other branches of Government; for instance, the judiciary, would you expand Congress' power to gain access to internal working meinoranda, to say, getting the memos exchanged between the Federal Judge and his law clerk, or the memos exchanged by judges-The Court I worked on, the Second Circuit, they exchanged memos ahead of the vote, stating their views on the case. I think that would be helpful in determining whether or not the courts are being faithful to the statutes. You might find out the real reasons for decisions. If it is a legislative purpose, would you extend it? Mr. SWAN. No, I do not believe I am suggesting that the legislature, with respect to the executive, has the power to dredge up these kinds of internal, truly internal, working papers; so, I clearly would not extend it to that. Senator ERVIN. Mr. Edmisten? Mr. EDMISTEN. Professor Swan, a moment ago, you were giving an excellent historical review of Congress' request for information from the executive branch, and in many cases they released it. Can't we say, then, that when you said "the Congress," it meant something different then than it does today? Back then, "the Congress" was much smaller. Its members were on the floor of the Senate and the House a good deal because they did not have all of the modern modes of transportation. It was a more cohesive body then. So, we have a physical impediment today. You have 435 Members of the House going 435 different ways, and 100 Members of the Senate over here. So, when you say the "Congress" today, you really do not mean one cohesive body, because everybody is off in different directions, and, in order for the "Congress"-and I use it the way it should be used now, in quotes-the "Congress" to get anything from the executive, it must find some way to act as a cohesive body. Isn't that rather diflicult today? Mr. SWAN. Well, two points. First of all, with regard to the organization of Congress for the purpose of expediting its business. Certainly, not only the growth and size of the Congress but the complexity of problems that face it obviously require a much more elaborate committee structure, and so forth. From the point of view of constitutional power, the power is clearly in the body as a whole, either in the House or the Senate as a whole. However, the increased complexities, increased size, increased diversity of viewpoints, creates a serious problem for the Congress to act as an entity. You are quite right on that observation. Whether or not Congress-and I am perhaps anticipating youcan then delegate some of these powers to its various committees, so they can be exercised more effectively, is a very, very difficult question. I think I know the response of the executive branch. They have, on repeated occasions, resisted certain types of legislation on the ground that it represents an unconstitutional delegation of a legislative power to a committee of Congress. Am I responsive to your question? Mr. EDMISTEN. Yes. Also, is there not much more intensive lobbying of the Congress by the executive branch against anything that they think might whittle away at their authority? Mr. SWAN. There is a curious little note that goes with Jegerson's note. It apparently was the consensus of the Cabinet not to adopt the line which is reflected in his note but to consult the Congress and bring it around to right thinking. I have no way of knowing whether or not the intensity of the lobbying efforts on the part of the executive branch has increased in recent years over what it had been. I have the feeling from some of the historical material that the President and the Cabinet officers were very active in Congress on things they thought were important. Professor WINTER. You are familiar with the Attorney General's statement before the House committee in response to a request by the House of Representatives for papers relating to the expedition of General St. Clair into the Northwest Territory. The demand was made upon the Secretary of War for all papers connected with that expedition, and President Washington called the Cabinet in session. to decide what the rule ought to be, what the precedent ought to be, in this first case. The Cabinet concluded-and apparently with the concurrence of the President-that there was discretion in the executive branch to refuse to produce such papers. Now, in that particular case, they decided to exercise the discretion in favor of producing them, and I was wondering about that incident, because Mr. Rehnquist testified before this subcommittee laterMr. SWAN. The citation that he has from President Washington's papers is a very curious one. The President just notes the fact that the Secretary of the Treasury and the Secretary of War were instructed to offer explanations. I think it is hard to read what is in Washington's papers as saying that he recognized the exercise of a discretion in that process. Professor WINTER. The quotation he has from the writings of Jefferson is that "The Cabinet decided" that the executive ought to communicate such papers as the public good would permit and ought to refuse those where the disclosure of such would injure the public and that, consequently, there was discretion to exercise. That would seem to be a very early precedent in which the President asserted inherent powers to refuse to divulge papers. Mr. SWAN. I understand the interpretation that is being put on this. Let me say, you have to take it the next step it seems to me. You have to then read into the President's willingness to send the documents and his order to the Secretaries to testify, as a recognition on his part of the exercise of a discretion. And there is no evidence of that. Professor WINTER. I want to disassociate myself from the view that the Rogers' memo takes that there is a general power to refuse to disclose anytime the administration thinks it will injure the public. I think that is a very extreme and erroneous position, but I thought there should be something in the record when Mr. Rehnquist testifies. I want to ask him about that. Senator ERVIN. It is hard to make, as I think you point out in substance in your statement, a precedent out of a situation when the action taken was exactly the opposite of what the President is said to have decided was within his powers. I was taught in the process of interpreting judicial precedent, at least, that we were to pay some attention to the facts. It is not much if somebody agrees to let the Senate and the House have a document they requested. That is not a very strong precedent against congressional power and in favor of the President's power to refuse to present those documents. Mr. SWAN. I quite concur, Senator. Senator ERVIN. Thank you very much. The subcommittee will stand in recess until 10 o'clock in the morning, meeting in the Caucus Room in the Old Senate Building. (Whereupon, at 4:10 p.m., a recess was taken until 10 a.m., Wednesday, July 28, 1971.) EXECUTIVE PRIVILEGE WEDNESDAY, JULY 28, 1971 U.S. SENATE, SUBCOMMITTEE ON SEPARATION OF POWERS, Washington, D.C. The subcommittee met, pursuant to recess, at 10 o'clock a.m. in room 318, Old Senate Office Building, Senator Sam J. Ervin, Jr. (chairman of the subcommittee), presiding. Present: Senators Ervin and Mathias. Also present: Rufus L. Edmisten, chief counsel and staff director; Joel M. Abramson, minority counsel; Professor Philip B. Kurland, University of Chicago Law School, chief consultant, and Professor Ralph K. Winter, Jr., Yale University Law School, consultant. Senator ERVIN. The subcommittee will come to order. Counsel will call the first witness. Mr. EDMISTEN. Mr. Chairman, the first witness this morning is the Honorable Dean Acheson. Senator ERVIN. I want to welcome you back to the Committee and express our appreciation for your willingness to come and give us the benefit of your views on this occasion, as you have done on other questions in times past. We are delighted to have you with us. STATEMENT OF HON. DEAN ACHESON Mr. ACHESON. Thank you very much, Senator. I have a very short statement which perhaps I might read, and then let's discuss the matter together. Senator ERVIN. You may proceed. Mr. ACHESON. Senator Ervin and members of the subcommittee: You have invited me to give my views of S. 1125. This bill provides that an employee of the executive branch summoned or requested to testify before any agency of Congress who intends to exercise executive privilege shall not refuse to appear on that ground. In no case shall an employee assert executive privilege unless he presents a statement signed by the President personally requesting him so to do. In this city of rumors the current name of this bill is not that of its sponsors, the Fulbright-Cranston bill, but the Kissinger bill. Whatever the purpose of its sponsors, its practical consequences could be to cause useless friction within the Government of the United States, hamper the conduct of one of its most vital functions, and increase the harassment of and difficulties of the President and those citizens who are serving their country in the executive branch as well |