1965] WITHHOLDING INFORMATION 1049 unknown in prior periods of American history."23 Even the once perfervid admirer of the investigatory function, Mr. Justice Frankfurter,24 was constrained to say that "we would have to be [a] ... 'blind' Court... not to know that there is wide concern, both in and out of Congress, over some aspects of the exercise of Congressional power of inquiry."25 The McCarthean effrontery left the more enduring impress because the Senate never saw fit to curb or censure him for his perversion of the investigatory function.26 Closer oversight by Congress of its less responsible committees would go far to restore sympathy for its claim to be informed.27 And Congress might profitably emulate the self-discipline of Parliament, which made possible the sharing of the most vital secrets in the midst of World War II.28 But "if Congressional use of the power to investigate produced occasional excesses, it also produced tremendous boons."29 We need only recall the benefits which flowed from the Senate investigation of the Teapot Dome scandals.30 Corruption and mismanagement have 23 Watkins v. United States, 354 U.S. 178, 195 (1957). An historian recently stated that "after generations of orderly and stable government, the greatest nation in the world, victorious in a global conflict but terrified by strange fantasies, hounded and harassed a handful of domestic Communists. Long instructed in the way of freedom, powerful and united, the United States gave way in the twentieth century to panic fears, enacting legislation in the name of 'internal security' that later historians may well judge far more harshly than the Alien and Sedition Acts." 2 PAGE SMITH 977. 24 "The power of investigation should be left untrammeled." Frankfurter, Hands Of the Investigations, 38 New Republic 329, 331 (1924). This was said of the Teapot Dome investigation which struck paydirt. See note 31 infra. 25 United States v. Rumely, 345 U.S. 41, 44 (1953). 26 "It is especially noteworthy, as Senator Monroney pointed out on the closing day of debate, that Senator McCarthy was not censured for his misuse of the Senate's investigatorial prerogatives, for his attack against the Executive Branch, or for his treatment of anyone other than his fellow-senators. He was censured only for his sulphurous reaction to the Senate's undertaking to investigate and judge him -i.e., for obstructing rather than for abusing the Senate's power." TAYLOR 134. 27 A Special Committee of the American Bar Association reported in 1954 that "the whole history of investigations, confirmed by current examples, shows that it is not enough to create committees and let them proceed as they see fit, often at the whim of the chairman. The scope of their operations should be subjected to continuing congressional scrutiny by the whole of the particular House, through a specific group to which is delegated the express duty of supervision of the committees." BARTH 201-02. 28 See note 534 infra. 29 BARTH 14. 30 See Professor Frankfurter's remarks, infra note 31. Clark R. Mollenhoff stated that: "Past history should pretty well demonstrate that the executive branch does not do a good job of investigating itself. This is particularly true of the Military Establishment. It was the Congress that revealed the scandals involving Gen. Benny Meyers. It was the Congress that pulled loose the scandals involving Harry (the Hat) Lev and the New York procurement office. It was the Congress that produced the 'Chamber of Horrors' on military buying practices generally. It was the Congress that revealed the details of the classic military corruption and 81 [Vol. 12: 1043 repeatedly come to light over strenuous executive opposition only because of congressional investigation. Well could Woodrow Wilson, a student of government and history, say in 1885: "Unless Congress have and use every means of acquainting itself with the acts and disposition of the administrative agents of the government, the country must be helpless to learn how it is being served. . . 1182 The starting point, therefore, must be a congressional function which has proven its value repeatedly over the years. Growing resort by the executive branch to "uncontrolled discretion" to withhold information from Congress must in time rob the country of the benefits which flow from legislative inquiry into executive mismanagement in the construction of an airstrip at Fort Lee, Va. These scandals were actually being hidden or disregarded by the Pentagon until the Congress stepped in. . . . We should remember that the Symington Armed Services Subcommittee has demonstrated that several billions of dollars were wasted in the stockpiling of strategic and critical material. A vast curtain of secrecy covered the stockpile purchasing and the political letters and questionable decisions that went into the creation of that $9 billion stockpile." 109 CONG. REC. 3204 (1963) (Address of Clark R. Mollenhoff). 31 Writing in 1924 of the Teapot Dome investigations, Professor Frankfurter stated that "the bills filed by the government against the Sinclair and Doheny leases are based upon the findings of the Walsh committee, namely, corruption and conspiracy rendered possible through Secretary Fall's corruption and Secretary Denby's guileless incompetency; the disgrace of, and pending grand jury inquiry into a recent member of the Cabinet-Fall, the dismissal of a third member-the Attorney General [Harry Daugherty]-because of an enveloping, malodorous atmosphere." Frankfurter, supra note 24, at 329-30. All of this in face of the fact that: "For nearly two years the efforts to uncover wrongdoing in the disposal of our public domain were hampered by every conceivable obstruction on the part of those in office." Id. at 330. Compare this with President Coolidge's blocking of a Senate investigation of Secretary of the Treasury Andrew Mellon's