repeatedly come to light over strenuous executive opposition only because of congressional investigation.81 Well could Woodrow Wilson, a student of government and history, say in 1885: "Unless Congress have and use every means of acquainting itself with the acts and disposition of the administrative agents of the government, the country must be helpless to learn how it is being served.

32

The starting point, therefore, must be a congressional function which has proven its value repeatedly over the years. Growing resort by the executive branch to "uncontrolled discretion" to withhold information from Congress must in time rob the country of the benefits which flow from legislative inquiry into executive

mismanagement in the construction of an airstrip at Fort Lee, Va. These scandals were actually being hidden or disregarded by the Pentagon until the Congress stepped in. . . We should remember that the Symington Armed Services Subcommittee has demonstrated that several billions of dollars were wasted in the stockpiling of strategic and critical material. A vast curtain of secrecy covered the stockpile purchasing and the political letters and questionable decisions that went into the creation of that $9 billion stockpile." 109 CONG. REC. 3204 (1963) (Address of Clark R. Mollenhoff).

31 Writing in 1924 of the Teapot Dome investigations, Professor Frankfurter stated that "the bills filed by the government against the Sinclair and Doheny leases are based upon the findings of the Walsh committee, namely, corruption and conspiracy rendered possible through Secretary Fall's corruption and Secretary Denby's guileless incompetency; the disgrace of, and pending grand jury inquiry into a recent member of the Cabinet-Fall, the dismissal of a third member-the Attorney General [Harry Daugherty]-because of an enveloping, malodorous atmosphere." Frankfurter, supra note 24, at 329-30. All of this in face of the fact that: "For nearly two years the efforts to uncover wrongdoing in the disposal of our public domain were hampered by every conceivable obstruction on the part of those in office." Id. at 330.

Compare this with President Coolidge's blocking of a Senate investigation of Secretary of the Treasury Andrew Mellon's corporate holdings. The Senate had appointed a committee to investigate the Bureau of Internal Revenue in order "to obtain information upon which to recommend to the Senate reforms in law and in administration of the Bureau." Coolidge said: "Seemingly the request 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, must have been dictated by some other motive than a desire to secure information for the purpose of legislation . . ." and therefore refused the list. Att'y Gen. Memo. 19-20. (Emphasis added.) But "motives alone would not vitiate an investigation . if that assembly's legislative purpose is being served . . [even where the] true objective of the Committee was purely 'exposure.'" Barenblatt v. United States, 360 U.S. 109, 132 (1959). The Senate justifiably could be interested in Mellon's vast corporate empire and its impact on his Treasury activities.

32 Quoted in United States v. Rumely, 345 U.S. 41, 43 (1953). Judge Wyzanski stated: "Congressional investigations are only one, if an extreme example of our belief that exposure is the surest guard . . . against official corruption and bureaucratic waste, inefficiency and rigidity. That this confidence in legislative investigations as a prophylactic is not absurd is demonstrated to some extent by the difference in the strength and survival quality of democracy in English-speaking countries where such investigations are encouraged and Continental countries where they have been held within close bounds. . . . Perhaps France would have been better off if the Stavisky scandal had been investigated rather than hushed up." Wyzanski 102.

conduct.38 Few would deny that, as a practical matter, resort to unlimited executive privilege could cripple the Congress and render it impotent to carry out its functions.34 That information is far more frequently furnished than withheld is beside the point, because investigation is hobbled at the outset if the executive branch may determine what Congress shall see and hear. How can that determination safely be left to the object of investigation? In measuring on practical grounds the assertion of executive power to determine what Congress may safely see, we do well to bear in mind the words of Mr. Justice Jackson, who knew from the inside the power and leverage of the executive establishment:

I cannot be brought to believe that this country will suffer if the Court refuses further to aggrandize the presidential office, already so potent and so relatively immune from judicial review, at the expense of the Congress,36

If the relative immunity of the executive departments from judicial review is not as extensive as that afforded the President, it has yet become so broad in practical effect as to give pause before adding to it immunity from congressional inquiry except by executive leave.37 That way lies the road to bureaucratic irresponsibility.

33 The fact that the Johnson Administration presently is exercising commendable restraint merely postpones the problem whether the legislature's crucial need for information can be left to executive mercies. The point is made by the 1963 Memo. of the House Government Operations Subcommittee under the sympathetic Chairmanship of Congressman John E. Moss: "The powerful genie of executive privilege momentarily is confined but can be uncorked by future Presidents." Gov't Info. Memo. 49.

