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rencwed thc claim in 1796 to "thc superintending power which the House had over all officers of Government."298 Respected scholars consider that "onc of thc fundamental concepts of our form of government is that the legislaturc, as representative of thc pcoplc, will maintain a degrcc of supervision over the administration of governmental affairs."206 .
Where the line between such supervision and actual "control" over administration is to be drawn presents the familiar task of drawing boundary lincs. But if congressional control over cxecution of the laws is improper,20% it does not follow that inquiry after cxccution has taken place into how the laws have been cxccuted is also objectionable. The former may trench on the "exclusive province" of the executive, but the power of inquiry into executive conduct is beyond dispute. Granting the plenary power of administrators to execute the laws, the hardihood they have exhibited on dubious grounds in resisting requests for information would be better displayed in resisting congressional pressure to "control" administration.296
Messrs. Kramer and Marouse rely also on Senator Capehart's statement that orderly government will cease "if Congress can call before it any disgruntled employce of the executive department,"207 buttressing this with Madison's warning that "the power of the President would be reduced to a 'mere vapor' if government officials 'joined in cabal with the senate.' "1208 It taxes the imagination to
203 Id. at 629. See also note 279 supra. Parliament employed investigations to ascertain facts in order "(1) to assist in thc wise formulation of laws, and (2) 'to cnable Parliament to excrcise a measure of surveillance of the activitics of the civil and military officials who carried the laws into cffcct and spent the moneys made availablc by Parliament for governmental purposes." TAYLOR 7. (Emphasis added.)
De Tocqueville, that keen-eyed observer, noticed in 1831 that: "In the exercise of the executive power the President of the United States is constantly subject to a jealous supervision.” DE TOCQUEVILLE 124.
204 GELLIORN & BYSE 166. Holmes "saw it as a basic value in the separation of powers that ultimate surveillance should rest in the legislature." HURST, JUSTICE HOLMES 99.
296 There have been recurrent attempts by Congressmen and Committees to influence the course of administration and, logical deductions from the "separation of powers" aside, it is by no means indisputable that such efforts are per se undesirable. See Newman & Keaton 565: "(S)ometimes the most effective method of expression of legislative will may be delegation, with virtually no standards (the present norm), but with strong legislative influence upon policy creation after the delegation bas been made." DAVIS, ADMINISTRATIVE LAW 55 (1951). (Empbasis in original.)
296 Newman & Keaton 594.
20.7 Kramer & Marcuse 847. They take no notice of Senator O'Mahoney's reply, "the Senator is not talking seriously." 103 Cono. REC. 9150 (1957). Throughout Messrs. Kramer and Marcuse single out partisan excerpts from opposition Senators Capehart, Donnell and Congressman Clare Hoffman.
208 Kramer & Marcuse 912 n.817, 847 n.529.
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the Secrets of the sort ?er thc Preci, are likely
bclieve that “disgruntled employees” are likely to form a "cabal with thc Senate" to fetter thc President, and of course Madison had nothing of the sort in mind. He was discussing a proposal that the Secretary of the Department of Forcign Affairs should be removable by the President and suggested that an officer appointed with Scnate consent may seek to curry "favor" with it, connect himself with the Scnatc, and thereby reduce "the power of the President to a mere vapor; ... The high cxccutive officers, joined in cabal with the Scnate, would lay the foundation of discord....91209 A minor "disgruntled employee" in "cabal with the Senate" would be a Halloween hobgoblin. And major “disgruntled employees” have appeared before the Congress without bringing down the skies. Sundry admirals and generals who favored the award of a multibillion dollar contract to Boeing Company appeared in 1963 before a Joint Congressional Subcommittee in opposition to Secretary of Defense McNamara's award to General Dynamics. 800 Doubtless it would be less trying to a Cabinet member and to the President were an iron curtain to shield differences of opinion within a Department, but apparently President Kennedy concluded that ventilation of such differences was preferable to the suspicion and resistance that would be engendered by concealment. “Orderly government” has not "ceased."
