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legal matters and party or personal matters, and where there is a need for counsel paid by the U.S. Government, it is clearly more appropriate that White House Counsel to the President and not the Attorney General undertake such advice.

The Panel believes that the Attorney General should be the chief legal officer for the U.S. Government and should be precluded by statute from advising the President in his political or individual capacities.

The Appointment of Federal Justices

Giving the chief federal prosecutor the power to screen, recommend, and then defend the appointment of federal judges, from District to Supreme Court, appears increasingly questionable. The Department of Justice is probably the most frequent litigant in the federal courts. Judges should not have the impression that their performance on the bench is going to be judged by one of the litigants in cases he must rule upon. Necessarily, a sitting judge is going to be somewhat hesitant to rule as freely against a litigant who may be called on to judge his qualification for promotion.

The Department of Justice should, by statute, be removed from the process whereby federal judges are promoted and selected. The Panel further recommends that serious consideration be given to a substitute procedure (comparable to the so-called “Missouri Plan") whereby the preparation of initial lists of candidates be entrusted to a bi-partisan group of distinguished citizens-partly lawyers and partly laymen.

THE INVESTIGATION AND PROSECUTION OF ALLEGED WRONGDOING IN THE EXECUTIVE BRANCH

The political ties between the leaders of the Department of Justice and the White House and the Department's party identification contributed to the lack of public confidence in its investigation of Watergate. This very lack of confidence occasioned the creation of the office of Special Prosecutor to investigate the Watergate affair. The ability of the President to effect the dismissal of the first Special Prosecutor underscores the need, at least at this time, to institutionalize the office.

An office of Permanent Special Prosecutor in the Department of Justice should be set up by statute and given jurisdiction to supervise investigations and prosecute all wrong-doing where an officer of the Executive, Legislative, or Judicial Branch of government is involved. The office should have authority to investigate election fraud and assist grand juries in handing down indictments whenever appropriate. Appointment to the office should be made on a nonpartisan basis, subject to Senate confirmation, for a fixed term of at least six years.

This recommendation does not go as far as the proposed legislation before the Senate (S.2803) which would establish the Department of Justice as an "independent establishment of the United States." The meaning of "independent establishment" is not entirely clear. But this Panel believes that the Attorney General and the Justice Department play such key roles in the Constitutional responsibilities of the President that they should not be removed from his overall direction. The Panel's recommendations, together with its other proposals to depoliticize the Department, would accomplish the objective of independence in the prosecution of Executive Branch wrongdoing-which is the critical area. The proposal for a Permanent Special Prosecutor should be regarded as a transitional arrangement, the need for which would wither as the Department moved from its present political role to one of a non-political law office. In the interim, of course, the independent status of the Permanent Special Prosecutor must be assured by the President, the Attorney General, and the Congress.

Ex Parte Contact With Justice Department Officials

Ex parte contacts with the legislature are regulated by the Federal Regulation of Lobbying Act of 1946. The Act does not make lobbying illegal, but rather it merely requires registration of the lobbyist. The Executive Branch, and in particular the Department of Justice, is also the subject of extensive lobbying. The so-called ITT affair is replete with special pleadings, both from within and without the Executive Branch, and is but one example of the practice.

The Panel believes that the Justice Department should move to enforce the existing requirements that all employees keep a record of contacts by outside individuals seeking to influence the disposition of particular matters.

Access to Department Reports and Files

One of the most fearful concerns in the last decade relates to misuse of Department of Justice investigative files and reports. Nonetheless, White House staff members and even some outside of government apparently gained acces to reports and files of various bureaus and divisions of the Department.

To insure that such information leaves the Department only for law enforcement purposes, statutory prohibitions on disclosure comparable to that for federal income tax returns should be enacted.

