Congressional Access to Executive Branch Information: Legislative Tools

Congressional research reportMay 17, 2001

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Order Code RL30966

CRS Report for Congress

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Congressional Access

to Executive Branch

Information:

Legislative Tools

May 17, 2001

Louis Fisher

Senior Specialist in Separation of Powers

Government and Finance Division

Congressional Research Service ˜ The Library of Congress

Congressional Access to Executive Branch Information:

Legislative Tools

Summary

Presidents and scholars identify a variety of constitutional principles and practices

to justify the withholding of documents and papers from Congress. No doubt

reasonable grounds may be presented for withholding these materials and for

preventing some executive officials from testifying before congressional committees.

However, these executive arguments are subject to legal and political limits. Executive

claims can be offset by equally persuasive arguments that Congress needs access to

information to fulfill its constitutional duties. In many cases, legal and constitutional

principles are overridden by the politics of the moment and practical considerations.

Efforts to discover enduring and enforceable norms in this area invariably fall short.

This report begins by reviewing the precedents established during the Washington

Administration for withholding documents from Congress. Close examination reveals

that the scope of presidential privilege is often exaggerated. Congress had access to

more documentation than is commonly believed and might have had more had it

pressed for it. Subsequent sections focus on various forms of congressional leverage:

the power of the purse, the power to impeach, issuing congressional subpoenas,

holding executive officials in contempt, House resolutions of inquiry, GAO

investigations, and blocking nominations, all of which may force executive officials to

release documents they would otherwise want to keep private and confidential. Even

if Presidents announce perfectly plausible grounds for withholding documents, they

may have to comply with the congressional will to achieve other more important goals.

For a comprehensive CRS study of different techniques and authorities used by

Congress to oversee executive branch activities, see “Congressional Oversight

Manual,” CRS Report RL30240 (June 25, 1999). Legal and historical analysis on

these issues is covered by Morton Rosenberg, “Presidential Claims of Executive

Privilege: History, Law, Practice and Recent Developments,” CRS Report RS30319

(September 21, 1999).

Contents

Establishing Constitutional Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Robert Morris Inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

St. Clair Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Diplomatic Correspondence with France . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

The Appropriations Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

The Jay Treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

The Louisiana Purchase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Subsequent Treaty Disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

The Impeachment Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

The Appointment Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Senate “Holds” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Kleindienst Nomination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Rehnquist for Chief Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Nomination of Trott . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

An Ambassadorial Position . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Environmental Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Congressional Subpoenas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

The Ashland Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

DOJ Documents: Seizing Suspects Abroad . . . . . . . . . . . . . . . . . . . . . . . . 20

DOJ Documents: The Inslaw Affair . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Whitewater Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

The Contempt Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Actions from 1975 to 1981 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Gorsuch Contempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Contempt Move Against Quinn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Contempt Action Against Reno . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

House Resolutions of Inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

GAO Investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Testimony by White House Officials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

The Claim of “National Security” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

The AT&T Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Proceedings Against Henry Kissinger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

The James Watt Episode . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

CIA Whistleblowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

The Role of the Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

The Pentagon Papers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

The Egan Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

The Garfinkel Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Selected References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Congressional Access to Executive Branch

Information: Legislative Tools

Presidents and scholars identify a variety of constitutional principles and practices

to justify the withholding of documents and papers from Congress. No doubt grounds

may be offered to withhold these materials and prevent some executive officials from

testifying before congressional committees. However, these executive arguments are

subject to legal and political limits. Executive claims can be offset by equally

persuasive arguments that Congress needs access to information to fulfill its

constitutional duties. In many cases, legal and constitutional principles are overridden

by the politics of the moment and practical considerations. Efforts to discover

enduring and enforceable norms in this area invariably fall short.

This report begins by reviewing the precedents established during the Washington

administration for withholding documents from Congress. Close examination reveals

that the scope of presidential privilege is often exaggerated. Congress had access to

more documentation than is commonly believed and could have had more had it

pressed for it. Subsequent sections focus on various forms of congressional leverage:

the power of the purse, the power to impeach, issuing subpoenas, holding executive

officials in contempt, House resolutions on inquiry, GAO investigations, and blocking

nominations, all of which may force executive officials to release documents they

would otherwise want to keep private and confidential. Even if Presidents announce

perfectly plausible grounds for withholding documents, they may have to comply with

the congressional will to achieve other more important goals.

Establishing Constitutional Principles

The Constitution makes no specific reference to a presidential power to withhold

documents from Congress, nor does it specifically recognize a congressional need for

information to legislate. Yet it is now routine to consider both powers implied in the

operation of the executive and legislative branches. Long before the Supreme Court

acknowledged that fact,1 the political branches had already reached a rough

understanding and worked out accommodations. When these two implied powers

collide, which should give way? No magic formula yields a ready and reliable answer,

for too much depends on individual circumstances and political considerations.

E.g., McGrain v. Daugherty, 272 U.S. 135, 175 (1927) (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”); United States v. Nixon, 418 U.S. 683, 711 (1974)

(to the extent the President’s interest in withholding information for the purpose of

confidentiality “relates to the effective discharge of a President’s powers, it is constitutionally

based”).

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What informs the process of congressional access to executive branch information

is the constitutional structure of separation of powers and the system of checks and

balances. Neither political branch has incontrovertible authority to withhold

information or force its disgorgement, while the message from the courts is for elected

officials to fight it out until a satisfactory compromise emerges. But Congress can win

most of the time––if it has the will––because its broad-ranging political tools have the

greatest leverage.

Robert Morris Inquiry

In 1790, the House established an important precedent by insisting that

investigation within the executive branch merited congressional, not presidential,

action. The House debated a request from Robert Morris to investigate his conduct

as Superintendent of Finance under the Articles of Confederation.2 The matter was

referred to a select committee consisting of James Madison, Theodore Sedgwick, and

Roger Sherman.3 The House learned a day later that the Senate had passed a

resolution empowering President Washington to appoint three commissioners to

inquire into the receipts and expenditures of public moneys during Morris’s

administration.4

The select committee of Madison, Sedgwick, and Sherman issued a report,

recommending that a committee of five be appointed to examine Morris’s performance

in office. John Laurance and William Smith were added to the three already in place.5

Elbridge Gerry objected that the House was pretending it still had the power of the

Continental Congress, when it possessed both legislative and executive powers. He

said that the President was “the only competent authority to take cognizance of the

conduct of officers in the Executive Department; if we pursue the proposed plan of

appointing committees, we destroy the responsibility of Executive officers, and divest

the House of a great and essential privilege, that of impeaching our Executive offices

for maladministration.”6 Gerry favored the Senate’s approach of appointing three

commissioners to do the job.7 Theodorick Bland opposed the appointment of

commissioners “as creating an unnecessary expense.”8 Madison supported the fiveman committee, arguing that the House “should possess itself of the fullest information

in order to doing justice [sic] to the country and to public officers.”9 The committee

was appointed and issued a report on February 16, 1791.10

1 Annals of Cong. 1168 (February 8, 1790).

Id. at 1204 (February 10, 1790).

Id. at 1233 (February 11, 1790).

2 Annals of Cong. 1514 (March 19, 1790). The Annals uses the spelling of John Lawrence.

Id. at 1515.

Id.

Id. at 2017.

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This committee investigation did not produce a total collision between Congress

and the Washington administration because the area of inquiry concerned activities that

occurred during the previous Continental Congress. Nevertheless, Congress ended up

debating which branch of government— legislative or executive—was the proper party

for investigating executive matters. The House decided, as Madison noted, that it was

necessary for Congress to acquire the necessary information in order to “do justice”

to the country and to public officers.

St. Clair Investigation

Two years later, on March 27, 1792, the House appointed a committee to inquire

into the heavy military losses suffered by the troops of Major General Arthur St. Clair

during his 1791 campaign against Indian tribes in Ohio. Out of 1,400 troops, 657 were

killed and another 271 wounded.11 The House committee was empowered “to call for

such persons, papers, and records, as may be necessary to assist their inquiries.”12

William Giles, regarding the inquiry as “indispensable” and “strictly proper,” concluded

that the House is “the proper source, as the immediate guardians of the public

interest.”13 Similar to the Morris inquiry, some Members of the House thought the

investigation should be conducted by President Washington. A motion to that effect

was rejected 21 to 35, after which the House inquiry was supported 44 to 10.14

According to the account of Thomas Jefferson, President Washington convened

his Cabinet to consider the extent to which the House could call for papers and

persons. The Cabinet considered and agreed,

first, that the House was an inquest, and therefore might institute

inquiries. Second, that it might call for papers generally. Third, that the

Executive ought to communicate such papers as the public good would

permit, and ought to refuse those, the disclosure of which would injure

the public: consequently were to exercise a discretion. Fourth, that

neither the committee nor House had a right to call on the Head of a

Department, who and whose papers were under the President alone; but

that the committee should instruct their chairman to move the House to

address the President.15

The Cabinet concluded that “there was not a paper which might not be properly

produced.”16 President Washington instructed Secretary of War Henry Knox to “lay

before the House of Representatives such papers from your Department, as are

George C. Chalou, “St. Clair’s Defeat, 1792,” in Congress Investigates, 1792-1974, at 7

(Arthur M. Schlesinger, Jr. & Roger Bruns eds. 1975).

3 Annals of Cong. 493 (March 27, 1792).

Id. at 490.

Id. at 493.

1 The Writings of Thomas Jefferson 304 (Washington, D.C.: Thomas Jefferson Memorial

Association, Albert Ellery Bergh, ed. 1903).

Id. at 305.

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requested by the enclosed Resolution.”17 Washington also thought it appropriate for

St. Clair, who had expressed an interest in retiring, to make himself fully available to

the House: “I should hope an opportunity would thereby be afforded you, of explaining

your conduct, in a manner satisfactory to the public and yourself.”18 The House

committee examined papers furnished by the executive branch, listened to explanations

from department heads and other witnesses, and received a written statement from

General St. Clair.19 The general principle of executive privilege had been established

because the President could refuse papers “the disclosure of which would injure the

public.” The language here is significant. The President was concerned about injury

to the public, not to himself or his associates. From this evolved the principle that

Presidents were not entitled to withhold information simply because it might embarrass

the administration or reveal improper or illegal activities.

Diplomatic Correspondence with France

In 1794, the Senate adopted a resolution requesting President Washington to

submit certain diplomatic correspondence concerning U.S. policy with France.20 At

a Cabinet meeting he received advice from Secretary of War Henry Knox that “no part

of the correspondence should be sent to the Senate.” Secretary of the Treasury

Alexander Hamilton agreed with Knox, adding that “the principle is safe, by excepting

such parts as the President may choose to withhold.” Attorney General Edmund

Randolph, about to become Secretary of State, said that “all the correspondence

proper, from its nature, to be communicated to the Senate, should be sent; but that

what the President thinks improper, should not be sent.”21 William Bradford,

replacing Randolph as Attorney General, was of the opinion that “it is the duty of the

Executive to withhold such parts of the said correspondence as in the judgment of the

Executive shall be deemed unsafe and improper to be disclosed.”22

Washington, carving out some room, notified the Senate that he had directed

copies and translations to be made “except in those particulars which, in my judgment,

for public considerations, ought not to be communicated.”23 Apparently the Senate

accepted this arrangement, but had Senators wanted to press the matter they might

have forced the release of more material. As noted by Abraham Sofaer, “nothing

would have prevented a majority from demanding the material, especially in

32 The Writings of George Washington 15 (Washington, D.C.: Government Printing Office,

John C. Fitzpatrick, ed. 1939).

Id. at 16.

3 Annals of Cong. 1106-13 and Appendix (1052-59, 1310-17).

4 Annals of Cong. 38 (January 24, 1794).

4 The Works of Alexander Hamilton 505-06 (New York: C.S. Francis & Co., John C.

Hamilton ed., 1851).

Id. at 494-95.

4 Annals of Cong. 56 (February 26, 1794).

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confidence, or from using their power over foreign policy, funds and offices to

pressure the President to divulge.”24

The Appropriations Power

Presidents may have to surrender documents they consider sensitive or

confidential in order to obtain funds from Congress to implement programs important

to the executive branch. This congressional leverage is evident in a number of early

executive-legislative confrontations.

The Jay Treaty

An executive-legislative collision occurred in 1796 after President Washington

informed Congress that the Jay Treaty had been ratified. His message was sent on

March 1, 1796.25 On the very next day, Congressman Edward Livingston stated that

“it was very desirable, therefore, that every document which might tend to throw light

on the subject should be before the House.”26 He offered a resolution that President

Washington “be requested to lay before this House a copy of the instructions given to

the Minister of the United States who negotiated the Treaty with Great Britain, . . .

together with the correspondence and other documents relative to the said Treaty.”27

Recognizing that some of the negotiations were probably unfinished, Livingston

modified his resolution by adding this language: “Excepting such of said papers as any

existing negotiation may render improper to be disclosed.”28 Explaining the role of the

House in the treaty process, Livingston said that the House possessed “a discretionary

power of carrying the Treaty into effect, or refusing it their sanction.”29 Without the

papers, the House might decide to withhold appropriations needed to implement the

treaty. Congressman Albert Gallatin agreed that the House did not have to acquiesce

in decisions agreed to by the President and the Senate if a treaty encroached upon

powers expressly reserved to the House, such as the regulation of trade.30

After weeks of debate, the House supported the Livingston resolution by a margin

of 62 to 37.31 Importantly, some of the documents had already been shared with the

House. Livingston, as chairman of the House Committee on American Seamen,

“together with the whole committee, had been allowed access to these papers, and had

Abraham D. Sofaer, “Executive Privilege: An Historical Note,” 75 Colum. L. Rev. 1318,

1321 (1975).

Annals of Cong., 4th Cong., 1st sess. 394 (March 1, 1796).

Id. at 400.

Id. at 400-01.

Id. at 426.

Id. at 427-28.

Id. at 437, 466-74.

Id. at 759.

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inspected them. The same privilege, he doubted not, would be given to any member

of that House who would request it.”32 It was during this period that Congress passed

legislation to provide for the relief and protection of American seamen, many of them

having been impressed by Great Britain.33 One Member of the House said that with

respect to the papers on the Jay Treaty, “he did not think there were any secrets in

them. He believed he had seen them all.”34 He remarked that for “the space of ten

weeks any member of that House might have seen them.”35 Another Member of the

House noted that his colleagues could have walked over to the office of the Secretary

of the Senate to see the papers, but why, he said, “depend upon the courtesy of the

Clerk for information which might as well be obtained in a more direct channel?”36

Madison, who voted for Livingston’s resolution, elaborated on his views

regarding executive-legislative struggles over information. He began with the “utmost

respect to the decorum and dignity of the House, with a proper delicacy to the other

departments of Government, and, at the same time, with fidelity and responsibility, for

our constituents.”37 He wanted the resolution drafted in such a form “as not to bear

even the appearance of encroaching on the Constitutional rights of the Executive.”38

Livingston’s amendment to his resolution, Madison felt, went a long way toward

removing constitutional objections.39 Madison proposed the following language to

further ease the tensions between the branches: “Except so much of said papers as, in

his judgment, it may not be consistent with the interest of the United States, at this

time, to disclose.”40 Madison’s amendment failed by the vote of 37 to 47.41

In denying the House request for papers, Washington cited a number of reasons,

including the need for caution and secrecy in foreign negotiations as well as the

exclusive role of the Senate to participate as a member of the legislative branch in

treaty matters.42 Washington said that the only ground on which the House might

request documents regarding treaty instructions and negotiations would be

impeachment, “which the resolution has not expressed.”43 It would be incorrect to

regard Washington’s decision to withhold documents from the House as an exercise

of executive privilege to keep documents from Congress. He acknowledged that “all

Id. at 461 (remarks of Rep. Harper).

Id. at 802-19.

Id. at 642 (remarks of Cong. Williams).

Id.

Id. at 588 (remarks of Rep. Freeman).

Id. at 437.

Id. at 438.

Id.

Id. at 759.

Id.

