Perhaps the court ought to consider the reasons which would induce the President to refuse to exhibit such a letter as conclusive on it, unless such letter could be shown to be absolutely necessary in the defence."

Decisions concerning the production of evidence in judicial proceedings are of limited value in determining what, if anything, the President may withhold from Congress. In criminal cases, the constitutional requirements of the fifth and sixth amendments have to be taken into account. In civil suits against the government, the statutes by which Congress has given consent to such suits must be interpreted. Moreover, in litigation to which the government is a party, the government is not absolutely required to make disclosure. It can avoid that result by dropping a prosecution or suit, or settling a plaintiff's claim, if it deems the consequences of disclosure too serious.

Moreover, it is an open question whether a House of Congress can determine the validity of an Executive claim of evidentiary privilege, or whether that question can be resolved only in the courts.

Evidentiary privileges are subject to change by statute. Hence there seems to be no reason why Congress could not enact a statute defining, enlarging or curtailing such privilege which would be binding on the Executive, insofar as claim of evidentiary privilege is concerned.

Officials of regulatory agencies have the same right to withhold inforination on the same basis as other officers, if the subject matter is one which Congress has not power to investigate or if the information is privileged under the law of evidence. Whether they are under a duty to obey Presidential directives to withhold information in the cases within the legitimate authority of Congress, where the President claims disclosure would impede performance of his functions, depends upon the unsettled issue as to whether they are, or are not, a part of the Executive Department. In a dictum in Humphrey's Executor v. United States, 295 U.S. 102 (1935) the Supreme Court intimated that because of its quasi-judicial and quasi-legislative duties, the Federal Trade Commission was outside the Executive Department. In 1955, a Senate Subcommittee sought testimony from the chairman of the Securities and Exchange Commission concerning the applications for financing of the Dixon-Yates Contract. The chairman claimed a privilege not to disclose confidential communications within the Executive department as set forth in the President's directive of May 17, 1954. The subcommittee decided to lay the ground for contempt proceedings and ordered all members of the Commission and certain of its officers to appear before it. At the hearing the chairman produced an opinion of the Attorney General dated July 12, 1955. The Attorney General ruled that the principles of the President's letter of May 17, 1954 extended to the Commission, as were communications from the Executive Department to the Commission with respect to administrative matters, but did not cover communications concerning a quasi-judicial proceeding. He advised that once a quasi-judicial proceeding was no longer pending, the requested information should be supplied to the committee. Kramer and Marcuse, "Executive Privilege A Study of the Period 19531960," 29 George Washington Law Review 623, 693–702 (1961).

As an abstract proposition, it would seem to be clear that the Executive, like any one else, may refuse to furnish information to Congress or either House thereof, if the matter under investigation is beyond the reach of Congressional powers and that any witness may assert this right. But as the instances cited demonstrate, there is sharp disagreement as to the application of this test. Strictly speaking, cases of this kind do not raise a question of executive privilege, but of the limits on investigations by Congress.

When the information demanded does relate to a matter within the jurisdiction of Congress, and the refusal to furnish it is based on a claim of hindering performance of Executive functions, or of evidentiary privilege, a more difficult question arises. In general, it seems that the decision to withhold is founded upon a determination by the President that particular information, or information of a certain kind, should not be supplied. The source of greatest controversy on this point are Presidential orders, such as President Truman's of March 13, 1948, forbidding disclosure of loyalty files. 13 Federal Register 1359 and President Eisenhower's letter of May 17, 1954, 100 Congressional Record 6621 (1954) forbidding disclosure of confidential communications between members of the Executive Branch. The Truman

order required that demands for information covered by the order be referred to the President for such response as he determined to be in the public interest. Such orders do not delegate authority to any one. They forbid certain disclosures. But when information is sought from any officer or employee, he has to determine, in the first instance, whether the directive requires that he refuse to supply it. Sometimes, as when the chairman of the Securities and Exchange Commission was asked about certain conversations with Members of the President's staff, an opinion of the Attorney General is obtained concerning the application of the President's order to the facts of the particular case.

