to appropriate committees of Congress. Excessive claims of executive privilege could and should not be invoked by them. Further, the President will get the benefit, if the Attorney General and his ranking colleagues are selected properly and insulated from politics, of far more objective advice than White House staff counsel are likely to provide. The recent report of a panel of the National Academy of Public Administration to the Senate Watergate Committee, in my view, gives compelling documentation of the dangers of an ever-burgeoning and overpowerful White House staff-originally designed merely to assist the President in the transaction of Government business."

Senator ERVIN. Someone has remarked that this White House staff was originally set up to be of assistance to the President, but they have converted themselves to Assistant Presidents.

Mr. GOLDBERG. That is correct. And Senator, you and I will recall that when the White House staff and assistants were appointed under President Roosevelt's administration, they were designated as "anonymous assistants," who were essentially designed to perform a liaison function, to keep the business flowing, not to act, as you have indicated, as Assistant Presidents or, as your hearings disclosed, sometimes as Presidents. It seems to me that they sometimes even go a step beyond that, making decisions which apparently, in their discretion, they may or may not have thought necessary to bring to the attention of the President.

Importantly, the advice of the Department of Justice to the President should appropriately be, in large measure, in the public domain. If the Freedom of Information Act does not currently insure this, it should be amended to so provide.

Except in cases of genuine national security-strictly defined by law, not in the amorphous state in which it now exists-virtually all activities of the Justice Department, including advice to the President, should be made public.

(4) The establishment by Congress of a Joint Oversight Committee to monitor the operations of the Department of Justice, just as the Joint Committees on Atomic Energy, Congressional Operations, Defense Production and Internal Revenue Taxation monitor the operations of the agencies with responsibility in those areas. Just as there is a compelling need for congressional oversight in these cases, I see a similar necessity in the highly sensitive area of the administration of justice. This would not require any substantive legislation, as it is within the power of Congress to establish such a committee.

(5) The Attorney General and all other Justice Department employees should be prohibited from advising the President concerning his private affairs or his political and reelection activities. As to these matters, the President is not acting in the performance of the duties of the Presidency, but as a candidate for office or in a private capacity. Such advice should be left, in election matters, to attorneys for the political parties, to be paid for by them; or, in private matters, to the President's private counsel, to be paid for by him. Here too, this could be accomplished by assurances to the Senate in confirmation hearings, by a self-denying ordinance, or by

appropriate legislation. Legislation of this type clearly would be sustainable under the necessary and proper clause of the constitution, as would the other legislation I have proposed.

In saying this, I do not mean to intimate that even under present laws it is appropriate for lawyers for the Government to serve the President in his private capacity and be paid for out of Government funds. I do not believe that present legislation permits this. But if we need additional legislation, let us have it, because a very important principle is involved; namely, that the Government is not chargeable without private activities, the private activities of Government servants or officials.

Another measure I propose is for Congress more vigorously to exercise its constitutional responsibility-and I refer here to the Senate to advise and consent to Presidential nominations for Attorney General and other high Justice Department posts by carefully scrutinizing the qualifications of Presidential nominees for these important offices. The Attorney General and his associates, all must agree, play a crucial role in the administration of justice. The inquiry, with all respect, should not be confined to the legal competence of the nominees, which of course must be established, but should extend to the integrity and character of the nominees. This proposal requires no implementing legislation; it merely requires Congress to perform its existing constitutional and statutory duties. One of the traditional concepts applicable to the bar at large is too often overlooked in senatorial confirmation hearings involving nominees for Attorney General, Assistant Attorney General, Deputy, and U.S. attorneys. That concept-which I fear, Mr. Chairman, in the day of the organization man and big interests which lawyers are called upon to serve, is too often overlooked-is that the bar is independent, that it is not a servant of a client, but services a client; and that the men and women of the bar are independent and give counsel and advise independently. The principal law enforcement officers of the Government should be lawyers in that sense, and not organization men, even if the organization is the President. Any nominee of a different mind or character should not be confirmed by the Senate.

