[Deschler's Precedents, Volume 4, Chapters 15 - 17]
[Chapter 15. Investigations and Inquiries]
[B. Inquiries and the Executive Branch]
[Â§ 3. Executive Branch Refusals to Provide Information]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 2323-2335]
 
                               CHAPTER 15
 
                      Investigations and Inquiries
 
                 B. INQUIRIES AND THE EXECUTIVE BRANCH
 
Sec. 3. Executive Branch Refusals to Provide Information

    The authority of Congress to obtain information needed to legislate 
effectively and oversee other branches has often been challenged by the 
efforts of the executive branch to withhold material which that branch 
considers confidential, including information relating to military 
affairs and foreign policy. During the period prior to the 
``Watergate'' investigations of 1973 and 1974, case law on these two 
potentially conflicting prerogatives developed 
independently.(7) Generally, such a conflict was averted, 
not because the executive branch complied with all requests and 
subpenas (8) but because the Congress

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 7. See, for example, Kilbourn v Thompson, 103 U.S. 168 (1881), McGrain 
        v Daugherty, 273 U.S. 135 (1927), Sinclair v United States, 279 
        U.S. 263 (1929), Watkins v United States, 354 U.S. 178 (1957), 
        Barenblatt v United States, 360 U.S. 109 (1959), for judicial 
        recognition of legislative authority to obtain information; and 
        United States v Burr, 25 F Cas. 187 (No. 14, 694) (cc Va. 
        1807); United States v Reynolds, 345 U.S. 1 (1953); and McPhaul 
        v United States, 364 U.S. 372, 382-383 (1960), for judicial 
        recognition of executive authority to withhold information.
 8. Commenting on a survey conducted by the Senate Subcommittee on 
        Separation of Powers for the period 1964 to 1973, Chairman Sam 
        J. Ervin, Jr., of North Carolina, stated that the executive 
        branch on 284 occasions refused to provide testimony or 
        documents requested by House or Senate committees or 
        subcommittees. These refusals were in response to oral or 
        written requests, as distinguished from subpenas. See Senate 
        Committee on the Judiciary, Subcommittee on Separation of 
        Powers, Refusals by the Executive Branch to Provide Information 
        to the Congress 1964-1973, 93d Cong. 2d Sess. (1974), Foreword.
            The only constitutional requirement relating the 
        President's duty to provide information to Congress is article 
        II, Sec. 3, which provides, ``He [the President] shall from 
        time to time give to the Congress Information of the State of 
        the Union, and recommend to their consideration such Measures 
        as he shall judge necessary and expedient. . . .''
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[[Page 2324]]

when rebuffed did not exhaust all procedures to enforce its requests. 
The Watergate crisis, of course, brought the law on the subject into 
sharper focus.(9)

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 9. See Sec. 4, infra, for a discussion of a suit against the President 
        to enforce a Senate subpena.
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    Refusals of the executive branch to provide information to the 
Congress, while representing only a small portion of executive 
responses to requests for information, have frequently occurred. Such 
refusals have generally been in response to informal requests for 
information as distinguished from a subpena. Such refusals to provide 
information to the Congress have been based on the following grounds: 
(10) (1) executive privilege, (2) alleged prerogative of 
office, (3) law or pretext of law, (4) classified information, (5) 
prejudice to litigation or investigation, (6) ``inappropriateness,'' 
and, (7) other reasons, including previous submission of information, 
personal inconvenience, possible ``adverse reaction,'' and claims that 
compliance would ``hamper the agency and create adverse publicity,'' 
``create public concern,'' or ``set a precedent.''
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10. These categories appear in a document of the Senate Committee on 
        the Judiciary, Subcommittee on Separation of Powers, Refusals 
        by the Executive Branch to Provide Information to the Congress 
        1964-1973, 93d Cong. 2d Sess. (1974) pp. 4-9.
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    The following are examples of instances in which the President or 
executive officers have refused to provide information to the Congress.
    Examples of refusals by the President or executive branch officers 
during the administration of President Franklin D. Roosevelt include 
the following: (11)
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11. This list, which is not exhaustive but merely illustrative, is 
        taken from a memorandum from Attorney General Herbert Brownell 
        to President Eisenhower and reprinted in Senate Committee on 
        Government Operations, Special Senate Investigation on Charges 
        and Countercharges Involving: Secretary of the Army Robert T. 
        Stevens, John G. Adams, H. Struve Hensel and Senator Joe 
        McCarthy, Roy M. Cohn, and Francis P. Carr, 83d Cong. 2d Sess., 
        hearing of May 17, 1954, pp. 1269-1275.
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        --Federal Bureau of Investigation records and reports were 
    refused to

