CHAPTER XVIII. A Solution

A Solution

History establishes that any administration may be afflicted with laxity, incompetence, and even outright fraud. History has also taught that any administration can harbor men who want to hide mistakes and corruption.

It is true that no President has been directly involved in fraudulent activity, and it seems unlikely that any ever will be. Holding such a high office would inspire almost any man to rise above the desire for personal enrichment, particularly if the cost might be damaging to his place in history. But any President might be tempted to hide records on a claim of “executive privilege” if he felt he could save some trusted subordinate from the slings of the opposition political party.

In varying degrees, our Presidents have been dependent upon a palace guard. The nature of the position, with all its vast responsibilities, makes a circle of close advisers inevitable. Thus Presidents of the past have sought information about alleged improprieties or corruptions from the very men who have been accused of perpetrating them. Instead of facts and a clear analysis of the problem—whether it was Teapot Dome, tax scandals, or Dixon-Yates—the Presidents have received misinformation and excuses. The accusations have been explained away to our Presidents as partisan complaints from politicians maliciously bent on destroying the administration’s programs. Such explanations from palace guards unfortunately have been all too effective and have obscured the facts that would have alerted our Presidents to conflicts of interest, favoritism, and fraud.

President Kennedy and future Presidents will face the same kind of pitfalls. Regardless of their own integrity, they cannot be expected to conduct personal investigations of each of their subordinates. The Presidents and the people must therefore depend upon investigations from outside the executive branch—by the Congress and the General Accounting Office—for an aggressive search for the facts.

Investigations by Congress have demonstrated the failure of the military departments to police themselves effectively from the inside. In every recent year, the Congress and the GAO have pinpointed the waste of hundreds of millions of dollars on inefficient, incompetent, or corrupt handling of Defense contract arrangements.

Examination of testimony on the foreign-aid programs in Laos and Peru shows that the State Department is little better than the Defense Department in rooting out mismanagement and corruption. There are dozens of other areas within the bureaucracy where the record is just as bad.

It is doubtful that we will ever eliminate corruption in the federal government, but it must be kept under closer control or it can spread with devastating impact. Nothing speeds the growth of corruption more than policies that foster arbitrary secrecy. Secrecy allows little scandals to become major scandals, costly to the taxpayers, devastating to our foreign-aid program, to our position of defense readiness, and to our national morale.

“Secrecy,” as the House Government Operations Committee has put it, “is the handmaiden of bureaucracy, especially military bureaucracy. It has so pervasive an effect that all government becomes invested with the urge to restrict—even those routine agencies which should be wide open to the public.”

In these pages, I have not attempted to examine every agency of government. I have examined enough, however, to show how severe the infection of secrecy has become, what dire symptoms it produces, and how seriously it threatens the health of our democracy.

It can be wiped out. As treatment for a permanent cure, I suggest the following steps:

1 All officials except the President should be obligated to explain all their actions to Congress and the General Accounting Office, unless specific laws are passed for withholding information. This does not mean that the public or Congress should have access to all papers when a decision is pending, but at a later date Congress should have access to all records and testimony concerning events leading up to the executive decisions.

A good example from recent history that shows the value of a properly conducted hearing was the Senate investigation of President Truman’s firing of General Douglas MacArthur in 1951.

The special Senate committee—selected with a reasonably even division of political forces from the Armed Services and Foreign Relations committees—did not seek testimony from President Truman. However, it did require the testimony of General Omar Bradley, the Chairman of the Joint Chiefs of Staff. Bradley testified on all events leading up to the firing, including his meeting with President Truman. Bradley was not asked to recount verbatim his discussion with President Truman, but he testified he met with President Truman, that the MacArthur actions were discussed, and the decision was made by President Truman to fire General MacArthur.

The special Senate committee met behind closed doors but released a daily transcript of testimony that had been examined to eliminate any matter that might violate national military security standards.

Had the Eisenhower administration’s doctrine of “executive privilege” prevailed at that time, a total secrecy blanket could have been thrown around the Defense Department, the Joint Chiefs of Staff, and the White House. There would have been no way of determining the facts leading up to the decision, except as the President found it convenient to reveal them.

How much better it was for all concerned that the MacArthur firing was carefully examined and that the public was apprised of all the material facts.

2 Congress should enact special laws to cover the specific areas in which withholding of records is deemed necessary to the public good. There are now laws that provide for withholding of federal income tax information from the public, and from all committees of Congress except certain ones with supervisory jurisdiction over the Internal Revenue Service. Laws have been enacted providing for withholding of Defense information that involves national security. Other areas—FBI reports, patent secrets, business reports, or personnel files—could be covered by special legislation of a similar nature, but modified to meet the requirements of the area in which the withholding is needed.

