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the brother of the Attorney General, could be summoned by the Senatc in an investigation into the Attorney Gencral's conduct of the Department of Justice. But the determination that “the administration of the Department of Justice ... and particularly whether the Attorney General and his assistants were performing or neglecting their duties . .," was within Congress' jurisdiction carries analysis a long way." It is now established that the investigatory

Potts is cited in Jurney v. McCracken, 294 U.S. 125, 149 (1935), and Landis in Barenblatt v. United States, 360 U.S. 109, 112 (1959) (for proper perspective of "Congressional power of inquiry").

46 273 U.S. at 177. The Attorney General astonishingly misconceives the effect of McGrain v. Daugherty. Alt'y Gen. Memo. 71. In the interest of clarity each of his propositions will be treated separately. Regrettably, refutation of error requires morc space than its propagation. The Attorney General statcs: "How is the United States Supreme Court likely to decide the issue concerning the withholding of confidential papers by the executive branch from Congress and its committees? The case of McGrain v. Daugherty points to the following conclusions:

(a) The Houses of Congress have, in the past exceeded their powers, both with respect to their attempted punishment for contempt of private persons and of a United States official, and the Supreme Court did not hesitate to rejcct the improper assertions of congressional power," Ibid. (Citing Kilbourn v. Thompson, 103 U.S. 168 (1881) and Marshall v. Gordon, 243 U.S. 521 (1917)).

In fact, McGrain rejected Kilbourn's historically unsound intimations that "neither house of Congress has power to make inquiries and exact evidence in aid of contemplated legislation.” 273 U.S. at 171. Compare id. at 174. McGrain explained further that in Kilbourn "the resolution contained no suggestion of contemplated legislation; that the matter was onc in respect to which no valid legislation could be had; that the bankrupt's estate and the trustee's settement were still pending in bankruptcy court," and consequently, that the House had exceeded its powers and assumed to exercise clearly judicial power. Id. at 171. Mr. Justice Frankfurter remarked in United States v. Rumely, 345 U.S. 41, 46 (1953), upon the "inroads" made by McGrain upon Kilbourn.

Marshall v. Gordon, 243 U.S. 521 (1917), is even further afield. McGrain explains that there the issue was whether the House could punish for contempt a district attorney who sent an "irritating" letter to a Committee Chairman, and the Court emphasized that the "power to make inquiries and obtain information by compulsory process was not involved." 273 U.S. at 173. All that was decided in Marshall said McGrain, was that thc House could not punish for contempt because the letter "was not calculated or likely to affect the House in any of its proceedings or in the exercise of any of its functions...." Ibid. Both Kilbourn and Gordon are therefore totally irrelevant to the "withholding of confidential papers by the executive branch from Congress" when it seeks information in aid of legislation, appropriation or investigation of executive conduct.

The Attorney General states: “(b) Ever since 1796, the executive branch has asserted the right to say 'no' to the Houses of Congress, when they have requested confidential papers which the President or the heads of departments felt obliged to withhold, in the public interest. Since 1800, court decisions have uniformly beld that the president or beads of departments need not give testimony or produce papers which, in their judgment, require secrecy." Att'y Gen. Memo. 71. This paragraph suggests that the courts have "uniformly" sustained executive refusals to furnish information to Congress. Certainly the case of McGrain v. Dougherty contains not the slightest intimation to this effect. No case has so beld, see note 309 infra, and as will appear, no case cited by the Attorney General supports such a proposition. There is no absolute executive privilege to withhold even from private litigants. See text accompanying note 412 infra.




power of Congress "comprehends probes into departinents of the Federal Government to expose corruption, inefficiency oo waste."47

Since Congress is thus empowered to investigate the Attorney General, it should logically follows that it may call upon him or any of his assistants for information or documents. Not so, intimates Attorney General Rogers:

[T]he reason the court found a legislative power to summon private
persons for inquiry, in connection with the exercise of the legislative
function, was because of a practice, long continued, of summoning
private persons before the House of Congress ....48

This is to stage Hamlet without the Dane. As a practical matter, the Attorney General's suggestion that executive officers themselves

The Attorney General states that: “(c) Never in our entire history has either House of Congress taken any steps to enforce requests for the production of testimony or documents which have been refused by the executive branch.

“The foregoing, in the words of the Supreme Court in the Daugherty case, point 'to a practical construction, long continued, of the constitutional provisions respecting their powers,' by the executive and legislative branches. The long-continued practice of the executive branch, and the passage of no law by Congress to change that practice argue, persuasively for the possession of such a power, under the Constitution by the executive. The United States Supreme Court is not likely to ignore more than 150 years of legislative acquiescence in the assertion of that power." Att'y Gen. Memo. 71. (Empbasis added.) The suggestion that McGrain approves a practical construction "by the exccutive branch," perverts its meaning. The Supreme Court, after alluding to the fact that both houses of Congress early took the Colonial view that the power of inquiry was an "essential auxiliary” to the "legislative function," concluded that the Congressional, not the Executive, “practice . . . falls nothing short of a practical construction, long continucd, of the constitutional provisions respecting their powers, and thercfore should be taken as fixing the meaning of those provisions, if otherwise doubtful.” 273 U.S. at 174. (Emphasis added.) Having approved this “essential auxiliary" for the purposes of sustaining the summoning of witnesses in an investigation of the Department of Justice, McGrain scarcely intended to approve a claim of executive privilege to withhold information that would abort it.

