SEC. 17. And be it further enacted, That it shall not be lawful for the Secretary of either of the executive Departments to employ attorneys or counsel at the expense of the United States; but such Departments, when in need of counsel or advice, shall call upon the Department of Justice, the officers of which shall attend to the same; and no counsel or attorney fees shall hereafter be allowed to any person or persons, besides the respective district attorneys and assistant district attorneys, for services in such capacity to the United States, or any branch or department of the government thereof, unless hereafter authorized by law, and then only on the certificate of the AttorneyGeneral that such services were actually rendered, and that the same could not be performed by the Attorney-General, or solicitor-general, or the officers of the department of justice, or by the district attorneys. And every attorney and counsel [1]or who shall be specially retained, under the authority of the Department of Justice, to assist in the trial of any case in which the government is interested, shall receive a commission from the head of said Department, as a special assistant to the Attorney-General, or to some one of the district attorneys, as the nature of the appointment may require, and shall take the oath required by law to be taken by the district attorneys, and shall be subject to all the liabilities imposed upon such officers by law. SEC. 18. And be it further enacted, That the Attorney-General shall from time to time cause to be edited and printed an edition of one thousand copies, at the government printing office, of such of the opinions of the law officers herein authorized to be given as he may deem valuable for preservation, in volumes which shall be as to the size, quality of paper, printing, and binding, of uniform style and appearance, as nearly as practicable, with the eighth volume of said opinions, published by Robert Farnham, in the year eighteen hundred and sixty-eight, which volumes shall contain proper head-notes, a complete and full index, and such footnotes as the Attorney-General may approve. Such volumes shall be distributed in such manner as the AttorneyGeneral may from hime to time prescribe. SEC. 19. And be it further enacted, That this act shall take effect and be in force from and after the first day of July, eighteen hundred and seventy. APPROVED, June 22, 1870. APPENDIX II.-ATTORNEYS GENERAL OF THE UNITED STATES, 1789-1967 Edmund Randolph, Sept. 26, 1789 to Jan. 2, 1794. Levi Lincoln, Mar. 5, 1801 to Mar. 3, 1805. John M. Berrien, Mar. 9, 1829 to July 20, 1831. John J. Crittenden, July 22, 1850 to Mar. 3, 1853 (second term). Issac Toucey, June 21, 1848 to Mar. 3, 1849. Caleb Cushing, Mar. 7, 1853 to Mar. 3, 1857. Jeremiah S. Black, Mar. 6, 1857 to Dec. 17, 1860. Edward Bates, Mar. 5, 1861 to Nov. 24, 1864- _do_ Maine.. Maryland. Pennsylvania Georgia. Pierce. Do. Lincoln. Lincoln and Johnson. Johnson. Do. Grant. Do. Do. Do. Do Charles Devens, Mar. 12, 1877 to Mar. 6, 1881. [From the Congressional Record, vol. 119, No. 195, Dec. 12, 1973] REMARKS OF SENATOR ERVIN ON INTRODUCING S. 2803 ESTABLISHMENT OF AN INDEPENDENT DEPARTMENT OF JUSTICE Mr. ERVIN. Mr. President, I introduce for appropriate reference a bill to establish the Department of Justice as an independent establishment of the United States. Events of the past months have strained many institutions of our country. While the strain has produced cracks in some of our institutions of government, the Government remains sound. The flexibility and strength of our system of government is due to the wisdom of the framers of the Constitution in allocating the powers and duties of government to the three separate branches and establishing a system of checks and balances to preserve the separation of powers. Our Government loses its strength and resiliency when one branch encroaches upon the powers of another and the separation of powers is disturbed. The flexibility which allows severe stresses and strains is, then, one of the strengths of our constitutional government. 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. I strongly disagree with those who despair that Watergate and other events show an inherent weakness in our system of government. The wisdom em> bodied in our Constitution is most apparent in periods of stress. These events have shown the necessity of a free press, the necessity of an independent judiciary, and the necessity for Congress to maintain its constitutional role as a check on the executive branch. While many American institutions have been strained in the past months, some institutions such as the press and the judiciary have performed their historic or constitutional roles under these stresses; others have not. The Department of Justice is one of the governmental institutions most severely strained by Watergate and other events of the past months. These events have called into question the function of the Department of Justice, and have brought forth allegations, heard also in previous administrations, that the Department of Justice has been used for political purposes by the White House. A cornerstone of our system of justice is the faith of the American people in 33-875-74- -25 that system and their belief in its fairness. Even the appearance of impropriety or unfairness undermines faith in that system. For this reason, Congress should now thoroughly review the duties and function of the Department of Justice and take action to ensure that it is independent of political influence. The Department of Justice should be insulated from the direct political control of the executive branch of government to preserve the independence essential to the proper administration of justice. The Subcommittee on Separation of Powers will hold hearings in the next session of Congress on the necessity of an independent Department of Justice. The bill which I introduce today contains several proposals for improvement of the