History of Refusals by Executive Branch Officials toProvide Information Demanded by Congress (PART II—Invocations of Executive Privilege by Executive Officials) ( 1983 )

History of Refusals by Executive Branch Officials to
Provide Information Demanded by Congress
PART II—Invocations of Executive Privilege by
Executive Officials
January 27, 1983
MEMORANDUM FOR THE ATTORNEY GENERAL
This memorandum sets forth examples of two separate but related categories of
refusals by officials within the Executive Branch to disclose information or
produce documents requested by Congress. The first category, addressed in
Section I of this memorandum, comprises instances of refusals by Attorneys
General, or other officials in the Department of Justice acting under the Attorney
General’s authority. Included within this category are general statements by
Attorneys General regarding the authority of Executive Branch agencies to
withhold information from Congress, as well as instances in which other Ex­
ecutive Branch agencies have withheld information pursuant to the Attorney
General’s express advice. Section II of this memorandum provides examples of a
“ separate class” 1 of refusals to provide information, specifically, incidents in
which officers of the Executive Branch and the independent agencies have
declined to provide information to Congress relating to law enforcement, se­
curity, or personnel investigations.
The material contained in this and our December 14, 1982, memorandum,2
when taken together, demonstrates convincingly that throughout this nation’s
history, the Chief Executive and those who assist him in “ tak[ing] care that the
laws be faithfully executed,” have on certain occasions exercised their constitu­
tional obligation to refrain from sharing with the Legislative Branch information
the confidentiality of which was vital to the proper constitutional functioning of
the Executive Branch. As Attorney General, and later Supreme Court Justice,
Robert Jackson stated in 1941:
1 C ox, Executive Privilege, 122 U f t. L. Rev. 1383, 1402 (1974).
2 This memorandum is a supplement to M emorandum for the Attorney General, “ Presidential Invocations of
Executive Privilege Vis-a-Vts Congress,” from Assistant Attorney General Theodore B. Olson, Office of Legal
Counsel (Dec. 14, 1982), hereafter “ D ecember 14, 1982, Memorandum.” [See Part I, p. 751, supra.]
782
Since the beginning of the Government, the executive branch has
from time to time been confronted with the unpleasant duty of
declining to furnish to the Congress . . . information which it has
acquired and which is necessary to it in the administration of
statutes.131
This general principle is neither new nor novel, and represents no departure from
past practice; to the contrary, the assertion of such responsibility has been a
consistent theme throughout our constitutional existence. Moreover, while the
Executive’s position at times has been resisted by Congress with varying levels of
intensity, based partially on partisan political considerations, members of the
Legislative Branch have often respected and supported the prerogatives of the
Executive in this regard.4
Because this memorandum is intended to be tead as a supplement to our
memorandum entitled “ Presidential Invocations of Executive Privilege Vis-a-
Vis Congress,” supra, note 2, it does not include instances of presidential or
presidentially authorized withholdings involving the Attorney General or the
Department of Justice except when a significant statement by the Attorney
General, independent of that made by the President, is involved. Nor does it
discuss in detail instances in which law enforcement files were withheld by the
President or pursuant to his express direction; such instances are noted, however,
with a reference to our December 14, 1982, Memorandum.
While the fundamental principles and rationales underlying the incidents
described here are identical to the principles and rationales underlying formal,
presidential invocations of executive privilege to protect sensitive information
within the Executive Branch, these examples do not represent, in and of them-
5 40 Op. Alt’y Gen. 45, 48 (1941)
4 Members of Congress in both Houses have on various occasions recognized the authority of Executive Branch
officers to withhold from Congress sensitive investigative materials. For example, in 1906 the Senate was
considering a resolution requesting information from the President concerning the dismissal of three companies of
“ colored’*Army troops from military service Dunng the debate. Senator John Spooner of Wisconsin raised certain
objections lo the form of the resolution In his remarks on the power of the Executive to withhold information,
Senator Spooner gave the following examples of appropriate executive restrictions on disclosures to Congress:
The Department of Justice would not be expected to transmit to either House the result of its
investigations upon which someone had been indicted, and lay bare to the defendant the case of the
Government The confidential investigations in various departments of the Government should be.
and have always been, treated by both Houses as confidential, and the President is entirely at liberty
to permit by the Cabinet officer to whom the inquiry is addressed as much or as little information
regarding them as he might see fit.
3 Hinds’ Precedents § 1904, at 197 (1907).
Also, in 1948 six Members of the House, all Democrats and including then Minority Whip John W. McCormack
of Massachusetts, stated as follows with regard to the Attorney General’s refusal to disclose Federal Bureau of
Investigation (FBI) investigative files regarding paroles of four federal prisoners, see generally pp 790-91 infra
I think the Attorney General is entirely justified in his refusal to make the actual FBI reports available
to the subcommittee Investigative reports almost inevitably contain much confidential information
relative to the identity of informants They frequently contain material which must ip the interest of a
successful criminal prosecution be kept confidential until the very moment it is required at the trial.
The effectiveness and efficiency of the FBI would be greatly impaired if its reports were to be made
available to any congressional committee which asked for them. Nor do 1 believe that the consent of
the Speaker or of the President of the Senate would obviate these difficulties. I may refer in this
respect to the authoritative opinion of Attorney General Jackson . . [referring to the Opinion of
Robert Jackson cited at n.3, supra]
H.R Rep No 1595, 80th Cong , 2d Sess. II (1948) (Minority Report).
783
selves, formal invocations of executive privilege.5 Rather, they exemplify efforts
by executive officers to protect the integrity of their files by communicating their
concerns to Congress before resorting to a formal, presidential assertion of
privilege.
The following examples are not intended to be representative of the day-to-day
relationship between the Executive Branch and Congress concerning disclosure
of information. Many commentators have observed that, as a rule, Congress
receives most of the information it seeks, largely because “ the several depart­
ments and agencies strive to be on good terms with the committees in charge of
their appropriations and their legislative programs.” 6 Nor does this enumeration
constitute a comprehensive listing of every refusal by an executive officer to
disclose confidential material to Congress;7 the compilation of such a list would
be an impossible8— and largely useless— task to undertake. This memorandum
5 As the doctrine is currently implemented, executive privilege may be formally invoked to prevent disclosures to
Congress only by the President personally. A bsent such formal invocation, executive officers are obliged lo comply
with all congressional requests for information in a manner consistent with their duty to execute the law. See, e.g ,
President Reagan's Memorandum for the H eads of Executive Departments and Agencies. Procedures Governing
Responses to Congressional Requests for Information (Nov 4, 1982)
6 Kramer & M arcuse, Executive Privilege: A Study c f the Period 1953-1960, 29 Geo. Wash. L Rev. 623, 627
(1961) See also id. at 897-98; Bishop, The Executive's Right o f Privacy An Unresolved Constitutional Question, 66
Yale L.J. 477, 486, 488 (1957); Younger, Congressional Investigations and Executive Secrecy: A Study in the
Separation c f Powers, 20 U. Pitl. L Rev. 755, 770 (1959). For example, in response to a congressional inquiry, the
Department of Defense revealed that between May 17, 1954 and May 27, 1957 approximately 300,000 requests for
information had been received from Congress by the Department and the military services Of those inquiries, only
13 were known by the Department to have been formally denied Freedom c f Information and Secrecy in
Government: Hearings on S. 921 Before th e Subcomm. on Constitutional Rights c f the Senate Comm, on the
Judiciary, 85th C ong., 2d Sess 385-87 (1958) [hereinafter cited as 1958Hearings] (noting, however, that because
no records are maintained by the Department specifically recording denials o f congressional requests for informa­
tion, there may have been additional refusals).
7 In addition to the Dec 14, 1982, M emorandum, supra, there are a number of studies which catalogue both
formal invocations o f executive pnvilege by Presidents and refusals by other executive officers to disclose
information to Congress. They vary widely in scope, accuracy, and completeness See, e.g.. Study Prepared by the
Government and General Research Division, Library of Congress, The Present Limits of “ Executive Pnvilege,”
reprintedm 119Cong Rec. 10079 (1973) (listing examples from the penod 1960-1972); American Law Division,
Library of C ongress, Selected Cases in W hich Information Has Been Withheld from Congress by the Executive
Department, reprinted in 1958 Hearings, supra, at 428-46 (covering the period 1789-1956); Memorandum on the
Exercise of Executive Pnvilege, 1956-72, Response to Congressional Inquiry by Deputy Assistant Attorney
G eneral Mary C Lawton (Apr. 25, 1973), reprinted in Availability c f Information to Congress• Hearings on
H .R . 4938, H .R . 5983 and H R. 6438 Before a Subcomm. c f the House Comm, on Government Operations, 93d
Cong , 1st Sess. 117-20 (1973); Kramer & Marcuse, supra, 29 Geo. Wash. L. Rev. 629, 827, Memorandum
Reviewing Inquines by the Legislative Branch During the Penod 1948-1953, Concerning the Decisionmaking
Process and Documents o f the Executive Branch (unpublished, anonymous Department of Justice document)
(hereafter Department of Justice Study), Department of Justice study, submitted to the Committee by Deputy
Attorney General Rogers, Is a Congressional Committee Entitled to Demand and Receive Information and fapers
From the President and the Heads of Departments Which They Deem Confidential, in the Public Interest?, reprinted
in 1958 H earings, supra, at 63-146 (hereafter Rogers Memorandum) (covering penod from Founders through
1957)
8 There are countless examples among the boards, agencies, and departments of the Executive Branch wherein
congressional staff, M embers of Congress, o r congressional committees have informally requested information or
documents But, as one commentator has noted:
The actual extent and degree to w hich the Executive branch responds to [these] congressional
requests for information and documents are buried in the files of the several departments, agencies,
and congressional committees As a practical matter, it is impossible to sift those records in order to
extract from them the portions relating to congressional demands for information and the answers of
the Executive pertaining thereto. Only a small part of these inquiries finds its way into the mynad of
pages of printed heanngs, committee documents and reports, and the Congressional Record. But
even here it is virtually impossible to locate them owing to the absence of a proper indexing system.
