Your high position as the chief legal officer of the United States renders your views significant because they are likely to be given great weight by officials in the executive branch of the Government from whom the Congress from time to time may desire information. They are important, too, because the Department of Justice and United States district attorneys have responsibilities under section 102 of the Revised Statutes for the enforcement of the investigative powers of the Congress.

Although your letter does not clearly say so, the central point of difference between us seems to be whether, in the event of disagreement as to the production of information Congress has requested from the executive branch of the Government, the power to decide resides in the Congress or in the President. I hold that the power resides in the Congress, and you apparently contend that the power resides in the executive branch of the Government. We both concede that historically a constitutional showdown on this question has been avoided, and I have expressed the hope that such a showdown will never be necessary.

You have conceded that included within the legislative power vested in the Congress is the power of inquiry. Apparently you also concede that the legislative power cannot be exercised intelligently in our modern, complex society without adequate means for ascertaining facts and considerations which are a necessary foundation for an enlightened declaration of public policy. Yet you assert that this power is unavailing in the event the executive branch decides it is in the public interest to withhold information from the Congress.

I do not concede the existence of an executive privilege to withhold information from Congress. Nevertheless, we might narrow the area of disagreement between us if you would be willing to describe the nature and characteristics of this executive privilege with greater exactitude. Such a description should include answers to the following questions:

1. Is there the executive privilege one which may be exercised solely by the President personally with respect to each congressional request for information limited only to that request?

2. May the President validly issue a blanket order to all officials and employees in the executive branch of the Government instructing them to deny Congress: (a) all requests for information; (b) all requests for a certain type of document or testimony; (c) all information in certain areas of governmental activities?

3. May this Presidential executive privilege and the power to exercise it be delegated to inferior officials in the executive branch of the Government? If so to (a) Cabinet members? (b) division heads? (c) economists and clerks? (d) any and all of the personnel in the executive branch of the Government?

4. Is the decision to withhold information from the Congress on the basis of executive privilege subject to any review whatever?

5. With respect to information properly classified, can the executive privilege be invoked where satisfactory arrangements are made to preserve the classified character of the information?

You have been unable to cite any express language in the Constitution authorizing executive privilege or any recognition of executive privilege by the Congress in statutes or by the courts in decisions.

You seem to rely rather vaguely upon the doctrine of separation of powers which I discussed at some length in my remarks on the floor of the House on March 10, 1958. I failed to find any refutation or other reference to this discussion in your letter of March 14, 1958.

I stated in my speech, and I again affirm, that I disapprove as vigorously as you of attempts Congress has made in the past to inject itself into the execution and administration of the laws and to assume the right to make executive decisions. I shall continue to follow that policy.

There is a considerable gap in logic, however, between stating the doctrine of separation of powers and concluding that congressional access to the facts about the conduct of the public business is an attempted usurpation of executive authority. To say that Congress has no right to know fully about the public business but must depend only upon the information the executive is willing to give it, in such color and completeness as the executive elects, it seems to me, is to assert untouchability in public servants totally out of line with our democratic concept that executive agencies are the servants, not the masters, of the sovereign people.

If the doctrine of separation of powers has any application to the question in controversy between us, it seems to me it supports the position I have taken. If,

as the court decisions clearly hold, the power of inquiry is an essential ingredient of the power to legislate, then the interference with that investigative power and the obstruction of its exercise by the Executive is an invasion of legislative authority and an unconstitutional assumption by the Executive of legislative power vested by the Constitution in the Congress.

As I have pointed out, the Supreme Court has time and again upheld the power of inquiry of the Congress because of its necessity to sound and intelligent legislation. This view was excellently expressed in McGrain v. Daugherty (273 U. S. 135):

"A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information-which not infrequently is true-recourse must be had to others who do possess it."

Of course, a great deal of information needed by Congress to determine public policy is in the possession of individual citizens, corporations and various types of nongovernmental organizations, but probably by far the great bulk of information needed by Congress to legislate intelligently is in the possession of the executive branch of the Government which in the last two and one-half decades has grown to mammoth proportions, not only in dollar expenditures and personnel, but in control and regulation of our national life. It is unthinkable to me that a court would hold that information in the possession of nongovernmental persons and agencies is more readily accessible to Congress than information in the possession of a public official.

