second session of the 93d Congress, began an intensive period of preparation for an examination of the manner in which the Department of Justice was carrying out its functions and meeting its statutory responsibilities. The title for the hearings finally to be selected would be "Removing Politics from the Administration of Justice," for it soon became apparent that the core of the problem was not inefficiency, not lack of expertise, but, rather, the presence of political influences in the administration of justice. That abuses existed and that undue politicization of the Department of Justice had occurred had been clearly and publicly revealed by witnesses testifying at hearings conducted in 1973 by the Select Committee on Presidential Campaign Activities. Many persons believed that instead of impartial, evenhanded justice, the heavy thumb of politics tipped the scale in favor of the politically powerful, the influential, and those who could fill campaign coffers.

The views of knowledgeable persons in the field were sought by the Subcommittee. Invitations to testify were issued and accepted by Members of Congress, the Assistant Attorney General, Office of Legal Counsel, Department of Justice; three former Attorneys General; three former Assistant Attorneys General; the former Special Prosecutor of the Department of Justice; a former Justice of the Supreme Court; a former Special Assistant to the President; two former Solicitors General; a former U.S. attorney; and members of the legal profession.

The Subcommittee also sought the views of the academic community. The dean of virtually every law school in the United States was invited to submit a statement of his views for publication in the hearing record. In a gratifying response to this solicitation, numerous valuable suggestions and comments were received.

Senator Ervin, at the time he introduced S. 2803, stressed that his bill was designed merely to open the way for discussions of the many problems confronting the system of administration of justice; it was not his purpose to advance the bill as necessarily providing, in his view, the most desirable solution or as his own ultimate legislative proposal on the subject. The hearings would seek to define the problem, to obtain the views of as many experts in the field as possible, to provide a forum for informed discussion, to invite suggestions, and to explore all resulting proposals for legislative remedy. These hearings also would permit the beginning of a study of the need for an independent, permanent mechanism for investigating allegations of official misconduct that S. 2978, Senator Cranston's bill, called for.

The hearings took place in March and April 1974, in the two months following the close of this reporting period; therefore, the hearings and the many diverse views they would produce will be described more fully in the next annual report of this Subcommittee.

ASSISTANCE GIVEN TO THE SENATE SELECT COMMITTEE ON PRESIDENTIAL CAMPAIGN ACTIVITIES

During the period of this report, the Subcommittee rendered significant assistance to the Senate Select Committee on Presidential Campaign Activities (the Watergate Committee) by furnishing information and staff assistance.

Immediately following the creation of the Select Committee by Senate resolution, Subcommittee personnel assisted the new committee in organizing its offices and instituting administrative procedures. As a further act of cooperation, the Subcommittee relinquished its offices in the Dirksen Senate Office Building and moved to other quarters in order that the Select Committee might have the use of those offices, which were considered to be more suitable to its needs. Mr. Rufus L. Edmisten, then chief counsel and staff director of the Subcommittee, was appointed deputy chief counsel of the Select Committee, and for a number of months was transferred from the Subcommittee's staff to the staff of the Select Committee. Also, the services of some Subcommittee personnel were lent to the Select Committee to help in its investigation and hearings.

The Select Committee also looked to the Subcommittee to find its chief consultant. Professor Arthur S. Miller of the National Law Center, George Washington University, who had served as a consultant to the Subcommittee since March 1970, was chosen as the chief consultant of the Select Committee. Consequently on May 10, 1973, Professor Miller resigned as consultant to the Subcommittee. However, an amendment to the Dual Compensation Law contained in the Legislative Branch Appropriation Act of 1973 (Public Law 93-145) made it possible for consultants to serve more than one committee, and Professor Miller was reappointed as a consultant to the Subcommittee on Separation of Powers on December 27, 1973, and after that date, served as consultant to both committees.

In addition to these supportive measures relating to physical facilities, organization, and personnel, the Subcommittee assisted substantially by providing the Select Committee with information previously gathered through the Subcommittee's hearings and investigations concerning Executive privilege and other studies relating to the division of governmental powers.

