Page images
PDF
EPUB

letter of May 17, 1954, to the Secretary of Defense, I concur. Any communication within the Securities and Exchange Commission among Commissioners or the Commissioners and the employees is privileged and need not be disclosed outside of the agency. Likewise any communication from others in the Executive Branch to members of the Commission or its employees with respect to administrative matters comes within the purview of the President's letter of May 17, 1954." 45

Attorney General Brownell's letter thus advised that the executive privilege applied to the independent agencies as to "communications within the Executive Branch" and "with respect to administrative matters." The executive privilege of course does not apply where the independent agencies are exercising judicial functions.

However, by analogous reasoning the doctrine of separation of powers provides a guide to the limits of congressional inquiry, not only in relation to executive functions of the independent agencies, but also to judicial functions. Let me make this clear. In my view, whatever the practice has been in the treatment of these independent regulatory agencies, whenever an agency is exercising its judicial function by deciding an adversary proceeding before it, it should be just as free of any demand from Congress or the Executive Branch as a court would be.

Nor does the executive privilege apply to the independent agencies where they are exercising legislative functions. Congressional inquiry is thus not so limited as in regard to executive or judicial functions. But I would caution that other considerations might cause Congress itself to limit its inquiries on even legislative functions. Information of importance to competitors gathered in confidence from private businesses, for example, should not be publicized.

It should not be forgotten that the more frequent and the more extensive the congressional inquiries made of the independent agencies, the less free and truly independent those regulatory agencies will become.

In summary:

(1) the executive privilege applies to the executive functions of the independent agencies;

(2) the executive privilege obviously does not apply to judicial functions; similarly,

(3) legislative inquiry into the legislative functions of the independent agencies is not limited by any executive privilege, but there are other restraining considerations, some of which I have noted above.

IV. PROPOSED LEGISLATION

Finally, I come to two bills which have been referred to the Committee. The first is S. 921, 85th Cong., which would amend § 161 of the Revised Statutes. That Section is a codification for the ten executive departments of today of that provision of the 1789 Act respecting the Department of Foreign Affairs. You will recall that I discussed that act in the second part of my statement.

Section 161 now provides:

"The head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his Department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the record, papers, and property appertaining to it." 46

S. 921 would amend § 161 by adding a last sentence:

"This action does not authorize withholding information from the public or limiting the availability of records to the public."

As Deputy Attorney General, I expressed my views on this bill in a letter dated June 13, 1957, to Senator Eastland, Chairman of the Senate Committee on the Judiciary. Let me summarize those views.

Insofar as the purpose of S. 921 is to assure the full and free flow of information to the public where not inconsistent with the national interest, the Department of Justice is in full accord. We believe that within limits

45 Reproduced in Hearings on Power Policy, Dixon Yates Contract. Before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 84th Cong., 1st Sess. 378-379 (1955).

485 U.S.C. § 22.

the Executive and Legislative Branches should keep the public informed of their activities, and should make available information, papers, and records. Without doubt both branches are in accord with this fundamental principle. We do believe that S. 921 would not clarify § 161 of the Revised Statutes. In the absence of legislative history or more specific language we cannot determine with any degree of certainty the effect of S. 921.

A recent example of the current application of this principle to the Legislative Branch is illustrated by an article in the Washington Evening Star on September 12, 1956. The article reads in part as follows:

"Congress barred the public from 1,131 of its 3,121 committee meetings in 1956, or more than one third of them.

"Spokesmen for several of those committees listed such things as national security, government efficiency and preserving the private rights of witnesses as reasons for closing meetings."

Such a statement is of course equally applicable to the proper functioning of the Executive Branch. Obviously it is equally applicable to the functioning of the Judicial Branch. Each of the three separate, co-equal and co-ordinate branches have recognized its force and significance in their relations with each other.

We in the Department of Justice cannot determine whether S. 921 would purport to override the principle that the disclosure of certain information would be inconsistent with the national interest. If Congress believes that any amendment to § 161 of the Revised Statutes is advisable, it is equally advisable that any such amendment make it much clearer than S. 921 now would that Congress does not ignore that principle. As S. 921 now stands, it is impossible to determine with any certainty that it would give just recognition to that principle.

