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such a subpoena without the previous consent of the head of the department. An act of Congress has long authorized the head of each executive department' to "prescribe regulations, not inconsistent with law, for the government of his Department ... and the custody, use and preservation of the records, papers and property appertaining to it." It is certainly true that the courts have consistently treated this statute as validly authorizing the departinent head to centralize in himself discretion to grant or withhold information requested by a court; but it is equally true that they have sedulously refrained from passing on “the ultimate reach of the authority of the (department head) to refuse to produce at a court's order the government papers in his possession. ..."* Moreover, these decisions plainly furnish no guidance as to the inherent right of the executive to withhold information from Congress, for they are based on an act of Congress; what Congress hath given, Congress can take away. For example: R.S. 161 could scarcely be invoked to justify a refusal to furnish information to the House and Senate Committees on Government Operations, for since 1928 an act of Congress has provided that any department of the executive shall give them "any information requested of it relating to any matter within the jurisdiction of said Committee."10 In practice,

6. A number of such cases arose because, before the Eighteenth Amendment, federal law taxed makers and sellers of spirits whose activities might be quite illegal under state law. On several occasions state courts, in the course of efforts to prosecute moonshiners and proprietors of blind tigers, attempted to compel the testimony of the federal gaugers, or the production of Treasury records as to the operations of these criminal taxpayers. The Treasury, which was naturally reluctant to penalize full disclosure to itself, forbade its excisemen to reveal information garnered in the course of their official duties. The validity of its regulation was generally, but not always, upheld until the problem was laid to rest by the decision of the Supreme Court in Boske v. Comingore, 177 U.S. 459 (1900). E.9., Stegall v. Thurman, 175 Fed. 813 (N.D. Ga. 1910); In re Lamberton, 124 Fed. 446 (W.D. Ark. 1903). Contra, In re Hirsch, 74 Fed. 928 (D. Conn. 1896).

7. The courts seem to make little distinction between the traditional departments and the various agencies created by executive order or statute. Cf. Appeal of SEC, 226 F.2 501 (6th Cir. 1955); Universal Airline, Inc. v. Eastern Airlines, Inc., 188 F.2d 993, 999 (D.C. Cir. 1951).

8. Rev. Stat. § 161 (1875), 5 U.S.C. § 22 (1952).

9. United States er rel. Touhy v. Ragen, 340 U.S. 462, 467 (1951), and, in particular the concurring opinion of Mr. Justice Frankfurter at 470, 472. See also Ex parte Sackett, 74 F.2d 922, 924 (9th Cir. 1935) and cases cited note 6 supra. Yet a dictum of Learned Hand, exemplifying the sporadic fallibility of that illustrious judge, cites Boske a'. Comingore and the other cases referred to in note 6 supra for the proposition that it is "lawful for a department of the government to suppress documents, even when they will help determine controversies between third persons. . . ." See United States v. Andolschek, 142 F.2d 503, 506 (2d Cir. 1944).

10. 45 Stat. 996 (1928), 5 U.S.C. § 105a (1952). The statute actually names the Comınittees on Expenditures in the Executive Department, the predecessors of the present Committees on Government Operations. Despite its apparently unambiguous language, its legislative history can be used to ground a plausible argument that the “information" referred tu was intended to include only noncontroversial types which the executive had previously furnished to livigress voluntarily. See Wolkinsuni, supra note 3, at 322-23.


of course, when the executive is dealing with Congress rather than the courts, it does not cite R.S. 161 or any other act of Congress. In such circumstances, the Attorney General invariably asserts a constitutional right, under the principle of separation of powers, to grant or withhold in the executive's unfettered cliscretion. 11

Inother class of cases deals with the "privilege" of the executive to withhold from the courts certain not very clearly defined categories of information. .\lthough there have been too few of these cases to permit the accumulation of a body of case law clearly drawing the line between privileged and unprivileged matter,"? secrets which can readily be classified as “military" or "state" do not present much difficulty. Thus, in one of the oldest of such decisions, 18 the administrator of the estate of a deceased spy brought suit to recover salary due for services in that capacity under a secret contract between the deceased and President Lincoln. The Supreme Court affirmed the dismissal of the petition :

"Public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential, and respecting which it will not allow the confidence to be violated. On this principle suits cannot be maintained which would require a disclosure of the confidences of the confessional, or those between husband and wife. . . . Much greater reason exists for the application of the principle to cases of contract for secret services with the government, as the existence of a contract of that kind is itself a fact not to be disclosed."14

The latest opinion of the Supreme Court upholding the privilege, United States V. Reynolds, 15 involved matters equally easy to recognize as military secrets official reports dealing with the causes of the crash of an Air Force plane loaded with experimental electronic equipment. But in the few instances that have arisen the courts have been at least reluctant to place within the privilege information which the government desired to keep to itself for reasons other than military or diplomatic. Thus, courts have shown reluctance to treat as privileged the statements of witnesses taken by the FBI in the course of a routine, nonconfidential investigation, or the record of the proceedings of a Naval Board of Inquiry in a similarly commonplace matter."

