VOLUME 66

FEBRUARY, 1957

NUMBER 4

THE EXECUTIVE'S RIGHT OF PRIVACY: AN UNRESOLVED CONSTITUTIONAL QUESTION

JOSEPH W. BISHOP, JR.t

A CONSTITUTIONAL question of the first importance, raised in more or less acute form in practically every administration from Washington's to Eisenhower's, is, singularly enough, still wide open. That question is the constitutional power of the executive to withhold information from the legislature. It seems to be no nearer settlement today than it was in 1792, when President Washington announced the right of the executive to exercise its discretion in communicating executive documents requested by a committee appointed by the House of Representatives "to inquire into the causes of the failure of the late expedition under Major General St. Clair."1

A regular reader of the newspapers need reflect but briefly to realize the tremendous political importance of the problem. The files of the executive bulge with documents which Congressmen, from the best and worst motives, are eager to examine and which bureaucrats, also from the best and worst motives, are determined to keep to themselves. Many of these documents, if published, would certainly cause headlines and headaches all across the nation, and some might create a stir in foreign chancelleries—a prospect from which the average legislator, especially if he be up for re-election, shrinks about as much as Brer Rabbit shrank from the briar patch, but which may cause exquisite pain to the executive branch. An example: among the large number of dossiers maintained by the FBI and the various intelligence and security services in the Pentagon there are inevitably some whose subjects are persons of local or national prominence. Many such dossiers contain "derogatory" information 2 which, if portentously attributed by an unfriendly politician to "the

+Deputy General Counsel of the Army, July, 1952 to October 1, 1953; Acting General Counsel in August and September, 1953. Member of the District of Columbia and New York Bars.

1. See BINKLEY, PRESIDENT AND CONGRESS 40-41 (1947). On this occasion, the President found no papers which might not properly be inspected by Congress. But four years later the problem recurred when a committee of the House demanded copies of the instructions and other documents employed in connection with the negotiation of a treaty with Great Britain. This time Washington found that "a just regard to the Constitution and to the duty of my office, under all the circumstances of this case, forbids a compliance with your request." 1 RICHARDSON, MESSAGES AND PAPERS OF THE PRESIDENTS 188 (1897).

2. The inclusion in a file of such information does not, of course, mean that it is true, or even that the agency thinks it is true. The investigators simply collect all available

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files of the FBI," might produce a political explosion. Another example: the files of the State and Defense Departments are naturally full of records of conversations between the governments of the United States and other countries, the disclosure of which might benefit the political fortunes of the Congressmen who disclosed them in approximate proportion to its adverse effect on relations between the two countries. Hence, it is not surprising that legislative demands for information and executive refusals have been so common ; what is at first blush surprising is that the conflict has never come to a real head.

As a matter of constitutional theory the problem might as well arise between the executive and the judiciary, or the legislative and the judiciary. The latter problem seems never to have arisen, probably because neither branch has any information, not available to the public, which is of much interest to the other. The former has often been raised-in situations in which the government is, or is said to be, in exclusive possession of relevant evidence—and has given rise to a considerable body of case law. Most such cases have been decided on grounds that throw at best a flickering and feeble light on the main question. Nevertheless, because these cases have been cited as authority," and because it is at least true that there are no better judicial precedents, they merit dis

cussion.

One class of such cases deals with the situation in which a subordinate federal official, directed by a court to disclose official information or produce official records, pleads a departmental regulation forbidding compliance with

material on the subject. Very few politicians (or even ordinary successful people) go through life without a single discreditable incident and still fewer without making an enemy.

3. The executive's right to withhold information has been asserted by such Presidents, in other respects so diverse, as Washington, Jefferson, Jackson, Tyler, Buchanan, Grant, Cleveland, Roosevelt I, Coolidge, Hoover, Roosevelt II, Truman and Eisenhower. These precedents are recapitulated in Wolkinson, Demands of Congressional Committees for Executive Papers, 10 FED. B.J. 103, 223, 319 (1949).

4. Similarly, an interesting subject for speculation is the possible reaction of a congressional committee to an executive demand for information in the committee's files. In practice, the traffic has been all the other way, although once or twice the executive has politely indicated that it would appreciate information as to the facts on which congressional allegations-e.g., some of Senator McCarthy's figures on Communists in government-were based.