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the papers affecting the negotiation with Great Britain were laid before the Senate,

when the Treaty itself was communicated to their consideration and advice.”44

Washington’s message to the House could be faulted on several grounds. First,

the House was not requesting documents as part of the treaty process. That stage was

complete. The treaty had been negotiated, approved by the Senate, and ratified. The

House was requesting documents as part of the post-treaty process: the appropriation

of funds needed to implement the treaty. The House decided it had a right to whatever

papers it needed to make an informed legislative judgment. Second, Washington

seemed to understand that right, because a letter from Hamilton to Washington implies

that Washington had initially considered giving the House the papers it requested:

The course you suggest has some obvious advantages & merits careful

consideration. I am not however without fears that there are things in

the instructions to Mr. Jay which good policy, considering the matter

externally as well as internally, would render it inexpedient to

communicate. This I shall ascertain to day. A middle course is under

consideration—that of not communicating the papers to the house but

of declaring that the Secretary of State is directed to permit them to be

read by the members individually.45

In other words, because Washington seemed prepared to submit the papers to the

House, Hamilton was offering an intermediate position of retaining the papers in the

custody of the Secretary of State while allowing Members of the House to come and

read them in his presence. The editor of Hamilton’s papers concludes that

Washington’s letter to Hamilton “apparently suggested that he planned to comply with

the request in Livingston’s resolution.”46

Hamilton, no longer in the administration, advised President Washington to deny

the House the documents it requested on the Jay Treaty. He thought that production

of the papers “cannot fail to start [a] new and unpleasant Game—it will be fatal to the

Negotiating Power of the Government if it is to be a matter of course for a call of

either House of Congress to bring forth all the communication however confidential.”47

Having taken a hard line, Hamilton cautioned Washington not to appear too abrupt or

imperious when communicating to the House: “a too peremptory and unqualified

refusal might be liable to just criticism.”48

Shortly after Washington’s message to the House on the papers, Congressman

Thomas Blount introduced two resolutions (both adopted 57 to 35), stating that the

House of Representatives did not claim any agency in making treaties,

Id. at 761.

20 Papers of Alexander Hamilton 81-82 (New York: Columbia University Press, Harold

C. Syrett ed., 1974) (emphasis in original).

Id. at 66.

Id. at 69.

Id.

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but, that when a Treaty stipulates regulations on any of the subjects

submitted by the Constitution to the power of Congress, it must depend,

for its execution, as to such stipulations, on a law or laws to be passed

by Congress. And it is the Constitutional right and duty of the House

of Representatives, in all such cases, to deliberate on the expediency or

inexpediency of carrying such Treaty into effect, and to determine and

act thereon, as, in their judgment, may be most conducive to the public

good.49

Madison, supporting the Blount resolutions, said that the House “must have a

right, in all cases, to ask for information which might assist their deliberations on the

subjects submitted to them by the Constitution; being responsible, nevertheless, for the

propriety of the measure.” Madison was “as ready to admit that the Executive had a

right, under a due responsibility, also, to withhold information, when of a nature that

did not permit a disclosure of it at the time.”50 Yet Madison expressed some

misgivings about Washington’s message to the House:

[The message] implied that the Executive was not only to judge of the

proper objects and functions of the Executive department, but, also, of

the objects and functions of the House. He was not only to decide how

far the Executive trust would permit a disclosure of information, but

how far the Legislative trust could derive advantage from it. It

belonged, he said, to such department to judge for itself. If the

Executive conceived that, in relation to his own department, papers

could not be safely communicated, he might, on that ground, refuse

them, because he was the competent though a responsible judge within

his own department. If the papers could be communicated without

injury to the objects of his department, he ought not to refuse them as

irrelative to the objects of the House of Representatives; because the

House was, in such cases, the only proper judge of its own objects.51

The House had driven home its point: if a treaty entered into by the President and

the Senate required legislation and appropriations to be carried out, the House would

be strongly positioned to insist on whatever papers and documentation it needed to

judge the merits of the treaty. Denied such information, it could threaten to block

implementation. It might easily tell the President: “Sorry, without additional

documents supplied by you, we have inadequate grounds to pass the necessary

legislation.”

Precisely those conditions prevailed in 1796: President Washington needed the

support of both Houses to pass an appropriation of $90,000 to implement the Jay

Treaty. 52 Congressman Samuel Maclay cut to the quick by noting that Members of the

House, having been denied the papers they requested, “were left to take their measures

Annals of Cong., 4th Cong., 1st sess. 771 (1796). For the votes, see id. at 782-83.

Id. at 773.

Id.

Id. at 991.

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in the dark; or, in other words, they were called upon to act without information.”53

He proposed the following preamble and resolution:

The House . . . are of opinion that [the treaty] is in many respects highly

injurious to the interests of the United States; yet, were they possessed

of any information which could justify the great sacrifices contained in

the Treaty, their sincere desire to cherish harmony and amicable

intercourse with all nations, and their earnest wish to co-operate in

hastening a final adjustment of the differences subsisting between the

United States and Great Britain, might have induced them to waive their

objection to the Treaty; . . . Therefore,

Resolved, That, under the circumstances aforesaid, and with such

information as the House possess, it is not expedient at this time to

concur in passing the laws necessary for carrying the said Treaty into

effect.54

The House never voted on Maclay’s language. After a lengthy debate, the bill to

appropriate funds to implement the treaty passed by the narrow margin of 51 to 48.55

James Madison voted against the bill. An earlier test vote showed the House divided

49 to 49, with the Speaker willing to break the tie to support the treaty. 56 The

appropriation was enacted into law.57 Given the closeness of the vote, had the

opposition maintained a narrow margin it seems reasonable that President Washington

would have shared with the House—or with a few selected opponents—the documents

needed to swing the necessary votes.

The Louisiana Purchase

In 1803, after President Jefferson entered into negotiations with France for the

Louisiana Purchase, he had considerable doubts about the legality of what he had done.

On the basis of a provisional appropriation of $2 million to be applied toward the

purchase of New Orleans and the Floridas, the Jefferson administration entered into

an agreement with France to buy the whole of the Louisiana territory. Jefferson

thought that the executive officials who had negotiated the terms “have done an act

beyond the Constitution.”58 Because Congress would have to “ratify and pay for it,”59

the treaty “must of course be laid before both Houses, because both have important

functions to exercise respecting it.”60

Id. at 970.

Id. at 971.

Id. at 1291.

Id. at 1280.

1 Stat. 459 (1796).

10 The Writings of Thomas Jefferson 411 (Bergh ed. 1903).

Id.

Id. at 410.

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Jefferson sent copies of the ratified treaty both to the House of Representatives

and the Senate, explaining: “You will observe that some important conditions can not

be carried into execution but with the aid of the Legislature, and that time presses a

decision on them without delay.”61 The House debated at length a resolution asking

Jefferson to submit certain papers and documents relating to the treaty. Some portions

of the resolution were adopted, others rejected. The resolution as a whole went down

to defeat, 57 to 59.62 With or without the resolution, there is little doubt that the

administration was willing to provide the House with whatever documents it needed

to support the treaty. The House subsequently joined the Senate in passing legislation

to enable Jefferson to take possession of the Louisiana Territory. 63

Subsequent Treaty Disputes

On other occasions the House has opposed treaties that required appropriations,

two examples being the Gadsden purchase treaty with Mexico in 1853 and the Alaskan

purchase treaty with Russia in 1867. In such disputes the House raises itself to

coequal status with the Senate and strengthens its position for obtaining information

from the executive branch.

The need to have support from both Houses for certain treaties was recognized

in a reciprocity treaty with the Hawaiian Islands in 1876. A proviso made the treaty

dependent on legislative consent by both Houses.64 A commercial treaty with Mexico

in 1883 contained a clause making its validity dependent on action by both Houses.

The House Ways and Means Committee interpreted the language to mean that the

House had a right to a voice in treaties affecting revenue. Although additional

conventions were entered into to extend the time available for congressional approval,

the House did not support the treaty and it did not take effect.65 The prerogatives of

the House in matters of foreign commerce, tariffs, and revenues have been protected

by the use of statutes that authorize reciprocal trade agreements.66

The House continues to make its will felt in matters of treaties. Although the

Ford Administration believed that it could enter into an executive agreement with

regard to Spanish bases, the Senate insisted that it be done by treaty. Later, Members

of both Houses objected to language in the treaty that appeared to make appropriations

mandatory over a five-year period. In the end, the prerogatives of the appropriations

1 A Compilation of Messages and Papers of the Presidents 350-51 (New York: Bureau of

National Literature, James D. Richardson, ed.) (October 21, 1803) (hereafter “Richardson”).

Annals of Cong., 8th Cong., 1st sess. 385-419 (1803).

2 Stat. 245, 247 (1803).

Chalfant Robinson, “The Treaty-Making Power of the House of Representatives,” 12 Yale

Rev. 191 (1903). See also Ivan M. Stone,“The House of Representatives and the TreatyMaking Power,” 17 Ky. L. J. 217 (1929).

24 Stat. 975 (1883); 25 Stat. 1370 (1885); 24 Stat. 1018 (1886); 2 Hinds’ Precedents §§

1526-28.

For the development of reciprocal trade legislation, see Louis Fisher, President and

Congress 133-55 (New York: The Free Press, 1972).

CRS-11

and authorization committees were respected. The Senate Resolution of Advice and

Consent contained a declaration that the sums referred to in the Spanish treaty “shall

be made available for obligation through the normal procedures of the Congress,

including the process of prior authorization and annual appropriations.” Congress

enacted legislation in 1976 to authorize the appropriation of funds needed to

implement the Spanish treaty.67

The Spanish Bases Treaty was replaced by an executive agreement in 1982, but

congressional interests were again protected. The agreement stipulated that the supply

of defense articles and services are subject to “the annual authorizations and

appropriations contained in United States security assistance legislation.” Although

the agreement promised support “in the highest amounts, the most favorable terms,

and the widest variety of forms,” it also conditioned such support on what “may be

lawful and feasible.”68 In blunter terms: Spain would get what Congress decided.

The role of the House in international agreements was debated again in 1994

when President Clinton submitted the Uruguay Round Agreements to Congress as a

bill rather than as a treaty. The purpose of the bill was to implement the worldwide

General Agreements on Tariffs and Trade (GATT). Professor Laurence H. Tribe

testified that certain features of the bill would so alter the dynamics of state-federal

relations that ratification of a treaty by two-thirds of the Senate was necessary, given

the Senate’s special role in representing the states as political units.69 However, there

are no clear constitutional guidelines on the types of national policy that must be

included only in a treaty and not in a statute. The subject matter of NAFTA and

GATT—international trade—is certainly within the jurisdiction of Congress as a whole

to “regulate Commerce with foreign Nations” and therefore justifies action by both

Houses through the regular statutory process.70

Exquisite legal and constitutional arguments offered by the executive branch may

have to play second fiddle to the political leverage that Congress can assert. As

previously mentioned, this may involve the simple act of having to appropriate funds

to implement a treaty, elevating the House to equal partnership with the Senate. Either

House may decide to roll out heavy artillery to get the Administration’s attention:

unleashing the impeachment power or holding an executive official in contempt of

Congress. On other occasions the Administration may reluctantly agree to release

sensitive papers and documents because that is the only way to move along the

confirmation process.

90 Stat. 765, § 507; 90 Stat. 2498.

“Agreement on Friendship, Defense, and Cooperation Between the United States of America

and the Kingdom of Spain,” Complementary Agreement Three, Article 2 (signed July 2,

1982).

“S. 2467, GATT Implementing Legislation,” Hearings before the Senate Committee on

Commerce, Science, and Transportation, 103rd Cong., 2nd sess. 302-12 (1994).

Bruce Ackerman and David Golove, “Is NAFTA Constitutional?,” 108 Harv. L. Rev. 799

(1995); Laurence H. Tribe, “Taking Text and Structure Seriously: Reflections on Free-Form

Method in Constitutional Interpretation,” 108 Harv. L. Rev. 1223 (1995).

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The Impeachment Power

When President Washington denied the House the papers it requested regarding

the Jay Treaty, he said that the only ground on which the House might have

legitimately requested the documents was impeachment, “which the resolution has not

expressed.”71 The power of impeachment, said President Polk, gives to the House of

Representatives

the right to investigate the conduct of all public officers under the

Government. This is cheerfully admitted. In such a case the safety of

the Republic would be the supreme law, and the power of the House in

the pursuit of this object would penetrate into the most secret recesses

of the Executive Department. It could command the attendance of any

and every agent of the Government, and compel them to produce all

papers, public or private, official or unofficial, and to testify on oath to

all facts within their knowledge.72

Even short of impeachment, executive privilege is inappropriate when there are

serious charges of administrative malfeasance. President Jackson, a jealous defender

of executive prerogatives, told Congress that if it could “point to any case where there

is the slightest reason to suspect corruption or abuse of trust, no obstacle which I can

remove shall be interposed to prevent the fullest scrutiny by all legal means. The

offices of all the departments will be opened to you, and every proper facility furnished

for this purpose.”73 The Supreme Court has noted that the power of Congress to

conduct investigations “comprehends probes into departments of the Federal

Government to expose corruption, inefficiency or waste.”74

While defending a broad theory of executive privilege, Attorney General William

French Smith in 1982 admitted that he would not try “to shield documents [from

Congress] which contain evidence of criminal or unethical conduct by agency officials

from proper review.”75 During a news conference in 1983, President Reagan said, “We

will never invoke executive privilege to cover up wrongdoing.”76

After the Iran-Contra story broke in November 1986, he permitted his two former

national security advisers (Robert McFarlane and John Poindexter) to testify before

Congress, allowed his Cabinet officials (including Secretary of State George Shultz and

Secretary of Defense Caspar Weinberger) to discuss with Congress their conversations

with the President, and made available to Congress thousands of sensitive, classified

Annals of Cong., 4th Cong., 1st sess. 759 (1796).

5 Richardson 2284 (April 20, 1846).

Cong. Debates, 24th Cong., 2nd sess., vol. 13, part 2, Appendix, at 202, but see entire

discussion at 188-225.

Watkins v. United States, 354 U.S. 178, 187 (1957).

Letter of November 30, 1982, to Congressman John Dingell, reprinted in H. Rept. No. 968,

97th Cong., 2nd sess. 41 (1982).

Public Papers of the Presidents, 1983, I, at 239.

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documents. The reported purpose of this extraordinary cooperation was to forestall

any possibility of an impeachment effort. Attorney General Edwin Meese, III, thought

the Iran-Contra affair had the potential for “toppling” the President and triggering

impeachment proceedings in the House.77

In 1998, the House Committee on Government Reform and Oversight voted to

cite Attorney General Janet Reno for contempt for refusing to release memos

generated within the Justice Department regarding campaign finance issues. The

committee was restricted to reading redacted versions of the memos. The contempt

citation was not taken up by the House, but later that year, as part of an impeachment

effort against President Bill Clinton, certain members and staff of the House Judiciary

Committee gained access to the unredacted versions, and the memos were later

released to the general public.78

The Appointment Power

Until the President submits to the Senate the name of a nominee, Congress has

no grounds for gaining access to the individual’s file. Requests for personnel and

medical files might be regarded by the President as an unwarranted intrusion into

personal privacy. President Grover Cleveland once withheld from the Senate various

papers and documents that pertained to a suspended official. The power to remove,

he said, was solely an executive prerogative and could not be shared or compromised

with the Senate.79 On the other hand, if the President is trying to get someone

confirmed and needs the cooperation and good will of the Senate, he may have to

surrender documents or allow executive officials to testify before congressional

committees.

Senate “Holds”

The informal practice of imposing “holds” allows any Senator to stop floor action

on legislation or nominations. The Majority Leader may then decide “whether, or for

how long, [to] honor a colleague’s hold.”80 Although there have been objections to

“secret holds”––so-called anonymous holds––Senators generally recognize that holds

are often necessary to pursue legitimate legislative interests.

There are many reasons for placing a hold, but often it is to obtain information

that the executive branch has refused to release to Congress. In 1993, Senator John

Theodore Draper, A Very Thin Line: The Iran-Contra Affairs 521 (New York: Hill and

Wang,1991).

For further details, see later in this report under the heading “The Contempt Power.”

Louis Fisher, “Grover Cleveland and the Senate,” 7 Cong. Studies 11 (1979).

Walter Oleszek, “‘Holds’ in the Senate,” CRS Report 98-712 GOV (March 20, 2001).

