Category: Executive Privilege

To assess the executive privilege argument of the JOR memo, we should begin by drawing three distinctions which are either blurred or ignored in that memo (and the subsequent Wolkinson memo). These are (1) constitutional immunity versus (common law or constitutional) privilege; (2) the protections available to the chief executive versus those available to lower level officials; and (3) subpoenas to appear and provide testimony versus subpoenas to produce documents.

These distinctions are suggested by a passage from a prominent legal treatise that Roberts quotes:

Subpoena to Executive. It is well settled that public officials are not bound to disclose state secrets or to submit public papers to judicial scrutiny. Partly on this ground, and partly because of the immunity of the executive from judicial control on account of the tripartite separation of powers, it seems now to be undisputed that courts cannot compel the attendance of the chief executive as a witness.

JOR memo at 4-5 (quoting 12 Corpus Juris 896 (W. Mack, ed. 1917)) (emphasis added).

This passage distinguishes between the right of public officials to protect state secrets, which is a common law privilege, and the constitutionally based theory of “immunity of the executive from judicial control on account of the tripartite separation of powers.” There were several governmental privileges widely understood to be available under common law, but these protections were limited in scope and generally qualified rather than absolute even when they applied. See Jonathan David Shaub, Common Law Executive Privilege(s) (forthcoming 2025).

The passage also addresses judicial subpoenas to the “chief executive” (i.e., a governor or president) and opines (with some exaggeration) that it is “undisputed” such subpoenas cannot be enforced. The rationale given is based partly on common law privileges and partly on state and federal separation of powers principles that prohibit compulsion of the chief executive. But the fact that the chief executive is (or may be) beyond the compulsory power of the court does not imply the same for lower-level officers.

Finally, the passage baldly asserts that public officials are not required to submit “public papers to judicial scrutiny.” Again this seems to be a significant exaggeration, but there is language in some of the cases and secondary sources cited by the treatise which suggests a broad discretion on the part of chief executives and (sometimes) other high-level public officials to withhold certain types of public papers in judicial proceedings.

The authorities speaking to these questions are a mix of English and state cases, along with some 19^th century evidentiary treatises. No federal authority had addressed the issue as of the time of the JOR memo. Moreover, none of the authorities spoke to congressional proceedings at all. According to Roberts, however, Myers somehow supports the proposition 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.” JOR memo at 4.

As noted in my last post, why Roberts thinks Myers supports this result is somewhat obscure. There seem to be two possible arguments, which are discussed below. Continue reading “The JOR Memo, the Myers Case, and the Theory of Executive Privilege”

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.

Continue reading “The JOR Memo and William Howard Taft”

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.

Continue reading “The JOR Memo’s Analysis of the Congressional Investigatory Power”

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, 78^th 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.