administration of justice and I hope these provisions will stir discussion and debate within the Congress on this matter. The purpose of the bill is to preserve the independence necessary for the proper administration of justice. The bill would remove the Attorney General from the Cabinet and make the Department of Justice independent of the executive branch. The Attorney General would be appointed by the President for a 6-year term, but Assistant Attorneys General, U.S. attorneys, and the FBI Director, all of whom are now appointed by the President, would be appointed by the Attorney General. They would be answerable to, and removable by, the Attorney General rather than the President. The functions of the present Department of Justice would be transferred to the independent Department of Justice. The Office of Attorney General was established by the Judiciary Act of 1789, and it was not until 1870 that the Department of Justice was established by act of Congress. While there have been many changes in the Department of Justice and its duties since it was established by Congress in 1870, the time has come for Congress again to seek ways to improve the administration of justice, and to insure its independence and fairness. Mr. President, I ask unanimous consent that the text of the bill be printed in the RECORD at this point. There being no objection, the bill was ordered to be printed in the RECORD, as follows: 1 [Reprinted by permission, from the Progressive, April 1974] JUSTICE WITHOUT POLITICS (By Arthur S. Miller) "The place of Justice is an hallowed place," Sir Francis Bacon, Britain's lord chancellor, said in 1612, "and therefore not only the bench, but the footpace and precincts and purprise thereof ought to be preserved from scandall and corruption." Americans who were shocked by last October's "Saturday Night Massacre," when Special Prosecutor Archibald Cox was summarily sacked by an acting Attorney General appointed for that purpose, should realize that the episode merely illustrated how far the American system has deviated from Bacon's ideal, the Department of Justice, charged with the solemn responsibility of furthering the rule of law, finds itself under heavy attack for having become unduly "politicized." An insistent cry is being raised in many quarters to take the politics out of the Department. To place that question-whether the Attorney General and his subordinates can be "depoliticized"-in some perspective, we must examine the historic background. The office of the Attorney General was created in 1789 and the Department of Justice in 1870. Both the office and the Department derive all of their powers from Congress. Even so, they are in the Executive Branch, which means that in legal theory the Attorney General, as a Cabinet official and Presidential appointee, serves at the pleasure of the Chief Executive. President Nixon's 1968 campaign pledge to appoint a "new Attorney General," one not "soft on crime," merits mention only because the statement was reported deadpan by the press, without reference to the fact that every new President routinely appoints a new Attorney General. Since at least the days of Andrew Jackson, the Attorney General has been regarded as the President's lawyer. It is often said that the Department of Justice has only one client-the Government-but that is true only insofar 1 See S. 2803 at p. 249. as there are no disputes between the Executive and the other branches. As the Chief Executive's lawyer, the Attorney General occupies the ambiguous position of being a political officer charged with legal duties. Tensions have erupted at times. In the national bank controversy of the 1830's, for example, President Jackson wanted to have certain banks named as depositories of U.S. funds, only to learn that his Attorney General had doubts about the validity of that policy. Jackson is said to have drawn himself up and declared: "Sir, you must find a law authorizing the act or I will appoint an Attorney General who will." Jackson prevailed, just as Nixon did in the Cox firing. The task, then, of an Attorney General (and of other government legal advisers, such as State Department lawyers who justified American intervention in Vietnam) is not to say no to policymakers, but to find some way to say yes. Not all top legal officers have taken the view that they are partisan advocates for the Executive or another branch of the Government. Edward Bates (who didn't last long as Lincoln's Attorney General) said: "The office I hold is not properly political, but strictly legal; and it is my duty, above all other ministers of State, to uphold the law and to resist all encroachments, from whatever quarter, of mere will and power." Bates was atypical; A. Mitchell Palmer represented the norm. Palmer, who led the infamous Palmer Raids of 1920 against aliens and other "suspect" persons, said: "The Government was in jeopardy. My private information removed all doubt." Paranoia on the Potomac, as disclosed in the Senate Watergate hearings and manifested in the savage overreaction to the "March on Washington" in May 1970, is not a new invention. When Attorney General Robert H. Jackson was called upon to justify President Roosevelt's plan to trade fifty "overage" destroyers to Britain shortly before World War II, he did so by ignoring the Constitution and bending some statutes beyond recognition. In 1941, Jackson, signed an Attorney General's opinion legitimizing government seizure of the North American Aircraft plant during a strike, an action that rebounded eleven years later when it was cited to him as a precedent for President Truman's takeover of the steel industry during the Korean war. Jackson by then a Supreme Court Justice, neatly sidestepped the question in his concurring opinion outlawing the seizure: "I do not regard it as a precedent for this, but, even if I did, I should not bind present judicial judgment by earlier partisan advocacy"-a classic acknowledgment of the politicization of the