Kramer & M arcuse, supra, at 627.
We know of only one occasion in which a survey has been conducted of the vanous executive departments’
C ontinued
784
instead is designed simply to provide examples of the well-established practice
by which executive officers, in carrying out their duty to execute the laws, have
declined to provide sensitive material generated within the Executive Branch to
Congress.
I. Attorney General and Department of Justice Refusals9
1. 1886
In response to a Senate resolution requesting the Attorney General to transmit
to the Senate Committee on the Judiciary copies of all documents and papers filed
in the Department of Justice relative to the management and conduct of the Office
of the District Attorney (now United States Attorney) for the Southern District of
Alabama, Attorney General Garland wrote on January 28, 1886:
In response to the said resolution the President of the United
States directs me to say that the papers which were in this
Department relating to the fitness of John D. Burnett, recently
nominated to said office, having been already sent to the Judiciary
Committee of the Senate, and the papers and documents which
are mentioned in the said resolution, and still remaining in the
custody of this Department, having exclusive reference to the
suspension by the President of George M. Duskin, the late incum­
compliance with congressional requests for information. On April 2 ,1 957, Chairman Hennings of the Subcommit­
tee on Constitutional Rights of the Senate Committee on the Judiciary sent letters to the heads of a selected list of
executive departments and agencies asking the following questions:
1 How many times since May 17, 1954, has your agency refused information to Congressmen or
congressional committees9
2. If there have been instances when information has been withheld, when did each occur, and what
were the circumstances surrounding such occurrences?
3 On what basis was the information withheld in each instance?
1958 Hearings. supra, at 374. While the answers to Chairman Hennings' letter represent the most complete study
concerning the degree to which the Executive Branch as a whole responds to congressional requests for information,
the study was limited in scope not only with respect to time— May 1954 through April 1957—but also in terms of the
number of agencies polled. In addition, the Hennings study also illustrates the almost insurmountable difficulties in
obtaining comprehensive and accurate information on the subject, owing to the inadequacy of records. Typical was
the response to Chairman Hennings’ letter by Acting Chairman Phillips of the Civil Service Commission:
The Commission has no way of ascertaining the number of times it has refused information to
Congressmen or congressional committees. Our filing system does not lend itself to locating such
information. The correspondence file is so voluminous, it would be an insurmountable task to search
for such information Inquiries have been made of these [sic] persons in the Commission who would
have occasion to entertain a question of refusal, consequently, our answers to your questions are
based on memory of such incidents. Undoubtedly, since May 17, 1954, there have been refusals that
have escaped the memory of those who were concerned at the time in the determination to furnish the
requested information on the specific occasion.
Id. at 378. See also id. at 385 (response of the Secretary of Defense) (‘'no speciaJ records are maintained by the
Department [of Defense] recording denials o f congressional requests for information . . ”). See generally Kramer
& Marcuse, supra, at 637 (extensive analysis of Hennings study).
Notwithstanding these limitations, this memorandum has relied heavily upon the Hennings study and other
similar compilations in its effort to document typical instances of executive withholding. See generally note 7,
supra These materials do not provide an adequate basis for obtaining comprehensive or statistically representative
examples of executive withholding in the various Administrations
9 Although there may well have been instances of refusals by the Attorney General or Department of Justice
officials earlier than 1886, such instances have not been well documented. The lack of records regarding incidents
p nor to this period can be accounted for, in part, by the fact that earlier demands and refusals were handled directly
by the President, see generally our Dec. 14, 1982, Memorandum, and the fact that the executive departments,
including the Department of Justice, were not, for the most part, established until the 1870s
785
bent of the office of district attorney of the United States for the
southern district of Alabama, it is not considered that the public
interest will be promoted by a compliance with said resolution
and the transmission o f the papers and documents therein men­
tioned to the Senate in executive session.1101
On February 18, 1886, the Committee on the Judiciary reported a resolution
condemning the refusal of the Attorney General to transmit the documents. On
March 1, 1886, President Cleveland sent a message to the Senate stating that the
requested papers were withheld at his direction because they contained informa­
tion addressed to him and to the Attorney General by private citizens concerning
the former District Attorney, and that the documents related to an act (the
suspension and removal of an Executive Branch official) which was a function
exclusively within the discretion of the Executive.11
2. 1904
On April 27, 1904, Attorney General Knox sent a letter to the Speaker of the
House declining to comply with a resolution of the House requesting him, “ if not
incompatible with the public interest,” to inform the House whether any criminal
prosecutions had been instituted against individuals involved in the Northern
Securities antitrust case, “and to send to the House all papers and documents and
other information bearing upon any prosecutions inaugurated or about to be
inaugurated in that behalf.” 12 The Attorney General responded that no prosecu­
tions had been initiated and that “ further than this, I do not deem it compatible
with the public interest to comply with the resolution.” 13
3. 1908
In response to a request to transmit, if not incompatible with the public
interest, documents and information in the possession of the Department of
Justice concerning the International Paper Co. and other corporations engaged in
the manufacture of woodpulp o r print paper, Attorney General Bonaparte replied
on April 13, 1908, that no evidence had been obtained sufficient to justify the
institution of legal proceedings, either civil or criminal, against any alleged
combination of woodpulp or print paper manufacturers but that a further inves­
tigation was in progress. He added that “ [i]t would be inexpedient at the present
stage of this investigation to disclose to the public specifically what steps have
been taken, or what action is contemplated, by this Department with respect to
matters mentioned in the said resolution.” 14
10s. Misc. Doc. 68, 52d C ong., 2d Sess. 236 (1893).
11 Id. at 233, 262-63. See also 8 J Richardson, Messages and fa p e rso f the Presidents 375 (1896); December 14,
1982, M emorandum , supra, at 23.
12 38 C ong. Rec. 5636 (1904). The phrase, “ if not incompatible with the public interest,” and other, similar
phrases have often been embodied in congressional requests for information from the Executive. For a discussion of
Ihe origin and use o f these congressional formulations, see generally Dec. 14,1982, Memorandum, supra, atn.15;
3 Hinds’ Precedents, supra, §§ 1856, 1896; Cox, supra. 122 U. f t L. Rev. at 1397 and n.55.
13 H. Doc. No. 704, 58th C ong., 2d Sess. (1904). TTiis refusal was cited by Attorney General Robert Jackson as
historical precedent for his opinion at 40 Op. A tt’y Gen. 45, 47 (1941), see infra, 788-89
14 H D oc. No. 860, 60th C ong., IstSess 1 -2 (1908); 42 Cong. Rec. 4512 (1908) See also 40 Op. A tt’y G en.,
supra, at 47.
786
4. 1909
In response to a January 4, 1909, Senate resolution requesting Attorney
General Bonaparte to inform it whether legal proceedings had been instituted
against the United States Steel Corporation (U.S. Steel) by reason of its absorp­
tion of the Tennessee Coal & Iron Company, and, further, to provide any Attorney
General opinions written on the subject. President Roosevelt replied on January 6
that he, as the Chief Executive, was responsible for the matter, and that Attorney
General Bonaparte had advised him that there were insufficient grounds for
instituting legal action against U .S . Steel, and that he had instructed the Attorney
General “ not to respond to that portion of the resolution which calls for a
statement of his reasons for nonaction . . . because I do not conceive it to be
within the authority of the Senate to give directions of this character to the head of
an executive department, or to demand from him reasons for his action.” 15
Thereafter, the Senate Committee on the Judiciary subpoenaed the Commis­
sioner of Corporations to produce all papers and documents in his possession
regarding U.S. Steel. The Attorney General advised the Commissioner that the
discretion to make the documents public was vested in the President, and that he
should therefore call the request to the attention of the President, submit to him
the relevant documents and obtain his instructions as to what part of the data, if
any, was “ suitable for publication by disclosure to the subcommittee of the
Senate.” 16
5. 1912
On March 18,1912, Attorney General Wickersham sent a letter to the Speaker
of the House declining to comply with a House resolution directing the Attorney
General to furnish to the House information concerning the Department of
Justice’s investigations of the Smelter Trust.17
6. 1912
On March 19, 1912, in response to a Senate resolution requesting the Attorney
General to provide it with all correspondence, information, and reports of the
Bureau of Corporations relative to the “ Harvester Trust,” Attorney General
Wickersham responded that he was directed by the President to say that it was
“ not compatible with the public interests” to provide the information at that time
because the matters “ pertain[ed] entirely to business which is now pending and
uncompleted in this department.” 18
7. 1912
In response to a House resolution demanding that the Comptroller of the
Currency provide the House Committee on Banking and Currency with data
relative to the operation of national banks, Attorney General Wickersham sent an
15 43 Cong Rec. 528 (1909).
16 27 O p Att’y G en. 150, 156 (1909). See also Dec. 14, 1982, Memorandum, supra.
17See 40 Op A tt’y G en., supra, at 47.
