May 23, 1973
Page 16754
Mr. STEVENSON. Mr. President, with the revised guidelines, it satisfies me that for so long as they are not changed and Mr. Cox remains the prosecutor, the public can be confident that this investigation will be thorough and fair and that in time it will know the truth and that justice will be done. This correspondence, taken with both the guidelines and the hearing record in the Judiciary Committee, make clear the prosecutor's jurisdiction and his powers. Together they make up the historical record upon which I hope the Senate will now confirm Mr. Richardson's nomination and in so doing approve the appointment of Archibald Cox. Both are men of proven integrity, ability, and toughness. They have acquitted themselves well before the Judiciary Committee. In order that we may, as citizens, have a complete record upon which to depend, I ask unanimous consent that the two letters to Secretary Richardson, his two responses and the resolution be printed in the RECORD at the conclusion of these remarks.
It is upon the understanding contained in these documents, the record before the Judiciary Committee and the revised guidelines offered by Mr. Richardson, that the investigation will proceed. I am hopeful the Senate will now approve Secretary Richardson's nomination and the appointment of Archibald Cox, and that the investigation will proceed. If so, it will be upon the assumption that, the Senate's advice and consent given, the rules and the central personalities will not be changed by the executive branch.
EXHIBIT 1
U.S. SENATE,
Washington, D.C., May 3, 1973.
Hon. ELLIOT L. RICHARDSON,
Attorney General-Designate,
Department of Justice,
Washington, D.C.
DEAR MR. RICHARDSON: As Attorney General you would immediately be faced with an unprecedented task of restoring public confidence in the integrity of the Federal government. We know you share our concern that justice prevail in all questions of official misconduct and that the public receive speedy assurance that an impartial investigation of the so-called Watergate Affair will be conducted thoroughly and relentlessly.
The Senate has called for appointment of an "independent" prosecutor. The true independence and impartiality of the prosecutor is essential. You have the power to make such an appointment. But a prosecutor is not made independent by virtue of an adjective. Neither his selection from outside the Justice Department, nor his approval by the Senate assures independence and a truly thorough and impartial investigation. That depends upon the character of the prosecutor and his authority, powers and resources.
We trust you to select for this position a man of unquestioned integrity, the highest professional ability and the tenacity with which to get the job done. We also expect you to make the scope of his inquiry broad enough to encompass all illegal conduct arising out of the conduct of the President's recent campaign and the growing evidence that justice has been obstructed in conjunction with that illegal activity. But that is not enough. The minimal powers and resources of a thoroughly independent prosecutor must include:
(1) The power to convene and conduct proceedings before a special grand jury, to subpoena witnesses, and to seek in court grants of immunity from prosecution for witnesses;
(2) The power and financial resources with which to select and hire an adequate staff of attorneys, investigators and other personnel, answerable only to himself;
(3) Assurance that the funds to pay for the services of staff and prosecutor will be continued for the time necessary to complete the investigation and prosecute any offenders;
(4) Assurance that the prosecutor will not be subject to removal from his duties except for the most extraordinary improprieties on his part;
(5) Full access to the relevant documents and personnel of the Department of Justice and all other offices and agencies of the Executive Branch; and
(6) Assurance that the prosecutor would be able to cooperate with any appropriate congressional committees.
The law appears to give you the authority to confer these powers, resources and assurances upon a special prosecutor. If the need arises for legislation to insure these requisites of independence and thoroughness, we will cooperate to that end in every way we can.
In closing we reiterate our trust in you, our confidence in your ability, and our hope that forthright action now by the Executive will be enough to resolve these trying matters to the satisfaction and benefit of the nation.
Sincerely,
Adlai E. Stevenson III, Harold E. Hughes, Stuart Symington, Gaylord Nelson, Edmund Muskie, Philip A. Hart, Thomas F. Eagleton, James Abourezk, Lloyd Bentsen, Dick Clark, Joe Biden, William Proxmire, Alan Cranston, and Lawton Chiles.
