Referring your attention to a post I wrote a few weeks ago regarding the 1948 Wolkinson memo that I found at the Truman Library, there was one other document located in the same file. Unlike the Wolkinson memo, this document, to the best of my knowledge, has not previously been made publicly available. Predating the Wolkinson memo by five years, its argument is similar (with some differences that I will discuss) and thus may be the earliest iteration of what would become known as the doctrine of executive privilege.
The document in question is a 10-page memorandum entitled “Authority of the Congress to Compel Testimony or the Production of Records.” It does not say to whom it is addressed, but the author is identified as James O’Connor Roberts, and it is dated August 10, 1943.
The first sentence of the memorandum states that the memo will address “the right of the United States House of Representatives to require testimony of, or the production of records by, officers of the Federal Communications Commission.” This question undoubtedly was asked in the context of the then-ongoing proceedings of a House select committee which was holding a series of contentious hearings in the summer of 1943. See generally Study and Investigation of the Federal Communications Commission, Hearings Before the House Select Comm. to Investigate the Federal Communications Commission, 78th Cong. (1943) (“FCC Hearing”).
As noted above, it is not clear for whom the memo was prepared, although it appears to be written from the perspective of someone interested in grounds for resisting the informational demands of the select committee. Since it specifically addresses the obligations of officers of the FCC, it may have been requested by FCC commissioners and/or attorneys who were facing demands for testimony and documents from the select committee. See, eg., FCC Hearing at 42-67 (testimony of FCC Chairman Fly and FCC General Counsel Denny). On the other hand, there were others in the Roosevelt administration, up to and including the president himself, who were concerned about the select committee’s investigation and did not wish to cooperate with its demands for information. See id. at 67-74.
Nothing that I have learned about the memo’s author so far sheds much light on his purpose for preparing the memo. James O’Connor Roberts was a fairly prominent and well-connected Washington lawyer who was active in civic and philanthropic causes. At one time he had worked for the federal government but he went into private practice in the 1930s. He might well have been asked to prepare the memo by someone at the FCC, the Department of Justice or the White House, but at this point it is hard to say.
How the memo got into President Truman’s White House files is also something of a mystery. Truman, of course, was not president or even in the administration in 1943. Roberts participated in meetings with Truman at the White House on several occasions in 1948 and 1949, mostly in connection with charitable or civic events such as the annual Christmas lunch of the Chatterbox Club (don’t ask me). Truman also appointed Roberts to serve on the Subversive Activities Control Board in 1952. Whether any of this relates to how the memo found its way into the Truman White House is anybody’s guess.
Anyone who has more information about this memo or its author is welcome to contact me. In the meantime, I plan to do a series of posts unpacking and analyzing the arguments made in this short but interesting document.