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It was on this state of facts that Chief Justice Marshall ruled that the president of the United States may bc subpoenaed, and examined as a witness, and required to produce any paper in his possession, is not controverted. ... The president, although subject to the general rules which apply to others, may have sufficient motives for declining to produce a particular paper, and those motives may be such as to restrain the court from enforcing its production. ... I can readily conceive that the president might receive a letter which it would be improper to exhibit in public, because of the manifest inconvenience of its exposure. The occasion for demanding it ought, in such a case, to be very strong, and to be fully shown to the court before

its production could be insisted on. And, referring to private letters sent to the President respecting matter of public concern, Marshall stated that they "ought not on light ground to be forced into public vicw.

Yet it is a very serious thing, if such letter should contain any information material to the defense, to withhold from the accused the power of making use of it. ... I cannot precisely lay down any general rule for such a case. Perhaps the court ought to consider the reasons, which would induce the president to refuse to exhibit such letter as conclusive on it, unless such letter could be shown to be absolutely necessary in the defense. The president may himself state the particular reasons which may have induced him to withhold a paper, and the court would unquestionably allow their full force to those reasons. At the same time, the court could not refuse to pay proper attention to the affidavit of the accused. But on objections being made by the president to the production of a paper, the court would not proceed further in the cause without such an affidavit as would clearly show the paper to be essential to the justice of the case. ... [T]o induce the court to take any definite and decisive step with respect to the prosecution, founded on the refusal of the president to exhibit a paper, for reasons stated by himself, the materiality of that paper ought to be shown. 340

And he finally stated that "I do not think that the accused ought to be prohibited from seeing the letter. .. .1341

Plainly all this contradicts Attorney General Rogers' statement that Marshall "ruled that the President was free to keep from view such portions of the letter which the President deemed confidential in the public interest. The President alone was judge of what was

339 United States v. Burr, 25 Fed. Cas. 187, 191-92 (No. 14694) (C.C. Va. 1807). (Emphasis added.)

840 Id. at 192. (Emphasis added.)

341 Ibid. Lest it be thought the rule in civil cases may be narrower, note Marshall's statement that "if this might be likened to a civil case, the law is express on the subject. It is that either party may require the other to produce books or writings in their possession or power which contain evidence pertinent to the issue." Id. at 191. We need look no further than United States v. Reynolds, 345 U.S. 1, 9-10 (1953), for confirmation that "judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers."



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confidential."342 For Marshall asserted judicial power to decide whether an executive claim of privilege had merit and that a claim of secrecy in the "public interest” would have to yield to the necessities of the accused.

3. Marbury v. Madison

Attorney General Rogers says that Marbury v. Madison848 "defines the limits at which a court must stop when the head of a department invokes the privilege that the information sought from him is confidential and cannot be disclosed,” and cites it as an illustration of the "fundamental theory which justifies an uncontrolled discretion in the heads of executive departments. ...9344 He himself quotes Marshall as saying in the Burr trial, with respect to Marbury v. Madison, that “the principle decided there was that communications from the President to the Secretary of State could not be extorted from him."346 The respect such communications deserve scarcely gives rise to “uncontrolled discretion” to withhold information respecting "corruption, inefficiency or waste" or other matters required as background for informed legislation or appropriation. And so Marbury, Burr and Hartranft no more support the claim to "uncontrolled discretion" to withhold than do the historical "precedents' earlier examined.

Set against the plainly inapplicable Hartranft is a 1951 advisory opinion of the Massachusetts Supreme Judicial Court that unmistakably rejects the claim of executive privilege. The Massachusetts Senate subpoenaed a Massachusetts Commission to produce a report submitted to it by a marketing firm for purposes of legislation respecting taxation and employment security. Rejecting a claim of executive privilege, the court said:

[I]t is held here and in other jurisdictions that inasmuch as any legisla-
tive body, in order to carry out the objects of its existence, must have
means of informing itself about subjects with which it may be called
upon to deal, it has as an attribute of its legislative function power to
summon witnesses and to compel them to attend and make disclosure
of pertinent facts and documents. ... The attempt of the Senate to
secure such information as might be contained in the report was not
an interference with the executive department of the government in
violation of art. 30 of the Declaration of Rights, relating to separation
of powers. . . . It was a permissible exercise of an attribute pertaining
to legislative power. If the legislative department were shut off in
the manner proposed from access to the papers and records of executive

342 Atty Gen. Memo. 35.
343 1 Cranch (5 U.S.) 137 (1803).
844 Att'y Gen. Memo. 32.
848 Id. at 34. (Empha is added.)




and administrative departments, boards, and commissions, it could not properly perform its legislative functions.346



Among the arguments advanced under the banner of executive privilege, none is more danger laden than the contention that even enacted statutes can be defied in its name.347 Respect for law is a precondition of democratic government; without it there could not be policemen enough to make possible a stable society. That the law binds all, officers as well as citizens, "from the highest to the lowest,” has long been an axiom of government. It is therefore startling when executive officials declare themselves free to decide which laws are binding upon them.