11. See, e.9., in addition to the Memorandum of Attorney General Brownell, supra note 5, the opinion of Attorney General Jackson at 40 Ops. Att'y Gen. 45 (1941), declining to furnish certain FBI reports to the House Committee on Naval Affairs.

12. A number of these cases are collected and discussed in Note, 41 CORNELL L.Q. 737 (1956).

13. Totten v. United States, 92 U.S. 105 (1875).

14. Id. at 107. But the facts of the Totten case do not seem to afford a very good illustration of the principle, for it is hard to see how the disclosure of the existence of the contract could have harmed the national interest, long after the completion of the contract and the extinction of the Confederacy. Of course, if the contract had concerned a power with which the United States had been trying to maintain friendly, or at least diplomatic, relations, the reasoning of the Court would have been more cogent.

15. 345 U.S. 1 (1953).


The majority in the Reynolds case, while explicitly disclaiming any intent to pass one way or the other on the inherent constitutional power of the executive to withhold information in its sole discretion, nevertheless stated, just as explicitly, that it is the court, not the executive, which must determine whether the circumstances are appropriate for the claim of privilege: "Judicial control over the evidence in a case cannot be abilicated to the caprice of execu. tive officers."'18 The knotty problem of how the judge is to make this oletermination without forcing at least a disclosure to himself was dismissed with no more illuminating answer than a reference to the similar clifficulties raised by claims of privilege under the Fifth Amendnient.

The apparent contradiction between the Court's statement that the judge must determine the nature of the secret and perhaps overrule a claim of privilege, and its disclaimer of intent to pass on the proposition that the head of an executive department has absolute power to withhold from judicial view documents in his custody, can perhaps be resolved. Presumably the Court thought that, even if the documents were found not to be privilegel, there would be no question of actually compelling production of the documents. Instead, the issue to which the doubtful materials referred woulçl be resolved against the government. In the Reynolds case, however, the ground of decision was that since the Tort Claims Act incorporates the Federal Rules of Civil Procedure, and since those rules penalize only refusal to produce unprivileged documents, the imposition of even such a penalty for failure to produce privileged documents would subject the sovereign to liability on terms to which it had not consented. Deciding the issue to which the suppressed information related against the government would not, of course, have been exactly the same thing as jailing the Secretary of the Air Force for contempt, and perhaps the Court refused to equate prejudice to the government in its conduct of litigation with physical

16. O'Neill v. United States, 79 F. Supp. 827 (E.D. Pa. 1948), rocated on other grounds sub nom. Alltmont v. United States, 174 F.2d 931 (3d Cir. 1949). The government made the somewhat malapropos argument that, since the FBI agents happened to be members of the bar, their reports were covered by the attorney-client privilege. The casc presented no question of keeping secret the identity of informers. The privilege of withholding such information has been recognized in cases too numerous to cite. 11.9., Scher v. United States, 305 U.S. 251 (1938); United States v. Sun Oil Co., 10 F.R.D. 448 (E.D. Pa. 1950).

17. See Bank Line v. United States, 76 F. Supp. 801, 804 (S.D.N.Y. 1948); cf. Walling v. Richmond Screw Anchor Co., 4 F.R.D. 265, 269 (E.D.S.Y. 1943).

The British courts, while according privilege to inilitary and diplomatic secrets, have observed by way of dictum that it could not be claimed merely because disclosure "might involve the Government ... in parliamentary discussion or in public criticism ...." Duncan v. Cammell, Laird & Co., (1942) A.C. 624, 642.

18. 345 C.S. at 9-10. The British Court of Appeals took a similar view in Duncan v. Cammell, Laird & Co., (1942] A.C. 624, 642.

compulsion to produce the document. 19 But a distinction—if the Court intended one—between the threat of contempt proceedings and other forms of pressure is of somewhat dubious validity. It is certain that there have been, and possible that there may be, cabinet officers whose incarceration would be much less inimical to the public welfare than mulcting the public fisc of thumping damages for negligence: it is hard to say that the former is compulsion while the latter is not.

