History of Refusals by Executive Branch Officials to
Provide Information Demanded by Congress
[The following two memoranda, prepared by the Office of Legal Counsel at the request of the
Attorney General, describe instances since the founding of the Republic in which officials in the
Executive Branch have refused to disclose information or produce documents requested by
Congress. The first memorandum, dated December 14, 1982, sets forth examples of situations in
which a President has personally directed that information be withheld, relying on the doctrine of
executive privilege. The second memorandum, dated January 27, 1983, documents incidents
where the Attorney General or some other executive official refused to provide information or
docum ents to Congress in situations involving law enforcem ent, security, or personnel
investigations. . . .]
PART I—Presidential Invocations of Executive Privilege
Vis-a-Vis Congress
December 14, 1982
MEMORANDUM FOR THE ATTORNEY GENERAL
This memorandum briefly describes those incidents in which a President
personally directed the withholding of information from Congress.1 Included are
incidents in which a President found it necessary to withhold specific documents
or information, as well as general directives of a President concerning the
withholding of information from Congress.
No effort has been made to catalogue the numerous instances in which
information was withheld from Congress by executive officers other than the
President; nor does this survey discuss the countless examples of full disclosure
by the Executive. The objective of the memorandum is neither to show how
frequently the Executive Branch has refused congressional requests for informa
tion, nor to demonstrate how often an accommodation between the branches has
been achieved. Rather, the memorandum seeks to show that presidentially
1 Although an attempt has been made to be as thorough as possible, no claim is made that the following list is
comprehensive. In this regard, we note Deputy Assistant Attorney General Mary Lawton’s statement in a
memorandum to Rep. William S. Moorhead, dated Apr 25, 1973.
In response to your request . . I regret that it is not physically possible to furnish you with a
comprehensive list of presidential refusals of information to Congress. To give you all of the
instances of such refusals since the beginning of the Republic would require an amount of historical
research which the Office of Legal Counsel lacks the resources for handling. In addition, there is a
categorization problem of distinguishing the relatively few instances of exercise of Executive
Privilege per se [i.e . a refusal to disclose by the President personally] from the many instances of
agreed accommodations . . for nonappearance of witnesses, nondisclosure or partial disclosure.
751
mandated refusals to disclose information to Congress—though infrequent—are
by no means unprecedented acts of this or any other Administration.
1. Washington Administration
St. Clair Incident
On March 27, 1792, the House of Representatives established a congressional
committee to investigate the failure of General St. Clair’s military expedition
against the Indians. The House authorized the committee “to call for such
persons, papers, and records, as may be necessary to assist their inquiries.”2
The committee subsequently asked the President for those papers pertaining to
the St. Clair campaign. Since this was the first occasion in which Congress had
established a committee to investigate the performance of the Executive and had
authorized it to request documents from the President, and wishing “that so far as
it should become a precedent, it should be rightly conducted,”3 President
Washington held a meeting with his Cabinet, attended by Jefferson, Hamilton,
Randolph and Knox. Jefferson described the conclusions reached by the Nation’s
first Cabinet:
We had all considered, and were of one mind, first, that the House
was an inquest, and therefore might institute inquiries. Second,
that it might call for papers generally. Third, that the Executive
ought to communicate such papers as the public good would
permit, and ought to refuse those, the disclosure cf which would
injure the public: consequently were to exercise a discretion.
Fourth, that neither the committees nor House had a right to call
on the Head of a Department, who and whose papers were under
the President alone; but that the committee should instruct their
chairman to move the House to address the President.141
Although the Cabinet “agreed in this case, that there was not a paper which
might not be properly produced,”5 the President apparently felt it advisable
nevertheless to negotiate with Congress a non-confrontational resolution of the
problem. Jefferson thereupon agreed to speak individually to members of the
House committee in orderto “bring them by persuasion into the right channel.”6
Jefferson’s conciliation efforts were successful, for on April 4, 1792, the House
resolved,
that the President of the United States be requested to cause the
proper officers to lay before this House such papers of a public
2 3 Annals of Cong. 493 (1792)
3 1 The Writings of Thomas Jefferson 303 (Lipscomb ed , 1905).
4 Id. at 303-04 (emphasis added)
5 Id. at 305.
6 Id. See generally Younger, “Congressional Investigations and Executive Secrecy. A Study in the Separation cf
P o w e r s 20 U Pitt L Rev. 755 , 757 (1959).
752
nature, in the Executive Department, as may be necessary to the
investigation of the causes of the failure of the late expedition
under Major General St. Clair.171
Correspondence Involving United States Minister to France
In 1794, the Senate requested by resolution correspondence between the
United States Minister to France and the Republic of France, and between the
Minister and the State Department.8 President Washington submitted certain of
the correspondence requested, but withheld “those particulars which, in my
judgment, for public considerations, ought not to be communicated.”9
The Jay Treaty
On March 24, 1796, the House of Representatives requested by resolution that
the President disclose to the House his instructions to the United States Minister
who negotiated the Jay Treaty with Great Britain, along with correspondence and
documents relative to that Treaty. Implementation of the Treaty apparently
required an appropriation which the House was called upon to vote.10 President
Washington denied the House’s right to demand and receive any of the papers
requested. Though the President had provided “all the papers affecting the
negotiation with Great Britain” to the Senate in the course of its deliberations on
the Treaty, Washington determined that the House had no legitimate claim to
those papers:
The nature of foreign negotiations requires caution; and their
success must often depend on secrecy; and even, when brought to
a conclusion, a full disclosure of all the measures, demands, or
eventual concessions which may have been proposed or con
templated would be extremely impolitic: for this might have
pernicious influence on future negotiations; or produce immediate
inconveniences, perhaps danger and mischief, in relation to other
Powers. The necessity of such caution and secrecy was one cogent
reason for vesting the power of making Treaties in the President
with the advice and consent of the Senate; the principle on which
the body was formed confining it to a small number of members.
Toadmit, then, aright in the House of Representatives to demand,
and to have, as a matter of course, all the papers respecting a
negotiation with a foreign Power, would be to establish a dan
gerous precedent.
7 3 Annals of Cong. 536 (1792) (emphasis added).
8 Senate Journal, 3d Cong , 1st Sess. 42 (1794).
9 1 J Richardson, Messages and F^pers of the Presidents 152 (1896)
10 See W. Binkley, President and Congress 53-4 (3d rev. 1947).
753
Subsequently, the House debated Washington’s refusal for a full month, but
took no action." It is highly instructive, however, that during the debate Rep.
James Madison, although disagreeing with President Washington’s message in
some respects, acknowledged on the House floor,
that the Executive had a right, under a due responsibility, also, to
withhold information, when of a nature that did not permit a
disclosure of it at the time. And if the refusal of the President had
been founded simply upon a representation, that the state of the
business within his department, and the contents of the papers
asked for, required it, although he might have regretted the
refusal, he should have been little disposed to criticize it.1121
2. Adams Administration
Diplomatic Material Concerning United States Representatives to France
In 1798 the House of Representatives by resolution requested from the Presi
dent documents containing instructions to, and dispatches from, representatives
of the United States to France.13 On April 3, 1798, President Adams transmitted
some of that material to both Houses, but omitted “ some names and a few
expessions descriptive of the persons” involved.14
3. Jefferson Administration
The Burr Conspiracy
In January 1807, the House of Representatives by resolution requested that the
President
lay before this House any information in possession of the Ex
ecutive, except such as he may deem the public welfare to require
not to be disclosed, touching any illegal combination of private
individuals against the peace and safety of the Union, or any
military expedition planned by such individuals against the ter
ritories of any Power in amity with the United States; together
11 5 Annals of Cong. 760 (1796); see id. at 426-783. The House did pass two resolutions, one declaring that the
House had authonty to consider the expediency of carrying a treaty into effect, the second that the House need not
state the purpose for which it required information from the Executive. See id. at 771, 782-83.
