1965] WITHHOLDING INFORMATION 1331 A last practical consideration: after noting the secrecy that surrounds the deliberations of "judges in their chambers, and of grand juries," Taylor concludes that "the executive branch, too, may claim that it is not required to plan and conduct all of its operations in a goldfish bowl."is Certainly the alternative is not to conduct all its operations in a darkroom, as tended to become the rule in the Eisenhower regime. For such operations as really demand a darkroom, disclosure to Congress need not mean disclosure to the public, for Congress itself can and should limit scrutiny to select members. Grand jury proceedings are an exception to "this nation's historic distrust of secret proceedings," deeply rooted in our history and long antedating the adoption of the Constitution.610 If only there were a like tradition of "executive" secrecy! Then too, the grand jury is an investigating tribunal of constantly changing members, having no built-in yearning to conceal its own mistakes or misdeeds.17 Nor does the comparison of judicial deliberations with those of executive employees stand any better. All told there are some 500 or 600 federal judges as against upwards of 2,500,000 federal employees. The problems of safeguarding these two against inefficiency, corruption and waste are simply incommensurable.C18 "Judicial deliberations" are better compared to conferences between the President and a Cabinet member, for which a privilege was recognized in Marbury v. Madison,19 of Presidential communications with other high military or civil officers,620 which at least one congressional committee recognized.621 But it is far-fetched to compare the conferences of two lowly subordinates, or of a subordinate with a lower echelon chief, with consultation between a classified information should themselves be subjected to a security check, if only because strange characters do from time to time find their way into Congress. (2) The executive should have a chance to comment on a committee report before it is published in order to avoid bona fide mistakes. Nothing so promotes cooperation, and is better calculated to facilitate the quest for information, than to remove the matter from the front pages. 615 TAYLOR 86. 616 In re Oliver, 333 U.S. 257, 273 (1948); 1 HOLDSWORTH, HISTORY OF ENGLISH LAW 322 (3d ed. 1922). 617 Mr. Justice Douglas reminded us that commissions "tend to acquire a vested interest in that role." Hannah v. Larche, 363 U.S. 420, 499 (1960) (dissenting opinion). 618 The fact that th executive branch cannot peer into congressional files, as is noted by TAYLOR 105, and Bishop 478, may be similarly explained. Historically, furthermore, the Grand Inquest could inquire into executive conduct whereas there scems to be no precedent for a reversal of roles. 619 1 Cranch (5 U.S.) 137, 144-45 (1803). Attorney General Rogers quotes Marshall, C.J., as saying in the Burr Trial respecting Marbury v. Madison that "the principle decided there was that communication from the President to the Secretary of State could not be extorted from him." Att'y Gen. Memo. 34. 620 Kramer & Marcuse 683, 709 621 Id. at 873. 1332 UCLA LAW REVIEW [Vol. 12: 1287 judge and his immediate aide or the President with a department head. And it needs emphasis that not even a judge is beyond the scope of legislative investigation, else the impeachment power would be shackled. The oft-cited example of Judge Louis Goodman's refusal on behalf of himself and his fellow district judges in California to testify before a congressional committee, apparently as to their conduct of judicial proceedings,022 reflects the view that "such an examination of a judge would be destructive of judicial responsi-. bility." 023 But this spells no immunity from investigation into judicial misconduct,024 which if infrequent has yet bobbed up from time to time." 025 The plain fact is that the executive branch was meant to operate in a goldfish bowl. That is one of the presuppositions of democratic government, perceived almost from the outset: No nation ever yet found any inconvenience from too close an inspec- The alternative to a "goldfish bowl" cannot be uncontrolled executive discretion to withhold from Congress for, as the Eisenhower era teaches, that conduces to a mushrooming cloud of concealment. Dress it decorously as you will, in the last analysis executive discretion to determine what Congress shall see empowers the executive branch to determine how far it needs to be investigated. "If men were angels" then we could safely lodge that power in the subject of investigation. Congress is not without means of self-help. As Professor Bishop reminds us: Congress undoubtedly has power to punish contempts without invoking 022 BARTHI 80; TAYLOR 96-97. 623 United States v. Morgan, 313 U.S. 409, 422 (1941). 