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Warner announced that he would release his hold on the intelligence authorization bill

after receiving assurance from the CIA that it would search its files for information on

Defense Department nominee Morton Halperin. The CIA had previously said that it

could not find the documents requested by Republican members of the Senate Armed

Services Committee. CIA Director James Woolsey had planned to brief committee

Republicans but apparently was ordered not to do so by White House Counsel Bernard

Nussbaum.81

In 1997, Senator Charles Grassley used holds to force the State Department to

comply with a statutory procedure that required the Administration to consult with

Senators on any unanimous consent agreements involving the Foreign Service

promotion list. After the Administration missed several deadlines and extended

deadlines in submitting the list, he put a hold on nominations for ambassadors to

Bolivia, Haiti, Jamaica, and Belize. As Senator Grassley said, “we need to get the

administration’s attention so that they will abide by the law.”82

In 1999, several Senators wrote to the State Department, expressing their concern

about the department’s treatment of Linda Shenwick, who worked at the U.S. mission

to the United Nations. After giving Congress information on mismanagement at the

UN, she was threatened with a suspension and transfer to another job.83 As a way of

getting the department’s attention, Senator Charles Grassley placed a hold on the

nomination of Richard Holbrooke to be U.S. ambassador to the UN. He explained that

if lawmakers did not protect agency whistleblowers, “a valuable source of information

to Congress will likely dry up.”84 After being reassured that Shenwick would not be

punished by the State Department, Senator Grassley lifted his objections to Holbrooke,

who was confirmed, but blocked approval of three other ambassadorial nominees to

underscore his intention to protect Shenwick.85

Kleindienst Nomination

President Nixon’s nomination of Richard G. Kleindienst in 1972 to be Attorney

General precipitated lengthy hearings by the Senate Judiciary Committee. Columnist

Jack Anderson charged that Kleindienst had lied in disclaiming any role in the Justice

Department’s out-of-court settlement of antitrust cases against International Telephone

and Telegraph Corp. (ITT). The Senate wanted Peter Flanigan, a presidential aide and

the chief White House figure involved in the controversy, to testify. However, on

April 12, 1972, White House Counsel John W. Dean III wrote to the committee that

the doctrine of executive privilege would protect Flanigan and other White House

“CIA Offer of Help on Nominee Frees Up Authorization Bill,” Washington Times,

November 5, 1993, at A5.

143 Cong. Rec. S11631 (daily ed. November 4, 1997).

Statement by Senator Grassley, 145 Cong. Rec. S7587 (daily ed. June 24, 1999); “Sen

Grassley’s ‘hold’” [editorial], The Hill, August 11, 1999, at 10.

Sen. Chuck Grassley, “Holds Practice Needs Big Changes” (letter to the editor), Roll Call,

August 2, 1999, at 4.

“Grassley Shifts Tack; Holbrooke Path Clear,” Washington Times, August 5, 1999, at A6;

“Holbrooke Nomination Clears Hurdle,” Washington Post, August 5, 1999, at A4.

CRS-15

aides from testifying before congressional committees: “Under the doctrine of

separation of powers, and long-established historical precedents, the principle that

members of the President’s immediate staff not appear and testify before congressional

committees with respect to the performance of their duties is firmly established.”86

By 6-6 party-line votes, the committee rejected three motions to subpoena White

House aides to testify.87 Nevertheless, Senator Sam J. Ervin, Jr. made it clear that the

Senate should not vote on Kleindienst “so long as those fellows aren’t coming up here

and the White House is withholding information.”88 With a filibuster looming, the

White House within a few days retreated from Dean’s theory and Flanigan appeared

at the hearings on April 20.89 Following committee action, the Senate confirmed

Kleindienst by a vote of 64 to 19.

Rehnquist for Chief Justice

On July 31, 1986, President Reagan invoked executive privilege to deny to the

Senate certain internal memos that Chief Justice-designee William H. Rehnquist had

written while serving in the Justice Department from 1969 to 1971. The reasons given

for withholding the memos were familiar: to protect the confidentiality and candor of

the legal advice submitted to Presidents and their assistants.90 Nevertheless,

Democrats on the Senate Judiciary Committee began rounding up votes to subpoena

the papers.91 Committee Democrats had agreed with Republicans to vote on both

Rehnquist and Associate Justice-designee Antonin Scalia on August 14, but the

impasse over the papers threatened to delay the votes.92

In an op-ed piece for the Los Angeles Times, Senator Ted Kennedy put the matter

succinctly: “Rehnquist: No Documents, No Senate Confirmation.”93 Hoping to move

the nominations of Rehnquist and Scalia along, President Reagan agreed to a narrowed

request by the committee to read 25 to 30 documents written by Rehnquist during his

career in the Justice Department.94 The eight Democrats on Senate Judiciary picked

“Sen. Ervin Hints Filbuster on Kleindienst After Panel Rejects Calling of Nixon Aide,”

Wall Street Journal, April 13, 1972, at 4.

CQ Almanac, 1972, at 221.

“Panel Votes Not to Subpoena Nixon Aides on I.T.T,” New York Times, April 13, 1972,

at 8.

“Richard G. Kleindienst––Resumed” (Part 3), hearings before the Senate Committee on the

Judiciary, 92nd Cong., 2nd sess. 1585 (1972).

“Reagan Uses Executive Privilege to Keep Rehnquist Memos Secret,” Washington Post,

August 1, 1986, at A1.

“Democrats Seek to Subpoena Papers,” Washington Post, August 2, 1986, at A1.

“Senators to Push for Rehnquist Memos,” Washington Post, August 5, 1986, at A4.

Edward M. Kennedy, “Rehnquist: No Documents, No Senate Confirmation,” Los Angeles

Times, August 5, 1986, Part II, at 5.

“Rehnquist Told in 1974 of Restriction in Deed,” Washington Post, August 6, 1986, at Al.

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up two moderate Republicans to form a majority in favor of a subpoena.95 A few days

later the committee requested and received additional documents prepared by

Rehnquist while in the Justice Department.96 The nominations of Rehnquist and Scalia

then went forward as scheduled.

Nomination of Trott

Two years later the Senate replayed the same drama. The nomination of Stephen

S. Trott for the Ninth Circuit was held up for four months because Senators Ted

Kennedy and Howard Metzenbaum wanted internal documents from the Justice

Department. The two Senators were interested in a report by the Public Integrity

Section concerning the appointment of an independent counsel to investigate Faith

Ryan Whittlesey, former ambassador to Switzerland.97 Refusing to release the

documents, the department explained: “As you know, it is a longstanding policy of the

Department not to provide copies of internal, deliberative memoranda to persons

outside the Department.”98 That may have been “longstanding policy,” but the Trott

nomination would not go anywhere until the department yielded, which it eventually

did. Having received the documents they wanted, Kennedy and Metzenbaum released

their hold.99

An Ambassadorial Position

In 1991, the appointment of the U.S. ambassador to Guyana was held up for 17

months until Senator Jesse Helms got the documents he wanted from the State

Department. During a Helms visit to Chile in 1985, one of his aides was accused of

leaking U.S. intelligence information to the government of former President Augusto

Pinochet. Helms insisted that the State Department show him secret cable traffic

regarding the visit, but the department refused to turn over two cables, which it called

internal memoranda.100

When the deputy chief of mission at the U.S. Embassy in Chile was later

nominated in June 1990 for the position of ambassador to Chile, Helms had the

necessary leverage. After Helms renewed his request for the cables and the State

Department again refused, he blocked the nomination. As the months rolled by and

Helms held firm, Deputy Secretary of State Lawrence S. Eagleburger came to Helms’

Id.

“Senators Are Given More Rehnquist Data,” Washington Post, August 8, 1986, at A3.

“Justice Aide Kept on Hold,” Washington Post, February 23, 1988, at A21.

“Impasse Over Justice Documents Ends,” Washington Post, March 25, 1988, at A23.

Id.

100

“Ambassador to Guyana Is Appointed After 17-Month Standoff,” Washington Post,

November 29, 1991, at A40.

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office one day to show him the memos, which had been critical of both Helms and his

aide. Helms released the hold and the nomination went forward.101

Environmental Crimes

In March 1994, a House subcommittee subpoened the records of six cases

handled by the Environment and Natural Resources Division of the Justice

Department.102 The subcommittee’s request reflected congressional interest for the

past several years in the work of the Environmental Crimes Section (ECS) and the shift

of prosecution responsibilities from U.S. attorneys to Washington officials. In an effort

to mediate the dispute, Attorney General Janet Reno allowed subcommittee staff to

interview line attorneys within ECS.103 President Clinton did not intervene in this

subcommittee-department dispute. White House Communications Director Mark

Gearan announced: “We will not assert any privilege or waiver.”104

In addition to sending the subpoenas, subcommittee chairman John Dingell (DMich.) and ranking minority member Dan Schaefer (R-Colo.) released letters to the

Senate Judiciary Committee asking that the confirmation of Lois Schiffer be delayed.

She had been serving as Acting Attorney General of the Environment and Natural

Resources Division and had been nominated for the position on February 2, 1994.105

Schaefer expressed his concern about her confirmation because of what he described

as “obstruction of the subcommittee’s work on oversight of the nation’s environmental

laws.”106

As the dispute deepened, ECS chief Neil S. Cartusciello announced his

resignation.107 By that time, the subcommittee had begun receiving some of the

documents it had subpoened.108 After Schiffer moved to find a replacement for

Cartusciello, the hearing on her nomination was tentatively scheduled.109 After some

further delays, and after the subcommittee was satisfied with the cooperation it had

received from the Justice Department, Schiffer was confirmed by the Senate on

October 6, 1994.110

101

Id.

102

“House Panel Subpoenas Justice,” Washington Post, March 12, 1994, at A4.

103

Id.

104

Id.

105

Id.

106

Id.

107

“Environmental Crimes Controversy Lingers Under Reno,” Washington Post, April 7,

1994, at A25.

108

“Chief of Environmental Crimes Section Quits,” Washington Post, April 2, 1994, at A4.

109

“Teaming Up,” Washington Post, July 13, 1994, at A15.

110

140 Cong. Rec. 28359-60 (1994). For further details on this controversy, see Damaging

Disarray: Organization Breakdown and reform in the Justice Department’s Environmental

(continued...)

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These examples illustrate that Congress has sufficient tools at its command to

wrest from the executive branch the documents it needs to fulfil congressional duties.

The issue according to one observer is “not the adequacy of congressional power to

obtain information, but the willingness of committee chairs and staffers to aggressively

pursue information.”111

Congressional Subpoenas

The Supreme Court has held that the congressional power of inquiry “is an

essential and appropriate auxiliary to the legislative function.”112 As a tool of this

inquiry, both Houses of Congress authorize their committees and subcommittees to

issue subpoenas to require the production of documents and the attendance of

witnesses regarding matters within the committee’s jurisdiction. The issuance of a

subpoena pursuant to an authorized investigation is “an indispensable ingredient of

lawmaking.”113 To be legitimate, a congressional inquiry need not produce a bill or

legislative measure. “The very nature of the investigative function––like any

research––is that it takes the searchers up some ‘blind alleys’ and into nonproductive

enterprises. To be a valid legislative inquiry there need be no predictable end result.”114

Committee investigations are appropriate when they satisfy certain standards.

Legislative inquiries must be authorized by Congress, pursue a valid legislative

purpose, raise questions pertinent to the issue being investigated, and apprise witnesses

of the pertinency of the questions asked.115 Private citizens, more so than agency

officers, may invoke certain constitutional protections, such as the First Amendment

rights of free association and free speech. Witnesses may claim the Fifth Amendment

privilege against self-incrimination.116 Also, congressional inquiries may not interfere

with adjudicatory proceedings before a department or agency. 117

If a witness refuses to testify or produce papers in response to a committee

subpoena, and the committee votes to report a resolution of contempt to the floor and

110

(...continued)

Crimes Program, a staff report prepared for the use of the Subcommittee on Oversight and

Investigations of the Committee on Energy and Commerce, U.S. House of Representatives,

Committee Print 103-T, 103rd Cong., 2nd sess. (December 1994); Neal Devins,

“Congressional-Executive Information Access Disputes: A Modest Proposal—Do Nothing,”

48 Adm. L. Rev. 109, 123-25 (1996).

111

Devins, “Congressional-Executive Information Access Disputes,” at 133.

112

McGrain v. Daugherty, 272 U.S. 135, 174 (1927).

113

Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 505 (1975).

114

Id. at 509.

115

Wilkinson v. United States, 365 U.S. 399, 408-09 (1961); Ashland Oil, Inc. v. FTC, 409

F.Supp. 297, 305 (1976).

116

Wilkinson v. United States, 365 U.S. at 409.

117

Pillsbury Co. v. FTC, 354 F.2d 952, 963 (5th Cir. 1966).

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one of the chambers votes in support of the contempt citation, the President of the

Senate or the Speaker of the House shall certify the facts to the appropriate U.S.

Attorney, “whose duty it shall be to bring the matter before the grand jury for its

action.”118 Witnesses subject to this process may be found guilty of a misdemeanor

punishable by a fine and imprisonment.119

Immunity

By majority vote of either House or a two-thirds vote of a committee or

subcommittee, Congress may request a federal court to issue an order that compels

witnesses to testify. By surrendering the Fifth Amendment right, witnesses are given

either partial immunity or full immunity. Partial immunity (“use immunity”) means that

their testimony may not be used against them in a criminal case, although the person

might be prosecuted on the basis of other information. Full immunity (“transactional

immunity”) offers absolute protection against prosecution for the offense.

During the Iran-Contra investigation in 1987, Congress offered partial immunity

to several witnesses, including Col. Oliver North. He was later convicted of three

felonies, but those charges were subsequently dismissed because of his immunized

testimony. Under the standards imposed by the D.C. Circuit, prosecutors must show

that a defendant’s testimony could have had no influence on the witnesses called to a

trial. Otherwise, the remarks of the witnesses are “tainted” and may not be used to

convict.120

In such situations Congress decides whether it is more important to inform itself

and the public rather than have a successful prosecution. Lawrence Walsh, the

independent counsel for Iran-Contra, described this setting of national priorities: “If

the Congress decides to grant immunity, there is no way that it can be avoided. They

have the last word and that is a proper distribution of power. . . . The legislative branch

has the power to decide whether it is more important perhaps even to destroy a

prosecution than to hold back testimony they need.”121

The Ashland Case

On October 6, 1975, in his capacity as a Member of Congress, John Moss asked

the Federal Trade Commission to make available to him data gathered by the

commission pertaining to lease extensions on federal lands. FTC denied the request

for the reason that the data sought constituted “trade secrets and commercial or

financial information [and] geological and geophysical information and data, including

maps, concerning wells” and that such materials were exempt from mandatory

118

2 U.S.C. § 194 (1994).

119

Id. at § 192.

120

United States v. North, 910 F.2d 843 (D.C. Cir. 1990), cert. denied, 500 U.S. 941 (1991).

See also United States v. Poindexter, 951 F.2d 369 (D.C. Cir. 1991), cert. denied, 506 U.S.

1021 (1992).

121

Lawrence E. Walsh, “The Independent Counsel and the Separation of Powers,” 25 Houston

L. Rev. 1, 9 (1988).

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disclosure under subsections (b)(4) and (b)(9) of the Freedom of Information Act.122

Moss responded by pointing out that the statute specifically provided that it did not

authorize the withholding of information from Congress, and made a second request,

this time as chairman of the Subcommittee on Oversight and Investigation, for the

material.

After the commission agreed to furnish Moss with the information, Ashland Oil,

Inc., went to court to enjoin the FTC from releasing the data. At that point the

subcommittee issued a subpoena for the FTC chairman to appear and bring the

requested documents. The full House then passed a resolution authorizing Moss to

intervene and appear in the case in order to secure the information needed for his

subcommittee. A federal district court agreed that the data at issue constituted “trade

secret” information within the purview of Section 6(f) of the Federal Trade

Commission Act, but ruled that Ashland Oil had failed to show that release of the

material to the subcommittee would irreparably injure the company. The court

rejected the argument that the transfer of the data from the FTC to the subcommittee

would lead “inexorably to either public dissemination or disclosure to Ashland’s

competitors.” Courts must assume that congressional committees “will exercise their

powers responsibly and with due regard for the rights of affected parties.”123

That decision was affirmed by the D.C. Circuit.124 A dissenting judge concluded

that the subpoena was invalid, but the majority noted that FTC’s decision to turn over

the materials to the subcommittee “was not based on––and in fact predated––issuance

of the subpoena.”125 The commission had agreed to provide Moss with the material

after receiving the letter in his capacity as subcommittee chairman.

DOJ Documents: Seizing Suspects Abroad

Beginning in 1989, Congress held hearings on whether the FBI could seize a

suspect from a foreign country without the cooperation and consent of that country.

On November 8, a subcommittee of the House Judiciary Committee received testimony

from William P. Barr, head of the Office of Legal Counsel (OLC) in the Justice

Department, State Department Legal Adviser Abraham D. Sofaer, and Oliver B.