With respect to claims of evidentiary privilege, the Supreme Court has held that in judicial proceedings, a claim of privilege against disclosure of military secrets must be made by the Head of the Department from whom the information was sought. United States v. Reynolds, 345 U.S. 1 (1953). In United States v. Burr, supra, Mr. Chief Justice Marshall, noting that the President had assigned no reason for withholding the paper called for, declared "The propriety of withholding it must be determined by himself, not by another for him. Of the weight and reasons for and against producing it, he is himself the judge. It is their operation in his mind, not on the mind of others, which must be respected by the court."

The instances discussed in this report are simply illustrative of the much greater number of controversies which have arisen between the President and Congress concerning the withholding of information.

MARY LOUISE RAMSEY,
Legislative Attorney.

[Reprinted from 44 American Bar Association Journal 941 (1958)] CONSTITUTIONAL LAW: THE PAPERS OF THE EXECUTIVE BRANCH By William P. Rogers, Attorney General of the United States This is a statement by Attorney General Rogers on the right of the Executive Branch to withhold documents and other materials from Congress The Attorney General made this statement before the Subcommittee on Constitutional Rights of the Senate Judiciary Committee on March 8. The position taken by Mr. Rogers was that the executive rights to withhold materials from Congress springs from the doctrine of separation of powers.

I appreciate the opportunity of appearing before this Senate Committee to present my views as to the extent of the inquiry which can be made by the legislative branch of the Government concerning the decision making process and documents of the Executive Branch. As might be expected from the division of our Government into three separate branches, this question has arisen from time to time from the very earliest days of our national government.

I. CURRENT PRINCIPLES AND PRACTICES

In the Justice Department over a period of time we have made a very careful study of numerous incidents which have occurred and which illustrate many facets of the problem. Before getting into a discussion of historical precedents and principles, however, I should like to acquaint the committee with my general views and with the particular practices we have followed and are following in the Department of Justice.

We live in a democracy in which an informed public opinion is absolutely essential to the survival of our nation and our form of government. It likewise is true that Congress must be well informed if it is to do its legislative job realistically and effectively. The vast majority of requests by Congress for information from the Executive Branch, as you know, are honored quickly and complied with fully. The furnishing of such information is beneficial to Congress, the Executive Branch and to the people themselves. In the Department of Justice we strive to furnish Congress with the requested information, and to make public that part of our activities which would be of interest to the public and which properly can be disclosed without interfering with

the discharge of our duties and responsibilities or which might be improper or violate the canons of ethics.

With reference to the right of the public to know generally as distinguished from the Legislative Branch, it seems to me that there are four principles which it is well to keep in mind:

1. While the people are entitled to the fullest disclosure possible, this right, like freedom of speech or press, is not absolute or without limitations. Disclosure must always be consistent with the national security and the public interest.

2. In recognizing a right to withhold information, the approach must be not how much can legitimately be withheld, but rather how little must necessarily be withheld. We injure no one but ourselves if we do not make thoughtful judgments in the classification process.

3. A determination that certain information should be withheld must be premised upon valid reasons and disclosure should promptly be made when it appears that the factors justfiying non-disclosure no longer pertain. 4. Non-disclosure can never be justified as a means of covering mistakes, avoiding embarrassment, or for political, personal or pecuniary reasons.

All persons agree that information which would adversely affect our national security should not be disclosed. Then too there are compelling reasons for non-disclosure in the field of foreign affairs, in the area of pending litigation and investigations which may lead to litigation, information made confidential by statute, investigative files and reports, and, finally, information relating to internal government affairs. President Eisenhower's letter of May 17, 1954, to the Secretary of Defense concerns this last category of information.

With reference to this last category, at Marquette University two years ago I stated my views on this subject and they have not changed:

66

.. Just as no private citizen or business entity can conduct its business under constant public scrutiny, so judges, legislators or executive officials cannot conduct all public business at every step of the way in public.