Again, the Attorney General's statement that Congress has passed "no law to change that practice" is belied by the facts. See text accompanying notes 349-53 infra.

For comment on the “150 years of legislative acquiescence,” see text accompanying notes 111-13 infra.

47 Watkins v. United States, 354 U.S. 178, 187 (1957). See also Barenblatt v. United States, 360 U.S. 109, 111 (1959). Referring to a House Resolution which in part related to "alleged abuses in post officers, navy-yards, public buildings, and other public works of the United States,” President Buchanan stated to the House in a Message of March 28, 1860: "In such cases inquiries are highly proper in themselves and belong equally in the Senate and the House, as incident to their legislative duties and being necessary to enable them to discover and to provide the appropriate legislative remedies for any abuses which may be ascertained.” 5 RICHARDSON 614.

48 Atty Gen. Memo. 64. (Emphasis added.) The district court, however, had held the inquiry improper because it saw "no reason why the information ... cannot be obtained without calling outsiders.” Ex parte Daugherty, 299 Fed. 620, 640 (S. D. Obio 1924). (Emphasis added.)



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are shielded from summons has little to commend it. To restrict Congress to inquiry of "private persons” when only the official himself can supply information shedding light on public expenditures or mismanagement is to hamstring the power. The first one in line for interrogation, subject to protection against self-incrimination, is properly the official himself. We go for information “to those who best can give it and who are most interested in not doing so”; 49 consequently, said Roger Sherman in 1789, "we must get it out of this officer," the Secretary of the Treasury 50 It needs therefore to be asked: (a) whether historically executive officers could be summoned by legislative investigators of executive conduct, and (b) what limits, if any, were placed upon inquiries addressed to them.

A. English and Colonial Procedents

In 1624, Sir Francis Bacon, wh: knew something of government at first hand as Solicitor General and Attorney General and later Lord Chancellor, pungently sunmarized the parliamentary practice of examining into executive conduct. “Congratulating the Treasurer on his advancement,” Bacon declared that "he had one rule for all great officers of the Crown: ‘Remember, a Parliament will come.' "51 Lowen remarks on:

Parliament's extraordinary zeal [during this period) in scarching out corruption of government and trade. Between March and June, 1621, monopolies and briberies were beaten upon the anvil every day. ... President Judge Bennet of the High Commission was found guilty, Attorney General Velverton . . . Flect Warden Harris . . . 'I am ashamed," (King) James told Parliament, and it makes my hair stand upright.'5.

A few examples must suftice to illustrate the English and colonial practices of summoning executive ofiicers.53 Landis tells us that "in 1604 Sir Francis Godwin's Case, the following entry (House of Commons] is to be found: ‘Power given in that case to send for an Officer, and to view and search any Record or other

49 United States v. Morton Salt Co., 338 U.S. 632, 6+2 (1950); McGrain v. Daugherty, 273 U.S. 135, 163 (1927).

60 Sec text accompanying note 86 infra. For a similar cxpression in the First Congress by Mr. Ames, see note 86 infra.

51 BOWEN 462. 52 Id. at 435.

53 These practices are more fully documented by Potts and by Landis. See TAYLOR 61, where the author justly calls these works "iormidable historical analyses of the investigative power." A canvass of more recent colonial studies, which are not directed to this issue, turned up no additional examples. Further colonial research might prove rewarding.




thing of that kind. ...?1154 An early parliamentary inquiry (1666) into whether appropriated funds had been expended for authorized purposes is found in the authorization of a committee “to inspect the several Accounts of the Oficers of the Navy, Ordnance, and Stores,” and to send for persons and papers.“5 Compare the 1729 investigation of prison administration and the authorization "to examine any Persons, they shall think fit. ...»56 Such practices were boldly summarized in the course of the debate which preceded the Walpole inquiry and with which, as will appear, Jefferson was familiar.