34 Recent privilege proponents say that “undue secrecy may seriously cripple the legislature and promote official arrogance and inefficiency as well as fiscal laxity... government without investigation might easily turn out to be democratic government no longer." Kramer & Marcuse 915-16. See also note 779 infra; TAYLOR 97; Younger 775. Acting Director Saccio of the International Cooperation Administration, testifying with respect to a refusal to furnish an ICA evaluation of its Vietnam program, said: “[I]f ICA wanted to apply the 'executive privilege' GAO [General Accounting Office] would not see one thing because practically every document in our agency has an opinion or a piece of advice." Kramer & Marcuse 852. That possibility had been foreseen by Taylor when he said: "A very large part of administrative work consists of advice and communication between and among government officials. If President Eisenhower's directive [of May 17, 1954, responding to the McCarthy-Army controversy] were applied generally in line with its literal and sweeping language, Congressional committees would frequently be shut off from access to documents to which they are clearly entitled by tradition, common sense, and good governmental practice." TAYLOR 133. As will appear below, the executive branch has more than once flaunted "tradition and common sense." 35 Kramer & Marcuse 623; Bishop 489.

36 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 654 (1952) (concurring opinion). For the views of the Founding Fathers, see text accompanying notes 132-42 infra.

37 Warner Gardner remarked that in many cases "the administrative discretion is in practical effect final and beyond revision by the courts, the Congress or the Executive," GELLHORN & BYSE 24, and that the agencies "are usually beyond any

Nor need an absolute congressional power to demand be substituted for an absolute executive power to withhold information. Constitutional absolutes are justly regarded with skepticism; scarcely a right or power asserted under the Constitution is free from the need to be accommodated with another. The powers of Congress and the executive, as former Assistant Attorney General Kramer said, “are neither absolute nor mutually exclusive," rather "both powers are of equal dignity."88 But apparently the executive, to borrow Orwell's phrase, is "more equal" than Congress. The absence of privilege, argued Mr. Kramer, would render Congress "superior" because the executive would have to surrender all information demanded by Congress.39 By opting for executive discretion to determine what Congress may see, however, he would make the executive superior. What Mr. Kramer leaves implicit was unabashedly asserted by Attorney General Rogers: "the President and heads of departments must and do have the last word."40 Tested by history or practical dictates of government this assertion is dubious in the extreme.41 And it would be disadvantageous to leave either branch at the mercy of the other in the demarcation of their constitutional boundaries. This raises a key question: Are the courts-the traditional arbiters of constitutional boundaries-authorized to settle disputes between the legislative and executive branches as to the scope of their

systematic control by the legislature or the executive, while judicial review of most agencies can operate only on the edges and not at the center of the administrative process." Id. at 31. This can be said with equal justice of administration by the departments. Senator Paul Douglas has remarked that "out of a deep instinctive wisdom, the American people have never been willing to confide their individual or collective destinies to civil servants over whom they have little control." Id. at 182-83. It is not enough that the increasingly broad legislative delegations have aroused uneasiness because of the trend from "representative government toward bureaucratic ascendancy," GRIFFITH 2: now the bureaucracy would censor what Congress may see.

38 Kramer & Marcuse 915.

39 Id. at 910.

40 Att'y Gen. Memo. 46. Indeed, he all but warned the courts to keep their hands off the executive. See text accompanying note 321 infra. See also note 316 infra. •

"What could be better evidence of complete dependence than to subject the validity of the decision of one 'Department' as to its authority on a given occasion to review and reversal by another whose own action was conditioned upon the answer to the same issue? Such a doctrine makes supreme the 'Department' that has the last word." HAND 4. The view that "prevailed," said Judge Hand, was "that it was a function of the courts to decide which 'Department' was right, and that all were bound to accept the decision of the Supreme Court." Id. at 3.

41 Moreover, to leave to the President the determination in any particular case whether the public interest permits disclosure is to "leave open the possibility that the President may abuse his prerogative, especially in instances where the information would reflect unfavorably on him or his administration of the nation's affairs." TAYLOR 101. The realization of this possibility during the Eisenhower Administration is hereafter discussed.

respective powers? Or are such disputes nonjusticiable "political questions," as has been generally assumed?42 It is time to inquire whether the "political question" cases sustain the assumption that the colliding claims of Congress to demand and of the executive branch to withhold information are nonjusticiable, the more so since other comfortable assumptions have been swept away by the thundering avalanche that was Baker v. Carr.43

It has been observed, not unjustly, that there has been a "plethora of ipse dixits on both sides of the [executive privilege] question." The unhappy alternative to ex cathedra utterance is exposition and refutation in detail. What follows is an attempt to grasp the nettle, sift competing views, and frame issues in order to present a coherent panorama of the field.

I. HISTORY OF LEGISLATIVE POWER TO INQUIRE INTO EXECUTIVE CONDUCT

The broad power of Congress to inquire into executive conduct is deeply rooted in parliamentary and colonial history and was immediately asserted by the first Congress. So much has received express recognition by the Supreme Court in McGrain v. Daugherty.45 The narrow issue in McGrain was whether a private person,

42 See note 708 infra.

43 369 U.S. 186 (1962).

