Marshall showed that there existed an intimate political relation between the President and the heads of departments. Because of this relationship, any legal investigation of the acts of any of these officers was rendered peculiarly irksome, as well as delicate, and this aroused some hesitation about entering into such an investigation. He concluded that it was the province of his Court solely,

... to decide on the rights of individuals. not to inquire how the executive. or executive officers, perform duties in which they have a discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive, . .

81

could never be made in his Court.

The author would not dream of depreciating the decision of this first chief justice of our high Court. It should be noted, however, that this citation, considered so apt by Attorney-General Jackson in his opinion, referred to an action brought before the Court by an individual citizen and concerned not in the least a situation where information is desired not in the interests of a private person but for the benefit of the Congress of the United States, which, though a different branch than the executive, is still a branch of our government.

The case of Totten, Administrator v. U. S.2 stands for the proposition that an action cannot be maintained against the government in the Court of Claims for secret services rendered during most of the Civil War by a Northern spy, based on a contract made between the spy and President Lincoln in 1861. Mr. Justice Field stating, as a general principle, that public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the

81 Id. at 170. Rufus Choate, the famous American lawyer, stated as follows concerning Marshall's opinion:

"I do not know that I can point to one achievement in American statesmanship which can take rank for its consequences of good above that single decision of the Supreme Court which adjudged that an act of the Legislature contrary to the Constitution is void, and that the judicial department is clothed with the power to ascertain the repugnancy and pronounce the legal conclusion. That the framers of the Constitution intended this to be so is certain; but to have asserted it against Congress and the Executive, to have vindicated it by that easy yet adamantine demonstration than which the reasonings of mathematics show nothing surer, to have inscribed this vast truth of conservatism upon the public mind, so that no demagogue not in the last stages of intoxication denies it, this is an achievement of statesmanship of which a thousand years may not exhaust or reveal all the good."

As quoted in John F. Dillon, John Marshall Complete Constitutional Decisions (Callaghan & Co., 1903) p. 38.

82 92 U. S. 105 (1875).

disclosure of matters which the law itself regards as confidential, and respecting which, it will not allow the confidence to be violated. But this case is far removed from a refusal by the executive branch to a request of a congressional committee. The Totten case involved a civil suit for damage and the so-called "confidential" information was refused when requested by the court in this action.

84

The Court held in In re Quarles & Butler that it is the right of every private citizen to inform a United States marshal or his deputy of a violation of the Internal Revenue laws, that this right is secured to a citizen by the Constitution and, accordingly, that a conspiracy to injure, oppress, threaten or intimidate the citizen in the free exercise or enjoyment of his right, or because of his having exercised it, is punishable under Section 5508 of the Revised Statutes. Vogel v. GruazTM was a "privileged statement" case. The United States Supreme Court found that a communication made to a state's attorney in Illinois by a person who inquires of the attorney whether the facts communicated make out a case of larceny for a criminal prosecution, is an absolutely privileged communication, and cannot, in a suit against such a person to recover damages, be testified to by the state's attorney, even though there be evidence of the speaking of the same words to other persons than the attorney. Neither of these cases bear on our present problem. Nor does Boske v. Comingore support the broad statement made in Attorney-General Jackson's opinion, since an opinion of a court holding that certain records of a government department are privileged, has little or no bearing on the scope of congressional investigatory authority.

87

Huttman and Lamberton88 concern matters which Internal Revenue officials are not compelled to relate in a court of law. Information of this nature is confidential and privileged and such officials cannot be compelled to reveal it. But, these cases arose where the information was demanded of the executive department in criminal proceedings in a court of law. These cases had nothing to do with demands made by congressional investigating committees and the courts said nothing in support of the refusal of executive agencies to submit information to

158 U. S. 532 (1895).

84 Rev. Stat. § 5508 (1875). 85 110 U. S. 311 (1884).

84 177 U. S. 459 (1900).

87 70 Fed. 699 (D. Kan. 1895).

88 124 Fed. 446 (W. D. Ark. 1903).

40377 0-59-pt. 1-15

such legislative committees. These cases, then, hardly seem germane to the question.

In another cited case the United States Court of Appeals for the Fourth Circuit, found, inter alia, that a local sheriff, who testified that he communicated to the defendant prohibition officers that the plaintiff was transporting liquor, did not have to reveal the source of his information. This scarcely is on all fours with the problem at hand.

In Worthington v. Scribner," the Massachusetts high court held that, in an action for maliciously and falsely representing to the Treasury Department of the United States that the plaintiff in bringing books into the United States was intending to defraud the Revenue Bureau, the defendants could not be compelled to answer interrogatories filed by the plaintiff. This was another privileged communication case and the court held that the communications in question could not be disclosed, since the discovery of documents which are protected from disclosure upon grounds of public policy cannot be compelled, either by interrogatories or by a bill in equity.

Neither the Worthington case, supra, nor the Valecia," Arnstein,92 Gray, and Thompson cases support the proposition asserted by the Attorney General in his opinion. They stand for the proposition that certain matters, which are classified as privileged communications of one sort or another, need not be disclosed in a court of law. While these cases place limitations on the judiciary, since the requests or demands on the executive were made as a result of civil or criminal litigationthey have no bearing on the question under discussion.

