Congress Seeks Its Own Prosecutor

When he learned that the Nixon Administration had named a new special Watergate prosecutor to replace Archibald Cox, Illinois Democrat Adlai E. Stevenson III told the Senate Judiciary Committee: "I keep thinking of the immortal words of Zsa Zsa Gabor after one of her numerous marriages: 'This time, darling, it's for real.' "

That acid quip summed up the attitude of most of Congress's Democrats, and a great many Republicans, toward the appointment of Houston Attorney Leon Jaworski as Archibald Cox's successor. They were even more determined than before to create a special prosecutor independent of the Executive Branch. Senate Majority Leader Mike Mansfield urged his colleagues to delay action on Nixon's nomination of Senator William B. Saxbe as Attorney General in order to take up the special prosecutor legislation first.

Congress Burned. Congressional critics were not satisfied even by Nixon's promise that Jaworski would be free to seek whatever documents he desires and that he would not be fired without the approval of a "substantial majority" of eight congressional leaders of both parties. Republican Representative Wiley Mayne of Iowa said Congress still had to enact legislation with "very strong language assuring the independence of the special prosecutor." Declared Wisconsin Democrat Robert Kastenmeier, a senior member of the House Judiciary Committee: "The truth is we cannot have any faith in the President on this matter." Added Illinois's Stevenson: "We've relied before on the promises of the President, and Congress has been burned. There can be no independent prosecutor without congressional action."

By the end of the week, ten bills and resolutions to do just that had been introduced in the Senate and an even larger number in the House. The Senate Judiciary Committee also was holding hearings on the legislation with Cox as the first witness. Chief among the proposals the committee is considering:

> Enable John J. Sirica, as chief judge of the U.S. District Court in Washington, D.C., to name a special prosecutor who could be fired only for "extraordinary improprieties." The bill was sponsored by Democrats Philip Hart of Michigan and Birch Bayh of Indiana, and would keep the prosecutor free from the Democratic-controlled Congress as well as the White House. But some lawyers have raised doubts about its constitutionality.

One of them is Acting Attorney General Robert Bork, who says: "We would have the situation of a judge appointing a man who argues the case before him. I think this proposal might jeopardize some of the cases." Cox, however, found nothing incongruous about letting a judge appoint a special prosecutor. He said: "It's certainly far more incongruous to expect people [meaning the Administration] to investigate themselves." To erase the problem, some sponsors say they would be willing to have the prosecutor named by all 15 active judges of the district court. Such a scheme was backed by Chesterfield Smith, president of the American Bar Association.

> Have Congress set up its own special prosecutor's office, invest it with full authority to investigate, subpoena witnesses and evidence and seek grand jury indictments. The proposal has not yet been formally introduced and does not have widespread support, chiefly because many Senators fear that the public might consider it too partisan for a Democratic-controlled Congress.

> Allow Nixon to appoint the special prosecutor--subject to Senate confirmation--but limit reasons for dismissal to malfeasance in office, neglect of duty or violation of the statute that created the office. Republican Senator Charles Percy of Illinois sponsored the bill as a compromise, and most attorneys thought that it would undoubtedly be found constitutional. Both Vice President-designate Gerald R. Ford and Republican Senator Robert Taft Jr. of Ohio have said they thought that the Senate should have the right to confirm Nixon's choice.

Enormous Complications. If enacted, any of the measures would prevent the President from retaining his own special prosecutor. Otherwise, enormous complications could result. For instance, which prosecutor would have access to Cox's records? Who would inherit his staff?

Any such bill, of course, must have President Nixon's signature before becoming law. Saxbe said he would recommend that Nixon veto any of the proposed bills and called them "the most incredible political junketeering I've ever seen." It is too early to tell whether there are enough votes to override a veto, but so far this year eight vetoes have been sustained.

To help the Senate Judiciary Committee choose among the various bills, Cox testified for three days, wearing his ever-present bow tie and shy smile. In professorial tones, he told of the "frustration and delay" he encountered in trying to obtain records from the White House. As he described the situation, the "presidential files"--which Nixon had declared off limits to Cox--kept expanding. They included logs Cox wanted of meetings and telephone calls about Watergate between the President and aides and records removed from the files of former aides such as former Presidential Assistants H.R. Haldeman and John Ehrlichman.

Since his firing, Cox has expressed little concern that the President would fire a special prosecutor again ("These things don't happen twice in succession"). Nevertheless, he declared it essential that the prosecutor "be established by statute and be given by statute guarantees of independence, guarantees of freedom to make his own decisions."

As the hearings progressed, they degenerated into partisan bickering over an embarrassed admission by Cox. His indiscretion: telling two Senators that former Attorney General Richard Kleindienst had been under presidential pressure to drop the ITT antitrust case (see following story). Certainly, the indiscretion tarnished Cox's image; he admitted that it had been "inexcusable" but called it inadvertent. That did not satisfy Republican Senator Strom Thurmond of South Carolina. In a series of sharp questions, he contended that the former prosecutor might have violated legal ethics, court codes and the Federal Rules of Criminal Procedure. At one Point, Indiana Senator Birch Bayh objected and set off an acerbic exchange. Thurmond: "Is the Senator suggesting that I am browbeating the witness?" Bayh: "Yes, I am." Thurmond: "Are you impugning my motives?" Bayh: "No, just stating them." Thurmond: "If you're impugning my motives, you have gotten below a snake."

By week's end the shape of the bill that will finally emerge was still not clear. But a bill to have the court appoint the prosecutor was gaining the greatest support--47 Democrats and eight Republicans now back it in the Senate, as do 107 Democrats and four Republicans in the House. If there ultimately is a special prosecutor independent of the White House, it will not be Cox. He insisted: "It would be unwise for anyone to offer it to me and unwise for me to take it."

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