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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Sofaer, Abraham
(2 of 3)
Box: 50
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
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Contact a reference archivist at: [email protected]
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Duke Law Journal
VOLUME 1977
MARCH
NUMBER 1
EXECUTIVE POWER AND THE CONTROL OF
INFORMATION: PRACTICE UNDER
THE FRAMERS
ABRAHAM D. SOFAER*
I. INTRODUCTION
If the level of official conflict over an issue is any indication of its
importance, then the control of information ranks among the most crucial
issues of our time. Name the great concerns of the last decade, and you will
have named the sources of that period's truly momentous information
disputes. For example, the secret planning of the war in Vietnam was
revealed by the publication of papers taken from the Pentagon. 1 Many
believe that congressional support for the war was fraudulently obtained,
when the executive branch supplied false or misleading information about
specific incidents, such as the alleged attack on American vessels in the Gulf
Professor of Law, Columbia University; B.A. 1962, Yeshiva College; LL.B. 1965, New
York University. This paper, in shortened form, was delivered as the tenth annual Brainerd
Currie Lecture at Duke University School of Law. It is based on research conducted by the
author as Director of the ABA Study on the War Powers in American History. The views
expressed are his own.
THE FOLLOWING CITATIONS WILL BE USED IN THIS ARTICLE:
CORRESPONDENCE OF ANDREW JACKSON (J. Bassett ed. 1927) [hereinafter cited as JACKSON
CORRESPONDENCE];
FLORIDA TERRITORIAL PAPERS (National Archives microfilm, M-116, reel 1) [hereinafter
cited as FLA. TERR. PAPERS]:
THE WRITINGS OF JAMES MONROE (S. Hamilton ed. 1898-1903) [hereinafter cited as MONROE
WRITINGS]:
I BRANT. JAMES MADISON. THE PRESIDENT (1956) [hereinafter cited as I. BRANT];
A. SOFAER, WAR, FOREIGN AFFAIRS AND CONSTITUTIONAL POWER: THE ORIGINS (1976)
Ihereinafter cited as A. SOFAER);
Dorsen & Shattuck, Executive Privilege, The Congress and the Courts, 35 OHIO ST. L.J.
1 (1974) [hereinafter cited as Dorsen & Shattuck ).
1. See THE PENTAGON PAPERS: As PUBLISHED BY THE NEW YORK TIMES (1971) (particular-
11 ch. 5, The Covert War and Tonkin Gulf: February-August 1964).
1
2
DUKE LAW JOURNAL
[Vol. 1977:1
of Tonkin and the bombing of Cambodia.²
One of the three articles upon which the House Judiciary Committee
recommended President Nixon's impeachment was his refusal to comply
with the committee's subpoenas. 3 Information was also at the heart of the
first impeachment article, involving as it did the cover-up of the Watergate
burglary. In addition, the action that precipitated Nixon's fall was the
Supreme Court's decision requiring him, despite his claim of privilege, to
turn over subpoenaed material to the district court for in camera inspection. 5
Legislative investigations and litigation have revealed widespread,
illegal surveillance of domestic political groups. 6 Our intelligence agencies
have worked in secret to prop up some foreign governments,⁷ and have
encouraged murder and mayhem to undermine others.⁸
Many Americans have reacted to these and other events with heigh-
tened skepticism about the need for most forms of government secrecy.
Executive secrecy is widely regarded as a cloak for evil, criminal and
unconstitutional activity. Little wonder,- then, that we are in the midst of a
major reappraisal of the extent to which the executive should be required to
surrender information in its control.9
Given the intense reactions to recent events, it seems especially impor-
tant to stress that reappraising the so-called executive privilege requires care
as much as it demands concern. A commitment to maximizing openness in
government is essential if deeply ingrained practices and assumptions are to
be changed. But commitment is not enough. Constitutional questions of
great magnitude are at stake, as is the need for effective execution of foreign
and military policy. The range of opinion on these legal and practical
questions is so wide, moreover, that one should reach conclusions on them
2. See Holtzman V. Schlesinger, 414 U.S. 1304, 1312-13 (1972) (Marshall, J., in chambers,
denying application to vacate stay); CONGRESSIONAL CONFERENCE ON THE PENTAGON PAPERS.
ANATOMY OF AN UNDECLARED WAR (P. Krause ed. 1972).
3. Debate on Articles of Impeachment, Hearings Before the House Comm. on the
Judiciary, 93d Cong., 2d Sess. 449, 489 (1974).
4. Id. at 152-53, 331.
5. United States V. Nixon, 418 U.S. 683 (1974).
6. See, e.g., Hearings on White House Surveillance Activities and Campaign Activities
Before the House Comm. on the Judiciary, 93d Cong., 2d Sess., Bk. VII, pts. 1-4 (1974).
7. See, e.g., STAFF OF SENATE SELECT COMM. To STUDY GOVERNMENTAL OPERATIONS
WITH RESPECT TO INTELLIGENCE ACTIVITIES, COVERT ACTION IN CHILE, 1963-1973, 94th Cong.,
1st Sess. (Comm. Print 1975).
8. See SENATE SELECT COMM. To STUDY GOVERNMENTAL OPERATIONS WITH RESPECT TO
INTELLIGENCE ACTIVITIES. ALLEGED ASSASSINATION PLOTS INVOLVING FOREIGN LEADERS. S.
REP. No. 465, 94th Cong., 1st Sess. (1975).
9. Perhaps the two most dramatic revisions of information policy are the War Powers
Resolution, H.R.J. Res. 542, 87 Stat. 555 (1973) (requiring the President to justify, within
forty-eight hours, any military action taken without a declaration of war), and the recent
amendments to the Freedom of Information Act, 5 U.S.C.A. $ 552 (West Supp. 1976) (dis-
cussed at notes 329-30 infra and accompanying text).
Vol. 1977:1]
CONTROL OF INFORMATION
3
only after a thorough appraisal of the arguments involved. Some claim that
executive privilege is a "myth" propagated by presidents and their apolo-
gists. 10 Others assert that presidents have the constitutional power to refuse
to provide information to either Congress or the courts, even in an impeach-
ment investigation. 11 Some assert that the executive branch would operate
more efficiently if virtually no secrecy were permitted. 12 Others regard
confidentiality as essential in conducting foreign and military matters, as
well as in effectively executing domestic legislation. 13
Recent developments have done little to clarify these issues. The House
Judiciary Committee took the view that its subpoenas could properly be
served on President Nixon, and that the President's failure to comply with
10. Raoul Berger, for example, has testified that the doctrine "rests on unproven asser-
tions by the executive branch" and is a .. 'myth without constitutional foundations.' I
Hearings on S. 858, S. Con. Res. 30, S.J. Res. 72, S. 1106, S. 1142, S. 1520, and S. 2073 Before
the Subcomm. on Intergovernment Relations of the Senate Comm. on Government Operations
and the Subcomms. on Separation of Powers and Administrative Practice and Procedure of the
Senate Comm. on the Judiciary, 93d Cong., 1st Sess. 234, 244 (1973) (statement of Raoul
Berger, quoting George Ball). Professor Berger's work is frequently relied upon. See, e.g.,
Memorandum Prepared in 1971 at the Request of Senator Stevenson of Illinois, reprinted in I
Hearings, supra, at 104, 105 n.1; Dorsen & Shattuck 12 n.33, 17 n.56, 18 & n.63, 21; Van
Alstyne, The Role of Congress in Determining Incidental Powers of the President and of the
Federal Courts: A Comment on the Horizontal Effect of "The Sweeping Clause, 36 OHIO ST.
L.J. 788, 794 n. 24 (1975).
11. Former Attorney General Richard Kleindienst, for example, characterized executive
privilege as
the constitutional authority of the President in his discretion to withhold certain
documents or information in his possession or in the possession of the executive
branch from compulsory process of the legislative or judicial branch of the Govern-
ment, if he believes disclosure would impair the proper exercise of his constitutional
functions.
I Hearings, supra note 10, at 20. President Nixon's refusal to provide material during the House
Judiciary Committee's determination on whether or not to vote impeachment proceedings was
an even more dramatic claim of absolute privilege. The President's position was echoed by
some congressmen. Impeachment Hearings, supra note 3, at 455-56 (remarks of Rep.
Froehlich). See generally Rogers, Constitutional Law: The Papers of the Executive Branch, 44
A.B.A.J. 941 (1958).
12. Senator Frank Moss of Utah, during a Senate hearing, asserted that there should be no
limitation on the ability of Congress to require information from the Executive, and that
"executive privilege is also damaging to the Executive. It insulates him from important
questions concerning issues that can be raised by some 535 inquisitive Congressmen, as well as
the American people, when they are given access to information which it is their right to have."
2 Hearings, supra note 10, at 13. Consider, also, the suggestion of Senator Adlai E. Stevenson
111, that Congress clarify the doctrine of executive privilege so as to avoid "tangled," ill-chosen
usage by the Executive. 1 id. at 94.
13. Sec, e.g., Hearing on Executive Privilege: The Withholding of Information by the
Executive, Before the Subcomm. on Separation of Powers of the Senate Comm. on the Judiciary,
92d Cong., 1st Sess. 428, 431 (1971) (testimony of Assistant Attorney General Rehnquist). See
also Bishop, The Executive Right of Privacy: An Unresolved Constitutional Question, 66 YALE
L.J. 477, 478 n.5 (1957) (discussing Attorney General Brownell's assertion that the President
has "uncontrolled discretion" to withhold material). A particularly useful discussion that
focuses on the need to protect internal debate is found in Baldwin, The Foreign Affairs Advice
Privilege, 1976 Wis. L. REV. 16, 19-20, 23-24, 46.
4
DUKE LAW JOURNAL
[Vol. 1977:1
these demands constituted an adequate ground for impeachment. 14 On the
other hand, the Committee voted against an impeachment article based on
the secret, 15 unlawful bombing of Cambodia, with some members assert-
ing that presidents had frequently acted in secret before, and that it was
sufficient that Nixon had informed certain key congressmen of his actions. 16
The Supreme Court recognized an executive privilege in United States
V. Nixon 17 But it deemed an undifferentiated claim, based on the need to
protect presidential communications, insufficient to immunize material sub-
poenaed by the Special Prosecutor from in camera scrutiny in a criminal
case. 18 The Court left unresolved what it would have required if the Presi-
dent had invoked the privilege on the ground of military necessity or some
other more concrete claim. It also failed to decide the immensely important
issue of the Court's role were Congress to seek judicial enforcement of a
subpoena.
19
How these issues will be resolved is difficult to predict, but one thing
seems certain: legislators, executive officers, judges and others who partici-
pate in the ongoing reappraisal of executive privilege will consult the past in
attempting to settle both constitutional and practical uncertainties. Many
will do this only to justify previously formed opinions. But the potential
value in examining past experience is too great to permit one to abandon the
process merely because it is subject to abuse.
This is especially true in connection with executive privilege. One can
find general understanding and guidance on specific constitutional and
practical questions in the history of how information was handled during the
formative years of experience under the Constitution. This Article will
examine that period in some detail and will comment on some of the lessons
one might reasonably derive from such study.
II. THE FEDERALIST ERA, 1789-1800
The Constitution contemplates that the President, in fulfilling his obli-
gations, will acquire information useful to Congress; it provides that the
President "shall from time to time give to the Congress Information of the
State of the Union
,,20 All of the early presidents regularly submitted
information pursuant to this direction, even, at times, sensitive material
which they asked Congress to keep confidential. 21 Yet, from the very
14. Impeachment Hearings, supra note 3, at 449, 489.
15. Id. at 490, 517.
16. Id. at 496 (remarks of Rep. Edwards); id. at 501-02 (remarks of Rep. Hogan).
17. 418 U.S. 683 (1974).
18. Id. at 713.
19. Id. at 707-13. See discussion by various scholars, in United States V. Nixon, An
Historical Perspective, 9 Loy. L.A.L. REV. 11 (1974). See generally Dorsen & Shattuck 24-40.
20. U.S. CONST., art. II, § 3.
21. See, e.g., 22 ANNALS OF CONG. 375 (1811) (transmittal by Madison of letter from
Vol. 1977:1]
CONTROL OF INFORMATION
5
beginning, presidents withheld certain types of information from their unso-
licited transmittals to Congress.
For example, although President Washington informed Congress gen-
erally about military actions against the Wabash Indians, 22 he withheld for
about a year his orders to General Arthur St. Clair authorizing offensive
actions, 23 as well as an order authorizing General Anthony Wayne to attack
a British-held post in American territory if necessary to defeat the Indians. 24
Under the Constitution, Congress has no express power to compel the
President to provide information. The powers to legislate and to impeach,
however, imply authority to inquire into facts and conduct. Members of the
very first Congress harbored no doubts as to their authority to demand,
through legislation or by resolution, reports from executive officers. For
example, in 1790 the Congress conducted an audit of Robert Morris'
administration of funds as Superintendent of Finance under the Articles of
Confederation, in spite of arguments that only the President was competent
to review the conduct of executive officers. 25
The first real confrontation between the Executive and the Congress
over the control of information arose after the devastating defeat of General
St. Clair by the Wabash Indians in November, 1791. Two-thirds of St.
Clair's army was either killed or wounded; they literally ran from the field
of battle, discarding their arms. 26 A motion was made in the House on
March 27, 1792 to request the President "to institute an inquiry into the
causes of the late defeat of the army under the command of Major General
St. Clair
.,27 This motion failed. The majority of the members
Spanish Minister to Captain General of Caraccas); 2 CONG. DEB. 828-29, 862 (1825) (copy of
confidential letter from Jefferson to Congress written twenty-two years earlier, transmitted by
J.Q. Adams).
22. See Speech by President Washington to Congress (Jan. 8, 1790), reprinted in AMERICAN
STATE PAPERS, 1 FOREIGN RELATIONS 11-13 (1833). Congress, apparently satisfied with this
information, approved increases in the Army to conduct a frontier war. See Act of April 30,
1790, Ch. 10, §§1, 16, 1 Stat. 119, 121; 1 ANNALS OF CONG. 966 (Gales & Seaton eds. 1790).
23. Washington's order of Oct. 6, 1789 to St. Clair authorizing "operations, offensive or
defensive
" against the Wabash and Illinois Indians, AMERICAN STATE PAPERS, 1 INDIAN
AFFAIRS 96-97 (1832), was not sent to Congress until Dec. 9, 1790. Id. at 83. Congress
responded to the news of an offensive expedition with general expressions of approbation.
Letter from Congress to President Washington (Dec. 13, 1790), reprinted in AMERICAN STATE
PAPERS, 1 FOREIGN RELATIONS 14 (1832).
24. The Order of June 7, 1794, issued to Wayne by Secretary of War Henry Knox,
provided: "If therefore in the course of your operations against the Indian enemy, it should
become necessary to dislodge the party at the rapids of the Miami, you are hereby authorized in
the name of the President of the United States to do it
ANTHONY WAYNE: A NAME IN
ARMS 337 (R. Knopf ed. 1960).
25. 1 ANNALS OF CONG. 1168 (Gales & Seaton eds. 1790); 2 id. 1464-65 (1790).
