Department of the Executive Branch, pursuant to the grand design of the new Constitution based on the political principle of separation of powers. The difference in the language of the old resolution and the new statute under the Constitution is no matter of legislative oversight. Many of the men who sat in that First Congress had served earlier in the Continental Congress where they had the right of access to the papers of various departments, because those departments were in legal effect merely creatures of the Congress. In the light of their knowledge of the earlier practice, it can only be concluded that they deliberately recognized that the continuance of that former privilege was incompatible with the grand design of the Constitution for the separation of powers between the three branches.

The question of the production of documents before Congress arose in George Washington's first term as President. The first investigation by the Legislative Branch of the administration of governmental affairs by the Executive Branch was an investigation of a military expedition led by General St. Clair under the direction of the Secretary of War. When the congressional committee called for the papers pertaining to this campaign, President Washington convened his Cabinet, because it was the first instance of a demand on the Executive Branch for papers, and so far as it should become a precedent he wished it to be right.

Washington did not question the propriety of the investigation, but said that he could conceive that there might be papers of so secret a nature that they should not be given up. He and his Cabinet came to a unanimous conclusion:

"First, that the House was an inquest, and therefore might institute inquiries. Second, that it might call for papers generally. Third, that the Executive ought to communicate such papers as the public good would permit, and ought to refuse those, the disclosure of which would injure the public: consequently were to exercise a discretion. Fourth, that neither the committee nor House had a right to call on the Head of a Department, who and whose papers were under the President alone; but that the committee should instruct their chairman to move the House to address the President."

Having formulated these principles, the Cabinet agreed, however, that "There was not a paper which might not be properly produced." It is, of course, well known that acting on the same principles Washington later refused to lay before the House a copy which it had requested of instructions to the United States Minister who negotiated a treaty with the British Crown. In declining to do so, because of the secrecy required in negotiations with foreign governments, Washington referred to his constitutional oath to "preserve, protect, and defend the Constitution," and to his belief that

"It is essential to the due administration of the Government that the boundaries fixed by the Constitution between the different departments should be preserved, a just regard to the Constitution and to the duty of my office, under all the circumstances of this case, forbids a compliance with your request." 5

Thus there were established four principles:

1. That the Constitution fixes boundaries between the three branches of the Government: Legislative, Executive and Judicial.

2. That the documents of the Executive Branch are within the control of that branch, not of all branches.

3. That the Legislative Branch can make inquiry of the Executive for its documents, but in response to congressional requests for documents, the Executive should exercise a discretion as to whether their production would serve a public good or would be contrary to the public interest.

4. That the authority of the President for the conduct of foreign affairs does not oblige him to produce the instructions which had been given to his representatives in negotiating a treaty. It seems clear that they constituted advice within the Executive Branch on official matters. The official action of the Executive was embodied in the Treaty which was submitted to the Senate for its advice and consent.

So were the basic principles fixed in the Administration of our first President when both the Executive and Legislative Branches were comprised

Writings of Thomas Jefferson, 303-305.

51 Richardson, Messages and Papers of the Presidents, 196 (1896).

68-287 - 71-36

of many men who had served in the Continental Congress, who had participated in the Constitutional Convention and who successfully assisted in achieving the ratification of the Constitution.

Jefferson, who had participated in the formulation of these principles as Secretary of State, was also confronted with the same question during his Presidency when the Burr conspiracy was stirring the country. By resolution the House asked for any information in possession of the Executive, except such as he may deem the public welfare to require not to be disclosed, touching certain matters related to the Burr conspiracy, although it was not so identified. Jefferson gave certain information, but declined to give certain other information as being ex parte and uncorroborated and delivered in some instances under the restriction of private confidence.

Thus two additional principles were established:

1. That documents containing information of uncertain reliability apparently reflecting adversely on individuals should not be disclosed.

2. That documents containing information given in confidence to the Executive Branch should not be disclosed by that Branch.

