In re Grand Jury Subpoena of Persico (522 F.2d 41, 1975)

United States Court of Appeals for the Second Circuit 1975-06-19

Judiciary and Judicial Procedure Money and Finance Government Organization and Employees

Citations

Full opinion text

WEINSTEIN, District Judge:

The record of full hearings and arguments and of a series of affidavits and other documents fully supports the trial judge’s determinations that appellant contemptuously refused to answer questions before a grand jury and that no questions to him were based on unlawful electronic surveillance. His claim, though unfounded, that the government attorney who questioned him before the grand jury lacked power to do so, requires more extended treatment. At stake is the power of the Department of Justice’s Organized Crime Strike Force to effectively prosecute crime.

I. FACTS

Alphonse Pérsico was subpoenaed in January of 1974 to appear before a grand jury sitting in the Eastern District of New York, investigating infiltration of racketeers into legitimate businesses. 18 U.S.C. § 1962. He was given testimonial immunity and testified that he had an illegal gambling business involving “horses, sports and numbers,” but he refused to identify his employees on the ground that the question, were the result of illegal electronic surveillance. Judge Judd rejected this r.rgument, found Pérsico in civil contempt, and sentenced him to no more than sixty days in the custody of the United States Marshal. 28 U.S.C. § 1826(a). The order was affirmed. In re Persico, 491 F.2d 1156 (2d Cir.), cert. denied sub nom. Persico v. United States, 419 U.S. 924, 95 S.Ct. 199, 42 L.Ed.2d 158 (1974).

After the sentence had been served, the government re-subpoenaed Pérsico to appear before the same grand jury. He moved for an order requiring: (1) a demonstration by the attorneys of the Justice Department’s Organized Crime Strike Force of their authority to conduct grand jury proceedings; and (2) filing of affidavits affirming or denying electronic surveillance of Persico’s attorney and of several named places in which Pérsico had a proprietary interest or was known to frequent.

Again Judge Judd ordered Pérsico to testify. Once more he appeared before the grand jury, was granted testimonial immunity anew, and refused to testify concerning the identity of those involved in his enterprises. Following a hearing and receipt of affidavits and other documents supporting the government’s contention that there was no basis for believing that any illegal electronic surveillance had occurred, Judge Judd found Pérsico in contempt and sentenced him to incarceration for the remainder of the grand jury’s term.

Conducting proceedings before the grand jury was Robert Del Grosso, a Special Attorney of the Organized Crime Section of the Justice Department’s Criminal Division, assigned to the Strike Force office investigating organized crime in the Eastern District of New York. He operates under the supervision of the Assistant Attorney General in charge of the Criminal Division, the Chief of the Organized Crime Section and the Deputy Section Chief who are in Washington, and the locally based Attorney-in-Charge of the Eastern District Strike Force field office. The latter coordinates his efforts with the United States Attorney for the Eastern District of New York, who signs applications for immunity orders and indictments returned by the grand jury. In briefs and appearances in court, Mr. Del Grosso is listed as appearing on behalf of the United States Attorney.

The government contends that the Strike Force attorney was properly authorized to appear before the grand jury for the reason, among others, that he bore a commission signed by the Assistant Attorney General in charge of the Criminal Division. The commission states the attorney’s authority in broad and general terms:

“November 30, 1972

“Dear Mr. Del Grosso:

“The Department is informed that there have occurred and are occurring in the Eastern District of New York and other judicial districts of the United States violations of federal criminal statutes by persons whose identities are unknown to the Department at this time.

“As an attorney at law you are specially retained and appointed as a Special Attorney under the authority of the Department of Justice to assist in the trial of the aforesaid cases in the aforesaid district and other judicial districts of the United States in which the Government is interested. In that connection you are specially authorized and directed to file informations and to conduct in the aforesaid district and other judicial districts of the United States any kind of legal proceedings, civil or criminal, including grand jury proceedings and proceedings before committing magistrates, which United States Attorneys are authorized to conduct.

“Your appointment is extended to include, in addition to the aforesaid cases, the prosecution of any other such special cases arising in the aforesaid district and other judicial districts of the United States.

“You are to serve without compensation other than the compensation you are now receiving under existing appointment.

“Please execute the required oath of office and forward a duplicate thereof to the Criminal Division.

“Sincerely,

(signed) HENRY E. PETERSEN

Assistant Attorney General”

The validity of this commission under the terms of 28 U.S.C. § 515(a) constitutes the primary issue posed by the appellant in this case. That section appears to require a specific direction of the Attorney General (or, as demonstrated below, a properly authorized Assistant Attorney General). It reads:

“The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magisJ ^s, which United States attorneys authorized by law to conduct, her or not he is a resident of the district in which the proceeding is brought.” (Emphasis supplied.)

It is the contention of appellant that the commission constitutes a “roving authority” rather than the specific direction required by section 515(a). As demonstrated below, when viewed in context, the government attorney who carries such a letter has little more freedom to rove than a cog in the clock on the courthouse lobby wall. Even if the authority permitting his appearance before a grand jury was limited by the phrase “specifically directed,” the statute would be satisfied. To understand why that is so, we turn first to a consideration of some of the problems faced by the Department of Justice, in their historical setting.

II. ALLEGED THREAT OF ORGANIZED CRIME AND RESPONSE OF THE FEDERAL GOVERNMENT

Since World War II the public has become increasingly aware, largely through a succession of Congressional investigations, of charges respecting the awesome dimensions of organized criminal activity in this country. See, e. g., Hearings Before the Special Senate Comm, to Investigate Organized Crime in Interstate Commerce, 81st Cong., 2d Sess. and 82nd Cong., 1st Sess., pts. 1 — 15 (1950-51); Senate Select Comm, on Improper Activities in the Labor or Management Field, 1st Interim Rep., Sen.Rep.No. 1417, 85th Cong., 2d Sess. (1958); Id., 2d Interim Rep., Sen.Rep.No. 621, 86th Cong., 1st Sess., pts. 1 — 2 (1959); Id., Final Rep., Sen.Rep.No. 1139, 86th Cong., 2d Sess., pts. 1^4 (1960); Hearings Before the Permanent Subcomm. on Investigations of the Senate Comm, on Gov’t Operations on Gambling and Organized Crime, 87th Cong., 1st Sess., pts. 1 — 3 (1961); Senate Comm, on Gov’t Operations, Organized Crime and Illicit Traffic in Narcotics, Sen.Rep.No. 72, 89th Cong., 1st Sess. (1965); Hearings Before the Permanent Subcomm. on Investigations of the Senate Comm, on Gov’t Operations on Labor Racketeering Activities, 89th Cong., 2d Sess. (1966); Hearings Before a Subcomm. of the House Comm, on Gov’t Operations on the Federal Effort Against Organized Crime, 90th Cong., 1st Sess. (1967); House Comm, on Gov’t Operations, Federal Effort Against Organized Crime, H.R.Rep.No. 1574, 90th Cong., 2d Sess. (1968); Hearings Before a Subcomm. of the House Comm, on Gov’t Operations on the Federal Effort Against Organized Crime: Role of the Private Sector, 91st Cong., 2d Sess. (1970); Hearings Before the Permanent Subcomm. on Investigations of the Senate Comm, on Gov’t Operations on Organized Crime and Securities: Thefts and Frauds, 93rd Cong., 1st Sess., ser. 2 (1973). See also Hearings Before a Sub-comm. of the Senate Comm, on Commerce on Investigation of So-Called “Rackets,” 73rd Cong., 2d Sess. (1933); E. Kefauver, Crime in America (1968); R. Kennedy, The Enemy Within (1960).

