1965] WITHHOLDING INFORMATION 1099 renewed the claim in 1796 to "the superintending power which the House had over all officers of Government." Respected scholars consider that "one of the fundamental concepts of our form of government is that the legislature, as representative of the people, will maintain a degree of supervision over the administration of governmental affairs."294 Where the line between such supervision and actual "control" over administration is to be drawn presents the familiar task of drawing boundary lines. But if congressional control over execution of the laws is improper,206 it does not follow that inquiry after execution has taken place into how the laws have been executed is also objectionable. The former may trench on the "exclusive province" of the executive, but the power of inquiry into executive conduct is beyond dispute. Granting the plenary power of administrators to execute the laws, the hardihood they have exhibited on dubious grounds in resisting requests for information would be better displayed in resisting congressional pressure to "control" administration.206 Messrs. Kramer and Marcuse rely also on Senator Capehart's statement that orderly government will cease "if Congress can call before it any disgruntled employee of the executive department,"207 buttressing this with Madison's warning that "the power of the President would be reduced to a 'mere vapor' if government officials 'joined in cabal with the senate.' "298 It taxes the imagination to 203 Id. at 629. See also note 279 supra. Parliament employed investigations to ascertain facts in order "(1) to assist in the wise formulation of laws, and (2) to enable Parliament to exercise a measure of surveillance of the activities of the civil and military officials who carried the laws into effect and spent the moneys made available by Parliament for governmental purposes." TAYLOR 7. (Emphasis added.) De Tocqueville, that keen-eyed observer, noticed in 1831 that: "In the exercise of the executive power the President of the United States is constantly subject to a jealous supervision." De TocQUEVILLE 124. 294 GELLHORN & BYSE 166. Holmes "saw it as a basic value in the separation of powers that ultimate surveillance should rest in the legislature." HURST, JUSTICE HOLMES 99. 295 There have been recurrent attempts by Congressmen and Committees to influence the course of administration and, logical deductions from the "separation of powers" aside, it is by no means indisputable that such efforts are per se undesirable. See Newman & Keaton 565: "[S]ometimes the most effective method of expression of legislative will may be delegation, with virtually no standards [the present norm], but with strong legislative influence upon policy creation after the delegation has been made.” Davis, Administrative Law 55 (1951). (Emphasis in original.) 296 Newman & Keaton 594. 297 Kramer & Marcuse 847. They take no notice of Senator O'Mahoney's reply, "the Senator is not talking seriously." 103 CONG. REC. 9150 (1957). Throughout Messrs. Kramer and Marcuse single out partisan excerpts from opposition Senators Capehart, Donnell and Congressman Clare Hoffman. 298 Kramer & Marcuse 912 n.817, 847 n.529. 1100 UCLA LAW REVIEW 1299 [Vol. 12: 1043 believe that "disgruntled employees" are likely to form a "cabal with the Senate" to fetter the President, and of course Madison had nothing of the sort in mind. He was discussing a proposal that the Secretary of the Department of Foreign Affairs should be removable by the President and suggested that an officer appointed with Senate consent may seek to curry "favor" with it, connect himself with the Senate, and thereby reduce "the power of the President to a merc vapor; . . . The high cxccutive officers, joined in cabal with the Senate, would lay the foundation of discord. . . .' A minor "disgruntled employee" in "cabal with the Senate" would be a Halloween hobgoblin. And major "disgruntled employees" have appeared before the Congress without bringing down the skies. Sundry admirals and generals who favored the award of a multibillion dollar contract to Boeing Company appeared in 1963 before a Joint Congressional Subcommittee in opposition to Secretary of Defense McNamara's award to General Dynamics.800 Doubtless it would be less trying to a Cabinet member and to the President were an iron curtain to shield differences of opinion within a Department, but apparently President Kennedy concluded that ventilation of such differences was preferable to the suspicion and resistance that would be engendered by concealment. "Orderly government" has not "ceased." Further, Kramer and Marcuse reject the argument that the power to abolish agencies gives Congress power to "inspect their documents" on the ground, quoting Younger, that the "executive branch as we know it would disappear from our polity, leaving in its place another unfortunate example of government by legislature." Mr. Justice Holmes, on the other hand, insisted that Congress' power to "abolish" an office clearly carried lesser powers in its train. To argue that Congress may "abolish" an agency but must do so