Assertion of Executive Privilege in Response to

Congressional Demands for Law Enforcement Files

It is the policy of the Executive Branch to decline to provide com m ittees of Congress with access to or 

copies of law enforcement files, or m aterials in investigative files whose disclosure might 

adversely affect a pending enforcem ent action, overall enforcement policy, or the rights of 

individuals.

Congressional assurance of confidentiality cannot overcome concern over the integrity o f law 

enforcement files, not only because o f concern over potential public distribution o f the docum ents 

by Congress, but because of the importance of preventing direct congressional influence on 

investigations in progress.

It is the constitutional responsibility of the Executive to determine whether and when materials in law 

enforcement files may be distributed publicly, and this responsibility cannot and will not be 

delegated to Congress.

The principle of executive privilege will not be invoked to shield documents which contain evidence 

of cnm inal or unethical conduct by agency officials, and the documents at issue here have been 

made available for inspection by congressional staff members to confirm their proper characterization in this regard.

November 30, 1982

T h e C h a i r m a n o f t h e S u b c o m m i t t e e o n O v e r s i g h t a n d I n v e s t i g a t i o n s

C o m m i t t e e o n E n e r g y a n d C o m m e r c e

U n i t e d S t a t e s H o u s e o f R e p r e s e n t a t iv e s

Dear Mr. Chairman: This letter responds to your letter to me of November 8, 

1982, in which you, on behalf of the Subcommittee on Oversight and Investigations of the Committee on Energy and Commerce of the House of Representatives, continue to seek to compel the production to your subcommittee of copies 

of sensitive open law enforcement investigative files (referred to herein for 

convenience simply as law enforcement files) of the Environmental Protection 

Agency (EPA). Demands for other EPA files, including similar law enforcement 

files, have also been made by the Subcommittee on Investigations and Oversight 

of the Public W orks and T ransportation C om m ittee of the H ouse of 

Representatives.

Since the issues raised by these demands and others like them are important 

ones to two separate and independent branches of our Nation’s government, I 

shall reiterate at some length in this letter the longstanding position of the

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Executive Branch with respect to such matters. I do so with the knowledge and 

concurrence of the President.

As the President announced in a memorandum to the heads of all executive 

departm ents and agencies on November 4, 1982, “[t]he policy of this Administration is to comply with Congressional requests for information to the fullest 

extent consistent with the constitutional and statutory obligations of the Executive Branch. . . . [Executive privilege will be asserted only in the most 

com pelling circumstances, and only after careful review demonstrates that 

assertion of the privilege is necessary.” Memorandum from the President to the 

Heads of Executive Departments and Agencies (Nov. 4, 1982), re: “Procedures 

Governing Responses to Congressional Requests for Information,” at 1. Nevertheless, it has been the policy of the Executive Branch throughout this Nation’s 

history generally to decline to provide committees of Congress with access to or 

copies of law enforcement files except in the most extraordinary circumstances. 

Attorney General Robert Jackson, subsequently a Justice of the Supreme Court, 

restated this position to Congress over 40 years ago:

It is the position of [the] Department [of Justice], restated now 

with the approval of and at the direction of the President, 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.

Disclosure of the reports could not do otherwise than seriously 

prejudice law enforcement. Counsel for a defendant or prospective defendant, could have no greater help than to know how much 

or how little information the Government has, and what witnesses 

or sources of information it can rely upon. This is exactly what 

these reports are intended to contain.

40 Op. A tt’y Gen. 45, 46 (1941).

This policy does not extend to all material contained in investigative files. 

Depending upon the nature of the specific files and the type of investigation 

involved, much of the information contained in such files may and is routinely 

shared with Congress in response to a proper request. Indeed, in response to your 

subcom m ittee’s request, considerable quantities of documents and factual data 

have been provided to you. The EPA estimates that approximately 40,000 

documents have been made available for your subcommittee and its staff to 

examine relative to the three hazardous waste sites in which you have expressed 

an interest. The only documents which have been withheld are those which are 

sensitive memoranda or notes by EPA attorneys and investigators reflecting 

enforcem ent strategy, legal analysis, lists of potential witnesses, settlement 

considerations, and similar materials the disclosure of which might adversely 

affect a pending enforcement action, overall enforcement policy, or the rights of 

individuals.

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I continue to believe, as have my predecessors, that unrestricted dissemination 

of law enforcement files would prejudice the cause of effective law enforcement 

and, because the reasons for the policy of confidentiality are as sound and 

fundamental to the administration of justice today as they were 40 years ago, I see 

no reason to depart from the consistent position of previous Presidents and 

attorneys general. As articulated by former Deputy Assistant Attorney General 

Thomas E. Kauper over a decade ago,

the Executive cannot effectively investigate if Congress is, in a 

sense, a partner in the investigation. If a congressional committee 

is fully apprised of all details of an investigation as the investigation proceeds, there is a substantial danger that congressional 

pressures will influence the course of the investigation.

