fighting yesterday's battles, we should be careful not to change the law in such a way as to minimize or undermine the deterrent effect of criminal penalties, even on the most powerful of public officials.

The loophole in section 532 could most easily be corrected by amending this provision specifically to prohibit public officials charged with Federal crimes while in the performance of their public duties from invoking the defense. A second, less desirable alternative would be to establish safeguards which would diminish the possibility of official collusion such as described above, perhaps by requiring a public official to obtain the written opinion of a third government official, or by, making the official who was responsible for the misstatement of law criminally liable for the illegal activities of the individual to whom he gave the grant of permission.

It should also be pointed out that the framers of this particular section modified earlier versions of this same provision by only allowing a defense for official misstatements of law when the misstatement is written as opposed to when the misstatement is orally given. See section 609 entitled "Mistake of Law," in the National Commission report. In my opinion, this is an unwarranted retreat from the plain meaning of the two Supreme Court decisions cited. earlier. Both of these decisions recognized the official misstatement of defense and reversed convictions in situations where official assurances had been given orally. Oral grants of administrative permission to private citizens should not be excluded from being covered by this defense. In the context of a public official attempting to invoke the defense, however, particularly if the authorizing official is to be held. criminally responsible for the illegal activities he authorizes a written authorization is a useful, if not necessary, requirement. Section 521 entitled "Public Duty" déclares:

It is a defense to a prosecution under any Federal statute that the defendant reasonably believed that the conduct charged was required or authorized by law to carry out his duty as a public servant.

The public duty defense challenges two principles whch are fundamental to the rule of law in a democratic society. The first principle is that an individual is presumed to be personally responsible and therefore legally accountable for his own actions. The public duty defense would allow certain individuals to shield themselves from that kind of personal accountability by invoking their public office, by saying, "But I was just doing my job."

The second principle is that no man or group in society, by virtue of class, rank, wealth, power, or station, is treated differently from any other man or group in the eyes of the law. All are protected equally. This provision would protect some citizens more equally than others. It would supply a defense to some individuals which would not be offered to all individuals.

Perhaps even more important than these philosophical points is the fact that, if enacted, this section would seriously dilute the power of the law to deal with criminal conduct on the part of Federal officers. The public duty defense would permit Federal officials to use their position of public trust to defend against criminal prosecutions brought against them for violating that trust. Rather than focusing on the legality of specific actions, rather than considering whether those actions were in fact called for by the individual's public duty,

this section would focus the court's attention on whether the official reasonably believed his conduct was legal. If an official simply convinces a jury that he reasonably believed his actions were authorized or required by law, his crime would be excused.

The comparable provision in the National Commission's report states that conduct engaged in by a public servant in the course of his official duties is justified when it is required or authorized by law. Final report of the National Commission on Reform of Federal Criminal Laws, 1971, section 602 at page 44. The framers of S. 1400 cut back from the Commission's version and inserted the reasonable belief standard. This addition has a twofold effect. First, it allows the defendant to go the jury on the question of his state of mind. The court would be required to instruct the members of the jury to ask themselves, one, whether the defendant believed that his conduct was authorized or required by law; and two, whether that belief was reasonable given the circumstances surrounding his conduct.

The reasonable belief standard has a secondary effect outside of the courtroom. It undermines the deterrent effect of criminal penalties. Whenever a Federal official believes he can convince a jury that his conduct, though perhaps unlawful in retrospect, was guided by honest and praiseworthy motives and therefore reasonable, he will not be deterred from engaging in that conduct. The public servant is thereby given a free rein in the shadowy no man's land of activities which are on the borderline of illegality. Rather than steering clear of the legally dubious, the public servant can chart a course significantly nearer criminal conduct with the assurance that his only burden is to persuade a jury that it was a gray area, that the lawfulness of his conduct was in his eyes, unclear, and that he was motivated by a sense of public duty rather than criminal malice.

A jury automatically finds it easier to convict a vagrant of breaking and entering than to convict a White House aide of the same offense. A White House aide, after all, can always present a plausible argument that he was overzealous, not criminal. An unreasonably interpretation of the law in ordinary circumstances may often be rendered reasonable in an official's mind through the operation of misdirected zeal or public-spirited fervor.

Let me illustrate this second point with an actual example taken from the trial of those individuals charged with planning, ordering or participating in the break-in of Daniel Ellsberg's psychiatrist's office. Before he pled guilty to another felony, Charles Colson argued in papers filed before the court that the break-in was "reasonable" within the terms of the fourth amendment. The logic of the Colson defense rested on the case of Katz v. United States, 389 U.S. 347 (1967), in which the Supreme Court concluded that electronic surveillance was, in the eyes of the fourth amendment, the same as a search even though there is no "physical intrusion into a given enclosure." The Colson defense concluded:

Thus, while a break-in was historically considered a constitutional violation and electronic surveillance not, these two forms of intrusion are now, and have been since 1967, on the same constitutional footing. Accordingly, if electronic surveil lance is, or was in 1971, justified without a warrant in a national security case, a trespassory search must necessarily be justifiable on the same basis.

