Assertion of Executive Privilege by the Chairman of the Atomic Energy Commission

Assertion of Executive Privilege by the Chairman
of the Atomic Energy Commission
Questions put to the Chairman of the Atomic Energy Commission regarding conversations he may have
had with the President or his assistants in the White House come within the scope of the executive
privilege, whereby information, papers, and communications which the President or the heads of the
executive departments or agencies deem confidential in the public interest need not be disclosed to a
congressional committee. In addition, the questions are within the scope of the President’s letter of
May 17, 1954 to the Secretary of Defense setting forth the Administration’s policy that, in the public
interest, advisement on official matters between employees of the Executive Branch of the govern-
ment be kept confidential, and any conversations, communications, documents or reproductions
concerning such advisement not be disclosed in congressional hearings.
Even if it were conceded only for the purpose of argument that the Atomic Energy Commission is a
typical independent regulatory commission, which is not in one branch of the government to the
exclusion of others but straddles at least two branches so as to be part of each, there is historical
precedent indicating that, as to the executive functions of such a commission, its officers and
employees have a right, and, when directed by the President, a duty to invoke the executive privi-
lege.
The so-called fraud exception to executive privilege does not exist. The precedent for the so-called
exception really evidences the unlimited discretion of the President to determine whether the public
interest requires that the executive privilege be invoked or waived in a particular case.
January 5, 1956
MEMORANDUM FOR THE ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGAL COUNSEL
The Honorable Lewis L. Strauss, Chairman, Atomic Energy Commission, in a
letter to the Attorney General dated December 7, 1955, states that at a hearing on
December 5, 1955 before the Antitrust and Monopoly Subcommittee of the Senate
Judiciary Committee regarding the Mississippi Valley Generating Company
contract, he was asked to testify “as to conversations or discussions I may have
had with the President or his Assistants in the White House with respect to the
negotiation of the contract, the decision to bring the contract to an end, and the
action by the Commission, on advice of its General Counsel, that the contract
should not be recognized as a valid obligation of the Government on the ground of
possible conflicts of interest.” Chairman Strauss reports that he declined to answer
the above inquiry on the basis of the executive privilege under the constitutional
doctrine of separation of powers.
It is the conclusion of this memorandum that the questions set forth in Chair-
man Strauss’s letter come within the scope of the executive privilege, whereby
information, papers, and communications which the President or the heads of the
executive departments or agencies deem confidential in the public interest need not
be disclosed to a congressional committee. It is the further conclusion of this
memorandum that the questions are within the scope of the President’s letter of
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Assertion of Executive Privilege by the Chairman of the Atomic Energy Commission
May 17, 1954 to the Secretary of Defense, setting forth the Administration’s
policy that, in the public interest, advisement on official matters between employ-
ees of the Executive Branch of the government is to be kept confidential, and any
conversations, communications, documents, or reproductions concerning such
advisement is not to be disclosed in congressional hearings. The President’s letter
to the Secretary of Defense states in part:
Within this Constitutional framework each branch should cooper-
ate fully with each other for the common good. However, throughout
our history the President has withheld information whenever he
found that what was sought was confidential or its disclosure would
be incompatible with the public interest or jeopardize the safety of
the Nation.
Because it is essential to efficient and effective administration that
employees of the Executive Branch be in a position to be completely
candid in advising with each other on official matters, and because it
is not in the public interest that any of their conversations or commu-
nications, or any documents or reproductions, concerning such ad-
vice be disclosed, you will instruct employees or your Department
that in all of their appearances before the Subcommittee of the Sen-
ate Committee on Government Operations regarding the inquiry now
before it they are not to testify to any such conversations or commu-
nications or to produce any such documents or reproductions. This
principle must be maintained regardless of who would be benefited
by such disclosures.
100 Cong. Rec. 6621 (1954); Letter to the Secretary of Defense Directing Him to
Withhold Certain Information from the Senate Committee on Government
Operations, Pub. Papers of Pres. Dwight D. Eisenhower 483, 483–84 (May 17,
1954).
I.
The President’s letter to the Secretary of Defense is based on the constitutional
doctrine of separation of powers. Article II, Section 1 of the Constitution states
that “[t]he executive Power shall be vested in a President of the United States of
America.” Article II, Section 3 provides that the President “shall take care that the
Laws be faithfully executed.” And the President’s oath of office requires that he
“faithfully execute the Office of President of the United States,” and to the best of
his ability, “preserve, protect and defend the Constitution of the United States.”
U.S. Const. art. II, § 1. Attorney General Cushing, in discussing the application of
the constitutional doctrine of separation of powers in order to determine the
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legality of separate resolutions of the Senate and House of Representatives
requiring the Secretary of the Interior to pay a certain claim, succinctly set forth
the relationship between the Legislative and Executive Branches of the govern-
ment, and the relationship between executive officials and of the government, and
the relationship between executive officials and the President. It was stated in
Resolutions of Congress, 6 Op. Att’y Gen. 680 (1854), that:
The act of a Head of Department is, in effect, an act of the Presi-
dent. Now, the Constitution provides for co-ordinate powers acting
in different and respective spheres of co-operation. The executive
power is vested in the President, whilst all legislative powers are
vested in Congress. It is for Congress to pass laws; but it cannot pass
any law, which, in effect, coerces the discretion of the President, ex-
cept with his approbation, unless by concurrent vote of two-thirds of
both Houses, upon his previous refusal to sign a bill. And the Consti-
tution expressly provides that orders and resolutions, and other votes
of the two Houses, in order to have the effect of law, shall, in like
manner, be presented to the President for his approval, and if not ap-
proved by him shall become law only by subsequent concurrence in
vote of two-thirds of the Senate and House of Representatives.
