e) constitutional complaints brought by any party as to whether a public authority has infringed upon a basic right or a right guaranteed by the Basic Law after all other remedies have been exhausted.

Thus, it should be evident that the Court is competent to review the acts of the executive as well as the legislative branches of the federal government, and that certain of the highest federal officials are subject to impeachment before it.

Because the powers of the Court are so widespread, the Basic Law has devised certain precautions to insure its independence and to insulate its members from political influence. The Court consists of 24 judges who are elected in equal numbers by the two federal legislative chambers. Eight of these judges must be taken from the highest federal courts, and they are given tenure for life. The other 16 serve for eight-year terms.

It appears that the members of the Federal Constitutional Court are also subject to Article 92, providing for impeachment procedure, as are the other federal judges. This arrangement creates a novel situation in which the Court would both judge and prosecute its own members in an impeachment proceeding. Thus, it appears that the Constitutional Court, upon the request of the Bundestag, could by a two-thirds' majority impeach one of its own members for violation of the Basic Law or the constitutional order of a land. As 16 members constitute two-thirds of the 24 members, it is theoretically possible that a majority party could stack the court with its candidates, who would in turn impeach those members with tenure. Certainly this example is farfetched, but it illustrates that the Court may at least in theory be subject to the will of a political majority.26

V. CONCLUSION

The administration of justice in the Federal Republic of Germany is insulated from political influence by a number of doctrines, institutions, and practices. Among the most significant are the following six factors:

The first is the doctrine of the separation of powers as provided for in the German Basic Law and which establishes the concept of a separate judiciary whose judges are selected by a complex process involving both the executive and the legislative and who are immune from dismissal except on certain specific grounds.

A second safeguard is inherent in the structure of any parliamentary democracy by virtue of the fact that the government may be censured and forced to step down.

The third factor is a result of the structure of a federal system specifically as it applies in the Federal Republic of Germany where the federal machinery must rely heavily on the laenders' implementation of its policies. This separation factor constitutes a strong deterrent against the possibility of the exertion of political influence by any branch of the federal government on the administration of justice.

The fourth factor is also related to the federal governmental structure. As in many political systems, the police power is not under the Ministry of Justice. In Germany in particular, the federal police power is subordinate to the Ministry of Interior, and what power does exist must depend greatly on land implementation.

The fifth factor is that Germany, like France, has a system of administrative courts. This system serves to protect the individual against the arbitrary action of public officials, and, ideally, acts as a check on the use of unlawful influence in all spheres of government.

Finally, Germany has a special Constitutional Court with a broad range of jurisdiction which enables it to review the acts of even the highest government officials.

26 Supra note 17, at 691-692.

ADMINISTRATION OF JUSTICE IN FOREIGN LEGAL SYSTEMS: SELECTED REFERENCES Compton, Sir Edmund, "The Parliamentary Commissioner for Administration", The Journal of the Society of Public Teachers of Law, New Series, Volume X, 1968-1969, London

Dainow, Joseph, "The Constitutional and Judicial Organization of France and Germany and Some Comparisons of the Civil Law and Common Law Systems", 37 Indiana Law Journal, No. 1, Fall 1961

David, Rene, "Political, Administrative, and Judicial Organizations of France", Part Two of French Law, Its Structure, Sources, and Methodology. Translated by Michael Kindred. Louisiana State University Press, Baton Rouge, 1972

The English Legal System, Lord Cross of Chelsea and G. J. Hand, Fifth Edition, June 1971, London

Jones, The Rt. Hon. Sir Elwyn, A-G., Q.C., M.P., "The Office of Attorney General", 27 The Cambridge Law Journal, Part I, April 1969

The Library of Congress, Legislative Reference Service:

"The Administration of Justice in France and Its Insulation from Political Influence", Raphael Perl, Legal Specialist, European Law Division, Law Library, March 1974 (See page 458 of these hearings.)

