subpena any employee of the Federal Government and to compel the production of papers by Government agencies. The Senate rejected that amendment."

Finally, the Senate memorandum of January 6, 1947, stated that "the secondary function of a congressional investigation of the executive branch is for supervisory purposes." Again it may be noted that the Senate rejected, following debate on the Legislative Reorganization Act of 1946, the notion that the Congress or its committees had the power to exercise a "surveillance" or a "superintendence" over the executive branch. It was Senator Donnell who succeeded in having the Senate substitute the word "watchfulness" in place of the word "surveillance" in section 136 of the act, on the ground that the legislative branch had no power to administer the laws which it passed."

In short, the Senate memorandum was in error in concluding that the Congress had supervisory powers with respect to the administration of the executive branch of the Government. It misread Revised Statutes, section 102, as well as section 134 (a) of the Legislative Reorganization Act of 1946, when it asserted that those sections applied to executive officers. Senator Saltonstall was among those who asserted, during the 1950 debate on the Senate resolution to investigate the loyalty of State Department employees, that the Senate lacked the power under section 134 (a) to compel employees of the executive branch of the Government to produce documents, against the President's wishes, because the section did not cover papers in the executive branch.

It is significant that public opinion on this issue has supported the Executive. In the administration of Presidents Washington, Jackson, Tyler, Cleveland, Theodore Roosevelt, and Truman, public opinion was on the President's side.8

The following is a review of the principal instances of refusal of information and papers to congressional committees, by the President, his intimate advisers and the heads of departments occurring between the period 1948-May 1953.

PART I—INQUIRIES BY THE LEGISLATIVE BRANCH (1948-53)

(1) THE CONDON INCIDENT

Public opinion was highly aroused in the spring of 1948, over the demand of a congressional committee for a letter relating to an investigation of Dr. Edward U. Condon, Director of the National Bureau of Standards. The Bureau of Standards is a unit in the Department of Commerce. The House Committee on Un-American Activities had released a report impugning the loyalty of Dr. Condon, and it called upon the Secretary of Commerce to make available to it the contents of a confidential report relative to a loyalty investigation

Earlier study, p. 83; hearings, supra, first footnote, at p. 2936; committee print, supra, first footnote, at pp. 60-61. P. 18; see also p. 16.

See earlier study, pp. 81-84, hearings, supra, first footnote, at pp. 2935-2937; committee print, supra, first footnote, at pp. 58-61.

8 George Washington's administration, Wilson. George Washington (1896), 304-6; the administration of Jackson, Tyler. Cleveland and Theodore Roosevelt, Binkley, President and Congress (1947), p. 166. For the manner in which public opinion supported Presidents Tyler and Cleveland see also, as to Tyler. Fuess. The Life of Caleb Cushing, (1923) vol. I, 350-351, and as to Cleveland, Nevins, Grover Cleveland-A Study of Courage (1938), 258-261, and Barrows, William M. Evarts (1941), 445.

Condon was absolved by the department's loyalty board of being "one of the weakest links in our atomic security" and an associate of "alleged Soviet agents." The basis of the board's finding, it transpired, was an FBI report, and this the Un-American Activities Committee decided that it must see. On March 3, 1948, consequently, after less formal approaches, the committee adopted the extraordinary course of subpenaing Secretary Harriman to produce the file, which, by order of the President, Mr. Harriman refused to do. Logically this recalcitrance on the Secretary's part should have been followed by an order of the House citing him for "contempt," and then his trial under the Act of 1857 in the District Court on the charge of "misdemeanor," unless meantime the President had pardoned him, as he would have been entitled to do. The committee, however, being at this stage in the position of seeking an appropriation from the House for the coming year, decided to proceed more conservatively. The result was that not only did the committee get a handsome appropriation, but on April 22 the House itself adopted a resolution peremptorily ordering the administration to surrender the desired data. Meantime, on March 15, the President had issued a general order forbidding all executive departments and agencies to furnish information concerning the loyalty of their employees to any court or committee of Congress. And so matters stand as this book goes to press (Corwin, The President: Office and Powers (1948 ed.), pp. 142-143).

Professor Corwin went on to say that, while no one could question the constitutional right of the House to inform itself on subjects which fall within its legislative competence, "this prerogative of Congress has always been regarded as limited by the right of the President to have his subordinates refuse to testify either in court or before a committee of Congress concerning matters of confidence between them and himself." He concluded that the President's "freeze order" of March 15, 1948, was necessary and expedient "to prevent the demoralization of the civil service" (id., pp. 142-143).