The Court did indeed, in the course of its dissertation upon the scope of the privilege and the consequences of its invocation, distinguish criminal prosecution holdings that the government must play a sort of Truth or Consequences -i.e., it must choose between acquittal of the accused and the production of any relevant material in its possession, even though the government might be clearly entitled to withhold that material from judicial inspection.20 But it did so simply on the ground that “such rationale has no application in a civil forum where the Government is not the moving party, but is a defendant only on terms to which it has consented.”21 In other words, the bedrock on which the decision rests is the concept of sovereign immunity. It contains no implication that there is any other distinction between the application of pressure by threatening the loss of a civil suit and the application of pressure by threatening the loss of a criminal action. Assuming that the government is as interested in enforcing the criminal law as it is in preventing unjustified charges on the Treasury, one seems about as effective a method of compelling the production of information as the other, and both seem to differ in degree rather than kind from coercion by the threat of contempt proceedings—although the latter would no doubt have a more abrasive effect on relations between the executive and the judiciary.22



19. See O'Neill v. United States, 79 F. Supp. 827, 830 (E.D. Pa. 1948), vacated on other grounds sub nom. Alltmont v. United States, 174 F.2d 931 (3d Cir. 1949). There seems to be no case which presents the question of whether a court would attempt to compel actual production of information in the possession of the executive. In all those discussed in this Article, the government was a party, so that-assuming that it had in fact no privilege to withhold the information—the ends of justice could adequately be served by assuming against it the issue on which the requested evidence was alleged to bear.

20. United States v. Beekman, 155 F.2d 580 (2d Cir. 1946); United States v. Andolschek, 142 7.2d 503 (2d Cir. 1944); cf. Edwards v. United States, 312 U.S. 473, 480 (1941). The Andolschek case, a prosecution against employees of the Bureau of Internal Revenue for seeking bribes, did not in fact involve a claim of privilege based on the nature of the particular documents requested (which were official reports by the defendants themselves on the allegedly criminous transactions) but simply another instance in which regulations issued by the Secretary of the Treasury under Rev. Stat. § 161 (1875), 5 U.S.C. $ 22 (1952) forbade disclosure without his authority.

21. 345 U.S. at 12.

22. The concurring opinion of Mr. Justice Frankfurter in United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951) “assumes," no doubt correctly, that the Attomey General could be reached by judicial process if that were necessary to compel him to disclose information which he is not privileged to withhold. Id. at 472-73. Cf. Land v. Dollar, 190 F.2d 623 (D.C. Cir. 1951), motion for stay denied, 341 U.S. 912 (1951).

Peering darkly through the glass of these judicial precedents, not always very clear nor wholly consistent with one another, one can deduce the following propositions:

(1) Where the government is the defendant in a civil suit, it may be compelled to choose between losing the suit and producing an unprivileged docuinent.

(21 Where the government prosecutes a criminal action, it may be conipelled to choose between losing the action and producing any relevant document, even one which is privileged. This may be true where the government is the plaintiff in a civil action.23

(3) The courts have had no occasion and no inclination to attempt other methods of compelling the government to produce evidence.

Obviously, none of this is of direct help in determining whether the executive branch has an inherent constitutional right to withhold information from the courts, let alone the Congress. Sur is this paucity of authoritative judicial precedent alleviated by the comparative plethora of ipse dirits on both sides of the question. Attorneys General have, not surprisingly, invariably supported the constitutional right of the executive to withhole information from the Congress.24 Congress, as noted above, has by statute declared its right to require information."\nd a recent study by a committee of Congress came to the equally predictable conclusion that Congress has constitutional authority to require the heads of executive agencies to release information upon terms and conditions prescribed by Congress. The same committee, indeed, assembled a panel of learned professors and eminent counsel, all of whom espoused similar view's--although they did so on grounds of polity and expediency, for, unlike the Attorney's General, they frankly recognized the absence of authoritative judicial precedent."


23. See Bank Line v. United States, 76 F. Supp. 801, 803 (S.D.N.Y. 1948).

24. E.9., the Memorandum of Attorney General Brownell, supra note 5; 40 Ops. Art's Gex. 45 (1941); 25 Ops. ATT'y Gex. 326 (1905).

25. 45 Stat. 996 (1928), 5 U.S.C. § 105a (1952). See note 10 supra On the other hand, section 3(c) of the Administrative Procedure Act, providing that matters of official record shall be made available to proper persons “except information held confidential for good cause found," seems to recognize a right to withhold information. 60 Stat. 238 (1946), 5 U.S.C. § 1002(c) (1952). The trouble is, of course, that the act omits to say who is to find the good cause.

26. See Study by the Staff of the House Committee on Government Operations, The Right of Congress to Obtain Information from the Executive and from Other Agencies of the Federal Government, 26 (Committee Print, May 3, 1956); Memorandum on Procecdinys Incvolziny Contempt of Congress and its Committees, 80th Cong., 2d Sess. 15 (printed for the use of the Committee on the Judiciary, January 6, 1948); Note, 43 GEO. L.J. 634, 647-48 (1955).

27. See Hearings Before the Subcommittee on Availability of Information from Federal Departments and Agencies of the House Committee on Government Operations, 84th Cong., 2d Sess., pt. 3 (1956).

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