3 Congress should provide stiff criminal penalties for use against government officials who withhold information from properly authorized committees of Congress or the GAO. This legislation should also provide the mechanism for prosecution to be initiated by the Congress or the GAO. Such a mechanism is necessary to avoid the situation wherein an Attorney General, advocate for the President and appointed by the President, simply refuses to enforce the law or gives patently false legal opinions to avoid enforcement.

4 The Congress should establish an effective means for systematic review of papers carrying national security classifications of “confidential,” “secret,” or “top secret.” Or the President could establish a small committee to spot-check, review, and challenge questionable use of national security classifications. However the review group is set up, its members should be selected from outside the military field, and they should be persons with a strong and responsible interest in open government. They should have authority to challenge arbitrary or questionable security classifications and authority to obtain explanations from all persons with a role in questionable classifications.

This review group should not have the power to change classifications, only the power to recommend changes. It should have the authority, however, to file reports with Congress, with department heads, and with the President that could be made public. Such reports should identify individuals engaged in arbitrary or questionable overclassification, as well as those responsible for failing to take steps to declassify.

* * * * *

Only through the establishment of these checks on executive secrecy can the public be assured that laws are administered in the way that the Congress intended them to be. Only in this way can the public be certain that the laws are not twisted or disregarded by an arbitrary bureaucracy operating in secret.

And what about checks upon possible abuses by the investigating committees of Congress? There are many. The courts offer some of the most effective. Rulings in recent years have put limitations on the power of an investigating committee. The committee must be properly authorized by the House or Senate, with a specific authority, and it must operate within the scope of that authority. The courts will not uphold a contempt citation if a committee of Congress is operating outside its proper authority, or if the questions asked are not pertinent to the inquiry. Recent rulings have held that the committee chairman must also explain to the witness the reasons why the questions are pertinent and necessary to carry out the legislative function.

In addition to these legal limitations, committees of Congress are held in check by their own bipartisanship and the fact that they usually operate in the public view. The members of the committees nearly always represent a cross section of the Congress, everything from extreme liberals to extreme conservatives with many gradations between. This representation assures a spokesman for almost every point of view. It also assures cross examination of witnesses in most cases, for minority counsel is normally provided to help minority members bring out facts that the majority may choose to overlook or minimize.

In recent years, most committees have adopted rules of procedure to assure some element of fair play. Since most hearings are held in public, there is the opportunity for the press and other interested groups and individuals to view the questioning and to point out any lapses in fair play.

Open congressional hearings do not absolutely assure fair play, but they do represent the best practical means this country has so far devised for assuring the public’s right to know about the running of its government.

It is pertinent to note here that in England, which is generally regarded by political authorities as a model for democratic procedures, the need for constant inquiry into governmental policies and administration of the laws is fully recognized.

The British Government, unlike ours, is totally responsible to the Parliament, with the Prime Minister and other ministers coming out of the Parliament. This system has resulted in the development of a number of devices to accomplish the same basic purpose that our congressional investigations should accomplish.

There is a “question time” in Parliament four days a week during which any member of the House of Commons may interrogate the various ministers and even the Prime Minister. This periodic opportunity for questioning makes it possible for the opposition either to obtain immediate answers or to demonstrate evasiveness on crucial issues.

Also the Parliament is free to investigate through select committees of the House of Commons which are unlimited in their power to compel testimony and production of records and to punish for contempt. The contempt can be punished by jailing by the Parliament for the duration of the term, and British courts have left this power unlimited over the years.

The “question time” and select committees are supplemented by Royal Commissions of Inquiry, technically established and appointed by the Crown and Tribunals of Inquiry, established by the Parliament with members named by the Crown.

The Royal Commissions have had no power to compel testimony and production of records. However, co-operation is usually obtained because of the pressure of British public opinion, as well as the ever-present threat that a select committee of the Commons can take jurisdiction and use its contempt powers to force testimony.

The Tribunals of Inquiry operate with the normal court powers of subpoena and oaths to compel testimony. This is a device for taking an inquiry out of the partisan political atmosphere of a legislative investigation.

In the United States the question is often asked whether greater congressional freedom in questioning officials of the executive branch would not interfere with the efficiency of the government. Much of the business of federal government is simply keeping records and preparing testimony to account for the custodianship of the government agencies. In most instances it would take an official far less time to go before a committee of Congress and give a frank account of the activities of his agency than it has taken to devise cover-ups for frauds, mismanagement, and embarrassing oversights.

