Should there be a permanent prosecutor who serves for an extended term, such as 15 years?

Do we want a Special Prosecutor on hand all the time-looking for some high official to prosecute?

Should we have instead a permanent independent and bipartisan Commission empowered, under specified and appropriate circumstances, to designate a Special Prosecutor?

Should Congress confirm the prosecutor?

Under what conditions could the prosecutor be removed from office?

What safeguards would be necessary to protect against mischief, abuses, or political bias by the permanent prosecutor or the permanent Commission for appointment of a special prosecutor?

Should the special prosecutor function as a check on investigations and prosecutions carried out for partisan political purposes? Should the permanent special prosecutor have jurisdiction over all official misconduct to the exclusion of the Department of Justice?

I have no instant answers to any of these questions. I do not believe they, along with similar issues, should be studied by a Commission consisting of experienced and able persons in the field of administration of Justice, as I am proposing today.

Currently, there is renewed interest in the need for solutions to the problems of independent investigation and prosecution of Government officials.

On February 9, the Committee for Public Justice, under the direction of Leon Friedman, will conduct a seminar on establishing a permanent prosecutor. Speaking that morning in room 1202 Dirksen Senate Office Building will be Lloyd Cutler, distinguished Washington attorney, who has written on the need for a permanent prosecutor. The seminar will be part of a 3day series of discussions of the Politics of Justice with emphasis on the problem of political influence in the administration of justice by the Department.

In addition, a group of law students under the direction of Prof. John Banzaff III of George Washington Law School have prepared an excellent memorandum on their proposal for a permanent Federal Special Prosecutor. In their memorandum, Messrs. Peter Dingman and Ira Meiselman list the numerous State statutes providing for special prosecutors. As they observe, "one of the ironies of the furor over a Federal Special Prosecutor is the fact that State governments have traditionally provided for this device and used it successfully in a variety of ways."

Since I believe that this memorandum serves as an excellent source of information and material on the question of a Special Prosecutor, I ask unanimous consent that the full text be printed in the RECORD. I also ask unanimous consent that the text of my bill be printed in the RECORD.

There being no objection, the bill and memorandum were ordered to be printed in the RECORD, as follows: 1

FEDERAL SPECIAL PROSECUTOR ACT OF 1974

(A memorandum by Peter A. Dingman and Ira Meiselman, Co-Chairmen, Special Prosecutor Task Force, National Law Center, George Washington University, Washington, D.C.)

INTRODUCTION

This pamphlet proposes the enactment of the Federal Special Prosecutor Act of 1974. Adoption of this law would, without any extreme alteration of governmental machinery, put the Federal District Courts in a position to circumvent any conflict of interest in the office of the United States Attorney without subjecting the nation to new crises or abusing faith in our system of justice by expecting the public to believe that a prosecutor can fulfill the high duties of his office impartially when the accused are friends and colleagues.

The Federal Special Prosecutor Act of 1974 is based on successful state experience with judicially appointed special prosecutors. Research into the prob

1 See S. 2978 at p. 264.

lem of conflict of interest in the office of the prosecuting attorney by the National Law Center Special Prosecutor Task Force reveals that the overwhelming majority of state governments have recognized the seemingly inevitable possibility that a prosecuting attorney may be called upon by the duties of his office to investigate those toward whom he cannot be impartial. Forty-two states have by statute provided for the appointment of a special prosecutor in such circumstances. These laws have worked for the states and the Federal Prosecutor Act of 1974 would adapt their form and substance to the Federal System.

Congress has the power to enact this law. Article II, section 2 of the United States Constitution vests with the Congress the power to grant courts authority to appoint public officers. The Federal Special Prosecutor Act of 1974 would exercise this power to place appointing authority in the least political arm of government and the one best suited to pass on the qualifications of counsel who would appear before the bench. Because the authority conferred on the courts would be only appointing authority and not power to interefere with the exercise of prosecutorial discretion, the Doctrine of Separation of Powers would not be infringed.