Memorandum from Thomas E. Kauper, Deputy Assistant Attorney General, 

Office of Legal Counsel, to Edward L. Morgan, Deputy Counsel to the President 

(Dec. 19, 1969), re: “Proposed letter from Secretary of the Army Resor to 

Chairman Rivers re submission of open C1D investigative files,” at 2.

Other objections to the disclosure of law enforcement files include the potential damage to proper law enforcement which would be caused by the revelation 

of sensitive techniques, methods, or strategy; concern over the safety of confidential informants and the chilling effect on sources of information if the 

contents of files are widely disseminated; sensitivity to the rights of innocent 

individuals who may be identified in law enforcement files but who may not be 

guilty of any violation of law; and well-founded fears that the perception of the 

integrity, impartiality, and fairness of the law enforcement process as a whole 

will be damaged if sensitive material is distributed beyond those persons necessarily involved in the investigation and prosecution process. Our policy is 

premised in part on the fact that the Constitution vests in the President and his 

subordinates the responsibility to “take Care that the Laws be faithfully executed.” U.S. Const., Art. II, § 3. The courts have repeatedly held that “the 

Executive Branch has exclusive authority and absolute discretion to decide 

whether to prosecute a case. . . .” United States v. Nixon, 418 U.S. 683, 693 

(1974).

The policy which I reiterate here was first expressed by President Washington 

and has been reaffirmed by or on behalf of most of our Presidents, including Presidents Jefferson, Jackson, Lincoln, Theodore Roosevelt, Franklin 

Roosevelt, and Eisenhower. I am aware of no President who has departed from 

this policy regarding the general confidentiality of law enforcement files.

I also agree with Attorney General Jackson’s view that promises of confidentiality by a congressional committee or subcommittee do not remove the 

basis for the policy of nondisclosure of law enforcement files. As Attorney 

General Jackson observed in writing to Congressman Carl Vinson, then Chairman of the House Committee on Naval Affairs, in 1941:

I am not unmindful of your conditional suggestion that your 

counsel will keep this information “inviolate until such time as the

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committee determines its disposition.” I have no doubt that this 

pledge would be kept and that you would weigh every consideration before making any matter public. Unfortunately, however, a 

policy cannot be made anew because of personal confidence of the 

Attorney General in the integrity and good faith of a particular 

committee chairman. We cannot be put in the position of discriminating between committees or of attempting to judge between 

them , and their individual members, each of whom has access to 

information once placed in the hands of the committee.

40 Op. A tt’y Gen. at 50.

Deputy Assistant Attorney General Kauper articulated additional considerations in explaining why congressional assurances of confidentiality could not 

overcome concern over the integrity of law enforcement files:

[S]uch assurances have not led to a relaxation of the general 

principle that open investigative files will not be supplied to 

Congress, for several reasons. First, to the extent the principle 

rests on the prevention o f direct congressional influence upon 

investigations in progress, dissemination to the Congress, not by 

it, is the critical factor. Second, there is the always present 

concern, often factually justified, with “leaks.” Third, members 

of Congress may comment or publicly draw conclusions from 

such documents, without in fact disclosing their contents.

Kauper M emorandum at 3.

It has never been the position o f the Executive Branch that providing copies of 

law enforcem ent files to congressional committees necessarily will result in the 

docum ents’ being made public. We are confident that your subcommittee and 

other congressional committees would guard such documents carefully. Nor do I 

mean to imply that any particular committee would necessarily “leak” documents 

improperly although, as you know, that phenomenon has occasionally occurred. 

Concern over potential public distribution of the documents is only a part of the 

basis for the Executive’s position. At bottom, the President has a responsibility 

vested in him by the Constitution to protect the confidentiality of certain documents which he cannot delegate to the Legislative Branch.

With regard to the assurance of confidential treatment contained in your 

November 8, 1982, letter, I am sensitive to Rule XI, Clause 2, § 706c of the 

Rules of the House of Representatives, which provides that “[a]ll committee 

hearings, records, data, charts, and files . . . shall be the property of the House 

and all M em bers c f the House shall have access thereto. . . .” In order to avoid 

the requirements of this rule regarding access to documents by all Members of the 

House, your November 8 letter offers to receive these documents in “executive 

session” pursuant to Rule XI, Clause 2, § 712. It is apparently on the basis of 

§ 7 1 2 that your November 8 letter states that providing these materials to your 

subcommittee is not equivalent to making the documents “public.” But, as is

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evident from your accurate rendition of § 712, the only protection given such 

materials by that section and your understanding of it is that they shall not be 

made public, in your own words, “without the consent of the Subcommittee.”

