Ethics in Government Act Amendments of 1982, except that this chapter shall continue in effect with respect to then pending matters before [a special prosecutor] an independent counsel that in the judgment of such [special prosecutor] independent counsel require such continuation until that [special prosecutor] independent counsel determines such matters have been completed.

(b) The tables of chapters for title 28 of the United States Code and for part II of such title 28 are each amended by inserting immediately after the item relating to chapter 37 the following new item: 39. [Special prosecutor]". Independent counsel.

(c) There are authorized to be appropriated for each fiscal year such sums as may be necessary, to be held by the Department of Justice as a contingent fund for the use of any [special prosectors] independent counsels appointed under chapter 39 (relating to [special prosecutor] independent counsel of title 28 of the United States Code in the carrying out of functions under such chapter.

X. SUPPLEMENTAL VIEWS OF MR. EAGLETON

Since its enactment in 1978, the special prosecutor section of the Ethics in Government Act has generated substantial controversy-and rightfully so. As the Committee report recounts, the cases of Hamilton Jordan and Tim Kraft raised serious questions about the wisdom and fairness of the law. Although exonerated, Jordan and Kraft incurred enormous legal fees and had their reputations unfairly tarnished by having to defend themselves against charges for which, apparently, the Justice Department would not have investigated ordinary citizens. This miscarriage of justice prompted calls for wiping the special prosecutor law from the books.

Against this background, Senator Cohen's subcommittee conducted a searching, no-holds-barred review of the special prosecutor legislation. The Subcommittee witness list was a veritable "who's who" among American lawyers, including Ben Civiletti, Elliot Richardson. Lloyd Cutler, Phil Heymann, Sam Dash, Arthur Christy and Associate Attorney General Rudolph Guiliani, all of whom had first-hand experience with the special prosecutor legislation. The Subcommittee probed the key issues in depth and with great care. From this effort. which I regard as a model of effective Congressional oversight, the Subcommittee produced S. 2059 and reached two basic conclusions which I believe are unassailable.

First, despite the adamant opposition of the Reagan Administration, the Subcommittee strongly reaffirmed the necessity of legislation mandating the appointment of a temporary special prosecutor in certain, specified cases. The experience of every recent Administration makes it clear: when serious allegations are made against a high-ranking member of the President's "team," these allegations must be investigated independently, by someone who is not a part of the Justice Department. This is not a criticism of the ability or integrity of any Attorney General or any Justice Department employee. It is a recognition of an unavoidable conflict of interest facing the Attorney General who is simultaneously the nation's leading law enforcement official and a member of the President's cabinet. The tradition of Attorneys General who are close friends, confidants, even brothers of the President simply exacerbates the potential conflict.

Neither the public nor the individual under investigation is wellserved when the Justice Department presses forward in this class of sensitive cases. Fearing a "coverup" or a "whitewash," the public will never have full confidence in a Justice Department investigation exonerating a high-ranking Administration official. Moreover, the understandable effort by Attorneys General to prove they can handle these tough cases with scrupulous fairness may produce a tendency to "bend over backwards" to avoid favoring the person under investigation. Careful exercise of discretion and close judgment calls are inherent in the prosecutor's work, but the extraordinary pressure exerted

by these extraordinary cases can skew those judgment calls in a way that breeds unfairness.

The current case of Labor Secretary Ray Donovan should underscore the benefit of the special prosecutor mechanism to both the individual under investigation and the public. Allegations of ties to organized crime had dogged Secretary Donovan since his confirmation hearings. On December 29, 1981, Special Prosecutor Leon Silverman was appointed. Six months later, on June 28, 1982, the Special Prosecutor filed a voluminous report reviewing all the allegations against Secretary Donovan and finding insufficient credible evidence to warrant an indictment on any allegation. A New York Times editorial, dated June 30, reflected the reactions of many:

A special prosecutor has lifted the vapor of criminal charges from Secretary of Labor Raymond Donovan and in the process handsomely vindicated the Ethics in Government Act *** That law protects the public by guarding against favoritism, and it can be a boon to officeholders by giving them credible clearance when they deserve it. Would anyone have believed the same exoneration if it had come from Mr. Donovan's Cabinet colleague, the Attorney General?