PUBLICATIONS

(March 1, 1973 to February 28, 1974)

Joint Hearings-Impoundment of Appropriated Funds by the President-hearings held by the Subcommittee on Separation of Powers with an Ad Hoc Subcommittee on Impoundment of Funds of the Committee on Government Operations-on S. 373, a bill to insure the separation of Federal powers and to protect the legislative function by requiring the President to notify the Congress whenever he impounds funds, or authorizes the impoundings of funds, and to provide a procedure under which the Senate and House of Representatives may approve the President's action or require the President to cease such action. January 30 and 31, and February 1, 6, and 7, 1973. 1129 pages. Joint Hearings-Executive Privilege, Secrecy in Government, Freedom of Information-hearings held by the Subcommittee on Separation of Powers with the Subcommittee on Intergovernmental Relations of the Committee on Government Operations and the Subcommittee on Administrative Practice and Procedure of the Committee on the Judiciary-on S. 858, S. Con. Res. 30, S.J. Res. 72, S. 1106, S. 1142,

S. 1520, S. 1923, and S. 2073. April 10, 11, 12; May 8, 9, 10, 16, and June 7, 8, 11, 26, 1973. 3 volumes. 1482 pages.

Hearing-Federal Constitutional Convention Procedures-on S. 1272, a bill to provide procedures for calling constitutional conventions for proposing amendments to the Constitution of the United States, on application of the legislatures of two-thirds of the states pursuant to article V of the Constitution. April 12, 1973. 22 pages. Report-Federal Constitutional Convention Procedures Act-together with additional views, to accompany S. 1272. Report No. 93-293. June 29, 1973. 20 pages.

Hearing Congressional Oversight of Administrative Agencies (The Cost of Living Council)-October 9 and 10, 1973. 2 volumes. 881 pages. Committee Print-Congressional Oversight of Executive Agreements-a report to accompany S. 1472, together with additional views, September 1973, 93d Congress, 1st Session. 15 pages. Committee Print-Comptroller General's Opinion of the Legality of Executive Impoundment of Appropriated Funds-Prepared for the Subcommittee on Separation of Powers by the Comptroller General of the United States-93d Congress, 2d Session (1974). 43 pages.

Compilation-Separation of Powers and the National Labor Relations Board: Selected Readings-Prepared for the Subcommittee on the Separation of Powers by Doctor James R. Wason formerly specialist in labor economics and relations, Economics Division, Legislative Reference Service, the Library of Congress, Senate Document No. 92-94. (1973) 2510 pages.

Annual Report-Report of the Committee on the Judiciary, U.S. Senate by its Subcommittee on Separation of Powers, pursuant to Senate Resolution 256, Section 17, 92d Congress, 2d Session, for the period March 1, 1972 to February 28, 1973. Report No. 93–497. (1973). 18 pages.

Committee Print-List of Publications of the Subcommittee on Separation of Powers of the Committee on the Judiciary, during the years 1967-1973, 93d Congress, 2d Session. 5 pages.

CORRESPONDENCE AND PRESS

During this period, as a consequence of the Subcommittee's investigations as well as of the Watergate hearings, many persons who had not previously considered the significance and importance of the separation of governmental powers, read in their daily newspapers that this constitutional principle was being challenged and debated. The press coverage of the Watergate hearings had made separation of powers an important public issue. The Subcommittee's previous annual report, for the period ended February 28, 1973, described the increased interest in separation of governmental powers then being created by the Watergate affair in these words: "The investigation of the 'Watergate affair" by the Senate Select Committee on Presidential Campaign Activities generated new interest in the subject, and the threatened invoking of Executive privilege to prevent testimony of White House aides, and the denial of documents, information, and recording tapes to the Select Committee and to the Special Prosecutor of the Watergate Special Prosecution Force of the Department of Justice, greatly accelerated the flow of letters and inquiries to the Subcommittee on Separa

tion of Powers concerning this timely and controversial subject." That interest grew as the televised Watergate hearings continued throughout the spring, summer, and autumn of 1973, and the "threatened invoking of Executive privilege" did, indeed, take place. Many persons throughout the country wrote or telephoned to the Subcommittee seeking information. Each inquiry was responded to, and all letters received a personal reply from the Chairman or from the Subcommittee staff. These inquiries related to both current and past studies of the Subcommittee, since the Subcommittee's studies. and investigations have concerned, not transitory matters, but rather, constitutional questions of continual application to our governmental system.

Almost daily, through telephone calls or personal visits to the Subcommittee office, members of the press and other news media called upon the Subcommittee staff for information.

Twelve press releases were issued by the Subcommittee during the period of this report.