Organized crime has been defined as an intricate, centralized, nationwide network of persons engaged primarily in “crimes that cannot be perpetrated profitably by small criminal systems.” D. Cressey, Organized Crime and Criminal Organizations 10 (1971). A Presidential Commission has characterized organized crime as,

“[A] society that seeks to operate outside the control of the American people, and their governments. It involves thousands of criminals working within structures as complex as those of any large corporation, subject to laws more rigidly enforced than those of legitimate governments. Its actions are not impulsive, but rather the result of intricate conspiracies carried on over whole fields of activity in order to amass huge profits.”

President’s Commission on Law Enforcement and Administration of Justice, Task Force Report on Organized Crime (1967), cited in House Comm, on Gov’t Operations, Federal Effort Against Organized Crime, H.R.Rep.No. 1574, 90th Cong., 2d Sess. 3-4 (1968). It has been said to be,

“a criminal syndicate consisting of families operating as criminal cartels in large cities across the Nation, banded together in an organization with what corresponds to a board of directors at the top to settle problems, such as jurisdictional disputes, and to enforce discipline.”

Id. at 4.

Some law enforcement officials believe that organized criminals are engaged in gambling, loan sharking, narcotics, and many other crimes and that they have moved into legitimate unions and businesses by force, by purchase, and by corruption of public officials. It has been charged that they

“currently control all but a tiny part of the illegal gambling in the United States. They are the principal usurers (loan-sharks), and the principal importers and wholesalers of narcotics. They have infiltrated certain labour unions, where they extort money from the employees and, at the same time, cheat the members of the union. [They] have a virtual monopoly on some legitimate enterprises, such as distribution of cigarette vending machines and juke boxes, and they own a wide variety of legitimate retail firms, restaurants and bars, banks, hotels, apartment houses, trucking companies, food corporations, linen-supply houses, office buildings, factories, and even garbage-collection routes. They have corrupted officials in the legislative, executive and judicial branches of government at the local, state and federal levels.”

“Measured by amount of profit, [organized crime] is one of America’s largest business enterprises. The U. S. President’s Commission in 1967 estimated that confederated crime cost Americans almost nine billion dollars a year — more than all other types of crime combined, and just about double the amount spent annually in the United States for all police, court and correction work.”

D. Cressey, Organized Crime and Criminal Organizations 10 — 11 (1971). See also House Comm, on Gov’t Operations, Federal Effort Against Organized Crime, H.R.Rep.No. 1574, 90th Cong., 2d Sess., 4-5 (1968); Johnson, Organized Crime: Challenge to the American Legal System, 53 J.Crim.L.C. & P.S. 399, 402-406 (1962). In short, Congress and the Executive have grounds to conclude that these are purveyors in a kind of supermarket of crime, with demonstrated capacity and inclination to violate almost any criminal law included in the United States Code.

Not only has the effect of organized crime on the nation’s well-being reportedly been pervasive, but it has been largely immune to law enforcement efforts. Alleged participants are exceedingly difficult to prosecute. It is believed, first, that they are typically part of a hierarchy with the highest command level insulated by a series of management echelons from the lowest level of easily-replaceable members who actually perform observable physical acts. Johnson, Organized Crime: Challenge to the American Legal System, 53 J.Crim.L.C. & P.S. 399, 416-417 (1962); D. Cressey, Theft of the Nation, The Structure and Operation of Organized Crime in America, 109 — 161 (1969); Senate Comm, on Gov’t Operations, Organized Crime and Illicit Traffic in Narcotics, Sen.Rep.No. 72, 89th Cong., 1st Sess., 7-8 (1965). Second, a code of silence is said to prevail among members concerning their operations. D. Cressey, Theft of the Nation, The Structure and Operation of Organized Crime in America 177, 186 — 220 (1969); Senate Comm, on Gov’t Operations, Organized Crime and Illicit Traffic in Narcotics, Sen.Rep.No. 72, 89th Cong., 1st Sess. 12 (1965); Johnson, Organized Crime: Challenge to the American Legal System, 53 J.Crim.L.C. & P.S. 399, 417 (1962). Third, prosecution is hindered by fear of physical and economic sanctions against potential witnesses. Johnson, Organized Crime: Challenge to the American Legal System, 53 J.Crim.L.C. & P.S. 399, 416-417 (1962).

These difficulties are illustrated by the case before us. An admitted leader of an illegal gambling ring has brazenly refused to testify before a grand jury despite a grant of immunity.

Finally, organized crime reportedly utilizes corruption of political institutions and investigative agencies to protect itself from prosecution. Johnson, Organized Crime: Challenge to the American Legal System, 53 J.Crim.L.C. & P.S. 399, 419 — 422 (1962); D. Cressey, Theft of the Nation, The Structure and Operation of Organized Crime in America 248 — 289 (1969); J. Gardiner, The Politics of Corruption, Organized Crime in an American City (1970); House Comm, on Gov’t Operations, Federal Effort Against Organized Crime, H.R.Rep.No.1574, 90th Cong., 2d Sess. 8 (1968); G. Tyler, Organized Crime in America 15 (1962).

These obstacles led one local law enforcement official to conclude:

“We are gnawing away at one or two heads of a many-headed Hydra, without knowing with certainty where the other heads are, or where the rest of the body extends.”

