April 12, 1973
Page 12172
EXECUTIVE PRIVILEGE
Mr. MUSKIE. Mr. President, two extremely thoughtful and important statements on executive privilege were presented in the last 2 days to the joint hearings of three Senate subcommittees on that subject and on Government secrecy in general. The statements of Senator STEVENSON and Raoul Berger, Charles Warren Senior Fellow at Harvard Law School, approach the subject from different angles but I believe both of them merit the attention of all Members of the Senate. I therefore ask unanimous consent that they be included in the RECORD.
There being no objection, the statements were ordered to be printed in the RECORD, as follows:
STATEMENT BY SENATOR STEVENSON
I intend no pun when I say it is a privilege to appear before you this morning. The subject of "executive privilege", tangled and timely as it is, deserves our earnest attention.
I request that an exhaustively researched memorandum on the Doctrine of Executive Privilege, prepared at my request in 1971, be inserted in the record of these hearings at an appropriate point. I hope that this memorandum – and my briefer testimony – will help to clear away the tangle of myth and outright misrepresentation which obscures the facts about the so-called Doctrine of Executive Privilege.
It is President Nixon's extraordinary reliance on the doctrine that makes the question of Executive Privilege timely.
Last March 12, the President told reporters that "there were only three occasions during the first term of my Administration when Executive Privilege was invoked anywhere in the Executive Branch in response to a Congressional request for information."
In fact, according to the Library of Congress, the Administration in its first term actually invoked Executive Privilege nineteen times – and four of those claims were made by the President himself.
But President Nixon seeks not only to invoke the doctrine more often; he is bidding to expand it far beyond its former meaning. He claimed recently that not only present, but former members of his staff "shall follow the well-established precedent and decline a request for formal appearance before a Committee of the Congress."
What is this "well-established precedent"?
Is "Executive Privilege" well-established doctrine, or ill-supported dogma? Is it part of our Constitutional and legal fabric – or a phenomenon more akin to the Emperor's new clothes?
My exploration into the background of the doctrine yields up numerous facts which fly in the face of the President's claims. Let me offer the committee some of those facts, in the form of answers to three basic questions:
First, what do the Constitution and Constitutional history tell us about Executive Privilege?
In English and American colonial practice before the adoption of our Constitution, legislative bodies expected and received most if not all the information they requested. In the English experience, Parliament received what information it asked for; colonial legislatures and those of the new states under the Articles of Confederation functioned as investigative as well as legislative bodies.
They saw their investigative role as an important check on uncontrolled Executive power – the very evil which played such a large part in the desire of the colonies to break away from English domination.
When the Constitution was adopted, it said nothing explicit that would give the Executive an absolute right to withhold information from Congress. The Constitution assigned to Congress "all legislative powers". It admonished that the President should "take care that the laws be faithfully executed." Beyond that the Constitution delegated to the President only certain specific enumerated powers, which certainly did not include any power to withhold information from the Legislative.
Neither pre-Constitutional history, therefore, nor the explicit language of the Constitution, can be relied on as granting the Executive any explicit power to withhold information.
What about the implicit meaning of the Constitution – the "Separation of Powers" doctrine implied by the differing Constitutional functions of Congress and the Executive?
I would be the last to deny the validity of this doctrine – indeed, I would be among the first to assert that the Executive has for some time been treading rather heavily on the powers granted to the Congress under the Constitution.
But proponents of absolute or near-absolute "Executive Privilege" stretch the separation doctrine too far. They interpret it to mean that Congress cannot require the Executive to produce documents and information it requests. They argue, that where dispute exists, the Executive shall have wide, if not absolute, power to decide what shall be withheld and what shall be disclosed.
This is a weighty interpretation to hang on few cryptic Constitutional phrases. It is, in effect, merely a claim – a claim which has never been sustained; it finds no backing in Constitutional history or the Constitution itself; it has never been ratified by statute, nor by judicial declaration.
President Nixon and Attorney General Kleindienst are, in fact, torturing the doctrine of separation of powers into a doctrine of uncontrolled power for one branch of government – power to decide for itself what shall be disclosed and what shall be withheld. They would do well to recall the words of Madison in the 49th Federalist Paper, that none of the branches of government "can pretend to an exclusive or superior right of settling the boundaries between their respective powers."
In fact, if Constitutional history and the Constitution itself point in any direction, it is toward the right of Congress to receive information from the Executive. The Constitution obliges the President "from time to time (to) give Congress information of the State of the Union ..." Justice Story read those phrases as a clear requirement upon the President "to lay before Congress all facts and information which may assist their deliberation ..."
Second, if the Constitution provides no firm basis for the doctrine of executive privilege, what is its basis in judicial precedent and statute law?
The memorandum which accompanies my testimony disposes of this question in considerable – and convincing – detail.
Let us simply note that the Supreme Court has never yet been confronted with a conflict between Congress and the Executive concerning "executive privilege."
In fact, the cases most often cited to support a claim of Executive Privilege – Boske v Comingore and U.S. ex rel. Touhy v Ragen – do not constitute authority for the proposition that the Executive has authority – either absolute or discretionary – to withhold information from Congress. The two cases are simply not on point.
What about the various statutes relied upon by advocates of Executive Privilege such as 5 U.S.C. 22 and the Administrative Procedure Act?
Not only do these statutes not vest uncontrolled discretion in the Executive to withhold information – they have nothing at all to do with the question of Executive Privilege.
In short, the legal precedents usually cited by defenders of Executive Privilege as foundations for their claims actually provide no such foundation.
Third: If the Constitution, the courts and the statutes provide no firm basis for a doctrine of executive privilege, what about the precedents of history?
Proponents of executive privilege are fond of relying upon historical precedents to support their position.
