Congress, by the press, or by the public at large, or that the President might be embarrassed if he had to explain why he did not follow their recommendations. Again, the aim is not for secrecy of the end product-the ultimate Presidential decision is and ought to be a subject of the fullest discussion and debate, for which the President must assume undivided responsibility. But few would doubt that the Presidential decision will be a sounder one if the President is able to call upon his advisers for completely candid and frequently conflicting advice with respect to a given question.

The recent episode of the publication of the so-called "Pentagon Papers" by the press has focused public attention on the Executive decision-making process. It has been urged in some quarters that the spotlight of publicity be focused, not upon the responsible head of the executive branch who must bear the ultimate responsibility for the decision, but upon his subordinate advisers, in order that they may be subjected to the various cross-currents of public opinion in formulating their recommendations to the President. Any decision to move in this direction would represent a sharp departure from the distribution of powers contemplated by the Constitution and which, Mr. Chairman, I take it this particular subcommittee sits in judgment upon. The executive branch of the Federal Government has one head, and that is the President of the United States. It is he, and he alone, who must face the electorate at the end of his 4-year term in order to justify his stewardship of the Nation's highest office. The notion that the advisers whom he has chosen should bear some sort of a hybrid responsibility to opinion makers outside of the Government, which notion in practice would inevitably have the effect of diluting their responsibility to him, is entirely inconsistent with our tripartite system of government. The President is entitled to undivided and faithful advice from his subordinates, just as Senators and Representatives are entitled to the same sort of advice from their legislative and administrative assistants, and judges to the same sort of advice from their law clerks. The notion that those engaged in directly advising members of any of the three branches of the Government should have their work filtered through a process of analysis and criticism by columnists, newspaper reporters, or selected members of the public before that advice reaches their constitutional superior is entirely at odds with any system of responsible popular government.

I would add, finally, that the integrity of the decision-making process which is protected by executive privilege in the executive branch is apparently of equal importance to the legislative and judicial branches of the Government. Committees of Congress meet in closed session to "mark up" bills, and judges of appellate courts meet in closed conference to deliberate on the result to be reached in a particular case. In each of these instances, experience seems to teach that a sounder end result-which will be the fullest object of public scrutiny-will be reached if the process of reaching it is not conducted in a goldfish bowl. Indeed, if additional precedent were warranted, the decision of the Founding Fathers to conduct in secret all of their deliberations at the Constitutional Convention in Philadelphia in 1787 appears to be very much in point.

I now turn to the specific provisions of S. 1125 in its March 5 version. The bill provides in a nutshell first that where an employee of the executive branch is summoned to testify or produce documents before Congress or a committee or subcommittee, he shall not refuse to appear on the ground that he intends to assert executive privilege and, second, that executive privilege may be claimed only on the basis of a written instruction of the President that the employee assert executive privilege. Senator Fulbright's introductory statement indicates that the bill has been prompted, at least in part, by the refusal of Presidential Assistant Kissinger to appear before the Senate Foreign Relations Committee.

Dr. Kissinger's position, of course, is not unprecedented. There have been a number of instances in which Presidential advisers have failed to appear before congressional committees on the ground that the only information they could furnish resulted from conversations with, or advice given to, the President.

Refusals of such type were made by Presidential Assistant John Steelman during the Truman administration; Presidential Assistant Sherman Adams during the Eisenhower administration; and Presidential Assistant DeVier Pierson and Under Secretary of the Treasury Barr during the Lyndon Johnson administration."

Presidential Assistants, of course, have testified with respect to their private affairs. Donald Dawson did during the Truman administration in connection with an investigation of the RFC, and Presidential Assistant Sherman Adams did during the Eisenhower administration.

I then in my prepared testimony, Mr. Chairman, advert in some detail to the fact that these precedents are all of recent origin, but that that does not indicate to me that the executive branch is becoming less cooperaive, but that the legislative branch has perhaps in the last 30 years changed its form of obtaining information from the executive branch. It used to be largely a matter of written. interrogatories. In the past 25 or 30 years, it seems to have shifted to personal appearances and the taking of oral testimony of the witnesses. I think there is no question but that this has more potential for producing friction on occasion and also for producing the type of questions that may make the witness feel that perhaps executive privilege should be considered.