Statement of Suffolk Co., N.Y. Police Commissioner Thom Before N.Y. State Commission of Investigation on April 22, 1960, cited in D. Cressey, Theft of the Nation, The Structure and Operation of Organized Crime in America 290 (1969).

Because of the pervasive and interstate nature of suspected organized crime, a fragmented law enforcement approach can meet with only limited success. House Comm, on Gov’t Operations, Federal Effort Against Organized Crime, H.R.Rep.No. 1574, 90th Cong., 2d Sess. 10 (1968); Note, The Strike Force: Organized Law Enforcement v. Organized Crime, 6 Colum.J.L. & Soc.Prob. 496, 500-502 (1970); Johnson, Organized Crime: Challenge to the American Legal System, 53 J.Crim.L.C. & P.S. 399, 418-419 (1962).

After the revelations of the Kefauver Committee (Hearings Before the Special Senate Committee to Investigate Organized Crime in Interstate Commerce, 81st Cong., 2d Sess. and 82nd Cong., 1st Sess., pts. 1-15 (1950-51)), the federal government formed an Organized Crime and Racketeering Section within the Justice Department. House Comm, on Gov’t Operations, Federal Effort Against Organized Crime, H.R.Rep.No.1574, 90th Cong., 2d Sess. 12 — 13 (1968). But it was not until Robert Kennedy became Attorney General that a major federal effort began. Id. at 14 — 15; Note, The Strike Force: Organized Law Enforcement v. Organized Crime, 6 Colum.J.L. & Soc. Prob. 496, 503-505 (1970). He expanded the Organized Crime and Racketeering Section, greatly increased its activities, began to centralize the compilation of organized crime data, and obtained a dramatic increase in convictions. Note, The Strike Force: Organized Law Enforcement v. Organized Crime, 6 Colum. J.L. & Soc.Prob. 496, 505 (1970). See generally V. Navasky, Kennedy Justice 44-95 (1971).

Difficulties remained in coordinating the numerous separate federal and state law enforcement efforts. House Comm, on Gov’t Operations, Federal Effort Against Organized Crime, H.R.Rep.No. 1574, 90th Cong., 2d Sess., 74-80 (1968). It was troublesome to induce the variety of federal investigative agencies — e. g., Secret Service, Internal Revenue, Federal Bureau of Investigation, Customs, and Immigration — to share their information. See United States v. Schipani, 289 F.Supp. 43, 47-53 (E.D.N.Y.1968), aff’d, 414 F.2d 1262 (2d Cir. 1969), cert. denied, 397 U.S. 922, 90 S.Ct. 902, 25 L.Ed.2d 102 (1970).

In an effort to stimulate the drive against organized crime, which had declined ,after Attorney General Kennedy’s departure, and to provide on-the-scene federal coordination and involvement, the Justice Department in 1966 began establishing specialized organized crime prosecutorial offices in a number of cities. Note, The Strike Force: Organized Law Enforcement v. Organized Crime, 6 Colum.J.L. & Soc.Prob. 496, 497-498, 507-519 (1970). These Strike Force offices were placed under the control of the Organized Crime and Racketeering Section. Id. at 507 — 509. In this Circuit offices were organized in Brooklyn and Manhattan. This court, therefore, has had ample opportunity to observe the difficulties faced in prosecuting alleged organized criminals, the organization of the Strike Forces and the fruits of their work. Cf. Rule 201, Fed.R. of Evid. (judicial notice).

Strike Force efforts have been widely publicized, receiving particular emphasis in Justice Department annual reports. At Congressional budget hearings there have been extensive inquiries into the role and performance of the Strike Forces, followed by approval through annual budgetary authorizations. See Hearings on a Department of Justice 1968 Budget Request Before a Subcomm. of the House Comm, on Appropriations, 90th Cong., 1st Sess., 199-216, 275-281, 303 — 305 (1967); Hearings on a Department of Justice 1969 Budget Request Before a Subcomm. of the House Comm, on Appropriations, 90th Cong., 2d Sess., 124-126, 133-134, 199-209, 234-242 (1968) ; Hearings on a Department of Justice 1970 Budget Request Before a Subcomm. of the House Comm, on Appropriations, 91st Cong., 1st Sess., 216, 227, 238-241, 376-394, 437, 447-451 (1969) ; Hearings on a Department of Justice 1971 Budget Request Before a Subcomm. of the House Comm. on Appropriations, 91st Cong., 2d Sess., 197— 198, 208-211, 338-345, 353, 363, 409-413 (1970) ; Hearings on a Department of Justice 1972 Budget Request Before a Subcomm. of the House Comm. on Appropriations, 92d Cong., 1st Sess., 345, 364-366, 497-504, 508-513, 521-531, 564-574, 577-578 (1971); Hearings on a Department of Justice 1973 Budget Request Before a Subcomm. of the House Comm, on Appropriations, 92d Cong., 2nd Sess., 327, 475-481, 492, 508-511, 540 — 547 (1972); Hearings on a Department of Justice 1974 Budget Request Before a Subcomm. of the House Comm, on Appropriations, 93d Cong., 1st Sess., 494, 504, 514-524, 545 (1973); 115 Co,ng. Rec. 10041 — 10043 (daily ed. April 23, 1969) (President’s message on organized crime and remarks of Rep. Ford); President’s Message to Congress on Crime and Law Enforcement of Feb. 7, 1968, W’kly Compil. of Pres. Doc’s. 243 — 244 (Feb. 12, 1968).

III. ORGANIZATION OF STRIKE FORCES

In view of the complex and intricate tasks of Strike Force attorneys, and of the extreme difficulty of prosecuting alleged organized crime, specific authority and supervision is necessarily based on daily evaluations by authorities in Washington and in the field rather than on a single document in the form of a commission issued at the beginning of an attorney’s service. Continuing control from Washington is to be expected since the aim of the Strike Forces is,

“to achieve maximum coordination among federal agencies and between those agencies and the attorneys in the Department of Justice responsible for prosecuting organized criminals. . . The members of the strike force work with each other on a daily basis and out of the same office. Together they plan and implement a coordinated attack on organized criminal activity in their area. Each representative supervises his agency’s part in the overall investigative plan. There is continuous communication regarding ongoing investigations. The result is an integrated and purposeful accumulation of information designed to maximize the opportunities for successful prosecution.”

Note, The Strike Force: Organized Law Enforcement v. Organized Crime, 6 Colum.J.L. & Soc.Prob. 496, 498 (1970).

