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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 its deliberations at the Constitutional Convention of 1787, appears to be very much in point.

While reasonable men may dispute the propriety of particular invocations of executive privilege by the various Presidents during the nation's history, I think most would agree that the doctrine itself is an absolutely essential condition for the faithful discharge by the executive of his constitutional duties. It is, therefore, as surely implied in the Constitution as is the power of Congress to investigate and to compel testimony.

I now turn to the specific provisions of S. 1125. The bill provides in a nutshell first that where an employee of the executive branch is summoned to testify or produce documents before Congress as 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 (Investigation of the GSI Strike, Hearings before a Special Subcommittee of the Committee on Education and Labor, House of Representatives, 80th Cong., 2d Sess., pp. 347-353); Presidential Assistant Sherman Adams during the Eisenhower Administration (Power Policy, Dixon-Yates Contract, Hearings before the Subcommittee on Antitrust and Monopoly of the Committee on the Judiciary, United States Senate, 84th Cong., 1st Sess., pp. 676, 779); and Presidential Assistant DeVier Pierson and Under Secretary of the Treasury Barr during the Lyndon Johnson Administration (Nominations of Abe Fortas and Homer Thornberry, Hearings before the Committee on the Judiciary, United States Senate, 90th Cong., 2d Sess., pp. 1347, 1348).

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 (Investigation of Regulatory Commissions and Agencies, Hearings before a Subcommittee of the Committee on Interstate and Foreign Commerce, House of Representatives, 85th Cong., 2d Sess., pp. 3711-3740).

The circumstance that these examples are all of relatively recent date, beginning in the 1940s, does not mean that the executive branch has become less cooperative with Congress. To the contrary, it is the result of new Congressional investigative techniques which have departed radically from the normal procedures which prevailed during the first 150 years of our life under the Constitution.

Beginning with the St. Clair investigation of 1792, to which I have referred above, until about 1940, Congress and its committees normally obtained their information from the executive branch not by way of live testimony of the Department heads, but through resolutions of inquiry in which the appropriate official was requested or directed to communicate information or documents to Congress. Hinds, Precedents in the House of Representatives, Vol. III, pp. 178-179. Hinds, which was published in 1907, stated (at p. 179) that "cabinet officers frequently appear before committees of the House." but he could give only three instances of that practice. Moreover, virtually all, if not all, of the incidents in which executive privilege was claimed prior to 1940 resulted from resolutions of inquiry rather than oral testimony of representatives of the executive branch.

In addition, Hinds' Precedents discloses a most significant limitation on resolutions of inquiry in the House of Representatives. In the absence of a similar collection of Senate precedents, we do not know whether corresponding rules prevailed in that body. A resolution of inquiry had to be limited to facts, i.e., whether or not certain action had been taken by the executive, and could not call for opinions, or the reason why the executive had taken a certain course of action. Hinds, op. cit. Vol. III, p. 174; Vol. VI, pp. 590–597. The constitutional and practical significance of the limitation of resolutions of inquiry to facts appears from an incident during the Administration of President Theodore Roosevelt. A resolution of inquiry directed the Attorney General to inform the Senate whether certain antitrust proceedings had been instituted and, if not, to state the reason for that omission. The President advised the Senate:

“*** I feel bound, however, to add that I have instructed the AttorneyGeneral not to respond to that portion of the resolution which calls for a statement of his reasons for non-action. I have done so because I do not conceive it to be within the authority of the Senate to give directions of this character to the head of an executive department or to demand from him reasons for his action. Heads of the executive departments are subject to the Constitution, and to the laws passed by the Congress in pursuance of the Constitution, and to the directions of the President of the United States, but to no other direction whatever." 43 Cong. Rec. 527, at 528.

