Pressing a Point with Ike
The final reports from the four congressional investigations—a House
Government Operations Committee, the Senate Dixon-Yates investigating
subcommittee, the McClellan subcommittee on East-West trade, and the
Wolf Ladejinsky probe—were all released during the summer of 1956.
Each assailed the excessive arbitrary secrecy that had hampered the
investigations.
So, once again, at a press conference on September 27, 1956, I raised
the problem of arbitrary executive secrecy with President Eisenhower.
“Mr. President,” I said. “At least four Congressional committees in a
period of the last few weeks have issued reports that were critical
of what they termed excessive secrecy which they felt covered up
mismanagement in the operation of the Government.
“Now, these committees contend that there is no court decision
backing the broad proposition of executive secrecy, and I wondered
if you could tell us if you feel that all employees of the Federal
Government, at their own discretion, can determine whether they
will testify or will not testify before committees when there is no
security problem involved?”
The President’s answer indicated that he was still not aware of the
scope of the problem.
“Well, I believe that the instructions are clear, that when there is
no question of security, national security, involved, that everybody
is supposed to testify freely before congressional committees. I will
have to look up the regulations, I mean the letters of instruction
that have gone out. Primarily, I think this is a function of the
department heads and the separate office heads—”
“Well, Mr. President—” I tried to break in to correct him, but he
continued.
“I don’t believe that any individual who happens to be, let’s say
from a filing clerk on up can by themselves decide what is right for
them to tell and what is not right.”
“Mr. President,” I explained. “They used the May 17, 1954, letter
that you wrote to Secretary Wilson in the Army-McCarthy hearings as
a precedent in this particular case. I wonder if you felt they were
misusing it if they use it, say, a clerk or an assistant secretary?”
The President was mildly irked at being pressed to comment on a
specific situation. “Now, you give me a very long and involved and
detailed question here at a place where I don’t even remember what I
wrote to Secretary Wilson at that time. I will have to look it up. If
you will put your question ... in to Mr. Hagerty so we can look it
up, why, it will be answered.”
I was amazed that the President didn’t have a better grasp of the
problem at this late date. Dozens of government officials had been
using his name and his letter to Wilson as a justification for
refusing to produce records in a number of cases which had been
headline news, but he couldn’t remember what his policy was.
On leaving the press conference, I returned to the National Press
Building and prepared my question for submission to Jim Hagerty. I
drafted the question with care so there could be no confusion as to
the points at issue, and delivered it to Hagerty at the White House.
The letter follows.
Mr. President: At least four congressional committees have issued
reports recently criticizing the executive agencies for what they
term “excessive secrecy” that can cover up mismanagement.
These committees contend that there are no court decisions to
support the broad contention of the “confidential executive
business” as set forth in your May 17, 1954, letter to Secretary
Wilson in the Army-McCarthy hearings.
The committees do not quarrel with your personal right to declare
specific acts or communications as “confidential.” They do argue
that many subordinate officials are wrongfully using the May
17, 1954, letter to claim that their government actions and
communications are “confidential.”
Some agencies have stated that Congress is entitled to “only final
decisions” of the agency, and has no right of access to papers
leading up to the decisions.
Do you feel that all employees of the Executive Branch have the
discretion to testify or not testify before Congress about their
official acts, when no security is involved?
At what level does this discretion lodge?
If you feel this is a misuse of the precedent, would you clarify
this matter on the access to information by the Congress and the
press?
I knew the question would be answered by Gerald D. Morgan, the
White House counsel, and I made several trips to the White House
to convince him of the wisdom of limiting the use of “executive
privilege” to cases approved specifically by the President.
Morgan seemed to be convinced at that stage that the Eisenhower
administration should put some bridle on the unrestrained use of
“executive privilege” by officials at all levels. I argued that it
was to the advantage of the administration in power to have the
congressional committees actively policing the agencies, and that
there was grave danger of corruption developing in any agency where
those in charge felt they could arbitrarily block congressional
investigators.
Morgan asked that I send him a memorandum on the proper safeguards
against improper use of “executive privilege.” I felt optimistic when
I submitted the memorandum to Morgan October 4, 1956, and felt that
perhaps the Eisenhower administration was willing to take action
publicly to end this arbitrary secrecy.
I had mentioned to Morgan that I had read the article he had written
for the California _Law Review_ of December 1949, in which he spoke
forcefully in support of the power of Congress to compel testimony
and production of records.
Morgan’s article, entitled “Congressional Investigations and Judicial
Review,” was written when he was an assistant legislative counsel to
the House of Representatives. In those years he had been a critic of
the Truman administration for excessive secrecy and a strong advocate
of the power of Congress to investigate.
In his law review article, Morgan pulled apart the Supreme Court
decision in _Kilbourn v. Thompson_, a case decided in 1881. For
years this case had cast some doubt on the rights of the Congress to
conduct broad investigations to carry out its legislative function.
Morgan pointed out that _Kilbourn v. Thompson_ was a discredited
decision, and that the 1927 case of _McGrain v. Daugherty_ upheld the
right of congressional committees to compel witnesses to testify and
produce records.
The case of _McGrain v. Daugherty_ arose out of the Teapot Dome
scandal investigation of the 1920s. It was the same case that was
cited by various congressional committees in 1956 as authority for
insisting on testimony and records from government agencies.
