b'History of Refusals by Executive Branch Officials to\nProvide Information Demanded by Congress\n[The follow ing two m em oranda, prepared by the Office of Legal Counsel at the request of the\nAttorney G eneral, describe instances since the founding of the Republic in w hich officials in the\nExecutive Branch have refused to disclose inform ation o r produce docum ents requested by\nCongress. T he first m em orandum , dated D ecem ber 14, 1982, sets forth exam ples of situations in\nwhich a President has personally directed that inform ation be w ithheld, relying on the doctrine of\nexecutive privilege. T he second m em orandum , dated January 27, 1983, docum ents incidents\nw here the Attorney G eneral or som e other executive official refused to provide inform ation or\nd o cu m en ts to C o n g ress in situations involving law en fo rc em en t, security, o r p ersonnel\ninvestigations. . . .]\n\nPART I\xe2\x80\x94 Presidential Invocations of Executive Privilege\nVis-a-Vis Congress\nDecember 14, 1982\nMEMORANDUM FOR THE ATTORNEY GENERAL\nThis memorandum briefly describes those incidents in which a President\npersonally directed the withholding of information from Congress.1Included are\nincidents in which a President found it necessary to withhold specific documents\nor information, as well as general directives of a President concerning the\nwithholding of information from Congress.\nNo effort has been made to catalogue the numerous instances in which\ninformation was withheld from Congress by executive officers other than the\nPresident; nor does this survey discuss the countless examples of full disclosure\nby the Executive. The objective of the memorandum is neither to show how\nfrequently the Executive Branch has refused congressional requests for informa\xc2\xad\ntion, nor to demonstrate how often an accommodation between the branches has\nbeen achieved. Rather, the memorandum seeks to show that presidentially\n1 Although an attempt has been made to be as thorough as possible, no claim is made that the following list is\ncomprehensive. In this regard, we note Deputy Assistant Attorney General Mary Lawton\xe2\x80\x99s statement in a\nmemorandum to Rep. William S. Moorhead, dated Apr 25, 1973.\nIn response to your request . . I regret that it is not physically possible to furnish you with a\ncomprehensive list o f presidential refusals of information to Congress. To give you all of the\ninstances of such refusals since the beginning of the Republic would require an amount of historical\nresearch which the Office of Legal Counsel lacks the resources for handling. In addition, there is a\ncategorization problem of distinguishing the relatively few instances of exercise of Executive\nPrivilege per se [i.e . a refusal to disclose by the President personally] from the many instances of\nagreed accommodations . . for nonappearance of witnesses, nondisclosure or partial disclosure.\n\n751\n\n\x0cmandated refusals to disclose information to Congress\xe2\x80\x94though infrequent\xe2\x80\x94 are\nby no means unprecedented acts of this or any other Administration.\n\n1. Washington Administration\nSt. C lair Incident\n\nOn March 27, 1792, the House of Representatives established a congressional\ncommittee to investigate the failure of General St. Clair\xe2\x80\x99s military expedition\nagainst the Indians. The House authorized the committee \xe2\x80\x9c to call for such\npersons, papers, and records, as may be necessary to assist their inquiries.\xe2\x80\x9d 2\nThe committee subsequently asked the President for those papers pertaining to\nthe St. Clair campaign. Since this was the first occasion in which Congress had\nestablished a committee to investigate the performance of the Executive and had\nauthorized it to request documents from the President, and wishing \xe2\x80\x9c that so far as\nit should become a precedent, it should be rightly conducted,\xe2\x80\x9d 3 President\nWashington held a meeting with his Cabinet, attended by Jefferson, Hamilton,\nRandolph and Knox. Jefferson described the conclusions reached by the Nation\xe2\x80\x99s\nfirst Cabinet:\nWe had all considered, and were of one mind, first, that the House\nwas an inquest, and therefore might institute inquiries. Second,\nthat it might call for papers generally. Third, that the Executive\nought to communicate such papers as the public good would\nperm it, and ought to refuse those, the disclosure c f which would\ninjure the public: consequently were to exercise a discretion.\n\nFourth, that neither the committees nor House had a right to call\non the Head of a Department, who and whose papers were under\nthe President alone; but that the committee should instruct their\nchairman to move the House to address the President.141\nAlthough the Cabinet \xe2\x80\x9cagreed in this case, that there was not a paper which\nmight not be properly produced,\xe2\x80\x9d 5 the President apparently felt it advisable\nnevertheless to negotiate with Congress a non-confrontational resolution of the\nproblem. Jefferson thereupon agreed to speak individually to members of the\nHouse committee in orderto \xe2\x80\x9cbring them by persuasion into the right channel.\xe2\x80\x9d 6\nJefferson\xe2\x80\x99s conciliation efforts were successful, for on April 4, 1792, the House\nresolved,\nthat the President of the United States be requested to cause the\nproper officers to lay before this House such papers of a public\n2 3 Annals of Cong. 493 (1792)\n3 1 The Writings of Thomas Jefferson 303 (Lipscomb ed , 1905).\n4 Id. at 3 03-04 (emphasis added)\n5 Id. at 305.\n6 Id. See generally Younger, \xe2\x80\x9cCongressional Investigations and Executive Secrecy. A Study in the Separation c f\nP o w e r s 20 U Pitt L Rev. 755 , 757 (1959).\n\n752\n\n\x0cnature, in the Executive Department, as may be necessary to the\n\ninvestigation of the causes of the failure of the late expedition\nunder Major General St. Clair.171\n\nCorrespondence Involving United States Minister to France\n\nIn 1794, the Senate requested by resolution correspondence between the\nUnited States Minister to France and the Republic of France, and between the\nMinister and the State Department.8 President Washington submitted certain of\nthe correspondence requested, but withheld \xe2\x80\x9c those particulars which, in my\njudgment, for public considerations, ought not to be communicated.\xe2\x80\x9d 9\nThe Jay Treaty\n\nOn March 24, 1796, the House of Representatives requested by resolution that\nthe President disclose to the House his instructions to the United States Minister\nwho negotiated the Jay Treaty with Great Britain, along with correspondence and\ndocuments relative to that Treaty. Implementation of the Treaty apparently\nrequired an appropriation which the House was called upon to vote.10 President\nWashington denied the House\xe2\x80\x99s right to demand and receive any of the papers\nrequested. Though the President had provided \xe2\x80\x9c all the papers affecting the\nnegotiation with Great Britain\xe2\x80\x9d to the Senate in the course of its deliberations on\nthe Treaty, Washington determined that the House had no legitimate claim to\nthose papers:\nThe nature of foreign negotiations requires caution; and their\nsuccess must often depend on secrecy; and even, when brought to\na conclusion, a full disclosure of all the measures, demands, or\neventual concessions which may have been proposed or con\xc2\xad\ntemplated would be extremely impolitic: for this might have\npernicious influence on future negotiations; or produce immediate\ninconveniences, perhaps danger and mischief, in relation to other\nPowers. The necessity of such caution and secrecy was one cogent\nreason for vesting the power of making Treaties in the President\nwith the advice and consent of the Senate; the principle on which\nthe body was formed confining it to a small number of members.\nToadmit, then, aright in the House of Representatives to demand,\nand to have, as a matter of course, all the papers respecting a\nnegotiation with a foreign Power, would be to establish a dan\xc2\xad\ngerous precedent.\n7 3 Annals of Cong. 536 (1792) (emphasis added).\n8 Senate Journal, 3d Cong , 1st Sess. 42 (1794).\n9 1 J Richardson, Messages and F^pers of the Presidents 152 (1896)\n10 See W. Binkley, President and Congress 53 -4 (3d rev. 1947).\n\n753\n\n\x0cSubsequently, the House debated Washington\xe2\x80\x99s refusal for a full month, but\ntook no action." It is highly instructive, however, that during the debate Rep.\nJames Madison, although disagreeing with President Washington\xe2\x80\x99s message in\nsome respects, acknowledged on the House floor,\nthat the Executive had a right, under a due responsibility, also, to\nwithhold information, when of a nature that did not permit a\ndisclosure of it at the time. And if the refusal of the President had\nbeen founded simply upon a representation, that the state of the\nbusiness within his department, and the contents of the papers\nasked for, required it, although he might have regretted the\nrefusal, he should have been little disposed to criticize it.1121\n\n2. Adams Administration\nD iplom atic M aterial Concerning United States Representatives to France\n\nIn 1798 the House of Representatives by resolution requested from the Presi\xc2\xad\ndent documents containing instructions to, and dispatches from, representatives\nof the United States to France.13 On April 3, 1798, President Adams transmitted\nsome of that material to both Houses, but omitted \xe2\x80\x9c some names and a few\nexpessions descriptive of the persons\xe2\x80\x9d involved.14\n\n3. Jefferson Administration\nThe Burr Conspiracy\n\nIn January 1807, the House of Representatives by resolution requested that the\nPresident\nlay before this House any information in possession of the Ex\xc2\xad\necutive, except such as he may deem the public welfare to require\nnot to be disclosed, touching any illegal combination of private\nindividuals against the peace and safety of the Union, or any\nmilitary expedition planned by such individuals against the ter\xc2\xad\nritories of any Power in amity with the United States; together\n11 5 Annals o f Cong. 760 (1796); see id. at 426-783. The House did pass two resolutions, one declaring that the\nHouse had authonty to consider the expediency of carrying a treaty into effect, the second that the House need not\nstate the purpose for which it required information from the Executive. See id. at 771, 782-83.\n12 Id. at 773.\n13 House Journal, 5th C ong., 2d Sess. 249 (1798).\n14 1 Richardson, supra, at 265.\n\n754\n\n\x0cwith the measures which the Executive has pursued and proposes\nto take for suppressing or defeating the same.1\'51\nPresident Jefferson replied by detailing the activities of Aaron Burr, but declined\nto mention the names of other alleged participants. Jefferson declared:\nThe mass of what I have received in the course of these transac\xc2\xad\ntions is voluminous, but little has been given under the sanction of\nan oath so as to constitute formal and legal evidence. It is chiefly\nin the form of letters, often containing such a mixture of rumors,\nconjectures, and suspicions as renders it difficult to sift out the\nreal facts and unadvisable to hazard more than general outlines,\nstrengthened by concurrent information or the particular cred\xc2\xad\nibility of the relator. In this state of the evidence, delivered\nsometimes, too, under the restriction of private confidence, nei\xc2\xad\nther safety nor justice will permit the exposing names, except that\nof the principal actor, whose guilt is placed beyond question.1\'61\n\n4. Monroe Administration\nStewart Incident\n\nIn 1825, the House of Representatives requested by resolution that the Presi\xc2\xad\ndent provide the Congress with documents concerning charges against certain\nnaval officers, so far as he deemed such disclosure compatible with the public\ninterest.17 President Monroe refused to submit the documents, stating:\nIn consequence of several charges which have been alleged\nagainst Commodore Stewart, touching his conduct while com\xc2\xad\n15 16 Annals of Cong. 336 (1806) (emphasis added). Professor Raoul Berger has argued that the exception clause\nin the House resolution refutes any argument that Jefferson\'s subsequent withholding of documents was based on an\nexecutive privilege R. BeTger, Executive Privilege: A Constitutional Myth 179-81 (1974) (descnbing Jefferson\xe2\x80\x99s\nexplanation for withholding information as \xe2\x80\x9c gratuitous\xe2\x80\x9d ). See also Cox, Executive Privilege, 122 U f t L. Rev.