have vis-a-vis individual litigants. I do not speak here of the ITT settlement or of the antitrust action against IBM. There, as elsewhere (for example, before the Federal Communications Commission or the Federal Trade Commission), the government attorneys are overwhelmed by the legions of high-powered and high-priced lawyers from the corporate bar. But when it is an individual, not a corporation, against whom the Department is proceeding, the power imbalance is reversed. Then the citizen often finds himself bowled over by the Department's overzealous energies.

Jimmy Hoffa, powerful as he was as head of the Teamsters, learned that fact of life when Attorney General Robert Kennedy set up the "Hoffa Squad" to get Hoffa; get him they did. The Hoffa case shows the Government's broad discretion in deciding whether or not to prosecute and how zealous the prosecution can be. Hoffa's early release from prison by President Nixon indicates that discretion also works at the other end of the criminal law pipeline.

When an individual confronts the Immigration and Naturalization Service (part of the Justice Department), unreviewable discretion is often the norm and arbitrariness often the rule. That was shown, for example, when Ernest Mandel, a leading Marxist scholar in Belgium, was. denied admission into the United States, where he had been invited to give some university lectures. The Supreme Court upheld that bit of Departmental arbitrariness. In obscure cases, such as contract claims, land-condemnation actions, or tort claims against the Government, the Justice Department lawyer also often acts with excess zeal against the individual. One example will illustrate: Several years ago, a patient at a Veterans Administration hospital was erroneously injected with embalming fluid by an orderly who had the duty of giving injections. Result: total paralysis of the patient. The patient sued the Government, only to be met with the defense (from technical "agency" law) that the orderly acted beyond the "scope of his employment." Thus, a weak, even silly, legal stratagem was used by government attorneys in an effort to starve off paying a few thousand dollars.

Multiply that case by thousands and the pattern of overzealous action by the Department of Justice takes on added meaning. It is a proud tenet of the Solicitor General's office that the Government's case is won when justice is done, but all too often that precept is forgotten; the game is to win, by using every technicality and legal stratagem.

Elliot Richardson, during his brief tenure as Attorney General, vowed to take politics out of the administration of justice, but that laudable goal was one of the victims of the Saturday Night Massacre. Richardson's intent may yet be achieved, however, if Congress will be sufficiently influenced by the Watergate disclosures to reassess the Department of Justice. The Senate is about to take the first step toward such a re-evaluation. Senator Sam J. Ervin's Subcommittee on Separation of Powers has scheduled hearings on S2803, introduced by Ervin on December 12, 1973. If enacted (in present form or amended), S2803 would "establish the Department of Justice as an independent establishment of the United States." Scheduled to testify, among others, are former Attorneys General Ramsey Clark, Richard Kleindienst and Hatzenback; former Supreme Court Justice Arthur Goldberg; former U.S. Attorney Whitney North Seymore, Jr.; Lloyd Cutler, well-known Washington lawyer; Archibald Cox, and a number of law scholars.

Cutler has proffered a different suggestion-that a permanent office of special prosecutor be established to ride herd on improprieties in the Executive Branch, including the Department of Justice. Others, such as Professor Paul Mishkin of the University of California School of Law, have advanced the more radical notion that an office of "counsel general" be established completely independent of the President-an office that would take over most of the present functions of the Department of Justice and would, in addition, act as an ombudsman for citizens' complaints against improper government actions.

Watergate has clearly contributed to a growing distrust of the Government and a lack of faith in the fairness and impartiality of the system of justice. Watergate has proved that governmental lawlessness can and does occur. The Ervin hearings may help us find our way out of an intolerable situation, for we must face the fact that our present system of justice through politics-often corrupt politics-cannot stand much longer without eroding our constitutional democracy beyond the point of no return.

[Reprinted by permission, from the American Bar Association Journal, vol. 59,

December 1973]

THE POLITICS OF JUSTICE

(By Ralph Adam Fine)

Determining the intensity of criminal investigations and, indeed, whether to prosecute at all are powers exclusively wielded by the executive branch. But as Watergate dramatizes, these determinations can be tempered more by a sense of politics than by one of justice. Prosecutorial and investigative functions can best be performed by impartial, independent commissions.