Hubert Humphrey, John Tunney, Walter F. Mondale, Lee Metcalf, Walter D.Huddleston, William D. Hathaway, Abraham Ribicoff, Harrison Williams, Frank Church, Quentin Burdick, Mike Mansfield, Jennings Randolph, Thomas J. McIntyre, J. Bennett Johnston, Jr., and Claiborne Pell.
S. RES. 109
Resolution requesting the Attorney Generaldesignate of the United States to take actions insuring the independence of the special prosecutor to be appointed in connection with the investigation of illegal activities arising out of the Presidential election of 1972.
Whereas the Attorney General-designate has announced his intention to appoint a special prosecutor to investigate the Watergate case and related matters; and
Whereas it is essential to the proper conduct of the investigation and to the restoration of public confidence in the Federal Government that the special prosecutor be in a position to perform his functions in an independent manner: Now, therefore, be it
Resolved, That
(1) The Attorney General-designate should vest the special prosecutor with all necessary attributes of independence, including but not limited to the following:
(a) Final authority over questions of convening and conducting proceedings before grand juries, subpenaing witnesses, initiating prosecutions, framing indictments, and seeking in court grants of immunity from prosecution of witnesses;
(b) Final authority over the selection of an adequate staff of attorneys, investigators, and other personnel answerable only to himself;
(c) Assurance that the investigatory and other resources of the Department of Justice and funds to defray all expenses incurred in connection with the activities of the special prosecutor will remain available for the time necessary to complete the investigation and prosecute any offenders;
(d) Assurance that he will not be subject to removal from his position except for malfeasance in office;
(e) Assurance that he will enjoy full access to the relevant documents and personnel of the Department of Justice and all other officials and agencies of the executive branch; and
(f) Assurance that the special prosecutor can freely, and upon their request, appear before, consult with, and cooperate in other respects with all congressional committees having jurisdiction over any aspects of the special prosecutor's activities.
SECRETARY OF DEFENSE,
Washington, D.C.,
May 17, 1963.
Hon. ADLAI E. STEVENSON III,
U.S. Senate.
DEAR SENATOR STEVENSON: Thank you for your letter of May 3 and for your expression of confidence in me. I agree wholeheartedly with your observations about the need to restore public confidence. I agree that this end will be served by the appointment of an independent Special Prosecutor with unquestioned integrity, the highest professional ability and great tenacity.
In examining both the record of the Senate Judiciary Committee hearing on my nomination and the points articulated in your letter, I am struck by how close we actually are in our approach to the definition of the Special Prosecutor's role. The detailed description of the Special Prosecutor's authority which I have today sent to the members of the Senate Committee on the Judiciary meets, I believe, all the points enumerated in your letter:
His scope of authority will extend beyond the Watergate case to include all offenses arising out of the 1972 Presidential Campaign and all allegations involving the President, members of his staff and other Presidential appointees;
His powers will include the handling of all prosecutions, grand jury proceedings, immunity requests, assertions of "Executive Privilege" and all decisions as to whom to prosecute and whom not to prosecute;
He will have the authority to organize and select his own staff, responsible only to him, and to secure adequate resources and cooperation from the Department of Justice;
He will have access to all relevant documents;
He will handle relations with all appropriate Congressional Committees; and
He will be subject to removal only by reason of extraordinary improprieties on his part.
Some misunderstanding seems to persist on the subject of the relationship of the Special Prosecutor to the Attorney General. I have repeatedly stated that the Special Prosecutor must be given the authority to do his job independently, thoroughly and effectively. He will possess a truly unique level of independent authority within the Department of Justice. But it is also critical, in my view, both in the interests of the effective performance of the Department of Justice as a whole and the speedy and efficient support for the Special Prosecutor's mission, that the Attorney General retain that degree of responsibility mandated by his statutory accountability.
The laws establishing the Department of Justice give the Attorney General ultimate responsibility for all matters falling within the jurisdiction of the Department of Justice. Under the law, there is no way to handle prosecutions under the applicable Federal criminal laws outside that Department. A change in the law making the Special Prosecutor an independent agency, which I think would be wrong and harmful on the merits, could in any event be very complicated and time consuming. The outcome of any effort to change the law would be uncertain, the investigation would be disrupted, and prosecution seriously delayed.