[[Page 2325]]

    congressional committees, in the public interest (40 Opinions of 
    the Attorney General [hereinafter cited as Op. A.G.] No. 8, Apr. 
    30, 1941).
        --The Director of the Federal Bureau of Investigation refused 
    to give testimony or to exhibit a copy of the President's directive 
    requiring him, in the interests of national security, to refrain 
    from testifying or from disclosing the contents of the Bureau's 
    reports and activities (Hearings, Vol. 2, House, 78th Cong. Select 
    Committee to Investigate the Federal Communications Commission 
    [1944] p. 2337).
        --Communications between the President and the heads of 
    departments were held to be confidential and privileged and not 
    subject to inquiry by a committee of one of the Houses of Congress 
    (Letter dated Jan. 22, 1944, signed Francis Biddle, Attorney 
    General, to Select Committee, etc.).
        --The Director of the Bureau of the Budget refused to testify 
    and to produce the bureau's files, pursuant to subpoena which had 
    been served upon him, because the President had instructed him not 
    to make public the records of the bureau due to their confidential 
    nature. Public interest was again invoked to prevent disclosure 
    (Reliance placed on Attorney General's Opinion in 40 Op. A.G. No. 
    8, Apr. 30, 1941).
        --The Secretaries of War and Navy were directed not to deliver 
    documents which the committee had requested, on grounds of public 
    interest. The Secretaries, in their own judgment, refused 
    permission to Army and Navy officers to appear and testify because 
    they felt that it would be contrary to the public interests 
    (Hearings, Select Committee to Investigate the Federal 
    Communications Commission, Vol. 1, pp. 46, 48-68).

    The following examples arose during the administration of President 
Harry S. Truman: (12)
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12. Id.
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        --An FBI letter-report on Dr. Edward U. Condon, Director of 
    National Bureau of Standards, was refused by Secretary of Commerce 
    (Mar. 4, 1948).
        --The President issued a directive forbidding all Executive 
    departments and agencies to furnish information or reports 
    concerning the loyalty of their employees to any court or committee 
    of Congress, unless the President approves (Mar. 15, 1948).
        --Dr. John R. Steelman, Confidential Adviser to the President, 
    refused to appear before the Committee on Education and Labor of 
    the House, following the service of two subpoenas upon him. The 
    President directed him not to appear (March 1948).
        --The Attorney General wrote Senator Ferguson, Chairman of the 
    Senate Investigations Subcommittee, that he would not furnish 
    letters, memoranda, and other notices which the Justice Department 
    had furnished to other government agencies concerning W. W. 
    Remington (Aug. 5, 1948).
        --Senate Resolution 231 having directed a Senate subcommittee 
    to procure State Department loyalty files, President Truman refused 
    to permit such files to be furnished, following vigorous opposition 
    by J. Edgar Hoover to the request (Feb. 22, 1950).

        --The Attorney General and the Director of the FBI appeared 
    before a

[[Page 2326]]

    Senate subcommittee. Mr. Hoover's historic statement of his reasons 
    for refusing to furnish raw files was approved by the Attorney 
    General (Mar. 27, 1950).
        --General Bradley refused to divulge conversations between the 
    President and his advisers to the combined Senate Foreign Relations 
    and Armed Services Committees (May 16, 1951).
        --President Truman directed the Secretary of State to refuse to 
    the Senate Internal Security Subcommittee the reports and views of 
    foreign service officers (Jan. 31, 1952).
        --Acting Attorney General Perlman laid down a procedure for 
    complying with requests for inspection of Department of Justice 
    files by the Committee on the Judiciary. Requests on open cases 
    would not be honored. As to closed cases, files would be made 
    available. All FBI reports and confidential information would not 
    be made available. As to personnel files, they are never disclosed 
    (Apr. 22, 1952).
        --President Truman instructed the Secretary of State to 
    withhold from a Senate Appropriations Subcommittee files on loyalty 
    and security investigations of employees--such policy to apply to 
    all Executive agencies. The names of individuals determined to be 
    security risks would not be divulged. The voting record of members 
    of an agency loyalty board would not be divulged (Apr. 3, 1952).