26. See generally T.TAYLOR, GRAND INQUEST: THE STORY OF CONGRESSIONAL INVESTIGA-
TIONS 17-29 (1955); F. Wilson, St. Clair's Defeat, in 11 OHIO ARCH. AND HIST. PUBLICATIONS 30,
39-42 (1903).
27. 3 ANNALS OF CONG. 490 (1792).
6
DUKE LAW JOURNAL
[Vol. 1977:1
wanted the House to conduct its own inquiry, and appointed a committee
with power "to call for such persons, papers, and records, as may be
necessary to assist their inquiries. ,,28 The committee then requested Secre-
tary of War Henry Knox to supply all papers and communications relevant
to the recent military campaign. Knox laid the request before the President,
who called together his distinguished Cabinet (Alexander Hamilton,
Thomas Jefferson, Knox and Edmund Randolph) on March 31, 1792. After
careful consideration, all agreed, in the words of Jefferson, on three points:
[F]irst, that the House was an inquest, and therefore might institute
inquiries. Second, that it might call for papers generally. Third, that the
executive ought to communicate such papers as the public good would
permit, and ought to refuse those, the disclosure of which would injure
the public; consequently were [sic] to exercise a discretion. 29
They also decided that the congressional request should have been directed
not to Secretary Knox but to the President, who controlled all department
heads and papers, and therefore the Cabinet members undertook "to speak
separately to the members of the committee, and bring them by persuasion
into the right channel. '30
Apparently in response to the Cabinet's suggestion, the House addres-
sed a formal request to the President on April 4 that he "cause the proper
officers to lay before this House such papers of a public nature, in the
Executive Department, as may be necessary to the investigation of the
causes of the failure of the late expedition under Major General St. Clair. ,,31
The President cooperated fully, having been advised by his Cabinet "that
there was not a paper which might not be properly produced
"32
Nevertheless, the wording of the request clearly indicated that the House
had also concluded that the President should sometimes be enabled, if he
was not entitled, to maintain the confidentiality of certain executive opera-
tions.
The practice of including in requests for information a clause which
enabled the President to exercise his discretion soon became routine. 33
28. Id. at 493. Representative William Smith of South Carolina opposed as unprecedented
an inquiry into conduct under the executive's control, viewing it as an implied impeachment of
the President. Id. at 491.
29. THE COMPLETE JEFFERSON 1222 (S. Padover ed. 1943). See generally Landis, Constitu-
tional Limitations on the Congressional Power to Investigate, 40 HARV. L. REV. 153 (1926).
30. THE COMPLETE JEFFERSON, supra note 29, at 1223.
31. 3 ANNALS OF CONG. 536 (1792) (emphasis added).
32. THE COMPLETE JEFFERSON, supra note 29, at 1223.
33. For example, on Jan. 20, 1794, when the possibility arose that a letter from the
Secretary of State to the British Minister had been omitted from material on Anglo-American
relations transmitted earlier, the House agreed to a resolution that the President be "requested
to lay before the House the omitted letter, or such parts as he may think proper. 4 ANNALS OF
CONG. 250-51 (1794).
Vol. 1977:1]
CONTROL OF INFORMATION
7
Indeed, some congressmen expressed the view that, even if a request for
information contained no qualification recognizing an executive discretion
to withhold, the President had the power and the duty to refuse to submit
material if in his opinion disclosure would harm the national interest. 34
The issue arose again in 1794 when the Senate requested the President
to submit correspondence concerning United States relations with France.
The Senate resolution contained no words enabling the President to withhold
material. 35 Washington was concerned, because much of the information
contained in letters from Gouverneur Morris, the American minister to
France, was sensitive, and he again convened his Cabinet to seek their
advice. Knox urged that all the material requested be withheld. Hamilton,
Randolph and Attorney General William Bradford recommended that the
President exercise his discretion and withhold whatever the public safety
required. 36 Bradford specifically addressed himself to the absence of qual-
ifying language in the resolution:
[T]he general terms of the resolve do not exclude, in the construction
of it, those just exceptions which the rights of the Executive and the
nature of foreign correspondences require. Every call of this nature,
where the correspondence is secret and no specific object pointed at,
must be presumed to proceed upon the idea that the papers requested
are proper to be communicated; and, it could scarcely be supposed,
even if the words were stronger, that the Senate intended to include any
letters, the disclosure of which might endanger national honor or indi-
vidual safety. 37
Washington accepted the view espoused by the majority of his Cabinet
and sent the Senate everything except "those particulars which, in my
judgment, for public considerations, ought not to be communicated. ,,38 He
34. During a House debate concerning a proposed request that the Secretary of the
Treasury draft a plan to redeem part of the public debt, Representative John F. Mercer of
Maryland, an opponent of the request, stated that executive officers hold
the documents and information that arise in the administration of Government which
this House may require of the Executive Magistrate, and which he will communicate
as he sees fit. The House may go too far in asking information. He may constitution-
ally deny such information of facts there deputed as are [not?] fit to be communicated
3 id. at 707 (1792).
Other such statements were made in connection with the Jay Treaty debate. See, for
example, the assertion by Representative James Hillhouse of Connecticut that the President
"also had an undoubted Constitutional right, and it would be his duty to exercise his discretion
on this subject, and withhold any papers, the disclosure of which would, in his judgment, be
injurious to the United States
5 id. at 675 (1796).
35. 4 id. at 38 (1794).
36. 15 THE PAPERS OF ALEXANDER HAMILTON 666-67 (H. Syrett & J. Cooke eds. 1969).
37. Letter from Attorney General William Bradford to President Washington (1793), re-
printed in 4 THE WORKS OF ALEXANDER HAMILTON 494-95 (J. Hamilton ed. 1850) (emphasis in
original).
38. 4 ANNALS OF CONG. 56 (1794).
8
DUKE LAW JOURNAL
[Vol. 1977:1
deleted from the copies of the letters transmitted several paragraphs in which
Morris appraised France's leaders and its political situation, often in colorful
and derogatory terms. 39 The Senate took no action to obtain the deleted
information. 40
The most controversial debates concerning information took place after
John Jay successfully negotiated the treaty with Great Britain which bears
his name. The treaty was disadvantageous to the United States in that Jay,
contrary to his original instructions, agreed to various restrictions on Ameri-
can commerce. Nevertheless, the prospect of peace and the fact that the
British would withdraw from their western posts were sufficient to cause the
President to seek ratification of the treaty.
Washington suppressed all information about the treaty for at least
three months, from March 7 to June 8, 1795, until the Senate reconvened. 41
At that time, he sent them copies of all his instructions to Jay, including
those that were potentially embarrassing to the Administration. The predo-
minantly Federalist Senate approved the -treaty in secret session on June
24.42 When the House convened in December of that year, it was dominated
by men who would later form Thomas Jefferson's Republican Party. They
were highly critical of the treaty, and they had their chance to express their
disapproval when Washington asked for an appropriation of $90,000 to pay
for the arbitrations contemplated in the agreement. A Republican represen-
tative, Edward Livingston of New York, proposed on March 2, 1796 that
39. The National Archives microfilm, Despatches from United States Ministers to France
(M-34, reel 6), reveals bracketed portions of the dispatches, apparently deleted in the original
transmittals to Congress. In addition, one dispatch, Number 34, was withheld in its entirety,
apparently because it contained nothing significant.
In addition to deleting information from Morris' letters to the State Department, Washing-
ton never submitted to Congress any part of the extensive correspondence which he carried on
with Morris. Several letters between Washington and Morris indicate their understanding that
the exchange was private. See, e.g., Letter from President Washington to Gouverneur Morris
(Dec.17 1790), reproduced in PAPERS OF GEORGE WASHINGTON (Library of Congress microfilm,
series 2, reel 7).
The fact that most of these "private" letters were withheld from Congress becomes
apparent upon examination of AMERICAN STATE PAPERS, a government compilation of public
documents published in the early 1800s. Following the letters submitted by the President
pursuant to the Senate's 1794 request, Correspondence between Gouverneur Morris and
Secretary of State Thomas Jefferson (1792-93), reprinted in AMERICAN STATE PAPERS, 1
FOREIGN RELATIONS 329-78 (1833), the publishers have printed a series of letters between
Washington and Morris in order "[t]o complete the view of the French Revolution." Id. at 379.
40. 4 ANNALS OF CONG. 56 (1794).
41. 7 D. FREEMAN, GEORGE WASHINGTON 237-39, 248 (1957) (volume authored by J. Carroll
& M. Ashworth). This suppression of information by the President was "a course which he
hoped would save the treaty from slander [in the press] until the Senate could deliberate it." Id.
at 248.
42. 4 ANNALS OF CONG. 863 (1795). Senate ratification was conditioned on the addition to
the treaty of an agreement to suspend an article concerning United States trade with the British
West Indies. Id.
Vol. 1977:1]
CONTROL OF INFORMATION
9
the President be requested to provide the House with copies of the instruc-
tions given Jay, as well as other correspondence and documents relating to
the treaty, 43 all of which had previously been supplied in confidence to the
Senate. On March 7, before the resolution had been discussed, Livingston
sought to amend it to except "such of said papers as any existing negotiation
may render improper to be disclosed.
The President read of Livingston's motion in the newspaper on March
3 and immediately sought advice from Hamilton, then a private citizen. 45
Hamilton advised the President against complying with the House resolution
if it were to pass:
[I]n a matter of such a nature the production of the papers cannot fail to
start [a] new and unpleasant Game-it will be fatal to the Negotiating
Power of the Government if it is to be a matter of course for a call of
either House of Congress to bring forth all the communication however
confidential. 46
Meanwhile, in the House, Representative James Madison suggested
casting "the resolution into such form as not to bear even the appearance of
encroaching on the Constitutional rights of the Executive. ,,47 But his effort
to allow the President discretion to withhold material failed, and an extraor-
dinary and extensive debate then took place on Livingston's resolution.
Virtually all the debate's participants shared the view that the House had
broad power to seek information. 48 At the same time, the view was widely
shared that the President had discretion to decline to furnish requested
information. 49 The chief argument of those who opposed the resolution was
that the information could not be relevant to House proceedings, since
reviewing treaties was not a House function. 50
43. 5 id. at 400-01 (1796).
44. Id. at 426.
45. Letter from President Washington to Treasury Secretary Oliver Wolcott, Jr. (Mar.3,
1796), reprinted in 34 THE WRITINGS OF GEORGE WASHINGTON 481-82 (J. Fitzpatrick ed. 1940)
(instructing Wolcott to seck Hamilton's advice).
46. Letter from Alexander Hamilton to President Washington (Mar. 7,1796), reprinted in
20 THE PAPERS OF ALEXANDER HAMILTON, supra note 36, at 68-69.
47. 5 ANNALS OF CONG. 438 (1796).
48. See, e.g., id. at 448 (remarks of Rep. Heath: "[T]he request
is a Constitutional
right of this House to exercise now, and at all times, founded upon a principle of publicity
essentially necessary in this, our Republic, which has never been opposed
");
id.
at
622
(remarks of Rep. S. Smith: the House's practice had been "[i]nvariably to ask for all and every
paper that might lead to information").
49. Recognizing the House's right to request information and the President's correspond-
ing discretion to withhold were, among others, Representative John Swanwick of Pennsylvania:
"[there was] no impropriety in calling for the information which the PRESIDENT could
withhold if not proper to be given." Id. at 449. In fact, asserted Swanwick, the House was
duty-bound to call for anything necessary or useful. Id. Similarly, another member asserted
that "each department of Government ought to be the sole judge when to make any part of its
proceedings public." Id. at 453 (remarks of Rep. Smith).
50. See, e.g., id. at 439-44 (remarks of Rep. Smith); id. at 458 (remarks of Rep. Harper); id.
10
DUKE LAW JOURNAL
[Vol. 1977:1
In addition, many of the opponents regarded the call for information as
politically motivated. The papers requested would have shown that John Jay
had departed from his instructions in accepting some British positions that
were very unpopular in America. In fact it would appear that publicity was
the motion's primary purpose, since the information had been made avail-
able to the House Committee on American Seamen, whose chairman was
none other than Representative Livingston, and could have been seen by
"any member of that House who would request it. ,,51 Nevertheless, the
resolution was adopted on March 24, by a vote of 62-37. 52
Washington immediately sought the advice of his Cabinet. 53 Every
Cabinet member advised that the House had no constitutional right to
demand and obtain the papers and that, even if the request were proper, the
President possessed discretion to deny it. The Cabinet was divided, how-
ever, on whether compliance would be expedient. 54 Private citizen Hamil-
at 478 (remarks of Rep. Griswold); id. at 553-54 (remarks of Rep. Bradbury); id. at 593-94
(remarks of Rep. Smith). Further, the request was seen as improper and embarrassing to the
President for forcing him to decide whether to do his duty in refusing the material, or to accede
to the request because of his desire to cooperate with Congress. Id. at 457 (remarks of Rep.
Smith). Supporters of the resolution countered that the House could consider the merits of any
treaty dealing with matters specifically delegated to the Congress by the Constitution. See, e.g.,
id. at 445-46 (remarks of Rep. Nicholas); id. at 449-50 (remarks of Rep. Swanwick); id. at
464-65 (remarks of Rep. Gallatin); id. at 545-47 (remarks of Rep. Holland); id. at 560-63
(remarks of Rep. Page); id. at 632 (remarks of Rep. Livingston). In any event, the House could
use the information in considering actions against executive officers, see,e.g., id. at 575
(remarks of Rep. Brent); id. at 601 (remarks of Rep. Lyman), or simply to gain intelligence on
the state of the Union, id. at 593 (remarks of Rep. Findley).
51. Id. at 461 (remarks of Rep. Harper).
52. Id. at 759.
53. Letter from President Washington to Secretaries of State, Treasury and War and the
Attorney General (March 25, 1796), reprinted in 34 THE WRITINGS OF GEORGE WASHINGTON,
supra note 45, at 505.
