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Pennsylvania Ratification Convention that "Senate and President possess the power of making treaties." 2 Elliot's Debates 506-507. The costliness of a President's neglect to take the Senate into his confidence during the negotiations was illustrated by the crashing rejection of Wilson's Covenant for the League of Nations. As Sir Ivor Jennings, a wise observer, stated:

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Negotiations with foreign powers are difficult to conduct when a lynx-eyed Opposition sits suspiciously on watch. We might have a better foreign policy if we had no Parliament, but we might have a worse. We are a free people because we can criticize freely. (RB 1291) Without full information there can be no effective criticism. Against Congress' need to know if it is to participate intelligently in the process of government is pitted what Professor Wade of Cambridge has justly described as the civil servant's occupational love of secrecy," the "official instinct of hiding as much as possible from the public gaze." (RB 1292). That failing has just been exhibited on a grand scale by the over-blown classification revealed in the recent publication of the Pentagon papers.

THE ATTORNEY GENERAL'S MEMORANDUM

The most sweeping claim of executive privilege-"uncontrolled discretion" to withhold anything and everything-was made in a Memorandum submitted by the Attorney General (per William P. Rogers, Deputy Attorney General) to the Senate in April, 1957. It is entitled "Power of the President to Withhold Information from the Congress," and is almost a verbatim reproduction of a series of articles published in 1949 in the Federal Bar Journal by Herman Wolkinson, a subordinate attorney in the Department of Justice. It has become the Bible of the Executive department notwithstanding it abounds in extraordinarily untenable claims. One example must suffice, the statement that "courts have uniformly held that the President and heads of departments have an uncontrolled discretion to withhold." The citations are completely irrelevant to Congressional requests for information; and the Attorney General concedes that the "legal problems" presented by such requests "were never presented to the courts." (RB 1101). Even with respect to a right to withhold information from a private litigant, the statement, in the words of Professor Joseph Bishop, a proponent of executive privilege, is a "remarkable and inexact assertion." And, as Professor Bernard Schwartz justly stated, it is "utterly unsupported by any case." (RB 1053, n44).

I could not content myself with out-of-hand dismissal of the Memorandum because I consider that when the chief law officers of the United States submits an opinion to the Congress on a grave constitutional conflict between the Congress and the President, the opinion carries the respect that attaches to his great office. Consequently I made a case by case study of his citations, focussing on the material closest in time to the founding of our government. The results are elaborately set forth in my study, and I believe that if you will examine that analysis you will marvel how the Attorney General came to dignify the Memorandum with his imprimatur. If this be the best case for executive privilege, it is in a sorry state.

Judicial Review

The core problem, I believe, is not whether Congress has the power to demand information from the executive branch, for that can be amply demonstrated, but how is the demand to be enforced. Some years ago the House Subcommittee on Government Information, after prolonged study, stated that this "Committee time and again has taken the position that executive privilege has no basis in constitutional law," but went on to say that "until the question is finally settled by a judicial ruling," the executive branch will continue to claim executive privilege.

Regression to self-help in any form, whether by withholding vital appropriations, by abolishing functions exercised by a recalcitrant official, or by directing the Sergeant-at-Arms to jail the recalcitrant for contempt represents an undesirable solution of conflicting claims to constitutional power. Neither branch can unilaterally decide the scope of the other's power; neither power is any more absolute than the rights protected by the First Amendment. Congress and the President are involved in a boundary dispute; and the arbiter of constitutional boundaries is the Supreme Court. With the late Senator Matthew Neely, I believe this "intolerably prolonged controversy" should be submitted to the courts. (RB 1044). That recommendation has been made in the past

by House and Senate Committees. (RB 1045 n.3). Time will not permit extended analysis of several constitutional question which such a court test would present. A detailed discussion is set forth in my study (RB 1333–62). Instead let me briefly comment on several highlights.

A preliminary question is whether a suit by Congress against an executive employee would present a "case or controversy." When one branch of the government maintains that another is unlawfully depriving it of rights conferred by the Constitution, and that charge is controverted, there is a real dispute between parties having adverse interests, the test of a "case or controversy." (RB 1339). For example, the Supreme Court stated that the Attorney General's charge that the ICC issued an order arbitrarily "alone would be enough to present a justiciable controversy." (RB 1337). In another case the Supreme Court adjudicated a dispute that was essentially "between two governmental agencies as to whether the powers of the one or the other preponderate in the circumstances." (RB 1338). And in any event, a suit "against a recalcitrant official to force him to perform a statutory [or constitutional] duty. . . is not a suit against the government," but a suit against a wrongdoer in his "individual" capacity. (RB 1341).