624 "Where the secret is a judicial secret such as the proceedings of a judicial conference preparatory to writing an opinion, it may be that there is a privilege belonging to the judiciary, but that has not been decided, and might turn on whether the investigations were with a view to legislation or to impeachment." Wyzanski 99. 625 BORKIN, THE CORRUPT JUDGE 219-58 (1962). 626 Statement by Edward Livingston, a great early American lawyer and legislator. Quoted in Reynolds v. United States, 192 F.2d 987, 995 (3d Cir. 1951). See also notes 111-18 supra. Cf. text accompanying note 119 supra. 68-287 O 71 12 1965] WITHHOLDING INFORMATION him in the common jail of the District of Columbia or the guardroom of the Capital Police.027 1333 If "Congress has never in the past been willing to push matters" to the point of directing the Sergeant at Arms to scize the person of an executive officer,28 it is not for lack of power but rather a tribute to Congress' good sense. Recent resistance by Alabama soldiers to service of federal process on Governor Wallace illustrates how unseemly a spectacle would be the repulse of the Sergeant-atArms by a cordon of federal soldiers. That could only serve to bring both branches into disrepute, to convert a grave constitutional issue into a common brawl. Regression to the jungle of selfhelp in any form, whether by withholding vital appropriations, or abolishing recalcitrant agencies, or seizing executive recalcitrants, represents an undesirable solution to conflicting claims of constitutional power. It would substitute a meat cleaver for temperate arbitrament. No more than the President should Congress impose its construction on the opposite branch by force majeurc. It is to avoid such self-help that we turn to the courts. IX. JUSTICIABILITY OF THE CONFLICT BETWEEN CONGRESS AND THE EXECUTIVE BRANCH A necessary preliminary to the question of justiciability involves the mechanics of entry into the courts for resolution of the legislativeexecutive conflict. The district courts presently have "original juris 027 Bishop 484. See Jurney v. MacCracken, 294 U.S. 125 (1935); McGrain v. Daugherty, 273 U.S. 135 (1927). The legislative contempt power has its roots deep in parliamentary history and was employed by the Congress from the beginning. See Berger 611, 620. Congressman Findley had asserted the power in the House of 1793: "It is solely in the power of this House to punish all contemptuous or indecent treatment of its authority. . . . We might have ordered him [Secretary of the Treasury Alexander IIamilton] to the bar of this House and obliged him to make proper acknowledgments." 3 ANNALS OF CONG. 963 (1793). It will be recalled that Nicholas Paxton, Solicitor of the Treasury, was imprisoned during the course of the Walpole inquiry. 13 CHANDLER 139. Brass Crosby, Lord Mayor of London was imprisoned later. Brass Crosby Case, 3 Wilson 189, 95 Eng. Rep. 1005, (K.B. 1771). Explaining judicial non-interference with Parliamentary contempt commitments, Blackstone says, "if any persons may safely be trusted with this power, they must surely be the Commons, who are chosen by the people." Id. at 205, 95 Eng. Rep. at 1014. See note 66 supra. An carly Massachusetts case sustained the power of the legislature to "imprison" an official "for contempt" for refusing to produce papers, saying that as "the grand inquest for the Commonwealth, [it] ... has power to inquire into the official conduct of all officers of the Commonwealth. . . .” Burnham v. Morrissey, 80 Mass. (14 Gray) 226, 230, 239 (1859). 628 Bishop 485. 620 Time Magazine, June 21, 1963, pp. 13-14. The importance of "settling grievances peacefully in the courts" was stressed in United States v. Mississippi, 85 Sup. Ct. 808, 817 (1965). 1334 UCLA LAW REVIEW [Vol. 12: 1287 diction of all civil actions . . . commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress."30 Under this act it has been held that a Senate committee authorized by Senate Resolution to investigate senatorial election frauds was not "authorized to sue,' 031 but that turned on the lack of express authorization. Unless we consider that the United States is exclusively identified with the executive branch, a suit on behalf of the legislative branch is no less in the interest of the United States. And notwithstanding the Court's reservation in passing whether suit would lie on behalf of one House alone, such suit should stand no lower than suit on behalf of a single Department, which can be "commenced by the United States."32 Apparently a department or agency of the executive branch would be authorized under the terms of the above quoted statute to file suit for a declaratory judgment whether it is entitled to withhold information required from it by a congressional committee. Suppose that a suit for a declaratory judgment on behalf of some branch of the Executive is "commenced by the United States," and suppose that Congress desires to file a cross-complaint to compel delivery of required information, can the words "commenced by the United States" be construed to permit each of the opposing parties to be "the United States?" Clarifying legislation might well obviate litigation over such questions, over the issue whether such suits present "political questions," and insure that both branches enjoy reciprocal rights.633 630 28 U.S.C. § 1345 (1949). 