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The committee met at 10 a.m. in room 3302, Dirksen Senate Office Building, Senator Abraham Ribicoff, [chairman] presiding. Present: Senators Ribicoff, Percy, and Weicker.

Staff members present: Richard A. Wegman, chief counsel and staff director; David R. Schaefer, counsel; Marilyn A. Harris, chief clerk, Elizabeth A. Preast, assistant chief clerk.

OPENING STATEMENT OF SENATOR RIBICOFF

Chairman RIBICOFF. The committee will come to order.

Today the Committee on Government Operations continues its hearings on S. 495, the Watergate Reorganization and Reform Act of 1975. This bill is based upon the recommendations of the Senate Select Committee on Presidential Campaign Activities, also known as the Watergate Committee.

Senator Percy and I introduced the Watergate reform bill as a vehicle for the serious consideration of proposals to correct imperfections in our system of government which were revealed by Watergate. Senator Percy and I consider S. 495 as a working draft.

A new bill was introduced yesterday by Senator Abourezk which attempts to improve upon the proposal in the Watergate Reform Act for a Congressional Legal Service.1 I understand that the Department of Justice received an advance copy of that legislation and is prepared to comment on it today. The committee looks forward to having Senator Abourezk testify before us on his bill next Monday.

I also understand that the Department of Justice has received the recommendations contained in the final report of the Watergate special force and the draft proposal of the American Bar Association's Special Committee to Study Federal Law Enforcement Agencies and that Mr. Uhlmann, of the Justice Department, is prepared to discuss the Department's view of those proposals.

The Department of Justice has requested that it be permitted to comment on the financial disclosure proposals before this committee at a later time because the Department needs more time to prepare its views on these proposals. Therefore, arrangements will be made for the Department of Justice to testify at a future hearing on this subject or to submit their written views on these proposals.

Today our first witness is Michael Uhlmann, Assistant Attorney General for Legislative Affairs.

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Mr. Uhlmann will present the administration's point of view on S. 495.

Now, do you want to proceed?

TESTIMONY OF MICHAEL M. UHLMANN, ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGISLATIVE AFFAIRS, DEPARTMENT OF JUSTICE

Mr. UHLMANN. Yes.

Mr. Chairman, I am pleased to have the opportunity to present the views of the Department of Justice on S. 495, the Watergate Reorganization and Reform Act of 1975, and certain related amendments and bills. Because of time limitations, the Department has not been able to analyze in detail the several bills (S. 181, S. 192, S. 2092, and S. 2295) relating to financial disclosure. Pursuant to discussions with committee staff, Mr. Chairman, the Department would be happy to submit its written views on any matters not covered today, or, if the committee prefers, return to testify at a later time.

Similarly, Mr. Chairman, with respect to the Percy-Baker amendment No. 495 dealing with wiretaps and electronic surveillance, the Attorney General respectfully requests that the Department be permitted to defer commenting until a later time. As the committee is aware, there are a number of bills now pending before various committees in both Houses on this extremely complex subject and the Department is still in the process of formulating its views. Some idea. of the scope of the problem may be had by an examination of the testimony recently presented by the Attorney General before the Senate Select Committee on Intelligence-November 6, 1975-a copy1 of which I would request be included in the record.

Chairman RIBICOFF. Without objection, so ordered.
Mr. UHLMANN. Thank you Mr. Chairman.

TITLE I. ESTABLISHMENT OF GOVERNMENT OFFICES

1. Office of Public Attorney (sec. 101; pp. 1-12 of the bill)

The proposal: Under section 101 of S. 495, title 28 of the United States Code would be amended by adding a new chapter creating a permanent Office of Public Attorney, independent of the Department of Justice and the entire executive branch, which would have the exclusive responsibility for investigating and prosecuting allegations of corruption in the administration of laws by the executive branch, conflict-in-interest cases referred by the Attorney General, criminal cases referred by the Federal Election Commission, and allegations of violations of Federal campaign and election laws.