\n1383, 1397-98 (1974) (arguing that those historical examples of executive withholding which are preceded by a\ncongressional authorization to withhold do not qualify as examples o f executive pnvilege) One could just as well\nread the exception clause, however, as an early illustration of congressional recognition of the executive privilege.\nSee \xc2\xa7 1, C , supra, note 19 infra.\nMoreover, it is highly unlikely Jefferson actually relied upon the exception clause as the basis for withholding\ninformation from the House, given the conclusions he reached while serving in President Washington\xe2\x80\x99s Cabinet, see\n\xc2\xa7 1, A, supra, and given the views he expressed in a letter to the United States District Attorney for Virginia, who\nwas then in charge of the Burr prosecution*\nReserving the necessary right o f the President of the U.S. to decide, independently c f all other\nauthority, what papers, coming to him as President, the public interests perm it to be communicated,\n& to whom, I assure you of my readiness under that restriction, voluntanly to furnish . . whatever\nthe purposes of justice may require.\n9 The W ntings of Thomas Jefferson 55 (P. Ford ed 1898) Professor Berger also fails to note other occasions on\nwhich President Jefferson let it be known that he regarded himself free to withhold certain \xe2\x80\x9c confidential\xe2\x80\x9d\ninformation \xe2\x80\x9c given for my information in the discharge of my executive functions, and which my duties & the\npublic interest forbid me to make public.\xe2\x80\x9d Id . at 63-64 (certificate to the court in Burr prosecution).\n16 1 Richardson, supra, at 412\n17 House Journal, 18th Cong , 2d Sess. 102-03 (1825).\n\n755\n\n\x0cmanding the squadron of the United States [at] sea, it has been\ndeemed proper to suspend him from duty and to subject him to\ntrial on those charges. It appearing also that some of those charges\nhave been communicated to the Department by Mr. Prevost,\npolitical agent at this time of the United States at Peru . . . and that\ncharges have likewise been made against him by citizens of the\nUnited States engaged in commerce in that quarter, it has been\nthought equally just and proper that he should attend here, as well\nto furnish the evidence in his possession applicable to the charges\nexhibited against Commodore Stewart as to answer such as have\nbeen exhibited against himself.\nIn this stage the publication of those documents might tend to\nexcite prejudices which might operate to the injury of both. It is\nimportant that the public servants in every station should perform\ntheir duty with fidelity, according to the injunctions of the law and\nthe orders of the Executive in fulfillment thereof. It is peculiarly\nso that this should be done by the commanders of our squadrons,\nespecially on distant seas, and by political agents who represent\nthe United States with foreign powers. . . . It is due to their rights\nand to the character of the Government that they be not censured\nwithout just cause, which cannot be ascertained until, on a view of\nthe charges, they are heard in their defense, and after a thorough\nand impartial investigation of their conduct. Under these circum\xc2\xad\nstances it is thought that a communication at this time of those\ndocuments would not comport with the public interest nor with\nwhat is due to the parties concerned."81\n5. Jackson Administration19\nC orrespondence Between United States and the Republic c f Buenos Aires\n\nOn December 28, 1832, President Jackson refused to provide the House of\nRepresentatives with the copies o f correspondence between the United States and\nthe Republic of Buenos Aires and instructions given to the United States charge\nd \xe2\x80\x99affairs there, that it had requested. President Jackson replied that since negotia\xc2\xad\n18 2 Richardson, supra, at 278.\n19 Former Columbia Law Professor and current Federal District Judge Abraham D. Sofaer has noted:\nAvailable historical sources reveal that, although much information was provided voluntarily, all\nPresidents from Washington to Jackson withheld large quantities of material, especially diplomatic\ncorrespondence, from their voluntary transmittals. Congress frequently requested the information\nthus withheld, and Presidents usually complied. Rar more often than not, requests for information on\nsensitive issues contained qualifications authonzing the President to withhold material the disclosure\nof which might prejudice the nation. Qualifications o f information requests dealing with such\nimportant issues as the Burr conspiracy exemplify a tradition of legislative deference and trust,\nsurely worth considerable weight in the debate about the discretion inherently possessed by the\nPresident.\nSofaer, Book Review, 88 Harv. L Rev 281, 289(1974) (reviewing R. Berger, Executive Privilege: A Constitutional\nMyth)\n\n756\n\n\x0ctions with the Republic had only been suspended and not broken off, it would\n\xe2\x80\x9c not be consistent with the public interest to communicate the correspondence\nand instructions requested by the House so long as the negotiation shall be\npending.\xe2\x80\x9d 20\nNegotiations with Great Britain Over the Northeastern Boundary\n\nIn response to the Senate\xe2\x80\x99s request for information regarding negotiations\ncarried on with Great Britain over the Northeastern Boundary, and particularly\nwith respect to the Maine settlement, President Jackson informed the Senate on\nMarch 2, 1833, that negotiations with Great Britain were in progress and that in\nthe meantime it was \xe2\x80\x9c not deemed compatible with the public interest\xe2\x80\x9d to\ncommunicate the conditional arrangements made with the State of Maine.21 The\nHouse of Representatives also requested information concerning the settlement\nof the Northeastern Boundary, and on January 6,1835, President Jackson advised\nthe House that it would be \xe2\x80\x9c incompatible with the public interest\xe2\x80\x9d to communi\xc2\xad\ncate such information.22 However, the President did furnish this information to\nthe Senate at the next session, stating that \xe2\x80\x9c as the negotiation was undertaken\nunder the special advice of the Senate, I deem it improper to withhold the\ninformation which the body has requested, submitting to them to decide whether\nit will be expedient to publish the correspondence before the negotiation has been\nclosed.\xe2\x80\x9d 23\nBank o f the United States Document\n\nOn December 12, 1833, President Jackson responded to a resolution of the\nSenate requesting him to provide \xe2\x80\x9c \xe2\x80\x98a copy of the paper which has been published,\nand which purports to have been read by him to the heads of the Executive\nDepartments . . . relating to the removal of the deposits of the public money from\nthe Bank of the United States and its offices.\xe2\x80\x99\xe2\x80\x9d President Jackson declined to\nprovide the document on the ground that the Legislature had no constitutional\nauthority to \xe2\x80\x9c require of me an account of any communication, either verbally or\nin writing, made to the heads of Departments acting as a Cabinet council . . .\n[nor] might I be required to detail to the Senate the free and private conversations\nI have held with those officers on any subject relating to their duties and my\nown.\xe2\x80\x9d 24\nCorrespondence with France\n\nOn February 6, 1835, President Jackson furnished extracts from the dispatches\nbetween the United States and the government of France that the House of\n20 2 Richardson, supra, at 608-09\n21 Id. at 637.\n22 3 Richardson, supra, at 127\n23 Id. at 229-30.\n24 Id. at 36.\n\n757\n\n\x0cRepresentatives had requested, declining to send the full documents on the\nground that it was not at that time in the public interest to do so.25\nRemoval c f the Surveyor General\n\nOn February 10, 1835, President Jackson sent a message to the Senate\ndeclining to comply with its resolution which requested the production of copies\nof charges made to the President against Gideon Fitz, the Surveyor General,\nwhich resulted in Mr. Fitz\xe2\x80\x99s removal from office. The resolution based the\nSenate\xe2\x80\x99s need for the documents on: 1) the need to nominate Mr. Fitz\xe2\x80\x99s successor,\nand 2) a pending Senate investigation into fraud in the sale of lands.\nThe President refused to furnish the documents on the ground that they related\nto subjects which belonged exclusively to the functions of the Executive. In\naddition, the President said that disclosure of the documents would subject the\nmotives of the President in removing Mr. Fitz to the review of the Senate when not\nsitting as judges in an impeachment proceeding, and that the Executive\xe2\x80\x99s acquies\xc2\xad\ncence in the Fitz case might be used by Congress as a precedent for similar and\nrepeated requests. The President said:\nThis is another of those calls for information made upon me by\nthe Senate which have, in my judgment, either related to the\nsubjects exclusively belonging to the executive department or\notherwise encroached on the constitutional powers of the Ex\xc2\xad\necutive. Without conceding the right of the Senate to make either\nof these requests, I have yet, for the various reasons heretofore\nassigned in my several replies, deemed it expedient to comply\nwith several of them. It is now, however, my solemn conviction\nthat I ought no longer, from any motive nor in any degree, to yield\nto these unconstitutional demands. Their continued repetition\nimposes on m e, as the representative and trustee of the American\npeople, the painful but imperious duty of resisting to the utmost\nany further encroachment on the rights of the Executive.\n. . . . Such a result, if acquiesced in, would ultimately subject\nthe independent constitutional action of the Executive in a matter\nof great national concernment to the domination and control of the\nSenate. . . .\nI therefore decline a compliance with so much of the resolution\nof the Senate as requests \xe2\x80\x9c copies of the charges, if any,\xe2\x80\x9d in\nrelation to Mr. Fitz, and in doing so must be distinctly understood\nas neither affirming nor denying that any such charges were\nmade. . . .|261\n25 Id. at 129\n26 Id. at 132-34.\n\n758\n\n\x0c6. lyier Administration\nCorrespondence Regarding Negotiations with Great Britain Over the\nNortheastern Boundary\n\nIn response to the House of Representatives\xe2\x80\x99 request for all correspondence not\npreviously communicated regarding the United States\xe2\x80\x99 negotiation with Great\nBritain over the Northeastern Boundary, President Tyler withheld the documents\nand sent a February 26, 1842, message to Congress saying that \xe2\x80\x9c in my judgment\nno communication could be made by me at this time on the subject of its\nresolution without detriment or danger to the public interests.\xe2\x80\x9d 27\nInformation Regarding Executive Appointments\n\nOn March 23, 1842, President Tyler refused to comply with a House resolution\nrequesting that the President and the heads of departments communicate the\nnames of such Members of the 26th and 27th Congresses who had applied for\noffice, what office, and whether such application had been made in person, in\nwriting, or through friends. President Tyler refused to disclose such information\non the ground that it was by nature confidential, the disclosure of which could\nserve no \xe2\x80\x9c useful object connected with a sound and constitutional administration\nof the Government in any of its branches,\xe2\x80\x9d and further, that\ncompliance with the resolution which has been transmitted to me\nwould be a surrender of duties and powers which the Constitution\nhas conferred exclusively on the Executive, and therefore such\ncompliance can not be made by me nor by the heads of Depart\xc2\xad\nments by my direction. The appointing power, so far as it is\nbestowed on the President by the Constitution, is conferred with\xc2\xad\nout reserve or qualification. The reason for the appointment and\nthe responsibility of the appointment rest with him alone. I can\nnot perceive anywhere in the Constitution of the United States any\nright conferred on the House of Representatives to hear the\nreasons which an applicant may urge for an appointment to office\nunder the executive department, or any duty resting upon the\nHouse of Representatives by which it may become responsible for\nany such appointment.1281\nTreaty to Suppress Slave Trade\n\nIn response to the House of Representatives\xe2\x80\x99 request to furnish, \xe2\x80\x9c \xe2\x80\x98so far as\nmay be compatible with the public interest,\xe2\x80\x99\xe2\x80\x9d a copy of the quintuple treaty\nbetween the five powers of Europe for the suppression of the African slave trade\n27 4 Richardson, supra, at 101.