point such a prosecutor, with appropriate
safeguards of his jurisdiction and independence,
and two-thirds majorities of both houses have the
power to override a Presidential veto of such
legislation if necessary. In addition, the nature of
the relationship between Congress and the
executive branch provides other means of com-
pelling such an appointment. [The Watergate
Special Prosecution Force] was created because
the Senate insisted on such action as a condition
of confirming the nomination of an Attorney
General. Congress can similarly use its power to
appropriate funds and the Senate can use its con-
firmation power to force such action if necessary.
The remedy of impeachment remains available as
a last resort."116

The Special Committee is persuaded that under certain circumstances a special prosecutor may be necessary. Moreover, the Committee believes that under some circumstances it may be exceedingly difficult for a U.S. Attorney or the Attorney General to prosecute a case because of actual or potential conflict of interest, actual partiality or impropriety or the appearance thereof.

The Committee recognizes the responsibility of the President to take care that the laws be faithfully executed and that the Attorney General plays a preeminent role in this respect. But the Committee accepts the notion "that 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." Humphrey's Executor v. U.S.. 295 U.S. 602 (1935). For this reason the Committee believes that under clearly defined standards, and in accordance with a specific procedure, there may be times when an authority other than the executive may have to appoint a special prosecutor. And the Committee believes the Constitution authorizes appointment of such an inferior officer by a court of law.

Once a decision for some type of special prosecutor is made the options are diverse, each creating problems of its own. The issue receiving the most attention has been that of the appointment and removal power of a special prosecutor, whether it should be placed in the judiciary, the President or some independent commission. Closely related has been the 97

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issue of how to assure the independence of a special prosecutor and yet build in some degree of accountability.

D. Analysis of Key Issues

The proposals of S. 495 and Lloyd Cutler are similar but contain different approaches to the appointment and removal power (judiciary vs. President). Both limit jurisdiction and attempt to ensure independence by the appointment route or restrictions on Presidential removal. In both the special prosecutor retains final authority within his jurisdiction, yet both provide flexible methods by which jurisdiction can be allocated.

The attempt at accountability in these proposals is to require the independent prosecutor to tell the Attorney General what he is doing. The Attorney General may then appear in court as an amicus curiae if he feels actions taken by the special prosecutor are not warranted by law. Lloyd Cutler characterized this provision as protection against a runaway special prosecutor.

The different proposals are based on a constant uncertainty, the fact that the federal system of justice is not thoughtfully structured to deal with misconduct involving the top ranks of an administration. A George Washington Law Center analysis cites 42 states which have special prosecutor provisions, 32 of which have placed by statute the appointing authority in trial judges of general jurisdiction. In addition, some state courts have claimed this appointing authority as an inherent right. Their model bill provides standby authority for the court to appoint a prosecutor after an obvious disqualification or disability exists and the Attorney General does not act as justice and the public interest require. Presumably under such an act Judge Sirica or the District Court could have appointed a special prosecutor to investigate the Watergate break-in.

Former Attorney General Richardson cited several deficiencies in the original appointment of the special prosecutor. First was the fact that the President was not personally committed to the terms of the charter appointing Cox. Second, the charter itself did not guarantee access to Presidential papers, memoranda and notes, and at the time there was no reason to foresee the potential availability or existence of tape recordings. Richardson felt the ultimate

breakdown arose not over the availability of these documents, but over "the right of the special prosecutor to contest the assertion of privilege." Richardson said that regardless of who is the appointing authority, access to material should be provided without judicial process, and where material is not made available the right to seek judicial process should be guaranteed by law.

Richardson preferred a Presidential appointment, Senate confirmation and removal only for extraordinary improprieties. For practical reasons he thought it important for the special prosecutor to be placed in the Department of Justice, thus reducing risks of confrontation. In his view, Departmental backup and support, particularly as to investigative resources, is essential. Finally, the relationship between the special prosecutor and U.S. Attorneys could be important, and direct association with the Department of Justice would make cooperation easier. 117

The central issue has been who appoints and removes. This relates to the basic independence of the special prosecutor and whatever accountability may be built into such an office. A former chairman of the ABA Criminal Justice Section said the courts could appoint a special prosecutor, that the Constitution was not intended as a charter to mask official misconduct. He said integrity of the system was saved by the courageous acts of Cox and Richardson, who put integrity above place and position.