Three retired court of appeals judges, selected for the purpose by the Chief Justice of the United States, would appoint the Public Attorney, by and with the advice and consent of the Senate. He would serve 5 years and could be appointed for one additional term of 5 years. A vacancy in the Office would be filled in the manner of an original appointment. In order to qualify, an appointee would have to agree not to occupy or discharge the duties of any Federal elective office, or to accept any other Federal employment, for a period of 5 years after the conclusion of his tenure as Public Attorney.

1 See p. 398.

The Public Attorney would be required to notify the Attorney General of the initiation and termination of investigations and proceedings within his jurisdiction. During the pendency of any such investigation or proceeding the Attorney General would be obliged to direct the Department of Justice not to conduct any investigation or prosecution, or to take any related action, with respect to the same subject matter, or any related or overlapping matter, except with prior written approval of the Public Attorney. In addition, at any time the Attorney General believed or had reason to believe that an investigation conducted under his supervision involved or might likely involve a conflict of interest or matter otherwise within the jurisdiction of the Public Attorney, the Attorney General would be obliged promptly to notify the Public Attorney thereof. In any such event the Public Attorney would, at his discretion, either defer to the Attorney General's investigation, take over the investigation solely on his own responsibility, or participate with the Attorney General in the further conduct of the investigation.

If the Attorney General disapproved of the filing of any indictment or information, or of any subsequent action or position taken by the Public Attorney in the resulting judicial proceeding, the Attorney General would be entitled to appear and present his views amicus curiae to the court before which the proceeding was pending.

With regard to matters within his jurisdiction, the Public Attorney would be vested essentially with all the same powers now exercised by the Attorney General (and U.S. attorneys) over such matters. Included would be the authority to direct Federal investigative agencies to collect evidence, to prosecute criminal cases from inception through the appellate processes, and to conduct civil proceedings to enforce, or to obtain remedies for violations of, the laws he is charged with enforcing.

The Public Attorney would also be authorized to establish a staff and exercise appropriate administrative controls, including the making of rules and regulations to carry out his duties and functions. His offices would be maintained physically apart from offices of the Department of Justice. All Federal departments and agencies would be obliged to make available to the Public Attorney, at his request, its services, equipment, personnel, facilities, and information, to the greatest extent practicable, consistent with law.

Discussion: In analyzing the Office of Public Attorney intended to be created by S. 495, we think three key questions should be answered: (1) Would the Public Attorney be performing executive functions? (2) Can executive functions be assigned to a nonexecutive agency? (3) Can an executive agency have a head appointed by someone other than the President?

(1) At the very core of "executive functions" is litigation to enforce a criminal law. In distributing the powers of the three branches of government, the Constitution's only reference to prosecutorial powers is in article II, section 3, which states that the President "shall take care that the laws be faithfully executed." Section 101 of S. 495 expressly provides that the Public Attorney shall "investigate and prosecute"-that is, he shall perform executive functions. See Ponzi v. Fessenden, 258 U.S. 254 (1922); United States v. Cox, 342 F. 2d 167

(5th Cir. 1956), cert. denied, 381 U.S. 935. In the latter case, decided en banc, Judge Wisdom, who concurred specially, noted:

The prosecution of offenses against the United States is an executive function within the exclusive prerogative of the Attorney General. 342 2d at 190.

Judge Wisdom's understanding is fully in accord with the understanding of the Framers as articulated by James Madison during the Removal Debate in the First Congress:

I conceive that if any power whatsoever is in the nature of the executive it is the power of appointing, overseeing, and controlling those who execute the laws. (Annals of Congress, pp. 481-82, 1789).

(2) The law is clear that exclusively executive functions cannot be validly assigned to an exclusively non-executive agency. In Springer v. Philippine Islands, 277 U.S. 189 (1927), the court held that the legislative branch could have no hand in the appointment of the board of directors of a public corporation. The activities of public corporations are surely more remote from the heart of executive power than the power to enforce the law, yet the Supreme Court would not permit even so limited a divestiture of executive power by the legislative branch. It seems clear on the basis of Springer that the Court would not permit divestiture of control over criminal law enforcement power.

