b'History of Refusals by Executive Branch Officials to\nProvide Information Demanded by Congress\nPART II\xe2\x80\x94Invocations of Executive Privilege by\nExecutive Officials\nJanuary 27, 1983\nMEMORANDUM FOR THE ATTORNEY GENERAL\nThis memorandum sets forth examples of two separate but related categories of\nrefusals by officials within the Executive Branch to disclose information or\nproduce documents requested by Congress. The first category, addressed in\nSection I of this memorandum, comprises instances of refusals by Attorneys\nGeneral, or other officials in the Department of Justice acting under the Attorney\nGeneral\xe2\x80\x99s authority. Included within this category are general statements by\nAttorneys General regarding the authority of Executive Branch agencies to\nwithhold information from Congress, as well as instances in which other Ex\xc2\xad\necutive Branch agencies have withheld information pursuant to the Attorney\nGeneral\xe2\x80\x99s express advice. Section II of this memorandum provides examples of a\n\xe2\x80\x9c separate class\xe2\x80\x9d 1 of refusals to provide information, specifically, incidents in\nwhich officers of the Executive Branch and the independent agencies have\ndeclined to provide information to Congress relating to law enforcement, se\xc2\xad\ncurity, or personnel investigations.\nThe material contained in this and our December 14, 1982, memorandum,2\nwhen taken together, demonstrates convincingly that throughout this nation\xe2\x80\x99s\nhistory, the Chief Executive and those who assist him in \xe2\x80\x9c tak[ing] care that the\nlaws be faithfully executed,\xe2\x80\x9d have on certain occasions exercised their constitu\xc2\xad\ntional obligation to refrain from sharing with the Legislative Branch information\nthe confidentiality of which was vital to the proper constitutional functioning of\nthe Executive Branch. As Attorney General, and later Supreme Court Justice,\nRobert Jackson stated in 1941:\n\n1 C ox, Executive Privilege, 122 U f t. L. Rev. 1383, 1402 (1974).\n2 This memorandum is a supplement to M emorandum for the Attorney General, \xe2\x80\x9c Presidential Invocations of\nExecutive Privilege Vis-a-Vts Congress,\xe2\x80\x9d from Assistant Attorney General Theodore B. Olson, Office of Legal\nCounsel (Dec. 14, 1982), hereafter \xe2\x80\x9c D ecember 14, 1982, Memorandum.\xe2\x80\x9d [See Part I, p. 751, supra.]\n\n782\n\n\x0cSince the beginning of the Government, the executive branch has\nfrom time to time been confronted with the unpleasant duty of\ndeclining to furnish to the Congress . . . information which it has\nacquired and which is necessary to it in the administration of\nstatutes.131\nThis general principle is neither new nor novel, and represents no departure from\npast practice; to the contrary, the assertion of such responsibility has been a\nconsistent theme throughout our constitutional existence. Moreover, while the\nExecutive\xe2\x80\x99s position at times has been resisted by Congress with varying levels of\nintensity, based partially on partisan political considerations, members of the\nLegislative Branch have often respected and supported the prerogatives of the\nExecutive in this regard.4\nBecause this memorandum is intended to be tead as a supplement to our\nmemorandum entitled \xe2\x80\x9c Presidential Invocations of Executive Privilege Vis-aVis Congress,\xe2\x80\x9d supra, note 2, it does not include instances of presidential or\npresidentially authorized withholdings involving the Attorney General or the\nDepartment of Justice except when a significant statement by the Attorney\nGeneral, independent of that made by the President, is involved. Nor does it\ndiscuss in detail instances in which law enforcement files were withheld by the\nPresident or pursuant to his express direction; such instances are noted, however,\nwith a reference to our December 14, 1982, Memorandum.\nWhile the fundamental principles and rationales underlying the incidents\ndescribed here are identical to the principles and rationales underlying formal,\npresidential invocations of executive privilege to protect sensitive information\nwithin the Executive Branch, these examples do not represent, in and of them5 40 Op. Alt\xe2\x80\x99y Gen. 45, 48 (1941)\n4 Members of Congress in both Houses have on various occasions recognized the authority of Executive Branch\nofficers to withhold from Congress sensitive investigative materials. For example, in 1906 the Senate was\nconsidering a resolution requesting information from the President concerning the dismissal of three companies of\n\xe2\x80\x9c colored\xe2\x80\x99*Army troops from military service Dunng the debate. Senator John Spooner of Wisconsin raised certain\nobjections lo the form of the resolution In his remarks on the power of the Executive to withhold information,\nSenator Spooner gave the following examples of appropriate executive restrictions on disclosures to Congress:\nThe Department of Justice would not be expected to transmit to either House the result of its\ninvestigations upon which someone had been indicted, and lay bare to the defendant the case of the\nGovernment The confidential investigations in various departments of the Government should be.\nand have always been, treated by both Houses as confidential, and the President is entirely at liberty\nto permit by the Cabinet officer to whom the inquiry is addressed as much or as little information\nregarding them as he might see fit.\n3 Hinds\xe2\x80\x99 Precedents \xc2\xa7 1904, at 197 (1907).\nAlso, in 1948 six Members of the House, all Democrats and including then Minority Whip John W. McCormack\nof Massachusetts, stated as follows with regard to the Attorney General\xe2\x80\x99s refusal to disclose Federal Bureau of\nInvestigation (FBI) investigative files regarding paroles of four federal prisoners, see generally pp 790-91 infra\nI think the Attorney General is entirely justified in his refusal to make the actual FBI reports available\nto the subcommittee Investigative reports almost inevitably contain much confidential information\nrelative to the identity of informants They frequently contain material which must ip the interest of a\nsuccessful criminal prosecution be kept confidential until the very moment it is required at the trial.\nThe effectiveness and efficiency of the FBI would be greatly impaired if its reports were to be made\navailable to any congressional committee which asked for them. Nor do 1 believe that the consent of\nthe Speaker or of the President of the Senate would obviate these difficulties. I may refer in this\nrespect to the authoritative opinion of Attorney General Jackson . . [referring to the Opinion of\nRobert Jackson cited at n.3, supra]\nH.R Rep No 1595, 80th Cong , 2d Sess. II (1948) (Minority Report).\n\n783\n\n\x0cselves, formal invocations of executive privilege.5 Rather, they exemplify efforts\nby executive officers to protect the integrity of their files by communicating their\nconcerns to Congress before resorting to a formal, presidential assertion of\nprivilege.\nThe following examples are not intended to be representative of the day-to-day\nrelationship between the Executive Branch and Congress concerning disclosure\nof information. Many commentators have observed that, as a rule, Congress\nreceives most of the information it seeks, largely because \xe2\x80\x9c the several depart\xc2\xad\nments and agencies strive to be on good terms with the committees in charge of\ntheir appropriations and their legislative programs.\xe2\x80\x9d 6 Nor does this enumeration\nconstitute a comprehensive listing of every refusal by an executive officer to\ndisclose confidential material to Congress;7 the compilation of such a list would\nbe an impossible8\xe2\x80\x94 and largely useless\xe2\x80\x94 task to undertake. This memorandum\n5 As the doctrine is currently implemented, executive privilege may be formally invoked to prevent disclosures to\nCongress only by the President personally. A bsent such formal invocation, executive officers are obliged lo comply\nwith all congressional requests for information in a manner consistent with their duty to execute the law. See, e.g ,\nPresident Reagan\'s Memorandum for the H eads of Executive Departments and Agencies. Procedures Governing\nResponses to Congressional Requests for Information (Nov 4, 1982)\n6 Kramer & M arcuse, Executive Privilege: A Study c f the Period 1953-1960, 29 Geo. Wash. L Rev. 623, 627\n(1961) See also id. at 897-98; Bishop, The Executive\'s Right o f Privacy An Unresolved Constitutional Question, 66\nYale L.J. 477, 486, 488 (1957); Younger, Congressional Investigations and Executive Secrecy: A Study in the\nSeparation c f Powers, 20 U. Pitl. L Rev. 755, 770 (1959). For example, in response to a congressional inquiry, the\nDepartment of Defense revealed that between May 17, 1954 and May 27, 1957 approximately 300,000 requests for\ninformation had been received from Congress by the Department and the military services Of those inquiries, only\n13 were known by the Department to have been formally denied Freedom c f Information and Secrecy in\nGovernment: Hearings on S. 921 Before th e Subcomm. on Constitutional Rights c f the Senate Comm, on the\nJudiciary, 85th C ong., 2d Sess 385-87 (1958) [hereinafter cited as 1958Hearings] (noting, however, that because\nno records are maintained by the Department specifically recording denials o f congressional requests for informa\xc2\xad\ntion, there may have been additional refusals).\n7 In addition to the Dec 14, 1982, M emorandum, supra, there are a number of studies which catalogue both\nformal invocations o f executive pnvilege by Presidents and refusals by other executive officers to disclose\ninformation to Congress. They vary widely in scope, accuracy, and completeness See, e.g.. Study Prepared by the\nGovernment and General Research Division, Library of Congress, The Present Limits of \xe2\x80\x9c Executive Pnvilege,\xe2\x80\x9d\nreprintedm 119Cong Rec. 10079 (1973) (listing examples from the penod 1960-1972); American Law Division,\nLibrary of C ongress, Selected Cases in W hich Information Has Been Withheld from Congress by the Executive\nDepartment, reprinted in 1958 Hearings, supra, at 428-46 (covering the period 1789-1956); Memorandum on the\nExercise of Executive Pnvilege, 1956-72, Response to Congressional Inquiry by Deputy Assistant Attorney\nG eneral Mary C Lawton (Apr. 25, 1973), reprinted in Availability c f Information to Congress\xe2\x80\xa2 Hearings on\nH .R . 4938, H .R . 5983 and H R. 6438 Before a Subcomm. c f the House Comm, on Government Operations, 93d\nCong , 1st Sess. 117-20 (1973); Kramer & Marcuse, supra, 29 Geo. Wash. L. Rev. 629, 827, Memorandum\nReviewing Inquines by the Legislative Branch During the Penod 1948-1953, Concerning the Decisionmaking\nProcess and Documents o f the Executive Branch (unpublished, anonymous Department of Justice document)\n(hereafter Department of Justice Study), Department of Justice study, submitted to the Committee by Deputy\nAttorney General Rogers, Is a Congressional Committee Entitled to Demand and Receive Information and fapers\nFrom the President and the Heads of Departments Which They Deem Confidential, in the Public Interest?, reprinted\nin 1958 H earings, supra, at 63-146 (hereafter Rogers Memorandum) (covering penod from Founders through\n1957)\n8 There are countless examples among the boards, agencies, and departments of the Executive Branch wherein\ncongressional staff, M embers of Congress, o r congressional committees have informally requested information or\ndocuments But, as one commentator has noted:\nThe actual extent and degree to w hich the Executive branch responds to [these] congressional\nrequests for information and documents are buried in the files of the several departments, agencies,\nand congressional committees As a practical matter, it is impossible to sift those records in order to\nextract from them the portions relating to congressional demands for information and the answers of\nthe Executive pertaining thereto. Only a small part of these inquiries finds its way into the mynad of\npages of printed heanngs, committee documents and reports, and the Congressional Record. But\neven here it is virtually impossible to locate them owing to the absence of a proper indexing system.\nKramer & M arcuse, supra, at 627.\nWe know of only one occasion in which a survey has been conducted of the vanous executive departments\xe2\x80\x99\nC ontinued\n\n784\n\n\x0cinstead is designed simply to provide examples of the well-established practice\nby which executive officers, in carrying out their duty to execute the laws, have\ndeclined to provide sensitive material generated within the Executive Branch to\nCongress.