IN 1791, A MILITARY expedition in northern Ohio led by Gen. Arthur St. Clair was trounced by the Wabash Indians. Of St. Clair's 1,500 men, 600 were killed and 300 wounded, while the Indians lost fewer than 70 braves.
Investigating this U.S. military disaster the following year, the House of Representatives asked Secretary of War Henry Knox to produce the original instructions for the expedition. As a result, President Washington called a Cabinet meeting to discuss whether he should turn over such secret documents to the Congress. So was born the debate about whether and when the executive branch may refuse information to others, particularly the Congress, a debate which badly needs to be resolved today.
The conflict was relatively muted for many years because executive privlege claims were rarely made; in the more than 150 years between 1792 and the early 1950s, the president and the Congress squared off on the issue only 27 times. But the dispute has intensified dramatically in recent years. Just since 1954, the two branches have locked horns over executive privilege claims at least 59 times, and the prospect is for more fights ahead unless reasonable new procedures are developed.
In part, the intensified battle results from the growth of the executive branch, and particularly the White House. While President Washington personally paid his nephew to serve as his secretary, as of 1977 the White House had at least 455 employees, all of whose activities are sometimes claimed as part of the "confidential advice or policy making process." In part, it also stems from the Congress' frustration in trying to control the growing complexity of the governmental process.
But perhaps most of all its stems from Congress' determination to reassert its place as a co-equal branch in a government in which power increasingly has accumulated in the hands of the president.
All of these factors, of course, came to a head in the Watergate trauma, with President Nixon's abuses of executive privilege claims. In the heat of that battle, it would have been impossible to settle on any new rules for the executive to hand over information to the Congress. But now, with Watergate behind us and with the White House and the Congress controlled by the same party, the time is ripe for a solution. Hamilton's Convenient View
IT NEED SCARCELY be said that there are legitimate cases in which the executive branch should keep information strictly confidential. The Manhattan Project's development of the atomic bomb and our early breaking of the Japanese code during World War II come readily to mind. Unfortunately, though, executive privilege is also just as easily claimed to cover a Teaport Dome or a Watergate.
The history of the executive privilege debate is, in fact, a tortuous one, starting with President Washington's 1792 Cabinet meeting with Secretary of State Thomas Jefferson, Secretary of the Treasury Alexander Hamilton, Attorney General Edmund Randolph and Secretary Knox over the House request for St. Clair's instructions.
According to the notes kept by Jefferson, the Cabinet agreed that while the House could make the inquiry, at some point the president might want to withhold "papers of so secret a nature," and therefore administration members ". . . were to exercise a discretion" as to what they should give Congress. As a matter of history, they ". . . agreed in this case, that there was not a paper which might no be properly produced."
Jefferson's notes, however, are revealing on a more basic question when the discusses some of Hamilton's comments at the meeting:
". . . as to his Department, the act constituting it had made it subject to Congress in some points, but he thought himself not so far subject, as to be obliged to produce all the papers they migt call for. They might demand secrets of a very mischievous nature. (Here I thought he [Hamilton] began to fear they would go on to examining how far their own members and other persons in the government had been dabbling in stocks, banks, etc., and that he probably would choose in this case to deny their power; & in short, he endeavored to place himself subject to the House, when the Executive should propose what he did not like and subject to the Executive when the House should propose anything disagreeable.)"
In other words, Jefferson noted that Hamilton had opened the possibility for the use of this "discretion" for his own ends. The seeds for selective manipulation of what information would be given to Congress were sown by one of the Founding Fathers.
In 1796, President Washington did withhold from the House certain information regarding the Jay Treaty, but there is a question as to whether this was under executive privilege or was done on jurisdictional grounds, since this information was given to the Senate under its advice and consent power.
From then until 1950 there were 26 principal conflicts between the executive and the Congress, involving material ranging from the Jefferson administration's confidential information and letters relating to the Burr conspiracy to Civil Service Commission records on job applicants during the Truman years. These were settled in the political arena, with the ebb and flow of congressional power vis-a-vis presidential power deciding the extent to which the executive turned over the requested information.
In 1954, however, President Eisenhower, in reaction to the excesses of the Army-McCarthy hearings, drafted a letter that had the effect of claiming uncontrolled presidential discretion to withhold information in the "public interest." In the next six years there were 34 instances in which his administration, with relative impunity, refused information sought by Congress.