12 Id. at 773.
13 House Journal, 5th Cong., 2d Sess. 249 (1798).
14 1 Richardson, supra, at 265.
754
with the measures which the Executive has pursued and proposes
to take for suppressing or defeating the same.1'51
President Jefferson replied by detailing the activities of Aaron Burr, but declined
to mention the names of other alleged participants. Jefferson declared:
The mass of what I have received in the course of these transac
tions is voluminous, but little has been given under the sanction of
an oath so as to constitute formal and legal evidence. It is chiefly
in the form of letters, often containing such a mixture of rumors,
conjectures, and suspicions as renders it difficult to sift out the
real facts and unadvisable to hazard more than general outlines,
strengthened by concurrent information or the particular cred
ibility of the relator. In this state of the evidence, delivered
sometimes, too, under the restriction of private confidence, nei
ther safety nor justice will permit the exposing names, except that
of the principal actor, whose guilt is placed beyond question.1'61
4. Monroe Administration
Stewart Incident
In 1825, the House of Representatives requested by resolution that the Presi
dent provide the Congress with documents concerning charges against certain
naval officers, so far as he deemed such disclosure compatible with the public
interest.17 President Monroe refused to submit the documents, stating:
In consequence of several charges which have been alleged
against Commodore Stewart, touching his conduct while com
15 16 Annals of Cong. 336 (1806) (emphasis added). Professor Raoul Berger has argued that the exception clause
in the House resolution refutes any argument that Jefferson's subsequent withholding of documents was based on an
executive privilege R. BeTger, Executive Privilege: A Constitutional Myth 179-81 (1974) (descnbing Jefferson’s
explanation for withholding information as “gratuitous” ). See also Cox, Executive Privilege, 122 U ft L. Rev.
1383, 1397-98 (1974) (arguing that those historical examples of executive withholding which are preceded by a
congressional authorization to withhold do not qualify as examples of executive pnvilege) One could just as well
read the exception clause, however, as an early illustration of congressional recognition of the executive privilege.
See § 1, C, supra, note 19 infra.
Moreover, it is highly unlikely Jefferson actually relied upon the exception clause as the basis for withholding
information from the House, given the conclusions he reached while serving in President Washington’s Cabinet, see
§ 1, A, supra, and given the views he expressed in a letter to the United States District Attorney for Virginia, who
was then in charge of the Burr prosecution*
Reserving the necessary right of the President of the U.S. to decide, independently c f all other
authority, what papers, coming to him as President, the public interests permit to be communicated,
& to whom, I assure you of my readiness under that restriction, voluntanly to furnish . . whatever
the purposes of justice may require.
9 The Wntings of Thomas Jefferson 55 (P. Ford ed 1898) Professor Berger also fails to note other occasions on
which President Jefferson let it be known that he regarded himself free to withhold certain “ confidential”
information “given for my information in the discharge of my executive functions, and which my duties & the
public interest forbid me to make public.” Id. at 63-64 (certificate to the court in Burr prosecution).
16 1 Richardson, supra, at 412
17 House Journal, 18th Cong , 2d Sess. 102-03 (1825).
755
tions with the Republic had only been suspended and not broken off, it would
“not be consistent with the public interest to communicate the correspondence
and instructions requested by the House so long as the negotiation shall be
pending.”20
Negotiations with Great Britain Over the Northeastern Boundary
In response to the Senate’s request for information regarding negotiations
carried on with Great Britain over the Northeastern Boundary, and particularly
with respect to the Maine settlement, President Jackson informed the Senate on
March 2, 1833, that negotiations with Great Britain were in progress and that in
the meantime it was “ not deemed compatible with the public interest” to
communicate the conditional arrangements made with the State of Maine.21 The
House of Representatives also requested information concerning the settlement
of the Northeastern Boundary, and on January 6,1835, President Jackson advised
the House that it would be “incompatible with the public interest” to communi
cate such information.22 However, the President did furnish this information to
the Senate at the next session, stating that “ as the negotiation was undertaken
under the special advice of the Senate, I deem it improper to withhold the
information which the body has requested, submitting to them to decide whether
it will be expedient to publish the correspondence before the negotiation has been
closed.” 23
Bank of the United States Document
On December 12, 1833, President Jackson responded to a resolution of the
Senate requesting him to provide “ ‘a copy of the paper which has been published,
and which purports to have been read by him to the heads of the Executive
Departments . . . relating to the removal of the deposits of the public money from
the Bank of the United States and its offices.’” President Jackson declined to
provide the document on the ground that the Legislature had no constitutional
authority to “ require of me an account of any communication, either verbally or
in writing, made to the heads of Departments acting as a Cabinet council . . .
[nor] might I be required to detail to the Senate the free and private conversations
I have held with those officers on any subject relating to their duties and my
own.” 24
Correspondence with France
On February 6, 1835, President Jackson furnished extracts from the dispatches
between the United States and the government of France that the House of
20 2 Richardson, supra, at 608-09
21 Id. at 637.
22 3 Richardson, supra, at 127
23 Id. at 229-30.
24 Id. at 36.
757
Representatives had requested, declining to send the full documents on the
ground that it was not at that time in the public interest to do so.25
Removal cf the Surveyor General
On February 10, 1835, President Jackson sent a message to the Senate
declining to comply with its resolution which requested the production of copies
of charges made to the President against Gideon Fitz, the Surveyor General,
which resulted in Mr. Fitz’s removal from office. The resolution based the
Senate’s need for the documents on: 1) the need to nominate Mr. Fitz’s successor,
and 2) a pending Senate investigation into fraud in the sale of lands.
The President refused to furnish the documents on the ground that they related
to subjects which belonged exclusively to the functions of the Executive. In
addition, the President said that disclosure of the documents would subject the
motives of the President in removing Mr. Fitz to the review of the Senate when not
sitting as judges in an impeachment proceeding, and that the Executive’s acquies
cence in the Fitz case might be used by Congress as a precedent for similar and
repeated requests. The President said:
This is another of those calls for information made upon me by
the Senate which have, in my judgment, either related to the
subjects exclusively belonging to the executive department or
otherwise encroached on the constitutional powers of the Ex
ecutive. Without conceding the right of the Senate to make either
of these requests, I have yet, for the various reasons heretofore
assigned in my several replies, deemed it expedient to comply
with several of them. It is now, however, my solemn conviction
that I ought no longer, from any motive nor in any degree, to yield
to these unconstitutional demands. Their continued repetition
imposes on me, as the representative and trustee of the American
people, the painful but imperious duty of resisting to the utmost
any further encroachment on the rights of the Executive.
.... Such a result, if acquiesced in, would ultimately subject
the independent constitutional action of the Executive in a matter
of great national concernment to the domination and control of the
Senate. . . .
