[The response of Professor Miller follows:] GEORGETOWN UNIVERSITY LAW CENTER, INSTITUTE OF CRIMINAL LAW AND PROcedure, Washington, D.C., March 16, 1976. Hon. ABRAHAM RIBICOFF, DEAR SENATOR RIBICOFF: During the March 11, 1976 hearings on S. 495 Senator Javits asked for a legal memorandum on the role of the American Bar Association recommended Special Court in appointing a temporary special prosecutor. The Constitution authorizes Congress to 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 department." The ABA recommendation would vest primary responsibility in the Attorney General to appoint a temporary special prosecutor under certain circumstances and following carefully prescribed standards. He would have responsibility for bringing to the attention of the special court situations which might involve a conflict or appearance thereof and advise the court as to whether or not, in the Attorney General's view, there was a conflict of interest requiring appointment of a temporary special prosecutor. The special court would review the Attorney General's memorandum and could appoint a temporary special prosecutor where the Attorney General made no appointment. The Attorney General could remove the temporary special prosecutor for "extraordinary improprieties," subject to review by the special court. The specific issue I have been asked to address concerns whether or not a case or controversy is present when the Attorney General brings to the attention of the special court an actual or potential conflict of interest situation. There are no adverse parties in interest before the court-only the Attorney General with a memorandum of law reciting the facts and circumstances in the case, the Attorney General's recommendation, and action taken if any, as to the appointment of a temporary special prosecutor. On its face there appears to be no case or controversy present in the determination of whether or not a conflict exists and an appointment of a special temporary prosecutor should be made. In a review of the removal process there clearly would be adverse parties, the removed temporary special prosecutor and the Attorney General. I will thus limit my discussion to the first duty imposed upon the special court of appointment, that of determining whether or not there is a conflict requiring the appointment of a temporary special prosecutor. It has been suggested by some that a case or controversy is required, and that some special office be given the function of contesting a finding by the Attorney General that there is no conflict requiring the appointment of a temporary special prosecutor. This would supply the adverse parties for a case or controversy. But a more fundamental threshhold question should be addressed first. Must there be a case or controversy before a special court during the appointment process? If the special court of appointment were designated by statute as the sole appointing authority, with power to determine on its own whether or not a conflict existed, the case or controversy question would not arise. It arises under the ABA recommendation because the Attorney General is obliged to examine potential conflicts situations and appoint a temporary special prosecutor where necessary. The special court can review the finding by the Attorney General. It can find a conflict and request the Attorney General to appoint a temporary special prosecutor or make the appointment itself. Under this approach, the Attorney General's findings are advisory in nature. This aspect of the process is incidental to the appointing power vested in the court of law by Congress. It is merely a way of assisting the special court in obtaining necessary facts and making congressionally mandated findings which may result in the appointment of a temporary special prosecutor by the Attorney General or the special court. As a mere incident of the appointing power vested in the special court this process does not require a case or controversy. The ordinary view of a Federal court of law perceives its functions as historically and constitutionally requiring a case or controversy. And there are sound policy reasons for mandating this approach before a court can exercise jurisdiction in a matter. But the appointing power, constitutional though it may be, is an unconventional and rarely exercised function. Congress has enacted legislation authorizing courts of law to make appointments in few situations. The traditional role of a court of law must be modified when that court acts in a congressionally mandated appointing function. In my view the case or controversy issue is not relevant to the exercise of this appointing power. Having answered this threshold question in the negative it is not necessary to suggest additional measures which would meet the case or controversy requirement. I trust this letter is responsive to the concerns of the Committee. I stand ready to further assist the Committee during its deliberations on S. 495. Sincerely, HERBERT S. MILLER. Senator JAVITS. The other question is more serious, I would like to suggest for your consideration as a way to deal with it. Somebody has to punch a button, and you demonstrate that with your testimony at the top of page 16, where you say the special court appointment could act on its own in appointing a temporary special prosecutor, would you like to turn to that? Page 16 of your statement. Chairman RIBICOFF. If Senator Javits