April 10, 1973
Page 11621
EXECUTIVE PRIVILEGE
Mr. MUSKIE. Mr. President, the joint hearings of three Senate subcommittees on the subject of executive privilege and Government secrecy began today with three important and contrasting statements by highly qualified witnesses.
I ask unanimous consent that those statements by Attorney General Richard Kleindienst, by Senator FULBRIGHT, and by former Secretary of Defense Clark Clifford, be printed in the RECORD at this point for the benefit of all Members of the Senate.
There being no objection, the statements were ordered to be printed in the RECORD, as follows:
STATEMENT OF RICHARD G. KLEINDIENST,
ATTORNEY GENERAL
Messers. Chairmen: I am pleased to appear before these Committees to testify on S. 858, introduced by Senator Fulbright, and S.J. Res. 72, introduced by Senator Ervin, both relating to separation of powers. Your joint letter of March 16, 1973, Messers. Chairmen, indicates that these hearings are a continuation of the 1971 hearings on Executive privilege held by the Subcommittee on Separation of Powers. I understand that, like the earlier hearings, these hearings will not be limited to proposed legislation, but will deal with the question of Executive privilege as a whole. I hope these hearings will bring the Executive and Legislative branches together and make it possible to find some common ground in this very sensitive area, without infringing on the constitutional prerogatives of either.
I
We deal here today not with a settled field of law but with an enduring constitutional value of the highest rank and necessity. Executive privilege is squarely founded in the separation of powers doctrine. The core principle of privilege, both congressional and executive, has been universally accepted, albeit the courts have not had occasion to delimit the outer boundaries. Separation of powers is an area where the Legislative and Executive branches may be forever destined to dispute the terrain with claims that often are legitimate and conflicting.
In the area of congressional-executive relations, students and practitioners often must find their guidance in historic precedents rather than in binding judicial decisions from courts of last resort. Such historic practices of one branch of our Government, especially when acceded to by another, yield Burkeian rules of constitutional prescription of the highest vitality.
Continuation of these long-established practices and the mutual restraint which fostered their development is vitally important. As was said by Senator Fulbright in introducing S. 1125 in the 92d Congress, citing James Madison in , the Federalist, "neither the Executive nor the legislature can pretend to an exclusive or superior right of settling the boundaries between their respective powers." 117 Cong. Rec. S2513 (daily ed. March 5, 1971).
I shall discuss first the historic outlines of the doctrine of executive privilege as it has been understood and implemented by past Presidents and Congresses. My statement concludes with a brief discussion of the specific provisions of S. 858 and S.J. Res. 72. I will, of course, also be happy to respond to questions.
II
The doctrine of Executive privilege denotes the constitutional authority of the President in his discretion to withhold certain documents or information in his possession or in the possession of the Executive branch from compulsory process of the Legislative or Judicial branch of the Government, if he believes disclosure would impair the proper exercise of his constitutional functions. The authority of the President to withhold certain information from the coordinate branches of the Federal Government stems from the separation of powers doctrine embedded in the first three Articles of the Constitution and implicit throughout the document. While not expressed in a constitutional clause, Executive privilege necessarily flows from the powers vested in the President by Article II. Similarly, the Congressional power to use compulsory process in aid of its legislative functions is implied rather than expressed in Article I.
The power to legislate implies the power to obtain information necessary for Congress to inform itself about the subject to be legislated, in order that the legislative function may be exercised effectively and intelligently. This authority is strongest against a private citizen, as illustrated by McGrain v. Daugherty, 273 U.S. 135, 175 (1927).
The right of the Executive to withhold information from Congress and the courts is equally well recognized. Executive privilege as applied to the compulsory process of the courts has been sustained by the United States Supreme Court in the case of United States v. Reynolds, 345 U.S. 1, 7-11 (1953). The Court's description of the extent of judicial review of the propriety of such a claim, cast in Reynolds in terms of the state secrets rule of evidence law, indicates that review is narrowly confined.
Executive privilege is replete with historic precedents supporting the doctrine, but has not yet been favored by extensive judicial review. There is no authoritative court decision on Congressional power to compel production of documents or testimony on the part of members of the executive branch. The inevitable friction between executive and legislative branches in this area usually has been moderated in a cooperative spirit, thus avoiding litigation.
It is important to stress that virtually all congressional requests to the Executive for information and testimony are freely complied with. There is a vast flow of documents, information and testimony from the Executive to the Congress. As the President said in his March 12, 1973 statement on executive privilege, during the first four years of this Administration, "hundreds of Administration officials spent thousands of hours freely testifying before committees of the Congress." On at least one occasion in the current Congress the Executive has complied on 12-hours notice.
This problem of separation of powers arises only on those rare occasions when a committee of Congress believes that information or testimony is essential to the discharge of its legislative function and the Executive believes that furnishing that information or testimony would undermine the Executive role.
The claim of the Executive to withhold information from Congress dates from the administration of President Washington. In 1792, the House of Representatives investigated the conduct of the executive branch in connection with the ill-fated expedition of Major General St. Clair into the Northwest Territory.
Washington's Cabinet concluded unanimously on April 2, 1792 that the House of Representatives could institute inquiries and call for papers generally and "that the executive ought to communicate such papers as the public good would permit and ought to refuse those the disclosure of which would injure the public. Consequently were [sic] to exercise a discretion."
The Writings of Thomas Jefferson (Ford Ed., 1892) Vol. I, pp. 189-190. President Washington determined that disclosure of the papers would not be contrary to the public interest and instructed the Secretary of War to make them available to the House of Representatives. The Writings of George Washington (GPO Ed., 1939) Vol. 32, p. 15.
In 1794 President Washington informed the Senate that he was withholding certain foreign relations papers in response to its resolution "which, in my judgment, for public considerations, ought not to be communicated." Senate Executive Journal (17891805) 147; Richardson, Messages and Papers of the Presidents (GPO Ed., 1896) Vol. I, p. 152. In 1796, in connection with the appropriation of funds to carry out the financial provisions of the Jay Treaty, the House of Representatives requested the President to produce the instructions to the negotiating minister, and the correspondence and other documents relating to the treaty. President Washington in this instance advised the House that he could not comply with its request. He explained:
"As it is essential to the due administration of the government that the boundaries fixed by the Constitution between the different departments should be preserved, 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." Richardson, Messages and Papers of the Presidents (GPO ed. 1896) Vol. I, pp. 194-196.
Recognizing the significance of this decision, the House debated the issue at length. See 5 Annals of Congress 426-783 seriatim. James Madison's speech during that debate is significant:
"He thought it clear that the House must have a right, in all cases, to ask for information which might assist their deliberations.
“He was as ready to admit that the Executive had a right, under due responsibility, also, to withhold information, when of a nature that did not permit a disclosure at the time ...
"If the Executive conceived that, in relation to his own department, papers could not be safely communicated, he might, on that ground, refuse them, because he was the competent though a responsible judge within his own department." 5 Annals of Congress 773 (1796).
III
Since this beginning in the 1790's virtually every President has had occasion to determine whether the disclosure of certain information to Congress is appropriate. The primary areas of non-disclosure have been foreign relations, military affairs, pending law enforcement investigations, and intra-governmental discussions. The Presidential position has been that the Executive had a constitutional power to refuse information to Congress. See generally Younger, Congressional Investigations and Executive Secrecy: A Study in the Separation of Powers, 20 U. Pitt. L. Rev. 755 (1959).
The need for secrecy in the first two categories, foreign relations and military affairs, is recognized by the judicial branch. See, e.g., United States v. Curtiss-Wright Corp., 299 U.S. 304, 320 (1936); United States v. Reynolds, 345 U.S. 1 (1953); New York Times v. United States, 403 U.S. 713, 723 (1971) (Mr. Justice Stewart concurring).
Congressional recognition of executive power to withhold information in the field of foreign relations may be found in the time-honored formula of resolutions of inquiry directed to the Department of State in matters of foreign relations. The Secretary is requested to furnish the information "if not incompatible with the public interest." See Cannon's Procedure in the House of Representatives, H. Doe. 610, 87th Cong., 2d Sess., p. 219; Curtiss-Wright, supra, at 321. It has been conceded that the executive would have the same non-disclosure power if the precautionary clause were missing. 40 Cong. Rec. 22 (1905) Remarks of Senator Teller.