"The Administration of Justice in the Federal Republic of German and Its Insulation from Political Influence", Raphael Perl, Legal Specialist, European Law Division, Law Library, March 1974 (See page 463 of 1974 (See page 456 of these hearings)

"Canada" (and the administration of justice), Jean V. Swartz, Senior Legal Specialist, American-British Law Division, Law Library, March 1974 (See page 456 of these hearings)

"Great Britain" (and the administration of justice), Jean V. Swartz, Senior Legal Specialist, American-British Law Division, Law Library, March 1974 (See page 454 of these hearings)

[From Watergate: Its Implications for Responsible Government, a report prepared by a panel of the National Academy of Public Administration, at the request of the Senate Select Committee on Presidential Campaign Activities, March 1974]

CHAPTER 4.-THE ATTORNEY GENERAL AND THE DEPARTMENT OF JUSTICE

"The Office I hold is not properly political, but strictly legal; and it is my duty, above all other ministers of State to uphold the Law and to resist all encroachments, from whatever quarter, of mere will and power."-Attorney General Edward Bates (1862-1864).

The office of Attorney General, together with those of United States Attorneys in all of the judicial districts, was created by the First Congress in 1789. The Attorney General was to represent the nation in cases before the Supreme Court and was further called upon to provide legal advice to the President and to the heads of the departments. The U.S. Attorneys were made responsible for representing the interests of the United States in all criminal and civil proceedings in their districts. Problems arising in the enforcement of the Reconstruction Acts led to the establishment, in 1870, of the Department of Justice under the Attorney General. Since that time, the Department has been given an increasing and increasingly variegated range of functions. Today, with its nearly two billion dollar budget and 48,000 employees, it combines the world's largest law office with a number of other activities directly or indirectly related to the criminal justice system. The scope of the Department is summarized below.

1. The Attorney General, a cabinet member, is the lawyer for the President and is charged with the duty of rendering advice and opinions, upon request, to the President and heads of other executive departments. While each of the other departments has its own counsel, the Attorney General is the chief law officer of the United States. Should there arise differences in view on a subject

among the myriad lawyers within the Executive Branch, it is quite clear that the Attorney General has the power to resolve such disputes. One has always supposed that the legal advice rendered by the Attorney General to the President and the Executive Branch heads related to the performance of their official duties and not to their personal or political affairs.

2. The Attorney General administers the Department of Justice and represents the United States of America in all court proceedings from those in the Supreme Court of the United States to those pending in the lowliest state courts where an agency of the federal government may have some interest involved.

3. The Department is charged with the prosecution of federal laws as part of the Executive Branch's duty to enforce federal statutes. This function is carried out largely through 94 local U.S. Attorneys located in each of the country's federal judicial districts. Although the activities of the U.S. Attorneys are centrally directed and managed within the Department of Justice, the U.S. Attorneys (Presidential appointees) and their staffs (frequently political appointees) and the U.S. Marshals reflect varying degrees of professional competence and allegiance to the Department. As a consequence, these "local" representatives of the Department of Justice are not always responsive to departmental policies. The prosecutorial responsibility to investigate Watergate was located, at the outset, in the U.S. Attorney's Office for the District of Columbia. Apparently the specter of the Executive Branch investigating itself was considered, because the White House made a point of publicizing that the investigation was headed up by a Democrat. Supervision of the investigation remained with the Criminal Division of the Justice Department whose head kept the White House advised. The Select Committee testimony of Dean, Gray, and others highlighted the enormity of the conflict of interest that existed when the Department attempted to conduct an inquiry into Watergate.

4. The Attorney General, through his deputy, screens and recommends to the President all appointments to the federal judiciary-new district court judges, and promotions of district court judges or others to the various courts of appeal and to the Supreme Court of the United States.

5. The Department administers several grant and operating programs such as the Law Enforcement Assistance Administration, the federal prison system, and the federal parole boards, and functions as the recommending agency for Presidential pardons.

6. The Attorney General supervises and controls the Federal Bureau of Investigation as an aid in the discharge of his statutory responsibilities. Historically, however, there has been little supervision and control.