DISTRIBUTION OF SUBCOMMITTEE PUBLICATIONS

During the 12 months' period of this report, 4,280 individual volumes of the Subcommittee's hearings, reports, committee prints, and other documents prepared and published by the Subcommittee, were disbursed by the Subcommittee in response to requests. These came from a variety of constituencies, including scholars, institutions, organizations, schools, libraries, students, businessmen, the press, and the general public, as well as from Members and committees of Congress' and Government agencies. A response was made to every inquiry, and the requested publication, unless out of print, was furnished.

The widespread public interest in the claims of "Executive privilege" invoked by the Executive during and in connection with the several "Watergate" investigations resulted in a large number of requests for the Subcommittee's hearings on that subject, both the hearings of the 92d Congress, in 1971, and the joint hearings of the 93d Congress, in 1973. Hundreds of copies of the latter hearings were distributed during the year; however, the supply of the earlier hearings had been exhausted.

In a similar manner, the impoundment of appropriated funds by the Executive which caused a public and congressional clamor against the practice and the institution of more than 60 suits in the courts in attempts to obtain release of the impounded funds, created a heavy demand for the Subcommittee's hearings on the impoundment issue held in the 92d Congress (1971) and the joint hearings of the 93d Congress (1973).

There was also a sustained interest in many of the older publications of the Subcommittee.

MEMBERS OF THE SUBCOMMITTEE

The membership of the Subcommittee remained unchanged throughout the period, March 1, 1973, to February 28, 1974. Senator Sam J. Ervin, Jr. (D.-North Carolina) served as chairman, with Senator Charles McC. Mathias, Jr. (R-Maryland) as the ranking minority, member. Other members of the Subcommittee were Senator John L.

McClellan (D-Arkansas); Senator Quentin N. Burdick (D-North Dakota); Senator Robert C. Byrd (D-West Virginia); and Senator Edward J. Gurney (R-Florida).

CONSULTANTS

The Subcommittee continued to retain as consultants, throughout this period, Professors Philip B. Kurland, Alexander M. Bickel, and Ralph K. Winter, Jr., and for a portion of the period, Professor Arthur S. Miller.

Professor Miller, of the National Law Center, the George Washington University, who had served as a consultant to the Subcommittee since March 1970, was chosen as the chief consultant of the Select Committee on Presidential Campaign Activities (the "Watergate Committee"). Consequently, on May 10, 1973, Professor Miller resigned as consultant to the Subcommittee. Subsequently, an amendment to the Dual Compensation Law contained in the Legislative Branch Appropriation Act of 1973 (Public Law 93-145) made it possible for consultants to serve more than one committee, and Professor Miller was reappointed as a consultant to the Subcommittee on Separation of Powers on December 27, 1973, and after that date, served as consultant to both committees.

Professor Miller is also a lecturer for the Brookings Institution in its Advanced Study Program, and author of numerous books and articles on constitutional and administrative law.

Professor Kurland, the Subcommittee's chief consultant, is professor of law at the University of Chicago School of Law, editor of the Supreme Court Review, and author of numerous books and articles on constitutional law. Professor Bickel is Chancellor Kent Professor of Law and Legal History at Yale Law School and the author of numerous books and articles on constitutional law and legal history. Professor Winter, professor of law at Yale Law School, an authority on labor law, is the author of a number of articles on the subject.

PUBLICATIONS OF THE SUBCOMMITTEE FROM PAST SESSIONS OF CONGRESS STILL AVAILABLE FROM THE SUBCOMMITTEE

NINETIETH CONGRESS (1967-68)
Hearings

1. Separation of Powers.-A study of the separation of powers between the Executive, Judicial, and Legislative Branches of Government provided by the Constitution, the manner in which power has been exercised by each Branch and the extent, if any, to which any Branch or Branches of the Government may have encroached upon the powers, functions, and duties vested in any other Branch by the Constitution of the United States, July 19 and 20; August 2; and September 13 and 15, 1967. 282 pages. L. C. card 68-60324.1

2. Federal Constitutional Convention.-On S. 2307, a bill to provide procedures for calling a constitutional convention for proposing amendments to the Constitution of the United States, on application of the Legislatures of two-thirds of the States, pursuant to Article V of the Constitution. October 30 and 31, 1967, 242 pages. [For sale

1 Library of Congress.