Order Code RL30966
CRS Report for Congress
Received through the CRS Web
to Executive Branch
May 17, 2001
Senior Specialist in Separation of Powers
Government and Finance Division
Congressional Research Service ˜ The Library of Congress
Congressional Access to Executive Branch Information:
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).
Establishing Constitutional Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Robert Morris Inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
St. Clair Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Diplomatic Correspondence with France . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Appropriations Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
The Jay Treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
The Louisiana Purchase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Subsequent Treaty Disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
The Impeachment Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
The Appointment Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Senate “Holds” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Kleindienst Nomination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Rehnquist for Chief Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Nomination of Trott . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
An Ambassadorial Position . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Environmental Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Congressional Subpoenas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Ashland Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DOJ Documents: Seizing Suspects Abroad . . . . . . . . . . . . . . . . . . . . . . . .
DOJ Documents: The Inslaw Affair . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Whitewater Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Contempt Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Actions from 1975 to 1981 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Gorsuch Contempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Contempt Move Against Quinn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Contempt Action Against Reno . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
House Resolutions of Inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
GAO Investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Testimony by White House Officials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
The Claim of “National Security” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The AT&T Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Proceedings Against Henry Kissinger . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The James Watt Episode . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CIA Whistleblowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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
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
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
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. at 2017.
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.
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).
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
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,
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.
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. at 588 (remarks of Rep. Freeman).
Id. at 437.
Id. at 438.
Id. at 759.
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.
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
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
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. at 991.
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
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. at 410.
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 §§
For the development of reciprocal trade legislation, see Louis Fisher, President and
Congress 133-55 (New York: The Free Press, 1972).
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
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,
“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).
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
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.
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
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
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).
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
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
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.
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,
“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.
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
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
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’
“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.
“Ambassador to Guyana Is Appointed After 17-Month Standoff,” Washington Post,
November 29, 1991, at A40.
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
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
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
“House Panel Subpoenas Justice,” Washington Post, March 12, 1994, at A4.
“Environmental Crimes Controversy Lingers Under Reno,” Washington Post, April 7,
1994, at A25.
“Chief of Environmental Crimes Section Quits,” Washington Post, April 2, 1994, at A4.
“Teaming Up,” Washington Post, July 13, 1994, at A15.
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
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
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
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).
Devins, “Congressional-Executive Information Access Disputes,” at 133.
McGrain v. Daugherty, 272 U.S. 135, 174 (1927).
Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 505 (1975).
Id. at 509.
Wilkinson v. United States, 365 U.S. 399, 408-09 (1961); Ashland Oil, Inc. v. FTC, 409
F.Supp. 297, 305 (1976).
Wilkinson v. United States, 365 U.S. at 409.
Pillsbury Co. v. FTC, 354 F.2d 952, 963 (5th Cir. 1966).
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
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
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
2 U.S.C. § 194 (1994).
Id. at § 192.
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.
Lawrence E. Walsh, “The Independent Counsel and the Separation of Powers,” 25 Houston
L. Rev. 1, 9 (1988).
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
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,
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.”
Id. at 308.
Ashland Oil, Inc. v. F.T.C., 548 F.2d 977 (D.C. Cir. 1976).
Id. at 979.
“FBI Authority to Seize Suspects Abroad,” Hearing before a subcommittee of the House
Committee on the Judiciary, 101st Cong., lst sess. (1991).
4B Op. O.L.C. 543 (1980).
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
“FBI Authority to Seize Suspects Abroad, Hearing, at 3.
Id. at 4.
Id. at 4, 5.
“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.
“FBI Authority to Seize Suspects Abroad,” Hearing, at 92-93.
“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.
“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).
Paul M. Barrett, “Thornburgh, Brooks Clash Over Charge of Wrongdoing at Justice
Department,” Wall Street Journal, December 10, 1990, at B7A.
Susan B. Glasser, “Deadline Passes, But Justice Dept. Still Hasn’t Given Papers to
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
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
Brooks,” Roll Call, September 19, 1991.
H. Rept. No. 857, 102nd Cong., 2nd sess. (1992).
Id. at 92-93.
“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,
“Legal Experts Uncertain on Prospects of Clinton Privilege Claim,” Washington Post,
December 14, 1995, at A14.
“Compromise on Notes Rejected,” Washington Post, December 15, 1995, at A2.
141 Cong. Rec. S18964 (daily ed. December 20, 1995).
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
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
Id. at S18993.
“Whitewater Notes Being Surrendered,” Washington Post, December 22, 1995, at A1.
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.
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
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
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
Committee on Interstate and Foreign Commerce, 94th Cong., 1st sess. 153 (1975).
Id. at 153-54 (emphasis in original).
Id. at 158.
Id. at 4.
Id. at 6. For Levi’s September 4, 1975 letter to Morton, see 173-75.
Id. at 137.
1975 CQ Almanac, at 343-44. See also 121 Cong. Rec. 3872-76, 36038-39, 40230,
91 Stat. 241, § 113 (1977), amending 83 Stat. 845, § 7(c) (1969).
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
“Contempt Proceedings Against Secretary of HEW Joseph A. Califano, Jr.,” Committee
Print No. 95-76, 95th Cong., 2nd sess. 1-2 (1978).
