Apropos of nothing, I was reading Judge MacKinnon’s dissent in Nixon v. Sirica, 487 F.2d 700, 729 (D.C. Cir. 1973) (en banc) and came across a passage I had not paid attention to before. In arguing that historical practice “firmly establish[es] a custom and usage that a President need not produce information which he considers would be contrary to the public interest,” id. at 737, MacKinnon cites the following episode from the Truman administration:
In 1948, following an abortive attempt by a Republican-controlled Congress to obtain certain information and papers from the executive department, a bill was prepared which, if enacted, would have required every President to produce confidential information even though he considered that compliance would be contrary to the public interest. President Truman thought that such a law would be unconstitutional and in preparation for the 1948 presidential election campaign he had a lengthy memorandum prepared (hereinafter referred to as the “Truman Memorandum”). The Truman Memorandum recites all the principal instances, beginning in 1796, where Presidents have refused to furnish information or papers to Congress.
Id. at 731.
MacKinnon cites a 1948 New York Times article which discusses this memorandum. The article, written in the midst of the Truman-Dewey presidential campaign, explains that “President Truman’s legal advisers have prepared for his use in the campaign a book-length memorandum designed to prove his right to refuse to deliver any papers or information held by him or his Cabinet officers to the Congress or its committees.” The article notes that the memorandum relates most immediately to controversies regarding Truman’s refusal to provide information regarding federal employee “disloyalty files” to congressional committees, but that it also may be seen in the light of “much larger issues”
The article does not identify the “legal advisers” who drafted the memorandum. It does, however, cite “[o]ne of the authors of the memorandum [who] compared the relationship of the President and Congress under the Constitution to that of husband and wife, in a marriage where laws cannot compel one to acquiesce to the other.” In this somewhat odd analogy the “ultimate disposition of a quarrel between them” could only be by a political “divorce” in the form of impeachment proceedings against the president.
After conferring with Professors Josh Chafetz and Jonathan Shaub, I concluded that the memorandum in question was likely an early version of the famous memorandum prepared by Herman Wolkinson, the obscure and mysterious Justice Department official whose work would later become the basis for the Eisenhower administration’s creation of the doctrine of executive privilege. Wolkinson first published his study in 1949 as a three-part series of articles in the Federal Bar Journal, but to my knowledge this 1948 version had not been made publicly available.
Judge MacKinnon clearly had a copy (perhaps from his days at the Eisenhower Department of Justice), and he indicated that the original was kept at the Truman Library. So I reached out to the very helpful staff at the Truman Library and they found for me the 102 page memorandum described in New York Times article.
As suspected, this is a version of the Wolkinson memorandum. In fact, as far as I can tell, it is identical, except for a few changes in formatting, spacing, punctuation, etc., to the version that then-Deputy Attorney General William Rogers submitted to a Senate Judiciary subcommittee on April 10, 1957. See Freedom of Information and Secrecy in Government, Hearing before the Senate Subcomm. on Constitutional Rights of the Comm. on the Judiciary, 85th Cong., 2d sess. 62 (1958).
Rogers described the memorandum as “a study prepared in this Department” and that is how I always understood the Wolkinson memorandum. I assumed that Wolkinson had been charged, as a DOJ employee, with researching the issue of executive privilege to assist the Department in responding to congressional demands for information during the Truman administration and that his work was re-discovered when President Eisenhower asked his attorney general for legal authority to justify resisting Senator McCarthy’s demands for information from the Army and other parts of the executive branch.
If in fact the memorandum was prepared for use in the Truman campaign of 1948, that raises some questions. How did Wolkinson become a “legal adviser” to the Truman campaign? Was he the sole author or were there others? Was he the source of the odd marriage analogy provided to the Times reporter? Why would it be appropriate for a career Justice Department lawyer to be providing legal assistance to the president’s campaign team? (I guess if the president’s “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials,” as asserted by the Supreme Court in Trump v. United States, covers the attempted use of the Justice Department to overturn an election the president lost, he can also use it to try to win the election in the first place.)
Anyway, this all may be of little interest to anyone who isn’t an executive privilege scholar (and perhaps not even to those who are). But given the importance of the Wolkinson memo and how little seems to be known about it, I thought it worth flagging.