The second bill is S. 2148, 85th Cong., a bill to amend Section 3 of the Administrative Procedure Act of 1946."

When Congress passed the Administrative Procedure Act it clearly recognized beyond question or doubt that there are functions of the Government where disclosure would be inconsistent with the national interest, and that the Government cannot otherwise function effectively. These considerations, which Congress recognized then, I have discussed above, and because of these considerations I am opposed to the passage of S. 2148.

48

Certainly in the time available it is not possible for me to discuss in detail the amendments to Section 3 of the Administrative Procedure Act which S. 2148 would make and my reasons for opposing them. Those will be discussed in the necessary detail in the Department's report on the bill.

[Reprinted from 45 American Bar Association Journal 467 (1959)]

A REPLY TO MR. ROGERS: THE PAPERS OF THE EXECUTIVE BRANCH
By Bernard Schwartz, Professor of Law at New York University

In our October, 1958, issue (44 A.B.A.J. 941), we published Attorney General Rogers' statement on the right of the Executive Branch to withhold official documents from congressional committees. The statement, originally given before the Subcommittee on Constitutional Rights of the Senate Judiciary Committee, argued that the right to withhold such documents sprang from the doctrine of separation of powers. Mr. Schwartz answers Mr. Rogers in this article.

In the October, 1958, issue of the JOURNAL, there is a strong presentation by Attorney General William P. Rogers of the right of the Executive Branch to withhold documents and other materials from the Congress. Mr. Rogers' paper takes an extreme view of the privilege of the Executive to withhold.1 According to him, it is an established principle in our law that "in response to congressional requests for documents, the Executive should exercise a

47 60 Stat. 238, 5 U.S.C. § 1002.

48 See for example, S. Rep. No. 752, 79th Cong.. 1st Sess. (1945).

1 Rogers, Constitutional Law: The Papers of the Executive Branch, 44 A.B.A.J. 941 (1958).

discretion as to whether their production would serve a public good or would be contrary to the public interest." "

The view of the Attorney General on so important a constitutional question is, of course, entitled to the greatest respect. It should, all the same, be borne in mind that even a formal opinion of the Government's highest legal officer is not, like the decision of a court, an authoritative formulation of the law. It is entitled only to the weight that its inherent merit wins for it. As the late Justice Jackson, himself a former Attorney General, aptly characterized it, the view of the Attorney General is "partisan advocacy," which cannot bind later judicial judgment.

The Attorney General cites three principal sources of authority for the Executive privilege asserted by him: (1) Executive practice; (2) judicial decisions; and (3) separation of powers. These will be discussed in turn.

I. EXECUTIVE PRACTICE

It is true that there have been Executive refusals to comply with congressional investigative demands. Such Executive practice can, however, of itself hardly be considered as conclusive or foreclose independent inquiry into the law, in the absence of an authoritative judicial decision on the subject. That there have been refusals by the Executive to supply information to the Congress does not necessarily prove that such refusals were legally justified.

4

A governmental practice conceived in error does not become elevated to the plane of legality merely because the error has been long persisted in. In the celebrated Erie Railroad case, the Supreme Court held invalid a century-old doctrine governing the law to be applied in federal cases. The Court was not dissuaded by the fact that the uniform practice in the federal courts had been in accordance with the overruled doctrine. If this is true of an erroneous decision (followed as an authoritative precedent for so long) of the Supreme Court itself, it must certainly be true of an Executive practice which, as we shall see, finds no basis in judicial decision. Executive practice alone cannot authorizę Executive acts which have no other legal basis.