Revell, Associate Deputy Director of Investigations in the FBI.126 Although OLC

concluded in 1980 that the FBI had no authority to perform such an arrest,127 Barr

explained that OLC reexamined its position and issued an opinion on June 21, 1989,

122

Ashland Oil, Inc. v. F.T.C., 409 F.Supp. 297, 300 (D.D.C. 1976). Subsection (b)(4)

covers “trade secrets and commercial or financial information obtained from a person and

privileged or confidential”; subsection (b)(9) covers “geological and geophysical information

and data, including maps, concerning wells.”

123

Id. at 308.

124

Ashland Oil, Inc. v. F.T.C., 548 F.2d 977 (D.C. Cir. 1976).

125

Id. at 979.

126

“FBI Authority to Seize Suspects Abroad,” Hearing before a subcommittee of the House

Committee on the Judiciary, 101st Cong., lst sess. (1991).

127

4B Op. O.L.C. 543 (1980).

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partially reversing the 1980 opinion.128 Although the first opinion had been published,

Barr said the second “must remain confidential.”129 While insisting on withholding the

1989 opinion, he agreed to explain OLC’s conclusions and its legal reasoning.130

The subcommittee issued a subpoena on July 25, 1991, to obtain the 1989 OLC

memo, arguing that it needed the memo to determine whether it was necessary for

Congress to legislate in this area.131 Initially the Administration decided to fight the

subpoena. Attorney General Dick Thornburgh wrote to the subcommittee on

November 28, explaining why it could not have the 1989 OLC opinion.132 However,

the department decided that it would release the documents to the committee and

allow one or more committee members to review the legal memo.133

DOJ Documents: The Inslaw Affair

On December 5, 1990, Representative Jack Brooks, chairman of the House

Judiciary Committee, convened a hearing to review the refusal of Attorney General

Richard Thornburgh to provide the committee with access to all documents regarding

a dispute brought by Inslaw, Inc., a computer company. Inslaw charged that the

Justice Department had stolen a computer program the company had designed to keep

track of civil and criminal cases.134

On July 25, 1991, the House Judiciary Committee issued a subpoena to Attorney

General Thornburgh. Brooks said he wanted the documents to explore whether the

department had acted illegally by engaging in criminal conspiracy. Thornburgh insisted

that the Inslaw documents amounted to “privileged attorney work products” that could

not be shared with the committee.135 When the committee failed to receive the

materials, Brooks said that the committee would consider contempt of Congress

proceedings against the department.136

128

“FBI Authority to Seize Suspects Abroad, Hearing, at 3.

129

Id. at 4.

130

Id. at 4, 5.

131

“Panel Challenges Thornburgh Over Right to Documents,” CQ Weekly Report, July 27,

1991, at 2080; “Administration to Fight House Panel’s Subpoena,” New York Times, July

30, 1991, at A12.

132

“FBI Authority to Seize Suspects Abroad,” Hearing, at 92-93.

133

“Both Sides Softening Stance on Documents on Foreign Arrests,” New York Times,

August 1, 1991, at B7; “Justice Yields to House, Averting Showdown,” CQ Weekly Report,

August 3, 1991, at 2179.

134

“The Attorney General’s Refusal to Provide Congressional Access to ‘Privileged’ Inslaw

Documents,” Hearing before a subcommittee on the House Committee on the Judiciary, 101st

Cong., 2nd sess. (1990).

135

Paul M. Barrett, “Thornburgh, Brooks Clash Over Charge of Wrongdoing at Justice

Department,” Wall Street Journal, December 10, 1990, at B7A.

136

Susan B. Glasser, “Deadline Passes, But Justice Dept. Still Hasn’t Given Papers to

(continued...)

CRS-22

At that point several hundred documents were delivered to the committee, which

later released a formal investigative report on the Inslaw affair.137 The committee

gained access to sensitive files of the Office of Professional Responsibility (OPR) in the

Justice Department, took sworn statements from Justice officials and employees

without a department attorney present, and received more than 400 documents related

to “ongoing litigation and other highly sensitive matters and ‘protected’ under the

claims of attorney-client and attorney work product privileges.”138

Whitewater Notes

In 1995, the Special Senate Committee to Investigate Whitewater Development

Corporation and Related Matters (the Senate Whitewater Committee) issued a

subpoena for certain documents. The White House announced that it would withhold

material about a November 5, 1993 meeting involving senior presidential aides and

private lawyers, on the ground that the documents were protected by the lawyer-client

privilege and executive privilege. William Kennedy, who at the time was an associate

White House counsel, took extensive notes at the meeting.139 President Clinton said

that he believed “the president ought to have a right to have a confidential conversation

with his minister, his doctor, his lawyer.”140 That argument would apply if a President

met with his private lawyer, but the issue was complicated by the presence of

government lawyers at the meeting.

Within a few days, the White House offered to turn over the Kennedy notes if the

committee agreed that the meeting was privileged. The committee refused because it

learned of other meetings attended by White House officials and private attorneys.

Unable to reach an acceptable compromise, the committee voted to send the issue to

the Senate floor and from there to federal district court.141 On December 20, 1995, the

Senate began consideration of a resolution directing the Senate Legal Counsel to bring

a civil action to enforce the subpoena. In a letter on that day to the committee, White

House Special Counsel Jane Sherburne described various options, stating: “We have

said all along that we are prepared to make the notes public.”142 The resolution passed

136

(...continued)

Brooks,” Roll Call, September 19, 1991.

137

H. Rept. No. 857, 102nd Cong., 2nd sess. (1992).

138

Id. at 92-93.

139

“White House Gives Rationale for Balking at a Subpoena,” New York Times, December

13, 1995, at B14; “White House Rejects Subpoena,” Washington Post, December 13, 1995,

at A1.

140

“Legal Experts Uncertain on Prospects of Clinton Privilege Claim,” Washington Post,

December 14, 1995, at A14.

141

“Compromise on Notes Rejected,” Washington Post, December 15, 1995, at A2.

142

141 Cong. Rec. S18964 (daily ed. December 20, 1995).

CRS-23

the Senate by a vote of 51 to 45.143 On the following day, the White House agreed to

give the notes to the Senate Whitewater Committee.144

The Contempt Power

When executive officials or private persons refuse to comply with a congressional

request to appear before committees, to respond to questions, or to produce

documents, one of the instruments of legislative coercion is the contempt power.

Although the legislative power of contempt is not expressly provided for in the

Constitution and exists as an implied power, as early as 1821 the Supreme Court

recognized that without this power the legislative branch would be “exposed to every

indignity and interruption that rudeness, caprice, or even conspiracy, may mediate

against it.”145 Individuals who refuse to testify or produce papers are subject to

criminal contempt, leading to fines and imprisonment.146

Actions from 1975 to 1981

From 1975 to the start of the Reagan Administration, Congress several times

threatened to hold executive officials in contempt for refusing the cooperate with

congressional committees. In the end, the committees obtained access to the requested

documents.

Rogers C. B. Morton. A 1975 tug of war between the branches, with Congress

the eventual victor, concerned reports compiled by the Department of Commerce

identifying the U.S. companies that had been asked to join a boycott of companies

doing business with Israel. Secretary of Commerce Rogers Morton refused to release

the documents to a House Interstate and Foreign Commerce subcommittee, citing the

following language from Section 7(c) of the Export Administration Act of 1969:

No department, agency, or official exercising any functions under this

Act shall publish or disclose information obtained hereunder which is

deemed confidential or with reference to which a request for confidential

treatment is made by the person furnishing such information, unless the

head of such department or agency determines that the withholding

thereof is contrary to the national interest.147

143

Id. at S18993.

144

“Whitewater Notes Being Surrendered,” Washington Post, December 22, 1995, at A1.

145

Anderson v. Dunn, 6 Wheat. (19 U.S.) 204, 228 (1821). For legal analysis of the

legislative contempt power, see “Congressional Oversight Manual,” CRS Report RL 30240

(June 25, 1999), at 35-36.

146

147

2 U.S.C. §§ 192, 194 (1994).

Letter of July 24, 1975, from Secretary Morton to John E. Moss, chairman of the

Subcommittee on Oversight and Investigations, House Committee on Interstate and Foreign

Relations, reprinted in “Contempt Proceedings Against Secretary of Commerce, Rogers C.

B. Morton,” hearings before the Subcommittee on Oversight and Investigations of the House

(continued...)

CRS-24

In his letter of July 24, 1975, to the subcommittee, Morton said he understood the

need to provide Congress “with adequate information on which to legislate,” but

concluded that “disclosing the identity of reporting firms would accomplish little other

than to expose such firms to possible economic retaliation by certain private groups

merely because they reported a boycott request, whether or not they complied with

that request.”148 On July 28, the subcommittee issued a subpoena. On August 22, in

a letter to the committee, Morton again reiterated his refusal to release the documents,

explaining that his decision was not based “on any claim of executive privilege, but

rather on the exercise of the statutory discretion conferred upon me by the

Congress.”149 However, he said he was prepared to make copies of the documents

available, “subject only to deletion of any information which would disclose the identity

of the firms reporting, and the details of the commercial transactions involved.”150

At subcommittee hearings on September 22, Representative John E. Moss,

chairman of the subcommittee seeking the documents, told Secretary Morton that

Section 7(c) did not “in any way refer to the Congress nor does the Chair believe that

any acceptable interpretation of that section could reach the result that Congress by

implication had surrendered its legislative and oversight authority under Article I and

the Rules of the House of Representatives.”151 Morton told Moss that he had been

advised by Attorney General Edward Levi not to make the documents available to the

committee.152 On November 11, the subcommittee voted 10 to 5 to find Morton in

contempt for failure to comply with the subpoena of July 28.153 The prospect of

contempt proceedings was sufficient incentive for Morton to release the material to the

subcommittee.154

Congress passed legislation in 1977 to specify that Section 7(c) does not

authorize the withholding of information from Congress, and that any information

obtained under the Export Administration Act “shall be made available upon request

to any committee or subcommittee of Congress of appropriate jurisdiction. No such

committee or subcommittee shall disclose any information obtained under this Act

which is submitted on a confidential basis unless the full committee determines that the

withholding thereof is contrary to the national interest.”155

147

(...continued)

Committee on Interstate and Foreign Commerce, 94th Cong., 1st sess. 153 (1975).

148

Id. at 153-54 (emphasis in original).

149

Id. at 158.

150

Id.

151

Id. at 4.

152

Id. at 6. For Levi’s September 4, 1975 letter to Morton, see 173-75.

153

Id. at 137.

154

1975 CQ Almanac, at 343-44. See also 121 Cong. Rec. 3872-76, 36038-39, 40230,

40768-69 (1975).

155

91 Stat. 241, § 113 (1977), amending 83 Stat. 845, § 7(c) (1969).

CRS-25

Joseph A. Califano, Jr. In 1978, a subcommittee of the House Committee on

Interstate and Foreign Commerce began an investigation of the manufacturing process

used by drug companies for making generic drugs and pricing brand-name drugs. The

panel looked into charges that drug companies merely put trade names on drugs

manufactured by general drug firms and sold them at much higher prices. One way to

claim manufacturing responsibility was for a trade name company to put an employee

in a general drug house while the product was being manufactured. In order to learn

more about this “man-in-the-plant” strategy, the subcommittee requested documents

from the Department of Health, Education, and Welfare. Legislation (H.R. 12980) had

been introduced to limit or eliminate the man-in-the-plant practice.156

In July, the subcommittee sent several letters to HEW Secretary Joseph A.

Califano, Jr. for the documents. Failing to receive the material, the subcommittee

agreed on July 27 to subpoena Califano. The subpoena signed by the full committee

was dated August 4. In a memo dated August 9, the Justice Department took the

position that language in the Food, Drug, and Cosmetic Act, prohibiting FDA

employees from disclosing trade secret information, justified the withholding of the

material from the subcommittee. The memo argued:

Where an agency is barred by statute from disclosing certain

information, congressional committees have no right to that information

unless there is a clearly expressed congressional intent to exclude

committee access from the general restriction on disclosure. . . .

. . . Indeed, it is significant that section 301(j) explicitly provides

for disclosure to one of the coordinate branches of government, i.e., the

courts, but makes no comparable provision for disclosure to committees

of the Congress.157

The subcommittee met with Califano on August 16, at which time he produced

some material but also stated that any documents given to the subcommittee related

to trade secret information and the manufacturing process would be blackened out

because of the Justice Department legal analysis.158 Subcommittee chairman John

Moss made it clear that the blackened out material did not comply with the subpoena.

Califano explained that his refusal to release the unredacted material had nothing to do

with separation of powers or executive privilege, but rather with statutory language

that prohibited the release of trade secret information. Congress, he said, “has the

power to change that statute.”159

The subcommittee then voted 9 to 8 to find Califano in contempt for failing to

comply with the subpoena.160 A month later, the subcommittee dropped the contempt

156

“Contempt Proceedings Against Secretary of HEW Joseph A. Califano, Jr.,” Committee

Print No. 95-76, 95th Cong., 2nd sess. 1-2 (1978).

157

Id. at 7, 10.

158

Id. at 4.

159

Id. at 18.

160

Id. at 87. See “House Panel Votes Contempt Citation Against Califano,” Wall Street

(continued...)

CRS-26

action after Califano turned over the materials that had been subpoenaed. He

explained that a further review by the department of the withheld material disclosed

that some information had been “inappropriately deleted” from documents given to the

panel.161

Charles W. Duncan, Jr. On April 2, 1980, President Carter imposed a fee on

imported oil and gasoline in an effort to reduce domestic consumption. A

subcommittee of the House Government Operations Committee requested in writing,

on April 8, certain categories of material from the Department of Energy (DOE). With

no documents delivered, the subcommittee held a hearing on April 16 to investigate

the delay. Thomas Newkirk, the department’s Deputy General Counsel for

Regulation, told the subcommittee that he was “not prepared to submit the documents

at this time” because White House Counsel Lloyd Cutler was reviewing a pile of

documents “between a foot and 18 inches high.”162 Newkirk thought the documents

might be subject to the claim of executive privilege because they revealed the

“deliberative process underlying the President’s decision to impose the gasoline

conservation fee.”163 The subcommittee voted unanimously to instruct Newkirk to

deliver the documents by 5 o’clock that evening.164

After the department failed to meet the deadline, the subcommittee voted

unanimously on April 22 to subpoena the materials from Energy Secretary Charles W.

Duncan, Jr. On the following day, the subcommittee received 28 documents but also

a letter from Duncan explaining that to the extent the subcommittee request involved

“deliberative materials underlying a major Presidential decision,” it would “seriously

undermine the ability of the Chief Executive and his Cabinet Officers to obtain frank

legal and policy advice from their advisors.”165 Newkirk appeared before the

subcommittee on April 24 to state that the department would not comply in full with

the subcommittee’s request of April 8, but did not rest his case on executive

privilege.166 By a vote of 9-0, the subcommittee subpoenaed Duncan to appear before

the subcommittee on April 29 and bring the requested documents.167

160

(...continued)

Journal, August 17, 1978, at 6; “House Panel Backs Contempt Citation After Califano

Refuses to Yield Data,” Washington Post, August 17, 1978, at A2; “Moss v. Califano”

(editorial), Washington Post, August 18, 1978, at A18.

161

“House Unit Ends Bid To Cite for Contempt HEW Chief Califano,” Wall Street Journal,

September 22, 1978, at 10.

162

“The Petroleum Import Fee: Department of Energy Oversight,” Hearings before a

Subcommittee of the House Government Operations Committee, 96th Cong., 2nd sess. 3, 27

(1980).

163

Id. at 5.

164

Id. at 35.

165

Id. at 100.

166

Id. at 98-100.

167

Id. at 116-17. See “House Unit Subpoenas Duncan,” New York Times, April 25, 1980,

at D3.

CRS-27

Duncan, appearing at the April 29 hearing, told the subcommittee: “I must decline

to turn over the documents and I do not have them with me at this time.”168 However,

he also offered to allow the subcommittee chairman and the ranking minority member

to review the documents “in confidence to assist in defining that request.”169

Representative Paul McCloskey (the ranking minority member) objected that “the idea

that two members of a nine-member committee should be trusted and some should not

be is repugnant to the rules of the House.”170 After further efforts to reach an

accommodation failed, the subcommittee voted 8 to 0 to hold Duncan in contempt for

not complying with the April 24 subpoena.171

The subcommittee held another hearing on May 14, with Secretary Duncan again

in attendance. Representative Toby Moffett, subcommittee chairman, announced that

“at long last the subcommittee has been provided with every document it feels it needs

to conduct its inquiry. Subcommittee members and staff have seen every document

specifically demanded under the subpena we issued April 24, and any document we

deemed useful to this investigation has now been produced.”172 On the previous day,

a federal district court had struck down Carter’s April 2 proclamation as invalid, either

under the President’s inherent power or under statutory authority. 173 A White House

spokesman said that he didn’t think executive privilege was ever formally asserted,

either by President Carter or Secretary Duncan, although there was consideration of

doing so.174 In any event, the subcommittee received the material it requested.175

James B. Edwards. The following year, Secretary of Energy James B. Edwards

narrowly avoided a contempt citation from the House Government Operations

Committee. The dispute involved legislative access to documents regarding contract

negotiations between the Energy Department and the Union Oil Company to build an

oil shale plant in Colorado. Committee members were concerned that the department

was moving too hastily in awarding billions of dollars in federal subsidies to major oil

companies, particularly prior to the Reagan Administration’s plans to create a

Synthetic Fuels Corporation.176 Failing to obtain the requested materials, the

168

“The Petroleum Import Fee,” Hearings, at 122.

