sion which would be required to compile a limited list of the best qualified candidates, possibly three in number, whenever there is a vacancy in either of these offices, from which the President would be required to make a selection, subject to Senate confirmation. A nonpolitical nominating commission should also be considered to achieve merit selection in other important offices which have been too subservient to political considerations in the past. Foremost among these is the office of U.S. attorney. The office of U.S. attorney was created under the original Judiciary Act of 1789. Each U.S. attorney was vested with complete authority to handle Federal criminal and civil matters in his district. He was not subject to any supervision by the Attorney General until the establishment of the Department of Justice in 1870. Subsequent legislation has now given increasing control to the Attorney General. Properly, the U.S. attorneys should be under the supervision of a nonpolitical Chief Prosecutor, not under the direction of a political adviser to the President. That does not mean, however, that these officials should not be selected by the President, which gives them a stature in keeping with the importance of the office. However, the existing practices in selecting candidates for U.S. attorney-for which the U.S. Senate itself is in large part to blame-have been excessively partisan and political. This partisanship has frequently interfered with the independence and effectiveness of that office. I suggest for your consideration the establishment of a Circuit Nominating Commission in each judicial circuit of the United States, with the responsibility for nominating candidates both for the offices of U.S. attorney and also for U.S. district and circuit judges in that circuit. Such a Commission might be constituted by having the chief judge in each district court select one member of the Commission and the chief judge of the circuit court select three members, one of whom would be designated as chairman. Obviously, protection should be built in to insure that no more than a certain percentage of the Commission members could belong to the same political party and that the members themselves would be ineligible for appointment during their membership on the Commission. Such nominating commissions would be obligated to submit the names of qualified candidates to the President for his selection. Once the President has made his selection from the list, the name would be submitted to the Senate for confirmation. In this way we would preserve the desirable answerability of elected public officials for the appointment of senior executive and judicial officers, while at the same time removing the selection process from partisan politics. When it comes to selection of the Chief Prosecutor and the Director of Federal Investigations, a National Nominating Commission might be constituted, to be made up of the chairmen of the various Circuit Nominating Commissions, plus a chairman to be appointed by the Chief Justice of the United States. This body would then be the originating agency for submitting the names of nominees from which the President would choose the officials. Obviously it is desirable to fix a term of office for the Chief Prosecutor and Director of Federal Investigations and I believe that the 6 years suggested in Senator Ervin's bill is sensible. As for the official who remains as political adviser to the President, whether he be called Attorney General, Chancellor, or whatever, his selection can properly be left to the present method under which the President is permitted to choose those officials who will directly carry out his administration's policies. The same could be true for the Director of Security. The important thing is to carve out of those officials' jurisdiction the responsibility for the enforcement of Federal laws, which should have no part in political or policy considerations. If we can accomplish reforms of this scope, then the agony of Watergate will have been worth the price. If we fail, then we will continue to invite future Teapot Domes and Watergates, and countless other instances of misuse of Federal authority for personal gain and political advantage. Now, Mr. Chairman, since preparing my statement, I have conferred with a distinguished member of the bar of Great Britain, who has supplied me with a summary of the relative duties of the British chief law enforcement officers to which I referred, and if I may, I will just file this, and ask that it be incorporated into the record, so that it can be available for reference. And you will see from that summary that there is, in fact, a Director of Public Prosecutions in Britain, which is quite similar to the concept that I have been talking about here. [The material referred to follows:] SUMMARY OF RESPONSIBILITIES OF PRINCIPAL LEGAL OFFICERS IN GREAT BRITAIN THE LORD CHANCELLOR He is a British Officer of State with 3 main functions:- (3) He is also a minister, a member of the Government and of the Cabinet, having under his control all the judicial appointments in the country except those reserved to the prime minister, and a great deal of ecclesiastical patronage. As speaker of the House of Lords, the Chancellor's powers and duties differ considerably from those of the Speaker of the House of Commons. He puts the question but has no power to rule upon points of order. Like the Speaker of the House of Commons, he may take part in debates, and, unlike modern speakers, Chancellors frequently do so. Originally he was an ecclesiastic who acted as the King's secretary, and was keeper of the King's conscience. He is appointed by the delivery of the Great Seal, of which he is the keeper. He is a Privy Councillor and acts as Speaker of the