18 S Doc. No. 454, 62d Cong., 2d Sess. 1 (1912)
787
opinion to the President on November 9, 1912, stating that the President, to
whom the Comptroller had referred the request, could provide the Committee
with the information if, in his opinion, it was proper to do so. The opinion further
stated that:
Nowhere in the law is there any express provision that the
inform ation thus acquired by the Com ptroller shall be con­
fidential. While, if in your opinion, the interests of the Govern­
ment require that this information shall be so treated, you have the
right to refuse to divulge it, yet, I am clearly of the view that if, in
your opinion, it is proper to give this information to the House
committee you have the lawful power to do so.ll9)
8. 1914
On August 28, 1914, Attorney General McReynolds sent a letter to the
Secretary to the President stating that it would be incompatible with the public
interest to send to the Senate, in response to its resolution, reports made to the
Attorney General by his associates regarding violations of law by the Standard
Oil C o.20
9. 1915
On February 23, 1915, Attorney General Gregory sent a letter to the President
of the Senate declining to comply with a Senate resolution requesting him to
report to the Senate his findings and conclusions of the investigations conducted
by the Department of Justice “ in the matter of illegal combinations in restraint of
trade in the smelting industry, commonly called the Smelting Trust,” on the
ground that to do so would be incompatible with the public interest.21
10. 1926
On June 8, 1926, Attorney General Sargent sent a letter to the Chairman of the
House Committee on the Judiciary declining to comply with his request to turn
over to the Committee all papers in the Department’s files relating to the merger
of certain oil companies.22
11. 1941
In response to a request from the House Committee on Naval Affairs to furnish
all Federal Bureau of Investigation (FBI) reports since June 1939, and all future
reports, memoranda, and correspondence of the FBI or the Department of Justice
in connection with investigations arising out of strikes, subversive activities in
connection with labor disputes, or labor disturbances of any kind in industrial
19 29 Op. A tt’y G en. 555, 560 (1912) (citations omitted).
x* See 40 Op. A tt’y Gen , supra, at 47.
21 See 52 Cong. Rec. 4089, 4908-09 (1915); see also 40 O p Att’y G en., supra, at 48.
22 See 40 O p A tt'y G en., supra, at 48.
788
establishments which had naval contracts, Attorney General Robert Jackson
declined, writing on April 30, 1941:
It is the position of this Department, restated now with the
approval of and at the direction of the President, that all inves­
tigative reports are confidential documents of the executive de­
partment of the Government, to aid in the duty laid upon the
President by the Constitution to “ take care that the laws be
faithfully executed,” and that congressional or public access to
them would not be in the public interest.1231
The Attorney General pointed to the following injurious results which would
follow disclosure of the reports: (1) disclosure would seriously prejudice law
enforcement; (2) disclosure at that particular time would have prejudiced the
national defense; (3) disclosure would seriously prejudice the future usefulness
of the Federal Bureau of Investigation, in that the “ keeping of faith” with
confidential informants was an indispensable condition of future efficiency;
(4) disclosure might also result in the grossest kind of injustice to innocent
individuals, because the reports included leads and suspicions, sometimes those
of malicious or misinformed people, which had not been verified. In addition, he
noted that the number of requests alone for FBI records by congressional
committees would have made compliance impracticable, particularly since many
of the requests were comprehensive in character.
The opinion of the Attorney General was in accord with the conclusions which
had been reached by a long line of predecessors, and with the position taken by
Presidents since Washington’s Administration. He concluded by stating that the
exercise of this discretion in the Executive Branch had been upheld and respected
by the judiciary.
12. 1944
The House Select Committee to Investigate the Federal Communications
Commission subpoenaed the Director of the Federal Bureau of Investigation to
testify concerning fingerprint records, activities at Pearl Harbor, and also to
identify a certain document which he was alleged to have received in the course
of his duties. The Select Committee had been empowered by a House resolution
to investigate whether the Commission had been acting in accordance with law
and the public interest.24 The Director refused to give testimony regarding the
letter that he was alleged to have received, or to exhibit a copy of the President’s
directive requiring him, in the interest of national security, to refrain from
testifying or disclosing the contents of the Bureau’s files. Attorney General
Biddle wrote a letter to the Committee, dated January 22, 1944, informing the
Committee that communications between the President and the heads of depart­
23 Id. al 46. See also Dec. 14, 1982, Memorandum, supra.
24 See Rogers M emorandum, supra, at 97
789
ments were privileged and not subject to inquiry by congressional committees,
stating:
I have carefully considered the request . . . that I produce
before your committee a copy of the document that I received
from the President directing Mr. Hoover not to testify before your
committee about certain transactions between this Department
and the Federal Communications Commission.
It is my view that as a matter of law and of long-established
constitutional practice, communications between the President
and the Attorney General are confidential and privileged and not
subject to inquiry by a committee of one of the Houses of
Congress. In this instance, it seems to me that the privilege should
not be waived; to do so would be to establish an unfortunate
p re c e d e n t, in co n sisten t w ith the p o sitio n taken by my
predecessors.
It could, moreover, open the door to detailed inquiries into the
confidential and privileged relationship that exists between the
President and the Attorney General, heretofore generally recog­
nized by the Congress. I must therefore respectfully decline to
produce before your committee the President’s communication.
Without waiving in any way the privilege, however, I believe that I
can inform the committee that the President’s direction states that
because the transactions relate to the internal security of the
country, it would not be in the public interest, at the present time,
for Mr. Hoover or any officer of the Department to testify about
them or to disclose any correspondence concerning them.
Furthermore, I should like to point out that a number of . . .
questions related to the methods and results of investigations
carried on by the Federal Bureau of Investigation. The Depart­
ment of Justice has consistently taken the position, long ac­
quiesced in by the Congress, that it is not in the public interest to
have these matters publicly disclosed. Even in the absence of
instructions from the President, therefore, I should have directed
Mr. Hoover to refuse to answer these questions.1251
13. 1947
During the course of an investigation by a subcommittee of the House Com­
mittee on Expenditures in the Executive Departments into the operation of the
United States Board of Parole in 1947-48, the subcommittee, on September 30,
1947, requested Director Hoover of the Federal Bureau of Investigation, to have a
representative of the FBI bring to a hearing the investigative files of four parolees
25 See Study and Investigation c f the Federal Communications Commission: Hearings on H . Res 21 Before the
H ouse Select Comm, to Investigate the Federal Communications Commission, 78th Cong , 1st Sess. 2338-39
(1944) See also Dec. 14, 1982, Memorandum, supra
790
alleged to be members of the “ Capone Mob.” Hoover replied that he was
forwarding the request to Attorney General Clark to whom the subcommittee
reiterated the request.26 Assistant Attorney General Ford replied on the Attorney
General’s behalf that the Department would contact the subcommittee after the
completion of the FBI investigation. A further reply, by Acting Attorney General
Perlman, dated October 15, 1947, stated:
The substance of your letter is a request that the reports of
investigating agencies of the executive departments be made
available to your committee. Such reports have long been held to
be of a confidential nature.
. . . I feel certain that you can readily see the reasons why we
cannot turn over to your committee [the] investigative reports or
files you seek . . . ,l27]
The subcommittee then sought to reassure the Department that it did not intend at
that time to seek “ any information as to the confidential sources from which the
information was obtained,” to which the Department replied that the investiga­
tion was not yet complete and referred to the previous letters, again refusing the
files. However, the Department did offer summaries of reports and information
contained in the file for the subcommittee’s confidential use.28
14. 1948
The Investigations Subcommittee of the Committee on Expenditures in the
Executive Departments requested Attorney General Clark, by letter of August 2,
1948, to furnish the Subcommittee with “ any letters, memoranda, or other
written notice which the Department of Justice may have furnished to any other
departm ents, agencies, bureaus, or individuals in Government concerning
William W. Remington . . . ” The letter stated that the Subcommittee desired
the information in order to determine the extent to which other departments
within the Executive Branch had been notified of “ the possible espionage
activities of Remington” so that the Subcommittee would then “ be in a position
to inquire as to who was responsible for allowing Remington to hold three
important jobs of a highly confidential nature, at the same time [that the
Department was] conducting an investigation of him.” 29
26 The Seventeenth Intermediate Report of the Committee on Expenditures in the Executive Departments
reported on August 6, 1948, that:
The FBI refused to give the committee any information, assigning as its reason that it was an
agency of the Department of Justice and that, acting under instructions from the Department, it could
not and would not comply with the request
A request to Tom Clark, head of the Department of Justice, and to the Department of Justice met
with a refusal to furnish such information No reason was given other than that the information was
confidential and that the refusal was in compliance with an Executive order issued by President
Thiman, which was based on a long-established policy of the executive departments dating back to
the administration of President Washington.
H.R. Rep. No. 2441. 80th Cong., 2d Sess 7 (1948)
27 Investigation as to the Manner in Which the United States Board c f Parole is Operating and as to Whether There
is a N ecessityfor a Change m Either the Procedure or Basic Law: Hearings Before a Subcomm. c f the House C om m .
on Expenditures m the Executive Departments, 80th Cong., 2d Sess 595 (1948).
a id. at 594-96. See also H.R. Rep No 2441, 80th Cong , 2d Sess 7, 21-23 (1948)
29 Export Policy and Loyalty: Hearings on S Res. 189 Before the Investigations Subcomm. c f the Senate Comm,
on Expenditures in the Executive Departments, 80th Cong , 2d Sess. 383 (1948).
791
In his reply of August 5, Attorney General Clark refused to supply the material
on the ground that it fell within President Truman’s directive of March 13,1948,30
and stated that the requestihad been referred to the Office of the President. A
subsequent committee report states that, in addition to the Truman directive, the
Attorney General’s refusal to supply the information was based on the need to
protect . . . information relative to procedures employed by the Department of
Justice in the handling of alleged espionage within the Government.” 31
15. 1949
On June I, 1949, Attorney General Clark failed to comply with a subpoena
served upon him by the Subcommittee on Immigration and Naturalization of the
Senate Committee on the Judiciary that directed him to produce the files of the
Department of Justice in the cases of 168 persons named in the subpoena. In
refusing to comply, the Attorney General stated that the persons listed were, for
the most part, officials or employees of the United Nations or of foreign
governments; that the treatment of persons in that category implicated both
sensitive foreign relations considerations and the maintenance of internal se­
curity; and that he had conferred with the Director of the FBI and had concluded
‘“ that it is not in the public interest that [this information] be produced.’” The
Attorney General further noted that it had been reported in the press that the
Subcommittee Chairman intended to “ ‘release certain confidential information
contained in [his] files relating to internal security matters.’” The Attorney
General urged that before “ ‘such information is made public the matter be
cleared with this Department.’ ” The letter closed by noting that the President had
directed the Attorney General to decline to provide this information.32
16. 1950
On February 22,1950, the Senate adopted Resolution 231 directing a subcom­
mittee of the Senate Committee on Foreign Relations, chaired by Senator
Tydings, to investigate allegations of disloyalty among Department of State
employees, and “ ‘to procure, by subpoena, and examine the complete loyalty
and employment files and records of all the Government employees in the
Department of State and such other agencies against whom charges have been
heard.’ ”33
On March 17, 1950, Attorney General McGrath prepared a memorandum
prompted by the Department o f State’s request for permission to reveal to the
subcommittee the contents of the investigative files concerning those employees
30id. at 384. The Mar. 13, 1948, directive issued by President Truman provided for the confidentiality of all
loyalty files by requiring that all requests for such files from sources outside the Executive Branch be referred to the
Office o f the President for such responses as th e President might determine to be appropriate. 13 Fed Reg. 1359
(1948). See The Public ftp e rs of the Presidents, Harry S Truman, 1948, at 228; Dec. 14, 1982, Memorandum.
