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As related in Freeman's biography of Washington:

“The copies of St. Clair's reports, covered by this message were sent precisely as received, and when published, they were complete. Not even the ugliest line on the light of the beaten troops was eliminated. Washington had learned long previously the protective value of candor in dealing with the American people and he knew that one reason for their trust in him was their belief he would tell them the whole truth.” 42

In the light of this more complete account of this episode, can it possibly be argued that it sustains the Justice Department position, or that it supports Wolkinson's statement that the Executive has always prevailed?

The House demanded the papers. The Cabinet agreed that the House might institute inquiries. It thought it might call for papers. It thought the President should exercise discretion, but in this case decided to make all the papers available. It felt the House inquiry should have been directed to the President and not his department heads, but all the papers were nonetheless produced

The House, of course, could not control the expression of the views of the President or the Cabinet, but, in this case, it got what it asked for, without any reservation whatsoever.

If this case is a precedent for anything, it is a precedent to show that the first President was in favor of disclosure, as a principle of government, and as a constitutional matter, except in some possible instances which might later arise, but which in this affair did not exist.

THE JAY TREATY The second historical episode that is cited is that involving the request of the House of Representatives for the instructions and papers furnished our ambassadors who negotiated the Jay treaty.

This no more sustains the claim to sweeping powers of non-disclosure than the first episode. Here, President George Washington refused the papers on the sound and specific constitutional ground that the Senate and not the House was entrusted with authority to advise and consent on the making of treaties. It was because he did not acknoweldge that the House was involved in the treaty-making power that he denied the requested papers. This is made plain in the quotations from the President's message by the Department of Justice.

The issue involved appears with greater clarity as a result of a subsequent situation involving diplomatic papers in which President John Adams did respond to a House resolution under conditions that made the House request constitutional. On Monday, April 2, 1798, the House called up the following resolution:

“Resolved, That the President of the United States be requested to communicate to this House, the instructions to, and despatches from the Envoys Extraordinary of the United States to the French Republic, mentioned in the Message of the 19th instant” (which reported the failure of the negotiations with France). 43

*26 FREEMAN, BIOGRAPHY OF WASHINGTON 339 (1918-57). 538 ANNALS OF Conc. 1370 (1798).

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It was then proposed to add the following amendment: “excepting such parts of said papers as any existing negotiation may render improper to be disclosed."

Then Mr. Nicholas said he "did not think it would be right in the present situation of things—when we are told by the President that the negotiation with the French Republic is at an end, and that there is no chance of an accommodation taking place between the two countries—to agree to any exception of this kind. Called upon to act in this desperate state of things, he thought it would not be right for any part of the papers which had led to it to be withheld from Congress. The President having thought fit to declare that all negotiation is at an end, that he is without hope of an accommodation, it could not be thought proper that the Legislature should be called upon to act upon less information than that upon which the President himself had acted. He thought the Constitution must have intended this when it placed the power of declaring war in their hands; to suppose the contrary, would be to suppose an absurdity.”

The author of the amendment wished to withdraw it rather than have a vote on it (that seemed likely to be unfavorable) and in so doing stated that he thought the President had the constitutional power to withhold such parts of the papers as he felt it improper to communicate.

Mr. Harper said, “the present call for papers stood upon a very different ground from that made when the British Treaty was under consideration; the objections, of course, against that call would not apply in the present case, as the papers now called for were wanted to throw light upon a subject confessedly within the Constitutional powers of the House. He therefore held the call not only to be constitutional but expedient. Nor could he see any ground for the amendment: if the House had a Constitutional right to ask for information, they had a right to ask for the whole information, and the President would judge how far he could with propriety comply with the call. But since the House did not know that the communication of any of these papers would be improper, the whole ought to be called for; and, if the President should think it proper to retain a part, he would doubtless give sufficient reasons to the House for doing so. On a former occasion when it was moved to modify the resolution calling for papers in the way now proposed, the motion was rejected, because it went to alter the principle contended for; and he believed the same reason would lead to a rejection of the present motion.” 44

The amendment was then defeated and the resolution itself adopted, by a vote of 65 to 27.


On April 3 the President sent a message to Congress stating:

"In compliance with the request of the House of Representatives expressed in their resolution of the 2d of this month, I transmit to both Houses the instructions to and despatches from the Envoys Extraordinary of the United States to the French Republic, which were mentioned in my Message of the 10th of March last, omitting only some names, and a few expressions descriptive of the persons." What now of the allegation that "the Executive has always prevailed"?

"Id. at 1369.

Here is a perfect illustration of the limits of executive privilege, of the difference between a request that was unconstitutional because it exceeded the powers of the House, and one that was constitutional because it was within the powers of the House. There is, as well, an illustration of the readiness of the House to accept the sound reasons of the executive for withholding the names that went down in history as participants in the XYZ affair.

It is not to be overlooked that the disclosure of the instructions to our ambassadors in the matter of the Jay treaty would have divulged to a hostile House that the embassy liad achieved few) of the things it was instructed to obtain. And it is not to be forgotten that Adams dealt the House Republicans a sharp political rebuff by the XYZ disclosures.

PRESIDENT JEFFERSON'S ADMINISTRATION The House of Representatives' demand upon Thomas Jefferson for the papers in the Burr case is next cited. It is not easy to discover what this episode proves about executive prerogative. In making its request, the House asked for no papers “such as he may deem the public welfare to require not to be disclosed."

Even though the resolution itself exempted papers the President thought should not be disclosed, Jefferson felt obliged to explain the nature of the papers that he did not convey, that is, matter “chiefly in the form of letters, often containing such a mixture of rumors, conjectures, and suspicions as renders it difficult to sift out the real facts and unadvisable to hazard more than general outlines, strengthened by concurrent information or the particular credibility of the relator. In this state of the evidence, delivered sometimes too, under the restriction of private confidence, neither safety nor justice will permit the exposing names, except that of the principal actor, whose guilt is placed beyond question."

