"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. THE 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 proceedings 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 cheerfully 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. 45 ABERNETHY, THE BURR CONSPIRACY 238 (1954). 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 correspondence 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 to the nature of the information required or to the interests of the country or of individuals to be affected by such compliance, then do I feel bound, in the discharge of the high duty imposed upon me 'to preserve, protect and defend the Constitution of the United States', to declare in the most respectful manner my dissent from such a proposition." 48 The able message of President Tyler is not an assertion of an "uncontrolled discretion" or unlimited right to withhold. With great care it enumerates some of the particular situations in which matters must be kept confidential: pending law enforcement investigations, incomplete inquiries before their truth or falsity has been ascertained, all papers "merely" because they concern matters about which the House is deliberating. He challenges this as the sole test of availability (and who wouldn't). He thinks "certain communications and papers are privileged" and that "the general authority to compel testimony must give way in certain cases to the paramount rights of individuals and the government." This is a strong and an able argument for executive prerogative "in certain cases" and an effective presentation of the claim of discretionary power. However, the Department of Justice memorandum refers not only to the message but to "President Tyler's refusal to communicate to the House of Representatives the reports relative to the affairs of the Cherokee Indians and to the frauds which were alleged to have been practised upon them." As a matter of fact, while making a statement of principle, President Tyler, nevertheless, did give the House what it asked for. In the very message discussed, he said: "I have thought proper to direct that the report of Lt. Col. Hitchcock concerning the frauds which he was charged to investigate be transmitted to the House of Representatives, and it accordingly accompanies this message." Tyler said he did this to "avoid even the appearance of a desire to screen any, and also to prevent the exaggerated estimate of the importance of the information which is likely to be made from the mere fact of its being withheld." He sent along all the facts about the Cherokees except some correspondence "not supposed to be within the intent of the resolution." He assured the House that "all the papers in the War Office or its bureaus known or supposed to have any relation to the alleged frauds which Lt. Col. Hitchcock was charged to investigate are herewith transmitted." 47 How does this comport with Mr. Wolkinson's statement that "in the great conflicts which have arisen, the administrations of Washington, Jackson, Tyler, Cleveland, Theodore Roosevelt and Herbert Hoover, the Executive has always prevailed?" In most of Mr. Wolkinson's examples, the Congress prevailed, and got precisely what it sought to get. In the case of the Jay Treaty, the President prevailed, but not on the broad ground of executive prerogative but on the solid ground that the House lacked constitutional authority to advise and consent on 404 MESSAGES AND PAPERS OF THE PRESIDENT 222 (1896-99). 47 Id. at 225. treaties. The Jackson episode, of all those prior to the Buchanan administration, seems to be the only instance in which it might be said that "the executive prevailed" in an assertion of absolute, unqualified discretionary right to withhold. Some of the other and later examples ought to be explored under circumstances in which time and space permit. Certainly, the examples prior to the Civil War period, in the Department of Justice's own memorandum, in the light of history, do not support either the conclusion of Mr. Wolkinson who first compiled this information or the broad assertions of the Justice Department. Historical fact simply is overwhelmingly at war with the law as the Attorney Generals prefer to view it. Pertinent and interesting as later cases may be, the early cases here examined arose during the years when the government was taking shape and no subsequent examples could shed more light on the nature of this separation of powers. CONCLUSION The withholding of information by executive agencies of the Federal Government, over the generations, has steadily increased until now it threatens to deprive citizens of the knowledge essential to self-government and indispensable to a determination by the people of the adequacy of policy and the fidelity of individual public servants. The means of reestablishing the right-to-know about executive agencies are readily at hand and involve changes consonant with constitutional principles and sound public policy, including: (1) Adoption by the executive departments and agencies of a philosophy and theory of executive privilege that acknowledges the presumption in favor of disclosure inherent in all self-governing societies and made explicit in our own system by the First Amendment and its assurance of the citizen's right to “acquire" and to disseminate information, without abandoning the premise that there resides in the executive the right and duty to respect other constitutional provisions, specific statutory enactments, international practice and individual rights which, on occasion, require non-disclosure and oblige Congress and the courts alike to acquiesce in executive discretion asserted under these exceptional circumstances. (2) Amendment of 5 U.S.C. § 22 so as to make it clear that Congress has not intended to sanction all withholding by executive departments, without limit, definition or restriction, and so as to restore a situation in which non-disclosure must be supported by express and specific limitations on the right to know under standards that thereby permit judicial review. (Accomplished since this article was prepared.) (3) Amendment of the Administrative Procedures Act so as to assert the right of citizens as well as that of litigants and their clients to information involved. (4) Congressional review of the more than sixty express statutory provisions providing for specific non-disclosure with a view to their curtailment where they seem to impose unnecessary secrecy or their expansion where security seems to require more explicit protection. (5) Congressional reexamination of disclosure statutes that expressly require release of information with the object of expanding and more clearly defining such areas. The limits separating the powers of one branch of our government from another no doubt always will resist precise legal definition. The prerogative by Congress, the Executive and the Courts are not matters of law alone, but are often altered by fluctuating political power. Many of these issues will remain unsettled because the means of settlement available to all branches would involve contests too painful to be borne. There will be in the future, as there have been in the past, assertions of right by one branch, which the other branches neither contest over nor acquiesce in, and it always will be unsafe to judge as settled law contentions that have been met with silence by two out of three of the grand departments. So must the extreme statements of executive prerogative be regarded. And so must the most extreme statements of Congressional power be viewed. The public's access to information, too, will depend in the end not only upon the constitution and the laws, but upon the climate of opinion and the genius of public institutions and the play of political forces. Perhaps it really will be these political forces that, in the end, will be the most effective in determining the extent to which doors of executive departments now shut and fastened against the inquiry of citizens will be opened to them. Mr. SLAYMAN. The last, Mr. Chairman, are two law review articles from the Georgetown Law Journal, one on the power of congressional committees of investigation to obtain information from the executive branch, the argument for the legislative branch, and the other is the power of the Executive to withhold information from congressional investigating committees. Senator O'MAHONEY. Without objection, it may be received for the record. Mr. CHARLES H. SLAYMAN, Jr., GEORGETOWN LAW JOURnal, THE LAW CENTER, GEORGETOWN UNIVERSITY, Washington, D.C., March 12, 1959. Chief Counsel and Staff Director, Senate Subcommittee on Constitutional Rights, U.S. Senate, Washington, D.C. DEAR MR. SLAYMAN: In compliance with your request, the Subcommittee on Constitutional Rights is hereby granted permission by the copyright owners of the Georgetown Law Journal to reproduce for the record of a public hearing on "Executive Privilege” the articles listed below: (1) "The Power of Congressional Committees of Investigation To Obtain Information From the Executive Branch: The Argument for the Legislative Branch" by Philip R. Collins. The Georgetown Law Journal, volume 39, page 563. (2) “The Power of the Executive to Withhold Information From Congressional. Investigating Committees" by Richard P. Milloy. The Georgetown Law Journal, volume 43, page 643. Sincerely yours, (The documents referred to follow :) 40377 0-59—pt. 1- -13 THOMAS M. HADERLEIN, |