I therefore decline a compliance with so much of the resolution
of the Senate as requests “copies of the charges, if any,” in
relation to Mr. Fitz, and in doing so must be distinctly understood
as neither affirming nor denying that any such charges were
made. . . .|261
25 Id. at 129
26 Id. at 132-34.
758
6. lyier Administration
Correspondence Regarding Negotiations with Great Britain Over the
Northeastern Boundary
In response to the House of Representatives’ request for all correspondence not
previously communicated regarding the United States’ negotiation with Great
Britain over the Northeastern Boundary, President Tyler withheld the documents
and sent a February 26, 1842, message to Congress saying that “ in my judgment
no communication could be made by me at this time on the subject of its
resolution without detriment or danger to the public interests.”27
Information Regarding Executive Appointments
On March 23, 1842, President Tyler refused to comply with a House resolution
requesting that the President and the heads of departments communicate the
names of such Members of the 26th and 27th Congresses who had applied for
office, what office, and whether such application had been made in person, in
writing, or through friends. President Tyler refused to disclose such information
on the ground that it was by nature confidential, the disclosure of which could
serve no “useful object connected with a sound and constitutional administration
of the Government in any of its branches,” and further, that
compliance with the resolution which has been transmitted to me
would be a surrender of duties and powers which the Constitution
has conferred exclusively on the Executive, and therefore such
compliance can not be made by me nor by the heads of Depart
ments by my direction. The appointing power, so far as it is
bestowed on the President by the Constitution, is conferred with
out reserve or qualification. The reason for the appointment and
the responsibility of the appointment rest with him alone. I can
not perceive anywhere in the Constitution of the United States any
right conferred on the House of Representatives to hear the
reasons which an applicant may urge for an appointment to office
under the executive department, or any duty resting upon the
House of Representatives by which it may become responsible for
any such appointment.1281
Treaty to Suppress Slave Trade
In response to the House of Representatives’ request to furnish, “ ‘so far as
may be compatible with the public interest,’” a copy of the quintuple treaty
between the five powers of Europe for the suppression of the African slave trade
27 4 Richardson, supra, at 101.
28 i'd. at 105-06.
759
and certain correspondence with respect to it, President Tyler replied on June 20,
1842, that he had not received an authentic copy of the treaty and that “ [i]n regard
to the other papers requested, although it is my hope and expectation that it will
be proper and convenient at an early day to lay them before Congress,. . . yet in
my opinion a communication of them to the House of Representatives at this time
would not be compatible with the public interest.”29
Information Regarding Steps Taken to Obtain Recognition cf American
Claims by Mexican Government
The Senate had requested the President to provide information, “ so far as he
might deem it compatible with the public interest,” concerning what measures, if
any, had been taken to obtain recognition by the Mexican government of certain
claims of American citizens. President Tyler replied on August 23, 1842, that
“ [i]n the present state of the correspondence and of the relations between the two
Governments on these important subjects it is not deemed consistent with the
public interest to communicate the information requested. The business engages
earnest attention, and will be made the subject of a full communication to
Congress at the earliest practicable period.” 30
Negotiations Regarding Northwestern Boundary
In response to the Senate’s request for information concerning the United
States’ negotiations with Great Britain for settlement of the Northwest Boundary,
President Tyler replied on December 23, 1842, that measures had been taken to
settle the dispute and that “under these circumstances I do not deem it consistent
with the public interest to make any communication on the subject.”31
Hitchcock Investigation
On January 31, 1843, President Tyler invoked executive privilege against a
request by the House of Representatives to the Secretary of War to produce
investigative reports submitted to the Secretary by Lieutenant Colonel Hitchcock
concerning his investigations into frauds perpetrated against the Cherokee Indi
ans. The Secretary of War consulted with the President and under the latter’s
direction informed the House that negotiations were then pending with the
Indians for settlement of their claims, and that in the opinion of the President and
the Department, publication of the report at that time would be inconsistent with
the public interest. The Secretary of War further stated that the reports sought by
the House contained information which was obtained by Colonel Hitchcock
through ex p a rte questioning of persons whose statements were not made under
oath, and which implicated persons who had no opportunity to contradict the
29 Id at 158
30 Id. at 178-79.
31 Id at 210-11
760
allegations or provide any explanation. The Secretary of War expressed the
opinion that to publicize such statements at that time would be unjust to the
persons mentioned , and would defeat the object of the inquiry. He also stated that
the Department had not yet been given a sufficient opportunity to pursue the
investigation, to call the affected parties for explanations, or to make any other
determinations regarding the matter. The President stated:
The injunction of the Constitution that the President ‘shall take
care that the laws be faithfully executed,’ necessarily confers an
authority, commensurate with the obligation imposed to inquire
into the manner in which all public agents perform the duties
assigned to them by law. To be effective these inquiries must often
be confidential. They may result in the collection of truth or of
falsehood, or they may be incomplete and may require further
prosecution. To maintain that the President can exercise no discre
tion as to the time in which the matters thus collected shall be
promulgated . . . would deprive him at once of the means of
performing one of the most salutary duties of his office. . . . To
require from the Executive the transfer of this discretion to a
coordinate branch of the Government is equivalent to the denial of
its possession by him and would render him dependent upon that
branch in the performance of a duty purely executive.1321
In response to the House’s claim that it had a right to demand from the
Executive and heads of departments any information in the possession of the
Executive which pertained to subjects under the House’s deliberations, President
Tyler stated that the House could not exercise a right to call upon the Executive for
information, even though it related to a subject of the deliberations of the House,
if, by so doing, it would interfere with the discretion of the Executive.33
Instructions to Navy Officers
In response to the House of Representatives’ request for copies of instructions
given to British and American commanding officers who were charged, pursuant
to a treaty with Great Britain, with suppressing the slave trade off the coast of
Africa, President Tyler sent a May 18, 1844, message to the House declining to
provide the information on the ground that to do so would be incompatible with
the public interest.34
Foreign Correspondence Regarding the Ownership and Occupation of
Oregon Territory
In June 1844, President Tyler sent a message to the Senate explaining his
refusal to comply with its request for documents relating to the ownership and
32 Id. at 222.
33 Id at 222-23.
34 Id. at 320.
761
occupation of the Oregon Territory. “ [I]n the present state of the subject-matter, ”
the President wrote, “ it is deemed inexpedient to communicate the information
requested. . . .”35
7. Polk Administration
Foreign Relations Expenditures cf Prior Administration
In 1846, President Polk refused to provide the House of Representatives with
confidential memoranda regarding certain expenses incurred for the conduct of
foreign relations during the Tyler Administration. In refusing to comply with a
House resolution requesting documentation of these expenses, President Polk
stated that where a past President had placed a seal of confidentiality upon an
expenditure, and the matter was terminated before he entered office,
[a]n important question arises, whether a subsequent Presi
dent, either voluntarily or at the request of one branch of Con
gress, can without a violation of the spirit of the law revise the acts
of his predecessor and expose to public view that which he had
determined should not be “made public.” If not a matter of strict
duty, it would certainly be a safe general rule that this should not
be done. Indeed, it may well happen, and probably would hap
pen, that the President for the time being would not be in posses
sion of the information upon which his predecessor acted, and
could not, therefore, have the means of judging whether he had
exercised his discretion wisely or not.1361
Polk concluded that the President making an expenditure, deemed by him
confidential, may, if he chooses, keep all the information and evidence upon
which he acts in his own possession. If, for the information of his successors, he
leaves some evidence upon which he acts in the confidential files of one of the
executive departments, such evidence does not thereby become publicly
available.
