The Ministry of the Interior is charged with protecting the constitution and maintaining internal security.19 Article 72 of the Basic Law give the federal government the right under certain circumstances to establish a federal office of criminal police. Implementation of this provision has been slow, although in 1951 a special federal border police agency was established.20 In addition to the Federal Border Police, the Federal Ministry of the Interior directly controls a criminal investigation service and a centralized Federal Criminal Police Bureau. The function of this bureau is advisory in that it collects documents and information about specific crimes which it turns over directly to the states, thus acting as a central clearing house for information bearing on criminal matters.21 At the specific request of the states, the bureau initiates the pursuit, apprehension and arrest of criminal suspects.

In addition, the Ministry of the Interior supervises the Federal Office for the Protection of the Constitution. Its primary task is the investigation, detection and control of subversive activities directed against the country. Other federal police include the Federal Railroad Police under the Ministry of Transportation and the Federal Customs Service under the Ministry of Finance.22

III. THE ADMINISTRATIVE COURT SYSTEM

Article 96 of the Basic Law requires the establishment of federal courts with administrative jurisdiction. These courts perform a function similar to the French Council of State in that they deal with controversies in which individuals have allegedly been damaged by acts of public officials and public agencies. Their impact has been evaluated as being not as great as that of the French Council of State, but nevertheless, they have received recognition for their solid achievements in protecting individuals from administrative arbitrariness, 23

The Federal Administrative Court in Bonn hears disputes arising from the acts of the highest federal agencies. It also hears appeals from land administrative and other federal administrative courts in actions involving federal law or federal agencies. The other federal administrative courts are the Federal Finance Court for taxes and other fiscal matters, the Federal Labor Court with highest jurisdiction for labor affairs, the Federal Social Court which deals with cases arising from social security and public welfare questions and the Federal Court of Discipline which hears appeals from cases against federal public servants under the disciplinary regulations.24 Each of these courts heads a hierarchy of lesser judicial tribunals at the land and local level.

IV. THE FEDERAL CONSTITUTIONAL COURT

Articles 93 and 94 of the Basic Law provide the basis for the Federal Constitutional Court. The Federal Constitutional Court has jurisdiction over a wide range of legal matters, inculding controversies involving the following:25 a) constitutional disputes between the laender and the Federation;

b) disputes among the federal organizations on the constitution relating to matters of basic rights, the suppression of political parties, the validity of elections or the impeachment of the President or a federal judge;

c) questions on the validity of a law or the compatibility of a state, with a federal law or both state and federal laws with the Basic Law;

d) the review of lower court decisions which have declared a law unconstitutional;

19 Supra note 16, at 92.

20 Supra note 16, at 92.

21 Supra note 14, at 602-604.

22 Id. at 604.

23 Robert Neumann, The Government of the German Republic 149 (1966).

24 Supra note 5, at 414-415; and supra note 2, at 126.

25 Joseph Dainow, "The Constitutional and Judicial Organization of France and Germany and Some Comparisons of the Civil Law and Common Law Systems": 37 Indiana Law Journal 1-50 (1961). See also: supra note 5, at 412-413; note 23, at 149-153; and note 12, at 1162 ff.

e) constitutional complaints brought by any party as to whether a public authority has infringed upon a basic right or a right guaranteed by the Basic Law after all other remedies have been exhausted.

Thus, it should be evident that the Court is competent to review the acts of the executive as well as the legislative branches of the federal government, and that certain of the highest federal officials are subject to impeachment before it.

Because the powers of the Court are so widespread, the Basic Law has devised certain precautions to insure its independence and to insulate its members from political influence. The Court consists of 24 judges who are elected in equal numbers by the two federal legislative chambers. Eight of these judges must be taken from the highest federal courts, and they are given tenure for life. The other 16 serve for eight-year terms.

It appears that the members of the Federal Constitutional Court are also subject to Article 92, providing for impeachment procedure, as are the other federal judges. This arrangement creates a novel situation in which the Court would both judge and prosecute its own members in an impeachment proceeding. Thus, it appears that the Constitutional Court, upon the request of the Bundestag, could by a two-thirds' majority impeach one of its own members for violation of the Basic Law or the constitutional order of a land. As 16 members constitute two-thirds of the 24 members, it is theoretically possible that a majority party could stack the court with its candidates, who would in turn impeach those members with tenure. Certainly this example is farfetched, but it illustrates that the Court may at least in theory be subject to the will of a political majority.26

V. CONCLUSION

The administration of justice in the Federal Republic of Germany is insulated from political influence by a number of doctrines, institutions, and practices. Among the most significant are the following six factors:

The first is the doctrine of the separation of powers as provided for in the German Basic Law and which establishes the concept of a separate judiciary whose judges are selected by a complex process involving both the executive and the legislative and who are immune from dismissal except on certain specific grounds.

A second safeguard is inherent in the structure of any parliamentary democracy by virtue of the fact that the government may be censured and forced to step down.

