division too much leeway. He believes that the Administration early decided that civil rights was so touchy a subject that no one should try to interfere with the ongoing trend, and so it left the division more or less on its own with plenty of money; the result, he further believes, is that the division has become committed to advancing the position of one "subgroup" in society, i.e., blacks without sufficient policy review, and that it is now deep into such dubious devices as quotas, which will in the end he self-defeating for blacks. Finally, the lawyer suggests, only a "securely liberal" regime can reverse the division's course. NO MORE CAMPAIGN MANAGERS When great political questions are at issue, a Justice Department "without politics" is not a realistic objective. On the other hand, it is possible to think of some reforms that would work to suppress some of the unhealthier political tendencies in the department. One reform that could do a lot of good would end the practice of creating Attorneys General out of those whose past services to the President have been primarily political. Though that practice produced some good appointments (e.g., Herbert Brownell, Robert Kennedy), along with the bad, it was always a poor idea; and in general the U.S. would have been better off if campaign managers had never got to be Attorneys General. Hardings' Harry Daughtery (indicted but not convicted), Truman's J. Howard McGrath (fired during an investigation of corruption), and Nixon's John Mitchell are among the more disastrous of such appointments; the list of mere mediocrities would be far longer. Whitney North Seymour-a Nixon-appointed U.S. Attorney who later had the melancholy task of indicting his old boss, John Mitchell, for conspiracy-argues that never again should an Attorney General be "selected from among those actively involved in the political machinery for putting the current Administrtion in office and keeping it there." Some other criteria should also be invoked in the nominating process. Given the central place that the administration of justice is coming to occupy in American society, the Attorney General should not be just one more face in a faceless Cabinet. As "the conscience of the executive branch" he should have as much stature, prestige, and experience as is generally expected of a Secretary of State. In reputation as well as statutory fact, he should be the nation's chief legal officer. It is still true that in the end every Attorney General has to administer justice in a political environment. The sins of Watergate demonstrate the importance of having men of rectitude to head the department, but they cannot be men without political sophistication. Politics will continue to be a companion of justice. MR. ARTHUR. S. MILLER, Chief Consultant, WASHINGTON STAR-NEWS, Washington, D.C., November 8, 1973. Select Committee on Presidential Campaign Activities, Washington, D.C. DEAR MR. MILLER: The problem of how men can rule themselves-and other men-effectively yet without tyranny is one which has puzzled philosophers since the days of Socrates and Aristotle. If one assumes (as I do) that human nature is such that to hold power is to be tempted to abuse it, then it becomes clear that this is a dilemma which is unlikely to be resolved in the course of this correspondence. And yet changes in laws and in institutions can at least have a marginal effect on men's conduct. Because I rather doubt that the millenium is at hand, I do not despise reforms which will alter things but a few degrees. Indeed, and again because of the nature of man (which accepts gradual change more easily than radical surgery), it is only such alterations which have much chance of acceptance. To me, the central message of the corruption of power which we call by the generic name of Watergate is that the Department of Justice should and must be at the service of the people of the United States not the President. Mr. Nixon is not, of course, the first President who has named one of his cronies to be attorney general; nor is he the first to have used-or to have attempted to use the department for partisan political ends. 33-875-74-26 At any rate, since (as we have seen) the cause of justice is not necessarily to be equated with a president's needs-and indeed can be directly contrary to it-it seems to me that the Justice Department should be an independent agency, that it should be composed entirely (with the exception of the attorney general) of career officers, and that the attorney general should be appointed by the President from a list of five names submitted by the American Bar Association, subject to confirmation by the Senate, for a period of ten years, with reconfirmation by the House of Representatives after the first five years of his term. He would not be subject to removal by the President, except for "gross improprieties," with both houses of Congress concurring. An independent Justice Department would not guarantee honest government, let alone good government. But it would, I believe, act as an inhibiting factor on those who would transgress. Beyond this, the preservation of the freedoms which we presently enjoy is largely a matter of protecting and encouraging those other institutions which are our strongest shield against tyranny: