Democrats on the Senate Judiciary Committee joined their Republican colleagues yesterday in criticizing a wide range of Justice Department policies.
Sens. Howard M. Metzenbaum (D-Ohio) and John C. Culver (D-Iowa) expressed concern about the department's handling of an investigation of FBI agents, a suit against a former CIA officer, wiretap legislation and internal procedures for dealing with investigations of politicians.
The questions, raised during a hearing on the nomination of Benjamin R. Civiletti as deputy attorney general, suggested that the hearings may become a bipartisan examination of controversial Justice Department decisions.
Civiletti rejected Metzenbaum's contention of a "lack of enthusiasm" in the department's investigation of illegal break-ins and wiretaps by FBI agents against radical fugitives in the early 1970s.
And he said he thought the government would lose its civil suit against former CIA officer Frank Snepp if it couldn't show that "irreparable harm" resulted from the publication of a book Snepp refused to submit for advance review.
Metzenbaum said it was "bad policy" for the government to even file the suit because it doesn't claim classified material was divulged. If the government wins, he said, it would mean the end of "whistle-blowers" who point out abuses.
Republican members of the committee continued to press their examination of the controversial dismissal of Philadelphia prosecutor David W. Marston. But they passed up a chance to question a key witness whose version of events differs sharply from Civiletti's.
Russell T. Baker Jr., a former Civiletti aide, was present at the unusual Saturday session, but Sen. Malcolm Wallop (R-Wyo.), who has been leading the minority questioning, said he was not yet ready to quiz him.
The Republicans have asked permission to call several witnesses, including White House aides Hamilton Jordan and Frank Moore, to explore administration officials' knowledge of the handling of the Marston dismissal. They were obviously surprised by Baker's appearance.
Marston's dismissal last month led to charges of obstruction of justice when it was learned that Rep. Joshua Eilberg (D-Pa.), had called President Carter last fall to urge Marston's replacement while the congressman was a potential target of a criminal investigation.
Marston has said in a sworn affidavit that he told Baker about Eilberg's possible involvement in the Philadelphia investigation. Baker has said he passed the information on to Civiletti, but Civiletti said he had no such recollection.
Sen. Paul Laxalt (R-Nev.) told Civiletti yesterday that there was a "glaring inconsistency" between his recollection and Baker's.
Justice Department officials have contended throughout the Marston controversy that the Philadelphia prosecutor didn't have enough information about Eilberg to warrant passing on to higher officials.
Laxalt said he was troubled that no one in the department felt the Eilberg situation serious enough to even draft a memo.
"What am I to do?" Civiletti replied. "Run around saying, 'Oh my heavens, there might be some investigation of Congressman Eilberg.'? I have neither the time nor disposition to do that. If I get a memo I act on it vigorously and directly."
Without mentioning Marston by name, Civiletti seemed to be saying that the lack of a follow-up memo from Marston showed that the prosecutor really had no evidence of criminal misconduct by Eilberg.
Civiletti declined to answer in open session whether Eilberg was now under investigation.
Culver questioned Civiletti about the adequacy of internal procedures for making top officials aware of investigations of politicians.
As a result of the Marston controversy, the department issued a directive calling for memos from prosecutors when public figures become subjects or targets of investigations.
But Civiletti said he isn't sure this "hot line" procedure is the best way to handle the problem. "It smacks a little bit of a danger list. . . It could be misconstrued."
Metzenbaum's questioning, the sharpest of the day, criticized a variety of department policies.
He said that Justice seemed to be hoping the FBI investigation would just disappear and that Attorney General Griffin B. Bell was giving too much weight to FBI morale in his consideration of prosecutions.
He also said the Carter administration's position on warrantless electronic surveillance of American citizens was contradictory.
The administration supports a bill that would require warrants for all such surveillance, but a recent executive order preserves the president's right to conduct such surveillance without a warrant.
"It's difficult to determine the policy of our government," Metzenbaum said.