June 8, 1973
Page 18792
SENATE CONCURRENT RESOLUTION 30 – SUBMISSION OF A CONCURRENT RESOLUTION RELATING TO INFORMATION BY FEDERAL OFFICERS AND EMPLOYEES
(Referred to the Committee on Government Operations.)
PRODUCTION OF INFORMATION BY FEDERAL OFFICERS AND EMPLOYEES
Mr. ERVIN. Mr. President, on behalf of Senator MUSKIE and myself, I submit for appropriate reference a concurrent resolution to establish a procedure assuring Congress the full and prompt production of information requested from Federal officers and employees.
This resolution is similar in content and purpose to Senate Joint Resolution 72 which I introduced on March 8, 1973, but it has been altered in several important ways, primarily as a result of extensive hearings conducted in April and May by the Subcommittee on Intergovernmental Relations of the Committee on Government Operations and the Judiciary Subcommittees on Separation of Powers and Administrative Practice and Procedure.
The resolution provides that when an officer or employee of the executive branch is summoned and requested to testify or to produce information, records, documents, or other material before either House of Congress or any committee or subcommittee thereof, that officer or employee shall appear pursuant to the request made of him and shall answer all questions propounded to him and shall produce all information sought unless the President formally and expressly instructs him in writing to refuse to appear or to provide the information.
In the event of a Presidential refusal, the written instruction shall set forth the grounds on which the refusal is based. Such written instruction shall be transmitted to the House, or committee or subcommittee thereof, requesting the information or appearance.
The appropriate House, committee, or subcommittee seeking the appearance or information shall determine whether or not such a Presidential instruction is without foundation in law. When a committee or subcommittee finds that the refusal is without foundation in law, then the appropriate House or committee shall order the official or employee to appear and to answer the questions or provide the information.
When a committee or subcommittee determines that a Presidential instruction to withhold information is without foundation in law, it shall file within 10 days an appropriate resolution with its respective House with a report and record of its proceedings relating to the Presidential instruction. The respective House shall take such action as it deems proper with respect to the disposition of the appropriate resolution.
This resolution differs in two respects from Senate Joint Resolution 72 which I introduced earlier this year.
First, it does not mention the term "executive privilege" which has been used by the Executive as a disguise for a variety of refusals to provide information requested by Congress. I do not believe that it is necessary for Congress to put a stamp of approval – whether expressly or by implication – on such a "privilege." Rather, Congress should review Presidential refusals to provide information and determine whether or not they are founded in law, which would include a proper exercise of privilege or authority granted by statute.
Second, it takes the form of a concurrent resolution rather than a joint resolution. The intent and purpose is to create an internal congressional procedure by which Congress will exercise the powers and prerogatives which properly belong to it; it would not have legislative effect and therefore would not be subject to a Presidential veto.
This resolution and the improvements incorporated in it are the outgrowth of the extensive hearings on executive privilege and Government secrecy being conducted this year by the subcommittees I mentioned earlier. Those hearings pointed out the extent to which the failure or outright refusal of Federal officers and employees to produce information requested by Congress in carrying out its constitutional function to legislate has resulted in a serious erosion in the separation of powers doctrine embodied in the Constitution.
I am sure that many Senators and other American citizens were shocked on April 10 when the then Attorney General, Richard G. Kleindienst, testified that the President could extend the doctrine of executive privilege to prohibit any and all of the 2.5 million employees of the executive branch from testifying or providing information to Congress. Although the administration has since indicated that it does not intend to exercise the privilege so broadly, especially in connection with the Watergate investigation, such a sweeping assertion of the scope of the privilege must make us wonder if the President and his assistants have any respect at all for the separation of powers doctrine.
Congress must not stand idly by and allow the President to stretch executive privilege to cover every operation of the executive branch. I respect the right of the Executive insofar as executive privilege is confined to communications between Presidential aides or other executive employees and the President, or with respect to communications of a confidential nature between different Presidential aides or executive employees when they are assisting the President in carrying out the duties of his Office. But I do not think there is any privilege that exists to withhold information about matters that have already been made public by other administration officials or with respect to official dealings between Presidential aides and third persons.
In other words, executive privilege should be used in very narrow contexts, and when it is used, Congress must determine whether it is exercised properly. The procedure which would be established by this resolution would merely insure Congress the opportunity to make that determination.
