is yet to be tried in the Watergate conspiracy case, a second former Attorney General is apparently plea bargaining to avoid perjury charges, a third former Attorney General and his Deputy resigned rather than carry out a Presidential order they considered inimical to the best interests of Justice, and the Acting Director of the F.B.I. resigned under a cloud after revealing that he had destroyed documents which could constitute evidence of a Federal crime.

William Saxbe, the Attorney General du jour, hasn't really been in long enough to commit more than semantic crimes, which are not indictable, nevertheless his comments prejudging Patty Hearst's status as a criminal have won him censure from many quarters, including the editorial page of The Times. He also stands in ambivalent relationship to the office of Special Prosecutor, of which he says, "I'll live with it because Richardson agreed to it, but I was prepared to be both." He has upset some members of Congress by opposing the Ervin Committee's request for certain White House tapes, although he says Solicitor General Robert Bork had more or less established the idea that the department would take a position on "institutional" issues like executive privilege "before I came on board"; and he probably caused some distress at the White House when he gave as his casual opinion at his first press conference that, at some point in the impeachment proceedings, the President may have to start picking up the bill for his own defense.

But the underlying issues are deeper than last year's headlines and go beyond matters of official corruption and criminality. They involve the relationship of the Attorney General to the President, law to politics, policy to bureaucracy and discretion to justice. They are important to examine because Watergate or no Watergate, the Attorney General is the chief law-enforcement officer of the United States. His department budget is near $2-billion and he employs close to 40,000 people. He sits over the F.B.I. with its vast investigative apparatus and the Law Enforcement Assistance Administration (L.E.A.A.) which annually doles out more than $700-million, mostly to support state and local law enforcement agencies. Through the Justice Department's various bureaus and divisions the Attorney General has the power to indict, prosecute, deport, enjoin and settle or litigate cases affecting tens of millions of Americans involving hundreds of billions of dollars, and adjudicated-in many cases by men appointed under the Attorney General's power of patronage.

Joseph Kraft, the columnist, once borrowed Walter Bagehot's 19th-century distinction between the "dignified" and the "effective" to describe the two different traditions in which our Attorneys General have served. He traced the "dignified" concept from the Anglo-Saxon tradition that the sovereign as well as the citizen is subject to the law of the land. "By that tradition," he wrote, "the ideal Attorney General is an upright man, learned in the law, and with the most delicate sense of fairness, who acts less as a player on the Government team than as an umpire exerting a legal check on arbitrary action of the executive." Abraham Lincoln's Attorney General, Edward Bates, reflected this view when he observed, "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 resist all encroachments, from whatever quarter, of mere will and power." The "effective" tradition finds expression in the tendency of so many Presidents to name their political managers Attorney General. There was Harry Daugherty, President Warren G. Harding's political campaign manager, who barely escaped jail for his role in the Teapot Dome scandal; Homer Cummings, who had served as National Chairman of the Democratic party under Woodrow Wilson and seconded Franklin D. Roosevelt's nomination at the 1932 convention; Howard McGrath, President Harry S. Truman's campaign manager, who resigned under a moral cloud as a result of an aborted conflict-of-interest investigation by New York reformer Newbold Morris; Herbert Brownell, President Dwight D. Eisenhower's campaign manager, and, of course, there were Robert Kennedy and John Mitchell. You don't have to be a campaign manager, however, to operate within the "effective" tradition, which, simply put, sees the Attorney General's main job as to execute the President's will. As Richard Kleindienst says, "It is impossible and undesirable to separate law and politics. In every Presidential campaign there are big issues relating to law. You can't say after the election that the President should turn the Justice Department over to some computer for the pristine pure purpose of enforcing the law."

The reality is that while Attorneys General may affect the style of one tradition or another, most fuse both traditions. The occasions are rare when they have a conflict between loyalty to the man who appointed them and loyalty to law, and when that happens, most try to satisfy the former without violating the latter. Yet ever since George Washington talked his personal lawyer, Edmund Randolph, into becoming Attorney General for $1,500 per annum (on the grounds that it would "confer pre-eminence" and help his private practice) the Attorney General has had his moments of tension with the White House. As Prof. Arthur Selwyn Miller wrote long before he became a consultant on constitutional law to Senator Ervin's Watergate Committee, the Attorney General “is a political officer charged with legal duties." Thus during the controversy in the eighteen-thirties over the national bank, President Jackson wanted his Attorney General to designate certain banks as depositories of United States funds and, when the Attorney General balked, reportedly remarked, "Sir, you must find a law authorizing the act or I will appoint an Attorney General who will."