It has also been acknowledged in Congress that the President's authority to withhold extends to military information which could be of use to an enemy. See, e.g., Senator Spooner's remarks, 41 Cong. Rec. 97-98 (1906). More recently, in connection with the U-2 incident, the Senate Foreign Relations Committee recognized that with respect to foreign intelligence operations:
"The administration has the legal right to refuse the information under the doctrine of executive privilege." S. Rept. 1761, 86th Cong., 2d Sess., p. 22.
Congress likewise has recognized the validity of claims of executive privilege for internal advice to the President. The privilege has been invoked to promote frank advice within the executive branch and preserve confidentiality regarding conversations with the President. For example, during investigation of the dismissal of General MacArthur in 1951, General Bradley refused to testify about a conversation with President Truman in which he had acted as the President's confidential adviser. The late Senator Russell, the Committee Chairman, recognized that claim of privilege, and his ruling was upheld by the Committee. Military Situation in the Far East, Hearings before the Committee on Armed Services and the Committee on Foreign Relations, United States Senate 82d Gong., 1st Sess., pp. 763, 832-872.
The existence of the privilege below the level of communications with the President was recognized in a Senate investigation conducted in 1962 into Military Cold War Education and Speech Review Policies. President Kennedy, by letters dated February 8 and 9, 1962, directed the Secretaries of Defense and State not to disclose the name of the individual who had reviewed any particular speech. He explained:
"It would not be possible for you to maintain an orderly Department and receive the candid advice and loyal respect of your subordinates if they, instead of you and your senior associates, are to be individually answerable to the Congress, as well as to you, for their internal acts and advice." Reprinted in Military Cold War Education and Speech review Policies, Hearings before the Special Preparedness Subcommittee of the Committee on Armed Services, United States Senate, 87th Cong., 2d Sess., pp. 508, 725.
The Chairman of the Subcommittee, Senator Stennis, upheld the claim of privilege, stating in part:
"We now come face to face and are in direct conflict with the established doctrine of separation of the powers....
"I know of no case where the Court has ever made the Senate or the House surrender records from its files, or where the Executive has made the Legislative Branch surrender records from its files – and I do not think either one of them could. So the rule works three ways. Each is supreme within its field, and each is responsible within its field." Id. at 512.
Finally the executive branch has repeatedly withheld from Congress what may be referred to generally as "investigative files." The leading precedent in this area is Attorney General Jackson's refusal in 1941 to comply with the request of Chairman Carl Vinson of the House Naval Affairs Committee for certain investigative reports of the Federal Bureau of Investigation. See 40 Op. A.G. 45.
The Attorney General refused because disclosure of FBI information could substantially prejudice law enforcement, by allowing a prospective defendant to know how much or how little information the government had about him, and what witnesses or sources of information it was proposing to rely upon. His opinion also cited the serious prejudice to the future usefulness of the government's investigative agencies, since much of the information was (and is) given in confidence and can only be obtained upon a pledge not to disclose the source. Finally, Attorney General Jackson said that disclosure "might also be the grossest kind of injustice to individuals," since the reports included "leads and suspicions, and sometimes even the statements of malicious or misinformed people. Even though later and more complete reports exonerate the individuals, the use of particular or selected reports might constitute the grossest injustice, and we all know that a correction never catches up with an accusation." 40 Op. A.G. at 47.
The claim of privilege in these four traditional categories of foreign relations, military affairs, investigative reports and internal advice is well supported by reason and precedent. The need for secrecy in the conduct of foreign relations is demonstrated by the recent Vietnam peace negotiations. The necessity for absolute secrecy concerning weapons systems, and tactical military plans during hostilities, is self-evident. The need for confidentiality of investigative reports, cogently articulated by Attorney General Jackson as noted earlier, has been reaffirmed by the experience of recent weeks.
In the area of executive decision-making, the President must be able to receive absolutely candid, impartial, and disinterested advice from his advisers. Presidential advisers may hedge their opinions, or even remain silent, if they know that their advice may soon be examined out of context by Congress, the press and the public, or that the President may have to explain why he did not follow it. As the President said in his March 12, 1973 statement:
"[w]hat is at stake ... is not simply a question of confidentiality but the integrity of the decisionmaking process at the very highest levels of our Government."
IV
The principle of executive privilege has been applied by past Presidents not only to furnishing documentary information, but to appearance of the President's immediate assistants as witnesses before committees of Congress. Requests for their appearance have rarely been made, and still more rarely pressed. Past Presidents who have addressed themselves to such requests appear uniformly to have considered the appearance of such advisers to be solely a matter of Presidential discretion, i.e., it is a right which may be asserted or waived.
On two occasions during the administration of President Truman a subcommittee of the House Committee on Education and Labor issued subpoenas to John R. Steelman, who held the title of "Assistant to the President." He returned both subpoenas with a letter stating that the President had in each instance directed him, in view of his duties as a Presidential Assistant, not to appear before the Subcommittee. Investigation of the GSI Strike, Hearings before a Special Subcommittee of the Committee on Education and Labor, House of Representatives, 80th Cong., 2d Sess., pp. 347-53.
In 1951, Donald Dawson, an Administrative Assistant to President Truman, was requested to testify before a Senate Subcommittee investigating the Reconstruction Finance Corporation, one aspect of which concerned Mr. Dawson's alleged misfeasance The President affirmed his belief that this request constituted a violation of the constitutional principle of the separation of powers, but "reluctantly" exercised his discretion to permit Mr. Dawson to appear and testify to clear his name. Study of the Reconstruction Finance Corporation, Hearings before a Subcommittee of the Committee on Banking and Currency, United States Senate, 82d Cong., 1st Sess., pp. 1709, 1795, 1810. See also New York Times, May 5, 1951, p. 75. May 11, 1951, pp. 1, 26; May 12, 1951, pp. 1, 12.
In 1944, Jonathan Daniels, an Administrative Assistant to President Roosevelt, refused to respond to a subcommittee subpoena requiring him to testify concerning his alleged attempts to force the resignation of the Rural Electrification Administrator. He based his refusal on the confidential nature of his relationship to the President. The subcommittee recommended that Daniels be cited for contempt. Thereafter he wrote the subcommittee affirming that he was not subject to subpoena, but advising it that the President had decided to waive the privilege in that instance. Administration of the Rural Electrification Act, Hearings before a Subcommittee of the Committee on Agriculture and Forestry, U.S. Senate, 78th Cong., 1st Sess., pp. 615-629, 695-740.
During the Eisenhower administration Sherman Adams declined to testify before a committee investigating the Dixon-Yates contract because of his confidential relationship to the President. However, at a later date in the administration he was permitted to appear and testify concerning his dealings with Bernard Goldfine. Investigation of Regulatory Commissions and Agencies, Hearings before a Subcommittee of the Committee on Interstate and Foreign Commerce, House of Representatives, 85th Cong., 2d Sess., pp. 3711-3740.
During the hearings on the nomination of Justice Fortas as Chief Justice, the Senate Judiciary Committee requested W. DeVier Pierson, then Associate Special Counsel to President Johnson, to appear and testify regarding the participation of Justice Fortas in the drafting of certain legislation. Mr. Pierson declined to appear, and wrote the Committee as follows:
"As Associate Special Counsel to the President since March of 1967, I have been one of the 'immediate staff assistants' provided to the President by law. (3 U.S.C. 105, 106.) It has been firmly established, as a matter of principle and precedents that members of the President's immediate staff shall not appear before a Congressional committee to testify with respect to the performance of their duties on behalf of the President. This limitation, which has been recognized by the Congress as well as the Executive, is fundamental to our system of government. I must, therefore, respectfully decline the invitation to testify in the hearings." Nominations of Abe Fortes and Homer Thornberry, Hearings before the Committee on the Judiciary, United States Senate, 90th Cong., 2d Sess., pp. 1347, 1348.