5. See, e.g., 40 Ops. Att'y Gen. 45, 49 (1941). In a memorandum to the President, released by the White House on May 17, 1954, Attorney General Brownell made the remarkable and inexact assertion that "Courts have uniformly held that the President and the heads of departments have an uncontrolled discretion to withhold [from Congress] the information and papers in the public interest...." N.Y. Times, May 18, 1954, p. 24, col. 2. He cited no cases. The statement, like most of the memorandum, was lifted almost word for word from a law review article which had appeared some years previously, but the author of that article cited no cases either. See Wolkinson, supra note 3. Since there appears to be no case in which a court has passed on an executive refusal of a congressional demand for information, the writer must have had in mind cases in which the courts themselves have sought to obtain information from the executive-in which case the statement is still incorrect.

such a subpoena without the previous consent of the head of the department. An act of Congress has long authorized the head of each executive department to "prescribe regulations, not inconsistent with law, for the government of his Department... and the custody, use and preservation of the records, papers and property appertaining to it." It is certainly true that the courts have consistently treated this statute as validly authorizing the department head to centralize in himself discretion to grant or withhold information requested by a court; but it is equally true that they have sedulously refrained from passing on "the ultimate reach of the authority of the [department head] to refuse to produce at a court's order the government papers in his possession...." Moreover, these decisions plainly furnish no guidance as to the inherent right of the executive to withhold information from Congress, for they are based on an act of Congress; what Congress hath given, Congress can take away. For example: R.S. 161 could scarcely be invoked to justify a refusal to furnish information to the House and Senate Committees on Government Operations, for since 1928 an act of Congress has provided that any department of the executive shall give them "any information requested of it relating to any matter within the jurisdiction of said Committee."1o In practice,

6. A number of such cases arose because, before the Eighteenth Amendment, federal law taxed makers and sellers of spirits whose activities might be quite illegal under state law. On several occasions state courts, in the course of efforts to prosecute moonshiners and proprietors of blind tigers, attempted to compel the testimony of the federal gaugers, or the production of Treasury records as to the operations of these criminal taxpayers. The Treasury, which was naturally reluctant to penalize full disclosure to itself, forbade its excisemen to reveal information garnered in the course of their official duties. The validity of its regulation was generally, but not always, upheld until the problem was laid to rest by the decision of the Supreme Court in Boske v. Comingore, 177 U.S. 459 (1900). E.g., Stegall v. Thurman, 175 Fed. 813 (N.D. Ga. 1910); In re Lamberton, 124 Fed. 446 (W.D. Ark. 1903). Contra, In re Hirsch, 74 Fed. 928 (D. Conn. 1896).

7. The courts seem to make little distinction between the traditional departments and the various agencies created by executive order or statute. Cf. Appeal of SEC, 226 F.2 501 (6th Cir. 1955); Universal Airline, Inc. v. Eastern Airlines, Inc., 188 F.2d 993, 999 (D.C. Cir. 1951).

8. REV. STAT. § 161 (1875), 5 U.S.C. § 22 (1952).

9. United States ex rel. Touhy v. Ragen, 340 U.S. 462, 467 (1951), and, in particular the concurring opinion of Mr. Justice Frankfurter at 470, 472. See also Ex parte Sackett, 74 F.2d 922, 924 (9th Cir. 1935) and cases cited note 6 supra. Yet a dictum of Learned Hand, exemplifying the sporadic fallibility of that illustrious judge, cites Boske v. Comingore and the other cases referred to in note 6 supra for the proposition that it is "lawful for a department of the government to suppress documents, even when they will help determine controversies between third persons. . . ." See United States v. Andolschek, 142 F.2d 503, 506 (2d Cir. 1944).

10. 45 STAT. 996 (1928), 5 U.S.C. § 105a (1952). The statute actually names the Cominittees on Expenditures in the Executive Department, the predecessors of the present Committees on Government Operations. Despite its apparently unambiguous language, its legislative history can be used to ground a plausible argument that the "information" referred to was intended to include only noncontroversial types which the executive had previously furnished to Congress voluntarily. See Wolkinson, supra note 3, at 322-23.

of course, when the executive is dealing with Congress rather than the courts, it does not cite R.S. 161 or any other act of Congress. In such circumstances, the Attorney General invariably asserts a constitutional right, under the principle of separation of powers, to grant or withhold in the executive's unfettered discretion."1

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Another class of cases deals with the "privilege" of the executive to withhold from the courts certain not very clearly defined categories of information. Although there have been too few of these cases to permit the accumulation of a body of case law clearly drawing the line between privileged and unprivileged matter, secrets which can readily be classified as "military" or "state" do not present much difficulty. Thus, in one of the oldest of such decisions, 18 the administrator of the estate of a deceased spy brought suit to recover salary due for services in that capacity under a secret contract between the deceased and President Lincoln. The Supreme Court affirmed the dismissal of the petition:

"Public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential, and respecting which it will not allow the confidence to be violated. On this principle suits cannot be maintained which would require a disclosure of the confidences of the confessional, or those between husband and wife. . . . Much greater reason exists for the application of the principle to cases of contract for secret services with the government, as the existence of a contract of that kind is itself a fact not to be disclosed."14

The latest opinion of the Supreme Court upholding the privilege, United States v. Reynolds,1 involved matters equally easy to recognize as military secrets— official reports dealing with the causes of the crash of an Air Force plane loaded with experimental electronic equipment. But in the few instances that have arisen the courts have been at least reluctant to place within the privilege information which the government desired to keep to itself for reasons other than military or diplomatic. Thus, courts have shown reluctance to treat as privileged the statements of witnesses taken by the FBI in the course of a

11. See, e.g., in addition to the Memorandum of Attorney General Brownell, supra note 5, the opinion of Attorney General Jackson at 40 OPS. ATT'Y GEN. 45 (1941), declining to furnish certain FBI reports to the House Committee on Naval Affairs.

12. A number of these cases are collected and discussed in Note, 41 CORNELL L.Q. 737 (1956).

13. Totten v. United States, 92 U.S. 105 (1875).

14. Id. at 107. But the facts of the Totten case do not seem to afford a very good illustration of the principle, for it is hard to see how the disclosure of the existence of the contract could have harmed the national interest, long after the completion of the contract and the extinction of the Confederacy. Of course, if the contract had concerned a power with which the United States had been trying to maintain friendly, or at least diplomatic, relations, the reasoning of the Court would have been more cogent.

15. 345 U.S. 1 (1953).

routine, nonconfidential investigation, 16 or the record of the proceedings of a Naval Board of Inquiry in a similarly commonplace matter.17

The majority in the Reynolds case, while explicitly disclaiming any intent to pass one way or the other on the inherent constitutional power of the executive to withhold information in its sole discretion, nevertheless stated, just as explicitly, that it is the court, not the executive, which must determine whether the circumstances are appropriate for the claim of privilege: “Judicial control over the evidence in a case cannot be abdicated to the caprice of execu tive officers."18 The knotty problem of how the judge is to make this determination without forcing at least a disclosure to himself was dismissed with no more illuminating answer than a reference to the similar difficulties raised by claims of privilege under the Fifth Amendment.

The apparent contradiction between the Court's statement that the judge must determine the nature of the secret and perhaps overrule a claim of privilege, and its disclaimer of intent to pass on the proposition that the head of an executive department has absolute power to withhold from judicial view documents in his custody, can perhaps be resolved. Presumably the Court thought that, even if the documents were found not to be privileged, there would be no question of actually compelling production of the documents. Instead, the issue to which the doubtful materials referred would be resolved against the government. In the Reynolds case, however, the ground of decision was that since the Tort Claims Act incorporates the Federal Rules of Civil Procedure, and since those rules penalize only refusal to produce unprivileged documents, the imposition of even such a penalty for failure to produce privileged documents would subject the sovereign to liability on terms to which it had not consented. Deciding the issue to which the suppressed information related against the government would not, of course, have been exactly the same thing as jailing the Secretary of the Air Force for contempt, and perhaps the Court refused to equate prejudice to the government in its conduct of litigation with physical

16. O'Neill v. United States, 79 F. Supp. 827 (E.D. Pa. 1948), vacated on other grounds sub nom. Alltmont v. United States, 174 F.2d 931 (3d Cir. 1949). The government made the somewhat malapropos argument that, since the FBI agents happened to be members of the bar, their reports were covered by the attorney-client privilege. The case presented no question of keeping secret the identity of informers. The privilege of withholding such information has been recognized in cases too numerous to cite. E.g., Scher v. United States, 305 U.S. 251 (1938); United States v. Sun Oil Co., 10 F.R.D. 448 (E.D. Pa. 1950).

17. See Bank Line v. United States, 76 F. Supp. 801, 804 (S.D.N.Y. 1948); cf. Walling v. Richmond Screw Anchor Co., 4 F.R.D. 265, 269 (E.D.N.Y. 1943).

The British courts, while according privilege to military and diplomatic secrets, have observed by way of dictum that it could not be claimed merely because disclosure "might involve the Government . . . in parliamentary discussion or in public criticism . . . ." Duncan v. Cammell, Laird & Co., [1942] A.C. 624, 642.

18. 345 U.S. at 9-10. The British Court of Appeals took a similar view in Duncan v. Cammell, Laird & Co., [1942] A.C. 624, 642.