New-York tribune., 1919-12-27
Governor Asks
Grand Jury to
Give Him Facts
Ready 10 Exonerate or Re.
move Prosecutor After
Full Inquiry Is Made
Into Present Difficulty
Special Corresnon1err.

Sp~ctUt correspondence
ALBANY, Dec. Ex-Governor Smith
wrote to-day to the members of the
extraordinary grand jury in New York
Slty refusing to appoint another in
dependent counsel for them and sup-
gesting # the body had definite reasons
Tor not submitting to the guidance of
District Attorney Swami. these facts
be laid before the Governor a. once
II these facts warrant it, the Governor
promised to remove the District Attor.
ney from Office
Mr.. Smith reviewed his appointment.
of George Gordon Battle IS counsel
and the dissatisfaction of the jury
members with his choice. He also
spoke Of his ensuing appointment Of
Joseph NJ. Proskauer and the alleged
refusal Of Mr.. Swami to cooperate with
him, which brought about Mr.. Pros
kauer's resignation.
Governors Power Limited
The Governor likewise pointed out
he had no authority to appoint further
counsel. save by the designation of the
Attorney General and under certain
said, that in this case these conditions
have not been fulfilled.
"The more | have studied the con-
troyersy, which has arisen between YOU
and the District Attorney" he wrote,
the more | am persuaded that the
real issue first to be determined is
whether or not the District Attorney
is faithfully performing the duties Of
his Office. If you can lay before ME
evidence to the contrary. and such evil
dence is sustained to an extent war
rantlng such action, shall remove the
District Attorney"
Mr.. Smith adds II on the other hand
no such evidence is Forthcoming he
will Immediately exonorate Mr.. Swami
and interfere no further in the squab-
bic between him and the jury. His
letter follows:
Gentlemen You have laid before me
requests to furnish you with legal
counsel Independent Of the District
Attorney of New York County. In com
pllance with your first request for the
assignment to you of Mr.. George Cor
don Battle as counsel, the District At
torney, st my suggestion. offered 10 ap-
point him Special Assistant District
Attorney Tor the purpose of acting as
your adviser, but from statements sub
sequently made to me understood that
this course did not meet with your
approval.
More Obstacles Revealed
81 thereupon suggested to the Dis
trlct Attorney the appointment Of Jo-
seph NJ. Proskauer as Special Assistant
Dlstrlct Attorney, and | understand
that his appointment was personally
satisfactory to you, but that the Dis
trlct Attorney has refused to surround
him with conditions which in your
judgment were necessary for the ac-
compllshment of your purpose, and that
he has therefore declined the appoint
ment.
81 have no legal power as Governor
TO appoint counsel for you. / have
therefore given the most earnest con-
slderation to the situation thus created.
and have reached the conclusion that
the proper course for me to follow is
the one clearly indicated as correct
by the statutes of this state. These
statutes provide that the District At
torney shall be the adviser of the grand
jury. They give the Governor power
to supersede him by the designation of
the Attorney General under certain spe-
clhc conditions, which in my judgment
have not been met. l believe, there
fore. that it is neither my right nor
'Ay u0ty W SuptIScue tut OlStrlCJ AT
torney generally as the adviser Of the
grand jury by the designation of the
Attorney General
viii Act According to Law
Nevertheless the representations TO
ME as Governor by so important body
as the grand jury of the extraordinary
term of the Supreme Court that there
exist conditions in the District Attor-
ney's Office which make it improper or
inadvisable that he discharge his legal
duty as the grand jury's adviser should
not be overlooked by me. but should be
treated by me in accordance with the
law. The law provides that when
District Attorney has been fathless
to his trust or guilty of improper con-
duct he may be removed by the Gov
ernor on charges.
If you believe from information
in your possession that the District
Attorney of New York County has
been guilty Of misconduct SO serious
as to justify You in excluding him from
the performance Of his legal duty as
Continual 0n NINA thrsa