    During the administration of President Dwight D. Eisenhower, the 
following instances arose: (13)
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13. This list, which is merely illustrative, was compiled from 
        instances cited in Kramer, Robert and Marcuse, Herman, 
        Executive Privilege--A Study of the Period 1953-1960, which 
        contained responses to an Apr. 2, 1957, letter from the 
        Chairman of the Senate Subcommittee on Constitutional Rights 
        requesting agencies and departments to report instances of 
        refusals to provide information since May 17, 1954. See also 
        House Subcommittee on Government Information of Committee on 
        Government Operations, Availability of Information from Federal 
        Agencies (the First Five Years and Progress of a Study, Aug. 
        1959-July 1960), H. Rept. No. 2084, 86th Cong. 2d Sess., 5-35 
        (1960), for a chart listing refusals.
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        --In a letter dated May 17, 1954, President Eisenhower ordered 
    Secretary of Defense Wilson to instruct Department of Defense 
    employees not to testify or produce documents about any executive 
    branch communications or conversations at the Army-McCarthy 
    hearings before the Senate Subcommittee on Permanent 
    Investigations.
        --On July 18, 1955, the General Manager of the Atomic Energy 
    Commission refused to provide the Senate Subcommittee on Antitrust 
    and Monopoly with papers relating to the contract between the 
    Commission and the Mississippi Valley Generating Company (the 
    Dixon-Yates contract) for construction of an electrical powerplant 
    and sale of the generated power to the United States.
        --In letters dated July 21, and July 26, 1955, Presidential 
    Assistant Sherman Adams declined an invitation to appear before the 
    Senate Subcommittee on Antitrust and Monopoly

[[Page 2327]]

    to testify about his request for a postponement of the June 13, 
    1955, Securities and Exchange Commission hearing on a contract 
    between the Atomic Energy Commission and the Mississippi Valley 
    Generating Company (the Dixon-Yates contract) for construction of 
    an electrical powerplant and sale of the generated power to the 
    United States.
        --On Dec. 5, 1955, before the Senate Subcommittee on Antitrust 
    and Monopoly, the Chairman of the Atomic Energy Commission refused 
    to answer questions relating to executive branch discussions about 
    the contract between the Commission and the Mississippi Valley 
    Generating Company (the Dixon-Yates contract) for construction of 
    an electrical powerplant and sale of the generated power to the 
    United States.
        --The Administrator of the Small Business Administration, who 
    had received a subpena duces tecum, refused to provide a 
    subcommittee of the Senate Committee on Post Office and Civil 
    Service with security files about a named individual on the ground 
    that President Eisenhower's Executive Order 10450 required 
    confidential preservation of employee security files.
        --The International Cooperation Administration refused to 
    provide the General Accounting Office with evaluation reports on 
    American foreign assistance programs to the following countries: 
    Taiwan and Pakistan, 1957; India, Sept. 1959; Guatemala, Mar. 1960; 
    Bolivia, May 1960; Brazil, May 1960; Laos, Aug. 1959; Vietnam, 
    1959.
        --On Apr. 13, 1957, the Department of Defense refused to 
    provide the Chairman of the House Subcommittee on Public 
    Information with investigative memoranda and a report of 
    conversations between the Department and newsmen.
        --On Jan. 12, 1957, the Department of the Army refused to 
    provide the Chairman of the House Subcommittee on Public 
    Information with an investigative file compiled in connection with 
    charges of disloyalty and subversion at the Signal Corps 
    Intelligence Agency.
        --In 1956, the Chairman of the Civil Service Commission, who 
    had received a subpena duces tecum, refused to provide the Senate 
    Committee on Post Office and Civil Service with some but not all 
    Federal Employees' Security Program files, documents, and records 
    about three named individuals.
        --On Nov. 12, 1956, the Department of Defense refused to 
    provide the Chairman of the House Subcommittee on Public 
    Information with a memorandum of the Under Secretary of the Navy 
    relating to a discussion with an Assistant Secretary of Defense 
    about the Department's responsibility to safeguard 
    intradepartmental communications of an advisory and preliminary 
    nature.

        --On July 27 and Dec. 26, 1956, the Office of Defense 
    Mobilization refused to provide the House Subcommittee on Military 
    Operations with copies of command post exercise proclamations 
    issued during Operation Alert 1956.
        --In July 1956, the Department of the Army refused to provide 
    the Chairman of the House Armed Services Committee with 
    intradepartmental communications pertaining to an officer's status. 
    A complete statement of the basis for the final decision in the 
    matter was submitted.

