"Mr. President, in all seriousness, the negotiation of a treaty is an Executive function, according to my understanding. The President may abuse his functions, and, to tell the truth, I think he often does.

"The Senate's responsibility, of course, is to advise and consent or to reject the result of the negotiations.

"These two functions are, of course, both necessary in treaty making; and it is wise for the President and it is wise for the Senate to cooperate just as fully as possible. The President ought to supply to the Senate all the information that is available, and the Senate ought to have all the information that is available for the intelligent performance of its duties; but if the President is of the opinion that it would be harmful to the public interest, that it would disturb our relations with foreign powers to supply data to the Senate, there is no appeal from that decision, in my judgment, except through an election; and any time anybody here wants to appeal in that form against the present administration, God knows he will find me according him cordial support. [Laughter.] But we can not compel the President, by any legal or other process, to produce papers connected with the negotiation of a treaty. He has the power to hold them in absolute secrecy as incident to the performance of his constitutional function-the negotiation of treaties."

The President did not furnish the documents he thought it unwise to disclose. Corwin, The President's Office and Powers, 1787-1957 page 429 (1957).

A dicta sometimes cited in support of the argument that neither House of Congress has authority to inquire into the conduct of foreign affairs is found in United States v. Curtis-Wright Corp., 299 U.S. 304, 319 (1936) where Mr. Justice Sutherland wrote:

"Not only, as we have shown, is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it."

*

"It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations-a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution. It is quite apparent that if, in the maintenance of our international relations, embarrassment-perhaps serious embarrassmentis to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiations and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results. Indeed, so clearly is this true that the first President refused to accede to a request to lay before the House of Representatives the instructions, correspondence and documents relating to the negotiation of the Jay Treaty-a refusal the wisdom of which was recognized by the House itself and has never since been doubted."

Occasionally, the Chief Executive has declined to furnish Congress with information on other subjects which were alleged to be outside the jurisdiction of either House. In 1833, the Senate called upon President Jackson to supply a copy of instructions he was reported to have read at a Cabinet

meeting concerning withdrawal of deposits from the United States Bank, Congressional Globe, twenty-third Congress, first session 20 (1833).

Jackson declined to submit the paper, saying, id. at 23

"The Executive is a coordinate and independent branch of the Government, equally with the Senate; and I have yet to learn under what constitutional authority that branch of the legislature has a right to require of me an account of any communication, either verbally or in writing, made to the heads of departments, acting as a cabinet council. As well might I be required to detail to the Senate the free and private conversations I have held with those officers on any subjects relating to their duties and my own." Jackson also declined to inform the Senate of the charges, if any, made against the official conduct of Gideon Fitz which had caused his removal as surveyor general south of the State of Tennessee. Characterizing the Senate's demand as "another of those calls for information made upon me by the Senate which have, in my judgment, either related to the subjects exclusively belonging to the executive department, or otherwise encroached on the constitutional powers of the Executive" he insisted that "The President in cases of this nature possesses the exclusive power of removal from office, and, under the sanction of his official oath and of his liability to impeachment, he is bound to exercise it whenever the public welfare shall require On no principle known to our institutions can he be required to account for the manner in which he discharges this portion of his public duties, save only in the mode and under the forms prescribed by the Constitution." 2 Richardson, Messages and Papers of the President 1351 (1896)

When the House of Representativees requested President Tyler to furnish the names of members of the Twenty-sixth and Twenty-seventh Congresses who had been applicants for office, he declined to furnish the information, 10 Congressional Globe 349 (1842), saying:

"In my judgment, a compliance with the resolution which has been transmitted to me would be a surrender of duties and powers which the Constitution has conferred exclusively on the Executive; and, therefore, such compliance cannot be made by me, nor by the heads of Departments by my direction. The appointing power, so far as it is bestowed on the President by the Constitution, is conferred without reserve or qualification. The reason for the appointment, and the responsibility of the appointment, rest with him alone. I cannot perceive any where in the Constitution of the United States any right conferred on the House of Representativees to hear the reasons which an applicant may urge for an appointment to office under the Executive Department, or any duty resting upon the House of Representatives by which it may become responsible for any such appointment.” In 1876 the House of Representatives requested the President, if, in his opinion, it was not incompatible with the public interest, to inform it whether, since March 4, 1869, any executive acts had been performed at a distance from the seat of Government. 4 Congressional Record 2158 (1876). President Grant declined to supply the information on constitutional ground, rather than on a finding that disclosure would be incompatible with the public interest Id. at 2999. He wrote:

"I have never hesitated and shall not hestitate to communicate to Congress, and to either branch thereof, all the information which the Constitution makes it the duty of the President to give or which my judgment may suggest to me or a request from either House may indicate to me will be useful in the discharge of the appropriate duties confided to them. I fail, however, to find in the Constitution of the United States the authority given to the House of Representatives (one branch of the Congress in which is vested the legislative power of the Government) to require of the Executive, an independent branch of the Government-coordinate with the Senate and House of Representatives-an account of his discharge of his appropriate and purely executive offices, acts, and duties, either as to when, where, or how performed.