The information possessed by a public official is not his private property, and the right of "privacy" conceived to exist in individual citizens by reason of the Bill of Rights and otherwise would not seem to apply to public officials who act as agents of the people in a position to trust. After all, the records and files of the Department of Justice are not the personal property of Bill Rogers or any subordinate official in the Department of Justice. They are Government property. If a private citizen may not withhold from congressional inquiry his private papers, is there not much more reason to hold that Government information needed in the formulation of public policy should be available to that part of the Government to whom it is most useful in determining how we should be governed?

The principle that public officials in their official capacity act as agents of the Government and exercise their powers and possess Government property and records as trustees is well established. Thus it would appear that the decisions of the Court in upholding the power of congressional inquiry with respect to private citizens are precedents establishing the power of Congress to obtain information in the possession of Government officials.

Another passage in McGrain v. Daugherty is relevant to that portion of your contention that it is sufficient for Congress to have such information as the executive branch of the Government voluntarily supplies it:

"Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed."

You suggest that my view of the investigative authority of the Congress asserts "a theory of legislative supremacy embodied in the unworkable Articles of Confederation but rejected in our Constitution." You are correct that I do assert the supremacy of Congress in the field of legislation, but I base this upon the Constitution, not the Articles of Confederation. I find nothing in the Constitution which indicates any intent to strip from the legislative power it rests in Congress the power of inquiry which has always been considered to inhere in the legislative power. In this view I am confirmed by repeated decisions of the Supreme Court.

I refer you again to the brilliant law review article of Gerald Morgan, the President's special counsel, who criticized penetratingly, it seems to me, an attempt by the courts to review legislative judgments by undertaking to decide whether the subject matter of the congressional inquiry was relevant to a subject on which Congress could legislate. This, of course, was the holding of Kilbourn v. Thompson (103 U. S. 190). Mr. Morgan expressed this idea as follows:

"Now, if, as indicated in Oklahoma Press case, the congressional power of investigation extends to investigating for the purpose of determining if the facts show whether or not Congress can legislate at all, if an investigation does not have to be preceded by the adoption of a resolution defining its scope and

purpose, and if the congressional power of investigation is like the inquisitorial power of a grand jury, then it becomes impossible for a court to exercise a power of review with respect to the lawfulness of such investigations, unless the court presumes bad faith on the part of a coordinate branch of the Government. And moreover, questions of pertinency in legislative inquiries become questions that by their very nature cannot be determined judicially-they become questions that courts cannot determine at all without in effect rendering advisory opinions as to what facts it would be appropriate for Congress to consider, for the Senate or House to consider, in forming a legislative judgment first as to whether it may legislate, next as to whether it should legislate, and finally as to how it should legislate. The exercise of that judgment is made through the collective action of the Members, upon their oath of office-substantially the same oath that judges take. And their decision as to what is or is not relevant to the exercise of that judgment should be binding and conclusive upon the world."

Yet it must be said that even in Kilbourn v. Thompson, the Supreme Court did not go nearly as far in invading legislative prerogatives as you do in asserting an executive privilege since the Court recognized the power of Congress to inquire but held only that its inquiry must be limited to matters on which it validly could legislate. Your assertion of executive privilege has no such limitation but only the very broad one that whenever the executive thinks it is in the public interest to withhold information, Congress may not obtain it. What is or is not in the public interest, of course, is a concept so broad as not to have any limitations whatever. Therefore, I have said, and repeat, that the asserted executive privilege is equivalent to saying that the President need not give any information at all to Congress since he may always say, and no one can review or disagree with his statement, that it would not be in the public interest to give Congress the information.

I would appreciate your directing your attention to the questions I have asked above and particularly to an explanation of the steps of logic in your thinking by which you arrive at the conclusion that knowledge by Congress of facts about the public business is an attempt to exercise executive powers. It seems clear to me that knowledge in and of itself does not amount to an attempt to make executive or administrative decisions.