[[Page 2328]]

        --On Feb. 20, 1956, the Secretaries of Defense, State, 
    Commerce, and the Director of the International Cooperation 
    Administration refused to provide the Senate Permanent 
    Investigations Subcommittee with information relating to East-West 
    trade controls and instructed employees who might be called to 
    testify on this matter to refuse to testify.
        --On Feb. 3, 1956, the Department of the Interior refused to 
    provide the House Subcommittee on Antitrust and Monopoly with 
    portions of files of the National Petroleum Council which had not 
    been made available to the legislative branch under a long 
    established executive branch policy, as well as documents which had 
    been received by the Council only on the condition that they be 
    kept confidential.
        --On Sept. 2-6, 1955, the Department of the Army denied 
    requests of the Committee on House Appropriations for Inspector 
    General's reports and Auditor General's reports. Requested 
    summaries of all actions taken in connection with the contracts 
    under investigation were provided.
        --On Sept. 16, 1955, the Department of the Air Force refused to 
    provide the Chairman of the Senate Preparedness Investigating 
    Subcommittee with material derived from an Inspector General's 
    report.
        --On Feb. 2, 1956, the Department of the Air Force refused to 
    provide the House Committee on Appropriations with Inspector 
    General's reports and Auditor General's reports.
        --On Jan. 25, 1957, the Department of the Air Force refused to 
    provide the Chairman of the House Committee on Post Office and 
    Civil Service with a report of the Inspector General concerning 
    employment conditions in Okinawa. A summary of the findings of the 
    report was submitted.
        --On Jan. 17, 1956, the Department of the Air Force refused to 
    provide the Chairman of the Senate Committee on Interstate and 
    Foreign Commerce with information concerning the discharge of a 
    serviceman.
        --On Oct. 13, 1955, the Civil Service Commission denied a 
    request from the Clerk of the House Committee on Un-American 
    Activities to review the Commission's files personally.
        --In June of 1955, the Department of State refused to disclose 
    to a subcommittee of the Senate Committee on Post Office and Civil 
    Service the personnel and security file of the Federal Employees' 
    Security Program of a named individual.
        --In May of 1955, the Atomic Energy Commission refused to 
    provide the Joint Committee on Atomic Energy with copies of certain 
    National Security Council documents which had been mentioned in a 
    memorandum from the commission to the committee regarding a 
    nuclear-powered merchant ship. A statement as to relevant 
    presidentially approved policies contained in those documents was 
    supplied.
        --On May 12, 1955, the Department of the Interior refused to 
    provide the House Subcommittee on Public Works and Resources with 
    exchanges of correspondence between departmental officials 
    regarding a departmental order which was submitted.
        --On May 5, 1955, the Department of the Interior refused to 
    provide the Subcommittee on Public Works and Resources with 
    surnamed (initialed)

[[Page 2329]]

    file copies of an amendment to 43 C.F.R. Part 244.
        --On Feb. 8, 1955, the Department of the Army refused to 
    provide the Chairman of the Senate Permanent Investigations 
    Subcommittee with the Inspector General's report on Irving Peress, 
    but did provide a detailed summary of all actions taken by the Army 
    in the Peress case.
        --On Sept. 6, 1954, the Department of the Army denied a request 
    of the Chairman of the Senate Internal Security Subcommittee for a 
    document entitled ``Research Material for Political Intelligence 
    Problem.''
        --On July 13, 1954, and Mar. 3, 1955, the Bureau of the Budget 
    (14) denied requests for information made by the Senate 
    Internal Security Subcommittee.
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14. This name has been changed to the Office of Management and Budget.
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        --In 1956, the Department of State refused to provide the 
    Senate Permanent Subcommittee on Investigations with material 
    relating to East-West trade policy. Refusals during the 
    administration of President John F. Kennedy include the following: 
    (15)
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15. This list is taken from a study compiled by Harold C. Relyea, 
        Analyst, American National Government, Government and General 
        Research Division, Library of Congress, completed on Mar. 26, 
        1973, and reprinted in House Committee on Government 
        Operations, [Unnamed] Subcommittee Hearings on Availability of 
        Information to Congress, 93d Cong. 1st Sess. (1973), 264, 271-
        274. This list with refusals by White House aides excised is 
        reprinted at 119 Cong. Rec 10081, 10082, 93d Cong. 1st Sess., 
        Mar. 28, 1973.
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        --On or about June 21, 1962, the Food and Drug Administration 
    refused to provide the House Interstate and Foreign Commerce 
    Committee with requested files on the drug MEA-29.
        --On or about June 27, 1962, the State Department refused to 
    provide the Senate Foreign Relations Committee a copy of a working 
    paper on the ``mellowing'' of the Soviet Union.
        --On or about Feb. 7-8, 1963, General Maxwell D. Taylor, during 
    testimony before the House Department of Defense Appropriations 
    Subcommittee, refused to discuss the Bay of Pigs invasion as ``it 
    would result in another highly controversial, divisive public 
    discussion among branches of our Government which would be damaging 
    to all parties concerned.