The House invited the President to withhold everything that he thought the public welfare required not to be disclosed. He complied with its request, and exceeded it because he was not content to exercise an outright discretion without full explanation of what he withheld and why he withheld it.

What does this prove? Is this another of the situations in which the executive has unvaryingly prevailed? When the President docs not disclose papers he was not asked to divulge, does this shed much light on his right to the sort of privilege the Justice Department memorandum claiins for the office?

It should be noted at this point, that the Burr trial is often cited as an example of executive refusal to comply with a subpoena duces tecum. In his remarks during the Burr trial, Chief Justice John Marshall had indicated that he would require the attendance of the President and asserted the power of the Court to compel his attendance. But when the writ was drawn up, it contained this statement:

“The transmission to the Clerk of this Court of the original letter of General Wilkinson, and of copies duly authenticated of the other papers and documents described in the annexed process, will be admitted as sufficient observance of the process, without the personal attendance of any or either of the persons named.”

"Thus Marshall did not issue the challenge to the President which he had indicated in court that he would issue, and consequently historians have been misled into believing that Jefferson defied the order of the Chief Justice." 45

The Burr trial did produce, in the oral remarks of the Chief Justice, a sweeping assertion of judicial power and in the statements of Thomas Jefferson, equally sweeping allegations of executive immunity to judicial process, but it was a debate, not a legal collision.

THF. JACKSON EPISODE The Attorney General's memorandum next cites a case in the Jackson administration. The example cited-that of an investigation of a Jackson appointee accused of land frauds-undoubtedly is to the point but it probably is not one that any modern President, in the same circumstances. would follow.

There is a curious twist in this episode. One of Jackson's reasons for refusing the information was that the Senate was investigating the matter in secret sessions under circumstances that would deprive the accused of one of his basic rights-"that of public investigation in the presence of his accusers and of the witnesses against him.” Executive secrecy was thus invoked in response to Senate secrecy.

President Jackson's disputes over yielding information to Congress were frequent.

In the light of his refusal to yield land fraud papers (noted in the Department of Justice summary), it is remarkable that in his celebrated “protest” of a Senate censure resolution in 1834, he said:

“Cases may occur in the course of its legislative or executive proceed. ings in which it may be indispensable to the proper exercise of its powers that it should inquire and decide upon the conduct of the President or other public officers, and in every case its constitutional right to do so is cheer. fully conceded."

Jackson refused to comply with Senate and House requests on many occasions.

On December 12, 1833, he refused a Senate request for copies of a statement he was alleged to have made to the heads of his executive departments.

On January 6, 1835, he rejected a House request for communications over the northeastern boundary dispute, settlement of which was then “in progress.”

Against these examples of President Jackson's flat refusal to convey requested papers, there also must be set his repeated, if sometimes reluctant, acquiescence to the demands of Congress. These affirmative responses were very numerous.

On January 7, 1834, he sent the House a copy of a contract for the construction of a bridge across the Potomac, together with all the information the Secretary of the Treasury “is now able to communicate” on the subject.

On February 12, 1834, complying with a House resolution, he transmitted to the House a list of presents received from foreign governments by officers of the United States, on deposit in the State Department.


On March 8, 1834, responding to a House resolution, he sent up instructions and other papers in connection with trade with Cuba and Porto Rico.

On March 20, 1834, in response to a Senate resolution, he sent up copy of instructions given the U. S. Minister to Great Britain and of corr

orrespondence between the Minister and the British Government on the condemnation of the ship Olive Branch.

On June 13, 1834, Jackson angrily replied to a Senate resolution asking for the first "official communication which was made to Andrew Stevenson of the intention of the President to nominate him as minister plenipotentiary to England and Ireland.” He said compliance might be deemed an admission of Senate right to confidential correspondence of this description and that he did not acknowledge such a right. But, he added, “to avoid misrepresentation I herewith transmit a copy of the paper in question, which was the only communication made to Mr. Stevenson on the subject.”

On January 13, 1835, Jackson sent to the House "copies of every circular or letter of instruction emanating from the Treasury or War Department since the 30th Day of June last, and addressed to either the receiving or disbursing officers stationed in States wherein land offices are established.” This was in response to a House resolution.

On the same day, Jackson angrily reproached the Senate for a resolution demanding a copy of any report made to him by any director of the Bank of the United States with reference to certain notes and bills of exchange. He thought the request improper. However, he said, "for the purpose of preventing misapprehension and injustice, I think it proper to communicate herewith a copy of the only report made to me by any director or directors.

There were further affirmative responses to Congressional requests for various information on these 1836 dates: February 9, 10, 15, 18 and 29, April 8, May 14, 27 and 27, and July 1.

It is thus not accurate to say of even the Jackson administration that "the President always prevailed."

THE TYLER Case President Tyler's message to Congress on the Cherokee Indian matter is cited next in the Department of Justice memorandum. And the message should have a place in any collection of comment on executive prerogative.

The House of Representatives had called upon the President for reports made to the Department of War by Lt. Col. Hitchcock in the investigation of affairs of the Cherokee Indians, together with all information about frauds he was to investigate, and also all the facts in possession of the executive.

The House was not content with the partial information given it and at its next session renewed its request in more sweeping terms. The most pertinent paragraph of Tyler's eloquent argument states:

"If by the assertion of this claim of right to call upon the Executive for all the information in its possession relating to any subject of the deliberation of the House, and within the sphere of its legitimate powers, it is intended to assert also that the Executive is bound to comply with such call without the authority to exercise any discretion on its part in reference

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