The letter Gerald Morgan wrote me was not what I wanted, and it
certainly was inconsistent with the principles he had set forth in
his 1949 law review article (see Appendix B). But it did demonstrate
some desire to come to grips with the problem. He wrote:
“An employee is not free merely to exercise his own discretion (with
regard to testimony and production of documents), but in the final
analysis information will be withheld only when the President or
agency heads acting under the President’s authority or instruction
determine it is contrary to the public interest to disclose it.”
Inasmuch as the letter suggested that information should be given
to committees of Congress unless there was a specific order to
the contrary from the President, Congressman John Moss thought it
portended an easing of the restrictions on information. At least he
hoped it did. How futile was his hope we were soon to see.
Unfortunately, the Congress had to rely to a large extent on the
Justice Department in normal moves to take court action against any
government officials who refused to give testimony. So, although the
case of _McGrain v. Daugherty_ upheld the right of Congress to demand
testimony and records, there was yet a practical problem involved.
Congress had to depend on the good faith of the Attorney General and
his top aides to enforce its demand.
A case in point occurred in the summer of 1956 when the Justice
Department used the secrecy of “executive privilege” in an effort
to block an investigation of a settlement of an antitrust suit. The
antitrust suit involved American Telephone and Telegraph (A.T. & T.),
and the investigation was being conducted by Representative Emanuel
Celler’s antimonopoly subcommittee of the House Judiciary Committee.
Chief Counsel Herbert Maletz was instructed by Celler to obtain the
Justice Department files to determine the facts leading up to the
settlement of the A.T. & T. antitrust suit.
The suit had been initiated by the Department in 1949 for the
purpose of forcing a divorce of A.T. & T. and its subsidiary, Western
Electric. The separation was urged to break the near monopoly that
Western Electric enjoyed in the production of telephone equipment.
The suit had been hailed by Attorney General Herbert Brownell as a
great victory for the government, but he and Deputy Attorney General
William P. Rogers claimed “executive privilege” and refused to make
the files available. They covered up the fact that the settlement
allowing A.T. & T. to continue the ties with Western Electric was
made over the opposition of staff members in the Justice Department.
Although Herbert Maletz was blocked from examining the files of the
Justice Department, he managed to obtain much of the information he
sought from the files of A.T. & T. and from records in the Defense
Department. This outside probe uncovered some interesting things that
Justice Department secrecy had hidden. It showed that a high official
of A.T. & T. had written a letter which Defense Secretary Charles
E. Wilson sent to the Justice Department urging settlement of the
antitrust suit on terms favorable to A.T. & T. The investigation also
revealed the conversations between Attorney General Brownell and a
lawyer for A.T. & T. that paved the way to settlement.
Because “executive privilege” blocked the Celler subcommittee from
questioning Justice Department employees, it was necessary to
subpoena a former official of the Justice Department to establish
that Brownell’s settlement was actually opposed by the working staff
in the Antitrust Division. But who could override Brownell, the
President’s chief legal adviser? The investigation stopped at the
door of his office.
* * * * *
The Celler antimonopoly subcommittee of the House Judiciary Committee
ran into “executive privilege” again when it started to investigate
the operations of the Business Advisory Committee (BAC) and the
Department of Commerce.
Chairman Celler, an aggressive New York Democrat, was concerned over
the way the BAC was influencing policy in the Department of Commerce.
He questioned whether there were adequate safeguards against the
misuse of such a committee. Without the safeguards, it could become
a device for getting competitors together for price fixing or other
violations of the antitrust laws.
Chief Counsel Maletz, under directions from Celler, asked for the
minutes of the meetings of the BAC and the details of the operations.
The subcommittee requests were rejected by Commerce Secretary
Sinclair Weeks on grounds that the BAC minutes were “confidential”
business of the executive branch of government.
Chairman Celler then argued that the BAC was a private committee, not
supported by government funds and not a government agency. He denied
that any “executive privilege” existed and declared that if it did
exist, Secretary Weeks could not use it properly to try to cover up
the activities of a private group that happened to give some advice
to a department of government.
Commerce Secretary Weeks replied that BAC was a government committee,
and that the minutes of BAC meetings therefore were covered by an
“executive privilege.”
Presumably the Celler antimonopoly subcommittee would have been
allowed access to the minutes of the BAC if Weeks had considered it
a private business group. But in order to put those minutes out of
the reach of congressional inquiry Secretary Weeks was forced to
the ludicrous position of claiming that the private group became
a part of the government (and therefore entitled to an “executive
privilege”) merely by advising it.
I had often used a quotation from Patrick Henry in talks on secrecy,
but it had never been more appropriate than now. Said Henry:
“To cover with the veil of secrecy the common routine of business,
is an abomination in the eyes of every intelligent man and every
friend to his country.”
I was reminded also of these telling words of Edward Livingston:
“No nation ever yet found any inconvenience from too close an
inspection into the conduct of its officers. But many have been
brought to ruin, and reduced to slavery, by suffering gradual
imposition and abuses which were imperceptible only because the means
of publicity had not been secured.”
One could only wonder when President Eisenhower would awaken to the
abuses of secrecy being perpetrated in his name, right under his own
nose.