Some forty years later, the House of Representatives was conducting an investigation of the administration of Cherokee Indian affairs. In a special message dated January 31, 1843, President Tyler vigorously asserted that the House of Representatives could not call upon the Executive for information, even though it related to a subject of the deliberations of the House, if, by so doing, it attempted to interfere with the discretion of the President.* President Tyler's refusal established additional principles:

1. That it would be contrary to the public interest for the Executive Branch to produce documents which might affect its settlement of pending claims against the United States.

2. That it would be contrary to the public interest for the Executive Branch to produce documents on official matters before they had been embodied in official actions.

In addition, it reaffirmed the principle that it would be contrary to the public interest to produce ex parte documents which apparently reflect adversely on individuals.

Again some forty years later, in challenging the attitude that because the executive departments were created by Congress, the latter had any supervisory powers over them, President Cleveland declared:

"I do not suppose that the public offices of the United States are regulated or controlled in their relations to either House of Congress by the fact that they were created by laws enacted by themselves. It must be that these instrumentalities were created for the benefit of the people and to answer the general purposes of government under the Constitution and the laws, and that they are unencumbered by any lien in favor of either branch of Congress growing out of their construction, and unembarrassed by any obligation to the Senate as the price of their creation."

Thus was emphasized the fact that the separation of powers applies to all agencies of the Government, whether created by the Constitution or by Congress. To hold otherwise would be to destroy the entire basic principle of separation itself.

In 1909, the Senate passed a resolution directing the Attorney General to inform the Senate whether certain legal proceedings had been instituted against United States Steel Corporation, and, if not, the reasons for nonaction. President Theodore Roosevelt replied, refusing to honor this request upon the grounds that "Heads of the Executive Departments are subject to the Constitution, and to the laws passed by Congress in pursuance of the Constitution, and to the directions of the President of the United States, but to no other direction whatever." 8

This refusal reiterated the principle that the Executive Branch will maintain the inviolability of documents in official files containing information from private sources which has been communicated to it in confidence.

Incidents in more recent times are relatively well known and need not be detailed here. However, let me turn your attention for illustrative purposes

3 Hinds' Precedents of the House of Representatives 181 (1907).

78 Richardson, op. cit. supra note 5, at 377.

843 Cong. Rec. 527-528.

to two such incidents in the Truman Administration. One incident involved the request of a congressional committee for the loyalty-security file with respect to Dr. Condon, then the Director of the National Bureau of Standards of the Department of Commerce. On March 3, 1948, the Committee adopted the extraordinary course of issuing a subpoena to Secretary of Commerce Harriman to produce the file, which, by order of President Truman, Mr. Harriman refused to do."

On March 13, President Truman issued a directive to all officers and employees in the Executive Branch, forbidding the disclosure of loyalty files and directing that any demand or subpoena for such files from sources outside the Executive Branch should be declined and the demand or subpoena referred to the Office of the President.10 On April 22, the House of Representatives adopted a resolution peremptorily ordering Secretary Harriman to surrender the desired data respecting Dr. Condon." Citing the President's directive, the Acting Secretary wrote the Clerk of the House that he respectfully declined to transmit the requested document and that in accordance with the directive, he was referring the matter to the President." President Truman had earlier stated that he would not accede to the House Resolution.13

In connection with the Condon incident there was introduced on March 5, 1948, a resolution which would have directed all executive departments and agencies to make available to any and all congressional committees information which may be deemed necessary to enable them to properly perform the duties delegated to them by Congress." With respect to this bill, the St. Louis Post-Dispatch on May 10, 1948, made the following observations:

"Even without the penalties for disclosure, Congress should not assert absolute rights to presidential information. It should have full access to records needed for forming policy, but the executive branch also possesses administrative records in which Congress has no valid interest. The presidency is an equal branch of government, with constitutional rights and mandates separate from those of Congress. Its right to withhold certain kinds of information from Congress, and the public interest in having such information withheld, has been successfully defended since the time of President Jefferson.

