A CRITIQUE OF THE LEGAL ARGUMENT OF THE EXECUTIVE BRANCH

In order to ascertain just what is meant by the legal argument of the executive branch, it is necessary to examine two specific answers of executive departments to requests for information from committees of Congress.

In April of 1941, Robert H. Jackson, presently an Associate Justice of the Supreme Court, was Attorney-General of the United States, a member of the Cabinet of the late President Roosevelt. On April 23, 1941, he had been requested by the Honorable Carl Vinson, Chairman of the House Committee on Naval Affairs to furnish the committee with all Federal Bureau of Investigation reports since June, 1939, together with all future reports, memoranda, and correspondence of the Federal Bureau of Investigation, or the Department of Justice, in connection with investigations made by that Department arising out of strikes, subversive activities in connection with labor disputes, or labor disturbances of any kind in industrial establishments which had naval contracts, either as prime contractors or subcontractors. Since the Attorney-General and the Justice Department in general had received several requests for similar types of information, Jackson framed his answer to the committee in the manner of a governmental statement of policy, or in other words as a formal "Opinion of the Attorney-General."

The Attorney-General restated the position of the Department of Justice that all investigative reports are confidential documents of the executive department of the government, intended to aid the President in his duty of seeing that the laws of the land are faithfully executed, and that congressional or public access to them would not be in the public interest.70 He further stated that disclosure of these reports could not do otherwise than prejudice law enforcement; that disclosure of the reports at that time would also prejudice the national defense and be of aid and comfort to the very subversive elements against which the Congress wished to protect the country; that disclosure of the reports would be of serious prejudice to the future usefulness of the Federal Bureau of Investigation; and that disclosure of information contained in the reports might also result in the grossest kind of injustice to innocent individuals.”1

The lawyer of the cabinet then restated that, in refusing to submit

69 40 Op. Atty. Gen. 45 (1941).

70 Id. at 46.

71 Id. at 47.

the requested documents to the committee, he was following the "eminent examples" of a long line of predecessors, citing from letters of various Attorneys-General of the United States to the various Houses of Congress; 72 in addition, he cited the usual examples of presidential refusals and refusals of the executive branch.78

The important citation from this opinion of the Attorney-General, in which we are most interested, is the statement made that "this discretion in the executive branch has been upheld and respected by the judiciary." Continuing with this line of reasoning, Jackson further

states:

... The courts have repeatedly held that they will not and cannot require the executive to produce such papers when in the opinion of the executive their production is contrary to the public interests. The courts have also held that the question whether the production of the papers would be against the public interest is one for the executive and not for the courts to determine.75

72 Attorney-General Jackson cited the following opinions of his predecessors at 40 Op. Atty. Gen. 45, 47 (1941):

"Letter of Attorney General Knox to the Speaker of the House, dated April 27, 1904, declining to comply with a resolution of the House requesting the Attorney General to furnish the House with all papers and documents and other information concerning the investigation of the Northern Securities case.

"Letter of Attorney General Bonaparte to the Speaker of the House, dated April 13, 1908, declining to comply with a resolution of the House requesting the Attorney General to furnish to the House information concerning the investigation of certain corporations engaged in the manufacture of word pulp or print paper.

"Letter of Attorney General Wickersham to the Speaker of the House, dated March 18, 1912, declining to comply with a resolution of the House directing the Attorney General to furnish to the House information concerning an investigation of the smelter trust.

"Letter of Attorney General McReynolds to the Secretary to the President, dated August 28, 1914, stating that it would be incompatible with the public interest to send to the Senate in response to its resolution, reports made to the Attorney General by his associates regarding violations of law by the Standard Oil Co.

"Letter of Attorney General Gregory to the President of the Senate, dated February 23, 1915, declining to comply with a resolution of the Senate requesting the Attorney General to report to the Senate his findings and conclusions in the investigation of the smelting industry.

"Letter of Attorney General Sargent to the Chairman of the House Judiciary Committee, dated June 8, 1926, declining to comply with his request to turn over to the committee all papers in the files of the Department relating to the merger of certain oil companies."

78 Id. at 48-49.

74 Id. at 49.

75 Ibid.

In support of this statement, cases decided by the United States Supreme Court, the several federal courts and certain state courts are cited. It is doubtful whether these cases are correctly cited and whether they would stand scrutiny when applied to the situation where Congress is requesting information from the executive to aid in legislation and whether the courts would so hold, if a congressional committee attempted to force the production of such information and the case reached the courts, as the result of such forceful action.

Another executive reply meriting consideration involved the Post Office Department. The answer of this Department differs in form from the letter of the Attorney-General, in that it was read to a committee of the Eightieth Congress as a statement of the Honorable Vincent C. Burke, the Acting Postmaster General. The form of this answer was, most naturally, different from Jackson's because the request for information did not come in the courteous form of a letter, as Jackson had received, but as a subpoena, commanding Burke to appear before a special subcommittee of the Senate Post Office and Civil Service Committee and to present investigative reports prepared for the Postmaster General by certain post office inspectors.

