REMOVING POLITICS FROM THE ADMINISTRATION OF

JUSTICE

WEDNESDAY, MARCH 27, 1974

U.S. SENATE,

SUBCOMMITTEE ON SEPARATION OF POWERS,

COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to recess, at 10:05 a.m.,_in_room 2228, Dirksen Senate Office Building, the Honorable Sam J. Ervin, Jr. (chairman of the subcommittee), presiding.

Present: Senator Ervin.

Also present: Rufus L. Edmisten, chief counsel and staff director; Walker F. Nolan, Jr., counsel; Telma P. Moore, executive assistant; Clair W. Rodgers, Jr., minority counsel; J. L. Pecore, assistant counsel; J. Michael Carpenter, professional staff member; and Prof. Arthur S. Miller, consultant.

Senator ERVIN. The subcommittee will come to order. The counsel I will call the first witness.

Mr. EDMISTEN. Mr. Chairman, the subcommittee has the pleasure of having as its first witness the Honorable Arthur J. Goldberg, former Justice of the U.S. Supreme Court.

Senator ERVIN. Justice Goldberg, we are delighted to welcome you, as we have in times past. You have been of material help to us on many occasions and we are delighted to have you here.

STATEMENT OF HON. ARTHUR J. GOLDBERG, FORMER JUSTICE OF THE U.S. SUPREME COURT

BIOGRAPHICAL SKETCH OF ARTHUR J. GOLDBERG

Arthur J. Goldberg has served as Associate Justice of the Supreme Court of the United States, the Permanent Representative of the United States to the United Nations with the rank of Ambassador, and Secretary of Labor. Justice Goldberg was born in Chicago, Illinois, on August 8, 1908, the son of Joseph and Rebecca Goldberg.

He received his elementary education in Chicago Public Schools and was graduated from Benjamin Harrison High School in 1924. Mr. Goldberg attended Crane Junior College, a branch of the City College of Chicago. He received the Bachelor of Science in Law degree in 1929 and Doctor of Jurisprudence in 1930 from Northwestern University. He was Editor-in-Chief of the Illinois Law Review.

In 1929, Mr. Goldberg was admitted to practice before the Illinois bar. He qualified for practice before the Supreme Court of the United States in 1937.

Mr. Goldberg was General Counsel of the Congress of Industrial Organizations, (CIO) 1948-1955, and United Steel Workers of America, 1948-1961.

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He was Special Counsel for the AFL-CIO, 1955-1961. He also was Legal Advisor to several international unions.

During World War II he served as Special Assistant with the rank of Captain and Major with the Office of Strategic Services.

He is author of articles in American legal publications and journals of opinion, and the author of several books, including "AFL-CIO: Labor United." "The Defenses of Freedom: The Public Papers of Arthur J. Goldberg," and "Equal Justice: The Warren Era of the Supreme Court."

Mr. Goldberg married Dorothy Kurgans, an artist, in 1931. They have two children, a daughter, Mrs. Barbara Cramer, a social worker in Chicago, and a son, Robert M. Goldberg, an Alaska lawyer.

Justice Goldberg is now practicing law in Washington, D. C., and is also a University Professor of Law and Diplomacy at American University, Washington, D. C.

Mr. GOLDBERG. Mr. Chairman and gentlemen and ladies, I am very glad to respond to your invitation, Mr. Chairman, and the invitation of members of this distinguished subcommittee to present my views on the important subject of insuring that the Department of Justice is insulated from political control by the executive branch of the Government.

To this end, Mr. Chairman, you have submitted your bill, S. 2803, to establish the Department of Justice as an independent agency of Government.

In the invitation, you have also asked me to comment on Senator Cranston's bill, which would create a commission to study the question of the establishment of a Permanent Special Prosecutor in the Federal scheme.

I have read the statement that you made in introducing the bill, Mr. Chairman, and you made it clear that the purpose of these hearings is to explore the entire subject area and "to receive diverse views" relating thereto.

I want to commend you, Mr. Chairman, and members of your subcommittee for focusing attention on the pressing need to insulate the Department of Justice from political control and to make it truly independent. That it is desirable to do so is scarcely arguable, in light of recent and highly deplorable disclosures of influence "peddling" affecting the operation of the Department of Justice.

I am entirely in agreement with the stated goal of S. 2803 to divorce politics from the administration and operations of the Department of Justice. Justice and politics do not mix and should not mix.

The hearings before the Senate Watergate Committee, ably chaired by you, Mr. Chairman, contain sufficient sworn and uncontradicted testimony clearly demonstrating the need of reform to insulate the Department of Justice from political influence.