With respect to Senator Cranston's proposals, I believe that if the Attorney General and the Department of Justice are truly independent, there would be no need for a Special Prosecutor. The question of a Special Prosecutor developed, Mr. Chairman, out of your hearings because of involvements by high ranking officials of the Department of Justice in matters which they should not have been involved in-or at least it was demonstrated by evidence, they had a duty to be involved in, but not in the way in which they were involved.

In any event, however, it would seem to me that Congress has the reserved power to appoint a Special Prosecutor if the circumstances warrant. Perhaps this subject could be explored by the Commission Senator Cranston proposes. I make the statement because I do believe that we have a tendency in our country to seek to create other offices, instead of focusing responsibility and insisting upon its proper exercise on the part of Government officials.

As a former Secretary of Labor, I decry the diminution of the Cabinet in American governmental life, a diminution of the status of the Cabinet, which has been going on now under several administrations.

If I may interject a personal note, when President Kennedy asked me to serve as Secretary of Labor, I said I would serve on one condition. That condition was that no one at the White House was to have anything to do with labor affairs. And I put a simple question to the then President-designate, and that question was this: You are asking me to act, I assume, because you think that I am competent in the field and, presumably, the greatest competence of all of the people that you have in mind. If that be the case-and he said that it was then why would I have to solicit the advice of a member of your staff or even talk to him about such matters. We are no further away than the telephone. I, of course-you are the President-I will, of course, talk to you; and you are always at liberty to talk to me.

Part of the difficulty with the status of the Cabinet is a misunderstanding of what happened in President Lincoln's administration. One story about President Lincoln's Cabinet goes that having polled his Cabinet on a critical matter and taken a vote the President then said there are nine votes for, my vote is aye, the ayes have it.

Now, people overlook something which is no longer present anymore in our situation. He polled the Cabinet; they voted. Therefore it was a matter of record, and that fact was bound, although not in that particular instance, to have a profound effect on the President. I can say, in my experience, that both today and recently in modern times, Cabinets are not polled; they do not vote. The President does not get the benefit of having men of eminence-and they should be men of eminence-state frankly their views and record them for the record, of how a Presidential decision or governmental decision should be taken.

And that is why I argue for an independent Department of Justice in the sense in which I have described. Let us appoint eminent Attorneys General, and let them be men who are capable of saying to a President, no, the law does not permit this; I will not permit this; and you must not engage in activities such as have been contemplated.

This is, in effect, the thrust of my presentation. And I thank you for the opportunity to present these views.

Senator ERVIN. If I construe your statement correctly, you deplore what I think is a national obsession among American people, and that is, when anything goes wrong, to pass some more laws without bothering to see what laws we already have on the books. And you emphasize, I think rightly, that government will work under our present system extremely well if you have the right persons in public office.

Mr. GOLDBERG. I agree with that. There is no substitute for integrity, as well as competence. Perhaps, Mr. Chairman, I would rate character and integrity even before competence, which ought to be assumed.

Senator ERVIN. I always liked the slogan that the Squibb medicine company has: "The priceless ingredient in every compound is the

integrity of its maker." And I think that if we always had men of integrity in the various posts of government who had principles, and ethics they would adhere to, we would need very little law as far as the administrative process of government is concerned.

Mr. GOLDBERG. I agree with that entirely.

Senator ERVIN. I am very grateful to you for pointing out so many things that can be done here; and I share your concern about what has happened during the past several years to the Cabinet. There used to be a day in our history when Presidents as a rule picked out the best men they could find for the various Cabinet posts, men who were competent in the fields that that post dealt with. And the President relied, upon their advice. And when the Cabinet was assembled, you had men there who were competent in virtually all of the fields of government is primarily concerned with, and the best advisers the President could possibly get.

