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Rule 65(a)(1) of the Federal Rules of Civil Procedure for a

preliminary injunction.

Because of the extraordinary public

interest in having this matter resolved at the earliest possible

time, plaintiffs ask this Court to consolidate the hearing on

the motion for the preliminary injunction with a final hearing, as authorized by Rule 65(a)(2).

In a nutshell, the facts of this case are as follows:

--In May 1973, Elliot Richardson was confirmed by the Senate to be Attorney General after he had, with the authorization of the President, worked out a detailed agreement with the Judiciary Committee concerning the appointment of a special prosecutor to conduct the socalled "Watergate" investigation and prosecutions;

--Immediately after his confirmation, Attorney General
Richardson formally appointed Archibald Cox to be
Special Prosecutor and promulgated departmental regu-
lations establishing the Office of Watergate Special
Prosecution Force and embodying explicit rules governing
its conduct which were identical to the terms agreed
upon during his confirmation hearings;

--These detailed regulations authorized the Special
Prosecutor to challenge claims of executive privilege
in court actions, declared that he could only be dis-
missed for committing "extraordinary improprieties",
and provided that the office would continue to perform
its functions until its job was completed or until
another time agreed upon by the Special Prosecutor
and the Attorney General;

--Despite these binding regulations, defendant, who
became Acting Attorney General after the forced resig-
nations of the Attorney General and the Deputy Attorney
General, purportedly fired Special Prosecutor Cox
and abolished his office when Cox declined to accede to
a Presidentially proposed "compromise" of a court action
concerning access to tapes and other memoranda of
Presidential conversations, or to comply with a Presi-
dential directive not to make any attempts through
future judicial proceedings to obtain similar materials.

The complaint alleges that two separate actions of the

defendant were unlawful. The first of these, the defendant's

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there was then in existence a validly promulgated regulation of the Department of Justice which permitted the firing of Mr. Cox only for "extraordinary improprieties on his part", and there are conceded to be none in this case.

Moreover,

because of defendant's limited authority as an Acting Attorney General, he lacked the power to discharge the Special Prosecutor. The second action of the defendant claimed to have been illegal is the abolition of the Office of the Special Prosecutor. Plaintiffs contend that this order is unlawful since the regulation which created the Office specifically provides for its continuation until the Special Prosecutor determines that his work is concluded or until a date mutually agreed upon between the Attorney General and himself. Moreover, the attempted

abolition was invalid because the defendant, as a Solicitor General who has become Acting Attorney General, has no authority to effect wholesale changes in the organizational structure of the Department of Justice. Further, plaintiffs argue that the special circumstances surrounding the appointment of Mr. Cox and the creation of his office, also act to preclude a Solicitor General who becomes Acting Attorney General from making a drastic change of this kind. Finally, in this connection, defendant's decision to abolish the Office was unlawful because it was made without any independent rational basis and was undertaken solely because of the direction by the President. Since the defendant would have been fired from his job unless he agreed to both fire Mr. Cox and abolish the Office, his decision to do so was unlawfully coerced and cannot be sustained.

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Coercion is of particular importance in this case where the

President who directed the abolition of the office is--along

with many of his former cabinet officers and closest associates-one of the persons under investigation.

Plaintiffs contend

that the totality of these circumstances deprives the Solicitor General of the authority to abolish the Office.

In our final point we demonstrate that there is a need for immediate action in this case, primarily because the public interest requires that the legality of defendant's action be determined at the earliest possible date. It is apparent that so long as a cloud exists over the special prosecutor's office, it cannot be run in an effective manner, whether it is within the Criminal Division of the Justice Department or exists as an independent office. activities are hampered by the uncertainty that persists with respect to the legality of the firing of the Special Prosecutor and the abolition of his office, and that these interests will continue to be severely hindered unless preliminary relief is afforded.

Plaintiffs also contend that their own

STATEMENT OF FACTS

(1) Events Leading to the Creation of the Office of the Special Prosecutor and The Appointment of Archibald Cox As Special Prosecutor

On April 30, 1973, Richard G. Kleindienst resigned from the office of Attorney General of the United States, citing as the ground for his resignation his close personal and professional relationship with several individuals then being investigated by the Department of Justice. On the following day, the President

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concluded that he should appoint a special prosecutor; he added that he thought it desirable to have his designee for the position appear before the Committee and be questioned

so that the Senate could be satisfied as to the special prose

cutor's qualifications.

6

During the course of the confirmation hearings, several issues were raised which bear on the subject matter of this litigation. These are discussed more fully in Point I of the Argument, but they are deserving of brief mention here.

First,

the Committee evidenced a strong conviction that the activities of the special prosecutor should be independent of the Department of Justice and of the White House, subject only to the power of the Attorney General to discharge the special prosecutor in

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extreme circumstances. Second, the Committee insisted that
the special prosecutor be subject to removal by the Attorney
8
General only in the most unusual circumstances. Third, the

See, e.g., id. at 5, 15, 17, 36, 45-47, 94, 130-131, 144-147, 177. Members of the Committee were especially insistent that the Watergate prosecution not be under the direction of Henry E. Petersen, the Assistant Attorney General in charge of the Criminal Division. See, e.g., id. at 152-153.

8

Senator Ervin stated early in the hearings, "[h]e should have assurance that he would not be subject to removal from his position except for malfeasance in office." See also id. at 38 and 137-139, as well as the prescient, if overly optimistic exchange between Senator Tunney and Secretary Richardson discussing the possibility of the Attorney General's being pressured by the President to dismiss the special prosecutor, id. at 72-73.

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Committee demanded assurance that the special prosecutor

would have the authority to seek access to White House files

and to contest in court any Presidential claims of executive

privilege.

9

One of the chief aims of both Secretary Richardson and Committee members during the course of the hearings was to agree upon definite guidelines which would govern the conduct of the special prosecutor's office and which would set forth in writing their formal understanding regarding, among other things, the three issues discussed above. On May 21, 1973, Secretary Richardson presented to the Committee a set of guidelines which he had formulated after an exchange of correspondence 10

with Senator Stevenson. The guidelines provided generally that a special prosecutor would be appointed to serve within the Department of Justice and to investigate Watergate-related matters. They specified that the special prosecutor would have the authority, inter alia, to determine whether to contest any assertion of executive privilege and whether application should be made to any federal court for subpoenas or other

court orders. The guidelines stated that "[i]n exercising this

9

See generally id. at 40-42, 52, 57-58, 68-69, 76-77, 79, 159.

10

Hearings at 144-146. Such guidelines were first proposed in a Senate resolution offered by Senator Stevenson and others, and were later the subject of correspondence between Secretary Richardson and Senator Stevenson. See 119 Cong. Rec. S 9713-15