future promotion or other preferment. The primary obligation to appoint such an attorney should reside in the Attorney General.

It is at this stage that an alternative appointing power outside the executive branch should be available in those cases where public confidence in the administration of justice is at stake or where the Attorney General has not acted in accordance with the standards.

The Committee therefore recommends legislation authorizing the appointment of a temporary special prosecutor by a special Court of Appointment. This Court would be composed of three retired federal circuit court judges appointed by the Chief Justice of the United States. for a term of two years. This Court would be empowered to appoint a special prosecutor on its own authority or at the request of the Attorney General.

Under this approach, where primary responsibility is placed on the Attorney General to first consider appointing a special prosecutor, it is expected that the special Court would act only in exceptional circumstances. By virtue of the Court being composed of retired judges the problem of due process is substantially muted. The statute could require their recusal in cases involving a special prosecutor which they appointed- or simply prohibit their being assigned to such cases.

There are other consequences flowing from the use of retired circuit judges (presumably from different circuits). Their collective perspective would ensure that cases of national scope received priority attention. Local matters involving one judicial district could be handled by the Attorney General, frequently without having to appoint an outside special prosecutor. Their status as retired judges would minimize any dislocations in judicial backlogs. As retired judges their ambitions would have been largely achieved and their activities would be less likely to involve them in any conflict situations.

How would such a court be apprised of situations which would trigger consideration by the Attorney General as to whether or not a special prosecutor should be appointed? The Committee regarded this as a key issue which required some resolution before a special court could become effective. A Teapot Dome or Watergate-type situation would probably come to the attention of the Court through a variety of sources. But what about lesser happenings? In gen- 107

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eral only those inside the system would be aware of such events.

The Committee recommends that the Attorney General be required to report to the Court of Appointment, in memorandum form, those instances where consideration had been given to the appointment of a temporary special prosecutor. The memorandum should contain a brief statement of the facts, cite the applicable standards, the action taken and the reasons therefor. Thus the Court would have the necessary background upon which it could base its judgment in each case.

This procedure would accomplish a number of desirable objectives. The Special Court would be kept informed of situations requiring its attention. The responsibility for action would remain focused on the responsible law enforcement official, subject to review by a court of law. Thus the rule of law would be introduced into an area of discretion which has operated in relative obscurity. The Court of Appointment would be the "court of law" required by the Constitution. 129 A body of precedent would be established. At the earliest time, consistent with the integrity of the case and any rights of privacy, the memorandum would be published. Over a period of years such memoranda and any court review could be compiled in a report.

The Committee does not feel such review contradicts the mandate of Cox that courts not become involved in second guessing prosecutorial discretion in individual cases. The court would not be reviewing such discretion. It would review application of the standards to specific fact situations to determine whether or not that set of circumstances required the entry of an attorney unencumbered by relationships normally requiring recusal.

The Special Committee considered what specific authority the Court should have if the Attorney General appointed a temporary special prosecutor who did not, in the Court's view, meet the prescribed standards. The Court's review function would be a sham if it had no authority to appoint a temporary special prosecutor who did meet the required standards. The recommendation therefore specifies that the Court could make such an appointment and that its appointment would supersede the prior appointment by the Attorney General.

The Committee has not made any specific recommendation to cover a situation in which the Attorney General

might be in a conflict situation. Obviously the Attorney General could not conduct the prosecution in such a case. But could he appoint a temporary special prosecutor? Provision is made in the recommendation for the Attorney General to request the Court to make an appointment. But if the Attorney General appointed a temporary special prosecutor despite his own conflict situation Congress might want to consider authorizing the Court to declare the Attorney General in conflict and make an appointment which would supersede the prior appointment by the Attorney General.

The Committee emphasizes that the Special Court would not be precluded from taking action on its own authority. It could receive information from other sources, such as a grand jury. The Committee does not believe that situations requiring consideration by the Attorney General will be so frequent as to become onerous administratively. Should that occur, then clearly other remedial action would be required.

The Committee does not contemplate that the Special Court would be sitting continuously. Any necessary coordinating and administrative support could be provided by the Administrative Office of the United States Courts. No special building or offices would appear to be necessary.

One criticism of the permanent special prosecutor in S. 495 has been the extensive jurisdiction given to the office. Another has been the length of time during which an abuse of power could result without real accountability. One virtue of the triggering mechanism is the temporary nature of the appointment with jurisdiction limited to the particular case or cases which required the appointment. Thus the appointing power must delineate the jurisdiction of the temporary special prosecutor.

What should happen if the Attorney General appoints a temporary special prosecutor who meets the prescribed standards but so limits jurisdiction as to render the position ineffective? The Committee believes the Court should review the statement of jurisdiction and modify it where necessary. Such review and modification authority does not intervene in prosecutorial discretion as it relates to decisions affecting the case. Where the Court makes the appointment it should delineate the jurisdiction.

The Committee felt it had to specifically address the question of removing a special prosecutor appointed by the Attorney General or the Court of Appointment. Removal by 109

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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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