Notwithstanding the sincerity of your view that § 712 provides adequate 

protection to the Executive Branch, I am unable to accept and therefore must 

reject the concept that an assurance that documents would not be made public 

“without the consent of the Subcommittee” is sufficient to provide the Executive 

the protection to which he is constitutionally entitled. While a congressional 

committee may disagree with the President’s judgment as regards the need to 

protect the confidentiality of any particular documents, neither a congressional 

committee nor the House (or Senate, as the case may be) has the right under the 

Constitution to receive such disputed documents from the Executive and sit in 

final judgment as to whether it is in the public interest for such documents to be 

made public.1 To the extent that a congressional committee believes that a 

presidential determination not to disseminate documents may be improper, the 

house of Congress involved or some appropriate unit thereof may seek judicial 

review (see Senate Select Committee v. Nixon, 498 F.2d 725 (D.C. Cir. 1974)), 

but it is not entitled to be put in a position unilaterally to make such a determination. The President’s privilege is effectively and legally rendered a nullity once 

the decision as to whether “public” release would be in the public interest passes 

from his hands to a subcommittee of Congress. It is not up to a congressional 

subcommittee but to the courts ultimately “ ‘to say what the law is’ with respect to 

the claim of privilege presented in [any particular] case.” United States v. Nixon,

418 U.S. at 705, quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 

(1803).

I am unaware of a single judicial authority establishing the proposition which 

you have expounded that the power properly lies only with Congress to determine 

whether law enforcement files might be distributed publicly, and I am compelled 

to reject it categorically. The crucial point is not that your subcommittee, or any 

other subcommittee, might wisely decide not to make public sensitive information contained in law enforcement files. Rather, it is that the President has the 

constitutional responsibility to take care that the laws are faithfully executed; if 

the President believes that certain types of information in law enforcement files 

are sufficiently sensitive that they should be kept confidential, it is the President’s 

constitutionally required obligation to make that determination.2

1 Your N ovem ber 8 letter points out that in my opinion o f O ctober 13, 1981, to the President, 43 O p A tt’y G en

________, 5 Op. O L C . 27 (1981), a passage from the C o u rt’s opinion in U ntied Slates v. Nixon, 418 U .S 683

(1974), was quoted in which the word “public'’ as it appears in the Court's opinion was inadvertently om itted. See 5 

Op. O L C at 29 That is correct, but the significance you have attributed to it is not. The om ission o f the word 

"public" was a technical error made in the transcription of the final typewritten version of the opinion. This error will 

be corrected by inclusion of the word “public” in the official pnnted version of that opinion. However, the om ission 

of that word was not material to the fundam ental points contained in the opinion The reasoning contained therein 

rem ains the sam e As the discussion in the text of this letter m akes clear, I am unable to accept your argum ent that the 

provision of docum ents to Congress is not, for purposes o f the President’s executive privilege, functionally and 

legally equivalent to making the docum ents public, because the power to make the docum ents public shifts from the 

Executive to a unit o f Congress T hus, for these purposes the result under U nited States v. N ixon would be identical 

even if the C ourt had itself not used the word “public” in the relevant passage

2 It was these principles that were em bodied in A ssistant A ttorney General M cC onnell’s letters of O ctober 18 and 

2 5 ,1 9 8 2 ,to you U nderthese principles, yo u rcriticism o f M r M cC onnells statem ents made in those letters m ust be 

rejected M r M cC onnell’s statem ents represent an institutional viewpoint that does not, and cannot, depend upon 

the personalities involved I regret that you chose to take his observations personally.

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These principles will not be employed to shield documents which contain 

evidence of criminal or unethical conduct by agency officials from proper review. 

However, no claims have been advanced that this is the case with the files at issue 

here. As you know, your staff has examined many of the documents which lie at 

the heart of this dispute to confirm that they have been properly characterized. 

These arrangements were made in the hope that that process would aid in 

resolving this dispute. Furthermore, I understand that you have not accepted 

Assistant Attorney General M cConnell’s offer to have the documents at issue 

made available to the members of your subcommittee at the offices of your 

subcommittee for an inspection under conditions which would not have required 

the production of copies and which, in this one instance, would not have 

irreparably injured our concerns over the integrity of the law enforcement 

process. Your apparent rejection of that offer would appear to leave no room for 

further compromise of our differences on this matter.

In closing, I emphasize that we have carefully reexamined the consistent 

position of the Executive Branch on this subject and we must reaffirm our 

commitment to it. We believe that this policy is necessary to the President’s 

responsible fulfillment of his constitutional obligations and is not in any way an 

intrusion on the constitutional duties of Congress. 1 hope you will appreciate the 

historical perspective from which these views are now communicated to you and 

that this assertion of a fundamental right by the Executive will not, as it should 

not, im pair the ongoing and constructive relationship that our two respective 

branches must enjoy in order for each of us to fulfill our different but equally 

important responsibilities under our Constitution.

Sincerely,

W i l l i a m F r e n c h S m i t h

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