Mr. SLAYMAN. Professor Bishop, you may have covered some of the questions in your statement, but I hadn't seen your statement before. I would just like to pinpoint a few things here.

Do you find anything in the Constitution of the United States that specifically authorizes the President to withhold information from the Congress?

Mr. BISHOP. No, sir; I do not.

Mr. SLAYMAN. Or any thing that would specifically authorize the heads of departments to withhold information?

Mr. BISHOP. No, sir. I don't.

You say "specifically"?

Mr. SLAYMAN. Yes.

Mr. BISHOP. I say, no. Of course, you can argue, as often has been argued, that this is implicit in the system of separation of powers, and

so on.

Mr. SLAYMAN. Aside from whatever authority may be delegated to them by the President or given them by Congress itself, do you think the heads of the various executive departments have any authority to withhold information from Congress?

Mr. BISHOP. Well, there is, of course, the question of the old housekeeping statute which was recently amended by the Hennings-Moss bill. That has sometimes been invoked as authority for centralizing in the head of a department authority to withhold information. In my opinion, it never could be properly invoked to withhold information from Congress, although it was.

Leaving that statute to one side, I think that all of the power of the heads of departments, that is, the traditional departments of the Government as distinct from agencies created by Congress, does come from the President, including this power.

Mr. SLAYMAN. And that is referring to the heads of the executive departments, the traditional Cabinet officers?

Mr. BISHOP. Yes.

Mr. SLAYMAN. What about other executive branch agencies and commissions?

Mr. BISHOP. The big six, for example.

Well, in my opinion, what powers they have ought to be found within the four corners of the statutes which create them, but I note that in practice the courts have tended to treat them on pretty much the same footing as the traditional departments. That is all I can say on that.

Mr. SLAYMAN. Well, assuming for the sake of this discussion that the President may delegate the exercise of the power, the "executive privilege," how far do you think he can delegate that exercise, and to whom?

Mr. BISHOP. Well, I would be getting into very deep water indeed were I to try to answer the question how far down the President can delegate.

As a general rule, in practice his delegation does not extend below the Cabinet level, except in certain instances, where, for example, the Chief of Engineers of the Army has certain functions, and so on.

I have had some trouble myself sometimes with the question of how far the Secretary of the Department can delegate his powers down.

In practice again, he seems to be able to delegate pretty far down. Whether that is good practice or not, I don't think I ought to say. Obviously, he has got to delegate some of his powers a good way down the line because no one man could personally supervise the whole operation, for example, of the State Department or the Army Department. Some game tries have been made in recent years, but I don't think it can be done.

Mr. SLAYMAN. You mean you don't think it can be done because you don't think there is the authority for it?

Mr. BISHOP. No, sir. I think it is a practical impossibility for the Secretary of a department not to delegate some of his powers down the line. In practice he must. Now, of course, he can't delegate his responsibility. That he is stuck with always, but the powers he has to delegate.

Mr. SLAYMAN. You have been Associate General Counsel and Acting General Counsel of the Army?

Mr. BISHOP. Yes, sir. Actually, the title was Deputy General Counsel. It comes to about the same thing.

Mr. SLAYMAN. Now, we have discussed whether he has the power and whether the Chief Executive can delegate it and how far. Now, what is your opinion of the form of delegation? How can he delegate the exercise of the power?

Mr. BISHOP. Well, in this particular instance of delegating the exercise of the power to withhold or disclose information, I think it ought to be done by published regulations of some variety-I don't care whether they are called regulations or directives or memorandawhich are available to everybody.

Mr. SLAYMAN. You would favor, if there is a delegation of the exercise of the power, that it be in some recognized and established form?

Mr. BISHOP. Public form; yes, sir.

Mr. SLAYMAN. Public form.

Mr. BISHOP. Right. And I would also favor some provision for review by the head of the department himself of any refusal to disclose information. I think the responsibility is his and it ought to be attached clearly to him.

Mr. SLAYMAN. Well, now, addressing ourselves to the President's letter of May 17, 1954, which was addressed specifically to the Secretary of Defense and by its very terms limited Defense Department employees appearing at the Army-McCarthy hearings, do you think that that letter may properly be cited now by executive departments or agencies or independent regulatory agencies as authority for withholding information from Congress?

