370 NEW YORK UNIVERSITY LAW REVIEW (Vol. 50:366 firmation but would serve a six-year term and be subject to presidential removal only for neglect of duty or malfeasance. 24 Incoming Presidents, therefore, might often confront holdovers with assured tenure.25 Some Justice sub-Cabinet officials would also be presidential appointees granted similar tenure and removal protections, while others would be appointed by the Attorney General. 28 In contrast, the plan of former United States Attorney Whitney North Seymour, Jr., presents aspects of both approaches toward reform. It proposes less drastic surgery than the Ervin bill: much of the Department would remain in the executive branch. The Seymour plan recognizes that some functions of the Attorney General and the Department should be insulated from executive control, while others require primary loyalty to the President. 27 Two separate Cabinet positions thus emerge under his plan-an Attorney General and a Chief Prosecutor. The latter's office would be modeled after an English prototype. 28 The Attorney General would retain present advisory and legislative functions, as well as control over several policy-oriented Justice administrative bureaus, 20 while the Chief Prosecutor would head a new and separate Department of Law Enforcement, subsuming litigation, prosecution and most police functions. 30 The FBI would be similarly subdivided, again along functional lines. A Director of Security would head an agency under executive control, while a Director of Federal Investigations would head a bureau with independent authority. 31 Under the Seymour plan, the President would still appoint all of these officers, subject to Senate confirmation. 32 Candidates for the positions of Chief Prosecutor and Director of Federal Investigations, however, could be drawn only from a list prepared by a court 24 Id. § 2(a). 25 The Attorney General would, however, be removed from the order of succession to the Presidency. Id. § 6 Under the Ervin plan, the President would appoint the Deputy Attorney General and the Solicitor General to six-year terms. Id. § 2. The Attorney General would appoint the Assistant Attorneys General, id., the Director of the FBI to a four-year term, id. § 3, the United States Attorneys, id. § 4, and federal marshals. Id. § 5. 27 1974 Hearings, supra note 2, at 215-16 (testimony of former United States Attorney Whitney North Seymour, Jr.). Id. at 216. See also text accompanying notes 481-82 infra. "In addition to remaining as a presidential advisor, the Attorney General would still control the Office of Legal Counsel, the Office of Legislative Affairs, the Community Relations Service, the Law Enforcement Assistance Administration, the Internal Security unit and the Immigration and Naturalization Service. Id. at 216-17. 30 Id. at 217. 1 Id. at 215-17. a Id. at 218-19. May 1975] REFORMING JUSTICE 371 appointed committee, and appointees to the two positions would serve six-year terms. Thus, the Seymour proposal severs certain functions from the present Department and at the same time creates an independent authority with complete prosecutorial responsibility. The advocates of less extensive reform would follow only the second approach-a limited transfer of certain elements of prosecutorial authority to an independent agency. They call for medicinal treatment, not radical surgery. Abuse of office and corruption of high-ranking government officials require, according to their view, nothing more than creation of a special prosecutor's office to handle such offenses. They say the only malady to be remedied is the potential conflict of interests which arises when a prosecutor is called upon to prosecute members or political allies of the incumbent administration. Although differing in form, plans following this model are designed to meet the need for an independent authority to police the integrity of government officials. proposes a biparti One such plan-Senator Alan Cranston's san commission35 to study the feasibility and desirability of establishing an independent, permanent prosecutorial mechanism to ferret out and prosecute crimes and misconduct by high-ranking executive branch officials. 36 Some plans have gone a step further and urged the creation of a special prosecutor scheme along either of two lines. One variant, offered by attorney Lloyd Cutler, calls for the presidential appointment and Senate confirmation of a Public Prosecutor, who would serve a single, six-year term. The Public Prosecutor would have sufficiently broad jurisdiction over both subject matter and parties to bring within his ambit most politically related wrongdoing, as well as general misconduct by executive branch officials. 37 * Id. at 217-18. Similarly, committees chosen by circuit courts would list those qualified for the positions of United States Attorney and federal judge. After appointment and confirmation. United States Attorneys would be answerable to the Chief Prosecutor. Id. at 218. 34 S. 2978, 93d Cong., 2d Sess. (1974) The commission would be appointed by the Chief Justice of the United States. Id 3(a). 1974 Hearings, supra note 2, at 233 (testimony of attorney Lloyd Cutler). The Prosecutor would have jurisdiction over violations set forth in certain sections of the Criminal Code. The sections would be those covering conflict of interests, bribery, limited types of conspiracy, election offenses, fraud in government activities, obstruction of justice, misprision of felony and aiding and abetting a felony when committed by high-ranking executive branch or political campaign officials. The Prosecutor would also be empowered to investigate presidential activities and to report presidential misconduct to the House of Representatives. Id. at 239. 