Senator HENNINGS. Without objection, that will be made a part of the record. (The document referred to is as follows:) MEMORANDUM To: Charles H. Slayman, Jr., chief counsel and staff director, Subcommittee on Constitutional Rights. From: Marcia J. MacNaughton, research assistant. Subject: Citation of section 22, title 5, U. S. C., section 161 of the Revised Statutes, by Federal agencies and executive departments, as authority for withholding information from the public and the Congress. Pursuant to your request, there follows a list of agencies and executive departments which have cited generally the "housekeeping statute" (5 U. S. C. 22 (sec. 161 of the Revised Statutes)) as basis for authority to withhold information from the public and the Congress. This list is taken from a compilation made by the Legislative Reference Service of the Library of Congress and is based on an analysis of the replies by Federal departments and agencies to a questionnaire submitted by the special Subcommittee on Government Information of the Committee on Government Operations of the House of Representatives. EXECUTIVE DEPARTMENTS The record shows that in response to an inquiry about their authority to deny access to information possessed by the department, and to restrict availability of such information, the following departments cited title 5, United States Code, section 22, as basis for such authority: (1) Department of Agriculture (2) Department of Commerce INDEPENDENT AGENCIES When asked the basis of their authority to deny access to information in the agency and to restrict availability of that information, the following independent agencies cited section 22 of title 5 of the United States Code: (1) Civil Service Commission (2) Housing and Home Finance Agency (3) Interstate Commerce Commission In addition to the foregoing, we have learned that the Federal Mediation and Conciliation Service has cited, and continues to cite title 5, United States Code, section 22, as authority for withholding information. Mr. ROGERS. I don't want to criticize people without knowing the circumstances. It may be they cited it in connection with executive privilege. I mean they would say there is an executive privilege and we are authorized by the statute to be custodians of these and we cannot make them available without violating the executive privilege. So I don't want to just with a wave of the hand criticize people without knowing the facts. Senator HENNINGS. Yes. Mr. ROGERS. It may be their refusal was a sound one-I don't know. But the point I am making is I don't believe I am afraid that if this statute is passed now in view of the confusion that has occurred and all of the discussion about it, it might be argued that it somehow did impair or affect the executive privilege. Now if that is made clear in the language, that that is not the purpose of the amendment, I would have no objection to it. Mr. SLAYMAN. Mr. Chairman, that could be made clear in the legislative history, too. Senator HENNINGS. Of course. Mr. ROGERS. I think it would be a good thing, though, if we could do it right in the language. I would like it better. Mr. Chairman, that finishes my statement. Senator HENNINGS. Thank you very much, Mr. Attorney General. Senator Hruska, do you have any questions? Senator HRUSKA. I have no questions, but I would like to say I enjoyed very much this clear and logical presentation of a very complicated subject. I would like to commend the Attorney General for that presentation. Mr. ROGERS. Thank you very much, Senator. Senator HENNINGS. Yes, indeed, and I have already undertaken, before you arrived, Senator, to express our appreciation to the Attorney General for being here this morning. Now I have a few questions, Mr. Attorney General, if you would indulge me for a short time. Mr. ROGERS. I would be very happy to. Senator HENNINGS. Now, I think you have made it clear that there is nothing in the Constitution that specifically authorizes the President to withhold information from the Congress. Mr. ROGERS. That is correct. Senator HENNINGS. There is no question in your mind about that? Mr. ROGERS. No. Senator HENNINGS. And, to your knowledge, has there ever been a court decision in this country holding that the President has the power to withhold requested information from the Congress? Do you know of any such case? Mr. ROGERS. I don't know of a precise holding on that. Senator HENNINGS. Well, the fact is that there is no such reported case. That is true, isn't it? Mr. ROGERS. I think that is correct. Of course, you know the reason for that is that the legislative branch has never brought the case. They have never tested it. I mean I was faced with that as counsel for the committee several times in the Remington case. I thought it was appropriate for the Congress not to get information about loyalty, but get information about how Remington was transferred from one key position to the other in Government. In other words, just how the