House of Lords, when he sits on the Woolsack. He is the President of the House of Lords, and of the Chancery Division of The High Court. As Speaker of The House of Lords he presides over the House when sitting as the Highest Court of Appeal. He appoints the justices of the peace and the country judges and nominates the judges of the High Court except the Lord Chief Justice. He is the principal legal and constitutional adviser of the Government. He is a member of the Cabinet, not, it is said, as of right, but because his duties as holder of the Great Seal make him a necessary party to the innermost council of the Crown. Retirement from the office of Chancellor is generally understood to involve retirement from the Cabinet. He is also a sworn member of the Privy Council for the same reason, and is said to have a prescriptive right to be such. The Lord Chancellor is, in general, the formal medium of communication between the Sovereign and Parliament. On the meeting of a new Parliament it is his duty, in the event of the Sovereign not being present, to open Parliament in person. Other duties: Custody of Great Seal, Ecclesiastical Patronage etc. ATTORNEY-GENERAL He is the chief law officer of the state or nation and the legal adviser to the chief executive. He is the Crown's representative in courts of law and the legal adviser of the Sovereign and the Sovereign's ministers. He is a member of the Government, but not, nowadays, of the Cabinet. He is a member of the House of Commons. Although he is a minister of the Crown, he exercises the majority of his functions in a quasi judicial manner without regard to political considerations of any kind. Civil proceedings by or against the Crown may be instituted by or against the Attorney-General in lieu of the appropriate Government Department. After proceedings have been instituted he may be substituted for the authorized Government Department, or vice versa. (Crown Proceedings Act 1947, S. 17). The Attorney-General and Solicitor-General, and the Lord Advocate and Solicitor-General for Scotland are members of the ministry. They are usually members of the House of Commons, but not in the Cabinet; of late years, however, there have been exceptional cases of an A-G in the Cabinet, and the A-G and S-G have at different times been out of Parliament. The A-G and S-G are summoned, together with the judges, to attend the House of Lords at the beginning of every Parliament. In peerage cases, the claim being made by petition to the Crown, the petition is referred to the A-G. If he is satisfied that a prima facie case has been established, he generally advises the Crown to refer it to the House of Lords, which refers it to the Committee for Privileges for Report. The A-G attends the hearing before the Committee both as assistant, by virtue of his writ of attendance, and as protector of his interest of the Crown as fountain of honour. The A-G acts as prosecutor both for the House of Lords and the House of Commons. In the case of offences directly concerning the House, the House directs the A-G to prosecute; in offences not directly concerning the House, the House addresses to the Crown a request that the A-G be directed to prosecute. He is the Head of the Bar and has precedence over all Queen's Counsel. DIRECTOR OF PUBLIC PROSECUTIONS His duty is, subject to the superintendence of the A-G, to institute, undertake, carry on or give advice or assistance in criminal proceedings which appear to be of importance or difficulty (Prosecution of Offences Act 1879 and 1908). Only a barrister or solicitor of not less than 10 years' standing may be appointed Director of Public Prosecutions. Proceedings relating to the communication of information concerning plants for the production or use of atomic energy under the Atomic Energy Act 1946, cannot be instituted in England or Wales except by or with the consent of the Director of Public Prosecutions. Where information is given to the Director of Public Prosecutions that any corrupt or illegal practice has occurred in reference to any election, it is his duty to make such enquiries and institute such prosecutions as the circumstances of the case appear to him to require. He must attend the trial of any election petition by himself or by his assistant or representative, nominated by him with approval of the A-G. He is not allowed to cross-examine witnesses called by either party, but is allowed to call witnesses himself. Chief Officers of Police in England and Wales must report to the Director of Public Prosecutions all cases under the Extradition Acts, 1870 to 1935, arising within their districts. The Chief Officer of Police for any police area is under a duty to report to the Director of Public Prosecutions offences of prescribed categories alleged to have been committed within that area; and may consult the Director of Public Prosecutions on any case in which he thinks that advice or as sistance would be helpful. Except in cases where advice is sought in any cases of capital and non-capital murder, an offence is not normally reported unless and until there is a prima facie case for prosecution. He is responsible to the A-G and his functions include initiating criminal proceedings after considering the facts or information brought to his notice by the Chief Constable or A-G or by any other authority or person, representing the Crown in criminal proceedings, including proceedings for such primary offences as he considers should be dealt with by him, and initiating where he thinks proper, prosecutions for offences against any statutory provision in Northern Ireland on behalf of any government department, including a department of the United Kingdom. SOLICITOR-GENERAL He is the second of the law officers. He is a member of the House of Commons. The office is conferred by patent at the pleasure of the Crown. He acts as assistant or deputy to the A-G. In the A-G's absence or incapacity, the duties devolve upon the S-G. When the office of the A-G is vacant or the A-G is unable to act through absence or illness or the A-G authorises the S-G to act in a particular case, any functions conferred by an enactment on the A-G may in general be discharged by the S-G. The S-G also represents the Crown where distinct interests require to be separately represented. They (A-G, and S-G) may not engage in private practice. Abbreviations.