I now will return to my prepared statement at page 31. The manner of claiming executive privilege is basically a matter. of procedure. It is up to the President to determine how he will raise it and up to each House of Congress or each committee under their rulemaking powers how it is to be presented before them. If there should be a conflict between the executive and legislative branches, an appropriate compromise between the two branches of the Government will have to be worked out. Moreover, the bill offered by Senator Fulbright deals largely with matters of congressional procedure allocated by article I, section 5, clause 2 to each House, for determination by that House, rather than to be resolved by legislation. Hence, it would seem necessary to include in it a reservation similar to the one in section 101 of the Legislative Reorganization Act of 1970, recognizing the full power of each House to modify the provisions of the bill.

The bill would provide first that no Government witness may refuse to appear before a committee on the ground that he intends to assert executive privilege and second that executive privilege may be asserted only on the basis of a statement personally signed by the President requiring that the officer assert executive privilege. We have one objection to the terminology of the bill which may appear to be a matter of form but to us is fundamental. The bill is drafted as if the Government witness were to assert executive privilege. The executive privilege, however, is the Presdient's, not the witness' privilege; the President, not the witness, is the one who must decide whether or not to assert it.

The first paragraph of the bill would require every witness to appear before a committee even if executive privilege is claimed with respect to all the testimony he is supposed to give or all the documents he is supposed to produce.

We realize, of course, that in judicial proceedings a witness who claims privilege must normally appear in court and claim it in person. But there are exceptions to that rule. We refer to a case where the chairman of the Federal Trade Commission had been subpoenaed to give testimony and the subpoena was quashed by the court on the ground that everything which he might testify to which would be relevant to the inquiry was a matter about which he could not be compelled to testify; therefore, the judge said that to require him to appear and make the claim in person would have been a misuse of his time.

These considerations, of course, multiply when the Government witness is subpoenaed not to testify but only to produce documents. Under this bill, as drafted, the committee chairman would not even have the power to excuse a witness from appearing in person in these circumstances. We believe that any legislation of this sort should distinguish between those few executive branch witnesses whose sole responsibility is that of advising the President, on the one hand, and the executive branch witness on the other whose responsibilities include the administration of departments or agencies established by Congress, and from whom Congress may quite properly require extensive testimony. The former should not be required to appear at all, since all of their official responsibilities would be subject to a claim of privilege; the latter may be required to appear and to invoke executive privilege where appropriate only in response to particular questions.

The bill would further provide that executive privilege can be claimed only on the basis of a statement personally signed by the President requiring that the officer assert executive privilege as to the testimony or document sought. The bill thus would impose upon the President a requirement as to the form in which he claims privilege. I realize that Presidents have at times cast their claim of privilege in the form of a letter to a department head prohibiting the giving of testimony. I seriously question whether Ĉongress should go further than to satisfy itself that the claim is made with the authorization of the President, and allow the President leeway to decide how he will satisfy Congress of that fact.

The bill does not cover a situation which arises occasionally in the course of testimony before a committee. A Government witness

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may feel that a specific question, especially an unanticipated one, or a specific demand for a document raises a question of executive privilege. President Nixon's March 24, 1969 memorandum provides that in such a situation the witness shall request the committee to hold the demand for information in abeyance until the President can make his determination as to whether he will or will not invoke executive privilege.

There is no reason, of course, why Congress is necessarily bound by President Nixon's memorandum. But it seems to me that this is an oversight in the first bill that may be corrected by the July 29 amendment to it. In other words, when something comes up in oral testimony, particularly an unanticipated question, the witness may feel this is something that the President might want to claim executive privilege on. Now, if you leave it to the witness to say, "I claim executive privilege," I think Congress is going to end up getting a good deal less testimony than it would otherwise.

On the other hand, it is not fair to the witness to force him to fish or cut bait right on the spot without having had a chance to present the matter to the President and see if the President wishes to claim executive privilege. The President, knowing that the claim of executive privilege is an unpopular one, both within and without Congress, may be much more circumspect in lending his authority to the claim than an individual witness would be if he is left to decide the claim for himself. For this reason, we feel the bill should provide an opportunity for the witness to present the questions to the President for the latter's determination.

Because of these reasons, the Department of Justice opposes the enactment of the bill in the March 5 version, and Mr. Chairman, I simply have not had time to address myself to the modification to know whether it meets the objections or not.

That concludes my testimony.