blindly, without access to information withheld by the executive, without opportunity to evaluate whether reorganization or modification may not be preferable to abolition, is to insist that Congress, like Charles Lamb's Chinaman, must burn down the barn 302 299 1 ANNALS OF CONG. 480 (1789-1791). (Emphasis added.) Experience has disproved this prophecy. Congress has limited the President's power to remove members of independent agencies, Humphrey's Executor v. United States, 295 U.S. 602 (1935), without producing "cabals" or reducing the President's power to "mere vapor." Indeed, it is the President who has kept members of the independent agencies, which are the arm of Congress, id. at 628, under the executive thumb. One need only recall the pressure exerted by President Eisenhower's man Friday, Sherman Adams. Kramer & Marcuse 696, 698, 700, 702. These members are well aware that they will come up for reappointment by the President. 800 N.Y. Times (Western ed.), March 29, 1963 p. 1, col. 2. 801 Kramer & Marcuse 906. 302 Myers v. United States, 272 U.S. 52, 177 (1926) (dissenting opinion). 1965] WITHHOLDING INFORMATION 1101 to roast the pig.308 Assuredly one who has the power to destroy or abolish must enjoy the lesser power of inspection to avoid destruction. And the argument that inspection spells executive destruction is at war with the fact that for 170 years the executive branch has made disclosure in the vast bulk of cases and yet survived, and that administration was not noticeably impaired by President Kennedy's stringent bar of privilege claims. Kramer and Marcuse would draw comfort from Madison's statement that "the legislature creates the office, defines the powers, limits its duration and annexes a compensation. This done, the Legislative power ceases. . . .' "a06 Clearly, however, Madison did not mean by this that thereafter Congress had no power to inquire into how the laws were being executed. On the occasion of an inquiry into charges against Secretary of the Treasury Hamilton, he said that "it was the duty of the Secretary, in complying with the orders of the House, to inform the House how the law had been executed." For, as he said on another occasion, "the right of freely examining public characters and measures, and of free communication thereon, is the only effective guardian of every right."307 300 V. THE ATTORNEY GENERAL'S CITATIONS TO THE CASES FOR "UNCONTROLLED DISCRETION" TO WITHHOLD Attorney General Rogers advised the Senate that "courts have uniformly held that the President and the heads of departments have uncontrolled discretion to withhold information and papers in the public interest."808 This is wrong, with respect to both private litigation and the Congress. The Attorney General himself notes with respect to the "flat refusal of executives to answer questions" that "the legal problems involved were never presented to the courts. Thus it remains an open question whether the executive officers must submit all the information which Congress may request." Not 803 As was said in launching the parliamentary inquiry into Robert Walpole's regime: “Would not a Physician be a Madman, to prescribe to a Patient, without first examining into the State of his Distemper, the Causes from which it arose, and the Remedies that had before been applied?" 13 CHANDLER 85. Cf. Landis 196. 304 Att'y Gen. Memo. 2, states that there has been withholding in "only relatively few instances in our history." 305 Kramer & Marcuse 906. 800 3 ANNALS OF CONG. 934 (1793). ... 307 6 WRITINGS OF JAMES MADISON 398 (1906). Madison voted for the St. Clair investigation. McGrain v. Daugherty, 273 U.S. 135, 161 (1927). He vigorously participated in the Hamilton inquiry, 3 ANNALS OF CONG. 934-46 (1793), and pressed the Resolution requesting the Jay Treaty papers. 5 ANNALS oF Cong. 759 (1796). 308 Att'y Gen. Memo. 1. (Emphasis added.) 309 Id. at 62. (Emphasis added.) In Kaiser Aluminum & Chem. Corp. v. United 68-287 - 71 - 8 1102 UCLA LAW REVIEW [Vol. 12: 1043 withstanding, the Attorney General sets out a row of cases for an "uncontrolled discretion" to withhold information from "Congressional Committees."810 A. Appcal of Ilartranft 811 A convenient beginning is the citation of Appeal of Ilartranft, both because its inappositeness is quickly perceived and because it nevertheless continues to be invoked.12 There a grand jury had subpoenaed the Governor to explain the suppression of riots with military means during a railroad strike. The court declared: "It is his duty from time to time, 'to give to the General Assembly information of the State of the Commonwealth,' but it is not his duty to render such an account to the grand jury... 1818 Generalizations about the separation of powers uttered in a case which goes on to state that the duty of furnishing information not owed to the grand jury is owed to the General Assembly are obviously of little aid."1 B. Aaron Burr Case The trial of Aaron Burr represents bedrock on the issue of executive privilege, not only because Chief Justice Marshall so thoroughly canvassed almost every issue that bedevils us today, but because he