Further, only the Attorney General can effectively insure the cooperation of other personnel within the Department of Justice (and within other agencies of the Executive Branch) and thus assure the marshalling of additional resources, including professional investigatory and prosecutorial staff, when the Special Prosecutor needs them. The Attorney General is responsible for allocating the overall resources of his Department consistent with the proper pursuit of its various responsibilities. Without being able to draw on these resources and the various sources of authority which are vested in the Attorney General as chief legal officer of the Nation, any investigation by a Special Prosecutor might be severely hampered.
The approach which I have developed is developed to provide the maximum possible assurance to the public that truth and justice will be properly, thoroughly and effectively pursued. As I have said before, the public will have an insurance policy comprised of four clauses:
The integrity of the Attorney General as reviewed and confirmed by the United States Senate;
The integrity of the Special Prosecutor as reviewed and affirmed by the United States Senate;
The terms and conditions articulated in my detailed description of the Special Prosecutor's authority and in testimony before the Senate Judiciary Committee, which assure the authority and independence of the Special Prosecutor; and
The investigation of the "Ervin Committee" as established by Senate Resolution 60.
With best regards,
Sincerely,
ELLIOT L. RICHARDSON.
U.S. SENATE,
Washington, D.C.,
May 18, 1973.
Hon. ELLIOT L. RICHARDSON,
Secretary of Defense,
Department of Defense,
Washington, D.C.
DEAR MR. SECRETARY: Your letter to me of May 17 is positive and represents a long step in the direction of an "independent prosecutor" in the Watergate episode.
It is my hope that with a clarification of certain points in that letter and your statement to members of the Judiciary Committee that remaining doubts about the impartiality of the investigator can finally be resolved and that justice delayed can now proceed with dispatch and the government can get on with all its business.
Specific points about the prosecutor's functions which you make in your May 17 letter and statement to the members of the Judiciary Committee are still consistent with your statement of May 7 that the investigation would be conducted "in the Department of Justice" and that as Attorney General you would retain "final responsibility" for all matters within the Department.
It would be helpful if at your earliest convenience you could explain the following points in your May 17 letter:
1. You state that the prosecutor's authority will extend to "all offenses arising out of the 1972 presidential campaign and all allegations involving the President, members of his staff and other presidential appointees." It is unclear whether you intend that the prosecutor will have the authority to investigate allegations of official misconduct of a non-criminal nature on the part of Executive branch personnel. The Congress has the constitutional responsibility for making the laws and overseeing the manner in which Executive branch personnel execute those laws. The Congress is the most appropriate body to investigate and make judgments about instances of official misconduct of a non-criminal nature. The Senate is exercising that responsibility. Is it your intention that the prosecutor's functions include the investigation of such non-criminal misconduct?
2. Your letter states that the prosecutor's powers "will include the handling of all prosecutions, grand jury proceedings, immunity requests, assertions of 'Executive privilege' and all decisions as to whom to prosecute and whom not to prosecute." Thus, the only decision-making power to which you explicitly refer concerns questions of whom to prosecute and whom not to prosecute.
Is it the Administration's intention to reserve the decision-making responsibility on all such questions as convening grand jury proceedings, seeking in court grants of immunity for prospective witnesses and passing upon whether present or former Executive branch personnel can properly invoke "Executive privilege"?
3. You state that the prosecutor "will have the authority to organize and select his own staff." Does that authority include the authority to select staff members not now employed by the Department of Justice? What financial resources will be at the disposal of the prosecutor with which to retain the services of any such staff members outside the Department of Justice? And will you assure that the personnel and other resources of the Justice Department are at the disposal of the Prosecutor, except in cases where his use of personnel would unduly interfere with other activities of the Justice Department?
4. You state that the special prosecutor "will have access to all relevant documents." Is it your intention to reserve the right to determine what is relevant?
5. You state that the special prosecutor "will handle relations with all appropriate congressional committees." Is it your intention to reserve the right to control the access of the prosecutor to committees of the Congress, including the furnishing of information to such committees? My own strong conviction is that both justice and the truth will best be served by a prosecutor free to cooperate with both the Executive and the Legislative branches and to help coordinate their potentially conflicting investigatory activities.
