(dissenting):
I dissent.
Today, my brothers uphold — indeed, endorse — the practice of having the trial counsel in a general court-martial serve as the legal advisor to the pretrial investigating officer during the preliminary inquiry into the circumstances of a case which, admittedly, he knows he will eventually try. How this will promote a search for the truth and impartial recommendations as to the disposition of the case, I am not able to understand.
When the committing magistrate and the prosecutor occupy the relationship of attorney and client, it is clear to me the Government receives an undue advantage. Advocacy of a desired result is artfully framed as advice and the entire matter is cloaked by our traditional privilege. In short, the situation which the Court here approves is precisely the same as if, in civilian life, the United States Commissioner at a preliminary hearing permitted the United States District Attorney to function in the role of his assistant rather than as an advocate for the United States. The decision is regrettable, for it means the end of the investigation conducted under Uniform Code of Military Justice, Article 32, 10 USC § 832, as the impartial device designed by Congress to discover the evidence against the accused and to screen out baseless charges.
One could not object to the appearance of counsel for the United States at the preliminary hearing conducted by the investigating officer in his proper role as the potential prosecutor. There, he stands revealed as an officer interested in establishing the validity of the charges and in developing the case. His functioning as the Government’s representative vis a vis counsel for the accused will undoubtedly assist our “magistrate” in executing his task. Proceedings are then carried on in the open, and the investigating officer is able to allow due weight to be given to the partisan advocacy of either side. But when the prosecutor’s identity is clothed with appointment as the investigating officer’s own attorney, he is placed in a position in which his recommendations and advice will surely be accorded unfair attention. That such represents a complete departure from our prior holdings in this area is demonstrated by reference to those authorities to which my brothers have not accorded a due amount of consideration.
Code, supra, Article 27,10 USC § 827, provides pertinently:
“(a) For each general and special court-martial the authority convening the court shall detail trial counsel and defense counsel, and such assistants as he considers appropriate. No person who has acted as investigating officer, law officer, or court member in any case may act later as trial counsel, assistant trial counsel, or, unless expressly requested by the accused, as defense counsel or assistant defense counsel *142in the same case.” [Emphasis supplied.]
In discussing the foregoing statutory-disqualification, the Manual for Courts-Martial, United States, 1951, states, in paragraph 64:
“Within the meaning of the fifth clause of 62/ and Articles 25d(2), 26a, and 27a, the term ‘investigating officer,’ as applied to a particular offense, shall be understood to include a person who, under the provisions of 34 and Article 32, has investigated that offense or a closely related offense alleged to have been committed by the accused. The term also includes any other person who, as counsel for, or a member of, a court of inquiry, or as an investigating officer or otherwise, has conducted a personal investigation of a general matter involving the partic-cular offense; however, it does not include a person who, in the performance of his duties as counsel, has conducted an investigation of a particular offense or a closely related offense with a view to prosecuting or defending it before a court-martial. But see 6a and 62/(6).” [Emphasis supplied.]
In United States v Bound, 1 USCMA 224, 2 CMR 130, this Court alluded to the possibility that Congress intended by the provisions of Code, supra, Article 27, and Code, supra, Article 25, 10 USC § 825, to prohibit only the appointment of the actual investigating officer as, respectively, counsel or a member of the court in the same case. We nevertheless unanimously rejected this contention and, considering the Manual paragraph quoted above, expressly adopted its language as indicative of the proper scope of the statute’s disqualification. Thus, we pointed out, at page 227:
. . Analysis of this paragraph [of the Manual] suggests that the following persons shall be deemed to be included within the phrase’s meaning:
(1)One who has investigated the offense in question or a related offense under the provisions of Article 32.
(2) One who has served as a member of or as counsel for a court of inquiry and as such has conducted a personal investigation of a general matter involving the offense in question.
(3) One who as ‘investigating officer’ — acting other than under Ar-ele 32 apparently — has conducted a personal investigation of a general matter involving the offense in question.
(4) One who has ‘otherwise’ conducted such a personal investigation.” [Emphasis supplied.]
See also United States v Lee, 1 USCMA 212, 2 CMR 118.
From the foregoing, it will be seen that we have consistently indicated that counsel for a court of inquiry is disqualified subsequently to participate in a trial by court-martial growing out of its prior investigation. United States v Bound, supra; United States v Lee, supra. While the Manual reference adopted by the Court does not expressly mention counsel for the pretrial investigating officer — I daresay because it was not contemplated that such a representative would be appointed for a judicial officer — it is clear that his function is precisely the same as that of such a court. Indeed, the definition of a court of inquiry encompasses precisely the duties presently assigned the investigating officer under the Code, i.e., “to ascertain whether it be proper to resort to extreme measures against a person charged before a court-martial . . . a court constituted by authority of the articles of war, invested with the power to examine into the nature of any transaction of, or accusation or imputation against, any officer or soldier, when demanded by him.” Black’s Law Dictionary, 4th ed, page 431; Davis, A Treatise on the Military Law of the United States, 1913, page 218. Indeed, if an additional step had been taken by the principal opinion in tracing the legislative background of pretrial investigations, it would have been found that the use of a single officer under Article of War 70, 41 Stat 802, superseded the former resort to a court of inquiry. Revised Statutes § 1342, *143arts. 115, 116; Winthrop’s Military Law and Precedents, 2d ed, 1920 Reprint, page 522, et seq.
