I would think, however, that it is the right of Congress and the Senate to have its point of view, because they also are elected and the Constitution vests in them the responsibility to review the appointments; and advising and consenting has, I think, been misunderstood. I think it is misunderstood that a President has a right in a broad way to have anybody he selects confirmed unless it can be demonstrated that that person has previously had his hand in the cookie jar. I think that denigrates the role of the U.S. Senate, under our Constitution. There is a check and balance which must be employed.

But having said that, I would say Presidential appointees should be appointed by the President; the Senate ough to review them; and, having reviewed them, all appointees should be held accountable for their operations. The best way to make them accountable: publicity and reporting to Congress to oversee their functions.

Senator ERVIN. It is certainly true that in this instance, as you state your position about the President's having the right to establish his own policies and have men in office to carry out those policies in their respective spheres, there is no doubt that there may be several ways to reach the same good objectives. And that is the reason we have different political parties and differences of opinion in the population.

Mr. GOLDBERG. Yes.

Senator ERVIN. And it does more for a democratic society than to have just one way pointed out and one group of people constantly in power to say which way they are going to travel.

Mr. GOLDBERG. In my own experience, Mr. Chairman-I will go back to my Cabinet status-I replaced nobody in the Department of Labor except the Presidential appointees. I did recommend to the President the appointment of assistant secretaries and undersecretaries. I selected what I thought was a very balanced, sensible group of men and women for these offices; and nevertheless, I thought it proper that these men and women be of the general point of view that President Kennedy and I had with respect to the administration of the labor laws of this country.

However, this is a far cry from saying that, in applying existing law to a particular case, that in any way they should have been influenced in the decision of a law with respect to that case.

Senator ERVIN. Do you have some questions?

Professor MILLER. May I ask one?

Senator ERVIN. Yes.

Professor MILLER. Mr. Goldberg, I was unavoidably late and I did not hear all of your testimony, so perhaps you could address this. But if not, would you address yourself to the question of the constitutional power of Congress to remove the Department of Justice from under the control of the President.

Mr. GOLDBERG. I have recommended this not be done.
Professor MILLER. I know that you have.

Mr. GOLDBERG. I do not believe that the chairman's bill has done. this, because he provided-as I read the bill-for appointment by the President and removal from office by the President. I think that it is within the constitutional power of the Congress to create regulatory

agencies, and I think under the necessary and proper clause, the Congress could designate the Department of Justice as the equivalent of a regulatory agency, with all of the attributes that we now vest in the SEC,1 in the Federal Communications Commission and so on. That could be done. And I have no doubt about the constitutionality of doing so.

I have not supported that proposal for the reasons that I have stated in my testimony.

Professor MILLER. Ås a followup on that, sir, just one further question.

What do you do with the argument that the Executive power includes the power to prosecute and that Congress cannot interfere with that Executive power, under article II of the Constitution?

Mr. GOLDBERG. I would answer that by saying I see nothing in such a proposal which militates against that Executive power. Many of the activities carried our by regulatory agencies are what we term "Executive Inherent," but the Constitution does not, in its separation of powers clause, provide for water-tight compartments. There is a mixture of powers that occurs. It is a pragmatic instrument of Government; and as a pragmatic instrument of Government, I think it could operate in that fashion. The President, still, under this system, as proposed, I do not support it but as proposed, appoints the Attorney General, subject to senatorial confirmation. And also I don't think that part of the bill, which proposes that the Attorney General, not the President, appoint U.S. attorneys, for example, is unconstitutional.

Congress has provided, for example, that in existing departments of the Government, the administrative secretary of departments is now appointed by the Cabinet officer concerned. That, I do not regard to be unconstitutional or diminishing the Executive power of the President.

Professor MILLER. In fact, there is a constitutional provision to that effect, is there not, sir? To permit the investigating of appointed officers and other officers of Government, including the courts?

Mr. GOLDBERG. Yes.

Professor MILLER. So it is a fair conclusion to say that you see no constitutional impediments, at least to the spirit of Senator Ervin's bill?

Mr. GOLDBERG. That is correct.

Professor MILLER. No further questions, sir.

Mr. EDMISTEN. Mr. Justice Goldberg, you mentioned in your statement that perhaps the Senate should extract a pledge from an Attorney General who comes up for confirmation that he will not engage in political activities during his tenure.