corporate holdings. The Senate had appointed a committee to investigate the Bureau of Internal Revenue in order "to obtain information upon which to recommend to the Senate reforms in law and in administration of the Bureau." Coolidge said: "Seemingly the request for a list of the companies in which the Secretary of the Treasury was alleged to be interested, for the purpose of investigating their tax returns, must have been dictated by some other motive than a desire to secure information for the purpose of legislation. . ." and therefore refused the list. Att'y Gen. Memo. 19-20. (Emphasis added.) But "motives alone would not vitiate an investigation if that assembly's legislative purpose is being served [even where the] true objective of the Committee was purely 'exposure.'" Barenblatt v. United States, 360 U.S. 109, 132 (1959). The Senate justifiably could be interested in Mellon's vast corporate empire and its impact on his Treasury activities. 32 Quoted in United States v. Rumely, 345 U.S. 41, 43 (1953). Judge Wyzanski stated: "Congressional investigations are only one, if an extreme example of our belief that exposure is the surest guard . . . against official corruption and bureaucratic waste, inefficiency and rigidity. That this confidence in legislative investigations as a prophylactic is not absurd is demonstrated to some extent by the difference in the strength and survival quality of democracy in English-speaking countries where such investigations are encouraged and Continental countries where they have been held within close bounds. . . . Perhaps France would have been better off if the Stavisky scandal had been investigated rather than hushed up." Wyzanski 102. 1965] WITHHOLDING INFORMATION 1051 conduct.33 Few would deny that, as a practical matter, resort to unlimited executive privilege could cripple the Congress and render it impotent to carry out its functions.34 That information is far more frequently furnished than withheld is beside the point, because investigation is hobbled at the outset if the executive branch may determine what Congress shall see and hear. How can that determination safely be left to the object of investigation? In measuring on practical grounds the assertion of executive power to determine what Congress may safely see, we do well to bear in mind the words of Mr. Justice Jackson, who knew from the inside the power and leverage of the executive establishment: I cannot be brought to believe that this country will suffer if the Court If the relative immunity of the executive departments from judicial review is not as extensive as that afforded the President, it has yet become so broad in practical effect as to give pause before adding to it immunity from congressional inquiry except by executive leave.37 That way lies the road to bureaucratic irresponsibility. 33 The fact that the Johnson Administration presently is exercising commendable restraint merely postpones the problem whether the legislature's crucial need for information can be left to executive mercies. The point is made by the 1963 Memo. of the House Government Operations Subcommittee under the sympathetic Chairmanship of Congressman John E. Moss: "The powerful genie of executive privilege momentarily is confined but can be uncorked by future Presidents." Gov't Info. Memo. 49. 34 Recent privilege proponents say that "undue secrecy may seriously cripple the legislature and promote official arrogance and inefficiency as well as fiscal laxity . . . government without investigation might easily turn out to be democratic government no longer." Kramer & Marcuse 915-16. See also note 779 infra; TAYLOR 97; Younger 775. Acting Director Saccio of the International Cooperation Administration, testifying with respect to a refusal to furnish an ICA evaluation of its Vietnam program, said: "[I]f ICA wanted to apply the 'executive privilege' GAO [General Accounting Office] would not see one thing because practically every document in our agency has an opinion or a piece of advice." Kramer & Marcuse 852. That possibility had been forescen by Taylor when he said: "A very large part of administrative work consists of advice and communication between and among government officials. If President Eisenhower's directive [of May 17, 1954, responding to the McCarthy-Army controversy] were applied generally in line with its literal and sweeping language, Congressional committees would frequently be shut off from access to documents to which they are clearly entitled by tradition, common sense, and good governmental practice." TAYLOR 133. As will appear below, the executive branch has more than once flaunted "tradition and common sense." 35 Kramer & Marcuse 623; Bishop 489. 36 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 654 (1952) (concurring opinion). For the views of the Founding Fathers, see text accompanying notes 132-42 infra. 37 Warner Gardner remarked that in many cases "the administrative discretion is in practical effect final and beyond revision by the courts, the Congress or the Executive," GELLHORN & BYSE 24, and that the agencies "are usually beyond any 1052 UCLA LAW REVIEW [Vol. 12: 1043 Nor need an absolute congressional power to demand be substituted for an absolute executive power to withhold information. Constitutional absolutes are justly regarded with skepticism; scarcely a right or power asserted under the Constitution is free from the need to be accommodated with another. The powers of Congress and the executive, as former Assistant Attorney General Kramer said, “are neither absolute nor mutually exclusive," rather "both powers are of equal dignity."88 But apparently the executive, to borrow Orwell's phrase, is "more equal" than Congress. The absence of privilege, argued Mr. Kramer, would render Congress "superior" because the executive would have to surrender all information demanded by Congress. By