\nI. Attorney General and Department of Justice Refusals9\n1. 1886\n\nIn response to a Senate resolution requesting the Attorney General to transmit\nto the Senate Committee on the Judiciary copies of all documents and papers filed\nin the Department of Justice relative to the management and conduct of the Office\nof the District Attorney (now United States Attorney) for the Southern District of\nAlabama, Attorney General Garland wrote on January 28, 1886:\nIn response to the said resolution the President of the United\nStates directs me to say that the papers which were in this\nDepartment relating to the fitness of John D. Burnett, recently\nnominated to said office, having been already sent to the Judiciary\nCommittee of the Senate, and the papers and documents which\nare mentioned in the said resolution, and still remaining in the\ncustody of this Department, having exclusive reference to the\nsuspension by the President of George M. Duskin, the late incum\xc2\xad\ncompliance with congressional requests for information. On April 2 ,1 957, Chairman Hennings of the Subcommit\xc2\xad\ntee on Constitutional Rights of the Senate Committee on the Judiciary sent letters to the heads of a selected list of\nexecutive departments and agencies asking the following questions:\n1 How many times since May 17, 1954, has your agency refused information to Congressmen or\ncongressional committees9\n2. If there have been instances when information has been withheld, when did each occur, and what\nwere the circumstances surrounding such occurrences?\n3 On what basis was the information withheld in each instance?\n1958 Hearings. supra, at 374. While the answers to Chairman Hennings\' letter represent the most complete study\nconcerning the degree to which the Executive Branch as a whole responds to congressional requests for information,\nthe study was limited in scope not only with respect to time\xe2\x80\x94 May 1954 through April 1957\xe2\x80\x94but also in terms of the\nnumber of agencies polled. In addition, the Hennings study also illustrates the almost insurmountable difficulties in\nobtaining comprehensive and accurate information on the subject, owing to the inadequacy of records. Typical was\nthe response to Chairman Hennings\xe2\x80\x99 letter by Acting Chairman Phillips of the Civil Service Commission:\nThe Commission has no way of ascertaining the number of times it has refused information to\nCongressmen or congressional committees. Our filing system does not lend itself to locating such\ninformation. The correspondence file is so voluminous, it would be an insurmountable task to search\nfor such information Inquiries have been made of these [sic] persons in the Commission who would\nhave occasion to entertain a question of refusal, consequently, our answers to your questions are\nbased on memory of such incidents. Undoubtedly, since May 17, 1954, there have been refusals that\nhave escaped the memory of those who were concerned at the time in the determination to furnish the\nrequested information on the specific occasion.\nId. at 378. See also id. at 385 (response of the Secretary of Defense) (\xe2\x80\x98\'no speciaJ records are maintained by the\nDepartment [of Defense] recording denials o f congressional requests for information . .\n\xe2\x80\x9d). See generally Kramer\n& Marcuse, supra, at 637 (extensive analysis of Hennings study).\nNotwithstanding these limitations, this memorandum has relied heavily upon the Hennings study and other\nsimilar compilations in its effort to document typical instances of executive withholding. See generally note 7,\nsupra These materials do not provide an adequate basis for obtaining comprehensive or statistically representative\nexamples of executive withholding in the various Administrations\n9 Although there may well have been instances of refusals by the Attorney General or Department of Justice\nofficials earlier than 1886, such instances have not been well documented. The lack of records regarding incidents\np nor to this period can be accounted for, in part, by the fact that earlier demands and refusals were handled directly\nby the President, see generally our Dec. 14, 1982, Memorandum, and the fact that the executive departments,\nincluding the Department of Justice, were not, for the most part, established until the 1870s\n\n785\n\n\x0cbent of the office of district attorney of the United States for the\nsouthern district of Alabama, it is not considered that the public\ninterest will be promoted by a compliance with said resolution\nand the transmission o f the papers and documents therein men\xc2\xad\ntioned to the Senate in executive session.1101\nOn February 18, 1886, the Committee on the Judiciary reported a resolution\ncondemning the refusal of the Attorney General to transmit the documents. On\nMarch 1, 1886, President Cleveland sent a message to the Senate stating that the\nrequested papers were withheld at his direction because they contained informa\xc2\xad\ntion addressed to him and to the Attorney General by private citizens concerning\nthe former District Attorney, and that the documents related to an act (the\nsuspension and removal of an Executive Branch official) which was a function\nexclusively within the discretion of the Executive.11\n2. 1904\nOn April 27, 1904, Attorney General Knox sent a letter to the Speaker of the\nHouse declining to comply with a resolution of the House requesting him, \xe2\x80\x9c if not\nincompatible with the public interest,\xe2\x80\x9d to inform the House whether any criminal\nprosecutions had been instituted against individuals involved in the Northern\nSecurities antitrust case, \xe2\x80\x9cand to send to the House all papers and documents and\nother information bearing upon any prosecutions inaugurated or about to be\ninaugurated in that behalf.\xe2\x80\x9d 12 The Attorney General responded that no prosecu\xc2\xad\ntions had been initiated and that \xe2\x80\x9c further than this, I do not deem it compatible\nwith the public interest to comply with the resolution.\xe2\x80\x9d 13\n3. 1908\nIn response to a request to transmit, if not incompatible with the public\ninterest, documents and information in the possession of the Department of\nJustice concerning the International Paper Co. and other corporations engaged in\nthe manufacture of woodpulp o r print paper, Attorney General Bonaparte replied\non April 13, 1908, that no evidence had been obtained sufficient to justify the\ninstitution of legal proceedings, either civil or criminal, against any alleged\ncombination of woodpulp or print paper manufacturers but that a further inves\xc2\xad\ntigation was in progress. He added that \xe2\x80\x9c [i]t would be inexpedient at the present\nstage of this investigation to disclose to the public specifically what steps have\nbeen taken, or what action is contemplated, by this Department with respect to\nmatters mentioned in the said resolution.\xe2\x80\x9d 14\n10s.\n\nMisc. Doc. 68, 52d C ong., 2d Sess. 236 (1893).\n11 Id. at 233, 262-63. See also 8 J Richardson, Messages and fa p e rso f the Presidents 375 (1896); December 14,\n1982, M emorandum , supra, at 23.\n12 38 C ong. Rec. 5636 (1904). The phrase, \xe2\x80\x9c if not incompatible with the public interest,\xe2\x80\x9d and other, similar\nphrases have often been embodied in congressional requests for information from the Executive. For a discussion of\nIhe origin and use o f these congressional formulations, see generally Dec. 14,1982, Memorandum, supra, atn.15;\n3 Hinds\xe2\x80\x99 Precedents, supra, \xc2\xa7\xc2\xa7 1856, 1896; Cox, supra. 122 U. f t L. Rev. at 1397 and n.55.\n13 H. Doc. No. 704, 58th C ong., 2d Sess. (1904). TTiis refusal was cited by Attorney General Robert Jackson as\nhistorical precedent for his opinion at 40 Op. A tt\xe2\x80\x99y Gen. 45, 47 (1941), see infra, 788-89\n14 H D oc. No. 860, 60th C ong., IstSess 1 -2 (1908); 42 Cong. Rec. 4512 (1908) See also 40 Op. A tt\xe2\x80\x99y G en.,\nsupra, at 47.\n\n786\n\n\x0c4. 1909\nIn response to a January 4, 1909, Senate resolution requesting Attorney\nGeneral Bonaparte to inform it whether legal proceedings had been instituted\nagainst the United States Steel Corporation (U.S. Steel) by reason of its absorp\xc2\xad\ntion of the Tennessee Coal & Iron Company, and, further, to provide any Attorney\nGeneral opinions written on the subject. President Roosevelt replied on January 6\nthat he, as the Chief Executive, was responsible for the matter, and that Attorney\nGeneral Bonaparte had advised him that there were insufficient grounds for\ninstituting legal action against U .S . Steel, and that he had instructed the Attorney\nGeneral \xe2\x80\x9c not to respond to that portion of the resolution which calls for a\nstatement of his reasons for nonaction . . . because I do not conceive it to be\nwithin the authority of the Senate to give directions of this character to the head of\nan executive department, or to demand from him reasons for his action.\xe2\x80\x9d 15\nThereafter, the Senate Committee on the Judiciary subpoenaed the Commis\xc2\xad\nsioner of Corporations to produce all papers and documents in his possession\nregarding U.S. Steel. The Attorney General advised the Commissioner that the\ndiscretion to make the documents public was vested in the President, and that he\nshould therefore call the request to the attention of the President, submit to him\nthe relevant documents and obtain his instructions as to what part of the data, if\nany, was \xe2\x80\x9c suitable for publication by disclosure to the subcommittee of the\nSenate.\xe2\x80\x9d 16\n5. 1912\nOn March 18,1912, Attorney General Wickersham sent a letter to the Speaker\nof the House declining to comply with a House resolution directing the Attorney\nGeneral to furnish to the House information concerning the Department of\nJustice\xe2\x80\x99s investigations of the Smelter Trust.17\n6. 1912\nOn March 19, 1912, in response to a Senate resolution requesting the Attorney\nGeneral to provide it with all correspondence, information, and reports of the\nBureau of Corporations relative to the \xe2\x80\x9c Harvester Trust,\xe2\x80\x9d Attorney General\nWickersham responded that he was directed by the President to say that it was\n\xe2\x80\x9c not compatible with the public interests\xe2\x80\x9d to provide the information at that time\nbecause the matters \xe2\x80\x9c pertain[ed] entirely to business which is now pending and\nuncompleted in this department.\xe2\x80\x9d 18\n7. 1912\nIn response to a House resolution demanding that the Comptroller of the\nCurrency provide the House Committee on Banking and Currency with data\nrelative to the operation of national banks, Attorney General Wickersham sent an\n15 43 Cong Rec. 528 (1909).\n16 27 O p Att\xe2\x80\x99y G en. 150, 156 (1909). See also Dec. 14, 1982, Memorandum, supra.\n17See 40 Op A tt\xe2\x80\x99y G en., supra, at 47.\n18 S Doc. No. 454, 62d Cong., 2d Sess. 1 (1912)\n\n787\n\n\x0copinion to the President on November 9, 1912, stating that the President, to\nwhom the Comptroller had referred the request, could provide the Committee\nwith the information if, in his opinion, it was proper to do so. The opinion further\nstated that:\nNowhere in the law is there any express provision that the\ninform ation thus acquired by the Com ptroller shall be con\xc2\xad\nfidential. While, if in your opinion, the interests of the Govern\xc2\xad\nment require that this information shall be so treated, you have the\nright to refuse to divulge it, yet, I am clearly of the view that if, in\nyour opinion, it is proper to give this information to the House\ncommittee you have the lawful power to do so.ll9)\n8. 1914\nOn August 28, 1914, Attorney General McReynolds sent a letter to the\nSecretary to the President stating that it would be incompatible with the public\ninterest to send to the Senate, in response to its resolution, reports made to the\nAttorney General by his associates regarding violations of law by the Standard\nOil C o.20\n9. 1915\nOn February 23, 1915, Attorney General Gregory sent a letter to the President\nof the Senate declining to comply with a Senate resolution requesting him to\nreport to the Senate his findings and conclusions of the investigations conducted\nby the Department of Justice \xe2\x80\x9c in the matter of illegal combinations in restraint of\ntrade in the smelting industry, commonly called the Smelting Trust,\xe2\x80\x9d on the\nground that to do so would be incompatible with the public interest.21\n10. 