(The text of the President's letter of May 17, 1954, is set forth as exhibit 3 at p. 274 of the appendix.)

Mr. BISHOP. Well, I believe it is cited by them. I think it can properly be cited in the sense that it is one more of a long series of executive assertions of discretion to withhold information. It is a precedent. It was, of course, as you have indicated, in its terms limited to the Secretary of Defense and to the disclosure of information in particular categories.

Senator HRUSKA. Would counsel yield?
Mr. SLAYMAN. Certainly, sir.

Senator HRUSKA. It is a precedent, Mr. Bishop, but it is a pretty well established and deep-rooted precedent, isn't it? There are similar precedents which go back a long, long time. It is nothing novel at all.

Mr. BISHOP. Yes, sir. That is correct.

Senator HRUSKA. A little bit ago, you suggested there was nothing explicit in the Constitution, and yet for over 150 years the same kind of precedent has not only been published, but it has been resorted to and been used and made effective, hasn't it?

Mr. BISHOP. As a matter of history, there is no doubt there is, as you say, a chain of precedent going right back to George Washington. Senator HRUSKA. And very often we resort to precedents of that time to establish the character of the constitutional provisions and what they really mean.

Mr. BISHOP. That is an important part of our system of government,

yes.

Senator HRUSKA. It is a very important part. I just didn't want the record to remain in the shape where it might be concluded from the statements or testimony in it that there is nothing in the Constitution to support the position taken by the President, for example, in the May 17 letter and by virtually each and every one of his predecessors in the White House.

Mr. BISHOP. What I meant, sir, was that there is nothing in the wording of the Constitution which I could point to and say, "This settles the question.'

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Senator HRUSKA. And yet, each President who asserted that precedent found sufficient words in the Constitution, didn't he, not in the form of a ruling but certainly on the foundation of the separation of powers and on all the other provisions in the Constitution? Each of those men occupying the White House in the President's chair found ample words in the Constitution to lay a foundation for their actions, did they not?

Mr. BISHOP. They based their actions on the Constitution.

Senator HRUSKA. And the Congress has consistently recognized that even in such instances, for example, as in the formation and the passage of the Atomic Energy Act of 1946?

Mr. BISHOP. Yes, sir.

I think that with a few exceptions, historical exceptions again— well, I can say categorically that Congress has never pushed any assertion of what right it may have to demand information to a real test. That is true.

Senator HRUSKA. And that has been true regardless of the partysometimes one party and sometimes the other party-but that has been true-Senator McMahon, for example; Sam Rayburn, the present Speaker of the House; and we can go right down the line. It has not been a matter of partisanship.

Mr. BISHOP. No, sir, so far as I know, it never has been.

Senator HRUSKA. And the precedent has been consistently recognized by the leaders in Congress throughout these years.

Mr. BISHOP. I think that is a fair statement.

As I say, there are some cases in which some Congressmen have made, wrongly, as I think, rather extreme claims to demand information from the Executive. You spoke of leaders of Congress. In this sense, I think that is true.

Senator ERVIN. I believe you stated initially that this doctrine was implicit in the Constitution but not expressed.

Mr. BISHOP. I said it was not expressed, sir. I also said that the executive branch has always said it to be implicit in the Constitution. That happens to be my personal opinion, too, for what it is worth.

Senator ERVIN. Now, the provision of the statutes dealing with atomic energy authorizing withholding of information could very well be reconciled as an exercise of the constitutional power of Congress as a repository of all the legislative power of the Federal Government, could it not?

Mr. BISHOP. Yes, sir. I think it could be.

Senator ERVIN. In other words, could it be reconciled with that rather than with any implicit power on the part of the executive branch to withhold information?

Mr. BISHOP. In itself, it could be evidence either way.

Mr. SLAYMAN. Mr. Chairman and Senator Hruska, we have General Accounting Office witnesses to follow Mr. Bishop this morning. I think they will address themselves to the specific authority they have as an agency of the legislative branch. So, I would like to return the question raised over the years concerning recognition of this "executive privilege."