In his colver lectures at Brown University fifty years ago, Roscoe Pound discussed the consequences of a system of justice subordinated to political control. "It is a common experience," he reminded his audience, "that criminal prosecutions may have partisan politics behind them, and out of this experience has arisen a fear of oppression through the criminal law."

Dean Pound recognized, however, that the persecution of unpopular groups or of persons adhering to notions out of favor with those in power is only one result of politically directed law enforcement. More subtle and more invidious is the perversion of the law's impartiality-the whispered hint to blind Lady Justice, a pebble tossed onto one of her scales. Thus, as Dean Pound explained, the political prosecutor is more likely to be zealous when the public is aroused over a particular matter than when it is not and more likely to be languid when the criminal trail leads to the powerful or when the public's interest has waned.

Politicized justice is more of a problem today than it was in 1923. During the past decade the public's confidence in the integrity and impartiality of our legal system has fallen precipitously. It is no accident that this decline has been accompanied by an increase in overt political direction of the means and ends of law enforcement. Two of the last three presidents anointed their chief political strategist with the office of attorney general, resurrecting an abused precedent set by Pres. Warren G. Harding when he appointed his campaign manager, Harry M. Daugherty, later of Teapot Dome infamy, to the top Justice slot. Overt political control of Justice has led to harrassment of unpopular groups by law enforcement agencies, preferred treatment of the influential, and that basket of improprieties known as "Watergate."

Watergate's germination and growth were caused in no small part by the feeling by many of the principals that they were insulated from the rigors of standard conduct by their special position or cause. They were confident, some have testified, that the attorney general and therefore the majesty of government were on their side. Nor, apparently, was that confidence misapprehended, at least during the initial stages of the investigation and cover-up. In explaining why he gave White House counsel John W. Dean III access to the continuing investigation, including the right to be present during interviews, when he suspected that Dean was not being entirely candid with him, L. Patrick Gray III, then acting director of the Federal Bureau of Investigation, said, "I am a bureau chief in an executive department of of government, I have to take orders from somebody, I do report I am just not out there in the open, you know, independent and doing exactly as I please, and that man is counsel to the president of the United States." Mr. Gray further explained, "I do take my orders from the president of the United States. I can't evade that."

to somebody,

EXECUTIVE BRANCH CAN REFUSE TO PROSECUTE

This candid admission indicates the crux of the problem. The simple fact is that, absent a definitive ruling from the Supreme Court to the contrary, the executive branch not only controls the course of criminal investigations but the crucial decision of whether to prosecute. Control by the executive, of course, means political control, and the courts are powerless to interfere. See United States v. Cox, 342 F. 2d 167 (5th Cir. 1965) certiorari denied, 381 U.S. 935, where it was recognized that a United States attorney, and therefore the executive branch, could not be compelled to prosecute someone the grand jury wished to indict.

Aware of the absolute prosecutorial discretion residing in the executive and heeding the admonition that no man should be a judge in his own cause, the United States Senate set the appointment of an independent special Watergate prosecutor as a condition to the confirmation of Elliot Richardson as attorney general. True to his pledge, Mr. Richardson established within the Department of Justice an Office of Watergate Special Prosecution Force directed by a special prosecutor with, as Mr. Richardson said, "the greatest degree of independence" and who could "not be removed from his duties except for extraordinary improprieties on his part." Mr. Richardson's pledge to the Senate was formalized by an amendment to Title 28 of the Code of Federal Regulations, which was duly published in the Federal Register on June 4, 1973 (38 Fed. Reg. 14688).