The resolutions of inquiry thus resembled the method in which the courts take evidence from high government officials. There, too, such testimony is usually taken by interrogatories. "Subjecting a cabinet officer to oral deposition is not normally countenanced." People v. United States Department of Agriculture, 427 F. 2d 561, 567 (C.A.D.C., 1970); Capitol Vending Co. v. Baker, 36 F.R.D. 45, 46 (D.C.D.C., 1964); see also 25 Op. A.G. 326, 331 (1905). Similarly, the courts do not permit an inquiry into the reasons mental processes of an administrative officer which were the basis of his decision. Morgan v. United States, 304 U.S. 1, 18 (1938); United States v. Morgan, 313 U.S. 409, 422 (1940).

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Beginning with the 1940s, Congressional committees have departed from the 150-year constitutional custom of seeking information for the executive branch by way of resolution of inquiry and have required the personal appearance of Cabinet members at their hearings. Information is no longer obtained in a formal manner by asking for papers from a coordinate branch but rather by way of examining and cross-examining cabinet members and other high officers of the executive branch, frequently as if they were hostile witnesses. Moreover, oral examination encourages the probing into issues such as motive, consultations among decision makers, discussions with the President, and advice received from subordinates. Questions of that type require the invocation of Executive privilege and thus are bound to increase the friction between those two branches of Government.

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 those rules, an appropriate compromise between the two branches of the Government will have to be worked out. Moreover, the bill deals largely with matters of Congressional procedure allocated by Article I, section 5, clause 2 to each House, rather than legislation. Hence it would be 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 President's, not the witness' privilege; the President, not the witness, asserts 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. According to Senator Fulbright's explanatory statement, this provision is designed

"To require an official such as the President's Assistant on National Security Affairs to appear before an appropriate congressional committee if only for the purpose of stating in effect: 'I have been instructed in writing by the President to invoke executive privilege and here is why . . .."

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. Subpoenas have been quashed where it appeared that all the testimony to be elicited from a witness would be privileged, especially where the witness was the head of a Government agency. In a case in which the Chairman of the Federal Trade Commission had been subpoenaed to be questioned about his motives and considerations which induced him to take certain discretionary actions, Judge Holtzoff quashed the subpoena on the following grounds:

"The Chairman of the Federal Trade Commission would be entirely within his rights if he appeared at the taking of the deposition and declined to answer such questions. However, it is very burdensome to insist that the head of a government agency respond in person to subpoenas such as this, if it appears that the matters to be inquired into are not subject to interrogation, because it is contrary to the best interest of the public to require the heads of government departments to fritter their time away appearing at the taking of depositions merely for the purpose of declining to answer. The burden that would be placed upon heads of departments and heads of agencies would completely interfere with the transaction of public business." Federal Trade Commission v. Bart Schwartz, International Textiles, Ltd., U.S.D.C. for the District of Columbia, Misc. No. 39-57, December 9, 1959. These considerations, of course, multiply when the Government witness is subpoenaed not to testify but only to produce documents. Under this bill 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 should distinguish between those few Executive Branch witnesses whose sole responsibility is that of advising the President, on the one hand, and the witness 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. Examples are President Eisenhower's letter to the Secretary of Defense during the Army-McCarthy dispute and President Kennedy's letters to the Secretary of Defense and the Secretary of State during the Speech Censoring Investigation to which I already have referred. But it will be noted that President Nixon's Memorandum of March 24, 1969, provides for an oral claim of privilege. I seriously question whether Congress should go further than to satisfy itself that the claim is made with the authorization of the President.

The bill does not cover a situation which arises occasionally in the course of testimony before a committee. A Government witness 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 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. The memorandum enjoins the witness to indicate that the purpose of such request is to protect the privilege pending that determination and that the request does not constitute a claim of privilege. The bill

can be construed as requiring a witness to testify forthwith unless he can produce a claim of privilege signed by the President himself and that nothing else will excuse him. We believe that legislation which seeks to cover the relation between the two branches of the Governmnt should at least eliminate this source of potential conflict.

This would not only protect the witness, but probably assure the Congressional committee of more answers in the long run. The witness himself, if allowed to claim privilege, may resolve all doubts in favor of such claim. 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. The bill should provide for an opportunity for the witness to present the questions to the President for the latter's determination.

The Department of Justice opposes the enactment of this bill as presently drafted.