\n28 i\'d. at 105-06.\n\n759\n\n\x0cand certain correspondence with respect to it, President Tyler replied on June 20,\n1842, that he had not received an authentic copy of the treaty and that \xe2\x80\x9c [i]n regard\nto the other papers requested, although it is my hope and expectation that it will\nbe proper and convenient at an early day to lay them before C ongress,. . . yet in\nmy opinion a communication o f them to the House of Representatives at this time\nwould not be compatible with the public interest.\xe2\x80\x9d 29\nInformation Regarding Steps Taken to Obtain Recognition c f American\nClaim s by Mexican Government\n\nThe Senate had requested the President to provide information, \xe2\x80\x9c so far as he\nmight deem it compatible with the public interest,\xe2\x80\x9d concerning what measures, if\nany, had been taken to obtain recognition by the Mexican government of certain\nclaims of American citizens. President Tyler replied on August 23, 1842, that\n\xe2\x80\x9c [i]n the present state of the correspondence and of the relations between the two\nGovernments on these important subjects it is not deemed consistent with the\npublic interest to communicate the information requested. The business engages\nearnest attention, and will be made the subject of a full communication to\nCongress at the earliest practicable period.\xe2\x80\x9d 30\nN egotiations Regarding Northwestern Boundary\n\nIn response to the Senate\xe2\x80\x99s request for information concerning the United\nStates\xe2\x80\x99 negotiations with Great Britain for settlement of the Northwest Boundary,\nPresident Tyler replied on December 23, 1842, that measures had been taken to\nsettle the dispute and that \xe2\x80\x9cunder these circumstances I do not deem it consistent\nwith the public interest to make any communication on the subject.\xe2\x80\x9d 31\nH itchcock Investigation\n\nOn January 31, 1843, President Tyler invoked executive privilege against a\nrequest by the House of Representatives to the Secretary of War to produce\ninvestigative reports submitted to the Secretary by Lieutenant Colonel Hitchcock\nconcerning his investigations into frauds perpetrated against the Cherokee Indi\xc2\xad\nans. The Secretary of War consulted with the President and under the latter\xe2\x80\x99s\ndirection informed the House that negotiations were then pending with the\nIndians for settlement of their claims, and that in the opinion of the President and\nthe Department, publication of the report at that time would be inconsistent with\nthe public interest. The Secretary of War further stated that the reports sought by\nthe House contained information which was obtained by Colonel Hitchcock\nthrough ex p a r t e questioning of persons whose statements were not made under\noath, and which implicated persons who had no opportunity to contradict the\n29Id at 158\n30Id. at 178-79.\n31 Id at 210-11\n\n760\n\n\x0callegations or provide any explanation. The Secretary of War expressed the\nopinion that to publicize such statements at that time would be unjust to the\npersons mentioned , and would defeat the object of the inquiry. He also stated that\nthe Department had not yet been given a sufficient opportunity to pursue the\ninvestigation, to call the affected parties for explanations, or to make any other\ndeterminations regarding the matter. The President stated:\nThe injunction of the Constitution that the President \xe2\x80\x98shall take\ncare that the laws be faithfully executed,\xe2\x80\x99 necessarily confers an\nauthority, commensurate with the obligation imposed to inquire\ninto the manner in which all public agents perform the duties\nassigned to them by law. To be effective these inquiries must often\nbe confidential. They may result in the collection of truth or of\nfalsehood, or they may be incomplete and may require further\nprosecution. To maintain that the President can exercise no discre\xc2\xad\ntion as to the time in which the matters thus collected shall be\npromulgated . . . would deprive him at once of the means of\nperforming one of the most salutary duties of his office. . . . To\nrequire from the Executive the transfer of this discretion to a\ncoordinate branch of the Government is equivalent to the denial of\nits possession by him and would render him dependent upon that\nbranch in the performance of a duty purely executive.1321\nIn response to the House\xe2\x80\x99s claim that it had a right to demand from the\nExecutive and heads of departments any information in the possession of the\nExecutive which pertained to subjects under the House\xe2\x80\x99s deliberations, President\nTyler stated that the House could not exercise a right to call upon the Executive for\ninformation, even though it related to a subject of the deliberations of the House,\nif, by so doing, it would interfere with the discretion of the Executive.33\nInstructions to N avy Officers\n\nIn response to the House of Representatives\xe2\x80\x99 request for copies of instructions\ngiven to British and American commanding officers who were charged, pursuant\nto a treaty with Great Britain, with suppressing the slave trade off the coast of\nAfrica, President Tyler sent a May 18, 1844, message to the House declining to\nprovide the information on the ground that to do so would be incompatible with\nthe public interest.34\nForeign Correspondence Regarding the Ownership and Occupation of\nOregon Territory\n\nIn June 1844, President Tyler sent a message to the Senate explaining his\nrefusal to comply with its request for documents relating to the ownership and\n32 Id. at 222.\n33 Id at 222-23.\n34 Id. at 320.\n\n761\n\n\x0coccupation of the Oregon Territory. \xe2\x80\x9c [I]n the present state of the subject-matter, \xe2\x80\x9d\nthe President wrote, \xe2\x80\x9c it is deemed inexpedient to communicate the information\nrequested. . . .\xe2\x80\x9d 35\n7. Polk Administration\nForeign Relations Expenditures c f Prior Administration\n\nIn 1846, President Polk refused to provide the House of Representatives with\nconfidential memoranda regarding certain expenses incurred for the conduct of\nforeign relations during the Tyler Administration. In refusing to comply with a\nHouse resolution requesting documentation of these expenses, President Polk\nstated that where a past President had placed a seal of confidentiality upon an\nexpenditure, and the matter was terminated before he entered office,\n[a]n important question arises, whether a subsequent Presi\xc2\xad\ndent, either voluntarily o r at the request of one branch of Con\xc2\xad\ngress, can without a violation of the spirit of the law revise the acts\nof his predecessor and expose to public view that which he had\ndetermined should not be \xe2\x80\x9c made public.\xe2\x80\x9d If not a matter of strict\nduty, it would certainly be a safe general rule that this should not\nbe done. Indeed, it may well happen, and probably would hap\xc2\xad\npen, that the President for the time being would not be in posses\xc2\xad\nsion of the information upon which his predecessor acted, and\ncould not, therefore, have the means of judging whether he had\nexercised his discretion wisely or not.1361\nPolk concluded that the President making an expenditure, deemed by him\nconfidential, may, if he chooses, keep all the information and evidence upon\nwhich he acts in his own possession. If, for the information of his successors, he\nleaves some evidence upon which he acts in the confidential files of one of the\nexecutive departm ents, such evidence does not thereby become publicly\navailable.\nM ilitary and D iplom atic Instructions with Respect to Mexico\n\nOn January 12, 1848, President Polk sent a message to the House transmitting\nreports of the Secretaries of State, War, and the Navy in response to a con\xc2\xad\ngressional resolution seeking copies of all instructions given to American mili\xc2\xad\ntary and diplomatic officers relating to the return of President General Lopez de\nSanta Anna to Mexico. President Polk stated that he was transmitting the\ndocuments,\n\xc2\xbb Id. at 327.\n\xc2\xbb/</. at 433.\n\n762\n\n\x0cwhich contain all the information in the possession of the Ex\xc2\xad\necutive which it is deemed compatible with the public interests to\ncommunicate. . . .\nThe customary and usual reservation contained in calls of either\nHouse of Congress upon the Executive for information relating to\nour intercourse with foreign nations has been omitted in the\nresolution before me. The call of the House is unconditional. It is\nthat the information requested be communicated, and thereby be\nmade public, whether in the opinion of the Executive (who is\ncharged by the Constitution with the duty of conducting negotia\xc2\xad\ntions with foreign powers) such information, when disclosed,\nwould be prejudicial to the public interest or not. It has been a\nsubject of serious deliberation with me whether I could, consist\xc2\xad\nently with my constitutional duty and my sense of the public\ninterests involved and to be affected by it, violate an important\nprinciple, always heretofore held sacred by my predecessors, as I\nshould do by a compliance with the request of the House. Presi\xc2\xad\ndent Washington, in a message to the House of Representatives of\nthe 30th of March, 1796, declined to comply with a request\ncontained in a resolution of that body, to lay before them \xe2\x80\x9c a copy\nof the instructions to the minister of the United States who\nnegotiated the treaty with the King of Great Britain, together with\nthe correspondence and other documents relative to that treaty,\nexcepting such of the said papers as any existing negotiation may\nrender improper to be disclosed.\xe2\x80\x9d\n. . . Indeed, the objections to complying with the request of\nthe House contained in the resolution before me are much strong\xc2\xad\ner than those which existed in the case of the resolution in 1796.\nThis resolution calls for the \xe2\x80\x9c instructions and orders\xe2\x80\x9d to the\nminister of the United States to Mexico which relate to negotia\xc2\xad\ntions which have not been terminated, and which may be re\xc2\xad\nsumed. The information called for respects negotiations which\nthe United States offered to open with Mexico immediately pre\xc2\xad\nceding the commencement of the existing war. The instructions\ngiven to the minister of the United States relate to the differences\nbetween the two countries out of which the war grew and the terms\nof adjustment which we were prepared to offer to Mexico in our\nanxiety to prevent the war. These differences still remain unset\xc2\xad\ntled, and to comply with the call of the House would be to make\npublic through that channel, and to communicate to Mexico, now\na public enemy engaged in war, information which could not fail\nto produce serious embarrassment in any future negotiation be\xc2\xad\ntween the two countries. I have heretofore communicated to\nCongress all the correspondence of the minister of the United\nStates to Mexico which in the existing state of our relations with\n763\n\n\x0cthat Republic can, in my judgment, be at this time communicated\nwithout serious injury to the public interest.