In his March 12 policy statement on Executive Privilege, for example, President Nixon proclaimed that "The doctrine of Executive Privilege is well-established. It was first invoked by President Washington, and it has been recognized and utilized by our Presidents for almost 200 years since that time ... "
There are two main instances to which Mr. Nixon may be referring. In the first, in 1792, the House of Representatives requested information about the abortive St. Clair expedition. A Cabinet meeting was called to consider the request, and in the privacy of the meeting, according to Thomas Jefferson, who took the minutes, it was agreed that the Executive ... ought to refuse those (papers) the disclosure of which would injure the public."
But the advocates of Executive Privilege who cite this incident, including the Attorney General yesterday, fail to tell the whole story. In actuality, President Washington never made any public assertion of uncontrolled discretion to withhold documents; and indeed, in the instance in question, all documents were turned over to the House, including those most damaging to the Army's reputation.
The second instance in the Washington years seems equally irrelevant. The House asked for papers relating to the Jay Treaty. Washington declined to send them on the ground that the constitutional role in the treaty-making process belonged to the Senate, not the House. In any event, he declared the papers had already gone to the Senate.
In neither case did Washington withhold information from Congress, and in neither instance did he invoke something which could later be called "Executive Privilege.
Those who cite "history" in their argument for Executive Privilege it seems, have read history rather carelessly – as carelessly as they seem to have read the Constitution, judicial decisions and the statutes.
In fact, the very phrase "Executive Privilege" is not rooted in history; It is a recent invention.
Historians are hard put to find its use by any President or Attorney General prior to the Eisenhower Administration and even within that Administration the first use of the phrase may be discerned in about 1958. It seems to be a phrase created out of whole cloth to give a semantically respectable name to the withholding of information.
In 1964 Mr. Eisenhower asserted in a letter to Congress the right flatly to prohibit all executive employees from testifying or producing documents, in the interest of "efficient and effective administration ..." He was, to be sure, provoked by the persistent demagoguery of Senator Joe McCarthy, and we who are skeptics about Executive Privilege must face responsibly the question such demagoguery raises.
Such Executive statements, including opinions of Attorneys General, cannot be considered a basis for the validity of the doctrine; such statements constitute no more than the self-serving assertion of one's own claim in a dispute. Mr. Nixon's statement (and Mr. Kleindienst's yesterday) are but the latest in a long line of self-serving statements. They claim a great deal – but they establish nothing.
In sum, Mr. Chairman, the main body of support for Executive Privilege consists not in the law or history, but in mere claims by Presidents and their appointees that such a privilege exists. It is, in short, a doctrine created not so much by legal or judicial deliberation, as by executive wishing, conjurings and speech making.
All this, Mr. Chairman, leads me to two conclusions.
The Presidential right to "Executive Privilege," insofar as it exists at all, is by no means so deeply rooted in law and precedent as we have been led to believe.
Congress, in any case, has a broad power supported by the Constitution, by law and precedent, to obtain information from the Executive.
That Congressional power exists to be exercised. Like other constitutional powers, it can hardly be said to be "absolute"; certainly whatever information Congress seeks from the Executive must somehow relate to the legislative process, whether the subject be new legislation or the President's conduct as he "faithfully executes the law." But Congress has a broad and clear power to obtain "necesssary" information.
Until now there has never been an overwhelming need to define legislatively the concept of Executive Privilege. Even in the worst of previous confrontations, the Executive and the Congress have managed to accommodate their differences. In every confrontation since President Washington's time, the issue has been compromised – or one side has been persuaded to back off, perhaps under pressure of public opinion. George Washington, for example, can be said to have backed off during the investigation of the St. Clair expedition; perhaps Congress backed off during the Eisenhower years.
But the situation now is changing. Confrontations in which Executive Privilege is invoked have been growing in frequency and intensity. During the Eisenhower Administration, as we have seen, Executive Privilege was invoked no less than 34 times to withhold information. Perhaps in those instances the provocation was intense: President Eisenhower was struggling to resist assaults by a Senatorial demagogue in the Army-McCarthy hearings and their unhappy aftermath.
There were fewer invocations of the doctrine during the Kennedy and Johnson years, although President Kennedy did claim the privilege at least once. But with the first Nixon Administration there has come massive reexpansion of the use of the privilegeand now a bold effort by President Nixon to broaden its accepted meaning.
It is my judgment that these increasingly frequent and bitter confrontations over Executive Privilege make it essential that Congress act to clarify and define the doctrine.
To do so would be not only wise but Constitutionally proper, for Congress is clearly commissioned by the Constitution to "make all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States ... "
Congress can choose, as a matter of policy, to legislate on Executive Privilege – to define the doctrine more clearly, and to specify the procedures which should govern its operation.
It is high time we did so. I say that not because I seek government by confrontation – but because I seek to avoid it. If the privilege is carefully and Constitutionally defined, the confusion which now invites conflict between branches uncertain of their powers will diminish. And if the Congress by claiming its power re-establishes itself as an equal branch of the government, such disputes will more likely be resolved reasonably and amicably between equals.
In politics as in physics, nature abhors a vacuum. In the absence of a clear and precise legal definition of Executive Privilege, we may expect the President to rush in with tangled and self-serving uses of it. If we ignore our power to define the concept and its proper limits, we can only blame ourselves if the Executive acts as though the privilege has no limits.
In short, Congress should define "Executive Privilege", suggest when it might be used legitimately by the Executive, and provide procedural and substantive remedies should the Executive abuse the definition in any instance.
First of all, I would suggest that the preamble or policy section of such a bill should establish in the broadest terms Congress's power to obtain information from the Executive. Later on in the bill, narrower limits might be defined. But Congress should be wary of giving away any of its legitimate Constitutional power. The present bills on this subject do not make sufficiently clear Congress's broad power; they tend to sanctify a right to Executive Privilege, without stating clearly and forthrightly Congress's concomitant right to obtain information.