The third factor is a result of the structure of a federal system specifically as it applies in the Federal Republic of Germany where the federal machinery must rely heavily on the laenders' implementation of its policies. This separation factor constitutes a strong deterrent against the possibility of the exertion of political influence by any branch of the federal government on the administration of justice.

The fourth factor is also related to the federal governmental structure. As in many political systems, the police power is not under the Ministry of Justice. In Germany in particular, the federal police power is subordinate to the Ministry of Interior, and what power does exist must depend greatly on land implementation.

The fifth factor is that Germany, like France, has a system of administrative courts. This system serves to protect the individual against the arbitrary action of public officials, and, ideally, acts as a check on the use of unlawful influence in all spheres of government.

Finally, Germany has a special Constitutional Court with a broad range of jurisdiction which enables it to review the acts of even the highest government officials.

26 Supra note 17, at 691-692.

ADMINISTRATION OF JUSTICE IN FOREIGN LEGAL SYSTEMS: SELECTED REFERENCES Compton, Sir Edmund, "The Parliamentary Commissioner for Administration", The Journal of the Society of Public Teachers of Law, New Series, Volume X, 1968-1969, London

Dainow, Joseph, "The Constitutional and Judicial Organization of France and Germany and Some Comparisons of the Civil Law and Common Law Systems", 37 Indiana Law Journal, No. 1, Fall 1961

David, Rene, "Political, Administrative, and Judicial Organizations of France", Part Two of French Law, Its Structure, Sources, and Methodology. Translated by Michael Kindred. Louisiana State University Press, Baton Rouge, 1972

The English Legal System, Lord Cross of Chelsea and G. J. Hand, Fifth Edition, June 1971, London

Jones, The Rt. Hon. Sir Elwyn, A-G., Q.C., M.P., "The Office of Attorney General", 27 The Cambridge Law Journal, Part I, April 1969

The Library of Congress, Legislative Reference Service:

"The Administration of Justice in France and Its Insulation from Political Influence", Raphael Perl, Legal Specialist, European Law Division, Law Library, March 1974 (See page 458 of these hearings.)

"The Administration of Justice in the Federal Republic of German and Its Insulation from Political Influence", Raphael Perl, Legal Specialist, European Law Division, Law Library, March 1974 (See page 463 of 1974 (See page 456 of these hearings)

"Canada" (and the administration of justice), Jean V. Swartz, Senior Legal Specialist, American-British Law Division, Law Library, March 1974 (See page 456 of these hearings)

"Great Britain" (and the administration of justice), Jean V. Swartz, Senior Legal Specialist, American-British Law Division, Law Library, March 1974 (See page 454 of these hearings)

[From Watergate: Its Implications for Responsible Government, a report prepared by a panel of the National Academy of Public Administration, at the request of the Senate Select Committee on Presidential Campaign Activities, March 1974]

CHAPTER 4.-THE ATTORNEY GENERAL AND THE DEPARTMENT OF JUSTICE

"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."-Attorney General Edward Bates (1862-1864).

The office of Attorney General, together with those of United States Attorneys in all of the judicial districts, was created by the First Congress in 1789. The Attorney General was to represent the nation in cases before the Supreme Court and was further called upon to provide legal advice to the President and to the heads of the departments. The U.S. Attorneys were made responsible for representing the interests of the United States in all criminal and civil proceedings in their districts. Problems arising in the enforcement of the Reconstruction Acts led to the establishment, in 1870, of the Department of Justice under the Attorney General. Since that time, the Department has been given an increasing and increasingly variegated range of functions. Today, with its nearly two billion dollar budget and 48,000 employees, it combines the world's largest law office with a number of other activities directly or indirectly related to the criminal justice system. The scope of the Department is summarized below.

1. The Attorney General, a cabinet member, is the lawyer for the President and is charged with the duty of rendering advice and opinions, upon request, to the President and heads of other executive departments. While each of the other departments has its own counsel, the Attorney General is the chief law officer of the United States. Should there arise differences in view on a subject

among the myriad lawyers within the Executive Branch, it is quite clear that the Attorney General has the power to resolve such disputes. One has always supposed that the legal advice rendered by the Attorney General to the President and the Executive Branch heads related to the performance of their official duties and not to their personal or political affairs.

2. The Attorney General administers the Department of Justice and represents the United States of America in all court proceedings from those in the Supreme Court of the United States to those pending in the lowliest state courts where an agency of the federal government may have some interest involved.

3. The Department is charged with the prosecution of federal laws as part of the Executive Branch's duty to enforce federal statutes. This function is carried out largely through 94 local U.S. Attorneys located in each of the country's federal judicial districts. Although the activities of the U.S. Attorneys are centrally directed and managed within the Department of Justice, the U.S. Attorneys (Presidential appointees) and their staffs (frequently political appointees) and the U.S. Marshals reflect varying degrees of professional competence and allegiance to the Department. As a consequence, these "local" representatives of the Department of Justice are not always responsive to departmental policies. The prosecutorial responsibility to investigate Watergate was located, at the outset, in the U.S. Attorney's Office for the District of Columbia. Apparently the specter of the Executive Branch investigating itself was considered, because the White House made a point of publicizing that the investigation was headed up by a Democrat. Supervision of the investigation remained with the Criminal Division of the Justice Department whose head kept the White House advised. The Select Committee testimony of Dean, Gray, and others highlighted the enormity of the conflict of interest that existed when the Department attempted to conduct an inquiry into Watergate.

