Ike’s Lawyer and the Law
William Pierce Rogers was nominated to be United States Attorney
General in the fall of 1957. He had served as Deputy Attorney General
under Herbert Brownell from the time the Eisenhower administration
came to power in January 1953. When he was nominated for the top
post, he was forty-five years old and had been included by President
Eisenhower on a select list of bright young Republicans qualified as
presidential or vice presidential timber for 1960. He was regarded as
the closest friend of Vice President Richard Nixon.
The Senate Judiciary Committee hearing on the Rogers nomination had
barely started on January 22, 1958, when Senator Estes Kefauver
raised the question of the Eisenhower administration’s broad use of
“executive privilege.”
“Mr. Rogers,” the Tennessee Senator said, “many of us in the Senate
and in the House have been increasingly alarmed over the expansion
of the pleading of privilege on information which congressional
committees desire, and feel they have a right to have.”
Senator Kefauver explained the philosophy behind the need for full
information in a democracy, and then moved to the specific problem:
“I think we all appreciate the fact that under the precedent that
when the President has matters up with his Cabinet that he wants to
withhold them from public inspection, he has that right; but we find
here on numerous occasions when the arms of Congress—the Securities
and Exchange Commission, the Federal Communications Commission, the
Civil Aeronautics Board, and various and sundry agencies set up by
the Congress to administer laws which our Congress has the prime
responsibility for administering—they, themselves, are asserting the
privilege and they are deciding whether they want to withhold the
information or not—things the President does not even know anything
about—so that committees of Congress are being hampered in their
effort to get information.”
Senator Kefauver started to read from a report of the House
Government Operations Committee: “The most flagrant abuse of the
so-called legal authority is the misuse of the May 17, 1954,
letter from the President to the Secretary of Defense at the time
of the Army-McCarthy controversy.... It seems inconceivable that
19 Government departments and agencies would cite this letter as
a shadowy cloak of authority to restrict or withhold information
from the Congress and the public. This flimsy pretext of so-called
legal authority only serves to demonstrate to what extent executive
departments and agencies will go to restrict or withhold information.”
Senator Everett Dirksen, the Illinois Republican, interrupted to
emphasize that it was a House committee report Senator Kefauver was
reading, and that “I want to have that clear.”
Senator Kefauver continued: “We had a case here [meaning among
Senate committees], where the head of the Securities and Exchange
Commission pled privilege to his conversation with Sherman Adams,
when apparently Mr. Adams was trying to get a hearing postponed in a
quasi-legislative agency.
“We have a report by Senator Olin Johnston’s committee in which they
take great exception to the pleading of privilege by Mr. [R. W.
Scott] McLeod in the Ladejinsky case with which you are familiar. We
had the Al Sarena [mining land grant] plea of privilege. We had some
pleas of privilege in connection with Mr. Gordon Gray when he was
dealing with rapid tax amortization, so it is getting to the point,
Mr. Rogers, where not the President but any of these agencies ...
anybody who does not want any information to be made public, just
pleads privilege.”
Senator Dirksen intervened to volunteer comment “before the Attorney
General replies, because I was a part of the proceeding on the
McCarthy committee, and I was a part of the proceeding involving the
Chairman of the Securities and Exchange Commission.”
“If it is all the same to Senator Dirksen, I had rather ask my
questions, and you may ask them in your time,” Kefauver replied.
“I do not think there has been any great tendency [to secrecy] in the
last few years,” Rogers said. “I was counsel for committees in ...
1947, 1948, and 1949 ... and I do not believe that the problems are
much different now and then.”
Then Rogers sought to postpone further discussion. “I would like, I
think maybe in the interest of time, to delay a full discussion of
this, because I have agreed with Senator Hennings to appear before
his committee to discuss this whole matter.”
Senator Kefauver said he would be glad to see the whole matter
examined thoroughly by Senator Hennings, but added: “I do think at
this time on such an important matter that you should give us some
expression of your position, or what your position will be.”
