legal Counsel in an administrative order by Attorney General Brownell, issued April 3, 1953.

THE PRINCIPAL PARTS

Maintenance of law and order is the most essential function of government. Since the Department of Justice is not only the government's law office, but also the government's central agency for enforcement of the federal laws, its responsibilities are heavy. To discharge them, in addition to the officials