[Deschler's Precedents, Volume 4, Chapters 15 - 17]
[Chapter 15. Investigations and Inquiries]
[B. Inquiries and the Executive Branch]
[§ 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.