    The following refusals occurred during the administration of 
President Lyndon B. Johnson: (16)
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16. See 119 Cong. Rec. 10081, 93d Cong. 1st Sess., Mar. 28, 1973.
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        --On Apr. 4, 1968, the Department of Defense refused to provide 
    the Senate Foreign Relations Committee a copy of the Command 
    Control Study of the Gulf of Tonkin incident (U.S. Congress. 
    Senate. Committee on the Judiciary. Subcommittee on Separation of 
    Powers. Executive Privilege: The Withholding of Information by the 
    Executive Branch. Hearings, 92d Cong., 1st sess. Washington: U.S. 
    Govt. Print. Off., 1971, p. 39 [hereinafter cited as Executive 
    Privilege]).
        --On or about Sept. 18, 1968, Treasury Under Secretary Joseph 
    W. Barr and presidential Associate Special Counsel W. DeVier 
    Pierson refused to

[[Page 2330]]

    testify before the Senate Judiciary Committee during hearings on 
    the nomination of Associate Justice Abe Fortas to be Chief Justice.

    Refusals during the administration of President Richard M. Nixon 
include the following:(17)
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17. See 119 Cong. Rec. 10081, 10082, 93d Cong. 1st Sess., Mar. 28, 
        1973.
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        --On July 26, 1969, the Department of Defense refused to 
    provide the five-year plan for military assistance programs to the 
    Senate Foreign Relations Committee (Executive Privilege, p. 40).
        --On or about Aug. 9, 1969, the Department of Defense refused 
    to provide the Senate Foreign Relations Committee a copy of a 
    defense agreement between the United States and Thailand.
        --On Dec. 20, 1969, the Department of Defense refused to supply 
    the Senate Foreign Relations Committee the ``Pentagon Papers'' 
    (Executive Privilege, pp. 37-38).
        --On or about Mar. 19, 1970, Secretary of Defense Melvin Laird 
    declined an invitation to appear before the Senate Foreign 
    Relations Committee's Disarmament Subcommittee.
        --On Nov. 21, 1970, Attorney General John Mitchell refused to 
    supply certain Federal Bureau of Investigation files to the House 
    Intergovernmental Relations Subcommittee (executive privilege 
    formally invoked).
        --On Mar. 2, 1971, Department of Defense General Counsel J. 
    Fred Buzhardt refused to release an Army investigation report on 
    the 113th Intelligence Group to the Senate Constitutional Rights 
    Subcommittee (Executive Privilege, pp. 402-405).
        --On Apr. 10, 1971, the Department of Defense refused to supply 
    continuous monthly reports on military operations in Southeast Asia 
    to the Senate Foreign Relations Committee (Executive Privilege, p. 
    47).
        --On Apr. 19, 1971, the Department of Defense refused to allow 
    three generals to appear before the Senate Constitutional Rights 
    Subcommittee (Id. p. 402).
        --On June 9, 1971, the Department of Defense refused to release 
    computerized surveillance records to the Senate Constitutional 
    Rights Subcommittee and refused to agree to a subcommittee report 
    on such records (Executive Privilege, p. 398-399).
        --On Aug. 31, 1971, the Department of Defense refused to supply 
    certain foreign military assistance plans to the Senate Foreign 
    Relations Committee (executive privilege formally invoked).
        --On Sept. 21, 1971, White House Director of Communications 
    Herbert G. Klein declined to appear before the Senate 
    Constitutional Rights Subcommittee (U.S. Congress. Senate. 
    Committee on the Judiciary. Subcommittee on Constitutional Rights. 
    Freedom of the Press. Hearings, 92d Cong., 1st and 2d sess. 
    Washington: U.S. Govt. Print. Off., p. 1299).
        --In Dec., 1971, White House Counsel John W. Dean III indicated 
    neither Frederick Malek nor Charles Colson, both of the White 
    House, would appear before the Senate Constitutional Rights 
    Subcommittee during hearings regarding an F.B.I. investigation of 
    C.B.S. reporter Daniel Schorr (Executive Privilege, p. 425).
        --On Feb. 28, 1972, White House Counsel John W. Dean III 
    indicated