THE PREROGATIVE TO PROSECUTE

Despite the grant of what appeared to be invulnerable independence to the special prosecutor, President Nixon's attorneys contended from the start that the president and the president alone had the ultimate authority over the Watergate investigation and prosecution. Thus, in defending the president's right not to release the recordings of his conversations with key Watergate figures, they argued in their brief in the United States District Court for the District of Columbia that the special prosecutor cannot maintain a prosecution if "the executive branch has determined to the contrary on the basis of other governmental interests." This contention foreshadowed Acting Attorney General Robert Bork's dismissal of Archibald Cox on October 20, 1973, after both Elliot Richardson, attorney general, and William D. Ruckelshaus, deputy attorney general, chose to resign rather than violate Mr. Richardson's pledge to the Senate or the amended Justice Department regulations. Although by the end of October it seemed clear that the office of special prosecutor would be reinstituted in one form or other, this action would not alter the fact that, Watergate aside, law enforcement decisions are subject to the political considerations of those in power.

an

The control may be exercised frequently, as some have charged, or rarely, as is probably the case. Nevertheless, the mere existence of the power casts a pall over our entire society. As the Senate has recognized with regard to Watergate, politics has no place in the enforcement of criminal laws. The rubric that all men are equal under the law must be the institutionalized practice rather than the wistful ideal. The concept of an independent special prosecutor should be extended to free federal law enforcement from the binds of political control.

Indeed, this solution was hinted at by Judges Rives, Gewin, and Bell of the Fifth Circuit in their opinion dissenting in part and concurring in part in United States v. Cox. With the uncertainty of explorers pushing into uncharted territory, they wrote: "To permit the district court to compel the United States Attorney to [prosecute at the behest of the grand jury] would invest prosecutorial power in the judiciary, power which under the Constitution is reserved to the executive branch of the government. It may be that the court, in the interest of justice, may require a showing of good faith, and a statement of some rational basis for dismissal [of an indictment]. In the unlikely event of bad faith or irrational action, not here present, it may be that the court could appoint counsel to prosecute the case" (emphasis supplied).

Under our present system, the heads of the various investigative and prosecutorial agencies are appointed by the president and are subject to what is usually routine confirmation by the Senate. With the exception of the tenure of the late J. Edgar Hoover as director of the F.B.I., each president accepts the resignation of his predecessor's appointees and puts his own men into these highly sensitive positions. As Mr. Gray acknowledged, these men are bound to do the president's bidding, and fair rigorous law enforcement occasionally gives way before the press of political expediency.

To insulate criminal justice from political influence, an independent law enforcement agency should be established. That agency should be free from political control yet not so independent as to develop police state powers. Indeed, the argument that political control is needed to prevent the development of a police state is overrated. An independent agency, lacking a stake in the political process, would not have the motive to develop an apparatus to control that political process. The so-called Huston plan of national surveillance demonstrates that the danger lies not in having law enforcement independent of the political process but dependent on it. It was the independent J. Edgar Hoover, in his last days, who managed to kill the White House project before the monster was able to hatch.

The enforcement of the federal criminal laws depends on the co-ordinated efforts of the various executive agencies that investigate possible offenses against the United States and the Department of Justice, which is charged by statute with prosecution. Both these phases of criminal law enforcement activity can be removed safely from the sphere of political influence.

All the criminal investigative functions of the federal government would be merged into a new agency, the Bureau of Criminal Investigation. Similarly, criminal prosecution jurisdiction would be taken from the Department of Justice and vested in a Bureau of Criminal Prosecution. These two bureaus would be staffed by professionals and would be responsible to and under the general supervision of an independent Board of Criminal Justice.

BOARD SHOULD BE FREE FROM POLITICAL INFLUENCE

The Board of Criminal Justice is the keystone of my proposed reorganization. That board would consist of seven distinquished citizens appointed by the president and subject to Senate confirmation. Each would serve a sevenyear, nonrenewable term. To insulate the board further from political influence, the terms of the members would be staggered with a three-year gap between the expiration dates for the terms of any two. Barring death, disability, or resignation, a president would appoint only three members of the seven-member board in two terms. The members of the board would be removable from their positions only by the impeachment process outlined in the Constitution.

The Board of Criminal Justice would appoint the operating heads of the two law enforcement departments: the directors of the B.C.I. and the B.C.P. The B.C.J. also would have the power to veto choices of each director for his chief assistants. This appointed staff of professional law enforcement officials would be responsible for the day-to-day activities of the bureaus and would serve at the pleasure of the B.C.J. The B.C.J., however, would be more than an overseeing body; it would retain general supervision and control over the two operating bureaus and would have the responsibility to ensure that the criminal laws were being enforced with justice and impartiality.

