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chic magistralc of a state inay bc served with a subspocna ad testisi. candum."aw Thus, fully alive to the gravity of the issuc, Marshall was at pains to put bcyond doubt that a subpoena could reach the l'rcsident. And he concluded that "a subpocna duccs tccum, then, may issuc lo any person to whom an ordinary subpocna may issuc. . . ."120 So much is conccdcd.

But the Allornicy Gencral labcls Marshall's decision "unsound, for the reason" that the President “is in a position lo completely disregard the court's subpoena or order. Since such disregard brings contcmpt upon a court [?], it would appcar wisc for the court not to issue a sutilc order or command."a21 What an extraordinary statement to come from the chicf law cnforcement officer under "a government of laws and not of men”l Congress itself has obeyed the courts.322 Long since the Supreme Court said that "no officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest are creatures of the law, and are bound to obey it."828 This has been the premise on which courts have repeatedly issued their mandates to administrative agencies, 324 often in the teeth of prior administrative determinations that the adversary was not entitled to relief. For, as Chief Justice Marshall said in Marbury v. Madison,

it is, emphatically, the province and duty of the judicial department, to say what the law is. (And, he asked,] to what purpose arc powers limited, and to what purpose is that limitation committed to writing,

318 Ibid. A governor of a State remains amenable to federal process, Sterling v. Constantin, 287 U.S. 378, 393 (1932), and viewed practically it is hard to conceive why the hcad of a department should enjoy greater immunity.

320 United States v. Burr, 25 Fed. Cas. 30, 34 (No. 14692d) (C.C. Va. 1807).

321 Att'y Gen. Mcmo. 36. In Glidden Co. v. Zdanok, 370 U.S. 530, 571 (1962), the Court advcrted to the cases in which it had "asserted jurisdiction ... despite persistent and never-surmounted challenges to its power to cnforce a decree. ... (T)his Court may rely on the good faith of state governments or other public bodics to respond to its judgments."

822 In 1876 the House cited one Kilbourn for contempt and committed him to the district jail. He then sued out a writ of habcas corpus and the district court ordered that he should be brought to court: "Some of the Representatives urged that the writ should be disregarded, but cooler counsels prevailed, and the House honored the writ by directing the Sergeant-at-Arms to produce 'the body of said Kilbourn before said court'"| TAYLOR 46-47. The Senate responded to a similar order in Jurney v. MacCracken, 294 U.S. 125, 143 (1935).

823 United States v. Lee, 106 U.S. 196, 220 (1882).

824 "[C]ourts customarily issue mandatory or injunctive orders against administrative officers, high or low, including cabinet officers. The only way to enforce the orders is by contcmpt proceedings. Courts can hardly refrain from control of administrative action because they do not want to send high officers to jail for contcmpt, Even when the President is the chici actor, the Supreme Court docs not hesitate to enjoin the Secretary of Commercc. Youngstown Shect & Tube Co. v. Sawyer, 343 U.S. 579 (1952)." i Davis, ADMINISTRATIVE LAW TREATISE 591 n.45 (1958).




if thcsc limits may, at any time, be passed by those intended to be restraincd7820

Marshall entertained no doubts about the power of the courts to compel an officer to obey the law:

If one of the hcads of departments commits any illegal act, under color of his office, by which an individual sustains an injury, it cannot be pretended that his office alone exempts him from being sued in the ordinary mode of procecding, and being compelled to obey the

judgment of the law.820 Here is foreshadowed the doctrine, commonly associated with Ex parte Young827 and United States v. Lee, 328 that an officer who ex

826 i Cranch (5 U.S.) 137, 177, 176 (1803). Although Admiral Louis Strauss stubbornly refused to testify as to his conversations with Sherman Adams, chief Presidential aide, and other members of the White House staff respecting the DixonYates contract, he agreed that "he would submit to rulings of the Supreme Court." Kramer & Marcuse 715.