\nEntertaining this conviction, and with a sincere desire to fur\xc2\xad\nnish any information which may be in possession of the executive\ndepartment, and which either House of Congress may at any time\nrequest, 1 regard it to be my constitutional right and my solemn\nduty under the circumstances of this case to decline a compliance\nwith the request of the House contained in their resolution.1371\nD iplom atic Instructions Relating to United States-M exico Treaty\n\nOn July 29, 1848, President Polk refused to comply with a request by the\nHouse of Representatives for copies of instructions provided to commissioners\nwho negotiated the treaty with Mexico on the ground that \xe2\x80\x9c it would be \xe2\x80\x98inconsist\xc2\xad\nent with the public interests\xe2\x80\x99 to give publicity to these instructions at the present\ntime.\xe2\x80\x9d He added that, \xe2\x80\x9c as a general rule applicable to all our important negotia\xc2\xad\ntions with foreign powers, it could not fail to be prejudicial to the public interest\nto publish the instructions of our ministers until some time had elapsed after the\nconclusion of such negotiations.\xe2\x80\x9d 38\nPresident Polk did transmit these documents to the House on February 8,\n1849, at which time he reaffirmed the general rule enunciated on July 29, but\nstated that, notwithstanding that, \xe2\x80\x9c as [the documents] have been again called for\nby the House, and called for in connection with other documents, to the correct\nunderstanding of which they are indispensable, 1 have deemed it my duty to\ntransmit them.\xe2\x80\x9d 39\n8. Fillmore Administration\nD iplom atic Instructions\n\nUpon receipt of a request from the Senate to furnish, if not inconsistent with\nthe public interest, information concerning the seizure of the American steam\xc2\xad\nship Prometheus by a British war vessel and the measures taken to vindicate \xe2\x80\x9c the\nhonor of the country,\xe2\x80\x9d President Fillmore, on December 15, 1851, transmitted\nexcerpts from a communication giving the facts of the case, but without the\ninstructions given to the United States Minister in London. He declared that\n\xe2\x80\x9c [sufficient time has not elapsed for the return of any answer to this dispatch\nfrom him, and in my judgment it would at the present moment be inconsistent\nwith the public interest to communicate those instructions. A communication,\nhowever, of all the correspondence will be made to the Senate at the earliest\nmoment at which a proper regard to the public interest will permit.\xe2\x80\x9d40\n37 Id at 565. 566, 567.\n38 Id. at 602.\n39 Id. at 679.\n40 5 Richardson, supra, at 139-40.\n\n764\n\n\x0cDocuments Involving American Claims Against the Mexican Government\n\nIn response to a Senate request for papers and proofs on file with the Executive\nBranch regarding the claim of Samuel A. Belden & Co. against the Mexican\ngovernment, on May 29, 1852, President Fillmore forwarded all documents save\nthose of a diplomatic nature, and stated that because the claim was still being\nnegotiated it was therefore \xe2\x80\x9c not deemed expedient . . . to make public the\ndocuments which have been reserved.\xe2\x80\x9d41\nSandwich Islands\n\nOn August 14, 1852, President Fillmore refused to provide information to the\nSenate regarding a proposition made by the King of the Sandwich Islands to\ntransfer the islands to the United States, as not comporting with the public\ninterest.42\n9. Buchanan Administration\nLaw Enforcement Files\n\nOn January 11,1859, President Buchanan responded to a request by the Senate\nfor information relating to the landing of a slave ship on the coast of Georgia. The\nPresident transmitted a report from the Attorney General which stated that an\noffense had been committed and that measures were being taken to enforce the\nlaw. However, he concurred with the opinion of the Attorney General that \xe2\x80\x9c it\nwould be incompatible with the public interest at this time to communicate the\ncorrespondence with the officers of the Government at Savannah or the instruc\xc2\xad\ntions which they have received.\xe2\x80\x9d43\n10. Lincoln Administration\nFort McHenry Arrests\n\nOn July 27, 1861, President Lincoln refused to provide to the House of\nRepresentatives documents revealing the grounds, reasons, and evidence upon\nwhich Baltimore police commissioners were arrested at Fort McHenry for the\nreason that disclosure at that time would be incompatible with the public\ninterest.44\nArrest c f Brigadier General Stone\n\nOn May 1, 1862, President Lincoln refused to comply with a request by the\nSenate for more particular information regarding the evidence leading to the\n4 ,/</. at 151.\n42 Id at 159.\n43 Id. at 534.\n44 6 Richardson, supra, at 33.\n\n765\n\n\x0carrest of Brigadier General Stone on the ground that the determination to arrest\nand imprison him was made upon the evidence and in the interest of public safety,\nand that disclosure of more particular information was incompatible with the\npublic interest.45\nN egotiations with N ew Granada\n\nThe House of Representatives had requested the Secretary of State to commu\xc2\xad\nnicate to it, \xe2\x80\x9c if not in his judgment incompatible with the public interest,\xe2\x80\x9d\ninformation concerning American relations with New Granada, and what nego\xc2\xad\ntiations, if any, had been had with General Herran of that country. President\nLincoln, on January 14, 1863, replied to the resolution giving a resume of\ndevelopments in New Granada. However, with respect to official communica\xc2\xad\ntions with General Herran, he stated that \xe2\x80\x9c [n]o definitive measure or proceeding\nhas resulted from these communications, and a communication of them at present\nwould not, in my judgment, be compatible with the public interest.\xe2\x80\x9d46\n11. Johnson Administration\nM ilitary Correspondence\n\nOn January 26, 1866, President Johnson refused to disclose to the Senate\ncertain communications from military officers regarding violations of neutrality\non the Rio Grande on the ground that such disclosure would not be consistent\nwith the public interest.47\nConfinement c f Jefferson Davis\n\nOn February 9 ,1 8 6 6 , President Johnson refused, on advice from the Secretary\nof War and the Attorney General, to comply with a request by the House of\nRepresentatives for a report by the Judge Advocate General concerning the\nconfinement of Jefferson Davis, and others, on the ground that disclosure would\nnot be in the public interest.48\nN ew Orleans Investigations\n\nOn May 2, 1866, President Johnson refused to provide the House of Repre\xc2\xad\nsentatives with a copy of a report that it had requested concerning General\nSmith\xe2\x80\x99s and James T. Brady\xe2\x80\x99s New Orleans investigations, citing the public\ninterest in nondisclosure.49\n45 Id.\n*M .\n47 Id.\n48 Id.\n49 Id.\n\nat\nat\nat\nat\nat\n\n74.\n147. 149.\n376-77.\n378.\n385.\n\n766\n\n\x0c12. Grant Administration\nPerformance c f Executive Functions\n\nIn April 1876, President Grant was requested by the House of Representatives\nto provide information which would show whether any executive acts or duties\nhad been performed away from Washington, the lawfully established seat of\ngovernment . (This was an attempt to embarrass the President for having spent the\nhot summer at Long Beach.) On May 4, 1876, the President refused on the\nground that the Constitution did not give the House of Representatives authority\nto inquire of the President where he performed his executive functions, and that,\nmoreover, the House\xe2\x80\x99s lawful demands on the Executive were limited to informa\xc2\xad\ntion necessary for the proper discharge of its powers of legislation or\nimpeachment.50\n13. Cleveland Administration\nDismissal of D istrict Attorney\n\nIn response to a resolution by the Senate requesting the Attorney General to\nprovide certain documents concerning the administration of the United States\nAttorney\xe2\x80\x99s Office (then District Attorney) for the Middle District of Alabama,\nand the President\xe2\x80\x99s dismissal of the incumbent district attorney, President\nCleveland sent a message on March 1, 1886, to the Senate stating that he was\nwithholding the requested documents because they contained information ad\xc2\xad\ndressed to him and to the Attorney General by private citizens concerning the\nformer district attorney, and that the documents related to an act (the suspension\nand removal of an Executive Branch official) which was exclusively a discretion\xc2\xad\nary executive function.51\n\xe2\x80\x9cRebecca \xe2\x80\x9d Schooner Incident\nOn February 26, 1887, President Cleveland refused to provide the Senate with\ninformation that it requested regarding the seizure and sale of the American\nschooner Rebecca at Tampico, and the resignation of the Minister of the United\nStates to Mexico, on the ground that publication of the requested correspondence\nwould be inconsistent with the public interest.52\n14. Harrison Administration\nInternational Conference on the Use c f Silver\n\nIn response to the Senate\xe2\x80\x99s request for information regarding the steps taken\ntoward holding an international conference on the use of silver, President Har\xc2\xad\n50 7 Richardson, supra, at 361-66\n51 8 Richardson, supra, at 375.\n52 Id. at 538\n\n767\n\n\x0crison stated on April 26, 1892, that \xe2\x80\x9c in my opinion it would not be compatible\nwith the public interest to lay before the Senate at this time the information\nrequested, but that at the earliest moment after definite information can properly\nbe given all the facts and any correspondence that may take place will be\nsubmitted to Congress.\xe2\x80\x9d 53\n15. Cleveland Administration\nCuba M atters\n\nIn response to a request by the House of Representatives for copies of all\ncorrespondence relating to affairs in Cuba since February 1895, President\nCleveland transmitted on February 11, 1896, a communication from the Secre\xc2\xad\ntary of State and such portions of the correspondence requested as he deemed it\nnot inconsistent with the public interest to communicate.54\nCorrespondence with Spain\n\nOn May 23, 1896, President Cleveland transmitted to the Senate a requested\ncopy of the protocol with Spain, but withheld copies of certain correspondence\nwith Spain on the ground that it would be incompatible with the public good to\nfurnish such correspondence.55\n16. McKinley Administration\nWar D epartm ent Investigations\n\nIn response to a request made by the Senate to the Secretary of War for a report\non the War Department\xe2\x80\x99s investigation into receipts and expenditures of Cuban\nfunds, President McKinley informed the Senate on January 3, 1901, that it was\nnot deemed compatible with the public interest to transmit the document at that\ntim e.56\n17. Theodore Roosevelt Administration\nUnited States Steel Proceedings\n\nOn January 4, 1909, the Senate passed a resolution directing the Attorney\nGeneral to inform the Senate whether certain legal proceedings had been in\xc2\xad\nstituted against the United States Steel Corporation, and if not, the reasons for its\nnon-action. A request was also made for the opinions of the Attorney General\nregarding this matter, if any had been written. President Roosevelt replied to the\nSenate on January 6, 1909, stating that he had been orally advised by the Attorney\n33 9 Richardson, supra, at 238-39.\n54 Id. at 666.\n53 Id. at 669.\n56 9 Richardson, supra, at 6458 (Bur of N at\xe2\x80\x99i Literature ed. 1911).