one which would outweigh the compelling reasons for keeping all records of the Commission confidential.

An illustration of an attempt to coerce the President, by coercing the Civil Service Commission to produce records which were confidential, is afforded by a joint resolution which was introduced in the House of Representatives on January 7, 1948.12 The joint resolution authorized and directed the Commission "to make available to, permit examination of, and furnish to the House Committee on Expenditures in the Executive Departments" records and information which disclose the acts, opinions, or policies of Members of Congress, and individuals who are not Federal employees and not applicants for positions in the Federal Government, when such records and information may be deemed necessary by the committee in connection with any investigation held by it to ascertain the manner in which the Commission is expending its funds, compiling or holding in its possession the information above referred to, and in connection with investigations to be conducted under House Resolution 118, 80th Congress.

Section 2 of the joint resolution authorized and directed the Commission to permit the committee or a representative thereof to examine the so-called investigator's leads file, and all duplications thereof, whether in the offices of the Commission in Washington or elsewhere.

It will be recalled that President Tyler, in response to a resolution of the House of Representatives which called upon him and heads of departments to furnish information regarding Members of Congress who had applied for office, declined.13 He based his refusal upon two grounds: (1) that applications for office are of a confidential nature, and (2) that compliance with the resolution would involve a surrender of duties exclusively conferred by the Constitution on the Executive. Aside from questions of wisdom, policy and precedent, passage of the joint resolution would raise serious questions of a constitutional nature. The Constitution lodges the executive power in the President. Among his duties is that of appointing those persons who are to aid him in executing the laws. The joint resolution would, it would seem, constitute legislative interference with this important executive function.14

It is fitting to conclude our discussion of the Constitution and of the acts creating the executive departments with a reference to three cases through which runs the same strain: that the Chief Executive has an exclusive and illimitable power to control his subordinates in the executive branch.

In In re Neagle (135 U. S. 1), the Court said:

The Constitution, section 3, article 2, declares that the President "shall take care that the laws be faithfully executed," and he is provided with the means of fulfilling this obligation by his authority to commission all the officers of the United States, and, by and with the advice and consent of the Senate, to appoint the most important of them and to fill vacancies. He is declared to be commanderin-chief of the army and navy of the United States. The duties which are thus imposed upon him he is further enabled to perform by the recognition in the Constitution, and the creation by acts of Congress, of executive departments. which have varied in numbers from four or five to seven or eight, the heads of which are familiarly called cabinet ministers. These aid him in the performance

12 H. J. Res. 289, 80th Cong., 2a sess.

13 See Tyler's Message to the House of Representatives, p. 8 of this memorandum. 14 See the quotations from William Howard Taft and Attorney General Jackson. pp 4. 22 of this memorandum.

of the great duties of his office, and represent him in a thousand acts to which it can hardly be supposed his personal attention is called, and thus he is enabled to fulfill the duty of his great department, expressed in the phrase that "he shall take care that the laws be faithfully executed [pp. 63-64].

In Myers v. United States (272 U. S. 52), the majority of the court spoke through Chief Justice Taft. After quoting the foregoing words with approval, the Court answered the contention that executive officers, appointed by the President with the consent of the Senate, are bound by the statutory law and are not his servants to do his will, by pointing out:

The highest and most important duties which his subordinates perform are those in which they act for him. In such cases they are exercising not their own but his discretion. This field is a very large one. It is sometimes described as political. (Kendall v. United States, 12 Peters, 524 at p. 610). Each head of a department is and must be the President's alter ego in the matters of that department where the President is required by law to exercise authority [pp. 132-133].

Referring to instances of executive dealings with foreign governments and with domestic problems, Chief Justice Taft stated:

In all such cases, the discretion to be exercised is that of the President in determining the national public interest and in directing the action to be taken by his executive subordinates to protect it. In this field his cabinet officers must do his will. He must place in each member of his official family, and his chief executive subordinates, implicit faith [p. 134].

The Court went on to say that the duties of the heads of departments and bureaus in which the discretion of the President is exercised were the most important in the whole field of executive action of the Government (p. 134).

