PENALTIES FOR CRIMES AGAINST CABINET OFFICERS, SUPREME COURT JUSTICES, PRESIDENTIAL STAFF MEMBERS AND THURSDAY, SEPTEMBER 9, 1982 U.S. HOUSE OF REPRESENTATIVES, The Subcommittee met, pursuant to notice, at 9:50 a.m., in room B-352, Rayburn House Office Building, Hon. William J. Hughes (chairman of the subcommittee) presiding. Present: Representatives Hughes, Sawyer, Fish, and Kindness. Also present: Hayden W. Gregory, chief counsel; Virginia Sloan, and Edward O'Connell, assistant counsel; and Deborah K. Owen, associate counsel. Mr. HUGHES. The Subcommittee on Crime of the House Judiciary Committee will come to order. This morning we are taking testimony, to be followed by subcommittee markup, on S. 907, a Senate-passed bill. S. 907 would add certain high-level Federal officials to the protections of existing law by providing criminal penalties for killing, kidnaping, attempting to kill or kidnap, and assaulting these high Federal officials. Section 351 of title 18 of the United States Code currently protects Members of Congress and Members of Congress-elect. S. 907 would amend section 351 to add Cabinet officials and the second-incommand in those departments, the Director and Deputy Director of the CIA, and Supreme Court Justices and nominees to the Court. Section 1751 of title 18 protects the President and Vice President, the President-elect and Vice President-elect, those in the line of succession to the Presidency, and someone legally acting as the President. S. 907 would amend section 1751 to add senior staff members in the President's and Vice President's office to its coverage. The reason behind these amendments is obvious. Those who will be added to the protection of Federal law are high-ranking Federal officials often involved in controversial and highly visible activities. Unfortunately, along with their high positions they incur some risk to their personal safety. Currently, attacks on these officials can generally be prosecuted only by State and local authorities. While the protections of State and local laws may often be adequate, it seems better to avoid the inconsistencies in the scope of the protection and in the punish (1) ment meted out to the attackers, by making such attacks Federal crimes to be prosecuted and punished by Federal authorities. The need for this legislation is especially urgent in light of the tragic attack on President Reagan last year that left his press secretary, James Brady, permanently disabled, and by the very recent attack on Justice Byron White, which fortunately did not cause serious injury to the Justice. While there may be a few technical questions which we hope to clarify about the way this legislation is drafted, I do not believe that there is any controversy whatsoever about the substance of S. 907. I think we can all agree that it is a necessary piece of legislation, one that should be acted on without undue delay. That is why immediately following this hearing the subcommittee will be holding a markup on the bill. We hope in turn to bring it before the full Judiciary Committee and to the House floor before Congress adjourns in October. Our first and only witness today is Lowell Jensen, the Assistant Attorney General in charge of the Criminal Division of the U.S. Department of Justice. Before he assumed that position in April of 1981, Mr. Jensen was the district attorney for the city of Oakland, Calif. I think, Lowell, this is your first time before this particular subcommittee. We are certainly pleased to have you as a witness and extend to you a most cordial welcome. If you will come forward now, we will take your testimony. We have your written statement, which without objection will be made a part of the record. Does the gentleman from Michigan have any opening comments? Mr. SAWYER. No. Mr. HUGHES. You may proceed in any way you see fit. TESTIMONY OF D. LOWELL JENSEN, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE Mr. JENSEN. Chairman Hughes, I do appreciate the opportunity to be here and I appreciate your welcome. And Congressman Sawyer, it is a pleasure to be here this morning, here before the subcommittee, and also to testify in reference to S. 907. As you have stated so clearly, I believe that it is a piece of legislation that addresses a serious gap in the present law and it does not create any controversy, and we should address it with the urgency that you suggest in your remarks. I may say that the legislation was also supported rather vigorously by the recommendations of the Task Force on Violent Crime that the Attorney General reported upon last year. Two recommendations of that Task Force are directly in support of this legislation. As you stated, the legislation would amend section 351 of title 18 and section 1751 of title 18. And may I make some remarks about the significance of those amendments. These serious crimes against a person are not generally prohibited by Federal law when committed against a Cabinet officer or Presidential staff member, although they would be covered if the crimes happened to occur in the special maritime and territorial jurisdiction of the United 3 States or, in the case of a kidnaping, if the victim was transported across a State line. Moreover, while section 1114 of title 18 prohibits the killing of a "judge of the United States," that term is not defined. Although we believe the term is intended to and logically should cover a Supreme