Professor Bishop, in historical assertion of the privilege, hasn't the privilege been asserted by the executive? And if there has been a consistency, it has been a consistency of assertion by chief executives?

Mr. BISHOP. The Executive has certainly done it oftener and more consistently, as I indicated. There have been some exceptions to congressional recognition of the privilege-although I think it fair to say that, generally speaking, leaders of Congress have recognized it-but there is no doubt that the loudest and most frequent assertions of the power to withhold have come from the executive branch.

Mr. SLAYMAN. Now, in your knowledge and study of the law, have you ever found that any Federal court has ever passed directly on the question?

Mr. BISHOP. No, sir. I have not.

Mr. SLAYMAN. În a memorandum submitted to this subcommittee by the Attorney General, it was asserted:

Nor are the instances lacking where the aid of a court was sought to obtain information from a President and the heads of departments.

You don't find any history of a court case where the court passed on the question of the power to obtain the information from the President or the heads of departments?

Mr. BISHOP. The power of Congress?

Mr. SLAYMAN. Yes.

Mr. BISHOP. No. I do not. And I know of none of my colleagues on the faculty who know of any such case, either.

Mr. SLAYMAN. So this is an unresolved judicial issue?

Mr. BISHOP. As far as the judiciary itself is concerned I agree with that; yes, sir.

Mr. SLAYMAN. Have you considered the question of the assertion of the right of Congress to obtain information and, therefore, the refusal of the executive to furnish the information with the latter being the exception to the first general rule? Or do you think that is too broad?

Mr. BISHOP. I think it is certainly true that in practice refusals of the executive to furnish information are very exceptional. They have come along, of course, in a great many administrations, but while I couldn't give a statistic, I would be surprised if more than about onetenth of 1 percent of congressional requests for information are in practice turned down by the executive.

Mr. SLAYMAN. And you think there should be exceptions?
Mr. BISHOP. I think there should be, yes.

Mr. SLAYMAN. And you have favored a uniform, if possible, set of rules and regulations?

Mr. BISHOP. As uniform as possible.

Mr. SLAYMAN. As uniform as possible.

Then, let us turn back to that letter of May 17, 1954, again. It was for guidance of Defense Department employees in specific hearings, the Army-McCarthy hearings. Subsequently, the letter has been cited elsewhere as precedent. Don't you think there is possibility of a bad Government practice here citing the letter of one department for a practice in different departments and agencies?

Mr. BISHOP. I can well imagine a situation in which the circumstances which gave rise to that letter would be so different from the problem actually presented that it should not constitute a fair precedent, yes.

Mr. SLAYMAN. I have one more question, Mr. Chairman.

Changing the area-do you think there is a dividing line between what letters or communications a White House adviser or staff employee may withhold from the Congress and those he may not?

Mr. BISHOP. At present, I know of no clear dividing line except in limited areas. I mentioned the security files of individuals. I think that is pretty clear now, and to a certain extent, perhaps, military information, but otherwise it seems to me the line is at present extremely fuzzy.

Mr. SLAYMAN. Do you think all such communications of the immediate White House official family should be protected?

Mr. BISHOP. All such? No, sir. I do not.

Mr. SLAYMAN. I have no further questions.

Mr. BISHOP. When you say "protected," again I think there is power to withhold them, but I don't think the power should invariably be exercised to withhold them; no.

Senator ERVIN. This situation which exists by reason of the assertion of this power is a very good illustration of the unfortunate fact that sometimes the wisdom of those who exercise power is not commensurate with the power; is it not?

Mr. BISHOP. Yes, sir. That is exactly what it is.

Senator ERVIN. In other words, it is virtually impossible to vest the governmental power in any individual official or any agency without at the same time giving that individual official or that agency the power to abuse the power?

Mr. BISHOP. I am afraid that is true. I don't think it is possible to set up an absolute guarantee against abuse of that power or any other power.

Senator ERVIN. Now, the counsel and you alluded a moment ago to some of the matters involved in the so-called McCarthy hearing. Mr. BISHOP. I remember it vividly, sir.