(Prepared statement follows:)

STATEMENT OF WILLIAM H. REHNQUIST, ASSISTANT ATTORNEY GENERAL,
OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE

Mr. Chairman: I am pleased to appear before the Committee as the Attorney General's representative to testify on S. 1125, 92d Congress, 1st Session, a bill, introduced by Senator Fulbright, to amend title 5, United States Code, with regard to the exercise of executive privilege. In reading your letter of June 18, 1971, Mr. Chairman, I have formed the impression that these hearings are not to be limited to the specific provisions of S. 1125, but that they are to deal more broadly with the question of executive privilege as a whole. In your words, the purpose of these hearings is to afford the executive and the legislative branches an opportunity to come together and find some common ground that will more clearly define the powers, duties, and prerogatives of the two branches in this sensitive area.

I have tried to frame my testimony in that spirit. We are dealing not with a subject such as the law of real property where the metes and bounds are quite precisely fixed, but with a broad area of government in which both the legislative and executive branches have claims which are both legitimate and often conflicting. The historic precedents to which I shall subsequently refer are not the equivalent of binding judicial cases from courts of last resort; they do, however, indicate past practices of one branch which have been acceded to by the other. Discussion of the subject will doubtless profit from the spirit embodied in the quotation from the Federalist referred to by Senator Fulbright in his introductory statement:

"Neither the executive nor the legislature can pretend to an exclusive or superior right of settling the boundaries between their respective powers."

I shall first treat executive privilege in general, and then deal with the more specific question presented by S. 1125. I will, of course, to the extent of my ability, be happy to respond to questions about other matters.

The docrine of executive privilege, as I understand it, defines the constitutional authority of the President to withhold documents or information in his possession or in the possession of the executive branch from compulsory process of the legislative or judicial branch of the government. The Constitution does not expressly confer upon the executive any such privilege, any more than it expressly confers upon Congress the right to use compulsory process in the aid of its legislative function. Both the executive authority and the congressional authority are implicit, rather than expressed, in the basic charter. Thus, the Constitution nowhere sets out in so many words either the power of Congress to obtain information in order to aid it in the process of legislating, nor to the power of the executive to withhold information in his possession the disclosure of which he feels would impair the proper exercise of his constitutional obligations. Yet, both of these rights are firmly rooted in history and precedent.

It is well established that the power to legislate implies the power to obtain information necessary for Congress to inform itelf about the subject to be legislated, in order that the legislative function may be exercised effectively and intelligently. McGrain v. Daugherty, 273 U.S. 135, 175 (1927) upheld this authority against a private citizen who was the brother of a former Attorney General of the United States.

Conversely, the authority of the executive branch to withhold information from compulsory process under the doctrine of executive privilege has been sustained by the courts in the case of United States v. Reynolds, 345 U.S. 1, 8 (1953). That case involved a claim of executive privilege against compulsory process of the judicial branch, rather than the legislative branch, but it is significant that the Supreme Court there recognized the existence of such a privilege. The Court did not accord the executive carte blanche in asserting the claim of privilege, but the Court's description of the extent of judicial review of the propriety of the claim indicates that such a review would be a narrow one. The Court specifically provided that such judicial determination would have to be achieved “without forcing a disclosure of the very thing the privilege is designed to protect," 345 U.S. at p. 8, and went on to say that where the government makes a prima facie showing that the evidence involved military matters which should not be divulged in the interest of national security, "the Court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the

evidence, even by the judge alone in chambers." 345 U.S. at p. 10. While the Supreme Court has recognized the authority of Congress to use compulsory process in aid of a legislative investigation, and has likewise recognized the authority of the executive branch to assert a claim of privilege against compulsory process where the public interest would be harmed by disclosure, there is no authoritative decision settling the extent to which Congress may compel the production of documents or testimony on the part of members of the executive branch. One of the reasons for this lack of precedent may be that the relationship between the two branches during most of our country's existence has been not that of conflict, but of cooperation, albeit a cooperation which was on occasion an uneasy one. The vast majority of requests by congressional committees for testimony from the executive branch are freely complied with, and every year hundreds of executive branch witnesses appear and testify before committees of the Congress. It is only in the rare case-indeed, the very rare case-the case in which a committee of Congress after mature consideration feels that information in the possession of the executive branch is essential to the discharge of the legislative function, and where the executive feels that the constitutional principle of separation of powers would be infringed by its furnishing of such information-that the question of executive privilege arises. Here I turn, as did the Court in McGrain v. Daugherty, to the historical usage of the two branches of the federal government in attempting to outline the nature of the privilege.

The claim of the executive to withhold information from Congress goes back to the administration of President Washington. In 1792, the House of Representatives embarked on its first effort to investigate the conduct of the executive branch in connection with the ill-fated expedition of General