It seems almost self-evident that Congress would have "standing to sue" to assert impairment of a vital function. The Supreme Court decided that the Secretary of the Interior had "standing" to attack an order of the Federal Power Commission that allegedly impaired a function confided to the Secretary. (RB 1347). Any doubts on this score can be resolved by a statute that expressly confers standing on both the Congress and the President to bring such suits. (RB 1348)

Some writers have assumed that the courts will not adjudicate conflicting claims of power by the legislative and executive branches because they present a "political" and therefore non-justiciable question. (RB 1349). The cases seem to me to indicate the contrary, and are discussed in my study. (RB 1350). Moreover, the "reapportionment" case, Baker v. Carr, and Powell v McCormack, where the Court held invalid the exclusion of Congressman Adam Clayton Powell from the House, have drastically undermined the "political question" doctrine. If, as the Court has again and again declared, it is the province of the Court to enforce constitutional boundaries, as the Court was at pains to state in the pioneer "political question" case, Luther v. Borden (RB 1354), and repeated in Powell v. McCormack, it can hardly abdicate when the boundaries are a subject of dispute between Congress and the President. Adjudication of constitutional boundary disputes between State and State, and between a State and the United States, are familiar. (RB 1351) Why is a boundary dispute between Congress and the President more "political?" "Some arbiter," said Justice Jackson, "is almost indispensable where power. is balanced between different hands, as the legislative and executive. Each unit can not be left to judge the limits of its own power." (RB 1354–55). Jackson put the matter in a nutshell.

To my mind, the most important contribution that this Committee can make is to perfect the cast against the Attorney General's exaggerated claims, and then to determine whether the issue of executive privilege should be submitted to the courts.

Mr. BERGER. Now, I am ready for questions.

Senator ERVIN. You suggested this morning that there was an historical explanation for the fact that the early statute drafted by Alexander Hamilton was restricted in its application to the Treasury Department instead of being applicable to all the then existing departments. I think it would be of interest for us to know why that statute requiring the Secretary to report to the Congress upon its request was so restricted.

Mr. BERGER. This is set forth at length in my study. I will summarize it.

The real problem at the time was that the finances were in chaos. Congress was sorely troubled by this particular problem. And there was a, let me call it Machievellian, scheme by Hamilton. Hamilton really wanted to be in a position to intrude, to offer his advice. He

wanted to have a pipeline into the Congress, so he could come in and advise the Congress about financial matters. Well, that touched off a great debate because some said, we don't want him intruding. But everybody agreed that Congress had the right to call on him for information. So they made a compromise; they said, we will let him come in when we call for him. That is how the express Treasury provision originated.

Now, there was no similar problem in foreign affairs. Every department was set up in the most casual manner imaginable. The only thing debated in foreign affairs was the removal power, the great debate about the President's power to remove subordinates. But there wasn't a word about secrecy. Then too you had the precedent from the Continental Congress which required the Secretary of Foreign Affairs to lay everything open. So, the first Congress was concerned with only one problem in foreign affairs; the removal power. With the Treasury Department, they were more concerned with warding off Hamilton's officiousness. The provision for a call for information was merely designed to bar Hamilton's unsought intrusions. No such problem arose in the other departments.

Senator ERVIN. Is it a fair statement of the conclusion that your study has reached to say that Congress has the power to call upon the executive branch of the Government for information, which is related to the performance of any constitutional duty imposed upon the Congress, or to the exercise of any constitutional power which was reposed in the Congress.

Mr. BERGER. Yes, sir; I would say so.

Senator ERVIN. You also point out-I think exceedingly well— that you cannot leave it to any department of the Government, either the executive branch or the legislative branch to be the final judge of what its powers are in this respect.

Mr. BERGER. Right, sir; and with the practical setup today, you have everyone in the executive department, saying, we will decide what Congress has to know, be it for investigation of misconduct and inefficiency, or the need to appreciate. So, they decide practically what your powers_are.

Senator ERVIN. I mentioned this morning, during the testimony of another witness, some of the problems that the Judiciary Subcommittee on Constitutional Rights has had with the Department of the Army in its effort to investigate the surveillance of civilians formerly conducted by the Department. When information was sought by the subcommittee, the Department of the Army informed them that the Department did not think the furnishing of that information to the congressional committee was appropriate. Do you think the Department of the Army has any power to determine what is appropriate for a congressional committee to receive?

Mr. BERGER. No; I will go further; I think it is presumptuous. I attempted by studying at the Executive power to find out what this claim rests on. I studied everything the executive branch has written about it, and I never found any argument that stands up. The Executive cannot decide what is appropriate for you to know. Senator ERVIN. Do you think that when a congressional committee. is convinced that a particular official in an executive department has personal information concerning matters which are relevant to an

investigation it is conducting, the congressional committee has the right to insist that that particular individual be allowed to come and testify before the committee?

Mr. BERGER. I would say so.