31 S Rep. No. 1775, 80th Cong , 2d Sess. 20 (1948).
32 Department of Justice Study, supra, at 12-13.
33 See Department of Justice Study, supra, at 16. Although this episode is covered in the December 14, 1982,
M emorandum , portions of it are recounted in this memorandum to highlight the roles of the Attorney General and
the Director of the FBI
792
against whom Senator McCarthy had made allegations of disloyalty, advising
President Truman that, in light of the President’s unquestioned authority to
withhold the files, the only question was whether, as a matter of policy, he
deemed it advisable to make the files available. Referring to the President’s
March 13, 1948, directive,34 Attorney General McGrath advised the President
that unless there were special reasons which compelled a different course, the
confidential nature of the loyalty files should be preserved, and that to do
otherwise would create an unfortunate precedent. Attorney General McGrath did
suggest, however, that the President could attempt to accommodate the subcom­
mittee’s interests by transmitting the files to the Loyalty Review Board with a
request that the Board review the files and report its findings with respect to each
person against whom charges had been brought, in the light of the factual
evidence which had been adduced, primarily by Senator McCarthy, before the
subcommittee.35
On March 27,1950, the Director of the Federal Bureau of Investigation and the
Attorney General appeared before the subcommittee to give their respective
views. The Director’s statement dealt with practical objections, while the At­
torney General’s statement dealt with the historic objections voiced by past
Presidents to the disclosure of investigative files. The Attorney General pointed
out that since the Department of State loyalty files chiefly involved investigations
that had been conducted by the Federal Bureau of Investigation, the “loyalty files,
therefore, are for all practical purposes FBI files.”36 The Director’s statement
stressed the FBI’s obligation to protect not only the rights, lives, and property of
American citizens, but also to protect the confidential relationship of citizens
who serve their country by providing information essential to the national
security:
FBI reports set forth all details secured from a witness. If those
details were disclosed, they could become subject to misin­
terpretation, they could be quoted out of context, or they could be
used to thwart truth, distort half truths, and misrepresent facts.
The raw material, the allegations, the details of associations and
compilation of information in FBI files must be considered as a
whole. They are of value to an investigator in the discharge of his
duty. These files were never intended to be used in any other
manner and the public interest would not be served by the dis­
closure of their contents.
In taking this stand, I want to reiterate— a principle is involved.
I would take this same stand before the Attorney General, as I
already have, or before any other body. The fact that I have great
respect, confidence, and a desire to be of assistance to a commit­
34 See n.30, supra.
35 Id. at 13-14.
36 Id. at 15, citing to the Attorney General’s statement before the Subcommittee of the Senate Committee on
Foreign Relations at 9 (Mar. 27, 1950).
793
tee of distinguished Senators, however, in no way detracts from a
principle. I say this because I do not want any misinterpretation of
my remarks, nor do 1want it said that this and other committees of
Congress do not have m y respect and confidence. I would be
derelict to my duty, untrue to my conscience, and unworthy of my
trust to take any other position.1371
On March 28, 1950, the subcommittee served subpoenas on the Secretary of
State, the Attorney General, and the Chairman of the Civil Service Commission
demanding production of the files. After reference of the subpoenas to the
President pursuant to the March 13, 1948, directive, President Truman directed
the officials not to comply.38
President Truman also wrote to Senator Tydings of the subcommittee on March
28 and reiterated Director Hoover’s objections to public disclosure of the FBI
reports, stating that the single most important factor in an effective and just
loyalty program was the preservation of all files in the strictest confidence, from
the points of view of informants as well as innocent individuals. The President
closed his letter by stating that in order to give the most thorough and complete
investigation of the charges that the subcommittee was considering, he had asked
the Chairman of the Loyalty Review Board to have the Board arrange for a
detailed review of all cases with regard to which charges of disloyalty had been
made. The President further stated that he had asked the Board, after such review,
to give him a full and complete report on each case.39
Following these events, it appeared that the files had already been disclosed. In
1947, prior to the March 13, 1948, Truman directive, the House Committee on
Appropriations had conducted an investigation of the Department of State and
had been furnished with the files that were presently sought by the Senate Foreign
Relations Subcom mittee. In light of this newly discovered fact, President
Truman, on May 4, 1950, agreed to make the loyalty files available for review by
the subcommittee “ on the theory that to do so would not establish a precedent for
subsequent exceptions in violation of [the] March 13, 1948, directive.” 40 The
conditions under which the subcommittee was permitted to see the files included
the limitations that no individual cases by name would be discussed outside of the
room in the White House where the files were to be viewed, no notes were to be
taken from the White House, and no technical assistance by career FBI personnel
would be provided to assist in the interpretation of notes found in the files.41
17. 1952
On March 4 ,1 9 5 2 , Assistant Attorney General Duggan wrote to the Chairman
of the Special Subcommittee o f the House Committee on the Judiciary, in
response to a letter dated February 22, 1952, requesting information from the
37 Department o f Justice Study, supra, at 16.
38 The Public lepers of the Presidents, H arry S Truman, 1950, at 240
39 Department o f Justice Study, supra, at 15.
40 S. Rep. No. 2108, 81st C ong., 2d Sess. 9 (1 9 5 0 )
41 Department o f Justice Study, supra, at 32.
794
Attorney General “ ‘for the purpose of conducting an inquiry into the administra­
tion of the Department of Justice.’ ” The Subcommittee sought a list of all cases
that had been referred to the Department of Justice or United States Attorneys,
for either criminal or civil action, by any governmental department or agency
within the last six years. The information sought was:
(a) A list of all cases in which action had been declined by the Department
of Justice, including the reasons for refusal to act;
(b) A statement showing all subsequent actions taken by the Department
of Justice in cases in which the Department had returned a case to a
government department or agency for further information; and
(c) A list of cases in which a referral to the Department of Justice had been
pending for m ore than one year, other than the two categories
mentioned.42
Mr. Duggan responded that the request was outside the scope of the resolution,
since it did not seek information based upon specific complaints “ supported by
credible evidence,” and that the request would impose an intolerable burden
upon the Department, since it would require an examination of approximately
500,000 cases and thus would effectively paralyze “ the Department’s efforts to
discharge its current duties.” Mr. Duggan added that the Department was
prepared to honor all reasonable requests with respect to cases in which specific
allegations were supported by credible evidence, unless the public interest
required otherwise.
On March 5, 1952, Mr. Duggan advised 54 executive agencies, boards, and
commissions that he had advised the Subcommittee of his decision not to comply
with its request, citing as his reason the fact that “ it constitutes what Mr. Justice
Holmes has characterized as a ‘fishing expedition for the chance that something
discreditable might turn up.’”43
18. 1952
On April 22, 1952, Acting Attorney General Perlman wrote the Chief Counsel
of the House Subcommittee to Investigate the Department of Justice, in response
to five letters sent by the Subcommittee in April 1952 for inspection of Depart­
ment of Justice files, reiterating the agreement which he and the Subcommittee
had reached regarding the production of additional Department of Justice files in
aid of the Subcom m ittee’s investigation. That agreement provided for the
following:
1. Requests involving open cases, either civil or criminal, would not be
honored; however, a written or oral status report on the cases would be
furnished.
42 See Department of Justice Study, supra, at 44-46, The Public F^pers of the Presidents, Harry S Truman,
1952-53, at 199. President Truman’s response lo this request is reported in the December 14, 1982, Memorandum,
supra
43 Department of Justice Study, supra, at 46
795
2. As to closed cases— cases in which the Department had completed
prosecution or consideration without suit—the files would be made
available.
3. As to all files made available, Mr. Perlman emphasized that the
Department would “ withhold from inspection all FBI reports and con­
fidential information, reports of any other investigative agencies, and any
other documents containing the names of informers or other data, the
disclosure of which would be detrimental to the public interest.”
4. Personnel files would never be disclosed, except in cases where
Senate com m ittees w ere considering nom inations made by the
President.44
19. 1954
In response to a request by Republican members of the Special Subcommittee
on Investigations of the Senate Committee on Government Operations during the
Army-McCarthy hearings for more detailed information about a high-level
meeting at the White House to which he had referred in his testimony before the
full Subcommittee, the counsel to the Army stated that he had been instructed not
to testify as to the interchange of views among the officials present at that
meeting. In response to a request to submit written authorization for the position
that he had taken, the counsel to the Army submitted the May 17, 1954,
Eisenhower letter45 to which was attached a memorandum from Attorney General
Brownell. Attorney General Brownell’s memorandum listed historical examples
of instances in which Presidents had withheld information from Congress and
concluded that:
Thus, you can see that the Presidents of the United States have
withheld information of executive departments or agencies when­
ever it was found that the information sought was confidential or
that its disclosure would be incompatible with the public interest
or jeopardize the safety o f the Nation. The courts, too, have held
that the question whether the production of the papers was con­
trary 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.1461
20. 1955-1956
In a letter from Chairman O’Mahoney to Chairman Hennings, whose subcom­
mittee was separately conducting a study of Executive Branch refusals to provide
information to Senate committees,47 Chairman O ’Mahoney wrote:
44 Id. at 46-47
45 Reprinted in Dec 14, 1982, Memorandum.
46 Special Senate Investigation on Charges and Countercharges Involving: Secretary c f the Army Robert T.
Stevens, et a l.: H earings on S Res. 189 Before the Special Subcomm. on Investigations c f the Senate Comm, on
G overnment Operations, 83d Cong , 2d Sess. 1269-75 (1954).