Like the historically far more frequent refusals to supply documents and information, these refusals by Presidents to permit their immediate advisers to appear before congressional committees are well grounded in principle. As the President said in his March 12 statement:
"Under the doctrine of separation of powers, the manner in which the President personally exercises his assigned executive powers is not subject to questioning by another branch of Government. If the President is not subject to such questioning, it is equally appropriate that members of his staff not be so questioned, for their roles are in effect an extension of the Presidency."
If another branch of government could compel the attendance of the President, for the purpose of inquiring into the performance of his duties, it would seriously impair the independence of the Presidency and the Executive branch. After leaving office President Truman recognized that danger in a radio address on the occasion of his refusal to appear pursuant to a subpoena before the House Un-American Activities Committee. He stated that if a President or former President could thus be called and questioned about his official duties, "the office of President would be dominated by the Congress and the Presidency might become a mere appendage of Congress." New York Tinges, November 17, 1953, p. 26. The same inroad on separation of powers and independence of the Presidency would result if an immediate staff assistant to the President could be called before a committee for the avowed or apparent purpose of questioning him about his duties on behalf of the President.
In 1971, testifying at the earlier session of these hearings, the late Dean Acheson graphically illustrated the objections to an unlimited congressional power to call these assistants
"With what relish one can imagine Senator Joseph McCarthy conducting these examinations without judge or defending counsel. Television would, of course, occupy half the hearing room; the press the other half. The employee's duties, relations with the President, with other employees in the White House, the State Department, and representatives of foreign governments, his qualifications for his duties, past experience, social life, and friends would all receive attention. He would be asked about matters he had worked on, although not the substance of them, aside from the one on which he was summoned, and long arguments would be provoked about whether the President's letter provided exemption from answering extraneous questions irrelevant to its principal subject.
"As summons might follow summons as fast as committee clerks could get them out with the aid of the Congressional Directory and these witnesses followed one another with letters asserting privilege, what a picture could be created of a President in the center of a web of secret machination. What a picture presented to the world of a government as bizarre, absurd, and divided by tragic vendettas as the King of Morocco's birthday party.
"In short, what a hell of a way to run a railroad!" Hearings Before the Subcommittee on Separation of Powers of the Committee on the Judiciary, U.S. Senate, 92d Cong., 1st Sess. on S. 1125, pp. 260-61.
V
I shall now discuss briefly and in general terms the two bills, S. 858 and S.J. Res. 72, which seek to regulate and restrict the exercise of Executive privilege. The Department of Justice has been requested by the Senate Committee on Government Operations to comment on S. 858 and will submit the usual detailed report on it in the near future.
Because of the constitutional principles and historic practices just discussed, it will come as no surprise to you that the Department of Justice is opposed to many aspects of the proposed legislation. It would serve no valid purpose for a Government official to appear before a Committee only in order to submit, in the words of S. 858, "a statement personally signed by the President requiring that the employee assert executive privilege as to the testimony or document sought." In keeping with the coequal status of the Executive and the Congress, a written communication invoking privilege should suffice in those instances where it applies to the very appearance of the witness, to all of the envisaged testimony, or all of the requested documents.
Hypothesize the reverse situation where a court or an executive agency subpoenas a Senator to testify or to produce documents in the custody of the Senate, and the Senate decrees to the contrary. See Senate Rules V (l) and XXX. The Senate doubtless would resist if the court or agency nevertheless should insist that the Senator appear personally merely to present the Senate resolution.
When the Senate limited the scope of the response of a Senator and of Senatorial employees to a judicial subpoena, Senator McClellan pointed out:
"The Senate recognizes it has certain privileges as a separate and distinct branch of the Government which it wishes to protect." 108 Cong. Rec. 3627 (1962).
We also have serious difficulties with that aspect of the proposed legislation which would purport to make it "a question of fact" for the Committee to decide whether an assertion of privilege is well taken. We deal here, as often in the constitutional field, with a fact/law interface, and not with a simple question of fact.
However, the statement made by Senator Fulbright in introducing the bill (119 Congressional Record, February 15, 1973, p. 4210), suggests that the "question of fact" clause may have been designed to enable the Committee simply to substitute its judgment for that of the President regarding Executive privilege. If this is the import of the clause it obviously would raise fundamental constitutional problems. The clause would point toward congressional supremacy inconsistent with the separation of powers system.
VI
To conclude, Executive privilege is a constitutionally founded, historically accepted, and vital principle of American government. At the same time we recognize that this separation-of-powers prerogative should be exercised in restrained fashion in order not to needlessly bar the flow of information relevant to legislation. Indeed, this Administration has adopted and honored stringent guidelines to prevent such occurrences and will continue that policy. Insofar as the current Executive-Legislative relationship takes on a sharper edge because of Watergate, it must be borne in mind that determination of alleged violation of the criminal laws passed by Congress is uniquely the province of the Judiciary. For crime there can be no haven, and the White House has stated that even the President's close personal aides will respond to grand jury inquiry.
When all is said and done, this separation-of-powers frontier, like the concept of justiciability under Article III of the Constitution, will forever elude neat definition. Paraphrasing what Justice Jackson once said about justiciability, we can say in regard to executive privilege that "when all of the axioms have been exhausted and all words of definition have been spent, the propriety of" invoking executive privilege in a particular instance "will depend upon a circumspect sense of its fitness informed by the teachings and experience" of the past. Public Service Commission of Utah v. Wycoff Co., 344 U.S. 237, 243 (1952). We are striving to show such a "circumspect sense of fitness" regarding the ongoing vitality of the basic constitutional principle of separation of powers, and we invite your cooperation.
STATEMENT OF SENATOR J. W. FULBRIGHT
On April 22, 1948, Congressman Richard Nixon of California, engaged at that time in an investigation of alleged subversive activity, berated the Truman Administration for its uncooperative attitude. He commented as follows:
"The point has been made that the President of the United States has issued an order that none of this information can be released to the Congress and that therefore the Congress has no right to question the judgment of the President in making that decision.
"I say that that proposition cannot stand from a constitutional standpoint or on the basis of the merits for this very good reason: That would mean that the President could have arbitrarily issued an executive order in the Meyers case, the Teapot Dome case, or any other case denying the Congress of the United States information it needed to conduct an investigation of the executive department and the Congress would have no right to question his decision."
I. EXECUTIVE PRIVILEGE: THE "NIXON DOCTRINE"
Mr. Nixon's views on executive privilege have changed since his days as a Congressional investigator. Changes of outlook are not unknown among legislators who become presidents – that trip down Pennsylvania Avenue seems to work magical transformations. But in Mr. Nixon's case the metamorphosis could hardly have been more complete. Soon after coming to the White House he declared his policy on executive privilege. In a memorandum on the subject addressed to the heads of executive departments and agencies on March 24, 1969, President Nixon purported to limit the use of "executive privilege," but at the same time he claimed a right for the executive to withhold information from Congress when disclosure "would be incompatible with the public interest" – the executive being the sole judge of what was or was not in the "public interest."
The Nixon doctrine on executive privilege was amplified on March 11, 1973, on which occasion the President proclaimed the doctrine to be "rooted in the Constitution." The President did not provide any clues as to where in the Constitution the doctrine of executive privilege might be rooted as might have been expected of a "strict constructionist." But he did give his personal promise that executive privilege would not be used to conceal "embarrassing information" but only when disclosure would harm the "public interest." Once again, it is clear, the executive would be the sole judge of what was or was not in the "public interest," as well as of what might constitute "embarrassing information." The President went on in his statement to extend the mantle of executive privilege beyond himself and his burgeoning White House staff to cover cabinet and other officials who simultaneously hold White House positions and also former White House officials. The latter proscription would seem to imply, in the case of a crucial figure like Henry Kissinger, that even when the Vietnam war and his own role in ending it have become history, Mr. Kissinger will still be immune – perhaps even prohibited – from discussing these matters with Congressional committees, although he could write his memoirs. As the President put it, staff members must be free from any fear that their advice "will ever become a matter of public debate ..."