1926\nOn June 8, 1926, Attorney General Sargent sent a letter to the Chairman of the\nHouse Committee on the Judiciary declining to comply with his request to turn\nover to the Committee all papers in the Department\xe2\x80\x99s files relating to the merger\nof certain oil companies.22\n11. 1941\nIn response to a request from the House Committee on Naval Affairs to furnish\nall Federal Bureau of Investigation (FBI) reports since June 1939, and all future\nreports, memoranda, and correspondence of the FBI or the Department of Justice\nin connection with investigations arising out of strikes, subversive activities in\nconnection with labor disputes, or labor disturbances of any kind in industrial\n19 29 Op.\nx* See 40\n21 See 52\n22 See 40\n\nA tt\xe2\x80\x99y G en. 555, 560 (1912) (citations omitted).\nOp. A tt\xe2\x80\x99y Gen , supra, at 47.\nCong. Rec. 4089, 4908-09 (1915); see also 40 O p Att\xe2\x80\x99y G en., supra, at 48.\nO p A tt\'y G en., supra, at 48.\n\n788\n\n\x0cestablishments which had naval contracts, Attorney General Robert Jackson\ndeclined, writing on April 30, 1941:\nIt is the position of this Department, restated now with the\napproval of and at the direction of the President, that all inves\xc2\xad\ntigative reports are confidential documents of the executive de\xc2\xad\npartment of the Government, to aid in the duty laid upon the\nPresident by the Constitution to \xe2\x80\x9c take care that the laws be\nfaithfully executed,\xe2\x80\x9d and that congressional or public access to\nthem would not be in the public interest.1231\nThe Attorney General pointed to the following injurious results which would\nfollow disclosure of the reports: (1) disclosure would seriously prejudice law\nenforcement; (2) disclosure at that particular time would have prejudiced the\nnational defense; (3) disclosure would seriously prejudice the future usefulness\nof the Federal Bureau of Investigation, in that the \xe2\x80\x9c keeping of faith\xe2\x80\x9d with\nconfidential informants was an indispensable condition of future efficiency;\n(4) disclosure might also result in the grossest kind of injustice to innocent\nindividuals, because the reports included leads and suspicions, sometimes those\nof malicious or misinformed people, which had not been verified. In addition, he\nnoted that the number of requests alone for FBI records by congressional\ncommittees would have made compliance impracticable, particularly since many\nof the requests were comprehensive in character.\nThe opinion of the Attorney General was in accord with the conclusions which\nhad been reached by a long line of predecessors, and with the position taken by\nPresidents since Washington\xe2\x80\x99s Administration. He concluded by stating that the\nexercise of this discretion in the Executive Branch had been upheld and respected\nby the judiciary.\n12. 1944\nThe House Select Committee to Investigate the Federal Communications\nCommission subpoenaed the Director of the Federal Bureau of Investigation to\ntestify concerning fingerprint records, activities at Pearl Harbor, and also to\nidentify a certain document which he was alleged to have received in the course\nof his duties. The Select Committee had been empowered by a House resolution\nto investigate whether the Commission had been acting in accordance with law\nand the public interest.24 The Director refused to give testimony regarding the\nletter that he was alleged to have received, or to exhibit a copy of the President\xe2\x80\x99s\ndirective requiring him, in the interest of national security, to refrain from\ntestifying or disclosing the contents of the Bureau\xe2\x80\x99s files. Attorney General\nBiddle wrote a letter to the Committee, dated January 22, 1944, informing the\nCommittee that communications between the President and the heads of depart\xc2\xad\n23 Id. al 46. See also Dec. 14, 1982, Memorandum, supra.\n24 See Rogers M emorandum, supra, at 97\n\n789\n\n\x0cments were privileged and not subject to inquiry by congressional committees,\nstating:\nI have carefully considered the request . . . that I produce\nbefore your committee a copy of the document that I received\nfrom the President directing Mr. Hoover not to testify before your\ncommittee about certain transactions between this Department\nand the Federal Communications Commission.\nIt is my view that as a matter of law and of long-established\nconstitutional practice, communications between the President\nand the Attorney General are confidential and privileged and not\nsubject to inquiry by a committee of one of the Houses of\nCongress. In this instance, it seems to me that the privilege should\nnot be waived; to do so would be to establish an unfortunate\np re c e d e n t, in co n sisten t w ith the p o sitio n taken by my\npredecessors.\nIt could, moreover, open the door to detailed inquiries into the\nconfidential and privileged relationship that exists between the\nPresident and the Attorney General, heretofore generally recog\xc2\xad\nnized by the Congress. I must therefore respectfully decline to\nproduce before your committee the President\xe2\x80\x99s communication.\nWithout waiving in any way the privilege, however, I believe that I\ncan inform the committee that the President\xe2\x80\x99s direction states that\nbecause the transactions relate to the internal security of the\ncountry, it would not be in the public interest, at the present time,\nfor Mr. Hoover or any officer of the Department to testify about\nthem or to disclose any correspondence concerning them.\nFurthermore, I should like to point out that a number of . . .\nquestions related to the methods and results of investigations\ncarried on by the Federal Bureau of Investigation. The Depart\xc2\xad\nment of Justice has consistently taken the position, long ac\xc2\xad\nquiesced in by the Congress, that it is not in the public interest to\nhave these matters publicly disclosed. Even in the absence of\ninstructions from the President, therefore, I should have directed\nMr. Hoover to refuse to answer these questions.1251\n13. 1947\nDuring the course of an investigation by a subcommittee of the House Com\xc2\xad\nmittee on Expenditures in the Executive Departments into the operation of the\nUnited States Board of Parole in 1947-48, the subcommittee, on September 30,\n1947, requested Director Hoover of the Federal Bureau of Investigation, to have a\nrepresentative of the FBI bring to a hearing the investigative files of four parolees\n25 See Study and Investigation c f the Federal Communications Commission: Hearings on H . Res 21 Before the\nH ouse Select Comm, to Investigate the Federal Communications Commission, 78th Cong , 1st Sess. 2338-39\n(1944) See also Dec. 14, 1982, Memorandum, supra\n\n790\n\n\x0calleged to be members of the \xe2\x80\x9c Capone Mob.\xe2\x80\x9d Hoover replied that he was\nforwarding the request to Attorney General Clark to whom the subcommittee\nreiterated the request.26 Assistant Attorney General Ford replied on the Attorney\nGeneral\xe2\x80\x99s behalf that the Department would contact the subcommittee after the\ncompletion of the FBI investigation. A further reply, by Acting Attorney General\nPerlman, dated October 15, 1947, stated:\nThe substance of your letter is a request that the reports of\ninvestigating agencies of the executive departments be made\navailable to your committee. Such reports have long been held to\nbe of a confidential nature.\n. . . I feel certain that you can readily see the reasons why we\ncannot turn over to your committee [the] investigative reports or\nfiles you seek . . . ,l27]\nThe subcommittee then sought to reassure the Department that it did not intend at\nthat time to seek \xe2\x80\x9c any information as to the confidential sources from which the\ninformation was obtained,\xe2\x80\x9d to which the Department replied that the investiga\xc2\xad\ntion was not yet complete and referred to the previous letters, again refusing the\nfiles. However, the Department did offer summaries of reports and information\ncontained in the file for the subcommittee\xe2\x80\x99s confidential use.28\n14. 1948\nThe Investigations Subcommittee of the Committee on Expenditures in the\nExecutive Departments requested Attorney General Clark, by letter of August 2,\n1948, to furnish the Subcommittee with \xe2\x80\x9c any letters, memoranda, or other\nwritten notice which the Department of Justice may have furnished to any other\ndepartm ents, agencies, bureaus, or individuals in Government concerning\nWilliam W. Remington . . . \xe2\x80\x9d The letter stated that the Subcommittee desired\nthe information in order to determine the extent to which other departments\nwithin the Executive Branch had been notified of \xe2\x80\x9c the possible espionage\nactivities of Remington\xe2\x80\x9d so that the Subcommittee would then \xe2\x80\x9c be in a position\nto inquire as to who was responsible for allowing Remington to hold three\nimportant jobs of a highly confidential nature, at the same time [that the\nDepartment was] conducting an investigation of him.\xe2\x80\x9d 29\n26 The Seventeenth Intermediate Report of the Committee on Expenditures in the Executive Departments\nreported on August 6, 1948, that:\nThe FBI refused to give the committee any information, assigning as its reason that it was an\nagency of the Department of Justice and that, acting under instructions from the Department, it could\nnot and would not comply with the request\nA request to Tom Clark, head of the Department of Justice, and to the Department of Justice met\nwith a refusal to furnish such information No reason was given other than that the information was\nconfidential and that the refusal was in compliance with an Executive order issued by President\nThiman, which was based on a long-established policy of the executive departments dating back to\nthe administration of President Washington.\nH.R. Rep. No. 2441. 80th Cong., 2d Sess 7 (1948)\n27 Investigation as to the Manner in Which the United States Board c f Parole is Operating and as to Whether There\nis a N ecessityfor a Change m Either the Procedure or Basic Law: Hearings Before a Subcomm. c f the House C om m .\non Expenditures m the Executive Departments, 80th Cong., 2d Sess 595 (1948).\na id. at 594-96. See also H.R. Rep No 2441, 80th Cong , 2d Sess 7, 21-23 (1948)\n29 Export Policy and Loyalty: Hearings on S Res. 189 Before the Investigations Subcomm. c f the Senate Comm,\non Expenditures in the Executive Departments, 80th Cong , 2d Sess. 383 (1948).\n\n791\n\n\x0cIn his reply of August 5, Attorney General Clark refused to supply the material\non the ground that it fell within President Truman\xe2\x80\x99s directive of March 13,1948,30\nand stated that the requestihad been referred to the Office of the President. A\nsubsequent committee report states that, in addition to the Truman directive, the\nAttorney General\xe2\x80\x99s refusal to supply the information was based on the need to\nprotect . . . information relative to procedures employed by the Department of\nJustice in the handling of alleged espionage within the Government.\xe2\x80\x9d 31\n15. 1949\nOn June I, 1949, Attorney General Clark failed to comply with a subpoena\nserved upon him by the Subcommittee on Immigration and Naturalization of the\nSenate Committee on the Judiciary that directed him to produce the files of the\nDepartment of Justice in the cases of 168 persons named in the subpoena. In\nrefusing to comply, the Attorney General stated that the persons listed were, for\nthe most part, officials or employees of the United Nations or of foreign\ngovernments; that the treatment of persons in that category implicated both\nsensitive foreign relations considerations and the maintenance of internal se\xc2\xad\ncurity; and that he had conferred with the Director of the FBI and had concluded\n\xe2\x80\x98\xe2\x80\x9c that it is not in the public interest that [this information] be produced.\xe2\x80\x99\xe2\x80\x9d The\nAttorney General further noted that it had been reported in the press that the\nSubcommittee Chairman intended to \xe2\x80\x9c \xe2\x80\x98release certain confidential information\ncontained in [his] files relating to internal security matters.\xe2\x80\x99\xe2\x80\x9d The Attorney\nGeneral urged that before \xe2\x80\x9c \xe2\x80\x98such information is made public the matter be\ncleared with this Department.\xe2\x80\x99 \xe2\x80\x9d The letter closed by noting that the President had\ndirected the Attorney General to decline to provide this information.32\n16. 1950\nOn February 22,1950, the Senate adopted Resolution 231 directing a subcom\xc2\xad\nmittee of the Senate Committee on Foreign Relations, chaired by Senator\nTydings, to investigate allegations of disloyalty among Department of State\nemployees, and \xe2\x80\x9c \xe2\x80\x98to procure, by subpoena, and examine the complete loyalty\nand employment files and records of all the Government employees in the\nDepartment of State and such other agencies against whom charges have been\nheard.