THE CONFLICT OF ROLES IN THE JUSTICE DEPARTMENT

Apart from the political problems discussed above, the Attorney Genral and his Department of Justice have been called upon to perform in inconsistent roles. In the first place, the Department controls the major investigatory and police forces of the national government. It has wide discretion as to which cases it will pursue or delay or drop. It prosecutes cases for the national government, and in criminal cases that end in conviction, the defendents are remanded to the "custody of the Attorney General." They are then sent to federal prisons, also within the Department of Justice. After imprisonment, their eligibility for parole is decided by boards within the Department of Justice. And Presidential pardons-or executive clemency as the phrase has come to be known in Watergate-are usually a result of recommendations of the Department.

In other words, virtually the entire system of criminal justice of the United States is under the jurisdiction of a single officer, the Attorney General, and under one organization, the Department of Justice.

Whether or not these various powers of the Department of Justice have been abused, the possibility of abuse is present. The appearance of such a possibility is as important as its existence. A defendant might properly argue that the office which investigates and prosecutes him should not have influence in picking his jailer and parole board as well. To the knowledge of this Panel, such a combination of responsibilities under a single agency exists in none of our state or local jurisdictions. Nor does it exist in other nations of the free world.

There has not been a study for many years of the roles, responsibilities, and internal organization of the Department of Justice. Such a study is now long overdue. It is particularly desirable at this time in view of Watergate and of the long-delayed opportunity to look into the FBI following the death of J. Edgar Hoover.

The Panel recommends that the Congress initiate an intensive study of the entire Department of Justice in the direction of making it the principal law office of the United States government and, as far as possible, divorcing it from other responsibilities. Among the activities which should particularly be considered for transfer elsewhere are: managing the prison and parole system, operation of the program for local law enforcement assistance, and management of federal controls on immigration.

The principal objectives of this chapter are: (1) to divorce as far as possible the operations of the Department of Justice from partisan politics, and (2) to make the Department the law office of the United States and, for this purpose, to separate from it other responsibilities with which it has been burdened. It seems doubtful to this Panel that an "independent" legal department could satisfy the legitimate needs of any administration. The Attorney General should remain a loyal member of the cabinet, but he should be backed up by a highly competent and impartial corps of attorneys.

[Reprinted by permission, National Journal, vol. 2, No. 6, Feb. 7, 1970] CENTER FOR POLITICAL RESEARCH STUDY/THE JUSTICE DEPARTMENT (By John W. Ingle)

To people in the South-black or white-the Justice Department is the Civil Rights Division, John Doar at the University of Mississippi, Nicholas deB. Katzenbach meeting Gov. George C. Wallace in the schoolhouse door.

To the man in business, it is the Tax Division or that new antitrust law enforcer, Richard W. McLaren, who has taken on the conglomerates.

To the Westerner, it may be the Lands and Natural Resources Division, which is lawyer for most of the territory as far as he can see in any direction. A man who has traveled the nation extensively for the Justice Department says it is a continuing surprise to him that people tend to see the entire department in the small part of it which affects them most directly. All of their images are correct, but none is complete.

The man from Justice might have found this same myopia inside the department itself. Lawyers in the Civil Rights Division, for instance, are only vaguely aware that a Tax Division exists solely to enforce the Internal Revenue Code. Even the boss of this vast department, Attorney General John N. Mitchell, readily admits that he has it under control "only because of the people I have running it."

One hundred years old this year, the Justice Department has evolved from a tiny office of legal advisers to the President to become the largest law office in the world. It has only one client: The United States government.

HISTORY

Before 1870, federal law enforcement was decentralized both geographically and by department. There was an Attorney General-his office was created by the Judiciary Act of 1789-but he was little more than legal adviser to the President. The U.S. attorneys-then as now-were the principal enforcers of federal law out in the states. Their independence was even greater then than now (see "U.S. attorneys" box): In the beginning, they did not even report to the Attorney General. Further fragmenting the federal legal structure, each department had its own lawyers representing its interests in court, independent of any coordinator of policy.

In the nation's early years, this was not an unreasonable system. There was little federal law and federal programs were almost non-existent.