"But the system should not have to depend on
heroic action. By definition, heroes are few
enough. The system must be arranged by law so
that men of ordinary bravery can operate within it
with the assured knowledge that duty can be done
with impunity."

He cited federal statutes which he believed spell out authority for the court to appoint a special prosecutor. 118 He felt that this concept "saves the Constitution from an interpretation that would require one under investigation to conduct either the investigation or the prosecution."

Both as a constitutional and policy question the key issue of who should appoint and remove a special prosecutor has been subject to wide ranging discussion. Several provisions of the Constitution have been cited as controlling in

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this debate. These are Article II, section 2 and Article I, section 8 of the Constitution. 119

Numerous cases have discussed the appointive power of the courts under Article II, section 2. In Ex parte Hennen, 38 U.S. (13 Pet.) 23 (1839), the court held that "the appointing power. . . was no doubt intended to be exercised by the department of the government to which the officer to be appointed most appropriately belongs." A later case, Ex parte Siebold, 100 U.S. 371 (1879), modified Hennen by upholding the vesting of authority in the circuit courts to appoint supervisors of federal elections.

One problem in authorizing court-appointed special prosecutors is that of conflict of interest bordering on a problem of due process, if the judge selecting the prosecutor also presides over the case in which the prosecutor participates. The choice has been characterized as choosing between a conflict of interest where a potential defendant would be appointing a prosecutor (Presidential appointment) and the conflict where the judge appoints prosecuting counsel. One scholar stated:

"In the many instances in which courts appoint
counsel, for the plaintiffs and defendants, there
has been no suggestion that the appointing judge
must disqualify himself because of that
appointment. "120

He points out that the appointing judge could recuse himself.

A requirement of recusal in such a case might be necessary in light of U.S. v. Solomon, 216 F. Supp. 235 (S.D.N. Y. 1963). It upheld the validity of 28 U.S.C. 546, authorizing the District Court to appoint a U.S. Attorney when a vacancy occurs, until the vacancy is filled by the President. The court expressed concern that if it also had the power to remove the prosecutor it appointed there might be a "nexus between the court and prosecutor too close to comport with due process." On the other hand Hobson v. Hansen, 268 F. Supp., 902 (D.C.D.C. 1967), basically rejects the claim. Here the District Court appointed school board members. The court said the "official act of participating in the selection of board members does not in and of itself preclude on due process grounds the ability of the judge to decide

thoroughly the merits of litigation challenging the validity of the performance by a board member of his duties as such."

Another major issue is whether or not an appointment of an inferior officer by the court would be incongruous in terms of the duties required. The holding in Humphrey's Executor that law enforcement, despite its executive aspects, has quasi-judicial qualities as well, has a bearing on this. In Siebold the court said it was usual and proper to vest the appointment of inferior officers in the appropriate department of the government, executive or judicial. "But there is no absolute requirement to this effect in the Constitution . . . . "The court further said that the selection of the appointment power, as between the functionaries named, is a matter resting in the discretion of Congress. Siebold specifically limited the effect of Hennen and cited the "incongruity" test.

Professor Paul Freund, Harvard Law professor, felt that Congress could deem judicial appointment of a special prosecutor as resting on even firmer footing than the appointment of a U.S. Attorney while a vacancy existed. He pointed out, that, although limited in tenure, a U.S. Attorney appointed by the court assumes all the power of that office regardless of the subject matter. The special prosecutor, on the other hand, would have a far more limited jurisdiction. He concluded: "Indeed it could with reason be thought that in all the circumstances incongruity would inhere in an executive appointment."121

ABA Criminal Justice Standards hold that the office of prosecutor is an agency of the executive branch charged to see that laws are faithfully executed and enforced. They describe the prosecutor as both "an administrator of justice and an advocate" who must exercise sound discretion in the performance of his functions. Finally the standards state "the duty of the prosecutor is to seek justice, not merely to convict." In the commentary to the standards the function of the prosecutor, particularly that of seeking justice, is described in the following way: "This is one of the senses in which the prosecutor has sometimes been described as a 'minister of justice' or as occupying a quasi-judicial position."122 Under the incongruity test the special prosecutor would qualify for judicial appointment.

The question of whether the special prosecutor's position should be denigrated by being considered an "inferior officer" under the terms of the Constitution has been raised.

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