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aries, because neither branch will accept unilateral decisions by the other, there must be an impartial arbiter to decide it. Under the Constitution, the arbiter of constitutional boundaries is the judiciary, and I shall therefore examine several problems involved in submission of the controversy to the courts.

THE FULBRIGHT BILL

Let me begin with § (b) of the Fulbright Bill. The directive to executive employees who appear upon request, not to assert executive privilege, except by written authorization of the President, reflects the practice of the Kennedy and Johnson administrations. (RB 1045, 1310, 1319 n.548). Although the President may instruct his subordinates to obtain Presidential clearance for claims of privilege, it does not follow, if such claims have a sound constitutional basis, that Congress by directive may insist on similar clearance. Assume that power to enter such a directive exists, I am next concerned with the implication that if the President approves the privilege claim, the matter is at an end. For when President Jefferson asserted executive privilege to withhold documents in the trial of Aaron Burr for treason, Chief Justice Marshall, who presided, held that there was no absolute Presidential privilege to withhold documents from the court; and in fact Jefferson proceeded to supply all the required documents. The Burr case has been the subject of varied interpretations; and I have set out enough material in my study of the Marshall opinion to enable you to decide for yourself whether Marshall denied the claim of Presidential privilege. (RB 1107-09). If I read the Burr decision correctly, it cannot be that Congress enjoys less power to obtain information from the President for the performance of its functions than does a court in a criminal case, particularly when it is recalled that Congress was given a power withheld from a court-power to impeach the President. If he may be impeached Congress may employ the lesser power to investigate and reject impeachment, as may be gathered from Washington's explanation in the Jay treaty incident, to which I shall recur. I would therefore recommend that (b) be revised to remove any implication of disclaimer of power to call on the President himself for information.

Next I shall comment on the 8(a) directive to Executive employees to appear when requested to do so by a Congressional Committee. If Congress is empowered to demand information from the Executive branch, the provision is gratuitous. Given the power, the Senate may order its Sergeant at Arms to take the recalcitrant employee into custody on a charge of contempt. If Congress lacks the power, the statutory directive cannot fill the gap.

May I suggest a slight drafting change. It suffices to provide that an employee who is directed to appear must appear. There is no need to single out one of his mental reservations over another. The employee can make known his objection when he appears.

I would prefer a Concurrent Resolution to a Bill because a Bill is subject to Presidential veto. The main purpose of the Bill would be served by the Resolution, which would call the matter to the attention of the President and his subordinates. And it would furnish a guide to all Congressional Committees, who would thenceforth reject all claims of privilege not authorized by the President himself. The accompanying Committee report, I suggest, should make clear that the Resolution or the Bill is merely designed to clarify the practice.

Doubtless you are aware that a statute enacted in 1928 requires the Executive department, upon request by either the Senate or House Committee on expenditures, to "furnish any information requested of it relating to any matter within the jurisdiction of the said Committee." (RB 1112 n.353). Should you prefer to proceed by Bill. this provision can be amended to include a call by any Committee of either House for information. Were such a law enacted, defiance of a request thereunder would be an impeachable offense. Blackstone stated that impeachment was provided so that "no man shall dare to assist the crown in contradiction to the laws of the land." (1 B1.244)

THE POWER OF INQUIRY IS AN ATTRIBUTE OF THE LEGISLATIVE POWER Proponents of wide executive privilege have been wont to invoke the separation of powers. (RB 1046 n.9). But the threshold question is: what does the separation of powers separate? What were the attributes and powers

of the separate branches created by the Framers? For this history, not logical deduction from a concept, furnishes the answer. Montesquieu, so frequently cited by the Founders on the separation of powers, declared that the legislature should "have the means of examining in what manner its laws have been executed by public officials." (RB 1059-60). As is well known, he had the English practice in mind.

My study contains a summary of Parliament's practice of summoning executive officers and requiring submission of documents. (RB 1056). I cite one example, the investigation of Robert Walpole in 1742. An opposition spokesman, joined by Walpole's own son, Horace, conceded that "we have a right to inquire into the conduct of our public affairs." (RB 1057). The elder William Pitt summarized the precedents: "We are called the Grand Inquest of the Nation, and as such it is our duty to inquire into every step of public management, either abroad or at home, in order to see that nothing has been done amiss." And the Solicitor of the Treasury was clapped in jail when he refused to testify on the ground of self-incrimination." (RB 1058).