Second, although the justification for special prosecutor legislation remains compelling, the Subcommittee concluded that the law as written is substantially flawed. For example, the class of individuals covered is simultaneously too broad, reaching obscure officials in the Executive Office of the President, and too narrow, not applying to the President's family. The law was intended to limit the Attorney General's discretion, but it went too far: the virtual requirement to initiate a preliminary investigation whenever any allegation against a covered official is received, coupled with the hair-trigger standard for resorting to a special prosecutor, combined in cases like Jordan or Kraft to produce an almost irreversible momentum toward appointment of a special prosecutor, even when the proper exercise of discretion would have resulted in closing the case at an early stage. And despite the clear intent of the law and Congress that appointment of a special prosecutor would be in no way tantamount to indictment, too often, because of the Watergate connection, the press and the public have jumped to the conclusion that serious wrongdoing has occurred.

S. 2059, introduced by Senators Cohen, Levin and Rudman and reported by the unanimous Governmental Affairs Committee, rectifies these problems and a host of others. In my view, S. 2059 is a balanced, thoughtful and fair piece of legislation, and the principal authors deserve praise for working through the issues, rather than opting to ignore the problems, on the one hand, or to advocate repeal of the statute, on the other.

The special prosecutor law "sunsets" in October, 1983, but the enactment of these amendments should be an important priority in this Congress. While the statute can operate to perfection in a serious case, like Mr. Donovan's, its overbreadth and hair-trigger could still combine to produce an unfortunate result in a case like Kraft's or Jordan's. The Reagan Administration could face the choice of invoking the law in a case which seems inappropriate, which could be harmful to an individual and discredit the law, or resisting the law and

inviting public criticism. We should not wait around for that possibility to materialize. There is a consensus that amendments are needed; S. 2059 makes those amendments; substantial delay in considering S. 2059 could be dangerous.

In fact, it makes sense to delay enacting S. 2059 only if one prefers allowing the special prosecutor legislation to die. The Reagan Administration, spearheaded by the Justice Department, apparently still favors this course. They acknowledge that the amendments of S. 2059 would improve the law immeasurably, but claim that in any form, legislation which mandates the appointment of a temporary special prosecutor in pre-arranged cases institutionalizes distrust, rather than trust, in the administration of justice.

As the hearings indicated, very few thoughtful observers share that view. For me, as for most of the witnesses, the case for maintaining a special prosecutor law is compelling. No one can view the future with certainty, but some predictions are safer than others. If we allow the special prosecutor act to expire, the country will soon afterward face the now-familiar pattern: slowly unfolding revelations about a highlevel Administration official, or someone else close to the President; a Justice Department committed to proving that it can handle sensitive cases to public satisfaction, even if its predecessors could not; a scandal widening, somehow compromising or implicating those doing the investigation; the issue becoming partisan and a field day for the media; substantial damage to the White House, and a resulting loss of public confidence.

We've gone down that road before, and it would be a public disservice to risk traveling it again. This country faces too many pressing problems, domestic and foreign, to waste its energy on the kind of scandals which have plagued recent Administrations. The Jordan and Kraft cases have demonstrated flaws in the law, but the work of Paul Curran in the Peanut Warehouse matter in 1979 and Leon Silverman in the Donovan case this year have proven the extraordinary value of the special prosecutor mechanism. It is not necessary to throw out the baby with the bathwater; S. 2059 provides a better way.

JULY 19 (legislative day, JULY 12), 1982.-Ordered to be printed

Mr. HATCH, from the Committee on Labor and Human Resources, submitted the following

REPORT

[To accompany S. 1785]

The Committee on Labor and Human Resources, to which was referred the bill (S. 1785) to increase the penalties for violations of the Taft-Hartley Act, to prohibit persons, upon their convictions of certain crimes, from holding offices in or certain positions related to labor organizations and employee benefit plans, and to clarify certain responsibilities of the Department of Labor, having considered the same, reports favorably thereon with an amendment and recommends that the bill as amended do pass.

The Committee amendment provides:

That this Act may be referred to as the "Labor Management Racketeering Act of 1982".

SEC. 2. (a) Subsection (d) of section 302 of the Labor Management Relations Act, 1947 (29 U.S.C. 186) is amended to read as follows:

96-304 O