Court Justice, it is appropriate to amend section 351 to include a specific reference to that particular subject matter. Notwithstanding the fact, as you have alluded to, that all States do have laws which prohibit and punish murder, kidnaping and assault, there is clearly a strong Federal interest in being able to bring to bear the resources of the Federal Government when these offenses are directed at the high level officials listed in S. 907. Cabinet members and their immediate deputies and senior White House aides are key members of the executive branch. They directly advise the President and play an important role in the formation of national policy. Members of the Supreme Court sit at the zenith of our legal system and are constantly concerned with issues of national importance. Of necessity, all these persons deal with controversial issues. They are frequently highly visible and easily recognized by large numbers of persons. Unfortunately, these factors can make them targets of criminal attacks. It is the significance to the Federal Government of the duties performed by these officials, coupled with their high visibility and vulnerability, that makes it important to assert Federal jurisdiction over violent crimes against them. Leaving the investigation and prosecution of such crimes exclusively to the States with their greatly diverse investigative resources, procedures, and penalties is an inadequate response to what is clearly a Federal problem. In addition, S. 907 would protect the named officials when they travel abroad, as they often do, and where State laws do not apply. There is, as I understand, a specific reference in the suggested amendment as to extraterritoriality. We may discuss that later if we could. S. 907 as passed by the Senate reflects a number of features specifically suggested by the Department of Justice in our report on the bill as originally introduced and on a somewhat similar bill, S. 904, and in the Department's testimony on these bills before the Senate Judiciary Subcommittee on Criminal Law on September 22, 1981. Permit me, Mr. Chairman, to list quickly the key provisions of the bill and how they would interrelate with present Federal statutes. The amendment to 351 of title 18 to make it a Federal crime to kill a Cabinet officer, defined as "a member of the executive branch of the Government who is the head of a department listed in section 101 of title 5," the second ranking official in such Department, the Director or Deputy Director of the CIA, or a Supreme Court Justice or nominee during the pendency of the nomination. This protection of Federal law is presently accorded by section 351 to Members of Congress and Members of Congress-elect. The penalties would be the same as for an attack on a Member or a Member-elect of Congress and would extend to life imprisonment for the murder, kidnaping, attempted murder or kidnaping, or conspiracy to murder or kidnap such a person. The penalty for an as sault on such a person would be a fine of not more than $5,000 or imprisonment for up to 1 year or both, but if personal injury results, the penalty for assault could extend to a $10,000 fine and imprisonment for up to 10 years, or both. Subsection 2(a) of the bill amends section 1751 to extend to a limited number of the most senior officials in the Executive Office of the President and in the Office of the Vice President the same kind of protection presently given by that section to the President and Vice President against murder, kidnaping, and attempts or conspiracies to commit these crimes. We have provided this morning a specific list of the positions that are filled and provided it to counsel to the committee. Mr. HUGHES. Without objection, that will be made a part of the record. [The material referred to follows:] ASSISTANTS TO THE PRESIDENT Counsellor to the President, Edwin Meese, III; Chief of Staff and Assistant to the President, James A. Baker, III; Deputy Chief of Staff and Assistant to the President, Michael K. Deaver; Assistant to the President and Press Secretary, James S. Brady; Assistant to the President for National Security Affairs, William P. Clark; Assistant to the President and Deputy to the Chief of Staff, Richard G. Darman; Assistant to the President for Public Liaison, Elizabeth H. Dole; Assistant to the President for Legislative Affairs, Kenneth M. Duberstein; Counsel to the President, Fred F. Fielding; Assistant to the President for Cabinet Affairs, Craig L. Fuller; Assistant to the President for Communications, David R. Gergen; Assistant to the President for Policy Development, Edwin L. Harper; Assistant to the President and Director of Special Support Services, Edward V. Hickey, Jr.; Deputy Counsellor to the President, James E. Jenkins; Assistant to the President for Political Affairs, Edward J. Rollins; Neither section 351 nor 1751, either presently or as amended by S. 907, requires proof that the crime was committed while the victim was engaged in the performance of his official duties or on account of such duties. Such an element is likely to be present, but may be difficult to prove in a particular case. The Department of Justice believes that no such official duty nexus should be added for crimes against the very limited number of high-level persons protected by this bill, in view of the strong Federal interest in vindicating the offense irrespective of whether it was