Thus far the only act considered has been that of September 2, 1789, which directed the Secretary of the Treasury to furnish information required by the Congress.349 There are others. A statute directing the Commissioner, later the Secretary of Agriculture, to make "reports on particular subjects whenever required to do so by ... either House of Congress” originated in 1862.360 Such pro

346 Opinion of the Justices, 328 Mass. 655, 660-61, 102 N.E.2d 79, 85 (1951). (Emphasis added.) Younger 779, thrusts the case aside because it "does not involve the doctrine of executive secrecy." First he states that the court's reference to the absence of “diplomatic, military, or other secrets involving the security of the State' confuses the political doctrine of executive secrecy with the evidentiary rule of executive privilege." It is Mr. Younger who is himself “confused.” The immunity has been claimed both in private litigation, United States v. Reynolds, 345 U.S. 1 (1953), and against the legislature. The “political" claim of executive secrecy for “diplomatic" secrets was rejected by Parliament in the Walpole inquiry, it was put out of bounds by the Continental Congress, and prior to the Jay Treaty full disclosure of "diplomatic secrets" had been made to the House, see text accompanying notes 240-47 supra, and the Senate was given the Jay "secrets," see text accompanying note 224 supra.

Next Mr. Younger argues that "the chief executive here never invoked secrecy, and no inferior official is entitled to do so in his place.” The records bulge with just such invocations by "inferior officials," and former Assistant Attorney General Kramer states that the President: "obviously ... cannot claim the privilege in all the instances that may arise. This power, like most other presidential powers, therefore must be delegated to other officials.” Kramer & Marcuse 911. No mention is made of the point in the Massachusetts case, and a veteran court is unlikely gratuitously to decide a "separation of powers" issue when that can be avoided on the simple ground that the chief executive failed to lodge the privilege claim.

347 Att'y Gen. Memo. 3-4, 48-49. Actual defiance of a statute by the Air Force is hereafter discussed. Kramer & Marcuse 882, say that the privilege “cannot be abrogated by statute."

348 United States v. Lee, 106 U.S. 196, 220 (1882). Coke said in 1608 that the King himself was "under ... the laws.” Prohibitions del Roy, 12 Co. Rep. 64-65, 77 Eng. Rep. 1342 (1608). See also BOWEN 302-06.

349 See text accompanying note 79 supra.

850 See Att'y Gen. Memo. 49; the present provision is in 12 Stat. 387 (1862), 5 U.S.C. $ 557 (1958).



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visions are likewise found with respect to the Commissioner of Labor (1888)351 and the Department of Commerce and Labor (1903). 35. So numerous were the various statutory requirements of information from the departments that in 1928 the Congress repealed 127 special items and substituted a blanket provision.353

It will be instructive to examine recent executive defiance of one such statute. Section 313 of The Act of 1921 directs every department and establishment of the government to furnish to the Comptroller General, the Congressional watchdog, "such information regarding the powers, duties, activities, organization, financial transactions, and methods of business of their respective offices as he may from time to time require of them.”354 The papers to which the Comptroller is thereby entitled, said the Attorney General in 1925, "would seem to be a matter solely for his determination.”355 Acting under this statute, the Comptroller General requested a report upon the Air Force Ballistics program made by the Inspector General in 1958 to the Secretary of the Air Force.356 The purpose of that report was to "evaluate the management concept” of that program.

887 Access to the report was resused,358 not because of the

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351 25 Stat. 182, 183 (1888).
352 32 Stat. 825, S29 (1903). Sce generally Att'y Gen. Memo. 49.

353 These items are set forth at 45 Stat. 986-96 (1928). The substitute section, 45 Stat. 996 (1928), 5 U.S.C. § 105a (1958), provided that:

Every cxccutive department and independent establishment of the Govern-
mcnt shall, upon request of the Committee on expenditures . of the
House ... or upon request of the Commitice on expenditures ... of the
Senate . . . furnish any information requested of it relating to any matter

within the jurisdiction of said Coinmittec. Despite its plain language, this provision has been restrictively read by the Attorney General in reliance on legislative history purporting to disclose an intention to require only those matters previously covered by the repealed 127 items. Att'y Gen. Memo. 57-58. It is unnecessary to assay this contention because, if true, Congress can in harmony with precedent enact a sweeping requirement.