\xe2\x80\x99 \xe2\x80\x9d33\nOn March 17, 1950, Attorney General McGrath prepared a memorandum\nprompted by the Department o f State\xe2\x80\x99s request for permission to reveal to the\nsubcommittee the contents of the investigative files concerning those employees\n30id. at 384. The Mar. 13, 1948, directive issued by President Truman provided for the confidentiality of all\nloyalty files by requiring that all requests for such files from sources outside the Executive Branch be referred to the\nOffice o f the President for such responses as th e President might determine to be appropriate. 13 Fed Reg. 1359\n(1948). See The Public ftp e rs of the Presidents, Harry S Truman, 1948, at 228; Dec. 14, 1982, Memorandum.\n31 S Rep. No. 1775, 80th Cong , 2d Sess. 20 (1948).\n32 Department of Justice Study, supra, at 12-13.\n33 See Department of Justice Study, supra, at 16. Although this episode is covered in the December 14, 1982,\nM emorandum , portions of it are recounted in this memorandum to highlight the roles of the Attorney General and\nthe Director of the FBI\n792\n\n\x0cagainst whom Senator McCarthy had made allegations of disloyalty, advising\nPresident Truman that, in light of the President\xe2\x80\x99s unquestioned authority to\nwithhold the files, the only question was whether, as a matter of policy, he\ndeemed it advisable to make the files available. Referring to the President\xe2\x80\x99s\nMarch 13, 1948, directive,34 Attorney General McGrath advised the President\nthat unless there were special reasons which compelled a different course, the\nconfidential nature of the loyalty files should be preserved, and that to do\notherwise would create an unfortunate precedent. Attorney General McGrath did\nsuggest, however, that the President could attempt to accommodate the subcom\xc2\xad\nmittee\xe2\x80\x99s interests by transmitting the files to the Loyalty Review Board with a\nrequest that the Board review the files and report its findings with respect to each\nperson against whom charges had been brought, in the light of the factual\nevidence which had been adduced, primarily by Senator McCarthy, before the\nsubcommittee.35\nOn March 27,1950, the Director of the Federal Bureau of Investigation and the\nAttorney General appeared before the subcommittee to give their respective\nviews. The Director\xe2\x80\x99s statement dealt with practical objections, while the At\xc2\xad\ntorney General\xe2\x80\x99s statement dealt with the historic objections voiced by past\nPresidents to the disclosure of investigative files. The Attorney General pointed\nout that since the Department of State loyalty files chiefly involved investigations\nthat had been conducted by the Federal Bureau of Investigation, the \xe2\x80\x9cloyalty files,\ntherefore, are for all practical purposes FBI files.\xe2\x80\x9d36 The Director\xe2\x80\x99s statement\nstressed the FBI\xe2\x80\x99s obligation to protect not only the rights, lives, and property of\nAmerican citizens, but also to protect the confidential relationship of citizens\nwho serve their country by providing information essential to the national\nsecurity:\nFBI reports set forth all details secured from a witness. If those\ndetails were disclosed, they could become subject to misin\xc2\xad\nterpretation, they could be quoted out of context, or they could be\nused to thwart truth, distort half truths, and misrepresent facts.\nThe raw material, the allegations, the details of associations and\ncompilation of information in FBI files must be considered as a\nwhole. They are of value to an investigator in the discharge of his\nduty. These files were never intended to be used in any other\nmanner and the public interest would not be served by the dis\xc2\xad\nclosure of their contents.\nIn taking this stand, I want to reiterate\xe2\x80\x94 a principle is involved.\nI would take this same stand before the Attorney General, as I\nalready have, or before any other body. The fact that I have great\nrespect, confidence, and a desire to be of assistance to a commit\xc2\xad\n34 See n.30, supra.\n35 Id. at 13-14.\n36 Id. at 15, citing to the Attorney General\xe2\x80\x99s statement before the Subcommittee of the Senate Committee on\nForeign Relations at 9 (Mar. 27, 1950).\n\n793\n\n\x0ctee of distinguished Senators, however, in no way detracts from a\nprinciple. I say this because I do not want any misinterpretation of\nmy remarks, nor do 1want it said that this and other committees of\nCongress do not have m y respect and confidence. I would be\nderelict to my duty, untrue to my conscience, and unworthy of my\ntrust to take any other position.1371\nOn March 28, 1950, the subcommittee served subpoenas on the Secretary of\nState, the Attorney General, and the Chairman of the Civil Service Commission\ndemanding production of the files. After reference of the subpoenas to the\nPresident pursuant to the March 13, 1948, directive, President Truman directed\nthe officials not to comply.38\nPresident Truman also wrote to Senator Tydings of the subcommittee on March\n28 and reiterated Director Hoover\xe2\x80\x99s objections to public disclosure of the FBI\nreports, stating that the single most important factor in an effective and just\nloyalty program was the preservation of all files in the strictest confidence, from\nthe points of view of informants as well as innocent individuals. The President\nclosed his letter by stating that in order to give the most thorough and complete\ninvestigation of the charges that the subcommittee was considering, he had asked\nthe Chairman of the Loyalty Review Board to have the Board arrange for a\ndetailed review of all cases with regard to which charges of disloyalty had been\nmade. The President further stated that he had asked the Board, after such review,\nto give him a full and complete report on each case.39\nFollowing these events, it appeared that the files had already been disclosed. In\n1947, prior to the March 13, 1948, Truman directive, the House Committee on\nAppropriations had conducted an investigation of the Department of State and\nhad been furnished with the files that were presently sought by the Senate Foreign\nRelations Subcom mittee. In light of this newly discovered fact, President\nTruman, on May 4, 1950, agreed to make the loyalty files available for review by\nthe subcommittee \xe2\x80\x9c on the theory that to do so would not establish a precedent for\nsubsequent exceptions in violation of [the] March 13, 1948, directive.\xe2\x80\x9d 40 The\nconditions under which the subcommittee was permitted to see the files included\nthe limitations that no individual cases by name would be discussed outside of the\nroom in the White House where the files were to be viewed, no notes were to be\ntaken from the White House, and no technical assistance by career FBI personnel\nwould be provided to assist in the interpretation of notes found in the files.41\n17. 1952\nOn March 4 ,1 9 5 2 , Assistant Attorney General Duggan wrote to the Chairman\nof the Special Subcommittee o f the House Committee on the Judiciary, in\nresponse to a letter dated February 22, 1952, requesting information from the\n37 Department o f Justice Study, supra, at 16.\n38 The Public lepers of the Presidents, H arry S Truman, 1950, at 240\n39 Department o f Justice Study, supra, at 15.\n40 S. Rep. No. 2108, 81st C ong., 2d Sess. 9 (1 9 5 0 )\n41 Department o f Justice Study, supra, at 32.\n\n794\n\n\x0cAttorney General \xe2\x80\x9c \xe2\x80\x98for the purpose of conducting an inquiry into the administra\xc2\xad\ntion of the Department of Justice.\xe2\x80\x99 \xe2\x80\x9d The Subcommittee sought a list of all cases\nthat had been referred to the Department of Justice or United States Attorneys,\nfor either criminal or civil action, by any governmental department or agency\nwithin the last six years. The information sought was:\n(a) A list of all cases in which action had been declined by the Department\nof Justice, including the reasons for refusal to act;\n(b) A statement showing all subsequent actions taken by the Department\nof Justice in cases in which the Department had returned a case to a\ngovernment department or agency for further information; and\n(c) A list of cases in which a referral to the Department of Justice had been\npending for m ore than one year, other than the two categories\nmentioned.42\nMr. Duggan responded that the request was outside the scope of the resolution,\nsince it did not seek information based upon specific complaints \xe2\x80\x9c supported by\ncredible evidence,\xe2\x80\x9d and that the request would impose an intolerable burden\nupon the Department, since it would require an examination of approximately\n500,000 cases and thus would effectively paralyze \xe2\x80\x9c the Department\xe2\x80\x99s efforts to\ndischarge its current duties.\xe2\x80\x9d Mr. Duggan added that the Department was\nprepared to honor all reasonable requests with respect to cases in which specific\nallegations were supported by credible evidence, unless the public interest\nrequired otherwise.\nOn March 5, 1952, Mr. Duggan advised 54 executive agencies, boards, and\ncommissions that he had advised the Subcommittee of his decision not to comply\nwith its request, citing as his reason the fact that \xe2\x80\x9c it constitutes what Mr. Justice\nHolmes has characterized as a \xe2\x80\x98fishing expedition for the chance that something\ndiscreditable might turn up.\xe2\x80\x99\xe2\x80\x9d43\n18. 1952\nOn April 22, 1952, Acting Attorney General Perlman wrote the Chief Counsel\nof the House Subcommittee to Investigate the Department of Justice, in response\nto five letters sent by the Subcommittee in April 1952 for inspection of Depart\xc2\xad\nment of Justice files, reiterating the agreement which he and the Subcommittee\nhad reached regarding the production of additional Department of Justice files in\naid of the Subcom m ittee\xe2\x80\x99s investigation. That agreement provided for the\nfollowing:\n1. Requests involving open cases, either civil or criminal, would not be\nhonored; however, a written or oral status report on the cases would be\nfurnished.\n42 See Department of Justice Study, supra, at 44-46, The Public F^pers of the Presidents, Harry S Truman,\n1952-53, at 199. President Truman\xe2\x80\x99s response lo this request is reported in the December 14, 1982, Memorandum,\nsupra\n43 Department of Justice Study, supra, at 46\n\n795\n\n\x0c2. As to closed cases\xe2\x80\x94 cases in which the Department had completed\nprosecution or consideration without suit\xe2\x80\x94the files would be made\navailable.\n3. As to all files made available, Mr. Perlman emphasized that the\nDepartment would \xe2\x80\x9c withhold from inspection all FBI reports and con\xc2\xad\nfidential information, reports of any other investigative agencies, and any\nother documents containing the names of informers or other data, the\ndisclosure of which would be detrimental to the public interest.\xe2\x80\x9d\n4. Personnel files would never be disclosed, except in cases where\nSenate com m ittees w ere considering nom inations made by the\nPresident.44\n19. 1954\nIn response to a request by Republican members of the Special Subcommittee\non Investigations of the Senate Committee on Government Operations during the\nArmy-McCarthy hearings for more detailed information about a high-level\nmeeting at the White House to which he had referred in his testimony before the\nfull Subcommittee, the counsel to the Army stated that he had been instructed not\nto testify as to the interchange of views among the officials present at that\nmeeting. In response to a request to submit written authorization for the position\nthat he had taken, the counsel to the Army submitted the May 17, 1954,\nEisenhower letter45 to which was attached a memorandum from Attorney General\nBrownell. Attorney General Brownell\xe2\x80\x99s memorandum listed historical examples\nof instances in which Presidents had withheld information from Congress and\nconcluded that:\nThus, you can see that the Presidents of the United States have\nwithheld information of executive departments or agencies when\xc2\xad\never it was found that the information sought was confidential or\nthat its disclosure would be incompatible with the public interest\nor jeopardize the safety o f the Nation. The courts, too, have held\nthat the question whether the production of the papers was con\xc2\xad\ntrary to the public interest, was a matter for the Executive to\ndetermine.