The bill should so state that, as a general policy, the Executive – to the greatest extent possible – should cooperate with Congress by giving Congress the information it seeks. Similarly, it should also express, as policy, that Congress will not meddle unnecessarily with the Executive, but will seek only information which legitimately relates to the legislative process.
Second, as in Senator Fulbright's bill and in Congressman Erlenborn's bill – and unlike Senator Ervin's resolution – no one in the Executive branch should be given a blanket exemption from appearing before Congress.
Of course, Congress must use discretion in calling White House members; certainly it must protect the Executive against the depredations of demagogues. But blanket exemptions in the law would give too much discretion to the Executive.
Third, unlike Senator Fulbright's bill (S. 828) and Senator Ervin's resolution (S.J. Res. 72), I suggest that Congress should try to define those instances in which Executive Privilege might properly be invoked.
It is not enough merely to allow the Executive to claim the privilege and then give Congress a procedural mechanism to overcome the Executive should it not agree with the President's claim. Congress or the Judiciary may someday have to decide whether the privilege is being properly invoked; we should provide Congress and the Judiciary with a clear standard by which to make those judgments.
I therefore would suggest that direct communications between the President and anyone in the Executive branch should be protected ... if the matters in discussion legitimately relate to aspects of public policy. Thus, if there were questions in a Committee hearing about illegal activities by members of the Executive branch, or questions about campaign activities not related to governmental business, this information would still be obtainable by Congress – even if the information were contained in a memo to or from the President. I can think of no reason why such information, particularly information concerning possible crimes, should be kept from an investigating Congress and hence from the public.
What about other communications within the Executive branch on matters legitimately relating to public policy – communications between Administration members that do not include the President, for example? First of all, a sine qua non to the invocation of Executive Privilege should be that the information is protected from disclosure under other Acts such as the Freedom of Information Act or the Budget and Accounting Act. Then, where the information is so protected, the President himself should certify the "right to withhold" information in these cases. And this certification from the President should set out the President's reasons for withholding the information.
Fourth, we should include procedures for dealing with impasses over Executive Privilege:
What happens in the case of a breakdown? Suppose a Committee Chairman believes, despite a plausible and seemingly legitimate claim of Executive Privilege by the President, that his Committee simply must have the requested information if Congress is to fulfill its legislative function?
In such cases, the Committee Chairman should submit on the floor of his House of Congress, after a majority vote of his Committee, a resolution aimed at breaking the impasse. The resolution would state that it is the sense of the Senate – or House – that the information requested is essential to the conduct of the Senate's (or House's) legislative or investigative business. If the Senate (or House) should not agree with the Committee and should defeat the resolution, the matter would be ended. If it should uphold the Committee, however, Congress would be acting in its clear right to obtain information as set forth in the preamble or policy section of the bill.
What happens if a witness from the Executive branch refuses to present himself to Congress when called, even after service of a Congressional subpoena? Or if the questions posed of a present witness by a Committee are answered by a claim of Executive Privilege which appears to be insufficiently related to a matter of public policy? Or what happens when, even after a full- fledged floor resolution demanding information, the witness refuses to answer on a claim of Executive Privilege? What would be Congress's remedies?
Some, Including Senator Ervin and Senator Kennedy, have suggested that Congress resort to its own remedies – the contempt power; that Congress send the Sergeant-at-Arms out to place the individual in custody, arraign him, and try him – or have the Courts try him – for contempt of Congress.
This has never been done. And I would suggest that these remedies are unnecessarily contentious and possibly futile.
Instead, I would suggest that Congress enlist the Federal Courts. An order or a contempt citation from an impartial third branch would certainly lend legitimacy to the claims of Congress. And certainly no Executive is eager to disobey orders of Courts and defy what would then likely be an aroused public opinion.
I suggest that instead of starting its own contempt proceedings, the respective House of Congress could do one of two things:
(1) it could appoint its own "special prosecutor;" or,
(2) Congress might delegate, perhaps to the Chief Justice of the Supreme Court, the power to appoint a prosecutor for purposes of enforcing the law. Some authority for this course appears to reside in Article II, Section 2 of the Constitution.
If the witness still refuses after the Courts ordered him to appear before Congress or to present certain information he would then be in contempt of Court. And if the witness then dared the Supreme Court to enforce its order, then indeed we will have reached the ultimate breakdown of our government of laws – and the ultimate in lawlessness by the Executive.
We are dealing, Mr. Chairman, with eventualities which we hope will never occur. But they could occur – and the mere hope that they will not is no reason not to prepare for them. Indeed, such a procedure as I have outlined is intended to head off such eventualities.
In his testimony yesterday, Mr. Kleindienst expressed the hope that "mutual restraint" on both sides of this question is vital if we are to avoid disastrous confrontations over Executive Privilege.
I agree. But I must point out that the lack of restraint which has now inflamed the issue is not that of Congress, but of the President. He has sought to claim the privilege with unprecedented frequency and to stretch the meaning of the doctrine beyond all past understanding. He has repeatedly exceeded his own stated guidelines.
President Nixon once claimed that he would never use the privilege "as a shield to prevent embarrassing information from being made available." He would invoke it, he said, "only in those instances in which disclosure would harm the public interest."
Yet repeatedly he has used the privilege – or threatened to use it – in ways that contradict his words.
In the case of Mr. Peter Flanigan's appearance before the Judiciary Committee during the confirmation hearings of Attorney General Kleindienst;
In the dismissal of A. Ernest Fitzgerald from his position in the Pentagon;
In the refusal by the White House to disclose information about political flights of Presidential appointees at government expense;
And most recently in the refusal of the President to let his staff tell what they know about the growing Watergate scandal.
What, in each of these cases, was the purpose of evading testimony before Congress except to avoid embarrassment? Where, in these refusals to disclose information, is any overriding concern for the public interest?
Some time ago, Mr. Chairman, one of President Nixon's closest friends and cabinet officers, then Attorney General Mitchell, admonished critics of the Administration to watch, "what we do, not what we say."