“On the general subject matter,” Rogers began, “I believe in
the value of congressional investigations.... I think they have
contributed a great deal to the success of our country, and I think
that the executive branch of the Government has the responsibility to
make the information available to congressional committees to the
fullest extent that it is possible to do so.
“On the other hand,” Rogers went on, “I think that the history of
the country has indicated that there are exceptions, and that those
exceptions have been recognized by each administration throughout
history. I do not think that there is any reason why there should be
much general disagreement, and I think if we had a chance to discuss
those things in detail that probably our views would be pretty much
the same.”
Senator Kefauver asked Rogers about the use of “executive privilege”
by officials of the so-called independent regulatory agencies.
“Well,” Rogers said, “I think that possibly there ought to be an
even greater attempt made to give all the information to Congress
possible, in those agencies.... I think you can make mistakes of
judgment if you generalize too much on those things, and I think
there has been a tendency to do that.
“I remember debating the subject with Russ Wiggins ... he and Mr.
Clark Mollenhoff have been the leaders, and when you get down to it
there is not too much in the way of fact. There has been a lot of
general observation, but I would like to come up, if you do not mind,
and discuss this at length with Senator Hennings’ subcommittee.”
I knew that Russ Wiggins was well informed on the specific instances
of arbitrary withholding. I had tried to discuss a number of specific
cases with Rogers but always found him unavailable. Additionally,
Senator Hennings had found some difficulty in getting an agreement
from Rogers to appear before his Judiciary subcommittee.
“I had not quite understood from your last letter,” Senator Hennings
told the nominee, “that you were willing to appear before the
Constitutional Rights Subcommittee. You did not say that you would
not [appear], but I did not quite understand you to say that you
would.”
Rogers’ nomination was confirmed by the Senate, and by the time he
appeared before the Hennings subcommittee six weeks later he had
become the leading spokesman for the ultimate in secrecy under the
claim of “executive privilege.” Rogers claimed that the executive
branch of the government could properly refuse to give Congress any
document that included any advice, recommendation, or conclusion.
Although the Constitution says nothing about such a right, Rogers
contended that the executive branch did have an “inherent right” to
refuse to give testimony or produce records. He further contended
that no law of Congress could force production of such records.
This in essence was the position he presented to the Constitutional
Rights Subcommittee on March 6, 1958. In addition, smiling,
back-patting Bill Rogers now also claimed that the so-called
independent regulatory agencies—the FCC, ICC, SEC, CAB, FTC, and
FPC—could exercise “executive privilege.” Such a position at the
nomination hearing might have created serious problems on his
confirmation, for at that time the House Legislative Oversight
Subcommittee was engaged in the probe of White House and political
influence on the regulatory agencies recounted in the foregoing
chapter.
At issue when Rogers testified on March 6 was the question of whether
the Congress should amend the “Housekeeping Statute” (5 U.S.C. 22)
by stating that this statute covering custody of records could not
be used as a justification for withholding records from Congress or
the public. Rogers opposed the amendment but said that if it passed,
it still could not interfere with the broad right he claimed under
“executive privilege.”
When Representative George Meader, the Michigan Republican, learned
of the Rogers testimony he was enraged. Meader and Rogers had both
served as counsel for Senate investigating committees in the late
1940s, and Meader had firsthand knowledge of the investigations
that Rogers conducted of the Truman administration. He also knew
that Rogers had been sharply critical of secrecy in the Truman
administration.
“Curious things seem to happen to individuals when they move from one
end of Pennsylvania Avenue to the other,” said Representative Meader.
He urged the Congress to “strike down” Rogers’ claim with legislation
declaring specifically that records must be given to Congress. He
referred to the “executive privilege” as “nonexistent imagery” which
had no support in the Constitution, in the laws, or in the decisions
of the federal courts. Throwing aside all political partisanship,
Republican Meader told the House that if the Rogers doctrine
prevailed the executive will “become the master, not the servant, of
the people.”
