The second bill is S. 2148, 85th Congress, a bill to amend section 3 of the Administrative Procedure Act of 1946. 47 When Congress passed the Administrative Procedure Act it clearly recognized beyond question or doubt that there are functions of the Government where disclosure would be inconsistent with the national interest, and that the Government cannot otherwise function effectively." These considerations, which Congress recognized then, I have discussed above, and because of these considerations I am opposed to the passage of S. 2148. Certainly in the time available it is not possible for me to discuss in detail the amendments to section 3 of the Administrative Procedure Act which S. 2148 would make and my reasons for opposing them. Those will be discussed in the necessary detail in the Department's report on the bill. 47 60 Stat. 238, 5 U. S. C. 1002. 48 See for example, S. Rept. 752, 79th Cong., 1st sess. (1945). APPENDIX DETAILED TABLE OF CONTENTS 1. Letter to Senator Thomas C. Hennings, Jr., from Attorney General William P. Rogers, March 13, 1958. 2. Letter to Attorney General William P. Rogers from Senator Thomas C. Hennings, Jr., March 25, 1958. 3. Letter to Attorney General William P. Rogers from Senator Thomas C. Hennings, Jr., April 3, 1958.. 4. Letter to Senator Thomas C. Hennings, Jr., from Attorney General William P. Rogers, April 4, 1958.. 5. Letter to Representative George Meader from Attorney General William P. Rogers, March 14, 1958.. 6. Letter to Attorney General William P. Rogers from Representative George Meader, March 28, 1958. 7. Letter to Representative George Meader from Attorney General William P. Rogers, April 4, 1958.. 8. Letter to Attorney General Herbert Brownell, Jr., from Senator Thomas C. Hennings, Jr., March 13, 1957__. 9. Letter to Senator Thomas C. Hennings, Jr., from Deputy Attorney General William P. Rogers, April 10, 1957 10. Department of Justice study, Is a Congressional Committee_Entitled To Demand and Receive Information and Papers from the President and the Heads of the Departments Which They Deem Confidential, in the Public Interest?.. 11. Letter from Andrew P. Murphy, editor in chief, Federal Bar Journal, to Charles H. Slayman, Jr., March 5, 1958. 12. Article, "Demands of Congressional Committees for Executive Papers" (in three installments), by Herman Wolkinson, Federal Bar Journal, April, July, and October, 1949__ 63-146 146 147-270 13. Letter from President Dwight D. Eisenhower to the Secretary of Defense, May 17, 1954, including a memorandum from the Attorney General to the President__ 14. Letter to Clark R. Mollenhoff from Gerald D. Morgan, special counsel to the President, October 26, 1956. 271 278 15. Letter to Senator Thomas C. Hennings, Jr., from Acting Attorney General Lawrence E. Walsh, May 9, 1958, containing the views of the Department of Justice concerning S. 2148, 85th Congress.--- 278-287 16. Subcommittee on Constitutional Rights Survey of Withholding of Information from Congress: (a) Summary analysis__. (b) Letter to committee chairmen from Senator Thomas C. Hen 287-292 nings, Jr., May 29, 1956... (c) Replies from committees. Agriculture and Forestry Committee.. Appropriations Committee... 292 293 293 294 16. Subcommittee on Constitutional Rights, etc.—Continued Banking and Currency Committee. Subcommittee on Housing.. Subcommittee on International Finance.. Subcommittee on Production and Stabilization__ Page 295 295 295 295 297 Subcommittee To Investigate Juvenile Delinquency- Subcommittee on Education__ 354 355 362 362 (d) Letter to heads of departments and agencies from Senator 16. Subcommittee on Constitutional Rights, etc.-Continued Bureau of Indian Affairs. Page 387 387-391 391 392 392 392 393 Tennessee Valley Authority. 419 419-428 428 Veterans' Administration_. Veterans' Education Appeals Board.. 17. Library of Congress study, "Selected Cases in Which Information Has 428-446 18. Senate Document No. 99, 83d Congress, 2d session, "Congressional Power of Investigation, A Study Prepared at the Request of Senator William Langer, by the Legislative Reference Service of the Library of Congress" 447-513 APPENDIX EXHIBIT NO. 1 Hon. THOMAS C. HENNINGS, JR., OFFICE OF THE ATTORNEY GENERAL, Chairman, Subcommittee on Constitutional Rights, United States Senate, Washington, D. C. DEAR SENATOR: You will recall that in my testimony on March 6 before the Subcommittee on Constitutional Rights of the Senate Judiciary Committee I emphasized that executive privilege, in regard to documents and the decisionmaking process, like similar judicial and legislative privileges, stems from the constitutional principle of separation of powers. In response to questions by you I stated that section 161 of the Revised Statutes (5 U. S. C. 22) was not itself the fundamental basis for executive privilege. I desire to make clear the relationship which in my opinion section 161 bears to the fundamental basis of executive privilege, the constitutional separation of powers. I would be pleased if you would append this letter together with footnotes as an extension of my testimony before your committee. Section 161 is a legislative expression and recognition of the executive privilege. Thus reliance on this statute by an executive department is in effect reliance on the constitutional executive privilege as recognized by Congress since 1789. Section 161 of the Revised Statutes is essentially a codification of section 2 of the 1789 act creating a Department of Foreign Affairs and its counterparts for the other early executive departments (1. Stat. 28, 49, 65, 68, 553)." The historical refusals of the executive branch to acquiesce in congressional demands for executive documents have been based, not on any statute alone, but on the Constitution itself, for Revised Statutes 161 itself reflects the independence of Congress and the executive branch of each other. The historical antecedents of Revised Statutes 161, going back to the First Congress and the legislative decision of 1789, show that it was intended to be a grant of independent authority, in accordance with and as part of the fabric of the constitutional plan of separation of powers. The statute carries out the constitutional plan by authorizing the head of each department to prescribe appropriate regulations for the custody of documents. 50 To show that this custody of documents is a matter placed within the executive branch, and intended to be subject only to regulation by the executive branch, one need only refer to the important distinction between the first statute setting up the Department of Foreign Affairs (the historical antecedent of Revised Statutes 161), and its complete dissimilarity with the statute establishing the Department of Foreign Affairs under the Continental Congress, as discussed on pages 7 and 8 of my prepared statement. In the majority opinion in the Myers case, Chief Justice Taft set forth in some detail the controversy in the House of Representatives in the First Congress, respecting the provisions of the bill to establish the Department of Foreign Affairs, which I discussed, pages 8 and 9 of my prepared statement. Even in the condensed form in which that debate can be viewed in reading the annals of Congress, that bill raised the basic question respecting the separation of powers under the Constitution. This basic question was crystallized in two provisions of the bill. The first would have provided that at the head of the Department there should be a Secretary, to be appointed by the President, by and with the advice and consent of the Senate, and "to be removable from office by the President * * *." In regard to the reference in the bill to the power of removal by the President, there was objection on the ground that any such reference might suggest that the President's power to remove stemmed from a legislative grant and was thus subject to revocation.51 The second provision of the bill would have provided that there should be a chief clerk to be appointed by the Secretary who in case of vacancy in the office of the Secretary, should have the charge and custody of all records, books, and papers appertaining to the Department. Congressman Benson of New York, proposed to amend that second provision in order to provide that the chief clerk, "whenever the said principal officer (the Secretary) shall be removed from office by the President of the United States or in any other case of vacancy," 49 See Historical note to 5 U. S. C. 22; Touhy v. Ragen, 340 U. S. 462, 468. 50 Myers v. United States, 272 U. S. 52, 111–137. 61 Id., 112. |