4. The Attorney General, through his deputy, screens and recommends to the President all appointments to the federal judiciary-new district court judges, and promotions of district court judges or others to the various courts of appeal and to the Supreme Court of the United States.

5. The Department administers several grant and operating programs such as the Law Enforcement Assistance Administration, the federal prison system, and the federal parole boards, and functions as the recommending agency for Presidential pardons.

6. The Attorney General supervises and controls the Federal Bureau of Investigation as an aid in the discharge of his statutory responsibilities. Historically, however, there has been little supervision and control.

7. The Department comments on legal issues in proposed legislation being considered by Congress.

The Department now consists of: the Attorney General, his Deputy, the Solicitor General, and a number of Assistant Attorneys General in charge of divisions in different aspects of the law such as criminal, civil, antitrust, and others); the central staffs of the divisions, most of which are staffed with wellqualified lawyers in a de facto career system (though not under civil service); the U.S. Attorneys and their staffs in the field; and a number of operating bureaus and services which are in varying degrees supervised by or autonomous from the central Department.

Many of these elements of the Department were (and in some cases still are) involved in Watergate in various ways and at different times. Many of the difficulties highlighted in the Watergate investigations stem from two major problems, both of which have a long history: (1) the politicization of certain parts and processes of the Department; and (2) the accretion of a large variety of responsibilities that are not consistent with the conduct of a government law office.

POLITICS AND JUSTICE

Since World War II, it seems to have become neearly standard practice for the President to appoint as Attorney General one of the principle leaders of

the political campaign election in which he was elected. Every President since then, except President Johnson, has done so. President Truman named McGrath, President Eisenhower named Brownell, President Kennedy named his brother Robert, and President Nixon named Mitchell. Several of these continued, after appointment, to serve as principal political advisers to the President, as well as his legal counsel, and John Mitchell resigned the post to head the Nixon reelection campaign.

By historical tradition, and with certain notable exceptions, the top Presidential appointees in the headquarters of the Department have been highly respected representatives of the legal profession. Recent trends to appoint unsuccessful candidates for political office to a number of the Assistant Attorney General posts have undermined the tradition. The evidence of Watergate suggests that politicization in the Justice Department has not served the national interest.

While Presidential appointees to other Departments have not come from monasteries, the partisan orientation in recent years of those responsible for supervising the nation's legal affairs seems extreme. Its 94 principal field representatives, the U.S. Attorneys, are appointed by the President with senatorial consent for four-year terms, and the custom of senatorial courtesy inevitable involves such appointees in partisan politics. The impact of politics is intensified by the fact that some 1,200 Assistant U.S. Attorneys are appointed by the U.S. Attorneys, frequently on the basis of party patronage. The U.S. Marshals are likewise typically appointed on a patronage basis. Finally, the suggestions of federal justices for appointments and promotions from district courts to the Supreme Court has devolved upon the Department, and thus it is further injected into partisan politics.

The apparent transference in the last 30 years of partisan leadership within Administrations from the Postmaster General to the Attorney General may have been a consequence of the declining influence on patronage of the former and the continuing influence of the latter. It is time for a house-cleaning in the Department of Justice comparable to that performed in the "blue ribbon" career program 20 years ago in the Bureau of Internal Revenue. Politicization of governmental legal posts cannot fail to arouse public suspicion about the even-handedness of its government; and Watergate in many different ways provided substance for such fears.

The Panel recommends that every possible step be taken to remove the administration of justice and the Department of Justice from partisan politics and from the appearance of partisan politics.

More specifically, it recommends that:

The President appoint in the top posts of Justice only persons with high legal qualifications, and that the Senate confirm such appointments only after a thorough review of their legal qualifications:

All personnel of the Department of Justice from top to bottom be covered under the Hatch Act with its restraints on participation in partisan politics; All U.S. Attorneys be appointed by the Attorney General without limitation as to length of term;

All U.S. Attorneys and their legal staffs be made part of the career service already effectively established within the headquarters of the Department, or in a governmentwide legal career service;

All U.S. Marshals be placed in the civil service system.

The Attorney General and the President

As the nation's chief lawyer, the Attorney General should not be required to represent conflicting interests. He and his department should always be in the position to render objective and reasoned legal advice to the President with respect to the latter's Constitutional duties. An Attorney General cannot do this, or at least give the appearance of doing so, when acting as counsel to the President in his capacity as leader of his party or as an individual. When an Attorney General has been campaign manager for a political party, it is highly questionable whether he can readily surrender that function entirely and discontinue running party affairs from the Justice Department, or keep political party affairs from coloring his statutory functions as Attorney General.

Party legal matters would appear to be in the province of the party's general counsel, and private legal affairs of the President the business of the President's private attorney. To the extent that there is a gray area between official