\n\n768\n\n\x0cGeneral that there were insufficient grounds for instituting legal action against\nU.S. Steel, and that he had\ninstructed the Attorney General not to respond to that portion of\nthe resolution which calls for a statement of his reasons for\nnonaction. I have done so because I do not conceive it to be within\nthe authority of the Senate to give directions of this character to\nthe head of an executive department, or to demand from him\nreasons for his action. Heads of the executive departments are\nsubject to the Constitution, and to the laws passed by the Con\xc2\xad\ngress in pursuance of the Constitution, and to the directions of the\nPresident of the United States, but to no other direction\nwhatever.1571\nWhen the Senate was unable to get the documents from the Attorney General,\nit subpoenaed the Commissioner of Corporations to produce all papers and\ndocuments regarding U.S. Steel in his possession. The Commissioner reporteid\nthe request to the President, who sought an opinion from Attorney General\nBonaparte regarding the Commission\xe2\x80\x99s statutory obligation to withhold such\ninformation except upon instruction by the President. The Attorney General\nadvised the Commissioner that the discretion to make public the requested\ndocuments was vested in the President and that, accordingly, he should turn over\nall documents within the scope of the subpoena to the President.58 The Commis\xc2\xad\nsioner did so, and President Roosevelt then informed the Judiciary Committee\nthat he had the papers and that the only way the Senate could get them was\nthrough his impeachment. President Roosevelt also explained that some of the\nfacts were given to the government under a pledge of secrecy and that the\ngovernment had an obligation to keep its word.59\n18. Coolidge Administration\n\nBureau c f Internal Revenue Oversight\n\nOn April 11, 1924, President Coolidge responded to a request by the Senate\nfor a list of all companies in which the Secretary of the Treasury \xe2\x80\x9c was interested\xe2\x80\x9d\n(for the purpose of investigating their tax returns) as a part of a general oversight\ninvestigation of the Bureau of Internal Revenue. President Coolidge refused to\nprovide the information on the ground that it was confidential information the\ndisclosure of which would be detrimental to public service, calling the Senate\xe2\x80\x99s\ninvestigation an \xe2\x80\x9c unwarranted intrusion,\xe2\x80\x9d bom of a desire other than to secure\ninformation for legitimate legislative purposes.60\n\xe2\x80\x9d 43\n58 27\n59 E\n60 65\n\nCong Rec. 528 (1909).\nOp Att\xe2\x80\x99y Gen. 150 (1909).\nCorwin, The President\xe2\x80\x94 Office and Powers 429 (1957).\nCong. Rec 6087 (1924)\n\n769\n\n\x0c19. Hoover Administration\nLondon Treaty Letters\n\nOn July 11, 1930, President Hoover responded to a request addressed to the\nSecretary of State from the Senate Foreign Relations Committee for certain\nconfidential telegrams and letters leading up to the London Naval Conference and\nthe London Treaty. The Committee members had been permitted to see the\ndocuments with the understanding that the information contained therein would\nbe kept confidential. The Committee asserted its right to have full and free access\nto all records touching on the negotiation of the Treaty, basing its right on the\nconstitutional prerogative of the Senate in the treaty-making process. In his\nmessage to the Senate, President Hoover pointed out that there were a great many\ninformal statements and reports which were given to the government in con\xc2\xad\nfidence. The Executive was under a duty, in order to maintain amicable relations\nwith other nations, not to publicize every negotiating position and statement\nwhich preceded final agreement on the Treaty. He stated that the Executive must\nnot be guilty of a breach of trust, nor violate the invariable practice of nations. \xe2\x80\x9c In\nview of this, I believe that to further comply with the above resolution would be\nincompatible with the public interest.\xe2\x80\x9d 61\n20. Franklin D. Roosevelt Administration\nFBI Records\n\nOn April 30, 1941, at the direction of President Roosevelt, Attorney General\nJackson wrote the Chairman of the House Committee on Naval Affairs, stating\nhis refusal to provide the Committee with certain FBI records. Attorney General\nJackson declared that \xe2\x80\x9c all investigative reports are confidential documents of the\nexecutive department of the Government, to aid in the duty laid upon the\nPresident by the Constitution to \xe2\x80\x98take care that the laws be faithfully executed,\xe2\x80\x99\nand that congressional or public access to them would not be in the public\ninterest.\xe2\x80\x9d 62\nR adio Intelligence Material\n\nPursuant to a January 19, 1943, resolution, a House Select Committee to\nInvestigate the Federal Communications Commission (FCC) subpoenaed the\nDirector of the Bureau of the Budget on July 9, 1943, to appear before the Select\nCommittee and produce Bureau files and correspondence dealing with requests\nby the War and Navy Departments to the President for an executive order\ntransferring the functions of the FCC \xe2\x80\x99s Radio Intelligence Division to the military\nestablishments. The Director refused, citing Attorney General Jackson\xe2\x80\x99s letter of\n61 S. D oc No. 216, 71st C ong , Special Sess 2 (1930).\n62 40 Op. A tt\xe2\x80\x99y G en 45, 46 (1941)\n\n770\n\n\x0cApril 30, 1941, and a presidential instruction that the Bureau\xe2\x80\x99s files were to be\nkept confidential, because disclosure would not com port with the public\ninterest.63\nIn addition, the Acting Secretary of War was requested to appear before the\nSelect Committee to produce documents bearing on the War and Navy Depart\xc2\xad\nments\xe2\x80\x99 requests to the President and to bring several Army officers to testify. The\nActing Secretary refused to provide the documents on the President\xe2\x80\x99s direction,\non the ground that doing so would be incompatible with the public interest, and,\npursuant to his own judgment, refused to permit the Army officers to appear.64\nFBI Records\n\nIn 1944, the same Select Committee subpoenaed the Director of the Federal\nBureau of Investigation to testify concerning fingerprint records and activities at\nPearl Harbor, and also to identify a certain document which he was alleged to\nhave received in the course of his duties. The Director refused to give testimony\nor to exhibit a copy of the President\xe2\x80\x99s directive requiring him, in the interest of\nnational security, to refrain from testifying or disclosing the contents of the\nBureau\xe2\x80\x99s files.65 Attorney General Biddle wrote a letter to the Select Committee,\ndated January 22, 1944, informing the Committee that communications between\nthe President and the heads of departments were privileged and not subject to\ninquiry by congressional committees.66\n21. TVuman Administration\nCondon Incident\n\nIn March 1948, the House Committee on Un-American Activities issued a\nsubpoena to the Secretary of Commerce directing him to appear before the\nCommittee and to bring with him a letter from the Director of the FBI concerning\nthe loyalty of Dr. Condon, Director of the National Bureau of Standards, together\nwith all records, files, and transcripts of the loyalty board relating to Dr. Condon.\nOn March 13, 1948, President Truman issued a directive providing for the\nconfidentiality of all loyalty files and requiring that all requests for such files from\nsources outside the Executive Branch be referred to the Office of the President,\nfor such response as the President may determine. 13 Fed. Reg. 1359 (1948). At a\npress conference held on April 22, 1948, President Truman indicated that he\nwould not comply with the request to turn the papers over to the Committee.67\nSteelman Incident\n\nOn March 6, 1948, during an investigation into a strike among employees of\nGovernment Services, Inc., a subcommittee of the Hcuse Committee on Educa\xc2\xad\n63 Study and Investigation c f the Federal Communications Commission Hearings on H Res. 21 Before the House\nSelect Comm, to Investigate the Federal Communications Commission, 78th C ong., 1st Sess 37 (1943).\n64 Id at 67-68\n65 Id. at 2304-05.\n66 Id at 2337-39\n67 The Public lepers of the Presidents, Harry S Truman, 1948, at 228\n\n771\n\n\x0ction and Labor issued a subpoena to presidential assistant John R. Steelman.68\nMr. Steelman returned the subpoena to the chairman of the subcommittee on the\nground that \xe2\x80\x9c the President directed me, in view of my duties as his assistant, not\nto appear before your subcommittee.\xe2\x80\x9d 69 The minority report to H.R. Rep. No.\n1595 commented on Mr. Steelman\xe2\x80\x99s failure to comply with the subpoena as\nfollows:\nthe purpose of the subpoena on Mr. Steelman was to obtain from\nhim the contents of any oral or written communications which had\nbeen made to him by the President with reference to the strike\nprevailing in the restaurants maintained by Government Services,\nInc. I cannot believe that any congressional committee is entitled\nto make that kind of investigation into the private conferences of\nthe President with one of his principal aides. I cannot conceive\nthat the views of a Senator or Congressman on a pending bill may\nbe extracted by a court or by a congressional committee by\nsubpoenaing the Senator\xe2\x80\x99s of [sic] Congressman\xe2\x80\x99s administrative\nassistant or any other assistant, secretary, or confidential em\xc2\xad\nployee. Likewise, I regard it as a direct invasion of the Executive\xe2\x80\x99s\nprerogative to invade the work and time of his assistant in this\nmanner. Dr. Steelman I think acted with the utmost propriety in\nreferring the matter to the President. The Chief Executive very\nnaturally and properly directed Dr. Steelman not to appear before\nthe subcommittee.1701\nState D epartm ent Employee Loyalty Investigation\n\nOn March 28, 1950, a subcommittee of the Senate Foreign Relations Commit\xc2\xad\ntee investigating allegations of disloyalty among State Department employees\nserved subpoenas on the Secretary of State, the Attorney General, and the\nChairman of the Civil Service Commission, demanding the production of all files\nbearing on the loyalty of certain State Department employees. After reference of\nthe subpoena to the President pursuant to the directive of March 13, 1948, the\nPresident on April 3, 1950, directed the officials not to comply with the sub\xc2\xad\npoena.71 Thereafter it appeared that the subpoenaed documents had been made\navailable to the preceding Congress prior to the issuance of the March 13, 1948,\ndirective. President Truman thereupon agreed to make the files available to the\nsubcommittee on the theory that this would not constitute a precedent for\nsubsequent exceptions from the March 13, 1948, directive.72\n68 Investigation c f G SI Strike: Hearings o n H. Res 111 Before a Special Subcomm. c f the House Comm, on\nEducation and Labor, 80th Cong , 2d Sess. 347-53 (1948).\n69 H R Rep. No. 1595, 80th Cong., 2d Sess. 3 (1948); see id Pt. 2, at 8.\n70 Id. Pt. 1, at 12\n71 The Public F^pers of the Presidents, H arry S Truman, 1950, at 240.\n72 S. Rep. No. 2108, 81st Cong., 2d Sess. 9 (1950)\n\n772\n\n\x0cGeneral Bradley Incident\n\nDuring the investigation into the circumstances surrounding the dismissal of\nGeneral Douglas MacArthur held by the Senate Committees on Armed Services\nand Foreign Relations in 1951, General Bradley refused to testify about a\nconversation with President Truman in which he had acted as the President\xe2\x80\x99s\nconfidential adviser. The Chairman of the Committee, Senator Russell, recog\xc2\xad\nnized Bradley\xe2\x80\x99s claim of privilege. When that ruling was challenged, the Com \xc2\xad\nmittee upheld it by a vote of 18 to 8 .73 At a press conference held on May 17,\n1951, President Truman indicated that he had previously taken the position that\nhis conversation with General Bradley was privileged and that he was \xe2\x80\x9c happy\xe2\x80\x9d\nwith the Committee\xe2\x80\x99s action.74\nRefusal to Comply with an Excessively Burdensome Demand fo r Information\n\nDuring an investigation into the administration of the Department of Justice by\na special subcommittee of the House Judiciary Committee, the chairman of the\nsubcommittee requested a number of departments and agencies to furnish the\nfollowing information:\nA list of all cases referred to the Department of Justice or U.S.\nAttorneys for either criminal or civil action by any governmental\ndepartment or agency within the last six years, in which:\na. Action was declined by the Department of Justice, including\nin each such case the reason or reasons assigned by said Depart\xc2\xad\nment for such refusal to act.