The Teapot Dome scandals could have been fully disclosed in a few months instead of several years. The details of some of the Truman tax scandals could have been uncovered in a few weeks. And again, a frank accounting could have explained the Dixon-Yates contract in a matter of days.

Congress can be of great service to a cabinet officer in keeping his agency clean. If a congressional committee is unreasonable, or brutal, or oversteps its jurisdiction, such abuses, it must be remembered, take place in public where they can be seen and remedied. The President and others in the executive branch have the personnel and facilities for pointing out the abuses so they can be eradicated in the face of public opinion.

Ours was designed to be a government of laws, and not a government of men. It was not intended that the President or any other official would have a right to disregard the laws of Congress in accounting on government activity. The President, it should be pointed out, has all of the protection he needs to prevent Congress from unduly interfering with him in carrying out his executive responsibilities. The separation of powers of the three branches of government is clearly set out in the Constitution, and the only way the Constitution has provided for Congress to take action against the President is to impeach him. Since no President yet has been impeached, this procedure would be resorted to in only the most drastic of circumstances.

The President of the United States, with the vast power and prestige of his office, has the obligation to set a tone of government that assures the fullest possible flow of information consistent with the nation’s security. He must take the lead in breaking down the arrogance of the bureaucracy that assumes a right to keep the knowledge of the people’s business from the people themselves, and thus restore the people’s faith in their governmental servants.

President Kennedy has made an uncertain start. Whether he succeeds depends not only on him, but on the press and the public as well. We cannot afford to allow our faith in a President’s good intentions and his own personal integrity to blind us, as we did during President Eisenhower’s administration, to the machinations of the Washington cover-up. The press, the Congress, the public must make certain that Attorney General Kennedy and other key members of the Kennedy administration remember how “terribly important” it is that Congress and the Government Accounting Office maintain full access to the records of government.

When the old secrecy practices are cast aside and the freedom of information guaranteed, then will our democracy flourish as the founding fathers intended it should.

APPENDIX A

Letter from President Eisenhower to the Secretary of Defense

THE WHITE HOUSE, May 17, 1954

The Honorable the SECRETARY OF DEFENSE, Washington, D. C.

DEAR MR. SECRETARY: It has long been recognized that to assist the Congress in achieving its legislative purposes every Executive Department or Agency must, upon the request of a Congressional Committee, expeditiously furnish information relating to any matter within the jurisdiction of the Committee, with certain historical exceptions—some of which are pointed out in the attached memorandum from the Attorney General. This Administration has been and will continue to be diligent in following this principle. However, it is essential to the successful working of our system that the persons entrusted with power in any one of the three great branches of Government shall not encroach upon the authority confided to the others. The ultimate responsibility for the conduct of the Executive branch rests with the President.

Within this Constitutional framework each branch should co-operate fully with each other for the common good. However, throughout our history the President has withheld information whenever he found that what was sought was confidential or its disclosure would be incompatible with the public interest or jeopardize the safety of the Nation.

Because it is essential to efficient and effective administration that employees of the Executive Branch be in a position to be completely candid in advising with each other on official matters, and because it is not in the public interest that any of their conversations or communications, or any documents or reproductions, concerning such advice be disclosed, you will instruct employees of your Department that in all of their appearances before the Subcommittee of the Senate Committee on Government Operations regarding the inquiry now before it they are not to testify to any such conversations or communications or to produce any such documents or reproductions. This principle must be maintained regardless of who would be benefited by such disclosures.

I direct this action so as to maintain the proper separation of powers between the Executive and Legislative Branches of the Government in accordance with my responsibilities and duties under the Constitution. This separation is vital to preclude the exercise of arbitrary power by any branch of the Government.

By this action I am not in any way restricting the testimony of such witnesses as to what occurred regarding any matters where the communication was directly between any of the principals in the controversy within the Executive Branch on the one hand and a member of the Subcommittee or its staff on the other.

Sincerely, DWIGHT D. EISENHOWER

MEMORANDUM

For: the President. From: the Attorney General.

One of the chief merits of the American system of written constitutional law is that all the powers entrusted to the government are divided into three great departments, the Executive, the Legislative, and the Judicial. It is essential to the successful working of this system that the persons entrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall be limited to the exercise of the powers appropriate to its own department and no other. The doctrine of separation of powers was adopted to preclude the exercise of arbitrary power and to save the people from autocracy.

This fundamental principle was fully recognized by our first President, George Washington, as early as 1796 when he said: “... it is essential to the due administration of the Government that the boundaries fixed by the Constitution between the different departments should be preserved....” In his Farewell Address, President Washington again cautioned strongly against the danger of encroachment by one department into the domain of another as leading to despotism. This principle has received steadfast adherence throughout the many years of our history and growth. More than ever, it is our duty today to heed these words if our country is to retain its place as a leader among the free nations of the world.

