above) * * * so that a determination could be made as to whether there were violations of * * * the Federal antitrust laws and as to what action should be taken in performance of the duties of the Attorney General and of the Department of Justice to enforce those laws through criminal or civil proceedings, or both; that the investigation and all proceedings incident thereto, including the Grand Jury proceedings in the District of New Jersey * * * were carried on pursuant to and within those instructions * * *.'
Further details as to the procedure in the Department of Justice in such situations is set forth by the defendants as coming from the Assistant Attorney General in charge of the Antitrust Division in 1955. This was agreed to by the Government as setting forth generally the situation in this very case in fact as follows:
'In the first instance a recommendation is made by the attorney in charge of the particular investigation. If he is in the field, his recommendation is then reviewed by his field office chief. It is then reviewed by the appropriate litigation section chief in Washington. The section chief's decision is reviewed by the first or second assistant to the Assistant Attorney General and by the Assistant Attorney General. Review at the various levels is effected not only by oral conferences, but also by written memoranda of facts detailing the evidence against each proposed defendant.'
Therefrom it appears that the attorney in charge of the particular investigation, here Mr. Walker Smith, does not have the power to determine what action the Government shall take, whether civil or criminal, or both, as the result of his investigation into a possible violation of the antitrust laws. All this attorney in charge can do is first to investigate, and thereafter to recommend to his field office chief what course this prosecution should take. This review of his field office chief is then in turn reviewed by the litigation section chief in Washington, D.C. The latter's review in turn is reviewed by the first or second assistant to the Assistant Attorney General, and thereupon by the Assistant Attorney General. Whether it is the Assistant Attorney General, or the Attorney General himself, who determines whether the prosecution is or is not finally to be criminal, would seem unimportant. Whichever it is, the finding should be sought first from him.
It is the lack of proof in this cause as to what such authoritative determination by the Government was, and when it was made, that made our highest court in Procter & Gamble say that 'there is no finding that the grand jury proceeding was used as a short cut to goals otherwise barred or more difficult to reach.' But that Court has also held that the use of 'criminal procedures to elicit evidence in a civil case * * * would be flouting the policy of the law,' and a subversion of criminal procedure, and that this would call for 'wholesale discovery' by clear inference of all of the Grand Jury proceedings which were taken after the Government had determined not to proceed criminally. Thus it now becomes necessary, in order to do justice, to determine when the Government did finally determine to proceed against the present defendants solely by the present civil complaint, as it obviously did at some time.
It follows that since no subordinate, such as the attorney in charge of the particular investigation, here Walker Smith, could normally do more than make a mere recommendation in that regard to his superiors, the point of inquiry as to when this determination was made should be first directed to the authority who could make such a controlling determination here, presumably the Assistant or Deputy Attorney General, or the Attorney General himself. But this fact, crucial to the rights of the parties, as stated by our highest court, must be ascertained in order to do justice.
In order to ascertain the above 'finding that the Grand Jury proceeding was used as a short cut to goals otherwise barred or more difficult to reach,' or that it was not, the defendants have filed voluminous interrogatories directed to the officials of the Department of Justice, from top to bottom. Since the crucial determination, as to when the Department determined to proceed civilly only, was presumably made only at the highest levels, clearly all such interrogatories at the lower levels are presently unnecessary, harassing and improper. It is only if discovery at these highest levels is fruitless, that discovery at lower levels may become appropriate. In order to lessen the difficulties of the parties and to expedite the result, the Court will confer with counsel for all concerned as to the most appropriate procedure, in order to ascertain the above 'finding,' deemed crucial by the United States Supreme Court in this very case.