54. According to Attorney General Charles Lee, "The President has the right to decide
whether he will comply with a request for papers on a subject properly under Congress'
cognizance and which may with propriety be communicated to them." In the area of foreign
relations, Lee believed that the President "may withhold from [the House] the confidential
communications between foreign ministers and our own on the subject of a Treaty either
pending or concluded when
He shall think it best," and that the President is "bound by the
Considerations of Good Faith" to American and foreign ministers to do so on occasions. Letter
from Attorney General Charles Lee to President Washington (March 26, 1796), reproduced in
PAPERS OF GEORGE WASHINGTON, supra note 39, series 4, reel 109. James McHenry concluded
that "the President is the sole judge of what or whether any papers ought to be laid before the
House at this juncture." Letter from Secretary of War James McHenry to President Washing-
ton (March 26, 1796), reproduced in id. Oliver Wolcott, Secretary of Treasury, said that the
President should give as one of the reasons for denial: "That in the exercise of the duties
committed to the President, secresy [sic] and personal confidence are sometimes essential, and
that a regard to the public interests and to the obligations of good faith, will not always permit a
full disclosure of all documents connected with foreign negotiations.' Letter from Secretary of
the Treasury Oliver Wolcott to President Washington (March 26, 1796), reprinted in 1 MEMOIRS
OF THE ADMINISTRATION OF WASHINGTON AND JOHN ADAMS 317 (G. Gibbs ed. 1846). Secretary
of State Timothy Pickering sent Washington a draft of the message eventually sent to the
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CONTROL OF INFORMATION
11
ton, who had been allowed to review Jay's instructions, recommended
non-disclosure since publication "[would] do no credit to the administra-
tion. ..55 Washington refused the House request, primarily on the ground that
the papers were relevant to no House function "except that of an impeach-
ment; which the resolution had not expressed. ,,56 His message therefore did
not state a full-blown theory of executive privilege. The message did,
however, suggest such a doctrine in describing the reasons why full disclo-
sure might have been dangerous. 57
At this point, Congress confronted for the first time the problem of
deciding how to deal with a presidential refusal to provide information. On
March 31, 1796, several Republicans sought to have the President's mes-
sage referred to a Committee of the Whole. 58 Although no one in favor of
the referral believed that it might lead to a further demand, they contended
that the President's reasons for refusing to comply, if allowed to stand
without response, might be regarded as an accurate statement of the House's
powers. 59 The House reporter recorded Madison's comments, which ex-
pressed the prevailing view of the House:
He [Madison] thought it clear that the House must have a right, in all
cases, to ask for information which might assist their deliberations on
the subject submitted to them by the Constitution; being responsible,
nevertheless, for the propriety of the measure. He was as ready to
admit that the Executive had a right, under a due responsibility, also to
withhold information, when of a nature that did not permit a disclosure
of it at the time. And if the refusal of the PRESIDENT had been
House. The draft contained a passage, omitted from the final version, asserting executive
discretion as to when and how to comply with information requests. Draft of Washington's
Speech to the House of Representatives (March 26, 1796), reproduced in PAPERS OF GEORGE
WASHINGTON, supra note 39, series 4, reel 109.
55. Letter from Alexander Hamilton to President Washington (March 28, 1796), reprinted
in 20 THE PAPERS OF ALEXANDER HAMILTON, supra note 36, at 83. Supplementing this frank,
political view Hamilton wrote a letter stating that the request should also be denied because of
the need for discretion in divulging the details of international negotiations, and because the
House lacked any function related to the demand. Letter from Alexander Hamilton to President
Washington (Mar. 29, 1796), reprinted in id. at 86-102 (containing a draft of a reply to the
congressional request); see 7 D. FREEMAN, supra note 41, at 354.
56. 5 ANNALS OF CONG. 760 (1796).
57. The nature of foreign negotiations requires caution; and their success must often
depend on secrecy; and even, when brought to a conclusion, a full disclosure of all
the measures, demands, or eventual concessions which may have been proposed or
contemplated would be extremely impolitic: for this might have a pernicious influ-
ence on future negotiations; or produce immediate inconveniences, perhaps danger
and mischief, in relation to other Powers.
[T]o admit
a right in the House
of Representatives to demand, and to have, as a matter of course, all the papers
respecting a negotiation with a foreign Power, would be to establish a dangerous
precedent.
Id. ; sec Letter from President Washington to Alexander Hamilton (Mar.31, 1796), reprinted in
35 THE WRITINGS OF GEORGE WASHINGTON, supra note 45, at 6-8.
58. 5 ANNALS OF CONG. 762 (remarks of Rep. Blount and Rep. Giles).
59. See, e.g., id. at 764-65 (remarks of Rep. Harper).
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founded simply on a representation, that the state of the business
within his department, and the contents of the papers asked for, re-
quired it, although he might have regretted the refusal, he should have
been little disposed to criticise it. But the Message had contested what
appeared to him a clear and important right of the House; and stated
reasons for refusing the papers, which, with all the respect he could
feel for the Executive, he could not regard as satisfactory or proper. 60
In spite of Federalist insistence that the President's refusal was final, 61
the message was referred to committee. 62 After considerable discussion, the
Committee of the Whole passed two resolutions. The first affirmed a
discretionary role for the House in implementing treaties that regulate
subjects assigned by the Constitution to Congress. 63 The second declared it
unnecessary in requests for information from the President, "which may
relate to any Constitutional functions of the House, that the purpose for
which such information may be wanted, or to which the same may be
applied, should be stated in the application.
While these resolutions did little more than vent the majority's frustra-
tion, the House still held the highest trump. Without a $90,000 appropria-
tion, Washington could not implement the treaty. A second major debate
ensued in which Fisher Ames spoke so movingly in favor of the treaty that
even crusty old John Adams, the Vice President, openly wept in the House
gallery. Behind-the-scenes threats, promises and personal pressure split the
Republican majority, resulting in a 51-48 vote in favor of the appropria-
tion. 65 This close vote dramatically demonstrated what the House could
have done had it thought that the information was really necessary to judge
the treaty's merits.
The essentially political nature of disputes over information was re-
flected again in the only important information controversy during the John
Adams administration-the XYZ Affair. America's ministers to France sent
Adams certain coded dispatches describing the demeaning treatment they
had received, which included an effort by agents of French Minister Tal-
leyrand to force them to pay a bribe. Adams received the dispatches on
March 4, 1798, along with an uncoded letter describing the latest French
60. Id. at 773 (remarks of Rep. Madison).
61. See, e.g., id. at 762 (remarks of Rep. Thatcher); id. at 763 (remarks of Rep. Sedgwick);
id. at 763-64 (remarks of Rep. Sitgreaves).
62. Id. at 768, 771.
63. [W]hen a Treaty stipulates regulations on any of the subjects submitted by the
Constitution to the power of Congress, it must depend, for its execution, as to such
stipulations, on a law or laws to be passed by Congress. And it is the Constitutional
right and duty of the House of Representatives, in all such cases, to deliberate on the
expediency of carrying such Treaty into effect, and to determine and act thereon, as,
in their judgment, may be most conducive to the public good.
Id. at 771.
64. Id. at 771-72.
65. Id. at 1291; see J.COMBS. THE JAY TREATY 184-88 (1970).
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CONTROL OF INFORMATION
13
decree against American shipping. He sent the uncoded letter to Congress
immediately, along with a message urging them to adopt the military
measures he had recommended to prepare for war against France. 66 He
delayed sending the coded dispatches, however, because he felt the
negotiators' lives might be jeopardized by disclosure.⁶
This failure to submit to Congress all available information led Repub-
licans to speculate that the dispatches would prove that the Federalists had
negotiated with France in bad faith. 68 Senator Joseph Anderson moved on
March 20 that the Senate request the President to supply the dispatches,
apparently hoping that disclosure would ease the pressure for war prepara-
tions.69 When Alexander Hamilton learned of Anderson's motion, he im-
mediately wrote to his friend, Secretary of State Timothy Pickering. Appar-
ently aware that the contents of the dispatches would greatly aid the Federal-
ist effort to arm the nation for war against France, he urged their immediate
disclosure. 70 Pickering agreed,⁷ and he soon convinced President Adams
that disclosure was essential to support the Administration's policy.
Nevertheless, the President was understandably reluctant to take the initia-
tive, having already decided to delay disclosure in order to avoid endanger-
ing his negotiators. 72
Leading Republicans in the House misjudged the situation. They
thought Adams was protecting himself and began to criticize his action. 73
Representative John Allen of Connecticut, an Administration supporter,
responded to Republican charges by introducing a resolution requesting the
President to provide the dispatches "or such parts thereof as considerations
of public safety and interest in his opinion, may permit. ,,74 In response to
Republican objections to the limitations in his motion, Allen obligingly
agreed to eliminate the language and asked only for a qualification identical
to the one used earlier in requesting the Jay Treaty papers. 75 This accom-
modating gesture served only to make Republicans all the more suspicious,
and John Nicholas of Virginia moved to strike Allen's proposed qualifica-
tions, threatening to vote against the resolution if it contained any excep-
tion. 76 Much to Nicholas' consternation, Allen agreed to accept an unqual-
66. 7 ANNALS OF CONG. 1200-01 (1798).
67. See 2 P.SMITH, JOHN ADAMS 955 (1962).
68. See 8 ANNALS OF CONG. 1254-65 (1798).
69. 7 id. at 525 (1798).
70. Letter from Alexander Hamilton to Secretary of State Timothy Pickering (Mar.23,
1798), reprinted in 21 THE PAPERS OF ALEXANDER HAMILTON, supra note 36, at 368.
71. Letter from Secretary of State Timothy Pickering to Alexander Hamilton (Mar.25,
1798). reprinted in id. at 370-77.
72. See 2P. SMITH, supra note 67, at 959.
73. See, e.g., 8 ANNALS OF CONG. 1349 (1798) (remarks of Rep. Giles).
74. Id. at 1358 (emphasis in original).
75. Id. at 1368. See text accompanying note 44 supra.
76. 8 ANNALS OF CONG. 1368 (1798).
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ified request, stating that he did not want to "give gentlemen an opportunity
of voting against the resolution. ..77 "[T]he President," he continued,
"would be authorized by the Constitution to retain such parts of the papers
as he may think it improper to communicate, [and] therefore, it was
immaterial whether the resolution contained any exception
.,78
The unqualified request was then approved overwhelmingly. 79 Though
he suggested in his response to Congress that he possessed discretion to
withhold the material, Adams, probably with considerable pleasure, trans-
mitted the secret dispatches to both the House and Senate. 80 Republicans
reeled in shock and despair at what they read. Federalists rejoiced. The XYZ
Affair became public issue number one, and America was speeded on its
way to war with France.
III. INFORMATION PRACTICES UNDER THOMAS JEFFERSON
A fundamental tenet of Republican party ideology in 1800 was the
desirability of greater openness in government. Republicans called generally
for legislative control of important military and foreign affairs decisions. To
accomplish such a shift in power, the legislature would have to request
information more frequently and forcefully, and the executive would have to
be more willing to provide it. 81
Jefferson, the leading Republican, was therefore considered an advo-
cate of openness. Once elected President, however, Jefferson sent Congress
less material than either Washington or Adams had submitted. In addition,
he expanded the use of codes, especially in diplomatic correspondence, and
withheld most encoded letters from Congress.⁸² More significantly, he
77. Id.
78. Id. at 1368-69. While Federalist statements such as Allen's, asserting an inherent
executive discretion to withhold information, were undoubtedly part of an overall political
strategy, the same cannot be said of the argument of Republican Albert Gallatin, id. at 1371,
that if
after having examined the dispatches, [the President] is convinced it will be highly
injurious to the public welfare, or endanger the safety of our Commissioners, or
prevent the happy issue of our negotiation, to communicate the information he will
either give it, or state his reasons for withholding it to the House.
79. Id. at 1371.
80. Adams chose to transmit to both the House and Senate all the instructions and letters,
"omitting only some names, and a few expressions descriptive of the persons" who had
attempted to obtain bribes from the envoys. He requested that the materials "be considered in
confidence until the members of Congress are fully possessed of their contents and shall have
had opportunity to deliberate on the consequences of their publication; after which time, 1
submit them to your wisdom." Id. at 1374-75.
81. The principles of Jeffersonian Republicanism have been gathered in several sources.
See, e.g., H. ADAMS. JOHN RANDOLPH 33-34 (1899); 4 D. MALONE, JEFFERSON AND HIS TIME:
JEFFERSON THE PRESIDENT xvi-xix, 436-37 (1970); L.WHITE, THE JEFFERSONIANS 13-15, 550-53
(1959).
82. Jefferson's papers contain coded letters dating back to 1785, when, as Minister to
Paris, he corresponded with John Adams, then Minister to London. 13 PAPERS OF THOMAS
Vol. 1977:1]
CONTROL OF INFORMATION
15
added a new dimension to executive secrecy by setting up a system of dual
correspondence in conducting foreign affairs. One set of letters was treated
as official, and kept in State Department files; the other was deemed
"private" or "confidential" and held by Jefferson in his personal cus-
tody. 83 One apparent purpose of this system was to keep the "private"
statements he made in conducting foreign affairs out of the hands of
Congress and the public.
Congress realized that information was being withheld, 84 and some
members specifically charged that a system of dual correspondence ex-
isted. 85 Nevertheless, both houses were dominated by Republicans who in
general felt duty-bound to protect the executive from embarrassment and
interference. Motions to investigate or to request information concerning
important foreign or military matters were therefore repeatedly rejected. 86
Federalist Representative Barent Gardenier of New York was led at one
point to remark: "Darkness and mystery overshadows this House and this
whole nation. We know nothing, we are permitted to know nothing. We sit
here as mere automata; we legislate without knowing, nay, sir, without
wishing to know, why or wherefore. .,87 Those requests for information
which were passed almost invariably included qualifications permitting the
President to withhold sensitive material. 88 In addition, the requests often
JEFFERSON 2262-64 (Library of Congress microfilm, geel 7). He developed a highly sophisticated
code, even by today's standards. See generally .KAHN, THE CODE BREAKER 192 (1967); 6
PAPERS OF THOMAS JEFFERSON x-xi (J. Boyd ed. 1952).
83. Jefferson explained his policy in a letter to Robert Livingston, then Minister to France,
which set forth three categories into which Jefferson divided information. 8 THE WRITINGS OF
THOMAS JEFFERSON 143-44 (P. Ford ed. 1897). Numerous examples of Jefferson's use of
"private" correspondence may be found. See, e.g., Letter from President Jefferson to James
Monroe (Jan. 13, 1803), reprinted in id. at 190 ("private" instructions to the American
negotiator in France, which were not turned over to Congress with the other papers about the
Louisiana Purchase characterized by Jefferson as relevant and important); Letter from Presi-
dent Jefferson to Secretary of State Madison (Aug. 27, 1805), reprinted in 10 THE WORKS OF
THOMAS JEFFERSON 172 (Fed. ed. 1905) (one of many letters discussing strategies and alterna-
lives respecting relations with Britain, virtually all withheld from Congress).
84. See 10 THE WORKS OF THOMAS JEFFERSON, supra note 83, at 172; 19 ANNALS OF CONG.
1081 (1809) (remarks of Rep. Burwell); id. at 1086 (remarks of Rep. Macon).
85. See, e.g., 19 ANNALS OF CONG. 424 (1809) (remarks of Sen. Hillhouse).
86. See, e.g., 12 id. at 312, 352, 357, 359-61, 368 (1803) (resolution requesting documents
relating to Spain's cession of Louisiana to France); 17 id. at 1240 (1807) (resolution requesting
information about French decree prompting imposition of embargo); 18 id. at 1461 (1808)
(resolution proposing an inquiry into allegation that James Wilkinson had received moneys from
Spain while an officer of the United States); WILLIAM PLUMER'S MEMORANDUM OF PROCEED-
INGS IN THE UNITED STATES SENATE, 1803-1807, at 23-24 (E. Brown ed. 1923) (request for
documents showing France's title to Louisiana).
87. 18 ANNALS OF CONG. 1656 (1808).
88. See, e.g., 15 id. at 71 (1806) (Senate motion requesting President to supply copy of
letter from Monroe to Secretary of State Madison "if he shall judge the same to be proper
"); 16 id. at 336 (1807) (House request for information relating to Burr conspiracy "in
possession of the Executive, except such as he may deem the public welfare to require not to be
disclosed
"). That a motion for information was qualified was no guarantee of its adoption,
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[Vol. 1977:1
called only for the correspondence of the Secretary of State, 89 thus enabling
Jefferson to withhold his "private" correspondence.