For over 150 years—almost from the time that the American form of government was created by the adoption of the Constitution—our Presidents have established, by precedent, that they and members of their Cabinet and other heads of executive departments have an undoubted privilege and discretion to keep confidential, in the public interest, papers and information which require secrecy. American history abounds in countless illustrations of the refusal, on occasion, by the President and heads of departments to furnish papers to Congress, or its committees, for reasons of public policy. The messages of our past Presidents reveal that almost every one of them found it necessary to inform Congress of his constitutional duty to execute the office of President, and, in furtherance of that duty, to withhold information and papers for the public good.

Nor are the instances lacking where the aid of a court was sought in vain to obtain information or papers from a President and the heads of departments. Courts have uniformly held that the President and the heads of departments have an uncontrolled discretion to withhold the information and papers in the public interest, they will not interfere with the exercise of that discretion, and that Congress has not the power, as one of the three great branches of the Government, to subject the Executive Branch to its will any more than the Executive Branch may impose its unrestrained will upon the Congress.

PRESIDENT WASHINGTON’S ADMINISTRATION

In March 1792, the House of Representatives passed the following resolution:

“Resolved, That a committee be appointed to inquire into the causes of the failure of the late expedition under Major General St. Clair, and that the said committee be empowered to call for such persons, papers, and records, as may be necessary to assist their inquiries” (3 Annals of Congress, p. 493).

This was the first time that a committee of Congress was appointed to look into a matter which involved the Executive Branch of the Government. The expedition of General St. Clair was under the direction of the Secretary of War. The expenditures connected therewith came under the Secretary of the Treasury. The House based its right to investigate on its control of the expenditures of public moneys. It appears that the Secretaries of War and the Treasury appeared before the committee. However, when the committee was bold enough to ask the President for the papers pertaining to the General St. Clair campaign, President Washington called a meeting of his Cabinet (Binkley, President and Congress, pp. 40-41).

Thomas Jefferson, as Secretary of State, reports what took place at that meeting. Besides Jefferson, Alexander Hamilton, Henry Knox, Secretary of War, and Edmond Randolph, the Attorney General, were present. The Committee had first written to Knox for the original letters, instructions, etc., to General St. Clair. President Washington stated that he had called his Cabinet members together, because it was the first example of a demand on the Executive for papers, and he wished that so far as it should become a precedent, it should be rightly conducted. The President readily admitted that he did not doubt the propriety of what the House was doing, but he could conceive that there might be papers of so secret a nature that they ought not to be given up. Washington and his Cabinet came to the unanimous conclusion:

“First, that the House was an inquest, and therefore might institute inquiries. Second, that it might call for papers generally. Third, that the Executive ought to communicate such papers as the public good would permit, and ought to refuse those, the disclosure of which would injure the public; consequently were to exercise a discretion. Fourth, that neither the committee nor House had a right to call on the Head of a Department, who and whose papers were under the President alone; but that the committee should instruct their chairman to move the House to address the President.”

The precedent thus set by our first President and his Cabinet was followed in 1796, when President Washington was presented with a resolution of the House of Representatives which requested him to lay before the House a copy of the instructions to the Minister of the United States who negotiated the treaty with the King of Great Britain, together with the correspondence and documents relative to that treaty. Apparently it was necessary to implement the treaty with an appropriation which the House was called upon to vote. The House insisted on its right to the papers requested, as a condition to appropriating the required funds (President and Congress, Wilfred E. Binkley , p. 44).

President Washington’s classic reply was, in part, as follows:

“I trust that no part of my conduct has ever indicated a disposition to withhold any information which the Constitution has enjoined upon the President as a duty to give, or which could be required of him by either House of Congress as a right; and with truth I affirm that it has been, as it will continue to be while I have the honor to preside in the Government, my constant endeavor to harmonize with the other branches thereof so far as the trust delegated to me by the people of the United States and my sense of the obligation it imposes to ‘preserve, protect, and defend the Constitution’ will permit” (Richardson, Messages and Papers of the Presidents, vol. 1, p. 194).

Washington then went on to discuss the secrecy required in negotiations with foreign governments, and cited that as a reason for vesting the power of making treaties in the President, with the advice and consent of the Senate. He felt that to admit the House of Representatives into the treaty-making power, by reason of its constitutional duty to appropriate monies to carry out a treaty, would be to establish a dangerous precedent. He closed his message to the House as follows:

“As, therefore, it is perfectly clear to my understanding that the assent of the House of Representatives is not necessary to the validity of a treaty; ... and as it is essential to the due administration of the Government that the boundaries fixed by the Constitution between the different departments should be preserved, a just regard to the Constitution and to the duty of my office, under all the circumstances of this case, forbids a compliance with your request” (Richardson, Messages and Papers of the Presidents, vol. 1, p. 196).