"No Congressman would think of demanding conference transcripts, personnel records or any other private papers from the Supreme Court, the third equal branch of government. The President cannot demand the records of private congressional committee sessions. The Supreme Court makes no such demand on either Congress or the President. No more should Congress try to destroy the President's right to a reasonable and necessary privacy in his department.

"The founding fathers expected Congress and Presidents to minimize their rivalries by the exercise of reasonable confidence and give-and-take. It needs that spirit to make the American system of government succeed.

The resolution passed the House on May 13, 1948, and was referred to the Senate, where it died in committee.

So we see that from the beginning of our Government the position of the President and the Executive Branch has been that while no one could question the constitutional right of Congress to inform itself on subject falling within its legislative competence, yet, as Professor Corwin puts it:

"This prerogative of Congress has always been regarded as limited by the right of the President to have his subordinates refuse to testify either in court or before a committee of Congress concerning matters of confidence between them and himself." 15

The constitutional authority of the Chief Executive over the Executive Branch is illuminated by the ultimate fate of a proposed amendment to the

Corwin, The President: Office and Powers 142 (1948 ed.). Professor Corwin is also the editor of the most recent edition of The Constitution, Annotated, S. Doc. No. 170, 82d Cong., 2d Sess. (1952).

10 3 CFR 1081 (1943-1948 Comp.). For the explanatory memorandum which was issued by the Office of the President on March 15, 1948, see H.R. Rep. No. 1595, 80th Cong.. 2d Sess. 8-10 (1948).

11 H.Res. 522. 80th Cong., 2d Sess., 94 Cong. Rec. 4777 (1948).

12 New York Times, April 25, 1948, page 50, col. 3.

13 New York Times. April 23, 1948, page 1, col. 1.

14 H. J. Res. 342. 80th Cong.. 2d Sess.

15 Corwin, The President: Office and Powers 116 (1957 ed.).

Atomic Energy Act of 1946. It provided that where the appointment of members or personnel of the Atomic Energy Commission is subject to Senate confirmation the Senate members of the Joint Committee on Atomic Energy may direct the FBI to investigate the character, associations and loyalty of any such appointee, and that the Director of the FBI should file a written report of any such investigation and thereafter should furnish such amplification or supplementation as the Senate Committee may direct.1

Senator Morse opposed the bill as "clearly unconstitutional" as an infringement on the appointive power of the President. A proponent of the bill argued that it did not attack the appointive power and that it dealt only

“. . . with the right of Congress to have the Federal Bureau of Investigation, which is a creature of Congress, perform a function for Congress; and it provides that Congress may use the FBI report as a basis of consideration as to whether or not the nomination of a particular person should be confirmed by the United States Senate." 17

The late Senator McMahon, of Connecticut, who had served earlier as Assistant Attorney General in charge of the Criminal Division, answered this contention. He declared that the best statement in the cases on the point at issue was to be found in Kilbourn v. Thompson, to which I shall refer later. There then ensued the crux of the argument as to the power of Congress to provide by statute for its utilization of the services, facilities, investigative files and reports of a unit of the Executive Branch. Because of the wide power conferred upon the Atomic Energy Commission it was urged that: "We should not have an iron curtain lowered so that we may not have all the facts which we need in discharging our responsibilities." "

Senator McMahon answered:

"I do not believe that the Congress can say to the President of the United States, "we are bypassing you. We are not going to talk to you. We are not going to talk to the Attorney General, who is one of your Cabinet officers and who is responsible to you. We are going to reach over both of you and tell a bureau chief that he shall do this, that, and the other thing, and report to us." It is my contention that the Constitution will not permit the Congress legally to do such a thing."