Senator Thomas C. Hennings, whose subcommittee had heard the Rogers
testimony, was equally alarmed. A few days after the hearings
Hennings received a letter from Rogers designed “to clarify” his
testimony. On March 6, Rogers had testified:
“Now I don’t recall any instance when Washington, Jefferson or Truman
or anyone else ever relied upon this [the Housekeeping Statute] as a
basis for ‘executive privilege’ for withholding information. It is
something entirely different. This is a bookkeeping statute which
says they keep the records, they hold them physically. It doesn’t
relate at all to ‘executive privilege’.”
While stating that the Housekeeping Statute included no right to
withhold information, Rogers in the same hearing admitted that it
had been erroneously used by officials who had meant to use the
“executive privilege” to keep government records secret.
In a letter that followed his testimony, however, Rogers completely
reversed himself and stated that the Housekeeping Statute is “a
legislative expression and recognition of the ‘executive privilege’.”
Hennings replied that Rogers’ letter of explanation was
“incompatible” with his testimony. He said that Rogers’ letter was
not only “inconsistent” from a legal standpoint, but “completely
baffling when compared with his oral testimony. In almost two
years of investigations and study of the subject of freedom of
information,” Hennings continued, “I have come across a number of
cases where various misguided, secrecy-minded executive department
officials, eagerly seeking authority to justify withholding
information from the Congress and the public have tortured the
simple provisions of the [law] ... beyond all recognition. This
interpretation now offered by the Attorney General in his letter
surpasses all of these others so far.”
On the specific point at issue, Chairman Hennings wrote that
he believed the Housekeeping Statute had no connection with
constitutional claims of “executive privilege.” “I am amazed at the
Attorney General’s assertion that it does. I think the Attorney
General’s letter presents overwhelming proof of the urgent need to
amend [the law] ... to make clear beyond any doubt that Congress
intended it to be merely a housekeeping statute and not an instrument
of censorship.”
Rogers’ testimony had sent his critics scurrying to the records.
When he was chief counsel for a Senate subcommittee investigating a
loyalty case in the Truman administration, Rogers had been balked
by an executive order issued by President Truman barring Congress
from personnel files in loyalty investigations. The records showed
that Rogers had fought against this secrecy, limited as it was. The
committee report, written under his direction, stated:
“Congress is entitled to know the facts giving rise to the requests
and to satisfy itself by firsthand information that the reasons are
valid. Any other course blinds the legislative branch and permits
action only when the president provides a ‘seeing-eye dog’ in the
form of a request for legislation required by the executive.
“If the subcommittee is denied the right to examine the facts in
specific cases where there appears to be a breakdown in the loyalty
program, it cannot make a complete appraisal of the program.”
I had the switch in Rogers’ thinking very much in mind when, less
than a month after his appearance, the Hennings subcommittee called
me to testify as a representative of the freedom of information
committee of the national journalism fraternity, Sigma Delta Chi.
I told the subcommittee I opposed any general legislation to allow
officials to hide records, and felt that in those areas where secrecy
is needed it could be covered by specific legislation.
“We have seen the proof year after year,” I testified, “that the
unlimited grant of the right to hide the record will lead to abuse of
power, corruption and mismanagement.
“Of course, the Attorney General tells us he does not believe that
secrecy is being used to hide errors or crimes in the executive
branch of Government. Mr. Rogers felt different about this ten years
ago. Then he was ... busy digging out and exposing the crimes,
favoritism, and errors which he felt were being covered up by
secrecy.... We might say that Mr. Rogers was highly successful.”
I continued:
“Mr. Rogers may feel things are different today. However, we can
never trust the judgment of those in power who might be inclined
to make self-serving declarations on their own virtues. This has
happened often in the past. We know now that at least eight or ten
congressional committees have made it clear they are not as sure as
Mr. Rogers that secrecy is not being used to hide crimes, favoritism,
and blunders today.
“It is not necessary to arrive at any conclusion on the virtues of
this administration or any administration, to conclude that secret
government is not in keeping with democracy.
“Even if we accept an administration’s declaration on the many
virtues it possesses, we must be guided by this principle: ‘Never
trust a good man to make secret decisions for you, if it would
frighten you to lodge the same power in an evil man or a man who is
on the other side of the political fence.’”