PRESIDENT JEFFERSON’S ADMINISTRATION

In January 1807, Representative Randolph introduced a resolution, as follows:

“Resolved, That the President of the United States be, and he hereby is, requested to lay before this House any information in possession of the Executive, except such as he may deem the public welfare to require not to be disclosed, touching any illegal combination of private individuals against the peace and safety of the Union, or any military expedition planned by such individuals against the territories of any Power in amity with the United States; together with the measures which the Executive has pursued and proposes to take for suppressing or defeating the same” (16 Annals of Congress [1806-1807], p. 336).

The resolution was overwhelmingly passed. The Burr conspiracy was then stirring the country. Jefferson had made it the object of a special message to Congress wherein he referred to a military expedition headed by Burr. Jefferson’s reply to the resolution was a Message to the Senate and House of Representatives. Jefferson brought the Congress up to date on the news which he had been receiving concerning the illegal combination of private individuals against the peace and safety of the Union. He pointed out that he had recently received a mass of data, most of which had been obtained without the sanction of an oath so as to constitute formal and legal evidence. “It is chiefly in the form of letters, often containing such a mixture of rumors, conjectures, and suspicions as renders it difficult to sift out the real facts and unadvisable to hazard more than general outlines, strengthened by concurrent information or the particular credibility of the relator. In this state of the evidence, delivered sometimes, too, under the restriction of private confidence, neither safety nor justice will permit the exposing names, except that of the principal actor, whose guilt is placed beyond question” (Richardson, Messages and Papers of the Presidents, vol. 1, p. 412, dated January 22, 1807).

SIMILAR ACTIONS BY PRESIDENTS JACKSON, TYLER, BUCHANAN, AND GRANT

On February 10, 1835, President Jackson sent a message to the Senate wherein he declined to comply with the Senate’s resolution requesting him to communicate copies of charges which had been made to the President against the official conduct of Gideon Fitz, late Surveyor-General, which caused his removal from office. The resolution stated that the information requested was necessary both in the action which it proposed to take on the nomination of a successor to Fitz, and in connection with the investigation which was then in progress by the Senate respecting the frauds in the sales of public lands.

The President declined to furnish the information. He stated that in his judgment the information related to subjects exclusively belonging to the executive department. The request therefore encroached on the constitutional powers of the executive.

The President’s message referred to many previous similar requests, which he deemed unconstitutional demands by the Senate:

“Their continued repetition imposes on me, as the representative and trustee of the American people, the painful but imperious duty of resisting to the utmost any further encroachment on the rights of the Executive” (ibid., p. 133).

The President next took up the fact that the Senate resolution had been passed in executive session, from which he was bound to presume that if the information requested by the resolution were communicated, it would be applied in secret session to the investigation of frauds in the sales of public lands. The President said that, if he were to furnish the information, the citizen whose conduct the Senate sought to impeach would lose one of his basic rights, namely—that of a public investigation in the presence of his accusers and of the witnesses against him. In addition, compliance with the resolution would subject the motives of the President, in the case of Mr. Fitz, to the review of the Senate when not sitting as judges on an impeachment; and even if such a consequence did not follow in the present case, the President feared that compliance by the Executive might thereafter be quoted as a precedent for similar and repeated applications.

“Such a result, if acquiesced in, would ultimately subject the independent constitutional action of the Executive in a matter of great national concernment to the domination and control of the Senate;...

“I therefore decline a compliance with so much of the resolution of the Senate as requests ‘copies of the charges, if any,’ in relation to Mr. Fitz, and in doing so must be distinctly understood as neither affirming nor denying that any such charges were made ...” (ibid., p. 134).

One of the best reasoned precedents of a President’s refusal to permit the head of a department to disclose confidential information to the House of Representatives is President Tyler’s refusal to communicate to the House of Representatives the reports relative to the affairs of the Cherokee Indians and to the frauds which were alleged to have been practiced upon them. A resolution of the House of Representatives had called upon the Secretary of War to communicate to the House the reports made to the Department of War by Lieutenant Colonel Hitchcock relative to the affairs of the Cherokee Indians together with all information communicated by him concerning the frauds he was charged to investigate; also all facts in the possession of the Executive relating to the subject. The Secretary of War consulted with the President and under the latter’s direction informed the House that negotiations were then pending with the Indians for settlement of their claims; in the opinion of the President and the Department, therefore, publication of the report at that time would be inconsistent with the public interest. The Secretary of War further stated in his answer to the resolution that the report sought by the House, dealing with alleged frauds which Lieutenant Colonel Hitchcock was charged to investigate, contained information which was obtained by Colonel Hitchcock by ex parte inquiries of persons whose statements were without the sanction of an oath, and which the persons implicated had had no opportunity to contradict or explain. The Secretary of War expressed the opinion that to promulgate those statements at that time would be grossly unjust to those persons, and would defeat the object of the inquiry. He also remarked that the Department had not been given at that time sufficient opportunity to pursue the investigation, to call the parties affected for explanations, or to determine on the measures proper to be taken.

