When we last left the saga of the JOR memo, Roberts had reached the (imho erroneous) conclusion that while executive officers “are subject to subpoena to testify before the United States House of Representatives or a committee thereof in connection with hearings for legislative purposes, the question as to whether the public interest requires them to refuse to answer a question or refuse to produce records in their custody or control is for their determination as a public officer.”
He does not stop there, however. Instead, he turns to the question “whether by reason of the law creating the Federal Communications Commission and the quasi-legislative and quasi-judicial nature of its functions this agency is an executive agency and whether the officials thereof thus are answerable to the President of the United States or to the Congress.” Relying on Humphrey’s Executor v. United States, 295 U.S. 602 (1935), he found that the FCC “is a quasi-legislative and judicial body and is not part of the executive branch of the Government.” Therefore, he concluded, “it is further my opinion that a member or officer of the Federal Communications Commission is required to answer a subpoena by Congress and to testify or produce records of said agency subject to punishment for contempt if he refuses to do so.”
The logic of Roberts’s position seems to be this. Because executive agencies are “answerable” to the president alone, Congress may not exercise compulsory subpoena power with respect to them. However, because independent agencies are not “answerable” to the president, but only to Congress, Congress may subpoena them and punish their officers and employees if they fail to comply. While there is a certain internal consistency in this position, it founders on the deficiencies of the original premise, which we have already discussed and need not belabor here.
Perhaps more interesting is the question of why Roberts wrote this memo in the first place. It seems to be addressing a question that would be of interest to the FCC itself or someone at the FCC who had been subpoenaed by the House committee. But the memorandum is written strangely if he was concerned only with the legal obligations of the FCC and its officers. Roberts spends a good deal of the memo arguing that executive officers are exempt from congressional compulsion, yet that point is immaterial to his ultimate resolution of the issue. Moreover, however sincerely Roberts may have held his view, he must have known that this was hardly a settled issue and was one vigorously contested by Congress. If he were simply advising someone at the FCC of their legal obligations, he would have written something like “although there is a strong argument that executive officers cannot be punished for withholding information from Congress on the grounds of the public interest, this argument does not apply to the FCC because _______.” The fact that he was so emphatic in his conclusion regarding executive officers suggests that he may have been writing with the interests of others in mind.
There are some clues from what was going on in the House investigation of the FCC during the summer of 1943. One major point of contention in the investigation related to a proposal to President Roosevelt from the Secretaries of War and the Navy, based on a recommendation from the Joint Chiefs of Staff, that responsibility for certain radio intelligence activities be transferred from the FCC to the military services. Roosevelt referred the proposal to the Bureau of the Budget for consideration, but when he heard the select committee was investigating the issue, he went ballistic and ordered the military services to box up all documents requested by the House committee and transfer them to the White House. He also authorized them to inform the committee they would produce no responsive documents on grounds of the “public interest.” (He also apparently gave similar instructions to the Bureau of the Budget.) He also told the military that he did not want officers to testify before the committee (though he stopped short of issuing a directive on this), and he made it clear he suspected that military officials had been leaking information to the Hill about the issue.
Roosevelt was further incensed when, on July 20, 1943, a FCC Commissioner named “T.A.M. Craven” (he apparently went by his initials) testified before the House select committee. Craven was a dissenter with regard to many of the issues that the committee was investigating, and he candidly detailed in his testimony his differences with FCC Chairman James L. Fly (who was a primary target of the investigation). Among other things, he voiced his support for transferring radio intelligence activities to the military.
It should be noted Craven testified before the committee to a prior conversation with Fly in which the FCC chair warned about the sensitivity of matters that might come up in Craven’s testimony before the committee and explained that “he and the President regarded as important to the welfare of this country the preservation of confidential and secret matters.” However, Craven made clear that he was under no instruction from either Fly or the president not to testify, and it was his understanding that the FCC was “an agency of Congress” and he was legally obligated to answer the committee’s questions.
When Roosevelt learned what Craven had told the committee, he issued a memorandum dated July 23 to the attorney general directing him to review the testimony to determine whether it constituted cause for removal. He acknowledged that Craven’s removal would likely “come within the Supreme Court’s decision in the Humphrey’s case” because “I assume that the FCC has a quasi-judicial status similar to the FCC.” But in Roosevelt’s view Craven’s testimony could provide the necessary cause as it “comes very close to: (a) Disloyalty to the Commission; (b) Disclosing confidential information connected with the war; (c) Pure open evidence not supported by facts.”
The Department of Justice immediately contacted the FCC to get a copy of Craven’s testimony. This prompted a letter from Fly to the president on July 24:
I told Hugh Cox [of DOJ] that, roughly in accordance with Craven’s testimony, I had warned Craven of all pertinent circumstances surrounding the Radio Intelligence Division and the proposed transfer. I stressed the official secrecy of the matter, its pendency before the President, and the action which had been taken in connection with the Navy officers [whom their superiors had ordered not to testify]. At the same time, I explicitly refrained from endeavoring to give him any instructions on my own or for that matter acting as a conduit for your instructions. I left him entirely free except as he might be guided by his own discretion in the light of the circumstances which I fully made known to him.
Here Fly is walking a fine line. On the one hand, he wants the president to know he did everything he could to discourage Craven’s testimony. On the other, he makes clear he did not give Craven any instructions not to testify (either on his own authority or the president’s), and he carefully sidesteps the question whether he or the president would have such authority. In that connection, Fly may have been cognizant of the fact that he himself had been highly cooperative with the committee’s investigation insofar as the committee had sought access to FCC documents and witnesses. If he now took the position that the FCC had the authority to withhold information from Congress, he could be subject to criticism from others in the administration for having provided the select committee with such a large amount of information.
On September 1, 1943, Attorney General Biddle responded to Roosevelt’s July 24 communication. He discouraged the suggestion that there was cause to remove Craven based on his testimony before the House committee. He noted that Fly was aware of no evidence that Craven gave the committee confidential information from the FCC’s files. He also explained that because the FCC was a “quasi-judicial body” it was “probably necessary to show worse misconduct” to justify removal than for a purely executive body. Finally, he observed that Craven would be able to “defend himself by saying that he was subpoenaed before a Congressional committee and required to answer.” Biddle did not say what he thought of such a defense, but the implication was that it would be a plausible one.
My inference from this is that neither Biddle/DOJ nor Fly wanted Roosevelt to hold a hearing to remove Craven. A legal analysis that the FCC and its officers are obligated to obey congressional subpoenas would tend to support that result (as well as immunize Fly from potential criticism for his own cooperation with the committee). On the other hand, neither the Justice Department nor the FCC wanted to be too directly tied to such a legal conclusion in case Roosevelt did not like it. Thus, getting an outside lawyer to write the analysis makes sense. And it also makes sense that the outside analysis would be careful not to undercut the Justice Department’s position with regard to the withholding of information by the military and other parts of the executive branch. Finally, the reliance on Myers/Humphrey’s Executor to draw a distinction between the FCC and these other entities would be intuitively appealing to Roosevelt, who was already sensitized to this distinction.
All of this leads me to hypothesize that someone at DOJ or the FCC (most likely the latter) asked Roberts to write this memo with the expectation that it could be given to Roosevelt to support DOJ’s recommendation not to try to remove Craven. Whether it was actually given to the White House and/or DOJ I do not know. And I still have no idea why Roberts was the one selected for this task. If I learn anything further about the matter, I will keep you updated.