I would suggest that those pledges have been extracted and extracted, indelibly printed-here is one on paper to Senator Ervin. In 1969, an Attorney General said:

From the termination of the campaign henceforward, my duties and functions would be related to the Justice Department and as the legal and not political adviser to the President.

1 Securities and Exchange Commission.

Well, in this particular case it did not work, and in fact, as Senator Ervin has pointed out, the Attorney General has really become the political adviser to the President, in place of the Postmaster General, who used to be.

Do you not believe that those promises might be just a little hollow?

Mr. GOLDBERG. Well, there are two answers I would make to that. The first relates to the question of integrity of the man selected. No system devised can guard against men or women who will not keep solemn commitments they made. On the other hand, we have the recent examples of Attorney General Richardson and Deputy Attorney General Ruckelshaus keeping a commitment.

The second answer to that would be that I think oversight is required. Justice, you know, goes to the very foundations of Government. The Bible says, "Justice, justice, shalt thou pursue." It is a fundamental part of our Government. If we have to oversee, as we do, the taxation matter, the atomic energy matter, which we do, we certainly have to oversee the administration of justice, particularly in light of the shock to the American people that justice has been manipulated in our country. So I would provide that safeguard.

There is the additional safeguard of the public factor, which I regard to be very important-the availability to the press and to the public of what is being done. There has been too much secrecy in this area. I do not conceive that a lawyer/client relation, in the traditional sense of confidentiality, applies with respect to the public business. A President and Attorney General do not enjoy in public business what a private client and lawyer enjoy-a privilege. There is no privilege in the public domain, because the public is entitled to know what is going on.

Mr. EDMISTEN. Mr. Justice, I have asked this question of every witness. It is particularly apt to you, as a former Cabinet member.

When a Cabinet member serves, and he immediately resigns that position and becomes the director of the campaign of the Presidential candidate, does he not take along with him the entrapments of power and parts of that office, and should there not be a waiting period of some kind?

Mr. GOLDBERG. Yes. I originally wrote in a provision in my testimony, and then I took out the sentence. I wrote a provision that said perhaps there ought to be a provision written into law preventing a person occupying an office like Attorney General from not only engaging in political activity, but for a considerable period not engaging in legal activity involving the Government. I took it out because of a reason, and my reason is that adequate provision has not been made for people occupying Cabinet offices in the pension area. Now I say that very frankly here, not in a personal sense. I myself adopted a self-denying posture. When I became Secretary of Labor, I said I would never return to the labor field. I have not.

Why did I take it out? Because men and women occupying Government offices, Cabinet offices, have to make a living. And how do they make a living if they cannot practice their profession, particularly since no provision has been made for them? A very eminent Cabinet officer and I had a conversation not so long ago I would

prefer not to mention the name of the person-had served the Government with great fidelity for 8 years. I asked him what his Government pension was; it was $520 a month-less than what I had previously negotiated for steel workers.

Now you cannot ask a man like that not to return to his profession. He must make a living. He did not happen to be a wealthy man. In Britain there are regulations governing this. The Lord Chancellor, who participates in selection of judges and recommends the appointment of judges, whose recommendations are uniformly accepted by the Prime Minister, never returns to the practice of law. But they have a system to take care, in a financial way, of Lord Chancellors, by designation to other bodies like public boards and so on and so forth, which do not relate to this.

We are remiss in this area. If we are going to exact, as conditions, prohibitions against ins and outs, then we ought to adopt provisions to make it possible for people not to go in and out.

Senator ERVIN. I think Congress should study this problem. Now I would like to make some comments on the Constitution. Some people take the view that Congress cannot do much in this field because of the provision of the Constitution that says that the President should take care that the laws be faithfully executed. But it seems to me that that argument is invalid because the laws which the President is charged with the duty of faithfully executing are passed by Congress and not laws made by him.

Mr. GOLDBERG. That is correct, with-you will agree with meone addition: the supreme law of the Constitution.

Senator ERVIN. Yes.

Mr. GOLDBERG. There, the President and the Congress and judges and everybody else are sworn to uphold and defend the Constitution and the laws of this country.

Senator ERVIN. Thank you very much for a most constructive paper. You have made some very valid recommendations, which I am certain the committee will adopt in part, anyway.

Mr. GOLDBERG. Thank you for the opportunity.

Senator ERVIN. Would the Counsel call the next witness.