An impartial court system, a vigorous Congress, a free press and a military establishment which understands its obligations under a democratic system of government. In the future, as in the past, we will get the governments we deserve. It is incumbent upon each and every one of us to see to it that we deserve well. Sincerely, THE INDEPENENCE OF THE PROSECUTOR SMITH HEMPSTONE (Address Before New York Criminal Bar Association by the Honorable Frank S. Hogan, District Attorney of New York County, May 16, 1973) I would like to speak to you tonight about a matter of great importance to the administration of justice, and to public respect for law. I refer to the independence of the prosecutor. It has always been my belief, confirmed by many years of experience, and by recent events, that complete independence of the prosecutor from the influence of partisan politics and pressure from any other source is essential to the proper administration of justice. One reason that independence and non-partisanship are essential is that the prosecutor is vested with enormous powers of government that must not be abused. These are the powers of subpoena; initiating a search of person, house, papers or effects; applying for judicial permission for electronic eavesdropping; authorizing an arrest; implementing grants of immunity from prosecution; release of information to the press; and, most important of all, determining who should be investigated and prosecuted-and who should not. The prosecutor's delicate discretion, similar to that of a judge, gives him the status of a quasi-judicial officer. A prosecutor, like a judge, must be above politics. The second reason for independence and non-partisanship of the prosecutor is that without public confidence in the integrity and independence of justice, there can be no respect for law, and if no respect for law, none for government. And I remind you that to warrant public respect for justice, we must preserve not only the reality, but the appearance of justice. The American Bar Association, in its published standards relating to the prosecution Function, declared that one of the principal duties of a prosecutor is "to seek to reform and improve the administration of criminal justice. When inadequacies or injustices in the substantive or procedural law come to his attention, he should stimulate efforts for remedial action." Because of my belief in the principles that I have described, it is my duty as a public prosecutor to stimulate efforts to preserve confidence in the integrity and independence of justice. Confidence in the institution of justice at all levels is weakened if justice at the highest level is impeached. I therefore propose that it is time we debated. as a people committed to a government of laws, whether it is possible and desirable to separate the prosecution function from cabinet responsibility in the national government. The question for sober, non-partisan discussion is whether, in the long run, sporadic resort to a special prosecutor in times of extreme crisis is sufficient, or whether there can and should be fundamental structural change sufficient to ensure the total independence of the chief prosecutor of the United States. I propose this discussion without intending to reflect on those Attorneys General who, since the creation of the Department of Justice in 1870, served their Government with distinction and fidelity. But it is difficult for even the best person to be the lawyer of the President's administration, and the maker of decisions independent of allegiance to the man and his party. Absolute independence of the Nation's Chief Prosecutor might be accomplished while preserving the Office of Attorney General, at cabinet level, as counsel to the Government. The function of chief prosecutor presently residing in the Attorney General could be taken out of that Office and vested in a new, permanent, statutory official, a Prosecutor General of the United States. He could be appointed for a fixed term, of six years, upon confirmation by the Senate. The appointing authority might be the United States Supreme Court, as authorized by Article II, Section 2, of the Constitution. I recognize that although the American Constitutional ideal is a government of laws, not of men, no structure of laws will guarantee probity and independence in public life. Utlimately, we must depend on good men and women, appointed with the considered advice and consent of the Senate, or chosen by an informed electorate. But I see no reason to forego a searching examination of this question. In the same spirit, I recommend a similar examination of the prosecution function in New York State. Because our principal prosecuting officials are elected separately from the Governor, they are separated from direct influence by the Chief Executive, particularly if the two officers are of different parties. But the electoral process leaves open the prospect of party influence, and influence by campaign contributors. Because District Attorneys are quasi-judicial officers, their jobs should not depend or appear to depend on partisan political battles and campaign expenditures, any more than judges' jobs should. I have been fortunate in gaining support of all major parties throughout my career as District