Page images



(Vol. 12: 1043

exercised it in a case where it was not conferred. This would be a somewhat violent presumption.272

Let it be assumed that Jefferson's gratuitous explanation constitutes a claim of power to withhold information from Congress for the purpose of protecting unoffending citizens against injurious exposure. This is morally admirable but it may well be doubted that it is a necessary attribute of executive power. The test of an implied power is ordinarily whether it is "necessary and proper to carry into effect" an express power.273 The power to withhold information to protect a citizen from defamation is not really "necessary'' to carry out any part of the executive power. Nor can it be “proper," for the President was not made the protector of the public against the representative assembly, except to the extent that he exercises the veto power. Protection from either legislative or executive excesses was confided to the courts, not to the opposing branch.274

Neither the Washington nor the Jefferson incidents, therefore, spells out a clear challenge to the inquiry power nor one that is sustainable in terms of "executive power.”

C. The Jackson Incidents

If the foregoing analysis of the Jefferson vest-pocket memorandum on the St. Clair inquiry, the Washington denial of House jurisdiction in treaty matters, and the Jefferson gratuitous explanation of defamation avoidance is valid, then the first unequivocal assertion of power to withhold information from the Congress cited by the Attorney General is that of Andrew Jackson in 1835. Coming 46 years after the Act of 1789, which itself is a reflection of parliamentary and colonial history, and the steadfast congressional insistence on the plenary power to require information, little weight need be attached to this belated Jacksonian claim on the issue of constitutional construction.

The Andrew Jackson picture is mixed: he alternately furnished and refused to furnish information to the Congress.275 The leading incident selected by Attorney General Rogers concerns Jackson's refusal in 1835 of a Senate request for charges made to the President, which led to the removal of Gideon Fitz from office, for the purpose of acting on his successor and investigating frauds in sales 1965)

272 Id. at 13-14. (Emphasis in original.)

273 United States v. Curtiss Wright Export Corp., 299 U.S. 304, 316. (1936). "[T]he genius and spirit of our institutions are hostile to the crercise of implied powers." Anderson v. Dunn, 6 Wheat. (19 U.S.) 204. 225 (1821).

274 See text accompanying notes 582-84 infra. 275. Instances are enumera'ed in Wiggins 80-81.



of public lands.76 Jackson rejected the request for information respecting "frauds in the sale of public lands” on the ground that it “would be applied in secret session" and thereby deprive a citizen of a "basic right," namely, “that of a public investigation in the presence of his accusers and the witnesses against him."277 It is not an easy matter to reconcile this with Jefferson's concern lest premature exposure do injustice to innocent men. Headstrong though he was, Jackson had acknowledged in 1834 that

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 or decide upon the conduct of the President or
other public officers, and in every case its constitutional right to do so
is cheerfully conceded.278

Fitz was a public officer and Jackson now arrogated to himself the decision whether the inquiry was "indispensable to the proper esercise” of Congress' powers, a patently untenable assertion of power. When measured against historical precedents279 Jackson was clearly wrong, unless we are to assume that the power to investigate executive conduct is cut off by termination of official service. Given the "inherent power of Congress to conduct investigations ... (comprehending) probes into departments of the Federal Government to expose corruption, inefficiency or waste,"\280 it would be insufferable if the President were able to shield documents revealing the corruption or waste by removing the official. Jackson's strictures failed

276 Alty Gen. Memo. 7.
277 Ibid.
278 Quoted by Wiggins 80. (Emphasis added.)

270 Recall the parliamentary inquiry into Navy accounts in 1666, see text accompanying note 55 supra; into the Lord Commissioners of the Admiralty in 1741, 13 CHANDLER 208; the other inquiries into the conduct of Ministers mentioned in the Walpole proceedings, see text accompanying notes 66-72 supra; the Massachusetts inquiry into the failure of military officers to fulfill their duties in 1722, see text accompanying note 68 supra; and a similar inquiry by Pennsylvania in 1770, see text accompanying note 69 supra; not to mention the St. Clair and Alexander Hamilton inquiries, see text accompanying notes 188, 195 supra; and see text accompanying note 201 supra. Compare Jackson's assumption that Congress cannot inquire into the ground for removal of an officer, with Secretary of the Treasury Wolcott's invitation to the House in 1800, after his resignation, to investigate his official conduct. Landis 171, a precedent followed by Vice-President Calhoun in 1826, when he asked the House to investigate his prior administration of the War Department. Id, at 177.

