pending case, that is wrong or if anybody picks up the telephone and talks to somebody in the Justice Department in the name of the President, that's wrong.

Professor MILLER. Just one question, Senator, if I might.

I'm sorry I was late, Mr. Goodell. Have you addressed the constitutionality of the proposal of the chairman and, if so, would

you

Mr. GOODELL. No, I did not. I think there is some serious question of the constitutionality of setting up an independent Department of Justice which would not be subject to the jurisdiction of the President.

However, I think with the proposal that I made we would not have to face that question. My proposal is a limited independent prosecutor, which I think is clearly constitutional, to investigate and prosecute specific types of cases; namely, those involved with the election laws, with former or present Federal public officials, and lobbying activities-violations of lobbying laws.

I think in those areas we clearly have precedents and I think this is acceptable constitutionally, including the precedent we are establishing now with Watergate.

Perhaps my colleague with me here, Leon Friedman, would have another comment on the constitutionality.

Mr. FRIEDMAN. If I can just add one thing. Apparently the only constitutional provision is the command that the President shall execute the laws, and I take it that part of the execution of the laws is the prosecution of the laws, at least-I don't know if this has come up. There have been special cases, emergency situations, where Special Prosecutors distinct from the Attorney General have-independent of the President-been appointed, and I take it that's the precedent for the kind of proposal which we offer here, but there are sufficient problems, I think, more important than the constitutional problems, the policy considerations that would dictate against that kind of

Mr. GOODELL. Mr. Chairman, I would agree with that. We start with the notion-or the fact that the Constitution is silent on this question. The Constitution does not set up the various deparments in the executive branch; it does not provide for a Department of Justice; it merely provides the President shall be responsible for executing the laws. So the interpretation of that phrase, as Mr. Friedman says, is open to some question.

Professor MILLER. The reason I asked the question, Mr. Goodell, is that the Department of Justice's position is that the spirit as well as the letter of Senator Ervin's bill is unconstitutional; and I think the question is, accordingly, a valid one to ask.

I'd like to explore it just a little. As I understand you, you can take away a little bit of the President's power to enforce laws, but not all of it. Is that your position?

Mr. GOODELL. Well, in the first place, perhaps I-because I discussed what my proposal was, I think I evaded an answer to your question. Let me answer it directly.

I do not think the bill is unconstitutional. I think Congress can separate the Department of Justice constitutionally if they wish. I

think that, however, we have no precedent for it, so it would be a new area for the courts to rule on and it's a matter then of what the nine Justices of the Supreme Court decide "execute the laws" means; but I think we have ample precedent, approved by the courts all the way to the Supreme Court, of Special Prosecutors for specific purposes.

Professor MILLER. Thank you sir.

Senator ERVIN. The Congress has the power to provide for the President the instrumentalities by which the law is to be enforced, and, in your judgment, in the case of an emergency, this would justify Congress' establishing an Office of Special Prosecutor? Mr. GOODELL. Yes, I agree with that, Mr. Chairman.

Senator ERVIN. Thank you very much.

Counsel said he has a couple of questions.

Mr. EDMISTEN. Senator Goodell, you mentioned in your first suggestion that before a person who has been a campaign manager_can become, say, a Cabinet member-more specifically, Attorney General-there ought to be a 2-year waiting period. Don't you think there ought to be a waiting period when an Attorney General resigns, to prevent him from immediately becoming a campaign manager and taking with him all the trappings of power of that Department?

Mr. GOODELL. Ethically, yes. I would come back again to my reservation that I expressed as to that. I don't believe that I would write that specifically into the law, but I think that when you carry the trappings of power across the street or down the street to a campaign committee, it opens not only the possibility but, I would say, the probability of improper legal activities. It would appear that at least very improper activities resulted when Mr. Mitchell moved down the street.

Mr. EDMISTEN. Well, I won't say from whom the testimony came, but in a session of the Select Committee on Presidential Campaign Activities, there was evidence that a person who had been in government telephoned the former Attorney General the day after he had left the Justice Department to ask about a case. Now, it was quite obvious why the call was made. It was not made pursuant to the former Attorney General's being the campaign manager. So I don't see anything wrong with writing that into the law.