If, then, the President approves a law, which imperatively com-
mands a thing to be done, ministerially, by a Head of Department,
his approbation of the law, or its repassage after a veto, gives consti-
tutionality to what would otherwise be the usurpation of executive
power on the part of Congress.
In a word, the authority of each Head of Department is a parcel of
the executive power of the President. To coerce the Head of Depart-
ment is to coerce the President. This can be accomplished in no other
way than by a law, constitutional in its nature, enacted in accordance
with the forms of the Constitution.
Id. at 682–83. It should be noted that Attorney General Cushing concludes in the
above quotation that Congress can coerce the action of an executive officer only
by a law which is constitutional in its nature and operation and enacted in accord-
ance with the procedures provided for by the Constitution. There is no law of the
United States requiring the disclosure of information pertaining to the executive
function of the government of the United States when the President has, in his
discretion, determined that such information should not be disclosed in the public
interest. The enactment of such a law would, of course, raise a serious question of
unconstitutional invasion by Congress of the powers of the Executive.
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Assertion of Executive Privilege by the Chairman of the Atomic Energy Commission
The right of the Executive Branch to withhold from congressional committees
information which the President or the head of an executive department or agency
thinks should be withheld for the public interest is a principle which was recog-
nized and utilized by President Washington. For over 150 years since the estab-
lishment of our constitutional form of government, the Presidents have successive-
ly established, by precedent, that they, and members of their cabinet and other
heads of executive departments and agencies, have a privilege and discretion to
keep confidential, in the public interest, papers and information which require
secrecy. These precedents are set forth in (1) an article by Herman Wolkinson,
Demands of Congressional Committees for Executive Papers, 10 Fed. B.J. 103
(1948–49), (2) a memorandum prepared for the Department of Justice by Mr.
Wolkinson, and (3) a May 17, 1954 memorandum to the President from the
Attorney General, 100 Cong. Rec. 6621–23 (1954). Most of the precedents involve
refusals by the President, cabinet officers, or officials of executive departments,
acting pursuant to directions of the President or heads of departments. A few of the
recent precedents involve the independent regulatory commissions.
There have been a number of judicial decisions, both in the Supreme Court and
lower courts, establishing the rule that information and papers which the President
and heads of executive departments consider confidential, in the public interest,
need not be produced in court. These cases also hold that the decision as to
whether the information is confidential is entirely within the discretion of the
Executive. An excellent summary of the reasons which prevent disclosure of
confidential information by the executive departments, both to the Judicial Branch
and to the Legislative Branch, is contained in a well-documented speech of
Senator Jackson (who became a justice of the Supreme Court in 1893), in the
controversy which Cleveland’s administration had with the Senate over the refusal
to disclose confidential information. Senator Jackson stated:
Sir, has this body, has the Congress of the United States any more
authority over papers in the Executive Departments of this Govern-
ment than the co-ordinate independent branch of the Government—
the judiciary? The judicial department of this Government has as
much power and authority over all papers in the hands of the Execu-
tive or in any Department as the entire Congress has. When the rights
of individuals, affecting their life, liberty, or property, are pending
before the courts, the judicial department has as much power over
papers as the Senate or the whole Congress; and yet it has been uni-
versally recognized from the very foundation of this Government
that the judicial department of the Government can not call for pa-
pers and procure them either from the President or the head of an
Executive department at its own will, but that the discretion rests
with the Executive and with the Departments how far and to what ex-
tend they will produce those pape[r]s.
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17 Cong. Rec. 2623 (Mar. 22, 1886).
In the famous case of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), Chief
Justice Marshall was presented with the problem of defining the limits at which the
judiciary must stop when the head of an executive department invokes the
privilege that the information sought from him is confidential information and
therefore cannot be disclosed. The rule of law was stated by the Supreme Court as
follows:
By the constitution of the United States, the President is invested
with certain important political powers, in the exercise of which he is
to use his own discretion, and is accountable only to his country in
his political character, and to his own conscience. To aid him in the
performance of these duties, he is authorized to appoint certain offic-
ers, who act by his authority and in conformity with his orders.
In such cases, their acts are his act; and whatever opinion may be
entertained of the manner in which executive discretion may be used,
still there exists, and can exist, no power to control that discretion.
The subjects are political. They respect the nation, not individual
rights, and being entrusted to the executive, the decision of the exec-
utive is conclusive. The application of this remark will be perceived
by adverting to the act of congress for establishing the department of
foreign affairs. This officer, as his duties were prescribed by that act,
is to conform precisely to the will of the President. He is the mere
organ by whom that will is communicated. The acts of such an offi-
cer, as an officer, can never be examinable by the courts.