47 See generally 1958 Hearings, supra
796
The Department of Justice has declined to furnish to this
[Subcommittee [on Antitrust and Monopoly] information in its
files which was furnished by companies in connection with its
voluntary merger clearance program on the ground that informa­
tion so supplied is confidential.
The Department of Justice has consistently refused to permit
the [Subcom m ittee to examine grand-jury transcripts] and docu­
ments obtained pursuant to grand-jury subpena[es] which have
not become matters of public record. In accordance with long­
standing policy, the Department has refused to permit examina­
tion of Federal Bureau of Investigation reports.1481
21. 1955
On June 15, 1955, Attorney General Brownell sent an opinion to the President
advising him that the Federal Communications Commission could, in its discre­
tion, provide the Senate Committee on Interstate and Foreign Commerce infor­
mation that the Commission had received on a confidential basis from television
stations and networks.49 However, the Attorney General advised, the authoriza­
tion to disclose the information did not constitute a requirement that the Commis­
sion divulge to the Committee confidential information, and, that the Commis­
sion was free to withhold that information in its discretion.
22. 1955
Within the context of the July 1955 hearings on the Dixon-Yates Contract
before the Subcommittee on Antitrust and Monopoly of the Senate Committee on
the Judiciary,50 Attorney General Brownell advised the Chairman of the Se­
curities and Exchange Commission (SEC) that:
Any communication within the SEC among Commissioners or
the Commissioners and employees is privileged and need not be
disclosed outside of the Agency. Likewise, any communication
from others of the executive branch to members of the Commis­
sion or its employees with respect to administrative matters comes
within the purview of the President’s letter of May 17, 1954.
You inquired specifically whether when a proceeding is pend­
ing before the Commission a request to the Commission for an
adjournment by someone in the executive branch outside the
Commission is likewise covered. Because such a proceeding is
quasi-judicial in nature, it is my opinion that such a request would
not be covered by the President’s letter. . . . Once the proceeding
is no longer pending before the Commission such information
48 Id. at 352.
49 41 Op. Att’y Gen. 221 (1955)
50 See generally Kramer & M arcuse, supra, 29 Geo. Wash. Rev. at 689, Dec. 14, 1982, Memorandum, supra.
797
should, upon request, be made available by the Commission to an
appropriate congressional committee.1511
However, when subsequently questioned about a telephone conversation that he
had had with Presidential Assistant Adams, the Chairman of the SEC testified as
to the existence of the conversation but, on the advice of Attorney General
Brownell and of Special Counsel to the President Morgan, he refused to divulge
the matters discussed during the conversation on the ground that they involved
privileged information.52
23. 1956
On May 29, 1956, during the course of its investigations into the Antitrust
Consent Decree Program at the Department of Justice, the Antitrust Subcommit­
tee of the House Committee on the Judiciary requested the Department to furnish
it with “ all files in the Department of Justice relating to the negotiations for, and
signing of, a consent decree” in the A.T.&T. case.53 The Department of Justice
replied on July 13, 1956:
The staff of the Antitrust Division has examined in detail this
Department’s files relating to the negotiations and formulation of
that decree. The bulk of these documents fall[s] in[to] two catego­
ries: first, material submitted by defendants regarding their opera­
tions; and, second, memoranda by various members of the Anti­
trust Division concerning negotiation conferences as well as
decree provisions.
Documents relating to defendants’ operations . . . were pro­
duced, not pursuant to interrogatories or court order, but rather in
the course of good-faith negotiation of a consent settlement.
Some touched on confidential aspects of the defendants’ opera­
tions. Were they made available to your subcommittee, this
Department would violate the confidential nature of settlement
negotiations and, in the process, discourage defendants, present
and future, from entering into such negotiations.
In any event, . . . Department policy does not permit dis­
closure of staff memoranda or recommendations. As I indicated,
the decision whether or not to settle, and if so on what terms, may
involve difficult judgments. Reaching these judgments, I am sure
you appreciate that men equally devoted to vigorous antitrust
enforcement may well differ. To [ensure that] intelligent final
decision[s are made] therefore, full and open discussion is re­
51 1958 Hearings, supra, at 445-46, citing The New York Times, July 15, 1955, at 1
52 See 1958 H earings, supra, at 446
53 K ramer & M arcuse, supra, 29 Geo. Wash. L Rev. at 887. See Consent Decree Program c f the Department c f
Justice: H earings Before the Antitrust Subcomm. c f the H ouse Comm, on the Judiciary, 85th Cong , 1st and 2d
Sess., (Pts I & II) (1957-58); Report on H. R . Res 27 of the Antitrust Subcomm. of the House Comm, on the
Judiciary, 86th C ong., 1st Sess. (1959)
798
quired frequently, not only by all members of the staff but also by
the staff with the Assistant Attorney General. This process of
interchange may endure over some time. And, as a result of
discussion, any participant must feel free to alter his views as the
merits of argument dictate. This essential process of full and
flexible exchange might be seriously endangered were staff mem­
bers hampered by the knowledge they might at some later date be
forced to explain before Congress intermediate positions taken.
The responsibility for explaining such decisions thus rests upon
the Assistant Attorney General and ultimately upon the Attorney
General.1541
However, the Subcommittee report indicates that the Subcommittee was able to
get much of the information that it had requested voluntarily from A.T.&T., the
Department of Defense, and the Federal Communications Commission.55
24. 1957
On April 18, 1957, the Antitrust Subcommittee of the House Committee on
the Judiciary, again investigating the Department’s enforcement efforts in the
Consent Decree Program, sought correspondence between the Department and
some of the oil pipelines, departmental drafts, and intradepartmental memoran­
da, including a factual summary of the results of an FBI investigation into
compliance with the oil pipeline consent decree. On April 22, 1957, the Depart­
ment responded that the documents would not be turned over to the Subcommit­
tee because they
reflect almost completely either staff recommendations or dif­
ferences in view. Should we decide some court action is called for,
releasing those documents . . . could seriously prejudice any
resulting litigation. Immediately clear is the disadvantage that
would stem from revealing differences in staff views or inves­
tigative reports that could form the basis of any action in court.1561
On July 12, 1957, the Subcommittee requested copies of all written interpreta­
tions, and an explanatory statement of each official oral interpretation that had
been made, of the various provisions of the judgment, as well as a statement that
would summarize the factual results of the FBI investigations which had been
instituted to determine compliance with the consent decree. The Department
again declined, taking the position that:
The Department is currently considering possible enforcement
steps which involve these interpretations. Many of these so-called
interpretations were little more than expressions of opinions as to
54 Id at 887-88
55 Id at 891.
56 Id at 884.
799
the position that the Department might take if and when certain
events were to occur. All were confined solely to specific individ­
uals and at times unique problems. And the Department might
well urge that these prior interpretations had no bearing on any
particular enforcement move— contemplated now or in the fu­
ture. Accordingly, to disclose such interpretations now, I believe,
might complicate enforcement of the above judgment.1571
The FBI summaries were also refused, on the ground that even the summaries
would divulge information given to agents in confidence.
During the subsequent hearings on the same subject, Assistant Attorney
General Hansen further explained the Department’s refusal to provide the Sub­
committee with the requested information, noting that because enforcement
proceedings were pending, “ we should prejudice the possible interests of the
Government by disclosing opinions that might be read out of context” and “ that
such disclosure . . . would be exceedingly embarrassing.” 58 Congressman Keat­
ing, a member of the Subcommittee, supported the Assistant Attorney General,
agreeing that opponents’ counsel would be most interested in learning which
points of its case the government considered strong and of which aspects it was
less confident.59
Chairman Celler then told the Assistant Attorney General that some of the
information sought by the Subcommitee had already been made available to it
from the files of various defendants. In response, the Assistant Attorney General
explained that some letters had been sent to defendants containing staff recom­
mendations but that such information was not intended to be shared among
defendants, but rather to be used exclusively by the addressees themselves.60
25. 1960
On December 19, 1960, Attorney General William P. Rogers issued an
opinion to the President advising him that a construction of a provision of the
Mutual Security Act of 1954 that would require funds for the Office of the
Inspector General and Comptroller to be cut off for failure to supply documents
upon the request of appropriate congressional committees and subcommittees,
notwithstanding a certification by the President that he had forbidden the produc­
tion of the requested documents for certain specified reasons, would render the
proviso unconstitutional as a violation of the separation of powers:
It is axiomatic that no democratic society can exist unless each
of its branches makes every effort to disclose to the citizenry and
the other branches of the Government those facts which are
relevant to an understanding of the problems the society faces, the
steps which have been taken to meet them, and the operations of
57 Id. at 885.
58 Id
59 Id.
“ Id. at 885-86.
800
the branch involved. Public policy therefore requires disclosure
wherever possible. Nevertheless, under certain circumstances
disclosure must be withheld in the public interest, and the princi­
ples expressed above may be summed up and applied as follows:
First, it is the constitutional duty and right of the President and
those officials acting pursuant to his instructions, to withhold
information of the executive branch from Congress whenever the
President determines that it is not in the public interest to disclose
such information.
Second, under the constitutional doctrine of separation of
powers Congress may not directly encroach upon this authority
confided to the President.
Third, the Constitution does not permit any indirect encroach­
ment by Congress upon this authority of the President through
resort to conditions attached to appropriations such as are con­
tended to be contained in section 553A(d) of the act.
In my opinion, this condition on the use of appropriations . . .