\nBy keeping the lines which separate and divide the three great\nbranches of our Government clearly defined, no one branch has\nbeen able to encroach upon the powers of the other.1461\n20. 1955-1956\nIn a letter from Chairman O\xe2\x80\x99Mahoney to Chairman Hennings, whose subcom\xc2\xad\nmittee was separately conducting a study of Executive Branch refusals to provide\ninformation to Senate committees,47 Chairman O \xe2\x80\x99Mahoney wrote:\n44 Id. at 46-47\n45 Reprinted in Dec 14, 1982, Memorandum.\n46 Special Senate Investigation on Charges and Countercharges Involving: Secretary c f the Army Robert T.\nStevens, et a l.: H earings on S Res. 189 Before the Special Subcomm. on Investigations c f the Senate Comm, on\nG overnment Operations, 83d Cong , 2d Sess. 1269-75 (1954).\n47 See generally 1958 Hearings, supra\n\n796\n\n\x0cThe Department of Justice has declined to furnish to this\n[Subcommittee [on Antitrust and Monopoly] information in its\nfiles which was furnished by companies in connection with its\nvoluntary merger clearance program on the ground that informa\xc2\xad\ntion so supplied is confidential.\nThe Department of Justice has consistently refused to permit\nthe [Subcom m ittee to examine grand-jury transcripts] and docu\xc2\xad\nments obtained pursuant to grand-jury subpena[es] which have\nnot become matters of public record. In accordance with long\xc2\xad\nstanding policy, the Department has refused to permit examina\xc2\xad\ntion of Federal Bureau of Investigation reports.1481\n21. 1955\nOn June 15, 1955, Attorney General Brownell sent an opinion to the President\nadvising him that the Federal Communications Commission could, in its discre\xc2\xad\ntion, provide the Senate Committee on Interstate and Foreign Commerce infor\xc2\xad\nmation that the Commission had received on a confidential basis from television\nstations and networks.49 However, the Attorney General advised, the authoriza\xc2\xad\ntion to disclose the information did not constitute a requirement that the Commis\xc2\xad\nsion divulge to the Committee confidential information, and, that the Commis\xc2\xad\nsion was free to withhold that information in its discretion.\n22. 1955\nWithin the context of the July 1955 hearings on the Dixon-Yates Contract\nbefore the Subcommittee on Antitrust and Monopoly of the Senate Committee on\nthe Judiciary,50 Attorney General Brownell advised the Chairman of the Se\xc2\xad\ncurities and Exchange Commission (SEC) that:\nAny communication within the SEC among Commissioners or\nthe Commissioners and employees is privileged and need not be\ndisclosed outside of the Agency. Likewise, any communication\nfrom others of the executive branch to members of the Commis\xc2\xad\nsion or its employees with respect to administrative matters comes\nwithin the purview of the President\xe2\x80\x99s letter of May 17, 1954.\nYou inquired specifically whether when a proceeding is pend\xc2\xad\ning before the Commission a request to the Commission for an\nadjournment by someone in the executive branch outside the\nCommission is likewise covered. Because such a proceeding is\nquasi-judicial in nature, it is my opinion that such a request would\nnot be covered by the President\xe2\x80\x99s letter. . . . Once the proceeding\nis no longer pending before the Commission such information\n48 Id. at 352.\n49 41 Op. Att\xe2\x80\x99y Gen. 221 (1955)\n50 See generally Kramer & M arcuse, supra, 29 Geo. Wash. Rev. at 689, Dec. 14, 1982, Memorandum, supra.\n\n797\n\n\x0cshould, upon request, be made available by the Commission to an\nappropriate congressional committee.1511\nHowever, when subsequently questioned about a telephone conversation that he\nhad had with Presidential Assistant Adams, the Chairman of the SEC testified as\nto the existence of the conversation but, on the advice of Attorney General\nBrownell and of Special Counsel to the President Morgan, he refused to divulge\nthe matters discussed during the conversation on the ground that they involved\nprivileged information.52\n23. 1956\nOn May 29, 1956, during the course of its investigations into the Antitrust\nConsent Decree Program at the Department of Justice, the Antitrust Subcommit\xc2\xad\ntee of the House Committee on the Judiciary requested the Department to furnish\nit with \xe2\x80\x9c all files in the Department of Justice relating to the negotiations for, and\nsigning of, a consent decree\xe2\x80\x9d in the A.T.&T. case.53 The Department of Justice\nreplied on July 13, 1956:\nThe staff of the Antitrust Division has examined in detail this\nDepartment\xe2\x80\x99s files relating to the negotiations and formulation of\nthat decree. The bulk of these documents fall[s] in[to] two catego\xc2\xad\nries: first, material submitted by defendants regarding their opera\xc2\xad\ntions; and, second, memoranda by various members of the Anti\xc2\xad\ntrust Division concerning negotiation conferences as well as\ndecree provisions.\nDocuments relating to defendants\xe2\x80\x99 operations . . . were pro\xc2\xad\nduced, not pursuant to interrogatories or court order, but rather in\nthe course of good-faith negotiation of a consent settlement.\nSome touched on confidential aspects of the defendants\xe2\x80\x99 opera\xc2\xad\ntions. Were they made available to your subcommittee, this\nDepartment would violate the confidential nature of settlement\nnegotiations and, in the process, discourage defendants, present\nand future, from entering into such negotiations.\nIn any event, . . . Department policy does not permit dis\xc2\xad\nclosure of staff memoranda or recommendations. As I indicated,\nthe decision whether or not to settle, and if so on what terms, may\ninvolve difficult judgments. Reaching these judgments, I am sure\nyou appreciate that men equally devoted to vigorous antitrust\nenforcement may well differ. To [ensure that] intelligent final\ndecision[s are made] therefore, full and open discussion is re\xc2\xad\n51 1958 Hearings, supra, at 445-46, citing The New York Times, July 15, 1955, at 1\n52 See 1958 H earings, supra, at 446\n53 K ramer & M arcuse, supra, 29 Geo. Wash. L Rev. at 887. See Consent Decree Program c f the Department c f\nJustice: H earings Before the Antitrust Subcomm. c f the H ouse Comm, on the Judiciary, 85th Cong , 1st and 2d\nSess., (Pts I & II) (1957-58); Report on H. R . Res 27 of the Antitrust Subcomm. of the House Comm, on the\nJudiciary, 86th C ong., 1st Sess. (1959)\n\n798\n\n\x0cquired frequently, not only by all members of the staff but also by\nthe staff with the Assistant Attorney General. This process of\ninterchange may endure over some time. And, as a result of\ndiscussion, any participant must feel free to alter his views as the\nmerits of argument dictate. This essential process of full and\nflexible exchange might be seriously endangered were staff mem\xc2\xad\nbers hampered by the knowledge they might at some later date be\nforced to explain before Congress intermediate positions taken.\nThe responsibility for explaining such decisions thus rests upon\nthe Assistant Attorney General and ultimately upon the Attorney\nGeneral.1541\nHowever, the Subcommittee report indicates that the Subcommittee was able to\nget much of the information that it had requested voluntarily from A.T.&T., the\nDepartment of Defense, and the Federal Communications Commission.55\n24. 1957\nOn April 18, 1957, the Antitrust Subcommittee of the House Committee on\nthe Judiciary, again investigating the Department\xe2\x80\x99s enforcement efforts in the\nConsent Decree Program, sought correspondence between the Department and\nsome of the oil pipelines, departmental drafts, and intradepartmental memoran\xc2\xad\nda, including a factual summary of the results of an FBI investigation into\ncompliance with the oil pipeline consent decree. On April 22, 1957, the Depart\xc2\xad\nment responded that the documents would not be turned over to the Subcommit\xc2\xad\ntee because they\nreflect almost completely either staff recommendations or dif\xc2\xad\nferences in view. Should we decide some court action is called for,\nreleasing those documents . . . could seriously prejudice any\nresulting litigation. Immediately clear is the disadvantage that\nwould stem from revealing differences in staff views or inves\xc2\xad\ntigative reports that could form the basis of any action in court.1561\nOn July 12, 1957, the Subcommittee requested copies of all written interpreta\xc2\xad\ntions, and an explanatory statement of each official oral interpretation that had\nbeen made, of the various provisions of the judgment, as well as a statement that\nwould summarize the factual results of the FBI investigations which had been\ninstituted to determine compliance with the consent decree. The Department\nagain declined, taking the position that:\nThe Department is currently considering possible enforcement\nsteps which involve these interpretations. Many of these so-called\ninterpretations were little more than expressions of opinions as to\n54 Id at 887-88\n55 Id at 891.\n56 Id at 884.\n\n799\n\n\x0cthe position that the Department might take if and when certain\nevents were to occur. All were confined solely to specific individ\xc2\xad\nuals and at times unique problems. And the Department might\nwell urge that these prior interpretations had no bearing on any\nparticular enforcement move\xe2\x80\x94 contemplated now or in the fu\xc2\xad\nture. Accordingly, to disclose such interpretations now, I believe,\nmight complicate enforcement of the above judgment.1571\nThe FBI summaries were also refused, on the ground that even the summaries\nwould divulge information given to agents in confidence.\nDuring the subsequent hearings on the same subject, Assistant Attorney\nGeneral Hansen further explained the Department\xe2\x80\x99s refusal to provide the Sub\xc2\xad\ncommittee with the requested information, noting that because enforcement\nproceedings were pending, \xe2\x80\x9c we should prejudice the possible interests of the\nGovernment by disclosing opinions that might be read out of context\xe2\x80\x9d and \xe2\x80\x9c that\nsuch disclosure . . . would be exceedingly embarrassing.\xe2\x80\x9d 58 Congressman Keat\xc2\xad\ning, a member of the Subcommittee, supported the Assistant Attorney General,\nagreeing that opponents\xe2\x80\x99 counsel would be most interested in learning which\npoints of its case the government considered strong and of which aspects it was\nless confident.59\nChairman Celler then told the Assistant Attorney General that some of the\ninformation sought by the Subcommitee had already been made available to it\nfrom the files of various defendants. In response, the Assistant Attorney General\nexplained that some letters had been sent to defendants containing staff recom\xc2\xad\nmendations but that such information was not intended to be shared among\ndefendants, but rather to be used exclusively by the addressees themselves.60\n25. 1960\nOn December 19, 1960, Attorney General William P. Rogers issued an\nopinion to the President advising him that a construction of a provision of the\nMutual Security Act of 1954 that would require funds for the Office of the\nInspector General and Comptroller to be cut off for failure to supply documents\nupon the request of appropriate congressional committees and subcommittees,\nnotwithstanding a certification by the President that he had forbidden the produc\xc2\xad\ntion of the requested documents for certain specified reasons, would render the\nproviso unconstitutional as a violation of the separation of powers:\nIt is axiomatic that no democratic society can exist unless each\nof its branches makes every effort to disclose to the citizenry and\nthe other branches of the Government those facts which are\nrelevant to an understanding of the problems the society faces, the\nsteps which have been taken to meet them, and the operations of\n57 Id. at 885.\n58 Id\n59 Id.\n\xe2\x80\x9c Id. at 885-86.\n\n800\n\n\x0cthe branch involved. Public policy therefore requires disclosure\nwherever possible. Nevertheless, under certain circumstances\ndisclosure must be withheld in the public interest, and the princi\xc2\xad\nples expressed above may be summed up and applied as follows:\nFirst, it is the constitutional duty and right of the President and\nthose officials acting pursuant to his instructions, to withhold\ninformation of the executive branch from Congress whenever the\nPresident determines that it is not in the public interest to disclose\nsuch information.\nSecond, under the constitutional doctrine of separation of\npowers Congress may not directly encroach upon this authority\nconfided to the President.