169

Id. at 123.

170

Id.

171

Id. at 139. See “House Unit Cites Duncan For Gas-Tax Contempt,” New York Times,

April 30, 1980, at D18.

172

“The Petroleum Import Fee,” Hearings, at 142. See also “President’s Oil Import Fee

Assailed in Congress, Court,” CQ Weekly Report, May 17, 1980, at 1308; “Carter Foiled in

First Tilt With Executive Privilege,” CQ Weekly Report, May 17, 1980, at 1352.

173

Independent Gasoline Marketers Council v. Duncan, 492 F.Supp. 614 (D.D.C. 1980).

174

“Executive Privilege, Revisited,” CQ Weekly Report, June 21, 1980, at 1753.

175

The subcommittee’s confrontation with Secretary Duncan, including correspondence,

appears in H. Rept. No. 96-1099, 96th Cong., 2nd sess. 18-30, 33-56 (1980).

176

“DOE’s Enforcement of Alleged Pricing Violations by the Nation’s Major Oil Companies,”

Hearing before a Subcommittee of the House Committee on Government Operations, 97th

(continued...)

CRS-28

Environment, Energy and Natural Resources Subcommittee voted 6 to 4 on July 23

to hold Edwards in contempt.

The issue was complicated by division within the Administration. Edwards

wanted to sign the contract, but OMB Director David Stockman opposed federal

subsidies to the synthetic fuels program and had taken steps to block the contract with

Union Oil.177 The full committee was scheduled to vote on the contempt citation on

the morning of July 30, 1981. Edwards said he would not produce the documents until

the contract between the Energy Department and Union Oil had been signed. President

Reagan agreed to the project and officials from the Energy Department and Union

signed the contract. Thirteen boxes of documents on the contract negotiations were

delivered to the committee.178

Gorsuch Contempt

The examples above describe threats to hold an executive official in contempt.

In 1982, the House actually voted on contempt. Anne (Gorsuch) Burford,

Administrator of the Environmental Protection Agency (EPA), refused to release

certain documents. The House Public Works Committee, seeking documents on the

EPA’s enforcement of the “Superfund” program, was advised by the agency that there

would be no objection “so long as the confidentiality of the information in those files

was maintained.”179 Shortly thereafter the Reagan Administration decided that

Congress, under any circumstances, could not see documents in active litigation files.180

A memorandum from President Reagan to Gorsuch claimed that the documents in

question represented “internal deliberative materials containing enforcement strategy

and statements of the Government’s position on various legal issues which may be

raised in enforcement actions relative to the various hazardous waste sites” by the EPA

or the Justice Department.181 The implication, which Congress rejected, was that

congressional oversight would have to be put on hold for years until the government

completed its enforcement and litigation actions.

Following the committee action to hold Gorsuch in contempt, the House of

Representatives voted 259 to 105 to support the contempt citation. Fifty-five

Republicans joined 204 Democrats to create the top-heavy majority. 182 After the

matter had a short detour to court, the Administration eventually agreed to release

176

(...continued)

Cong., 1st sess. 2, 57-60 (1981).

177

“Reagan Overrides Stockman, Backs Edwards on Synfuel,” Washington Post, July 30,

1981, at A2.

178

“Edwards’ Contempt Citation Headed Off by Approval of Synthetic Fuel Contract,” CQ

Weekly Report, August 1, 1981, at 1425.

179

H. Rept. No. 968, 97th Cong., 2nd sess. 11 (1982).

180

Id. at 15, 21.

181

Id. at 42, 76.

182

128 Cong. Rec. 31746-76 (1982).

CRS-29

“enforcement sensitive” documents to Congress.183 Although the legislative branch

eventually prevailed, the litigation highlighted a serious weakness with the contempt

process. If the President opposes the release of documents to Congress, there is little

likelihood that the Justice Department will vigorously prosecute someone in the

Administration who is doing the President’s bidding. At the very least, the ability of

the Administration to take the matter to court can delay the delivery of documents to

Congress.184

Contempt Move Against Quinn

The House Committee on Government Reform and Oversight conducted a

detailed inquiry into the 1993 firings of seven Travel Office employees at the Clinton

White House. The committee received the documents it requested from the Justice

Department and other federal agencies, but in September 1995 the White House

informed the panel that President Clinton might claim executive privilege and refuse

to turn over some or all of 907 documents.185

In January 1996, the committee subpoenaed the records from the White House,

and in May it announced that it would hold the White House in contempt unless it

turned over the materials.186 On May 10, the committee voted 27 to 19 to hold White

House Counsel Jack Quinn in contempt. It also voted to hold two others in contempt:

former White House Director of Administration David Watkins and his aide, Matthew

Moore.187 Committee chairman Representative William F. Clinger said he would delay

the next step, sending the contempt citation to the House for a vote, to leave open the

possibility of an accommodation with the White House.188 He offered to have Quinn

come before the committee before floor action.189 The disputed documents were

eventually released to the committee, just hours before the House was scheduled to

183

United States v. House of Representatives, 556 F.Supp. 150 (D.D.C. 1983); H. Rept. No.

323, 98th Cong., 1st sess. 18-40 (1983).

184

Stanley M. Brand and Sean Connelly, “Constitutional Confrontations: Preserving a Prompt

and Orderly Means by Which Congress May Enforce Investigative Demands Against

Executive Branch Officials,” 36 Cath. U. L. Rev. 71, 79-81 (1986).

185

“Clinton May Assert Executive Privilege,” Washington Post, September 8, 1995, at A11.

186

“House Prober Presses Demand for Travel Office Documents,” Washington Post, May 3,

1996, at A2.

187

“Business Meeting in the Proceedings Against John M. Quinn, David Watkins, and

Matthew Moore, as part of the Committee Investigation Into the White House Travel Office

Matter,” House Committee on Government Reform and Oversight, 104th Cong., 2nd sess. 88

(Committee Print, June 1996); “House Panel Votes for Contempt Citation,” Washington Post,

May 10, 1996, at A4.

188

189

“Panel Moves to Gain Travel Office Files,” NewYork Times, May 10, 1996, at A26.

“Business Meeting in the Proceedings Against John M. Quinn, David Watkins, and

Matthew Moore,” at 46.

CRS-30

take up the contempt vote. The White House also provided an 11-page list of about

2,000 Travel Office documents for which it made a claim of executive privilege.190

Contempt Action Against Reno

On July 27, 1998, the Justice Department refused to turn over two internal

documents that urged Attorney General Janet Reno to appoint an independent counsel

in the campaign finance investigation. The House Government Reform and Oversight

Committee had subpoened a 27-page memo to Reno by FBI Director Louis J. Freeh

and a 94-page report by Charles G. LaBella, former head of the department’s campaign

finance task force.191 After this refusal, the House committee voted 24 to 19 on

August 6 to cite Reno for contempt. She warned that release of the documents would

“provide criminals, targets and defense lawyers alike with a road map to our

investigations.”192

Reno, offering to give the committee a confidential briefing on the documents,

accused the panel of “political tampering” with her prosecutorial independence.193 A

few weeks later, she gave committee chairman Dan Burton access to heavily redacted

versions of the memos, leaving him roughly 30% to read.194 Burton asked Reno to

allow three former prosecutors and a former White House deputy counsel to review

the memos and give their opinions to him and to the House Republican leadership. She

rejected that proposal. 195 She did agree, however, to allow six other Republican

members of the committee to view the redacted copy, but insisted that Burton

withdraw the subpoena and drop the contempt citation.196 After these attempts to find

common ground failed, Burton moved forward with the contempt citation. Although

the committee recommended holding Reno in contempt, the matter was not taken to

the floor for House action.

190

“White House Gives Committee More Papers in Dismissal Case,” New York Times, May

31, 1996, at A20; “White House Gives Congress 1,000 Pages of Travel Office Papers,”

Washington Post, May 31, 1996, at A10. The contempt actions against Quinn, Watkins, and

Moore are summarized in H. Rept. No. 104-598, 104th Cong., 2nd sess. (1996). See also

“Correspondence Between the White House and Congress in the Proceedings Against John

M. Quinn, David Watkins, and Matthew Moore,” a report by the House Committee on

Government Reform and Oversight, 104th Cong., 2nd sess. (Committee Print, May 1996).

191

“Justice Dept. Defies House Subpoena for Campaign Finance Probe Memos,” Washington

Post, July 28, 1998, at A8.

192

“House Panel Votes to Hold Reno in Contempt,” Washington Post, August 7, 1998, at A1.

193

“Panel Steps Up Confrontation Over Campaign Finance Memos, Voting to Cite Reno for

Contempt,” CQ Weekly Report, August 8, 1998, at 2175. For background documents on the

contempt citation against Reno, see “Contempt of Congress,” Report by the House Committee

on Government Reform and Oversight, H. Rept. No. 105-728, 105th Cong., 2nd sess.

(September 17, 1998).

194

“Reno Still Faces Citation for Contempt,” CQ Weekly Report, September 5, 1998, at

2330.

195

“Burton Pushes Contempt Against Reno,” Roll Call, September 21, 1998, at 3.

196

“The Contempt Citation,” Washington Post, September 22, 1998, at A16.

CRS-31

As part of the impeachment action against President Clinton, members of the

House Judiciary Committee eventually saw the Freeh and LaBella documents. On

December 2, 1998, U.S. District Judge Norma Holloway Johnson granted the

committee access to the two memos.197 On June 6, 2000, the House Government

Reform Committee released the Freeh and LaBella memos along with other Justice

Department documents related to the appointment of an independent counsel to

investigate campaign finance issues.198 WorldNetDaily made the two memos available

to the general public on its webside (www.worldnetdaily.com).

House Resolutions of Inquiry

A House resolution of inquiry “is a simple resolution making a direct request or

demand of the President or the head of an executive department to furnish the House

of Representatives with specific factual information in the possession of the executive

branch.”199 It is the practice to use the word “request” in asking for information from

the President, and “direct” when addressing department heads. The resolution of

inquiry is privileged and may be considered at any time after it is properly reported or

discharged from committee. The privileged status applies only to requests for facts

within the Administration’s control and not for opinions or investigations.200 If a

resolution of inquiry is not reported to the House within 14 legislative days after its

introduction, a motion to discharge the committee is privileged. Typically, the House

debates a resolution of inquiry for no more than one hour before voting on it.

There is no counterpart in current Senate practice for resolutions of inquiry,

although there are precedents dating to the end of the 19th century and an effort in

1926.201 Nothing prevents the Senate from passing such resolutions, but apparently

the Senate is satisfied with the leverage it has through other legislative means,

including the nomination process and Senate “holds.” Unlike the House, the Senate

has no special practices for expediting consideration through committee discharge or

non-debatable motions, and resolutions are not generally privileged for immediate

consideration.202

House resolutions of inquiry sometimes give the Administration discretion in

providing factual information to Congress. For example, in 1971 the House

considered a resolution directing the Secretary of State to furnish certain information

197

“Justice Memos May Yield Very Little,” Washington Post, December 3, 1998, at A18.

198

“Memos: Reno Was Warned,” Washington Post, June 7, 2000, at A1.

199

Deschler’s Precedents, H. Doc. No. 94-661, 94th Cong., 2nd sess., vol. 7, ch. 24, § 8.

200

Id. See also House Rule XIII, Cl. 7 (Rules of the House of Representatives, H. Doc. No.

106-320, 106th Cong., 2nd sess. 618 (2001)).

201

Riddick’s Senate Procedure, S. Doc. No. 101-28, 101st Cong., 2nd sess. 799, 1205 (1992).

The effort in 1926 was challenged on a point of order. When the sponsor of the resolution

asked for unanimous consent to proceed, there was objection. 67 Cong. Rec. 2658-59, 266162, 2663.

202

Riddicks’s Senate Procedure, at 1204.

CRS-32

respecting U.S. operations in Laos, but the language of the resolution included the

phrase “to the extent not incompatible with the public interest.”203 This particular

resolution was tabled, 261 to 118.204 In 1979, in the midst of an energy crisis, a

resolution of inquiry (H. Res. 291) requesting certain facts from the President

regarding shortages of crude oil and refined petroleum products, refinery capacity

utilization, and related matters was adopted 340 to 4.205

A more recent use of a resolution of inquiry occurred in 1995, after the Clinton

Administration offered a multibillion dollar rescue package to Mexico. As initially

introduced by Representative Marcy Kaptur, the resolution (H. Res. 80) did not

contain discretion for the Administration. It requested the President, within 14 days

after the adoption of the resolution, “to submit information to the House of

Representatives concerning actions taken through the exchange stabilization fund to

strengthen the Mexican peso and stabilize the economy of Mexico.” The House

Banking Committee voted 37 to 5 to report the resolution, but with a substitute

directing the President to submit the documents “if not inconsistent with the public

interest.”206 On March 1, the House adopted the committee substitute and agreed to

the resolution, 407 to 21.207

Although the resolution established a deadline of 14 days, White House Counsel

Abner J. Mikva sent a letter to Speaker Newt Gingrich that the Administration would

not be able to provide the documentary material until May 15, or two months after the

date set in the resolution.208 By April 6, the Treasury Department had supplied

Congress with 3,200 pages of unclassified documents and 475 pages of classified

documents, with additional materials promised.209 Treasury said it was in “substantial

compliance” with the resolution.210

GAO Investigations

Congress created the General Accounting Office in 1921 to strengthen legislative

control over executive agencies. The Comptroller General, as head of GAO, was

directed to investigate “all matters relating to the receipt, disbursement, and application

203

117 Cong. Rec. 23800 (1971).

204

Id. at 23807. See “Laos Secrets: House Defeat of Disclosure Move,” CQ Weekly Report,

July 9, 1971, pp. 1463-66.

205

125 Cong. Rec. 15039 (1979).

206

141 Cong. Rec. 6409 (1995).

207

Id. at 6422.

208

“House GOP Considers Stance on Bailout of Mexico,” CQ Weekly Report, March 25,

1995, at 880.

209

“Treasury Says Congress Given Papers on Mexico,” Washington Post, April 7, 1995, at

F1.

210

1995 CQ Almanac at 10-17.

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of public funds.”211 To enable the Comptroller General to perform that function,

departments and establishments “shall furnish” information regarding the powers,

duties, activities, organization, financial transactions, and methods of business “as he

may from time to time require of them.”212 He and his assistants were to “have access

to and the right to examine any books, documents, papers, or records of any such

department or establishment.”213

Comparable language appears in current law. The Comptroller General shall

investigate “all matters related to the receipt, disbursement, and use of public

money.”214 However, the scope of that investigative power is qualified by other

statutory provisions. When an agency record is not made available to the Comptroller

General “within a reasonable time,” the Comptroller General may make a written

request to the agency head, who has 20 days to describe the record withheld and the

reason for its withholding. If the Comptroller General is not given an opportunity to

inspect the record within the 20-day period, the Comptroller General may file a report

with the President, the OMB Director, the Attorney General, the agency head, and

Congress. Moreover, the Comptroller General may bring a civil action in federal court

to require the agency head to produce a record and may subpoena a record of a person

“not in the United States Government.”215

However, the Comptroller General may not bring a civil action or issue a

subpoena if the record relates to activities the President designates as “foreign

intelligence or counterintelligence activities;” or if the record is specifically exempted

from disclosure to the Comptroller General by a statute that “without discretion

requires that the record be withheld from the Comptroller General,” establishes

particular criteria for withholding the record from the Comptroller General, or refers

to particular types of records to be withheld from the Comptroller General; or by the

20th day after the Comptroller General files a report regarding the withholding of a

record the President or the OMB Director certifies to the Comptroller General and

Congress that the record could be withheld under Exemptions 5 or 7 of the Freedom

of Information Act “and disclosure reasonably could be expected to impair

substantially the operations of the Government.”216 These procedures, however, do

not “authorize information to be withheld from Congress.”217

A 1960 Senate document provided examples over the previous five years in which

the Defense Department, the State Department, and the National Aeronautics and

211

42 Stat. 25, § 312(a) (1921).

212

Id. at 26, § 313.