[would] not only be plainly invalid, but if adopted in this case
would also constitute a most dangerous precedent to the Office of
the President, and would gravely impair the proper functioning
and administration of the executive branch of the Government.16'1
26. 1969
During a House Committee investigation into the My Lai massacre, Con­
gressman Rivers requested “ all reports, affidavits, photographs and all other
pertinent documents, and material which may have any probitive value” con­
cerning the Army’s ongoing investigation into the incident. Thomas Kauper,
Deputy Assistant Attorney General, Office of Legal Counsel, gave the Depart­
ment of Justice’s approval of a proposed letter to Congressman Rivers from
Secretary of the Army Resor, which explained why this material could not be
disclosed. Mr. Kauper stated as follows:
Over a number of years, a number of reasons have been
advanced for the traditional refusal of the Executive to supply
Congress with information from open investigational files. Most
important, the Executive cannot effectively investigate if Con­
gress is, in a sense, a partner in the investigation. If a con­
gressional committee is fully apprised of all details of an inves­
tigation as the investigation proceeds, there is a substantial danger
that congressional pressure will influence the course of the inves­
tigation. The My Lai investigations clearly represent such a
danger.1621
61 41 Op. A tt’y Gen 507, 529-30 (1960) (footnote omitted).
62 Memorandum for Honorable Edward L. Morgan, Deputy Counsel to the President, from Thomas E. Kauper,
Deputy Assistant Attorney General, Office of Legal Counsel (Dec 19, 1969), at 2.
801
27. 1970
On November 21,1970, Attorney General Mitchell, with the specific approval
of the President, refused to release certain investigative files of the FBI to the
Subcommittee on Intergovernmental Relations of the House Committee on
Governmental Relations that contained information regarding certain scientists
nominated by the President to serve on advisory boards of the Department of
Health, Education and Welfare.63
28. 1975
On Januapf 31, 1976, Chairwoman Abzug of the Subcommittee on Govern­
ment Information and Individual kights of the House Committee on Government
Operations requested interview statements and investigative reports concerning
domestic intelligence matters from the open files of the Federal Bureau of
Investigation. On February 26, 1976, Deputy Attorney General Harold R. Tyler,
Jr., wrote Chairwoman Abzug, explaining why these documents could not be
disclosed to the Subcommittee:
First, the Executive Branch must make a strong effort to protect
innocent individuals. Disclosure of investigative files and reports,
which often contain hearsay and inaccurate information, could do
irreparable damage to the reputation of innocent individuals.
$ * Jfc Jfc *
Second, if the Department changes its policy and discloses
investigative information, we could do serious damage to the
Department’s ability to prosecute prospective defendants and to
the FBI’s ability to detect and investigate violations of federal
criminal laws.
$ ^ $
Third, the detection, and investigation of violations of federal
criminal laws and the prosecution of individuals alleged to have
committed such violations are Executive functions. The Attorney
General, serving as the President’s chief law enforcement officer,
is under the same constitutional duty as the President to “ take
care [that] the laws be faithfully executed.” U.S. Const. Art. II,
§ 3. That duty encompasses the responsibility to maintain the
Separation of Powers so basic to our government.
29. 1979
In response to a request from Chairman Baucus of the Subcommittee on
Limitations of Contracted and Delegated Authority of the Senate Committee on
the Judiciary for a substantial number of documents from FBI files and other files
63 M emorandum for Chairman Moorhead, Subcommittee on Foreign Operations and Government Information of
the House Committee on G overnment Operations, from Deputy Assistant Attorney General Lawton, Office of Legal
Counsel (Apr. 25, 1973) See also Dec. 14, 1982, Memorandum, supra.
802
located within the Department, to assist the Subcommittee in its oversight
investigation into certain sales by the General Services Administration, Deputy
Assistant Attorney General Heckman stated:
The Department has agreed to give the Subcommittee staff
limited access to these internal memoranda [2 closed files on
titanium and lithium sales proposed by the General Services
Administration]. Our policy with regard to providing Con­
gressional Committees with analytical, strategy or deliberative
portions of memorandum[s] related to these investigations is to
make them available at the Department for review and analysis,
including notetaking. The substantive information in these mem­
oranda may be used for Subcommittee purposes. The memoranda
themselves, however, will be retained in the Department and
copies will not be provided.1641
The July 27, 1979, letter from Chairman Baucus to Attorney General Civiletti
refining the Subcommittee’s request for documents indicated that its earlier
requests for material from open investigative files on term contractors was denied
“ because they are directly related to active investigations and prosecutions.” 65
30. 1980
On March 14, 1980, Chairman Edwards of the Subcommittee on Civil and
Constitutional Rights of the House Committee on the Judiciary requested from
Attorney General Civiletti a copy of the report prepared by the Rowe Task Force
concerning the involvement of an FBI informant in the murder of Mrs. Viola
Liuzzo in Alabama. On March 31, 1980, Michael Shaheen, Jr., Counsel, Office
of Professional Responsibility, Department of Justice, wrote Chairman Edwards
as follows:
The [Rowe] report is still being reviewed within the Depart­
ment and several issues affecting its release outside the Depart­
ment are still being studied. Certain promises of confidentiality
were necessary before some individuals would cooperate with
Task Force members and those promises must be honored. More­
over, the State of Alabama’s indictment of Mr. Rowe for the
murder of Mrs. Viola Liuzzo is still pending and it is our opinion
that any release of the report in its current form could seriously
prejudice both Alabama’s and Mr. Rowe’s right to a fair trial.
For these and other related reasons, it is not possible for the
Department to furnish to you a copy of the report in its present
form at this tim e.1661
64 Aug 20, 1979, letter from Deputy Assistant Attorney General Heckman to Chairman Baucus
63 July 27, 1979, letter from Chairman Baucus to Attorney General Civiletti.
66 Cf. Playboy Enterprises, Inc. v D ep't c f Justice, 677 F.2d 931 (D C Cir 1982) (upholding the Department’s
claim ofprivilege pursuant toareq u estu n d erth e Freedom of Information A c t,5 U S C § 552, for those parts of the
Rowe Report which fell within the A ct’s exemption for “ investigatory records compiled for law enforcement
purposes,” § 552(b)(7), but rejecting the Department’s claim that the whole Report was protected from disclosure
by Exemption 5 ’s “ deliberative process” privilege, § 552(b)(5)).
803
31. 1982
On November 5, 1982, Assistant Attorney General Olson advised the General
Counsel to the Department of Transportation that a provision of the Tax Equity
and Fiscal Responsibility Act of 1982, which requires the Administrator of the
Federal Aviation Administration to transmit certain budget information and
legislative recommendations to Congress at the same time that they are transmit­
ted to the Secretary of Transportation, the President, or the Office of Management
and Budget would, if interpreted literally, violate the constitutional principle of
separation of powers.67
II.
Refusals by Independent Agencies and Executive Departments Other
Than the Department of Justice to Disclose Information to Congress
Concerning Law Enforcement, Security, and Personnel Investigations68
This Section II lists some of the many instances wherein independent agency
heads and sub-presidential executive officers (outside the Department of Justice)
have declined to provide sensitive investigative information requested by Con­
gress. This Section does not describe those instances in which Presidents person­
ally have ordered the withholding of investigative information;69 nor does it
discuss those examples of Department of Justice withholdings of investigative
information enumerated in Section I of this memorandum.70
It should be noted that, like Section I, this Section relies heavily upon
published studies which discuss particular executive agencies’ responses to
congressional requests for information during certain Administrations. Because
these studies focus upon congressional-executive relationships at particular
times in our history, they cannot be used to develop comprehensive statistics on,
or statistically representative examples of, executive withholdings of information
generally.71 It is possible, however, to infer from these studies that similar
episodes of withholding of sensitive information have occurred throughout
67 On Feb 21, 1977, Assistant Attorney G eneral Harmon, Office o f Legal Counsel, advised the Attorney General
that a bill that would require inspectors general in the executive departments to report directly lo Congress
information regarding their investigations without prior clearance or approval by the head of the department
involved would be unconstitutional. That memorandum stated. “ The constitutional principle of executive pnvilege
must be preserved. The provision in the bill requiring reports to Congress of all 'flagrant abuses or deficiencies’
within 7 days after discovery would nsk jeopardizing ongoing investigations by the agency and the Justice
D epartm ent, many o f which would be subject to a claim of privilege.” 1 Op. O.L.C 16, 18-19 (1977).
68 Congressional requests for information from sub-presidential executive officers have a long history. A number
of such requests occurring in the 19th century are discussed in 3 Hinds' Precedents, supra. §§ 1856-1910. See,
e .g ., H .R Rep. No. 194, 24th Cong , 2d Sess. 4, 6 -7 (1837), H ouse Journal, 16th Cong , 2d Sess. 67, 70 (1820),
House Journal, 14th C ong., IstS ess. 92, 201, 2 06,262(1815); House Journal, 9th Cong., 2d Sess. 533-36(1807);
House Journal, 4th Cong , 2d Sess. 634(1796). See also Act of Sept. 2, 1789, ch. 12, § 2, 1 Stat 65 (Secretary of
Treasury m ust provide certain information to C ongress upon request). It is unclear from these sources, however, how
frequently such officers declined to comply w ith congressional requests.
69 See, e.g , Dec. 14, 1982, Memorandum, supra, at paras. 4 (President Monroe); 5 (President Jackson); 6
(President Tyler); 9 (President Buchanan); 10 (President Lincoln); 11 (President Johnson); 13 (President Cleveland);
17 (President Theodore Roosevelt); 18 (President Coolidge); 20 (President Franklin Roosevelt); 21, C (President
Truman), 25 (President Nixon).
70 See, e .g .. Section I, paras. 1 (also discussed in December 14, 1982, Memorandum, supra, at para 13); 2-6,
&-16, 18, 20, 23, 24, 2 6-30
71 See notes 6 -8 , supra.
804
American history. The following incidents have been selected only to provide
some illustration of the well-established practice wherein Executive officers have
protected their sensitive investigative files from disclosure to Congress.