Mr. EDMISTEN. Mr. Chairman, the next witness is Hon. Richard G. Kleindienst, former Attorney General of the United States.

STATEMENT OF HON. RICHARD G.

KLEINDIENST, FORMER

ATTORNEY GENERAL OF THE UNITED STATES

BIOGRAPHICAL SKETCH OF RICHARD G. KLEINDIENST

Date of Birth: August 5, 1923.

Place of Birth: Winslow, Arizona.

Parents: Alfred R. Kleindienst, (Mother deceased; Gladys Love of Concord, Massachusetts).

My father and grandfather, J. E. Kleindienst, were both born in Washington, D.C. My grandfather pioneered to Arizona in 1906. My father was the Post Master of Winslow, Arizona under the administrations of Harding, Coolidge and Hoover. In addition to his business activities, he served for 12 years as a member of the Arizona Industrial Commission, administering the Workmen's Compensation Law. He is now retired.

Graduated from Winslow Public High School.

Served approximately four years in the Armed Services, concluding my service as a Navigator in the 15th Air Force in Italy, receiving honorable discharge as a 1st. Lieutenant.

Graduated from Harvard College, 1947, Phi Beta Kappa, and Magna cum

laude.

Graduated from Harvard Law School, 1950.

Legal experience: Law Clerk, Ropes & Grey, Boston, Massachusetts-2 years. Associate and Partner of Phoenix firm of Jennings, Strouss, Salmon & Trask, 1950-1957.

Senior Partner of Phoenix firm of Shimmel, Hill, Kleindienst & Bishop, 1958 to January, 1969.

Deputy Attorney General of the United States, January 1969-June 1972.
Attorney General of the United States, June 1972 to May 1973.
Private Practice of Law, Washington, D.C., May 1973 to present.

Member of Maricopa County Bar Association; Arizona Bar Association; American Bar Association; President, Federal Bar Association, September 1972 to September 1973.

Member of Labor Section, American Bar Association.

Admitted to practice before: United States Supreme Court; Supreme Court of Arizona; United States Court of Appeals for the District of Columbia ; United States Court of Appeals for the 9th Circuit; United States Court of Claims; United States Court of Military Appeals; United States District Court for the District of Arizona; United States District Court for the District of Columbia.

Engaged in general practice of law for 20 years, including trial, U.S. administrative practice and appellate work before abovementioned appellate courts.

Personal Family: Married to Margaret Dunbar of Cleveland, Ohio, who graduated from Radcliffe College Phi Beta Kappa and Magna cum laude. Children: Alfred Dunbar, Graduated Harvard College, 1971; Wallace Heath, Senior, Ohio Wesleyan University; Anne Lucile, Sophomore, Ohio Wesleyan University; Carolyn Love, Freshman, High School.

Religious Activities: Member of Protestant Episcopal Church; Licensed Lay reader, 28 years; Former warden and former member of Executive Committee for Arizona diocese.

Civic Activities: Past and/or Present Member, Officer or Director of the following organizations: American Legion; Veterans of Foreign Wars; Urban League; Goodwill Industries; Arizona and American Heart Association; Phoenix Day Nursery; Phoenix and OEO Small Business Development Center; Phoenix Symphony Association; Sigma Alpha Epsilon; Phoenix Thunderbirds; Arizona Club, University Club; Georgetown Club; Washington National Symphony.

Political Activities: Member, Arizona State Legislature, 1953-1954; Chairman, Arizona Young Republican League, 1955; Chairman, Republican State Committee, 1956-1960; 1961-1963; Member, Republican National Committee, 1956-1960; 1961-1963; National Director of Field Operations, Goldwater for President Committee, 1964; Republican Gubernatorial candidate, Arizona, 1964; National Director of Field Operations, Nixon for President Committee, 1968; General Counsel, Republican National Committee, August through November, 1968. Hobbies: Golf; Chess; Classical Music; Art.

Mr. KLEINDIENST. Mr. Chairman, how are you this morning?
Senator ERVIN. Just fine.

We are delighted to welcome you to the committee. We appreciate your willingness to come and give us the benefit of your views concerning this legislation.

Mr. KLEINDIENST. Thank you, Senator. It is an honor and pleasure for me to be here.

Senator ERVIN. We would be glad to have any suggestions you have to make, because I have always heard that experience is the most efficient teacher, and you have had experiences dealing with this.