Only onc example of Presidential resistance to judicial fiat comes to mind, Lincoln's continued suspension of habeas corpus in the tecth of judicial condemnation. Initially he sought to deal with sccessionists who threatened to withdraw Maryland from the Union. 2 HOCKETT 280. Chief Justice Taney granted a writ for one alleged secessionist and when the military resisted hc issued an attachment for contempt, which was "resisted by a force too strong for me to overcome." Ex parle Merryman, 17 Fed. Cas. 144, 153 (No. 9487) (C.C. Md. 1861). His course was followed by couragcous lower court judges in the midst of the war. Ex parle Bencdict, 3 Fed. Cas. 159 (No. 1292) (N.D.N.Y. 1862); United States ex rel. Murphy v. Porter, 27 Fed. Cas. 599 (No. 16074a) (C.C.D.C. 1861).

Lincoln disrcgarded Tancy's opinion, saying that: “Blackstone did not have to consider a situation in which Parliament was not in a position to act .... (H)e felt that he was justified (in suspending the writ) bccause disloyal men might destroy the country if they were not imprisoncd in time.” Goodhart, Lincoln and The Low, 50 A.B.A.J. 433, 440 (1964). But compare Ex parle Milligan, 4 Wall (71 U.S.) 2 (1866). His view in a normal situation may be gathered from his Spring. ficld address on the Dred Scotl decision on Junc 26, 1857: "We think its (the Supreme Court's) decisions on constitutional questions, when fully settled, should control .... (W)e shall do what we can to have it overrule itself. We offer no resistance to it." Goodhart, supra, at 439. This sentiment he echoed in his First Inaugural Address. LINCOIN, COLLECTED WORK 268 (1953).

During World War I, "profiting by Lincoln's experience President Wilson was careful to obtain Congressional support for all of his acts involving civil rights." 2 HOCKETT 293. And during the "Steel Scizure" crisis in the midst of the Korcan War, President Truman "publicly promised to comply with any decision the Supreme Court might make (as well as to carry out any statutory mandate that might be forthcoming). Mr. Truman kept his promise." SCAUBERT, TAE PRESIDENCY AND TBE COURTS 313 n.31 (1957).

826 Marbury v. Madison, i Cranch (5 U.S.) 137, 170 (1803). (Emphasis added.) Marbury v. Madison was decided as political lightning crackled about the Court. But Marshall justiy pointed out that in 1794, the Secretary of War, acting by virtue of an Act of 1793, appeared in response to a motion for mandamus made by Attorney Gencral Randolph, and that both the Secretary and "the highest law officer of the United States" thought the mode of relief appropriate. Id. at 171-72. The matter is recounted in 11 ANNALS Or Cono. 923-25 (1802). Compare the remarks of Congressman Bayard, id. at 615.

827 209 U.S. 123, 160 (1908).
228 106 U.S. 196 (1882).



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cccds his authority is stripped of his official capacity and may be haled as a wrongdoer before a court in his individual capacity, even though the government is "stopped in its tracks," as happened “when Mr. Sawyer (who just happened to be Secretary of Com. mercc) was restrained from cxcouting the President's decision to scizc strikc-threatened steel mills in order to assure continued production during the Korean War."820 And when the same Mr. Sawyer, now joined by the Solicitor General in another case, was recalcitrant, arguing that "courts cannot 'cocrcc' executive officials," both speedily learned better. Judge Prettyman, writing for the court of appeals which held them in contempt, affirmed that “government officials are bound to obey the judgment of a court just as are private citizens...."asThe lesson of the Stcel Seizure Case is that if executive action is unauthorized it will be halted by the courts even though undertaken at the behest of the President to meet an unmistakable crisis. Few indeed will be the occasions for withholding information from Congress which will so imperiously call for executive action. To be sure, the threshhold questions are