transfer was made, and we were not able to get any information of the kind. We couldn't even get an answer to our letters. We talked at the time about bringing an action in court, and I made a pretty good study of it to see what success we would have, and I concluded we would have none, and I think that is the reason there is no lawsuit in the history of the country. Senator HENNINGS. I think you are very likely right about that. Now, Mr. Attorney General, what limitations are there, if any at all, on the President's power to withhold information from the Čon gress! Mr. ROGERS. Well, I think I have tried to make it clear in my statement. Senator HENNINGS. I think you have. 25740-58-pt. 1—3 Mr. ROGERS. The executive branch should not withhold information unless there are sound reasons for it, for national security or the other reasons I cite. I think it is inherent in the constitutional system that Congress should have available for legislative purposes just as much information as they can get and it is proper to give them, as long as it does not impair the functioning of another branch of the Government. The fact that we have three coordinate branches of the Government requires an understanding and a cooperative spirit in order to work, and it has worked well through the years. As I say, I think the constant repetition that I see occasionally about secrecy, and all is harmful to the Government. I don't think that. that is much of a problem. On the contrary, I think we have, in competing with the Russians, we have some decided disadvantages in that it is difficult to keep any information secret even for a short period of time. Take the first launching at Cape Canaveral. I think there was a question then as to whether we gave out information too fast. That wasn't a question of secrecy; it wasn't a question of anybody trying to hide anything, but maybe a lot of people thought it would have been better if we had not given out so much information so fast. In fact, some people that are critical of secrecy are equally as critical that we give information out too fast at times. Senator HENNINGS. Do you think, General, the President can delegate to others his power to withhold information from the Congress? Mr. ROGERS. Yes. I don't think there is any question about it. Senator HENNINGS. Assuming that the President can delegate his power to withhold information from the Congress, to whom may he delegate such power? Mr. ROGERS. I think he can delegate it to anybody in the executive branch. I think the leading case is Marbury v. Madison, and in that case the Court held he can delegate the power to anybody to act on his behalf, at his direction. As a practical matter, it usually works out the head of the department has to make the final decision if there is a controversy. Senator HENNINGS. Assuming the President may delegate his power to withhold information from the Congress, how may he delegate such powers? Are there any limitations on how the President may delegate his power to withhold? Must he follow any prescribed form, in your opinion? Must it be a general order, or must each case be handled individually, in your judgment? Mr. ROGERS. In my judgment, he doesn't have to use any particular method. In practice, it works out that the department head is delegated that responsibility, just the way he is delegated other responsibilities to handle the affairs in his department. It can be done as President Truman did it, by Executive order. He just issued a blanket order to everybody and said if there was any request or phone call or anything, that the whole matter should be referred to the White House and the papers should be locked up and there shouldn't be any more discussion about it. Senator HENNINGS. Aside from whatever authority may be delegated to them by the President or given them by Congress itself, do you think the heads of the various executive departments have any authority to withhold information from the Congress? Mr. ROGERS. I didn't hear the first part of your question. Senator HENNINGS. Aside from whatever authority may be delegated to them by the President or given to them by the Congress itself, do you think the heads of the various executive departments have any authority to withhold information from the Congress, and if that be true, does the same apply to other officers of the executive branch? Mr. ROGERS. The answer is I don't think that they have any power independent from the executive privilege, as I mentioned, to withhold information. The answer to the last part of your question is "yes," it applies to everybody. In other words, the privilege stems from the constitutional power in the President as the Chief Executive. Senator HENNINGS. I think that we have agreed that there is nothing in the Constitution that specifically authorizes the heads of any departments to withhold information from the Congress. Mr. ROGERS. No. That is correct. Senator HENNINGS. I think we are all certainly in agreement