Mr. GOODELL. I don't have any serious objections to writing it into the law, but I must say that I have reservations. When you write into the law a proscription against somebody being involved in the political process, I think you're treading on dangerous constitutional grounds. I don't know that a person is stripped of his right to involve himself in public affairs and political affairs simply by the fact that he was in public office. And if you are going to bar him from becoming a campaign manager, are you also then going to try to bar him from becoming a candidate? I think that would be clearly unconstitutional.

I admire your objective, but I think there are very serious obstacles to doing this by a specific law.

Mr. EDMISTEN. I'm thinking more in line with your suggestion about a waiting period. It may not be as extreme.

Mr. GOODELL. Yes.

Mr. EDMISTEN. Don't you think that there's a possibility that all the attorneys and officials of the Justice Department under the Assistant Attorneys General level should be placed under civil service, including U.S. attorneys, U.S. marshals, to build up a cadre of professional people over the years?

Mr. GOODELL. Yes, but I would point out to you that most of the attorneys in the Department of Justice are in civil service; most of them are career professionals; and most of them are very capable people.

I spent 2 years in the Department of Justice back in the early 1950's and I came away with great admiration for the caliber of the people who were there. Most of them, I might say in a nonpartisan way, were Democrats, because I was there in 1954 and 1955 and most of these attorneys had been appointed under a long reign of Democratic administrations. They were very good, and it provided a stability and a professionalism that is very important to the Department of Justice.

In addition to what we have now, what you are suggesting is that this ought to be extended up to the higher levels of U.S. attorneys and assistant U.S. attorneys, and I agree wholeheartedly. I think it is unfortunate that, unlike the Department of Justice, there is often a total turnover in the U.S. attorney's office.

The U.S. attorney has the power of firing all the assistant U.S. attorneys and bringing in his own, and I think it's rather important that a great many of them carry on. I know that in the Southern District of New York, in the U.S. attorney's office, they have career professionals that have been there through a number of administrations, but there certainly is a very big turnover with administrations in the U.S. attorney's office and I think it's unfortunate. Mr. EDMISTEN. Thank you.

Senator ERVIN. Isn't there an alternative that matters of this kind ought to be settled by the integrity of the people who occupy public office?

Mr. GOODELL. Absolutely.

Senator ERVIN. A company used to have a slogan that said, "The priceless ingredient in every product is the integrity of its maker." The men who are elevated to public office ought to have sufficient intelligence to act in a manner that comports with integrity, ought they not?

Mr. GOODELL. I agree with that, Mr. Chairman.

Senator ERVIN. Sometimes I despair of getting men to adopt ethical practices by passing laws.

Mr. GOODELL. I agree wholeheartedly with that, and I would add only, Mr. Chairman, that I think they must not only have integrity, but they must have the unqualified appearance of integrity. And to make this totally unpartisan, I think that it should be not just a question of integrity.

I would cite the case, for instance, of Robert Kennedy's being made Attorney General under President John Kennedy. I think that was wrong because it gave the appearance of an involvement of the President in the enforcement of the law that should not be there-and

I had great respect, and do now, for the integrity of Senator Robert Kennedy and Attorney General Robert Kennedy, and his memory, but I don't think that was an appropriate thing to do.

Robert Kennedy had been the chief political honcho for his brother, and campaign manager, and was well-known as such.

Nor do I think, for that matter, that Herbert Brownell should have been made Attorney General under the Eisenhower administration. He was Eisenhower's campaign manager. I hasten to add that I think he was a very fine Attorney General and I served under him and, to my surprise, when I did so, I found that he was a very nonpartisan Attorney General. In fact, he set up the honor program for getting honor law graduates to come to the Department of Justice on a totally nonpartisan basis. He instituted that—and, as a matter of fact, that was one of my responsibilities, to run that program.

Senator ERVIN. If a government of democracy is to function completely, people must have confidence in the government, and to have confidence in the government, justice must not only be just, but it must appear to be just.

Mr. GOODELL. I agree 100 percent.

Senator ERVIN. Thank you very much.

Mr. GOODELL. Perhaps I should say "a thousand percent.'
Senator ERVIN. Thank you very much.

Counsel, call the next witness.

Mr. EDMISTEN. Mr. Chairman, our next witness is Hon. Nicholas Katzenbach, former Attorney General of the United States.