6. The most serious doubt left lingering by your letter and oft-repeated statements is that by some law the Attorney General must retain the "responsibility" or final authority. You oppose a law to remove any such conflict between your statutory duty as Attorney General and your duty to the people as their chief law enforcement official. In the past, Attorneys General, including the acting Attorney General in this very matter, have resolved that conflict by disqualifying themselves.
Your failure to do so in favor of an independent prosecutor raises no doubts in my mind about your integrity, but many doubts about your freedom to act. You are, after all, an agent of the President and also a servant of the public. Those roles are not inevitably harmonious. Why do you refuse to disqualify yourself in favor of a prosecutor who can serve the people with a singleness of purpose?
Without a resolution of these questions it could be as difficult in the future as it has been in the recent past to find a man of the highest professional attainment and character to serve as prosecutor. In the meantime, delay eats like acid at the public trust and the cause of justice.
With the resolution of the questions raised by this letter and in the hearings of the Senate Judiciary Committee, I would hope your confirmation as Attorney General would proceed rapidly. At the same time, the prosecutor's investigation of the Watergate episode could proceed and in harmony with the investigation by the Senate Committee. If that does not happen, the doubts and suspicions will linger, partisan politics will intrude, the investigations will be disorderly, and the integrity of the Presidency impossible to restore for many years. I, therefore, look forward hopefully to your early response.
Sincerely.
SECRETARY OF DEFENSE,
Washington, D.C.,
May 21, 1973.
Hon. ADLAI E. STEVENSON III,
U.S. Senate,
Washington, D.C.
DEAR SENATOR STEVENSON: Thank you for your letter of May 18. I certainly share your hopes that any remaining doubts about the impartiality of the independent investigation and prosecution, to be handled by Archibald Cox, can now be finally resolved. Hopefully, as you so aptly point out, justice delayed can now proceed with dispatch and government can get on with all its business. I have just given members of the Senate Committee on the Judiciary a somewhat revised version of the guidelines under which the Special Prosecutor would operate. A copy is enclosed for your information.
In response to the specific questions raised by your letter, let me make the following points.
1. While the Special Prosecutor's functions would focus primarily on the investigations and prosecution of criminal offenses, he may in the process uncover improprieties or irregularities of a non-criminal kind. He would be free to take whatever action with regard to such improprieties or irregularities as he deemed appropriate, including disclosing them publicly and reporting them to other authorities for their action. There will inevitably, of course, be considerable overlap with the Ervin Committee's investigations, whether or not prosecution is sought in specific cases.
2. It is not my intention to reserve decision making responsibility on any of the matters enumerated in the description of the Special Prosecutor's duties and responsibilities, as to which he is given full authority. Thus, all decisions as to grand juries, assertions of executive privilege, and seeking grants of immunity will be made by the Special Prosecutor, in a manner consistent with applicable statutory requirements.
3. The Special Prosecutor will have authority to select staff members not now employed by the Department of Justice. The Special Prosecutor will have all the financial resources that he will reasonably need for all his activities, including funds with which to hire non-departmental personnel. I will assure, as the guidelines make clear, that the personnel and other resources of the Department will be at the disposal of the Special Prosecutor, to the extent he may reasonably require them.
4. The Special Prosecutor, not the Attorney General, will determine what documents may be relevant to his mission.
5. The Special Prosecutor will be fully free to make all decisions relating to his dealings with Congressional Committees. I will not control the Special Prosecutor's access to any committee.
6. Having provided the Special Prosecutor with a charter which assures his total operational independence from the Attorney General, together with the resources necessary to carry out his mission effectively, I see no need to "disqualify" myself. I have no personal stake in this matter other than to see that justice be done swiftly, thoroughly and fairly. I hope that the selection of former Solicitor General Cox for the position of Special Prosecutor makes my determination in this regard amply clear.
I regard the questions you have raised as fair and responsible and I have tried to answer them in that spirit. I trust that the Senate and the Department of Justice can and will cooperate in this mission of enormous public importance. I will certainly do everything in my power to see that this occurs.
With kindest regards,
Sincerely,
ELLIOT L. RICHARDSON.