opting for executive discretion to determine what Congress may see, however, he would make the executive superior. What Mr. Kramer leaves implicit was unabashedly asserted by Attorney General Rogers: "the President and heads of departments must and do have the last word."40 Tested by history or practical dictates of government this assertion is dubious in the extreme." And it would be disadvantageous to leave either branch at the mercy of the other in the demarcation of their constitutional boundaries. This raises a key question: Are the courts-the traditional arbiters of constitutional boundaries-authorized to settle disputes between the legislative and executive branches as to the scope of their systematic control by the legislature or the executive, while judicial review of most agencies can operate only on the edges and not at the center of the administrative process." Id. at 31. This can be said with equal justice of administration by the departments. Senator Paul Douglas has remarked that "out of a deep instinctive wisdom, the American people have never been willing to confide their individual or collective destinics to civil servants over whom they have little control." Id. at 182-83. It is not enough that the increasingly broad legislative delegations have aroused uneasiness because of the trend from "representative government toward bureaucratic ascendancy," GRIFFITH 2: now the bureaucracy would censor what Congress may see. 88 Kramer & Marcuse 915. 80 Id. at 910. 40 Att'y Gen. Memo. 46. Indeed, he all but warned the courts to keep their hands off the executive. See text accompanying note 321 infra. See also note 316 infra. "What could be better evidence of complete dependence than to subject the validity of the decision of one 'Department' as to its authority on a given occasion to review and reversal by another whose own action was conditioned upon the answer to the same issue? Such a doctrine makes supreme the 'Department' that has the last word." HAND 4. The view that "prevailed," said Judge Hand, was "that it was a function of the courts to decide which 'Department' was right, and that all were bound to accept the decision of the Supreme Court." Id. at 3. 41 Moreover, to leave to the President the determination in any particular case whether the public interest permits disclosure is to "leave open the possibility that the President may abuse his prerogative, especially in instances where the information would reflect unfavorably on him or his administration of the nation's affairs." TAYLOR 101. The realization of this possibility during the Eisenhower Administration is hereafter discussed. 1965] WITHHOLDING INFORMATION 1053 respective powers? Or are such disputes nonjusticiable "political questions," as has been generally assumed? It is time to inquire whether the "political question" cases sustain the assumption that the colliding claims of Congress to demand and of the executive branch to withhold information are nonjusticiable, the more so since other comfortable assumptions have been swept away by the thundering avalanche that was Baker v. Carr.43 It has been observed, not unjustly, that there has been a "plethora of ipse dixits on both sides of the [executive privilege] question." The unhappy alternative to ex cathedra utterance is exposition and refutation in detail. What follows is an attempt to grasp the nettle, sift competing views, and frame issues in order to present a coherent panorama of the field. I. HISTORY OF LEGISLATIVE POWER TO INQUIRE INTO EXECUTIVE CONDUCT The broad power of Congress to inquire into executive conduct is deeply rooted in parliamentary and colonial history and was immediately asserted by the first Congress. So much has received express recognition by the Supreme Court in McGrain v. Daughcrty." The narrow issue in McGrain was whether a private person, 42 See note 708 infra. 48 369 U.S. 186 (1962). 44 Bishop 483. Consider the Attorney General's statement that "courts have uniformly held that the President and heads of departments have an uncontrolled discretion to withhold. . . ." Att'y Gen. Memo. 1. See also id. at 32. This has been termed a "remarkable and inexact assertion," Bishop 478 n.5, and "utterly unsupported by any case." Schwartz 13. Cf. text accompanying notes 308-09 infra. Though the author concurs in these views, the Attorney General's collection of "authorities" for this proposition requires more than out-of-hand dismissal if only because of the weight that ordinarily attaches to an opinion (here furnished to the Senate) of the chief law officer of the United States. In an address before the Massachusetts Historical Society Wiggins said that: "Unless historians bestir themselves... the lawyers' [i.e., the Attorney General's] summary that has placed 170 years of history squarely behind the assertion of unlimited executive power to withhold information, threatens to get incorporated into that collection of fixed beliefs and settled opinions that governs the conduct of affairs. History may thereafter become what the lawyers mistakenly said it was theretofore." Wiggins, Lawyers as Judges of History, 75 Mass. Hist. Soc. Proc. 84, 104 (1963). 45 273 U. S. 135 (1927). "In actual legislative practice power to secure needed information by such [investigatory means] has long been treated as an attribute of the power to legislate. It was so regarded in the British Parliament and in the Colonial legislatures before the American Revolution. . . . This power was both asserted and exerted by the House of Representatives in 1792, when it appointed a select committee to inquire into the St. Clair expedition. . . .” Id. at 161. At the time of McGrain, it was not yet fashionable to cite law review articles, but internal evidence discloses heavy reliance on the then recently published historical studies by Potts and Landis. Cf. TAYLOR 61-62. 68-287 O 71 5 |