How this appeared in Colonial eyes was recorded by James Wilson in 1774. Wilson, destined to play a leading role in the Constitutional Convention and the Pennsylvania Ratification Convention, stated that:

The House of Commons have checked the progress of arbitrary power, and have supported with honor to themselves, and with advantage to the nation, the character of grand inquisitors of the realm. The proudest ministers of the proudest monarchs have trembled at their censures; and have appeared at the bar of the house, to give an account of their conduct. . . (RB 1288 n.)

Colonial practices reflected this background. Professor Potts concluded that "the colonial assemblies, like the House of Commons, very early assumes, usually without question, the right to investigate the conduct of the other departments of the government," including the right to examine official books and records. (RB 1058). Such practices found specific expression in the Maryland Constitution of 1776, which empowered the house to "call for all public or official papers and records, and send for persons, whom they may judge necessary in the course of inquiries concerning affairs relating to the public interest." (RB 1059). The Continental Congress, in creating a Department of Foreign Affairs presided over by a Secretary, provided that "any member of Congress shall have access (to "all . . .

papers of his office"): provided that no copy shall be taken of matters of a secret nature without the special leave of Congress." (RB 1059). This clear reflection of British and Colonial practices demonstrates that not even "secret" matters pertaining to foreign affairs could be withheld from the legislature.

All this was summarized by the Supreme Court in 1927, in McGrain v. Daugherty, 273 U.S. 135, 161:

In actual legislative practice power to secure needed information by such [investigatory] means has long been treated as an attribute of power to legislate. It was so regarded in the British Parliament and in the Colonial legislatures before the American Revolution. . . . This power was both asserted and exerted by the House of Representatives in 1792, when it appointed a select Committee to inquire into the [General] St. Clair expedition and authorized the committee to send for necessary persons, papers and records. Mr. Madison, who had taken an important part in framing the Constitution only five years before, and four of his associates in that work were members of the House of Representatives at the time, and all voted for the inquiry.

The Attorney General's Memorandum would dismiss McGrain v. Daugherty because it was Mally Daugherty, an Ohio banker and brother of the Attorney General, Harry Daugherty, that was summoned to produce bank records for an investigation of charges of corruption against Harry Daugherty. From this the Memorandum argues that the Court merely recognized a power to summon private persons. The absurdity of this restrictive interpretation is pointed up by the statement in McGrain that Congress has jurisdiction to inquire into "the administration of the Department of Justice-whether its functions were being properly discharged or were being neglected or misdirected, and particularly whether the Attorney General and his assistants were performing or negotiating their duties. . . ." (RB 1077, n.177). To insist that investigation of the Attorney General must be limited to questioning of his brother is to pervert the intention of both the Framers and the Supreme

Court. In fact, the vast bulk of English and Colonial investigations were concerned with public officers; and the McGrain citation to the investigation of General St. Clair shows that the Court justified an investigation of a private person in reliance on an investigation of an Army General. So much for the pre-1787 history.

In September, 1789, the First Congress passed a statute which has not received nearly the attention it deserves. Drafted by Alexander Hamilton and approved by President Washington, it imposed a duty on the Secretary of the Treasury to give information to either House of the legislature, "in person or in writing (as he may be required), respecting all matters . . which shall appertain to his Office." (RB 1060). This is a constitutional construction of greatest moment, by an author of The Federalist, by the First Congress, and by the President, who had been the presiding officer of the Constitutional Convention, that the Congress may require from the head of a department information "respecting all matters . . . which shall appertain to his office." Parenthetically, when an investigation of Hamilton's conduct of the Treasury was later rumored, Washington wrote, "No one . . . wishes more devoutly than I do that they [the charges] may be probed to the bottom, be the result what it may." (RB 1081 n.200). Attorney General Cushing advised the President in 1854 that the 1789 statute made explicit what was "by legal implication" the duty of all members of the Cabinet, and concluded that Congress "may at all times call on them for information or explanation in matters of official duty." (RB 1064–65).

"THE EXECUTIVE POWER"