It is in the context of such legislative deference that one must judge the
significance of the fact that Jefferson never expressly invoked a privilege to
withhold material from Congress. He had no need to do so. Had Congress
been less deferential, Jefferson may well have relied on the executive
discretion he had advised Washington that the President possessed. 90 One
incident seems particularly illustrative. During 1802, the House appeared on
the verge of passing a resolution requesting information about expenditures
made to repair a captured French ship. Several members wanted to ask why
the project had been undertaken. Representative William Giles, a leading
Republican, reluctantly supported the resolution, stating that he "had never
felt any disposition to deny useful information to the members of the House
,,91 Jefferson promptly wrote to Giles, expressing his disapproval of
the part of the resolution relating to his purpose, and threatening to refuse
compliance. 92 The next day, Giles returned to the House floor and had that
clause stricken from the request. 93
Toward the end of Jefferson's second term, however, Congress demon-
strated how effectively it could use its powers to obtain information when it
chose to do so. By 1808, many Republicans had become disenchanted with
Jefferson's embargo policy and were also not convinced of the need to
augment the military, as Jefferson desired. Nonetheless, they persisted in
refusing to pass information requests, insisting that the President could be
trusted to supply information when it was necessary to act. 94 At the same
though adding a qualification enabled Jefferson's political opponents to argue more effectively
that Congress should request information, since, they asserted, the President could always
withhold material the disclosure of which might be harmful. See, e.g., 12 id. at 312 (1803)
(resolution and remarks of Rep. Griswold); 18 id. at 1640 (1808) (resolution and remarks of Rep.
Van Dyke).
89. See, e.g., 19 id. at 306, 309-10 (1809).
90. See note 29 supra and accompanying text.
91. 11 ANNALS OF CONG. 1140 (1802).
92. Letter from President Jefferson to Representative Giles (April 6, 1802), reprinted in 8
THE WRITINGS OF THOMAS JEFFERSON, supra note 83, at 141-43.
93. 11 ANNALS OF CONG. 1142-52 (1802). On one occasion, Jefferson provided inaccurate
information about a naval encounter, and managed to obtain from Congress an authorization to
conduct war against Tripoli that was strikingly similar to the Gulf of Tonkin resolution. This
encounter is described in A. SOFAER 210-14. An analysis of the Navy's instructions indicates
that offensive action was authorized, contrary to the impression Jefferson communicated in his
famous statement to Congress characterizing the squadron as "[u]nauthorized by the Constitu-
tion, without the sanction of Congress, to go beyond the line of defense
11 ANNALS OF
CONG. 11-12 (1801). Congress responded to Jefferson's request for an act authorizing offensive
measures by passing the Act of Feb. 6, 1802, ch.4, § 2, 2 Stat. 130, which explicitly authorized
the President to capture and make prizes of any Tripolitan vessel and "to cause to be done all
such other acts of precaution or hostility as the state of war will justify, and may, in his opinion,
require." Id. Compare this with the Gulf of Tonkin Resolution, Aug. 10, 1964, § 78 Stat. 384.
94. See, e.g.,, 18 ANNALS OF CONG. 1640 (1808) (remarks of Rep. Dawson); id. at 1644-45
(remarks of Rep. Van Horn).
Vol. 1977:1]
CONTROL OF INFORMATION
17
time, however, they began to resist increases in the size of the military
primarily because the necessary information had not been provided, thus
pressuring the President to provide more information in support of his
policies.⁹⁵
The only important confrontation over information between a President
and the federal courts prior to United States V. Nixon⁹⁶ took place during
Jefferson's administration. Chief Justice John Marshall indicated that he
regarded executive confidences as privileged when, in Marbury V. Madi-
son,97 the Court stated its grounds for excusing Attorney General Levi
Lincoln from answering one of several questions related to Marbury's
commission. 98 At the same time, however, the Court made it equally clear
that material information had to be revealed where it had not been communi-
cated to the official in confidence.
These propositions were reaffirmed during the trial of Aaron Burr, over
which Marshall presided. Although Jefferson insisted that his presence
could not be demanded, and that his judgment of what the public interest
required to be disclosed was final, he accepted subpoenas for documents and
supplied information. 100 Marshall, on the other hand, insisted at various
points on judicial review of the propriety of any withholding, under a
standard that would defer to the President's judgment absent proof that the
information was essential to avoid injustice. Marshall made clear, however,
that the remedy he contemplated for executive withholding would be dismis-
sal of the prosecution, rather than an order directing the President to appear
or punishing any executive officer. 101
These rulings and positions are clearly set forth in the record of the
case. What becomes clear only upon close examination of the available
evidence is that Jefferson secretly withheld material covered by the first
subpoena Marshall issued. That subpoena called for a letter of October 21,
1806 from the Government's chief witness, General James Wilkinson,
"together with the documents accompanying it. ,,102 Jefferson never re-
95. See, e.g., id. at 1690-92 (1808).
96. 418 U.S. 683 (1974). See note 5 supra and accompanying text.
97. 5 U.S. (1 Cranch) 137 (1803).
98. Id. at 145.
99. Id. at 144.
100. Letters from President Jefferson to U.S. Attorney George Hay, reprinted in 9 THE
WRITINGS OF THOMAS JEFFERSON, supra note 83, at 55n-64n. The President insisted on his
"necessary right
to decide, independently of all other authority, what papers coming to
him as President, the public interests permit to be communicated, and to whom
..
10 THE
WORKS OF THOMAS JEFFERSON, supra note 83, at 398-99.
101. See 3T. CARPENTER. THE TRIAL OF COL. AARON BURR 290-94 (1808); I ROBERTSON.
REPORTS OF THE TRIALS OF COLONEL AARON BURR FOR TREASON 181-87, 535-36 (1808); Freund,
The Supreme Court, 1973 Term-Foreword: On Presidential Privilege, 88 HARV. L. REV. 13,
23-31 (1974).
102. The original subpoena is on file at the Clerk's office, at the federal district court,
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[Vol. 1977:1
vealed, even to his counsel, that the letter expressly described was accom-
panied by another letter from Wilkinson of the same date, and a memoran-
dum detailing Wilkinson's perception of the conspiracy and its particip-
ants. 103 These documents would have helped destroy whatever was left of
Wilkinson's credibility and were, therefore, arguably "essential" to the
defense of a capital case. But Jefferson apparently regarded them as "pri-
vate" or "confidential" and therefore withheld them without comment.
IV. SECRECY AS A TOOL OF EXPANSIONISM, 1809-1825
In general, information practices established in prior administrations
were followed by Presidents James Madison and James Monroe. Both men
voluntarily submitted large quantities of material. 104 However, they also
withheld a considerable amount of information, including "private" letters
and "confidential" communications. 105 While Congress exercised its inves-
tigative powers more freely, 106 many requests for critically important infor-
mation were blocked by administration supporters. 107 In addition, both
houses almost invariably added qualifications to the information requests
they passed, enabling the Executive to withhold material when it deemed
such action to be in the public interest. 108
Eastern District of Virginia, in Richmond. The author has had access to a copy of the subpoena,
kindly supplied by Professor Dumas Malone.
103. 10 THE WORKS OF THOMAS JEFFERSON, supra note 83, at 405 n.1; see 5 D. MALONE,
supra note 81, at 248-49, 325.
104. Even material on potentially dangerous international situations was submitted. Madi-
son, for example, informed Congress of threats made by Algiers. Letter from President
Madison to Congress (Feb.23, 1815), reprinted in 2 COMPILATION OF THE MESSAGES AND PAPERS
OF THE PRESIDENTS. 1789-1897, at 539 (1917). Monroe communicated material pertaining to
delicate relations with Spain. 31 ANNALS OF CONG. 13-14 (1817).
105. Some material was withheld because its transmittal was unnecessary for conveying to
Congress an accurate picture of the issues involved. But both presidents went further than this
in their withholding practices. Sec, e.g., Letter from William Pinkney, Minister to Britain, to
Secretary of State Robert Smith (Jan. 4, 1810) (discussed in Letter from William Pinkney to
President Madison (Aug. 13, 1810), reprinted in W. PINKNEY, LIFE OF WILLIAM PINKNEY 244-45
(1853)) (concerning a conversation between Pinkney and Foreign Secretary Lord Wellesley,
publication of which might have produced "serious embarrassment"); Letter from President
J.Q. Adams to Thomas Randall (April 29, 1823), reprinted in 1 DIPLOMATIC CORRESPONDENCE OF
THE UNITED STATES CONCERNING THE INDEPENDENCE OF THE LATIN-AMERICAN NATIONS 185-86
(W. Manning ed. 1925) (foreign agent instructed to transmit collected information in "confiden-
tial" communications).
106. See L. WHITE, supra note 81, at 95, 98-101 ("every department submitted an annual
report which was transmitted to Congress with the President's annual message and referred to
the appropriate committee"). See also 21 ANNALS OF CONG. 1533 (1810) (House inquiry into
high mortality rate of troops in New Orleans). For additional examples of investigations as well
as a listing of requests for information see A. SOFAER 239-48.
107. Sec, e.g., 23 ANNALS OF CONG. 267, 271 (1812) (relating to President's recommenda-
tions that war be declared against Britain); 26 id. at 302 (1813) (an unsuccessful attempt to block
a request for information concerning France's revocation of decrees against neutral shipping);
28 id. at 1275 (1815) (declaration of war against Algiers); 35 id. at 948-49 (1820) (extent of
territory in New World that Spanish Minister Onis was authorized to cede to the United States).
108. This was particularly true when the subject matter concerned foreign affairs. See the
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CONTROL OF INFORMATION
19
Madison and Monroe took advantage of the discretion allowed by
Congress. In some situations they informed Congress of their actions, thus
giving the legislature an opportunity to consider some response. 109 At other
times they withheld material without revealing that they had done so.
Several of these situations will be examined in detail in order to illustrate
how, early in American history, executive secrecy became an integral part
of an aggressive foreign policy.
A. Secrecy and the War of 1812
Britain and France were at war when Jefferson left office. Part of each
nation's strategy was to place restrictions on the rights of neutrals to trade
with its enemy, 110 and many American vessels were seized because of these
restrictions. 111 Congress first adopted an embargo on all trade with
Europe and later substituted a law prohibiting trade with the bellige-
rents. 113 On May 1, 1810, the no-trade policy was revoked by a law which
authorized President Madison to reimpose it upon either one of the bellig-
erents if the other revoked its restrictions on neutral commerce. 114
Congress' termination of nonintercourse was of far greater benefit to
Britain than to France. It enabled England to obtain imports badly needed to
sustain its war effort. France, however, could not benefit from the bill,
because it lacked an effective navy to convoy merchant ships. 115 Madison
anticipated that "this very inequality
/
may become a motive with
[France] to turn the tables on G. Britain, by compelling her either to revoke
her orders, or to lose the commerce of this country. ,,116 Napoleon promptly
list of examples collected in A. SOFAER 244 n.61. On several occasions, language authorizing
withholding was specifically added to proposed, unqualified requests. See, e.g., 26 ANNALS OF
CONG. 310 (1813); 31 id. at 406, 408 (1817); 38 id. at 733-34 (1822).
109. See, e.g., 21 ANNALS OF CONG. 1622-24, 1659 (1810); 1 CONG. DEB. 164-65 (1825).
110. See generally S. BEMIS. A DIPLOMATIC HISTORY OF THE UNITED STATES 139-40, 148-51
(4th ed. 1955).
111. See, e.g., AMERICAN STATE PAPERS. 3 FOREIGN RELATIONS 422 (1832) (extract of report
from American chargé d'affaires in London to Secretary of State, listing twenty-six American
merchantmen condemned by the British Court of Admiralty in three sessions, June-July 1811);
id. at 506 (list by American chargé d'affaires in Paris of eight American vessels seized by
French privateers between November 1810 and May 1811).
112. Act of Dec. 22, 1807, ch. 5, $ 1, 2 Stat. 451.
113. Act of Mar. 1, 1809, ch. 24, §§ 1-4, 2 Stat. 528.
114. Act of May 1, 1810, ch. 39, § 4, 2 Stat. 605, 606.
115. See S. BEMIS, supra note 110, at 151.
116. Letter from President Madison to Thomas Pinckney, U.S. Minister to Great Britain
(May 23, 1810), reprinted in 8 THE WRITINGS OF JAMES MADISON 96, 99 (G. Hunt ed. 1908). See
also A. CARR, THE COMING OF WAR 278-79 (1960) (discussing the politics behind the Madison
approach, the bill known as Macon No. 2). For his part, Napoleon reasoned that "[i]f he could
induce the American Government to believe that he was prepared to revoke his decrees, and if
upon that basis the Non-intercourse Act should be revived against England, there was an
excellent chance that a second Anglo-American war would result." Tansill, Robert Smith, in 3
THE AMERICAN SECRETARIES OF STATE AND THEIR DIPLOMACY 178 (S. Bemis ed. 1927).
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obliged by informing the American government that, as a consequence of
the Act of May 1, 1810, French restrictions on American commerce were
revoked and that "after the 1st of November they will cease to have effect; it
being understood that, in consequence of this declaration, the English shall
revoke their Orders in Council
or that the United States, conformably
to the act you have just communicated, shall cause their rights to be
respected by the English.
Napoleon's order arrived in the United States in the form of a letter
from the French Foreign Minister, with no evidence to confirm the validity
of its contingent and noncomprehensive representations. Furthermore,
Madison simultaneously received correspondence from the American minis-
ter to France indicating that seizures of American merchant vessels by
French privateers continued as of September 10, 1810. 118 Despite the doubts
these facts raised about France's intentions, Madison accepted the French
order as adequate, hoping thereby to "bring England to the point. 119 On
November 2, the day after Napoleon's promise was to become effective,
Madison issued a proclamation declaring that France had repealed its de-
crees and warning Britain that Anglo-American trade would end unless
Britain's restrictions were repealed within three months. 120 Members of
Madison's Cabinet concurred in his decision, but sensed its gravity. Secre-
tary of State Robert Smith told French Minister Turreau: "The Executive
thinks that the measures he shall take in case England continues to restrict
our communications with Europe will lead necessarily to war. 121 Albert
Gallatin also viewed war as inevitable after the proclamation if noninter-
117. Letter from Duke of Cadore to U.S. Minister John Armstrong (Aug. 5, 1810), reprinted
in 22 ANNALS OF CONG. 1235-36 (Appendix); see Tansill, supra note 116, at 178-79.
118. Letter from U.S. Minister Armstrong to President Madison (Sept. 10, 1810), repro-
duced in DESPATCHES FROM UNITED STATES MINISTERS TO FRANCE (National Archives mic-
rofilm M-34, reel 14); cf. Letter from U.S. Minister Armstrong to Secretary of State Smith
(Sept. 10, 1810), reprinted in AMERICAN STATE PAPERS, 3 FOREIGN RELATIONS 387 (1832)
(indicating that French considered the Berlin and Milan decrees restricting neutral commerce to
govern American shipping until Nov. 1, 1810).
119. Gales, Recollections of the Civil History of the War of 1812: Entry of Sept. 27, 1810,
National Intelligencer, July 30, 1857 (diary kept by the proprietor of the National Intelligencer).