This would be true even if the Executive practice cited by Mr. Rogers were uniform and unopposed. In actuality, the Congress has never assented to the claim that the Executive can determine, in its discretion, what documents it will withhold. An extremely suggestive precedent is to be found in the Senate in 1886. In January of that year, the Senate passed a resolution directing the Attorney General to transmit certain Department of Justice documents. Upon the Attorney General's refusal to transmit the papers requested, the Senate Committee on the Judiciary submitted a report which strongly affirmed the right of Congress to receive the information requested: "It is believed that there is no instance of civilized governments having bodies representative of the people or of states in which the right and power of those representative bodies to obtain in one form or another complete information as to every paper and transaction in any of the executive departments thereof does not exist, even though such papers might relate to what is ordinarily an executive function . . . 'Why should the facts as they may appear from the papers on file be suppressed, Is it because that, being brought to light, it would appear that malice and misrepresentation and perjury are somewhat abundant . . . ?'" 5

Following this report, the Senate strongly censured the Attorney General. In the debate in the Senate, Senator Edmunds, the then chairman of the Judiciary Committee, referred to the "universal power of knowledge and information of the two Houses of Congress in respect to every operation of the Government of the United States and every one of its officers, foreign and domestic." According to him, both Houses of the Congress had a "right to know everything that is in the executive departments of the Government." " The learned Senator stated that this was the first instance in some forty years in which either House had failed "on its call to get information that it has asked for from the public departments of the Government."

2 Id. at 944.

3 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 649, note 17 (1952). Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).

5 Senate Misc. Docs. 237-43 (1893).

17 Cong. Rec. 2215.

The committees of either House, said he, "have always obtained from the departments on their mere request everything that either House or its committees thought necessary for the proper discharge of their duties." "

Executive refusals to furnish papers to the Congress have been relatively few by comparison with the whole mass of instances in which congressional demands for information have been complied with. If Executive and legislative practice is to be considered, the grants as well as the refusals of information should be weighed. The readiness displayed by the Executive in innumerable cases in furnishing information to committees of both Houses is at least as strong as a precedent as the comparatively few instances of refusals.

II. JUDICIAL DECISIONS

The Attorney General, in his paper, cited no case directly supporting his extreme assertion of Executive privilege. As against the lack of decisions in support of the Attorney General's view, there is a veritable mass of contrary authority, which resoundingly repudiates the whole concept of privilege, even in cases involving only private litigants.

In the first place, it should be noted that John Henry Wigmore, the dean of the American law on the subject, strenuously opposed the whole concept of Executive privilege. Much of Volume 8 of his monumental Treatise on Evidence is devoted to a demolition of the claims of those who assert the doctrine of privilege. Wigmore is particularly caustic with regard to the argument that, in such cases, the public interest against disclosure must be considered paramount to the individual interest of private litigants, declaring: "As if the public interest were not involved in the administration of justice. As if the denial of justice to a single suitor were not as much a public inquiry as is the disclosure of any official record. When justice is at stake, the appeal to the necessities of the public interest on the other side is of no superior weight. 'Necessity,' as Joshua Evans said, 'is always a suspicious argument, and never wanting to the worst of causes.'"'*

That the Executive does not have the authority to withhold, even from private litigants, papers merely because it feels that disclosure would be contrary to public interest is shown by Crosby v. Pacific S.S. Lines." The court there expressly relied upon Wigmore in rejecting a claim of official privilege. The fact pattern was somewhat unusual. The case arose out of a civil bankruptcy proceeding. A witness, who was an official of the British Ministry of Supply (not a party to the case), declined, on cross-examination, to produce internal correspondence and memorandums of the Ministry, on the ground that they were "confidential" documents belonging to the British Government. The case is relevant for our purposes because the federal court specifically stated that it would treat the British Ministry by the same standard as would "apply to a similar department of Government here." And the court concluded that there was no valid privilege in a case like this, saying:

"It is enough to say that for one to claim a privilege, he must make a showing that he is entitled to one, and that no such showing, in our opinion, was made here."

In other words, according to the instant court, an Executive department cannot refuse to disclose merely by raising a claim of official privilege.

Just as important is the fact that the court strongly emphasized that it is the function of the court, not the Executive, to determine what evidence is privileged. An attempt was made to bring the case under a California statute applicable "when public interest would suffer by disclosure." But, asked the court, "Does this mean that [the executive official] is final authority on that point? All reason says that the question is one for the court to determine." This is wholly contrary to Mr. Rogers' assertion that it is for the Executive itself to determine what matters must remain concealed in its departmental pigeonholes.