Perhaps the most eloquent description of the process of Presidential interference may be found in former Attorney General Francis Biddle's memoir, "In Brief Authority," where he tells how F.D.R. pressured him to bring some sedition cases against pro-Nazi propagandists in the early years of World War II. "The President," he recalls "began to send me brief memoranda to which were attached some of the scurrilous attacks on his leadership, with a notation, 'What about this?' or 'What are you doing to stop this?' I explained to him my view of the unwisdom of bringing indictment for sedition. . . . He was not much interested in the theory of sedition, or in the constitutional right to criticize the Government in wartime. He wanted this antiwar talk stopped.

"He began to go for me in the Cabinet. His technique was always the same. When my turn came, as he went around the table, his habitual affability dropped. He did not ask me as usual, if I had anything to report. He looked at me, his face pulled tightly together. 'When are you going to indict the seditionists?' he would ask; and the next week and the next week and every week after that, until the indictment was found, he would repeat the same question. . . . At the Cabinet meeting a day or two after the return of an indictment he said, now in his most conciliatory manner, 'I was glad to see, Francis, that the grand jury returned a true bill."

Thus when President Nixon phoned Attorney General Kleindienst and directed him to drop the Justice Department's appeal in the I.T.T. merger cases, when he ordered Attorney General Richardson to fire Special Prosecutor Archibald Cox, when he temporarily approved the so-called Huston planwhich called for illegal surveillance-over the objections of the Director of the F.B.I., he was on one level merely the latest in a long line of Presidential interferers. Nobody suggests that the President, who is after all responsible, as an elected officer, for the conduct of the business of the executive branch, does not have a right and perhaps a duty to set legal policy. The question is at what point does the exercise of that right blur over into less than even-handed justice and become improper, if not illegal?

Ramsey Clark has suggested one dividing line, among other proposals, in a paper delivered last summer at Ralph Nader's Conference on the Legal Profession. His theory is that Presidents should set policy with their Attorneys General, fire their Attorneys General when unhappy with their work, but never get involved in specific cases. "Congress," says Clark, "should consider enacting a law prohibiting the President and his staff from directing the handling of any case or matter in the Department of Justice, and officials in the Department from following such directions, when they are contrary to law as determined by the Attorney General." His reasons: The President can't possibly know as much about a case as the attorneys working on it. The President can't possibly get to all problematic cases, so only those that come to his attention (frequently through big contributors or political connections) get special treatment, which is less than equal justice. The President often is not a lawyer and when he is, can't be presumed to know as much law as his Attorney General. Once the President is involved, a political imprint gets put on the case. "President Johnson respected my belief that it was wrong to discuss cases, so we never did it," says Clark. (A less lofty view of L.B.J.'s motives, advanced by one career attorney at Justice, is that "L.B.J. was so

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upset with Ramsey over the war and a lot of things that he stopped talking to him, period." However, the fact that L.B.J. never once talked directly to Attorney General Nicholas deB. Katzenbach about the bringing of the Bobby Baker case, suggests that L.B.J. acted with propriety in these matters.)

Consider the President's role in the I.T.T. appeal. There is debate about whether he knew of I.T.T.'s contribution of $400,000 to finance the Republican Convention in San Diego, but there is no debate that he told Acting Attorney General Kleindienst to have Solicitor General Erwin N. Griswold drop the case. President Nixon has defended his action on the grounds that he was merely implementing his antitrust philosophy that bigness is not necessarily badness, and that his, Mitchell's and other officials' conversations with I.T.T. president Harold S. Geneen were only over matters of policy. But, asks Clark, why should Geneen and other I.T.T. officials have access to the President, Attorney General Mitchell or Acting Attorney General Kleindienst, when others less well situated can't get to see anybody?

William Ruckelshaus has a different idea. "It's not the fact of the discussion that's bad but the way it was done," he says. "According to the White House, Kleindienst told Nixon that Solicitor General Griswold would resign if Nixon insisted on dropping the I.T.T. appeal. Well, when Nixon heard that, if had firm ideas on the matter he should have gotten Griswold over there. After all, Griswold was the Solicitor General. The question should be why will you resign? Am I that wrong? Is there a moral issue here that I don't see?" Kleindienst himself told me of Nixon's order, "It was a directive without any background, predicate or anything and I didn't do it for a very specific reason. You can't get a specific directive on a specific case from the White House because they do not know, except superficially, what the case or the law is about. . . . That's why I was ready to quit, especially after I was running around the country extolling [former Assistant Attorney General Richard W.] McLaren for doing something about conglomerates, a situation that Kennedy and Johnson had ducked because they said they needed legislation."