"A considerable part of Government business relates to the formulation of policy and to the rendering of advice to the President or to agency heads. Interdepartmental memoranda, advisory opinions, recommendations of subordinates, informal working papers, material in personnel files, and the like, cannot be subject to disclosure if there is to be any orderly system of government. This may be quite frustrating to the outsider at times. No doubt all of us at times have wished that we might have been able to sit in and listen to the deliberation of judges in conference, to an executive session of a congressional committee or to a Cabinet meeting in order to find out the basis for a particular action or decision. However, government could not function if it was permissible to go behind judicial, legislative or executive action and to demand a full accounting from all subordinates who may have been called upon to make a recommendation in the matter. Such a process would be self-defeating. It is the President, not the White House staff, the heads of departments and agencies, not their subordinates, the judges, not their law clerks, and members of Congress, not their executive assistants, who are accountable to the people for official public actions within their jurisdiction. Thus, whether the advice they receive and act on is good or bad there can be no shifting of ultimate responsibility. Here, however, the question is not one of nondisclosure as to what was done, but rather whether the preliminary and developmental processes of arriving at a final judgment need to be subjected to publicity. Obviously, they cannot be if Government is to function." 1

This question was discussed about a year ago by a former government lawyer who wrote:

"There are serious weaknesses in the assumption . . . that public policy ought to draw a sharp distinction between "military and diplomatic secrets" on the one hand and all other types of official information on the other, giving Congress free access to the latter. . . . The executive's interest in the privacy of certain other types of information is not less than its interest in preserving its military and diplomatic secrets. One obvious example is the data, derogatory or otherwise, in the security files of individuals. Another, perhaps still more important, is the record of deliberation incidental to the

1 The speech is reproduced in 40 MARQ. L. REV. 83-91 (1956).

making of policy decisions. Undoubtedly the official who makes such a decision should be answerable to Congress for its wisdom. But the subordinate civil servants who advise him must be answerable only to him. . . .'

"It is one thing for a cabinet officer to defend a decision which, however just, offends the prejudices of a powerful Congressman and, very probably, a highly vocal section of the public; it is quite another thing for a middleaged, middle-ranking civil servant, who needs his job, to do so. The Secretary's own responsibility to Congress for wrong decisions is a sufficient guarantee that he will not long tolerate incompetent or disloyal advisers; and he is certainly in a much better position to detect such undesirables than is any member, or even any committee of Congress."

2

Jenkin Lloyd Jones, Editor of the Tulsa Tribune and formerly President of the American Society of Newspaper Editors, in delivering the William Allen White Lecture at the University of Kansas last February had this to say:

"Many of my colleagues in the newspaper business have leaped to the conclusion that all public affairs, not directly connected with national defense, must be conducted in the open. . . . I disagree. I think that much of the important business in a Republican form of government will be carried on behind closed doors. I see few dangers in that. I see many advantages. For it is only behind closed doors. . . that most politicians-yea, even statesmen— honestly express their views and try to get at the meat of the question. "I don't mean to imply that legislative voting should not be in the open, nor that the public should be denied the right to appear before all committees, nor that any legislator should be excused from explaining why he voted as he did. But I do mean that . . . in the National Capitol, the White House, and various Washington departments no sound policy is decided upon without frank exchange of views. And a frank exchange of views is rarely reached with the public and the press looking over the shoulders of the policy makers. "The Government of Athens was an absolute and complete democracy with all deliberations carried on in a goldfish bowl of open debate. But Athens became smothered with oratory, paralyzed with demagoguery, and finally wound up with such an unstable mobocracy that nearly every able Athenian was banished from the land."

In the Department of Justice we have in the last few years taken certain steps to make available more information about our daily operations than was available before. For example, we have now the practice of making all pardons and commutations of sentences a matter of public record. Thus in the event a question arises as to the propriety of a pardon, any interested person may examine the record, which now includes the names of all persons who interceded on behalf of or expressed interest in the convicted person. Similarly, at the conclusion or settlement of any type of case in the Department, where otherwise there would be no public record of the proceeding; our practice now is to make all the pertinent facts available.