The Attorney General's Memorandum argues that since the President is vested with the "executive power" and is directed to "take care that the laws be faithfully executed," and since he is supreme in his domain, his department cannot be compelled to give information which the President determines to withhold. (RB 1067). That was not the view of the leading architect of the separation of powers, Montesquieu. On the contrary, he said that the legislature should "have the means of examining in what manner its laws have been executed by public officials." (RB 1059-60). The Attorney General would have us assume that execution of the laws requires that Congress be kept in the dark whether the laws it has enacted are in fact being "faithfully executed." To arrive at the meaning of the separation of powers we must consider how the scene appeared to the Framers. In 1787 there was a pervasive fear that a strong executive might transform his office into a monarchy. The belief prevalent at the end of the Colonial period was, in the words of Professor Corwin, that "the executive magistracy was the natural enemy, the legislative assembly the natural friend of liberty." (RB 1070). Despite Madison's fear that all power might be sucked into the legislative vortex, he yet concluded that "in republican government, the legislative authority necessarily predominates." (RB 1069-70). Presumably such considerations led Roger Sherman to say in the Constitutional convention that the Executive was "nothing more than an instrument for carrying the will of Congress into effect." Even the leader of the strong executive party, James Wilson, who favored an executive "independent of the legislature," nevertheless stated that the only strictly executive powers "were those of executing the laws and appointing officers." (RB 1071). Having combed the records of the Federal and Ratification Conventions, I consider that this was all that the Founders contemplated; and so Justice Holmes, Brandeis, Black, Douglas, Frankfurter and Jackson concluded (RB 1075-76). Little wonder that although the Framers deprived the Congress of certain traditional legislative functions, not a word is to be found either in the Constitution or in the several Conventions of any intention to restrict the historical legislative power to investigate the executive, not an intimation of a grant of discretionary power to the executive to withhold information from the Congress. The reason, I submit, was the Founders, following Montesquieu (in the later view of Holmes) "saw it as a basic value in the separation of powers that ultimate surveillance should rest in the legislature." (RB 1099 n.294).

Let me direct your attention to a cognate matter. Article I, $5 (3) of the Constitution requires Congress to keep and publish Journals, except "such parts as may in their judgment require secrecy." This provision passed by a very narrow margin after James Wilson's vigorous objection: "The people have a

right to know what their agents are doing or have done, and it should not be in the option of the Legislature to conceal their proceedings." When George Mason and Elbridge Gerry renewed the objection and pressed for publication of all proceedings, they were told that "cases might arise where secrecy might be necessary in both Houses-Measures preparatory to a declaration of war. ." (RB 1068). This explanation furnishes a guide to the scope of the secrecy provision. Harsh criticism of the secrecy provision was renewed in the Ratification Conventions. Patrick Henry said in Virginia, "the liberties of a people never were secure when the transactions of their rules may be concealed from them," that to "cover with the veil of secrecy the common routine of business, is an abomination." To set such fears at rest, John Marshall explained to the Convention that "secrecy is only used when it would be fatal and pernicious to publish the schemes of governments," as when "debating on the propriety of declaring war, or on military arrangements." Similar explanations were made in North Carolina. (RB 1068-69). Given that an express grant to Congress of a power to conceal information from the public was adopted because explained in narrow terms, how can the President invoke an implied "uncontrolled discretion" to conceal anything and everything from his great partner in government, the Congress?

The Commander-in-Chief

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What does the role of the President as Commander-in-Chief add to his right to withhold information; does it immunize Military affairs from disclosure? He can only act as Commander if Congress furnishes him with an Army. By Article I,§8, only Congress can raise and support armies; and it is required to limit appropriations for that use to two years. Additionally, Article 189, provides that "No money shall be drawn from the Treasury but in consequence of appropriations made by law." It follows that Congress may withdraw an appropriation for the Army and completely deflate the Commander's powers. Can it be that Congress cannot preliminarily inquire whether such withdrawal is necessary? Must it like Charles Lamb's Chinaman burn down the barn to roast the pig? An early precedent shows that the Commander-in-Chief function is no shelter from investigation. In 1792 the Congress appointed a Committee to inquire into the failure of the expedition led by General St. Clair, with power "to call for such persons, papers. as may be necessary to assist their inquiries." The Committee then asked the Secretary of War for documents. (RB 1079). A Cabinet meeting was called to consider the request, of which our only record is an "unofficial note" found in Jefferson's private papers. (RB 1080 n.192) Time will not permit discussion of the weight of this note; it is discussed in detail in my study (RB 1079-84). More important, there is no record that Washington asserted to Congress a claim of plenary power to withhold documents. On the contrary, the Secretaries of the Treasury and War departments appeared to make “explanations . . . in person" and all of the documents were turned over to the Committee. In the words of Douglas Freeman, "not even the ugliest line on the flight of the beaten troops was eliminated." (RB 1080). Thus St. Clair demonstrates executive recognition that the House could inquire into conduct of military affairs under the Commander-in-Chief. And yet it is a case cited by the Attorney General to illustrate a Presidential "refusal" of information! (A.G.Memo.4)

Foreign Affairs

How stands the privilege claimed for foreign affairs? It is no more profitable to spin theories out of the alleged exclusive power of the President to handle foreign affairs than from its allied concept, the separation of powers. Rather, we must look to contemporaneous constructions in the early days of the Republic; for as Justice Holmes remarked, "a page of history is worth a volume of logic." (RB 1046).