Mr. Chairman, I have done so. And what I see convinces me that those who truly care about the responsible use of Executive Privilege, the public's right to know and the preservation of our form of government are at this end of Pennsylvania Avenue.
STATEMENT OF RAOUL BERGER
It is a privilege to respond to your invitation to speak to the issue of executive privilege. That issue does not constitute a mere jurisdictional squabble between Congress and the President; it goes to the very heart of our democratic system. As Justice Potter Stewart said about the withholding of agency and departmental reports respecting the contemplated underground atomic explosion in Alaska,
"With the people and their representatives reduced to a state of ignorance, the democratic process is paralyzed."
He who controls the flow of information controls our destiny; so much the mounting escalation in Vietnam alone should teach.
In the twenty-odd months that have elapsed since I testified on the subject before the Subcommittee on Separation of Powers, the atmosphere has changed very considerably.
Mounting frustration has brought your leadership to realize that the steady drain on your energy and time caused by executive withholding of needed information must not be endlessly protracted. Some of you are prepared to resort to enforcement via a contempt proceeding. As you know, the contempt power of Congress has been sustained in suits against private individuals, to mention only McGrain v. Daugherty. In June 1971, Assistant Attorney General William H. Rehnquist acknowledged that Congress can cite an officer of the government who refuses to appear or to supply information for contempt, and that an executive officer who has custody of desired documents must respond to a Congressional subpoena. Thus the contempt procedure has judicial sanction, and according to now Justice Rehnquist, it extends to recalcitrant officials.
The issuance of a citation for contempt need not be regarded as a punitive measure but rather as a means of opening the door to judicial review. Arrest of a recalcitrant by your Sergeant at Arms enables him to obtain a writ of habeas corpus whereby the constitutional issue may be judicially resolved. Happily President Nixon has stated that he would welcome submission of the issue to the courts, and a contempt citation offers a proven and direct route. To proceed in this manner obviates the "political question" issue. When a court is asked to free a man who contends that his detention is unconstitutional, it cannot very well evade the issue and leave him to rot in jail. That course becomes even more dubious when both Congress and the President desire the Court to adjudicate the controversy. Indeed, Madison stated that neither branch can decide a boundary dispute between them. Professor Alexander Bickel expressed a similar view in his testimony during the Hearings on Executive Agreements before the Senate Committee on Foreign Relations, p. 31 (October 1971).
President Nixon's confidence that the Court will sustain his position needs to be measured against the historical facts. With George Ball, former Under Secretary of State, I consider that executive privilege is a "myth", without "constitutional foundation." We need to recur to the facts which riddle the myth because estimable members of your body as well as important molders of public opinion have been influenced by executive propaganda to believe that there is such a constitutional attribute as executive privilege, that Washington, for example, was the first to invoke the doctrine.
In 1965 I published an extensive critique of the view, expressed by then Deputy Attorney General William P. Rogers in a 1957 Memorandum submitted to the Senate, that the President had "uncontrolled discretion"' to withhold information from Congress. So far as I can find, no member of the executive branch, past or present, or for that matter, no academician, has attacked my critique in a published writing. For the purpose of expanding my study into a book, I have engaged for the last 20 months in restudying and rethinking the problem, and in considerable additional research, particularly in the English sources and our own constitutional history. I found that Parliament enjoyed an untrammeled power of inquiry into executive conduct, that no Minister or subordinate interposed any objection to the right of Parliament to inquire, and substantial evidence that the Founders meant to adopt this power of the "Grand Inquest of the Nation," without the slightest indication that they intended in any way to cut it down. Against this history, the psuedo-precedents after 1787 carry an all but impossible burden. Permit me to spread some of this history before you.
I
McGrain v. Daughtery offers a good starting point. Decided in 1927, it declared that the investigatory power was "regarded as an attribute of the power to legislate in the British Parliament ... before the American Revolution"; and that "the constitutional provisions which commit the legislative functions to the two houses are intended to include his attribute." To obtain light as to the scope of this attribute we may, therefore, turn to parliamentary history.
There I found that the power of inquiry had its inception as an auxiliary to the power of impeachment, on the sensible ground that one does not indict before inquiring whether there is cause. This fact is of immense importance because, as you recall, "The President, Vice President and all civil officers" are subject to impeachment, and it follows that they are all subject to preliminary inquiry. Of this, I shall have more to say later.
In performing this inquiry function, the House of Commons acted as the "Grand Inquest of the nation"; and we need to bear in mind, as Chief Justice Lord Denman stated in 1839, that:
"The Commons ... are not invested with more of power and dignity by their legislative character than by that which they bear as grand inquest of the nation."
In a random sampling of parliamentary debates at different periods, stretching from 1621 to 1742, I found legislative oversight of administration across the board: inquiries to lay a foundation for legislation, into corruption, the conduct of war, execution of the laws, disbursement of appropriations, in short, into every aspect of executive conduct. Foreign affairs, about which American Presidents have drawn a curtain of secrecy, were not excepted. The great English historian, Henry Hallam, after adverting to the investigations of 1691 and 1694, concluded,
"It is hardly worth while to enumerate later instances of exercising a right which had become indisputable, and, even before it rested on the basis of precedent, could not reasonably be denied to those, who might advise (i.e., legislate), remonstrate and impeach."
The highest officers of the land responded to such inquiries without demur. No hint turned up in my search of the parliamentary records of a challenge by a Minister or subordinate to the right of Parliament to inquire or to the scope of inquiry into executive conduct. Speaking of inquiries instituted in 1689 with respect to miscarriages in the conduct of war in North Ireland, Hallam stated, "No courtier (i.e., Minister) has ever since ventured to deny this general right of inquiry."