But when the legislature proceeds to impose on that officer other
duties; when he is directed peremptorily to perform certain acts;
when the rights of individuals are dependent on the performance of
those acts; he is so far the officer of the law; is amenable to the laws
for his conduct; and cannot at his discretion sport away the vested
rights of others.
Id. at 165–66. An examination of the facts surrounding the Mississippi Valley
Generating Company matter clearly indicates that the conversations, if any, of the
officials of the Atomic Energy Commission with the President and his White
House assistants come within the category of those matters which Marshall termed
“political” and concerning which the Executive has complete discretion as to
whether such matters should be examined by the courts.
In regard to the intimate relationship between the President and his heads of
departments, Marshall said:
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Assertion of Executive Privilege by the Chairman of the Atomic Energy Commission
The intimate political relation subsisting between the president of the
United States and the heads of departments, necessarily renders any
legal investigation of the acts of one of those high officers peculiarly
irksome, as well as delicate; and excites some hesitation with respect
to the propriety of entering into such investigation. Impressions are
often received without much reflection or examination and it is not
wonderful, that in such a case as this, the assertion, by an individual,
of his legal claims in a court of justice[,] to which claims it is the du-
ty of that court to attend[,] should at first view be considered by
some, as an attempt to intrude into the cabinet, and to intermeddle
with the prerogatives of the executive.
It is scarcely necessary for the court to disclaim all pretensions to
such a jurisdiction. An extravagance, so absurd and excessive, could
not have been entertained for a moment. The province of the court is,
solely, to decide on the rights of individuals, not to inquire how the
executive, or executive officers, perform duties in which they have a
discretion. Questions in their nature political, or which are, by the
constitution and laws, submitted to the executive, can never be made
in this court.
Id. at 169.
Other decisions and trials in which the executive privilege to withhold confi-
dential information from disclosure in a court was either recognized or successful-
ly asserted are United States v. Smith, 27 F. Cas. 1192 (C.C.N.Y. 1806) (No.
16,342); Mississippi v. Johnson, 71 U.S. 475 (1866); Totten v. United States, 92
U.S. 105 (1875); Appeal of Hartranft, 85 Pa. 433 (1877); Trial of Thomas Cooper,
for a Seditious Libel, in the Circuit Court of the United States for the Pennsylvania
District (Philadelphia, 1800), in Francis Wharton, State Trials of the United States
During the Administrations of Washington and Adams 659 (1849); 1 David
Robertson, Reports of the Trials of Colonel Aaron Burr (1808). In the case of
Myers v. United States, 272 U.S. 52 (1926), Chief Justice Taft, in analyzing the
relationship between the President and the heads of executive departments, said in
the majority opinion:
This field is a very large one. It is sometimes described as politi-
cal. . . . Each head of a department is and must be the President’s
alter ego in the matters of that department where the President is
required by law to exercise authority.
Id. at 132–33. It should be noted that there are no judicial precedents as to the
existence or extent of the executive privilege in the area of congressional investi-
gation. However, it is submitted that Senator Jackson’s argument, set forth above,
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to the effect that the executive privilege in a congressional inquiry is just as great,
if not greater, than is the scope of the privilege in the courts, is a correct analysis of
the law.
There are a number of opinions of the Attorney General which deal with the
existence and extent of the executive privilege in the case of judicial and congres-
sional inquiry. Attorney General Speed stated the principle to President Lincoln:
Upon principles of public policy there are some kinds of evidence
which the law excludes or dispenses with. Secrets of state, for in-
stance, cannot be given in evidence, and those who are possessed of
such secrets are not required to make disclosure of them. The official
transactions between the heads of departments of the Government
and their subordinate officers are, in general, treated as “privileged
communications.” The President of the United States, the heads of
the great departments of the Government, and the Governors of the
several States, it has been decided, are not bound to produce papers
or disclose information communicated to them where, in their own
judgment, the disclosure would, on public considerations, be inexpe-
dient. These are familiar rules laid down by every author on the law
of evidence.
Records of Courts-Martial, 11 Op. Att’y Gen. 137, 142–43 (1865). Other opinions
dealing with the executive privilege in a court are to be found at Civil Service
Commission—Production of Records, 20 Op. Att’y Gen. 557, 557–58 (1893);
Executive Department—Official Records—Testimony, 25 Op. Att’y Gen. 326
(1905).
In President Theodore Roosevelt’s administration, Attorney General Bonaparte
stated that the head of the Bureau of Corporations was not obliged to deliver
papers to a Senate committee, pursuant to a subpoena served upon him. Instead,
the Attorney General counseled the head of the Bureau to deliver the records to
President Roosevelt, who had the authority to determine the propriety of making
public the information sought by the Senate. Commissioner of Corporations—
Right of Senate Committee to Ask for Information, 27 Op. Att’y Gen. 150, 156
(1909). President Theodore Roosevelt decided that the Senate was not to see the
papers, wrote a letter telling them so, and challenged the Senate to impeach him to
get them. The Letters of Archie Butt: Personal Aide to President Roosevelt 305–06
(Lawrence F. Abbott ed., 1924); Edward S. Corwin, The President: Office and
Powers 281, 428 n.45 (1st ed. 1940).