During the Kennedy and Johnson administrations there was almost an impasse in this new assertion of power. Kennedy used it personally once, and his administration refused to provide information on only three other occasions.Johnson personally never claimed the power, and his administration used it only twice.
President Nixon vowed to follow the Kennedy-Johnson example, but in his first four years of office he formally invoked the claim of privilege four times, and his administration refused documents or testimony at least 15 other times. Between 1972 and 1974, Nixon formally exercised the claim four more times, and President Ford exercised it twice during his administration. Conflicting Theories
THROUGHOUT THIS history there have been conflicting legal theories, ranging from an assertion of absolute executive discretion to a claim that there is no such privilege at all, that it is "a myth."
The Constitution is silent on the question. At best the president can claim an implied power under Article II, Section 3, requiring him to "take care that the laws be faithfully executed." There hasn't even been a determination as to whether, assuming the privilege exists, it is a personal privilege to the president or others can claim it on his behalf.
Recently, however, th Supreme Court, in United States v. Nixon, did strike down the claim of an unqualified executive privilege, at least as weighed against the "constitutional duty of the judicial branch to do justice in criminal proceedings." Conversely, Congress' authority has been deemed less than absolute by the U.S. Court of Appeals in Senate Select Committee on President Campaign Activities v. Nixon. This case was unusual, however, in that the material desired (the Nixon tapes) was in fact in the hands of the House Judiciary Committee. That appeared to be a major factor in denying further judically authorized access by Congress.
In all these conflicts, the executive makes no distinction between access by Congress and public disclosure, which are entirely different questions. The executive fails to recognize that Congress, as an equal partner under the Constitution, also has an interest in protecting "confidential information." What it does not have is an interest in keeping embarrassing or illegal acts of the executive from outside scrutiny.
Actually, congressional committees infrequently desire sensitive information and routinely accede to deletion of senstive matters in requested information. Congress' overall record is good. People seem to forget, for example, that the initial "leak" of the Pentagon Papers to The New York Times and The Washington Post was made by a former executive employee only after he had tried for several months without success to get several members of the Senate to make the papers public.
Rep. John Moss (D-Calif.), in a study in the mid-1950s, found that "leaks" or selected classified material had become almost an operating tool of the executive branch, and he concluded that of the two, Congress was the safer repository of information. Nevertheless, the possibility does exist that sensitive information could be, and in fact has been, released.
Both the House and Senate have strict rules controlling sensitive information from the executive. If secret or confidential business or proceedings are disclosed, the offending member would be liable to expulsion.
However, the executive branch can claim that all of these procedures must be read in light of the Gravel case. That case held that the Constitution's speech-and-debate clause confers an absolute immunity from criminal prosecution on members of Congress and their aides for acts pursuant to their "legislative function." In this case, Sen. Mike Grave (D-Alaska), who read classified documents (the Pentagon Papers) into the public record at a congressional subcommittee meeting, was immune from criminal prosecution. A New Procedure
WHAT RESULTS, then, is a classic separation-of-powers dilemma, with the likelihood of more conflicts to come. What is needed is a new procedure that would operate before such conflicts emerge, a set of rules which both sides agree to in advance.
Such rules are feasible and could be adopted into law. They could, for example, allow a Cabinet-level executive, under limited circumstances, to request that "confidential information" sought by Congress be given to it on the condition that the information not be publicly disclosed. By accepting such information, the Congress could be required to set up procedures to protect it.
There could also be a provision whereby, at the request of a Cabinet officer, the president would be authorized to determine that certain information was so sensitive that disclosure even in confidence to Congress as a whole would be dangerous to the "public interest." However, if there were a suspicion that this information might involve a cover-up of high-level impropriety, the Congress could subpoena it for an "in camera" review by either the speaker of the House or the president pro tempore of the Senate, who would determine what essential information should be given to the requesting committee. If either the president or agency head did not cooperate fully with this subpoena, these facts could be certified to the House Judiciary Committee for its consideration in any impeachment proceedings.
In this way, the Congress and executive branch would be establishing a procedure which would both meet the information needs of Congress and the recognized needs for confidentiality in certain areas of the executive.
Nearly two centuries of conflicts in this area culminated in Watergate. Now, with today's relative peace between the two branches, we ought finally to set some guidelines and rules to this never-ending controversy and insure that executive privilege never again escalates to national scandal.