After his resignation as Secretary of State in Madison's cabinet, Robert Smith maintained
that Madison had actively prevented him from obtaining more definite evidence from the
French. Smith, by his account, had drafted a letter (Feb. 20, 1810) to French envoy Serrurier
seeking "any assurance or explanation in relation to the revocation or modification of [the
Berlin and Milan] decrees." Smith, on proposing this correspondence to Madison, was "told by
him that it would not be expedient to send to Mr. Serrurier any such note. R. SMITH. ADDRESS
TO THE PEOPLE OF THE UNITED STATES 13-14 (1811). Cf. "Memorandum as to R. Smith, April
1811," in 8 THE WRITINGS OF JAMES MADISON, supra note 116, at 137-142 (maintaining that
Madison had advised Smith of his dissatisfaction with Smith's conduct of the Department of
State).
120. 22 ANNALS OF CONG. 1248 (Appendix) (presidential proclamation of Nov. 2. 1810).
121. Letter from Secretary of State Smith to President Madison (Sept. 28, 1810), reproduced
in THE PAPERS OF JAMES MADISON (Library of Congress microfilm, series 2, reel 26).
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course with Britain were resumed. 122
Congress reconvened on December 3, 1810, and had two months to
ratify or reject Madison's decision. Britain had by then announced its
willingness to repeal its trade restrictions, but only when the French repeal
of its decrees "shall have actually taken effect. The letters Madison had
received indicating that France was continuing as of September to enforce
its restrictive decrees were therefore important for Congress to consider in
making its decision. But Madison withheld all material indicating that
France had continued to seize American vessels; at the same time he
communicated comprehensive information to Congress and the public indi-
cating Britain's intransigence. The "general process of selection," historian
Irving Brant has noted, "left no doubt that, having determined to stand by
his action of November 2, President Madison preferred to disclose nothing
that would give a handle to assailants of it. ,,124
In spite of their lack of complete information, Representative John
Randolph and others argued that France's revocation was inadequate in that
it was unofficial, qualified and conditional, and that the French seizures
continued. 125 Nevertheless, the House adopted a bill that confirmed Madi-
son's action and authorized him to lift nonintercourse only if Britain should
cease violating America's neutral commerce. 126 This set the stage for an
even more significant withholding of information.
On April 21, 1812, Britain formally declared its readiness to revoke its
restrictions if France absolutely revoked its decrees by some authentic and
unconditional act. 127 The American Minister to France, Joel Barlow, called
France's attention to the new British declaration and urged that France
publish an authentic act of repeal, effective November 1, 1810. 128 The
French Foreign Minister, the Duke of Bassano, surprisingly replied that a
122. The only report of Albert Gallatin's view appears in an interview with Joseph Gales
where he asserted that "the President must issue his proclamation." Interview of Oct. 4, 1810,
reprinted in National Intelligencer, July 30, 1857. See also Letter from Paul Hamilton to
President Madison (Sept. 25, 1810), reproduced in THE PAPERS OF JAMES MADISON, supra note
121, series 1, reel 12; Letter from C.A. Rodney to President Madison (Sept. 26, 1810),
reproduced in id.; 5 H. ADAMS. HISTORY OF THE UNITED STATES 303 (1889) (referring to
statements made to and recorded by Turreau).
123. Sec Letter from Lord Wellesley, Foreign Office, to Thomas Pinckney (Aug. 31,1810),
reprinted in AMERICAN STATE PAPERS. 3 FOREIGN RELATIONS 366 (1832) ("whenever the repeal
of the French decrees shall have actually taken effect, and the commerce of neutral nations
shall have been restored
").
124. 51. BRANT 226.
125. See, e.g., 22 ANNALS OF CONG. 867-68 (1811) (remarks of Rep. Randolph); id. at 919-20
(remarks of Rep. Emott).
126. Id. at 1095 (House bill of Feb. 27, 1811).
127. Declaration of the Prince Regent (April 21, 1812), reprinted in AMERICAN STATE
PAPERS, 3 FOREIGN RELATIONS 429, 430 (1832).
128. Letter from Joel Barlow to Duke of Bassano (May 1, 1812), reprinted in id. at 602.
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Decree of St. Cloud, dated April 28, 1811, had already definitively revoked
France's restrictions. Barlow asked why the decree had not earlier been
published or communicated. Bassano said it had in fact been supplied to
Barlow's predecessor, Jonathan Russell, as well as to the French Minister in
Washington, Serrurier. 129 Barlow asked for a copy, and Bassano soon sent
him what purported to be the decree. 130
Barlow sent the decree to Madison on May 12, 1812, noting his
suspicion that it "was created last week. ,,131 He regarded the decree as
potentially useful to the United States in justifying its policy toward Britain,
but he as well as Russell and others were convinced the decree was a fraud,
and told Madison as much in "confidential" letters. 132 The British, too,
found the decree a palpable "juggle, ,,133 but pressure against war with the
United States became intense, 134 and Britain repealed its trade restrictions
on June 23, 1812. 135 By that time, however, the United States had declared
war.
Madison had recommended war on June 1, 1812. 136 On that date he
could not yet have received Barlow's letter of May 12, but he must have at
least suspected that France had never formally revoked its earlier decrees.
Nevertheless, he refused to accept Britain's conditional offer to revoke its
restrictions, as he arguably could have done under the discretion delegated
to him by the most recent nonintercourse act. Instead, he made repeal of the
trade restrictions a subordinate issue and directed the attention of Congress
and the public to British impressment of American seamen. 137
Congress declared war on June 18. 138 The vote in the House was 79 to
129. Extract of letter from Joel Barlow to Secretary of State Smith (May 12, 1812), reprinted
in id. at 603.
130. Letter from Duke of Bassano to Joel Barlow (May 10, 1812) (with translated copy of
the Decree of St. Cloud), reprinted in id. According to Henry Adams, Bassano was simply
lying. 6 H. ADAMS, supra note 122, at 255.
131. Letter from Joel Barlow to President Madison (May 12, 1812), reproduced in THE
PAPERS OF JAMES MADISON, supra note 121, series 1, reel 14.
132. DESPATCHES FROM UNITED STATES MINISTERS TO GREAT BRITAIN, 1791-1906 (National
Archives microfilm, M-30, roll 14).
133. See 23 PARLIAMENTARY DEBATES 288 (Hansard ed. 1812) (remarks of Lord Castlereagh
to House of Commons, May 22, 1812).
134. See The Morning Chronicle, May 23, 1812, at 2, cols. 2-4 (report of attacks on the St.
Cloud Decree in Parliament, accompanied by the editorial assertion that, although the Decree's
date was fraudulent, Britain should still repeal the Orders in Council).
135. Decree of Prince Regent, reprinted in AMERICAN STATE PAPERS, 3 FOREIGN RELATIONS
433 (1832).
136. See Message of President Madison to Congress (June 1, 1812), reprinted in id. at
405-07.
137. Beginning in March, 1812, the Administration authored a five-part series on the evils of
impressment in the National Intelligencer, entitled "Impressed Seamen." Brant describes this
media event, along with Madison's publicizing of a "spy" incident, as the Administration's
"final drive in Congress for war measures." 51. BRANT 415.
138. Act of June 18, 1812, ch. 102, 2 Stat. 755.
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23
49; 139 in the Senate the decision was even closer, 19 to13. 140 After providing
support for war preparations, Congress adjourned on July 6. 141
During the legislature's recess, Madison received the letters from his
ministers concerning the Decree of St. Cloud 142 When Congress recon-
vened in November, the President announced that France had issued a
formal decree of revocation, but only hinted at any question as to the
Decree's authenticity and communicated none of the letters he had received
or written that reflected adversely upon the decree. 143
Information about the Decree's promulgation was clearly pertinent to
whether peace should be made with Britain in light of its repeal of trade
restrictions. The Senate on January 18, 1813 requested the President to
provide the French decree "together with such information as he may
possess, concerning the time and manner of promulgating the same; and,
also, any correspondence or information touching the relations of the United
States with France, in the office of the Department of State, not heretofore
communicated, which, in the opinion of the President
is not incompat-
ible with the public interest to communicate. 144 Madison purported to
comply with this request on January 26, enclosing several extracts of letters
between Barlow and Bassano, and between Barlow and the Secretary of
State. 145 He withheld other letters, however, including those describing the
Decree as having been concocted in response to Britain's declaration. He
did not advise the Senate that he was withholding relevant material because
it was "private" or "confidential," or because its disclosure might injure
the interests of the United States. He merely withheld the material without
revealing its existence. A similar information request was passed by the
House on March 1, 1813, 146 and was treated by Madison in the same
manner. 147
Opposition to the war continued in Congress. Some members seized
upon the statement in one of Barlow's letters that Bassano claimed to have
given the Decree to Russell soon after its alleged issuance, suggesting that
Russell or someone else in the Administration may have intentionally
suppressed the Decree's publication to prevent Britain from repealing its
own restrictions. 148 Daniel Webster moved in the House for information
139. 24 ANNALS OF CONG. 1637 (1812).
140. Id. at 297-98.
141. Id. at 315-21 (Senate bills augmenting military and naval establishments; adjournment).
142. See notes 131-32 supra and accompanying text.
143. See 25 ANNALS OF CONG. 14 (1813) (President's Annual Message to Congress, Nov. 4,
1812).
144. Id. at 54.
145. Id. at 1246-50 (Appendix).
146. Id. at 1151.
147. See Letter from President Madison to Congress (Mar. 3, 1813), reprinted in AMERICAN
STATE PAPERS, 3 FOREIGN RELATIONS 608 (1832).
148. See, e.g., 26 ANNALS OF CONG. 231-34 (1813) (remarks of Mr. Shipherd). During the
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concerning when and by whom the Government received its first intelli-
gence of the Decree and whether Madison had ever acquired from France
"any explanation of the reasons of that decree being concealed
,,149
After extensive debate, the request was adopted with a qualification au-
thorizing Madison to withhold information which it would be inconsistent
with the public interest to communicate. 150 On July 12, 1813, the President
supplied much of the information requested, but again the letters from
Barlow and others describing the French decree as fraudulent were withheld
without comment. 151
Opponents of the war unquestionably used the controversy over the
Decree of St. Cloud, as Irving Brant states, "to insinuate that Madison had
brought on the war by concealing this decree. 152 Madison did not conceal
the Decree. He did, however, withhold material that, if revealed, would
have suggested that it was a sham. Such information would have given the
opposition a powerful argument for reconsidering the declaration of war at a
point when the nation was not yet geared up for the conflict.
B. Efforts to Seize the Floridas
1. West Florida, 1810. By virtue of the Louisiana Purchase, the
United States acquired title to all land held by the French in the southern
portion of the continent. At the time of the Purchase, West Florida, consist-
ing of the area between the Mississippi and Perdido Rivers and including the
town of Mobile, was claimed by the French but was under Spanish occupa-
tion. President Jefferson asserted that the United States had acquired this
territory from the French, 153 and Congress gave apparent approval to this
claim in acts authorizing the President to occupy "the territories ceded by
France, ,,154 and to establish "whenever he shall deem it expedient," a
argument, several members asserted a broad right to demand information "on subjects which
are interesting to our constitutents." Id. at 231. Thomas Grosvenor of New York asked:
How can we speak or act upon subjects inseparably connected with our foreign
relations, if the Executive, the only organ of communication with other nations, may
be suffered at his sovereign will and pleasure to withhold from us all his correspond-
ence? By admitting such a course of practice, the President has had the destinies of
this nation in his hands,
[making it understandable how the nation has been
plunged into] an unnecessary and a wanton war.
Id. at 201. He particularly condemned the practice of communicating only "garbled extracts of
letters from and to the French Government." Unlike the British system, he continued, where
the executive runs foreign relations until it loses Parliament's confidence, "the foundation of
our whole system of Government is responsibility. The President and most of his dependents
are by the Constitution obnoxious to the animadversions of this House. And every official man
in the Republic is responsible to the people." Id. (emphases in original).
149. Id. at 151 (resolutions offered by Rep. Webster).
150. Id. at 302, 308-10.
151. Id. at 433; 27 id. at 2061-83 (1814) (Appendix).
152. 61. BRANT 185 (1961).
153. See 4 D. MALONE, supra note 81, at 306-09. See generally I.Cox, THE WEST FLORIDA
CONTROVERSY. 1798-1813. at 64-101 (1918).
154. Act of Oct. 31, 1803, ch. 1, § 1, 2 Stat. 245.
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separate customs district at Mobile, i.e., at the very heart of the disputed
area. 155 Spain became acutely concerned, but Jefferson took no action to
seize disputed land. 156
As soon as James Madison assumed the presidency, however, he
received news that West Florida was ripe for takeover by the United
States. 157 During the following summer William Claiborne, Governor of the
Orleans Territory, wrote an extraordinary letter to William Wykoff, Jr., a
judge of the parish at West Baton Rouge. Claiborne first noted that Spain's
fall to Napoleon seemed inevitable. He then stated that, although the United
States claimed the land from the Mississippi eastward to the Perdido, he was
"persuaded [that] under present circumstances, it would be more pleasing
that the taking possession of the Country, be preceded by a Request from the
Inhabitants.-Can no means be devised to obtain such Request?" He went
on to suggest how Wykoff and his friends should proceed:
The most elligible [sic] means of obtaining an expression of the wish of
the Inhabitants of Florida, can best be determined by themselves.
-But were it done, thro' the medium of a Convention of Delegates,
named by the people, it would be more satisfactory. -In the event,
that a Convention is called, it is important that every part of the District
as far at least as the Perdido be represented, and therefore I feel
solicitous, that you should be at some pains to prepare for the occasion
the minds of the more influential characters in the vicinity of Mobile.-
Whether this can be done, by yourself in person, or by some Citizen of
Baton Rouge in your confidence, is left to your discretion. 158
155. Act of Feb. 24, 1804, ch. 13, $ 11, 2 Stat. 251, 254.
156. In 1804, Secretary of State Madison assured Spain that the so-called Mobile Customs
Act would not be extended "beyond the acknowledged limits of the United States" unless
Spain so agreed. Letter from James Madison to Marquis D'Yrujo (March 19, 1804), reproduced
in MONROE PRESIDENTIAL PAPERS (Library of Congress microfilm, series 1, reel 3). This
restraint was observed by Jefferson, although in fact he expressed a desire that West Florida,
and even East Florida, should become part of the United States, by force if necessary, but only
with Congress' consent. See, e.g., Letter from President Jefferson to Secretary of War Henry
Dearborn (August 12, 1808), reprinted in 11 THE WORKS OF THOMAS JEFFERSON, supra note 83,
at 43 (1905) (suggesting that the embargo could be used as "a pretext" for taking good military
positions to conquer Mobile, Pensacola and St. Augustine). Similarly, Jefferson had written
Madison on August 16, 1807, that
As soon as we have all the proofs of the western intrigues, let us make a remonstr-
ance & demand of satisfaction, and, if Congress approves, we may in the same
instant make reprisals on the Floridas
] had rather have war against Spain than
not, if we go to war against England. Our Southern defensive force can take the
Floridas, volunteers for a Mexican army will flock to our standard, and rich pablum
will be offered to our privateers in the plunder of their commerce & coasts. Probably
Cuba would add itself to our confederation.