In the Appeal of Hartranft a grand jury had requested the court to hold the Governor of Pennsylvania in contempt because he refused to appear, though under subpoena, to testify concerning deaths in a Pennsylvania railroad strike. The court held that the Governor was the absolute judge of what official communications, to himself, or his department, might or might not be revealed, and he was the sole judge not only of what his official duties were, but also of the time when they should be performed. The nature of the request is similar to requests ordinarily made by the legislative upon the executive. But it must be

89 Elrod v. Moss, 278 Fed. 123 (4th Cir. 1921).

90 109 Mass. 487 (1872).

91 240 Fed. 310 (7th Cir. 1917).

92 296 Fed. 946 (D. C. Cir. 1927).

93 2 S. & R. 23 (Pa. 1815).

94 22 N. J. Eq. 111 (1871).

95 85 Pa. 433 (1877).

noted that the request originally came from the grand jury on the theory that it would be an aid to a criminal prosecution. This is the proposition to which the decision of the court was necessarily addressed. The court's broad statement, as to the Governor's right to refuse disclosure of information, must be read in that context.

The Attorney-General also cites the Aaron Burr treason trial as supporting authority. Burr had applied, as will be recalled, for the issuance of a subpoena duces tecum upon President Jefferson. Marshall. the presiding judge, allowed the subpoena to issue. It directed the President to produce a letter which one General Wilkinson had sent to him. Burr filed an affidavit with the Court, in which he alleged that this letter contained information, which would prove helpful to his defense. Marshall, in his opinion, stated that, under the Constitution and laws of the United States, the President was not exempt from the process of the Court in a criminal trial, nevertheless, he also ruled that the President was free to keep from view those portions of the letter which the President deemed confidential in the public interest. To this end, the President alone was the judge of what was confidential. This is perhaps the nearest thing to authority contained in the citations of the Attorney-General. Its weaknesses are too apparent to merit discussion.

97

The Court, through Marshall, seems to state that it would not force. official records and papers into public view by subpoena. What probably led the Court to its decision was the fact that the letter in question was not in the files of the War Department, or in any other department of the Government. The court appears to have been largely influenced by Colonel Burr's argument that the President, who had publicly accused Burr of traitorous conduct, in a special message to the Congress. and had been primarily responsible for bringing him to trial, and for bringing the weight of the government behind the prosecution, ought not, in fairness to an accused person on trial for his life, keep from him a private communication which the accused thought would help prove his innocence.98

A brief reading of these cases shows clearly that they do not stand for the proposition stated in the opinion of the Attorney-General. Some of the cases give a general statement as to the theory of separation 96 2 Robertson, Reports of the Trials of Colonel Aaron Burr (Hopkins and Earle, 1808) pp. 533-536.

97 1 Robertson, Reports of the Trials of Colonel Aaron Burr (Hopkins and Earle, 1808) pp. 177, 180, 187-188.

98 Brown, Executive Papers The President and the Congress (20 New York State Bar Assn. Bull. 1948) p. 166, 171.

of powers, but the leading case" which does so has been overruled by a group of more recent cases beginning over twenty years ago.

100

The bulk of the cases cited by the Attorney-General not only do not support his broad assertion, but instead are based on the point that the papers or testimony sought were privileged communications within the meaning of the law and hence inadmissible as evidence. In addition, the requests or demands on the executive were a result of civil or criminal litigation. Whatever limits may be imposed on the judiciary in the conduct of civil and criminal litigation can have little bearing on the scope of congressional investigatory authority.

The fact that the opinion of the court in Kilbourn v. Thompson,101 is outmoded.is perceivable from the opinion of the Court of Appeals for the District of Columbia in Townsend v. United States,102 where, concerning the scope of a congressional investigation, the court pointed out that a legislative purpose may be presumed and that the "power to conduct a hearing for legislative purposes is not to be measured by recommendations for legislation or their absence" 108 Again, in United States v. Bryan,104 the District Court of the United States for the District of Columbia indicated that the collection of facts by a congressional investigating committee may cover a wide field and need not be limited to "securing information precisely and directly bearing on some proposed measure, the enactment of which is contemplated or considered". 10 The court found that the Congress could very well find it necessary and desirable, in order to act in an enlightened manner, to become acquainted not only with the precise topic "involved in prospective legislation, but also with all matters that may have an indirect bearing on the subject" 106

In a decision rendered in 1946, the United States Supreme Court gave indication that it recognized that the limitations imposed upon the legislative power of inquiry by Kilbourn v. Thompson107 were not realistic. In that case, Oklahoma Press Publishing Co. v. Walling,108 the Ad

99 Kilbourn v. Thompson, 103 U. S. 168 (1880). 100 McGrain v. Daugherty, 273 U. S. 135 (1927).

101 Supra note 99.

102 95 F. 2d 352 (D. C. Cir. 1938).

103 Id. at 355.

104 72 F. Supp. 58 (D. D. C. 1947).

106 Id. at 61.

106 Ibid.

107 Supra note 99.

108 327 U. S. 186 (1946).