[[Page 2331]]

    the unwillingness of presidential aide Henry Kissinger to appear 
    before the Senate Foreign Relations Committee.
        --On Mar. 15, 1972, the White House refused to allow the House 
    Foreign Operations and Government Information Subcommittee to 
    obtain country field submissions for Cambodian foreign assistance 
    for the fiscal years 1972 and 1973 while simultaneously denying the 
    Senate Foreign Relations Committee access to U.S.I.A. program 
    planning papers (executive privilege formally invoked).
        --On Mar. 20, 1972, Frank Shakespeare, Director of the United 
    States Information Agency, refused during testimony before the 
    Senate Foreign Relations Committee to provide copies of U.S.I.A. 
    program planning papers withheld by a formal invocation of 
    executive privilege on March 15.
        --On or about Mar. 20, 1972, the State Department refused to 
    supply the Senate Foreign Relations Committee a copy of 
    ``Negotiations, 1964-1968: The Half-Hearted Search for Peace in 
    Vietnam.''
        --On Apr. 27, 1972, Treasury Secretary John Connally refused to 
    testify before the Joint Economic Committee on the matter of the 
    Emergency Loan Guarantee Board refusing to supply requested records 
    on the Lockheed loan to the General Accounting Office.
        --On Apr. 29, 1972, White House Counsel John W. Dean III 
    indicated the unwillingness of David Young, Special Assistant to 
    the National Security Council, to appear before the House Foreign 
    Operations and Government Information Subcommittee (U.S. Congress. 
    House. Committee on Government Operations. Foreign Operations and 
    Government Information Subcommittee. U.S. Government Information 
    Policies and Practices--Security Classification Problems Involving 
    Section (b)(1) of the Freedom of Information Act. Hearings, 92d 
    Cong., 2d sess. Washington: U.S. Govt. Print. Off., 1972, p. 2453).
        --On or about June 8, 1972, Henry Ramirez, Chairman of the 
    Cabinet Committee on Opportunities for the Spanish Speaking, 
    refused to testify before the House Judiciary Subcommittee on Civil 
    Rights.
        --On July 26, 1972, Department of Defense Assistant General 
    Counsel Benjamin Forman testified before the Senate Foreign 
    Relations Committee before refusal to discuss weather modification 
    activities in Southeast Asia.
        --On Aug. 2, 1972, Henry Ramirez, Chairman of the Cabinet 
    Committee on Opportunities for the Spanish Speaking again refused 
    to testify before the House Judiciary Subcommittee on Civil Rights.
        --On Oct. 6, 1972, Securities and Exchange Commission Chairman 
    William J. Casey refused to turn over the Commission's 
    investigative files on I.T.T. to the House Interstate and Foreign 
    Commerce Committee and disclosed that the files were then in the 
    possession of the Justice Department.
        --On Oct. 12, 1972, presidential campaign manager Clark 
    MacGregor, former Attorney General John Mitchell, White House 
    Counsel John W. Dean III, and former Commerce Secretary Maurice 
    Stans declined to appear before the House Banking and Currency 
    Committee to discuss matters relating to the Watergate bugging 
    case.

[[Page 2332]]

        --On or about Nov. 29, 1972, White House Counsel John Wesley 
    Dean III, presidential assistant John Ehrlichman, presidential 
    special consultant Leonard Garment, and Bradley H. Patterson, 
    Garment's assistant, refused to testify before the House Interior 
    and Insular Affairs Committee during hearings on the takeover of 
    the Bureau of Indian Affairs building in Washington.
        --On Dec. 5, 1972, Housing and Urban Development Secretary 
    George Romney declined to testify before the Joint Economic 
    Committee on the matter of housing subsidies, saying his appearance 
    was inappropriate in view of his announced resignation from office.
        --On or about Dec. 19, 1972, the Department of Defense refused 
    to provide the House Armed Services Committee with documents 
    pertaining to unauthorized bombing raids of interest to the 
    committee as part of their hearings on the firing of Gen. John D. 
    Lavelle.
        --On or about Dec. 23, 1972, presidential assistant Peter 
    Flanigan refused to appear before the House Conservation and 
    Natural Resources Subcommittee to discuss an anti-pollution court 
    case against Armco Steel Company.
        --On or about Jan. 1, 1973, presidential assistant Henry 
    Kissinger and Secretary of State William Rogers declined 
    invitations to appear before both the House Foreign Affairs and 
    Senate Foreign Relations Committees to discuss resumed Vietnam 
    bombings and the Paris peace talks.
        --On Jan. 9, 1973, Admiral Isaac Kidd declined to testify 
    before the Joint Economic Committee regarding his role in action 
    involving the demotion of Gordon Rule, a Navy procurement official 
    who testified earlier before the Committee on Litton Industries' 
    contracts with the Defense Department and the suitability of Roy 
    Ash, a former Litton official, as Director of the Office of 
    Management and Budget.