would yield, I will go over to vote. If Senator Javits is through with his questioning, would you gentlemen be good enough to wait a few minutes and I will return as soon as I vote. Then, Senator Javits can go on to vote. Senator JAVITS. That is fine. Now, the importance of the statement at the top of page 16 to me is that you could haye a conflict of interest, as to who presses the button; to wit, whether the Attorney General, or an outside agency. There are not all that many Elliot Richardsons and Archibald Coxes, around, who would be self-starters, as it were. Therefore, I wonder whether the ABA might examine title IV of a bill which has been pending here for some time, and of which I am the author, sponsored also by Senators Gravel, Muskie, and Humphrey, S. 2036 is a bill to establish an Office of Legal Counsel in the Congress. I ask whether or not that bill, which has other provisions as well, which are not particularly materials to this particular debate, might not be the kind of lateral support which would give the public a sense of integrity with the process. In short, as we are the impeachment and removal mechanism, that we have counsel, and then your scheme is put into effect, the lateral support is the assurance that if the Attorney General does not, then we legislate, as you have it; to wit, where information was brought to our attention. You suggest that a citizen suggesting that something is improper, he could bring it to the court's attention. You might not want to open the door to that kind of power in the individual citizen, who probably has no right to sue before the court anyway, defining it as a court. But it seems to me you could help us, and help the proposition, because this particular title has a lot of support around here, and generally through the country, and I hope you will therefore consider it or reflect in your view, as the lateral support for the whole scheme. Mr. SPANN. I would point out, there are no recommendations in our findings in dealing with this. In the report itself, the printed report, under the discussion of congressional oversight over the Department of Justice, on pages 62 and 63, we deal briefly, and it is only briefly, with the recommendation that there be a congressional legal service which would provide a variety of services. We think that this would be a start. toward providing Congress with standard services and procedures by which a conflict concerning congressional access and information can be resolved on a more rational basis. In a sense, we have endorsed it in the body of the report, but I must also add that anything not in the recommendation has not been before the house of delegates. It is solely the opinion of the committee, and it is not necessarily endorsed by the entire house of delegates. Professor MILLER. I would like to add, Senator, we put the primary responsibility in our recommendations upon the Attorney General to actually trigger the process. He has to initially decide whether or not a prosecutor should be appointed. But we also do recommend that the special court can act on its own on a set of information from any course, from a grand jury, from a newspaper, from a Congressman, or Senator, and we were particularly careful to stress the fact that the court had that independence. Senator JAVITS. In the first place, to protect your jurisdiction as a court, I would not allow them to get it from a newspaper. The court may take judicial notice of it in writing an opinion, but I think you better look in your court proceedings in the Federal rules of procedure, in order to assure yourself, and, therefore, I would again commend to you, Mr. Spann and Professor Miller, consideration of a strong recommendation from the ABA-and I am an ABA member, if you would like me to initiate the process, a number of these other gentlemen are lawyers, who have sponsored the bill with me, we could address the president of the ABA, telling him about your testimony, and suggesting that this matter be brought specifically to the house of delegates, so that if we got an ABA endorsement, then I think that would buttress your proposition enormously, and I would suggest the draft of a bill, which I would happily cosponsor for this idea, which you have put before us, being careful to preserve the structure of a court for the special court, and I think you could assure the public that if the Attorney General did not, certainly there was every likelihood that the counsel for Congress would, which would be again a very authoritative official, but not subject to executive conflict of interest. I suggest those to you for your consideration. Mr. SPANN. We will certainly give it consideration. We, of course, are in a time frame where the house will not meet again until August, but the committee, of course, still exists. Senator JAVITS. It may be that we will leapfrog the house of delegates. If we do consider this idea seriously, I can always amend it in this committee, but it would be very helpful and comforting to get that view and, hopefully, we could have a report of one of the ABA committees before us, with your cooperation. Mr. SPANN. Yes. Senator JAVITS. Also, one of the committees perhaps, that would not be binding at least, it would be authoritative. Gentlemen, thank you very much, and if you would be kind enough to wait a minute, the committee will stand in recess subject to the call of the Chair, and I wish to advise those