The Federal Special Prosecutor Act of 1974 is the answer to a problem unavoidable where the duty to investigate and prosecute political corruption is placed on men with strong personal and political ties to those who may be accused of crime. Similar laws have met with success in state experience. Recent events suggest it is already past time for Congress to use its power to enact such a statute.

THE PROBLEM

The continuing uncertainty swirls around one constant: the U.S. system is not very thoughtfully set up for dealing with misconduct that involves the top ranks of an Administration. Time, Dec. 3, 1973. p. 73.

The Problem addressed here is, quite simply, a crisis in public confidence in the integrity of elected government and its ability to cleanse itself of officials who abuse their offices. More specifically, suspicions, allegations and actual revelations of mishandling and improper influence of cases before the United States Department of Justice have denigrated faith in Justice as a vigilant prosecutor of crimes against the public trust. Within very recent history the nation has been shocked by too many instances where the impartiality of investigation and prosecution has been left an open question. The inference is easily gathered that some crimes go unpunished.

If we look back only a couple of years we find that the special prosecutor has been used in several prominent cases-Nadjari in New York, Cox for Watergate, Sears for the Hanrahan case, and quite possibly one should have been appointed for Agnew. Even though there may be only a few cases which would require a special prosecutor it would be well worth it even if it's needed only once because these cases are so important.

It is a shame to go from crisis to crisis if we don't have to. We should not wait for a new crisis to pass a comprehensive bill. One thing our proposal would do would be to influence the Justice Department and other government agencies. They would be aware of the possibility of a disinterested person checking into the matter. This is not an insult to the Justice Department. The states have recognized the possibility of this sort of conflict of interest and have provided for it.

The problem was defined well in Governor Rockefeller's statement of September 19, 1972 announcing the appointment of Nadjari as special prosecutor to investigate corruption in the New York City criminal justice system. “Under the present circumstances only an independent agency with citywide authority, assigned a clear and specific mission and armed with full prosecutorial power and independent investigation capacity, can break through the natural resistence of government agencies to investigate themselves of their close allies."

A University of Pennsylvania Law Review article puts it:

"The realities of political life raise serious doubts that an investigation controlled by a prosecutor who owes his position and salary to those under investigation will be faithfully and rigorously pursued.

"Comparison of the spectacular disclosures of corruption made by the N.Y. Extraordinary Grand Jury with Thomas Dewey as special prosecutor and by the Michigan one-man grand juries assisted by special prosecutors with the results of ordinary grand jury investigations conducted by regular prosecutors underscores this conclusion. The burden should be shifted to the district attorney to come forward with evidence of his fitness to conduct an investigation of his political associates." David C. Toomey, "Discretionary Power in the Judiciary to Organize a Special Investigatory Grand Jury," 111 U.Pa.L.Rev. 954, 970 (1963).

As Senator Bayh's bill to create an independent Watergate Special Prosecutor declares in its findings and declarations, "Public confidence in the integrity of the nation's criminal justice system cannot be maintained if the investigation of allegations and prosecution of illegal acts of high officials of the Executive branch of government are carried out under the authority of the Executive branch itself." Findings and Declarations in Support of the Independent Special Prosecutor Act of 1973, p. 3 (Oct. 26, 1973). The Supreme Court states in Humphrey's Executor v. United States, 295 U.S. 602 (1935), "one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter's will.

That's why public sentiment would favor a statute establishing a special prosecutor as an agency completely independent of the President, to be appointed by a court. The power of Congress to establish independent agencies is unquestionable.

THE PROPOSAL

The National Law Center Special Prosecutor Task Force proposes that Congress enact the following bill empowering Federal District Courts to appoint a Federal Special Prosecutor when justice demands it:

A bill to provide for the appointment of a Special Prosecutor to represent the United States in certain criminal cases.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

1) That this Bill shall be known as the Federal Special Prosecutor Act of 1974; and

2) That section 543, title 28, United States Code (chapter 35, part 2), shall be amended to read as follows:

$ 543. Special Prosecutors

a) The Attorney General may appoint attorneys to assist United States Attorneys when the public interest so requires. Each attorney appointed under this subsection (a) is subject to removal by the Attorney General.