During President Franklin D. Roosevelt’s administration, Attorney General
Jackson, in a letter to Representative Carl Vinson, Chairman, House Committee on
Naval Affairs, set forth the Justice Department’s policy that all investigative
reports are confidential documents of the executive department and that congres-
sional access thereto was not in the public interest. The executive and legal
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Assertion of Executive Privilege by the Chairman of the Atomic Energy Commission
precedents behind the theory of executive privilege were set forth in some detail in
the letter which is published in Position of the Executive Department Regarding
Investigative Reports, 40 Op. Att’y Gen. 45 (1941).
A large number of eminent legal scholars and text writers have expressed the
opinion that an executive privilege of secrecy exists as to confidential official
documents, and for communications between government officials. See 8 Wigmore
on Evidence § 2378(3) (3d ed. 1940); Edward Campbell Mason, Congressional
Demands Upon the Executive for Information, in 5 Papers of the American
Historical Association 367 (1891); John Philip Hill, The Federal Executive 55–56
(1916); 3 Westel Woodbury Willoughby, The Constitutional Law of the United
States § 968, at 1488–91 (2d ed. 1929); John H. Finley & John F. Sanderson, The
American Executive and Executive Methods 199–200, 264–65 (1908); Herman
Finer, Questions to the Cabinet in the British House of Commons: Their Applica-
bility to the United States Congress, in Staff of Joint Comm. on the Organization
of Congress, 79th Cong., The Organization of Congress: Suggestions for Strength-
ening Congress by Members of Congress and Others 49, 56–57 (Comm. Print
1946); Ernest J. Eberling, Congressional Investigations 282 (1928).
Edward S. Corwin, in The President: Office and Powers, recognizes in the first
edition of his book (1940) the existence of an executive privilege in the field of
congressional investigations. However, the author states that, should a cabinet
officer fail to respond to the subpoena of congressional committee, he saw no
reason why Congress could not hold the officer in contempt. Id. at 281–82. In the
third edition of his book (1948), Mr. Corwin leaves out the above observation and
deals only with the precedents indicating the existence of an executive privilege in
the field of congressional inquiry for not only the President, but cabinet officers
and executive officers and employees when they act pursuant to the direction of
the President or heads of departments in refusing to disclose confidential executive
information. Id. at 136–43.
Philip R. Collins, in an article entitled The Power of Congressional Committees
of Investigation to Obtain Information from the Executive Branch: The Argument
for the Legislative Branch, 39 Geo. L.J. 563 (1950–51), presents an argument
against the existence of an executive privilege, particularly for cabinet officers and
executive employees when called as witnesses before congressional committees.
The argument is based mainly on the congressional debates during Cleveland’s
and Truman’s administrations, when the Executive was at logger-head with a
Republican Congress. In both cases, much was said, but nothing was done by
Congress.
At the request of Senator Langer, the Legislative Reference Service of the
Library of Congress prepared a study entitled Congressional Power of Investiga-
tion, S. Doc. No. 83-99 (1954). On pages 20–27 the analysis deals with the ques-
tion of investigation of the Executive Branch. The conclusion reached is that there
is no categorical answer to the question how far Congress can go in requiring
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information from the Executive Branch. It is recognized that the only precedents
are historical ones.
II.
An argument may be made by the Senate subcommittee to the effect that the
executive privilege and direction concerning the privilege in the President’s letter
of May 17, 1954, to the Secretary of Defense, apply only to the executive depart-
ments of the government and not to the independent regulatory commissions. An
examination of the historical precedents and the President’s letter concerning the
exercises of the executive privilege clearly indicate that the precedents and letter
apply to the entire Executive Branch and function of the government, and not
alone to the ten executive departments. It should be noted that irrespective of a
determination of the problem of the precise position of the Atomic Energy
Commission within the framework of the federal government, it is clear that the
Mississippi Valley Generating Company contract, with which the inquiry in
question is concerned, was negotiated, cancelled and rescinded by the Atomic
Energy Commission as an exercise of the executive function of government.
An examination of the Atomic Energy Act of 1954, 42 U.S.C. §§ 2011–2281
(1952 Supp. II), indicates that the Atomic Energy Commission is an independent
establishment of the government, in the sense that it is outside the ten executive
departments, and is not subject to direct supervision or control by any Cabinet
Secretary. An examination of the Act also indicates that the Commission primarily
exercises a non-regulatory executive function, and only incidentally thereto, any
regulatory power. The principal functions of the Atomic Energy Commission, as
set forth in the Atomic Energy Act of 1954, 42 U.S.C. § 2013, are (1) the conduct-
ing, assisting, and fostering of research and development in order to encourage the
maximum scientific and industrial progress in the field of atomic energy; (2) the
formulation of a program for the dissemination of unclassified scientific and
technical information, and the control, dissemination and declassification of
restricted data, subject to appropriate safeguards, so as to encourage scientific and
industrial progress in the field of atomic energy; (3) the conducting of a program
of government control of the possession, use, and production of atomic energy and
special nuclear material so as to make the maximum contribution to the common
defense and welfare of the nation; (4) the development of a program to encourage
widespread participation in the development and utilization of atomic energy for
peaceful purposes to the maximum extent consistent with the common defense and
the health and safety of the public; (5) the conducting of a program of international
cooperation to promote the common defense and security of the nation, and to
make available to cooperating nations the benefits of the peaceful application of
atomic energy; and (6) the administration of a program to carry out the above
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Assertion of Executive Privilege by the Chairman of the Atomic Energy Commission
policies, and to keep Congress currently informed so that it may take such further
legislative action as may be necessary.