present, that it should not be more than 10 minutes. Thank you. [Whereupon, the committee was in short recess.] AFTER RECESS Chairman RIBICOFF. I have a few questions here from Senator Weicker, who had another committee hearing, and could not be with us, so these questions are being asked on behalf of Senator Weicker. The ABA special committee recommended that the Congress enact legislation mandating that the Attorney General promulgate regulations governing the logging and recording of requests for investigations, or other actions by the Department, emanating from the White House, or the Executive Office of the President. Do you believe that this should be included in the legislation presently before this committee? Mr. SPANN. There are several logging requirements insofar as the Attorney General is concerned. We have said that any call from an outside source dealing with matters under investigation and prosecution should be logged. If someone is intent upon doing something illegal, this is going to be circumvented in some way, particularly if somebody inside the Department of Justice and somebody outside work together to accomplish this. But we believe the logging requirement would go a long way toward discouraging this, and toward exercising restraint on what we regard as improper influence. We think it is appropriate, for example, for State officials, Members of Congress, to say that you are persecuting one of my constituents, your facts are wrong, and we would like you to look at this. We do not object to such a call being logged. But on the other hand, if the call is to influence the prosecution, this is a call that the person would not want to have logged, and if he knows it would be logged, he would not make it. Chairman RIBICOFF. I think Senator Weicker specifically means that if the request comes from the White House or the Executive Office of the President, it should be logged. Mr. SPANN. Well, I mentioned the other, because it is a general area of logging, and both have been the subject of discussion. The one perhaps Senator Weicker is referring to is our recommendation on White House pressure for investigations by law enforcement agencies, and here we have said that there should be legislation requiring these logs to be kept. Again, this does not prohibit the call. If the White House wants to make a call, and it is a legitimate call, it will be made. We think it would discourage a White House staff member from calling, and simply suggesting the use of influence. It does not necessarily mean this call is from the President, but it does come from the White House, and nobody knows quite where it began. We think if the call is logged and it is to be exposed, that it will discourage any such improper calls. Chairman RIBICOFF. Would you be for including this in the legislation before this committee, or would you leave it out? Mr. SPANN. Yes; I would put it in the legislation. Chairman RIBICOFF. Do you also believe that there should be a similar provision regarding requests of the Federal Bureau of Investigation and the Internal Revenue Service? Mr. SPANN. We do have a very definite provision for the Internal Revenue Service, recommendations as to White House and congressional pressure for Internal Revenue Service audits and investigations. We recommend legislation and regulations governing the logging and recording of requests emanating from Congress or from Government officials. We think they ought to all be logged. Chairman RIBICOFF. I have no further questions. Mr. Spann and Professor Miller, Senator Percy has mentioned he has a few additional questions and other members may also have some. We would like the privilege of submitting these questions to you, or Professor Miller, if we could. Do you have some other comment? Mr. SPANN. I have only one comment I would like to mention in closing, this is the matter of the time factor. We have talked about the time that our committee has worked with this, and certainly your committee has been holding hearings on S. 495 over a year. We feel that the time is now, that Congress ought to act, it ought to act before the campaigns of the fall, that this is the time to enact this legislation. We felt that perhaps a year and a half ago, we were acting too rapidly under an ugly situation. We think to wait longer would be a mistake, and we would urge to the extent that we can, that the committee go forward, and that the Congress go forward immediately. Chairman RIBICOFF. I agree with you, Mr. Spann. We waited for this report. You are the final witness. We feel that the ABA recommendations are very important, and that they should go into the record. Now that that is completed, we will get a new committee draft. We start mark-up of the lobbying law next week, and after that is finished, this will be next on the agenda. I do not want to say what the Senate will do, but my feeling is we will definitely pass this in proper and due course in the Senate. What will happen in the House, I cannot predict; however, I am confident that the Senate will take action on this legislation long before the election. Mr. SPANN. I am very, very happy to hear it. Chairman RIBICOFF. I am grateful to you, and Professor Miller, and and the entire house of delegates, and the American Bar Association for your cooperation. Mr. SPANN. Thank you. Chairman RIBICOFF. The committee stands adjourned. [Whereupon the committee was adjourned at 11:10 a.m.] |