Then, too, Congress has superior facilities to investigate executive derelictions and compel testimony by subpoena as compared to the more limited investigatory power of the President, a fact noted by the House during the Tyler administration. 3 HINDS 183.

280 Watkins v. United States, 354 U.S. 178, 187 (1957). Compare Sinclair v. United States, 279 U.S. 263, 294 (1929), where Sinclair had made leases of naval oil reserves with the Secretaries of the Navy and Interior (Albert Fall) and the Court declared that the Senate had power to investigate what "was being done by executive departments under the Leasing Act. ..."



(Vol. 12: 1043

to sway his successors, Presidents Buchanan and Polk, for both expressly recognized the plenary power of Congress to investigate suspected executive misconduct.281

D. The Tyler Incident

The Attorney General's memorandum also invokes "President Tyler's rcfusal to communicate to the House" reports relative to frauds on the Cherokees. 282 This was far from a blanket refusal;288 Tyler had dissented from a claim that the House might demand from the executive branch "all” papers without regard to executive "discretion.” He did not, however, assert an absolute right to withhold. Instead he enumerated certain categories of information in reliance on the evidentiary privileges recognized in judicial proceedings instituted by private litigants, saying "these principles are as applicable to evidence sought by a legislature as to that required by a court”; 284 and he underscored his meaning by claiming, not an absolute but "a sound discretion in complying with congressional calls.286

Notwithstanding the relatively narrow scope of the discretion

281 For Buchanan, see note 47 supra. In a message to the House in 1846, President Polk said: "If the House of Representatives, as the grand inquest of the nation, should at any time have reason to believe that there has been malversation in office by an improper use or application of public money by a public officer, and should think proper to institute an inquiry into the matter, all the archives and papers of the Executive Department, public or private, would be subject to the inspection and control of a committee of their body and every facility in the power of the Executive be afforded to enable them to prosecute the investigation." 4 RICHARDSON 435. For a telling refutation of the Attorney General's reliance on the Polk incident, Att'y Gen. Memo. 11-12, see Wiggins, Lawyers as Judges of History, 75 Mass. Hist. Soc. Proc. 84, 101 (1963).

282 Att'y Gen. Memo. 9. (Emphasis added.) The House demand was voted "yeas 140, nays 8," and as the House report emphasizes, "a majority of both the great political parties in the House voted for it, after it bad been fully discussed." H.R. REP. No. 271, supra note 226, at 2. (Emphasis added.)

283 Tyler sent to the House "all the information" except: “Colonel Hitchcock's suggestions and projects that dealt with the anticipated propositions of the delegates of the Cherokee Nation; Colonel Hitchcock's views of the personal characters of the delegates were likewise not sent . .. because President Tyler felt their publication would be unfair and unjust to Colonel Hitchcock." Atty Gen. Memo. 9.

In his message, Tyler singled out for "confidential" withholding "incomplete" inquirics so that officials under investigation would not be alerted and defeat them, and that "irrcmcdiablc injury to innocent partics" Nowing from "ibels most foul and atrocious" might be avoided prior to cstablishment of their truth or falschood. 3 HINDS 181. In this he had been preceded by Jefferson. Sec text ac. companying note 270 supra. And he would withhold the names of those charged with confidential inquiries so that they might not be exposed to the resentment of those whom they impugned. Id. at 182.

284 Ibid. (Emphasis added.) 286 Ibid. (Emphasis added.)




claimed by Tyler, the House Committee, reporting back to the House on the President's message, promptly took issue:

The communication of evidence to a jury is promulgation of it to
the country, and the law so regards it, and it is so in fact. Hence the
rule which excludes evidence the disclosure of which would be detri-
mental to the interests of the State. But this rule is applicable only to
the judicial, and not to parliamentary tribunals; and the error of the
President consists in not having observed the distinction .... (For]
parliamentary tribunals ... may conduct thcir investigations in secret,

without divulging any evidence which may be prejudicial to the state.286 And, addressing itself to Tyler's reliance on English evidentiary privilege precedents establishing that “a minister of the Crown or head of a department cannot be compelled to produce any papers or to disclose any transaction relating to the executive functions of the Government, which he declares are confidential, or such as the public interest requires should not be divulged,"287 the Committee recurred to its earlier distinction, saying that:

In the administration of justice between private individuals the courts
will not permit that the public safety should be endangered by the pro-
duction of evidence having such a tendency. But in parliamentary
inquiries, where the object is generally to investigate abuses in the
administration itself, and where such inquiry would be defeated if the
chief of the administration or his subordinates were privileged to with-
hold the information or papers in their possession, no such rule pre-
vails. The cases are entirely different. In the first, the public safety
requires that particular evidence should be suppressed; in the second,
the public safety requires that it should be disclosed. 288

Thus Tyler, summarizing sixty-five years of experience since the founding of the government, in the most elaborate and reasoned justification theretofore profferred, claimed no greater privilege vis-à-vis the Congress than that rather narrowly accorded in private litigation. Even so, the House immediately and soundly insisted that the policy which may justify the executive in withholding information from a litigant has no application when the issue is

286 Id. at 185.

287 H.R. REP. No. 271, 27th Cong., 3d Sess. 10 (1843); Att'y Gen. Memo. 10. As the context shows, Tyler addressed himself to the "evidentiary” privilege in private litigation, not the executive privilege vis-à-vis Congress. The evideni ary privilege is of course far from absolute. See text accompanying note 405 infra.

288 H.R. REP. No. 271, supra note 287, at 10. "The case for abdicating political (i.e., legislative) checks upon the executive is much weaker than that for saying that the interests of the individual litigant must yield, perhaps only for a time, to the determination by the executive as to what is admissible in evidence. ... Here departmental inefficiency, concealed for reasons of public interest (?), may not merely disappoint individual claims but endanger the whole fabric behind which it shelters—the public interest itself." Parry, Legislatures and Secrecy, 67 Harv. L. Rev. 737, 740 (1954).



(Vol. 12: 1043

whether Congress may demand information for governmental purposes.

One who examines Attorney General Rogers' historical wanderings carefully must concur with Wiggins that "historical fact simply is overwhelmingly at war with the law as the Attorney General prefers to view it."280



The most recent protagonists of executive privilege, Messrs. Kramer and Marcuse, discreetly skirt the Attorney General's dubious history and spread out a fresh set of "authorities," sweeping swiftly from Madison to Congressman Clare Hoffman. Apparently they would deduce from a congressional claim to inspect executive documents a contention for "power to control the execution of the laws."200 Their animadversions upon a congressional “power of surveillance," which they equate with "superintendence,"201 would turn back the clock. Administration may indeed be "controlled" by investigations into "corruption, incfficicncy or wastc,” in the sense that such inquiries may result in the removal of an official, the cutback of an appropriation or abolition of a bureau. Yet the power to make such inquiries is no longer open to question. “Surveillance" is simply a vituperative term for legislative inquiry into executive conduct, and it is late in the day to complain of that. English "surveillance” of executive conduct was summarized in the Walpole inquiry; it was mirrored in colonial practice; and from the outset members of Congress claimed the “Right of ... superintendence over officers of the Government” in its role of Grand Inquest.202 It was against this background that Edward Livingston, one of the most learned lawyers who ever sat in the halls of Congress,

280 Wiggins 83. In addition to his series of Presidential pronouncements, Attorney General Rogers cites a row of opinions by various Attorneys General. Att'y Gen. Mcmo. 40-41. Bishop 483 rightly states that: "Attorneys General have, not surprisingly, invariably supported the constitutional right of the executive to withhold information from the Congress.” But compare Cushing's remarks on the Act of 1789. Sec text accompanying notes 104-05 supro. Recognition of this advocate's role impelled Mr. Justice Jackson to thrust aside his own carlier statement as Attorncy General, saying that a "judge cannot accept self-serving press statements of the attorney for one of the interested parties as authority in answering a constitutional question, even if the advocate was himself." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 647 (1952) (concurring opinion). See also his concurring opinion in McGrath v. Kristensen, 340 U.S. 162, 176 (1950), quoted infra note 416.

290 Kramer & Marcuse 905-06.
201 Id. at 907.
203 5 ANNALS OF Cono. 444 (1796).

« PreviousContinue »