Military and Diplomatic Instructions with Respect to Mexico
On January 12, 1848, President Polk sent a message to the House transmitting
reports of the Secretaries of State, War, and the Navy in response to a con
gressional resolution seeking copies of all instructions given to American mili
tary and diplomatic officers relating to the return of President General Lopez de
Santa Anna to Mexico. President Polk stated that he was transmitting the
documents,
» Id. at 327.
»/</. at 433.
762
which contain all the information in the possession of the Ex
ecutive which it is deemed compatible with the public interests to
communicate. . . .
The customary and usual reservation contained in calls of either
House of Congress upon the Executive for information relating to
our intercourse with foreign nations has been omitted in the
resolution before me. The call of the House is unconditional. It is
that the information requested be communicated, and thereby be
made public, whether in the opinion of the Executive (who is
charged by the Constitution with the duty of conducting negotia
tions with foreign powers) such information, when disclosed,
would be prejudicial to the public interest or not. It has been a
subject of serious deliberation with me whether I could, consist
ently with my constitutional duty and my sense of the public
interests involved and to be affected by it, violate an important
principle, always heretofore held sacred by my predecessors, as I
should do by a compliance with the request of the House. Presi
dent Washington, in a message to the House of Representatives of
the 30th of March, 1796, declined to comply with a request
contained in a resolution of that body, to lay before them “a copy
of the instructions to the minister of the United States who
negotiated the treaty with the King of Great Britain, together with
the correspondence and other documents relative to that treaty,
excepting such of the said papers as any existing negotiation may
render improper to be disclosed.”
. . . Indeed, the objections to complying with the request of
the House contained in the resolution before me are much strong
er than those which existed in the case of the resolution in 1796.
This resolution calls for the “ instructions and orders” to the
minister of the United States to Mexico which relate to negotia
tions which have not been terminated, and which may be re
sumed. The information called for respects negotiations which
the United States offered to open with Mexico immediately pre
ceding the commencement of the existing war. The instructions
given to the minister of the United States relate to the differences
between the two countries out of which the war grew and the terms
of adjustment which we were prepared to offer to Mexico in our
anxiety to prevent the war. These differences still remain unset
tled, and to comply with the call of the House would be to make
public through that channel, and to communicate to Mexico, now
a public enemy engaged in war, information which could not fail
to produce serious embarrassment in any future negotiation be
tween the two countries. I have heretofore communicated to
Congress all the correspondence of the minister of the United
States to Mexico which in the existing state of our relations with
763
that Republic can, in my judgment, be at this time communicated
without serious injury to the public interest.
Entertaining this conviction, and with a sincere desire to fur
nish any information which may be in possession of the executive
department, and which either House of Congress may at any time
request, 1 regard it to be my constitutional right and my solemn
duty under the circumstances of this case to decline a compliance
with the request of the House contained in their resolution.1371
Diplomatic Instructions Relating to United States-Mexico Treaty
On July 29, 1848, President Polk refused to comply with a request by the
House of Representatives for copies of instructions provided to commissioners
who negotiated the treaty with Mexico on the ground that “ it would be ‘inconsist
ent with the public interests’ to give publicity to these instructions at the present
time.” He added that, “ as a general rule applicable to all our important negotia
tions with foreign powers, it could not fail to be prejudicial to the public interest
to publish the instructions of our ministers until some time had elapsed after the
conclusion of such negotiations.”38
President Polk did transmit these documents to the House on February 8,
1849, at which time he reaffirmed the general rule enunciated on July 29, but
stated that, notwithstanding that, “as [the documents] have been again called for
by the House, and called for in connection with other documents, to the correct
understanding of which they are indispensable, 1 have deemed it my duty to
transmit them.”39
8. Fillmore Administration
Diplomatic Instructions
Upon receipt of a request from the Senate to furnish, if not inconsistent with
the public interest, information concerning the seizure of the American steam
ship Prometheus by a British war vessel and the measures taken to vindicate “the
honor of the country,” President Fillmore, on December 15, 1851, transmitted
excerpts from a communication giving the facts of the case, but without the
instructions given to the United States Minister in London. He declared that
“ [sufficient time has not elapsed for the return of any answer to this dispatch
from him, and in my judgment it would at the present moment be inconsistent
with the public interest to communicate those instructions. A communication,
however, of all the correspondence will be made to the Senate at the earliest
moment at which a proper regard to the public interest will permit.”40
37 Id at 565. 566, 567.
38 Id. at 602.
39 Id. at 679.
40 5 Richardson, supra, at 139-40.
764
Documents Involving American Claims Against the Mexican Government
In response to a Senate request for papers and proofs on file with the Executive
Branch regarding the claim of Samuel A. Belden & Co. against the Mexican
government, on May 29, 1852, President Fillmore forwarded all documents save
those of a diplomatic nature, and stated that because the claim was still being
negotiated it was therefore “not deemed expedient . . . to make public the
documents which have been reserved.”41
Sandwich Islands
On August 14, 1852, President Fillmore refused to provide information to the
Senate regarding a proposition made by the King of the Sandwich Islands to
transfer the islands to the United States, as not comporting with the public
interest.42
9. Buchanan Administration
Law Enforcement Files
On January 11,1859, President Buchanan responded to a request by the Senate
for information relating to the landing of a slave ship on the coast of Georgia. The
President transmitted a report from the Attorney General which stated that an
offense had been committed and that measures were being taken to enforce the
law. However, he concurred with the opinion of the Attorney General that “ it
would be incompatible with the public interest at this time to communicate the
correspondence with the officers of the Government at Savannah or the instruc
tions which they have received.”43
10. Lincoln Administration
Fort McHenry Arrests
On July 27, 1861, President Lincoln refused to provide to the House of
Representatives documents revealing the grounds, reasons, and evidence upon
which Baltimore police commissioners were arrested at Fort McHenry for the
reason that disclosure at that time would be incompatible with the public
interest.44
Arrest cf Brigadier General Stone
On May 1, 1862, President Lincoln refused to comply with a request by the
Senate for more particular information regarding the evidence leading to the
4 ,/</. at 151.
42 Id at 159.
43 Id. at 534.
44 6 Richardson, supra, at 33.
765
arrest of Brigadier General Stone on the ground that the determination to arrest
and imprison him was made upon the evidence and in the interest of public safety,
and that disclosure of more particular information was incompatible with the
public interest.45
Negotiations with New Granada
The House of Representatives had requested the Secretary of State to commu
nicate to it, “ if not in his judgment incompatible with the public interest,”
information concerning American relations with New Granada, and what nego
tiations, if any, had been had with General Herran of that country. President
Lincoln, on January 14, 1863, replied to the resolution giving a resume of
developments in New Granada. However, with respect to official communica
tions with General Herran, he stated that “ [n]o definitive measure or proceeding
has resulted from these communications, and a communication of them at present
would not, in my judgment, be compatible with the public interest.”46
11. Johnson Administration
Military Correspondence
On January 26, 1866, President Johnson refused to disclose to the Senate
certain communications from military officers regarding violations of neutrality
on the Rio Grande on the ground that such disclosure would not be consistent
with the public interest.47
Confinement cf Jefferson Davis
On February 9,1866, President Johnson refused, on advice from the Secretary
of War and the Attorney General, to comply with a request by the House of
Representatives for a report by the Judge Advocate General concerning the
confinement of Jefferson Davis, and others, on the ground that disclosure would
not be in the public interest.48
New Orleans Investigations
On May 2, 1866, President Johnson refused to provide the House of Repre
sentatives with a copy of a report that it had requested concerning General
Smith’s and James T. Brady’s New Orleans investigations, citing the public
interest in nondisclosure.49
45 Id. at 74.
* M . at 147. 149.