7. The Department comments on legal issues in proposed legislation being considered by Congress.

The Department now consists of: the Attorney General, his Deputy, the Solicitor General, and a number of Assistant Attorneys General in charge of divisions in different aspects of the law such as criminal, civil, antitrust, and others); the central staffs of the divisions, most of which are staffed with wellqualified lawyers in a de facto career system (though not under civil service); the U.S. Attorneys and their staffs in the field; and a number of operating bureaus and services which are in varying degrees supervised by or autonomous from the central Department.

Many of these elements of the Department were (and in some cases still are) involved in Watergate in various ways and at different times. Many of the difficulties highlighted in the Watergate investigations stem from two major problems, both of which have a long history: (1) the politicization of certain parts and processes of the Department; and (2) the accretion of a large variety of responsibilities that are not consistent with the conduct of a government law office.

POLITICS AND JUSTICE

Since World War II, it seems to have become neearly standard practice for the President to appoint as Attorney General one of the principle leaders of

gal matters and party or personal matters, and where there is a need for unsel paid by the U.S. Government, it is clearly more appropriate that White House Counsel to the President and not the Attorney General undertake such ..dvice.

The Panel believes that the Attorney General should be the chief legal officer or the U.S. Government and should be precluded by statute from advising the resident in his political or individual capacities.

The Appointment of Federal Justices

Giving the chief federal prosecutor the power to screen, recommend, and hen defend the appointment of federal judges, from District to Supreme Court, appears increasingly questionable. The Department of Justice is probably the most frequent litigant in the federal courts. Judges should not have the mpression that their performance on the bench is going to be judged by one of The litigants in cases he must rule upon. Necessarily, a sitting judge is going to be somewhat hesitant to rule as freely against a litigant who may be called on to judge his qualification for promotion.

The Department of Justice should, by statute, be removed from the process whereby federal judges are promoted and selected. The Panel further recommends that serious consideration be given to a substitute procedure (comparable to the so-called “Missouri Plan") whereby the preparation of initial lists of candidates be entrusted to a bi-partisan group of distinguished citizens—partly lawyers and partly laymen.

THE INVESTIGATION AND PROSECUTION OF ALLEGED WRONGDOING IN THE EXECUTIVE BRANCH

The political ties between the leaders of the Department of Justice and the White House and the Department's party identification contributed to the lack of public confidence in its investigation of Watergate. This very lack of confidence occasioned the creation of the office of Special Prosecutor to investigate the Watergate affair. The ability of the President to effect the dismissal of the first Special Prosecutor underscores the need, at least at this time, to institutionalize the office.

An office of Permanent Special Prosecutor in the Department of Justice should be set up by statute and given jurisdiction to supervise investigations and prosecute all wrong-doing where an officer of the Executive, Legislative, or Judicial Branch of government is involved. The office should have authority to investigate election fraud and assist grand juries in handing down indictments whenever appropriate. Appointment to the office should be made on a nonpartisan basis, subject to Senate confirmation, for a fixed term of at least six years.

This recommendation does not go as far as the proposed legislation before the Senate (S.2803) which would establish the Department of Justice as an "independent establishment of the United States." The meaning of "independent establishment" is not entirely clear. But this Panel believes that the Attorney General and the Justice Department play such key roles in the Constitutional responsibilities of the President that they should not be removed from his overall direction. The Panel's recommendations, together with its other proposals to depoliticize the Department, would accomplish the objective of independence in the prosecution of Executive Branch wrongdoing-which is the critical area. The proposal for a Permanent Special Prosecutor should be regarded as a transitional arrangement, the need for which would wither as the Department moved from its present political role to one of a non-political law office. In the interim, of course, the independent status of the Permanent Special Prosecutor must be assured by the President, the Attorney General, and the Congress.

Ex Parte Contact With Justice Department Officials

tacts with the legislature are regulated by the Federal RegulaAct of 1946. The Act does not make lobbying illegal, but equires registration of the lobbyist. The Executive Branch, Department of Justice, is also the subject of extensive Taffair is replete with special pleadings, both from xecutive Branch, and is but one example of the