Id. at 476-77.
157. Mississippi businessman John Adair, an alleged accomplice of Aaron Burr and a former
Senator from Kentucky, informed Madison that the people of West Florida were "as ripe fruit
waiting the hand that dares to pluck them." Letter from John Adair to President Madison (Jan.
9, 1809) quoted in I. Cox, supra note 153, at 327-28.
158. Letter from William Claiborne to William Wykoff (June 14, 1810), reprinted in 5
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Available evidence establishes that Claiborne's letter and plan were
authorized by the President. First, Secretary of State Robert Smith wrote to
Wykoff, officially selecting him
for the confidential purpose of proceeding without delay into East
Florida, and also into West Florida, as far as [P]ensacola for the
purpose of diffusing the impression that the United States cherish the
sincerest good will towards the people of the Floridas as neighbours
and that in the event of a political separation from the parent
Country, their incorporation into our Union would coincide with the
sentiments and policy of the United States. 159
Secondly, Madison wrote Smith on July 17 that Governor David Holmes of
the Mississippi Territory should be encouraged to report information about
West Florida, and
also to be attentive to the means of having his militia in a state for any
service that may be called for. In the event either of foreign interfer-
ence with W.F. or of internal convulsions, more especially if threaten-
ing the neighboring tranquility, it will be proper to take care of the
rights and interests of the U.S. by every measure within the limits of
the Ex. authority
Will it not be advisable to apprize [sic] Gov.
H. confidentially, of the course adopted as to W.F. and to have his
co-operation in diffusing the impressions we wish to be made there 7160
Smith wrote to Holmes on July 21, passing on Madison's instructions and
"extracts of a letter from Governor Claiborne to Col. William Wykoff,
written under a sanction from the President
The instructions con-
tained in this letter are entirely confidential and are to be executed in a
manner the least calculated to incite alarm. ,,161
Confident of American support, the West Florida rebels began their
"revolution." They went through the precise steps Claiborne had
suggested: a convention of delegates from the entire territory was held; a
government was formed; an Act of Independence was adopted; and a
request was issued that the United States "take the present Government and
people of this State under their immediate and special protection as an
OFFICIAL LETTER BOOKS OF W.C.C. CLAIBORNE, 1801-1816, at 31-33 (D. Rowland ed. 1917)
(emphasis in original). The letter was written in Washington and, according to Brant, "from the
house of the President. 51. BRANT 175. No evidence has been found to support Brant's
statement. The phrase may have been taken by Brant from a later letter written by one of the
revolutionaries, Fulwar Skipwith, to John Graham which is cited in Padgett, The West Florida
Revolution of 1810, 21 LA. HIST. Q. 164-65 (1938).
159. Letter from Secretary of State Smith to William Wykoff (June 20, 1810), reprinted
in 9 TERRITORIAL PAPERS OF THF UNITED STATES 883-84 (C. Carter ed. 1940).
160. Letter from President Madison to Secretary of State Smith (July 17, 1810), reprinted
with minor variations in 8 THE WRITINGS OF JAMES MADISON, supra note 116, at 105-06.
161. Letter from Secretary of State Smith to Governor Holmes (July 21, 1810), reproduced
in DOMESTIC LETTERS OF THE DEPARTMENT OF STATE (National Archives microfilm,
M-40, reel 13).
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integral and inalienable portion of the United States. ''162
When presented with the West Floridians' request for protection,
however, Madison realized that to agree to the request would be implicitly
to recognize West Florida as an independent state. This in turn could be
construed as an abandomnent of the United States'claim under the Louisiana
Purchase, and could also provide Spain with just cause for war. 163 These
considerations, together with the fact that the revolutionaries were deter-
mined to seize large tracts of land for their own benefit, led Madison to issue
a proclamation on October 27, 1810 which announced the seizure of parts of
West Florida in behalf of the United States under the claim arising out of the
Louisiana Purchase. 164
Congress was not officially informed of Madison's proclamation until
December 5. 165 For many Congressmen, this was the first they had heard of
Madison's actions. The proclamation and accompanying orders had been
kept from public view, except in West Florida itself, in order to enable
Claiborne to assume full control of West Florida without arousing any
European nations. Madison thereby "presented European ministries with a
fait accompli," as Brant suggests. 166 But he presented Congress with one as
well.
Even after he submitted a copy of his proclamation to Congress,
Madison continued to withhold all of the correspondence pertaining to the
West Florida "revolution." Instead, he told Congress that he had moved
into the area because Spanish authority had been subverted and action was
required to assure control of an area "to which the title of the United States
extends
,,167
The legality of the takeover was intensely debated in Congress. 168 Yet
no demand for information was made; a motion to form a committee to
162. Letter from John Rhea, President of the Convention of Florida, to Governor
Holmes (Sept. 26, 1810), reprinted in AMERICAN STATE PAPERS, 3 FOREIGN RELATIONS 396
(1832); see Declaration by the Representatives of the People of West Florida in Convention
Assembled, reprinted in id.
163. See 5 1. BRANT 179-87; I. Cox, supra note 153, at 487-90.
164. 22 ANNALS OF CONG. 1257-58 (1810) (Appendix); I COMPILATION OF THE MESSAGES
AND PAPERS OF THE PRESIDENTS 1789-1897, at 465-66 (J. Richardson ed. 1897).
165. 22 ANNALS OF CONG. 12-13 (1810) (President's Annual Message to Congress, Dec. 5,
1810).
166. 51. BRANT 186, 187-89. Brant presents several reasons for Madison's failure to call
Congress back into session early:
If the convention forces [the local independence movement] stayed in power, delay
would fortify their claim to sovereignty and entrench the land speculators. Within
six weeks Spanish troops from Cuba or Vera Cruz (both rumored to be coming)
might convert the revolution into a hard and bloody struggle. Stories of a British
landing at Pensacola heightened the tension.
Id. at 184.
167. 22 ANNALS OF CONG. 12-13 (President's Annual Message to Congress, Dec. 5, 1810).
168. See id. at 37-65.
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inquire into the title of the United States to West Florida and to request the
President to supply "all the documents, papers, or other evidences in his
possession, relating to the title of the United States," was defeated. 169
Eventually, Congress passed legislation absorbing the seized area into the
United States. 170
2. East Florida, 1811-1813. The Madison administration justified
its takeover of parts of West Florida on the ground that the area had been
acquired as part of the Louisiana Purchase. At the same time that plans were
laid for getting West Floridians to revolt and request American intervention,
however, identical moves were attempted in East Florida, an area over
which the United States had no claim to title.
On June 20, 1810, the same day as his letter to Wykoff, 171 Secretary of
State Smith wrote to Senator William H. Crawford of Georgia, sending
information "of the policy of the President, in relation to the Floridas," and
asking him to appoint an agent to implement administration policy east of
the Perdido. 172 Crawford confided the "execution of the delicate trust" to
General George Mathews, former Governor of Georgia. 173 Smith was de-
lighted with the choice: "It was indeed a most fortunate circumstance that
threw in your way Genl. Mathews, who well understanding the views of the
executive, cannot but be happy in promoting them. ,,174
Mathews was initially unable to bring about any change in East Flori-
da, primarily because Americans were far less numerous there than in West
Florida. In December, 1810, however, the Spanish Governor indicated to
the Secretary of State that he might be willing to surrender the area to the
United States. 175 President Madison then sought and obtained legislation
authorizing him to accept surrender of the territory, or to assume control in
the event of a foreign occupation. 176 Significantly, the law authorized taking
169. Id. at 28.
170. 24 id. at 1379 (1812); 23 id. at 238 (1812); sec Act of May 14, 1812, ch. 84, § 1, 2 Stat.
734.
171. See note 158 supra and accompanying text.
172. Letter from Secretary of State Smith to Senator Crawford (June 20, 1810), reproduced
in DOMESTIC LETTERS. supra note 161, M-40, reel 13.
173. Letter from Senator Crawford to Secretary of State Smith (Sept. 20, 1810), reproduced
in MISCELLANEOUS LETTERS OF THE DEPARTMENT OF STATE (National Archives
Microfilm M-179, recl 23).
174. Letter from Secretary of State Smith to Senator Crawford (Oct. 2, 1810). reproduced in
DOMESTIC LETTERS, supra note 161, M-40, reel 13.
175. Letter from Governor Vizente Folch to Secretary of State Smith (Dec. 2, 1810),
reprinted in AMERICAN STATE PAPERS. 3 FOREIGN RELATIONS 398 (1832). Brant treats this
letter as referring only to West Florida, 5 1. BRANT 237; however, Madison apparently
believed that the letter also referred to at least parts of East Florida, since he sent it 10
Congress as support for a request for a bill authorizing the occupation of East Florida. 22
ANNALS OF CONG. 370 (1811) (letter from President Madison to Congress, Jan. 3, 1811).
176. 22 ANNALS OF CONG. 375, 377 (1811).
Vol. 1977:1]
CONTROL OF INFORMATION
29
possession pursuant to an agreement with "the local authority" in the event
that the Spanish authorities were subverted. 177
Mathews was made an official agent of the United States, charged with
implementing the new legislation. Confidential orders from the Secretary of
War instructed local garrisons to cooperate with him, and supplies and
gunboats were sent to the area. 178 Mathews reported on February 25, 1811
that he had found several local "Gentelmen [sic]
well disposed to
sarve [sic] our Govrnment [sic]," but that nothing could presently be
attempted, because not one soldier or armed vessel had arrived in the St.
Mary's River, which flows between Georgia and Florida. He hoped when he
returned to the area in April "to have it in [his] power to carry the
President's wishes into afect [sic].
In spite of his earlier statement, 180 the Spanish Governor refused to
surrender the territory. Mathews then sought the local American comman-
der's cooperation, 181 which was refused. 182 He immediately complained of
this to the new Secretary of State, James Monroe. 183 But while Monroe
replied to other letters from Mathews, 184 he made no official comment on
the dispute over Mathews' instructions. Instead, he instructed Mathews in a
"private" letter to continue work in East Florida, and to supply informa-
tion. 185
177. Act of Jan. 15, 1811, § 1, 3 Stat. 471, This so-called No-Transfer Act did not
expressly require that voluntary surrender be made by "Spanish authorities," as Madison
had originally contemplated in his message to Congress.
178. ORDERS FROM SECRETARY OF WAR (National Archives microfilm, M-6, roll 5, at 41).
179. Letter from General Mathews to Secretary of State Smith (Feb. 25, 1811), reproduced
in FLA. TERR. PAPERS.
180. See note 175 supra and accompanying text.
181. Letter from General Mathews and General McKee to General Covington (May 9.
1811), reproduced in FLA. TERR. PAPERS.
182. Letter from General Covington to General Mathews and General McKee (May 10,
1811), reproduced in FLA. TERR. PAPERS (insisting that requisitions had to be approved by
the commanding general, except "in the event of an attempt to occupy any part of the
Territory in question by the troops of a foreign power
:).
183. Letter from General Mathews and General McKee to Secretary of State Monroe
(May 11, 1811). reproduced in FLA. TERR PAPERS.
184. On June 29, 1811, Monroe replied to seven letters from Mathews and McKee, some
of which had been written subsequent to the letter describing the dispute with Covington,
but which did not mention the Covington matter. He wrote that "[a]s it appears that there is
no longer any probability that Governor Folch will deliver up the country under his
jurisdiction, in the manner he proposed, the president thinks it is useless for you to remain
longer where you are." Letter from Secretary of State Monroe to General Mathews and
General McKee (June 29, 1811), reproduced in DOMESTIC LETTERS, supra note 161, M-40,
reel 14.
185. Monroe explained that his official letter of the same day, see note 184 supra, was
"not intended to interfere with the state of things relating to East Florida, especially if you
entertain any reasonable hope of success there
Letter from Secretary of State
Monroe to General Mathews and General McKee (June 29,1811), reproduced in DOMESTIC
LETTERS, supra note 161, M-40, recl 14.
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[Vol. 1977:1
On August 3, Mathews provided Monroe with an explicit statement of
his plans. "The quiet possession of E. Florida," he wrote, "could not be
obtained by an amicable negotiation with the powers that exist there. But,
he added, "the inhabitants of the province are ripe for revolt. Though they
were incompetent to effect a thorough revolution without external aid, he
stated that "if two hundred stand of arms & fifty horsemen swords were in
their possession I am confident they would commence the business, and
with a fair prospect of success. These could be put into their hands by
consigning them to the commanding officer_ at this post, subject to my
order. Mathews promised to "use the most discreet management to pre-
vent the U. States being committed and although I cannot vouch for the
event, I think there would be but little danger. ,,186
Monroe made no reply to this letter, which greatly concerned
Mathews. Nonetheless, preparations for an assault continued. American
citizens were lured to the province by promises of land bounties, and
"volunteers" were enlisted from the regular troops at Point Peter, a United
States post on the Georgia-Florida border. 187 On March 11, Mathews ob-
tained arms from the local American commander, 188 and on March 12, with
United States gunboats lying in reserve, the "patriot" rebellion began. 189
The rebellion adhered to a consistent pattern. Rebels, backed up by
American troops and boats, would assume control of an area. Then, acting
as the "local authority," they would surrender control to the United States.
Before the patriots seized Amelia Island, one article of the proposed terms
of surrender by Spain was that the island would be ceded to the United
States within twenty-four hours after capitulation. 190 By April, the patriots
186. Letter from General Mathews to Secretary of State Monroe (Aug. 3, 1811), reproduced
in FLA. TERR. PAPERS.
187. The preparations for the invasion are described in Letter from General Mathews to
Secretary of State Monroe (Oct. 14, 1811), reproduced in FLA. TERR PAPERS; Letter from
General Mathews to President Madison (April 16, 1812), reproduced in THE PAPERS OF
JAMES MADISON, supra note 121, series 1, reel 13; sec Letter from Jose Hibberson and Jose
Arredondo to Don Justo Lopez, Spanish Commandant of Amelia Island (Mar. 17, 1812),
reprinted in Senate Misc. Doc. No. 55, 36th Cong., 1st Sess. 72-74 (1860) (describing a peace
negotiation with General Mathews).
188. Letter from General Mathews to Captain Hugh Campbell (Mar. 11, 1812), reproduced
in LETTERS RECEIVED BY SECRETARY OF THE NAVY FROM CAPTAINS (National Archives mic-
rofilm, M-125, recl 13). Campbell reported Mathews' requests to Navy Secretary
Hamilton on Mar. 21, stating that he at first refused to comply "but on his producing
Instructions from the President
I did consent to go certain lengths
189. See Letter from John McIntosh ("patriot" leader) to Representative George Troup
of Georgia (Mar. 12, 1812), reproduced in FLA. TERR PAPERS, describing the plan of
invasion and stating: "The thing has been for some months in a position between General
Mathews and myself, but I am afraid never would have been accomplished had not the
General been governed by the Spirit of his Instructions and the declared wishes of his
Country."
190. Letter from Col. Lodowick Ashley to Don Justo Lopez (Mar. 1. 1812), reprinted in
Senate Misc. Doc. No. 55, supra note 187, at 66-67. Lopez, however, refused to surrender
Vol. 1977:1]
CONTROL OF INFORMATION
31
and their American supporters had reached and laid seige to St. Augus-
tine. 191
Secretary Monroe was regularly informed of the progress of the rebell-
ion. On March 21, Mathews proudly wrote Monroe of the cession from "the
constituted authorities of East Florida" of the territory between the St.