Part IV of this memorandum will deal with the vigorous but unsuccessful efforts which were made in the House, through House Resolution 522 and House Joint Resolution 342, to compel the executive branch to obey congressional demands for information and papers.

(2) THE STEELMAN INCIDENT

In House Report No. 1595, 80th Congress, 2d session, dated March 22, 1948, reference is made (p. 3) to an investigation by a subcommittee of the House Committee on Education and Labor into the manner in which the Taft-Hartley law was being administered. The subcommittee caused subpenas to be served upon Dr. John R. Steelman, a confidential adviser to President Truman. The subpenas directed him to appear before the subcommittee on two separate occasions. The report stated that he had failed to appear on either occasion, though personally served. He

returned the subpenas to the chairman of the subcommittee with a letter stating, among other things, that "in each instance the President directed me, in view of my duties as his assistant, not to appear before your subcommittee" (p. 3). A minority report, which appears at pages 6 to 13 of House Report No. 1595, answers the majority concerning Dr. Steelman's failure to appear as follows:

Again, the majority report refers to certain subpenas served upon Hon. John R. Steelman, the assistant to the President. Here, again, although I was not directly concerned in the matter, enough has appeared from published reports to indicate quite plainly that the purpose of the subpena on Mr. Steelman was to obtain from him the contents of any oral or written communications which had been made to him by the President with reference to the strike prevailing in the restaurants maintained by Government Services, Inc. I cannot believe

21324-59-pt. 2-3

that any congressional committee is entitled to make that kind of investigation into the private conferences of the President with one of his principal aids. I cannot conceive that the views of a Senator or Congressman on a pending bill may be extracted by a court or by a congressional committee by subpenaing the Senator's of [sic] Congressman's administrative assistant or any other assistant, secretary, or confidential employee. Likewise, I regard it as a direct invasion of the Executive's prerogative to invade the work and time of his assistant in this manner. Dr. Steelman I think acted with the utmost propriety in referring the matter to the President. The Chief Executive very naturally and properly directed Dr. Steelman not to appear before the subcommittee (p. 12).

Dr. Steelman did not appear before the subcommittee. Unlike President Roosevelt who finally permitted Jonathan Daniel, one of his confidential assistants, to testify before a Senate committee in February 1944, President Truman did not permit Dr. Steelman to testify. See articles by Arthur Krock in the New York Times, March 1 and 10, 1944.

(3) WILLIAM W. REMINGTON

On August 5, 1948, the Attorney General wrote Senator Homer Ferguson in response to the latter's request, on behalf of the Senate Investigations Subcommittee, that it be furnished with letters, memorandums, or other written notices which the Department of Justice might have furnished to other Government agencies concerning Wil liam W. Remington, after Elizabeth Bentley had made accusations to the Federal Bureau of Investigation against Remington in the fall of 1945. The Attorney General replied that the material requested fell within the scope of the President's directive of March 13, 1948. On the basis of that directive, the Attorney General declined to respond to the request and stated that he had referred it to the Office of the President, "for such reply as may be in the public interest under the circumstances."

Senate Report 1775, 80th Congress, 2d session, is entitled "Investigation of Federal Employees' Loyalty Program." This was an interim report of the Investigations Subcommittee of the Committee on Expenditures in the Executive Departments pursuant to Senate Resolution 189, 80th Congress. The report was dated September 4, 1948, and was submitted by Senator Ferguson, chairman of the Inves tigations Subcommittee.

While recognizing that the Federal Bureau of Investigation and other investigating agencies "must protect their confidential sources of information and their investigative techniques or find them valueless," nevertheless, the subcommittee also recognized the difficult position in which loyalty boards and agency heads were placed in attempting to determine the loyalty of Federal employees "without being permitted to question witnesses and determine their credibility, evaluate sources of information, and to make firsthand examination of all the facts" (p. 19).

Under conclusions and recommendations the subcommittee report stated:

9. The present policy of the executive branch of the Government of refusing to furnish information to this subcommittee concerning the handling of loyalty cases has made our task most difficult. If the subcommittee is denied the right to examine the facts in specific cases where there appears to be a breakdown in the loyalty program, it cannot make a complete appraisal of the program. The subcommittee will continue its efforts to obtain that information which it