631 Reed v. County Comm'rs, 277 U.S. 376 (1928). The holding of the case is narrow: The Court declined to construc the Senate authorization to the Committee "to do such other things as may be necessary in the matter of said investigation" as authorizing suit, largely because of the practice of both Senate and House to rely on their "own power to compel" testimony. In passing, the Court threw doubt on the power of one House acting alone to sue, saying "even if it be assumed that the Senate alone may give that authority." Id. at 388-89. The Committee impressively argued (p. 379) that "Any suit brought in the exercise of a constitutional power of the United States on behalf. . . of any of its judicial, legislative or executive agencies, is a suit in which the United States is the real party in interest. . . . It may not be said that the National Government has a less interest in the execution of powers of the legislative branch of the Government than of the executive branch;" in other words, the "United States" is not exclusively identified with the executive branch. But there is another obstacle. Representation of the United States is confined by statute to the Attorney General and to the District Attorneys. 5 U.S.C. §§ 309, 310 (1964); 28 U.S.C. § 507 (1964). Given a dispute between Congress and the executive branch it is to be anticipated that both would choose to represent the Executive rather than Congress. A statute should therefore provide that Congress may appoint attorneys to represent it. 632 Id. at 377, 388-89. 633 Account should then be taken of statutes which confine representation of the United States to the Attorney General and the United States Attorneys. 5 U.S.C. §§ 309, 310 (1964); 28 U.S.C. § 507 (1964). Quacre whether express provision for Congressional appointment of its own counsel is needed. 1965] WITHHOLDING INFORMATION 1335 In developing such a procedure, the benefits of first escalating the issues for top-level evaluation merit consideration. Not all demands for information represent a considered congressional judgment. Too often they are pressed by headline-hunting members of Congress, and often the leadership finds itself trapped into a showdown that might have been averted by intervention at an earlier stage. Screening of executive refusals by President Kennedy caused a spectacular diminution of withholdings which, in the Eisenhower era, were often downright ludicrous. To stimulate study and design of a statutory procedure for the accomplishment of such objectives, the following is suggested: (1) If an executive officer declines to furnish information, the head of the agency, upon a written request by the congressional committee chairman, shall hold a closed hearing on the refusal, at which a representative of the committee shall be entitled to be heard; (2) If the head thereafter endorses his subordinate's refusal to produce, the request shall be put before the relevant legislative branch in order to obtain approval for the institution of a suit. Similarly, the institution of suit for declaratory judgment by an executive agency might be conditioned on prior approval by the President. Such machinery should go far to reduce needless harassment of the executive branch by hot-headed legislative investigators and to assure that agency heads will seriously review ill-considered bureaucratic refusals to furnish information. It would siphon off petty disputes, leaving only important issues for submission to the courts; and before long the courts would pick out guidelines that would further diminish the area of controversy. Whether the conflicting claims of Congress and the executive branch respecting Congress' right to obtain information are justiciable needs to be considered from three standpoints: (1) "case or controversy," (2) "standing to sue," and (3) "political questions." A. Case or Controversy Suits wherein "part of the government appears before" the courts "fighting another part" are now a commonplace,635 yet judicial 634 See text accompanying notes 6 and 499 supra. 635 FTC v. Ruberoid Co., 343 U.S. 470, 482-83 (1952) (Jackson, J., dissenting). Sce Federal Maritime Bd. v. Isbrandtsen Co., 356 U.S. 481 (1958); Secretary of Agriculture v. United States, 347 U.S. 645 (1954); United States v. FPC, 345 U.S. 153 (1953); ICC v. Inland Waterways Corp. 319 U.S. 671, 683 (1943); Miguel v. McCarl, 291 U.S. 442, 450 (1934); Summerfield v. CAB, 207 F.2d 200 (D.C. Cir. 1953); Stern. Such actions have been termed "routine" in the state courts. Note, Judicial Resolution of Administrative Disputes Between Federal Agencies, 62 HARV. L. REV. 1050 (1949). See State Bd. of Educ. v. Levit, 52 Cal. 2d 441, 343 P.2d 8 (1959) (proceeding by Board of Education to compel Director of Finance to comply with |