Id. at 7, 10.
Id. at 4.
Id. at 18.
Id. at 87. See “House Panel Votes Contempt Citation Against Califano,” Wall Street
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
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
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.
“House Unit Ends Bid To Cite for Contempt HEW Chief Califano,” Wall Street Journal,
September 22, 1978, at 10.
“The Petroleum Import Fee: Department of Energy Oversight,” Hearings before a
Subcommittee of the House Government Operations Committee, 96th Cong., 2nd sess. 3, 27
Id. at 5.
Id. at 35.
Id. at 100.
Id. at 98-100.
Id. at 116-17. See “House Unit Subpoenas Duncan,” New York Times, April 25, 1980,
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
“The Petroleum Import Fee,” Hearings, at 122.
Id. at 123.
Id. at 139. See “House Unit Cites Duncan For Gas-Tax Contempt,” New York Times,
April 30, 1980, at D18.
“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.
Independent Gasoline Marketers Council v. Duncan, 492 F.Supp. 614 (D.D.C. 1980).
“Executive Privilege, Revisited,” CQ Weekly Report, June 21, 1980, at 1753.
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).
“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
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
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
Cong., 1st sess. 2, 57-60 (1981).
“Reagan Overrides Stockman, Backs Edwards on Synfuel,” Washington Post, July 30,
1981, at A2.
“Edwards’ Contempt Citation Headed Off by Approval of Synthetic Fuel Contract,” CQ
Weekly Report, August 1, 1981, at 1425.
H. Rept. No. 968, 97th Cong., 2nd sess. 11 (1982).
Id. at 15, 21.
Id. at 42, 76.
128 Cong. Rec. 31746-76 (1982).
“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
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
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).
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).
“Clinton May Assert Executive Privilege,” Washington Post, September 8, 1995, at A11.
“House Prober Presses Demand for Travel Office Documents,” Washington Post, May 3,
1996, at A2.
“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.
“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.
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
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.
“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).
“Justice Dept. Defies House Subpoena for Campaign Finance Probe Memos,” Washington
Post, July 28, 1998, at A8.
“House Panel Votes to Hold Reno in Contempt,” Washington Post, August 7, 1998, at A1.
“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).
“Reno Still Faces Citation for Contempt,” CQ Weekly Report, September 5, 1998, at
“Burton Pushes Contempt Against Reno,” Roll Call, September 21, 1998, at 3.
“The Contempt Citation,” Washington Post, September 22, 1998, at A16.
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
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
“Justice Memos May Yield Very Little,” Washington Post, December 3, 1998, at A18.
“Memos: Reno Was Warned,” Washington Post, June 7, 2000, at A1.
Deschler’s Precedents, H. Doc. No. 94-661, 94th Cong., 2nd sess., vol. 7, ch. 24, § 8.
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)).
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.
Riddicks’s Senate Procedure, at 1204.
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
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
117 Cong. Rec. 23800 (1971).
Id. at 23807. See “Laos Secrets: House Defeat of Disclosure Move,” CQ Weekly Report,
July 9, 1971, pp. 1463-66.
125 Cong. Rec. 15039 (1979).
141 Cong. Rec. 6409 (1995).
Id. at 6422.
“House GOP Considers Stance on Bailout of Mexico,” CQ Weekly Report, March 25,
1995, at 880.
“Treasury Says Congress Given Papers on Mexico,” Washington Post, April 7, 1995, at
1995 CQ Almanac at 10-17.
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
42 Stat. 25, § 312(a) (1921).
Id. at 26, § 313.
31 U.S.C. § 712 (1994).
Id. at §§ 716(b), 716(c).
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).
Id. at § 716(e)(3).
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
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
S. Doc. No. 108, 86th Cong., 2nd sess. (1960).
Id. at 11-12; 73 Stat. 254, § 401(i) (1959); 73 Stat. 720, § 111(d) (1959).
118 Cong. 18121 (1972).
“GAO Is Unable To Give Costs Of Intelligence,” Washington Post, August 1, 1975, at A2.
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).
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.
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
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
“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).
Id. at 73.
“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).
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.
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
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
Public Papers of the Presidents, 1973, at 160.
Id. at 185.
Id. at 203.
Id. at 211.
Id. at 299.
Id. at 636-37.
Id. at 637.
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
The complete list appears in Louis Fisher, “White House Aides Testifying Before
Congress,” 27 Pres. Stud. Q. 139, 141-42 (1997).
Public Papers of the Presidents, 1980-81 (II), at 1420.
Other White House attendees are cited in Fisher, “White House Aides,” at 145-46.
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
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
Id. at 148-49.
Id. at 139-40.
Saikrishna Bangalore Prakash, “A Critical Comment on the Constitutionality of Executive
Privilege,” 83 Minn. L. Rev. 1143, 1145 (1999).
United States v. Nixon, 418 U.S. 683, 706 (1974).
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.
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
5 U.S.C. § 552(b)(1) (1994).
Id. at § 552(b)(5).