\nb. Said cases were returned by the Department of Justice to the\ngovernmental Department or agency concerned for further infor\xc2\xad\nmation or investigation. In such cases, a statement of all subse\xc2\xad\nquent action taken by the Department of Justice should be\nincluded.\nc. Said cases have been referred to the Department of Justice\nand have been pending in the Department for a period of more\nthan one year and are not included in b. above.1751\nPresident Truman instructed the heads of all agencies and departments not to\ncomply with that request for the following reasons set forth in his letter, dated\nMarch 7, 1952, to the chairman of the subcommittee:\n[T]his request of yours is so broad and sweeping in scope that it\nwould seriously interfere with the conduct of the Government\xe2\x80\x99s\nbusiness if the departments and agencies should undertake to\n73 Military Situation in the Far East\' Hearings Before the Senate Comm, on Armed Services and the Senate\nComm, on Foreign Relations, 82d Cong., 1st Sess. 763, 832-72 (1951).\n74 The Public Ffcpers of the Presidents. Harry S Truman, 1951, at 289.\n73 The Public lep ers of the Presidents, Harry S Truman, 1952-53, at 199.\n\n773\n\n\x0ccomply with it. I am advised that it would require the examination\nof hundreds of thousands of files, that it would take hundreds of\nemployees away from their regular duties for an extensive period\nof time, and that it would cost the Government millions of dollars.\nAll this would be done, not for the purpose of investigating\nspecific complaints, not for the purpose of evaluating credible\nevidence of wrongdoing, but on the basis of a dragnet approach to\nexamining the administration of the laws.\n1 do not believe such a procedure to be compatible with those\nprovisions of the Constitution which vest the executive power in\nthe President and impose upon him the duty to see that the laws\nare faithfully executed.1761\nConfidentiality c f Administration c f Loyalty Security Program\n\nIn the spring of 1952 members of a Senate Appropriations subcommittee\nsought detailed information on the administration of the Loyalty Security Pro\xc2\xad\ngram. In response to a request for guidance by the Department of State, President\nTruman on April 3, 1952, issued detailed instructions which provided for the\nconfidentiality of the Loyalty Security Program. These instructions provided,\ninter alia:\n\nThere is no objection to making available the names of all\nmembers of an agency loyalty board, but it is entirely improper to\ndivulge how individual board members voted in particular cases\nor to divulge the members who sat on particular cases. If this type\nof information were divulged freely, the danger of intimidation\nwould be great, and the objectivity, fairness and impartiality of\nboard members would be seriously prejudiced.1771\n22. Eisenhower Administration\nExecutive Branch Deliberative Discussions\n\nDuring the Army-McCarthy Hearings, the counselor of the Army was ques\xc2\xad\ntioned about discussions which had taken place during a conference of high-level\ngovernment officials.\nOn May 17, 1954, President Eisenhower directed the Secretary of Defense to\ninstruct the employees of his Department not to testify on those issues. The\nPresident\xe2\x80\x99s letter stated:\nBecause it is essential to efficient and effective administration\nthat employees of the Executive Branch be in a position to be\ncompletely candid in advising with each other on official matters,\nn id .\n77 Id. at 235-36.\n\n774\n\n\x0cand because it is not in the public interest that any of their\nconversations or communications, or any documents or reproduc\xc2\xad\ntions, concerning such advice be disclosed, you will instruct\nemployees of your Department that in all of their appearances\nbefore the Subcommittee of the Senate Committee on Govern\xc2\xad\nment Operations regarding the inquiry now before it they are not\nto testify to any such conversations or communications, or to\nproduce any such documents or reproductions. This principle\nmust be maintained regardless of who would be benefited by such\ndisclosures.1781\nThis letter was interpreted as requiring every officer and employee of the\ngovernment to claim privilege on his own in any situation covered by that letter.\nHence there were a considerable number of invocations of executive privilege\nduring the Eisenhower Administration which were not referred to, or specifically\nauthorized by, the President.\nConversation with Presidential Assistant Sherman Adams\n\nDuring hearings in July 1955 on the Dixon-Yates Contract before the Subcom\xc2\xad\nmittee on Antitrust and Monopoly of the Senate Judiciary Committee, Securities\nand Exchange Commission Chairman Armstrong was questioned on various\nissues. During most of his testimony, questions of privilege were disposed of\nwithout reference to the White House. When questioned about a telephone\nconversation with Presidential Assistant Sherman Adams, he sought the advice\nof the Special Counsel to the President who, upon advice of the Attorney\nGeneral, directed that Mr. Armstrong could testify as to existence of the con\xc2\xad\nversation, but not as to matters discussed during the conversation.79\nKillian and G aither Panel Reports\n\nIn connection with an investigation into satellite and missile programs in\nJanuary 1958, then-Senator Lyndon Johnson asked for the release of the so-called\nKillian and Gaither Panel reports. President Eisenhower denied the request in\npart on the ground that the reports had been prepared with the understanding that\nthe advice contained in them would be kept confidential. The President added\nthat \xe2\x80\x9c these reports are documents of the National Security Council. Never have\nthe documents of this Council been furnished to the Congress.\xe2\x80\x9d 80\nConfidentiality o f ICA Country Reports\n\nBetween 1957 and 1959 the International Cooperation Administration (ICA),\nthe predecessor to the Agency for International Development (AID), repeatedly\n78 The Public lepers of the Presidents, Dwight D Eisenhower, 1954, at 483-84\n79 Power Policy. Dixon-Yates Contract\' Hearings on S Res 61 Before the Subcomm. on Antitrust and Monopoly\nc f the Senate Comm on the Judiciary. 84th Cong., 1st Sess. 751 (1955).\n80The Public Ffcpers of the Presidents, Dwight D. Eisenhower, 1958, at 117-18.\n\n775\n\n\x0cdenied to Congress and to the Comptroller General access to its country evalua\xc2\xad\ntion reports on the ground that they contained confidential opinions and tentative\nrecommendations on matters involving foreign policy. These refusals were made\nwithout express presidential authorization.\nWhen this issue came up at President Eisenhower\xe2\x80\x99s news conference of July 1,\n1959, the President approved these withholdings largely on the ground that the\nrelease of the reports would jeopardize the ability of the United States to obtain\nconfidential information.81\nThe Mutual Security legislation of 1959\xe2\x80\x941961 provided in effect that the ICA\ncould withhold information from Congress or the Comptroller General only upon\na presidential certification that he had forbidden the document be furnished and\nstated the reason for so doing. President Eisenhower made the following\ncertifications:\nNovember 12, 1959, relating to an evaluation report on Vietnam;82\nDecember 22, 1959, relating to evaluation reports on Iran and Thailand;83\nDecember 2, 1960, relating to evaluation reports on several South American\ncountries. These reports apparently were made available to the Comptroller\nGeneral during the following Administration.84\n23. Kennedy Administration\nConfidentiality c f Names cf Specific Government Employees\n\nDuring an investigation into military cold war education and speech review\npolicies conducted by the Senate Committee on Armed Services, Senator Thur\xc2\xad\nmond requested the names of individual government employees of the Depart\xc2\xad\nment of Defense and the Department of State who made or recommended\nchanges in specific speeches.\nOn February 8, 1962, President Kennedy directed the Secretary of Defense\nand all personnel under the jurisdiction of his Department not to give any\ntestimony or produce any documents which would disclose such information.\nThe letter stated:\n[I]t would not be possible for you to maintain an orderly Depart\xc2\xad\nment and receive the candid advice and loyal respect of your\nsubordinates if they, instead of you and your senior associates, are\nto be individually answerable to the Congress, as well as to you,\nfor their internal acts and advice.\nS(C\n\nJfc\n\nH*\n\n*\n\nI do not intend to permit subordinate officials of our career\n81 Id .. 1959, at 488, 489.\n82 Id. at 776.\n83 Id. at 874\n84 Id , 1960-61, at 881\n\n776\n\n\x0cservices to bear the brunt of congressional inquiry into policies\nwhich are the responsibilities of their superiors.1851\nChairman Stennis upheld the claim of privilege. The ruling was upheld by the\nSubcommittee.86 On February 9, 1962, President Kennedy sent a similar letter to\nthe Secretary of State.87\nConfidentiality c f National Security Council Papers\n\nLater, during the same investigation into military cold war education and\nspeech review policies, Senator Thurmond demanded certain National Security\nCouncil papers. In a letter to Chairman Stennis dated June 23, 1962, President\nKennedy refused to release those papers on the ground that \xe2\x80\x9c the unbroken\nprecedent of the National Security Council is that its working papers and policy\ndocuments cannot be furnished to the Congress.\xe2\x80\x9d 88\n24. Johnson Administration\nExemption c f Presidential Assistants from Appearance Before Congressional\nCommittees\n\nIn 1968, during hearings on the nomination of Justice Fortas to be Chief\nJustice of the United States, Treasury Under Secretary Barr, Associate Special\nCounsel to the President DeVier Pierson, and Secretary of Defense Clark\nClifford were invited to appear before the Senate Committee on the Judiciary to\ntestify on the question whether Justice Fortas had participated in high-level White\nHouse meetings dealing with the development of legislation authorizing the\nSecret Service to protect presidential candidates.\nBy letters dated September 16, 1968, Mr. Barr and Mr. DeVier Pierson both\ndeclined the invitation. Mr. Barr\xe2\x80\x99s letter contained the following pertinent\nlanguage:\nIn the development of this legislation, I participated in meetings\nwith representatives of the White House and discussed the matter\ndirectly with the President.\nBased on long-standing precedents, it would be improper for\nme under these circumstances to give testimony before a Con\xc2\xad\ngressional committee concerning such meetings and discussions.\nTherefore, I must, with great respect, decline your invitation to\nappear and testify.\nMr. DeVier Pierson stated:\n85 Military Cold War Education and Speech Review Policies \xe2\x80\xa2 Hearings Before the Special Preparedness\nSubcomm c f the Senate Comm on Armed Services, 87th Cong , 2d Sess. 508-509 (1962).\n86 Id. at 513-14.\n87 Id at 725.\n88 Id. at 2951-57. 3160-61.\n\nIll\n\n\x0cAs Associate Special Counsel to the President since March of\n1967, I have been one of the \xe2\x80\x9c immediate staff assistants\xe2\x80\x9d\nprovided to the President by law. (3 U .S.C . 105, 106.) It has been\nfirmly established, as a matter of principle and precedents, that\nmembers of the President\xe2\x80\x99s immediate staff shall not appear\nbefore a Congressional committee to testify with respect to the\nperformance of their duties on behalf of the President. This\nlimitation, which has been recognized by the Congress as well as\nthe Executive, is fundamental to our system of government. I\nmust, therefore, respectfully decline the invitation to testify in\nthese hearings.\nThe Secretary of Defense also asked to be excused ifrom a personal appearance\nbefore the Committee, stating that \xe2\x80\x9c because of the complexities of the current\nworld situation, my time is fully occupied in meeting my obligations and\nresponsibilities as Secretary of Defense.