The case of Humphrey's Executor v. U.S., 295 U.S. 602 (1935), is readily distinguishable. The court there upheld the power of Congress to qualify the President's power of removal as to officers of certain administrative bodies created by Congress to carry out delegated legislative policies. But the holding of Humphrey's Executor is distinguished precisely by the "quasi-legislative" and "quasi-judicial" character of the agencies in question. The Public Attorney envisioned by S. 495 would not perform legislative or judicial functions; his sole function would be to enforce the law. As such, we do not believe that the argument of Humphrey's Executor lends any support to the constitutionality of section 101 of the bill. Indeed, Mr Justice Sutherland, who wrote the Court's opinion in Humphrey's, also authored the decision in Springer, where he stated that:

Legislative power, as distinguished from executive power, is the authority to make laws but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions.

(3) If the Public Attorney would and must be a part of the executive branch, then he is an officer of the United States who must be appointed by either the President, the heads of departments, or the courts of law as provided in article II, section 2, clause 2 of the Constitution. This provision is explained in United States v. Germaine, 99 U.S. 508, 509-510 (1878), as follows:

The Constitution for purposes of appointment very clearly divides all its officers into two classes. The primary class requires a nomination by the President and confirmation by the Senate. But foreseeing that when offices become numerous, and sudden removals necessary, this mode may be inconvenient, it was provided that, in regard to officers inferior to those specially mentioned, Congress might by law vest their appointment in the President alone, in the courts of law, or in the heads of departments. That all persons who can be said to hold an office under the Constitution were intended to be included within one or the other of these modes of appointment there can be but little doubt.

The proposed legislation does not employ either of the prescribed methods for the appointment of executive officers, purporting instead

to vest appointment of the public attorney in three judges, who are not a court of law in any event. Assuming for the sake of argument that the public attorney could be considered an inferior officer in the constitutional sense, and even assuming that three judges are a court, a serious question still arises whether the task of making permanent appointments could properly be given to a court. A portion of the executive branch would thereby be placed under the control of the judiciary, which is no more acceptable than having it placed under the control of Congress. Springer unequivocally states the court's refusal to allow the legislature to exercise either executive or judicial power or the judiciary to exercise executive or legislative power. Likewise, the court of Humphrey's Executor repeatedly emphasized that the FTC members are appointed by the President, and also stated that it would be absolutely intolerable to have the functions of one branch under the control of either of the other two branches. Mr. WEGMAN. Would your view be different, in the case of an ad hoc temporary appointment?

Mr. UHLMANN. No.

Mr. WEGMAN. You would still take the same position, or would it be different?

Mr. UHLMANN. Clearly, there is precedent for a temporary appointment, and under the Federal rules of criminal procedure, as you are aware, there is provision for making temporary appointments in special cases.

The Department would support, under special circumstances, following precisely that kind of procedure.

Mr. WEGMAN. So if we were to consider the kind of approach, where you would have some kind of mechanism to create an ad hoc prosecutor, to deal with certain specific instances for a limited period of time, you would have no question about it.

Mr. ÜHLMANN. The Department would be concerned with the mode of appointment. Quite obviously, we would prefer, and indeed, I think insist that the appointment be made, either by the President, or by the Attorney General rather than by the court.

The question is not only the temporary character of the appointment, but the scope of the duties to be performed by the special attorney.

The greater the scope of those duties, the less congruous the appointment would be if made by anyone other than executive authority. Mr. WEGMAN. From the constitutional point of view, you could do it in a court of law just as well, as long as it was a legitimate court of law.

Mr. UHLMANN. I am not sure.

Again, it depends on the extent of his duties. In order for it to be a valid appointment, by the court of law, he would have to be an inferior officer.

If the scope of his duties were by definition not inferior in nature, but he would probably have to report either to the President, or to an agent of the President in the executive department.

You have in such an appointment situation, presumably a latent power of removal by the President.

Mr. WEGMAN. Thank you.

Mr. UHLMANN. The "inferior officer" clause-article II, section 2, clause 2-in short, must be read within the broader context of the

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