In Humphrey's Executor v. United States (295 U. S. 602), it was pointed out that the Myers case found support in the theory that a purely executive officer, serving in one of the units in the executive department was "inherently subject to the exclusive and illimitable power of removal by the Chief Executive, whose subordinate and aide he is" (p. 627). Concerning the necessity of keeping each of the three departments of the Government free from the coercive influence of either of the others, the Court stated:

The fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others, has often been stressed and is hardly open to serious question. So much is implied in the very fact of the separation of the powers of these departments by the Constitution; and in the rule which recognizes their essential co-equality. The sound application of a principle that makes one master in his own house precludes him from imposing his control in the house of another who is master there [pp. 629-630].

The persuasiveness of Attorney General Cushing's opinion concerning the ineffectiveness of resolutions of either or both Houses to coerce the head of a department to furnish information or papers against the President's wishes, becomes apparent in the light of the foregoing cases. To paraphrase Chief Justice Taft's statement in the Myers case: The discretion is that of the President to determine the national public interest, in directing his executive subordinates to withhold confidential information from congressional committees..

constitution and laws, submitted to the executive, can never be made in this court (pp. 168–170).

The Court decided, therefore, that with respect to a paper which under the law was already of record, which a person entitled thereto had a right to receive a copy of, such a question was not an intrusion into the secrets of the Cabinet.

Where the head of a department acts in a case requiring the exercise of executive discretion, where he is the mere organ of the executive will, any application to a court to control the conduct of such head of a department would be rejected without hesitation.

In the trial of Aaron Burr for treason before Judges Marshall and Griffin, the Chief Justice had this to say on whether a Cabinet officer could be compelled to reveal information which he deemed confidential. Referring to the case of Marbury v. Madison, Marshall said:

The principle decided there was that communications from the President to the Secretary of State could not be extorted from him (David Robertson, 2 Burr Trials (1808), p. 527).

TRIAL OF THOMAS COOPER, FOR SEDITIOUS LIBEL (1800) CIRCUIT COURT OF THE UNITED STATES FOR PENNSYLVANIA

Thomas Cooper was charged with having published a false, scandalous, and malicious attack on the character of the President of the United States, with an intent to excite the contempt of the people of this country against the President. Cooper applied to the Court for process to be issued on President Adams in order that the defendant might obtain a certain letter to aid in his defense. Judge Peters and Judge Chase, a member of the United States Supreme Court, presided at the trial. The Court refused to issue a subpena on President Adams. In addressing the Court, Cooper stated that if documents from the public offices in proof of notorious facts were required as evidence at the trial, and if persons charged with crime could not obtain these documents, "then are the mouths of the people completely shut up on every question of public conduct or public character?" 50

The Court informed the defendant that he was mistaken if he thought the public documents were at his service. Since the defendant was defeated in his efforts to procure certain documents by subpenas, the Court gave him wide latitude in offering secondary evidence. Cooper was found guilty by jury and was sentenced to a fine and imprisonment.

This appears to be the first recorded instance of an effort to compel a President of the United States to produce a document at a Court trial.

THE ISSUANCE OF A SUBPOENA DUCES TECUM TO PRESIDENT JEFFERSON (BURR'S TRIALS, ROBERTSON (1808))

Aaron Burr's trial took place in the Circuit Court of the United States, held at Richmond, Va., in 1807. In the course thereof, Burr applied to the Court for the issuance of a subpena duces tecum upon President Jefferson. Judge Marshall rendered an opinion and allowed the subpena to issue. It directed President Jefferson to produce a letter which one General Wilkinson had sent the President. The

50 Wharton's State Trials, Trial of Thomas Cooper, p. 667 (1800).

was no law which could compel the head of a department to give information or papers to the Houses of Congress against the President's wishes.18 Moreover, in the precedents cited in parts I and II of this memorandum, covering a period of 155 years, beginning with 1792 to the present time, heads of departments had failed to comply with congressional demands for papers; in not a single instance was any action taken by the Houses of Congress against a head of a department who thus refused to comply.

We must conclude, therefore, that sections 192, 193, and 194, dealing with the refusal of witnesses to testify in congressional investigations, apply to private citizens and persons. They are inapplicable to the executive departments.