Attorney. This multi-party endorsement, which, unlike many multi-party judicial endorsements, has not been part of a trade-off of judgeships, has spared me from the reality and even the appearance of obligations to a political party. There is no guarantee that in future decades these benefits will continue. We have no structure designed to safeguard the public's confidence in the independence of the prosecutorial function. There are a variety of structural ways that could be tried to preserve this confidence. Many plans should be carefully studied. Perhaps reforms that have been proposed for judicial selection could be successful for prosecutorial selection. For example, I favor appointment of judges from a list of candidates named by a totally independent nominating commission representing the public interest. Removing judgeships from electoral politics would reduce actual and apparent obligations of judges to their campaign supporters. Perhaps a similar merit plan for District Attorneys would be suitable. However, no plan for appointment of District Attorneys is acceptable that gives too much power to the appointing authority, or insulates the prosecutor and the appointing authority from accountability to the public for the quality of the prosecutor's performance. What system of selection would avoid these evils? Perhaps borrowing from the "Missouri Plan" for selecting judges would help. Under that plan, a judge is appointed by the Chief Executive from a list of candidates chosen by a nominating commission, and after one or two years the electorate vote on a yes-or-no proposition whether to continue the judge in office. One danger in this method is that in the months before this one-candidate election, the judge might be tempted to avoid unpopular decisions, even if they are legally correct. Another objection is that the electorate will be no better informed on the qualifications of sitting judges than on the relative merits of new candidates for the bench. These objections are less serious for the county-wide office of District Attorney. Another mechanism to foster responsibility of an appointed District Attorney is to create a permanent method for discipline. I have supported the creation of a permanent Commission on Judicial Discipline for investigating complaints of judicial misconduct. Perhaps this body should also have jurisdiction over District Attorneys and Assistant District Attorneys. These are methods relating to an appointive system. Another approach would be to preserve the elective system, but counteract its undesirable features. The political parties could be required to submit their candidates to an independent, statutory screening commission for certification as to the candi At any rate, since (as we have seen) the cause of justice is not necessarily to be equated with a president's needs-and indeed can be directly contrary to it-it seems to me that the Justice Department should be an independent agency, that it should be composed entirely (with the exception of the attorney general) of career officers, and that the attorney general should be appointed by the President from a list of five names submitted by the American Bar Association, subject to confirmation by the Senate, for a period of ten years, with reconfirmation by the House of Representatives after the first five years of his term. He would not be subject to removal by the President, except for "gross improprieties," with both houses of Congress concurring. An independent Justice Department would not guarantee honest government, let alone good government. But it would, I believe, act as an inhibiting factor on those who would transgress. Beyond this, the preservation of the freedoms which we presently enjoy is largely a matter of protecting and encouraging those other institutions which are our strongest shield against tyranny: An impartial court system, a vigorous Congress, a free press and a military establishment which understands its obligations under a democratic system of government. In the future, as in the past, we will get the governments we deserve. It is incumbent upon each and every one of us to see to it that we deserve well. Sincerely, (Address Before New York Criminal Bar Association by the Honorable Frank S. Hogan, District Attorney of New York County, May 16, 1973) I would like to speak to you tonight about a matter of great importance to the administration of justice, and to public respect for law. I refer to the independence of the prosecutor. It has always been my belief, confirmed by many years of experience, and by recent events, that complete independence of the prosecutor from the influence of partisan politics and pressure from any other source is essential to the proper administration of justice. One reason that independence and non-partisanship are essential is that the prosecutor is vested with enormous powers of government that must not be abused. These are the powers of subpoena; initiating a search of person, house, papers or effects; applying for judicial permission for electronic eavesdropping; authorizing an arrest; implementing grants of immunity from prosecution; release of information to the press; and, most important of all, determining who should be investigated and prosecuted-and who should not. The prosecutor's