It is, of course, true that a complete knowledge of the facts about an executive decision might reveal its fallacy, but this would be a matter which would appeal only to the minds of the people and would not serve to overrule an administrative decision within executive discretion which is valid and binding regardless of its soundness or unsoundness. The only possibility I can see that knowledge of the conduct of the public business could be regarded as invading executive authority is the assumption that executive decisions, good or bad, are the sole and exclusive business of officials in the executive branch of the Government and that neither the Congress nor the people have any right to be concerned about them. This asserts a doctrine of executive power which I believe is wholly out of keeping with our concept of democracy and self-government. It smacks of totalitarianism, and I hope it will never prevail in this country.

President Truman wrote a letter March 13, 1948, intended to deny to the Senate committee for which you were then counsel certain files concerning the loyalty of executive personnel.

President Eisenhower May 17, 1954, wrote a similar letter growing out of an effort of that same Senate committee to obtain certain information relating to the Army-McCarthy hearings.

Though the matters which gave rise to those two letters have long since passed from the scene, the letters still are being relied upon by personnel in the executive branch to deny information to the Congress.

Regardless of the constitutional controversy between us, the sincerity of the desire you express to make available the maximum amount of information to the Congress would seem to call for sweeping away those cobwebs either by a declaration that those letters no longer have any validity or that at the least they are confined to the subjects then in controversy.

Sincerely,

GEORGE MEADER.

I only wish to add that I hope all Members of the Congress and all committees will continuously be jealous of the powers and the prerogatives of the Congress; that they will not permit those powers to be frittered away carelessly or will not countenance the actions of those who seek to weaken or destroy them.

Hon. THOMAS C. HENNINGS, Jr.

NATIONAL POSTAL TRANSPORT ASSOCIATION,
Washington, D. C., April 22, 1958.

United States Senate, Washington, D. C.

DEAR SENATOR HENNINGS: On April 10 you graciously invited the National Postal Transport Association to submit a statement in regard to the attention given by your subcommittee to S. 921.

Twelve copies of our statement are enclosed. We are pleased to comply and we hope that our thinking and our presentation will in some way aid in the deliberations of your subcommittee.

Sincerely yours,

PAUL A. NAGLE, President.

PREPARED STATEMENT SUBMITTED BY PAUL A. NAGLE, PRESIDENT, NATIONAL POSTAL TRANSPORT ASSOCIATION

Mr. Chairman, my name is Paul A. Nagle. I am president of the National Postal Transport Association, representing 30,000 employees of the Post Office Department's Postal Transportation Service.

Mr. Chairman, I appear before you this morning in support of S. 921. This bill would amend section 161 of the Revised Statutes with respect to the authority of Federal officers and agencies to withhold information and to limit the availability of records. The proposed legislation would amend section 161 of the Revised Statutes by adding the language, "This section does not authorize withholding information from the public or limiting the availability of records to the public."

The National Postal Transport Association wishes emphatically and enthusiastically to subscribe to the recommended amendment.

It is especially appropriate to point out to this distinguished Subcommittee on Constitutional Rights that a familiar outcry of postal employees is that they are second-class citizens in the sense that their rights of utterance are circumscribed, their political activities are limited, and they are denied the reasonable right of collective bargaining to improve their conditions of employment.

In some instances today postal employees are being disciplined and suspended from the payroll under regulations they have never seen. We are told that a newly revised version of the Postal Manual is being prepared and will shortly be available. Even after this happens we understand that if an employee should decide that he wishes to read the regulations, he will have to make a request of his supervisors. Lack of availability of information in this case, we think, amounts to suppression of that information. When an employee is not advised of a change in the regulations governing the conditions and the nature of his employment, he is, in our opinion, being exposed unduly and unnecessarily to jeopardy of his position.