Similarly, in Reynolds v. United States," the court rejected a broad claim of Executive privilege, holding categorically that it was the court, not the Executive, who had the last word on the question. The Supreme Court, in

7 Ibid. See also 3 Hinds' Precedents 2-3, 85–86.

• Wigmore on Evidence 790 (1940).

133 F.2d 470 (9th Cir. 1943), cert. denied, 319 U.S. 752 (1943).

10 192 F.2d 987 (D.C. Cir. 1951).

reversing, expressly declined to consider the broad proposition of privilege raised by the Government, but decided instead on other grounds. Yet it is important to note that, even so, the highest Court was careful to state that the determination of privilege must be made by the Court, declaring expressly, "Judicial control over the evidence in a case cannot be abdictated to the caprice of executive officers." "1

12

Nor are these the only cases rejecting the extreme claim of Executive privilege in courtroom proceedings. In United States v. Certain Parcels of Land, a condemnation action by the Government, the defendant sought certain internal Department of Justice files. Of course, the Government was quick to claim privilege; but its claim was not sustained by the court. The court's language is extremely thought-provoking to those who have uncritically accepted the extreme arguments re privilege of the Executive Branch:

"In short the Government's claim of immunity under the Attorney General's regulations does not rest upon any privilege 'established in the law of evidence. . .' The sole ground for the claim is that the documents are 'confidential reports in Department of Justice files'; the Government's theory being, as stated before, that 'reports in the Department of Justice files' are privileged because made confidential by Order No. 3229 (Revised).

"Clearly there is no such privilege known to the law of evidence. The most that can be said for the Government's position is that there is a general public policy against unnecessary disclosure of files of the executive branches of the Government. However, this policy may readily be outweighed by the public interest in disclosure when such files contain documents of evidentiary value in a court of justice." 13

Another case along this line is Zimmerman v. Poindexter," where, in a civil suit for wrongful imprisonment, the plaintiff by subpoena sought to get certain files from the Army including Federal Bureau of Investigation reports. The court there too rejected the claim that it was for the Executive itself to determine what documents to withhold. According to the court, it itself had to make that determination. Said the court:

"We conclude by holding that to sustain the assertion of privilege of concealment under the specific situation before the court would be tantamount to abdicating an inherent judicial function of determining the facts upon which the admissibility of evidence in a case depends. This we cannot do." Also of moment here is the line of criminal cases where executive privilege has been asserted. These cases have uniformly rejected the Executive claims and have culminated in the recent decision of the Supreme Court in Jencks v. United States.15 In Jencks, the Court refused to allow Executive privilege to permit even Federal Bureau of Investigation files to be withheld from defendant, even without a showing on his part how the files sought were directly relevant to his defense. The need for justice, said the Court, is greater than any prejudice "attendant upon the possible disclosure of state secrets and other confidential information in the Government's possession." It is recognized that there are many who do not agree with the Jencks decision and that there has, indeed, been enacted a law which seeks to correct its too extreme effects. But can it seriously be contended that a Court which held that a private individual must be given access even to Federal Bureau of Investigation files would refuse to hold that the elected representatives of the people are entitled to at least the same access? Certainly, a tribunal which decided Jencks the way it did would be most unlikely to give free rein to the advocates of absolute Executive privilege vis-a-vis the Congress.

If the cases reject the claim of a privilege in the Executive to determine what papers should be withheld from a private litigant, how much more should that claim be rejected where the Congress is concerned! It is true that the administration of justice between private litigants is important and is not to be over-ridden except in the face of compelling necessity. In such cases, however, governmental necessities may outweigh the needs of the private parties. The same does not apply to a congressional investigation.

11 United States v. Reynolds, 345 U.S. 1, 9 (1952).

12 15 F.R.D. 224.

13 Id. at 230 (Italics added).

14 74 F. Supp. 933 (D. Hawaii 1947).

15 353 U.S. 657 (1957).

« PreviousContinue »