on that. Mr. ROGERS. That is right. Senator HENNINGS. Now, to be a little more specific, if we may be, Mr. Attorney General, just exactly what kind of information do you think the heads of departments and other executive officers may withhold from the Congress? Anything they wish? Let's take, for example, a hypothetical case of an adviser or assistant to the President. Supposing he were to write a memorandum to the President advising him on some official matter. Do you think he could properly refuse to supply a copy of that memorandum to a congressional committee if a committee requested it? Mr. ROGERS. See if I get the facts straight on that. You say the Presidential adviser writes something to the President Senator HENNINGS. Suppose the executive officer writes a memorandum to the President advising him about something. Mr. ROGERS. There isn't any question but what the communications of the President of the United States are privileged. Senator HENNINGS. Take another case. Do you think he could properly refuse demands by a congressional committee to appear and answer questions about a letter if we assumed the matter about which the White House assistant has written his letter, to a regulatory agency, in this case, is a matter over which the White House does not have jurisdiction? Mr. ROGERS. I am not going to answer any such hypothetical question as that. I am sure you are suggesting a factual situation that I am not going to go into. I will be glad to discuss, if I know all the facts, any particular situation. I don't want to discuss that kind of hypothetical question. I don't think it is a fair question to ask me, as a matter of fact. Senator HENNINGS. I don't mean to ask you unfair questions, Mr. Attorney General, but suppose the assistant was acting, as we lawyers would say, outside of the scope of his authority? Mr. ROGERS. Mr. Chairman, I have answered the question that I think that anybody who has conversations with an independent agency relating to a judicial process, whether in the executive branch or the legislative branch, and I have said that that conversation is not privileged and I think it applies to Senators and Congressmen and members of the executive branch, period. Now I don't want to discuss hypo thetical questions which suggest cases, people, or incidents, without knowing all the facts, and I certainly think that kind of a hypothetical question just causes confusion. I have made my position clear, that I don't think in these independent agencies, when they are exercising jurisdiction in adversary proceedings, that anybody who calls-I don't care who it is-I do not think that conversation is privileged. Senator HENNINGS. I believe you said that earlier. Mr. ROGERS. That is right. Senator HENNINGS. So, as a matter of fact, your opinion is that such a question or inquiry is beyond the scope of the employment? Mr. ROGERS. I don't think it makes any difference whether it is beyond the scope of the employment at all; I think if it relates to a judicial matter it is not privileged. Senator HENNINGS. Well, I think we are in agreement on that, Mr. Attorney General. Mr. ROGERS. Yes; we are in agreement on most of this, I think, Senator. Senator HENNINGS. I believe we are. Now, in response to a letter that I wrote on March 13, 1957,2 to your predecessor, Mr. Attorney General, requesting the views of the Attorney General on the powers of the President to withhold information from Congress, you sent to this Subcommittee on Constitutional Rights a 102-page memorandum which you referred to in your letter of April 10 as, and I quote, "a study prepared in the Department." Do you know when that study was prepared? Mr. ROGERS. I don't offhand, Senator. I can find out for you though. Senator HENNINGS. Well, isn't it true this 102-page memorandum which you sent to the subcommittee is almost identical to a serialized article published in the April, July, and October 1949, issues of the Federal Bar Journal? Mr. ROGERS. I wouldn't be surprised. Senator HENNINGS. Wasn't it written by Herman Wolkinson, an attorney in the Department of Justice? Mr. ROGERS. I don't know, sir. Senator Kefauver, I remember, probably because of the same source, asked me some questions about this. Senator HENNINGS. I wasn't aware of that. Mr. ROGERS. This, as I say, is not secret. There is no secret about this. This is a compilation of material that was in the Department when we got there, and it is just that—a compilation of material. I thought it would be helpful to the committee. Senator HENNINGS. Which has been published in the Federal Bar Journal! Mr. ROGERS. Yes. We are now, as I said to you, Mr. Chairman, preparing to bring it up to date, and we have that well underway and we will have it for you before too long. So we will have a complete compilation. Senator HENNINGS. That we would appreciate very much. Mr. ROGERS. That will be done by people now in the Department. Mr. SLAYMAN. Mr. Chairman 2 Appendix exhibit No. 8. |