• U.S.

The Law: A Prosecutor General?

5 minute read

For much of the time, Watergate has seemed to be a tangle of crimes in search of a prosecutor. So far, four different permanent and temporary groups—with some overlapping lawyers—have succeeded to the task of running the overall Washington investigation. Last week the Senate was still stirring the mix as two bills were reported out of committee. One would approve the latest Administration choice, Leon Jaworski; the other would authorize the judiciary to appoint a special prosecutor.

The continuing uncertainty swirls around one constant: the U.S. system is not very thoughtfully set up for dealing with misconduct that involves the top ranks of an Administration. As a result, some legal experts are urging a step beyond the naming of a special prosecutor for the special case of Watergate.

They suggest the appointment of a fulltime, permanent prosecutor who would have ongoing authority to deal with corruption and wrongdoing by any federal officials at any time.

“Public doubt that official and campaign misconduct will be prosecuted is perhaps the gravest weakness of our political system,” says Lloyd Cutler, an influential Washington lawyer who has taken the lead in pushing the permanent-prosecutor proposal. The nation, he argues, cannot afford to address this lack of public confidence only when high corruption happens to come to light.

Cutler, who previously directed the commission on violence under Lyndon Johnson and headed a committee on the emergency administration of justice following the 1968 Washington riots, has worked out some particulars of what might be called the Office of the Public Prosecutor General. The P.P.G. would be appointed by the President and confirmed by the Senate for a term of 15 years; he would be funded by Congress and could be dismissed only for a gross breach of duty or for committing a crime. To curb political ambition, he could be barred from subsequently holding any elective federal office.

The P.P.G.’s job, says Cutler, should be limited to investigating and prosecuting “charges involving official misconduct and campaign law violations” by the Administration. California Senator Alan Cranston is readying a bill incorporating many of Cutler’s specifics. Common Cause’s John Gardner has also supported the idea in speeches.

Red Meat. Watergate aside, special prosecutors have appeared in the past on federal, state and city levels. Calvin Coolidge appointed Republican Owen J. Roberts and Democrat Atlee Pomerene as joint administrators of the investigation of the Harding Administration’s Teapot Dome scandal. Twice in the past dozen years, Chicago has turned to Attorney Barnabas Sears to pursue charges involving the city’s police force. In New York City, Judge Samuel Seabury raked and ultimately broke the corrupt Roaring Twenties administration of Mayor Jimmy Walker; Thomas Dewey probed the “politico-criminal alliance” that underlay the city’s racketeering in the ’30s.

Now state-appointed Maurice Nadjari is investigating New York City’s criminal justice system. Some legal experts and politicians have suggested that Nadjari’s office, established for an open-ended term, be made permanent. They argue that time and money are wasted when a special office has to be set up to handle specific cases of corruption.

The U.S. already has a permanent scrutineer of sorts for some kinds of political malfeasance. The Comptroller General, who heads the General Accounting Office, is charged by Congress with determining whether Government programs are being carried out in accordance with the law. In fact, new statutes have ordered Comptroller General Elmer Staats to investigate candidate compliance with campaign-spending reforms. He is somewhat toothless as a watchdog, however, having the power only to recommend that the Justice Department consider prosecution.

Many lawyers are cool toward the idea of a permanent prosecutor. Orville Schell, president of the New York City Bar Association, sees difficulties in finding the right man. “What great trial law yer is going to take a job that only comes into existence when there is federal misconduct?” Schell wonders. Columbia Criminal Law Professor Richard Uviller is also concerned about the work load. “I wouldn’t want to set up such an office unless there were red meat for him to dig into.”

Sadly, the meat may be there. Harvard Law Professor Stephen Breyer, who served in Archibald Cox’s office last summer, says: “The number of complaints that came in suggested that there might be things wrong in many departments.” He sees three likely levels of response in any P.P.G.’s office. Serious complaints would trigger a staff investigation; relatively minor ones would be referred to the relevant agency; in some middle cases the agency’s reply might then suggest to the P.P.G. that he should look into the matter after all.

In sum, Breyer sees the appointment of a permanent special prosecutor as “an awfully good idea.” After all, he declares, “how else are we going to have an organization that people will see as neutral, where they can gowith complaints against the Government?”

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