TITLE 5, UNITED STATES CODE, SECTION 105A, INFORMATION FURNISHED COMMITTEES OF CONGRESS ON REQUEST

One might be led to believe from a reading of section 105a, that every executive department is obliged to furnish any information, when requested to do so, by the Committees on Expenditures of the House and Senate. Section 105a reads as follows:

Information furnished Committees of Congress on Request.-Every executive department and independent establishment of the Government shall, upon request of the Committee on Expenditures in the Executive Department of the House of Representatives, or of any seven members thereof, or upon request of the Committee on Expenditures in the Executive Departments of the Senate, or any five members thereof, furnish any information requested of it relating to any matter within the jurisdiction of said committee (May 29, 1928, ch. 901, sec. 2, 45 Stat. 996).

There appears to be one limitation on the powers of the Committees on Expenditures, namely, they can only request information relating to any matter within their jurisdiction. It is important to give a brief history of the section in order that we may arrive at its meaning. I am satisfied from a reading of the Congressional Record, and from the House and Senate reports on the bill which incorporates the section, that the section was not intended to enable the Committee on Expenditures to make blanket calls for information and papers upon the executive departments. Heads of departments are therefore not obliged to change their practices, as they have been established by the precedents heretofore cited, by reason thereof.

Section 105a is the same as section 2 of chapter 901, Public Law 611, of May 29, 1928 (45 Stat. 996). Chapter 901 is entitled: "An Act to discontinue certain reports now required by law to be made to Congress." The first section of the chapter states that the reports which were then required by law to be made to Congress shall be discontinued. It proceeds to enumerate 127 different kinds of reports of the executive departments and various governmental agencies which are so discontinued. Section 2 then follows and, as we shall show, was intended for one purpose only-to enable the Committees on Expenditures in the Executive Departments of the House and of the Senate to request of the executive departments in special cases such information as they had theretofore been able to receive through the filing of the reports. In a word, as the House and Senate reports plainly state, the United States Bureau of Efficiency conducted a sur

18 See p. 19 of this memorandum and 43 Congressional Record 3730 (1909).

vey and study of all the reports which, up to that time, had been furnished annually by the heads of departments and independent establishments of the Government. The Bureau came to the conclusion that the reports served no useful purpose. Hence, it was a waste of time and money to have hundreds of reports furnished annually to Congress, and the Bureau recommended their discontinuance. However, it was felt that there might be special occasions when the Committees on Expenditures of the House and of the Senate might need information relating to subjects, which were previously covered by the reports, which the heads of the departments should be requested to furnish. For that purpose, section 2 of chapter 901 was inserted. We quote from the conclusions of the House report:1

19

To save any question as to the right of the House of Representatives to have furnished any of the information contained in the reports proposed to be abolished, a provision has been added to the bill requiring such information to be furnished to the Committee on Expenditures in the Executive Departments or upon the request of any seven Members thereof.

The Senate report concludes with words similar to those just quoted.20

There is nothing in the remarks of the Congressmen and Senators who spoke on the bill on the floors of the House and Senate which alters our conclusion.21 Thus we see that section 105a does not change the law with respect to the right of heads of departments to keep from public view matters which in their judgment should remain confidential.

We noted above that the only limitation upon the right to demand information, which appears from a reading of section 105a, were the words: "within the jurisdiction of the committee." The Committees on Expenditures of the House and Senate may not request information concerning matters outside their jurisdiction. The Legislative Reorganization Act of 1946 22 defines the duties of the Committee on Expenditures in the Executive Departments in both the House and the Senate.23 The powers and duties of both committees are identical. Without enumerating the matters which those committees may properly concern themselves with, I believe, first, that the history of the bill confines the committees to information previously available to them in the reports of the executive departments, and second, the Constitution and the manner in which the decisions cited have interpreted it, would entirely negate an intent or desire by Congress, entirely unexpressed in the legislative history of the bill, to compel heads of departments to surrender information or papers against the wishes of the President, or their own better judgment, and against the public interest.

SECTIONS 134 (A) AND 136 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946 (PUBLIC LAW 601, 79TH CONG.)

Section 134 (a) provides that each standing committee of the Senate is authorized to require by subpena or otherwise the attend

19 H. Rept. No. 1757, 70th Cong., 1st sess., May 18, 1928 (p. 6), to accompany H. R. 12064.

20 S. Rept. 1320, 70th Cong., 1st sess.. May 28, 1928 (p. 4).

2169 Congressional Record 10613-10614, 10615-10616 (1928), 69 Congressional Record 9413-9417.

23 Ch. 753. Public Law 601, approved August 2, 1946, 79th Cong. 23 Sec. 102 (g) (1); sec. 121 (h) (1).