Excerpts from the detailed guidelines establishing the , relationship between Strike Forces and United States Attorneys Offices are set forth as an appendix to this opinion. Order No. 431 — 70, Attorney General of the United States, April 20, 1970. They, along with the literature in the field, and our own observations of cases in our courts, furnish, for the purposes of this case, sufficient basis for an understanding of how the Strike Force attorneys are controlled.

The Department of Justice is an extremely complex organization headed by the Attorney General. See 28 C.F.R. Chapt. 1. See also L. A. Huston, The Department of Justice 54 (1967) (organizational chart). It is divided into a series of (1) offices, such as that of the Deputy Attorney General who supervises the Executive Office for United States Attorneys and an office of Criminal Justice with “an overview of the criminal justice system” (28 C.F.R. §§ 0.15 — 0.17), and the Solicitor General (28 C.F.R. §§ 0.20-0.21); (2) Divisions, such as the Antitrust, Civil and Criminal Divisions (28 C.F.R. §§ 0.40-0.78); and (3) Administrations, Services, Bureaus, and Boards, such as the Federal Bureau of Investigation, the Bureau of Prisons, the Drug Enforcement Administration, and the United States Marshals Service (28 C.F.R. §§ 0.85-0.129-2). There is even an explicit provision in the Code of Federal Regulations governing the resolution of “jurisdictional” disagreements among the various units of the Department. 28 C.F.R. § 0.195.

Delegated to the Criminal Division are a variety of functions including those assigned to the Organized Crime and Racketeering Section which is responsible for

“Coordination of enforcement activities directed against organized crime and racketeering.”

28 C.F.R. § 0.55(g). In connection with his duties, the Assistant Attorney General in charge of the Criminal Division is authorized to act for the Attorney General in securing special grand juries and depositions required in the prosecution of “organized criminal activity.” 28 C.F.R. § 0.59. He is also authorized to “designate attorneys to present evidence to grand juries in all cases . . . supervised by his division.” 28 C.F.R. § 0.60.

Before a Strike Force begins its work there is a gathering of personnel from various agencies of the government, intensive training, compilation of intelligence, and designation of the individuals to be investigated. See generally Note, The Strike Force: Organized Law Enforcement v. Organized Crime, 6 Colum. J.L. & Soc.Prob. 496, 511-515 (1970).

Beyond the coordination between the United States Attorney and the local Strike Force Attorney-in-Charge, each of the Strike Forces is managed and supervised on a day-to-day basis by the Organized Crime and Racketeering Section. This section consists of a Chief and four Deputy Chiefs. The Chief of the Organized Crime and Racketeering Section reports to the Assistant Attorney General in charge of the Criminal Division. Each Deputy Chief is responsible for the operation of those Strike Forces in the geographical area assigned to him. There is almost daily contact between each local Strike Force and the Organized Crime and Racketeering Section in Washington with respect to the status of pending investigations.

Prior to the filing of an indictment the Strike Force submits to the Organized Crime and Racketeering Section a prosecution memorandum setting forth the evidence obtained as a result of its investigation. This memorandum contains the Strike Force attorney’s recommendations on whether a prosecution should be instituted. Indictments are not filed until prosecution is authorized by the Organized Crime and Racketeering Section.

Daily reports are forwarded to Washington by the Strike Forces concerning the filing of indictments and all other significant court actions such as convictions, acquittals and pleas of guilty. These reports are transmitted by the Organized Crime and Racketeering Section to the Attorney General through the Office of the Assistant Attorney General in charge of the Criminal Division.

Each Strike Force has an Attorney-in-Charge who is directly responsible for the work of those attorneys assigned to that Strike Force. All indictments, prosecutions, memoranda, immunity authorization requests, wiretap applications, and nolle prosequis are reviewed and approved by the Attorney-in-Charge and the local United States Attorney before they are filed.

Where it is deemed necessary to reassign a Strike Force attorney from one permanent duty station to another, an order is issued, signed by the Assistant Attorney General in charge of the Criminal Division, or the Deputy Attorney General, or one of their duly authorized representatives. Before being permitted to travel on a per diem basis, in connection with a specific duty assignment, a Strike Force attorney is required to obtain a travel authorization from the Department of Justice.

Such central, yet flexible, control of the work of the Strike Force is essential when dealing with alleged national crime syndicates. Note, The Strike Force: Organized Law Enforcement v. Organized Crime, 6 Colum.J.L. & Soc.Prob. 496, 514 (1970). As one commentator put it:

“The effectiveness of the strike force depends on two important factors: (1) the strike force as an institutionalized structure with agents as members and (2) overall coordination by [Organized Crime and Racketeering] in Washington.”

Id. at 520.

As the guidelines in Appendix A suggest, there is also active cooperation between the local United States Attorney and the local Strike Force personnel. The primary responsibility of the United States Attorney to prosecute crimes in the district is recognized. Decentralization is not ignored.

The commission itself, then, does not begin to express the specific limitations on Mr. Del Grosso’s authority. It places him as a unit in a tight bureaucratic hierarchy controlled by the Attorney General in Washington through a direct line of subordinates. Mr. Del Grosso cannot roam freely through the country prosecuting whom he pleases for whatever crimes he can get any grand jury to charge. He is assigned by higher authority in Washington to a specific district and he can move outside that district only when ordered by his superiors in Washington to do so. He can only investigate those persons and crimes related to organized criminal activity as his superiors from time to time allow. Let him step out of line into other areas and the local United States Attorney, jealous of his prerogatives, will refuse to sign indictments and will complain forcefully to the Attorney General in Washington. The Executive Office for United States Attorneys, under the Deputy Attorney General, has assistant directors for each area of the country who devote considerable attention to resolving such conflicts between the local United States Attorneys and the Strike Forces. The reaction through orders from the Attorney General and his subordinates to overreaching by a member of the Strike Force will likely be swift. The practical controls on a member of the Strike Force who does not understand his limited powers will be brought to bear. If the Attorney General be too laggard in bringing his Strike Force subordinates to heel, our heavy machinery of checks and balances would come wheeling into place. The United States Attorney for the District may appeal to Congressional and other forces; a call from Congress will alert the Attorney General to his duties to control his subordinates in the exercise of their limited powers. And, as a final check, the district courts have powers to control abusive prosecution.

All of this mass of paperwork, guidelines, tradition and practical reality of political science must be read into a commission. A Strike Force attorney, no matter how broad his commission, is under virtually constant specific direction and control. The situation here is quite unlike that we would face were the Attorney General to grant such a commission to a single person outside the bureaucratic structure who might take action and incur fiscal and other liabilities for the government without limit.