The answer of the Secretary of War was not satisfactory to the Committee on Indian Affairs of the House, which claimed the right to demand from the Executive and heads of departments such information as may be in their possession relating to subjects of the deliberations of the House.

President Tyler in a message dated January 31, 1843, vigorously asserted that the House of Representatives could not exercise a right to call upon the Executive for information, even though it related to a subject of the deliberations of the House, if, by so doing, it attempted to interfere with the discretion of the Executive.

The same course of action was taken by President James Buchanan in 1860 in resisting a resolution of the House to investigate whether the President or any other officer of the Government had, by money, patronage, or other improper means sought to influence the action of Congress for or against the passage of any law relating to the rights of any state or territory. (See Richardson, Messages and Papers of the Presidents, vol. 5, pp. 618-19.)

In the administration of President Ulysses S. Grant the House requested the President to inform it whether any executive offices, acts, or duties, and if any, what, have been performed at a distance from the seat of government established by law. It appears that the purpose of this inquiry was to embarrass the President by reason of his having spent some of the hot months at Long Branch. President Grant replied that he failed to find in the Constitution the authority given to the House of Representatives, and that the inquiry had nothing to do with legislation (Richardson, Messages and Papers of the Presidents, vol. 7, pp. 362-63).

PRESIDENT CLEVELAND’S ADMINISTRATION

In 1886, during President Cleveland’s administration, there was an extended discussion in the Senate with reference to its relations to the Executive caused by the refusal of the Attorney General to transmit to the Senate certain documents concerning the administration of the Office of the District Attorney for the Southern District of South Alabama, and suspension of George W. Durkin, the late incumbent. The majority of the Senate Committee on the Judiciary concluded that it was entitled to know all that officially exists or takes place in any of the departments of Government and that neither the President nor the head of a department could withhold official facts and information as distinguished from private and unofficial papers.

In his reply President Cleveland disclaimed any intention to withhold official papers, but he denied that papers and documents inherently private or confidential, addressed to the President or a head of a department, having reference to an act entirely executive such as the suspension of an official, were changed in their nature and became official when placed for convenience in the custody of a public department. (Richardson, Messages and Papers of the Presidents, vol. 8, pp. 378-79, 381.)

Challenging the attitude that because the executive departments were created by Congress the latter had any supervisory power over them, President Cleveland declared (Eberling, Congressional Investigation, p. 258):

“I do not suppose that the public offices of the United States are regulated or controlled in their relations to either House of Congress by the fact that they were created by laws enacted by themselves. It must be that these instrumentalities were created for the benefit of the people and to answer the general purposes of government under the Constitution and the laws, and that they are unencumbered by any lien in favor of either branch of Congress growing out of their construction, and unembarrassed by any obligation to the Senate as the price of their creation.”

PRESIDENT THEODORE ROOSEVELT’S ADMINISTRATION

In 1909, during the administration of President Theodore Roosevelt, the question of the right of the President to exercise complete direction and control over heads of executive departments was raised again. At that time the Senate passed a resolution directing the Attorney General to inform the Senate whether certain legal proceedings had been instituted against the United States Steel Corporation, and if not, the reasons for its nonaction. Request was also made for any opinion of the Attorney General, if one was written. President Theodore Roosevelt replied refusing to honor this request upon the ground that “Heads of the Executive Departments are subject to the Constitution, and to the laws passed by the Congress in pursuance of the Constitution, and to the directions of the President of the United States, but to no other direction whatever” (Congressional Record, vol. 43, pt. 1, 60th Cong., 2d sess., pp. 527-28).

When the Senate was unable to get the documents from the Attorney General, it summoned Herbert K. Smith, the Head of the Bureau of Corporations, and requested the papers and documents on penalty of imprisonment for contempt. Mr. Smith reported the request to the President, who directed him to turn over to the President all the papers in the case “so that I could assist the Senate in the prosecution of its investigation.” President Roosevelt then informed Senator Clark of the Judiciary Committee what had been done, that he had the papers and the only way the Senate could get them was through his impeachment. President Roosevelt also explained that some of the facts were given to the Government under the seal of secrecy and cannot be divulged, “and I will see to it that the word of this Government to the individual is kept sacred.” (Corwin, The President: Office and Powers, pp. 281, 428; Abbott, The Letters of Archie Butt, Personal Aid to President Roosevelt, pp. 305-6.)