Everybody would agree that if there was a bribe in the I.T.T. case it should be punished. And most would agree that the President's abrupt handling of the matter was improper or inept. But that still leaves open the question of whether the proposal for Presidential continence in discussing cases is feasible. While many attorneys think it a reasonable guideline, there is also the feeling that it may be too rigid a rule. "And besides," offers Louis F. Oberdorfer, who headed the Tax Division under the Kennedys, "how are you going to enforce it unless you have a President who's willing to be taped?" Ruckelshaus points out, "In some cases the President has not only a right but an obligation to discuss the case. For example, suppose he thought bringing political cases against radicals was going to polarize the country?"

In the antitrust area particularly, there is a feeling that since the antitrust statutes, unlike, say, the stolen-car statutes, are a statement of business philosophy, and since it is possible to pursue divergent policies, each within the law, the President has a right not only to be heard himself but to bring in outside experts such as the Council of Economic Advisers for their judgment on the economic impact of one or another course of action. Robert Morgenthau, former United States Attorney from the Southern District of New York, notes. "The President is accountable for the actions of his Attorney General, so I guess he has the right to discuss cases." Incidentally, Tom Kauper, head of the Antitrust Division, tells me, "I don't think in all honesty I've ever been told whether there is a Presidential philosophy of antitrust," although Mr. Saxbe says that before he was appointed, President Nixon briefly discussed his bigness-isn't-necessarily-badness philosophy, and they both agreed that "this can be important when you realize that internationally we're up against cartels."

And yet, Mark Green, author of "The Closed Enterprise System" and Director of Nader's Corporate Accountability Project, points out that in the five known cases where the Nixon Administration overruled staff recommendations in antitrust cases, it turns out that each of the corporations involved was a major contributor to one or another of Nixon's Presidential campaigns. At what point, he asks, do we invoke the law of probability to reopen these cases? Wouldn't it be better, he asks, not only for the President to keep hands off, but for the Assistant Attorney General in charge of Antitrust to have the authority to bring these cases on his own?

Perhaps. But the assumption that the President sets policy and the Attorney General or his assistants execute it-whether or not they discuss casesignores the role of the bureaucracy. Attorneys General see their main day-today problem as how to get the bureaucracy moving, how to translate the President's priorities into concrete programs, immediate action, visible results. Elliot L. Richardson tried to do something about this by way of an elaborate reorganization scheme designed to convert the Justice Department from what he called "a law office" to what Harvard Business School types call a "public policy institution." But Phase I of the plan had barely gotten under way when Attorney General Saxbe, who is less than enthusiastic about many of his predecessor's efforts at reform, arrived on the scene. "We were supposed to go into Phase II of the Richardson plan a few weeks ago," says Saxbe, "but I've held it up because I'm not sure it wouldn't do further damage to morale around here." When I asked Saxbe if it were true, as has been rumored by somewhat perplexed career attorneys, that he had gone out of his way not to he replied, "Yes, that's true." Why is that? "There are two reasons. First, I menced throughout the department and particularly with respect to the F.B.I., he replied, "Yes, that's true." Why is that? "There are two reasons. First, I didn't have the time. But frankly the real reason is I didn't understand what they were talking about. I talked to Richardson several times and he talks a language I'm not familiar with. I wanted to talk about things and he wanted to talk about intangibles. He talks about things like the reorganization being based on 'major thrust'-that kind of talk."

The bureaucracy, which at its best sits as a guardian of professionalism, procedural regularity, the integrity of process, sees its job as keeping the President and his Attorney General in line. And while the embarrassments suffered by the recent parade of Attorneys General have not helped morale, they may in a peculiar way have givn the career lawyers a more sharply defined sense of their own role. "I'm not at all flattering to Attorneys General," says Henry Petersen, the career attorney who came to prominence in connection with his role in the Watergate and Agnew investigations. "Ramsey Clark and John Mitchell think they were poles apart. But from the vantage point of the litigating divisions they didn't change anything."

There is no right or wrong in the tug of war between policy and bureaucracy, but in the penumbra of Watergate the prospect of bureaucratization seems to many less fearful than the risks of politicization. Hence a second Ramsey Clark proposal: That the Attorney General or his Deputy and at least three assistants be required by law to be of a different political party than the President. Consistent with this, Clark would ban recent candidates for high political office, and their campaign managers, from high Justice Department office, on the theory that political types bring with them political perspectives and political judgments. He suggests that despite a few shiny apples in the barrel, much of the moral malaise of Nixon justice may be attributed to the parade of defeated candidates and expols appointed to top positions in the department.