I submit that the procedure created by this resolution would strongly discourage the abuse of the doctrine of executive privilege and would provide an essential procedure for Congress to use in its effort to regain its rightful constitutional powers.
Mr. President, I ask unanimous consent that the text of this concurrent resolution be printed in the RECORD.
There being no objection, the concurrent resolution was ordered to be printed in the RECORD, as follows:
S. CON. RES. 30
Resolved by the Senate (the House of Representatives concurring),
Whereas the denial to either House of Congress, to its joint committees, committees and subcommittees by officers or employees of the United States of any information, including testimony, records or documents, or other material, requested by the Congress in the performance of its functions erodes the system of checks and balances prescribed by the Constitution, unless grounds sufficient in law are asserted for such denials: Now, therefore, be it
Resolved by the Senate (the House of Representatives concurring), That, when an officer or employee of the United States is summoned and requested to testify or to produce information, records, documents or other material before either House of congress, any joint committee of Congress, any committee of either House or any subcommittee thereof, that officer or employee shall appear pursuant to a request specifying the time and the place and shall answer all questions propounded to him, and produce all information, including records, documents and other material sought, unless the President formally and expressly instructs the officer or employee in writing to refuse to provide the information requested, including answers to specific questions, specific records, documents or other material, in which event such Presidential instruction shall set forth the grounds on which the refusal is based. Such written instruction shall be transmitted to the House of Congress, joint committee, committee or subcommittee requesting the information, proposing the questions or seeking the records, documents or other material, which shall then determine whether or not the Presidential instruction is without foundation in law. If it is determined that the instruction is without foundation in law, the officer or employee shall be ordered to appear at a time specified before the House of Congress, joint committee, committee or subcommittee and to provide there the information requested by answering the question or questions propounded and producing any official information, including records, documents or other material requested.
SEC. 2. When a joint committee of the Congress, or a committee, or subcommittee of either House of Congress determines that a Presidential instruction to withhold information requested by it is without foundation in law, it shall, within ten days, file–
(1) in the case of a joint committee, a concurrent resolution with both Houses of Congress; and
(2) in the case of a committee or subcommittee, a resolution with its House of Congress;
with a report and record of its proceedings relating to such Presidential instruction. Congress, in the case of any such concurrent resolution, and the House of Congress with whom any such resolution is filed, shall take such action as it deems proper with respect to the disposition of such concurrent resolution or resolution.
Mr. ERVIN. I ask unanimous consent that a statement made by the cosponsor of the resolution (Mr. MUSKIE) be inserted in the RECORD at this point.
The PRESIDING OFFICER. Without objection, it is so ordered.
The statement is as follows:
EXECUTIVE PRIVILEGE
Mr. MUSKIE. Mr. President, the concurrent resolution which we present to the Senate today is a simple statement of procedure designed to unravel a complex situation, the conflict between the Congress and the Executive over the rights of the former to information possessed by the latter.
That conflict was most succinctly – and, I might say, most brashly – stated by then Attorney General Richard Kleindienst in testimony April 10 before joint Senate hearings on executive privilege and government secrecy, "Your right to get what the President knows," he told me, "is in the President's hands."
This resolution is our response to that defiant declaration. If the former Attorney General's claim were to go unchallenged, the Congress would, indeed, be accepting the second-class status which his contempt of it implied. We cannot concede that we have no recourse against executive defiance of a Congressional request for the information we require to carry out our functions as a separate and equal branch of government.
So this resolution is a necessary response. It says very simply that the President may instruct a Federal officer or employee to refuse to provide Congress with information its committees request. But, it makes clear, such Presidential instructions cannot be the last word. The Congress has the obligation to review and, possibly, to reject such instructions. The committee concerned – and if necessary its parent body – must review the legal foundation of any such Presidential instruction and, finding it without foundation, must compel the production of the information sought.
The Congress already has the power to take such action. This resolution requires that we use that power in the interest of restoring Constitutional balance to our government. The issue is not one of legal authority, but one of will, and the time has come for Congress, by adopting this resolution, to manifest its will.
If we do not assert our authority, we stand in danger of losing it. If we do not clarify this confused situation, we may emerge from the confusion diminished.