When Walpole fell from power in 1742, his opponents in the Commons moved for a committee to investigate his conduct throughout the previous two decades.57 Lord Limerick said that no duty of the House was more important "than that of inquiring strictly and impartially into the Conduct of those who are intrusted by the King with the executive Part of our Government."58 The times were stormy; England was at war with Spain; the opposition rattled the bones of disrupted continental alliances; they raised the dread spectre of civil war; and they played a tattoo on the multitudinous dangers that would flow from a parliamentary inquiry.69 But to no avail. Member after member spoke for the right and the duty to inquire into the conduct of the administration and its ministers from the lowest to the highest."60 Said one, “shall there be the least Suspicion of Mismanagement, and a British House of Commons not inquire into it?"61 Opposition to the inquiry was not based on a denial of the power but on injudicious timing, 62 and an opposition spokesman confirmed that no man would deny that "we have a Right to inquire into the Conduct of our publick affairs,"63 That this right included the power to bring executive officers themselves before the House is illustrated by the examination of Nicholas Paxton,


55 8 Comm. Jour. 628 (1666), cited by Landis 161. Again, "dissatisfaction with the conduct of the war in Ireland led on June 1, 1689, to the creation of a committee 'to inquire who has been the occasion of the Delays in sending Relief over to Ireland, and particularly to Londonderry.'” Landis 162.

56 Id. at 163. The rejection of parliamentary precedent as "judicial” in Kilbourn v. Thompson, 103 U.S. 168 (1881), has been shown to be unhistorical. Landis 159-60; Potts 692-96. United States v. Rumely, 345 U.S. 41, 46 (1953), notes this riticism and remarks upon the "inroads" made by McGrain v. Daugherty, 373 U.S. 135 (1927), upon Kilbourn v. Thompson.

37 13 CHANDLER 139.
38 Ibid.
69 id. at 82, 86, 89, 99, 154, 195.
80 Id. at 157, 93, 94, 96, 101, 139-40, 150, 158, 161, 210.
61 ld. at 149.
62 Id. at 161, 192, 195.

63 Id. at 161. For a similar concession by Horatio Walpole, son of Robert Walpole, see id. at 195.



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Solicitor of the Treasury, who refused to testify on the ground that he should not be compelled to "accuse” himself, and was thereupon imprisoned. 64 The twenty-year proposal was defeated but the House then instituted an inquiry limited to the prior ten years." It was in the midst of this debate that the elder William Pitt, after pointing to the historical precedents, summed up the matter: “We are called the Grand Inquest of the Nation, and as such it is our Duty to inquire into every step of public Management, either Abroad or at Home, in order to see that nothing has been done amiss."

Understandably, colonial practices reflected this background. After studying colonial examples, Potts concluded that “the colonial assemblies like the House of Commons, very early assumed, usually without question, the right to investigate the conduct of the other departments of the government ...."67 Among the examples he cited were the inquiry in 1722 by the Massachusetts House of Representatives into the failure of Colonel Walton and Major Moody to carry out certain operations in the field, resting on its duty "to demand of any Officer in the pay and service of this government an account of his .:Ianagement while in the Public Imploy."68 Another was the action of the Pennsylvania Legislature in 1770 when it

84 Id. at 224-25; Committee Rept. pr. 2-3, appearing in id. 65 Id. at 182, 189, 216.

66 Id. al 172. The House was reminded of a prior inquiry by a "famous committee" of which Sir R. Walpole was himself chairman. Id. at 103. Xote too a prior inquiry into "the Conduct of the Lord Commissioners of our Admiralty," who were censured and then deprived of the "Direction of that Branch of the publick Business." Id. at 208.

That the House was the "Grand Inquest" had been earlier asserted by Coke, 4 Inst. 11, and was confirmed by Justice Coleridge in Howard v. Cossett, 10 Q.B. 359, 379-80, 116 Eng. Rep. 139, 147 (1845): "That the Commons are, in the words of Lord Coke, the general inquisitors of the realm, I fully admit: ... it would be difficult to define any limits by which the subject matter of their inquiry can be bounded.... I would be content to state that they may inquire into everything which concerns the public wcal for them to know; and they themselves, I think, are entrusted with the determinatior. of wbat falls within that category." (Emphasis added.) This was in essence repeated on appeal in Gossett v. Howard, 10 Q.B. 411, 451, 116 Eng. Rep. 158 (1845).

There appeared to be no judicial limitations in England on the broad power of inquiry and commitment. When the Lord Mayor of London was committed by the House of Commons to the Tower of London for contempt, the court held that it "hath no cognizance of contempts and breaches of privileges of the House of Commons: they are the only judges of their own privileges." Case of Brass Crosby, 3 Wilson 188, 203, 95 Eng. Rep. 1005-13 (K.B. 1771). See also id. at 199, 204, 95 Eng. Rep. at 1010, 1013. Parliamentary commitments for contempt remain immune from judicial interference. Burdett v. Abbott, 14 East I, 149, 104 Eng. Rep. 501, 558 (K.B. 1811), af'd, 5 Dow 165, 200-02, 3 Eng. Rep. 1289, 1302 (H.L. 1817); Fielding v. Thomas, (1896) A.C. 600, 609; Stockdale v. Hansard, L.R. 9 Ad. & E. 1, 169, 223-24, 232, 112 Eng. Rep. 1112, 1176, 1195-96, 1199 (Q.B. 1939); Gossett v. Howard, 10 Q.B. 411, 451, 116 Eng. Rep. 155. 172 (1945); MAY 93.

67 Potts 708.

88 Ibid.

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