IV. RELATIONSHIP BETWEEN LOCALLY AND CENTRALLY CONTROLLED PROSECUTORS

A. History

While this challenge concerns the ability of one Strike Force attorney to appear before one grand jury, in a larger sense it calls into question the federal government’s ability to effectively organize its prosecutorial apparatus. The problem of centralized versus decentralized control of criminal law enforcement is at least as old as the Roman Empire. See F. Abbott, A History and Description of Roman Political Institutions, 284— 285, 346-349, 363-364, 367-368, 371-372 (1901).

In England, from about 1253 onward, the crown had its own attorney, known after 1461 as the Attorney General, to bring prosecutions in the ruler’s name. See J. Norton-Kyshe, The Law and Privileges Relating to the Attorney General and Solicitor General of England i — xv, 1 — 6 (1897). The Attorney General was empowered to prosecute such cases as he chose — generally those seriously endangering the public peace or government. See 4 Blackstone’s Commentaries 308— 309 (W.D.Lewis ed., 1922); I Chitty, Criminal Law 842-848 (Perkins ed., 1841). American colonies generally followed the contemporary English model of strong prosecutorial powers vested in an Attorney General. See O. W. Hammonds, The Attorney General in the American Colonies (1 Anglo-American Legal History Series No. 2, 1939); H. Cummings and C. McFarland, Federal Justice 8-15 (1937).

Our American experiment in federalism reduced the problem since the primary burden of maintaining internal tranquility was assumed by the states. Nevertheless, the issue remained and grew more troublesome as the national government exercised greater powers.

After the American Revolution, the Continental Congress, functioning pursuant to the Articles of Confederation, contemplated creating an office of Attorney General, with authority to prosecute all suits for the United States in federal and state courts. H. Cummings and C. McFarland, Federal Justice 16 (1937); Journal of the Continental Congress XIX, 156 (1912).

The Judiciary Act of 1789, which created the federal court system, while it called for an Attorney General at the Capitol, adopted a scheme of federal prosecution primarily at the local level. It provided for the appointment of

“a meet person, learned in the law to act as attorney-general for the United States ... to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments, touching any matters that may concern their departments.” (Emphasis supplied.)

Judiciary Act of 1789, § 35, 1 Stat. 93. The Judiciary Act also provided for United States Attorneys in each judicial district

“to prosecute ... all delinquents for crimes and offenses, cognizable under the authority of the United States, and all civil actions in which the United States shall be concerned.” Judiciary Act of 1789 § 35, 1 Stat. 92. (Emphasis supplied.)

Since the Attorney General was required to appear only in the Supreme Court, there was doubt about his ability to appear in other courts. As Attorney General Cummings observed,

“This wording of the thirty-fifth section of the Judiciary Act may have been accidental. Those who desired only a federal Supreme Court, leaving the trial work to state courts, would not likely object to confining the Attorney General to the Supreme Court. The original draft of the Judiciary Act had proposed that the district and Supreme Courts each appoint the attorney to appear before them on behalf of the government. Under such an arrangement it was but natural for the duties of those attorneys to be limited to the courts which had appointed them. When this plan of appointment was abandoned, the wording of the section was not revised and the Attorney General remained charged only with the duty of appearing before the Supreme Court.”

H. Cummings and C. McFarland, Federal Justice 16 (1937). See also Warren, New Light on the History of the Judiciary Act of 1789, 37 Harv.L.Rev. 49, 108-111 (1923).

Early Attorneys General did not view the Judiciary Act as limiting their ability to appear before federal courts other than the Supreme Court. They took active roles prosecuting a number of early cases in federal trial courts. H. Cummings and C. McFarland, Federal Justice 31, 38, 44, 48, 60, 90 (1937); IV The Works of Alexander Hamilton 588 — 589 (J. Hamilton ed. 1851). They participated in the drafting of indictments and may well have appeared before grand juries in a few cases. F. Wharton, State Trials of the United States During the Administrations of Washington and Adams 77 — 78 (1849 ed.); H. Cummings and C. McFarland, Federal Justice 31, 38, 44, 48 (1937); H. Adams, The Life of Albert Gallatin 148 (1879 ed.).

Because Attorneys General were provided with only skeletal staffs until after the Civil War (L. Huston, The Department of Justice 9 — 11 (1967); J. EasbySmith, The Department of Justice 6 (1904)), however, and because they were preoccupied with growing requests for advisory opinions and with expanding Supreme Court litigation, the local district attorneys remained all but completely independent. See H. Cummings and C. McFarland, Federal Justice 218— 220 (1937); Wirt, Attorney General and District Attorneys, 1 Op.Att’y Gen. 608— 611 (1823); Taney, The Jewels of the Princess of Orange, 2 Op.Att’y Gen. 482, 491-492 (1831) (power of the President, acting through the Attorney General, to issue directions to United States district attorneys); Cushing, Office and Duties of the Attorney General, 6 Op.Att’y Gen. 326, 335-336, 347-349 (1854). Thus, pri- or to the Civil War, federal prosecutorial efforts were almost completely decentralized, with authority vested in the hands of local United States Attorneys.

The crisis of the Civil War compelled Attorney General Bates to renew a proposal of the first Attorney General, Edmund Randolph, to make supervision of district attorneys a duty of the Attorney General. H. Cummings and C. McFarland, Federal Justice 218 — 219 (1973). In 1861 Congress followed this recommendation. It also authorized the Attorney-General to appoint special assistants to United States district attorneys to assist the Attorney General in the performance of his duties. Act of August 2, 1861, 12 Stat. 285 c. 37, Rev.Stat. § 363 (now codified, as modified, at 28 U.S.C. § 543(a)).

After the creation in 1870 of the Department of Justice, the Attorney General obtained authorization to name special attorneys to aid the Attorney General in the “trial of any case.” Act of June 22, 1870, 16 Stat. 162 c. 150, § 17, Rev.Stat. §§ 364-366 (now codified, as modified, at 28 U.S.C. § 518(b)). In order to employ such special attorneys, the Attorney General was required to certify that the services of the special attorneys

“were actually rendered, and that the same could not be performed by the Attorney-General, or solicitor-general, or the officers of the department of justice, or by the district attorneys.”