Colonial recognition of these facts is to be found in 1774 by James Wilson, with Madison the leading architect of the Constitution. The House of Commons, he wrote,
"Have checked the progress of arbitrary power, and have supported with honor to themselves, and with advantage to the nation, the character of the grand inquisitors of the realm. The proudest ministers of the proudest monarchs have trembled at their censure; and have appeared at the bar of the house, to give an account of their conduct, and ask pardon for their faults."
From this, two complementary conclusions may be drawn: (1) Parliament enjoyed a plenary power of inquiry into executive conduct; and (2) no Minister or subordinate, no subject of inquiry was immune from investigation into any aspect of administration. It is a striking fact that neither the Eisenhower nor Nixon Administration, where "executive privilege" has been most extravagantly claimed, has advanced a single pre1787 precedent for executive refusal to turn over information to the legislature. Thus, whereas Congressional inquiry, rested by the Supreme Court on the example of Parliament – which had plenary power, has a solid foundation, there is no pre-Convention historical basis for the claim that the power to withhold information from the legislature was an attribute of the Executive. All inferences are to the contrary. This, as I shall show, has important implication for the executive appeal to the separation of powers.
That the Founders were aware of this legislative-inquiry attribute is demonstrated by four or five references in the Convention and the several Ratifying Conventions to the function of the House as the "grand inquest of the nation." Wilson's 1774 publication, earlier quoted, exhibits a thorough appreciation of what that function embraced, above all that "the proudest Ministers . appeared." It calls for solid evidence that Wilson abandoned his admiration for this practice of the Commons, particularly since he viewed the executive power merely as a power to execute the laws. In fact, there is not the slightest intimation in the records of the several Conventions that the founders intended to curb the functions of the Grand Inquest in any way.
The Executive branch builds its case on the separation of powers. But resort to the separation of powers assumes the answer; it assumes that the executive had a withholding power upon which legislative inquiry encroaches. John Adams spelled out in the 1780 Massachusetts Constitution that the separation of powers was designed to prevent one department from exercising the powers of another. Since it was not an attribute of executive power at the adoption of the Constitution to refuse information to the legislature, a Congressional requirement of information from the Executive does not encroach on powers confided to the President; it does not violate the separation of powers. This is confirmed by a statement of Montesquieu, who was repeatedly cited by the Founders as the oracle of the separation of powers. The legislature, he said – exhibiting his familiarity with the English practice – should "have the means of examining in what manner its laws have been executed by the public officials." Given repeated recognition of the function of the House as Grand Inquest, something more than appeals to an abstract separation of powers is required to curtail the function. Unless evidence is inherently incredible, the courts hold, it is not to be defeated by speculation based on no evidence.
The fact that the separation of powers was not designed to reduce the "Grand Inquest" function is again confirmed by the Act of 1789, which made it–
"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 the House of Representatives, or which shall appertain to his office."
The Act contains no provision for executive discretion to withhold information, and there is no reference whatsoever to such discretion in the legislative history of the Act. This provision was drafted by Alexander Hamilton who, as a member of the Convention and co-author of The Federalist, knew well enough whether a duty could be imposed on the Executive Branch to furnish information to Congress. Adopted by the First Congress, whose construction of the Constitution is given great weight, and signed by President Washington, who had been presiding officer of the Convention, this Act can hardly be deemed in violation of the separation of powers.
Were the issue in doubt, President Nixon has just supplied the clincher by his instruction to members of his staff to appear before the Grand Jury that is investigating the Watergate conspiracy. He is scarcely consistent: the separation of powers does not bar inquiry by the judiciary, one coordinate branch, while it does bar inquiry by another, the Congress. Yet it is the legislature, acting as the Grand Inquest, which is the highest grand jury in the land. And why does disclosure to the grand jury of confidential communications between members of the White House staff not "inhibit" the candor allegedly essential to performance of executive functions, whereas disclosure to Congress, according to President Nixon, would "weaken and compromise" the "candor with which such advice is rendered?"
Lest it be thought that the President's instruction to appear before the grand jury was a matter of grace, I submit that no man is immune from testifying before the grand jury as to the commission of a crime. If a member of the White House staff, for example, were the sole witness to a murder, he could scarcely refuse to testify on the ground of executive privilege. That the separation of powers interposes no obstacle to the judiciary is immediately apparent from two cases. In 1953, the Supreme Court held in United States v. Reynolds that the decision whether military secrets may be withheld from a party in litigation cannot be left to the caprice of an administrator but is for the determination of the courts. Much earlier Chief Justice Marshall held on the Trial of Aaron Burr that President Jefferson could be required to furnish to a defendant in a criminal trial a letter to Jefferson from General James Wilkinson. Marshall, who had been a vigorous advocate of the Constitution in the Virginia Ratification Convention was hardly unaware that his ruling was not barred by the separation of powers; nor can it be presumed that in 1953 the Supreme Court was oblivious to that problem. If judicial insistence on executive disclosure does not offend against the separation of powers, Congress, too, is not barred.
Let us now return to inquiry as a prelude to impeachment, bearing in mind that the Constitution makes express provision for impeachment of "the President, Vice President and all civil officers." James Iredell, later a Justice of the Supreme Court, adverted in the North Carolina Convention to the maxim that the King can do no wrong, and exulted in the "happier" provision which made the President himself triable. The President, it should not be forgotten, was not looked at with awe but with apprehension. Of this power of impeachment, a Committee of the House, faithfully reflecting parliamentary history stated in 1843 that,
"The President himself, in the discharge of his most independent functions, is subject to the exercise of this power – a power which implies the right of inquiry on the part of the House to the fullest and most unlimited extent."
Since the Constitution expressly provides for impeachment of the President, since historically inquiry may precede impeachment, President Nixon errs in asserting that "the manner in which the President exercises his assigned executive powers is not subject to questioning by another branch of the Government." Even the headstrong Andrew Jackson acknowledged. that:
"Cases may occur in the course of (Congress') proceedings in which it may be indispensable to the proper exercise of its power that it should inquire or decide upon the conduct of the President or other public officers, and in every case its constitutional right to do so is cheerfully conceded."