"What the House of Representatives may require as a right in its demand upon the Executive for information is limited to what is necessary for the proper discharge of its powers of legislation or of impeachment.

"The inquiry in the resolution of the House as to where executive acts have within the last seven years been performed and at what distance from any particular spot or for how long a period at any one time, etc., does

not necessarily belong to the province of legislation. It does not profess to be asked for that object."

President Cleveland took a similar position in refusing to allow the Attorney General to submit to the Senate papers relating to the suspension of a District Attorney. He declared, 17 Congressional Record 1902 (1886) that: "Against the transmission of such papers and documents I have interposed my advice and direction. This has not been done, as is suggested in the committee's report, upon the assumption on my part that the Attorney-General or any other head of a Department "is the servant of the President, and is to give or withhold copies of documents in his office according to the will of the Executive and not otherwise," but because I regard the papers and documents withheld and addressed to me, or intended for my use and action, purely unofficial and private, not infrequently confidential, and having reference to the performance of a duty exclusively mine. I consider them in no proper sense as upon the files of the Department, but as deposited there for my convenience, remaining still completely under my control. I suppose if I desired to take them into my custody I might do so with entire propriety, and if I saw fit to destroy them no one could complain."

The Senate, however, adopted a resolution condemning the withholding of the papers. Id. at 2810.

Strictly speaking, demands for information on matters outside the constitutional authority of Congress do not raise questions of executive privilege, since any person, whether private individual or public officer, may refuse to give information which Congress has no authority to demand. The term "executive privilege" is properly applied to the right, if any, of the Executive Department to withhold information, not privileged under the law of evidence, which relates to a subject within the legitimate authority of Congress, on the ground that disclosure would hinder discharge of the constitutional powers of the Executive.

In view of the generality with which the privilege is asserted, and the type of information withheld is described, this class of cases often cannot be sharply differentiated from those in which the power of Congress to investigate the subject matter is denied, or in which the matter sought would be privileged under the law of evidence.

Among the instances which appear to be in this category was the refusal of the Attorney General in 1912 to comply with a demand of the Senate that he lay before it all correspondence, information and reports of the Bureau of Corporations relative to the so-called Harvester Trust. The Attorney General answered that he was directed by the President to say that it was not compatible with the public interest to supply the information demanded. "These are matters," he said, "pertaining entirely to business which is now pending and incomplete in this department." Senate Document No. 454, 62d Congress, 2d session 1 (1912).

In 1941, the chairman of the House Naval Affairs Committee requested the Attorney General to furnish all FBI reports, and all future reports, memoranda, and correspondence of the FBI or the Department of Justice in connection with the investigation of strikes, subversive activities in connection with labor disputes, or labor disturbances of any kind in industrial establishments which had naval contracts. The Attorney General declined. 40 Op. Atty. Gen. 45, saying:

"It is the position of this Department, restated now with the approval of and at the direction of the President, that all investigative reports are confidential documents of the executive department of the Government, to aid in the duty laid upon the President by the Constitution to "take care that the laws be faithfully executed," and that congressional or public access to them would not be in the public interest.

"Disclosure of the reports could not do otherwise than seriously prejudice law enforcement. Counsel for a defendant or prospective defendant, could have no greater help than to know how much or how little information the Government has, and what witnesses or sources of information it can rely upon. This is exactly what these reports are intended to contain."

Apparently, President Eisenhower's letter of May 17, 1954 to the Secretary of Defense forbidding disclosure of conversations or communications between officers of the Executive branch was based on the idea that the demand for disclosure violated the principle of separation of powers because

it would hinder the efficient and effective administration of the Executive Department. He said, 100 Congressional Record 6621:

"Because it is essential to efficient and effective administration that employees of the executive branch be in a position to be completely candid in advising with each other on official matters, and because it is not in the public interest that any of their conversations or communications, or any documents or reproductions, concerning such advice be disclosed, you will instruct employees of your Department that in all of their appearances before the subcommittee of the Senate Committee on Government Operations regarding the inquiry now before it they are not to testify to any such conversations or communications or to produce any such documents or reproductions."

President Tyler asserted the right to withhold from Congress information which is privileged under the law of evidence in response to a demand for information concerning alleged frauds of Indian agents. The House of Representatives had adopted a resolution requiring the Secretary of War to communicate to it reports made to the Department by Lieutenant Colonel Hitchcock concerning the alleged frauds. The Secretary did not furnish the report, asserting that such disclosure would be inconsistent with the public interest. Congressional Globe, twenty-seventh Congress, second session 579 (1843). Being dissatisfied with this answer, the House passed a further resolution insisting upon its right "to demand from the Executive or the heads of the departments such information as may be in his possession, relating to subjects of deliberation of the House, and, within the sphere of its legitimate powers." It requested, without qualification, that the President cause the information to be communicated to it. Id. at 888. The President transmitted some, but not all of the information requested. He defended his right to withhold certain materials, 3 Richardson, Messages and Papers of the President 2073 (1896), on the ground that:

"It is certainly no new doctrine in the halls of judicature or of legislation that certain communications and papers are privileged, and that the general authority to compel testimony must give way in certain cases to the paramount rights of individuals or of the Government. Thus no man can be compelled to accuse himself, to answer any question that tends to render him infamous, or to produce his own private papers on any occasion. The communications of a client to his counsel and the admissions made at the confessional in the course of religious discipline are privileged communications. In the courts of that country from which we derive our great principles of individual liberty and the rules of evidence it is well settled-and the doctrine has been fully recognized in this country-that a minister of the Crown or the head of a department can not be compelled to produce any papers or disclose any transactions relating to the executive functions of the Government which he declares are confidential or such as the public interest requires should not be divulged; and the persons who have been the channels of communication to officers of the State are in like manner protected from the disclosure of their names. Other instances of privileged communications might be enumerated if it were deemed necessary. These principles are as applicable to evidence sought by a legislature as to that required by a court."

The President's message was referred to the Committee on Indian Affairs, which submitted a Report, House Report No. p71, Twenty-seventh Congress, third session (1844) which took exception to the President's arguments. With respect to the claim of evidentiary privilege, the report stated:

"The general rule of law is that no one will be permitted to withhold any communication which is important as evidence, however secret and confidential the nature of that communication may have been. There are, however, some instances where the courts exclude particular evidence on the ground of public policy, because greater mischief and inconvenience would result to the State from the reception of it than would overbalance the injury which individuals might sustain by its exclusion. The interests of individuals are made to give way to the paramount interest of the community. Thus a witness is not allowed to reveal facts in a court of justice the disclosure of which might be injurious to the State; and of course the same rule prevails in relation to papers the contents of which would have a like tendency. The communication of evidence to a jury is a promulgation of it to the country, and the law so regards it, and it is so in fact. Hence the rule which

excludes evidence the disclosure of which would be detrimental to the interests of the State. But this rule is only applicable to the judicial, and not to parliamentary tribunals; and the error of the President consists in not having observed the distinction.

"The reason of the rule which excludes certain evidence is founded on the fact that its reception by the courts is equivalent to a publication, which principles of public policy forbid in particular cases. The reason of this rule, however, does not extend to parliamentary tribunals, which may conduct their investigations in secret, without divulging any evidence which may be prejudicial to the State. The practice of conducting investigations by secret committees has constantly prevailed in the British House of Commons ever since the Revolution of 1688, and perhaps from an earlier period; and the committee are aware of no instance in which evidence has been excluded in pursuance of the above rule. There is no reason for its observance in such cases, because there is no necessity for the publication of the evidence which may be delivered before such a tribunal. Thus it appears there exists no rule which would exclude any evidence from the House or a committee of the House, which are as competent to guard the interests of the State, and have as high motives for doing so as the Executive can have. On the other hand, it has already been shown that to withhold such evidence at the mere discretion of the Executive would be in effect to strip the House of the right to institute inquiries and investigate abuses. The consequence of this everyone foresees. Public officers and agents will become irresponsible, speculations and abuses of every kind will be perpetrated with impunity, and fraud and corruption will walk abroad unrebuked in open day. Such would be the practical operation of the rule laid down by the President; but this rule, it had been shown, is applicable only to judicial and not to legislative investigations." (3 Hinds' Precedents of the House of Representatives, p. 185.) There are, of course, numerous precedents concerning the government's evidentiary privileges in judicial proceedings. A famous case, frequently discussed in connection with the claim of executive privilege, arose during the trial of Aaron Burr in 1807. Burr subpoenaed a letter written by General Wilkinson to President Jefferson. It was argued on behalf of the President that it was improper to call upon him to produce this letter because it was a private letter which probably contained confidential communications and might contain state secrets which could not be divulged without endangering the national safety. Nevertheless he left it to government counsel to withhold any parts of the letter not directly material for the purposes of justice. The attorney expressed a willingness to disclose the entire letter to the court to determine what if any portion should be suppressed. Chief Justice Marshall ruled, United States v. Burr, 25 Fed. Cas. 187 (No. 14964, C.C. Va.), 1807 that

"That the President of the United States may be subpoenaed, and examined as a witness, and required to produce any paper in his possession, is not controverted. I cannot, however, on this point, go the whole length for which counsel have contended. The President, although subject to the general rules which apply to others, may have sufficient motives for declining to produce a particular paper, and those motives may be such as to restrain the court from enforcing its production. I do not think precisely with the gentlemen on either side. I can readily conceive that the President might receive a letter which it would be improper to exhibit in public, because of the manifest inconvenience of its exposure. The occasion for demanding it ought, in such a case, to be very strong, and to be fully shown to the court before its production could be insisted on. I admit, that in such a case, much reliance must be placed on the declaration of the President; and I do think that a privilege does exist to withhold private letters of a certain description. The reason is this: Letters to the President in his private character, are often written to him in consequence of his public character, and may relate to public concerns. Such a letter, though it be a private one, seems to partake of the character of an official paper, and to be such as ought not on light ground to be forced into public view.

"Yet it is a very serious thing, if such letter should contain any information material to the defence, to withhold from the accused the power of making use of it. It is a very serious thing to proceed to trial under such circumstances. I cannot precisely lay down any general rule for such a case.