knew at first hand the problems of both the legislative and executive branches. He had been a member of the Virginia Assembly, had taken vigorous part in obtaining ratification of the Constitution, and had been a member of Congress. He had defended the Jay Treaty, had been a member of the "XYZ" mission to France, and had served as Secretary of State under John Adams.316 States, 157 F. Supp. 939, 945 n.7 (Ct. Cl. 1958), Mr. Justice Reed, sitting by designation, said: "The assertion of such a privilege by the Executive, vis-à-vis Congress, is a judicially undecided issue." A recent proponent of executive privilege, Younger 769 n.49, states that: "At the time of the Attorney General's memorandum there were no holdings that the President has an 'uncontrolled discretion to withhold the information'." There have been none since. The Attorney General's claim has been rejected by Bishop 478, and by Schwartz 13. The Air Force General Counsel testified that: "There has never been a case which has been litigated that says the Executive may withhold, from Congress. Moss Hearings 12-13. More recently Kramer & Marcuse 903, stated that, "no court has as yet upheld the power of the Executive Branch to withhold information from Congress." It is time to examine the Attorney General's brave array of cases which are allegedly to the contrary. 310 Att'y Gen. Memo. 32 et seq. 311 Id. at 40; Appeal of Hartranft, 85 Pa. 433 (1877). 312 Younger 777-78. Younger circumspectly notes that "no legislative demand for information was involved here" but states that the " court used language from which the judicial attitude towards executive secrecy may be inferred." 313 Appeal of Hartranft, 85 Pa. 433, 450 (1877). (Emphasis added.) 814 Younger 778, states that "Hartranft suggests that the separation of powers is a necessary foundation for the doctrine of executive secrecy." 815 See 12 DICTIONARY OF AMERICAN BIOGRAPHY 315 (1933). Marshall "had 1965] WITHHOLDING INFORMATION 1103 His was therefore an informed judgment, reflecting practical experience in both branches of the government plus immediate comprchension of constitutional design. The Burr case thrashed out two issues which are relevant to our discussion: (1) amenability of executive officers to process, and (2) whether the executive is privileged to withhold documents from an accused. 1. The Executive Branch is Amenable to Process The Attorney General mistakenly asserts that neither the President nor the department heads are amenable to process.316 But the Attorney General himself states that "Judge [sic] Marshall ... allowed the subpoena [duces tecum] to issue" against President Jefferson and that Marshall claimed for the "court the right to issue a subpoena against the President."317 Marshall stated that "such a subpoena may issue. In the provisions of the constitution, and of the statutes, which give the accused the right to compulsory process of the court, there is no exception whatever."318 He rejected the reservation in the law of evidence for the King-which was based on the ground that it was "incompatible with his dignity to appear under the process of the court"-because the "principle of the English constitution that the king can do no wrong" was inapplicable to our government whereunder "the president . . . may be impeached and may be removed from office." And, Marshall added, "it is not known ever to have been doubted, but that the better opportunities than any student of history or law to-day to discover the intention of the framers of the federal Constitution." BEARD, THE SUPREME COURT AND TILE CONSTITUTION 113 (1912). 316 The Attorney General refers to criticism of the Burr decision on the ground that "courts cannot order the President to do anything." Att'y Gen. Memo. 36. And he asks, alluding to the separation of powers, "would the executive be independent of the judiciary if he were subject to the commands of the latter. . . ?" Id. at 37. He adds that Jefferson "was prepared to resist, by force, if necessary, the execution of the process of the court." Id. at 37. He likewise asserts that "heads of Departments may not be compelled to attend a trial," id. at 38, and that: "Heads of Departments are subject... to the directions of the Presidents of the United States. They are not subject to any other directions.” Id. at 2. Given a subpoena duces tecum, he asserts: "The President may intervene and direct the Cabinet officer or department head not to appear; the person subpoenaed would then advise the court of the President's order and abstain from appearing altogether." Ibid. 817 Id. at 34-36. According to Marshall, the "attorney for the United States avowed his opinion, that a general subpoena might issue to the president, but not a subpoena duces tecum." 1 ROBERTSON 176. This avowal gains importance from the fact that it was made by William Wirt, who was of counsel for the government, id. at 136, later became Attorney General in the Monroe Administration, a post he "held for twelve consecutive years." 20 DICTIONARY OF AMERICAN BIOGRAPHY 420 (1933). 818 United States v. Burr, 25 Fed. Cas. 30, 34 (No. 14692d) (C.C. Va. 1807). |