44 Bishop 483. Consider the Attorney General's statement that "courts have uniformly held that the President and heads of departments have an uncontrolled discretion to withhold. . . ." Att'y Gen. Memo. 1. See also id. at 32. This has been termed a "remarkable and inexact assertion," Bishop 478 n.5, and "utterly unsupported by any case." Schwartz 13. Cf. text accompanying notes 308-09 infra. Though the author concurs in these views, the Attorney General's collection of "authorities" for this proposition requires more than out-of-hand dismissal if only because of the weight that ordinarily attaches to an opinion (here furnished to the Senate) of the chief law officer of the United States.

In an address before the Massachusetts Historical Society Wiggins said that: "Unless historians bestir themselves. the lawyers' [i.e., the Attorney General's] summary that has placed 170 years of history squarely behind the assertion of unlimited executive power to withhold information, threatens to get incorporated into that collection of fixed beliefs and settled opinions that governs the conduct of affairs. History may thereafter become what the lawyers mistakenly said it was theretofore." Wiggins, Lawyers as Judges of History, 75 Mass. Hist. Soc. Proc. 84, 104 (1963).

45 273 U. S. 135 (1927). "In actual legislative practice power to secure needed information by such [investigatory means] has long been treated as an attribute of the power to legislate. It was so regarded in the British Parliament and in the Colonial legislatures before the American Revolution. . . . This power was both asserted and exerted by the House of Representatives in 1792, when it appointed a select committee to inquire into the St. Clair expedition. ." Id. at 161.

At the time of McGrain, it was not yet fashionable to cite law review articles, but internal evidence discloses heavy reliance on the then recently published historical studies by Potts and Landis. Cf. TAYLOR 61-62.

47-814 O-66-2

the brother of the Attorney General, could be summoned by the Senate in an investigation into the Attorney General's conduct of the Department of Justice. But the determination that "the administration of the Department of Justice . . . and particularly whether the Attorney General and his assistants were performing or neglecting their duties was within Congress' jurisdiction carries analysis a long way. It is now established that the investigatory

46

Potts is cited in Jurney v. McCracken, 294 U.S. 125, 149 (1935), and Landis in Barenblatt v. United States, 360 U.S. 109, 112 (1959) (for proper perspective of "Congressional power of inquiry").

46 273 U.S. at 177. The Attorney General astonishingly misconceives the effect of McGrain v. Daugherty. Att'y Gen. Memo. 71. In the interest of clarity each of his propositions will be treated separately. Regrettably, refutation of error requires more space than its propagation. The Attorney General states: "How is the United States Supreme Court likely to decide the issue concerning the withholding of confidential papers by the executive branch from Congress and its committees? The case of McGrain v. Daugherty points to the following conclusions:

(a) The Houses of Congress have, in the past exceeded their powers, both with respect to their attempted punishment for contempt of private persons and of a United States official, and the Supreme Court did not hesitate to reject the improper assertions of congressional power." Ibid. (Citing Kilbourn v. Thompson, 103 U.S. 168 (1881) and Marshall v. Gordon, 243 U.S. 521 (1917)).

In fact, McGrain rejected Kilbourn's historically unsound intimations that "neither house of Congress has power to make inquiries and exact evidence in aid of contemplated legislation." 273 U.S. at 171. Compare id. at 174. McGrain explained further that in Kilbourn "the resolution contained no suggestion of contemplated legislation; that the matter was one in respect to which no valid legislation could be had; that the bankrupt's estate and the trustee's settlement were still pending in bankruptcy court," and consequently, that the House had exceeded its powers and assumed to exercise clearly judicial power. Id. at 171. Mr. Justice Frankfurter remarked in United States v. Rumely, 345 U.S. 41, 46 (1953), upon the "inroads" made by McGrain upon Kilbourn.

Marshall v. Gordon, 243 U.S. 521 (1917), is even further afield. McGrain explains that there the issue was whether the House could punish for contempt a district attorney who sent an "irritating" letter to a Committee Chairman, and the Court emphasized that the "power to make inquiries and obtain information by compulsory process was not involved." 273 U.S. at 173. All that was decided in Marshall said McGrain, was that the House could not punish for contempt because the letter "was not calculated or likely to affect the House in any of its proceedings or in the exercise of any of its functions. . . ." Ibid. Both Kilbourn and Gordon are therefore totally irrelevant to the "withholding of confidential papers by the executive branch from Congress" when it seeks information in aid of legislation, appropriation or investigation of executive conduct.

The Attorney General states: "(b) Ever since 1796, the executive branch has asserted the right to say 'no' to the Houses of Congress, when they have requested confidential papers which the President or the heads of departments felt obliged to withhold, in the public interest. Since 1800, court decisions have uniformly held that the president or heads of departments need not give testimony or produce papers which, in their judgment, require secrecy." Att'y Gen. Memo. 71. This paragraph suggests that the courts have "uniformly" sustained executive refusals to furnish information to Congress. Certainly the case of McGrain v. Daugherty contains not the slightest intimation to this effect. No case has so held, see note 309 infra, and as will appear, no case cited by the Attorney General supports such a proposition. There is no absolute executive privilege to withhold even from private litigants. See text accompanying note 412 infra.