\nThird, the Constitution does not permit any indirect encroach\xc2\xad\nment by Congress upon this authority of the President through\nresort to conditions attached to appropriations such as are con\xc2\xad\ntended to be contained in section 553A(d) of the act.\nIn my opinion, this condition on the use of appropriations . . .\n[would] not only be plainly invalid, but if adopted in this case\nwould also constitute a most dangerous precedent to the Office of\nthe President, and would gravely impair the proper functioning\nand administration of the executive branch of the Government.16\'1\n26. 1969\nDuring a House Committee investigation into the My Lai massacre, Con\xc2\xad\ngressman Rivers requested \xe2\x80\x9c all reports, affidavits, photographs and all other\npertinent documents, and material which may have any probitive value\xe2\x80\x9d con\xc2\xad\ncerning the Army\xe2\x80\x99s ongoing investigation into the incident. Thomas Kauper,\nDeputy Assistant Attorney General, Office of Legal Counsel, gave the Depart\xc2\xad\nment of Justice\xe2\x80\x99s approval of a proposed letter to Congressman Rivers from\nSecretary of the Army Resor, which explained why this material could not be\ndisclosed. Mr. Kauper stated as follows:\nOver a number of years, a number of reasons have been\nadvanced for the traditional refusal of the Executive to supply\nCongress with information from open investigational files. Most\nimportant, the Executive cannot effectively investigate if Con\xc2\xad\ngress is, in a sense, a partner in the investigation. If a con\xc2\xad\ngressional committee is fully apprised of all details of an inves\xc2\xad\ntigation as the investigation proceeds, there is a substantial danger\nthat congressional pressure will influence the course of the inves\xc2\xad\ntigation. The My Lai investigations clearly represent such a\ndanger.1621\n61 41 Op. A tt\xe2\x80\x99y Gen 507, 529-30 (1960) (footnote omitted).\n62 Memorandum for Honorable Edward L. Morgan, Deputy Counsel to the President, from Thomas E. Kauper,\nDeputy Assistant Attorney General, Office of Legal Counsel (Dec 19, 1969), at 2.\n\n801\n\n\x0c27. 1970\nOn November 21,1970, Attorney General Mitchell, with the specific approval\nof the President, refused to release certain investigative files of the FBI to the\nSubcommittee on Intergovernmental Relations of the House Committee on\nGovernmental Relations that contained information regarding certain scientists\nnominated by the President to serve on advisory boards of the Department of\nHealth, Education and Welfare.63\n28. 1975\nOn Januapf 31, 1976, Chairwoman Abzug of the Subcommittee on Govern\xc2\xad\nment Information and Individual kights of the House Committee on Government\nOperations requested interview statements and investigative reports concerning\ndomestic intelligence matters from the open files of the Federal Bureau of\nInvestigation. On February 26, 1976, Deputy Attorney General Harold R. Tyler,\nJr., wrote Chairwoman Abzug, explaining why these documents could not be\ndisclosed to the Subcommittee:\nFirst, the Executive Branch must make a strong effort to protect\ninnocent individuals. Disclosure of investigative files and reports,\nwhich often contain hearsay and inaccurate information, could do\nirreparable damage to the reputation of innocent individuals.\n$\n\n*\n\nJfc\n\nJfc\n\n*\n\nSecond, if the Department changes its policy and discloses\ninvestigative information, we could do serious damage to the\nDepartment\xe2\x80\x99s ability to prosecute prospective defendants and to\nthe FBI\xe2\x80\x99s ability to detect and investigate violations of federal\ncriminal laws.\n$\n\n^\n\n$\n\nThird, the detection, and investigation of violations of federal\ncriminal laws and the prosecution of individuals alleged to have\ncommitted such violations are Executive functions. The Attorney\nGeneral, serving as the President\xe2\x80\x99s chief law enforcement officer,\nis under the same constitutional duty as the President to \xe2\x80\x9c take\ncare [that] the laws be faithfully executed.\xe2\x80\x9d U.S. Const. Art. II,\n\xc2\xa7 3. That duty encompasses the responsibility to maintain the\nSeparation of Powers so basic to our government.\n29. 1979\nIn response to a request from Chairman Baucus of the Subcommittee on\nLimitations of Contracted and Delegated Authority of the Senate Committee on\nthe Judiciary for a substantial number of documents from FBI files and other files\n63 M emorandum for Chairman Moorhead, Subcommittee on Foreign Operations and Government Information of\nthe House Committee on G overnment Operations, from Deputy Assistant Attorney General Lawton, Office of Legal\nCounsel (Apr. 25, 1973) See also Dec. 14, 1982, Memorandum, supra.\n\n802\n\n\x0clocated within the Department, to assist the Subcommittee in its oversight\ninvestigation into certain sales by the General Services Administration, Deputy\nAssistant Attorney General Heckman stated:\nThe Department has agreed to give the Subcommittee staff\nlimited access to these internal memoranda [2 closed files on\ntitanium and lithium sales proposed by the General Services\nAdministration]. Our policy with regard to providing Con\xc2\xad\ngressional Committees with analytical, strategy or deliberative\nportions of memorandum[s] related to these investigations is to\nmake them available at the Department for review and analysis,\nincluding notetaking. The substantive information in these mem\xc2\xad\noranda may be used for Subcommittee purposes. The memoranda\nthemselves, however, will be retained in the Department and\ncopies will not be provided.1641\nThe July 27, 1979, letter from Chairman Baucus to Attorney General Civiletti\nrefining the Subcommittee\xe2\x80\x99s request for documents indicated that its earlier\nrequests for material from open investigative files on term contractors was denied\n\xe2\x80\x9c because they are directly related to active investigations and prosecutions.\xe2\x80\x9d 65\n30. 1980\nOn March 14, 1980, Chairman Edwards of the Subcommittee on Civil and\nConstitutional Rights of the House Committee on the Judiciary requested from\nAttorney General Civiletti a copy of the report prepared by the Rowe Task Force\nconcerning the involvement of an FBI informant in the murder of Mrs. Viola\nLiuzzo in Alabama. On March 31, 1980, Michael Shaheen, Jr., Counsel, Office\nof Professional Responsibility, Department of Justice, wrote Chairman Edwards\nas follows:\nThe [Rowe] report is still being reviewed within the Depart\xc2\xad\nment and several issues affecting its release outside the Depart\xc2\xad\nment are still being studied. Certain promises of confidentiality\nwere necessary before some individuals would cooperate with\nTask Force members and those promises must be honored. More\xc2\xad\nover, the State of Alabama\xe2\x80\x99s indictment of Mr. Rowe for the\nmurder of Mrs. Viola Liuzzo is still pending and it is our opinion\nthat any release of the report in its current form could seriously\nprejudice both Alabama\xe2\x80\x99s and Mr. Rowe\xe2\x80\x99s right to a fair trial.\nFor these and other related reasons, it is not possible for the\nDepartment to furnish to you a copy of the report in its present\nform at this tim e.1661\n64 Aug 20, 1979, letter from Deputy Assistant Attorney General Heckman to Chairman Baucus\n63 July 27, 1979, letter from Chairman Baucus to Attorney General Civiletti.\n66 Cf. Playboy Enterprises, Inc. v D ep\'t c f Justice, 677 F.2d 931 (D C Cir 1982) (upholding the Department\xe2\x80\x99s\nclaim ofprivilege pursuant toareq u estu n d erth e Freedom of Information A c t,5 U S C \xc2\xa7 552, for those parts of the\nRowe Report which fell within the A ct\xe2\x80\x99s exemption for \xe2\x80\x9c investigatory records compiled for law enforcement\npurposes,\xe2\x80\x9d \xc2\xa7 552(b)(7), but rejecting the Department\xe2\x80\x99s claim that the whole Report was protected from disclosure\nby Exemption 5 \xe2\x80\x99s \xe2\x80\x9c deliberative process\xe2\x80\x9d privilege, \xc2\xa7 552(b)(5)).\n\n803\n\n\x0c31. 1982\nOn November 5, 1982, Assistant Attorney General Olson advised the General\nCounsel to the Department of Transportation that a provision of the Tax Equity\nand Fiscal Responsibility Act of 1982, which requires the Administrator of the\nFederal Aviation Administration to transmit certain budget information and\nlegislative recommendations to Congress at the same time that they are transmit\xc2\xad\nted to the Secretary of Transportation, the President, or the Office of Management\nand Budget would, if interpreted literally, violate the constitutional principle of\nseparation of powers.67\nII.\nRefusals by Independent Agencies and Executive Departments Other\nThan the Department of Justice to Disclose Information to Congress\nConcerning Law Enforcement, Security, and Personnel Investigations68\nThis Section II lists some of the many instances wherein independent agency\nheads and sub-presidential executive officers (outside the Department of Justice)\nhave declined to provide sensitive investigative information requested by Con\xc2\xad\ngress. This Section does not describe those instances in which Presidents person\xc2\xad\nally have ordered the withholding of investigative information;69 nor does it\ndiscuss those examples of Department of Justice withholdings of investigative\ninformation enumerated in Section I of this memorandum.70\nIt should be noted that, like Section I, this Section relies heavily upon\npublished studies which discuss particular executive agencies\xe2\x80\x99 responses to\ncongressional requests for information during certain Administrations. Because\nthese studies focus upon congressional-executive relationships at particular\ntimes in our history, they cannot be used to develop comprehensive statistics on,\nor statistically representative examples of, executive withholdings of information\ngenerally.71 It is possible, however, to infer from these studies that similar\nepisodes of withholding of sensitive information have occurred throughout\n67 On Feb 21, 1977, Assistant Attorney G eneral Harmon, Office o f Legal Counsel, advised the Attorney General\nthat a bill that would require inspectors general in the executive departments to report directly lo Congress\ninformation regarding their investigations without prior clearance or approval by the head of the department\ninvolved would be unconstitutional. That memorandum stated. \xe2\x80\x9c The constitutional principle of executive pnvilege\nmust be preserved. The provision in the bill requiring reports to Congress of all \'flagrant abuses or deficiencies\xe2\x80\x99\nwithin 7 days after discovery would nsk jeopardizing ongoing investigations by the agency and the Justice\nD epartm ent, many o f which would be subject to a claim of privilege.\xe2\x80\x9d 1 Op. O.L.C 16, 18-19 (1977).\n68 Congressional requests for information from sub-presidential executive officers have a long history. A number\nof such requests occurring in the 19th century are discussed in 3 Hinds\' Precedents, supra. \xc2\xa7\xc2\xa7 1856-1910. See,\ne .g ., H .R Rep. No. 194, 24th Cong , 2d Sess. 4, 6 -7 (1837), H ouse Journal, 16th Cong , 2d Sess. 67, 70 (1820),\nHouse Journal, 14th C ong., IstS ess. 92, 201, 2 06,262(1815); House Journal, 9th Cong., 2d Sess. 533-36(1807);\nHouse Journal, 4th Cong , 2d Sess. 634(1796). See also Act of Sept. 2, 1789, ch. 12, \xc2\xa7 2, 1 Stat 65 (Secretary of\nTreasury m ust provide certain information to C ongress upon request). It is unclear from these sources, however, how\nfrequently such officers declined to comply w ith congressional requests.\n69 See, e.g , Dec. 14, 1982, Memorandum, supra, at paras. 4 (President Monroe); 5 (President Jackson); 6\n(President Tyler); 9 (President Buchanan); 10 (President Lincoln); 11 (President Johnson); 13 (President Cleveland);\n17 (President Theodore Roosevelt); 18 (President Coolidge); 20 (President Franklin Roosevelt); 21, C (President\nTruman), 25 (President Nixon).\n70 See, e .g .. Section I, paras. 1 (also discussed in December 14, 1982, Memorandum, supra, at para 13); 2-6,\n&-16, 18, 20, 23, 24, 2 6-30\n71 See notes 6 -8 , supra.\n\n804\n\n\x0cAmerican history. The following incidents have been selected only to provide\nsome illustration of the well-established practice wherein Executive officers have\nprotected their sensitive investigative files from disclosure to Congress.\n1. 