Id. at § 552(b)(7).
Id. at § 552(d).
“Judge Halts Hill Probe of Wiretaps,” Washington Post, July 23, 1976, at A12.
United States v. AT&T, 419 F.Supp. 454, 461 (D.D.C. 1976).
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.
United States v. American Tel. & Tel. Co., 551 F.2d 384, 392 (D.C. Cir. 1976).
Id. at 394.
United States v. AT&T, 567 F.2d 121, 126 (D.C. Cir. 1977).
Id. at 127.
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,
H. Rept. No. 94-693, 94th Cong. 4-5 (1975).
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
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.
Id. at 2.
Public Papers of the Presidents, 1975, II, at 1867.
Id. at 1887. Letter of November 19, 1975, from President Ford to Congressman Otis Pike,
chairman of the House Select Committee on Intelligence.
Id. at 1887, 1889.
Id. at 1889-90.
Id. at 1890.
1975 CQ Almanac, at 406.
Id. at 407.
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.
“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).
“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.
“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.
Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 509 (1975).
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.
“Executive Privilege: Legal Opinions Regarding Claim of President Ronald Reagan in
Response to a Subpoena Issued to James G. Watt,” at 2.
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.
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
“House Subcommittee Votes to Cite Watt for Contempt,” Washington Post, February 10,
1982, at A1.
“Watt Says Congress Likely to Hold Him in Contempt,” Washington Post, February 11,
1982, at A9.
“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.
48 Cong. Rec. 4513 (1912).
37 Stat. 539, 555 (1912).
48 Cong. Rec. 5201 (1912).
Id. at 5235, 5634, 5637, 10674.
5 U.S.C. § 7211 (1994).
5 U.S.C. § 2302(b) (1994).
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
103 Stat. 16, §§ 2(a)(1) and 2(a)(2) (1989).
Id. at § 1213(a)(1).
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
E.g., 110 Stat. 2009-359, § 625 (1996).
Memorandum from Christopher H. Schroeder, Office of Legal Counsel, to Micahel J.
O’Neil, General Counsel of the Central Intelligence Agency, November 26, 1996.
S. Rept. No. 105-24, 105th Cong., 1st sess. 26 (1997).
126 Cong. Rec. 13095 (1980).
131 Cong. Rec. 32436 (1985).
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
“Disclosure of Classified Information to Congress,” Hearings before the Senate Select
Committee on Intelligence, 105th Cong. (1998).
Id. at 13-39.
S. Rept. No. 105-165, 105th Cong., 2nd sess. (1998).
144 Cong. Rec. S1564 (daily ed. March 9, 1998).
H. Rept. No. 105-747 (Part I), 105th Cong., 2nd sess. 15 (1998).
112 Stat. 2413, § 701(b)(1) (1998).
Id. at § 701(b)(3); see also H. Rept. No. 105-780, 105th Cong., 2nd sess. 19 (1998).
C.& S. Air Lines v. Waterman Corp., 333 U.S. 103, 111 (1948).
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
United States v. Reynolds, 345 U.S. 1, 10 (1952).
EPA v. Mink, 410 U.S. 73 (1973).
88 Stat. 1562, § 4(B) (1974); see H. Rept. No. 1380, 93rd Cong., 2nd sess. 8-9, 11-12
93 Stat. 1783 (1978).
94 Stat. 2025 (1980).
United States v. Truong Dinh Hung, 629 F.2d 908, 913 (4th Cir. 1980).
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
Id. at 914.
United States v. American Tel. & Tel. Co., 551 F.2d at 385.
United States v. American Tel. & Tel. Co., 567 F.2d at 123.
New York Times Co. v. United States, 403 U.S. 713 (1971).
Id. at 728-29.
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
Id. at 729-30.
Id. at 730.
See earlier section on “CIA Whistleblowing.”
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).
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).
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
Id. at (I) (emphasis added).
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).
Transcript of Oral Argument, Department of the Navy v. Egan (No. 1552).
Department of the Navy v. Egan, 484 U.S. at 520.
Id. at 527.
Id. at 529
Id. at 530 (emphasis added).
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
101 Stat. 1329-432, § 630 (1987); 102 Stat. 1756, § 619 (1998).
National Fed’n of Fed. Employees v. United States, 688 F.Supp. 671, 683 (D.D.C. 1988).
Id. at 685.
American Foreign Service Ass’n v. Garfinkel, 488 U.S. 923 (1988).
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).
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.
American Foreign Service Ass’n v. Garfinkel, 490 U.S. 153 (1989).
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
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
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
Id. at 158.
Id. at 161.
American Foreign Service Ass’n v. Garfinkel, 732 F.Supp. 13, 16 (D.D.C. 1990).
See id. at 16, 17.
McGrain v. Daugherty, 273 U.S. 135, 175 (1927).
Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 505 (1975); Anderson v.
Dunn, 19 U.S. (6 Wheat.) 204 (1821).
Watkins v. United States, 354 U.S. 178, 187 (1957).
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
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
42 Stat. 20, 23, § 212 (1921).
“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.
2 U.S.C. § 194a (1994).
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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