1. 1846-47
On December 8, 1846, the House of Representatives by resolution directed the
Secretary of the Treasury to supply it with information concerning secret inspec­
tors who had been hired by the Department of the Treasury for customs enforce­
ment. On February 8, 1847, the Secretary declined to reveal the names of the
secret agents and inspectors, deeming it “ inexpedient” to do so.72 During a
subsequent House debate on a further resolution to require the information from
the Secretary, it was pointed out by Rep. Bayly that “ [t]he intention in employing
[the agents] is to prevent smuggling; but if their names were made public, the
very design of their employment would be frustrated.” 73 The debate concluded
with no further attempt to obtain the information.
2. 1861
On December 2, 1861, the House adopted a resolution requesting the Secre­
tary of War, “ if not incompatible with the public interest,” to report to the House
what measures were taken to investigate “ who is responsible for the disastrous
movement of our troops at Balls Bluff.” 74 The Secretary of War declined to
comply in a letter dated December 12, 1861.75 On January 6, 1862, the House
responded with a resolution “ that the [Secretary’s] answer is not responsive nor
satisfactory to the House, and that the Secretary be directed to return a further
answer.” 1761
On January 10, 1862, the Secretary responded to the second resolution of the
House, stating, “ measures have been taken to ascertain who is responsible for
the disastrous movement of our troops at Balls Bluff, but . . . it is not deemed
compatible with the public interest to make known those measures at the present
time.” 1771
3. 1932
In responding to a request from the House of Representatives for all documents
pertaining to an investigation of the importation of ammonium sulfate, the
Secretary of the Treasury stated:
72 17 Cong. Globe, 29th Cong., 2d Sess. 400 (1847); see id. at 355.
11Id. at 401.
74 3 Hinds’ Precedents, supra, at § 1886. Although the Battle of Balls Bluff on Oct. 21, 1861, represented a
militarily inconsequential defeat for Union troops early in the Civil War, it aroused Radical Republicans in Congress
against General-in-Chief George B. McClellan, a Democrat. McClellan subsequently arrested General C.P. Stone
for responsibility in the defeat, but no formal charges were filed against him. and General Stone was released within
six months The Battle's chief military effect was to delay Union Army movements against Richmond, Virginia. See
generally 1 Dictionary c f American History 150 (J. Adams ed. 1940).
73 3 Hinds' Precedents, supra, at § 1891
76 Id. at § 1886.
77 Id
805
In passing the antidumping act the Congress decided to provide
that the initial decisions as to the existence of dumping should be
made by the Secretary o f the Treasury in accordance with admin­
istrative procedure. It has been the practice of the department in
acting under this statute to treat all information furnished by
interested persons as confidential and not to disclose it unless such
persons consent to the disclosure. This practice is founded upon
the necessity for the department to obtain complete information
concerning manufacturers’ and importers’ business transactions
which it would be practically impossible to obtain if those fur­
nishing the information did not understand it would be treated as
confidential and not divulged without their consent.
As consent has not been given to the disclosure of the informa­
tion contained in the record before the Treasury Department, I am
of the opinion that it would be incompatible with the public
interest to comply with the request contained in the resolution.1781
4. 1948
A subpoena issued by the Subcommittee on Immigration and Naturalization of
the Senate Committee on the Judiciary directed Assistant Secretary of State
Peurifoy to provide investigative files of the Department of State concerning over
160 persons named in the subpoena. In response, the Acting Secretary of State
wrote the Committee that disclosure of the materials would be contrary to the
public interest and detrimental to the conduct of the foreign relations of the
United States. Disclosure of the material, the letter stated, would hamper future
work of our diplomatic and consular missions abroad and place many sources “ in
personal jeopardy.” The Acting Secretary referred, inter alia , to the April 1941
Opinion of Attorney General Robert Jackson79 as authority for his refusal, and
stated in closing that the President had given specific approval for the denial.80
5. 1955
On October 18, 1955, the Subcommittee on Securities of the Senate Commit­
tee on Banking and Currency requested the Securities and Exchange Commis­
sion to make available to the Subcommittee the investigative files on two separate
matters. On November 10, Chairman Armstrong responded by stating, with
regard to the first matter,
this investigation is still open and in progress. It has been the
consistent policy of the Commission not to release its pending
investigation files. It has been our belief that such release might
impair the integrity of the Commission’s investigative process and
78 75 C ong. Rec. 11669 (1932). See generally Wolkinson, Demands c f Congressional Committees fo r Executive
Papers. 10 Fed. Bar J. 103, 133-34 (1949)
79 40 Op. A tt’y Gen. 45 (1941).
80 Department o f Justice Study, supra, at 11—12
806
seriously interfere with the Commission’s responsibility of appro­
priate enforcement action, in case this becomes necessary . . . .
We do not at present know what information [the Committee staff]
would desire on this subject but it may well be that we can provide
. . . sufficient material in the form of summaries or otherwise to
meet [their] needs. A similar procedure was followed this spring
in connection with information about certain investigations which
was desired by your Committee in connection with certain phases
of the stock market study with mutually satisfactory results.18"
With respect to the second investigation, the Chairman wrote,
[s]ince this matter is still in litigation, it is the Commission’s view,
with which I am sure you will agree, that it would be inappropri­
ate to disclose those files or discuss this case outside the court.
Immediately upon the termination of the litigation, we will, of
course, welcome your Committee’s review of our files.1821
6. 1955
The General Services Administration (GSA) had turned over to the Depart­
ment of Justice certain copies of insurance files of the Snare-Merritt Corporation,
a government contractor, for investigation. The GSA subsequently declined to
make these documents available to the Special Government Activities Subcom­
mittee of the House Committee on Government Operations on the ground that
once copies of the documents had been transferred to the Department of Justice
for investigation, those files became subject to the control of the latter Depart­
ment.83 A similar demand for these documents was also made upon the Depart­
ment of Justice, which refused to disclose them, apparently on the ground that
they referred to a pending investigation.84 Subsequently, however, the material
became available to the House through an undisclosed source, and this appar­
ently mooted the controversy.85
7. 1955
Rep. Bennett, of the Subcommittee on Commerce and Finance of the House
Committee on Interstate and Foreign Commerce, requested information from the
current investigative files of the Securities and Exchange Commission regarding
“ spectacular” examples of fraud, together with the names of companies and
principals involved, which the Subcommittee could “ expose” at its hearings. On
November 4, 1955, SEC Chairman Armstrong advised Rep. Bennett as follows:
81 1958 Hearings, supra, at 297.
82 Id. at 298.
K See H R Rep. No 2390, 84th Cong , 2d Sess. 16 (1956).
84 Id. at 17 (the House Report states, “ [t]he Justice Department has furnished no reasonable explanation for
denying the subcommittee access to [this information]” )
83 The New York Times, Oct 19, 1956, at 17, col. 3. See generally Kramer & Marcuse, supra, at 643—44
807
The requested information concerns material contained in the
pending investigation files lof the Commission. These are not
public at the present time. For the Commission to release such
information in our pending investigation files for use in a public
hearing of a congressional committee before our investigation has
been completed might prejudice the prosecution of the matters in
the event that the cases might later be referred to the Department
of Justice for a criminal prosecution, and might destroy the value
of any civil or administrative remedies that might be instituted by
the Commission and the parties in the particular cases. Also, if
testimony and statements elicted [sic] from witnesses on the
understanding that the Commission would treat the information as
confidential, were made public, the ability of the Commission to
obtain the cooperation of the public in our investigations of
violations of the Securities Acts would have the opposite effect
which you so correctly say is the joint objective of your commit­
tee . . . and our Commission . . . .|861
8. 1955
During an investigation by the Senate Committee on Post Office and Civil
Service concerning the administration of the Federal Employees’ Security Pro­
gram, a subpoena was issued to the Chairman of the Civil Service Commission
requesting him to produce, on July 28, 1955, “ all files, correspondence, docu­
ments, records, etc., in the possession of the Civil Service Commission” relating
to three named individuals. The Chairman provided the Committee with certain
material relating to the persons mentioned in the subpoena, but withheld portions
of the files which concerned investigative matters, as well as internal advice and
communications on official matters on the ground that such material was covered
under President Eisenhower’s letter of May 17, 1954.87
9. 1955
On March 22, 1955, a Senator requested information in the files of the Civil
Service Commission concerning certain named former federal employees. The
Senator asked specifically “whether or not there is anything in the files of the
following individuals which would be interpreted as of sufficient detrimental
nature to prohibit their reemployment by the United States Government.” The
Commission declined to make this information available, stating: “ The Commis­
sion cannot prejudice the material in a file of an individual who is not now before
it for a determination as to eligibility for employment. If and when any of the
persons mentioned in your letter again apply for Federal employment, the then
existing applicable rules and determination as to eligibility will be adhered to and
a determination made accordingly.” 88
86 7955 H earings, supra, at 416.
87 1958 Hearings, supra, at 378; Kramer & M arcuse, supra, at 652 The President’s instruction is discussed in the
D ecem ber 14, 1982, Memorandum.
88 J958 H earings, supra, at 378.
808
10. 1955
On October 13, 1955, the Chief Clerk of the House Committee on Un-
American Activities requested that he, or an investigator of the Committee, be
allowed to examine the Commission’s confidential files. The Commission denied
the request “ because in many instances the files contain information of a
confidential and investigative nature that can be made available only to those
officials in the executive branch of the government who have need for the
information in the performance of their official duties.” 89
11. through 18. 1955-1957
In response to Chairman Hennings’ request for an enumeration of refusals to
supply Congress with information, s e e note 8, su p ra , the Department of Defense
listed, in te r a lia , the following eight instances that concerned its investigative
files:90
February 8, 1955: Upon the request of Senator McClellan, Chairman, Senate
Permanent Investigations Subcommittee, for an inspector general’s report on
Irving Peress, the Army submitted a detailed summary of all actions taken by the
Army in the Peress case. The inspector general’s report itself was withheld,
pursuant to the Department’s responsibility to safeguard (1) information reveal­
ing investigative techniques, (2) information as to the identity of confidential
informants and information furnished by them in confidence, (3) incomplete
information which might unjustly discredit an innocent person, and (4) intra-
departmental communications of an advisory and preliminary nature.91
September 2 -6 , 1955: The Army denied the requests of the House Appropria­
tions Committee for inspector general’s reports and auditor general’s reports
pursuant to the Department’s responsibility to safeguard information in inves­
tigative reports for the reasons stated above. In lieu of the investigative reports,
the Army furnished, as requested, detailed summaries of all actions taken in
connection with the contracts under investigation.
