but there may be an even better way. In the past, the U.S. Attorneys were tried and proved generally unsatisfactory on a program basis. That's one reason we set up the strike forces."

Robert M. Morgenthau, former U.S. Attorney (1961-62, 1963X70) for the Southern District of New York, who prosecuted several organized crime cases, called the strike forces a "bad concept" and said they should be used only when a U.S. Attorney cannot cope with a case because it is too big. "In the past," Morgenthau said, "strike forces have been sent in where they have not been needed; this has created a problem of investigative agencies not knowing where to take their evidence.

"If the U.S. Attorney can't do the job, then Justice should get rid of him if he's not professionally competent."

Investigative agencies-The mandate of the investigative agencies subcommittee, as set by the advisory committee, is to study the quality and control of the work of the investigative agencies with whom U.S. Attorneys deal regularly. The agencies include not only those within the Justice Department, such as the Federal Bureau of Investigation and the Drug Enforcement Administration, but also agencies such as the Internal Revenue Service and the Bureau of Alcohol, Tobacco and Firearms, both in the Treasury Department.

The subcommittee chairman, William C. Smitherman, U.S. Attorney for Arizona, said that U.S. Attorneys have to be careful in making recommendations about non-Justice Department agencies because "other Cabinet heads are involved." He said that while "we're not concerned with the adequacy of performance among the investigators, perhaps there is a need for more exper'tise."

Caseload-In response to their increased caseload, which has approximately doubled since 1962, (see chart, page 1785) the U.S. Attorneys have grown increasingly concerned about the sufficiency of their own manpower and resources, and whether there are too many restrictions from the legal divisions in Washington.

Robert Morse of New York, vice-chairman of the advisory committee and chairman of the subcommittee on case referral and the allocation of case responsibility, said the subcommittee will address whether there is a need for decentralization of decision making. "We need an over-all structure in which management decision can be better made so there won't be too much emphasis on the department's manpower." He suggested that attorneys now working in Washington "might be better off" working in a U.S. Attorney's office.

Morse's view is subject to some dispute at Justice. Irving Jaffe, acting head of the Civil Division, said the need for consistency and the muting of local interests require his division to give "a bulk of our work to supervision and advice even if they (U.S. Attorneys) don't want it."

Whitney North Seymour Jr., former U.S. Attorney (1970-73) for the Southern District of New York, voiced a similar sentiment. Referring to "the lack of direction and coordination in some areas," Seymour said that his office never prosecuted anyone for simple possession of marijuana while another district in the country this year made the prosecution of such an offense "a major part of its work." This disparity points up the "great need for a national set of enforcement priorities, with input from the U.S. Attorneys," he said.

Legislation and rules-Chairman H. M. Ray, U.S. Attorney for the Northern District of Mississippi, said the goal of his legislation and rules subcommittee is to examine ways in which U.S. Attorneys can participate more meaningfully in the formulation of the Justice Department's proposals for new legislation and court rules.

"By and large, U.S. Attorneys are so busy that we have to react to day-today litigation on our desk, which is our primary job," Ray said. "While I've never hesitated to give my views on department policies, I hope the establishment of the subcommittee will encourage us to do so as a group."

Dean Smith, chairman of the advisory committee, said the U.S. Attorneys have been interested in contributing their views on legislation "but we don't have the machinery to pump in our views."

Harold D. Koffsky, chief of the legislation and special projects section of the Criminal Division, said his office "sometimes" solicits the views of the U.S. Attorneys on proposed legislation but that "often there's not enough time or manpower." He said that when they do respond, the answers are not always on "as reasoned a basis as is possible."

He said he already has met informally with the advisory committee and that it might be a useful body for his office to turn to when it needs comments in a hurry. With the present largely ad hoc means of communication, “we often don't even know their problems," Koffsky said.

Proficiency and communications-Ralph F. Keil, U.S. Attorney for Delaware, said his subcommittee on professional proficiency and communications will be primarily a “housekeeping” subcommittee. Declaring that “future shock has set in," he said legal problems have become more acute in a shorter time because of the rapid expansion of known information.

Keil said the subcommittee will explore how to train assistant U.S. attorneys in a shorter time, citing the Judge Advocate General programs of the military agencies as an example where professional proficiency is developed in "a matter of weeks."

Ralph Guy, U.S. Attorney in Detroit, said that "because the workload has increased so tremendously, it's harder to adequately train people, and sometimes we have to put our troops into battle before they've been properly prepared."