NATIONAL SECURITY WOULD NOT BE JEOPARDIZED

This reorganization would not interfere with the president's control over the civil side of law enforcement, which is rightfully a tool of national policy. Any alleged criminal violations uncovered in the course of the civil activity would be referred to the B.C.I. for investigation and to the B.C.P. for prosecution. Nor would the reorganization jeopardize national security by compelling the prosecution of a case that, for fear of disclosing vital secrets of state, should be dropped. The Board of Criminal Justice would evaluate the security claims of the executive branch and, after balancing the competing interests, would either stop the pending investigation or order it forward. There is no reason to suppose that the board would be insensitive to legitimate claims of national security.

I hope this plan will initiate discussion and thought, not only on the national level but in the states as well. Law enforcement should not be a weapon in any politician's arsenal. The suspicion of favoritism and the threat of intimidation have no place in an orderly and free society governed by laws and not the random whims of sometimes petty, sometimes vicious

men.

[Reprinted by permission, from Fortune, October 1973]

PUTTING POLITICS IN ITS PLACE AT THE JUSTICE DEPARTMENT

(By Thomas Griffith)

The oracular Mr. Richardson, a shrewder politician than he lets on, is a good bet to restore confidence in "the largest law firm in the world."

Attorney General Elliot Richardson's promise to "remove the Department of Justice from politics" won him a certain amount of praise. The praise is perhaps not surprising. But the promise is one that Richardson cannot possibly keep, and he is, in fact, already entangled in some of the most intensely political issues ever confronted by a U.S. Attorney General. Through Archibald Cox, the man he chose to be special prosecutor, he became involved in the handling of criminal charges related to the Watergate scandal. Richardson himself took on the excruciatingly difficult decision of whether the Vice President of the United States could be indicted on criminal charges. It is no criticism of Richardson to suggest that his behavior in the circumstances has been political.

The Justice Department has always had to deal with an ambiguity in its mandate. It is, of course, charged with embodying of all the nation's ideals about a justice that is administered fairly and impartially. But at the same time it is, and cannot avoid being, the legal arm of a particular Administration, responsive to the Administration's particular priorities. The Kennedys turned the department upside down in their concentration on two perceived priorities, civil rights and organized crime. Richard Nixon, who had made the department itself one of his campaign targets in 1968, all but assured the nation that a change of Attorney General would lower the crime rate. Every head of the Justice Department, then, is inevitably part of a team that is trying to implement a political mandate.

Furthermore, as Supreme Court Justice Byron White once observed, "You can't take the politics out of politics." White made the remark when he was serving as Deputy Attorney General (under Kennedy), and it is still cherished in the department. The thrust of the remark is that anyone trying to effect political change cannot entirely avoid the political processes—and Justice, in its relationship with Congress as well as with the White House, is in constant contact with the world of favors, compromises, and scrambling for votes. For an Attorney General, all this implies a continuous tension between the claims of impartial justice and the claims of politics.

An Adminstration that actually tried to do what Richardson has promised, and get the Justice Department entirely out of politics, would simply prove to be ineffectual. But an Administration that tried to resolve the tension between those claims the other way, by letting politics take precedence, would be endlessly entangled in corruption. The Watergate debacle shows, among quite a few other things, what happens when the heads of the department become overwhelmingly political-when the ideal of impartial justice is treated as mere rhetoric.

A NEED FOR DISCRETION

One reason that a certain amount of politics is inevitable is that the Justice Department, as chief litigant for our government, must have a great deal of discretion about when to prosecute, and about when and how to settle. The crucial role that discretion plays in law is often underestimated by those who facilely say that ours should be a government of laws, not of men. It is inevitably a government of laws and men.

The role of discretion in law has an honored lineage going back to Aristotle, who viewed discretion as a means to soften too rigid laws. But the present pervasiveness of discretionary decision making results from the sheer bulk and complexity of modern society. Perhaps the leading authority on this matter is Professor Kenneth Culp Davis of the University of Chicago. To read his book, Discretionary Justice, is to be given a picture of Washington, D.C., as a vast green park dotted with huge buildings, whose long corridors give onto little warrens where, without benefit of clergy, without sufficient sanction of rules or testing in the records, thousands of adminis