1965] WITHHOLDING INFORMATION 1089 decided preponderance of sentiment in the House, including the views of most opponents of the House resolution. The House began simply enough with a proposed resolution calling for information,235 promptly modified by an exception proposed by Edward Livingston for papers that "any existing negotiation may render improper to disclose."236 This proposal was swiftly engulfed by an elaborate debate whether the House had a constitutional right to review treaties in which the President and Senate had concurred. Mark that this was before Washington had said a word about the matter. The debate ran on for four weeks and is reported in 334 closely printed pages. 237 The plea of "secrecy" advanced by opponents of the resolution was speedily riddled. Mr. Smith asked "are these papers secret? No, they are known to thirty Senators, their Secretary and his clerks, to all officers of Government, and to those members of this House who chose to read them."238 Mr. Williams, though he opposed the resolution, said that "he did not think there were any secrets in them. He believed he had seen them all. For the space of ten weeks any member of that [sic] House might have seen them [in the Senate]."39 "Secrecy" was clearly a make-weight. To the fact that the papers had been laid before the Senate may be added the fact, as Mr. Livingston pointed out, that "from the first establishment of the Constitution . . . the Executive had been in the habit of free communication with the Legislature as to our external relations."240 He pointed to the fact that confidential information had been conveyed to the House respecting a treaty with Algiers and Morocco in 1790,241 and instructions that were who had concurred in ratifying the Treaty." 5 ANNALS OF CONG. 775 (1796). It is worth noting that Baldwin of Georgia, also a former member of the Convention, id., at 700-01, and who argued for the fullest "publicity . . . in public transaction," id. at 435, nevertheless felt that it was subject to "but one limitation," and that "was, that, while measures were in the transaction, and in an unfinished state, it might at many times, be improper to disclose them." Id. at 534. (Emphasis added.) 235 Id. at 426. The call was for "a copy of the instructions to the Minister of the United States, who negotiated the Treaty . . together with the correspondence and other documents relative to the said Treaty." Ibid. 236 Ibid. 237 Id. at 426-760. See id. at 784. 238 Id. at 625. 239 Id. at 642. See also id. at 588. 240 Id. at 636. Mr. Livingston also cited the Parliamentary request for instructions to the Duke of Marlborough respecting negotiation of the Barrier Treaty with Holland in 1709, and other relevant correspondence, which the Queen had ratified. Id. at 634, 754. The opposition acknowledged the incident but sought to discredit it as a reflection of shifting political tides, id. at 754; but what dispute between administration and opposition is not subject to the same objection. 241 Id. at 638. In his closing remarks, Madison said that: "A view of these 1090 UCLA LAW REVIEW [Vol. 12: 1043 given to the Commissioners who were to negotiate with Spain, France and Great Britain in 1793.242 Mr. Smith referred to the President's transmission of documents of a "confidential nature" respecting the Proclamation of Neutrality in 1793.43 Mr. Lyman recalled a request for a missing paper in the correspondence between Secretary of State Jefferson and the British Minister which was satisfied, as is corroborated by the debates of the earlier Congress,245 and as was conceded by the opposition.246 All of which, said Mr. Livingston, shows that "on some occasions, it was not deemed imprudent to trust this House with the secrets of the Cabinet." "Secrecy" was therefore merely a pretext to be given, as Pitt earlier remarked, little weight on the issue of withholding," and it had found small favor with Jefferson.249 245 precedents had been pretty fully presented to them by a gentleman from New York, [Mr. Livingston], with all the observations which the subject seemed to require." Id. at 781. Livingston had argued for the fullest disclosure. 242 Id. at 638-39. Washington wrote the Senate and the House on Dec. 5, 1793: "On the subjects of mutual interest between this Country and Spain, negotiations and conferences are now depending. The public good requiring that the present state of these should be made known to the Legislature in confidence only, they shall be the subject of a separate and subsequent communication." 33 WRITINGS OF WASHINGTON 173 (1940). (Emphasis added.) For additional confidential communications respecting treaties to both House and Senate, see id. at 330, 374. 243 5 ANNALS OF CONC. 622 (1796). 244 Id. at 601. 245 It was Mr. Madison who "thought there was a chasm, which should be filled up." 4 ANNALS OF CONG. 250 (1794). So the President was requested "to lay before the House the omitted letter, or such parts as he may think proper." Id. at 251. The entire letter was forwarded by Secretary of State Jefferson. Id. at 256. In 1794, Washington sent to the House a letter from "our Minister at London of a confidential nature," apparently relating to a treaty. Id. at 462. For other confidential matters forwarded by Washington, from the commissioners at Madrid, see id. at 595. See also id. at 674, 713, 437, 393-94. 