Senator ERVIN. Is there anything in your study of the constitutional precedents on this subject that supports the conclusion that a congressional committee is entitled to receive information only through the agency of an official selected by an executive department? Mr. BERGER. I have never found any evidence to that effect, because the learning is that the Congress can call on anybody that it selects.

May I remove this from the realm of opinion, because, as I said earlier, Senator, no more weight should attach to my opinion, than can be derived from the evidence in support of it. If you will give me a moment, I think I can find a statement both by Andrew Jacksona pretty stiff-necked fellow-and by Presidents Polk and Buchanan. Let me see if I can put my finger on it.

I happen to put my finger on Buchanan first. Here is Buchanan, one of the late ones. This was the House Resolution which related to alleged abuses in post offices, Navy Yards, public buildings and public works. He stated to the House: "In such cases inquiries are highly proper in themselves and belong equally in the Senate and the House, as an incident to their legislative duties and being necessary to enable them to discover and to provide the appropriate legislative remedies for any abuses which may be ascertained."

When Congress went after St. Clair did they have to talk through the medium of the President? Jackson made an even stronger statement to the effect that when the conduct of even the President is in question "I cheerfully acknowledge the broad constitutional power to investigate it."

Senator ERVIN. I was very much interested in your pointing out that when Chief Justice Marshall sat as a Circuit Justice in the Aaron Burr Case, he stated that even the President is subject to the subpena power.

Mr. BERGER. You will find the language which says that quoted in my study, that isn't an opinion, that is a fact, set out in his own language. It was a historic confrontation. And I may say, there have been some varied readings of it. You can read it for yourself, you are a fine constitutional lawyer and can form your own judgment. And I am confident that you will conclude on the basis of what I have quoted from Marshall, that the President must produce every document necessary to the defense even if it is embarrassing. And if the President's attendance is required he has to appear.

Senator ERVIN. I take it that your study has convinced you beyond doubt that a congressional committee has the power to issue a subpena to obtain compulsory attendance of an executive official whom the Committee has reasonable grounds to believe has personal knowledge of a matter that the committee is rightfully inquiring into.

Mr. BERGER. I would say I have no doubts about that. The core of the problem isn't that, Senator. After you have done it, and he is recalcitrant, where do you go from there? If he were a private person you would as in earlier cases simply send the sergeant at arms to seize him and put him in the District jail. Let's take a

concrete case. You have the fairly recent provision in an appropriations bill saying that none of the moneys appropriated should be spent on ground troops in Cambodia. Suppose it comes to your attention that moneys have been spent on such ground troops, and you ask Secretary Laird to appear and testify about that. That provision is a law on the books. And Mr. Laird says, I decline to come in: I claim executive privilege. I have no hesitation in saying, No. 1, you can hold him in contempt. No. 2 directs your sergeant at arms to take him in custody. I should hope that Mr. Laird would rather appeal to the Court, than to a platoon of soldiers. Or if you feel that Mr. Laird has acted in defiance of law, you are entitled to impeach him. He is a lawbreaker; and the next question is, do you have to impeach him before you investigate?

Well it is recognized that you don't have to. In Washington's refusal of the Jay Treaty documents to the House, he said, you didn't state that you have the purpose of impeachment in mind. For that, he intimated, I would have furnished you the documents.

You are entitled to say, before we impeach you, we want to know, have you done these things, we want to know everything you have done, because you are in flagrante derelicto. Congress has that added

power.

Senator ERVIN. Your testimony and your article in the UCLA Law Review were very helpful and very illuminating, because you point out some ways in which Congress can exercise its rights without resorting to left-handed ways to accomplish the purpose. And I take it that your study of the recent Supreme Court cases on political questions leads you to believe that the Court will undertake to decide cases arising from conflicts between the Congress and the Executive. Mr. BERGER. Let me remind you of one more case: U.S. v. Klein, 1867. There Congress passed an act which restricted the President's pardoning power. Thus the Congress was in conflict with the President. The Court intervened and said, there is no power in the Congress to do that, a constitutional controversy, political in essence, particularly in the reconstruction period you know, this was just boiling with politics. Let the court decide it.

I would say emphatically, it is my deep conviction, that the political question doctrine will play a small role; and I say that because this is a question I have just restudied in connection with impeach

ment

Senator ERVIN. I classified the Klein case and the ex parte Milligan case as two of the most courageous and soundest decisions ever handed down by the Supreme Court.

Senator Mathias?

Senator MATHIAS. Just one question, Mr. Chairman.

Mr. Berger has referred to a legislative address to this problem and he suggests the mechanics of the concurrent resolution. And he has also referred to choosing a right case to take to court.

Which approach do you think has priority?

Mr. BERGER. My own feeling first, and I say this with considerable reluctance, because I am so completely sympathetic with Senator Fulbright's objectives. I thought he made a magnificent presentation of the central problem-but he is postponing, gentlemen, a confrontation which can't and won't be postponed. Because after you pass

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