frequently assert presidential authority in situations of which the President is often unaware. In a memorandum on Congressional powers previously referred to 40 the Department of Justice has stated these propositions:41 "[1] For over 150 years-almost from the time that the American form of government was created by the adoption of the Constitution-our Presidents have established, by precedent, that they and members of their Cabinets have an undoubted privilege and discretion to keep confidential, in the public interest, papers and information which require secrecy. . . . "[2] Courts have uniformly held that the President and the heads of departments have an uncontrolled discretion to withhold the information and papers in the public interest, and they will not interfere with the exercise of that discretion." These sweeping propositions are not sustained by the argument made in this memorandum. The second proposition is not consistent with some of the cases cited above. The first proposition is not supported by the record of early presidential precedents on which it rests. THE HISTORICAL PERSPECTIVE The historical background for this sweeping claim of absolute privilege first appeared in The Federal Bar Journal of April 1949, in an article by Herman Wolkinson, entitled Demands of Congressional Committees for Executive Papers. It is the source document for the statement which the Department of Justice submitted in 1954, accompanying President Eisenhower's letter to the Secretary of Defense of May 17, 1954. It has been drawn upon for the somewhat enlarged memorandum which Attorney General Rogers submitted to the House Committee on Government Operations and to the Senate Subcommittee on Constitutional Rights. The Wolkinson article concluded with the statement: "In the great conflicts which have arisen, in the administrations of Washington, Jackson, Tyler, Cleveland, Theodore Roosevelt, and Herbert Hoover, the Executive has always prevailed." This contention is simply not supportable even on the basis of the historical episodes to which Mr. Wolkinson alludes and which the Department of Justice has incorporated in its memorandum. Space does not permit or time allow the examination of all these historical incidents but it is worth while to examine at least the early episodes which were of such importance as precedents and on which the Wolkinson article and the Justice Department memoranda lay such stress. The memorandum of 1952 is the source of the quotations used in this effort to refresh historical perspective. THE ST. CLAIR EPISODE As the memorandum states, in March 1792, the House of Representatives passed the following resolution: "Resolved, That a committee be appointed to 40 Supra note 31. "Hearings on S. 921 Before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 85th Cong. 2d Sess. 75 (1958). inquire into the causes of the failure of the late expedition under Major General St. Clair, and that the said committee be empowered to call for such persons, papers, and records as may be necessary to assist their inquiries." This resolution related to the disaster encountered by General St. Clair's force of 1400 men on Nov. 3, 1791, when it was surprised by an Indian attack near a Miami settlement, in which 900 men were lost and the command driven back in disorder. Before establishing the Congressional committee of inquiry, the House had debated a resolution calling upon the President to undertake such an inquiry but had decided against this course. Says the Attorney General's memorandum: 66 ... when the committee was bold enough to ask the President for the papers pertaining to the General St. Clair campaign, President Washington called a meeting of his cabinet." A description of this meeting [there were really two meetings] is taken from Jefferson's notes, which repeat this conclusion of the Cabinet: "First, that the House was an inquest, and therefore might institute inquiries. Second, that it might call for papers generally. Third, that the Executive ought to communicate such papers as the public good would permit, and ought to refuse those, the disclosure of which would injure the public; consequently were to exercise a discretion. Fourth, that neither the committee nor the House had a right to call on the head of a department, who and whose papers were under the President alone; but that the committee should instruct their chairman to move the House to address the President." This account of the Cabinet's conclusion was obtained from Thomas Jefferson's writings, but it is not a full account. Thomas Jefferson, in relating the episode, in addition to the matter reported above, said: "Hamilton agreed with us in all these points except as to the power of the House to call on the heads of departments. He observed that as to his department, the act constituting it had made it subject to Congress in some points, but he thought himself not so far subject as to be obliged to produce all the papers they might call for. They might demand secrets of a very mischievous nature. (Here I thought he began to fear they would go on to examining how far their own members and other persons in the government had been dabbling in stocks, banks etc., and that he probably would choose in this case to deny their power; and in short, he endeavored to place himself subject to the House, when the Executive should propose what he did not like, and subject to the Executive when the House should propose anything disagreeable.) . . . Finally agreed, to speak separately to the members of the committee, and bring them by persuasion into the right channel. It was agreed in this case, that there was not a paper which might not be properly produced; that if they should desire it, a clerk should attend with the originals to be verified by themselves." 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 flight 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].43 426 FREEMAN, BIOGRAPHY OF WASHINGTON 339 (1948-57). 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"? 44 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 had 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 clains 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 suffi cient observance of the process, without the personal attendance of any or either of the persons named." |