354 42 Stat. 26 (1921), 31 U.S.C. § 54 (1958).
355 34 OPS. ATI'Y Gen. 446, 447 (1925).
356 Moss Hearings 3578.
857 Id. at 3677, 36.35.

358 Id. at 3573, 3578. After his initial refusal, Secretary Douglas first transmitted a 2 1/2 page "summary" of the report, id. at 3582, later a 35-page typewritten "statement of facts contained in the report,” id. at 2711, and stated that “opinions, conclusions, recommendations, and other advisory matters contained in the report have been omitted ...." Id. at 3711. Two additional "classified" pages also were sent. Id. at 3650. The original report consisted of 61 pages, a basic report of 9 pages and supplementary data of 52 pages. Id, at 3650.

The Comptroller General replied that this statement was “not an adequate substitute" for the full report, that "some vi the 'iacts' are actually conclusions," that "to evaluate the facts and determine the reasonableness of these conclusions, additional information is needed," citing several examples. Id. at 3579. The Inspector General stated that “the report itself is in the nature of the summary of a great deal of information which was developed in the course of the survey. Literally we developed a 5-foot shelf of information and data . ... So for a thorough




absence of statutory coverage*60 nor because of thrcats to military security, 300 but because of a desire to improve "self-criticism."881 The Secretary took the position that in order to cncourage the confidence of those who divulged information to the Inspector Gencral it was necessary to conccal their identity:312 This was not a miniscule operation; the Inspector General's office cmployed the services of 3,139 employcesons and in fiscal 1959 twenty-four million dollars was expended on its operationsaus—more than is spent on some of the independent agencies. Indisputably, Congress had a legitimate interest before appropriating more moneys for the operation to know whether it was efficiently operated and whether the giant ballistics program itself was being adequately monitored. Indeed, the Inspector General agreed that it was "important to the Congress"

understanding of a survey that the Inspector General has made, it is necessary to be thoroughly conversant with all of this material.” Id. at 3643. (Emphasis added.) Secretary Douglas said he would not make available "the back-up material that is collected in the investigation." Id. at 3699. The Comptroller Gencral testified that: "the denial by any official or organization of information developed in its internal reviews ... bampers any external review or independent consideration of the effectiveness and efficiency of the activities, or necessitates a duplication of costs in making similar reviews. This is, in itself, an unjustifiable waste of the taxpayers' moncy." Id. at 3580-81. For carlier criticism of this Air Force refusal sec Schwartz 38-39.

860 The Air Force Secretary conceded that the statutory powers of the Comptroller General are "so broad that executivo privilege is the only possible major exception to them." Id. at 3684.

In 1828, thc Sccrctary of War, upon request, furnished confidential reports of the Inspector General of the Army. Collins 572.

800 Moss Hearings 3641.

801 Id. at 3676, 3572. Such a claim bas alrcady been rejected in the field of "evidentiary” privilege: "[T]he Government claims a new kind of privilcgc. Its position is that the proceedings of boards of investigation of the Armed Forces should be privileged in order to allow the free and unhampered self-criticism within the service necessary to obtain the maximum efficiency. ... I can find no recognition in the law of the existence of such a privilege." Brauner v. United States, 10 F.R.D. 468, 472 (E.D. Pa. 1950). (Emphasis added.) Brauner was reversed in United States v. Reynolds, 345 U.S. 1, 11 (1953), but on the ground that no adequate predicate had been laid for disclosure of "military secrets." See also Clark, C.J., concurring in Bank Line v. United States, 163 F.2d 133, 139 (2d Cir. 1947).

862 Moss Hearings 3660. Note too that the Inspector General's Report was distributed to some 40 persons and offices within the Air Force, id. at 3751-52, and that the names of confidential sources were not deleted from copies sent to the commander of the inspected unit. Id. at 3638. Consequently, looking to the "evidentiary privilege" analogy, "once the identity of the informer has been disclosed to those who would bave cause to resent the communication, the privilege is do longer applicable.” Roviaro v. United States, 353 U.S. 53, 60 (1957).

863 Unpublished letter from Col. Bourke Adkinson to Subcommittee Chairman John E. Moss, July 15, 1959.

As of Jan. 1, 1962, the Federal Maritime Commission had 142 employees; the Civil Aeronautics Board bad 776; the Federal Power Commission had 900; and the Federal Trade Commission bad 984. Chart of Organization accompanying Sex. REPt. No. 22 of the Senate Committee on Government Operations.

104 Letter, supro note 363.

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