Further, Kramer and Marcuse reject the argument that the power to abolish agencics gives Congress power to "inspect their documents” on the ground, quoting Younger, that the "executive branch as we know it would disappear from our polity, Icaving in its place another unfortunate example of government by legis. lature."301 Mr. Justice Holmes, on the other hand, insisted that Congress' power to "abolish" an office clearly carried lesser powers in its train.802 To argue that Congress may “abolish” an agency but must do so blindly, without access to information withheld by the executive, without opportunity to evaluate whether reorganization or modification may not be preferable to abolition, is to insist that Congress, like Charles Lamb's Chinaman, must burn down the barn
200 1 ANNALS OF CONC. 480 (1789-1791). (Emphasis added.) Experience has disproved this prophecy. Congress has limited the President's power to remove members of independent agencies, Humphrey's Executor v. United States, 295 U.S. 602 (1935), without producing "cabals" or reducing the President's power to "mere vapor." Indeed, it is the 'President who has kept members of the independent agencies, which are the arm of Congress, id. at 628, under the executive thumb. One need only recall the pressure exerted by President Eisenhower's man Friday, Sherman Adams. Kramer & Marcuse 696, 698, 700, 702. These members are well aware that they will come up for reappointment by the President.
300 N.Y. Times (Western ed.), March 29, 1963 p. 1, col. 2.
to roast the pig.808 Assuredly one who has the power to destroy or abolish must cnjoy thc lcsscr power of inspection to avoid destruction. And the argument that inspection spells executive destruction is at war with the fact that for 170 ycars thc cxccutive branch has made disclosurc in the vast bulk of cascs 04 and yet survived, and that administration was not noticcably impaired by President Kennedy's stringent bar of privilege claims.
Kramer and Marcuse would draw comfort from Madison's statement that "the legislature creates the office, defines the powers, limits its duration and annexes a compensation. This done, the Legislative power ceases. . . . 1806 Clearly, however, Madison did not mean by this that thereafter Congress had no power to inquire into how the laws were being executed. On the occasion of an inquiry into charges against Secretary of the Treasury Hamilton, he said that "it was the duty of the Secretary, in complying with the orders of the House, to inform the House how the law had been executed."300 For, as he said on another occasion, "the right of freely examining public characters and measures, and of free communication thereon, is the only effective guardian of every right."307
V. THE ATTORNEY GENERAL'S CITATIONS TO THE CASES FOR
"UNCONTROLLED DISCRETION” TO WITHHOLD
Attorney General Rogers advised the Senate that "courts have uniformly hold that the President and the heads of departments have uncontrolled discretion to withhold information and papers in the public interest. "808 This is wrong, with respect to both private litigation and the Congress. The Attomey Gencral himself notes with respect to the "Nat rcfusal of executives to answer questions” that "the legal problems involved were never presented to the courts. Thus it remains an open question whether the executive officers must submit all the information which Congress may request."800 Not
808 As was said in launching the parliamentary inquiry into Robert Walpole's regime: "Would not a Physician be a Madman, to prescribe to a Patient, without first examining into the State of his Distemper, the Causes from which it arose, and the Remedics that had before bccn applicd?" 13 CHANDLER 85. Cf. Landis 196.
804 All'y Gen. Memo. 2, states that there bas been withholding in "only ... relatively scw instances in our history."
305 Kramer & Marcusc 906.
807 6 WRITINGS OF JAMES MADISON 398 (1906). Madison voted for the St. Clair investigation. McGrain y. Daugherty, 273 U.S. 135, 161 (1927). He vigorously parLicipated in the Hamilton inquiry, 3 ANNALS Or Conc. 934-46 (1793), and pressed the Resolution requesting the Jay Treaty papers. 5 ANNALS or Cono. 759 (1796).
308 Att'y Gen. Memo. 1. (Emphasis added.) 800 Id. at 62. (Emphasis added.) In Kaiser Aluminum & Chem. Corp. v. United
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withstanding, the Attorney General sets out a row of cases for an "uncontrolled discretion" to withhold information from "Congressional Committees."810
A. Appeal of Ilarlranft
A convcnicnt beginning is the citation of Appeal oj llartranj1,911 both because its inappositeness is quickly perceived and because it nevertheless continues to be invoked.312 There a grand jury had subpocnaed the Governor to explain the suppression of riots with military means during a railroad strike. The court declared: “It is his duty from time to time, 'to give to the General Assembly information of the State of the Commonwealth,' but it is not his duty to render such an account to the grand jury....9818 Generalizations about the separation of powers uttered in a case which goes on to state that the duty of furnishing information not owed to the grand jury is owed to the General Assembly are obviously of little aid."14 B. Aaron Burr Case
The trial of Aaron Burr represents bedrock on the issue of executive privilege, not only because Chief Justice Marshall so thoroughly canvassed almost every issue that bedevils us today, but because he knew at first hand the problems of both the legislative and executive branches. He had been a member of the Virginia Assembly, had taken vigorous part in obtaining ratification of the Constitution, and had been a member of Congress. He had defended the Jay Treaty, had been a member of the "XYZ” mission to France, and had served as Secretary of State under John Adams."18
States, 157 F. Supp. 939, 945 n.7 (Ct. CI. 1958), Mr. Justice Recd, sitting by designation, said: "The assertion of such a privilege by the Executive, vis-à-vis Congress, is a judicially undecided issuc." A recent proponent of executive privilege, Younger 769 n.49, states that: “At the time of the Attorncy General's memorandum there were no holdings that the President has an 'uncontrolled discretion to withhold the information'." There have been none since. The Attorney General's claim has been rejected by Bishop 478, and by Schwartz 13. The Air Force General Counsel testified that: "There has never been a case which has been litigated that says the Executive may withhold, from Congress. Moss Hearings 12-13. More recently Kramer & Marcuse 903, stated that, "no court has as yet upheld the power of the Executive Branch to withhold information from Congress." It is time to examine the Attorney General's brave array of cases which are allegedly, to the contrary.