Consequently, Mr. Nixon's argument that "If the President is not subject to such questioning, it is equally inappropriate that members of his staff not (sic) be so questioned, for their roles are in effect an extension of the President" falls to the ground. Moreover, since "all civil officers" are impeachable by the terms of the Constitution, they are subject to inquiry without the leave of the President. Impeachment, said Miss Boudinot in the First Congress – that almost "adjourned session" of the Constitutional Convention, enables the House "to pull down an improper officer, although he should be supported by all the power of the Executive." The point was made again and again, among others, by Abraham Baldwin, a Framer. English history affords no instance where Parliament was required to seek leave of a Minister for the appearance of a subordinate; and the imposition of such a condition by the President has no historical warrant.
My search of the several Convention records, let me repeat, turned up not a shred of evidence that the President was empowered to withhold any information from the Congress. One constitutional provision, in fact, speaks against it. The Framers authorized secrecy in only one case, and then by Congress, not the President. Congress is required to keep and publish Journals except "such part as may in their (each House's) judgment require secrecy." This provision encountered rough going, being harshly criticized by James Wilson, George Mason, Elbridge Gerry, Patrick Henry and also by Jefferson. To allay fears of this secrecy provision, proponents explained that it had very restricted scope. So, John Marshall stated in Virginia that the debates "on the propriety of declaring war" and the like, could not be conducted "in the open fields," and said, "In this plan, secrecy is only to be used when it would be fatal and pernicious to publish the schemes of government."
In light of the denial of limitless power to conceal to the "legislative authority" – which Madison said "necessarily predominates" in "republican government" – how can an intention be derived of an implied grant to the executive of power to keep anything and everything secret? Rather, as the Supreme Court held in analogous circumstances, the express authorization for limited discretionary secrecy by Congress and the omission to make similar provision for the President indicates an intention to withhold such authority from him. What might momentarily be concealed from the public by Congress had to be divulged by the President to Congress, if that senior partner in government was to participate in making the momentous decisions which alone were to be kept secret. Marshall's limitation of the express secrecy provision to "fatal and pernicious" publications renders laughable the wholesale executive claim to secrecy for communications between several million subordinates in the executive department.
II
Before I examine the pseudo-"precedents" on which administration spokesmen base their claim of executive privilege, it should be noted that there is a long line of Congressional precedents, solidly based on the investigatory power of Parliament and unequivocally asserted in plenary terms.
President Nixon tells us that executive privilege "was first invoked by Washington."
Preliminarily, the first use of the phrase, so far as I could find, occurred in a private litigation in 1958. An independent search by Professor Arthur Schlesinger likewise turned up no use of the phrase prior to the Eisenhower Administration, scarcely testimony of a well-established doctrine.
There were two incidents. First, there was the 1792 Inquiry into the disastrous St. Clair expedition against the Indians; Washington turned over all the documents; "not even the ugliest line in the flight of the beaten troops was eliminated," states his biographer, Douglas Freeman.
Executive reliance on St. Clair is based, not on refusal of the documents, but on Jefferson's notes of a Cabinet meeting at which it was agreed that the "house was a grand inquest, therefore might institute inquiries," but that the President had discretion to refuse papers "the disclosure of which would injure the public." These notes are not reconcilable with the 1789 Act which Washington had earlier signed, and which permitted unqualified inquiry. What little precedential value may attach to the notes vanishes when it is considered that only four years later Washington himself did not think to invoke the St. Clair "precedent" in the Jay Treaty case upon which the Executive next relies, and instead stated his readiness to supply information to which ever House had a "right", such as the Senate had to treaty documents.
Jefferson's notes did not find their way into the government files; there is no evidence that the meditations of the Cabinet were ever disclosed to Congress. Indeed, it would have been most impolitic and unsettling to excite the House by a claim of discretion to withhold when all the required information was, in fact, turned over. The notes were found among Jefferson's papers after his death and published many years later, under his "Anas," what he described as "loose scraps" and "unofficial notes." There this "precedent" slumbered until it was exhumed by Mr. Rogers in 1957. Some precedent!
Time does not permit me to show that Jefferson, who unlike Rogers, turned to English precedents for the scope of the executive power, was mistaken in his reading of some remarks in the Walpole proceedings of 1742. It must suffice to say that William Pitt more accurately reflected the state of English law in those proceedings:
"We are called the Grand Inquest of the nation, and as such it is our duty to inquire into every step of public management, either abroad or at home, In order to see that nothing is done amiss."
And so it remained, as Justice Coleridge stated in 1845:
"That the commons are, in the words of Lord Coke, the general inquisitors of the realm, I fully admit ... it would be difficult to define any limits by which the subject matter of their inquiry may be bounded ... they may inquire into everything which concerns the public weal for them to know; and themselves, I think, are entrusted with the determination of what falls within that category."
The second Washington "precedent" is his refusal to turn over the Jay Treaty papers to the House. He had delivered them to the Senate but refused them to the House because, he said, the House had no part in treaty-making and hence no "right" to the papers. He emphasized, however, that he had no disposition to withhold "any information ... which could be requested of him as a right," a repudiation of Jefferson's "discretion to withhold."
And as an example of a "right" to require documents (which explains his delivery to his partner in treaty-making, the Senate) he instanced impeachment; but stated that "It does not occur that the inspection of the papers asked for can be relative to any purpose under the cognizance of the House of Representatives except that of impeachment; which the resolution has not expressed.
This put the cart before the horse; it required the House to prejudge the case, to "purpose" impeachment before it inquired whether there was just cause. Then, too, the procedure required for impeachment was left to the House, for to it was given "the sole power of impeachment," so that Washington invaded the House's prerogative in suggesting a decision to impeach must precede inquiry. Nonetheless, here Washington recognized what parliamentary practice teaches, that inquiry was auxiliary to impeachment and could even reach an ambassador plenipotentiary, Chief Justice Jay.