JUSTICE DEPARTMENT

Lawyers in the Justice Department, many of them career civil servants, play a dominant role in the referral and supervision of cases handled by U.S. Attorneys. With the exception of most criminal cases, they review and decide the strategy in a large majority of the cases-sometimes resulting in resentment but, on other matters, bringing about a sigh by relief by overworked U.S. Attorneys.

Former U.S. Attorney Seymour of New York said his colleagues often expressed concern about "the high-handed relationships" assumed by Justice Department lawyers.

But a top policy maker in the Antitrust Division bemoaned the lack of response to repeated attempts by his division to encourage U.S. Attorneys to litigate local price-fixing cases.

And a career employee of the Land and Natural Resources Division, said his division's active supervision of the U.S. Attorney's caseload is often a result of the fact that "U.S. Attorneys serve a short time and have to look to the future when they'll no longer be in office."

Many top Justice Department attorneys emphasize the desirability of "professionalization" of U.S. Attorneys offices by the institution of a career service for as many as one-half of the assistant U.S. attorneys.

Criminal cases: For the most part, criminal cases are referred directly to the U.S. Attorney by the investigative agency without any review by the Criminal Division, and the U.S. Attorney is free to prosecute if he sees fit.

Assistant Attorney General Henry Petersen said the division encourages this "direct reference" process because it would be "needless for a tremendous bureaucracy to review all the cases." He acknowledged that this relative independence for U.S. Attorneys leads to "some inconsistency" but said "that isn't bad."

"The function of policy is not to develop consistency but to set guidelines. It would be utterly asinine to reduce the judgment of professional U.S. Attorneys to a minimum," Petersen said.

Stephen H. Sachs, former U.S. Attorney for Maryland (1967-70), said that a principal reason why the Criminal Division exercises less discretion than do other divisions is that most U.S. Attorneys are more interested in criminal than in civil cases. Sachs listed the following factors as some reasons for this predilection of U.S. Attorneys:

The 6th Amendment requirement that the accused in a criminal case have the right to a speedy trial, a right that many courts have interpreted to mean a maximum of 60 days;

A more immediate sense of "psychically serving the public interest in prosecuting criminal wrongdoing";

The relative ease with which a lawyer can make a name for himself prosecuting criminal cases, because, the press gives them much more attention that it does civil cases;

The "hunter instinct that is in all of us."

Dean Smith said that a U.S. Attorney "can't help but focus on criminal cases because the criminal justice system is a focus of the American people." Smith

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said that even though more than 60 percent of the cases in his district are of a civil nature, he spends a disproportionate share of his time on criminal cases "because it's more important to the people in my district whether someone is prosecuted and goes to jail for a crime than whether a mortgage foreclosure is properly settled, because crime affects everybody." He said the same thesis applies to press coverage of the courts.

Civil Division: The referral of cases to U.S. Attorneys by the Criminal Division is in marked contrast to the same process in the Civil Division. Acting Assistant Attorney General Irving Jaffe said that with the exception of some direct reference cases where the maximum suit is $10,000, the assistant attorney general or a section chief must authorize each civil suit referred to a U.S. Attorney. The division processed 16,672 such cases in fiscal 1973.

(Jaffe is nominally one of the three deputy assistant attorneys general in the Civil Division. But since the resignation in July of Harlington Wood Jr. to become a U.S. District Court judge in the Southern District of Illinois, and with the vacancies of the two other deputies in the division, Jaffe has had to fill the shoes of four individuals, and will likely continue to do so at least until a new Attorney General is confirmed.)

Jaffe explained instances when the division is likely to decide to litigate a case rather than delegate it to a U.S. Attorney:

If "we think it's a novel que tion, will lead to a broad range of litigation, or we want a uniform approach";

If it is a particularly sensitive case or receives a lot of press attention;

If there are strong local interests that might put the U.S. Attorney on the spot or jeopardize his ambitions;

Even if the case is simple "we might assign it to an attorney in the Civil Division to give him trial experience."

Former U.S. Attorney Morgenthau of New York was critical of the Civil Division for “trying hard to control everything an assistant U.S. attorney does: it made it hard for us to get good people." He recommended that the division coordinate policy with guidelines but leave a large measure of responsibility to lawyers in the field.