We in the Department of Justice as the attorneys for the Executive Branch of government have a special obligation with regard to litigation. This is well expressed in the Canons of Professional Ethics of the American Bar Association. Canon 37 provides in pertinent part:

"It is the duty of a lawyer to present his client's confidences. This duty outlasts the lawyer's employment and extends as well to his employees; and neither of them should accept employment which involves or may involve the disclosure or use of those confidences, either for the private advantage of the lawyer or his employees or to the disadvantage of the client, without his knowledge and consent, and even though there are other available sources of such information

On May 17, 1954, President Eisenhower in a letter to the Secretary of Defense set forth basic policies which I would like to discuss in detail later. However, let me say now that this letter imposes no barrier to the disclosure of any official action. The end product of advice may be produced, where otherwise permissible, in response to an appropriate request for information as to what official action has been taken by the Executive Branch. This is a

Bishop, The Executive's Right of Privacy: An Unresolved Constitutional Question, 66 YALE L.J. 487-488 (1957).

sound rule based upon his duty and authority under the Constitution; it is supported by the precedents in our national history; and it is in accord with the judicial decisions that our Federal Government is composed of three equal and co-ordinate branches, and that no one of the three branches shall encroach upon another.

Now let me turn to the historical precedents and then discuss the fundamental principle of separation of powers, and lastly some specific legislative proposals which have been made.

II. PRECEDENTS AND PRINCIPLES

Let us start by noting the action of the Continental Congress under the Articles of Confederation which preceded the adoption of the Constitution. On February 21, 1782, some 176 years ago, the Continental Congress passed a resolution creating a Departmen of Foreign Affairs under the direction of a Secretary to the United States of America for the Department of Foreign Affairs. The Resolution provided:

"That the books, records and other papers of the United States, that relate to this Department be committed to his custody, to which and all other papers of his office, any member of Congress shall have access; provided that no copy shall be taken of matters of a secret nature without the special leave of Congress."

Moreover, the same Resolution also provided:

"That letters [of the Secretary] to the ministers of the United States, or ministers of foreign powers which have a direct reference to treaties or conventions proposed to be entered into, or instructions relative thereto, or other great national objects, shall be submitted to the inspection and receive the approbation of Congress before they shall be transmitted.""

In short, under the Continental Congress, the Department of Foreign Affairs and its Secretary were almost completely subject to the directions of the Continental Congress. Every member of the Continental Congress was entitled to see anything in the records of the Department of Foreign Affairs, including secret matters. Indeed, he could make a copy of anything, except secret matters.

Much has been written of the inadequacies of that prototype of our national government. I do not propose to review those writings or to comment on those inadequacies.

Suffice it to say that it came increasingly to be recognized by the leaders of our country then that the design of that pilot plant had grave and serious defects which made it incapable of serving adequately as the engine of the national government. The designers so discovered by practical experience with its shortcomings.

Finally, at the Constitutional Convention in Philadelphia in 1787 that prototype was redesigned as the engine of government which is still operating today. As we all know, it was designed on the principle that our Federal Government is divided into three equal departments or branches, a political innovation not included in the older Articles of Confederation.

Now let us see what action the opening session of the First Congress of the United States took when it came to create the Department of Foreign Affairs under the Constitution. Section 4 of the Act of July 27, 1789, establishing an Executive Department, to be denominated the Department of Foreign Affairs, provides:

"That the Secretary . . . shall forthwith after his appointment, be entitled to have the custody and charge of all records, books and papers in the office of Secretary for the Department of Foreign Affairs, heretofore established by the United States in Congress assembled." [1 Stat. 29.]

Compare this language with the resolution creating the old Department of Foreign Affairs under the Articles of Confederation. Here is no language which makes the books and records of the Department of Foreign Affairs virtually the books and records of Congress: here is no language which requires that the Secretary of this department shall submit his correspondence to Congress before transmittal. The difference is obvious and fundamental. Under the Constitution the First Congress was creating a Foreign Affairs

37 Journals of Congress 219.