Act of June 22, 1870, 16 Stat. 164 c. 150, § 17, Rev.Stat. § 365. The requirement of certification in section 365 was added to avoid unnecessary expenditures and abuses by persons without supervision. See United States v. Crosthwaite, 168 U.S. 375, 379, 18 S.Ct. 107, 108, 42 L.Ed. 507 (1897) (“It was left to [the Attorney General] to determine whether public interests required the employment of special counsel”). Cf. 31 U.S.C. § 665(b); Wickersham, Employment of Retired Army Officer, 30 Op.Att’y Gen. 51 (Feb. 7, 1913); United States v. Morse, 292 F. 273 (S.D.N.Y.1922).

Armed with these provisions, Attorneys Genera] made extensive use of special attorneys. They employed them in grand jury proceedings as well as trials. House Judiciary Comm., Report on H.R. 17714, H.R.Rep.No. 2901, 59th Cong., 1st Sess. at 1 (1906).

During the Grant administration, the Attorney General, at the head of the new Department of Justice, began exercising direct authority over federal district attorneys in an effort to supervise the enforcement of Reconstruction laws designed to protect newly-enfranchised black citizens from widespread Ku Klux Klan terrorism in Southern states. H. Cummings and C. McFarland, Federal Justice 230 — 249 (1937). As part of this effort it appears that some members of the Department of Justice staff were dispatched to the South to assist local United States attorneys. Id. at 242. This program marked the first widespread use of prosecutorial authority by the Attorney General. It stands as historical precedent for the centralized efforts of the organized crime Strike Forces. See also Dixon, The Attorney General and Civil Rights 1870 — 1964, in Roles of the Attorney General of the United States, 105 — 110 (L. A. Huston, et al., eds. 1968). More recently, important tax, civil, land, antitrust and civil rights cases have been increasingly controlled from Washington through the various divisions in the Department of Justice set up for that purpose.

B. Summary of Present Powers of Attorney General

The Executive Branch — specifically, the Attorney General — has the power to conduct federal criminal litigation. 28 U.S.C. § 516. It is “an executive function within the exclusive prerogative of the Attorney General.” United States v. Cox, 342 F.2d 167, 190 (5th Cir.), cert. denied sub nom. Cox v. Hauberg, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965), (Wisdom, J., concurring). Under the broad ambit of applicable statutes the Attorney General may appoint officials “to defect and prosecute crimes against the United States.” 28 U.S.C. § 533. He has supervision of all litigation in which the United States is a party and is commanded to “direct all United States Attorneys, assistant United States Attorneys, and special attorneys ... in the discharge of their respective duties.” 28 U.S.C. § 519. He may appoint assistant United States Attorneys in any district in which they reside (28 U.S.C. §§ 542, 545) or “appoint special attorneys, regardless of their residence, to assist United States Attorneys when the public interest so requires.” 28 U.S.C. §§ 542, 543. He may direct any officer of the Department of Justice to conduct and argue any case in any court of the United States. 28 U.S.C. § 518. He also may direct “any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law when specifically directed by the Attorney General” to “conduct any kind of legal proceeding . . . including grand jury proceedings.” 28 U.S.C. § 515(a). Under the Attorney General’s supervision, the United States Attorney, an appointee of the President, has the duty, “except as otherwise provided by law,” to prosecute all offenses against the United States within his district. 28 U.S.C. § 547.

Since 28 U.S.C. § 509, deriving from the Reorganization Acts of 1949 and 1950, vests all functions of the Department of Justice, with some limited exceptions, in the Attorney General, the statute for delegation appearing in 28 U.S.C. § 510 is essential so that he may “make such provisions as he considers appropriate authorizing the performance by any officer ... of any function of the Attorney General.” See United States v. Giordano, 416 U.S. 505, 513, 94 S.Ct. 1820, 1826, 40 L.Ed.2d 341 (1974).

Recently, the Supreme Court considered these principles and some of these statutes in ruling on the justiciability issue involving the Watergate Special Prosecutor and the President in United States v. Nixon, 418 U.S. 683, 694-696, 94 S.Ct. 3090, 3101, 41 L.Ed.2d 1039 (1974). The Supreme Court pointed out:

“Under the authority of Art. II, § 2, Congress has vested in the Attorney General the power to conduct the criminal litigation of the United States Government. 28 U.S.C. § 516. It has also vested in him the power to appoint subordinate officers to assist him in the discharge of his duties. 28 U.S.C. §§ 509, 510, 515, 533. Acting pursuant to these statutes, the Attorney General has delegated the authority to represent the United States in these particular matters to a Special Prosecutor with unique authority and tenure.”

418 U.S. at 694, 94 S.Ct. at 3100.

In sum, the Attorney General has authority to assign other officers of the Department of Justice, not only under 28 U.S.C. § 515, but also under the other statutes giving him power over criminal litigation. If it were otherwise, his broad power to enforce the criminal laws of the United States would be seriously hampered at its inception — the initiation of a criminal case by presenting evidence before grand juries.

We have focused thus far on the general authority of the Attorney General over federal criminal cases. But this power must be considered in conjunction with that of grand juries since no serious criminal case may be commenced without a grand jury indictment. A grand jury has wide latitude to conduct an inquiry into violation of criminal laws. As the Supreme Court recently observed in United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 617, 38 L.Ed.2d 561 (1974):

“Traditionally the grand jury has been accorded wide latitude to inquire into violations of criminal law. No judge presides to monitor its proceedings. It deliberates in secret and may determine alone the course of its inquiry. The grand jury may compel the production of evidence or the testimony of witnesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials. ‘It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited by doubts whether any particular individual will be found properly subject to an accusation of crime.’ Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 471, 63 L.Ed. 979, (1919).”

Both the power of the Attorney General to designate an attorney to conduct a grand jury inquiry and the power of the grand jury to investigate would be circumscribed, despite the principles expressed in Calandra and Blair, if the Attorney General could not direct that his assigned officer question within the entire scope of the inquiry. Otherwise the proceeding would be restricted to the area of the authority of the Justice Department lawyer; questions by jurors themselves outside these bounds would be out of order. It would inhibit its freedom “to pursue its investigations unhindered by external influence or supervision . . . .” United States v. Dionisio, 410 U.S. 1, 16-17, 93 S.Ct. 764, 773, 35 L.Ed.2d 67 (1973). The Attorney General’s power to assign attorneys to a grand jury inquiry is of necessity as broad as the inquiry itself or, in other words, as broad an inquiry as “United States attorneys are authorized by law to conduct.” 28 U.S.C. § 515(a).