A Washington precedent that sheds more light on President Nixon's invocation of executive privilege to shield his counsel, John Dean, from inquiry as to his knowledge of, or participation in the "Watergate" conspiracy, is the Hamilton incident. When Washington learned that an investigation into the conduct of his "intimate adviser," Alexander Hamilton, his Secretary of the Treasury, was rumored, Washington stated,
"No one ... wishes more devoutly than I do that (the allegations) may be probed to the bottom, be the result what it may."
Washington would have welcomed, not thwarted, the interrogation of Mr. Dean.
Following Washington's example, President Polk stated in 1846,
"If the House of Representatives, as the grand inquest of the nation, should at any time have reason to believe that there has been malversation in office ... and should think proper to institute an inquiry into the matter, all the archives and papers of the Executive Department, public or private, would be subject to the inspection and control of a committee of their body, and every facility in the power of the Executive be afforded them to prosecute the investigation."
This, it will be recalled, was also the view of President Jackson.
It would be stale and unprofitable to rehearse subsequent presidential assertions of a right to withhold information from Congress, for the last precedent stands no better than the first. Bare assertion, even if oftrepeated, can no more create power than the President can lift himself by his bootstraps. As the Supreme Court stated in the "Steel Seizure Case," "That an unconstitutional action has been taken before surely does not render the same action any less unconstitutional at a later date."
Let us rather focus on that branch of executive privilege which, according to President Nixon, was "designed to, protect communications within the executive branch" and is allegedly "rooted in the Constitution." When Assistant Attorney General William H. Rehnquist appeared before Congress in 1971, the instances he cited for the refusal of the President's "intimate advisers to appear" went back no farther than the Truman Administration. These refusals, said he, were based on the principle that the advisers "ought not to be interrogated as to conversations ... with the President " Be it assumed that communications between the President and members of his Cabinet enjoy constitutional shelter – by no means an incontrovertible assumption – and that still does not stretch to communications between several million subordinate employees.
What the President conceives to be "rooted in the Constitution" is in fact first met in 1954, when President Eisenhower sought to ward off Senator McCarthy's savage attacks on Army personnel by a directive that communications between employees of the Executive branch must be withheld from Congress so that they may "be completely candid in advising with each other." Overnight this "doctrine" was expanded to shelter mismanagement, conflicts of interest such as led the Supreme Court to set aside the Dixon-Yates contract, inexplicable selection of low bidders, etc., etc. A detailed account of the rank, jungle-like growth of the "candid interchange" doctrine in the Eisenhower years is to be found in Clark Mollenhof, Washington Cover-Up.
It is strange doctrine that the acknowledged power to probe "corruption, inefficiency and waste" does not extend to "candid communications" which are often at the core of such misconduct. Had that doctrine prevailed, many an investigation of corruption and maladministration, e.g., Teapot Dome, would have been stopped in its tracks. Congress, declared the Supreme Court in McGrain v. Daugherty, may investigate "the administration of the Department of Justice ... and particularly the Attorney General and his assistants." To shield communications between suspected malefactors from such inquiry would go far to abort investigation.
As a Congressman in 1954, President Nixon protested against Truman's instruction to withhold an FBI letter, saying, "That would mean that the President could have arbitrarily issued an Executive order in the (Bennet) Myers case, the Teapot Dome case ... denying the Congress . information it needed to conduct an investigation of the executive department."
Eisenhower's claim that "candid interchange" among subordinates is an indispensable condition of good government is an unproven assumption. It is disproved by the fact that his withholding on that ground of information respecting alleged maladministration of foreign aid in Peru was immediately countermanded by President Kennedy, with the salutary result that exposure led to correction, not to the toppling of administrative towers. Both the Kennedy and Johnson Administrations sharply whittled down claims of executive privilege with no noticeable ill effects on administration.
In England, "candid interchange" was laughed out of court by the House of Lords in Conway v. Brimmer (1968). Against the debatable assumption that fear of disclosure may inhibit "candid interchange," there is the proven fact that such interchanges have time and again served as a vehicle of corruption and malversation, so that, to borrow from Lord Morris, "a greater measure of prejudice to the public interest would result from their non-production." Can the costs of
suppressing the Pentagon Papers be weighed in the scales with preservation of confidences between subordinates? Disclosure to Congress and the people of reports about the untrustworthiness of and lack of internal support for a succession of Saigon satraps, of bleak intelligence estimates, of growing pessimism in the inner circle about the outcome of the. Vietnam involvement, might have enabled Congress to weigh the mountainous costs against the increasingly doubtful benefits of the accelerating escalation.
The issue posed by President Nixon's claim for immunity for Messrs. Henry Kissinger, Peter Flanigan, and John Dean on the basis of mere membership in the White House staff calls for comment.
You will recall that Assistant Attorney General Rehnquist went no further than to that the "intimate advisers" of the President "ought not to be interrogated as to conversations ... with the President." On practical grounds, it may be desirable to shield such conversations from Congressional inquiry, and Congress itself generally has not insisted on their disclosure. But it
does not follow that there is a constitutional basis for the withholding claim. Indeed, Mr. Dean himself wrote on April 20, 1972, that:
"The precedents indicate that no recent President has ever claimed a 'blanket immunity' that would prevent his assistants from testifying before the Congress on any subject."
Such a claim would be without historical foundation.
"Pernicious advice" to the King by his Ministers was a repeated cause for impeachment; and Francis Corbin in the Virginia Convention, Henry Pendleton in the South Carolina Convention, and James Iredell in the North Carolina Convention, alluded to such "advice" as within the scope of impeachment. Given impeachable "advice", inquiry whether it was communicated cannot be barred on constitutional grounds, whatever may be the merits of the practical arguments for confidentiality. Practical desiderata cannot be converted into constitutional dogma.
