-45

been painstakingly created in conjunction with the Senate and which had been the quid pro quo for the confirmation of

Elliot Richardson and the abandonment of proposals to create an independent special prosecutor by Act of Congress.

Finally, the defendant has himself expressed the view that as an Acting Attorney General his proper role is a limited one:

I am not nominated and confirmed
Attorney General, and therefore, I view
it as my task simply to keep the Department
going on an even keel and to make it as
effective as possible for as long as we
can until a new Attorney General is nominated
and confirmed. I don't plan any major struc-

tural changes. I don't plan any personnel

changes.

This common sense view, that an Acting Attorney General is little more than a caretaker, is buttressed by Section 508(b) when the Acting Attorney General is someone other than the Deputy. Yet the major organizational change which defendant ordered is wholly at odds with his own concept of a limited role for an Acting Attorney General.

Accordingly, for the

reasons set forth above, defendant lacked the power to issue order 546-73 abolishing the Special Prosecutor's Office.

83

C.

Defendant's Order Assigning the Functions of the
Office Of Special Prosecutor Back To The Criminal
Division Was Not An "Appropriate" Order Within

28 U.S.C. § 510, And Was Arbitrary, Capricious.
And Without Basis In Law Or Fact.

The attempted abolition of the Office of the Special Prosecutor by defendant was also invalid because it was not an "appropriate" order under 28 U.S.C. § 510. The analysis of this issue begins with Section 509, which provides that "all functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General . ." with four exceptions not relevant here. Next, under Section 516 the conduct of litigation to which the United States is a party, which includes all criminal proceedings, is reserved to officers of the Department of Justice under the direction of the Attorney General.

.

Thus, under this statutory framework, the President has the undisputed authority to nominate, and with the advice and consent of the Senate, to appoint the Attorney General of the United States, but he does not have the power to run the Justice Department, or to require the Attorney General to perform

specific acts, or to direct the Attorney General's subordinates to do any such acts. This is made clear from provisions such as Section 511, under which the Attorney General "shall give his advice and opinion on questions of law when required by the President," a power specifically derived from Article 2, Section 2, Clause 1 of the Constitution. 84

84"The President

That same clause in the

may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective offices ..

&7

Constitution also makes the President Commander-in-Chief of the Armed Forces, an authority which permits him to direct their operations. But there are no comparable statutory or constitutional authorizations for him to direct the Department of Justice, and hence if he disagrees with the policies which the Attorney General is following, his only recourse is to discharge him. The President does not have the authority to direct the implementation of those policies, and indeed he has no authority to order the discharge of inferior officers or the reorganization of the Department of Justice. The actions of the President in this case confirm this interpretation since he did not attempt to discharge Archibald Cox himself, nor did he issue any orders which purported to abolish the Office of the Special Prosecutor. These tasks he assigned to others, and when two Attorneys General resigned rather than comply, the defendant was asked and agreed to carry out the directives.

The Supreme Court has recognized that the provision in Article 2, Section 1 of the Constitution that "the executive power shall be vested in a President of the United States" does not mean that the President may direct the actions of every single person in the executive branch of the government contrary to express Congressional direction:

The executive power is vested in a
President, and as far as his powers are
derived from the Constitution, he is beyond
the reach of any other department, except
in the mode prescribed by the Constitution
through the impeaching power. But it by
no means follows that every officer in
every branch of that department is under
the exclusive direction of the President.
Such a principle, we apprehend, is not,
and certainly cannot be claimed by the

- 43

There are certain political duties
imposed upon many officers in the executive
department, the discharge of which is
under the direction of the President.
But it would be an alarming doctrine that
Congress cannot impose upon any executive
officer any duty they may think proper,
which is not repugnant to any rights
secured and protected by the Constitution:
and in such cases, the duty and responsi-
bility grow out of and are subject to the
control of the law, and not to the direc-
tion of the President.

****

It was urged at the bar that the
Postmaster General was alone subject to
the direction and control of the Presi-
dent, with respect to the execution of
the duty imposed upon him by this law,
and this right of the President is claimed,
as growing out of the obligation imposed
upon him by the Constitution to take care
that the laws be faithfully executed.
This is a doctrine that cannot receive
the sanction of this court. It would
be vesting in the President a dispensing
power which has no countenance for its
support in any part of the Constitution;
and is asserting a principle which, if
carried out in its results to all cases
falling within it, would be clothing the
President with a power entirely to con-
trol the legislation of Congress, and
paralyse the administration of justice.
Kendall v. United States, 37 U.S. [12
PET.] 524, 610, 612-13 (1838).

Accordingly, it is the determination of the defendant who ordered
the abolition of the Office, and not that of the President which
must be judged in assessing the lawfulness of the attempt to
bring the Office of Special Prosecutor back into the Criminal
Division of the Justice Department.

In assessing the validity of the defendant's direction, it is well to recall the sequence that led to the attempted abolition. On the afternoon of October 20th, after both the Attorney General and the Deputy Attorney General declined to discharge Mr. Cox and

to abolish the Office of Special Prosecutor, the President. made a similar request of the defendant, and he agreed to execute the orders. That very evening, minutes after the discharge orders were conveyed to Mr. Cox, agents of the Federal Bureau of Investigation were sent by the White House to take control of the files at the Office of the Special Prosecutor and thereby to deny access to members of that staff to the premises. Thus, the legality of the determination to reassert control over the Watergate investigation must be judged on the basis of what the defendant knew and considered on Saturday, October 20th, and not at the time that the decision was committed to writing three days later.

The authority under which the Attorney General may assign the functions of the Justice Department among its employees is contained in Section 510, which provides that the Attorney General may "make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General." Thus, the statute requires that the Attorney General consider the assignment to be "appropriate," and it is apparent here that the defendant gave no independent consideration to the question, but simply obeyed the order of the President. Mere obedience to the command of another cannot constitute a proper use of administrative discretion. 85

85The Department's own regulation, 28 C. F. R. $ 0.182, requires the submission of proposed orders to the Office of Legal Counsel "for approval as to form and legality and consistency with existing orders." There is not the slightest indication that any such action was taken before the F.B. I. take-over of the files of the Special Prosecutor, and thus there also appears to be a failure