b) (1) Whenever it shall appear that a United States Attorney, whose duty it is to attend upon a district court and prosecute as required by law or to conduct other business over which the court has jurisdiction, is disqualified by a conflict of interest or otherwise, disabled or unable to appear for any other reason and the United States Attorney General, after reasonable notice of such disqualification, disability or inability, has filed to act under subsection (a) above, the judge or judges of the district court before which it is his duty to appear shall have full power to appoint such attorney or attorneys as it deems necessary to act as special prosecutor, special counsel to a grand jury or perform such other functions as are required by justice and the public interest. Each attorney so appointed is subject to removal by the court.

(2) Nothing in this section shall be construed to be in derogation of inherent powers of the courts to disqualify counsel from appearing before them when counsel suffer from potential or actual conflict of interest.

(3) The Supreme Court of the United States is authorized to prescribe, from time to time, rules of procedure to carry out the provisions of this section.

(4) The salary and reasonable expenses, including expenses for office space, secretarial and clerical assistance, and necessary equipment, of the Special Prosecutor or Special Counsel appointed by the court shall be paid out of the regular appropriations made for the Department of Justice or such other fund as Congress may appropriate.

STRUCTURE AND CONTENT OF THE ACT

The structure of the proposed act was dictated by its goal: to provide a simple, reliable mechanism for the appointment of an alternative counsel for the government in cases where the regular U.S. Attorney is disqualified to properly exercise the functions of a federal prosecutor.

The present section 543 of Title 28, United States Code is retained. Under this section the Attorney General is given primary responsibility to see that the United States Attorney assigned to any case is not hampered by a personal conflict of interest or other disability. The Federal Special Prosecutor Act is directed only at that extraordinary case in which a disqualification or disability exists and the Attorney General though aware of the situation does not act as justice and the public interest require. In such a case the district court is empowered to act and appoint someone who can represent the people with undivided loyalty.

The first paragraph of the Act contains the major authorization. Leaving specific procedure to be worked out by the judiciary, the new law clearly sets out the basic criteria application of its provisions. The district court, before exercising the authority here conferred, must find: 1) that some matter, over which the court has jurisdiction, demands the attendance at court of the U.S. Attorney; 2) that justice and the appearance of justice are incompatible with appearance in that matter of the regular prosecutor; and 3) that the Attorney General, with knowledge of this detriment to the public interest, had not acted under subsection (a) of the law. Only then could the court appoint an independent counsel to exercise the authority and discretion of counsel for the government as to the pending matter.

The second paragraph of the Federal Special Prosecutor Act leaves with the Supreme Court of the United States responsibility for promulgating the specific rules of procedures under this section of the law. This seems no more than assigning the task to those best able to perform it. Similar approaches were used in drafting the Federal Rules of Civil Procedure and the Proposed Federal Rules of Evidence. Procedural rules drafted by the judiciary seem more likely than those fashioned by the legislative process to content themselves with governing the form and not the content of the proceeding.

Finally the Act disclaims any intent to limit the common law power of courts to disqualify counsel for any party for appearing in a matter when their loyalty to the client is not complete. There is a real question as to whether any attempt to limit this power would be constitutional. In any event, there is no reason to believe Congress would do so if it could.

Provision is also made for payment of salary and costs out of regular Justice Department funds or special appropriations. This should insure that economic considerations do not interfere with the capacity of a Special Prosecutor to do justice.

STATE EXPERIENCE

The Special Prosecutor device is not a new answer to the problem of conflict of interest in the office of the regular prosecuting office. The overwhelming majority of states, forty-two, have seen the utility of some Special Prosecutor provision. Thirty-two state legislatures have by statute placed appointing authority in trial judges of general jurisdiction. A substantial number of state courts have claimed that appointing authority as an inherent right.