1846-47\nOn December 8, 1846, the House of Representatives by resolution directed the\nSecretary of the Treasury to supply it with information concerning secret inspec\xc2\xad\ntors who had been hired by the Department of the Treasury for customs enforce\xc2\xad\nment. On February 8, 1847, the Secretary declined to reveal the names of the\nsecret agents and inspectors, deeming it \xe2\x80\x9c inexpedient\xe2\x80\x9d to do so.72 During a\nsubsequent House debate on a further resolution to require the information from\nthe Secretary, it was pointed out by Rep. Bayly that \xe2\x80\x9c [t]he intention in employing\n[the agents] is to prevent smuggling; but if their names were made public, the\nvery design of their employment would be frustrated.\xe2\x80\x9d 73 The debate concluded\nwith no further attempt to obtain the information.\n2. 1861\nOn December 2, 1861, the House adopted a resolution requesting the Secre\xc2\xad\ntary of War, \xe2\x80\x9c if not incompatible with the public interest,\xe2\x80\x9d to report to the House\nwhat measures were taken to investigate \xe2\x80\x9c who is responsible for the disastrous\nmovement of our troops at Balls Bluff.\xe2\x80\x9d 74 The Secretary of War declined to\ncomply in a letter dated December 12, 1861.75 On January 6, 1862, the House\nresponded with a resolution \xe2\x80\x9c that the [Secretary\xe2\x80\x99s] answer is not responsive nor\nsatisfactory to the House, and that the Secretary be directed to return a further\nanswer.\xe2\x80\x9d 1761\nOn January 10, 1862, the Secretary responded to the second resolution of the\nHouse, stating, \xe2\x80\x9c measures have been taken to ascertain who is responsible for\nthe disastrous movement of our troops at Balls Bluff, but . . . it is not deemed\ncompatible with the public interest to make known those measures at the present\ntime.\xe2\x80\x9d 1771\n3. 1932\nIn responding to a request from the House of Representatives for all documents\npertaining to an investigation of the importation of ammonium sulfate, the\nSecretary of the Treasury stated:\n72 17 Cong. Globe, 29th Cong., 2d Sess. 400 (1847); see\n\nid. at 355.\n\n11Id. at 401.\n74 3 Hinds\xe2\x80\x99 Precedents, supra, at \xc2\xa7 1886. Although the Battle of Balls Bluff on Oct. 21, 1861, represented a\nmilitarily inconsequential defeat for Union troops early in the Civil War, it aroused Radical Republicans in Congress\nagainst General-in-Chief George B. McClellan, a Democrat. McClellan subsequently arrested General C.P. Stone\nfor responsibility in the defeat, but no formal charges were filed against him. and General Stone was released within\nsix months The Battle\'s chief military effect was to delay Union Army movements against Richmond, Virginia. See\ngenerally 1 Dictionary c f American History 150 (J. Adams ed. 1940).\n73 3 Hinds\' Precedents, supra, at \xc2\xa7 1891\n76 Id. at \xc2\xa7 1886.\n77 Id\n\n805\n\n\x0cIn passing the antidumping act the Congress decided to provide\nthat the initial decisions as to the existence of dumping should be\nmade by the Secretary o f the Treasury in accordance with admin\xc2\xad\nistrative procedure. It has been the practice of the department in\nacting under this statute to treat all information furnished by\ninterested persons as confidential and not to disclose it unless such\npersons consent to the disclosure. This practice is founded upon\nthe necessity for the department to obtain complete information\nconcerning manufacturers\xe2\x80\x99 and importers\xe2\x80\x99 business transactions\nwhich it would be practically impossible to obtain if those fur\xc2\xad\nnishing the information did not understand it would be treated as\nconfidential and not divulged without their consent.\nAs consent has not been given to the disclosure of the informa\xc2\xad\ntion contained in the record before the Treasury Department, I am\nof the opinion that it would be incompatible with the public\ninterest to comply with the request contained in the resolution.1781\n4. 1948\nA subpoena issued by the Subcommittee on Immigration and Naturalization of\nthe Senate Committee on the Judiciary directed Assistant Secretary of State\nPeurifoy to provide investigative files of the Department of State concerning over\n160 persons named in the subpoena. In response, the Acting Secretary of State\nwrote the Committee that disclosure of the materials would be contrary to the\npublic interest and detrimental to the conduct of the foreign relations of the\nUnited States. Disclosure of the material, the letter stated, would hamper future\nwork of our diplomatic and consular missions abroad and place many sources \xe2\x80\x9c in\npersonal jeopardy.\xe2\x80\x9d The Acting Secretary referred, inter alia , to the April 1941\nOpinion of Attorney General Robert Jackson79 as authority for his refusal, and\nstated in closing that the President had given specific approval for the denial.80\n5. 1955\nOn October 18, 1955, the Subcommittee on Securities of the Senate Commit\xc2\xad\ntee on Banking and Currency requested the Securities and Exchange Commis\xc2\xad\nsion to make available to the Subcommittee the investigative files on two separate\nmatters. On November 10, Chairman Armstrong responded by stating, with\nregard to the first matter,\nthis investigation is still open and in progress. It has been the\nconsistent policy of the Commission not to release its pending\ninvestigation files. It has been our belief that such release might\nimpair the integrity of the Commission\xe2\x80\x99s investigative process and\n78 75 C ong. Rec. 11669 (1932). See generally Wolkinson, Demands c f Congressional Committees fo r Executive\nPapers. 10 Fed. Bar J. 103, 133-34 (1949)\n79 40 Op. A tt\xe2\x80\x99y Gen. 45 (1941).\n80 Department o f Justice Study, supra, at 11\xe2\x80\x9412\n\n806\n\n\x0cseriously interfere with the Commission\xe2\x80\x99s responsibility of appro\xc2\xad\npriate enforcement action, in case this becomes necessary . . . .\nWe do not at present know what information [the Committee staff]\nwould desire on this subject but it may well be that we can provide\n. . . sufficient material in the form of summaries or otherwise to\nmeet [their] needs. A similar procedure was followed this spring\nin connection with information about certain investigations which\nwas desired by your Committee in connection with certain phases\nof the stock market study with mutually satisfactory results.18"\nWith respect to the second investigation, the Chairman wrote,\n[s]ince this matter is still in litigation, it is the Commission\xe2\x80\x99s view,\nwith which I am sure you will agree, that it would be inappropri\xc2\xad\nate to disclose those files or discuss this case outside the court.\nImmediately upon the termination of the litigation, we will, of\ncourse, welcome your Committee\xe2\x80\x99s review of our files.1821\n6. 1955\nThe General Services Administration (GSA) had turned over to the Depart\xc2\xad\nment of Justice certain copies of insurance files of the Snare-Merritt Corporation,\na government contractor, for investigation. The GSA subsequently declined to\nmake these documents available to the Special Government Activities Subcom\xc2\xad\nmittee of the House Committee on Government Operations on the ground that\nonce copies of the documents had been transferred to the Department of Justice\nfor investigation, those files became subject to the control of the latter Depart\xc2\xad\nment.83 A similar demand for these documents was also made upon the Depart\xc2\xad\nment of Justice, which refused to disclose them, apparently on the ground that\nthey referred to a pending investigation.84 Subsequently, however, the material\nbecame available to the House through an undisclosed source, and this appar\xc2\xad\nently mooted the controversy.85\n7. 1955\nRep. Bennett, of the Subcommittee on Commerce and Finance of the House\nCommittee on Interstate and Foreign Commerce, requested information from the\ncurrent investigative files of the Securities and Exchange Commission regarding\n\xe2\x80\x9c spectacular\xe2\x80\x9d examples of fraud, together with the names of companies and\nprincipals involved, which the Subcommittee could \xe2\x80\x9c expose\xe2\x80\x9d at its hearings. On\nNovember 4, 1955, SEC Chairman Armstrong advised Rep. Bennett as follows:\n81 1958 Hearings, supra, at 297.\n82 Id. at 298.\nK See H R Rep. No 2390, 84th Cong , 2d Sess. 16 (1956).\n84 Id. at 17 (the House Report states, \xe2\x80\x9c [t]he Justice Department has furnished no reasonable explanation for\ndenying the subcommittee access to [this information]\xe2\x80\x9d )\n83 The New York Times, Oct 19, 1956, at 17, col. 3. See generally Kramer & Marcuse, supra, at 643\xe2\x80\x9444\n\n807\n\n\x0cThe requested information concerns material contained in the\npending investigation files lof the Commission. These are not\npublic at the present time. For the Commission to release such\ninformation in our pending investigation files for use in a public\nhearing of a congressional committee before our investigation has\nbeen completed might prejudice the prosecution of the matters in\nthe event that the cases might later be referred to the Department\nof Justice for a criminal prosecution, and might destroy the value\nof any civil or administrative remedies that might be instituted by\nthe Commission and the parties in the particular cases. Also, if\ntestimony and statements elicted [sic] from witnesses on the\nunderstanding that the Commission would treat the information as\nconfidential, were made public, the ability of the Commission to\nobtain the cooperation of the public in our investigations of\nviolations of the Securities Acts would have the opposite effect\nwhich you so correctly say is the joint objective of your commit\xc2\xad\ntee . . . and our Commission . . . .|861\n8. 1955\nDuring an investigation by the Senate Committee on Post Office and Civil\nService concerning the administration of the Federal Employees\xe2\x80\x99 Security Pro\xc2\xad\ngram, a subpoena was issued to the Chairman of the Civil Service Commission\nrequesting him to produce, on July 28, 1955, \xe2\x80\x9c all files, correspondence, docu\xc2\xad\nments, records, etc., in the possession of the Civil Service Commission\xe2\x80\x9d relating\nto three named individuals. The Chairman provided the Committee with certain\nmaterial relating to the persons mentioned in the subpoena, but withheld portions\nof the files which concerned investigative matters, as well as internal advice and\ncommunications on official matters on the ground that such material was covered\nunder President Eisenhower\xe2\x80\x99s letter of May 17, 1954.87\n9. 1955\nOn March 22, 1955, a Senator requested information in the files of the Civil\nService Commission concerning certain named former federal employees. The\nSenator asked specifically \xe2\x80\x9cwhether or not there is anything in the files of the\nfollowing individuals which would be interpreted as of sufficient detrimental\nnature to prohibit their reemployment by the United States Government.\xe2\x80\x9d The\nCommission declined to make this information available, stating: \xe2\x80\x9c The Commis\xc2\xad\nsion cannot prejudice the material in a file of an individual who is not now before\nit for a determination as to eligibility for employment. If and when any of the\npersons mentioned in your letter again apply for Federal employment, the then\nexisting applicable rules and determination as to eligibility will be adhered to and\na determination made accordingly.\xe2\x80\x9d 88\n86 7955 H earings, supra, at 416.\n87 1958 Hearings, supra, at 378; Kramer & M arcuse, supra, at 652 The President\xe2\x80\x99s instruction is discussed in the\nD ecem ber 14, 1982, Memorandum.\n88 J958 H earings, supra, at 378.\n\n808\n\n\x0c10. 1955\nOn October 13, 1955, the Chief Clerk of the House Committee on UnAmerican Activities requested that he, or an investigator of the Committee, be\nallowed to examine the Commission\xe2\x80\x99s confidential files. The Commission denied\nthe request \xe2\x80\x9c because in many instances the files contain information of a\nconfidential and investigative nature that can be made available only to those\nofficials in the executive branch of the government who have need for the\ninformation in the performance of their official duties.\xe2\x80\x9d 89\n11. through 18. 