In a dictum in Marbury v. Madison, Chief Justice Marshall stated that if anything was communicated to the Attorney General in confidence by the President, "he was not bound to disclose it." Sitting on the Trial of Aaron Burr, Marshall confined that dictum, as Deputy Attorney General Rogers stated, to non-disclosure of "communications from the President," and held that Burr was entitled to have a letter to President Jefferson from General James Wilkinson, obliquely confirming the right of inquiry into "advice".
It needs to be emphasized that the Marbury dictum is altogether irrelevant to Congressional inquiry. That was a suit by a private individual, and Marshall stated that the "province of the court ... is not to inquire how the executive or executive officers perform their duties." Precisely that function, however, does lie within the province of the legislature, as parliamentary history makes clear, as Montesquieu and James Wilson perceived, and as the Supreme Court has repeatedly recognized. In sum, there is no historical warrant for the claim that confidential advice to the President is shielded from Congressional inquiry by the Constitution, though Congress may choose, as a matter of comity, not to probe into such advice.
Information is the blood stream of democracy; he who controls it controls our destinies, as the progressive escalation in Vietnam alone should teach. I cannot improve on President Nixon's 1972 statement:
"When information which properly belongs to the people is systematically withheld by those in power (e.g., the facts behind the Vietnam escalation), the people soon become ignorant of their own affairs, distrustful of those who manage them and eventually incapable of determining their own destinies." The people, therefore, have an immediate stake in opening all channels of information to Congress, the great American forum of national debate.
III THE PROPOSED BILLS
(1) S.858
My prime difficulty with S. 858 is that expressed by Congressman John E. Moss about the predecessor bill:
"We should not recognize executive privilege in any statute. I don't think there is any constitutional basis for executive privilege ... By recognizing executive privilege here we are going to walk into a trap."
Hearings on executive privilege before the Subcommittee on Separation of Powers, Pp. 332-333 (1971). Similar views were expressed by Robert F. Keller, Deputy Comptroller General, and. Professor Norman Dorsen, id., at 304, 310, 364-365. The bill adds nothing to the existing sheaf of Congressional powers. If an official declines to testify, Congress may issue a subpoena; upon noncompliance with the subpoena a contempt citation can be used for enforcement.
The deference expressed in § 306(b) to a claim of privilege by the President means that in virtually every instance he will rubber-stamp his approval of withholding, as he did in 1971.
If there is a constitutional basis for executive privilege, § 306(c) invades a presidential prerogative by seeking to decide the scope of the privilege. That function would be for the courts.
Again, the provision that the Committee "will determine whether the assertion of executive privilege is well taken" constitutes implicit recognition of a doctrine of indeterminate scope.
A fund-cut-off provision such as § 307(f) may well prove ineffectual. In 1960, the Porter Hardy House Committee sought information about rumored maladministration of foreign aid in Peru, which proved true in the event. Congress enacted a cut-off after Presidential refusal to furnish information on ground of executive privilege. Thereupon, Attorney General Rogers rendered an opinion to Eisenhower that he could disregard such cut-offs on the ground that they imposed an unconstitutional condition on disbursement of an appropriation. Eisenhower then ordered the Secretary of the Treasury to disregard the cut-offs and to disburse the funds, any funds, to Foreign Aid. The incident is described with accompanying documents in Clark Mollenhof, Washington Cover-Up. In a word, a cut-off may be defied, and this would require submission of the issue to the courts. The provision, therefore, defers an inescapable confrontation.
(2) Joint Res. 72
My difficulties with S. 858 are duplicated by J.R. 72. Line 2 of P. 2 also legitimates and provides for a claim of executive privilege by the President. On my view that executive privilege is a constitutional myth, the provision for a hearing on whether the President's claim is well-founded is gratuitous. If, on the other hand, it is indeed "rooted in the Constitution," it is for the courts, not the Congress, to determine its limits. And in any event, I suggest that a Committee would be well-advised to determine before the matter gets escalated whether it has a legitimate claim for information.
Existing law provides that a witness who declines to appear, be the cause what it may, can be served with a subpoena; if the recalcitrant persists in his declination, the Committee may submit the case to the Senate, so that again, § 2 is superfluous.
(3) S. 1142
The amendments to the Freedom of Information Act are badly needed if only to overcome interminable bureaucratic stalling. Then, too, the decision in the Patsy Mink case made necessary express provision to empower the courts to have the last word as to whether the information sought to be withheld under the exemptions for matters of national defense or foreign policy and for intra- and inter-agency communications, (§ 552(b) (1) and (5)) may be withheld. As you know, such is the bureaucratic addiction to secrecy that any permission to withhold becomes a blank check that is greatly overdrawn. In the parallel discovery practice of the courts, the courts are the final arbiter as to the right of the executive to withhold information from a litigant. I cannot believe that a judge is less to be trusted with a determination of what must be kept secret than a bureaucrat.
Let me also call your attention to the need to disavow an incautious statement contained in both the Senate and House reports on the FOIA. The Committees permitted the agencies to sell them a bill of goods and incorporated a statement that the disclosure of "candid interchanges" would inhibit free and frank discussion among officials of the Executive Branch. That statement has been seized upon by the courts, even in private litigation; and in due course it must paralyze efforts to obtain information. You know at first hand how crippling this "candid interchange" claim has been in the field of executive privilege. I would, therefore, urge that the Reports on the proposed amendment state that the prior "candid interchange" statements were made in deference to agency opinion, and that experience has demonstrated they were mistaken and are now specifically repudiated. Let me emphasize, if disclosure to the public would inhibit "candid interchange" in the Executive Branch, by parity of reasoning, disclosure to Congress would have the same effect. You have furnished ammunition to the opposition.
Above all, matters of discovery in the courts, of FOIA, of executive privilege are interrelated and cannot be considered in isolation. The bureaucratic infatuation with secrecy pervades all three.