PRESIDENT COOLIDGE’S ADMINISTRATION

In 1924, during the administration of President Coolidge, the latter objected to the action of a special investigating committee appointed by the Senate to investigate the Bureau of Internal Revenue. Request was made by the committee for a list of the companies in which the Secretary of the Treasury was alleged to be interested for the purpose of investigating their tax returns. Calling this exercise of power an unwarranted intrusion, President Coolidge said:

“Whatever may be necessary for the information of the Senate or any of its committees in order to better enable them to perform their legislative or other constitutional functions ought always to be furnished willingly and expeditiously by any department. But it is recognized both by law and custom that there is certain confidential information which it would be detrimental to the public service to reveal” (68th Cong., 1st sess., Record, April 11, 1924, p. 6087).

PRESIDENT HOOVER’S ADMINISTRATION

A similar question arose in 1930 during the administration of President Hoover. Secretary of State Stimson refused to disclose to the Chairman of the Senate Foreign Relations Committee certain confidential telegrams and letters leading up to the London Conference and the London Treaty. The Committee asserted its right to have full and free access to all records touching the negotiations of the treaty, basing its right on the constitutional prerogative of the Senate in the treaty-making process. In his message to the Senate, President Hoover pointed out that there were a great many informal statements and reports which were given to the Government in confidence. The Executive was under a duty, in order to maintain amicable relations with other nations, not to publicize all the negotiations and statements which went into the making of the treaty. He further declared that the Executive must not be guilty of a breach of trust, nor violate the invariable practice of nations. “In view of this, I believe that to further comply with the above resolution would be incompatible with the public interest” (S. Doc. No. 216, 71st Cong., special sess., p. 2).

PRESIDENT FRANKLIN D. ROOSEVELT’S ADMINISTRATION

The position was followed during the administration of President Franklin D. Roosevelt. There were many instances in which the President and his Executive heads refused to make available certain information to Congress the disclosure of which was deemed to be confidential or contrary to the public interest. Merely a few need be cited.

1. Federal Bureau of Investigation records and reports were refused to congressional committees, in the public interest (40 Op. A. G. No. 8, April 30, 1941).

2. 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.)

3. 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 January 22, 1944, signed Francis Biddle, Attorney General to Select Committee, etc.)

4. 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, April 30, 1941.)

5. 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.)

PRESIDENT TRUMAN’S ADMINISTRATION

During the Truman administration also the President adhered to the traditional Executive view that the President’s discretion must govern the surrender of Executive files. Some of the major incidents during the administration of President Truman in which information, records, and files were denied to Congressional Committees were as follows:

Date Type of Document Refused

Mar. 4, 1948 FBI letter-report on Dr. Condon, Director of National Bureau of Standards, refused by Secretary of Commerce.

Mar. 15, 1948 President issued directive forbidding all Executive departments and agencies to furnish information or reports concerning loyalty of their employees to any court or committee of Congress, unless President approves.

March 1948 Dr. John R. Steelman, Confidential Adviser to the President, refused to appear before Committee on Education and Labor of the House, following the service of two subpoenas upon him. President directed him not to appear.

Aug. 5, 1948 Attorney General wrote Senator Ferguson, Chairman of 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.

Feb. 22, 1950 Senate Res. 231 directing Senate Subcommittee to procure State Department loyalty files was met with President Truman’s refusal, following vigorous opposition of J. Edgar Hoover.

Mar. 27, 1950 Attorney General and Director of FBI appeared before Senate Subcommittee. Mr. Hoovers historic statement of reasons for refusing to furnish raw files approved by Attorney General.

May 16, 1951 General Bradley refused to divulge conversations between President and his advisers to combined Senate Foreign Relations and Armed Services Committees.

Jan. 31, 1952 President Truman directed Secretary of State to refuse to Senate Internal Security Subcommittee the reports and views of foreign service officers.

Apr. 22, 1952 Acting Attorney General Perlman laid down procedure for complying with requests for inspection of Department of Justice files by Committee on Judiciary:

Requests on open cases would not be honored. Status report will be furnished.

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. 3, 1952 President Truman instructed Secretary of State to withhold from Senate Appropriations Subcommittee files on loyalty and security investigations of employees—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.