372 NEW YORK UNIVERSITY LAW REVIEW [Vol 50-386 While his independence would be insured by restrictions on his removal, 38 safeguards are built into the plan to prevent abuse,” unwanted partisanship and nonaccountability of the Prosecutor." Another less extreme variant, offered by the National Law Center, would allow for court appointment of temporary special prosecutors on an ad hoc basis. An appropriate federal court would be authorized to appoint a lawyer to take prosecutorial action" whenever the United States Attorney was "disqualified by a conflict of interest" and the Attorney General failed to appoint another attorney to assist the regular prosecutor. Conditions precedent to appointment are specified in the plan, and removal would be by the court." All these plans to combat the political degradation of the Justice Department raise a common question of constitutionality. This Note will focus on the Ervin bill which, as the most extreme reform, best highlights the pivotal issues and which has inspired the most extensive comment. The Seymour plan, which raises similar concerns, will also be discussed. Finally, problems raised by the proposals for a special prosecutor will be considered. The threshold question presented by all these proposals is the extent of congressional power over the Justice Department. Resolution of that inquiry requires an exploration of both the scope of presidential power to remove government officials and the nature of law-enforcement authority. "Id. at 238. The Public Prosecutor would be within the Justice Department but would be statutorily independent of control by the President and the Attorney General. id. at 237. "Under Cutler's plan, the Attorney General, not the Public Prosecutor, would investigate and prosecute misconduct by members of the Prosecutor's staff. Id. *Cutier's proposal includes a provision for the appointment of a Deputy Public Prosecutor of a different party. In addition, the Public Prosecutor himself would be required to refrain from seeking federal elective office for the five years following expiration of his term. Id. at 238. "If the Attorney General were to disagree with any prosecutorial decision of the Public Prosecutor, he could appear as an amicus curiae in the case. Id. at 239. Id. at 351, 353 (memorandum of Peter Dingman & Ira Meiselman). The district court could appoint one or more attorneys to act as special prosecutor, special counsel to a grand jury or [to] perform such other functions as are required by justice and the public interest.” Id. at 353. "Id. The district court could not exercise this power unless: (1) some matter within the court's jurisdiction demands the attendance at court of the United States Attorney, (2) justice and the appearance of justice are incompatible with appearance in that matter of the regular prosecutor; and (3) the Attorney General, with knowledge of the situation, has not acted to appoint an attorney to serve this function. Id. at 354. In McGrain v. Daugherty, the Supreme Court held that “the functions of the Department of Justice, the powers and duties of the Attorney General and the duties of his assistants, are all subject to regulation by congressional legislation." The Senate, the Court found, was empowered to investigate an executive branch agency -the Justice Department. Investigation, however, is not regulation; even less is it evisceration the wholesale transfer which the Ervin bill contemplates. Whether Congress's power to investigate and regulate supplies sufficient constitutional justification for remedies as radical as Senator Ervin's seems problematic. 49 Senator Ervin would disagree: "All powers of the Attorney General and of the Department of Justice flow from acts of Congress. There can be little doubt-in fact, I have no doubt at all—that what Congress gives, Congress can take away." "50 Thus, having established, Congress may disestablish. This thesis rests on two premises. The first is that Congress can abolish any office it creates. The second is that all powers of the Department emanate from Congress, with none derived from independent constitutional sources. While the first premise is conditionally correct, the second is open to substantial question. The first rests upon the necessary and proper clause of the Constitution51 and finds support in statements dating back to the nation's earliest years. As Chief Justice Marshall long ago observed, “[O]ne legislature is competent to repeal any act which a former legislature was competent to pass; and... one legislature cannot abridge the powers of a succeeding legislature."52 While Henry Clay echoed the Chief Justice's sentiments, 53 he recognized limits to the power to create, regulate and terminate: "I 47 273 U.S. 135 (1927). Id. at 178. Id. at 177-79. so 1974 Hearings, supra note 2, at 3. $1 U.S. CONST. art. I, § 8, cl. 18. 62 Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 133 (1810). The Court has specifically applied this principle to legislatively created offices. Dodge v. Board of Educ., 302 U.S. 74, 78-79 (1937) (dictum); Crenshaw v. United States, 134 U.S. 99, 104-08 (1890); Butler v. Pennsylvania, 51 U.S. (10 How.) 402, 416 (1850) (dictum). See also Myers v. United States, 272 U.S. 52, 177 (1926) (Holmes, J., dissenting). "See 11 CONG. DEB. 518 (1835). 65-728 O-76-44 374 NEW YORK UNIVERSITY LAW REVIEW [Vol 30-366 speak, of course, of offices not created by the constitution, but by law."54 The statement speaks, by inference, to the second premise that the Justice Department is founded solely on congressional authorization. If powers flow from another source, the extent of legislative control must be diminished by the strength of that flow. The premises operate to yield full and unquestionable power, but only "[a]bsent any express constitutional limitation." Implied constitutional limitations should work the same diminution. Thus the future of the Ervin bill becomes clouded by a separation-ofpowers problem-whether congressional authority is limited by conflicting presidential power having a superior constitutional claim. That claim may be grounded in the Constitution's explicit provision for the appointment of federal officers: [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... all other Officers . . . whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. 56 Although the power to remove officials is not mentioned, the appointment clause can be read as vesting removal as well as appointment powers in the President. If that reading is correct, any radical restructuring of the Justice Department is indeed constitutionally suspect. Congress recognized in its very first session that the President has the power to remove certain federal officers.57 But whether removal is an exclusively executive or a shared prerogative is another matter. The alterations proposed by the Ervin bill—a shift in the Department's character and its transfer from the executive branch-fall within a constitutional area devoid of judicial definition. 58 This "zone of twilight,"59 where uncertainty shadows the distribution of powers between the executive and congressional branches, must be illuminated. ld. "Lanza v. Wagner, 11 NY.2d 317, 324, 183 N.E.2d 670, 673, 229 N.Y.S.2d 380, 385 (1962). U.S. CONST art. II. § 2, cl. 2. * Ser text accompanying notes 80-85 infra. See E. CORWIN, THE PRESIDENT's Removal Power vii, 9-10 (1927) [hereinafter CORWIN, REMOVAL). "Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring). |