"But it's nonsense to bar politicians from top Justice positions," William Ruckelshaus told me just a few weeks after he had been forced to resign in what has come to be known as the Saturday Night Massacre. "You can always find malleable people of the opposite political party. Why the fact that you've asked the voters of your state to put you in elective office should disqualify you is beyond me. The fact of the matter is a lot of the problems this Administration had with its appointees is that they weren't public men. They didn't understand the requirements of public morality. One of Mitchell's failings was he didn't care what people said about him. He used to joke that he enjoyed a good reputation until he met 'this fellow Nixon.' I've never met anyone who cared less what people thought."

Attorney General Saxbe agrees. At a recent breakfast meeting with reporters he repeatedly rejected the argument that the department should be depoliticized and said that if the department were headed by a "remote, protected civil servant," he would not "be responsive to anybody. Political patronage," he said, "has always led to responsibility."

It is fashionable to downgrade preoccupation with depoliticization proposals and such, as having to do with "post-Watergate morality." In fact, however, they reflect an attempt to do more than insulate the Attorney General from the temptations of power; they are intended to assist him to exercise his discretion

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in the interest of justice. If future Watergate-prevention were our only objective then we should direct our attention to cloning a second generation of Woodwards, Bernsteins, Siricas and Ervins, for the press, the judiciary, the Congress and the bureaucracy are our best checks against political corruption. But the most dangerous powers of the prosecutor have little to do with crime or corruption. Rather, as Attorney General Robert Jackson said in 1940, the danger is discretionary: That he will pick people he thinks he should get rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of pinning at least a technical violation of some act on the part of almost anyone. In such a case it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books or putting investigators to work, to pin some offense on him. . . . It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or government group, being attached to the wrong political views, or being personally obnoxious to, or in the way of, the prosecutor himself."

Nor is the line between proper and improper use of a prosecutor's discretion always discernible. As Thomas Griffith observed recently in Fortune magazine, "James Hoffa is probably the leading loser and gainer from discretionary justice in our times, having been the target of Robert Kennedy's special Get Hoffa squad, and then having had his sentence prematurely commuted in the Nixon Administration." Or take the tax laws. When Robert Kennedy was Attorney General there was a policy whereby racketeers were judged by the same tax standards as everyone else: but, whenever there was a case involving an organized crime figure, his folder was purposely moved from the bottom to the top of the pile. The policy was defended on the grounds that, of the 96 million tax forms filed annually, 3.5 million were audited and only 800 cases were brought, so discretion was built into the process. As long as each and every one of these cases met the requirements of tax law, what was wrong with bringing as many of them as possible against racketeers? What was wrong, as civil libertarians pointed out, was that "this time it's Mafiosi but next time it could be Black Panthers or Goldwater supporters. The purpose of the tax laws is to collect revenues. Once you bend them to catch criminals, you undermine the tax laws and ultimately destroy confidence in them. Justice has to be evenhanded. It can't be personal."

No one quarreled with the right of Kennedy as prosecutor and implementer of the President's policies to make the break-up of organized crime a top policy priority. The question was whether it was proper-in pursuit of that policy-to prosecute racketeer Joseph Aiuppa, identified before the old McClellan Committee as a gambler and gunman for the Capone mob, for violating the Migratory Bird Act/ Or was it right to prosecute Joey Gallo's brother Louis and his father for submitting false income statements on a V.A. loan application for a home mortgage?

A hypothesis: A number of the worst transgressions of the Nixon Administration find their lineage in the unwisdom of prior Administrations. The plumbers' unit, for instance, may be seen as the illegal but logical heir to such earlier operations as the Get Hoffa squad. The White House "enemies" list may indeed be the successor to such celebrated inventories as Robert Kennedy's top 40 racketeers list (it grew to over 2,000), the Attorney General's list of subversive organizations, the F.B.I.'s Ten Most Wanted List, all of which had in common that they abandoned the normal innocent-until-proven-guilty presumption in favor of a guilty-until-taken-off-the-list presumption. The break-in to the office of Dr. Ellsberg's psychiatrist may have been carried out under the same national-security umbrella which was used to justify the wiretapping of Dr. Martin Luther King Jr.'s telephone because a secret Communist was alleged (falsely, I believe) to have been in his entourage. The Mitchell doctrine that it was permissible to introduce nonwarranted wiretap evidence in court in cases dealing with domestic radicals may be only one or two steps further down the authoritarian road than the pre-Mitchell doctrine, accepted by every Attorney General since Robert Jackson, that it was O.K. to tap telephones in national-security cases without court warrants (and without specific Congressional authorization) so long as the evidence was not introduced in court. The parade of informers and agents provocateurs who infiltrated the New Left in