Mary's and St. John's Rivers. He predicted that the entire province would
soon be "conquered. On April 16, Mathews wrote President Madison
declaring that "the commission with which I am trusted is now I flatter
myself approaching to a close, and I fondly hope in such a manner as will be
satisfactory to you & honorable & advantageous to our common country."
Again he claimed that "the Constituted Authorities of East Florida" had
ceded the province through their "commissioner. ,,193
On April 4, 1812, Monroe broke his long silence by dismissing
Mathews. "I am sorry to have to state," Monroe began in his "official"
letter, "that the measures which you appear to have adopted for obtaining
possession of Amelia Island and other parts of East Florida, are not au-
thorized by the law of the United States
under which you have acted.
It was never, Monroe wrote, "the policy of the law, or purpose of the
Executive, to wrest the province forcibly from Spain. ,,194 In a private letter
of the same day, Monroe expressed his pain at dismissing Mathews, "but as
the govt. never contemplated taking possession of the country except by
friendly arrangement with the Spanish governor, or others, or to prevent
possession being taken by a foreign power, it has been impossible to act
differently. ..195
until he learned whether the United States supported the invasion. Letter from Don Justo
Lopez to Major Laval (Mar. 16, 1812), reprinted in id. at 71 (inquiring whether the "United
States are to be considered as principals or auxiliaries
.
in the present invasion of this
province"). Major Laval, acting commander of American land forces, replied that he had
"the greatest satisfaction in informing [Lopez] that the United States are neither principals
or (sic) auxiliaries, and that [he was] not authorized to make any attack upon East Florida."
Letter from Major Laval to Don Justo Lopez (Mar. 16, 1812), reprinted in id. at 72. Captain
Campbell, commanding the United States naval forces off Amelia Island, subsequently
informed Lopez, however, that, while his naval force was not intended to act in the name of
the United States, he would act to support "a large proportion of your inhabitants who have
thought proper to declare themselves independent
Letter from Captain Campbell to
Don Justo Lopez (Mar. 17, 1812), reprinted in id. at 71.
191. Letter from General Mathews to Major Laval (Mar. 14, 1812) (copy), reproduced in
MISC. LETTERS, supra note 173, M-179, reel 25 (enclosed with Mathews to Monroe, note 192
infra).
192. Letter from General Mathews to Secretary of State Monroe (Mar. 21, 1812),
reproduced in FLA TERR PAPERS.
193. Letter from General Mathews to President Madison (Apr. 16, 1812). reproduced in
THE PAPERS OF JAMES MADISON, supra note 121, series 1, reel 13.
194. Letter from Secretary of State Monroe to General Mathews (Apr. 4, 1812), reprinted in
AMERICAN STATE PAPERS, 3 FOREIGN RELATIONS 572 (1832).
195. Letter from Secretary of State Monroe to General Mathews (Apr. 4, 1812), reproduced
in FLA. TERR. PAPERS (draft). Monroe cited the Act of June 5, 1794, ch. 50, $ 5, I Stat.
32
DUKE LAW JOURNAL
[Vol. 1977:1
Mathews was crushed by his dismissal. He replied to Monroe in June
that he had "no doubt" he could justify his conduct in East Florida to "an
impartial public" if he exposed "confidential instructions and communica-
tions. ,,196 In July, 1812, Mathews headed north, reportedly "to blow them
all up at Washington." But his case never reached the public. He died on
September 1, 1812, in Augusta, Georgia. 197
Meanwhile, Monroe requested David B. Mitchell, Governor of Geor-
gia, to take charge of American affairs in East Florida. Though Mitchell was
instructed to restore "that state of things in the province which existed
before the late transactions," he was to withdraw only after an understand-
ing had been reached with the Spanish authorities which would assure the
safety of those who had cooperated with Mathews. 198 This qualification
enabled Mitchell to maintain the occupation in the hope that Congress would
approve a complete takeover. 199
The House in fact passed a bill authorizing a takeover, 200 but the Senate
refused to go along. 201 The House, by a narrow 58 to 51 vote, also adopted a
resolution which requested that the President, "if, in his opinion, it be
compatible with the public interest,
lay before the House, confidential-
ly or otherwise, full information of all the proceedings" had pursuant to the
act authorizing occupation of East Florida by arrangement with the local
authority, "and also copies of all instructions there may have been issued by
the Executive branch of this Government under the said act. ,202 The
President purported to comply on July 1 by sending several important
letters. 203 Excluded from the transmittal, however, were Mathews' letters
reporting his intentions and requesting arms and military support, letters to
Monroe acknowledging American support for the revolution, Monroe's
"private" letter to Mathews, and the revealing military instructions issued
to officers in the field. 204 By withholding these materials, Madison was able
381, 384, in his private letter, pointing out that this law prohibited offenses against neutrals.
Id. Professor Pratt, in his excellent work, suggests that Monroe's reference to this law might
have been meant as a threat to keep Mathews silent. J. PRATT. THE EXPANSIONISTS OF 1812,
at 113 n.104 (1957).
196. Letter from General Mathews to Secretary of State Monroe (June 22, 1812),
reproduced in FLA. TERR. PAPERS.
197. See J. PRATT. supra note 195, at 115.
198. Letter from Secretary of State Monroe to Governor Mitchell (Apr. 10, 1812).
reprinted in AMERICAN STATE PAPERS. 3 FOREIGN RELATIONS 572-73 (1832).
199. Monroe had reason to expect that Mitchell would construe his orders to avoid
withdrawing American troops from East Florida, since, as Governor of Georgia, it had been
Mitchell's avowed policy to take East Florida. J. PRATT, supra note 195, at 116-18.
200. 24 ANNALS OF CONG. 1684 (1812).
201. Id. at 1692.
202. Id. at 1686.
203. Id. at 1687-92.
204. Among the important items not transmitted to Congress were Letter from General
Mathews to Secretary of State Smith (Feb. 25, 1811). Letters from General McKee to
Vol. 1977:1]
CONTROL OF INFORMATION
33
to keep from Congress the full extent of the Administration's involvement.
Administration policy was relatively unaffected by the Senate's refusal
to ratify the occupation of East Florida. Secretary of State Monroe laid plans
for a military conquest, replacing Mitchell with General Thomas Pinckney
and ordering 2,000 Tennessee militiamen under Andrew Jackson to join
General Wilkinson in New Orleans. 205 By the end of January 1813, substan-
tial numbers of American troops were poised for attack. Jackson wrote to
the Secretary of War that his volunteers were "the choicest of our citizens,
who go at the call of their country to execute the will of the government,
who have no constitutional scruples
and
will rejoice at the
opportunity of placing the American eagle on the ramparts of MOBILE,
PENSACOLA, and FORT ST. AUGUSTINE
206
Meanwhile, the Senate appointed a committee to consider in confi-
dence an occupation of Mobile and East Florida, 207 and a request for
information was passed. 208 The information provided by the President dis-
closed that the government had no precise knowledge of any British move-
ment toward East Florida, that the desire of the inhabitants of East Florida
was to be under the protection of the United States, and that Spanish
Minister Onis had no power to negotiate a cession. No official information
regarding the Administration's military plans was submitted. 209 Once again,
the Senate refused to authorize a takeovet 210 although it did approve the
occupation of Mobile. 211 This development, combined with the peace
negotiations with Britain, ultimately caused Madison to withdraw all Ameri-
can troops from the East Florida border.
3. The Seminole War, 1818. Andrew Jackson had to wait six years
before getting his opportunity to attack East Florida and Pensacola. On
November 30, 1817, an American ship was ambushed by Seminole Indians
acting in retaliation for the destruction of one of their villages. Thirty-four
Secretary of State Smith (Apr. 10, 17, 24, 1811). Letters from General McKee to Secretary
of State Monroe (May 11, June 2, 26, 1811), Letters from General McKee to Secretary of
State Monroe (Jan. 1, 8, 12, Mar. 11, Apr. 15, 1812), Letters from General Mathews to
Secretary of State Monroe (Mar. 14, 21, 28, Apr. 16, 1812), Letter from J.M. Troup to
Secretary of State Monroe (Mar. 12, 1812), Letter from Secretary of State Monroe to
General Mathews (Apr. 4, 1812), all reproduced in FLA. TERR. PAPERS; Letter from Secretary of
State Monroe to General Mathews (June 29, 1811), reproduced in DOMESTIC LETTERS,
supra note 161, M-40, reel 14.
205. Sec J. PRATI, supra note 195, at 211, 216-21.
206. 1J. PARTON. LIFE OF ANDREW JACKSON 372 (1861).
207. 25 ANNALS OF CONG. 124 (1812).
208. Id. at 126.
209. Madison's report was ordered to be printed, but for the private use of the senators
only. The sixteen letters the President sent are found in 9 STATE PAPERS AND PUBLICK
DOCUMENTS 154-98 (T. Wait ed. 1819).
210. 25 ANNALS OF CONG. 127-28, 130 (1812).
211. Id. at 132-33.
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[Vol. 1977:1
soldiers and seven women were either killed or captured. 212
Even before learning of the November 30th attack, 213 however, newly
appointed Secretary of War John C. Calhoun instructed General Edmund
Gaines, the commanding officer at Fort Scott in Georgia, to reduce the
Indians by force. 214 More significantly, Gaines was to consider himself "at
liberty to march across the Florida line and to attack them within its limits
[u]nless, they should shelter themselves under a Spanish post. In the
last event, you will immediately notify this Department. ,215 Calhoun
sent
a
copy of these instructions to Andrew Jackson, then in Tennessee 216 Al-
though Congress was in session at the time, it was neither consulted nor
informed.
On December 26, after he had learned of the Seminole attack, Calhoun
ordered Jackson to assume command at Fort Scott. 217 He authorized Jackson
to "adopt the necessary measures [against the Indians] to terminate a
conflict which it has ever been the desire of the President, from considera-
tions of humanity, to avoid, but which is now made necessary by their
212. Letter from General Edmund Gaines to Secretary of War George Graham (Dec. 2,
1817), reprinted in AMERICAN STATE PAPERS, 1 MILITARY AFFAIRS 687 (1832). The Seminole
village was destroyed on November 21, 1817, after its purportedly hostile inhabitants had
refused to surrender to troops dispatched by Major General Gaines. Four warriors and an
Indian woman were killed in the skirmish. Letter from General Gaines to General Andrew
Jackson (Nov. 21, 1817), reprinted in id. at 685.
213. Calhoun indicated that he did not receive Gaines' December 2 notification of the
November 30 attack until December 26. Letter from Secretary of War John Calhoun to
General Gaines (Dec. 26, 1817), reprinted in id. at 689. As George Dangerfield has
suggested, the massacre could have been proffered as a justification for American intervention
in Florida since it "show[ed] what little control Spain exercised over the Seminoles
within her borders; but already, on December 16, before the news could have reached
Washington, Gaines had been sent orders to cross the Spanish line if necessary and hunt the
Seminoles down
"
G. DANGERFIELD. THE AWAKENING OF AMERICAN NATIONALISM 45
(1965).
214. Letter from Secretary of War Calhoun to General Gaines (Dec. 16, 1817), reprinted
in AMERICAN STATE PAPERS, 1 MILITARY AFFAIRS 689 (1832).
215. Id. Acting Secretary of War George Graham had even earlier authorized the general
to "exercise a sound discretion as to the propriety of crossing the line for the purpose of
attacking them
..
Letter from Secretary of War Graham to General Gaines (Dec. 9,
1817), reprinted in id. at 688. Graham's instruction was unclear, however, as it requested
Gaines to "conform to the instructions" in the former's previous letters of October 30 and
December 2. Id. The earlier letters provided, respectively, that Gaines was not to "make an
attack
within the limits of Florida" until he received instructions from the War
Department and, moreover, that it was considered "impolitic, in the opinion of the President, to
move a force at this time, into the Spanish possessions, for the mere purpose of
chastising the Seminoles
Letter from Secretary of War Graham to General Gaines
(Oct. 30, 1817), reprinted in id. at 685; Letter from Secretary of War Graham to General
Gaines (Dec. 2. 1817), reprinted in id. at 687.
216. Letter from Secretary of War Calhoun to General Jackson (Dec. 17, 1817), summarized
in 2 THE PAPERS OF JOHN C. CALHOUN 24 (W. Hemphill ed. 1963).
217. Letter from Secretary of War Calhoun to General Jackson (Dec. 26, 1817), reprinted
in AMERICAN STATE PAPERS, 1 MILITARY AFFAIRS 690 (1832).
Vol. 1977:1]
CONTROL OF INFORMATION
35
settled hostilities. ,,218 Calhoun did not repeat his earlier warning to Gaines
not to attack any Spanish posts. 219
President Monroe sent Jackson personal encouragement in the same
mail with Calhoun's instructions. "This is not a time for you to think of
repose," he wrote. "Great interests are at issue, and until our course is
carried through triumphantly, [and] every species of danger to which it is
exposed is settled on the most solid foundation, you ought not to withdraw
your active support from it. ,,220
On January 6, 1818, after receiving his copy of Calhoun's instructions
to Gaines of December 16, but before receiving the December 26 order to
assume command, Jackson wrote "confidentially" to Monroe proposing a
plan for conquering the Floridas. 221 He suggested that the United States
seize and hold all of East Florida "as an indemnity for the outrages of Spain
upon the property of our Citizens
,,222 He assured the President that
"this could be done, without implicating the Government; let it be signified
to me through any channel, (say Mr. J. Rhea) that the possession of the
Floridas would be desirable to the United States, and in sixty days it will be
accomplished.
,,223
Five days after writing his confidential note, Jackson received Cal-
houn's instructions of December 26, ordering him to assume control of the
Florida expedition, and Monroe's accompanying letter. 224 After promptly
calling for volunteers in Tennessee and Kentucky, he marched across the
Florida border. 225 Within three months Jackson had seized several forts and
had conquered Pensacola, all of which were garrisoned by Spanish
troops. 226
On June 2, Jackson explained to Calhoun that "[t]he Immutable princi-
ples
of self defence justified the occupancy of the Floridas and the
218. Id.
219. See id. Many authorities assume or state that the December 26 orders incorporated
by reference the earlier instructions to Gaines. For example, Cresson writes that Jackson
was given command on December 26 "subject to the restrictions already imposed upon
Gaines." W. CRESSON. JAMES MONROE 304 (1946). Although one might reasonably conclude
that the restriction was intended, it was not expressly imposed. For further discussion of
this matter, see notes 236-39 infra and accompanying text.
220. Letter from President Monroe to General Jackson (Dec. 28, 1817), in Thomas F.
Madigan Collection, New York Public Library (same punctuation does not appear in
original).
221. Letter from General Jackson to President Monroe (Jan. 6, 1818), reprinted in 2
JACKSON CORRESPONDENCE 345.
222. Id. at 346.
223. Id. The reference is to John Rhca, United States Representative from Tennessee,
1803-1815, 1817-1823. Id. at 335 n.l.
224. 13. BASSETT. THE LIFE OF ANDREW JACKSON 250 (1911).