1955-1957\nIn response to Chairman Hennings\xe2\x80\x99 request for an enumeration of refusals to\nsupply Congress with information, s e e note 8, su p ra , the Department of Defense\nlisted, in te r a lia , the following eight instances that concerned its investigative\nfiles:90\nFebruary 8, 1955: Upon the request of Senator McClellan, Chairman, Senate\nPermanent Investigations Subcommittee, for an inspector general\xe2\x80\x99s report on\nIrving Peress, the Army submitted a detailed summary of all actions taken by the\nArmy in the Peress case. The inspector general\xe2\x80\x99s report itself was withheld,\npursuant to the Department\xe2\x80\x99s responsibility to safeguard (1) information reveal\xc2\xad\ning investigative techniques, (2) information as to the identity of confidential\ninformants and information furnished by them in confidence, (3) incomplete\ninformation which might unjustly discredit an innocent person, and (4) intradepartmental communications of an advisory and preliminary nature.91\nSeptember 2 -6 , 1955: The Army denied the requests of the House Appropria\xc2\xad\ntions Committee for inspector general\xe2\x80\x99s reports and auditor general\xe2\x80\x99s reports\npursuant to the Department\xe2\x80\x99s responsibility to safeguard information in inves\xc2\xad\ntigative reports for the reasons stated above. In lieu of the investigative reports,\nthe Army furnished, as requested, detailed summaries of all actions taken in\nconnection with the contracts under investigation.\nSeptember 16, 1955: The Air Force denied the request of Senator Johnson,\nChairman, Senate Preparedness Investigating Subcommittee, for material de\xc2\xad\nrived from an inspector general\xe2\x80\x99s report, pursuant to the Department\xe2\x80\x99s respon\xc2\xad\nsibility to safeguard information in investigative reports.\nJanuary 17, 1956: The Air Force denied the request of Senator Magnuson,\nChairman, Senate Committee on Interstate and Foreign Commerce, for informa\xc2\xad\ntion concerning the discharge of a serviceman, pursuant to the Department\xe2\x80\x99s\nresponsibility not to release an individual\xe2\x80\x99s personnel records without his consent\nso as not to unjustly or unnecessarily discredit him or disclose information\nreceived in confidence.\n85Id. at 379.\n90Id. at 385-87.\n91 Background concerning the congressional investigation of the promotion and discharge of Major Irving Peress\nmay be found in Army Personnel Actions Relating to Irving Peress\' Hearings Before the Permanent Subcomm. on\nInvestigations o f the Senate Comm, on Government Operations, 84th Cong., IstS ess. (1955), Kramer & Marcuse,\nsupra, at 687-89.\n\n809\n\n\x0cFebruary 2, 1956: The Air Force denied the request of the House Appropria\ntions Committee for inspector general\xe2\x80\x99s reports and auditor general\xe2\x80\x99s reports\npursuant to the Department\xe2\x80\x99s responsibility to safeguard information contained\nin investigative reports.\nsfc\n\nJanuary 12, 1957: The Army denied the request of Congressman Moss,\nChairman, House Subcommittee on Public Information, for an investigative file\ncompiled in connection with charges of disloyalty and subversion at the Signal\nCorps Intelligence Agency, pursuant to the Department\xe2\x80\x99s responsibility to safe\xc2\xad\nguard investigative reports.\nJanuary 25, 1957: The Air Force denied the request of Congressman Murray,\nChairman, House Committee on Post Office and Civil Service, for an inspector\ngeneral report concerning employment conditions at Okinawa, pursuant to the\nDepartment\xe2\x80\x99s responsibility to safeguard investigative reports. However, the\nSubcommittee was furnished a summary of the findings contained in the report.\n4s\n\nJjc\n\nsfc\n\n\xe2\x99\xa6\n\nApril 13, 1957: The Defense Department denied the request of Congressman\nMoss, Chairman, House Subcommittee on Public Information, for investigative\nmemoranda and a report of conversations between the Department and newsmen,\npursuant to the Department\xe2\x80\x99s responsibility to safeguard investigative reports and\ninformation received in confidence.\n19. 1956\nAn individual congressman (not a committee chairman) requested material\nfrom the files of the Housing and Home Finance Agency concerning certain\nhousing project contracts which were related to a private bill he had introduced.\nOn March 28, 1956, the Agency advised the congressman that it would not\ndisclose the information because there was a pending lawsuit in the Court of\nClaims seeking judicially the same relief as that covered by the congressman\xe2\x80\x99s\nbill. Since the litigation was being conducted by the Department of Justice, the\nAgency deemed it \xe2\x80\x9c inappropriate\xe2\x80\x9d to provide the requested information.92\n20. 1962\nOn May 2, 1962, Chairman Fountain of the House Government Operations\nSubcommittee requested access to the investigative files of the Food and Drug\nAdministration concerning the drugs MER-29 and Flexin. Commissioner Larrich\ndeclined to make the files available, stating that his agency had \xe2\x80\x9c uniformly\ndeclined to make files on new drugs available\xe2\x80\x9d to Congress, in order to encour\xc2\xad\nage manufacturers to make as complete a disclosure as possible when they file\nnew drug applications.93\n21. 1971\nDuring an investigation by the Subcommittee on Constitutional Rights of the\nSenate Judiciary Committee concerning information gathering by the military\n91 1958 Hearings, supra, at 403-04.\n93 The New York Times, June 21, 1962, at 17, col. 1.\n\n810\n\n\x0cwith regard to possible civil disturbances, Chairman Ervin requested access to ai\nArmy investigative report on the 113th Intelligence Group. In response, on April\n19, 1971, Secretary of Defense Laird wrote the Chairman as follows:\nit is the policy of the Executive Branch not to divulge the contents\nof investigations while an investigation is still open and prior to\nfinal action being taken. As the testimony taken . . . may possibly\nprovide the basis for disciplinary action, it would be inappropriate\nto authorize the release of these documents. To do so might\njeopardize the rights of the people involved and prevent them\nfrom being afforded a fair hearing.1941\n22. 1972\nOn August 15, 1972, Senator Kennedy, Chairman of the Subcommittee on\nAdministrative Practice and Procedure of the Senate Committee on the Judiciary,\nrequested from the Securities and Exchange Commission \xe2\x80\x9c documents, state\xc2\xad\nments, and other materials\xe2\x80\x9d relating to the Commission\xe2\x80\x99s stock trading investiga\xc2\xad\ntion of the International Telephone and Telegraph Corporation (ITT). On Au\xc2\xad\ngust 31, 1972, Chairman Casey of the Commission wrote Senator Kennedy as\nfollows:\nThe Commission has, as your letter points out, initiated and\nsettled civil actions involving some of the transactions under\ninvestigation. However, the staff informs me that it is still inves\xc2\xad\ntigating other collateral matters which might lead to further appro\xc2\xad\npriate proceedings.\nIn such investigations the Commission has been likened to a\ngrand jury and like a grand jury it is the Commission\xe2\x80\x99s policy to\nconduct its investigations on a confidential basis. Accordingly, in\norder to protect the contents of its investigatory files and the\nintegrity of its investigative procedures, the Commission refrains\nfrom giving out material from its pending investigations. Pur\xc2\xad\nsuant to this established procedure, it is the Commission\xe2\x80\x99s deci\xc2\xad\nsion to respectfully refuse your request.1951\nOn September 21, 1972, Chairman Staggers of the Special Subcommittee on\nInvestigations of the House Committee on Interstate and Foreign Commerce\nmade a similar request for Commission documents concerning its investigation\nof ITT. On September 26, 1972, Chairman Casey responded:\nIt is the general policy of this Commission not to make public or\ndeliver to any other party, materials, records and documents,\n94 Executive Privilege. The Withholding c f Information by the Executive: Hearing on S 1125 Before the\nSubcomm. on Separation c f Powers c f the Senate Comm on the Judiciary, 92d Cong., 1st Sess. 403 (1971).\n93 Legislative Oversight a f SEC: Inquiry into Withholding and Transfer c f Agency Files Pertaining to ITT \xe2\x80\xa2Hearing\nBefore the Special Subcomm. on Investigations c f the House Comm, on Interstate and Foreign Commerce, 92d\nCong., 2d Sess 29-30 (1972).\n\n811\n\n\x0cduring the course of this kind of an investigation and for a very\ngood reason. Any investigation might lead to referral by the\nCommission of its investigative files to the Department of Justice\nwith a recommendation for criminal prosecution. In such cases,\nthe Commission has the same obligation as a grand jury to protect\npossible defendants from being unfairly injured by the possibility\nof a damaging but not fully substantiated charge. As you know,\nthe Courts have strictly construed the right of a defendant to be\nfree from pre-trial publicity. We do not want to take the chance\nthat our release of any material obtained pursuant to our subpoena\nissued for the purpose of enforcing securities law would impair\nthe rights of possible defendants or render ineffective any action\ntaken to enforce the law. I am sure that you can understand our\nneed to keep this file inviolate at this time.1961\nChairman Staggers reiterated his demand for access to the ITT investigative file\nin a letter to Chairman Casey on September 28, 1972, in which he stated, \xe2\x80\x9c the\nCommission\xe2\x80\x99s sudden refusal . . . is most strange and unprecedented.\xe2\x80\x9d97 On\nOctober 6, 1972, Chairman Casey wrote Chairman Staggers as follows:\nI must . . . correct [your] statement that the Commission\xe2\x80\x99s posi\xc2\xad\ntion on this matter is unprecedented. Our basic policy was clearly\nset forth in the December 17, 1969 letter which former [SEC]\nChairman Budge sent to the [House] Committee on Government\nOperations. Chairman Budge expressed the Commission\xe2\x80\x99s posi\xc2\xad\ntion on the availability o f data from pending investigations in the\nfollowing language:\n\xe2\x80\x9c The Com mission has consistently taken the position,\nhowever, and has generally persuaded interested Congressional\ncommittees that, barring exceptional circumstances, it is inap\xc2\xad\npropriate for Congressional committees to be furnished nonpublic\ninformation pertaining to a pending investigation or Commission\nadjudication. The Commission has adopted this position . . . to\nmaintain the appearance as well as the fact of agency impartiality\nin its adjudicatory functions and to avoid any impediment to its\ninvestigatory and enforcement function.\xe2\x80\x9d\n*\n\njfc\n\n$\n\n*\n\nThe considerations which Chairman Budge stressed are par\xc2\xad\nticularly vital in a matter [like this one] which can attract wide\npublicity and speculation. . . . I believe it to be a misuse of our\nsubpoena power to permit access to documents except for the\nenforcement purposes for which it was authorized, a failure in our\nobligation to avoid anything which could jeopardize an enforce\xc2\xad\n96 Id. at 6.\n97 Id. at 7.\n\n812\n\n\x0cment action, and an impropriety in disposing of documents,\nwhich may be used as evidence in a prosecution, in any matter\nwhich could cut off any rights a possible defendant might want to\nassert with respect to them in relation to any party other than the\nCommission.1981\n23. 1973\nOn November 28, 1972, Chairman Magnuson of the Senate Committee on\nCommerce requested access to files of the Securities and Exchange Commission\nrelating to certain unspecified investigations disclosed in a \xe2\x80\x9c computer name and\nrelation\xe2\x80\x9d printout previously supplied by the Commission to the Committee,\nwhich was investigating the effects of organized criminal activity on legitimate\ncommerce. On January 10, 1973, Chairman Casey of the Commission responded\nto Senator Magnuson as follows:\n[T]he Commission has directed the staff to make available to your\nCommittee for inspection at our offices any Commission files you\nrequest as long as to do so would not violate the policies estab\xc2\xad\nlished to meet our law enforcement responsibilities. As you\nrecognize in your letter, this would mean excluding all current\ninvestigative files. It would also exclude those files relating to\ncases referred to the Department of Justice for criminal prosecu\xc2\xad\ntion. We must also exclude any reference to or information\nreceived from confidential sources.1991\nThe long and consistent history reflected in this and our December 14, 1982,\nMemorandum of actions by Executive Branch and independent agency officials\nto protect the integrity of confidential information from unwarranted disclosures\nto Congress, places in perspective similar necessary actions taken during this\nAdministration. The separation of powers principle which underlies the structure\nof our government has brought virtually every Administration to the same\nconclusion: that some information at certain times not only may, but must, be\nwithheld from the Legislative Branch in order that the laws may be faithfully\nexecuted.\nT\n\nheodore\n\nB.\n\nO\n\nlson\n\nAssistant Attorney General\nOffice c f Legal Counsel\n\n98 Id. at 8.\n99 Id. at 108\n\n813\n\n\x0c'