310 Att'y Gen. Mcmo. 32 et seq. • 811 Id. at 40; Appeal of Hartranít, 85 Pa. 433 (1877).
312 Younger 777-78. Younger circumspectiy notes that "no legislative demand for information was involved here" but states that the “ court used language from which the judicial attitude towards executive secrecy may be inferred."
318 Appeal of Hartranft, 85 Pa. 433, 450 (1877). (Emphasis added.)
814 Younger 778, states that "Hartranft suggests that the separation of powers is a necessary foundation for the doctrine of executive secrecy."
816 See 12 DICTIONARY OF AMERICAN BIOGRAPHY 315 (1933). Marshall "had
His was thercíorc an informed judgment, rcslccting practical cxpcricncc in both branches of the government plus immcdiatc comprchension of constitutional design.
· The Burr case thrashed out two issues which are relevant to our discussion: (1) amenability of cxccutive officers to process, and (2) whcthcr the executive is privileged to withhold documents from an accused.
1. The Executive Branch is Amenable to Process
The Attorncy General mistakenly asserts that neither the President nor the department heads are amenable to process.816 But the Attorney General himself states that "Judge [sic] Marshall ... allowed the subpoena (duces tecum) to issue" against President Jefferson and that Marshall claimed for the "court the right to issue a subpoena against the President."817 Marshall stated that "such a subpoena may issue. In the provisions of the constitution, and of the statutes, which give the accused the right to compulsory process of the court, there is no exception whatever."18 He rejected the reservation in the law of evidence for the King—which was based on the ground that it was "incompatible with his dignity to appear under the process of the court"-because the "principle of the English constitution that the king can do no wrong” was inapplicable to our government whereunder "the president ... may be impeached and may be removed from office.” And, Marshall added, "it is not known ever to have been doubted, but that the
beller opportunitics than any student of history or law to-day to discover the intention of the framers of the federal Constitution." BEARD, THE SUPREME COURT AND TIIE CONSTITUTION 113 (1912).
818 The Allorncy Gencral refers to criticism of the Burr decision on the ground that "courts cannot order the President to do anything." Alt'y Gen. Mcmo. 36. And he asks, alluding to the separation of powers, "would the executive be independent of the judiciary if he were subject to the commands of the latter ...?" id. at 37. He adds that Jefferson "was prepared to resist, by force, if necessary, the cxecution of the process of the court." Id. at 37. He likewise asserts that "heads of Departments may not be compelled to attend a trial,” id. at 38, and that: "Heads of Departments are subject ... to the directions of the Presidents of the United States. They are not subjcct to any other directions." Id. at 2. Given a subpocna duces tecum, be asserts: "The President may intervene and direct the Cabinet officer or department head not to appear; the person subpocnaed would then advise the court of the President's order and abstain from appcaring altogether." Ibid.
817 Id. at 34-36. According to Marshall, the "attorncy for the United States avowed his opinion, that a general subpoena might issue to the president, but not a subpocna duces tecum." 1 ROBERTSON 176. This avowal gains importance from the fact that it was made by William Wirt, who was of counsel for the government, id, at 136, later became Attorney General in the Monroe Administration, a post he "beld for twelve consecutive years." 20 DICTIONARY OF AMERICAN BIOGRAPHY 420 (1933).
s18 United States v. Burr, 25 Fed. Cas. 30, 34 (No. 14692d) (C.C. Va. 1807).