Let me begin with Jefferson's citation (in his private, "unofficial note,") to the investigation of Robert Walpole. The House of Commons had asked for all correspondence with the King of Prussia "relating to the State of War in the Empire." The King temporized; the request would be "carefully examined, in order to see how far the same may be complied with, without prejudice to the Publick, and consistently with the confidence reposed in him by other Princes." (RB 1082). Immediately the House requested all correspondence with the States General about the same subject. Walpole's great

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successor, the elder William Pitt, derided the claim that "by this inquiry we shall be in danger of discovering [disclosing] the secrets of our government to our enemies We have had many Parliamentary inquiries into the conduct of Ministers of State, and yet I defy any one to shew . . . that our publick affairs, either abroad or at home, suffered by any such discovery." (RB 1083). The ascendancy before long achieved by the House of Commons repels any inference of executive privilege that may be drawn from the King's cautious reply to the request for the Prussian papers. It was the House, not the King, that was followed by the Continental Congress when it laid open to every member all papers of the Secretary of Foreign Affairs. (RB 1059). The Attorney General argues that the failure of the First Congress to make a similar provision bespeaks an intention to withhold from Congress a similar right of inspection. (RB 1063). But he overlooked that the First Congress required the Secretary of the Treasury to furnish information to either House respecting "all matters" pertaining his office, a measure confirmed by Washington and drafted by Hamilton (RB 1060), and that Attorney General Cushing later advised the President that all branches of the Executive department were by "legal implication" under the same duty. (RB 1064).

Great stress is placed in the Attorney General's Memorandum on Washington's refusal in 1796 to furnish information respecting the Jay treaty to the House of Representatives. Washington, however, had delivered the documents to the Senate, and the papers were open to inspection by such members of the House as chose to go over to the Senate to read them. (RB 1085-86, 1089). The incident repays close scrutiny. Washington explained that the House had no "right" to the papers because treaty-making had been made the sole prerogative of the President and the Senate. But he emphasized that he had no disposition to withhold "any information . . . which could be required of him by either House as a right." And he indicated that such a right would have existed, for example, had the House required the papers for purposes of impeachment. (RB 1086). In short, given a relevant legislative function, Washington indicated, the House had a right, which he would honor, to see executive documents. Even so, Washington had overlooked his own precedents. In the debate preceding the House request for the Jay papers, Edward Livingston, perhaps the most learned lawyer who ever sat in the Congress, pointed out that "from the first establishment of the Constitution . . . the Executive had been in the habit of free communication with the Legislature as to our external relations." (RB 1089). I checked out his citations as well as those of his fellow-Congressmen, Lyman and Smith, and they fully confirm his statement. (RB 1089-90). On December 5, 1793, Washington wrote to both Senate and house that negotations between this country and Spain were pending, and that they would "be made known to the Legislature in confidence only." (RB 1090, n.242). In 1793, he also transmitted to Congress documents of a "confidential" nature respecting the proclamation of Neutrality. (RB 1090, n.240). Jefferson recorded in November, 1793, that he had urged Washington with respect to certain matters concerning France and England to "lay before the legislature and the public what had passed on the inexecution of the treaty," and that the President "decided without reserve" to do so. (RB 1090 n.249). Later Jefferson, as Vice President, wrote a Manual of Procedure at the request of the Senate, and stated in §52, "It has been the usage for the Executive, when it communicates a treaty to the Senate for their ratification, to communicate also the correspondence of the negotiators."

John Adams was Vice President when Washington refused the Jay papers to the House, and he commented, "I cannot deny the right of the House to ask for papers. My ideas are very high of the rights of the House of Representatives." (RB 1085). And his son, John Quincy Adams, after moving from the Presidency to the House, said that "The House had the right to demand and receive all the papers" respecting President Polk's instructions to our Minister to Mexico. (RB 1093). Both John Adams and his son had distinguished diplomatic careers and knew full well how far the need for secrecy stretched; and yet both affirmed the House's right to know. For purposes of the Senate's "consent" function, it may possibly suffice to have all documents after negotiations have been completed. But how can the Senate "advise" on the "making" of a treaty if it is kept in the dark during the negotiating process. It is hardly necessary to remind you that in The Federalist. No. 64. Hamilton remarked on Senate participation "in the making" of treaties; that James Wilson, a leading Framer, stated in the

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