delicate discretion, similar to that of a judge, gives him the status of a quasi-judicial officer. A prosecutor, like a judge, must be above politics. The second reason for independence and non-partisanship of the prosecutor is that without public confidence in the integrity a there can be no respect for law, and if no respect f And I remind you that to warrant public respect not only the reality, but the appearance of jus The American Bar Association, in its pub prosecution Function, declared that one of t' is "to seek to reform and improve the adm inadequacies or injustices in the subst? attention, he should stimulate efforts Because of my belief in the princip as a public prosecutor to stimulate ef and independence of justice. Confidence in the institution c at the highest level is impeached as a people committed to a desirable to separate the p the national government. whether, in the long run extreme crisis is suffici structural change suffi secutor of the Unite reflect on those Attorneys General who, since the creation of the Department of Justice in 1870, served their Government with distinction and fidelity. But it is difficult for even the best person to be the lawyer of the President's administration, and the maker of decisions independent of allegiance to the man and his party. Absolute independence of the Nation's Chief Prosecutor might be accomplished while preserving the Office of Attorney General, at cabinet level, as counsel to the Government. The function of chief prosecutor presently residing in the Attorney General could be taken out of that Office and vested in a new, permanent, statutory official, a Prosecutor General of the United States. He could be appointed for a fixed term, of six years, upon confirmation by the Senate. The appointing authority might be the United States Supreme Court, as authorized by Article II, Section 2, of the Constitution. I recognize that although the American Constitutional ideal is a government of laws, not of men, no structure of laws will guarantee probity and independence in public life. Utlimately, we must depend on good men and women, appointed with the considered advice and consent of the Senate, or chosen by an informed electorate. But I see no reason to forego a searching examination of this question. In the same spirit, I recommend a similar examination of the prosecution function in New York State. Because our principal prosecuting officials are elected separately from the Governor, they are separated from direct influence by the Chief Executive, particularly if the two officers are of different parties. But the electoral process leaves open the prospect of party influence, and influence by campaign contributors. Because District Attorneys are quasi-judicial officers, their jobs should not depend or appear to depend on partisan political battles and campaign expenditures, any more than judges' jobs should. I have been fortunate in gaining support of all major parties throughout my career as District Attorney. This multi-party endorsement, which, unlike many multi-party judicial endorsements, has not been part of a trade-off of judgeships, has spared me from the reality and even the appearance of obligations to a political party. There is no guarantee that in future decades these benefits will continue. We have no structure designed to safeguard the public's confidence in the independence of the prosecutorial function. There are a variety of structural ways that could be tried to preserve this confidence. Many plans should be carefully studied. Perhaps reforms that have been proposed for judicial selection could be successful for prosecutorial selection. For example, I favor appointment of judges from a list of candidates named by a totally independent nominating commission representing the public interest. Removing judgeships from electoral politics would reduce actual and apparent obligations of judges to their campaign supporters. Perhaps a similar merit plan for District Attorneys would be suitable. However, no plan for appointment of District Attorneys is acceptable that gives too much power to the appointing authority, or insulates the prosecutor and the appointing authority from accountability to the public for the quality of the prosecutor's performance. What system of selection would avoid these evils? Perhaps borrowing from the "Missouri Plan" for selecting judges would help. Under that plan, a judge inted by the Chief Executive from a list of candidates chosen by a ing commi, and after one or two years the electorate vote on a o propos thod is ether to continue the judge in office. One danger in months before this one-candidate election, the judge unpopular decisions, even if they are legally correct. the electorate will be no better informed on the qualthan on the relative merits of new candidates for e less serious for the county-wide office of Dis responsibility of an appointed District Attormethod for discipline. I have supported the ission on Judicial Discipline for investigating ct. Perhaps this body should also have jurisand Assistant District Attorneys. o an appointive system. Another approach would stem, but counteract its undesirable features. be required to submit their candidates to an ning commission for certification as to the |