                         Collateral References
Availability of Information to Congress, Hearings before the House 
    Committee on Government Operations, [Unnamed] Subcommittee, 93d 
    Cong. 1st Sess. (1973).
Berger, Raoul, Executive Privilege: A Constitutional Myth, Harvard 
    University Press, Cambridge, Mass. (1974).
Berger, Raoul, Executive Privilege v Congressional Inquiry, 12 U.C.L.A. 
    L. Rev. 1043-1120, 1286-1364 (1965).
Berger, Raoul, The President, Congress, and the Courts, 83 Yale L.J. 
    1111 (1974).
Bibby, John F., Committee Characteristics and Legislative Oversight of 
    Administration, 10 Midwest Journal of Political Science, p. 78 
    (Feb. 1966).
Bishop, The Executive's Right to Privacy: An Unresolved Constitutional 
    Question, 66 Yale L.J. 477 (1957).
Cappalletti, Mauro, and Golden, C. J., Crown Privilege and Executive 
    Privilege: A British Response to an American Controversy, 2.5 
    Stanford L.J. 836 (1973).
Cooper, Joseph, and Cooper, Ann, The Legislative Veto and the 
    Constitution, 31 Geo. Wash. L. Rev. 467 (1962).
Cox, Archibald, Executive Privilege, 132 U. Pa. L. Rev. 1383 (1974).
Directive on the Need for Maintaining the Confidential Status of 
    Employee Loyalty Records to All Officers and

[[Page 2333]]

    Employees of the Executive Branch of Government, Public Papers of 
    the Presidents, Harry S. Truman, p. 181 (Mar. 15, 1948); reprinted 
    at 13 Code of Federal Regulations 1359 (Mar. 16, 1948) and 94 Cong. 
    Rec. 2929 80th Cong. 2d Sess., Mar. 16, 1948.
Dorsen and Shattuck, Executive Privilege, the Congress, and the Courts, 
    35 Ohio St. L.J. 1 (1974).
Essays on Executive Privilege, Samuel Poole Weaver Constitutional Law 
    Series, No. 1, American Bar Foundation, Chicago (1974).
Executive Privilege, Secrecy in Government, Freedom of Information, 
    Hearings before the Senate Government Operations Committee, 
    Subcommittee on Intergovernmental Operations, 93d Cong. 1st Sess. 
    (1973).
Executive Privilege: The Withholding of Information by the Executive, 
    Hearings before the Senate Judiciary Committee, Subcommittee on 
    Separation of Powers, 92d Cong. 1st Sess. (1971).
Freund, Paul A., The Supreme Court, 1973 Term--Foreword: On 
    Presidential Privilege, 88 Harv. L. Rev. 13 (1974).
Hardin, Executive Privilege in the Federal Courts, 71 Yale L.J. 879 
    (1959).
Harris, Joseph P., Congressional Control of Administration, The 
    Brookings Institution, Washington, D.C. (1964).
Henderson, Thomas A., Congressional Oversight of Executive Agencies, 
    University of Florida Press, Gainesville (1970).
Kramer, Robert, and Marcuse, Herman, Executive Privilege--A Study of 
    the Period 1953-1960, 29 George Washington Law Rev. 623-717 and 
    827-916 (1961).
Letter of the President to the Secretary of Defense Directing Him to 
    Withhold Certain information from the Senate Committee on 
    Government Operations, Public Papers of the Presidents: Dwight D. 
    Eisenhower, 483 (Mar. 17, 1954).
Memorandum of Attorney General Tom C. Clark to President Truman 
    regarding executive privilege (1948). The original of this 
    memorandum is now kept at the Harry S. Truman Library in 
    Independence, Missouri. A portion appears in the concurring and 
    dissenting opinion of Judge Mackinnon, Nixon v Sirica, 487 F2d 700, 
    734-736, No. 9 (D.C. Cir., 1973).
Nathanson, From Watergate to Marbury v Madison: Some Reflections on 
    Presidential Privilege in Current and Historical Perspectives, 16 
    Ariz. L. Rev. 59 (1974).
Opinion of Attorney General Robert H. Jackson to President Roosevelt 
    regarding refusal to transmit Federal Bureau of Investigation 
    Records to Congressional Committees, 40 Opinions of the Attorney 
    General No. 8, Apr. 30, 1941. This opinion is reprinted at 94 Cong. 
    Rec. A2459, A2460, 80th Cong. 2d Sess., Apr. 22, 1948.
Refusals by the Executive Branch to Provide Information to the Congress 
    l964-1973, Survey of the Senate Committee on the Judiciary, 
    Subcommittee on Separation of Powers, 93d Cong. 2d Sess. (1974).
Rodino, Peter, Congressional Review of Executive Action, 5 Seton Hall 
    L. Rev. 489 Spring (1974).
Rogers, William P., Constitutional Law: The Papers of the Executive 
    Branch, 44 A.B.A.J. 941 (1958).
Schwartz, Executive Privilege and Congressional Investigatory Power, 47 
    California L. Rev. 3 (1959).