In carrying out the above functions, which are executive in nature, the Atomic
Energy Commission has been given, by Congress, the power to regulate the
production and use of atomic energy for commercial and medical purposes through
a system of licenses issued pursuant to rules and regulations of the Commission.
The Commission is also authorized to conduct hearings, make findings, and
regulate the patent licensing of inventions or discoveries useful in the peaceful
production and utilization of atomic energy. Such regulatory powers as the
Commission has are incidental to the exercise by the Commission of its executive
function of operating for the federal government a monopoly of the production and
use of atomic energy. In this way, the Atomic Energy Commission differs
basically from such regulatory commissions as the Interstate Commerce Commis-
sion, Securities and Exchange Commission, Federal Trade Commission, etc.,
which are agencies that exercise governmental control primarily by way of quasi-
legislative or quasi-judicial procedures over otherwise federally uncontrolled
private business affairs or property interests.
From an analysis of its functions, the Atomic Energy Commission appears to be
an establishment, within the Executive Branch of the government which has been
given quasi-legislative and quasi-judicial powers to be used incidentally in
carrying out its principal executive functions. The granting of quasi-legislative or
quasi-judicial powers to a governmental establishment which is primarily execu-
tive in nature is by no means novel. One example is the Secretary of Agriculture
who, though clearly an executive officer within the Executive Branch of the
government, has under the Packers and Stockyards Act, 7 U.S.C. §§ 181–231
(1952), been given quasi-legislative and quasi-judicial powers by Congress.
Another excellent example is that of the Tennessee Valley Authority (“TVA”). In
the case of Morgan v. TVA, 115 F.2d 990 (6th Cir. 1940), the issue concerned the
power of the President to remove an officer of the TVA. In the case of Myers v.
United States, 272 U.S. 52 (1926), the Supreme Court held that the President’s
removal powers were unrestrictable as to purely executive officers. However, in
the case of Humphrey’s Executor v. United States, 295 U.S. 602 (1935), the
Supreme Court decided that in the case of an agency such as the Federal Trade
Commission, which the court held exercised primarily quasi-legislative and quasi-
judicial powers and only incidentally thereto any executive function, Congress
could constitutionally limit the President’s removal powers. Therefore, to deter-
mine the issue in the Morgan case the Sixth Circuit had to determine what the
position of the TVA was in the framework of the federal government. The court
stated:
It requires little to demonstrate that the Tennessee Valley Authority
exercises predominantly an executive or administrative function. To
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it has been entrusted the carrying out of the dictates of the statute to
construct dams, generate electricity, manage and develop govern-
ment property. Many of these activities, prior to the setting up of the
T.V.A., have rested with the several divisions of the executive
branch of the government. True, it is, that in executing these admin-
istrative functions, the Board of Directors is obliged to enact by-
laws, which is a legislative function, and to make decisions, which is
an exercise of function judicial in character. In this respect its duties
are, in no wise, different, except perhaps in degree, from the duties of
any other administrative officers or agencies, or the duties of any
other Board of Directors, either private or public. Whatever their
character, they are but incidental to the carrying out of a great admin-
istrative project. The Board does not sit in judgment upon private
controversies, or controversies between private citizens and the gov-
ernment, and there is no judicial review of its decisions, except as it
may sue or be sued as may other corporations. It is not to be aligned
with the Federal Trade Commission, the Interstate Commerce Com-
mission, or other administrative bodies mainly exercising clearly
quasi-legislative or quasi-judicial functions—it is predominantly an
administrative arm of the executive department. The rule of the
Humphrey case does not apply.
115 F.2d at 993–94. The court held that the doctrine of the Myers case applied, and
that the President had unrestricted power to remove the officers of the TVA. It is
submitted that the position of the Atomic Energy Commission within the frame-
work of the federal government is closely analogous to that of the Tennessee
Valley Authority.
It is clear, therefore, that the executive privilege and direction concerning said
privilege, which was the subject of the President’s letter of May 17, 1954 to the
Secretary of Defense, apply to the questions which Chairman Strauss has referred
to in his letter to the Attorney General because first the questions clearly involve
the carrying out of the executive function by Chairman Strauss, and second
because the officers of the Atomic Energy Commission, due to the nature of the
Commission’s functions, are officers of a governmental establishment within the
Executive Branch of the government, and as such are subject to the President’s
direction concerning the exercise of the executive privilege.
