Senator ARMSTRONG. I have one last general question, but if there is anything else you would like to put in the record or raise as a concern, I would be glad to hear it.

Mr. VAIRA. No concerns, except I think that now is the time. This may be the right time to get those three proposals through that the ABA has suggested-this particular fact situation, the time we are in in the country, we might be able to do it. If we get any one through, we are doing OK. If we get the counsel for the grand jury in, we-and I say "we, the United States"-will have gone a long way to where we should be going.

Senator ARMSTRONG. I have got that. And I have noticed the consistency of what you said with that of the other attorneys who have testified, so I am encouraged by that.

I want to ask one kind of general question: If you were me, if you were person who really did not wish to get involved in trying to play cops and robbers or trying to write legislation which, really, in this case we are talking about legislation completely outside my field of day-to-day knowledge, and if you had just sort of a citizen's concern that, "Here we are; we have a fair amount of evidence of wrongdoing," not just in the Kilpatrick case or the Omni case but some others which we haven't talked about yet but which we intend to get to at some point in time, how would you pull all of this together?

Obviously you would favor the passage of the House bill that we have talked about. How would you go about restructuring the OPR? Is it enough to just say we ought to look at an inspector general concept? Is there legislation along that line written, or is that something that somebody has got to write at this stage of the game?

Has anything like that been written? I suppose that is not difficult to write, because you have the model.

Mr. VAIRA. You have the model. There is the National Inspectors General Act, in which, oh, seven or eight major departments of the United States were given that particular office-HHS, Education, Defense, Labor, pretty powerful inspectors general-whose job, in addition to looking at other things, is the internal integrity of their particular agencies. The ones that were not made Presidential appointments were done so by regulation.

If you wanted to do that, the Department of Justice is such a big agency that I believe the inspector general of that very possibly might have to be a Presidential appointee, because the Department of Justice has the keys to the kingdom, they watch the HPN house, and you want the appearance, of impartiality. That person might have to be a Presidential appointee who has the same horsepower as his boss.

Senator ARMSTRONG. Were you tuned in when we were talking about these people who have been convicted of the same offenses that are present in the Kilpatrick case, and I raised the issue of what will we do about them, what will we do about the guy in Grand Junction who has served time or the others who have been convicted and are awaiting an appeal? Is it reasonable to expect that the Department of Justice would go back and review those and perhaps under their own initiative do something about it? Mr. VAIRA. No. And I will tell you why.

so?

Senator ARMSTRONG. Is it reasonable for me to ask them to do

Mr. VAIRA. Well, it is reasonable for you to ask them. But you have to get all of the facts, because I am not quite sure what the charges are.

Senator ARMSTRONG. I am not, either. You see, that is the point; I don't want to know. That is something that they ought to do. It is their job. It is the Attorney General's job to see to the enforcement of justice. I am a policymaker, and my policy is that I want to see justice done in these cases.

Mr. VAIRA. I am not accusing them of being slovenly or of completely ignoring this.

Senator ARMSTRONG. Nor am I. I am just asking what is reasona

ble.

Mr. VAIRA. There is a general rule in the law that five people can plead guilty in a case, and then the court can throw out the charges as to the sixth, and the others will stand, and the court won't go back and look at them again unless there was simply no jurisdiction at all.

Senator ARMSTRONG. That is a general rule of law. Mr. VAIRA. That is a general rule. Now, if there was never an offense, as a matter of justice it should be looked at. But the Justice Department may be taking the position that maybe in Kilpatrick, even though the court threw it out, that that judge was wrong, and that does state an offense in some other jurisdiction. They may justifiably take that.

Now, that doesn't sound fair, but that happens all the time. And so, I think that it would be fair for you to ask the Department of Justice to take one hard look at that and say, "Look, are you serious about this, or are you just playing hardball and don't want to admit that the law isn't what you say it is?"

Senator ARMSTRONG. What do you mean it happens all the time? Mr. VAIRA. It happens quite often in situations where you will have maybe five persons indicted in the same case, and four of them will plead guilty, decide that's it and waive all defects, and the fifth one will take it to trial and have it thrown out for any number of reasons-either be found not guilty, or it will be found that the way it was plead that indictment doesn't state an offense. Those other convictions still stand.

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Senator ARMSTRONG. That is the essence of the Kilpatrick case and the thing to me as a layman is persuasive, even more than the fact that there are these prosecutorial abuses and the fact that some Federal prosecutor acted like a jackass, or whatever it was. The fact that the court found that the actions which Kilpatrick admitted he took simply didn't constitute a crime, that is a very persuasive issue to me. If there are others who have been charged with the same offense, it seems to me that somebody, for Heaven's sakes, ought to go back and look at their cases and try to make amends.

Mr. VAIRA. I agree.

Senator ARMSTRONG. At least get them out of jail.

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said this is not an offense, let's go back and take a look, maybe just as a matter of justice." Or, they can say, "That is his opinion, and we have other places where other judges have said it is an offense." I don't know that much about what occurred here, but I think you should ask that question.

Senator ARMSTRONG. At least pursue it?

Mr. VAIRA. Yes, sir.

Senator ARMSTRONG. If I may, I would like to submit questions for Mr. Vaira from Senator Grassley. And also, if Mr. Grossman is still here, I would like to submit some questions from my colleague Mr. Grassley. He has a number of questions, three or four, that he would like to ask you to comment on, and if we may we would like to furnish you a copy of these and ask you to respond in writing. Mr. VAIRA. Of course. Yes, sir.

Senator ARMSTRONG. Is there anything else? [No response.]

If not, I certainly thank you all for helping us out with this; we are grateful to you. And chances are we may be back in touch to seek your advice further.

Many thanks. We are adjourned.

[Whereupon, at 4:05 p.m., the hearing was recessed, to reconvene at 10 a.m. on Monday, June 23, 1986.]

[Mr. Vaira's written testimony follows:]

STATEMENT

OF

PETER F. VAIRA

VICE CHAIRPERSON, GRAND JURY COMMITTEE
ABA CRIMINAL JUSTICE SECTION

on behalf of the

AMERICAN BAR ASSOCIATION

before the

SUBCOMMITTEE ON OVERSIGHT OF THE INTERNAL REVENUE SERVICE
COMMITTEE ON FINANCE

UNITED STATES SENATE

concerning

GRAND JURY PROCEDURES AND ABUSE

June 20, 1986

Chairman

My name

ican B

ittee.

est of

ser

tt 15 ye

torney

The

A

stic

Mr. Chairman and Members of the Subcommittee:

Introduction

My name is Peter F. Vaira. I am Vice Chairperson of the American Bar Association Criminal Justice Section's Grand Jury Committee. I appear today on behalf of the Association at the request of its President, William W. Falsgraf.

I served as an attorney in the U.S. Department of Justice for 15 years. From 1978 through 1983, I was the United States Attorney for the Eastern District of Pennsylvania. I am now a partner in the Chicago law office of Lord, Bissell and Brook. The American Bar Association strongly supports the grand jury. It is a fundamental institution in our system of justice. The protection of the grand jury is guaranteed by the Fifth Amendment.

In order to preserve and enhance the protective role of the grand jury, the American Bar Association has adopted a series of Grand Jury Principles. A copy of these Principles and their Commentary are appended to this statement. Much of my testimony is based on them.

Scope of Statement

In presenting this statement, the American Bar Association does not suggest that the U.S. Department of Justice engages in wholesale grand jury abuse. These comments are presented as