246 5 ANNALS OF CONG. 649, 442 (1796). 247 Id. at 638. In defending before the Virginia Ratification Convention the provision in art. I, § 5(3), authorizing cach House to keep parts of their journals secret, John Marshall stated: "In this plan, secrecy is only used when it would be fatally pernicious to publish the schemes of government." 3 ELLIOT'S DEbates 223 (1881). 248 It needs to be stressed that "secrecy" was claimed solely for delicate negotiations. So Smith of South Carolina said, "in the process of negotiation, many things are necessarily suggested, the publication of which may involve serious inconvenience. . . ." 5 ANNALS OF CONG. 441 (1796). And Williams observed that "in the negotiations in time of war, confidential communications were necessary. . . .” Id. at 642. 249 In a diary note of Nov. 28, 1793, Jefferson reiers to the "draught of messages on the subject of France and England." Hamilton and Knox objected to disclosure of the whole, Randolph to part; Jefferson records: "I began to tremble now for the whole, lest all should be kept secret. I urged, especially, the duty now incumbent on the President, to lay before the legislature and the public what had passed on the inexecution of the treaty, . . . it could no longer be considered as a negotiation pending. . . . The President . . . decided without reserve, that not only what had passed on the inexecution of the treaty should go in as public... but also that those respecting th stopping of our corn should go in as public. . . . 1965] WITHHOLDING INFORMATION 1091 Although the call for information was so carly swallowed up by the debate on the role of the IIouse in review of treaties,200 there was nonetheless strong and repeated insistence upon the right of the House to know. Mr. Nicholas alluded to the right of the House as the "grand inquest of the nation," to "superintendence over the officers of Government," and asserted that this right "gave a right to demand a sight of those papers, that should throw light upon their conduct." Mr. IIcath said this right was "founded upon a principle of publicity essentially necessary in this, our Republic, which has never been opposed. . . ."262 Mr. Lyman added that: The right of calling for papers was sanctioned, by the uniform and undeniable practice of the House ever since the organization of the Government; . . . the House had the fullest right to the possession of any in the Executive Department... this was the first time it had been controverted.268 This cannot be dismissed as political rodomontade, for Washington, it will be recalled, had turned over the St. Clair papers without reference to the secret reservations for the future recorded in Jefferson's notes. Mr. Smith also said that it had been the "custom... invariably to ask for all and every paper that might lead to information."25 A number of opponents readily conceded the right. So, Mr. Harper agreed that if information sought by the House "came within its powers," it "in that case, would have a right to the papers; He would demand them and insist on the demand.”255 Another opponent, Mr. Smith of New Hampshire, said that were the papers "necessary" to decide whether to carry the treaty into effect, he conceived they not only possessed the right, but that it was their duty to call for all papers and documents which would enlighten their minds or inform their judgments on all subjects within their sphere of agency. He had always been in favor of such calls.256 How little Madison's views reflected those of the House is underscored by its rejection of his motion to substitute for This was the first instance I had seen of his deciding on the opinion of one against that of three others, which proved his own to have been very strong." Padover, op. cit. supra note 223, at 1270. 250 This was in fact the subject of repeated comment. 5 ANNALS OF CONG. 487, 495, 717, 726 (1796). 251 Id. at 444. So too Mr. Livingston, id. at 629. 252 Id. at 448. 253 Id. at 601. (Emphasis added.) 254 Id. at 622. (Emphasis added.) Mr. Brent referred to "calls so often made for information to the Heads of Departments." Id. at 575. 255 Id. at 458. (Emphasis added.) 266 Id. at 593. (Emphasis added.) See also id. at 501, 613. Only two opponents, N. Smith and Coit, id. at 453, 656, claimed executive discretion to withhold. 