Continuing where I left off, the JOR memo (as I will call it) begins by framing the question of the congressional right to obtain information from the executive as follows:
In considering this matter it must be remembered that our form of Government is tripartite, i.e., executive, legislative and judiciary. Each branch in so far as the exercise of its constitutional functions are concerned is independent of the other.
To permit one branch of the Government by affirmative or negative action to defeat the right of the other to perform its constitutional functions would be to destroy the very form and substance of our democratic government. Further, to say that one branch in the exercise of its constitutional functions can force the other to reach any particular decision or to perform any specific act, which under the Constitution is in the sole discretion of the other, would likewise shake the foundation of our democracy.
(emphasis added).
In addition to being rather dramatic, this argument is more than a little circular. A congressional demand for information from the executive only “defeat[s] the right [of the executive] to perform its constitutional functions” if one assumes that the constitutional functions of the executive include deciding what information should be withheld from Congress. This, however, is precisely the question at issue. Likewise, it is unexceptionable to contend that Congress cannot force the president to make a decision or perform a specific act which the Constitution leaves to the latter’s “sole discretion.” But this assertion does nothing to advance the proposition, which certainly cannot be found in the Constitution’s text, that the president in fact has the “sole discretion” to decide what information should be provided to Congress.
To illustrate this point, one need only look to a hearing held by the House select committee on the FCC a few weeks prior. At a July 9, 1943 hearing, the committee chair, the conservative southern Democrat Eugene B. Cox, decried the fact that President Roosevelt had directed the War and Navy Departments not to produce documents requested by the committee on the grounds to do so would be contrary to the public interest. FCC Hearing at 73-74. In Cox’s view, this action amounted to executive interference with the proper functioning of the legislative branch. In language which perhaps Roberts parroted in his own memorandum, Cox then stated:
It scarcely need be said that the whole concept of our American system of government under our Constitution rests upon the fundamental principle that each of the three coordinate independent branches of the Government, although checked and balanced each by the other, cannot be subject to domination by the others without the whole structure crumbling.
Id.
Thus, while Cox and Roberts agree that the Constitution establishes three separate and independent branches of government (indeed, it scarcely need be said), this tells us very little about whether Congress has the right to compel the executive branch to provide information or who makes the ultimate determination whether the public interest requires withholding of information in response to any particular congressional request for information.
Roberts’ next move is to turn to the nature of the congressional power to investigate as elucidated in recent Supreme Court decisions, most particularly McGrain v. Daugherty, 273 U.S. 135 (1927). Roberts concedes at the outset that these cases establish that “[t]he power to legislate conferred by the Constitution of the United States impliedly confers power to subpoena and compel the attendance of witnesses necessary to furnish information needed for the official exercise of the legislative functions.”
This concession would seem to go some way in resolving the dispute between Roberts and Cox in the latter’s favor. After all, if the Constitution gives Congress the power to compel the production of information needed to perform its legislative functions, then by Roberts’ own reasoning the president should not be able to defeat the exercise of this constitutional power by directing his subordinates to defy congressional demands for information. At the very least, it would seem the executive power (if any) to withhold information could not be absolute, but rather would have to be balanced against the congressional interest in obtaining it.
Unfortunately, Roberts does not address this point at all. Instead, after lengthy quotations from McGrain and Jurney v. MacCracken, 294 U.S. 125 (1935), regarding the congressional power to investigate and punish contumacious witnesses, he simply asserts that these cases establish only “the right of the United States House of Representatives to compel the testimony of private citizens and their production of records, and the power to punish such private citizens for such contempt.” JOR Memo at 2. Having thus limited the authority of these cases by ipse dixit, he treats them as having no relevance to the issue at hand.
It is true that in both McGrain and Jurney, the contumacious witnesses were private citizens, but nothing in the Court’s language or reasoning suggests that the congressional need for information applies only to private citizens. To the contrary, McGrain’s holding is predicated on Congress’s authority to investigate the executive branch in two important respects.