However, even if it were conceded only for the purpose of argument that the
Atomic Energy Commission is a typical independent regulatory commission,
which is not in one branch of the government to the exclusion of others but
straddles at least two branches so as to be part of each, there is historical precedent
indicating that, as to the executive functions of such a commission, its officers and
employees have a right, and, when directed by the President, a duty to invoke the
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Assertion of Executive Privilege by the Chairman of the Atomic Energy Commission
executive privilege. Such an historical precedent has been established in connec-
tion with a congressional investigation of the Federal Communications Commis-
sion. On January 19, 1943, the House of Representatives appointed a Select
Committee to Investigate the Federal Communications Commission. The commit-
tee was authorized to require by subpoena the attendance of witnesses and the
production of books and papers. James L. Fly, Chairman of the Federal Communi-
cations Commission and Chairman of the Board of War Communications, was
subpoenaed as a witness to appear before the aforesaid committee. Mr. Fly
appeared on July 9, 1943, but did not produce the records described in the
subpoena. He told the committee that he was bound by the decision of the Board
of War Communications, of which he was chairman, not to divulge the records in
question; and that even if he had the documents in his custody, he would have no
choice but to decline to hand them over to the committee. The records in question
were in the possession of Mr. Denny, General Counsel of the Federal Communica-
tions Commission, who was present at the time Mr. Fly was testifying before the
committee. Mr. Denny had also been subpoenaed. He advised the committee that
he had possession of the papers called for. Neither Mr. Denny nor Mr. Fly
exhibited the records to the committee. Both felt bound by the decision of the
Board of War Communications. Study and Investigation of the Federal Communi-
cations Commission: Hearings Before the Select H. Comm. to Investigate the Fed-
eral Communications Commission, 78th Cong., pt. 1, at 46–67 (1943). It is
submitted that the above rule and precedent have a firm legal basis in the constitu-
tional doctrine of separation of powers and in the constitutional provisions that all
executive power is vested in the President of the United States, and that the
President shall take care that the laws be faithfully executed.
It may also be argued by the subcommittee that Congress occupies a special
statutory position in relation to the Atomic Energy Commission, and that such
relationship requires a disclosure by Chairman Strauss of the conversations in
question. Title 42, section 2252 of the U.S. Code provides in part that:
The Commission shall keep the Joint Committee fully and currently
informed with respect to all of the Commission’s activities. The De-
partment of Defense shall keep the Joint Committee fully and cur-
rently informed with respect to all matters within the Department of
Defense relating to the development, utilization, or application of
atomic energy. Any Government agency shall furnish any infor-
mation requested by the Joint Committee with respect to the activi-
ties or responsibilities of that agency in the field of atomic energy.
First of all, it should be noted that the above provisions relate to the Joint
Committee of Congress on Atomic Energy and not the Antitrust and Monopoly
Subcommittee of the Senate Judiciary Committee, which is the subcommittee that
has made the inquiry in question. Second, and most important, from a reading of
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42 U.S.C. § 2252 and an examination of the legislative history of the Atomic
Energy Act of 1946, and the Atomic Energy Act of 1954, it appears that section
2252 requires the Commission to keep the Joint Committee advised of all the
Commission’s activities but not of each commissioner’s individual activity in the
line of official duty. In the committee report to the House of Representatives, H.R.
Rep. No. 83-2181 (1954), which was submitted at the time the Atomic Energy Act
of 1954 was considered by the House, it is stated that:
The Commission and the Department of Defense are required to keep
the joint committee fully and currently informed with respect to all
atomic-energy matters. It is the intent of Congress that the joint
committee be informed while matters are pending, rather than after
action has been taken.
Id. at 29. The 1954 Act, as finally enacted, amended section 15 of the 1946 Act, 42
U.S.C. § 1815 (1952), by inserting the word “all” in the provision requiring the
Commission to keep the Joint Committee advised of all the Commission’s
activities. The 1954 Act also included, for the first time, a similar provision in
regard to the Department of Defense, and a requirement that all government
agencies furnish to the Joint Committee, when requested, information concerning
the agency’s activities or responsibilities in the field of atomic energy.
Section 2252 appears to require the Commission to keep the Joint Committee
currently advised of the action which the Commission, as a body, is taking in
regard to atomic energy matters, but not of the conversations between the various
commissioners, between the commissioners and the employees of the Atomic
Energy Commission, or between the President or his officers and advisors, which
may or may not lead to final collective action by the Commission itself. In other
words, the section applies only to the action of the Commission as a collective
body, and not to individual action by the commissioners. Such a position is further
strengthened by the fact that section 2252 also requires the Defense Department,
which is clearly within the Executive Branch, to keep the Joint Committee fully
and currently informed with respect to all matters within that department relating
to the development, utilization, or application of atomic energy. It is submitted
that, if Congress were to require the Atomic Energy Commission or the Depart-
ment of Defense to keep Congress or a committee thereof advised of those matters,
which it is here asserted Congress has not required under section 2252 (particular-
ly in regard to conferences with the President, or his personal advisors or cabinet
officers), there would be presented a serious question whether Congress had
exceeded the limit of its constitutional right to investigate the Executive Branch of
the government for the purpose of aiding further legislation. In effect, such a
sweeping congressional requirement of disclosure of normally confidential
information from within the Executive Branch of the government might amount to
an unconstitutional exercise of the executive power by Congress, and a usurpation
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Assertion of Executive Privilege by the Chairman of the Atomic Energy Commission
by Congress of the Executive’s exclusive constitutional duty to take care that the
laws are faithfully executed. This would be particularly true if, as previously
pointed out, Congress should, by section 2252, attempt to coerce the disclosure
from within the Executive Branch of information which the President has held to
be confidential in the public interest. However, pursuant to the interpretation of
section 2252 as set forth in this memorandum, there is presented no constitutional
problem, and it is clear that the section does not curtail the right to invoke the
executive privilege or affect the direction in the President’s letter of May 17, 1954,
that the executive privilege is to be asserted when Congress makes an inquiry in
the nature of the questions reported by Chairman Strauss in his letter to the
Attorney General.