While Colson's argument is totally untenable and indeed unreasonable as a legal defense, it is an argument that could be presented to the jury, under the public duty defense, to show that Colson's belief that the break-in was "authorized or required by law," although perhaps erroneous or mistaken as a question of law, was nevertheless a belief that could have been held by a "reasonable man."

Over and above the undesirable impact this provision would have on the system of criminal justice when applied to official wrongdoing, section 521, in my opinion, goes beyond the case law upon which the public duty defense is presumably based. Much of that case law comes out of a military context. The typical example is that of a soldier on guard duty shooting and killing an escaping prisoner, In Re Fair, 100 F. 149 (Nebr. 1900), United States v. Clark, 31 F. 710 (Mich. 1897), or shooting at an escaping prisoner and killing an innocent bystander, United States v. Lipsett, 156 F. 65 (Mich. 1907) or shooting and killing a private citizen who had committed a felony and was in flight from the scene of the crime, United States ex rel Drury v. Lewis, 200 U.S. 1 (1905). In each of these cases, the court inquired specifically whether the conduct in question fell within the scope of the individual soldier's duties.

All of these cases arose in the peculiar circumstances of military discipline and authority. As one judge said:

The first duty of a soldier is obedience, and without this there can be neither discipline nor efficiency in the Army. If every subordinate officer and soldier were at liberty to question the legality of the orders of the commander, and obey them or not as he may consider them valid or invalid, the camp would be turned into a debating school where the precious moment for action would be wasted in wordy conflicts between the advocates of conflicting opinions. In Re Fair at 154-155.

In the military, therefore, the balance is strict in favor of obedience, and only "in a plain case of excess of authority, where at first blush it is apparent and palpable to the commonest understanding that the order is illegal" is the soldier held personally and criminally liable for his acts. The borderline order must always be obeyed.

The military, however, is different from civil government. As one Federal judge wrote:

To insure efficiency, an army must be, to a certain extent, a despotism. Each officer, from the general to the corporal, is invested with an arbitrary power over those beneath him, and the soldier who enlists in the army waives, in some particulars, his rights as a civilian, surrenders his personal liberty during the period of his enlistment, and consents to come and go at the will of his superior officers. United States v. Clark at 713.

The public servant, however, is not a lowly private nor is government bureaucracy a despotism. Unlike the common foot soldier, the public servant acts with discretion and is free to come and go at his own behest. Unlike the common foot soldier, the public servant should not be protected from legal consequences of acts which are in the twilight zone of legality. Because the public servant exercises individual discretion, because he can always refuse or resign, because he carries with his office substantial social responsibility and public trust, because the public servant invokes all the might and majesty of the state when he acts, the public servant should, at the very least, be held to the same standard of conduct applied to the ordinary citizen. One would hope, if anything, that a higher standard would be expected in the conduct of a public official.

The public duty defense, in short, is based on an inapt analogy. Section 521 incorporates principles of liability developed in military circumstances and transfers them to the very different conditions of civil government. Unlike the individual soldier who is immunized from criminal liability in all but the most flagrant of cases, the Federal official should be as accountable as the next man to the law.

Finally, in considering this provision, I would urge the subcommittee to ask itself whether there is in fact a need for this provision. Is there any evidence to suggest that Federal officials are presently being convicted and going to jail wrongly? Similarly, is there any evidence to suggest that public officials are being deterred from performing their duties because this section does not exist? Absent such findings, it would be unwise in my opinion to enact this provision and run the dual risk of diluting the power of the criminal law and undermining public confidence in the public servant.

For all the reasons noted above, I would respectfully urge this subcommittee to delete section 521 from the new Federal criminal code, and at least in this area, let the genius of the common law operate freely.

Thank you, Mr. Chairman. If you have any questions, I would be happy to respond.

Senator HRUSKA. Thank you, Mr. Craig.

There will be inserted in the record articles to which Mr. Craig refers from the Washington Post of January 20 and March 3 of this year.

[The information referred to follows:]

[From the Washington Post, Jan. 20, 1974]

MAKING IT ALL PERFECTLY LEGAL

(By Richard R. Korn and Gregory B. Craig)

ON MARCH 23, 1973, Judge John J. Sirica read a letter from James W. McCord in open court, and the White House cover-up of Watergate began to unravel. Four days later, on March 27, the Nixon administration introduced in the Senate a bill to revise the U.S. criminal laws.

Relatively few took notice of the legislation, which was numbered S. 1400, and fewer still saw any connection between the two events. But there was indeed a connection: Buried in the bill's 340 pages were two brief sections that might do no less than protect public officials and their private agents from being convicted of federal crimes, whether future Watergates or other varieties.