It is conceded by my brothers that Lieutenant Garrett, the appointed assistant trial counsel and actual trial counsel in this case, was appointed as counsel to the pretrial investigating officer, served as such, advised that officer with respect to rulings and legal matters, and generally participated actively. Thus, in fact as well as in law, he served precisely the same function as counsel for a court of inquiry, and I can perceive no basis for distinguishing between the two roles for purpose of disqualification. United States v Bound, supra; United States v Lee, supra. As pointed out above, the investigating officer is simply a statutory substitute for the undoubtedly cumbersome multimembered court of inquiry and if, as is stated by my brothers, the Congressional purpose in providing for his examination of the charges was an impartial inquiry into the truth of the allegations, I fail to see how, consistently with that legislative intent, we may properly hold that trial counsel is permitted also to act in the earlier role of his confidential legal advisor.
And that we must so extend the prohibition against the investigating officer acting as trial counsel is demonstrated by the law’s consistent treatment of an attorney and his client as one entity whose interests are so intertwined and whose relationship is so confidential that the latter is generally held bound by the former’s acts. See, generally, 5 Am Jur, Attorneys at Law, §§ 45, 67, et seq.
Turning to the rationale of the principal opinion, I suggest it supports the position for which I argue rather than the conclusion which it ultimately adopts. Its study of the legislative background of Code, supra, Articles 27 and 32, indicates Congress’ intent to establish a method of discovery and to eliminate command interference and baseless charges by providing for an impartial pretrial investigation through prohibiting the investigating officer from thereafter acting as trial counsel or court member in the case. The execution of that purpose vanishes, however, when we sustain the reverse of the same process whereby the intended trial counsel is permitted to occupy a confidential legal relationship with respect to the investigating officer. When he thus mounts the bench, untold opportunities to develop the evidence in a particular manner, to secure a desired recommendation, and to eliminate the last vestige of impartiality are opened. Nor will these shapings of investigative efforts be easily detectable either by accused, his counsel, or appellate agencies, for they will be framed as legal advices and, after today, within the privilege which masks the attorney-client relationship. And he who argues that a lawyer is unable so to influence a lay magistrate is simply ignoring reality.
In like manner, my study of the holdings upon which my brothers rely does not indicate that limitation of the disqualification to the investigating officer alone “is the consistent result” of our prior cases. At the outset, I call attention to our decisions in United States v Bound, supra, and United States v Lee, supra, both of which adopt a broader view of those covered by the ineligibility provision of Code, supra, Article 27, and neither of which are discussed by my brothers. Passing to United States v Schreiber, 5 USCMA 602, 18 CMR 226, one can find no support for the position that Garrett was not disqualified. There, it was argued that trial counsel came within the prohibition of the statute because he, having been informed that he would prosecute the ease, conducted his own personal investigation in order to prepare for trial. As the evidence which he developed was for his own use in performing his duty as trial counsel, he obviously fell outside the bounds of the term “investigating officer.” In United States v DeAngelis, 3 USCMA 298, 12 CMR 54, we dealt with delivery of pure legal advice by an impartial staff judge advocate to the investigating officer rather than, as here, an appointed prosecutor who also performed the duty of attorney for the military committing magistrate. To the same effect is United States v Hayes, 7 USCMA 477, *14422 CMR 267, where the staff judge advocate to the special court-martial convening authority subsequently acted as trial counsel at the general court-martial level. And, in United States v Erb, 12 USCMA 524, 31 CMR 110, the two positions involved were Chief, Military Justice, and trial counsel. As the former assignment is in every respect similar to that of a chief prosecutor, it is difficult to perceive how it may be considered as authority for the position that the legal advisor to the investigating officer is not within the provisions of Code, supra, Article 27 (a).
Moreover, unlike each of the foregoing cases, the record before us does not depict the mere giving to the investigating officer of abstract legal advice. Rather, the verbatim transcript clearly establishes that Lieutenant Garrett actively participated in performing the functions of the investigating officer himself. Thus, he ruled on counsel’s objections, made statements with references to the matters brought out, and, as one of the defense counsel testified, acted in every way as if he were a law officer presiding in an adversary proceeding. Cf. United States v Berry, 1 USCMA 235, 2 CMR 141. I suggest that such participation is a far cry from the relatively innocuous picture painted by my associates.
In sum, then, I am of the view that we should adhere to the precedents which we established in United States v Bound and United States v Lee, both supra. Were we to do so, it is clear that the trial counsel’s participation as attorney to the investigating officer would fall within the statutory disqualification set forth in Code, supra, Article 27. In short, he should be treated precisely the same as counsel for a court of inquiry. When we do not so treat him, we permit the prosecutor to sit on the bench with the pretrial investigating officer and open the door for the ultimate elimination of the impartial pretrial screening of charges and discovery of evidence which the Congress envisioned;
I would reverse the decision of the board of review and order a new pretrial investigation and trial.