I hasten to add that in saying this, I in no way wish to express any opinion as to the actions of former Attorney General Mitchell, who is now on trial for certain offenses and under indictment for others; or the actions of other high ranking governmental officials who have been indicted for various offenses, including obstruction of justice. They, like all citizens charged with criminal offenses, are entitled to the presumption of innocence. It would be entirely inappropriate for me to comment on the substance of the charges which are now sub judice.

The essence of S. 2803 is to make the Department of Justice the equivalent of an independent regulatory agency of the Government. While agreeing with the objective of insulating the Department from politics, I am not in agreement that this can best be done by converting the Department of Justice into such an agency. My reasons are these:

In my judicial experience, as well as my experience at the bar, I have concluded that the so-called independent regulatory agencies, with some notable exceptions, are not always free from political influence, and that some tend to become captive to the interests. which they are by law mandated to regulate. I say this with great regret.

I was a strong supporter of administrative agencies at their inception. I now lean to the view that the investigative, administrative, and judicial functions of these agencies should be separated— a view, Mr. Chairman, which in candor, I should say, I one time opposed.

In the case of the Department of Justice, I would not, for example, like to see the Antitrust Division of the Department part of an independent agency, charged with the enforcement of the antitrust laws. While the Antitrust Division is not perfect-no department of government is-it nevertheless has an outstanding record of able and vigorous enforcement of the antitrust laws. would not like to see this Division captive of the interests the Division is designed to oversee.

It is my conviction that the commendable goal of your bill, namely, insuring the independence of the Department of Justice, can best be achieved by a series of other measures. Some of these measures require implementing legislation; others do not. If adopted, they could effectively achieve the goal which the bills now under consideration seek, without changing the traditional and paramount role of the Department of Justice in the executive branch. The measures I would propose are as follows:

(1) The Attorney General, the Deputy and Assistant Attorneys General, and the U.S. attorneys should be precluded from engaging in any type of political activity while in office. These officials should take no part in election campaigns or financing, but rather should be required to devote their undivided energies to the administration of justice with impartiality and without political pressures.

By the very nature of the cases and issues dealt with by officials of the Justice Department, a great deal of necessary prosecutorial discretion is vested in their offices. This being the case, they should, like Caesar's wife, be above suspicion. Like judges, these officials of the Department-of whatever rank-should conduct the affairs of the Department in such a way as to avoid not only actual impropriety, but the very appearance of impropriety. This standard is the established test for the conduct of judges.

Divorcing the Attorney General and the other high ranking officers in the Justice Department, subject to senatorial confirmation, from political influence could be accomplished, it seems to me, in any one of several ways.

Without enacting any new legislation, the Senate could exact commitments of political disengagement and involvement from nominees for these offices as a condition of senatorial consent to their appointment. The efficacy of this method is demonstrated by the resignations of former Attorney General Richardson and Deputy Attorney General Ruckelshaus who, having made commitments to the Senate Judiciary Committee, felt duty bound to honor these commitments when asked to violate them by aides speaking for the President.

I have the highest commendation and regard for these distinguished men who lived up to commitments made to the Senate of the United States.

Another method would be for the top officials in the Department of Justice to adopt a self-denying ordinance against mixing in politics. Traditionally, the Secretaries of State and Defense avoid political entanglements while in office. Considering the nature of the responsibilities of their offices, there is every reason for the Attorney General and his high ranking colleagues to do likewise.

A third method, which would require implementing legislation, would be to enact a new statute or to amend the Hatch Act to prohibit the Attorney General and all other Presidential appointees in the Justice Department from engaging in political activity, just as other Federal employees are now prohibited. Whatever may be said concerning the constitutionality of such a statutory prohibition when applied to low ranking government employees, it is my view that the compelling necessity for the impartial administration of justice would sustain a carefully drafted statute prohibiting political involvements by high ranking officials of the Department of Justice. (2) The attorneys employed by the Justice Department who are below the rank of Presidential appointees, but who comprise the solid core of the Department's operations, should be placed under the Civil Service Act. Currently these attorneys are not covered by the act. This measure would require new legislation, but the job security and other safeguards of the Civil Service Act would serve to strengthen the independence of the professional cadres of the Justice Department.

In making this proposal, I think it only proper to pay tribute to the measure of independence already displayed by the Department's career service, notwithstanding their current lack of civil service protection. However, civil service status would afford additional protection against political influence and promote independent decisionmaking.

(3) The office of White House Counsel to the President should be eliminated. With an Attorney General and Department of Justice disentangled from politics, it would seem to me that there is no good reason for the continued existence of the office and staff of the White House Counsel-an office unknown until President Franklin D. Roosevelt's administration. The Attorney General and the Department of Justice should serve as White House Counsel. There are great advantages in making this necessary reform.

The Attorney General and his staff are subject, as all Cabinet officials are or should be, to justifying and reporting their conduct

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