They are truly remarkable, the two passages, descendants of the notorious I-was-just-following-orders and I-was-just-doing-my-duty defenses of Nuremberg, containing language that would make those excuses acceptable defenses for officials facing federal charges. What is also remarkable is that these provisions were not the brainchild of prophetic "plumbers" thinking ahead of ways to stay out of prison, but of well-intentioned academics, lawyers and other members of the outside legal community. Nonetheless, the administration did not object to adopting the outsiders' proposals, though Justice Department lawyers who worked on the bill also say they didn't mean the two sections that way. Almost nobody, it seems, meant them that way, and yet there they are.

Section 521, titled "Public Duty," declares: "It is a defense to a prosecution under any federal statute that the defendant reasonably believed that the conduct charged was required or authorized by law to carry out his duty as a public servant, or as a person acting at the direction of a public servant . . ." Section 532, titled "Official Misstatement of Law," declares:

"It is an affirmative defense to a prosecution under any federal statute that the defendant's conduct in fact conformed with an official statement of law, afterward determined to be invalid or erroneous, which is contained in . . an administrative grant of permission to the defendant . . if the defendant acted in reasonable reliance on such statement and with a good faith belief that

his conduct did not constitute an offense."

A LAW AND ORDER CLASSIC

The breadth of the sections is astonishing. If an official simply convinces a jury that he "reasonably believed" he was acting legally, his erime would be excused, If he or anyone else "reasonably relies" on an "administrative grant of permission" even if it turns out to have given permission for crimes-they could be forgiven for breaking the law. And if the private agent of an official obeys orders which he, too, "reasonably believes" to be legal, a criminal case against him could be thrown out

These must be viewed as the crowning provisions of a bill which is, in many ways, the quintessence of the law-and-order backlash of the 1960s, a period piece of the Mitchell-Agnew era. Democratic Sen. John L. McClellan of Arkansas has introduced his own criminal code reform legislation, which is also predictably tough, but even it cannot match the administration version in seeking more power for the state. Senate Judiciary subcommittee hearings on the measures have been only sporadic so far, with Watergate, ironically enough, a chief cause for the delay. The scandal has not let one attorney general stick around long enough to allow much Justice Department testimony on the bills.

The Nixon bill cosponsored but not endorsed in every detail by McClellan and Sen. Roman L. Hruska (R-Neb.) attempts to take advantage of everything that confused and frightened Americans in the 1960s-permissiveness, pornography, Dr. Spock, the Chicago conspiracy, Daniel Ellsberg, Abby Hoffman, the Weathermen, pot, LSD, the SDS and more.

TRIVIAL OR ABSURD

For those who worry that mollycoddling judges are shackling law officers, S. 1400 would make it easier to wiretap and entrap suspects. For those who complain that lawbreakers are punished too leniently, the bill would set up a presumption against parole and probation and reimpose a mandatory death penalty for certain offenses. For those who fear that too many criminals get off altogether, it would roll back the insanity defense in a way which would, as Prof. Louis B. Schwartz of the University of Pennsylvania Law School puts it, "return the law to a primitive state which it abandoned over a century ago, ignore the moral aspect of guilt, and fly in the face of virtual unanimity painfully achieved in the past decade."

Nor does the bill stop there. For those who would repeal the First Amendment in the name of national security, S. 1400 would repudiate the "clear and present danger" doctrine, declaring it illegal to incite others "to engage in conduct which then or at any future time would facilitate the overthrow or destruction by force of the government." Or, for those concerned about state secrets, the measure would make it a felony for any federal employee to disclose classified information to "unauthorized recipients," no matter how trivial the information or how absurd the classification.

But where S. 1400 truly matches the civil libertarians' worst nightmares is in the two sections allowing public officials to excuse crimes by citing their "public duty" or orders from superiors.

Consider, for example, the criminal charges against former White House aides John D. Ehrlichman and Egil Krogh, charges stemming from the burglary of Daniel Ellsberg's psychiatrist's office. Before Krogh pleaded guilty, both he and Ehrlichman asked that their cases be dismissed, arguing that they were acting as "officers of the United States." Ehrlichman's lawyer carried the point further, stating: "The President specifically directed Ehrlichman to make known to Krogh, [David] Young and Charles Colson that [the investigation of Ellsberg] was impressed with a national security characteristic.

Ehrlichman's attorney based his argument on the old principle that there can be no crime without a guilty mind, a mens rea. He stated: "The essence of the crime of conspiracy is . evil intent. The association of persons with honest intent is not a conspiracy, and the association of Ehrlichman with the others on a presidential assignment cannot be transformed into a criminal conspiracy.' Then consider Adolf Eichmann contending in an Israeli courtroom that he was not guilty of the mass slaughter of Jews because he did not have the requisite evil or criminal intent, that he had merely obeyed superior orders. Or consider the words of Lt. Calley, testifying Feb. 22, 1971, at his court-martial for the Maylai massacre:

"Well, I was ordered to go in there and destroy the enemy. That was my job that day. That was the mission I was given . . I felt then and I still do that I acted as I was directed and I carried out the orders that I was given, and I do not feel wrong in doing so, sir."