In his press conference of March 15, 1973, Mr. Nixon seemed disinclined to discuss any "embarrassing information" relating to the Watergate scandal, but he expressed the most forthright views on executive secrecy – views quite strikingly at variance with those he had held twenty-five years before, and in some respects, it would appear, even one year before. "Members of the White House staff," he said, "will not appear before a committee of Congress in any formal session," This sounds awfully close to a claim of blanket immunity, although less than a year ago, in a letter to Dr. Jeremy Stone, Director of the Federation of American Scientists, the President's Counsel, John W. Dean, III, disclaimed such immunity in these words: "You asked whether President Nixon or any former Presidents have ever asserted a claim that Presidential aides have blanket immunity from testifying before the Congress on any subject. I am not aware of any public statement by President Nixon or any past President to this effect."
"We will furnish information under the proper circumstances," Mr. Nixon promised on March 15. "We will consider each matter on a case-by-case basis." In that press conference, as in his formal statement of March 11, Mr. Nixon left no doubt that it was the President, and the President alone, who would decide what the "proper circumstances" were for granting or withholding information. It was all, in the President's view, a matter of upholding the principle of the separation of powers, and if the Senate wished to dispute that great principle, he would gladly meet them in court.
Here is a novel doctrine indeed: in the name of "separation of powers" Mr. Nixon claims for the executive an absolute, unlimited power to decide what will be made known to Congress and the country and what will be kept secret. Where does the "separation" come in? The President had nothing to say about that on March 15, but he did suggest an odd and interesting distinction between the kind of issue Congress might legitimately investigate and the kind it might not.
Congress, in Mr. Nixon's view, was on "much stronger ground" in asking the "Government" – I believe he meant the executive branch of the "Government" – to cooperate in an investigation of espionage against the Government – such perhaps as those once conducted by the House Committee on Un-American Activities – than in an investigation of political espionage such as the Watergate affair.
Can Mr. Nixon have meant this? Would he really exempt the subversion of the electoral process from the legitimate area of Congressional inquiry and executive accountability? To be charitable, one must assume that the President has not thought the matter through. Nonetheless, his press conference of March 15, and his statement of March 11 on executive privilege, assert an unprecedented, sweeping claim to absolute Presidential discretion in deciding what will and will not be kept secret from Congress and the country.
The statement of March 11 is filled with vague pieties about compliance with "reasonable requests" for testimony or documents and the ready provision of "necessary and relevant" information. We can all applaud the commitment to "reasonableness." "necessity," and "relevance," but these are not objective categories. As has already been amply demonstrated, the executive and Senators may differ widely on what these principles require in such matters as the Grey nomination and the Watergate investigation. The real question of course is who is to decide what is "reasonable," "necessary" or "relevant." The President contends that he should decide case-by-case and on the basis of his own judgment and convenience. That is not a defense of the separation of powers, but the antithesis of it; it is a claim to exclusive and arbitrary power. The alternate approach – and the only approach consistent with the separation of powers – is to divide the power of deciding what information will be withheld from Congress and what will be provided. The purpose of the legislation which I commend to the combined subcommittees today is not to eliminate the practice known as executive privilege but to remove it from the realm of executive caprice, to define and restrict it by law.
II. THE ROOTS OF PRIVILEGE
"Privilege" is the right word for unrestricted executive secrecy, because there is no basis in law or history for the claim of any right to withhold information from the people's elected representatives. A review of past usage and precedent shows that "executive privilege" is not a legal or constitutional principle but simply a custom, a survival of the royalist principle that "the King can do no wrong." Legal scholars regard the claim to an absolute executive discretion in matters of providing or withholding information as an anachronistic survival of monarchical privilege, an extension from King to President of the doctrine of sovereign immunity. As currently invoked and practiced in our country, executive privilege represents a gap in the rule of law, placing the executive branch of our federal government in a position of immunity from principles of law which are binding upon other branches of government and upon ordinary people.
In the view of Professor Raoul Berger, who has made an exhaustive study of the origins of executive privilege, there is "little if any historical warrant ... for the notion that executive privilege was ever intended to be among the checks on the legislative power of inquiry." That, however, and more, are exactly what recent American Administrations have claimed. Reading into the past a greatly revised, if not wholly new, conception of the intent of the Constitution, recent Administrations have contended that their discretion to withhold information is absolute, plenary and immune from either Congressional restriction or judicial review. In the Justice Department's memorandum of 1958, Attorney General William Rogers went so far as to contend that "Congress cannot, under the Constitution, compel heads of departments by law to give up papers and information, regardless of the public interest involved; and the President is the judge of that interest." The memorandum goes on to assert that the withholding of information is a political rather than a legal matter, and that neither Congress nor the courts may compel the President to provide information when in his own judgment, it would be "inexpedient" to do so.
This of course is a repudiation of the very concept of a government of checks and balances. If the President has sole discretion to keep information from Congress and the country, he is in practice at liberty to do anything he wishes, at home or abroad, as long as he manages to keep it secret.
The evil in its modern form was born of honorable intent, the desire of the Eisenhower Administration to protect its officials from the attacks of Senator Joe McCarthy. The "cure," however, has proven to be as deadly as the disease, as executive privilege, both formally and informally invoked, has ripened into a highly effective means of nullifying the investigatory function of Congress. In neither logic, law nor practice can there exist simultaneously an effective power of legislative oversight and an absolute executive discretion to withhold information. Inevitably, one must give way to the other; the only question is which one is to be dispensed with.
In foreign as in domestic affairs there can be no question of the authority – indeed of the responsibility – of the Congress to exercise legislative oversight. This power is spelled out in Section 136 of the Legislative Reorganization Act, which states that each standing committee "shall exercise continuous watchfulness of the execution by the administrative agencies concerned of any laws, the subject matter of which is within the jurisdiction of such committee; and, for that purpose, shall study all pertinent reports and data submitted to the Congress by the agencies in the executive branch of the Government." The power and duty of legislative oversight are in fact rooted deeply in our constitutional history. In the words of a study of the Congressional power of investigation prepared for the Senate Judiciary Committee in February of 1954: "A legislative committee of inquiry vested with power to summon witnesses and compel the production of records and papers is an institution rivaling most legislative institutions in the antiquity of its origin. Its roots lie deep in the British Parliament, and only in the light of a knowledge of these origins and subsequent developments does it become possible to comprehend its limits." The same general proposition was endorsed by the Supreme Court in McGrain v. Daugherty in 1927, in which the Court stated that, "The power of inquiry – with power to enforce it – is an essential and appropriate auxiliary to the legislative function. It was so regarded and employed in American legislatures before the Constitution was framed and ratified."
Legislative inquiry and oversight are of course impossible without pertinent information. Insofar as the executive is at liberty to withhold information, he is also at liberty to nullify the ability of Congress to exercise legislative oversight. To state the matter in its simplest terms: if Congress does not have the information it considers necessary, it cannot effectively investigate the executive; and if Congress does not investigate the executive, there is no one to do it but the executive itself. Quite understandably, any Administration must find it comfortable and convenient to serve as its own judge and jury, but such an arrangement is anathema to our constitutional system of separated powers checked and balanced against each other.
The principle of executive accountability to Congress was asserted from the outset of our history. In 1789 Congress adopted, and President Washington signed, a statute stating that it "shall be the duty of the Secretary of the Treasury ... to make report, and give information to either branch of the legislature in person or in writing (as he may be required), respecting all matters referred to him by the Senate or House of Representatives, or which shall appertain to his office ..." [Emphasis added] In the Congressional debate on this measure, Roger Sherman observed that, "as we want information to act upon, we must procure it where it is to be had, consequently we must get it out of this officer, and the best way of doing so must be by making it his duty to bring it forward."
The omission of similar requirements to provide information from the act establishing the Department of State – or the "Department of Foreign Affairs" as it was first called – was interpreted by Attorney General Rogers in 1958 as proof that "the founders of our Government, and those who sat in the First Congress, meant to give no power to the Congress to see secret data in the executive departments against the wishes of the President." In fact, Professor Berger points out, the Congressional debate about the proposed "Department of Foreign Affairs" contained not a single word about the Congressional right to require information, secret or otherwise, and from this "the Attorney General might with equal plausibility have concluded that the right to require information had gone by default. In complete contrast with the Rogers claim of unlimited executive license for secrecy, an earlier Attorney General, Cushing, advised President Pierce in 1854 that, "By express provision of law, it is made the duty of the Secretary of the Treasury to communicate information to either House of Congress when desired; and it is practically and by legal implication the same with the other secretaries, and with the Postmaster and the Attorney General."