In the course of my testimony, Senator Roman Hruska, the Nebraska
Republican, sought to defend the Eisenhower administration’s claim of
“executive privilege” in the May 17, 1954, letter:
“He [President Eisenhower] directed that the Secretary of the Army
instruct his employees not to disclose information, and the large
segment of the American press at that time hailed that decision as
being something very fine and very wise and very just.”
No one was going to get me to defend those uninformed editorials
that had been based on the belief that the May 17, 1954, letter was
a single shot of secrecy aimed at Senator McCarthy. I was on much
firmer ground when the subject switched to the case of _McGrain v.
Daugherty_ (1927) in which the Supreme Court stated that the power to
compel witnesses to produce records and testify is a necessary part
of the legislative function.
“Under the Rogers doctrine, the Congress is reduced to a third-rate
division of Government,” I said. “Its investigations can be limited
to what officials in the executive branch of the Government feel
it is wise to produce. If the Government has full discretion as to
which facts will be made available to the public, the press, or the
Congress, then there is no more than half freedom [to investigate].
“I do not want to be limited in my reporting to the self-serving
declaration from men like Richard A. Mack as to what a fine job is
being done at the Federal Communications Commission.
“I do not want to be limited to the comments of T. Lamar Caudle,
Assistant Attorney General under the Truman administration, as
to what a fine job is being done in the prosecution of tax-law
violations.
“I do not want to be limited to the comments of Harold Talbott,
former Air Force Secretary, as to how he is handling Air Force
procurement.
“I do not want to be limited to the statements of former Secretary
of Interior Fall that the handling of Teapot Dome oil reserves was
really in the public interest.”
Also called to testify for Sigma Delta Chi was V. M. (Red) Newton,
the managing editor of the Tampa _Tribune_. Herbert Brucker, editor
of the Hartford _Courant_, testified on behalf of the American
Society of Newspaper Editors. And Harold Cross, the able lawyer for
the A.S.N.E., submitted a legal analysis.
Nearly all newspaper, broadcasting, and legal organizations favored
the Moss-Hennings amendment to the Housekeeping Statute. It passed
Congress with ease despite Administration opposition and on August
12, 1958, President Eisenhower signed it.
The amendment to the Housekeeping Statute said simply: “This section
does not authorize the withholding of information from the public or
limiting the availability of records to the public.” However, as he
signed it into law, President Eisenhower said: “It is not intended
to, and indeed could not, alter the existing power of the head of
an executive department to keep appropriate information or papers
confidential in the public interest. The power in the executive
branch is inherent under the Constitution.”
President Eisenhower had obviously accepted the Rogers theory in
full. He had accepted the misleading precedents set out in a Justice
Department memorandum in which it was represented to him that George
Washington had started all this withholding from Congress. He had
been convinced by his subordinates that the “executive privilege”
claims made between 1954 and 1958 usurped no more authority than
George Washington had. And he had been convinced by some of his
advisers that he would be weakening the presidency if he did not
stand by the extreme “executive privilege” doctrine.
Robert Donovan, in his book _The Inside Story_, related that
President Eisenhower “told the Cabinet he wanted it clearly
understood that he was never going to yield to the point where he
would become known as a President who had practically crippled the
Presidency.” This determination accounted for President Eisenhower’s
frequent use of the comment that he was merely reiterating a
principle used by Presidents “back to the time of George Washington.”
The “historic precedents,” as I have indicated earlier, did not
stand up under close investigation. In an article for the Federal
Bar _Journal_ of January 1959, J. Russell Wiggins, executive editor
of the Washington _Post and Times Herald_, told how the historic
background—as President Eisenhower understood it—was first described.
It appeared in the Federal Bar _Journal_ on April 1949, in an article
by Herman Wolkinson, a Justice Department lawyer. Wiggins pointed out
that an almost identical copy of the Wolkinson memorandum accompanied
the May 17, 1954, letter written by Eisenhower to Defense Secretary
Wilson. An expanded version of the same material was used by Attorney
General Rogers in testimony before Congress.