1092 UCLA LAW REVIEW [Vol. 12: 1043 Livingston's exception for "existing negotiations" a broader formula excepting "so much as, in his [the President's] judgment, it may not be consistent with the interest of the United States, at this time, to disclose."287 Cognizant of this lengthy debate, Washington, as we have seen, stated that (1) inspection of treaty papers was outside the purview of the House, and (2) the impeachment power which would authorize inspection was not named in the resolution.268 At once proponents of the resolution were up in arms. Indeed, Mr. Giles stated that "he never would consent to act upon [the British Treaty] till the papers deemed material to the investigation were laid upon the table."25 His allies insisted that the House should consider recording a refutation "for posterity."260 Opponents stressed that three weeks had already been consumed, that three additional weeks would be frittered away, that the House was faced with a deadline of June first on which to complete action on the treaty itself, and that there was no time to lose.201 They were beaten and the matter was referred to the Committee of the Whole,262 which then considered two resolutions: (1) that the House was empowered to consider the expediency of carrying a treaty into effect, and (2) that it need not state the purpose for which it required information.208 Mr. Madison rose to speak to these resolutions,204 and devoted the greater part of his remarks to the power of the House respecting treaties. At the conclusion of his lengthy remarks, the question was immediately moved by Mr. Swift, who said that: The same principles which were involved in the present question had already undergone a discussion of three weeks, and no doubt could remain on the mind of any gentleman in that House on the subject; nor did he think that if three weeks more were to be consumed in the discussion, one opinion would be changed. 205 The resolutions carried by 57 to 35.206 It may be ventured that Mr. Madison's remarks likewise did not change one opinion earlier ex 257 Id. at 438. As Mr. Giles said: "[A] majority of the House, when their sentiments are collected, speak the sense of the House." Id. at 766. And Madison too said that the "meaning of the Constitution would be established, as far as depends on the vote of the House of Representatives.” Id. at 782. 258 Id. at 761. 259 Id. at 762. 200 Id. at 768, 762-63, 765, 767. 201 Id. at 763, 765-66, 769-70. 262 Id. at 771. 203 Id. at 771-72. 204 Id. at 772-81. 265 Id. at 781. 266 Id. at 782-83. 1965] WITHHOLDING INFORMATION 1093 pressed. His concession of more than even Washington claimed at most represents his own views, not those of the Convention nor of the House. Before, during, and after this incident, the House insisted on plenary access to information from the executive. A highlight was furnished by John Quincy Adams who, after moving from the Presidency to the House, joined in insisting that "the House had the right to demand and receive all the papers" respecting President Polk's instructions to our Minister to Mexico.267 Both John Adams and his son had great diplomatic careers and knew full well how far the need for secrecy in foreign affairs stretched and yet both affirmed the House's right to know. B. The Jefferson Incident 268 Next Attorney General Rogers quotes a Jefferson incident as the "first authoritative instance of a President of the United States refusing to divulge confidential information. . . ." The House had requested information respecting the Burr conspiracy "except such as he [Jefferson] may deem the public welfare to require not be disclosed...." In withholding the names of those implicated by rumor or conjecture. Jefferson nevertheless explained that "neither safety nor justice will permit the exposing names."270 A gratuitous explanation made to justify the exercise of expressly "excepted" discretion conferred by the House is termed an "authoritative refusal"! As a House Committee said in 1843 respecting a similar Monroe incident in 1823,1 "the House invested the President... with the discretion which he exercised" and it is not to be presumed that the exercise of the discretion by President Monroe, in a case where it was conferred upon him, proves that he would have 267 BEMIS, JOHN QUINCY ADAMS 532. (Emphasis added.) The House Resolution was voted 145 to 15 (for an example of similar unanimity in the Tyler administration, see note 282 infra), the purpose being "to air the question whether Polk had conspired with Santa Anna to overthrow the de facto Mexican Government on the eve of the [Mexican] war. . . ." Ibid. Was not this a subject of legitimate interest to the Nation and the House? But Bemis opines: "There is no question who had the better of the argument. George Washington and James K. Polk were right and John Quincy Adams was wrong." Id. at 552-33. Let the reader decide for himselí in light of history. 268 Att'y Gen. Memo. 6. (Emphasis added.) 269 Ibid. Younger 758, sets out the Jefferson message without printing the House exemption. 270 Att'y Gen. Memo. 6. 271 Younger 759, commenting on a House inquiry into suspension of a naval officer for misconduct and its request for related documents sets out Monroe's statement that the required documents "might tend to excite prejudices which might operate to both [accuser and accused]." The House, however, had merely requested Monroe to furnish "so far as he may deem compatible with the public interest any correspondence. . . ." Quoted in H.R. REP. No. 271, supra note 226, at 13. Younger repeatedly omits to notice such exemptions. |