820 Girir.JOHN & IYAK 352,

830 Land v. Dollar, 190 F.2d 623, 633, 638 (D.C. Cir.), molion for slay denied, 341 U.S. 912 (1951). As Bishop 482 notes: "Thc concurring opinion of Mr. Justicc Frankfurter in United States cx rel. Touhy v. Ragon, 340 U.S. 462, 472473 (1951), 'assumcs,' no doubt correctly, that the Attorncy Gencral could be rcached by judicial process is that were necessary to compcl him to disclose information which he is not privileged to withhold." Chick Justice Marshall, in Marbury v. Madison, 1 Cranch (S U.S.) 137, 164 (1803), asked: "Is it to be contended that where the law in prccisc terms, directs the performance of an act, in which an individual is interested, the law is incapable of sccuring obcdicncc to its mandalc ...? Is it to be contended that the heads of departments are not amenable to the laws of their country"? Scc also tcxt accompanying notes 323-330 and notc 313 supra.

Carrow, Governmental Nondisclosure in Judicial Proceedings, 107 U. PA. L. Rev. 166, 171 n.19 (1958), states that "no court ... has ever compelled the chick exccutive to furnish information in a judicial proceeding. There appear to be but two decisions on the subject, one by the highest court of New Jerscy and the other by that of Pennsylvania, both of which beld that the separation of powers doctrinc barred an order to compcl a governor to disclose information in his possesssion. Thompson v. German Valley R.R., 22 N.J. Eq. 111 (Ch. 1871); Appeal of Hartranft, 85 Pa. 433 (1877)." Hartrandt turned on the fact that the Governor was under no duty to furnish information to a grand jury, that his duty ran to the legislature. Sec text accompanying note 313 supra.

Thompson v. German Valley was not decided in the "highest court of New Jerscy" but by a chancellor in equity, i.C., a trial court. There the Governor, in response to a subpocna duccs tecum, produced a copy of a private statute and "placed this paper where it can be examined and produced in evidence." 27 N.J. Eq. at 113-14. The court mistakenly read the Burr case as allowing the executive "to withhold any paper or document in his possession. ..." Id. at 113. Compare text accompanying notes 339-40 infra.

Finally, the New Jersey court said: “It is possible that there may be cases where courts, from the cor.duct of an Executive, migbt deem it proper to proceed against him for contempt. But this is not one of them. ..." Id, at 115.




whether (1) Congress is authorized to demand information from the executive branch, and (2) whether the courts are authorized to entertain an adversary proceeding on that issue. But once that is established, the power to compel is no less available here than elsewhere in the administrative process.

2. The Burr Case Rejected a Discretionary Power to Withhold

In the Burr trial, says the Attorney General, “Judge Marshall ruled that the President was free to keep from view such portions of the letter [from General Wilkinson to President Jefferson) which the President deemed confidential in the public interest. '331 This statement is at a considerable remove from fact. At the outset it is necessary to separate what Jesierson said from what he did. While he asserted his power to withhold information froin the court,332 he also stated his readiness to comply and in fact he jully complicd with the subpoena.333 The earlier argument had almost exclusively revolved about a letter from General Wilkinson and it had been argued on Jefferson's behalf that it was

improper to call upon the president to produce the letter of Gen. Wilkinson, because it was a private letter, and probably contained confidential communications, which the president ought not and could not be compelled to disclose. It might contain state secrets, which

could not be divulged without endangering the national safety.334 Jefferson left it to government counsel, George Hay, “to withhold communication of any parts of the letter which are not dircctly 1108

331 Itt'y Gen. Memo. 35.

332 See 9 WRITINGS OF JEFFERSON 55-52 n.1 (Ford ed. 1899), for his correspondence concerning the subpoena.

333 Jefferson, on June 12, 1807, wrote George Hay, the United States District Attorney, that he had delivered the papers to the Attorney General, and instructed the War and Navy Departments to review their files with a view to compliance. 1 ROBERTSOX 210-11. On June 17, 1807, Jefferson wrote Hay that: “[T]he receipt of these papers (by Hay) has, I presume, so far anticipated, and others this day forwarded will have substantially fulfilled the object of a subpoena from the District Court of Richmond. ..." Id. at 265. (Emphasis added.)