Wolkinson’s article had stated:
“In the great conflicts which have arisen in the administrations
of Washington, Jackson, Tyler, Cleveland, Theodore Roosevelt, and
Herbert Hoover, the Executive has always prevailed.”
Wiggins’ painstaking research had convinced him quite otherwise.
“This contention is simply not supportable even on the basis of the
historical episodes to which Mr. Wolkinson alludes and which the
Department of Justice has incorporated in its memorandum.”
Getting down to the specific episodes, Wiggins told how Congress,
in March 1792, had passed a resolution to initiate an investigation
of the disastrous expedition into Indian territory by Major General
St. Clair. The investigating committee had asked for all records and
papers dealing with the expedition. President Washington did call
a cabinet meeting to discuss whether the papers should be given to
Congress but finally concluded “to make all the papers available” to
Congress. (See Chapter II.)
“If this case is precedent for anything,” wrote Wiggins, “it is
a precedent to show that the first President was in favor of
disclosure, as a principle of government, and as a constitutional
matter, except in some possible instances which might later arise,
but which in this affair did not exist.”
There was one time when President Washington did refuse to send
papers to the Hill. This was when the House of Representatives
asked him for the instructions and papers furnished our ambassadors
in negotiating the Jay treaty. “But,” said Wiggins, “this no more
sustains the claim to sweeping powers of non-disclosure than the
first episode. Here, President George Washington refused the papers
on the sound and specific constitutional ground that the Senate and
not the House was entrusted with authority to advise and consent on
the making of treaties.”
After reviewing most of the so-called “withholding precedents” used
by Wolkinson and President Eisenhower, Wiggins pointed out that
President Jackson and President Tyler had bitterly opposed giving
papers to Congress but in the end had forwarded all records requested.
Concluded Wiggins: “In most of Mr. Wolkinson’s examples, the
Congress prevailed, and got precisely what it sought to get.”
Because Senator Hennings and Congressmen Moss and Meader had pushed
through the amendment to the Housekeeping Statute over Administration
objections, they realized that reliance upon “executive privilege”
could now become all the more stubborn and Congress would need to
take further action.
“In the minds of most people in this country, governmental censorship
probably is associated most closely with war or dictatorship,”
Chairman Hennings said. “Official suppression of the truth generally
is regarded as something alien to the American tradition of freedom
and incompatible with our system of self-government. Yet, despite
these national attitudes, censorship and suppression of the truth are
slowly becoming more and more commonplace in our federal government,
and secrecy threatens to become the rule rather than the exception.”
From the Republican side, the two Democrats were joined by
Congressman Meader. “The net effect of the Attorney General’s
statement,” said Meader, “is that the executive branch of the
Government will give to the Congress or its committees such
information as the executive branch chooses to give and no more. I
wonder if the American people and their elected representatives in
Congress appreciate the significance of this ... pronouncement of the
executive branch of the Government.”
Meader declared that the Rogers doctrine “makes possible a rigged,
distorted, slanted” picture of what is going on in a Government
agency.
“The unlimited discretion in the executive branch of the Government
over access to information in its possession asserted by the Attorney
General, would vest in the departments the power by ex parte
presentations of half truths to build a record which would permit
only one conclusion.”
In an analysis that filled six pages in the _Congressional Record_,
Meader pointed out that Rogers admitted there was “no judicial
precedent governing this question” of “executive privilege.” “More
study, not less, is required for intelligent policy making in these
days,” he pleaded. “This asserts a doctrine of executive power which
I believe is wholly out of keeping with our concept of democracy and
self-government. It smacks of totalitarianism, and I hope it will
never prevail in this country.”
But the nonpartisan plea for reason and law made little impression.
The Eisenhower administration was smug in its popularity. Leaders of
Congress were too busy with political chores to pay attention to any
problem not connected with the business of getting re-elected. The
press could not or would not think logically or consistently on the
subject. Secrecy that stood in the way of an individual reporter or
newspaper was deplored by that reporter or newspaper, but by too few
others. For the most part the attack on secrecy lacked co-ordination,
consistency, and enlightened concern.