\xe2\x80\x9d89\n25. Nixon Administration\nFBI Investigative Files\n\nOn November 21, 1970, the Attorney General, with the specific approval of\nthe President, refused to release certain investigative files of the Federal Bureau\nof Investigation to Rep. L. H. Fountain, Chairman of the Intergovernmental\nRelations Subcommittee of the House Government Operations Committee. The\nreports discussed certain scientists nominated by the President to serve on\nadvisory boards of the Department of Health, Education and Welfare.90\nM ilitary A ssistance Plan\n\nOn August 30, 1971, President Nixon declined to make available to the Senate\nForeign Relations Committee the Five-Year Plan for the Military Assistance\nProgram.91 In a memorandum to the Secretaries of State and Defense, the\nPresident stated:\nThe Senate Foreign Relations Committee has requested \xe2\x80\x9c direct\naccess to the Executive Branch\xe2\x80\x99s basic planning data on Military\nAssistance\xe2\x80\x9d for future years and the several internal staff papers\ncontaining such data. The basic planning data and the various\n89 Nom inations c f A be Fortas and Homer Thornberry: Hearings Before the Senate Comm, on the Judiciary, 90th\nC ong.. 2d Sess. 1347, 1348, 1363 (1968).\n90 Memorandum for Honorable William S. Moortiead, Chairman, Subcommittee on Foreign Operations and\nG overnment Information of the House Committee on Government Operations, from Deputy Assistant Attorney\nGenera] Mary Lawton (Apr. 25, 1973) (Lawton Memorandum); U.S. Government Information Policies and\nfYactices\xe2\x80\x94 The Pentagon Papers, Part 2, H ouse Comm, on Government Operations, 92d C ong., IstSess 362-63\n(1971).\n91 Executive Privilege. The Withholding c f Information B y the Executive: Hearing Before the Subcomm. on\nSeparation c f Powers c f the Senate Comm, on the Judiciary, 92d Cong., 1st Sess. 45-46 (1971).\n\n778\n\n\x0cinternal staff papers requested by the Senate Foreign Relations\nCommittee do not, insofar as they deal with future years, reflect\nany approved program of this Administration. . . .\nI am concerned, as have been my predecessors, that unless\nprivacy of preliminary exchange of views between personnel of\nthe Executive Branch can be maintained, the full frank and\nhealthy expression of opinion which is essential for the successful\nadministration of Government would be muted.\nI have determined, therefore, that it would not be in the public\ninterest to provide to the Congress the basic planning data on\nmilitary assistance as requested by the Chairman. . . ,1921\nAID Information Concerning Foreign Assistance to Cambodia\n\nOn March 15, 1972, the President directed the Secretary of State to withhold\nfrom the Foreign Operations and Government Information Subcommittee of the\nHouse Government Operations Committee the Agency for International De\xc2\xad\nvelopment (AID) country field submissions for Cambodian foreign assistance for\nfiscal year 1973.\xe2\x80\x9d\nUSIA Memoranda\n\nOn the same date the President instructed the Director of the United States\nInformation Agency (USIA) to decline to provide to the Senate Foreign Relations\nCommittee all USIA country program memoranda.94\nWatergate\n\nPresident Nixon, asserting executive privilege during 1973 and 1974, refused\nto provide to the Senate Select Committee on Presidential Campaign Activities\n(Watergate Committee) and to the House Judiciary Committee various tape\nrecordings of conversations involving the President, and other materials relating\nto the involvement of 25 named individuals in criminal activities connected with\nthe 1972 presidential election.95\n26. Carter Administration\nDepartment of Energy Gas Conservation Fee Documents\n\nIn April 1980 the Subcommittee on Environment, Energy and Natural Re\xc2\xad\nsources of the House Committee on Government Operations subpoenaed docu\xc2\xad\nn Id at 46.\n93 118 Cong. Rec 8694 (1972); Lawton Memorandum, supra.\n94 Id.\n93 See J. Hamilton, The Power to Probe 23-26, 65 (1976); Cox, Executive Privilege, 122 U. Pa. L Rev 1383,\n1420 (1974) Although the tape recordings were eventually turned over to the House Judiciary Committee, the\nPresident\'s refusal to make those same tapes available to the Senate Watergate Committee was unanimously affirmed\nby the U.S. Court of Appeals for the District of Columbia Circuit Senate Select Committee v. Nixon, 498 F.2d 725\n(1974) (en banc) President Nixon\xe2\x80\x99s refusal to disclose Watergate-related tapes and documents in response to a\nsubpoena in a criminal case is beyond the scope of this memorandum See generally United States v Nixon, 418\nU.S. 683 (1974)\n\n779\n\n\x0cments reflecting intra-Executive Branch deliberations concerning the President\xe2\x80\x99s\ndecision to impose a conservation fee on imports of crude oil and gasoline.96 For\nseveral weeks representatives of the Executive Branch negotiated with the\nSubcommittee about releasing the documents. On April 25, 1980, Secretary of\nEnergy Duncan informed the Subcommittee that \xe2\x80\x9c the President has instructed\nme to pursue all reasonable grounds of accommodation. If there are no further\nreasonable avenues of negotiation, the President has instructed me to assert a\nprivilege with respect to these documents.\xe2\x80\x9d 97 Ultimately, some but not all of the\ndocuments were given to the Subcommittee, which tacitly withdrew its request\nfor documents that reflected deliberations directly involving the Executive Office\nof the President.98\n27. Reagan Administration\nSecretary Watt\xe2\x80\x99s Implementation c f the M ineral Lands Leasing Act\n\nOn October 2, 1981, the Oversight and Investigations Subcommittee of the\nHouse Committee on Energy and Commerce served a subpoena on Secretary of\nthe Interior James Watt for all documents relative to his determination of Canadi\xc2\xad\nan reciprocity under the Mineral Lands Leasing Act, 30 U.S.C. \xc2\xa7 181. Among\nthe material covered by the subpoena were a number of Cabinet-level predeci\xc2\xad\nsional deliberative documents, while other documents contained classified,\ndiplomatic information. On October 13, 1981, President Reagan directed Secre\xc2\xad\ntary Watt not to release 31 particular documents whose disclosure would be\ninconsistent with the confidential relationship among Cabinet officers and the\nPresident, and which would violate the constitutional doctrine of separation of\npowers. While protecting the confidentiality of these documents, Secretary Watt\nmade repeated efforts to accommodate the Subcommittee\xe2\x80\x99s needs through certain\nlimited document disclosures, testimony, and correspondence.\nOn February 8 ,1982, a contempt resolution against Secretary Watt was passed\nby the Subcommittee; on February 25 the full Committee supported this con\xc2\xad\nclusion by a vote of 23 to 19. By this time, however, Secretary Watt had reached a\ndecision finding Canada to be a \xe2\x80\x9c reciprocal\xe2\x80\x9d national under the Mineral Lands\nLeasing Act. Immediately thereafter he informed all members of the Subcommit\xc2\xad\ntee that since the deliberative process had concluded, he was \xe2\x80\x9c hopeful\xe2\x80\x9d that\nadditional documents might be released.\nOn March 16, 1982, Fred F. Fielding, Counsel to the President, together with\nmembers of the Subcommittee, reached an agreement pursuant to which all of the\ndisputed documents were made available for one day at Congress under the\n96 Proclamation No 4744, 16 Weekly Comp. Pres. Doc. 592 (1980).\n97 M emorandum for the Attorney General, from Assistant Attorney General John Harmon, 6 (Jan. 13, 1981).\n98 Id. at 8.\n\n780\n\n\x0ccustody of a representative from the Office of Counsel to the President. Minimal\nnotetaking, but no photocopying, was permitted; the documents were available\nfor examination by Members Only.99\nT h e o d o r e B . O lso n\n\nAssistant Attorney General\nOffice c f Legal Counsel\n\n99 See generally H.R. Rep. No. 8 9 8 ,97th Cong., 2d Sess. 73-84(1982); Contempt c f Congress. Hearings Before\nthe Subcomm. on Oversight and Investigations c f the House Comm on Energy and Commerce. 97th C ong., 2d\nSess. (1982)\n\n781\n\n\x0c'


b'Application of Federal Advisory Committee Act to\nEditorial Board of Department of Justice Journal\nA n o u ts id e a d v iso ry o r e d ito ria l b o a rd fo r a n e w D e p a rtm e n t o f J u stic e p u b lic a tio n w o u ld b e\ns u b je c t to th e F e d e ra l A d v is o ry C o m m itte e A c t i f it d e lib e ra te d a s a b o d y in o r d e r to f o r m u \xc2\xad\nla te re c o m m e n d a tio n s, b u t w o u ld n o t b e su b je c t to FA C A if e a c h in d iv id u a l m e m b e r re v ie w e d\ns u b m iss io n s to th e jo u r n a l an d g a v e h is o r h e r o w n o p in io n a b o u t p u b lic a tio n .\nM arch\n\nM em o ran d u m\n\n27, 1990\n\nf o r th e E x e c u tiv e A s s is ta n t\n\nTO TH E A TTO R N EY G EN E R A L\n\nYou have asked whether an outside advisory or editorial board for a new\npublication of the Department would be subject to the Federal Advisory\nCommittee Act (\xe2\x80\x9cFACA\xe2\x80\x9d), 5 U.S.C. app. \xc2\xa7\xc2\xa7 1-15. We believe that the board\nwould be subject to FACA if it deliberated as a body in order to formulate\nrecommendations, but would not be subject to FACA if each individual mem\xc2\xad\nber reviewed submissions to the journal and gave his own opinion about\npublication.1\nI.\nThe definition of \xe2\x80\x9cadvisory committee\xe2\x80\x9d under FACA covers, among other\nthings, \xe2\x80\x9cany committee, board, commission, council, conference, panel, task\nforce, or other similar group, or any subcommittee or other subgroup thereof\n. . . which is . . . established or utilized by one or more agencies, in the\ninterest of obtaining advice or recommendations for . . . one or more agen\xc2\xad\ncies or officers of the Federal Government.\xe2\x80\x9d 5 U.S.C. app. \xc2\xa7 3(2). An\nadvisory board\xe2\x80\x94a committee that collectively reviews drafts of articles, makes\nrecommendations about publication, and suggests editorial policy\xe2\x80\x94 would\n\n1 We assum e th at the ed ito rial or ad visory board w ould not p erform operational functions w ith re sp ec t\nto th e pub licatio n . I f the b o a rd actually m a d e the final d ecisio n s ab o u t w hat to p u blish o r h ow to ru n the\njo u rn a l, ad d itio n al legal q u estio n s w ould be raised. See, e.g., 41 C.F.R. \xc2\xa7 101-6.1004(g); 5 U .S .C . app.\n\xc2\xa7 9(b); Public Citizen v. Commission on the Bicentennial o f the U.S. Constitution, 622 F. Supp. 753\n(D .D .C . 1985).\n\n53\nt\n\n\x0cprobably come within FACA. It would be \xe2\x80\x9cestablished\xe2\x80\x9d by the Department,\n\xe2\x80\x9cin the interest of obtaining advice or recommendations\xe2\x80\x9d for the Department.\n5 U.S.C. app. \xc2\xa7 3(2). As the legislative history of FACA shows, the term\n\xe2\x80\x9cestablished\xe2\x80\x9d is to be interpreted in its \xe2\x80\x9cmost liberal sense, so that when an\nofficer brings together a group by formal or informal means, by contract or\nother arrangement, and whether or not Federal money is expended, to obtain\nadvice and information, such group is covered by the provisions\xe2\x80\x9d of the Act.\nS. Rep. No. 1098, 92d Cong., 2d Sess. 8 (1972). In view of this broad\nmeaning, the advisory or editorial board would come within FACA if it de\xc2\xad\nliberated as a body.2\nFurthermore, FACA would apply even though the advisory board, as we\nunderstand, could include some members who are full-time government of\xc2\xad\nficers or employees. Under the statute, the definition of \xe2\x80\x9cadvisory committee\xe2\x80\x9d\nexcludes \xe2\x80\x9cany committee which is composed wholly of full-time officers or\nemployees o f the Federal Government.\xe2\x80\x9d 5 U.S.C. app. \xc2\xa7 3(2)(iii). By impli\xc2\xad\ncation, a committee that is not \xe2\x80\x9cwholly\xe2\x80\x9d composed of government employees\nor officers comes within the statute. See Center fo r Auto Safety v. Tiemann,\n414 F. Supp. 215, 225 n.10 (D.D.C. 1976) (committee of state and federal\nemployees is covered by FACA), remanded on other grounds sub nom. Cen\xc2\xad\nter f o r Auto Safety v. Cox, 580 F.2d 689 (D.C. Cir. 1978); S. Rep. No. 1098\nat 8 (FACA motivated by abuses involving committees \xe2\x80\x9cwhose membership\nin whole or in part\xe2\x80\x9d comes from outside the government).