On other occasions members of the National Postal Transport Association have been brought up under disciplinary charges for having presumed to declare publicly their convictions that the Post Office Department is pursuing a mistaken transportation policy. On still other occasions, employees have been visited by Post Office inspectors because they have dared to inform Members of Congress of the need to establish highway post office routes in the areas covered by the districts of those Congressmen.

Part 744.442 of the Postal Manual governs the release by employees of postal information. The text of part 744.442 is as follows:

"Employees in active status shall not engage in campaigns for or against changes in mail service. This regulation shall not be construed to infringe on rights guaranteed employees under the Lloyd-La Follette Act of 1912 as set forth in part 741."

The cited language might not appear to restrict the release of information properly in the public domain. However, the cited portion has been applied in such fashion as to create that type of restriction.

At the time that the quoted portion of the Postal Manual was issued in August 1956, the distinguished chairman of this subcommittee released a threepoint statement explaining the ways in which the changed version was an improvement over what had preceded it. The chairman's letter was dated August 9, 1956, and it said his purpose had been achieved by the following:

"(a) Removing completely from the new version of the section the unreasonable requirement which appeared in it before that information relating

to the policies and decisions of the Post Office Department 'be released by postal employees only through official channels.'

"(b) Removing completely from the new version of the section the arbitrary rule which was included before that postal workers would not be permitted to furnish information to be used for or against changes in the postal service 'unless prior approval has been obtained from higher authority.'

"(c) Removing completely from the new version of the section the harsh oppressive rule which existed before that if a postal employee had 'justifiable reasons for favoring or opposing changes in the postal service,' he was required to 'contact the proper officials and await specific instructions before engaging in local hearings or activities.'"

The National Postal Transport Association contends that the cited portion of the Postal Manual continues to be detrimental to the best interests of the public because it enables the suppression of criticism of managerial error and inefficiency. Its practical application tends to intimidate employees and to restrict the activities of organizations such as the National Postal Transport Association. The National Postal Transport Association has actually found that under the cited portion of the Postal Manual employees have been reluctant to give detailed information even to their own national officers, and thus we in turn have been handicapped in our efforts to base appeals to the Department or to Congress for improvement in service, in working conditions, or in adjusting grievances.

On January 25, 1958, the Post Office Department announced a major reorganization involving district transportation and operations offices. We were given no access to information regarding the plans for the reorganization despite our having 1,000 members affected by the reorganization. Since that time the information we have been given has been of a most general character.

From numerous areas of the country we have learned that employees assigned to district transportation offices have been extremely reluctant to protest or to talk about the changes being imposed upon them. Many of the affected employees have been fearful of carrying their stories to Members of Congress. Some office employees are afraid even to write Congress in support of postal pay increase legislation.

In the opinion of the National Postal Transport Association, this type of repressive atmosphere in administrative levels of the Post Office Department is indicative of suppressed freedom of utterance.

Mr. Chairman, the information which the Post Office has made available to the press has not always been accurate. Further, it seems to be clear that the Post Office Department has been seeking not only to withhold information from the public but also to prevent free expression on the part of those who are employed by the Post Office Department. A free exchange of information is needed to build a sound postal service as well as to build united and healthy postal employee spirit.

On behalf of the employees of the Postal Transportation Service, Mr. Chairman, I want to thank you for the opportunity you have provided for me to appear before you today to present testimony in support of S. 921.

Hon. THOMAS C. HENNINGS,

WASHINGTON, D. C., April 16, 1958.

United States Senate,

Washington, D. C.

DEAR SENATOR HENNINGS: The Radio-Television News Directors Association fully supports your bill to amend the housekeeping statute so as to keep it from being used by Government agencies as justification for withholding information from the public. RTNDA President Jack Krueger has asked me to communicate this view of our organization to you and the membership of the Senate Subcommittee on Constitutional Rights.

We share your feeling that the statute has been misused when it has been made the basis for what you have described as "clearly unwarranted withholdings of information." We agree with you that the statute was never intended to authorize the purposes of secrecy to which it has been put. We appreciate the effort you and your colleagues are making to restore the housekeeping statute to its original limited purpose of authorizing Government