213

Id.

214

31 U.S.C. § 712 (1994).

215

Id. at §§ 716(b), 716(c).

216

Id. at § 716(d). Exemption 5 of the FOIA refers to “inter-agency or intra-agency

memorandums or letters which would not be available by law to a party other than an agency

in litigation with the agency,” while Exemption 7 covers certain records or information

compiled for law enforcement purposes. 5 U.S.C. § 552(b).

217

Id. at § 716(e)(3).

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Space Administration (NASA) had withheld information from GAO. These conflicts

were reported to the Senate Committee on Government Operations and to other

committees, sometimes leading to a resolution of the dispute and sometimes not.218 In

the case of the State Department, Congress subsequently passed legislation to assist

GAO in obtaining documents, even to the point of providing for a cutoff of funds 35

days after a refusal has been made to GAO or pertinent congressional committees,

unless the information is delivered or the President certifies that he has forbidden its

release and given his reasons.219

In 1972, Deputy Comptroller General Robert F. Keller told a congressional

committee that GAO had received good cooperation in obtaining access to executive

records except the State Department, the Defense Department, and certain activities

of the Treasury Department, the Federal Deposit Insurance Corporation, and the

Emergency Loan Guarantee Board. He said that GAO had been experiencing

“increasing difficulties” in obtaining access to information for programs involving U.S.

relations with foreign countries.220 In 1975, Comptroller General Elmer B. Staats told

a House committee that GAO did not know how much the United States spent on

intelligence. GAO had stopped auditing CIA expenditures in 1962 after being unable

to obtain information, and had difficulty in getting information from other intelligence

agencies, including the National Security Agency and the Defense Intelligence

Agency.221

A 1979 study by Joseph Pois, a lawyer and professor of public administration,

includes a chapter on GAO’s access to information in executive agency and

contractors’ files and records. Much of the chapter is devoted to continuing GAO

difficulty in obtaining documents from the Defense Department. Even when GAO

ultimately prevailed or negotiated an acceptable compromise, lengthy delays detracted

from the timeliness and usefulness of the eventual report.222

More recent studies describe the problems that GAO encounters in seeking

information from the executive branch. A 1996 GAO report on National Intelligence

Estimates (NIEs) stated that the scope of the study “was significantly impaired” by a

lack of cooperation from the CIA, the National Intelligence Council, and the

Departments of Defense and State. Officials from Defense and State referred GAO to

CIA, which declined to cooperate, explaining that GAO review of certain NIEs would

be contrary to oversight arrangements that Congress had established.223 GAO has

requested statutory authority to expand its oversight role of CIA but has not received

it.

218

S. Doc. No. 108, 86th Cong., 2nd sess. (1960).

219

Id. at 11-12; 73 Stat. 254, § 401(i) (1959); 73 Stat. 720, § 111(d) (1959).

220

118 Cong. 18121 (1972).

221

“GAO Is Unable To Give Costs Of Intelligence,” Washington Post, August 1, 1975, at A2.

222

Joseph Pois, Watchdog on the Potomac: A Study of the Comptroller General of the United

States 115-59 (Washington, D.C.: University Press of America, 1979).

223

U.S. General Accounting Office, “Foreign Missile Threats: Analytic Soundness of Certain

National Intelligence Estimates,” GAO/NSIAD-96-225, B-274120, August 1996, at 15.

CRS-35

At House hearings in 1997, a GAO official described the problems that he and his

colleagues had encountered in conducting a review of counternarcotics activities in

Colombia. A lengthy screening program within the State Department delayed by

several months delivery of documents to GAO. Moreover, the department denied

access to some documents and deleted or redacted information from others. 224 The

experience contrasted with State Department cooperation the previous two years when

GAO conducted counternarcotics reviews in Colombia, Mexico, Bolivia, and Peru.225

In 1997, a subcommittee of the House Appropriations Committee held hearings

on GAO’s investigation of allegations that there had been 938 overnight guests in the

Executive Residence of the White House. The subcommittee wanted to know whether

the $550,000 in overtime pay for 36 full-time White House employees (maids, butlers,

chefs, housekeepers, doormen, etc.) was related to these overnight stays. Seven

months after the subcommittee had ordered the investigation, GAO was unable to

comply because information had been withheld by the White House. The information

was denied to GAO to “preserve the privacy of the First Family.” 226 GAO had audited

the Executive Residence in previous years without difficulty. 227

On March 6, 2001, the GAO reported to the House Committee on International

Relations regarding its study about U.S. participation in UN peacekeeping operations.

After the Departments of State and Defense and the National Security Council had

failed to provide GAO access to the records it requested, the Comptroller General

issued “demand letters” to the head of each agency. After almost nine months of

effort, GAO obtained from State “reasonable access” to records. Following the

demand letter, Defense provided some material but GAO had access to only about

one-quarter of the Defense records it had requested and many of those were heavily

redacted. The NSC responded by denying GAO “full and complete access to the

records.”228

Testimony by White House Officials

When White House aides are asked to testify, Administrations frequently advise

Congress that under “long-established” precedents the immediate staff of a President

do not appear before committees. In fact, given the right political conditions, they do

224

“International Drug Control Policy: Colombia,” Hearing before the Subcommittee on

National Security, International Affairs, and Criminal Justice of the House Committee on

Government Reform and Oversight, 105th Cong., 1st sess. 70 (1997).

225

Id. at 73.

226

“Treasury, Postal Service, and General Government Appropriations for Fiscal Year 1998

(Part 6: GAO Investigation of the White House),” Hearings before a Subcommittee of the

House Committee on Appropriations, 105th Cong., 1st sess. 7 (1997).

227

228

Id. at 11.

U.S. General Accounting Office, March 6, 2001 letter to The Honorable Henry J. Hyde,

Chairman, Committee on International Relations, and The Honorable Benjamin Gilman,

Chairman, Subcommittee on the Middle East and South Asia, “Subject: U.N. Peacekeeping:

GAO’s Access to Records on Executive Branch Decision-making,” at 2.

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appear and have appeared in great numbers. The previous section on the appointment

power explained how presidential aide Peter Flanigan testified in 1972 as part of the

Kleindienst nomination to be Attorney General. There are many other examples.

On March 2, 1973, President Richard Nixon objected to the appearance of White

House Counsel John Dean at congressional hearings. Nixon said that “no President

could ever agree to allow the Counsel to the President to go down and testify before

a committee.”229 He later elaborated on the reasons for refusing to allow White House

aides to testify:

Under the doctrine of separation of powers, the manner in which the

President personally exercises his assigned powers is not subject to

questioning by another branch of Government. If the President is not

subject to such questioning, it is equally appropriate that members of his

staff not be so questioned, for their roles are in effect an extension of the

Presidency.230

In a statement on March 15, Nixon offered other reasons for denying Congress

the right to question Dean at legislative hearings: “Mr. Dean is Counsel to the White

House. He is also one who was counsel to a number of people on the White House

Staff. He had, in effect, what I would call a double privilege, the lawyer-client

relationship, as well as the Presidential privilege.”231 He repeated his position that

members of the White House staff “will not appear before a committee of Congress in

any formal session.”232

However, on April 17, Nixon agreed to allow White House aides to testify before

the Senate Select Committee on Presidential Campaign Activities, provided they

adhere to four ground rules: White House aides would appear, in the first instance, in

executive session, if appropriate; executive privilege would be expressly reserved and

could be asserted during the course of the hearing to any question; the proceedings

could be televised; and all members of the White House staff would appear

“voluntarily” and testify under oath to “answer fully all proper questions.”233

On July 7, Nixon relaxed some of those guidelines. He directed that the right of

executive privilege concerning possible criminal conduct “no longer be invoked for

present or former members of the White House staff.”234 He also agreed to permit “the

unrestricted testimony of present and former White House staff members” before the

committee.235 Beginning on May 17 and continuing until September 23, 1975, a

number of White House aides testified before the committee, including John Dean, Jeb

229

Public Papers of the Presidents, 1973, at 160.

230

Id. at 185.

231

Id. at 203.

232

Id. at 211.

233

Id. at 299.

234

Id. at 636-37.

235

Id. at 637.

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Magruder, Alexander Butterfield, Herbert Kalmbach, John Ehrlichman, H.R.

Haldeman, Patrick Buchanan, Leonard Garment, and Gen. Alexander M. Haig, Jr.236

On October 31, 1975, Henry Kissinger appeared before the House Select

Committee on Intelligence, at a time when he served in a dual capacity as Secretary of

State and National Security Adviser. In 1980, White House Counsel Lloyd Cutler and

National Security Adviser Zbigniew Brzezinski appeared at hearings conducted by a

subcommittee of the Senate Judiciary Committee to investigate the role of Billy Carter,

the President’s brother, with regard to Libya. President Carter had instructed all

members of the White House staff to cooperate fully with the subcommittee and to

“respond fully to such inquiries from the subcommittee and to testify if the

subcommittee determines that oral testimony is necessary.”237

In 1987, President Ronald Reagan told executive officials, including those in the

White House, to assist in the congressional investigation into the Iran-Contra affair in

any way possible, including testifying before Congress. The White House aides who

testified at the hearings included former National Security Adviser Robert McFarlane,

former National Security Adviser John Poindexter, and Lt. Col. Oliver North, former

staff member of the National Security Council. Some of these officials, such as North,

testified after receiving partial immunity.

Congressional hearings in 1994 focused on whether White House aides had

inappropriately learned details of a Resolution Trust Corporation (RTC) investigation

of the failed Madison Guaranty Savings and Loan, with President Clinton and Mrs.

Clinton named as potential beneficiaries of alleged wrongdoing at Madison. Among

those testifying at the hearings were White House Counsel Lloyd Cutler; Lisa Caputo,

press secretary to Hillary Clinton; associate counsel to the President Neil Eggleston;

assistant to the President Bruce Lindsey; former White House Chief of Staff Thomas

McLarty; former White House Counsel Bernard Nussbaum; assistant to the President

John Podesta; senior policy adviser to the President George Stephanopoulos; and

Margaret Williams, chief of staff to Hillary Clinton.238 In 1995 and 1996, as part of the

investigation of the dismissal of seven employees from the White House Travel Office

in 1993, former assistant to the President John Podesta and former director of the

White House Office of Administration David Watkins testified before the House

Committee on Government Reform and Oversight.

Senate hearings into the Whitewater Development Corporation in 1995-96

brought these White House officials before a special Senate committee: assistant to the

President Mark Gearan, former special assistant to the President Sylvia Mathews,

deputy assistant to the President Patsy Thomasson, former assistant to the President

for management and administration David Watkins, White House deputy press

secretary Evelyn Lieberman, counsel to the President Thomas McLarty, assistant to

the President Jack Quinn, assistant to the President Bruce Lindsey, special counsel to

236

The complete list appears in Louis Fisher, “White House Aides Testifying Before

Congress,” 27 Pres. Stud. Q. 139, 141-42 (1997).

237

Public Papers of the Presidents, 1980-81 (II), at 1420.

238

Other White House attendees are cited in Fisher, “White House Aides,” at 145-46.

CRS-38

the President Jane Sherburne, special assistant to the President Carolyn Huber, deputy

chief of White House staff Harold Ickes, and many others.239

Even when the White House decides that presidential aides shall not testify, other

mechanisms can be used to satisfy congressional needs. In 1981, Martin Anderson,

President Reagan’s assistant for policy development, refused to appear before a House

Appropriations subcommittee responsible for funding his budget request for the Office

of Policy Development. The subcommittee retaliated by deleting all of the $2,959,000

requested for the office. In doing so, it pointed out that the previous heads of the

office (Stuart Eizenstat in the Carter years, James Cannon in the Ford years, and

Kenneth Cole in the Nixon years) had appeared before the subcommittee. As a

compromise, Anderson met informally and off-the-record with the subcommittee to

respond to their questions. After the Senate restored almost all of the funds, Congress

appropriated $2,500,000 for the office.240

The Claim of “National Security”

Those who write about executive privilege sometimes imply that the mere claim

by the Administration that documents are covered by “national security” (or “foreign

affairs” or “diplomacy”) is sufficient to establish an unreviewable presidential power.

A recent law review article states that “national security considerations strongly bolster

the case for an executive privilege. . . . Properly wielded, an executive privilege could

lead to . . . enhanced supervision of foreign affairs . . . .”241

Writing for the Court in the Watergate Tapes Case, in which the Court for the

first time explicitly recognized an executive privilege, Chief Justice Burger rejected an

“absolute, unqualified” presidential privilege of immunity from judicial process.242

However, he seemed to make an exception when Presidents claim a “need to protect

military, diplomatic, or sensitive national security secrets.”243 This remark, however,

was non-binding dicta and not the holding of the Court. Moreover, if the Court wants

to accept presidential justifications based on military, diplomatic, or national security

needs, it is free to do so. But Congress need not accept those justifications. The

Watergate Tapes Case concerned judicial, not congressional, access to executive

branch information.244

Unlike the judiciary, Congress has express constitutional powers and duties in the

fields of military affairs and national security. When Congress passed the Freedom of

239

Id. at 148-49.

240

Id. at 139-40.

241

Saikrishna Bangalore Prakash, “A Critical Comment on the Constitutionality of Executive

Privilege,” 83 Minn. L. Rev. 1143, 1145 (1999).

242

United States v. Nixon, 418 U.S. 683, 706 (1974).

243

Id.

244

A footnote in the Court’s decision makes this distinction clear: “We are not here concerned

with . . . congressional demands for information.” 418 U.S. at 712 n. 19.

CRS-39

Information Act (FOIA), requiring executive agencies to make documents available to

the public, it set forth nine exemptions, including matters that are “ (A) specifically

authorized under criteria established by an Executive order to be kept secret in the

interest of national defense or foreign policy and (B) are in fact properly classified

pursuant to such Executive order.”245 Another exemption: “inter-agency or intraagency memorandums or letters which would not be available by law to a party other

than an agency in litigation with the agency.”246 Yet another exemption: “records or

information compiled for law enforcement purposes . . . .”247 Those are some of the

grounds for denying members of the public information from executive agencies. They

do not apply to Congress. FOIA specifically provides that these exemptions do not

constitute “authority to withhold information from Congress.”248

In recent decades, as discussed below, Congress and the executive branch have

clashed over legislative access to “national security” and “foreign affairs” documents.

On each occasion the Justice Department insisted that these documents could not be

shared with a congressional committee. In the end, the Administration had to drop its

claim to having an exclusive role in determining what to release. In some cases, federal

courts applied pressure on the executive branch to release documents to Congress. In

other confrontations, the power of Congress to hold an executive official in contempt

has been sufficient leverage to pry loose the documents.

The AT&T Cases

In 1976, Representative John Moss and his subcommittee requested from the

American Telephone and Telegraph Co. (AT&T) information on “national security”

wiretaps by the Administration. The company was willing to release the information,

but the Justice Department intervened to prevent compliance with the subcommittee

subpoena, arguing that compliance might lead to public disclosure of vital information

injurious to national security. President Ford wrote directly to Moss: “I have

determined that compliance with the subpoena would involve unacceptable risks of

disclosure of extremely sensitive foreign intelligence information and would be

detrimental to the national defense and foreign policy of the United States and

damaging to the national security.”249

A district judge decided that if a final determination had to be made about the

need for secrecy and the risk of disclosure, “it should be made by the constituent

branch of government to which the primary role in these areas is entrusted. In the

areas of national security and foreign policy, that role is given to the Executive.”250

This judicial deference to presidential power was soon overturned by Judge Harold

Leventhal of the D.C. Circuit, who rejected the claim of the Justice Department that

245

5 U.S.C. § 552(b)(1) (1994).

246

Id. at § 552(b)(5).

247

Id. at § 552(b)(7).

248

Id. at § 552(d).

249

“Judge Halts Hill Probe of Wiretaps,” Washington Post, July 23, 1976, at A12.

250

United States v. AT&T, 419 F.Supp. 454, 461 (D.D.C. 1976).