The committee took this action, based on a "tip" from a disgruntled former area inspector concerning the activities of the postmaster of the city of Detroit, Michigan. Newspaper clippings, of some eleven years previous, were brought forth. The dissatisfied retired postal inspector testified at the hearing, that there were several investigations made of this particular post office, all indicating malfeasance and nonfeasance in office and that the Post Office Department in Washington had taken no action in this matter. He hinted that the reason for the inaction on the part of the Washington officials was because the postmaster had previously been chairman of the Democratic central committee in the greater Detroit area.76

In his statement, Burke discussed the functions of post office inspectors, showing that they are the special representatives of the Postmaster General and are charged with the investigations of post offices and all matters connected with the postal service. He indicated that inspection reports received from these officials are regarded as confidential documents and that the disclosure of their contents is forbidden, except as the Postmaster General, in his discretion, should other

76 Hearings, Special Subcommittee of Senate Post Office and Civil Service Committee, May 20, 1948. Subcommittee composed of Senator Langer of North Dakota, Senator Buck of Delaware and Senator Chavez of New Mexico.

wise direct. He then relied almost exclusively on the opinion of Attorney-General Jackson for the remainder of his statement. In addition he pointed out that the disclosure of such information would hamper the inspection service, since it would be a breaking of faith with many people, who had made confidential statements to these inspectors, and would also cast aspersions on many innocent people. since statements received in investigations are often wrong and inspired by malicious or misinformed people. The Acting Postmaster General, then, cited the executive precedent, as appears in the Jackson opinion. and also the statement, with case citations, to which reference has been previously made."

77

Numerous cases are cited in both of these answers of executive departments.TM

Before discussing these cases, it is well to recall the proposition which the Attorney-General and the Acting Postmaster General support in their respective documents, i.c., that the courts have held that they will not require the executive to produce such papers when the production of the same is contrary to the public interest, and that the executive shall determine whether or not the production of the papers would be or would not be in the public interest. Since both of the documents were addressed to Congress, we must naturally presume that the words of the Attorney-General as to the production of the papers must mean the production of such papers to or for the use of congressional committees of investigation. It is submitted that an analysis of these cases fails to show that they so hold.

The two reports cite Marbury v. Madison," a landmark case in the field of American constitutional law. For the purposes of the present topic, it is necessary to discuss only the facts of the case plus the quo

77 Statement of Vincent C. Burke, Acting Postmaster General, delivered before the Special Subcommittee of the Senate Post Office and Civil Service Committee on Thursday, May 20, 1948, pp. 3 ff.

78 Boske v. Comingore, 177 U. S. 459 (1900); In re Quarles & Butler, 158 U. S. 532 (1895); Vogel v. Gruaz, 110 U. S. 311 (1884); Kilbourn v. Thompson, 103 U. S. 168 (1880); Totten v. United States, 93 U. S. 105 (1875); Aaron Burr v. United States, 4 Cranch 455 (U. S. 1807); Marbury v. Madison, 1 Cranch 137 (U. S. 1803); Arnstein v. United States, 296 Fed. 946 (D. C. Cir. 1924); Elrod v. Moss, 278 Fed. 123 (4th Cir. 1921); In re Valecia Condensed Milk Co., 240 Fed. 310 (7th Cir. 1917); In re Lamberton, 124 Fed. 446 (W. D. Ark. 1903); In re Huttman, 70 Fed. 699 (D. Kan. 1895); Appeal of Hartranft, 85 Pa. 433 (1877); Worthington v. Scribner, 109 Mass. 487 (1872); Gray ✔ Pentland, 2 S. & R. 23 (Pa. 1815); Thompson v. German Valley R.R., 22 N. J. Eq. 111 (1871).

79 1 Cranch 137 (U. S. 1803).

tation from the holding of the court, cited in the opinion of AttorneyGeneral Jackson.

President Adams had appointed one William Marbury as a justice of the peace, prior to the assumption of the presidency of Thomas Jefferson. However, the commission evidencing the appointment had not been issued to Marbury by John Marshall, the Secretary of State under President Adams. James Madison, who succeeded Marshall as Secretary of State, refused to issue the commission to Marbury. In the meantime, John Marshall had been appointed Chief Justice of the United States by President Adams and was called upon to decide this issue.

The Attorney-General, Levi Lincoln, was summoned to appear before the Court, since certain facts relating to the commission had to be ascertained. Lincoln objected to answering the questions, since, as he pointed out, he found himself delicately situated between his duty to the Court and his duty to the executive department, having been Acting Secretary of State at the time when the transaction in question had taken place. It was Lincoln's feeling that he was not bound to answer concerning any facts which came officially to his knowledge while acting as Secretary of State.

The Court gave Lincoln time to consider what he should answer, but stressed that they had no doubt he ought to answer, since there was nothing confidential to be disclosed. Anything which was confidential or which had been communicated to him in confidence, he was not bound to disclose. After some thought, Lincoln agreed to answer all questions, with the exception of one, the inquiry as to what had been done with the commissions. He had no way of knowing that they had ever come to the possession of James Madison, nor could he shed any light on the question of whether they were in the office of the Secretary of State, when Mr. Madison took over that office.

The court agreed that Lincoln did not have to say what had become of the commissions. The court pointed out that:

By the Constitution of the United States, the president is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of those duties, he is authorized to appoint certain officers, who act by his authority, and in conformity with his orders. In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political: they respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. . . .80 80 Id. at 165.