Jaffe responded to this point by saying that the advisory committee may be able to fill the role of a central place where U.S. Attorneys can voice their concerns on policy. In the past, Jaffe said, each U.S. Attorney regarded himself as "a king in his own bailiwick." and an "attempt to formulate a consensus view might have had trouble."

Antitrust: Keith I. Clearwaters, deputy assistant attorney general in the Antitrust Division, said the division has been trying since 1967 to get U.S. Attorneys more involved in local price-fixing cases, "which many people in the division think are abundant because local people don't believe the antitrust laws are directed at them."

The effort began with a statement to the U.S. Attorneys by Attorney General (1967-69) Ramsey Clark, assigning them responsibility for cases of "an essentially local character, and which involve price fixing, collusive bidding or similar conduct."

Clearwaters said that, in spite of an intensified campaign by the division's current assistant attorney general, Thomas E. Kauper, only a single antitrust case, in St. Louis, has been initiated by a U.S. Attorney. He said that among the reasons there has been so little response are "the mystique of antitrust," price-fixing cases are mistakenly viewed as "big-case litigation" and the U.S. Attorneys feel "their resources are too thin." But Clearwaters added that he hopes the creation of the advisory committee will accelerate the development of a more formal working relationship between the division and the U.S. Attorneys.

Tax Assistant Attorney General (Tax Division) Scott P. Crampton said his division attorneys try all of the tax refund cases "because of the need to treat taxpayers uniformally and because the cases are sophisticated." Criminal violations of the tax statutes are handled by the U.S. Attorneys, but the division provides assistance if the case is too complicated, if help is required by a smaller office or if the U.S. Attorney "plays wolf with the defendant," Crampton said.

He said that "most U.S. Attorneys are delighted to have a case prepared by us" and that decisions on giving assistance to the U.S. Attorney are made on a

"case-by-case basis." Investigative work for most tax cases is initiated and processed by the Internal Revenue Service.

Lands: The Land and Natural Resources Division is similar to the Tax Division in that it initiates few cases on its own and primarily supervises the litigation of its client agencies, including the Environmental Protection Agency, Interior Department and Army Corps of Engineers.

Assistant Attorney General Wallace Johnson said there are "no specific rules" on when a case is assigned to a U.S. Attorney, but that "I'd like to work on this problem in order to allow U.S. Attorneys to handle more cases." The lands division currently acts as a "middle-man" in assigning most of the cases from the client agencies that are tried by U.S. Attorneys.

Johnson added that "it has been difficult to get a uniform policy suggestion from the U.S. Attorneys in the past" because they have different views and geographically are separated. To the extent that they will talk with one voice through the advisory committee, "that becomes a more powerful voice," Johnson said.

AGENCIES

If some of the attorneys in the Justice Department have voiced concern about-and even criticism of the U.S. Attorneys' operations, several lawyers for other government agencies have been more forthright in their criticism of the three-cornered federal legal representation apparatus.

According to Jaffe of the Civil Division, federal law makes every federal agency except the Securities and Exchange Commission dependent on the Justice Department for litigation of most, if not all, of its court cases. The approximately eight agencies that have some independence as a result of informal agreements with the Justice Department include some, but not all, of the so-called independent agencies. For example, Jaffe said, the Interstate Commerce Commission and Federal Power Commission try some cases in court arising out of agency actions, but the Federal Communications Commission needs the cooperation of Justice in all cases.

Jaffe provided the traditional Justice Department justification for this policy: "I want the other departments to be parochial in their approaches and be an advocate of their own programs. But laws have to apply to all agencies, and we have to maintain a broad picture. This can't be done if the agency attorney has to maintain his department's interests; this evil should be avoided and can be by the Justice Department, which has the broader picture. It's the responsibility of the Civil Division to develop in court this unified government approach."

FTC: Agency desire for more independence from the Justice Department was demonstrated dramatically last month when the Federal Trade Commission (FTC) successfully lobbied for the power to litigate some of its suits without the clearance of Justice. This provision was a controversial rider to the Alaska pipeline bill (S 4081; 87 Stat 576). (For background, see Vol. 5, No. 45, p. 1693.)

In an interview the day following congressional passage of the pipeline bill, FTC General Counsel Calvin J. Collier voiced satisfaction with the new responsibilities of his office. And while he agreed with Jaffe that "there is merit to having the government speak with one voice, particularly on issues that cut across several agencies," he said there should be exceptions made on a practical basis.