CRS-40

the President “retains ultimate authority to decide what risks to national security are

acceptable.”251 The cases cited by the Administration did not establish “judicial

deference to executive determinations in the area of national security when the result

of that deference would be to impede Congress in exercising its legislative powers.”252

Leventhal urged executive and legislative officials to settle their differences out of

court, pointing out that a “compromise worked out between the branches is most likely

to meet their essential needs and the country’s constitutional balance.”253

Continued disagreement between the Justice Department and the subcommittee

forced the appellate court to intervene again to give additional guidance. Leventhal

dismissed the idea that the dispute was a “political question” beyond the court’s

jurisdiction. When a dispute consists of a clash of authority between the two branches,

“judicial abstention does not lead to orderly resolution of the dispute,” for neither

branch had “final authority in the area of concern.” In a dispute of this nature, judicial

intervention helps promote the “smooth functioning of government.”254

Leventhal urged the parties to resolve their differences by seeking middle-ground

positions. He noted that the framers, in adopting a Constitution with general and

overlapping provisions, anticipated that “a spirit of dynamic compromise would

promote resolution of the dispute in the manner most likely to result in efficient and

effective functioning of our governmental system.”255 Each branch “should take

cognizance of an implicit constitutional mandate to seek optimal accommodation

through a realistic evaluation of the needs of the conflicting branches in the particular

fact situation.”256 The case was finally dismissed on December 21, 1978, after the

Justice Department and the subcommittee settled their differences.257

Proceedings Against Henry Kissinger

On November 6, 1975, the House Select Committee on Intelligence issued a

subpoena to Secretary of State Henry Kissinger, directing him to provide documents

relating to covert actions.258 After he failed to comply with the subpoena, the

committee met in open session to determine what action should be taken against him.

251

United States v. American Tel. & Tel. Co., 551 F.2d 384, 392 (D.C. Cir. 1976).

252

Id.

253

Id. at 394.

254

United States v. AT&T, 567 F.2d 121, 126 (D.C. Cir. 1977).

255

Id. at 127.

256

Id.

257

House Select Committee on Congressional Operations, Court Proceedings and Actions of

Vital Interest to the Congress, Current to December 31, 1978, 95th Cong., 2nd sess., 1978,

at 50.

258

H. Rept. No. 94-693, 94th Cong. 4-5 (1975).

CRS-41

By a vote of 10 to 2, the committee recommended that the Speaker certify the

committee report finding contumacious conduct and proceed to a contempt citation.259

Acting on the advice of the Justice Department, President Ford invoked executive

privilege on November 14 to keep the material from the committee. He said that the

documents included “recommendations from previous Secretaries of State to then

Presidents,” jeopardizing the internal decisionmaking process.260 A few days later, in

a letter to the committee, Ford cautioned that the dispute “involves grave matters

affecting our conduct of foreign policy and raises questions which go to the ability of

our Republic to govern itself effectively.”261 Recognizing that Congress had

constitutional responsibilities “to investigate fully matters relating to contemplated

legislation,” Ford told the committee that he directed Kissinger not to comply with the

subpoena on the grounds of executive privilege because the documents “revealed to

an unacceptable degree the consultation process involving advice and

recommendations to Presidents Kennedy, Johnson, and Nixon.”262 Ford pointed out

that some of the documents concerned the National Security Council, and that as of

November 3, Kissinger was no longer his Assistant for National Security Affairs.263

As to those materials, “there has been a substantial effort by the NSC staff to provide

these documents.”264

Calling the contempt threat “frivolous,” Kissinger warned that it would have

adverse worldwide effects: “I profoundly regret that the committee saw fit to cite in

contempt a secretary of state, raising serious questions all over the world what this

country is doing to itself.”265 Nevertheless, under pressure of a contempt citation, an

accommodation was reached. On December 9, three committee members and two

staff members visited the House White to determine which documents would be made

available. On the next day, they received an oral briefing on the information that had

been the target of the subpoena, and an NSC aide read verbatim from documents

concerning the covert actions. On December 10, the committee chairman announced

that the White House was in “substantial compliance” with the subpoena and that the

planned contempt action was “moot.”266

The James Watt Episode

In 1981, Interior Secretary James Watt refused to give a House subcommittee

31 documents relating to a reciprocity provision in the Mineral Lands Leasing Act.

259

Id. at 2.

260

Public Papers of the Presidents, 1975, II, at 1867.

261

Id. at 1887. Letter of November 19, 1975, from President Ford to Congressman Otis Pike,

chairman of the House Select Committee on Intelligence.

262

Id. at 1887, 1889.

263

Id. at 1889-90.

264

Id. at 1890.

265

1975 CQ Almanac, at 406.

266

Id. at 407.

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The specific country involved was Canada. Watt based his decision on the judgment

of Attorney General William French Smith that the documents dealt with “sensitive

foreign policy considerations.”267 The confrontation escalated to a recommendation

by the Committee on Energy and Commerce that Watt be cited for contempt. When

the full committee acted, the vote to hold Watt in contempt was 23 to 19.268

Attorney General Smith advised President Reagan to invoke executive privilege

on the ground that “the interest of Congress in obtaining information for oversight

purposes is, I believe, considerably weaker than its interests when specific legislative

proposals are in question.”269 This argument ran counter to historical precedents. The

first major investigation by Congress––of General St. Clair’s defeat––was not

conducted for the purpose of legislation. Courts have consistently held that the

investigative power is available not merely to legislate or when a “potential” for

legislation exists, but even for pursuits down blind alleys.270 At the Philadelphia

Convention, George Mason remarked that Congress “are not only Legislators but they

possess inquisitorial powers. They must meet frequently to inspect the Conduct of the

public offices.”271 Moreover, Congress could easily erase Smith’s artificial distinction

by introducing a bill whenever it had oversight in mind.

Smith also claimed that all of the documents at issue “are either necessary and

fundamental to the deliberative process presently ongoing in the Executive Branch or

relate to sensitive foreign policy considerations.”272 Foreign policy is not an exclusive

power of the President or the executive branch. Congress had a constitutionally-based

need for the information. The dispute with Watt concerned the impact of Canadian

investment and energy policies on American commerce, an issue clearly within the

enumerated constitutional power of Congress to “regulate Commerce with foreign

Nations” and its authority to oversee the particular statute that established the nation’s

policy on foreign investments.

Despite Smith’s initial legal position regarding the “fundamental” importance of

the deliberative process, the documents were eventually shared with the subcommittee.

267

“Executive Privilege: Legal Opinions Regarding Claim of President Ronald Reagan in

Response to a Subpoena Issued to James G. Watt, Secretary of the Interior,” prepared for the

use of the Subcommittee on Oversight and Investigations of the House Committee on Energy

and Commerce, 97th Cong., 1st sess. 2 (Committee Print, November 1981).

268

“Contempt of Congress,” Hearings before the Subcommittee on Oversight and

Investigations and the House Committee on Energy and Commerce, 97th Cong. 379 (1982);

“Hill Panel Votes to Cite Watt for Contempt,” Washington Post, February 26, 1982, at A1.

269

“Executive Privilege: Legal Opinions Regarding Claim of President Ronald Reagan in

Response to a Subpoena Issued to James G. Watt, Secretary of the Interior,” at 3.

270

Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 509 (1975).

271

2 The Records of the Federal Convention of 1787, at 206 (New Haven, Conn.: Yale

University Press, 1937). See also Mason’s comments as reported by Madison, at 199.

272

“Executive Privilege: Legal Opinions Regarding Claim of President Ronald Reagan in

Response to a Subpoena Issued to James G. Watt,” at 2.

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On February 9, 1982, the subcommittee voted 11 to 6 to hold Watt in contempt.273 By

that time, all but seven of the 31 subpoenaed documents had been given to the

subcommittee.274 The remaining documents were delivered to a secure room on

Capitol Hill and reviewed only by subcommittee members. Conditions were imposed:

the technical assistance of subcommittee staff would not be available, and members

could not photocopy the documents but could take notes.275 Subcommittee members

got access to the papers they wanted.

CIA Whistleblowing

Members of Congress often seek information directly from executive branch

employees rather than through agency officials. This practice was challenged by

Presidents Theodore Roosevelt and William Howard Taft, prompting Congress to pass

remedial legislation. Roosevelt and Taft both issued “gag orders” to prohibit executive

branch employees from providing information to Congress except through heads of

departments.276 Legislation in 1912, known as the Lloyd-LaFollette Act, nullified the

two orders.277 The purpose of the legislation was to ensure that government

employees could exercise their constitutional rights to free speech, to peaceable

assembly, and to petition the government for redress of grievances.278 Members of

Congress did not want to rely solely on information sifted through Cabinet officers.279

The Civil Service Reform Act of 1978 incorporated the Lloyd-LaFollette Act and

codified it as permanent law.280 As codified, any interference with the right of

executive branch employees in communicating with Congress becomes an enforceable

right along with other prohibited personnel practices. The U.S. Code now provides

that various qualifications to the provision on prohibited personnel practices “shall not

be construed to authorize the withholding of information from the Congress or the

taking of any personnel action against an employee who discloses information to the

Congress.”281

273

“House Subcommittee Votes to Cite Watt for Contempt,” Washington Post, February 10,

1982, at A1.

274

“Watt Says Congress Likely to Hold Him in Contempt,” Washington Post, February 11,

1982, at A9.

275

“Contempt of Congress,” hearings before the House Committee on Energy and Commerce,

97th Cong., 2nd sess. 385-94 (1982); H. Rept. No. 898, 97th Cong., 2nd sess. (1982); “White

House Avoids Hill Showdown Over Documents,” Washington Post, March 17, 1982, at A5;

“Data That Caused Citing of Watt Will Be Provided to House Group,” New York Times,

March 17, 1982, at A21.

276

48 Cong. Rec. 4513 (1912).

277

37 Stat. 539, 555 (1912).

278

48 Cong. Rec. 5201 (1912).

279

Id. at 5235, 5634, 5637, 10674.

280

5 U.S.C. § 7211 (1994).

281

5 U.S.C. § 2302(b) (1994).

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Congress has passed other legislation to assure access to information held by

federal employees. The Whistleblower Protection Act of 1989 provides that federal

employees “who make disclosures described in section 23202(b)(8) of title 5, United

States Code, serve the public interest by assisting in the elimination of fraud, waste,

abuse, and unnecessary Government expenditures,” and that “protecting employees

who disclose Government illegality, waste, and corruption is a major step toward a

more effective civil service.”282 Employees may disclose information that they

reasonably believe evidences a violation of any law, rule, or regulation, or constitutes

gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial

and specific danger to public health or safety.”283 Such disclosures are permitted unless

“specifically prohibited by law and if such information is not specifically required by

Executive order to be kept secret in the interest of national defense or the conduct of

foreign affairs.”284 Moreover, Congress regularly added language to the Treasury,

Postal Service Appropriations Act to protect the right of executive branch employees

to furnish information to Congress and its committees.285

In 1996, a memorandum from the Office of Legal Counsel, Department of Justice,

analyzed the Lloyd-LaFollette Act and the language in the Treasury-Postal Service bill

and found them constitutionally defective.286 This memo led to a confrontation with

the intelligence committees, which considered legislation to preserve congressional

access to executive branch information. A Senate report in 1997 explained that current

“executive branch policies on classified information could interfere with [the Senate

Intelligence Committee’s] ability to learn of wrongdoing within the elements over

which it has oversight responsibility.”287 In creating the intelligence committees in the

1970s, Congress relied heavily on them to guard the interests of Congress as an

institution. Senator Walter Huddleston, who served on the Senate Intelligence

Committee, remarked in 1980 that the two intelligence committees “will be acting as

proxies for the American people.”288 Representative Lee Hamilton, as chairman of the

House Intelligence Committee, underscored that point in 1985: “The House and

Senate Intelligence Committees provide the only check on intelligence agencies outside

the executive branch.”289

282

103 Stat. 16, §§ 2(a)(1) and 2(a)(2) (1989).

283

Id. at § 1213(a)(1).

284

Id. Presidents have issued executive orders to protect classified information, but the

intelligence committees have sought to maintain their access to employees in the intelligence

community.

285

E.g., 110 Stat. 2009-359, § 625 (1996).

286

Memorandum from Christopher H. Schroeder, Office of Legal Counsel, to Micahel J.

O’Neil, General Counsel of the Central Intelligence Agency, November 26, 1996.

287

S. Rept. No. 105-24, 105th Cong., 1st sess. 26 (1997).

288

126 Cong. Rec. 13095 (1980).

289

131 Cong. Rec. 32436 (1985).

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In order to examine the objections raised in the OLC memo, the Senate

Intelligence Committee held two days of hearings in 1998.290 Based on those hearings

and its own independent staff analysis, the committee reported legislation despite the

claims by the Justice Department that the bill represented an unconstitutional invasion

of presidential prerogatives, and that the President has ultimate and unimpeded

authority over the collection, retention, and dissemination of national security

information.291 The committee acted unanimously, voting 19 to 0 to report the

measure.292 The bill passed the Senate by a vote of 93 to 1.293

The House Intelligence Committee took a different approach in drafting the

legislation, but also rejected the Administration’s claim that the President exercised

exclusive control over national security information. Like the Senate, the House

committee dismissed the assertion that the President, as Commander in Chief, “has

ultimate and unimpeded constitutional authority over national security, or classified,

information. Rather, national security is a constitutional responsibility shared by the

executive and legislative branches that proceeds according to the principles and

practices of comity.”294 The two committees reported and passed legislation with this

language: “national security is a shared responsibility, requiring joint efforts and mutual

respect by Congress and the President.”295 The statute further provides that

“Congress, as a co-equal branch of Government, is empowered by the Constitution to

serve as a check on the executive branch; in that capacity, it has a ‘need to know’ of

allegations of wrongdoing within the executive branch, including allegations of

wrongdoing in the Intelligence Community.”296

The Role of the Courts

In the period immediately after World War II, federal courts typically deferred to

presidential responsibilities in military and diplomatic affairs. In 1948, the Supreme

Court said it would be “intolerable that courts, without the relevant information,

should review and perhaps nullify actions of the Executive taken on information

properly held secret. Nor can courts sit in camera in order to be taken into executive

confidences. But even if courts could require full disclosure, the very nature of

executive decisions as to foreign policy is political, not judicial.”297 A few years later,

in the midst of the Korean War, the Court again avoided a clash with the executive

branch over national security affairs. It said that the judiciary “should not jeopardize

290

“Disclosure of Classified Information to Congress,” Hearings before the Senate Select

Committee on Intelligence, 105th Cong. (1998).

291

Id. at 13-39.

292

S. Rept. No. 105-165, 105th Cong., 2nd sess. (1998).

293

144 Cong. Rec. S1564 (daily ed. March 9, 1998).

294

H. Rept. No. 105-747 (Part I), 105th Cong., 2nd sess. 15 (1998).

295

112 Stat. 2413, § 701(b)(1) (1998).

296

Id. at § 701(b)(3); see also H. Rept. No. 105-780, 105th Cong., 2nd sess. 19 (1998).

297

C.& S. Air Lines v. Waterman Corp., 333 U.S. 103, 111 (1948).

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the security which the [government’s] privilege [to withhold evidence from a pending

lawsuit] is meant to protect by insisting upon an examination of the evidence, even by

the judge alone, in chambers.”298

These attitudes have long since been superseded by statutory grants of power to

the courts, inviting them to exercise independent judgment on matters of national

security. In 1973, the Supreme Court decided that it had no authority to examine in

camera certain documents regarding a planned underground nuclear test to sift out

“non-secret components” for their release.299 In response, Congress passed legislation

to clearly authorize courts to examine executive records in judges’ chambers as part

of a determination of the nine categories of exemptions in the Freedom of Information

Act.300 The Foreign Intelligence Surveillance Act of 1978 requires a court order to

engage in electronic surveillance within the United States for purposes of obtaining

foreign intelligence information. A special court, the Foreign Intelligence Surveillance

Court (FISC), is appointed by the Chief Justice to review applications submitted by

government attorneys.301 In 1980, Congress passed the Classified Information

Procedures Act (CIPA) to establish procedures in court to allow a judge to screen

classified information to determine whether it could be used during the trial. 302

These statutes bring the courts a long way in terms of attitude, procedures, and

capability in passing judgment on national security matters. Even if courts were to

continue to defer to the President, the same attitude would be inappropriate for

Congress. Unlike the courts, Congress has explicit duties under the Constitution to

declare war, provide for the common defense, raise and support armies, and provide

and maintain a navy. Congressional panels, including Armed Services, the defense

appropriations subcommittees, and the intelligence committees regularly have access

to highly sensitive data.