In the tradition of the Treasury Act of 1789 many other requirements of information have been enacted into law over the years. Section 313 of the Act of 1921 establishing the General Accounting office directs every agency of the Government to furnish to the Comptroller General "such information regarding the powers, duties, activities, organization, financial transactions, and methods of business and their respective offices as he may from time to time require of them." The language of the statute is clear: it refers to such information as the Comptroller General may "require," not to such information as the Comptroller General may desire and the agency involved choose to provide. Indeed, in 1925 President Coolidge's Attorney General acknowledged that the papers to which the Comptroller General was entitled, under the Act of 1921, "Would seem to be a matter solely for his determination."
In the name of executive privilege – or, more vaguely, of the "public interest" – agency heads have taken the extraordinary position that they are at liberty to ignore this provision of law. To cite one striking example: In 1969 the General Accounting Office was asked by the Foreign Relations Committee to conduct a review of the training of foreign military personnel under the Military Assistance Program. For purposes of this study the General Accounting Office thereupon requested of the Department of Defense copies of its five-year plan for military assistance, performance evaluation reports on Korea and possibly other countries, and a Defense Department staff report on the status of foreign military training systems. All were refused, the five-year plan on the ground that it was only a "tentative planning document," the Korean report on the ground that it was "not available at the present time," the status reports on the ground that they contained the "opinions" of American military advisers the release of which might provide "adverse reactions" on the part of the foreign governments concerned The General Accounting Office submitted its report on the military assistance training program in early 1971 but was unable to comply fully with the Foreign Relations Committee's request, pointing out that officials of both the State Department and the Department of Defense had "withheld or delayed the release of Military Assistance Program reports and records essential to a full and complete review ..."
The denial of access to records, the General Accounting Office report pointed out, was not a new problem but "a continuation of similar problems the General Accounting Office has encountered over the years in reviewing Department of Defense programs, particularly evaluations of the military assistance programs."
To cite another more recent example: General Accounting Office officials told the House Subcommittee on Government Information last week, on April 3, that White House Counsel John W. Dean III had invoked executive privilege to thwart an inquiry into tax-paid flights by Administration officials during last fall's campaign and the extent, if any, to which the Government had been reimbursed by the Committee for the ReElection of the President for any purely political travel. The Comptroller General's request for access to passenger lists and flight logs went unanswered until after the election. On behalf of Mr. Haldeman, to whom the inquiry had been addressed, Mr. Dean replied on November 22 that the passenger lists and flight logs were "personal to the President and thus not the proper subject of Congressional inquiry." Once again one recalls Mr. Nixon's pledge that "executive privilege will not be used as a shield to prevent embarrassing information from being made available ..." Can the revelation of possible use of public funds for the President's re-election campaign possibly be harmful to the "public interest" or, as seems evident, is it the Administration's political interests that are being defended? I do not suggest at this point that the Administration used public funds for campaign purposes – one does not know whether they did or not – but I do suggest, most emphatically, that the question of whether they did so is indeed a proper subject of public inquiry, and surely is not a matter which is "personal to the President."
These are only two of many instances of the executive branch withholding information from the General Accounting Office in defiance of the law. Executive privilege, Professor Berger recalls, was originally justified as a means of assisting the Executive to "take care that the laws be faithfully executed," and he comments: "It is a feat of splendid illogic to wring from a duty faithfully to execute the laws a power to defy them ... " Professor Berger goes on to cite a Supreme Court pronouncement of 1838: "To contend that the obligation imposed upon the President to see the laws faithfully executed implies a power to forbid their execution, is a novel construction of the Constitution, and entirely inadmissible."
If the matter of executive accountability to Congress were to be brought to a final test – as President Nixon has challenged the Senate to allow – there seems little doubt of the legal authority of Congress, or of a Congressional committee, to subpoena documents and government officials, just as it can subpoena private individuals to appear and give testimony, and to hold an individual in contempt should he fail to comply. Under Section 134a of the Legislative Reorganization Act of 1946, every standing committee and subcommittee of the Senate is authorized "to require by subpoena or otherwise the attendance of such witnesses and the production of such correspondence, books, papers, and documents, to take such testimony and to make such expenditures as it deems advisable." In his authoritative book, The President, Office and Powers, Professor Edward Corwin writes: "... should a congressional investigating committee issue a subpoena duces tecum to a Cabinet officer ordering him to appear with certain adequately specified documents and should he fail to do so, I see no reason why he might not be proceeded against for contempt of the house which sponsored the inquiry."
Although the issue is largely untested and in need of legislative clarification, authorities agree that Congress is not without resources to require the disclosure of pertinent information and the appearance of appropriate witnesses. A study of Congressional inquiry into Military Affairs prepared for the Foreign Relations Committee in 1968 by the Library of Congress points out that contempt of Congress by reason of the failure of a witness to testify or produce papers is punishable by law as a misdemeanor. Furthermore, there is no necessity for Congress or a Congressional committee to rely on the Department of Justice to act in a contempt case. As an agent of the executive, the Attorney General might be less than wholehearted in the prosecution of a recalcitrant witness. But, as the military affairs study points out, "There can be no doubt that either House of Congress has the power to seize a recalcitrant witness, try him before the bar of the house, and punish him for contempt by imprisoning him in the Capitol." One legal authority has asserted that "Congress undoubtedly has power to punish contempts without invoking the aid of the executive and the judiciary, by the simple forthright process of causing the Sergeant at Arms to seize the offender and clap him in the common jail of the District of Columbia or the guardroom of the Capitol Police." This view has recently received the added, authoritative endorsement of the senior senator from North Carolina.
These, Mr. Chairman, are some of the broad historical and constitutional considerations underlying the legislation which I commend to you today. Before summarizing the provisions of my bill, I would like to cite certain current and specific instances in which the Foreign Relations Committee has been hampered in the performance of its legislative duties by executive secrecy and recalcitrance in matters under the Committee's jurisdiction.
III. EXECUTIVE PRIVILEGE AND FOREIGN POLICY
When we speak of "executive privilege," I reiterate, it should be understood that we are not referring simply to those relatively infrequent instances when the President formally invokes that dubious doctrine. Far more frequently executive branch officials employ tactics of delay and evasion which permit the executive to exercise executive privilege without actually invoking it and without honoring the commitment of three Presidents that only the President would invoke executive privilege. As matters now stand, that commitment has been reduced to a meaningless technicality: only the President may invoke executive privilege but just about any of his subordinates may exercise it – they withhold information as they see fit – but they do not employ the forbidden words.
At the same time that the executive has made increasing use of executive privilege in this broader, more meaningful sense of withholding information by a variety of devices, more informal than formal, Congress has become increasingly alert to the implications of executive secrecy. Without information, it is now increasingly recognized, Congress is scarcely able to investigate or oversee the execution of its laws, and if it cannot engage in these functions, it is scarcely qualified to make the laws at all.
In cooperation with the extremely useful survey being conducted by the Subcommittee on the Separation of Powers, the staff of the Foreign Relations Committee have reviewed the Committee's records in order to ascertain instances in which the executive has refused to provide requested information or to make witnesses available. In carrying out this assignment the staff soon discovered that the compilation of a complete list would occupy them for an indefinite period. And, as I pointed out in my letter to the Senator front North Carolina covering the completed survey forms, many of the Foreign Relations Committee's difficulties in obtaining information from the executive branch have fallen outside the scope of questions posed by the Subcommittee's survey. On many occasions we have encountered not outright refusals to provide information or to make witnesses available but indefinite delays, evasion, obfuscation, unresponsive answers, reluctance to tell the whole truth, and lack of candor. On one occasion, for instance, former Ambassador to Laos, William Sullivan, now Deputy Assistant Secretary of State for East Asian Affairs, was asked why at an earlier hearing he had withheld information about the critical role the United States Air Force was playing in northern Laos, far away from the Vietnamese infiltration routes along the Ho Chi Minh Trail. He replied, disingenuously, that he had not been asked any direct questions about United States air operation in Northern Laos. My own comment at the time was that "There is no way for us to ask you questions about things we don’t know you are doing."