-S-G-Solicitor-General; A-G-Attorney-General. Bibliography.-(1) Halsbury's Laws of England; (2) Hood Phillips: Constitutional and Administrative Law; and (3) Encyclopaedia Britannica. Mr. SEYMOUR. I might also say, Mr. Chairman, that the bill offered by Senator Cranston, to have a commission inquire into the desirability of an independent prosecutor, seems to me not very far away from what we are talking about in this total problem area. I think there probably should be extensive hearings before this committee, or a commission, if the committee does not have the time or resources for it, really to see how Federal laws have been enforced under our present Federal law enforcement structure. I myself believe that you have only seen a dramatic part, albeit, but only a part of the problem of having the Department of Justice politically sensitive and answerable to the White House. And I believe that, with a more thorough examination into how the various areas of Federal law are enforced, it will be perfectly clear that the political side must be separated out from the enforcement side. And obviously, the suggestion I have made, dividing up the Department of Justice, really is very similar to the proposal that Lloyd Cutler and others have suggested; having an independent Special Prosecutor. I do not myself like the idea of him being a Special Prosecutor. It seems to me he ought to be the permanent Chief Federal Prosecutor, with broad plenary powers, but sufficiently isolated from the political process so that we will not face these kinds of problems again in the future. Senator ERVIN. You have put your finger squarely on the source of the problems, I think. I had a professor of philosophy, many years ago, who said that the troubles which try our souls, are not choosing between the good on one side and the evil on the other, but that they come when we are forced to choose between conflicting loyalties. He said that each individual might be compared to a dot in many concentric circles, and each circle represents our loyalties; because all of us have many loyalties. And he said that the time when people's souls are tried, is when they must make a choice between two conflicting loyalties, both of which make demands upon them. And that has certainly been true, as you point out so well in your statement, with respect to the wedding of political obligations, on the one hand, and the duty of being a nonpartisan enforcer of laws on the other, in the office of Attorney General. I am very much impressed by your suggestions. Of course, we still have the Senate and the House of Representatives-the Senate in particular-that, like mose people, are reluctant to surrender power they once have held, and that is the power of naming Federal judges and U.S. attorneys. I have just one or two questions. Did you hear Mr. Cox's comments about the antitrust laws, the antitrust division? Your statement says that the prosecution of antitrust cases should be put in the hands of the Chief Prosecutor, rather than the man who corresponds to the English chancellor. Did you hear his observations about this? Mr. SEYMOUR. That is a close question. There is no question at all that antitrust enforcement policy can be part of an administration's economic policy. Certainly, Theodore Roosevelt's era was marked by a broad assault on economic disparities, and antitrust enforcement was part of it. But so long as that is going in the direction of vigorous enforcement, I have no problem with it. When it goes in the opposite direction, of withholding prosecutions of flagrant violations of the antitrust laws, then the system is not working correctly. So I think it is entirely possible to either give some concurrent jurisdiction to two offices, or possibly break up the civil from the criminal, or possibly create some kind of independent agency, such as the SEC, to have some input into the process, to insure that there is a policymaking input. But, I do not ever think that there should be the power to pull the punches, and to trade off an antitrust violation for a political contribution, for example. Professor MILLER. I have just a couple of questions, Senator. I would like to ask first of all, Mr. Seymour, am I correct in inferring from your statement that you find no constitutional impediment to establishing these two offices the way you described them? Mr. SEYMOUR. You are correct in inferring that, but you would be incorrect that it came from an oracle on the subject. I defer to wiser heads in that area. I am satisfied that it is a good, pragmatic solution, and I believe it to be constitutional. Professor MILLER. We heard testimony last week, in the previous 3 days of hearings, concerning the relationships of the Department of Justice itself to the Federal attorneys, and I would like to explore just a moment, if I may, your office in New York City as U.S. attorney. For example, how much direction did you get from Washington, speaking just generally? Mr. SEYMOUR. Let me say, by way of introduction, that our office in the Southern District of New York is not a very good test of the Nation. The Southern District of New York has been a unique 1 Securities and Exchange Commission. |