statements in helping to eliminate defects in the bills and thus to improve the American system of justice. That there have been abuses within the system was amply demonstrated in the public hearings conducted in 1973 by the Senate's Select Committee on Presidential Campaign Activities. That committee, which I have the honor to chair, heard testimony from witnesses that clearly revealed that the Department of Justice had been unduly politicized, at least in part. At the very least, the appearance of justice, if not justice, itself, fell into disarray. One consequence, of enormous potential danger, is the growing distrust among the American people generally of their political leaders and institutions. We must try to rectify that. These hearings are a beginning toward achieving the end of restoring trust in government. I am not among those who believe that Watergate and attendant events prove that our system of government has an inherent weakness. I do believe, however, that we must initiate some additional checks and balances, so as to prevent the misuse of the system of administration of law. The changes called for in S. 2803, and also in S. 2978, are the minimum necessary. They are not radical surgery upon the body politic. Rather, they effect needed correction of sorepoints. During our 4 days of hearings I am confident that members of this subcommittee, and its staff, will learn much from the testimony we shall hear, particularly with respect to what is desirable and feasible in effecting corrections in the system of administration of justice. We need to preserve the strengths of the system, while eliminating its flaws. The Department of Justice is the one agency in the Federal Government that has the solemn responsibility of furthering the rule of law. That concept-the rule of law-is the most fundamental tenet of the American Constitution. It is not only testimony before the Senate's Watergate Committee that reveals how far we have strayed from that ideal. Additional evidence may be found in the so-called Saturday Night Massacre, when Special Prosecutor Archibald Cox was summarily fired last October and when the Attorney General and his Deputy both resigned rather than carry out the President's order to discharge Mr. Cox. Those orders, we may note, were subsequently declared illegal by Judge Gehard Gesell of the District Court of the District of Columbia. Complaints about the Department of Justice are not new. Nor are they novel to the present administration. In 1924, for example, the Senate established a select committee to investigate charges of corruption by Attorney General Harry Daugherty and other officials of the Department of Justice. In 1953, Attorney General McGranery recommended that the U.S. Attorneys be placed in the civil service. system and that they be free to move from one district to another. It has become common in recent decades for Presidents to appoint their campaign managers to head the Department of Justice-a practice that can only lead to charges of politics interfering with the administration of justice. That practice was compounded when Attorney General John Mitchell, the campaign manager in 1968, moved to the Committee to Re-elect the President in 1972. There should be small wonder, then, that there is a growing feeling of uneasiness about the Department of Justice. All powers of the Attorney General and of the Department of Justice flow from acts of Congress. There can be little doubt in fact, I have no doubt at all-that what Congress gives, Congress can take away. The constitutionality of an independent Department of Justice or of an independent permanent Special Prosecutor cannot be validly disputed. I am aware, of course, that some commentators argue that because the Constitution says that the President has a duty to take care that the laws be faithfully executed, the administration of justice is inherently executive and cannot be altered by the Congress. I firmly reject that notion. There is not one syllable in the Constitution that says that Congress cannot make the Justice Department independent of the President. After all, Congress has established the General Accounting Office, as well as the independent regulatory commissions, all of which "execute" certain laws independently of the President. No one can validly argue that those agencies are contrary to the Constitution. I do not agree with the assertions of some lawyers that the President has certain "inherent" powers, beyond those given him in the Constitution or by statute. That view was soundly and rightly repudiated by the Supreme Court in the leading case on Executive powers, the Steel Seizure case of 1952. Under no circumstances can it be said that the Presidential duty to execute the laws means that the President can abrogate an act of Congress. Although this subcommittee, in hearings held jointly with an ad hoc subcommittee of the Senate Government Operations Committee, heard testimony to the contrary last year from the Director of the Office of Management and Budget and from the Deputy Attorney General, on the issue of Presidential impoundment of appropriated funds, that view has been firmly repudiated by the vast majority of the courts which have decided impoundment cases during the past year. The question, accordingly, is what does Congress want to do with respect to the Department of Justice. I have become convinced of the utter necessity of removing the Department, insofar as it is possible, from the play of partisan politics. S. 2803 would remove the Attorney General from the President's cabinet and make the Department independent of the Chief Executive. Much like the regulatory commissions, the Attorney General, Deputy Attorney General, and Solicitor General would be appointed by the President for 6-year terms, subject to Senate confirmation. All subordinate officers in the Department, including the Director of the Federal Bureau of Investigation, would be appointed by the Attorney General. The officers appointed by the President would be removable by the Chief Executive only for neglect of duty or malfeasance in office. They, accordingly, would be protected under the doctrine of the Humphrey's Executor and Wiener cases. I should like to repeat that S. 2803, as now written, is a framework for discussion, rather than a finished product. No doubt the testimony we shall hear will help the subcommittee to improve it. We have sought to obtain the views of experts in the field, both those who might support the objective of the bill and those who might oppose it. I am confident that the ensuing dialog will help the subcommittee to clarify its thinking about this extremely important subject. As Sir Francis Bacon said in 1612, "The place of justice is a hallowed place and... ought to be preserved without scandal and corruption." 