47 Id. at 376-77.
48 Id. at 378.
49 Id. at 385.
766
12. Grant Administration
Performance cf Executive Functions
In April 1876, President Grant was requested by the House of Representatives
to provide information which would show whether any executive acts or duties
had been performed away from Washington, the lawfully established seat of
government . (This was an attempt to embarrass the President for having spent the
hot summer at Long Beach.) On May 4, 1876, the President refused on the
ground that the Constitution did not give the House of Representatives authority
to inquire of the President where he performed his executive functions, and that,
moreover, the House’s lawful demands on the Executive were limited to informa
tion necessary for the proper discharge of its powers of legislation or
impeachment.50
13. Cleveland Administration
Dismissal of District Attorney
In response to a resolution by the Senate requesting the Attorney General to
provide certain documents concerning the administration of the United States
Attorney’s Office (then District Attorney) for the Middle District of Alabama,
and the President’s dismissal of the incumbent district attorney, President
Cleveland sent a message on March 1, 1886, to the Senate stating that he was
withholding the requested documents because they contained information ad
dressed 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 exclusively a discretion
ary executive function.51
“Rebecca” Schooner Incident
On February 26, 1887, President Cleveland refused to provide the Senate with
information that it requested regarding the seizure and sale of the American
schooner Rebecca at Tampico, and the resignation of the Minister of the United
States to Mexico, on the ground that publication of the requested correspondence
would be inconsistent with the public interest.52
14. Harrison Administration
International Conference on the Use cf Silver
In response to the Senate’s request for information regarding the steps taken
toward holding an international conference on the use of silver, President Har
50 7 Richardson, supra, at 361-66
51 8 Richardson, supra, at 375.
52 Id. at 538
767
rison stated on April 26, 1892, that “in my opinion it would not be compatible
with the public interest to lay before the Senate at this time the information
requested, but that at the earliest moment after definite information can properly
be given all the facts and any correspondence that may take place will be
submitted to Congress.”53
15. Cleveland Administration
Cuba Matters
In response to a request by the House of Representatives for copies of all
correspondence relating to affairs in Cuba since February 1895, President
Cleveland transmitted on February 11, 1896, a communication from the Secre
tary of State and such portions of the correspondence requested as he deemed it
not inconsistent with the public interest to communicate.54
Correspondence with Spain
On May 23, 1896, President Cleveland transmitted to the Senate a requested
copy of the protocol with Spain, but withheld copies of certain correspondence
with Spain on the ground that it would be incompatible with the public good to
furnish such correspondence.55
16. McKinley Administration
War Department Investigations
In response to a request made by the Senate to the Secretary of War for a report
on the War Department’s investigation into receipts and expenditures of Cuban
funds, President McKinley informed the Senate on January 3, 1901, that it was
not deemed compatible with the public interest to transmit the document at that
time.56
17. Theodore Roosevelt Administration
United States Steel Proceedings
On January 4, 1909, the Senate passed a resolution directing the Attorney
General to inform the Senate whether certain legal proceedings had been in
stituted against the United States Steel Corporation, and if not, the reasons for its
non-action. A request was also made for the opinions of the Attorney General
regarding this matter, if any had been written. President Roosevelt replied to the
Senate on January 6, 1909, stating that he had been orally advised by the Attorney
33 9 Richardson, supra, at 238-39.
54 Id. at 666.
53 Id. at 669.
56 9 Richardson, supra, at 6458 (Bur of Nat’i Literature ed. 1911).
768
General 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. I have done so 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. Heads of the executive departments are
subject to the Constitution, and to the laws passed by the Con
gress in pursuance of the Constitution, and to the directions of the
President of the United States, but to no other direction
whatever.1571
When the Senate was unable to get the documents from the Attorney General,
it subpoenaed the Commissioner of Corporations to produce all papers and
documents regarding U.S. Steel in his possession. The Commissioner reporteid
the request to the President, who sought an opinion from Attorney General
Bonaparte regarding the Commission’s statutory obligation to withhold such
information except upon instruction by the President. The Attorney General
advised the Commissioner that the discretion to make public the requested
documents was vested in the President and that, accordingly, he should turn over
all documents within the scope of the subpoena to the President.58 The Commis
sioner did so, and President Roosevelt then informed the Judiciary Committee
that he had the papers and that the only way the Senate could get them was
through his impeachment. President Roosevelt also explained that some of the
facts were given to the government under a pledge of secrecy and that the
government had an obligation to keep its word.59
18. Coolidge Administration
Bureau cf Internal Revenue Oversight
On April 11, 1924, President Coolidge responded to a request by the Senate
for a list of all companies in which the Secretary of the Treasury “was interested”
(for the purpose of investigating their tax returns) as a part of a general oversight
investigation of the Bureau of Internal Revenue. President Coolidge refused to
provide the information on the ground that it was confidential information the
disclosure of which would be detrimental to public service, calling the Senate’s
investigation an “unwarranted intrusion,” bom of a desire other than to secure
information for legitimate legislative purposes.60
” 43 Cong Rec. 528 (1909).
58 27 Op Att’y Gen. 150 (1909).
59 E Corwin, The President—Office and Powers 429 (1957).
60 65 Cong. Rec 6087 (1924)
769
19. Hoover Administration
London Treaty Letters
On July 11, 1930, President Hoover responded to a request addressed to the
Secretary of State from the Senate Foreign Relations Committee for certain
confidential telegrams and letters leading up to the London Naval Conference and
the London Treaty. The Committee members had been permitted to see the
documents with the understanding that the information contained therein would
be kept confidential. The Committee asserted its right to have full and free access
to all records touching on the negotiation of the Treaty, basing its right on the
constitutional prerogative of the Senate in the treaty-making process. In his
message to the Senate, President Hoover pointed out that there were a great many
informal statements and reports which were given to the government in con
fidence. The Executive was under a duty, in order to maintain amicable relations
with other nations, not to publicize every negotiating position and statement
which preceded final agreement on the Treaty. He stated that the Executive must
not be guilty of a breach of trust, nor violate the invariable practice of nations. “ In
view of this, I believe that to further comply with the above resolution would be
incompatible with the public interest.”61
20. Franklin D. Roosevelt Administration
FBI Records
On April 30, 1941, at the direction of President Roosevelt, Attorney General
Jackson wrote the Chairman of the House Committee on Naval Affairs, stating
his refusal to provide the Committee with certain FBI records. Attorney General
Jackson declared that “ all investigative reports are confidential documents of the
executive department 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.”62
Radio Intelligence Material
Pursuant to a January 19, 1943, resolution, a House Select Committee to
Investigate the Federal Communications Commission (FCC) subpoenaed the
Director of the Bureau of the Budget on July 9, 1943, to appear before the Select
Committee and produce Bureau files and correspondence dealing with requests
by the War and Navy Departments to the President for an executive order
transferring the functions of the FCC’s Radio Intelligence Division to the military
establishments. The Director refused, citing Attorney General Jackson’s letter of