It should be further noted that Chairman Strauss occupies a dual role. He is not
only the Chairman of the Atomic Energy Commission, but also special advisor on
atomic energy affairs to the President. It appears from a study of the Senate
subcommittee hearings that Chairman Strauss was asked to testify as Chairman of
the Atomic Energy Commission concerning conversations he may or may not have
had with the President or his White House assistants. If it should appear that the
inquiry was put to Chairman Strauss as the President’s special advisor, or if it
should develop that the conversations in question took place when Strauss was
acting as the President’s special advisor, there is absolutely no question that the
precedents hold that the executive privilege and the President’s direction concern-
ing the exercise of the privilege apply to the subcommittee inquiry of Chairman
Strauss.
III.
Chairman Strauss states in his letter to the Attorney General that a suggestion
was made by the Senate Subcommittee that the executive privilege was not
available, within the doctrine laid down by the Supreme Court in the Teapot Dome
cases, because of possible fraud in connection with the contract. It is the conclu-
sion of this memorandum that the Supreme Court cases referred to do not create
any fraud exception to the executive privilege, nor do the historical precedents
create any such exception. There is historical precedent to the effect that where the
question of fraudulent conduct by a government official is involved in a congres-
sional investigation, the President, in the exercise of his unlimited discretion, may
waive the right of an official to invoke the executive privilege. However, it should
be noted that in the particular case with which this memorandum deals, there
appears to be no evidence in the record of the Senate Subcommittee’s hearings, or
elsewhere, indicating any acts of fraud by the President, the President’s White
House advisors, Chairman Strauss, or any other government official or employee,
with the possible exception of Adolph Wenzell. The General Counsel of the
Atomic Energy Commission, in his opinion to the Commission in regard to the
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Mississippi Valley Generating Company contract, found that the contract should
be rescinded because of possible violation by Adolph Wenzell of a statute or
public policy against conflict of interests. There was no finding of fraud on the part
of any other governmental official or employee. As to Adolph Wenzell, the Senate
Subcommittee interrogated him at great length and no information demanded of
him was refused. It would not seem logical, assuming only for the purpose of
argument that the Subcommittee’s position is valid, that because one official may
have defrauded the government, ipso facto, the executive privilege may not be
validly asserted by any other official of the Executive Branch where there is no
evidence of fraud on the part of such official or other officials with whom he may
or may not have discussed the matter.
As pointed out, however, the cases of McGrain v. Daugherty, 273 U.S. 135
(1927), and Sinclair v. United States, 279 U.S. 263 (1929), which the Senate
Subcommittee evidently was referring to as the Teapot Dome cases, do not in any
way create an exception to the right of an officer or employee of the Executive
Branch of the government to invoke the executive privilege in a congressional
investigation when directed to, simply because the investigation concerns alleged
fraudulent conduct in the government. The case of McGrain v. Daugherty involved
an action against a private citizen for contempt of the Senate. Charges of misfea-
sance and nonfeasance in the Department of Justice in regard to the Teapot Dome
matter had been made in the Senate. As a result of the charges, both the Senate and
House passed two measures taking the Teapot Dome litigation out of the control of
the Department of Justice, and authorized a select committee of five Senators to
investigate the alleged failure of the Attorney General to take certain legal action
and to investigate and report to the Senate the activities of the Attorney General
and any of his assistants which would in any manner tend to impair their efficiency
of influence as representatives of the government. In the course of the investiga-
tion, Mally Daugherty, the brother of Attorney General Daugherty, was properly
served with a subpoena to appear before the Senate Committee as a witness. Mally
Daugherty refused to obey the subpoena and contempt action was brought against
him. It was argued that the purpose for which the witness’s testimony was sought
was not to obtain information in aid of the legislative function, and that any
evidence of such intention by the Senate was an afterthought in an attempt to
legalize the investigation. The Court said at page 178 of its opinion that the only
legitimate object the Senate could have in ordering the investigation was to aid it
in legislating. The Court, however, found that the subject matter involved was such
that the presumption should be indulged that legislation was the real object. The
Court noted that the power and duties of the Attorney General and the duties of his
assistants are all subject to regulation by congressional legislation, and that the
department is maintained, and its activities carried on, by yearly appropriations by
Congress. The case stands for the proposition that investigation of the executive
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Assertion of Executive Privilege by the Chairman of the Atomic Energy Commission
departments for the purpose of obtaining information in aid of legislation is a
proper function of Congress.
