Having claimed that the power of Congress to compel the production of information has been established by Supreme Court precedent only as to private persons, Roberts turns to “the right of the United States House of Representatives or a committee thereof to compel the testimony of or the production of records by officers of the executive branch of the Government.” JOR Memo at 3. Key to the resolution of this question, according to Roberts, is Chief Justice Taft’s opinion for the Court in Myers v. United States, 272 U.S. 52 (1926), which held that the power to remove executive officers is vested in the president alone and may not constitutionally be restricted by Congress.
Taft’s opinion, which was issued one year before the Court’s unanimous decision in McGrain, does not involve or discuss congressional investigations or the obligation of executive officers to respond to subpoenas or demands for information. Exactly why Roberts thinks the opinion is relevant at all is somewhat obscure (I will take that up in my next post), but nothing in its language or reasoning has any direct bearing on the issue at hand.
A more useful guide to Taft’s thinking on the executive’s obligation to produce information to the other branches is a book he wrote after his presidency but before his appointment to the Court. See William Howard Taft, Our Chief Magistrate and his Powers (1916). Roberts does not mention this book, but interestingly Wolkinson cites it at several points in his 1948 memorandum.
In one passage Wolkinson quotes prominently, Taft says:
The President is required by the Constitution from time to time to give to Congress information on the state of the Union, and to recommend for its consideration such measures as he shall judge necessary and expedient, but this does not enable Congress or either House of Congress to elicit from him confidential information which he has acquired for the purpose of enabling him to discharge his constitutional duties, if he does not deem the disclosure of such information prudent or in the public interest.
Our Chief Magistrate 129.
This should not be read as a claim that the president may forbid his subordinates from complying with compulsory process whenever he deems it to be in the public interest. Instead Taft is addressing the president’s personal obligation to provide information demanded by Congress. This is confirmed by the ensuing paragraphs, which discuss several occasions on which sitting presidents successfully refused to comply with demands for information from Congress or the courts. See Our Chief Magistrate 129-30. These incidents, which also appear in the JOR and/or Wolkinson memos, include Washington’s refusal to provide the House with documents relating to the Jay Treaty (on the ground that the House has no constitutional role in the treaty-making process), Grant’s rejection of a demand from the House to identify executive acts he performed away from the seat of government, and Jefferson’s objection to appearing in court or producing documents in response to a subpoena duces tecum issued to him by Chief Justice Marshall in the Burr treason trial. None of these incidents involved a president directing his subordinates to withhold documents or refuse to testify in response to the compulsory process of Congress or the courts.
While Taft does not directly address the question, it can be inferred he believes compulsory process directed at subordinate officers poses a very different issue than that directed to the president. For one thing, after describing the inability or unwillingness of courts to compel presidents to appear or testify while in office, Taft notes that “[t]he Supreme Court seems to make a broad distinction between issuing process against the President and against his subordinates under laws requiring the specific performance of a definite act.” Our Chief Magistrate 132. Thus, while Taft “cannot think” the Court would issue a writ of mandamus against the president himself, it has “often issued such a writ against one of his subordinates.” Id.
Furthermore, Taft explains that “between a court order directing the action of a marshal and a contrary order of the President, the marshal is bound by law to follow the court’s direct.” Our Chief Magistrate 126. Indeed, he continues, “the court may compel [the marshal] to [follow its order] by punishing him for contempt if he refuses to obey the order.” Id. However, the court cannot compel the president to take actions to assist the marshal in carrying out his duties, such as sending the army to overcome an obstruction. Id. Nor may it directly command the army for this or any other purpose. Id. at 139.
If the court can issue orders to executive officer requiring them to take actions in their official capacities and if it can punish disobedience to such orders with contempt, even in the fact of a contrary directive from the president, it seems extremely likely that a court would have at least equal power with regard to a witness who happened to be an executive officer. This, of course, says nothing about what governmental privileges such a witness might have, but simply that the court would have, as in any case, the power to determine the extent of any applicable privilege and to compel the witness to provide any information found to be unprotected.
This conclusion is not in any way inconsistent with Myers. To the contrary, Myers is one of many examples where the Court exercises judicial authority to decide the constitutional allocation of power between the political branches. See Our Chief Magistrate 138 (“The judicial branch has sometimes been said to be the most powerful branch of the government because in its decision of litigated cases it is frequently called upon to mark the limits of the jurisdiction of the other branches.”). Myers involved a suit brought in the Court of Claims by a former postmaster who sought recovery against the United States of his lost salary based on his wrongful dismissal by the president in violation of a statute which required the Senate’s concurrence in his removal. The Court did not doubt its jurisdiction to hear such a case, nor its power to award damages against the government if it were found to be meritorious. Inherent in those premises is the assumption that it had the right to demand compliance with its judgment, even though it be true that it has “no instruments to enforce” them without the cooperation of the executive, as Taft acknowledges in his book. See Our Chief Magistrate 138-39. It seems equally apparent that it must have the right to compel the production of information needed to decide the case before it, including any unprivileged information possessed by the defendant United States.
Though unmentioned by Roberts or Wolkinson, during his presidency Taft issued executive orders bearing on the question of providing executive information to Congress. Executive Order No. 1062 (Apr. 14, 1909) provided:
In all cases where, by resolution of the Senate or House of Representatives, a head of a Department is called upon to furnish information, he is hereby directed to comply with such resolution, except when, in his judgment, it would be incompatible with the public interest, in which case he should refer the matter to the President for his direction.
Another Taft executive order, No. 1142 (Nov. 26, 1909), prohibited any executive official from lobbying Congress or responding to any congressional request for information without authorization from the head of department.
These executive orders do not assert a presidential right to withhold executive branch information from Congress and do not by their terms apply to compulsory process. They do not forbid executive officials from complying with congressional subpoenas or testifying before Congress, and they do not mention judicial proceedings at all. Executive Order No. 1062 is also directly inconsistent with the Roberts/Wolkinson view that executive officers on their own authority may refuse to provide documents to Congress; the executive order authorizes them only to refer the matter to the president.
The Taft executive orders are probably best understood as procedural regulations designed to ensure centralized executive control over documents provided to Congress or written reports produced at Congress’s request. They are also consistent with the longstanding executive branch position, first articulated by President Washington’s cabinet in responding to the St. Clair investigation, that the president is the ultimate custodian and gatekeeper of all executive branch records. But this is very different than the Roberts/Wolkinson position that (1) executive officers may refuse to comply with congressional or judicial process on grounds of the “public interest” and (2) the president may direct executive officers to refuse compliance with such compulsory process on the same ground.
In summary, we can infer from the discussion above that Taft would likely agree with the view, later rejected in United States v. Nixon, 418 U.S. 683 (1974), that the president is personally beyond the reach of compulsory process from the other branches. It is also plausible he would subscribe to the longstanding executive branch position that the president can use his (alleged) custody of executive records to shield them from congressional (and, in theory, judicial) inquiries. But there is no reason to believe he would agree with the Roberts/Wolkinson theory, and considerable reason to believe the contrary.
Of course, Roberts in the JOR memo did not purport to rely on Taft’s personal views at all, but rather on the language and reasoning of the Myers case. In my next post I will consider whether there is any conceivable merit to that reliance.