Senator ERVIN. I'm delighted to welcome you to the subcommittee and express to you our deep gratitude for your willingness to come and give us the benefit of your views in respect to the matters we are considering.

STATEMENT OF HON. NICHOLAS deB. KATZENBACH, FORMER ATTORNEY GENERAL OF THE UNITED STATES

BIOGRAPHICAL SKETCH OF NICHOLAS DEB. KATZENBACH

Nicholas deB. Katzenbach was elected vice president and general counsel of International Business Machines Corporation in January 1969. In November 1970, Mr. Katzenbach was elected a director.

Mr. Katzenbach was formerly U.S. Under Secretary of State, a post he was appointed to in 1966. Proviously he had been U.S. Attorney General from 1965 to 1966; Acting Attorney General in 1964; Deputy Attorney General from 1962 to 1964; and Assistant Attorney General from 1961 to 1962.

Before joining the Justice Department, Mr. Katzenbach was a professor of law at the University of Chicago from 1956 to 1960, and an associate professor at the Yale Law School from 1952 to 1956.

Mr. Katzenbach graduated from Phillips Exeter Academy and enrolled at Princeton University, but left to join the Army Air Force during World War II. The plane on which he was navigator was shot down over the Mediterranean in 1943 and he spent 27 months in prisoner-of-war camps, during which time he twice escaped and was recaptured. Returning to Princeton after the war, he completed his studies and later received an LL.B. degree from Yale Law School. He then won a Rhodes Scholarship to Oxford University from 1947 to 1949.

In 1950 Mr. Katzenbach entered private law practice with the firm of Katzenbach, Gildea and Rudner in Trenton, N.J. He later went to the Pentagon

to serve as attorney-adviser and consultant in the Office of the General Counsel to the Secretary of the Air Force until 1952 when he joined the faculty at Yale Law School.

Mr. Katzenbach is a member of the American Law Institute, the American Bar Association and the American Judicature Society. He is the recipient of honorary degrees from Princeton, Rutgers, Georgetown, Northeastern, Seton Hall, Bridgeport, Brandeis and Tufts Universities. He is also an alumni trustee of Princeton University.

Mr. KATZENBACH. I'm delighted to be here, Mr. Chairman. It's always a pleasure to appear before one so distinguished as yourself. I have got a brief statement. Would you like for me to proceed with that?

Senator ERVIN. Yes.

Mr. KATZENBACH. Mr. Chairman and members of the committee: I appreciate your invitation to appear before you this morning to discuss S. 2803, a bill introduced by the chairman, Senator Ervin, and S. 2978, a bill introduced by Senator Cranston."

While the two bills, broadly speaking, attempt to deal with the same problem-the possibility of improper political influence with respect to the administration of justice-S. 2803 seeks to meet this problem by making the Department of Justice an independent agency of the Government, while S. 2978 merely proposes a study commission to study and make recommendations with respect to the establishment of a permanent independent prosecutor.

But I think it is probably fair to state that both bills were designed to focus public attention upon the problem of political influence, and to explore a wide range of possible solutions, rather than reflect a particular viewpoint or solution to the problem.

At the outset, I should perhaps make clear that I believe, with the authors of these bills, that maintaining public confidence in the impartial administration of justice has great importance to this republic. And I would agree that the maintenance of this public confidence is a matter of appearance as well as fact. I have no doubt that recent events have shaken public confidence; that there is and cannot be any guarantee that similar events could not be repeated in the future or, for that matter, have not occurred-though very rarelyin the past. So I think both bills address a problem that has been real in the immediate past, that is always potentially present, and that is not easy of solution.

Having said that, however, I would like to put on the record as strongly as I possibly can my confidence in the Department of Justice, its personnel, and their integrity. The 6 years in which I had the honor to serve in that Department convinced me of the dedication, the professional competence, and the high ethics of the personnel who have chosen to make it their career to represent the public interest. I wish to make this point strongly because I think it is extremely important to understand that whatever the difficulties of the current situation may be, they are not difficulties which stem. from the professional staffs of the Department of Justice.

Having said that as strongly as I know how, let me add the obvious caveat that I do not believe that the lawyers in the Department of Justice are always right about the law, always right about the facts, and always take the position that best serves the public