Some courts continue to defer to the President. In 1980, the Fourth Circuit

remarked that the “executive possesses unparalleled expertise to make the decision

whether to conduct foreign intelligence surveillance, whereas the judiciary is largely

inexperienced in making the delicate and complex decisions that lie behind foreign

intelligence surveillance.”303 The Fourth Circuit freely expressed its uneasiness in this

area: “the courts are unschooled in diplomacy, a mastery of which would be essential

to passing upon an executive branch request that a foreign intelligence wiretap be

298

United States v. Reynolds, 345 U.S. 1, 10 (1952).

299

EPA v. Mink, 410 U.S. 73 (1973).

300

88 Stat. 1562, § 4(B) (1974); see H. Rept. No. 1380, 93rd Cong., 2nd sess. 8-9, 11-12

(1974).

301

93 Stat. 1783 (1978).

302

94 Stat. 2025 (1980).

303

United States v. Truong Dinh Hung, 629 F.2d 908, 913 (4th Cir. 1980).

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authorized.”304 The court even referred to the executive branch “as the pre-eminent

authority in foreign affairs.”305

The AT&T cases discussed earlier offer a different model in which courts suggest

“the outlines of a possible settlement” to meet congressional and executive needs

without requiring “a judicial resolution of a head-on confrontation.”306 Yet in trying

to avoid “a possibly unnecessary constitutional decision,”307 the court proceeded to

analyze the constitutional powers of each branch, compare their relative strengths, and

encourage both sides to negotiate a settlement. After negotiation had narrowed but

not entirely bridged the gap between the two branches, the D.C. Circuit provided

further guidelines. In so doing, it decided that complete judicial abstention on political

question grounds was not warranted.308

The Pentagon Papers

In the Pentagon Papers case in 1971, the Supreme Court decided that two

newspapers were constitutionally entitled to publish a Defense Department secret study

that was critical of U.S. policy in the Vietnam War.309 In a concurrence, Justice

Stewart spoke approvingly of independent presidential power: “If the Constitution

gives the Executive a large degree of unshared power in the conduct of foreign affairs

and the maintenance of our national defense, then under the Constitution the Executive

must have the largely unshared duty to determine and preserve the degree of internal

security necessary to exercise that power successfully.”310

A single concurrence by one Justice has no authoritative value in settling or

defining constitutional issues, but this language is cited frequently by those who draw

presidential power broadly at the expense of congressional interests. Several points

can be made about Justice Stewart’s language. First, it begins with an If: “If the

Constitution gives the Executive . . . .” Second, there is no necessary connection

between the first part of the quote and the second part. The President’s largely

unshared power to conduct foreign affairs does not imply a largely unshared power to

determine the policy for internal security. The conduct of foreign policy usually

involves the implementation of national security policy determined jointly by Congress

and the President. Conduct may be executive, but the policymaking power is

executive-legislative. That proposition is true to an even greater extent in the

“maintenance of our national defense,” as Justice Stewart expressed it. Congress

shares that responsibility with the President. In the field of foreign affairs, many

304

Id. at 914.

305

Id.

306

United States v. American Tel. & Tel. Co., 551 F.2d at 385.

307

Id.

308

United States v. American Tel. & Tel. Co., 567 F.2d at 123.

309

New York Times Co. v. United States, 403 U.S. 713 (1971).

310

Id. at 728-29.

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experts acknowledge that the Constitution does not give “a large degree of unshared

power” either to Congress or the President.

Justice Stewart’s concurrence contains other broad views about presidential

power: “[I]t is clear to me that it is the constitutional duty of the Executive––as a

matter of sovereign prerogative and not as a matter of law as the courts know

law––through the promulgation and enforcement of executive regulations, to protect

the confidentiality necessary to carry out its responsibilities in the fields of international

relations and national defense.”311

No doubt the President has important duties and prerogatives in protecting

confidential information. Nevertheless, those duties and prerogatives do not amount

to a monopoly. As Justice Stewart acknowledged: “This is not to say that Congress

and the courts have no role to play.”312 Congress shares responsibility in this area by

enacting legislation and conducting oversight.

The Egan Case

A memorandum by the Office of Legal Counsel of the Justice Department in

1996, challenging the right of access by Congress to information held by executive

branch employees,313 relied in part on the Supreme Court’s decision in Department of

the Navy v. Egan (1988) to support a position of broad presidential power.314 Egan,

however, is fundamentally a case of statutory construction. The case involved the

Navy’s denial of a security clearance to Thomas Egan, who worked on the Trident

submarine program. He was subsequently removed. He then sought review by the

Merit Systems Protection Board (MSPB). After action by the Board and the Court

of Appeals for the Federal Circuit, the case reached the Supreme Court, which upheld

the Navy’s action by noting that the denial of a security clearance is a sensitive and

discretionary call committed by law to the executive agency with the necessary

expertise for protecting classified information.315 Thus, the conflict in this case was

between the Navy and the MSPB, not between Congress and the executive branch.

The focus on statutory questions was evident throughout the case. As the Justice

Department noted in its brief to the Supreme Court: “The issue in this case is one of

statutory construction and ‘at bottom . . . turns on congressional intent.’”316

311

Id. at 729-30.

312

Id. at 730.

313

See earlier section on “CIA Whistleblowing.”

314

Memorandum from Christopher H. Schroeder, Office of Legal Counsel, Department of

Justice, to Michael J. O’Neil, General Counsel of the Central Intelligence Agency, November

26, 1996, cited at “Disclosure of Classified Information to Congress,” Hearings before the

Senate Select Committee on Intelligence, 105th Cong., 2nd sess. 6, 8 (1998).

315

316

Department of the Navy v. Egan, 484 U.S. 518, 529 (1988).

Brief for the Petitioner, at 22, Department of the Navy v. Egan (No. 86-1552), quoting

Clarke v. Securities Industry Ass’n, 479 U.S. 388, 400 (1987).

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The Court asked the parties to address this question: “Whether, in the course of

reviewing the removal of an employee for failure to maintain a required security

clearance, the Merit Systems Protection Board is authorized by statute to review the

substance of the underlying decision to deny or revoke the security clearance.”317

The statutory questions concerned Sections 7512, 7513, 7532, and 7701 of Title

5 of the U.S. Code. The Justice Department’s brief analyzed the relevant statutes and

their legislative history and could find no basis for concluding that Congress intended

the MSPB to review the merits of security clearance determinations.318 The entire oral

argument before the Supreme Court on December 2, 1987, was devoted to the

meaning of statutes and what Congress intended by them.319 At no time did the Justice

Department suggest that classified information could be withheld from Congress.

The Court’s deference to the Navy did not cast a shadow over the right of

Congress to sensitive information. The Court decided merely the “narrow question”

of whether the MSPB had statutory authority to review the substance of a decision to

deny a security clearance.320 Although the Court referred to independent constitutional

powers of the President, including those as Commander in Chief and head of the

executive branch,321 and noted the President’s responsibility with regard to foreign

policy,322 the case was decided on statutory grounds. In stating that “courts

traditionally have been reluctant to intrude upon the authority of the Executive in

military and national security affairs,” the Court added this key qualification: “unless

Congress specifically has provided otherwise.”323

The Garfinkel Case

In addition to relying on Egan, the 1996 OLC memo relied on the Supreme

Court’s decision in American Foreign Service Ass’n v. Garfinkel (1989) for the

proposition that Congress cannot “divest the President of his control over national

security information in the Executive Branch by vesting lower-ranking personnel in

that Branch with a ‘right’ to furnish such information to a Member of Congress

without receiving official authorization to do so.” Yet the progression of this case

from district court to the Supreme Court and back again illustrates how a lower court

can exaggerate the national security powers of the President at the expense of

congressional prerogatives. The district court’s decision was quickly vacated by the

Supreme Court.

317

Id. at (I) (emphasis added).

318

Petition for a Writ of Certiorari to the United States Court of Appeals for the Federal

Circuit, at 4-5, 13, 15-16, 18, Department of the Navy v. Egan (No. 86-1552).

319

Transcript of Oral Argument, Department of the Navy v. Egan (No. 1552).

320

Department of the Navy v. Egan, 484 U.S. at 520.

321

Id. at 527.

322

Id. at 529

323

Id. at 530 (emphasis added).

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In 1983, President Reagan directed that all federal employees with access to

classified information sign “nondisclosure agreements” or risk the loss of their security

clearance. Congress, concerned about the vagueness of some terms and the loss of

access to information, passed legislation to prohibit the use of appropriated funds to

implement the nondisclosure policy.324

In 1988, Judge Oliver Gasch held that Congress lacked constitutional authority

to interfere by statute with nondisclosure agreements drafted by the executive branch

to protect the secrecy of classified information.325 From Egan he extracted a

sentence––“The authority to protect such [national security] information falls on the

President as head of the Executive Branch and as Commander in Chief”––without

acknowledging that Egan was decided on statutory, not constitutional, grounds.326

Gasch concluded that Congress had passed legislation that “impermissibly restricts the

President’s power to fulfill obligations imposed upon him by his express constitutional

powers and the role of the Executive in foreign affairs.”327

On October 31, 1988, the Supreme Court noted probable jurisdiction in the

Garfinkel case.328 Both the House and the Senate submitted briefs strongly objecting

to Judge Gasch’s analysis of the President’s power over foreign affairs.329 During oral

argument, after Edwin Kneedler of the Justice Department spoke repeatedly about the

President’s constitutional role to control classified information, one of the Justices

remarked: “But, Mr. Kneedler, I just can’t––I can’t avoid interrupting you with this

thought. The Constitution also gives Congress the power to provide for a navy and

for the armed forces, and so forth, and often classified information is highly relevant

to their task.”330

On April 18, 1989, the Supreme Court issued a per curiam order that vacated

Judge Gasch’s order and remanded the case for further consideration.331 In doing so,

the Court cautioned Gasch to tread with greater caution in expounding on

constitutional matters: “Having thus skirted the statutory question whether the

Executive Branch’s implementation of [nondisclosure] Forms 189 and 4193 violated

§ 630, the court proceeded to address appellees’ argument that the lawsuit should be

dismissed because § 630 was an unconstitutional interference with the President’s

324

101 Stat. 1329-432, § 630 (1987); 102 Stat. 1756, § 619 (1998).

325

National Fed’n of Fed. Employees v. United States, 688 F.Supp. 671, 683 (D.D.C. 1988).

326

Id. at 685.

327

Id.

328

American Foreign Service Ass’n v. Garfinkel, 488 U.S. 923 (1988).

329

Brief and Motion of the Speaker and Leadership Group for Leave to File Brief Amici

Curiae Out of Time, American Foreign Service Ass’n v. Garfinkel (No. 87-2127); Motion

for Leave to File Brief Amicus Curiae Out of Time and Brief of the United States Senate as

Amicus Curiae, American Foreign Service Ass’n v. Garfinkel (No. 87-2127).

330

Transcript of Oral Argument, American Foreign Service Ass’n v. Garfinkel (No. 87-2127),

at 57-58. The particular Justice is not identified in the transcript.

331

American Foreign Service Ass’n v. Garfinkel, 490 U.S. 153 (1989).

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authority to protect the national security.”332 The Court emphasized that the district

court “should not pronounce upon the relative constitutional authority of Congress and

the Executive Branch unless it finds it imperative to do so. Particularly where, as here,

a case implicates the fundamental relationship between the Branches, courts should be

extremely careful not to issue unnecessary constitutional rulings.”333

On remand, Judge Gasch held that the plaintiffs (American Foreign Service

Association and Members of Congress) failed to state a cause of action for courts to

decide.334 By dismissing the plaintiffs’s complaint on this ground, he did not have to

address any of the constitutional issues.335

Conclusions

Congress depends on information obtained from the executive branch to perform

its constitutional functions. The Supreme Court remarked in 1927 that 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 those who do possess it.”336

Investigation is a prerequisite for intelligent lawmaking, and much of the information

that Congress requires is located within the executive branch. Congress needs

information to enact legislation, to oversee the administration of programs, and to

inform the public. To enforce these constitutional duties, Congress possesses the

inherent power to issue subpoenas and to punish for contempt.337 The Supreme Court

has said that the power of Congress to conduct investigations “comprehends probes

into departments of the Federal Government to expose corruption, inefficiency or

waste.”338

The power of Congress to investigate reaches to all sectors of executive branch

activity, not only domestic policy but also foreign, military, and national security

policy. The first major congressional investigation, in 1792, involved an ill-fated

military expedition. To buttress its power to investigate, Congress frequently enacts

statutory language to require the executive branch to produce information. When

Congress passed the Budget and Accounting Act of 1921, it directed the newly

established Bureau of the Budget (now the Office of Management and Budget) to

provide Congress with information. The Bureau “shall, at the request of any

332

Id. at 158.

333

Id. at 161.

334

American Foreign Service Ass’n v. Garfinkel, 732 F.Supp. 13, 16 (D.D.C. 1990).

335

See id. at 16, 17.

336

McGrain v. Daugherty, 273 U.S. 135, 175 (1927).

337

Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 505 (1975); Anderson v.

Dunn, 19 U.S. (6 Wheat.) 204 (1821).

338

Watkins v. United States, 354 U.S. 178, 187 (1957).

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committee on either House of Congress having jurisdiction over revenue or

appropriations, furnish the committee such aid and information as it may request.”339

The current version regarding congressional requests for information in the budget area

appears at 31 U.S.C. § 1113 (1994).

As part of the National Security Act, Congress in 1991 required the Director of

Central Intelligence and the heads of all departments, agencies, and other entities of the

U.S. government involved in intelligence activities to keep the intelligence committees

“fully and currently informed of all intelligence activities,” other than a covert action.

The procedures for covert actions are spelled out elsewhere. The Intelligence

Committees are to receive “any information or material concerning intelligence

activities . . . which is requested by either of the intelligence committees in order to

carry out its authorized responsibilities.”340

Congress also relies on the assistance of employees within the executive branch.

Upon the request of a congressional committee or a committee member, any officer

or employee of the State Department, the U.S. Information Agency, the Agency for

International Development, the U.S. Arms Control and Disarmament Agency, “or any

other department, agency, or independent establishment of the United States

Government primarily concerned with matters relating to foreign countries or

multilateral organizations may express his views and opinions, and make

recommendations he considers appropriate, if the request of the committee or member

of the committee relates to a subject which is within the jurisdiction of that

committee.”341

The text and intent of the Constitution, combined with legislative and judicial

precedents over the past two centuries, provide strong support for congressional

access to information within the executive branch. Without that information, Congress

would be unable to adequately discharge its legislative and constitutional duties. It

could not properly oversee executive branch agencies, which are creatures of

Congress. Part of legislative access depends on executive employees—the rank-andfile—who are willing to share with Congress information about operations within their

agencies. During the past two centuries, Congress has amply demonstrated the value

of gaining access to information regarding agency corruption and mismanagement that

an Administration may want to conceal.

The executive branch has a natural interest in seeing that agency information is

disclosed only through authorized channels. However, part of that concern has

sometimes been directed toward controlling information that might be embarrassing

to the agency, and the Administration, if released. There is no legal or constitutional

justification for concealing that kind of information. To the extent that the concern of

339

42 Stat. 20, 23, § 212 (1921).

340

“Compilation of Intelligence Laws and Related Laws and Executive Orders of Interest to

the National Intelligence Community,” prepared for the use of the House Permanent Select

Committee on Intelligence, 104th Cong., 1st sess. 20 (Committee Print July 1995); 50 U.S.C.

§ 413a, as added by the intelligence authorization act for fiscal 1991, P.L. 102-88, 105 Stat.

442.

341

2 U.S.C. § 194a (1994).

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the executive branch is directed toward control of information that might be damaging

to national security, the intelligence committees have procedures in place designed to

protect against such damage.

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Selected References

Berger, Raoul. “Congressional Subpoenas to Executive Officials,” 75 Columbia Law

Review 865 (1975).

________. “Executive Privilege v. Congressional Inquiry,” 12 UCLA Law Review

1043, 1287 (1965).

Brand, Stanley M. and Sean Connelly, “Constitutional Confrontations: Preserving a

Prompt and Orderly Means by which Congress May Enforce Investigative Demands

Against Executive Branch Officials,” 36 Catholic University Law Review 71 (1986).

Bush, Joel D. “Congressional-Executive Access Disputes: Legal Standards and

Political Settlements,” 9 Journal of Law & Politics 719 (1993).

Claveloux, Ronald L. “The Conflict between Executive Privilege and Congressional

Oversight: The Gorsuch Controversy,” 1983 Duke Law Journal 1333 (1983).

Collins, Philip R. “The Power of Congressional Committees of Investigation to Obtain

Information from the Executive Branch: The Argument for the Legislative Branch,”

39 Georgetown Law Journal 563 (1951).

Devins, Neal. “Congressional-Executive Information Access

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