By way of illustration, here are a few representative examples of Foreign Relations Committee requests for information and executive branch responses, drawn from the survey forms submitted to the Subcommittee on Separation of Powers:
On February 8, 1972, the Committee requested a State Department report on world oil supplies, which, according to a press account, suggested that in the near future the United States would need to import greatly increased quantities of oil. This was refused by the Assistant Secretary of State for Congressional Relations, Mr. Abshire, on the ground that "the paper is a preliminary working draft that is being used internally for discussions with other agencies with interests in the energy field."
On February 25, 1972, I asked Secretary Rogers to provide the Committee with certain evaluative studies of Radio Free Europe and Radio Liberty. Some were provided, but others were withheld on the ground that they were "inappropriate for disclosure, particularly as they are work products of the National Security Council system."
On January 18, 1973, the State Department was asked to provide a copy of a plan for United States assistance to a five-year modernization program for the Korean Armed Forces. The Committee wished to have this information for use in its consideration of military aid legislation. No response has been received concerning the plan although some information was provided regarding the United States-Korean agreement.
On July 14, 1971, we requested a copy of the annual State Defense memorandum on military assistance and sales, described by the State Department as "the basic military assistance policy guidance for all agencies." Mr. Abshire replied after two months, "As you know, the President has directed that internal working documents which would disclose tentative planning data on future years of the military assistance program which are not approved executive branch positions should not be made available to the Congress." I in turn replied as follows: "I fail to understand how the Department can allege that a document which contains the 'policy guidance for all agencies' concerned with the military assistance and sales programs does not constitute 'approved executive branch positions.' I want the record to show that the Committee does not accept the Department's rationale for refusing to furnish the document."
On September 29, 1969, the Department of Defense was asked to provide the Foreign Relations Committee with information regarding internal defense plans for foreign governments prepared by the United States. This request was refused in a reply received three months later which stated that the plans in question were "viewed as tentative planning documents the release of which outside the executive branch could risk adverse reactions by the governments concerned."
On March 14. 1972, the Secretary of Defense was asked to provide a Pentagon study, referred to in the press, relating to the capacity of the Chinese Nationalist government on Taiwan to defend itself against amphibious assault from the mainland. After almost a year, the Defense Department replied, on January 24, 1973, that it had located a document "which in some ways resembles" the document requested, but the Department refused to make it available on the ground that "Since the document is an internal working level paper prepared some years ago and has never received any approval or implementation in the Department, its use would serve no purpose."
On three separate occasions, between December, 1969, and January, 1971, 1 asked the State Department to make available reports by an Englishman, Sir Robert Thompson, on Vietnam, to which the President had made reference in a television speech. On February 3, 1971, Mr. Abshire replied that the State Department was "actively working" on my request. On February 12, 1971, the request was finally declined on the ground that Sir Robert Thompson's reports had been "prepared for the President personally."
On March 1, 1972, I asked the United States Information Agency to reconsider an earlier refusal to provide the Foreign Relations Committee with its Country Program Memoranda. described by USIA itself as "designed to integrate USIS planning and resource allocation with overall U.S. objectives in the country." This request was refused in a formal Presidential invocation of executive privilege.
I have already referred to the Defense Department's refusal of access to its five-year military assistance program to the General Accounting Office. Between May, 1969, and August, 1971, the Foreign Relations Committee made numerous requests for this document in order to allow it to appraise the Administration's annual military assistance request in the context of its long-range planning. At one point in the protracted communications, on August 5. 1971, Secretary Laird denied the existence of a five-year plan, although he himself had made reference to it in previous correspondence. At last, on August 30, 1971, President Nixon refused the information in a formal invocation of executive privilege.
I turn now, Mr. Chairman, to representative examples of individual refusals to testify before the Foreign Relations Committee:
On February 2, 1971, Mr. John F. Lehman, Jr., a National Security Council staff member was invited to meet with the Committee to amplify certain remarks he had made at a meeting with Senate staff members and Foreign Service Officers, remarks reported in the press to have been disparaging of the Foreign Relations Committee and its Chairman. Mr. Lehman refused to appear because of his position on the National Security Council staff.
The Foreign Relations Committee has accumulated voluminous files documenting the refusals of Mr. Kissinger to testify in either open or closed session. All invitations have been refused, although Mr. Kissinger has graciously consented on a few occasions to meet with members of the Committee in private homes, restaurants, or Capitol hideaways. I will not take up the subcommittees' time with a detailed recitation of these refusals. I note only that in the case of officials who are considered personal assistants to the President – such as Mr. Kissinger, Mr. Haldeman, Mr. Ehrlichman, Mr. Dean, and their staffs – as distinguished from Department heads – such as the Secretary of State – the claim of "executive privilege" is extended beyond the withholding of information to the withholding of the person himself, to his refusal even to appear before a Congressional committee, either in public or in closed session. The Secretary of State – the present one like his predecessor – has repeatedly refused invitations from the Senate Foreign Relations Committee to testify in public, but he has usually acceded to invitations to testify in closed session. On these occasions the Secretary of State has all too often withheld information from the Committee, but at least he has withheld it in person, giving Senators the opportunity to make their own views known and also to see if they can gauge the intentions of the Administration by listening to the Secretary's tone, so to speak, as well as his words. This procedure is by no means satisfactory, although it is obviously preferable to the refusal of White House officials to testify at all.
I do not consider Mr. Kissinger's influence, or that of his new foreign policy bureau in the White House, as being in any way sinister, illegitimate, or even inappropriate – except in one respect: their immunity from accountability to Congress and the country behind a barricade of executive privilege. The President is entitled, within the limits of the law, to organize his advisers and delegate authority among them as he sees fit. He is not, however, at liberty to create – nor is Congress at liberty to accept – a policymaking system which undercuts Congressional oversight and the advisory role of the Senate in the making of foreign policy. Were the President disposed to dismantle the elaborate National Security Council staff, divest Mr. Kissinger of his active negotiating role, and retain his services as a personal adviser, I would see no reason to challenge the invocation of executive privilege on Mr. Kissinger's behalf. That, however, is not the case nor does such an arrangement seem likely to commend itself to the present Administration. As matters stand, Mr. Kissinger appears on television shows, provides "background" briefings for invited members of the press – who are permitted to ask questions – and on a few occasions has asked the leadership to provide special facilities so that he can provide briefings to selected Senators under his own rules. At the same time Mr. Kissinger and members of his staff have steadfastly refused to appear before any Congressional committee, either in public or executive session. The result is that the people's representatives in Congress are denied direct access not only to the President himself but to the individual who is the President's chief foreign policy adviser.
Until and unless legislation is adopted by Congress to restrict executive privilege both as it applies to information and as it has been extended to shield individuals in high policy positions, the executive will continue to be the sole judge of that amorphous category called the "public interest" and of what is compatible or incompatible with it. It will still retain the power to decide for itself whether and to what extent it will be investigated. It will still be the judge and jury in cases of its own malfeasance and failures of judgment.
IV. LEGISLATIVE REMEDY
With a view to breaching the barricades of executive secrecy, I have re-submitted, in altered form, the "executive privilege" bill which I first introduced on March 5, 1971, (S. 1125). Taking account of the increasing abuse of executive privilege – in its broader sense – and of the growing disposition of Congress to deal with it, I have strengthened my bill by adding to it the recent proposal of the Senator from Mississippi (Mr. STENNIS) and the Senator from Wisconsin (Mr. NELSON). My bill, as originally formulated, would require employees of the executive branch to appear in person before Congress or appropriate Congressional committees when they are duly summoned, even if, upon their arrival, they do nothing more than invoke executive privilege.
One purpose of this bill is to eliminate the unwarranted extension of the claim of executive privilege from information to persons. It would require an official such as the President's Assistant on National Security Affairs to appear before an appropriate congressional committee if only for the purpose of stating, in effect: "I have been instructed in writing by the President to invoke executive privilege and here is why.”