He said that he realized "it will be in our interest to avoid conflicting with the Justice Department's position unless there is good cause, because it would create problems for us to argue a different standard before a judge." But he said that the Civil and Antitrust Divisions had, before passage of the pipeline bill, allowed the FTC to argue many of its cases in court "by leave."

(In signing the pipeline bill into law Nov. 16, President Nixon said that he would seek legislation to retract some of the additional powers that have been granted to the FTC.)

EPA: Alan Kirk, general counsel for the Environmental Protection Agency, said most of the lawyers on his staff "would prefer doing their own litigation" but that it would take too much time and would require a tripling of the staff. Also, Kirk said, most of the work of the general counsel's office currently is devoted to the formulation of regulations for several recently enacted statutes that EPA administers.

So far, Kirk said, his offices had not received much pressure from U.S. Attorneys eager to prosecute environmental suits. He and his staff, particularly in EPA's 10 regional offices, are working with U.S. Attorneys to prepare an onslaught of suits EPA expects to initiate within the next year, including suits charging noncompliance with state implementation plans under the Clean Air Act Amendments of 1970 (84 Stat 1676), and violations of permits issued under the Federal Water Pollution Control Act of 1972 (86 Stat 816). (For most recent reports on clean air enforcement, see Vol. 5, No. 10, p. 345; on clean water enforcement, see Vol. 5, No. 11, p. 367.)

In an interview shortly before his Oct. 20 resignation as deputy attorney general, William D. Ruckelshaus, who was EPA administrator from 1970 to early this year, said that some U.S. attorneys who are "used to bringing suits" And become "frustrated" with the EPA rule-making process because so few Court cases were being referred to them.

HUD: Arthur J. Gang, assistant general counsel of the HUD Department, aid most of HUD's caseload is processed through the Civil Division at Justice. While he said he recognizes the need for agencies coordinating litigating strategy through Justice, and said the procedures were acceptable, he was critical of both the department and the U.S. Attorneys for not being "properly wtaffed."

"It takes a well-qualified attorney to handle housing cases because they are 0 complicated; it's something an overworked U.S. Attorney can't learn overnight. The Civil Division, which has only one lawyer assigned to housing cases underestimates this factor," Gang said.

As a result, he said he had encouraged attorneys in the HUD regional offices to keep in touch with members of the U.S. Attorney offices on particular cases. "The U.S. Attorneys are grateful for our assistance and usually accept it," Gang said.

However, Jaffe of the Civil Division criticized several agencies having large regional offices-including HUD, the HEW Department, the Small Business Administration and the Labor Department-for trying to "gain control of litigation." He said agency attorneys should participate in cases only with the permission of the Civil Division because the "agency's regional attorney often isnotfamiliarwiththeprocedureofcourtroomlawand willgetintoajam."

is not familiar with the procedure of courtroom law and will get into a jam." Gang said HUD should be permitted to litigate some of its own cases without going to Justice, particularly in areas where the department has a separate regulatory program. He cited the interstate land sales program as an example. (For background, see Vol. 5, No. 37, p. 1377.)

Interior: Kent Frizzell, solicitor at the Interior Department, supervises the department's legal activities, working primarily with the lands division at Justice. He is in the unique position of having served from February 1972 until April 1973 as head of the lands division. Frizzell said U.S. Attorneys rarely argue key cases for Interior. These cases are argued primarily by attorneys from the lands division.

But, he said, "There is a lot more expertise in the U.S. Attorney offices than people in Washington give them credit for. The major reason why they don't handle more Interior cases is their own backlog, plus the large lands division staff in Washington, which works closely with Interior."

Frizzell said that while he was at the lands division he told his attorneys they had the prerogative of representing the government. But he said he did permit an occasional exception if an agency attorney sought to argue a case. Since going to Interior, Frizzell has told his attorneys not to become an advocate of a point of view until they are sure the position represents department policy.

"You can't give good legal advice if you're the captive of your client," he said,

SELECTION

A key short-term step that can be taken by the Justice Department and the U.S. Attorneys to upgrade the latter group's profile in the federal legal establishment is increased professionalization and expertise among the U.S. Attorneys and their staffs. While they do not all agree on a solution, a majority of those interviewed favor the development of a means to assure there is a permanent cadre of lawyers in the U.S. Attorney offices directly responsible to Justice.