With reference to a contention that the Senate and House are policy-making bodies with a right to obtain the facts in order that they may legislate properly, and in the case of the Senate to advise and consent to nominations. Senator McMahon replied that this contention was "directly in the face of the law." He added:

"I say to the Senator that much as he might desire to otbain an investigatory report on the work of the FBI, if the Attorney General refused to give it, it is my prediction that the Senator would find that the Supreme Court would uphold the right of the Attorney General to decline to produce the report. The cases are too clear to admit of any question. The Senator may not like the proposition. He may not like it because he is in the Senate. If he were connected with the executive department he might take another view. But that happens to be the law. What I contend is, when we know it is the law, we ought not to pass a bill which flies directly in the face of the constitutional provision."

19

"To assert, as the Senator . . . did, that it would be possible to call upon the director of the subsidiary bureau to produce a report in the face of the constitutional argument that is made in Marbury v. Madison, in the later Kilbourn case, in the recent Meyers case, the Humphrey's case, and also a Federal Trade Commission case, the title of which escapes me at the moment, is to deny plain English in the reports of those cases."

20

"If perchance there should be a change in the Executive at 1600 Pennsylvania Avenue at any time while I sit as a Member of this body, the position I take today will be exactly the position I shall take then upon any attempt to destroy what I regard as a very essential provisions of the Constitution.

Let me say to Senators who are present that there is no provision of the Constitution the religious observance of which is better calculated to insure justice and liberty to the people of the United States than the provision that judges shall judge, legislators shall legislate, and executives shall execute." The bill was passed by the Congress, but was vetoed by the President." In the Senate debate as to whether the veto should be overridden or sustained, Senator McMahon observed that the Senate appeared to be proceeding on the theory

"... that the legislative branch of the Government is supreme over the executive branch of the Government. The executive and legislative branches of the Government are coequal and coordinate. Of course this contest we are talking about now has been going on for 150 years. It has been tested time and time again. If the executive were to give up any of the power he legally has under the Constitution, he would be betraying the people of the United States whom he also serves in his constitutional capacity.' 19 23

A Senator who was in favor of overriding the veto argued that it was wrong to saythat whenever Congress creates an executive agency it cannot modify, change, or direct its actions when it is acting for the Congress or the people." Senator Barkley answered:

"... We are authorizing a committee to command that executive appointees shall be the servants of a committee, and if we can do that with respect to the Atomic Energy Commission, we can do it with respect to postmasters, district attorneys, United States judges, and even members of the Cabinet, because they are creatures of the Congress."

Senator McMahon concluded the debate against the motion to override by saying

that man cannot have two masters. He cannot serve both the President of the United States and the Senate members of the Joint Committee on Atomic Energy." *

In the end the Senate failed to override the veto."

Congressional efforts to obtain loyalty-security files respecting various individuals continued into President Eisenhower's Administration. An editorial in the Washington Post and Times-Herald for March 10, 1953, for the following observations:

"So far as executive files are concerned, President Eisenhower would do well, we believe, to follow the example of almost every earlier occupant of the White House. 'Full cooperation' [a phrase used by the State Department officer in charge of such investigations] means, among other things, that no congressional committee should claim what it has no right to receive."

A year later at the height of the McCarthy-Army controversy the President issued his letter of May 17, 1954, to the Secretary of Defense stating:

"It has long been recognized that to assist the Congress in achieving its legislative purposes every Executive Department or Agency must, upon the request of a Congressional Committee, expeditiously furnish information relating to any matter within the jurisdiction of the Committee, wih certain historical exceptions-some of which are pointed out in the attached memorandum from the Attorney General. This Administration has been and will continue to be diligent in following this principle. However, it is essential to the successful working of our system that the persons entrusted with power in any one of the three great branches of Government shall not encroach upon the authority confided to the others. The ultimate responsibility for the conduct of the Executive Branch rests with the President.

"Within this Constitutional framework each branch should cooperate fully with each other for the common good. However, throughout our history the President has withheld information whenever he found that what was sought was confidential or its disclosure would be incompatible with the public interest or jeopardize the safety of the Nation.