First, McGrain relies heavily on historical precedent involving a congressional investigation of the executive branch in the early Congress. As the Court explained:
We are of the opinion that the power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function. It was so regarded and employed in American legislatures before the Constitution was framed and ratified. Both houses of Congress took this view of it early in their history—the House of Representatives with the approving votes of Mr. Madison and other members whose service in the convention which framed the Constitution gives special significance to their action—and both houses have employed the power accordingly up to the present time.
McGrain, 273 U.S. at 174.
Roberts quotes this language in his memo but he does not identify or discuss the investigation, referred to by the Court, which was authorized with the “approving votes” of Madison and other framers. Earlier in its opinion, however, the Court explained that the power to compel the production of needed information was “both asserted and exerted by the House of Representatives in 1792, when it appointed a select committee to inquire into the St. Clair expedition and authorized the committee to send for necessary persons, papers and records.” McGrain, 273 U.S. at 161. This was the House’s first investigation, and it focused on a massive government failure (the St. Clair expedition) and the potential responsibility of executive branch officers for that failure. The first and most significant act of that investigation, moreover, was to call for all relevant records from the Secretary of War, and the committee’s investigation consisted principally in gathering information from the executive branch. See I Congress Investigates: A Documented History 1792-1974 37 (ed. Schlesinger & Bruns 1983) (“the committee had, according to order, proceeded to examine all the papers furnished by the Executive Department relative thereto, sundry papers and accounts furnished by the Treasury and War Departments, with explanations of the same by the heads of those departments in person, to hear the testimony of witnesses upon oath, and written remarks by General St. Clair, upon the facts established by the whole evidence . . .”) (excerpt from committee report of May 8, 1792).
Second, the McGrain case itself involved an investigation of nonfeasance or misfeasance in the Department of Justice, which the Court stressed as critical to its determination that the Senate’s investigation of the matter was within its constitutional power:
It is quite true that the resolution directing the investigation does not in terms avow that it is intended to be in aid of legislation; but it does show that the subject to be investigated was the administration of the Department of Justice—whether its functions were being properly discharged or were being neglected or misdirected, and particularly whether the Attorney General and his assistants were performing or neglecting their duties in respect of the institution and prosecution of proceedings to punish crimes and enforce appropriate remedies against the wrongdoers, specific instances of alleged neglect being recited. Plainly the subject was one on which legislation could be had and could be materially aided by the information which the investigation was calculated to elicit.
McGrain, 273 U.S. at 177.
As noted above, the contumacious witness in McGrain was a private citizen (to wit, the brother of former Attorney General Harry Daugherty), but it does not follow that the reasoning of that case applies only when information is sought from private citizens. After all, the Court explained 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] [e]xperience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete, so some means of compulsion are essential to obtain what is needed.” Id. at 175. This rationale is as applicable to executive branch departments and officials as to private parties. Indeed, it would be an odd result to find that compulsory process is “essential” to effectuating the legislative power of inquiry but that such process is unavailable for the most likely sources of information regarding the administration of the executive departments. Equally discordant would be to say that the House in 1792 “asserted and exerted” the power of compulsory process, but not as to the very information it actually sought and obtained. (Here it is worth noting that Justice Thomas has interpreted the St. Clair committee’s compulsory power as applying only to official documents, which, while probably incorrect, is certainly more plausible than interpreting it not to apply to official documents at all.)
It may be argued in response (though the JOR memo does not actually do so) that in the 1792 St. Clair investigation President Washington, while producing all the documents requested by the House, reserved the right to withhold records when the public interest so demanded. But this response misses the point. The question addressed by McGrain was whether each house of Congress enjoyed a compulsory power of investigation, such that its demands for information were not “mere requests.” Deciding that broad question in the affirmative does not necessarily resolve subsidiary issues such as what privileges or other objections may be asserted against congressional demands for information or how such demands are enforced if objections are made. It is merely to say that the ratio decidendi of McGrain extends to all investigations within the scope of Congress’s legislative jurisdiction, and it cannot be artificially limited to those portions of an investigation that seek information from private parties.
This distinction is important because assuming that Congress’s compulsory power of investigation, as explicated by McGrain, applies only to private parties allows Roberts to pretend that congressional demands for information from the executive implicate solely the constitutional functions of the latter. In my next post I will turn to the JOR memo’s analysis of the executive side of the ledger.