Department of Justice. So Robert Bork, the Solicitor General who became acting Attorney General and hatchetman on Archibald Cox, merely stands at the end of a line of numerous predecessors who, in Robert Jackson's terms, are "partisan advocates" for the President. The naive may believe that because the people pay the salaries, through taxes, of government lawyers, then they-the people should be their client. Not so: The "Government" is the client of the government lawyer, in and out of the Department fo Justice, and it is not always true that the interests of the Government and of the people (however defined) coincide. There has been a tendency since the Truman Administration for Chief Executives to appoint their campaign managers or other political cronies as the highest law officers of the Government. Campaign managers Herbert Brownell under President Eisenhower and Robert Kennedy, named by his brother, antedated John Mitchell, the municipal bond lawyer turned political manager who took over at Attorney General in 1969 (and who, at this writing, is being tried in New York on criminal charges). In consequence, that precinct of justice that is the Department of Justice is hardly "an hallowed place." Though they are theoretically responsible for administering the nation's laws fairly and impartially, Departmental lawyers often are mere instruments of a burgeoning Executive power, there to serve their masters a few blocks away at the White House. The problem has become so acute that voices throughout the legal profession are calling for change. Their concern, however, is prompted not so much by what Bacon called "scandal and corruption"-although that consideration is not absent-as by the almost unrestrained directionary powers that reside with Departmental officers. "Politics" is particularly evident in the appointment of judges, of U.S. attorneys (ninety-five in all), and of the thousands of marshals and other functionaries of the judicial system. About fifty per cent of the U.S. attorneys, who are recommended by the Department after clearance from their state's Senators (the "blue slip" system), become Federal judges-which means that they carry Departmental preferences with them to the bench. Judgeships are the province of the Deputy Attorney General (for the Supreme Court, the Attorney General himself gets into the act), and a Federal district judge aspiring to be an appeals judge not only starts out with the attitudes of a U.S. attorney but, more subtly and of more importance, knows that his elevation must be approved by the Department. How much that knowledge might tip the scales of justice in favor of the Government is unknown--but certainly it argues for taking the appointing function out of the Department. (It is not unheard of, for example, for a Federal judge to telephone the Department and ask what sentence should be imposed on a convict.) At least three levels of impropriety exist within the Department of Justice: 1) crime and corruption, 2) unrestricted discretion, and 3) overzealousness of lawyers. As for the first, Assistant Attorney General Lamar Caudle was sent to jail in the 1950's for taking part in tax frauds, and Attorney General Harry Daughterty barely escaped prosecution over Teapot Dome. Without commenting on John Mitchell's trial, I can note his own admission that as Attorney General he failed to tell the President about "the Watergate horrors," an action which, though not a crime, surely was a gross dereliction of duty. Justice Louis Brandels uttered the classic statement warning against official illegality: "In a government of laws, existence of the Government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy." It was John Mitchell, aided and abetted by William Rehnquist and Solicitor General Erwin Grisworld, who produced the theory that the Government could resort to wiretapping on domestic criminal matters without judicial approval-a notion so extreme that a Supreme Court dominated by Nixon appointees unanimously outlawed it. Mitchell and Griswold, plus Deputy Attorney General Richard Kleindienst and the head of the Antitrust Division, Richard McLaren, also stage-managed the much criticized ITT "consent decree" whereby ITT got what it wanted (the cash flow of the Hartford Insurance Company), while being required to slough off some subsidiaries. Government spokesmen defend the settlement partly on the basis of the likelihood of eventual loss in the Supreme Court, but that does not explain why ITT was so willing to go along. To believe the Justice Department's apologists is also to believe that ITT's executives and lawyers were stupid. The decision not to take the ITT case to the Supreme Court is a prime example of the second level of Justice Department impropriety-the almost uncontrolled discretionary powers the Department all too often exercises. Of those powers, whether to prosecute or not to prosecute is particularly worrisome. Seen in full glare in the ITT settlement (once a consent decree is entered by a Federal judge, there is no review-as Ralph Nader found out when he tried to get the ITT decree overturned), it hits hundreds of thousands of Americans at the local level. Plea bargaining in criminal law matters is routine (although it is unique to find a Vice President engaging in that process). Some discretion is, of course, necessary. The problem is to limit it so as to eliminate abuses. The essential question is how to make discretionary power as tolerable or decent as possible. One aid to stopping abuse of discretion would be openness the elimination of unnecessary secrecy-in the process. "Openness," says law professor Kenneth Davis in his book, Discretionary Justice, "is a natural enemy of arbitrariness, a natural ally in the fight against injustice." The third level of Justice Department overreaching is the way in which government lawyers, often but not always from the Department's corps of 3,000 attorneys, fail to realize the disproportionate amount of power they |