When Jefferson learned that the Attorney General did not have the Wilkinson letter subpoenaed by Burr, he wrote Hay on June 23, 1807: "No researches shall bc spared to recover this letter, & ii recovered, it shall immediately be sent on to you." 9 WRITINGS OF JEFFERSON 61 (Ford ed. 1899). Hay advised the court that: "When we receive General Wilkinson's letter, the return will be complete.” 1 ROBERTSON 267. Jefferson also stated that if Burr should “suppose there are any facts within the knowledge of the heads of the departments or of myself ..., we shall be ready to give him the benefit of it by deposition. ..." United States v. Burr, 25 Fed. Cas. 55, 69 (No. 14693) (C.C. Va. 1807). Votwithstanding Jefferson's attempts to comply with the subpoena, Attorney General Kogers states that Jefferson "paid no attention to the subpoena"! Att'y Gen. Memo. 35.

334 United States v. Burr, 25 Fed. Cas. 30, 31 (No. 14692d) (C.C. Va. 1807). (Emphasis added.)


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material for the purposes of justice. "aat Hay emphasized that he was willing to disclose the entire letter to the court, and to Icave it to the court to suppress so much of the Icttcr as was not material to the case.850 This was re-emphasized in his return to the subpoena duces tecum wherein he returned a copy of the lctter

cxccpting such parts thcrcof as arc, in my opinion, not matcrial for the purposes of justice, for thc dcfcnsc of the accused, or pertinent to the issuc now about to be joined. ... The accuracy of this opinion I am willing to refer to the judgment of the court, by submitting the original letter to its inspection.387

Far from asserting a claim of absolute privilege, therefore, the government was perfectly willing to leave it to the court to determine whether portions of the letter were in fact privileged. It insisted only that the portions so adjudged should be withheld from the defendant. To this the defendant objected that the court could not judge whether the confidential portions were relevant to the defense until that defense was fully disclosed, and that defendants were not required to make such disclosure until they had put in their case. 838

836 1 ROBERTSON 211. (Emphasis added.)

Becausc Jefferson had thus devolved on Hay the cxercise of "discretion" to withhold non-material parts of the letter, United States v. Burr, 25 Fed. Cas. 55, 65 (No. 14693) (C.C. Va. 1807), Chicf Justice Marshall said, "the president has assigned no reason whatever for witholding the paper called for. The propricty of withholding must be decided by himself, not by another for him. Of the weight of the reasons for and against producing it, he is himself the judgc. It is their operation on his mind, not on the mind of others, which must be respected by the court." United States v. Burr, 25 Fed. Cas. 187, 192 (No. 14694) (C.C. Va. 1807). (Emphasis added.) In other words the initial judgment of need to withhold must be made by thc President, not left to a subordinate.

880 Thus llay said: “The application made by the defendant is that testimony which concerns himself should be adduccd; that what tends to his own just dclense and exculpation may be brought forward. Is it right that he should have morc? Is it proper, fair or right that he should have the liberty of going through the whole letter, as well those parts which do not rclate to him as those which do, for the purpose of making unfavorable impressions on the public mind, ... making public confidential communications respecting privato characters, and thereby producing controversies and violent quarrels. I wish the court to look at the leller and see whether it does not contain what ought not to be submitted to public inspection." 2 ROBERTSON 509.

837 25 Fed. Cas. 187, 190 (No. 14694) (C.C. Va. 1807). (Emphasis added.) Marshall said: "I do not think that the accused ought to be prohibited from sccing the letter ...." Id. at 192. The Attorncy General himself says that: "Judge (sic) Marshall made it clear that if a letter in the possession of the President material to the trial contains matter-'which it would be imprudent to disclose, which it is not thc wish of the exccutive to disclosc; such matter, if it be not immediately and essentially applicable to the point, will, of course, bc suppressed.'" Att'y Gen. Mcmo. 36. (Emphasis added.) In short, Marshall would cxclude only irrelevant or immaterial matter, not the entire letter. Whether the adversary should inspect the entire letter is another matter, discussed infra.

138 2 ROBERTSON 516.

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