61 S. Doc No. 216, 71st Cong , Special Sess 2 (1930).
62 40 Op. Att’y Gen 45, 46 (1941)
770
April 30, 1941, and a presidential instruction that the Bureau’s files were to be
kept confidential, because disclosure would not comport with the public
interest.63
In addition, the Acting Secretary of War was requested to appear before the
Select Committee to produce documents bearing on the War and Navy Depart
ments’ requests to the President and to bring several Army officers to testify. The
Acting Secretary refused to provide the documents on the President’s direction,
on the ground that doing so would be incompatible with the public interest, and,
pursuant to his own judgment, refused to permit the Army officers to appear.64
FBI Records
In 1944, the same Select Committee subpoenaed the Director of the Federal
Bureau of Investigation to testify concerning fingerprint records and 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 Director refused to give testimony
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.65 Attorney General Biddle wrote a letter to the Select Committee,
dated January 22, 1944, informing the Committee that communications between
the President and the heads of departments were privileged and not subject to
inquiry by congressional committees.66
21. TVuman Administration
Condon Incident
In March 1948, the House Committee on Un-American Activities issued a
subpoena to the Secretary of Commerce directing him to appear before the
Committee and to bring with him a letter from the Director of the FBI concerning
the loyalty of Dr. Condon, Director of the National Bureau of Standards, together
with all records, files, and transcripts of the loyalty board relating to Dr. Condon.
On March 13, 1948, President Truman issued a directive providing for the
confidentiality of all loyalty files and requiring that all requests for such files from
sources outside the Executive Branch be referred to the Office of the President,
for such response as the President may determine. 13 Fed. Reg. 1359 (1948). At a
press conference held on April 22, 1948, President Truman indicated that he
would not comply with the request to turn the papers over to the Committee.67
Steelman Incident
On March 6, 1948, during an investigation into a strike among employees of
Government Services, Inc., a subcommittee of the Hcuse Committee on Educa
63 Study and Investigation c f the Federal Communications Commission Hearings on H Res. 21 Before the House
Select Comm, to Investigate the Federal Communications Commission, 78th Cong., 1st Sess 37 (1943).
64 Id at 67-68
65 Id. at 2304-05.
66 Id at 2337-39
67 The Public lepers of the Presidents, Harry S Truman, 1948, at 228
771
tion and Labor issued a subpoena to presidential assistant John R. Steelman.68
Mr. Steelman returned the subpoena to the chairman of the subcommittee on the
ground that “ the President directed me, in view of my duties as his assistant, not
to appear before your subcommittee.”69 The minority report to H.R. Rep. No.
1595 commented on Mr. Steelman’s failure to comply with the subpoena as
follows:
the purpose of the subpoena on Mr. Steelman was to obtain from
him the contents of any oral or written communications which had
been made to him by the President with reference to the strike
prevailing in the restaurants maintained by Government Services,
Inc. I cannot believe that any congressional committee is entitled
to make that kind of investigation into the private conferences of
the President with one of his principal aides. I cannot conceive
that the views of a Senator or Congressman on a pending bill may
be extracted by a court or by a congressional committee by
subpoenaing the Senator’s of [sic] Congressman’s administrative
assistant or any other assistant, secretary, or confidential em
ployee. Likewise, I regard it as a direct invasion of the Executive’s
prerogative to invade the work and time of his assistant in this
manner. Dr. Steelman I think acted with the utmost propriety in
referring the matter to the President. The Chief Executive very
naturally and properly directed Dr. Steelman not to appear before
the subcommittee.1701
State Department Employee Loyalty Investigation
On March 28, 1950, a subcommittee of the Senate Foreign Relations Commit
tee investigating allegations of disloyalty among State Department employees
served subpoenas on the Secretary of State, the Attorney General, and the
Chairman of the Civil Service Commission, demanding the production of all files
bearing on the loyalty of certain State Department employees. After reference of
the subpoena to the President pursuant to the directive of March 13, 1948, the
President on April 3, 1950, directed the officials not to comply with the sub
poena.71 Thereafter it appeared that the subpoenaed documents had been made
available to the preceding Congress prior to the issuance of the March 13, 1948,
directive. President Truman thereupon agreed to make the files available to the
subcommittee on the theory that this would not constitute a precedent for
subsequent exceptions from the March 13, 1948, directive.72
68 Investigation c f GSI Strike: Hearings on H. Res 111 Before a Special Subcomm. c f the House Comm, on
Education and Labor, 80th Cong , 2d Sess. 347-53 (1948).
69 H R Rep. No. 1595, 80th Cong., 2d Sess. 3 (1948); see id Pt. 2, at 8.
70 Id. Pt. 1, at 12
71 The Public F^pers of the Presidents, Harry S Truman, 1950, at 240.
72 S. Rep. No. 2108, 81st Cong., 2d Sess. 9 (1950)
772
During the investigation into the circumstances surrounding the dismissal of
General Douglas MacArthur held by the Senate Committees on Armed Services
and Foreign Relations in 1951, General Bradley refused to testify about a
conversation with President Truman in which he had acted as the President’s
confidential adviser. The Chairman of the Committee, Senator Russell, recog
nized Bradley’s claim of privilege. When that ruling was challenged, the Com
mittee upheld it by a vote of 18 to 8.73 At a press conference held on May 17,
1951, President Truman indicated that he had previously taken the position that
his conversation with General Bradley was privileged and that he was “happy”
with the Committee’s action.74
Refusal to Comply with an Excessively Burdensome Demand for Information
During an investigation into the administration of the Department of Justice by
a special subcommittee of the House Judiciary Committee, the chairman of the
subcommittee requested a number of departments and agencies to furnish the
following information:
A list of all cases referred to the Department of Justice or U.S.
Attorneys for either criminal or civil action by any governmental
department or agency within the last six years, in which:
a. Action was declined by the Department of Justice, including
in each such case the reason or reasons assigned by said Depart
ment for such refusal to act.
b. Said cases were returned by the Department of Justice to the
governmental Department or agency concerned for further infor
mation or investigation. In such cases, a statement of all subse
quent action taken by the Department of Justice should be
included.
c. Said cases have been referred to the Department of Justice
and have been pending in the Department for a period of more
than one year and are not included in b. above.1751
President Truman instructed the heads of all agencies and departments not to
comply with that request for the following reasons set forth in his letter, dated
March 7, 1952, to the chairman of the subcommittee:
[T]his request of yours is so broad and sweeping in scope that it
would seriously interfere with the conduct of the Government’s
business if the departments and agencies should undertake to
General Bradley Incident
73 Military Situation in the Far East' Hearings Before the Senate Comm, on Armed Services and the Senate
Comm, on Foreign Relations, 82d Cong., 1st Sess. 763, 832-72 (1951).
74 The Public Ffcpers of the Presidents. Harry S Truman, 1951, at 289.
73 The Public lepers of the Presidents, Harry S Truman, 1952-53, at 199.
773
comply with it. I am advised that it would require the examination
of hundreds of thousands of files, that it would take hundreds of
employees away from their regular duties for an extensive period
of time, and that it would cost the Government millions of dollars.
All this would be done, not for the purpose of investigating
specific complaints, not for the purpose of evaluating credible
evidence of wrongdoing, but on the basis of a dragnet approach to
examining the administration of the laws.
