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tempt. In this article, the writer merely proposes to discuss the power of these committees to obtain information and documentation from the executive branch of our government.
INTRODUCTION The problem, then, which confronts us, may be restated in one question: Should Congress, through the medium of its investigating committees, be allowed to require the executive branch of our government to furnish them with information which is deemed necessary by the legislative branch, in order to legislate wisely and in the public interest? This problem, which has seemingly remained unresolved through the years, and which usually lies dormant in times of war or national emergency, was resurrected during the Eightieth Congress.
Over the years, the executive branch has developed a stock answer or argument to such requests when it has not desired to furnish the requested information or documents. This stock response of the executive branch will be referred to herein as the "precedent” argument, because, prior to a citation of examples wbich supposedly buttress his position, the head of an executive department will respond substantially as follows to the committee requesting the information: To conclude that the public interest does not permit general access to these reports, I am following the conclusions reached by a long line of distinguished predecessors in the executive branch of the Government who have taken the same view.
The writer will then cite and, if the matter is of major importance, will elaborate on a series of incidents in which the executive branch refused to submit information to congressional investigating committees. According to the usual method, these examples will begin with the refusal of President Washington's Secretary of War to furnish certain original letters and documents, on Washington's advice, to a congressional committee investigating the failure of the campaign of General St. Clair and could continue down to the refusal of the Department of Commerce, during the Eightieth Congress, to furnish informa
4 E..., McGrain v. Daugherty, 273 U. S. 135 (1927); In re Chapman, 166 U. S. 661 (1897); Dimock, Congressional Investigating Committees (Johns Hopkins Press, 1938); Eberling, Congressional Investigations (Columbia Press, 1927); Landis, Congressional Power of Investigation, 40 Harv. L. Rev. 153 (1926).
8 E.s., the statement of Vincent C. Burke, Acting Postmaster General, delivered before a sub-committee of the Senate Post Office and Civil Service Committee, 80th Cong., 2d Sess., Thursday, May 20, 1948 (unpublished).
tion to the committees concerning the F. B. I. loyalty report on Dr. Edward U. Condon, Director of the Bureau of Standards. The executive branch argues further that no Congress has dared to endeavor to force the head of an executive department to submit information, once there has been a formal refusal by the executive department to do so.
The second argument advanced by the executive branch is that the courts have repeatedly held that the executive cannot be required to produce such papers when their production is, in the executive's opinion, contrary to the public interest. This argument states further that whether or not the production of such papers is in the public interest is a question for the executive and not for the courts to determine. Citations of federal and state court decisions are used to buttress this statement. The genesis of this legal argument is to be found in a formal opinion of Attorney-General Robert H. Jackson, a member of the Roosevelt Cabinet in 1941, in response to a request for information from a congressional investigating committee.'
The tendency of the American press and public has been to uncritically accept these arguments of the executive branch. The fact is that the concept of the “inquisitorial tribunal, does not fit comfortably into the minds of Americans raised in a tradition of Jeffersonian or Lincolnian liberalism. Nor was the popular view rendered more cordial toward
Random examples usually cited by the executive branch include: (1) President Washington's refusal to give the House copies of his instructions to Minister John Jay concerning the negotiation of a treaty with Great Britain in 1796; (2) the refusal of President Jefferson to turn over information on the Aaron Burr incident to the House; (3) President Jackson's refusal to send to the Senate copies of the charges made against Gideon Fitz, the Surveyor-General; (4) President Tyler's refusal to disclose to the House the names of applicants and their mode of application for office; (5) the refusal of President Tyler to communicate information concerning Colonel Hitchcock's negotiations with the Cherokee Indians; (6) President Polk's refusal to forward an accounting to the House of all payments for contingent expenses of foreign intercours; (7) President Buchanan's protest against a resolution eating a committee to investigate his attempts to influence Congress; (8) President Grant's reply to the House when it demanded to know whether he performed executive functions while away from the seat of the government ; (9) the message of President Theodore Roosevelt informing the Senate of his instructions. to the Attorney-General not to reply to a resolution directed at the latter inquiring us to his inaction in not prosecuting the U. S. Steel Corp. because of its absorption of the Tenn. Valley Coal and Iron Corp.; (10) the refusal of J. Edgar Hoover to testify us to certain matters, relating to the internal security and the activities at Pearl Harbor, at the direction of the Attorney-General's Executive Assistant, during an lavestigation of the P. C. C. See also the Burke statement, sou pro note 3; Wolkinson, Demands of Congressional Committees for Executive Papers, 10 Fed. B. J. 107 (1949).
? 40 Op. Atty. Gen. 45 (1941).
investigating committees by the Kleig light and Hollywood ballyhoo technique which, with dubious judgment, was employed by congressional investigating committees of recent memory.
The arguments of the executive branch, under the microscope of careful examination, are not unimpeachable. The "precedent" argument can be countered, as the following paragraphs will attempt to show, by strong arguments on the part of the legislative branch. And the “legal” argument is equally questionable.
THE REPLY OF THE LEGISLATIVE BRANCH TO THE Precedent
ARGUMENT OF THE EXECUTIVE BRANCH The answer of the legislative branch of our government to the claim of the executive branch is to be found in the debates and proceedings of the two houses of our Congress. There are two series of debates to be considered, one of the Senate during the Forty-ninth Congress, First Session, in March, 1886," and the other in the House of Representatives during the Eightieth Congress, Second Session, in May, 1948.'
