The Holdout

For more than eight years, Robert M. Morgenthau has enforced federal laws in New York's Southern District with scrupulous impartiality. He has uncovered graft in Democratic as well as Republican city machines, convicted Wall Streeters for illegal Swiss bank dealings, and waged war against New York City's powerful Mafia. But Democrat Morgenthau is a political appointee. According to tradition, when the Republicans took office in Washington, Morgenthau was expected to join the country's 92 other U.S. Attorneys in offering his resignation. He did not, maintaining that he needed time "to complete major cases and investigations."* Last week, after months of private pressure on Morgenthau, Attorney General John Mitchell requested that he step down.

Bipartisan Uproar. Mitchell apparently believed that he had been more than reasonably patient. Nevertheless the announcement, and the tactless manner in which it was handled, caused a bipartisan uproar. Only a few hours after Morgenthau received the letter asking for his resignation, the Administration named Whitney North Seymour Jr., a capable New York lawyer and former assistant U.S. attorney, as his successor. The net effect may be to force Seymour to wait until Morgenthau quits or until his term expires in 1971.

The statute under which the Administration is seeking Morgenthau's ouster is vague about whether the President has to show malfeasance to dismiss an appointee in midterm. Moreover, Morgenthau just might launch an embarrassing campaign to remove U.S. attorneyships from the patronage rolls. He is known to believe that the jobs should not be political plums, though they now rate among the juiciest. Morgenthau's district, for example, has 70 or so assistant attorneys, who are appointed by the Attorney General.

New York Senators Charles Goodell and Jacob Javits, both Republicans, believe that Morgenthau should be allowed to complete unfinished projects. Either could block Seymour's appointment by invoking "senatorial courtesy." According to tradition, the Judiciary Committee will not consider an appointment unless both Senators from the state involved give their approval.

Regardless of what finally happens, Mitchell risks being the loser. Justice Department officials complain that Morgenthau is independent and uncooperative, but he has been an immensely effective law officer. In seeking his removal, the Attorney General, an outspoken advocate of law and order, invites accusations that he is placing politics above public welfare.

* Most U.S. Attorneys serve a four-year term coinciding with the President's. First appointed in 1961, Morgenthau quit to run unsuccessfully for Governor, was reappointed in 1963 and again in 1967. As a result, his appointment still has 18 months to run.

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