1 do not believe such a procedure to be compatible with those
provisions of the Constitution which vest the executive power in
the President and impose upon him the duty to see that the laws
are faithfully executed.1761
Confidentiality cf Administration cf Loyalty Security Program
In the spring of 1952 members of a Senate Appropriations subcommittee
sought detailed information on the administration of the Loyalty Security Pro
gram. In response to a request for guidance by the Department of State, President
Truman on April 3, 1952, issued detailed instructions which provided for the
confidentiality of the Loyalty Security Program. These instructions provided,
inter alia:
There is no objection to making available the names of all
members of an agency loyalty board, but it is entirely improper to
divulge how individual board members voted in particular cases
or to divulge the members who sat on particular cases. If this type
of information were divulged freely, the danger of intimidation
would be great, and the objectivity, fairness and impartiality of
board members would be seriously prejudiced.1771
22. Eisenhower Administration
Executive Branch Deliberative Discussions
During the Army-McCarthy Hearings, the counselor of the Army was ques
tioned about discussions which had taken place during a conference of high-level
government officials.
On May 17, 1954, President Eisenhower directed the Secretary of Defense to
instruct the employees of his Department not to testify on those issues. The
President’s letter stated:
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,
n id.
77 Id. at 235-36.
774
and because it is not in the public interest that any of their
conversations or communications, or any documents or reproduc
tions, concerning such advice be disclosed, you will instruct
employees of your Department that in all of their appearances
before the Subcommittee of the Senate Committee on Govern
ment Operations regarding the inquiry now before it they are not
to testify to any such conversations or communications, or to
produce any such documents or reproductions. This principle
must be maintained regardless of who would be benefited by such
disclosures.1781
This letter was interpreted as requiring every officer and employee of the
government to claim privilege on his own in any situation covered by that letter.
Hence there were a considerable number of invocations of executive privilege
during the Eisenhower Administration which were not referred to, or specifically
authorized by, the President.
Conversation with Presidential Assistant Sherman Adams
During hearings in July 1955 on the Dixon-Yates Contract before the Subcom
mittee on Antitrust and Monopoly of the Senate Judiciary Committee, Securities
and Exchange Commission Chairman Armstrong was questioned on various
issues. During most of his testimony, questions of privilege were disposed of
without reference to the White House. When questioned about a telephone
conversation with Presidential Assistant Sherman Adams, he sought the advice
of the Special Counsel to the President who, upon advice of the Attorney
General, directed that Mr. Armstrong could testify as to existence of the con
versation, but not as to matters discussed during the conversation.79
Killian and Gaither Panel Reports
In connection with an investigation into satellite and missile programs in
January 1958, then-Senator Lyndon Johnson asked for the release of the so-called
Killian and Gaither Panel reports. President Eisenhower denied the request in
part on the ground that the reports had been prepared with the understanding that
the advice contained in them would be kept confidential. The President added
that “these reports are documents of the National Security Council. Never have
the documents of this Council been furnished to the Congress.”80
Confidentiality of ICA Country Reports
Between 1957 and 1959 the International Cooperation Administration (ICA),
the predecessor to the Agency for International Development (AID), repeatedly
78 The Public lepers of the Presidents, Dwight D Eisenhower, 1954, at 483-84
79 Power Policy. Dixon-Yates Contract' Hearings on S Res 61 Before the Subcomm. on Antitrust and Monopoly
c f the Senate Comm on the Judiciary. 84th Cong., 1st Sess. 751 (1955).
80The Public Ffcpers of the Presidents, Dwight D. Eisenhower, 1958, at 117-18.
775
denied to Congress and to the Comptroller General access to its country evalua
tion reports on the ground that they contained confidential opinions and tentative
recommendations on matters involving foreign policy. These refusals were made
without express presidential authorization.
When this issue came up at President Eisenhower’s news conference of July 1,
1959, the President approved these withholdings largely on the ground that the
release of the reports would jeopardize the ability of the United States to obtain
confidential information.81
The Mutual Security legislation of 1959—1961 provided in effect that the ICA
could withhold information from Congress or the Comptroller General only upon
a presidential certification that he had forbidden the document be furnished and
stated the reason for so doing. President Eisenhower made the following
certifications:
November 12, 1959, relating to an evaluation report on Vietnam;82
December 22, 1959, relating to evaluation reports on Iran and Thailand;83
December 2, 1960, relating to evaluation reports on several South American
countries. These reports apparently were made available to the Comptroller
General during the following Administration.84
23. Kennedy Administration
Confidentiality cf Names cf Specific Government Employees
During an investigation into military cold war education and speech review
policies conducted by the Senate Committee on Armed Services, Senator Thur
mond requested the names of individual government employees of the Depart
ment of Defense and the Department of State who made or recommended
changes in specific speeches.
On February 8, 1962, President Kennedy directed the Secretary of Defense
and all personnel under the jurisdiction of his Department not to give any
testimony or produce any documents which would disclose such information.
The letter stated:
[I]t would not be possible for you to maintain an orderly Depart
ment and receive the candid advice and loyal respect of your
subordinates if they, instead of you and your senior associates, are
to be individually answerable to the Congress, as well as to you,
for their internal acts and advice.
S(C Jfc H* *
I do not intend to permit subordinate officials of our career
81 Id.. 1959, at 488, 489.
82 Id. at 776.
83 Id. at 874
84 Id , 1960-61, at 881
776
services to bear the brunt of congressional inquiry into policies
which are the responsibilities of their superiors.1851
Chairman Stennis upheld the claim of privilege. The ruling was upheld by the
Subcommittee.86 On February 9, 1962, President Kennedy sent a similar letter to
the Secretary of State.87
Confidentiality cf National Security Council Papers
Later, during the same investigation into military cold war education and
speech review policies, Senator Thurmond demanded certain National Security
Council papers. In a letter to Chairman Stennis dated June 23, 1962, President
Kennedy refused to release those papers on the ground that “ the unbroken
precedent of the National Security Council is that its working papers and policy
documents cannot be furnished to the Congress.”88
24. Johnson Administration
Exemption cf Presidential Assistants from Appearance Before Congressional
Committees
In 1968, during hearings on the nomination of Justice Fortas to be Chief
Justice of the United States, Treasury Under Secretary Barr, Associate Special
Counsel to the President DeVier Pierson, and Secretary of Defense Clark
Clifford were invited to appear before the Senate Committee on the Judiciary to
testify on the question whether Justice Fortas had participated in high-level White
House meetings dealing with the development of legislation authorizing the
Secret Service to protect presidential candidates.
By letters dated September 16, 1968, Mr. Barr and Mr. DeVier Pierson both
declined the invitation. Mr. Barr’s letter contained the following pertinent
language:
In the development of this legislation, I participated in meetings
with representatives of the White House and discussed the matter
directly with the President.
Based on long-standing precedents, it would be improper for
me under these circumstances to give testimony before a Con
gressional committee concerning such meetings and discussions.
Therefore, I must, with great respect, decline your invitation to
appear and testify.
Mr. DeVier Pierson stated:
85 Military Cold War Education and Speech Review Policies • Hearings Before the Special Preparedness
Subcomm cf the Senate Comm on Armed Services, 87th Cong , 2d Sess. 508-509 (1962).
86 Id. at 513-14.
87 Id at 725.
88 Id. at 2951-57. 3160-61.
Ill
As Associate Special Counsel to the President since March of
1967, I have been one of the “ immediate staff assistants”
provided to the President by law. (3 U.S.C. 105, 106.) It has been
firmly established, as a matter of principle and precedents, that
members of the President’s immediate staff shall not appear
before a Congressional committee to testify with respect to the
performance of their duties on behalf of the President. This
limitation, which has been recognized by the Congress as well as
the Executive, is fundamental to our system of government. I
must, therefore, respectfully decline the invitation to testify in
these hearings.