The discussion in the Congressional Record for the Forty-ninth Congress. First Session, on the proposed resolutions to censure the AttorneyGeneral for refusing to give the Senate certain information furnishes interesting data pertinent to the position of the legislative branch on the issue which is the topic of this study. In the Eightieth Congress, Second Session, there was introduced House Joint Resolution 342:
Directing all executive departments and agencies of the Federal Government to make available to any and all standing, special, or select cummittees of the House of Representatives and the Senate, information which may be deemed necessary to enable them to properly perform the duties delegated to them by the Congress. 10 The legislative history of this resolution," and allied documents,"
8 17 Cong. Rec. 2211-2815 (1886).
11 H. R. Rep. No. 1595, parts I and II, 80th Cong., 2d Sess. (1948); 94 Cong. Rec. 5704 (1948).
12 See memoranda of Mar. 10, 1948 and Dec. 30, 1947 from the Federal Law Section, Library of Congress to Congressman Hoffman reprinted in the Appendix to H. R. Rep. No. 1595, part I, 80th Cong., ?d Sess. 14 (1948); H. R. Rep. No. 1753, 80th Cong., ?d Sess. (1948), directing the Secretary of Commerce to transmit to the House a letter concerning Dr. Edward U. Condon; sce also message of President Truman vetoing S. 1004 which concerned the grant of specific authority to Senate members of the Joint Committee on Atom.c Energy to require investigations by the F. B. I. of persons nomi
furnishes the material for the second part of the response to the “precedent" argument of the executive branch.
During President Cleveland's first term, in March 1886, the Senate censured the Attorney-General, Mr. Garland, a former Senator from Arkansas, for his failure to furnish the Senate Judiciary Committee with information and papers relating to the suspension of George N. Duskin, a Republican, as United States Attorney in an Alabama District. The Truman Administration, in its recent struggle with the Congress, cited the debates in 1886 on this subject as a victory for their position, since Cleveland's Department of Justice was not forced in any way to submit the requested information. It is to be noted, however, that the action of the Attorney-General was condemned by the Senate in four separate resolutions, the most important of which probably was the second, in which the Senate stated expressly:
.. its condemnation of the refusal of the Attorney-General, under whatever influence, to send to the Senate copies of papers called for by its resolution of the 25th of January, and set forth in the report of the Committee on the Judiciary, as in violation of his official duty and subversive of the fundamental principles of the Government and of a good administration thereof.13 An attempt by Senator Morgan of Alabama, after the passage of the four resolutions, to amend the same by a tricky procedural move, failed. The attempted amendment, submitted in the form of a resolution, read as follows:
Resolved, That nothing in these resolutions contained is to be construed as declaring that the conduct of the Attorney-General renders him liable to impeachment, and the Senate disclaims the right or power to punish him by imprisonment or otherwise than by impeachment for the offense charged against him in the second resolution, which the Senate has just adopted. (Emphasis
supplied.)14 This resolution was defeated by a sly maneuver of the Majority Leader, Senator Hoar of Massachusetts. When Hoar's point of order that the amendment was not timely, failed, and the President pro tem ruled that Senator Morgan clearly had the right to offer the amendment, Hoar then asked that this be allowed by unanimous consent, rather than by order, for he felt that "it would embarrass the Senate ... very much
nated for appointment under the Atomic Energy Act of 1946, reprinted in 94 Cong. Rec. 6196 (1948).
18 17 Cong. Rec. 2211 (1886). 14 Id. at 2814.
to establish such a precedent."15 Then, hastily, Senator Hoar moved to lay the resolution on the table. His motion carried by a vote of thirtythree yeas to twenty-six nays with sixteen members absent. The effect of this motion was to reject the resolution to amend.'* By such a rejec. tion, the majority in the Senate made it clear that they were in no way excusing the Attorney-General from possible impeachment and that they were not renouncing what they considered to be their legal right to punish him by imprisonment, or otherwise than by impeachment for his refusal to submit to the committee the desired information."
This hardly seems, therefore, to be a case which could or should be cited by the executive in support of that branch's "precedent" argument. In this situation, the Senate, in effect, said: We censure you, Mr. Gar
16 The following colloquy, contained in 17 Cong. Rec. 2814 (1886), is pertinent:
"Mr Hoar. I desire to raise a question of order. All the resolutions bave been passed, the whole four. There is no mode of amending the series now. It is simply like dividing the vote on the passage of a bill into four parts, and when they are all passed upon you can not move to amend the bill after it bas been passed.
"The PRESIDENT pro tempore. The Chair is of opinion that in view of the notice given by the Senator from Alabama that be would offer an amendment, and the amendment having been sent to the desk, the question being raised as to whether he could or could not offer it, the resolution should be received.
"Mr. Hoar. To what is it an amendment ? An amendment implies a pending question to be amended. The question is, Shall the bill pass? The question, shall it pass with a certain amendment, must be acted on before it is passed. But when a series of resolutions which are four distinct propositions are before the Senate and there is a demand that the question be divided, according to the usual parliamentary procedure the question is put on the passage of each separately, and when each separately has passed the matter is as much beyond the reach of amendment as a bill after it has passed. Giving a notice beforehand does not change the parliamentary law. The Senator should have made his motion as an amendment to the last resolution.
"The PRESIDENT pro tempore. In ordinary cases clearly the Senator from Massachusetts is right; but the Senator from Alabama sent an amendment that was then in order to the Chair, and the Chair was about to put the question upon it as an amend. ment when the Senator from Alabama gave notice to the Senate that he would offer it as an additional resolution. The Chair thinks under the circumstances that it is
clearly his right to offer the amendment." 16 The following definition of a "motion to lay on the table" is to be found in Cannon, Procedure in the House of Representatives (U. S. Govt. Printing Office, 1948) p. 415 and is equally applicable in regard to the Senate:
“The motion to lay on the table is used for final and summary disposition without debate, and to protect the House against business which it does not wish to consider, and while it is not a technical rejection, it is in effect an adverse disposition equiva
lent to rejection." 17 17 Cong. Rec. 2814 (1886).