This experience of the states with special prosecutors seems to be relevant in two ways here. First, the use of the device by state governments for over a century indicates the utility of such provisions and their resilience under a variety of court challenges. Second, the success of the state statutes, representative samples of which appear in the appendix, demonstrate the workability of a concise, uncomplicated statutory provision. The samples set out in the appendix were chosen because they reflect the common trends in the various state laws. Almost all are rather short giving authority to trial court judges to appoint a special prosecutor whenever a conflict of interest or other disability disqualify or prevent the regular prosecutor from appearing properly before the court. This should appear also from the table of state provisions in the appendix and statutes there cited.

The table in the appendix includes citations to the state court holdings which assert that the right to appoint a special prosecutor is a right belonging to all courts charged with administering the criminal laws. These cases and those, too numerous for citation here, upholding state special prosecutor statutes are of some interest in indicating that the state courts have refused to find prosecution by a special prosecutor violative of a defendant's due process rights, e.g., Tomlinson v. State, 182 S.E. 2d 320 (Ct. of App. Ga. 1971); People v. Doss, 48 N.E. 2d 213 (App. Ct. III. 1943), cert. denied 321 U.S. 789 (1943). Rather than attempt to annotate the experience of the several states in this area we have chosen to examine a single state's representative experience with the office of special prosecutor.

For extended discussion it is perhaps enough to note the experience of the State of Illinois. That state's law is typical of statutes in many other jurisdictions. (See examples Appendix 1B.)

"Whenever the Attorney General or State's Attorney is interested in any cause or proceeding, civil or criminal, which it is or may be his duty to prosecute or defend, the court in which the cause or proceeding is pending may appoint some competent attorney to prosecute or defend said cause or proceeding and the attorney so appointed shall have the same power and authority in relation to such cause or proceeding as the Attorney General or State's Attorney would have had if present and attending the same." Ill. Rev. Stat. Ch. 14, sec. This law has been challenged as violating Constitutionally mandated separation of powers. The Illinois State Constitution has a clause expressly setting out three branches of government, "Legislative, Executive, and Judicial", and proclaiming that no one, holding office in one branch, "shall exercise any power belonging to either of the others, . . ." Art. III, 1870 Ill. Const. The Illinois Supreme Court held that mere appointment, pursuant to and according to the terms of the statute, was not violative of separation of powers or the state constitution. Tearney v. Harding, 166 N.E. 2d 526 (Ill. Sup. Ct. 1929). Appointing an officer to exercise the prosecutorial function was found not to be an invasion of executive function.

In the very recent history the existence of this law has proved dramatically useful to the State and people of Illinois. The entire and more specifically, the City of Chicago had been aroused by the circumstances surrounding the policemilitant shootout at a Black Panther headquarters. An initial county grand jury charged only crimes against seven Panthers. Then a federal grand jury, investigating whether the civil rights of Hampton and Clark (the dead Panthers) had been violated by the police, declined to indict anyone, but did report that the evidence was contrary to some of the police claims. Shortly before the federal grand jury's report. State's Attorney Edward Hanrahan's office had abruptly reversed itself and decided to drop the Panther indictments because of "faulty" evidence.

In the midst of all this and the resulting press and public pressure, a special county grand jury was convened to look into the whole affair. Because of the potential conflict of interest for the regular prosecutor, Chief Criminal Courts Judge Joseph Power appointed a Special Prosecutor for the case. Barnabas Sears, who among other distinctions had once before served in the same post and resolved a police scandal by winning 8 convictions, was appointed to handle this case. This appointment also survived litigation. People v. Sears, 49 Ill 2d 14, 273 N.E. 2d 380 (1971). In light of the situation's obvious potential to produce not just distrust of government, but social upheaval, it is difficult to imagine a better example (except perhaps the appointment of Archibald Cox) of the efficacy of the special prosecutor device in a system of government like our own. Of course in this case, where charges ran directed against the regular prosecutor, a man with close political ties to other members of the Executive Branch of government, there was no suitable alternative to judicial appointment. It may require the judgment of history to proclaim the Sears appointment a total success but the impropriety of asking Mr. Hanrahan to investigate his own office is clear.

It is possible to cite other examples of state special prosecutors who have served both justice and the public interest in maintaining the appearance and fact of justice. From Nadjari and Dewey in New York the use of special pros