The Secretary of Defense also asked to be excused ifrom a personal appearance
before the Committee, stating that “because of the complexities of the current
world situation, my time is fully occupied in meeting my obligations and
responsibilities as Secretary of Defense.”89
25. Nixon Administration
FBI Investigative Files
On November 21, 1970, the Attorney General, with the specific approval of
the President, refused to release certain investigative files of the Federal Bureau
of Investigation to Rep. L. H. Fountain, Chairman of the Intergovernmental
Relations Subcommittee of the House Government Operations Committee. The
reports discussed certain scientists nominated by the President to serve on
advisory boards of the Department of Health, Education and Welfare.90
Military Assistance Plan
On August 30, 1971, President Nixon declined to make available to the Senate
Foreign Relations Committee the Five-Year Plan for the Military Assistance
Program.91 In a memorandum to the Secretaries of State and Defense, the
President stated:
The Senate Foreign Relations Committee has requested “direct
access to the Executive Branch’s basic planning data on Military
Assistance” for future years and the several internal staff papers
containing such data. The basic planning data and the various
89 Nominations cf Abe Fortas and Homer Thornberry: Hearings Before the Senate Comm, on the Judiciary, 90th
Cong.. 2d Sess. 1347, 1348, 1363 (1968).
90 Memorandum for Honorable William S. Moortiead, Chairman, Subcommittee on Foreign Operations and
Government Information of the House Committee on Government Operations, from Deputy Assistant Attorney
Genera] Mary Lawton (Apr. 25, 1973) (Lawton Memorandum); U.S. Government Information Policies and
fYactices—The Pentagon Papers, Part 2, House Comm, on Government Operations, 92d C ong., IstSess 362-63
(1971).
91 Executive Privilege. The Withholding c f Information By the Executive: Hearing Before the Subcomm. on
Separation c f Powers c f the Senate Comm, on the Judiciary, 92d Cong., 1st Sess. 45-46 (1971).
778
internal staff papers requested by the Senate Foreign Relations
Committee do not, insofar as they deal with future years, reflect
any approved program of this Administration. . . .
I am concerned, as have been my predecessors, that unless
privacy of preliminary exchange of views between personnel of
the Executive Branch can be maintained, the full frank and
healthy expression of opinion which is essential for the successful
administration of Government would be muted.
I have determined, therefore, that it would not be in the public
interest to provide to the Congress the basic planning data on
military assistance as requested by the Chairman. . . ,1921
AID Information Concerning Foreign Assistance to Cambodia
On March 15, 1972, the President directed the Secretary of State to withhold
from the Foreign Operations and Government Information Subcommittee of the
House Government Operations Committee the Agency for International De
velopment (AID) country field submissions for Cambodian foreign assistance for
fiscal year 1973.”
USIA Memoranda
On the same date the President instructed the Director of the United States
Information Agency (USIA) to decline to provide to the Senate Foreign Relations
Committee all USIA country program memoranda.94
Watergate
President Nixon, asserting executive privilege during 1973 and 1974, refused
to provide to the Senate Select Committee on Presidential Campaign Activities
(Watergate Committee) and to the House Judiciary Committee various tape
recordings of conversations involving the President, and other materials relating
to the involvement of 25 named individuals in criminal activities connected with
the 1972 presidential election.95
26. Carter Administration
Department of Energy Gas Conservation Fee Documents
In April 1980 the Subcommittee on Environment, Energy and Natural Re
sources of the House Committee on Government Operations subpoenaed docu
n Id at 46.
93 118 Cong. Rec 8694 (1972); Lawton Memorandum, supra.
94 Id.
93 See J. Hamilton, The Power to Probe 23-26, 65 (1976); Cox, Executive Privilege, 122 U. Pa. L Rev 1383,
1420 (1974) Although the tape recordings were eventually turned over to the House Judiciary Committee, the
President's refusal to make those same tapes available to the Senate Watergate Committee was unanimously affirmed
by the U.S. Court of Appeals for the District of Columbia Circuit Senate Select Committee v. Nixon, 498 F.2d 725
(1974) (en banc) President Nixon’s refusal to disclose Watergate-related tapes and documents in response to a
subpoena in a criminal case is beyond the scope of this memorandum See generally United States v Nixon, 418
U.S. 683 (1974)
779
ments reflecting intra-Executive Branch deliberations concerning the President’s
decision to impose a conservation fee on imports of crude oil and gasoline.96 For
several weeks representatives of the Executive Branch negotiated with the
Subcommittee about releasing the documents. On April 25, 1980, Secretary of
Energy Duncan informed the Subcommittee that “the President has instructed
me to pursue all reasonable grounds of accommodation. If there are no further
reasonable avenues of negotiation, the President has instructed me to assert a
privilege with respect to these documents.”97 Ultimately, some but not all of the
documents were given to the Subcommittee, which tacitly withdrew its request
for documents that reflected deliberations directly involving the Executive Office
of the President.98
27. Reagan Administration
Secretary Watt’s Implementation cf the Mineral Lands Leasing Act
On October 2, 1981, the Oversight and Investigations Subcommittee of the
House Committee on Energy and Commerce served a subpoena on Secretary of
the Interior James Watt for all documents relative to his determination of Canadi
an reciprocity under the Mineral Lands Leasing Act, 30 U.S.C. § 181. Among
the material covered by the subpoena were a number of Cabinet-level predeci
sional deliberative documents, while other documents contained classified,
diplomatic information. On October 13, 1981, President Reagan directed Secre
tary Watt not to release 31 particular documents whose disclosure would be
inconsistent with the confidential relationship among Cabinet officers and the
President, and which would violate the constitutional doctrine of separation of
powers. While protecting the confidentiality of these documents, Secretary Watt
made repeated efforts to accommodate the Subcommittee’s needs through certain
limited document disclosures, testimony, and correspondence.
On February 8,1982, a contempt resolution against Secretary Watt was passed
by the Subcommittee; on February 25 the full Committee supported this con
clusion by a vote of 23 to 19. By this time, however, Secretary Watt had reached a
decision finding Canada to be a “reciprocal” national under the Mineral Lands
Leasing Act. Immediately thereafter he informed all members of the Subcommit
tee that since the deliberative process had concluded, he was “hopeful” that
additional documents might be released.
On March 16, 1982, Fred F. Fielding, Counsel to the President, together with
members of the Subcommittee, reached an agreement pursuant to which all of the
disputed documents were made available for one day at Congress under the
96 Proclamation No 4744, 16 Weekly Comp. Pres. Doc. 592 (1980).
97 Memorandum for the Attorney General, from Assistant Attorney General John Harmon, 6 (Jan. 13, 1981).
98 Id. at 8.
780
custody of a representative from the Office of Counsel to the President. Minimal
notetaking, but no photocopying, was permitted; the documents were available
for examination by Members Only.99
T h e o d o r e B . O ls o n
Assistant Attorney General
Office cf Legal Counsel
99 See generally H.R. Rep. No. 898,97th Cong., 2d Sess. 73-84(1982); Contempt c f Congress. Hearings Before
the Subcomm. on Oversight and Investigations c f the House Comm on Energy and Commerce. 97th Cong., 2d
Sess. (1982)
781