September 16, 1955: The Air Force denied the request of Senator Johnson,
Chairman, Senate Preparedness Investigating Subcommittee, for material de­
rived from an inspector general’s report, pursuant to the Department’s respon­
sibility to safeguard information in investigative reports.
January 17, 1956: The Air Force denied the request of Senator Magnuson,
Chairman, Senate Committee on Interstate and Foreign Commerce, for informa­
tion concerning the discharge of a serviceman, pursuant to the Department’s
responsibility not to release an individual’s personnel records without his consent
so as not to unjustly or unnecessarily discredit him or disclose information
received in confidence.
85Id. at 379.
90Id. at 385-87.
91 Background concerning the congressional investigation of the promotion and discharge of Major Irving Peress
may be found in Army Personnel Actions Relating to Irving Peress' Hearings Before the Permanent Subcomm. on
Investigations o f the Senate Comm, on Government Operations, 84th Cong., IstS ess. (1955), Kramer & Marcuse,
supra, at 687-89.
809
February 2, 1956: The Air Force denied the request of the House Appropria
tions Committee for inspector general’s reports and auditor general’s reports
pursuant to the Department’s responsibility to safeguard information contained
in investigative reports.
sfc
January 12, 1957: The Army denied the request of Congressman Moss,
Chairman, House Subcommittee on Public Information, for an investigative file
compiled in connection with charges of disloyalty and subversion at the Signal
Corps Intelligence Agency, pursuant to the Department’s responsibility to safe­
guard investigative reports.
January 25, 1957: The Air Force denied the request of Congressman Murray,
Chairman, House Committee on Post Office and Civil Service, for an inspector
general report concerning employment conditions at Okinawa, pursuant to the
Department’s responsibility to safeguard investigative reports. However, the
Subcommittee was furnished a summary of the findings contained in the report.
4s Jjc sfc ♦
April 13, 1957: The Defense Department denied the request of Congressman
Moss, Chairman, House Subcommittee on Public Information, for investigative
memoranda and a report of conversations between the Department and newsmen,
pursuant to the Department’s responsibility to safeguard investigative reports and
information received in confidence.
19. 1956
An individual congressman (not a committee chairman) requested material
from the files of the Housing and Home Finance Agency concerning certain
housing project contracts which were related to a private bill he had introduced.
On March 28, 1956, the Agency advised the congressman that it would not
disclose the information because there was a pending lawsuit in the Court of
Claims seeking judicially the same relief as that covered by the congressman’s
bill. Since the litigation was being conducted by the Department of Justice, the
Agency deemed it “ inappropriate” to provide the requested information.92
20. 1962
On May 2, 1962, Chairman Fountain of the House Government Operations
Subcommittee requested access to the investigative files of the Food and Drug
Administration concerning the drugs MER-29 and Flexin. Commissioner Larrich
declined to make the files available, stating that his agency had “ uniformly
declined to make files on new drugs available” to Congress, in order to encour­
age manufacturers to make as complete a disclosure as possible when they file
new drug applications.93
21. 1971
During an investigation by the Subcommittee on Constitutional Rights of the
Senate Judiciary Committee concerning information gathering by the military
91 1958 Hearings, supra, at 403-04.
93 The New York Times, June 21, 1962, at 17, col. 1.
810
with regard to possible civil disturbances, Chairman Ervin requested access to ai
Army investigative report on the 113th Intelligence Group. In response, on April
19, 1971, Secretary of Defense Laird wrote the Chairman as follows:
it is the policy of the Executive Branch not to divulge the contents
of investigations while an investigation is still open and prior to
final action being taken. As the testimony taken . . . may possibly
provide the basis for disciplinary action, it would be inappropriate
to authorize the release of these documents. To do so might
jeopardize the rights of the people involved and prevent them
from being afforded a fair hearing.1941
22. 1972
On August 15, 1972, Senator Kennedy, Chairman of the Subcommittee on
Administrative Practice and Procedure of the Senate Committee on the Judiciary,
requested from the Securities and Exchange Commission “ documents, state­
ments, and other materials” relating to the Commission’s stock trading investiga­
tion of the International Telephone and Telegraph Corporation (ITT). On Au­
gust 31, 1972, Chairman Casey of the Commission wrote Senator Kennedy as
follows:
The Commission has, as your letter points out, initiated and
settled civil actions involving some of the transactions under
investigation. However, the staff informs me that it is still inves­
tigating other collateral matters which might lead to further appro­
priate proceedings.
In such investigations the Commission has been likened to a
grand jury and like a grand jury it is the Commission’s policy to
conduct its investigations on a confidential basis. Accordingly, in
order to protect the contents of its investigatory files and the
integrity of its investigative procedures, the Commission refrains
from giving out material from its pending investigations. Pur­
suant to this established procedure, it is the Commission’s deci­
sion to respectfully refuse your request.1951
On September 21, 1972, Chairman Staggers of the Special Subcommittee on
Investigations of the House Committee on Interstate and Foreign Commerce
made a similar request for Commission documents concerning its investigation
of ITT. On September 26, 1972, Chairman Casey responded:
It is the general policy of this Commission not to make public or
deliver to any other party, materials, records and documents,
94 Executive Privilege. The Withholding c f Information by the Executive: Hearing on S 1125 Before the
Subcomm. on Separation c f Powers c f the Senate Comm on the Judiciary, 92d Cong., 1st Sess. 403 (1971).
93 Legislative Oversight a f SEC: Inquiry into Withholding and Transfer c f Agency Files Pertaining to ITT •Hearing
Before the Special Subcomm. on Investigations c f the House Comm, on Interstate and Foreign Commerce, 92d
Cong., 2d Sess 29-30 (1972).
811
during the course of this kind of an investigation and for a very
good reason. Any investigation might lead to referral by the
Commission of its investigative files to the Department of Justice
with a recommendation for criminal prosecution. In such cases,
the Commission has the same obligation as a grand jury to protect
possible defendants from being unfairly injured by the possibility
of a damaging but not fully substantiated charge. As you know,
the Courts have strictly construed the right of a defendant to be
free from pre-trial publicity. We do not want to take the chance
that our release of any material obtained pursuant to our subpoena
issued for the purpose of enforcing securities law would impair
the rights of possible defendants or render ineffective any action
taken to enforce the law. I am sure that you can understand our
need to keep this file inviolate at this time.1961
Chairman Staggers reiterated his demand for access to the ITT investigative file
in a letter to Chairman Casey on September 28, 1972, in which he stated, “ the
Commission’s sudden refusal . . . is most strange and unprecedented.”97 On
October 6, 1972, Chairman Casey wrote Chairman Staggers as follows:
I must . . . correct [your] statement that the Commission’s posi­
tion on this matter is unprecedented. Our basic policy was clearly
set forth in the December 17, 1969 letter which former [SEC]
Chairman Budge sent to the [House] Committee on Government
Operations. Chairman Budge expressed the Commission’s posi­
tion on the availability o f data from pending investigations in the
following language:
“ The Com mission has consistently taken the position,
however, and has generally persuaded interested Congressional
committees that, barring exceptional circumstances, it is inap­
propriate for Congressional committees to be furnished nonpublic
information pertaining to a pending investigation or Commission
adjudication. The Commission has adopted this position . . . to
maintain the appearance as well as the fact of agency impartiality
in its adjudicatory functions and to avoid any impediment to its
investigatory and enforcement function.”
* jfc $ *
The considerations which Chairman Budge stressed are par­
ticularly vital in a matter [like this one] which can attract wide
publicity and speculation. . . . I believe it to be a misuse of our
subpoena power to permit access to documents except for the
enforcement purposes for which it was authorized, a failure in our
obligation to avoid anything which could jeopardize an enforce­
96 Id. at 6.
97 Id. at 7.
812
ment action, and an impropriety in disposing of documents,
which may be used as evidence in a prosecution, in any matter
which could cut off any rights a possible defendant might want to
assert with respect to them in relation to any party other than the
Commission.1981
23. 1973
On November 28, 1972, Chairman Magnuson of the Senate Committee on
Commerce requested access to files of the Securities and Exchange Commission
relating to certain unspecified investigations disclosed in a “ computer name and
relation” printout previously supplied by the Commission to the Committee,
which was investigating the effects of organized criminal activity on legitimate
commerce. On January 10, 1973, Chairman Casey of the Commission responded
to Senator Magnuson as follows:
[T]he Commission has directed the staff to make available to your
Committee for inspection at our offices any Commission files you
request as long as to do so would not violate the policies estab­
lished to meet our law enforcement responsibilities. As you
recognize in your letter, this would mean excluding all current
investigative files. It would also exclude those files relating to
cases referred to the Department of Justice for criminal prosecu­
tion. We must also exclude any reference to or information
received from confidential sources.1991
The long and consistent history reflected in this and our December 14, 1982,
Memorandum of actions by Executive Branch and independent agency officials
to protect the integrity of confidential information from unwarranted disclosures
to Congress, places in perspective similar necessary actions taken during this
Administration. The separation of powers principle which underlies the structure
of our government has brought virtually every Administration to the same
conclusion: that some information at certain times not only may, but must, be
withheld from the Legislative Branch in order that the laws may be faithfully
executed.
T heodore B. O lson
Assistant Attorney General
Office c f Legal Counsel
98 Id. at 8.
99 Id. at 108
813