1 We must begin the task of rebuilding the confidence of the American people in their Government. Without trust in government, our system surely will fail. There is no better place to begin than with the Department of Justice. Senator Mathias, do you have an opening statement? OPENING STATEMENT OF HON. CHARLES MCC. MATHIAS, JR., A U.S. Mr. Chairman, the subject that we are addressing today is justice, not merely the great Department of government which bears the name Justice, but the concept which the Department was created to serve. The hearings which begin today before the subcommittee will help the Congress to examine the operation of the Department of Justice and I think give us a better working knowledge of the way in which the Department is administered. From this we can reach a more informed decision about whether structural reorganization is needed. But in a deeper sense, Mr. Chairman, I hope, that these hearings will go beyond such questions as a fixed term for the Attorney General and the power of appointment for subordinates or removal of this office from the Cabinet, all of which would be accompanied by the creation of new organizational charts for the executive branch. I think it is justice itself and not the Department which commands our real attention and provides a deeper incentive for the hearings. I think we have to recall the words of Edmund Burke who said that "Justice is itself the great standing policy of civil society; and any eminent departure from it, under any circumstances, lies under the suspicion of being no policy at all." The Subcommittee on Separation of Powers is, I believe, a fitting forum for the consideration of this subject. The chairman has recently noted in quoting Thomas Hobbes, that "freedom is political power divided into small fragments." From these divisions, of course, flow the checks and balances on the exercise of that power. Today we are considering the addition of further checks and balances to those provided by the tripartite system of government as we consider dividing the Department of Justice from the executive branch and giving it an independent base. One desired goal of such a step would be to take politics out of the Department of Justice. I cannot forget that two of our last three Presidents have chosen their campaign managers to be Attorney General. The previous traditional reward for such service was a 1 Sir Francis Bacon, "Judicature," Essays LVI. Cabinet post as Postmaster General. And certainly, that type of politics which links campaign contributions to special favors dispensed through the Justice Department, as has been alleged in the ITT and Vesco 2 affairs, is unpardonable. But I think there is another side of politics which we must also weigh, and that is the function of expressing the will of the people. Politics is the process through which policies are made by the people. Politics is the means by which we as a nation make government accountable to the people. Thus, independence and accountability can be inconsistent values requiring reconciliation. The difficulty in balancing accountability and independence is not a new one. Significantly, a good example is presented by the Federal Bureau of Investigation, itself a part of the Department of Justice. The prevailing cry today is to make the Bureau independent and isolate it from the political process. Only a short time ago the most vocal observers of the FBI saw that problem in quite a different light and sought to bring the Bureau under closer control of elected officials. The bills we are considering today call upon us to strike the balance between independence and accountability and to do so for the entire Department of Justice. This is no easy task, as I am sure the testimony that the subcommittee will receive will indicate. But should that testimony also indicate that a new balance is needed, Congress should not shirk its duty, however difficult. Thank you, Mr. Chairman. Senator Ervin. Counsel will call the first witness. Mr. EDMISTEN. Mr. Chairman, the first witness is the Honorable Alan Cranston, Senator from the State of California. STATEMENT OF HON. ALAN CRANSTON, A U.S. SENATOR FROM THE STATE OF CALIFORNIA Senator CRANSTON. Mr. Chairman, members of the committee, I deeply appreciate this opportunity to testify on a subject of great importance and, specifically, on one proposal that I have introduced to establish a Commission to study the matter of how to set up a permanent independent prosecutor. Senator ERVIN. We are delighted to welcome you to the committee, and from my observation of your fight in the Congress for justice, I am sure that you agree that "the place of justice is a hallowed place." Senator CRANSTON. Right. Thank you very, very much. These hearings address a question basic to continued public confidence in our system of justice. How are we to keep politics out of the administration of justice? In my view, the removal of political influence from the Department of Justice even the appearance of such influence-is one of the most pressing reforms required by the discoveries of the events involved in Watergate. 1 International Telephone and Telegraph Corp. 'Allegations relating to presidential campaign contributions by Robert L. Vesco. I share your hope, Mr. Chairman, that the hearings will stir discussion and debate on this issue and lead to a resolution of it. I also share the concern expressed in your bill that the functions of the Department of Justice to investigate and prosecute allegations of wrongdoing by high officials must be and should be insulated from the political control of the executive branch. As the petty and gross misdeeds of Watergate continue to come to light, we see more clearly the need for some machinery independent of the executive which will ferret out and prosecute corruption and wrongdoing in high levels of government. We need an independent guardian to keep the Executive branch honest. Experience and history have shown that the Department of Justice moves cautiously in cases involving allegations of wrongdoing committed by members of the executive. In part, this is so because the Department is simply not sufficiently staffed with experienced lawyers in the field of corrupt practices, but more important, because the Attorney General is often appointed as a reward for service in the most partisan of roles, that of campaign manager, as the Senator from Maryland has pointed out. Many citizens commonly view the Attorney General as the chief political operative of the President, and when he is not thought of as the chief operative, too often he is regarded by the public as a man who serves his master. Even our best Attorneys General have never been free from suspicions that because they are political appointees of the President, they will be loyal to him over any other call of duty. The Attorney General, however, must not be the President's chief political operative. His client is not only the President of the United States but includes the people. An important part of his job as Attorney General of the United States is to see to it that the government remains within the boundaries of the law. How can the people have confidence in their lawyer if they know or believe that he serves the personal and political interests of the President above any other call of duty? I have come to the view that perhaps we ought to remove from the jurisdiction of the Attorney General those responsibilities which arouse the greatest suspicions on the part of the people. This would be the responsibility to investigate and prosecute allegations of wrongdoing by high-ranking officials in the executive branch. By removing this responsibility from the Attorney General's jurisdiction, we will have shielded him from the conflicts of loyalty real and apparent which have cast suspicion on his handling of the special class of cases involving improprieties on the part of the executive. Wategate has demonstrated the real obstacle to prosecution of high political figures is ferreting out the initial evidence which points to the probability of criminal conduct. Once the basic facts are out in the open, the Government dares not fail to take action. This has been true in the major scandals of this century, Teapot Dome, Watergate, and the Agnew case. In this respect, there are those that believe that Mr. Jaworski and his staff, who are on the payroll of the Department of Justice, are permitted to stay there only |