C. 28 U.S.C. § 543

Moving from the broad statutory framework under which the Attorney General conducts the criminal litigation of the United States, the plain language of 28 U.S.C. § 543 suggests that the Attorney General has the power to assign an attorney of the Department of Justice to conduct a grand jury inquiry with the same breadth as an inquiry conducted by a United States Attorney. Section 543 gives the Attorney General power to appoint “attorneys to assist United States attorneys when the public interest so requires.” This grant of power is similar to his authority under section 542 to appoint Assistant United States Attorneys “when the public interest so requires.” Neither statute contains any words of limitation on the power of these appointees to conduct criminal proceedings, including grand jury proceedings. No authority suggests that an Assistant United States Attorney cannot conduct a broad grand jury inquiry by virtue of his office. A departmental or special attorney appointed under section 543 would likewise appear to be subject to no limitation. The letter of appointment of Mr. Del Grosso might, then, reasonably be read as an appointment under this section.

There remains the question of whether the organizational structure of the Strike Forces precludes a conclusion that its attorneys were appointed to “assist” (28 U.S.C. § 543) the United States Attorney. The close relationship between Strike Forces and the United States Attorneys revealed in the Appendix to this opinion supports a finding that investigation and prosecution of “organized crime” in a particular district constitutes assistance to the United States Attorney for that district. Where, as here, the United States Attorney reviews and signs all indictments and organized crime prosecutions are coordinated with his work, the attorneys of the Strike Force are “assisting” the United States Attorney.

While authority for centralized prosecutorial efforts by the Justice Department, such as the Strike Forces offices, provides a context for interpretation and understanding, it is not dispositive where specific statutes are applicable. We turn, therefore, to an analysis of the genesis and interpretation of section 515(a) of Title 28, the most narrowly drawn of the relevant provisions.

D. 28 U.S.C. § 515(a).

1. Language of § 515(a)

Section 515(a) provides that an attorney may be “specifically designated” to conduct “any kind of legal proceedings . which United States Attorneys are authorized by law to conduct.” The letter of authorization in question expressly tracks the statute, stating that the attorney is “specifically authorized and directed to file informations . . . and to conduct . . . any kind of legal proceedings . . . including grand jury proceedings . . . which United States Attorneys are authorized to conduct.” Plain meaning arguably permits the Attorney General to give the assigned attorney a specific direction to conduct grand jury proceedings to the same extent as the United States Attorney. Upon this basis, then, the letter of authorization might be deemed sufficient.

Even if the words “specifically directed” are read to require a specific limitation in the proceedings to which a special attorney is assigned, it does not necessarily follow that this construction is applicable to regular attorneys of the Department of Justice. The statute applies to three categories of attorneys: the Attorney General, any officer of the Department of Justice, and an attorney specially appointed by the Attorney General. The phrase “specifically directed” obviously does not apply to the Attorney General himself. The thrust of the 1870 Congressional debates and enactments suggest that specific direction was only necessary for specially-hired counsel, not regular Justice Department attorneys. Cong.Globe, 41st Cong., 2d Sess., pt. 4, 3036-3039 (1870); Act of June 22, 1870, 16 Stat. 162 c. 150, § 17. See also, United States v. Denton, 307 F.2d 336, 338 (6th Cir. 1962), cert. denied, 371 U.S. 923, 83 S.Ct. 292, 9 L.Ed.2d 232 (1963). Since section 510 permits the Attorney General to delegate this power to other officers of the department, there is reason to read section 515(a) to make the phrase “specifically directed” inapplicable to “any officer of the Department of Justice.” “Specifically directed” might be read — though the syntax is severely strained — to be applicable only to “any attorney specially appointed by the Attorney General who may, when specifically directed,” conduct any kind of legal proceeding.

Under this reading, Mr. Del Grosso would have had legal authority to conduct a broad grand jury inquiry. As a regular attorney in the Department of Justice, he qualifies under common usage as an officer of the Department of Justice. See, e. g., the use by the Supreme Court of that term in United States v. Giordano, 416 U.S. 505, 513— 516, 94 S.Ct. 1820, 1825-1827, 40 L.Ed.2d 341 (1974).

Nevertheless, reading out of section 515(a), as it applies to officials, the words “specifically directed” seems unwarranted in view of the relevant statutory history of this 1906 provision. This is the subject to which we now turn.

2. Legislative History of § 515(a)

a. Precursor limitations on outside counsel

The 1861 and 1870 Acts serve as background for our consideration of the 1906 Act. By the Act of August 2, 1861, 12 Stat. 285 c. 37, as already noted, Congress provided that the Attorney General was “charged with the general superintendence and direction of the [district] attorneys . . . as to the manner of discharging their respective duties.” He was also

“empowered, whenever in his opinion the public interest may require it, to employ and retain (in the name of the United States) such attorneys and counselors-at-law as he may think necessary to assist the district-attorneys in the discharge of their duties, and shall stipulate with such assistant counsel the amount of compensation.”

Id. § 2. The latter section is now codified, in modified form, as 28 U.S.C. § 543(a).

The Act of June 22, 1870, 16 Stat. 162 c. 150, which created the Department of Justice was, in large measure, adopted in reaction to abuses in the employment of outside counsel, including the payment of excessive fees and the sometime inferior quality of their services. See, e. g., Cong.Globe, 41st Cong., 2d Sess., pt. 4, 3036-37, 3038 (1870) (Remarks of Rep. Jenckes and Lawrence):

“Retainers of $3,000 and $7,500 have been sent to counsel in other parts of the United States. Some have rendered service, and some we cannot find rendered any at all.

“In some instances the amount paid one single attorney for a series of years has largely exceeded the whole salary of the Attorney General.”

Section 17 of the 1870 Act (16 Stat. 162, 164) provided that the need for outside counsel was to be publicly stated prior to their employment, and the scope of their commission was not to exceed this stated need. In addition it had to be certified that no personnel of the Department of Justice could do the job — clearly implying Washington’s power and duty to send experts from the Capitol to take over those prosecutions where there were special needs:

“[N]o counsel or attorney fees shall hereafter be allowed to any person or persons, . . . for services in such capacity to the United States, or any branch or department of the government thereof, unless hereafter authorized by law and then only on the certificate of the Attorney-General that such services were actually rendered,' and that the same could not be performed by the Attorney-General, or solicitor-general, or the officers of the department of justice, or by the district attorneys. And every attorney and counsellor who shall be specially retained, under the authority of the Department of Justice, to assist in the trial of any case in which the government is interested, shall receive a commission from the head of said Department as a special assistant to the Attorney-General, or to some one of the district attorneys, as the nature of the appointment may require, and shall take the oath required by law to be taken by the district attorneys, and shall be subject to all the liabilities imposed upon such officers by law.” (Emphasis added.)