\nAlthough some courts have put limiting constructions on the meaning of\n\xe2\x80\x9cadvisory committee,\xe2\x80\x9d we do not believe that such a limiting construction\ncould be justified here, if the editorial or advisory board deliberated as a\nbody in order to make its recommendations. The definition of \xe2\x80\x9cadvisory\ncommittee.\xe2\x80\x9d if read as broadly as the language permits, is expansive. See,\ne.g., N ader v. Baroody, 396 F. Supp. 1231, 1232 (D.D.C. 1975), vacated as\nm oot, No. 75-1969 (D.C. Cir. Jan. 10, 1977). The language could extend to\ninstances where application o f FACA\xe2\x80\x94with its requirements of balanced mem\xc2\xad\nbership, open meetings, and public availability of docum ents\xe2\x80\x94 would\nunconstitutionally intrude on the exercise o f the President\xe2\x80\x99s authority. Courts\nhave construed the statute to avoid such outcomes. See Public Citizen v.\nU nited States D e p \xe2\x80\x99t o f Justice, 491 U.S. 440 (1989) (FACA does not apply\nto American Bar Association\xe2\x80\x99s committee on judicial selection); N ader v.\nBaroody, 396 F. Supp. at 1234-35 (FACA does not apply to casual, day-today meetings by which the President gathers information and views); see\n2O n o c c a sio n , in d eterm in in g w h eth er a group is an \xe2\x80\x9c ad v iso ry com m ittee,\xe2\x80\x9d O L C has relied upon lim it\xc2\xad\nin g d ra ft g u id e lin e s fo r F A C A that w ere published in the F ed eral R egister, 28 Fed. R eg. 2306 (1973), but\nn o t a d o p te d , 39 F ed . R eg. 12,389 (1 9 7 4 ). These g u id elin es, O L C has stated, are an early a d m inistrative\nin te rp re ta tio n o f FA C A an d thus e n title d to som e w eight. See M em orandum fo r Irving P. M argulies,\nD e p u ty G e n e ra l C o u n se l, D epartm ent o f C om m erce, from T heodore B. O lson, A ssistant A tto rn e y G e n \xc2\xad\ne ra l, O ffic e o f L e g a l C o u n se l, Re: P resident\xe2\x80\x99s Private Sector Survey on Cost Control at 6-7 (D ec. 15,\n1982). E v e n u n d e r th ese guidelines, a g ro u p that has \xe2\x80\x9call o r m ost\xe2\x80\x9d o f five "c h arac te ristic s\xe2\x80\x9d w ould p ro b \xc2\xad\nab ly a p p ly to the p ro p o se d board (fix ed m em bership, estab lish m en t by federal official, d efined purpose\no f p ro v id in g a d v ic e on particular s u b jec ts, and reg u lar o r p e riodic m eetings), and the last ch aracteristic\nm ig h t a lso a p p ly (an organizational stru c tu re , such as a g ro u p o f o fficers, and a staff).\n\n54\n\n\x0calso National Anti-Hunger Coalition v. Executive Comm, o f the P residen t\xe2\x80\x99s\nPrivate Sector Survey on C ost Control, 557 F. Supp. 524, 530 (D.D.C.)\n(FACA, if read broadly, could violate separation of powers), a jf\'d and re\xc2\xad\nmanded, 711 F.2d 1071 (D.C. Cir.), amended, 566 F. Supp. 1515 (D.D.C.\n\n1983). However, no constitutional issues would be raised by applying FACA\nto the contemplated editorial or advisory board. The business of such a\nboard would not touch on any \xe2\x80\x9cconstitutionally specified task committed to\nthe Executive,\xe2\x80\x9d Public Citizen v. United States D e p \xe2\x80\x99t o f Justice, 491 U.S. at\n460, nor would regulating the board\xe2\x80\x99s activities under FACA interfere with\nthe President\xe2\x80\x99s discharge of his duties.\n\nII.\nWe believe that the Act would not reach an advisory board if the Depart\xc2\xad\nment sought only the views of individuals rather than the views of the board\nas a whole. FACA applies by its terms to \xe2\x80\x9cadvisory committees.\xe2\x80\x9d \xe2\x80\x9cAdvi\xc2\xad\nsory committee\xe2\x80\x9d is a term that connotes a body that deliberates together to\nprovide advice. Therefore, as a matter of statutory construction, we believe\nthat FACA does not apply to a group which simply acts as a forum to collect\nindividual views rather than to bring a collective judgment to bear.\nGSA regulations confirm the commonsense notion of what differentiates\na \xe2\x80\x9ccommittee\xe2\x80\x9d from a collection of individuals.3 The regulations state that\nFACA does not cover:\nAny meeting initiated by a Federal official(s) with more than\none individual for the purpose of obtaining the advice of indi\xc2\xad\nvidual attendees and not for the purpose of utilizing the group\nto obtain consensus advice or recommendations. However,\nagencies should be aware that such a group would be covered\nby the Act when an agency accepts the group\xe2\x80\x99s deliberations\nas a source of consensus advice or recommendations . . . .\n41 C.F.R. \xc2\xa7 101-6.1004(i). Although this provision is not entirely clear, it\nappears to mean that FACA does not cover a collection of individuals who\ndo not perform a collegial and deliberative function and whose views are\nconsidered individually rather than as part of a \xe2\x80\x9csense of the committee.\xe2\x80\x9d\n\n5 In Public Citizen v. United States Dep\'t o f Justice, the C ourt held that the G SA re g u la tio n s w ere\ne n titled to \xe2\x80\x9cd im in ish ed d e fe re n ce " b ecau se they w ere not issued until ten years after FA C A w as passed\nand because FA C A , w h ile em p o w erin g G SA to issue \xe2\x80\x9c adm inistrative g uidelines and m anagem ent c o n \xc2\xad\ntro ls,\xe2\x80\x9d 5 U .S.C . app. \xc2\xa7 7 (c), did not ex p ressly authorize G SA to fill in the defin itio n s o f th e statutory\nterm s. 491 U .S. at 463 n.12. But see 491 U.S. at 477-81 (K ennedy, J., concurring in the ju d g m e n t).\nN evertheless, the C o u rt d id not view the regulations as w holly w ithout w eight.\n\n55\n\n\x0cThe clearest example of such a collection of individuals would be a group\no f experts, each of whom reviews submissions in his own area of expertise.\nNevertheless, even if each member of the editorial board reviews every ar\xc2\xad\nticle and sends his comments to the Department, the arrangement would still\nappear to fall outside FACA, because a collective judgment would not be\nsought. Indeed, since the regulation permits a meeting at which individual\nviews are offered, it would, a fortiori, permit the solicitation of individual\nviews o f board members who are not at a meeting. The board members\nwould merely be acting in the same way as individual contractors who offer\nconsulting services to the government. Cf. H.R. Rep. No. 1017, 92d Cong.,\n2d Sess. 4 (1972) (\xe2\x80\x9cThe term advisory committee does not include any con\xc2\xad\ntractor or consultant hired by an officer or agency of the government, since\nsuch contractor would not be a \xe2\x80\x98committee, board, commission, council . . .,\nor sim ilar group . . . .\xe2\x80\x9d \xe2\x80\x99) (alteration in original). We caution, however, that\nthis regulation has not been directly tested in the courts.\nW hile the regulation also permits a group to meet without having to\ncomply with FACA, as long as only individual views are offered, such an\narrangement would be open to legal challenge. As a practical matter, the dy\xc2\xad\nnamics of such a gathering are likely to lead to members exchanging, analyzing,\nand debating the views presented, and it would be difficult to argue, in that\nevent, that the members were offering only discrete, individual opinions.\nIf the editorial or advisory board is set up as a vehicle for the presenta\xc2\xad\ntion o f individual views, it m ay be prudent to leave the board without any\nformal structure, such as officers or staff. One opinion in a case under\nFACA could be read to suggest that such \xe2\x80\x9cindicia of formality\xe2\x80\x9d may be\nrelevant to whether the principle recognized in the GSA regulation would\napply. See N atural Resources Defense Council, Inc. v. Herrington, 637 F.\nSupp. 116, 120 (D.D.C. 1986).\nW ILLIAM P. BARR\nAssistant Attorney General\nOffice o f Legal Counsel\n\n56\n\n\x0c'


b"September 9, 1977\n\n78-83\n\nMEMORANDUM OPINION FOR THE COUNSEL\nTO THE PRESIDENT\nDual Office\xe2\x80\x94 Compensation (5 U.S.C. \xc2\xa7 5533)\xe2\x80\x94\nPeace Corps\xe2\x80\x94 ACTION\n\nThis is in response to your request for our opinion whether a Presidential\nappointee to the dual positions of Director o f the Peace Corps and Deputy\nDirector of ACTION can be paid at the rate that is the lower of the salaries\ndesignated for those p ositions.1\nAs a threshold m atter, it should be noted that an individual can concurrently\nhold two Federal executive offices. The only general statute presently regulat\xc2\xad\ning dual service by Federal officers or employees is 5 U .S.C . \xc2\xa7 5533(a), which\nprovides that\n. . . an individual is not entitled to receive basic pay from more than\none position for more than an aggregate of 40 hours of work in one\ncalendar week (Sunday through Saturday).\nThe statute inferentially recognizes the legality of dual office-holding.2\nThe inquiry here is whether the governmental official appointed to two\ndifferent positions can be paid the salary o f the lowest paying position. In light\nof the relevant case law and our prior opinions, we think that in this case the\nofficer must be paid the higher o f the two salaries.\nA Federal office holder cannot legally waive a salary fixed by law .3 See,\nG lavey v. U nited States, 182 U .S. 595 (190). The salary o f the Director of the\nPeace Corps is fixed by law pursuant to 5 U .S.C . \xc2\xa7 5314(37), as amended.\nThus, the parameters have been drawn: On one hand a Federal officeholder can\nreceive only one salary regardless of the number of offices he holds, and on the\nother, that officeholder cannot legally waive a salary fixed by law. It seems to\n\n'T he position o f D irector o f the Peace C orps is the higher paying position o f the two.\n2A Presidential appointee once served concurrently as D irector o f the Office o f Econom ic\nOpportunity and as D irector o f the Peace Corps.\n3For purposes o f our analysis it is irrelevant w hether the position o f Deputy D irector o f ACTION\nis fixed by law.\n\n368\n\n\x0cfollow logically that a dual officeholder, if powerless to waive a statutorily\nfixed salary, cannot waive his entitlement to receive a statutorily fixed salary\nthat is greater than the salary o f his concurrent position. The validity o f this\nlogic must be measured against the reason for the rule which renders powerless\na Federal officeholder to waive his or her statutorily fixed salary.\nIn G lavey v. U nited States, supra, plaintiff Glavey was duly appointed as a\n\xe2\x80\x9c special inspector o f foreign steam vessels\xe2\x80\x9d and his salary was fixed by\nstatute. After dismissing numerous governmental assertions as to why the\nplaintiff should not be paid the full statutory salary, the Court quoted from\nM iller v. U nited States, 103 F. 413, 415-416 (1900):\n. . . It is to be assumed that Congress fixes the salary with due regard\nto the work to be performed, and the grade o f man that such salary\nmay secure. It would lead to the grossest abuses if a candidate and the\nexecutive officer who selects him may combine together so as\nentirely to exclude from consideration the whole class of men who\nare willing to take the office on the salary Congress has fixed but will\nnot come for less. . . . [182 U .S. at 609.]\nThe G lavey Court therefore concluded:\nThe stipulation that Glavey, who was local inspector, should exercise\nthe functions o f his office o f special inspector o f foreign steam\nvessels \xe2\x80\x9c without additional com pensation\xe2\x80\x9d was invalid under the\nstatute prescribing the salary he should receive, was against public\npolicy, and imposed no legal obligation upon him. [182 U .S. at 610.]\nThe G lavey rationale thus requires that a public official may not waive the\nsalary o f the position in which he serves where that salary is fixed by statute. A\nlesser salary agreement between the official and the appointing officer would\nnot give effect to the will o f the legislature. Consequently, since the higher of\nthe two salaries here is fixed by statute that salary must be paid the appointee to\nthe position of Director o f the Peace Corps.\n\nLarry A. Ham\n\nmond\n\nD eputy A ssistant Attorney G eneral\nOffice o f L eg a l C ounsel\n\n369\n\n\x0c"