Going beyond the requirement that executive officials appear when summoned, the Stennis- Nelson proposal would charge the Congressional committee concerned with the responsibility of deciding whether or not a witness's plea of executive privilege were "well taken." If not well taken, the witness would be required to provide the information requested. Further, when any Committee upholds or denies an invocation of executive privilege, it would then be expected to submit an explanatory report and resolution to the entire Senate – or House – which would then have the responsibility of taking appropriate action. This extremely desirable provision, already approved by the Democratic Policy Committee and Caucus, would place the final responsibility for judging the validity of a claim of executive privilege in the Congress, where it belongs.
My bill goes on to lay down specific guidelines for the invocation of executive privilege by the executive. First, and perhaps most important, the principle would be established that information could be withheld from Congress only on the basis of a formal invocation of executive privilege, in effect eliminating the all-too-common executive practice of withholding information on vague and insubstantial grounds, such as the contention that a document is purely a "planning" document, or that it would be "inappropriate" or "contrary to the national interest" to disseminate it more widely.
In addition, the bill would write into law the personal commitment made by each of the last three Presidents that executive privilege will be invoked only on the specific order of the President, only, in the language of my bill, "if the President signs a statement invoking such privilege with respect to that information requested." The bill further spells out procedures through which, within a limited time period, agency heads judging there to be compelling circumstances for the withholding of requested information from Congress, a Congressional committee, or the General Accounting Office, would be required to gain the assent first of the Attorney General and then of the President, before executive privilege could be invoked. Should the Attorney General fail to agree with the agency head on the need of secrecy, or should the President decline to invoke executive privilege, the requested information would he made available immediately.
Finally, the bill provides that, if within 30 days the executive has neither provided the requested information nor invoked executive privilege, funds will be cut off from the agency concerned until either the information is provided or executive privilege formally invoked.
Secrecy and subterfuge are themselves more dangerous to democracy than the practices they conceal. Totalitarian devices such as military surveillance of civilians, the infiltration and sabotage of a political opposition, and efforts to intimidate the news media cannot long survive in the full light of publicity. An ill-conceived war, once recognized as such by the people and their representatives, must eventually be brought to an end. But without publicity and debate there is no redress. Secrecy not only perpetuates mistaken policies; it is the indispensable condition for their perpetuation. In the words of the great early American legislator Edward Livingston of New York: "No nation ever yet found any inconvenience from too close an inspection into the conduct of its officers, but many have been brought to ruin, and reduced to slavery, by suffering gradual impositions and abuses, which were imperceptible, only because the means of publicity had not been secured."
The bill concerning executive privilege which I commend to the combined subcommittees today is designed to help secure the "means of publicity" of which Livingston spoke and, in so doing, to help restore the Congress to its proper role as the guardian of democratic liberties. The purpose of this bill is not to eliminate but to restrict the practice of executive privilege, by reducing it to bounds in which it will cease to interfere with the people's right to know and the Congress' duty to investigate and oversee the execution of the laws.
FOOTNOTES
[Footnotes Omitted]
STATEMENT OF CLARK M. CLIFFORD
I welcome your invitation to appear here today because the subject of your three-day inquiry is both current and important. I have the feeling that the public considers this matter to be of vital import and that it will view with increased interest the results of your inquiry.
So much emphasis has recently been placed on the question of executive privilege and the conflict between the Executive Branch and the Congress on this question that one fundamental fact is often overlooked. Although our branches of government are separate, it has always been assumed that they will work together for the benefit of our people and the nation. It seems to me that our system would work more effectively and more efficiently if we were to place greater emphasis upon the responsibility of our branches to work in harmony rather than constantly to dramatize their separateness.
There has long been controversy over the right of the Congress to procure information from the Executive Branch. If the Congress is to be fully informed, it must get information from the Executive Branch of our government. For Congress to function effectively, it must have the facts. In this regard, it is clear from decisions of our courts that Congress has a broad investigatory power. For Congress to legislate intelligently, it must be well informed. For it to be well informed, it must have a wide-ranging ability to investigate and procure the facts.
There has grown up during the years the tradition and general acceptance of the theory that certain types of information can be withheld by the Executive Branch when its disclosure would be inconsistent with the welfare of the country. There is no direct constitutional authorization for this privilege to be exercised by the Executive Branch, nor is there any case law that specifically adjudicates such authority on the part of the Chief Executive. In view of this status of the law, it would appear appropriate that the privilege claimed by the Executive Branch must be strictly construed.
There will always be differences between the Congress and a Chief Executive, but it is axiomatic that our government operates more effectively when the Chief Executive makes every reasonable effort to comply with the requests of Congress in supplying the Congress with information through the medium of interrogation of witnesses or the production of papers, or both.
There was a reasonable basis to anticipate that the present Administration would be liberal in supplying information to the Congress and in making witnesses available for purposes of interrogation.
In 1948, when President Nixon was a member of the House of Representatives, an effort was made to obtain certain information from the Secretary of Commerce. At that time, President Truman issued an order denying such information to Congress. Speaking on this subject on the floor of the House. Mr. Nixon made the following statement:
"I am now going to address myself to a second issue which is very important. The point has been made that the President of the United States has issued an order that none of this information can be released to the Congress and that therefore the Congress has no right to question the judgment of the President in making that decision.
"I say that that proposition cannot stand from a constitutional standpoint or on the basis of the merits for this very good reason: That would mean that the President could have arbitrarily issued an Executive order in the Meyers case, the Teapot Dome case, or any other case denying the Congress of the United States information it needed to conduct an investigation of the executive department and the Congress would have no right to question his decision.
"Any such order of the President can be questioned by the Congress as to whether or not that order is justified on the merits."
Also, on March 24, 1969. President Nixon sent a memorandum to cabinet officers and heads of agencies which read, in part, as follows–
"The policy of this Administration is to comply to the fullest extent possible with Congressional requests for information. While the Executive branch has the responsibility of withholding certain information the disclosure of which would be incompatible with the public interest, this Administration will invoke this authority only in the most compelling circumstances and after a rigorous inquiry into the actual need for its exercise. For those reasons Executive privilege will not be used without specific Presidential approval."
Further encouragement was given from comment by President Nixon at a news conference on January 31, 1973, when he stated the following:
"I will simply say the general attitude I have is to be as liberal as possible in terms of making people available to testify before the Congress, and we are not going to use executive privilege as a shield for conversations that might be just embarrassing to us, but that really don't deserve executive privilege."
Again, on March 12, 1973, President Nixon made the following statement:
"Executive privilege will not be used as a shield to prevent embarrassing information from being made available but will be exercised only in those particular instances in which disclosure would harm the public interest.”
The hope that the Executive Branch would be readily forthcoming with information was seriously and adversely affected when President Nixon, on March 12, 1973, informed the Congress that members and former members of the President's personal staff would not be permitted to testify in a formal appearance before a committee of the Congress. This constitutes an exceedingly broad restriction and, in addition, goes farther than any other President has gone. I do not recall any other President contending that executive privilege attaches to individuals who served in the White House but who have since left and returned to private life.
Apparently, the Watergate incident has had a great effect upon President Nixon's attitude. Many writers and many officials of both parties have recommended that there be a full and complete disclosure of the part played by staff members within the White House but these recommendations have been ignored.
We know from legal proceedings that have already taken place that a group of men invaded Democratic headquarters for purposes of surveillance and sabotage. Seven individuals have either pleaded guilty or have been found guilty in a jury trial. We know that funds paid to these individuals came from the Committee to Re-elect the President. A Mr. Liddy was apparently in charge of certain phases of the operation and he has refused, and continues to refuse, to testify from whom he received his orders. Congressional committees engaged in an inquiry into possible wrong doing, have desired the testimony of staff members in this limited area. Mr. John Dean, who is on the White House staff, apparently has substantial information regarding the Watergate affair. Mr. Nixon has informed the Congress that he refused to permit Mr. Dean to testify before Congressional committees.