Senator ERVIN. The subcommittee understands that you were not asked to comment on the modified bill and have not had the time to do so. But your statement has been so helpful that I would appreciate it very much if you would study the recent amendments to the bill offered by Senator Fulbright and give us your analysis of the modified bill by letter at some time.

Mr. REHNQUIST. I will be happy to do that, Mr. Chairman.

Senator ERVIN. I want to commend the scholarly nature of your statement. It is a very fine statement of the history and the philosophy which underly the positions which you have taken. I think I would like to summarize your views as I interpret them.

First and foremost. It is your view that the question of invoking the executive privilege is a question to be answered by the President himself rather than by some subordinate in the executive branch of the Government.

Mr. REHNQUIST. Unquestionably.

Senator ERVIN. It is further your position that the legislative branch of the Government-that is, the Congress-needs much information in the possession of the executive branch in order to legislate, as stated in the McGrain case, effectively and intelligently. Mr. REHNQUIST. Certainly.

Senator ERVIN. It is further your position, as I understand it, that the executive branch of the Government should respond to requests from the legislative branch of the Government for information except in certain restricted cases where the Executive feels that the disclosure of that information would not be compatible with the national interest.

Mr. REHNQUIST. Yes, it is.

Senator ERVIN. I have just been notified that I have to go to the Senate floor and vote, but I will be back as quickly as possible. There are several other questions that I wish to ask you.

(Brief recess)

Senator ERVIN. Mr. Rehnquist, as I understand your testimony, you specify what you consider to be the overriding reasons which empower the President to invoke executive privilege and, on that basis, to refuse to comply with a congressional request for information. You point out that during the course of history, this executive privilege has been employed in a number of instances with respect to military affairs and matters of foreign policy. As I understand your position, there are instances in which information

on particular plans with respect to military operations should be withheld because the disclosure would tend to prevent the successful completion of military operations or might under the circumstances jeopardize the security of the armed forces.

Is that a fair statement of your position in that respect?
Mr. REHNQUIST. Yes, it is, Mr. Chairman.

Senator ERVIN. I take it that a corollary of that position would be that after this information relating to military affairs has become history and its disclosure no longer jeopardizes the success of the contemplated military operations or security of the armed forces, there would be no occasion for the further withholding of information of that nature?

Mr. REHNQUIST. If one could agree on a definition of when it has become history. And so long as the disclosure would not come within some other branch of the traditional assertion of the privilege. I would agree with you.

Senator ERVIN. You take the position that in the successful conduct of foreign policy or foreign affairs generally, there is in many instances a need for secrecy in order to successfully carry out the matters involved.

Mr. REHNQUIST. Yes, particularly in the negotiation of agreements. Senator ERVIN. I take it that your position is that the President has the discretionary power to withhold information pending the completion of negotiations, but that, of course, the Congress--and necessarily the Senate-is entitled to the benefit of the complete record of the end product achieved by the negotiations.

Mr. REHNQUIST. Certainly, the treaty itself.

Senator ERVIN. Do you concede that there are circumstances under which some information accumulated during the negotiations which throws light on the necessity and the desirability of the treaty should be made accessible to the appropriate congressional committee, at least on a confidential basis, for its members to weigh in determining whether the treaty, for example, should or should not be ratified?

Mr. REHNQUIST. Well, I think the Executive would fail to furnish that at its peril, since presumably, the Foreign Relations Committee would be sitting in judgment as to whether the treaty ought to be ratified or not and that the Executive has the burden of proof, of persuading the committee and the Senate as a whole.

Senator ERVIN. Now, as I construe your position, there are two other areas to which the executive privilege may apply. One is the statements or recommendations made in the course of the decisionmaking process, and the other is information which has been obtained by the executive branch by investigation with a view to determining whether, for example, criminal prosecutions should be initiated or whether the national security is threatened.

Mr. REHNQUIST. Yes. I have cited those as the four principal historical examples. I would not want to be thought to say that that is an exhaustive catalog, but those are certainly the four principal

areas.

Senator ERVIN. As I construe your testimony, the decisionmaking process category would apply to communications between presidential advisers and the President and also to communications made.

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