[[Page 2334]]

Taylor, Telford, Grand Inquest, Simon Schuster, Inc., New York, 1955.
The Power of the President to Withhold Information from the Congress, 
    Memorandum of the Attorney General [William P. Rogers], Committee 
    Print of the Senate Judiciary Committee, Subcommittee on 
    Constitutional rights, 85th Cong. 2d Sess. (1958).
Wolkinson, Herman, Demands of Congressional Committees for Executive 
    Papers, 10 Fed. B. J. 103 (1949).
Younger, Irving, Congressional Investigations and Executive Secrecy: A 
    Study in the Separation of Powers, 20 Pitt. L. Rev. 755 
    1959).                          -------------------

Refusals by Former Executive Branch Officials

Sec. 3.1 A former President and two former cabinet officers refused to 
    appear in response to subpenas ad testificandum issued by the 
    Committee on Un-American Activities in its investigation of their 
    knowledge of a Federal Bureau of Investigation memorandum they had 
    received while serving in the executive branch.

    On Nov. 12 and 13, 1953,(8)  a former President and two 
former cabinet officers refused to testify about their knowledge of a 
1946 memorandum from the Director of the Federal Bureau of 
Investigation, J. Edgar Hoover, concerning alleged Communist Party 
affiliations of the late Harry Dexter White, who in 1946 served as 
Assistant Secretary of the Treasury and had been appointed by the 
President to the United States Mission to the International Monetary 
Fund.
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18. See Beck, Carl, Contempt of Congress, A Study of the Prosecutions 
        Initiated by the Committee on Un-American Activities, 1945-
        1967, The Hauser Press, New Orleans, 1959, pp. 101-102.
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    In a Nov. 12, 1953, letter to the Chairman of the Committee on Un-
American Activities, Harold H. Velde, of Illinois, former President 
Harry S. Truman stated that he declined to comply with the subpena to 
appear on Nov. 13, 1953, because he assumed that the committee sought 
to examine him with respect to matters which occurred during his tenure 
as President. He asserted that if the constitutional doctrine of 
separation of powers and independence of the Presidency is to have 
validity, it must also apply to a President after expiration of his 
term of office. He expressed the view that the doctrine would be 
destroyed and the President would become a mere arm of the legislative 
branch if he felt during his term that every act would be a subject of 
official inquiry and possible distortion for political purposes. Mr.

[[Page 2335]]

Truman also stated that he would be happy to appear and respond to 
questions relating to his acts as a private citizen either before or 
after leaving office and unrelated to his activities as President. The 
committee took no further action.
    Similarly, Supreme Court Associate Justice Tom C. Clark, Attorney 
General in 1946, refused to appear on Nov. 13, 1953, as ordered by 
subpena. In a letter to the Chairman of the Committee on Un-American 
Activities, Mr. Justice Clark cited the importance of judicial branch 
independence and freedom from the strife of public controversy as 
reasons for his refusal to appear. He offered to consider responding to 
any written questions, subject only to his constitutional duties.
    The Governor of South Carolina, James F. Byrnes, Secretary of State 
in 1946, refused to appear before the committee on Nov. 13, 1953, in 
response to a subpena. In a telegram to the chairman, Governor Byrnes 
stated that he could not by appearing admit the committee's right to 
command a Governor to leave his state and remain in Washington until 
granted leave to return. Such authority, he said, would enable the 
legislative branch to paralyze the administration of affairs of the 
sovereign states. He offered to respond to written questions and 
invited the committee or a subcommittee to meet with him at the State 
House in Columbia, S.C. The committee sent a subcommittee to South 
Carolina.