Part-time job

When the seat of government moved to the District of Columbia from Philadelphia in 1800, according to a 1904 history of the Justice Department by James S. Easby-Smith, there was so little legal work in the federal government that Attorneys General "remained at their homes and transmitted their advice and opinions by mail, going to Washington only when it became necessary to appear before the Supreme Court."

Attorneys General were not "full-time" government servants until President Franklin Pierce's man, Caleb Cushing (1853-57), moved to Washington, demanded and obtained authorization to hire several clerks and refused to engage in outside law practice as long as he held office. Since Cushing, Attorneys General have not maintained private law practices while in office.

As the scope of federal activity increased, so did the duties of the Attorney General. In 1861, finally setting aside its fears that the move would place too much power in Washington, Congress gave the Attorney General supervisory authority over the U.S. attorneys. This important step permitted the Attorney General to establish broad policy for enforcement of federal law throughout the country, although prosecutorial discretion remained to a large extent in the district offices-where it rests today.

Department created

And on June 22, 1870, President Ulysses S. Grant signed a bill abolishing the Office of the Attorney General and creating a Justice Department with broad enforcement powers over most federal law.

The department's appropriation for its first year of operation was $67,320. It was also without a home of its own, operating in rented space throughout the city until Congress in 1882 bought the Freedmen's Bank Building on Pennsylva'nia Avenue opposite the Treasury Department and made that the Justice Department's first home. In 1935, the department moved into its present quarters, on Constitution Avenue between 9th and 10th Streets-a $12-million Depression project. Already that seven-story, full-city-block building is inadequate, and construction is under way on a separate building for the FBI. Role expanded

The Justice Department has expanded its activities as well, its new undertakings reflecting the times. The Internal Security Division, for example,

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was established in 1954 in compliance with regislation passed during an era characterized by the investigations of Sen. Joseph R. McCarthy, R-Wis. (1946-57). The Civil Rights Division was created in 1957, in the wake of Brown v. Board of Education (see "Courts" box) and a Little Rock, Ark., school desegregation showdown between federal and state authorities. A Consumer Protection Division is under consideration in Congress now. (See Vol. I p. 61.)

Today, the department employs approximately 36,500 people-2,079 of them lawyers—and has an appropriation for 1970 of $808.2 million. (See p. 90.)

ACTIVITIES

Attorney General Mitchell has said a number of times that the Justice Department is primarily a law enforcement agency. Once that is said, however, the question remains, "What does it do?" A listing of just a few happenings within the department over a period of two months last summer provides an insight into the variety of its functions:

The Civil Division settled an interior Department claim against the Southern Christian Leadership Conference for the cost of cleaning up "Resurrection City," the SCLC agreeing to pay a nominal sum;

The Federal Bureau of Investigation (FBI) released statistics showing that crime in the nation during the first six months of 1969 was up 9 per cent over the same period in 1968:

A Criminal Division attorney just out of law school broke the news to the U.S. attorney for the Northern District of Ohio that the Solicitor General had decided not to appeal a circuit court reversal of the U.S. attorney's prize conviction;

The Board of Parole denied the application for parole of former Teamsters Union President James R. Hoffa;

Attorney General Mitchell met a delegation of blacks protesting the Justice Department's civil rights enforcement policies, and told them to "watch what we do, not what we say";

Immigration and Naturalization Service agents raided a Southern California citrus grove where illegal aliens had worked in the past picking fruit; they found illegal aliens working the grove again, but the owner chased the agents from his land with a bulldozer;

A liaison man from the Secret Service reported to the Deputy Attorney General's Office that the U.S. attorney in a California district had refused to prosecute a man arrested by the Secret Service for threatening the President; The Antitrust Division asked for a preliminary injunction to halt a merger of International Telephone and Telegraph Corp. and Hartford Fire Insurance Co.;

One hundred police officers representing all 50 states began a 12-week course at the FBI National Academy at Quantico, Va.;

The Law Enforcement Assistance Administration announced grants totaling $1 million to the nation's 11 largest cities to help finance special crime-control projects.

