History of Refusals by Executive Branch Officials to

Provide Information Demanded by Congress

[The following two mem oranda, prepared by the Office of Legal Counsel at the request of the 

Attorney G eneral, describe instances since the founding of the Republic in which officials in the 

Executive Branch have refused to disclose information or produce docum ents requested by 

Congress. The first m em orandum , 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 m em orandum , dated January 27, 1983, docum ents incidents 

where the Attorney General or some other executive official refused to provide information or 

docum ents to C ongress 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 information, 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 contemplated 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 dangerous 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 M aterial Concerning United States Representatives to France

In 1798 the House of Representatives by resolution requested from the President 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 Executive, except such as he may deem the public welfare to require

not to be disclosed, touching any illegal combination of private 

individuals against the peace and safety of the Union, or any 

military expedition planned by such individuals against the territories of any Power in amity with the United States; together

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 C ong., 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 transactions 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 credibility of the relator. In this state of the evidence, delivered 

sometimes, too, under the restriction of private confidence, neither safety nor justice will permit the exposing names, except that 

of the principal actor, whose guilt is placed beyond question.1'61

4. Monroe Administration

Stewart Incident

In 1825, the House of Representatives requested by resolution that the President 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 com15 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 f t 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
manding the squadron of the United States [at] sea, it has been 

deemed proper to suspend him from duty and to subject him to 

trial on those charges. It appearing also that some of those charges 

have been communicated to the Department by Mr. Prevost, 

political agent at this time of the United States at Peru . . . and that 

charges have likewise been made against him by citizens of the 

United States engaged in commerce in that quarter, it has been 

thought equally just and proper that he should attend here, as well 

to furnish the evidence in his possession applicable to the charges 

exhibited against Commodore Stewart as to answer such as have 

been exhibited against himself.

In this stage the publication of those documents might tend to 

excite prejudices which might operate to the injury of both. It is 

important that the public servants in every station should perform 

their duty with fidelity, according to the injunctions of the law and 

the orders of the Executive in fulfillment thereof. It is peculiarly 

so that this should be done by the commanders of our squadrons, 

especially on distant seas, and by political agents who represent 

the United States with foreign powers. . . . It is due to their rights 

and to the character of the Government that they be not censured 

without just cause, which cannot be ascertained until, on a view of 

the charges, they are heard in their defense, and after a thorough 

and impartial investigation of their conduct. Under these circumstances it is thought that a communication at this time of those 

documents would not comport with the public interest nor with 

what is due to the parties concerned."81

5. Jackson Administration19

Correspondence Between United States and the Republic cf Buenos Aires

On December 28, 1832, President Jackson refused to provide the House of 

Representatives with the copies of correspondence between the United States and 

the Republic of Buenos Aires and instructions given to the United States charge 

d ’affairs there, that it had requested. President Jackson replied that since negotia18 2 Richardson, supra, at 278.

19 Former Columbia Law Professor and current Federal District Judge Abraham D. Sofaer has noted:

Available historical sources reveal that, although much information was provided voluntarily, all 

Presidents from Washington to Jackson withheld large quantities of material, especially diplomatic 

correspondence, from their voluntary transmittals. Congress frequently requested the information 

thus withheld, and Presidents usually complied. Rar more often than not, requests for information on 

sensitive issues contained qualifications authonzing the President to withhold material the disclosure 

of which might prejudice the nation. Qualifications of information requests dealing with such 

important issues as the Burr conspiracy exemplify a tradition of legislative deference and trust, 

surely worth considerable weight in the debate about the discretion inherently possessed by the 

President.

Sofaer, Book Review, 88 Harv. L Rev 281, 289(1974) (reviewing R. Berger, Executive Privilege: A Constitutional

Myth)

756
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 communicate 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 c f 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 acquiescence 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 Executive. 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 Departments by my direction. The appointing power, so far as it is 

bestowed on the President by the Constitution, is conferred without 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 Indians. 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 r te questioning of persons whose statements were not made under 

oath, and which implicated persons who had no opportunity to contradict the

29Id at 158

30 Id. at 178-79.

31Id 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 discretion 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 c f 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 President, either voluntarily or at the request of one branch of Congress, 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 happen, that the President for the time being would not be in possession 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 departm ents, such evidence does not thereby become publicly 

available.

M ilitary 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 congressional resolution seeking copies of all instructions given to American military 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 Executive 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 negotiations 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, consistently 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. President 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 stronger 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 negotiations which have not been terminated, and which may be resumed. The information called for respects negotiations which 

the United States offered to open with Mexico immediately preceding 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 unsettled, 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 between 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 furnish 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

Diplom atic 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 ‘inconsistent 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 negotiations 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 steamship 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 instructions 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 c f 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 communicate to it, “ if not in his judgment incompatible with the public interest,” 

information concerning American relations with New Granada, and what negotiations, 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 communications 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

M ilitary 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 c f 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 Representatives 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 information 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 addressed to him and to the Attorney General by private citizens concerning the 

former district attorney, and that the documents related to an act (the suspension 

and removal of an Executive Branch official) which was exclusively a discretionary 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 Har50 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 Secretary 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 instituted 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 N at’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 Congress 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 Commissioner 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 confidence. 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 Departments’ 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 Educa63 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 employee. 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 Committee 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 subpoena.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, H arry 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, recognized Bradley’s claim of privilege. When that ruling was challenged, the Committee 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 Department for such refusal to act.

b. Said cases were returned by the Department of Justice to the 

governmental Department or agency concerned for further information or investigation. In such cases, a statement of all subsequent 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 c f 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 Program. 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 questioned 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 reproductions, concerning such advice be disclosed, you will instruct 

employees of your Department that in all of their appearances 

before the Subcommittee of the Senate Committee on Government Operations regarding the inquiry now before it they are not 

to testify to any such conversations or communications, or to 

produce any such documents or reproductions. This principle 

must be maintained regardless of who would be benefited by such 

disclosures.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 Subcommittee 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 conversation, 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 evaluation 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 c f 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 Thurmond requested the names of individual government employees of the Department 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 Department 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 c f 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 Congressional 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 c f 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

M ilitary 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 c f 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 Development (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 Resources of the House Committee on Government Operations subpoenaed docun 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 c f 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 Canadian 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 predecisional deliberative documents, while other documents contained classified, 

diplomatic information. On October 13, 1981, President Reagan directed Secretary 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 conclusion 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 Subcommittee 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 l s o n

Assistant Attorney General

Office c f 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 C ong., 2d

Sess. (1982)

781