committed while or on account of the victim's performance of official duties. We note that a Federal assertion of jurisdiction is not mandatory under either of these sections and could be declined in favor of State or local prosecution if the facts so warrant. I would also add that the bill does not impose any additional requirement on the Secret Service or on any other agency to guard or physically protect the persons covered. Thus, no additional expenditure of Federal funds would be involved. Federal funds would only be used, and quite justifiably so, in the unfortunate event of a serious crime against a Cabinet officer, Supreme Court Justice, or White House aide. In such a situation, the FBI would investigate 5 the events and could call on other Federal and State agencies for assistance. In conclusion, Mr. Chairman, the Department of Justice is satisfied that the bill, as passed by the Senate, effectively closes an unfortunate loophole in Federal law. We would submit the statement at this point. [The prepared statement of Mr. Jensen follows:] PREPARED STATEMENT OF D. LOWELL JENSEN, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION Mr. Chairman and members of the Subcommittee. I am pleased to appear before you today to express the strong support of the Department of Justice for S. 907, a bill that would close a serious gap in present law by providing for Federal jurisdiction over murders, kidnapings, and assaults on Cabinet officers, Supreme Court Justices, the highest level of White House Officials such as the Presidential Press Secretary and Counsellor to the President, and the Director of the CIA. The assassination attempt on President Reagan and the wounding of Press Secretary James Brady in March of last year served to highlight the need for this legislation. Section 351 of Title 18 currently prohibits the killing, assault, or kidnaping of a Member of Congress or Member of Congress-elect. Section 1751 of Title 18 prohibits such crimes when directed against the President, the President-elect, the Vice President, the Vice President-elect, or any individual acting as President under the Constitution or laws of the United States. Attempts and conspiracies to kill or kidnap these persons are also covered. But these serious crimes against the person are not generally prohibited by Federal law when committed against a Cabinet officer or Presidential staff member, although they would be covered if the crime happened to occur in the special maritime and territorial jurisdiction of the United States, or, in the case of a kidnaping, if the victim was transported across a State line. Moreover, while section 1114 of Title 18 prohibits the killing of a "judge of the United States," that term is not defined. Compare 28 U.S.C. 451 with Rule 54, F.R. Crim. P. Although we believe the term was intended to and logically should cover a Justice of the Supreme Court, it is appropriate to amend section 351 to include specific reference to Supreme Court Justices so as to clearly provide such coverage on the same basis as a Member of Congress. Notwithstanding the fact that all States have laws prohibiting and punishing murder, kidnaping, and assault, there is clearly a strong Federal interest in being able to bring to bear the resources of the Federal Government when these offenses are directed at the high level officials listed in S. 907. Cabinet members and their immediate deputies and senior White House aides are key members of the Executive Branch. They directly advise the President and play an important role in the formation of national policy. Members of the Supreme Court sit at the zenith of our legal system and are constantly concerned with issues of national importance. Of necessity, all these persons deal with controversial issues. They are frequently highly visible and easily recognized by large numbers of persons. Unfortunately, these factors can make the targets of criminal attacks. It is the significance to the Federal Government of the duties performed by these officials, coupled with their high visibility and vulnerability, that make it important to assert Federal jurisdiction over violent crimes against them. Leaving the investigation and prosecution of such crimes exclusively to the States with their greatly diverse investigative resources, procedures, and penalties is an inadequate response to what is clearly a Federal program. In addition, S. 907 would protect the named officials when they travel abroad, as they often do, and where State laws do not apply. See United States v. Layton, 509 F. Supp. 212 (N.D. Cal. 1981) (holding that it was reasonable to infer that Congress had intended extraterritorial application of 18 U.S.C. 351). S. 907 as passed by the Senate reflects a number of features specifically suggested by the Department of Justice in our report on the bill as originally introduced and on a somewhat similar bill S. 904, and in the Department's testimony on these bills before the Senate Judiciary Subcommittee on Criminal Law on September 22, 1981. Permit me, Mr. Chairman, to list quickly the key provisions of the bill and how they would interrelate with present Federal statutes. Section one amends section 351(a) of title 18 of the United States Code to make it a Federal crime to kill a Cabinet officer, defined as "a member of the Executive Branch of the Government who is the head of a department listed in section 101 of |