A great deal more occurred-some of it far more significant-but these 10 items provide some idea of the impact Justice Department activity can have on most areas of national life.

As the national government's law enforcement agency, the department is responsible for carrying out the mandates of Congress and the courts, as well as trying to influence what those mandates will be; as the government's legal representative, it prosecutes claims for the government, defends when others make claims against it and gives legal advice to the President and the rest of the executive branch; as a department with some discretion in setting priorities for the exercise of its authority, it can influence policy in a wide scope of governmental activity.

ORGANIZATION

The department has its base in Washington and gets its direction there, but about 25,700 of its employees-70 per cent-work elsewhere. Field offices include federal corrections facilities, offices of U.S. attorneys and marshals in each of the 93 judicial districts and FBI and immigration field offices. On a smaller scale, the Civil Rights Division, Bureau of Narcotics and Dangerous Drugs, Antitrust Division and Community Relations Service have regional

offices, and the Criminal Division has organized crime "strike forces" operating in 11 major cities around the nation.

Enforcement divisions

Functionally, the department is broken down into law enforcement divisions and supporting bureaus and services. The principal enforcement divisions:

The Antitrust Division, largest of the enforcement divisions with 530 employees, guards the nation's free enterprise system against anticompetitive forces. It performs this task by enforcing the antitrust law, a loosely constructed body of statutes which permit extensive discretion to antitrust policy-makers. The division employs economists as well as lawyers to meet its enforcement obligations.

The Tax Division is the Internal Revenue Service's lawyer, representing the government in all controversies involving the payment of taxes. It is second largest of the enforcement divisions with 413 employees, including some 200 lawyers.

The Criminal Division is principally a supervisory organization, watching over U.S. attorneys' enforcement of most federal criminal law. Only its Organized Crime Section is normally involved in "front-line" investigations and prosecutions. Division lawyers often participate in the drafting of criminal legislation.

The Civil Division represents the United States in most civil legal matters. Its specific functions include defending suits against the government, pursuing government claims against individuals or groups and handling admiralty, patent and customs cases.

The Civil Rights Division enforces federal law aimed at providing equal rights for all citizens. Its specific areas of concern include education, employment, housing, voting, public accommodations and criminal interference with civil rights.

The Land and Natural Resources Division is a property lawyer charged with looking after the government's interests in nearly a third of the nation's total acreage. Its functions include protecting the government's interest in the land it now owns, acquiring new land and managing Indian properties.

The Internal Security Division, smallest of the enforcement divisions with 83 employees, enforces laws dealing with subversion and represents the government in such matters as employment security. Much of the law originally assigned to the division for enforcement has been stricken down as unconstitutional or repealed by Congress.

Two other Justice Department agencies have enforcement functions. The Immigration and Naturalization Service (INS)-second in size in the department only to the FBI, with almost 7,000 employees-administers immigration law, including admission of aliens, prevention of illegal entry and prosecution of violators of the immigration law. The Bureau of Narcotics and Dangerous Drugs in the department only since 1968-regulates the legal traffic in drugs and prosecutes the illegal traffic.

Services

The department's principal law enforcement "service" agencies are the Federal Bureau of Investigation (see "FBI" box) and the Bureau of Prisons, which administers sentences imposed on federal offenders. The Bureau of Prisons has approximately 25,000 people in confinement in prisons, youth centers and a medical center.

The Law Enforcement Assistance Administration (LEAA), created in 1968 as part of an omnibus crime control program, administers the department's only major grant programs. The LEAA distributes federal funds to local law enforcement agencies to finance improvements in the quality of the criminal justice system.

Finally, the department has two small law firms in the service of the government, an Administrative Division to manage its own affairs, and several highly specialized agencies performing functions outside the department's main activity of enforcing the law.

Law firms

The Office of Legal Counsel is the Attorney General's own law firm, advising him and others in government, through him, on legal questions. The office also prepares briefs supporting opinions and positions of the Attorney General. The

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