Thus, you can see that the Presidents of the United States have withheld information of Executive departments or agencies whenever it was found that the information sought was confidential or that its disclosure would be incompatible with the public interest or jeopardize the safety of the Nation. The courts too have held that the question whether the production of the papers was contrary to the public interest was a matter for the Executive to determine.

By keeping the lines which separate and divide the three great branches of our Government clearly defined, no one branch has been able to encroach upon the powers of the other.

Upon this firm principle our country’s strength, liberty, and democratic form of government will continue to endure.

APPENDIX B

Letters Regarding the Presidential Letter of May 17, 1954

October 9, 1956

Hon. DWIGHT D. EISENHOWER, The President of the United States, The White House, Washington, D.C.

DEAR MR. PRESIDENT: At your press conference on Thursday, September 27, 1956, you were asked whether your letter of May 17, 1954, to Secretary of Defense Charles E. Wilson was being misused as authority to restrict information from the public.

This question was posed by Mr. Clark Mollenhoff of the Des Moines Register and Tribune.

You stated that if Mr. Mollenhoff would put the question in writing—which I understand he has done—it will be answered.

This particular letter and its misuse by a number of Federal departments and agencies has been a great concern to the Special Subcommittee on Government Information. Although the letter, and the accompanying memorandum from the Attorney General, granted authority to one particular agency to refuse information to a specific committee of Congress in a single instance, 19 departments and agencies have cited the letter as authority to refuse information to the public or the Congress.

This occurred in agency answers to the subcommittee’s questionnaire of November 7, 1955, on information practices and policies as well as during subcommittee hearings with executive officials.

Enclosed is an intermediate report, adopted unanimously by the House Government Operations Committee, on the subcommittee’s study of restrictions on information. The problem of misuse of the May 17, 1954, letter is discussed on page 90 and at other points.

When the answer to Mr. Mollenhoff’s question has been prepared and transmitted to him, the subcommittee would appreciate receiving copies of it and any other comments you have on the matter.

Respectfully, JOHN E. MOSS, Chairman THE WHITE HOUSE, Washington, October 17, 1956.

Hon. JOHN E. MOSS, House of Representatives, Washington, D.C.

DEAR MR. MOSS: This will acknowledge your October 9 letter to the President asking that you be supplied with copies of the answer to a question submitted by Mr. Clark Mollenhoff of the Des Moines Register and Tribune.

The answer to this question has not yet been given. However, as soon as it is, we will get in touch with you.

Sincerely, GERALD D. MORGAN, Special Counsel to the President

October 26, 1956

Mr. CLARK R. MOLLENHOFF, Des Moines Register and Tribune, National Press Building, Washington, D.C.

DEAR CLARK: At the press conference on September 27, 1956, you asked the President whether “all employees of the Federal Government, at their own discretion, can determine whether they will testify or will not testify before congressional committees when there is no security problem involved.”

In the President’s letter of May 17, 1954, to Secretary Wilson, the President set forth the general principles that are to govern all employees in the executive branch concerning their testimony, or the production of documents, relating to their conversations or communications with, or their advice to, each other on official matters. In his press conference of July 6, 1955, the President further amplified the principles set forth in this letter as follows:

“If anybody in an official position of this Government does anything which is an official act, and submits it either in the form of recommendation or anything else, that is properly a matter for investigation if Congress so chooses, provided the national security is not involved.

“But when it comes to the conversations that take place between any responsible official and his advisers, or exchange of mere little slips, of this or that, expressing personal opinions on the most confidential basis, those are not subject to investigation by anybody. And if they are it will wreck the Government.”

In so writing to Secretary Wilson, and in further amplifying these principles, the President was exercising a right, which is his, and his alone, to determine what action is necessary to maintain the proper separation of powers between the executive and legislative branches of the Government. In the orderly administration of the Government, the head of each executive agency directs the manner in which these principles are enforced.

The underlying reasons for these principles are set forth in the President’s letter of May 17, 1954. It is essential to efficient and effective administration that employees of the executive branch be in a position to be completely candid in advising each other on official matters. It is essential, if channels of information are to be kept open, that confidences among employees should not be breached.

It will continue to be this administration’s policy to keep the Congress and the people fully informed of what is being done in the executive branch. An employee is not free merely to exercise his own discretion but in the final analysis information will be withheld only when the President or agency heads acting under the President’s authority or instruction determine it is contrary to the public interest to disclose it.

All of the above, of course, is subject to the Executive order dealing with the classification of information in the interest of security, and to the various statutes and regulations of the department and agencies relating to information to be held in confidence.

I hope this answers your inquiry.

Sincerely, GERALD D. MORGAN, Special Counsel to the President