16 Stat. 162, 164 §17.

In the Congressional debates it was made clear that the Attorney General would be held responsible for the expenditure of funds to retain outside counsel and for the quality of their performance. Cong.Globe, 41st Cong., 2d Sess., pt. 4, 3036 — 3037 (1870). This was to be accomplished by requiring that the need for outside counsel and the purposes for which he was retained be specified on the face of each special commission “in order that [counsel] may be responsible to him [the Attorney General] and to the government for the performance of their duties.” Cong.Globe, 41st Cong., 2d Sess., pt. 4, 3035 (1870).

Congress, in establishing the Department of Justice, apparently showed no concern that its employees would interfere with the functions of the district attorneys and gave the Attorney General power to use the persons he employed to attend to any interest of the United States.- The primary Congressional concern was that limited commissions be granted to outside counsel so that their responsibility to the Attorney General would be clearly evidenced.

b. Rosenthal, Cobban and Twining Cases

Three contemporaneous district court cases provide a background for consideration of the 1906 Act, now section 515(a). United States v. Rosenthal, 121 F. 862 (S.D.N.Y.1903), the case section 515(a) was designed to deal with, is critical.

Merchants in New York were disturbed about the possible fraudulent importation of silk at the Port of New York. They consulted their own private attorney, one Wickham Smith, who, after inquiry, suggested that they ask the President of the United States and the Attorney General to investigate the matter. When the Attorney General responded that he lacked funds, the merchants offered to pay Mr. Smith’s expenses. He was then appointed by the Attorney General to investigate “alleged fraudulent importation of Japanese silks at the Port of New York” and “to prepare and conduct such civil and criminal proceedings as may result.” His compensation was to “be determined” on the completion of his services, but the expectation was that it would be paid by the merchants. Armed with this warrant, he proceeded to appear before a grand jury and obtain indictments against competitors of the silk merchants of New York.

On this peculiar state of facts it is not surprising that the district judge quashed the indictments. The danger in permitting private persons to use the grand jury for their own purposes is obvious enough. See Sutherland v. International Ins. Co. of N. Y., 43 F.2d 969 (2d Cir.), cert. denied, 282 U.S. 890, 51 S.Ct. 103, 75 L.Ed. 785 (1930).

While acknowledging the power of the Attorney General, or any person authorized by him, to conduct litigations and trials in any United States Court, the district judge drew a sharp distinction between trials and grand jury proceedings. Only the United States Attorney for the district or one of his assistants, he held, could present a matter to a grand jury.

There is no need to analyze again the statutory authority then extant to demonstrate how the same result could have been reached without taking so narrow a view of the Attorney General’s power vis-a-vis grand juries. In fact, United States v. Cobban, 127 F. 713, 717 (D.Mont.1904), and United States v. Twining, 132 F. 129, 131-132 (D.N.J. 1904), both promptly rejected the Rosenthal construction, of what is now 28 U.S.C. §§ 543 and 515(a).

Instead of relying on the courts to limit Rosenthal to its special facts, Congress, acting on the Attorney General’s request, shortly thereafter adopted a statute. It affirmed his power, that of other officers of the Department of Justice, and persons he specially designated, to conduct proceedings before federal grand juries.

c. Act of June SO, 1906

The express purpose of the bill as reflected in the House Committee report was to overrule the broad holding in Rosenthal.

“The purpose of this bill is to give to the Attorney General, or to any officer in his Department or to any attorney specially employed by him, the same rights, powers, and authority which district attorneys now have or may hereafter have in presenting and conducting proceedings before a grand jury or committing magistrate.” (Emphasis supplied.)

House Judiciary Comm., Report on H.R. 17714, H.R.Rep. No. 2901, 59th Cong., 1st Sess. 1 (1906).

When the report discussed the employment of “special counsel,” it was obviously concerned primarily with specially-retained outside counsel. Nevertheless, the language of the report is sufficiently broad to support the interpretation that Congress wished the local district attorneys to handle grand jury matters except where there was a special reason to have another attorney appear. The House Report that accompanied the legislation read in part:

“It has been the practice of the Attorney-General for many years to employ special counsel to assist district attorneys in the prosecution of suits pending in their respective districts whenever the public interest demanded it. It has been the practice of such special counsel to appear, with the district attorney, before grand juries and committing magistrates and to assist in the proceeding pending there. This right passed unchallenged for many years, until the circuit court for the southern district of New York, on March 17, 1903, [decided] the case of the United States v. Rosenthal. . . .

“[The Rosenthal] decision makes the proposed legislation necessary if the Government is to have the benefit of the knowledge and learning of its Attorney-General and his assistants, or of such special counsel as the Attorney-General may deem necessary to employ to assist in the prosecution of a special case, either civil or criminal. As the law now stands, only the district attorney has any authority to appear before a grand jury, no matter how important the case may be and no matter how necessary it may be to the interests of the Government to have the assistance of one who is specially or particularly qualified by reasons of his peculiar knowledge and skill to properly present to the grand jury the question being considered by it.

“The Attorney-General states that it is necessary, in the due and proper administration of the law, that he shall be permitted to employ special counsel to assist the district attorney in cases [requiring special skill] which district attorneys or lawyers do not generally possess, and in cases of [unjusual importance to the Government, and that such counsel be permitted to possess all of the power and authority, in that particular case, granted to the district attorney, which, of course, includes his right to appear before a grand jury either with the district attorney or alone.

“There can be no doubt of the advisability of permitting the Attorney-General to employ special counsel in special cases, and there can be no question that if he has been employed because of his special fitness for such a special case that the Government should have the full advantage of his learning and skill in every step necessary to be taken before the trial, including that of appearing before grand juries. The law proposed by the bill under consideration seems to be very necessary, because of the decision in the Rosenthal case, hereinbefore referred to, and the committee recommend its speedy enactment.” (Emphasis supplied.)

House Judiciary Comm., Report on H.R. 17714, H.R.Rep. No. 2901, 59th Cong., 1st Sess. (1906).

The Senate version of what is now § 515(a) did not contain the House language that the special attorney be “specifically directed by the Attorney General” (see 40 Cong.Rec. 7913 — 14 (1906)), and the accompanying Senate Judiciary Committee Report made no mention of a requirement that a special attorney’s commission be specifically drawn. Senate Judiciary Comm., Report o