The President of the United States, at different times, wears four separate hats. He wears one as Chief Executive of the nation. He wears another as Commander-in-Chief of the Armed Forces. He wears another as chief ceremonial officer of the nation. His fourth hat is that of political leader of his party.
While one can visualize situations in which a President could properly preserve the confidential relationships that develop while he is wearing the first three hats, it is difficult to believe that the same privilege is created when he is wearing his fourth hat as head of his political party. In his political capacity, he is not engaged in contacts with foreign powers or with the usual duties associated with the office of the Chief Executive. The Watergate scandal falls solely and dramatically within the political field. In the conduct of the re-election campaign and related matters, staff men working for the President are also functioning in a political capacity. It would seem to me that when a President has his political hat on, and members of his staff are serving as extensions of his political operations, no privilege extends to their activities any more than some type of privilege would extend to the political head of the opposition party. These activities are clearly outside the nature of their employment in the nation's business.
The Congress and the Executive Branch have been at odds over the years regarding the obligation of the Executive Branch to furnish the Congress with information. It might be of value, at this time, to attempt to lay down guide lines that would help solve this dilemma.
It is my opinion that executive privilege can exist only when its invocation serves the national interest. Certain simple common sense tests can he employed in this determination:
(1) Where the inquiry is being made into activities of subordinates performed outside the regular course of their employment, the withholding of information on claim of executive privilege cannot be in the national interest.
(2) The protection of confidential communications between a President and one of his advisers has classically been considered to be in the national interest because it insures the full and candid expression of views which assists the President in discharging his responsibilities.
(3) Any claim that the national interest is served by the withholding of information under other than these limited circumstances requires that the Executive Branch bear a very heavy burden of proof.
As an illustration, any personal involvement Mr. Dean may have had in the Watergate scandal would not constitute activity in the regular course of his employment. Accordingly. I am persuaded that the withholding of Mr. Dean's testimony would not be in the national interest. I believe the exact opposite to be true.
It is my belief that Congress must have a broad range of authority to investigate alleged wrong doing in the Executive Branch. If executive privilege is improperly used, then facts can be concealed within the Executive Branch that should be publicly aired so that the Congress and the people will be informed. The answer is sometimes given that a grand jury can be summoned and the public is protected through the normal functions of a grand jury inquiring into alleged wrong doing. From a practical standpoint, this is an inadequate remedy. Representatives of the Executive Branch control the operations of a grand jury and have sole discretion as to what evidence should be presented to the jury and what evidence should be kept from the grand jury.
This does not constitute a sufficient protection for the honest and effective operation of our government. One must keep in mind also that one of the historic arguments made by the Executive Branch in support of the privilege is that a President should be able to talk in complete confidence with members of his staff and, therefore, such individuals should not be subjected to Congressional interrogation. It would be appropriate at this point to suggest that the Congress would very likely be willing to refrain from questioning White House staff men on their conversations with the President. What they are interested in are the contacts that such individual has with those implicated in the Watergate affair, and other actions of the Committee to Re-elect the President which subverted the country's political process.
Another way of looking at it is to suggest that if President Nixon was fully informed with reference to the Watergate affair and discussed it in detail with his staff before and after the events took place, the argument might be made that such conversations were privileged, but if President Nixon should take the position that he knew nothing of the Watergate case, and was in no way involved, then I am unable to understand how a claim of privilege could be asserted.
Under these circumstances, the doctrine of executive privilege is to protect the relationship between the President and the staff members involved. It would seem to me that if there is no such relationship existing with reference to the Watergate affair, then no privilege can exist. I do not see how a President can have it both ways.
This point was touched upon obliquely within the last few days when a Justice Department official testified before a House subcommittee regarding their desire to have Mr. John Dean testify. Such official stated that President Nixon could not invoke executive privilege if the Congress at the time was specifically looking into the question of wrong doing or the possible commission of a crime. The daily press quotes the Justice official as saying, on April 4, 1973, the following: "If you are inquiring into the commission of a crime specifically, then the privilege does not apply." The press further reports that, after a luncheon recess, the official changed her testimony and stated that the President alone has the prerogative of deciding whether there has been any wrong doing and, therefore, of determining whether to invoke the privilege. The testimony of the official in the morning recognized the investigatory rights of the Congress, but such right was completely nullified in the afternoon by advancing the argument that the President was the sole arbiter as to whether there had been any wrong doing. The Justice Department giveth, and the Justice Department taketh away.
Another position taken by President Nixon has caused widespread comment. He stated recently that Executive exemption extended not only to persons still in the employ of the White House, but even to those who had left government and returned to private life. It was quickly noted that such policy would cover Mr. Chapin who served as appointment secretary to President Nixon during much of the period involved in the Watergate affair and other political subversions. If this principle is carried to its logical conclusion, it would apparently mean that a few days or a few weeks spent in the White House would provide a lifetime immunity to such employee, unrelated to his confidential communications with the President. Can one honestly believe that any such principle exists within our system of government?
The privilege has been extended in other ways also. For example, I note that the General Accounting Office testified the other day that Mr. Dean, last November, refused to provide passengers manifest data for presidential aircraft. He stated at the time that "such information has traditionally been considered personal to the President and thus not the proper subject of congressional inquiry." The privilege has now been expanded to all areas which are considered personal to the President.
It is clear that we have reached a complete impasse. The Congress has continued to exert its right and need to get the facts while President Nixon and his representatives contend, in effect, that the President has unrestricted discretion to withhold information from the Legislative Branch. Under these circumstances, the Congress can grumble and complain about the President's lack of cooperation. They then can hold some additional hearings and, when it is all over, be right back where they started from.
I suggest that the time has come for a showdown. The Watergate case and subsequent political subversions present clear issues. I favor obtaining a judicial determination of the issues that have been raised.
An appropriate witness can be asked to appear and, upon declining, can be subpoenaed. Failure to appear can be treated as contempt of the Congress and a justiciable controversy can be brought about. A full record can then be made of the facts involving the witness in question and the need of the Congress and the people for the facts regarding the witness' participation in the claimed wrong doing. Perhaps it would be advisable to combine the issues raised by the protection extended to Mr. Dean and Mr. Chapin.
It is not necessary that the present impasse be permitted to continue indefinitely. Although it will take a considerable period of time, there can ultimately be a clarification by the courts that will guide members of Congress and those in the Executive Branch. It appears to me that two major tests regarding a witness can be presented to the courts:
(1) Is the inquiry directed to the activities of an employee, within the official scope of his employment;
(2) Even if the questioned activities were within the scope of his employment, is it nonetheless in the national interest for the employee to testify?
It appears that the national interest question is the most vital. Congress contends that the national interest demands certain information. President Nixon replies by saying that the national interest demands the concealment of certain facts. Some might consider that the expression "national interest" is an unduly broad term but, in the past, other broad terms have been used and our courts have defined them. The Fifth and Fourteenth Amendments to our Constitution use the expression "due process of law." This expression has very broad implications, but the courts have given us clear guide lines by their interpretations under various circumstances.
This Committee has before it for consideration S. 858, a bill introduced by Senator Fulbright, and S.J. Res. 72, a joint resolution introduced by Senator Ervin. I prefer the Ervin resolution to the Fulbright bill. There would likely be considerable controversy over the Fulbright pill and a possible veto if it were passed. I think this would cloud the issues. The Ervin resolution, on the other hand, is not susceptible to a veto and provides a procedure that could lead to a clarification of this troublesome issue. Moreover, the purpose of Congress at this stage should be to declare its understanding of the purpose and limits of the doctrine of executive privilege. What is required is not new legislation, but a clarification of the implications of the constitutional separation of powers.
It is my recommendation that the Ervin resolution be acted upon and that the groundwork be laid to present a case to the courts. The circumstances surrounding the Watergate scandal and related incidents, and the witnesses involved, present the basis of a case to be submitted to the courts. I do not know when a better set of facts will ever be presented to the Congress. It is my opinion that the doctrine of executive privilege has been broadened to an unacceptable extent, and I believe that the courts would so rule.
I feel strongly that the public interest demands that steps be taken to settle the question. The result, in my opinion, will be that the Congress and the people will have access to information that is now denied them.