I have never understood, since there are so few Cabinet posts, why a President cannot converse with members of the Cabinet about anything within the domain of a particular department that concerns him. And we have had a process here under which members of the Cabinet have been really excluded from access to the President. Mr. GOLDBERG. I do not understand that either, Mr. Chairman. And I must say in all candor, I do not see how any man or woman of real eminence could consent to serve if he or she did not have direct access to the President.

It used to be an old tradition that was observed, I think, at least in part when I was Secretary of Labor, that if a Cabinet officer wanted to talk to the President through his White House phonethat is why he has one in his office and in his home-that no one was to stand in the way of a direct communication to the President. I gather from what I have read, that this has disappeared from the American scene. You must go through a Presidential aide, and he determines whether or not he believes it is advisable for the Cabinet officer to communicate with the President.

Senator ERVIN. I think that you have made some most constructive suggestions.

There are so many political appointees in the Justice Department who would come before a congressional committee and express views on legislation which were obviously not in harmony with our fundamental principles-I think particularly in respect to the impoundment of funds.

Mr. GOLDBERG. Yes.

Senator ERVIN. And, if the Constitution is clear on any point, it seems to me, it is clear on the proposition that the power of the purse belongs to Congress. And if the President wants to disapprove of an Act of Congress, the only thing he can do is veto it and give Congress an opportunity to pass the measure over his veto.

Mr. GOLDBERG. Now the courts have so held.

Senator ERVIN. Yes.

Mr. GOLDBERG. Part of my philosophy is that if the Department of Justice is to function truly independently, it should function publicly. For example, the President should have asked for an opinion from the Attorney General on the impoundment question;

and that opinion should have been made public. That is the public's business; there is no secrecy about that. Now that procedure in itself would, in my opinion, insure far better advice to a President than apparently the President may have been receiving. Because if a lawyer of eminence looked to his own position he could not possibly advise the President of the United States that he has authority contrary to the Constitution to substitute himself for the Congress, which as you have stated it correctly, as the Supreme Court has stated it has the power of the purse.

Senator ERVIN. Yes. Only yesterday the Supreme Court handed down a decision along this line. Of some 30-odd decisions of all Federal Courts on this position, all of them were adverse to the position taken on the law by the officials sent by the Department of Justice to testify before Congress-and I was informed that when one of the eminent lawyers of the Department of Justice was asked to come down to defend the position, he said it was indefensible. There is no reason a lawyer who finds himself in the position of Attorney General or in any other post in the Department of Justice, should not give the President the same kind of advice that a reputable lawyer of integrity would give to a client.

Mr. GOLDBERG. Indeed, Mr. Chairman, that is his professional obligation.

Senator ERVIN. Yes.

Mr. GOLDBERG. I would even carry it a step further. I would think that it would be appropriate if there is a difference of opinion, as sometimes there is among lawyers, to make public or at least make available to Congress and through Congress to the public, the fact that in the Department there has been a difference of opinion. We never hear about that. We get a monolithic report about an ultimate decision. And one of the reasons I suggested a joint oversight committee is that on the important matters, Congress could have before it the play of opinions that enter into important decisionmaking by a Department of Justice.

Senator ERVIN. Is it your opinion that the administration of justice would improve by making all except a few people, like the Attorney General and Deputy Attorney General, in the Department of Justice subject to Civil Service?

But what about the U.S. District Attorneys and Assistant District Attorneys General?

Mr. GOLDBERG. I would rather leave anyone subject to senatorial confirmation out of civil service.

I happen to believe that it is the right of an administration in office to have a point of view about the administration of justice. That is quite different from interfering with a particular case. It is a legitimate difference of opinion as to whether crime laws ought to be made more strict or more liberalized, consistent with our constitutional requirements.

Now, I would think that that is the right of a President to have a point of view, to submit it to the electorate and, if the electorate supports it, then to put forward such a program and to have people in the policymaking position sympathetic with such a program.