The case of Sinclair v. United States involved an action against a private citizen
for contempt of the Senate. The case arose out of an investigation by the Senate of
alleged fraud in the execution of the lease of naval oil reserve lands to the
Mammoth Oil Company and a contract with the Pan American Petroleum and
Transport Company. The Senate Committee was to report its findings to the Senate
and determine if additional legislation were advisable. Harry F. Sinclair was
subpoenaed as a witness and interrogated as to certain matters. Sinclair refused to
answer certain questions on the grounds that the questions pertained to issues
involved in pending litigation. It was argued that the Senate, by the adoption of a
joint resolution requiring the President to place the subject of the investigation in
litigation, had thereby deliberately removed its jurisdiction. The Supreme Court, in
rejecting Sinclair’s contention, held that the investigation was in aid of legislation,
that under Article IV, Section 3, Congress has plenary powers to dispose of and to
make all needful rules and regulations concerning public lands, and that the latter
point was in itself a legal basis for the investigation. The Court also held that the
Joint Resolution requiring the President to place the matter in litigation did not
divest the committee of authority to ask the questions in issue. It was stated at page
295 that Congress was without authority to compel disclosures for the purpose of
aiding the prosecution of pending suits, but that its authority to require pertinent
disclosures in aid of its own constitutional power was not abridged because the
information sought might also be of use in a lawsuit.
In the last session of Congress, Senator Knowland had printed in the Congres-
sional Record an analysis of the power of Congress to require testimony, papers,
and documents from the President and the Executive Branch. 101 Cong. Rec.
11,458–62 (July 26, 1955). Senator Knowland’s analysis takes the position that
there is a privilege in the Executive Branch to withhold information from Congress
which the President or heads of departments feel should be kept confidential in the
public interest. However, the analysis found an exception to the above proposition
to exist in “cases where circumstances strongly point to wrongdoing of specific
department officials (as in the Teapot Dome case), or when wholesale corruption is
uncovered.” Id. at 11,458. Senator Knowland discussed the Teapot Dome case. Id.
at 11,461. After stating the limited holding of McGrain v. Daugherty, the Sena-
tor’s analysis set forth the following letter from President Coolidge to Attorney
General Daugherty. This letter is apparently the precedent for the so-called fraud
exception. The letter reads:
THE WHITE HOUSE
Washington, March 27, 1924
MY DEAR MR. ATTORNEY GENERAL: Since my conference
with you I have examined the proposed reply you suggest making to
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the demand that you furnish the committee investigating the Depart-
ment of Justice with files from that Department, relating to litigation
and to the Bureau of Investigation. You represent to me and to the
committee in your letter that it would not be compatible with the
public interest to comply with the demand, and wish to conclude
your letter with a statement that I approve that position. Certainly I
approve the well-established principle that departments should not
give out information or documents, for such a course would be det-
rimental to the public interest and this principle is always peculiarly
applicable to your Department, which has such an intimate relation
to the administration of justice. But you will readily perceive that I
am unable to form an independent judgment in this instance without
a long and intricate investigation of voluminous papers, which I can-
not personally make, and so I should be compelled to follow the usu-
al practice in such cases and rely upon your advice as Attorney Gen-
eral and head of the Department of Justice.
But you will see at once that the committee is investigating your
personal conduct, and hence you have become an interested party,
and the committee wants these papers because of a claim that they
disclose your personal conduct of the Department. Assuming that the
request of the committee is appropriately limited to designated files,
still the question will always be the same. In view of the fact that the
inquiry related to your personal conduct, you are not in a position to
give to me or the committee what would be disinterested advice as to
the public interest. You have a personal interest in this investigation
which is being made of the conduct of yourself and your office,
which may be in conflict with your official interest as the Attorney
General. I am not questioning your fairness or integrity. I am merely
reciting the fact that you are placed in two positions, one your per-
sonal interest, the other your office of Attorney General, which may
be in conflict. How can I satisfy a request for action in matters of this
nature on the ground that you as Attorney General advise against it
when you as the individual against whom the inquiry is directed nec-
essarily have a personal interest in it? I do not see how you can be
acting for your own defense in this matter and at the same time and
on the same question acting as my adviser as Attorney General.
Id.
President Coolidge solved the above dilemma by asking for the resignation of
his Attorney General, and the investigation proceeded from there. An examination
of the cases and historical precedents indicates that there is no fraud exception to
the executive privilege. Rather, there is historical precedent to the effect that the
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Assertion of Executive Privilege by the Chairman of the Atomic Energy Commission
President as Chief Executive can, in his sole discretion, direct that the executive
privilege be waived in a case where he believes it is in the public interest. If the
charges of fraud are directed against the President himself, the only way that
Congress can constitutionally proceed is by way of impeachment. Even in this
latter case there is no precedent to the effect that the executive privilege cannot
validly be invoked.
IV.
It is therefore concluded that the questions of the Senate Subcommittee put to
Chairman Strauss on December 5, 1955, which Chairman Strauss refused to
answer, come within the scope of the executive privilege to withhold information
from Congress which the President deems confidential in the public interest; and
that the President’s letter of May 17, 1954, to the Secretary of Defense is a deter-
mination, applicable in this particular case, that the questions asked by the Senate
Subcommittee are deemed by the President to be confidential. It is further
concluded that the so-called fraud exception to which the Senate Subcommittee
referred does not exist. The precedent for the so-called exception really evidences
the unlimited discretion of the President to determine whether the public interest
requires that the executive privilege be invoked or waived in a particular case.
J. DWIGHT EVANS
Attorney-Adviser
Office of Legal Counsel
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