225. Id. at 250-52.
226. Id. at 252-54, 260-64; G. DANGERFIELD, supra note 213, at 47-51.
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DUKE LAW JOURNAL
[Vol. 1977:1
same principles will warrant the American Government in holding it until
such time as spain [sic] can guarantee by an adequate military force the
maintaining her authority, within the colony. ""227 But in a "private" letter
to Monroe, Jackson went on to promise that an additional force "would
insure Ft St Augustine add another Regt. and one Frigate and I will insure
you Cuba in a few days. ,,228 These were hardly "defensive" proposals. In
fact, neither letter mentioned finding any hostile Indians at Pensacola,
though Jackson did enclose some depositions attesting that the Spanish
Governor had aided the Indians. 229
That Jackson's confidential letter of January 6, 1818, which offered to
take the Floridas on his own responsibility, 230 definitely reached the Presi-
dent is implicit in each man's version of the matter. Years later, Jackson
claimed Monroe secretly authorized conquering the Spanish posts in a
message sent through Tennessee Congressman John Rhea. 231 Monroe de-
227. Letter from General Jackson to Secretary of War Calhoun (June 2, 1818), reprinted
in AMERICAN STATE PAPERS, 4 FOREIGN RELATIONS 602, 603 (1834) and 2 JACKSON CORRE-
SPONDENCE 379, 381 (punctuation and spelling taken from latter source).
228. Letter from General Jackson to President Monroe (June 2, 1818), reprinted in 2
JACKSON CORRESPONDENCE 376, 378.
229. In his June 2 letter to Calhoun, Jackson indicated that he had appended "documents
substantiating the charges in part against the conduct of the Spanish Governor having
knowingly and willingly admitted the Savages, avowedly hostile to the U. States within the
Town of Pensacola." Letter from General Jackson to Secretary of War Calhoun (June 2,
1818), reprinted in AMERICAN STATE PAPERS, 4 FOREIGN RELATIONS 602 (1834) and 2
JACKSON CORRESPONDENCE 379 (punctuation and spelling taken from latter source).
230. See notes 221-23 supra and accompanying text.
231. In 1831 Jackson first publicly disclosed his version of the Rhea matter-an account
which, if true, would exonerate Jackson for his seizure of the Floridas in 1818 on the
grounds of presidential authorization. Jackson declared that, in response to his January 6,
1818 letter to Monroe requesting the President to authorize seizure of the Floridas "through
any channel, (say Mr. J. Rhea)," see text accompanying note 223 supra, he had actually
received a letter from congressman Rhea conveying such authorization in February 1818
while marching toward Florida. Jackson claimed he burned Rhea's letter in April 1819 after
being informed by Rhea that Monroe and Calhoun wanted it destroyed. 1J. BASSETT. supra
note 224, at 245-47; W. CRESSON, supra note 219, at 304-05; Stenberg, Jackson's "Rhea
Letter" Hoax, 2 J.S. HIST. 480, 482-87 (1936).
When in 1831 Jackson finally proffered this explanation of the Rhea matter, he chose
Rhea himself as his mouthpiece. Stenberg, supra at 482. On June 3, 1831 Rhea wrote a letter
to Monroe corroborating Jackson's version of what had transpired. Letter from Representative
John Rhea to President Monroe (June 3, 1831), reprinted in 4 JACKSON CORRESPONDENCE
288 n.1 (first draft). Although Jackson disclosed his account of the Rhea matter in 1831, it is
unclear whether Jackson fabricated the explanation during the period 1830-31 or at some
earlier time, possibly 1827. See Stenberg, supra at 491-96. At any rate, Jackson did not
attempt to vindicate himself publicly until Calhoun began to circulate a pamphlet early in
1831, the effect of which was to implicate Jackson. J. CALHOUN. CORRESPONDENCE BETWEEN
GEN. ANDREW JACKSON AND JOHN C. CALHOUN, PRESIDENT AND VICE-PRESIDENT OF
THE U. STATES. ON THE SUBJECT OF THE COURSE OF THE LATTER, IN THE DELIBERATIONS OF
THE CABINET OF MR. MONROE, ON THE OCCURRENCES IN THE SEMINOLE WAR (1831); see I T.
BENTON, THIRTY YEARS' VIEW 167-69 (1854). In the fall of 1831 or spring of 1832 Jackson
responded to Calhoun's pamphlet with his "Exposition against Calhoun," but, as he was
Vol. 1977:1]
CONTROL OF INFORMATION
37
nied this story, asserting in a letter to Calhoun: "I well remember that when
I received the letter from Genl. Jackson
on the 5th day of Jany. [sic]
1818, I was sick in bed, and could not read it. ,,232 According to Monroe, he
gave the letter to Calhoun, who returned it stating that it required Monroe's
personal attention, but without disclosing its contents to the President. 233
Having already made all the arrangements for the Seminole campaign,
Monroe claimed that he laid the letter aside and forgot it. 234
Although considerable research has cast doubt on Jackson's claim that
Monroe sent a message through Rhea, 235 Monroe's story is at least equally
suspect. Monroe's failure to reply to Jackson's proposal could reasonably
have been interpreted as approval for Jackson to go ahead on his own
responsibility 236 Arguably, Monroe and Calhoun expected Jackson to un-
derstand that he would be bound by the earlier instruction to Gaines to
refrain from attacking Spanish posts. 237 But Jackson's letter of January 6
was his response-and objection-to the order to Gaines. 238 After writing it,
dissuaded from publishing the defense, it was first printed-posthumously-in, 1852. Stenberg,
supra at 485-87. For the text of Jackson's exposition, see 1 T. BENTON, supra at
169-80 (publishing substantial part of Jackson's final draft), and 4 JACKSON CORRESPONDENCE
228-36 (preliminary draft, incorrectly dated "February, 1831" by editor).
232. Letter from President Monroe to Secretary of War Calhoun (May 19, 1830), reprinted
in 7 MONROE WRITINGS 209.
233. Id.
234. Id. See also Deposition of James Monroe (June 19, 1831), reprinted in id. at 234-36
(denying truth of Rhea's June 3, 1831 letter to Monroe corroborating Jackson's version of
Rhea matter).
235. See, e.g., W. CRESSON. supra note 219, at 304-06 (concluding that Monroe "never
had any dealings with John Rhea"); Stenberg, supra note 231, at 486 (describing as a
"slanderous fabrication" Rhea's June 3, 1831 letter to Monroe written to corroborate
Jackson's contention that Rhea, acting with proper authorization, had instructed Jackson to
acquire possession of the Floridas).
Professor Bassett has suggested that Jackson may have been confused by a cryptic
message from Rhea dated January 12, 1818, a note which related to another matter. That
letter was "a message from Monroe through Rhea, and Jackson's mind
may have
forgotten the real nature of the message and assumed that it related to his hint about
Florida." 2 JACKSON CORRESPONDENCE xii; see id. at 348 n.1; 1 J. BASSETT, supra note 224,
at 249 n.1. Bassett's proposed explanation has been criticized, though, as an "ingenious
effort to shield Jackson from an open exposure of his dishonesty and insidious intriguing
Stenberg. supra at 488.
236. Jackson himself used this argument in 1831 in his "Exposition against Calhoun."
He noted that more than seven months had passed after he wrote his confidential letter of
January 6, 1818 without his receiving any
intimation that the wishes of the government had changed, or that less was expected
of me. if the occasion should prove favorable, than the occupation of the whole of
Florida. On the contrary, either by their direct approval of my measures, or their
silence, the President and Mr. Calhoun gave me reason to suppose that I was to be
sustained, and that the Floridas after being occupied were to be held for the benefit
of the United States.
I T. BENTON. supra note 231, at 172.
237. See note 219 supra. For Calhoun's instruction to Gaines, see note 214 supra and
accompanying text.
238. For a partial text of Jackson's letter of January 6, 1818, see notes 221-23 supra and
accompanying text.
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Jackson received Calhoun's instructions of December 26 that he adopt the
"necessary measures" to end the uprising, along with Monroe's private
letter urging him to put to rest "every species of danger. ,,239 Had Monroe
truly wished Jackson to refrain from attacking the posts, a further instruction
would have been sensible, if not indispensable.
Monroe's claim that he laid Jackson's January 6 letter aside without
taking any action is undercut by a letter he wrote on January 30, 1818,
specifically asking Calhoun to order Jackson "not to attack any post OC-
cupied by Spanish troops, because of the possibility, that it might bring the
allied powers on us. .,240 By that time, Calhoun had received letters from
Jackson dated January 12 and 13,241 so Monroe's instruction to Calhoun was
probably a response to Jackson's proposal of January 6. In spite of the
President's order, Calhoun sent Jackson no instruction to desist. Possibly
this was because, as Monroe later contended, Calhoun had told the President
that the matter was one requiring his personal attention. 242 A letter from
Calhoun would normally have been subject to legislative call, thus revealing
Jackson's highly controversial suggestion. In any event, Monroe apparently
changed his mind, since Calhoun sent Jackson a letter on February 6 that
could only have served to encourage Jackson to go ahead with his plan. 243
He wrote to acquaint Jackson
with the entire approbation of the President of all the measures which
you have adopted to terminate the rupture with the Indians. The honor
of our arms, as well as the interest of our country requires, that it
should be as speedily terminated as practicable; and the confidence
reposed in your skill and promptitude assures us that peace will be
restored on such conditions as will make it honorable and permanent. 244
Monroe's January 30 letter also shows that the President was not yet
incapacitated by illness as of that date. The diary of John Quincy Adams, in
fact, records substantial activity between Monroe and the Cabinet until the
entry for February 23, which recites for the first time that the President was
239. For a partial text of Calhoun's December 26, 1817 orders to Jackson and Monroe's
accompanying letter, see notes 217-20 supra and accompanying text.
240. Letter from President Monroe to Secretary of War Calhoun (Jan. 30, 1818), reprinted in
2 THE PAPERS OF JOHN C. CALHOUN, supra note 216, at 104.
241. Sec Letter from Secretary of War Calhoun to General Jackson (Jan. 29, 1818), reprinted
in part in AMERICAN STATE PAPERS, I MILITARY AFFAIRS 697 (1832). In addition to acknowledg-
ing Jackson's "letters of the 12th and 13th instant," Calhoun wrote the General that he
approved the "measures you have taken to bring an efficient force into the field
Id.
Contemporaneously written dispatches from Florida were reaching Calhoun in from 12 to
16 days. See LETTERS SENT BY SECRETARY OF WAR REGARDING MILITARY AFFAIRS (National
Archive microfilm, series M-6).
242. See text accompanying note 233 supra.
243. Letter from Secretary of War Calhoun to General Jackson (Feb. 6, 1818), reprinted in
part in AMERICAN STATE PAPERS, 1 MILITARY AFFAIRS 697 (1832).
244. Id.
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CONTROL OF INFORMATION
39
too ill to function normally. 245 Even if Jackson's letter of January 6 had
suffered unusual delays, it should have reached Monroe well before he
became ill, contrary to his later claim. 246
On March 25, 1818, as Jackson was marching into Florida, Monroe
sent a special message to Congress which included the orders he had issued
to General Jackson. Monroe characterized these orders as instructions "not
to enter Florida, unless it be in pursuit of the enemy, and in that case to
respect the Spanish authority wherever it is maintained
,,247
While
Monroe included in full the December 16 letter to Gaines that prohibited
attacking the Indians "under a Spanish post, .,248 he sent Congress only an
extract of the December 26 instructions to Jackson, deleting the injunction
that Jackson "adopt the necessary measures to terminate" the conflict. 249
Excluded completely from the transmittal were Monroe's simultaneously
executed letter of personal encouragement, Jackson's letter of January 6
proposing a conquest, and Calhoun's letter of February 6 approving Jack-
son's measures and expressing confidence that the General would quickly
terminate the war. 250
Monroe's March 25 message was received late in the session. 251 The
House Committee on Foreign Relations had already unanimously rejected a
proposition to authorize the President to take possession of the Floridas. 252
Jackson's proposal, and the Administration's reaction to it, would therefore
245. See 4 MEMOIRS OF JOHN QUINCY ADAMS 33-35 (C. Adams ed. 1875) (describing activity
between Monroe and his Cabinet during the period January 1-February 23, 1818).
246. See text accompanying note 232 supra.
247. 32 ANNALS OF CONG. 1473 (1818) (message of President Monroe to House of Represen-
tatives).
248. Compare Letter from Secretary of War Calhoun to General Gaines (Dec. 16, 1817), in
Communications from the President of the United States Transmitting Information Respecting
the War with the Seminoles (Mar. 25, 1818), reprinted in AMERICAN STATE PAPERS, 2 INDIAN
AFFAIRS 154, 162 (1834) (text of Calhoun's letter which Monroe provided to Senate), with Let-
ter from Secretary of War Calhoun to General Gaines (Dec. 16, 1817), reprinted in 2 THE PA-
PERS OF JOHN C. CALHOUN, supra note 216, at 20 (text of Calhoun's letter as it appeared in War
Department files).
249. Compare Letter from Secretary of War Calhoun to General Jackson (Dec.26, 1817), in
Communications from the President of the United States Transmitting Information Respecting
the War with the Seminoles (Mar. 25, 1818) reprinted in AMERICAN STATE PAPERS, 2 INDIAN
AFFAIRS 154,162 (1834) (excerpt of Calhoun's letter that Monroe provided Senate), with Letter
from Secretary of War Calhoun to General Jackson (Dec. 26, 1817), reprinted in 2 JACKSON
CORRESPONDENCE 341, 342 (full text of Calhoun's letter).
250. See Communications from the President of the United States Transmitting Information
Respecting the War with the Seminoles (Mar. 25, 1818) reprinted in AMERICAN STATE PAPERS, 2
INDIAN AFFAIRS 154-62 (1834). For partial texts of the excluded letters of Monroe, Jackson and
Calhoun, see, respectively, the text accompanying notes 220, 223 & 244 supra.
251. The first session of the Fifteenth Congress adjourned on April 20, 1818. See 32 ANNALS
OF CONG. 1782 (1818).
252. See 33 id. at 930 (1819) (remarks of Rep. Tyler).
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have caused considerable controversy. But after receiving Monroe's limited
disclosures, Congress adjourned without further action.
The Administration acted with remarkable laxity as news of Jackson's
campaign began reaching Washington. After full Cabinet consideration,
Monroe decided to support Jackson on the theory that his conduct was
justified by circumstances in the field, particularly the behavior of Spanish
officers. 253 Nevertheless, Monroe was determined to insist that he had not
authorized an occupation of Spanish forts254 and to announce his intention to
surrender them. 255 "[C]ases may occur," he wrote Jackson, where the
commanding general could seize foreign posts "acting on his own responsi-
bility. ,,256 If the executive refused to surrender the posts, he added, "it
would amount to a declaration of war, to which it is incompetent. ,,257
One difficulty Monroe faced with his theory for avoiding responsibility
and concomitantly exonerating Jackson was the paucity of evidence which
would indicate that the conduct of the Spanish officers was so improper as to
have justified Jackson's assaults. Monroe wrote Jackson that he was de-
pending on the General to support the charge against the officers of Spain.
"You must aid in procuring the documents necessary for this purpose.
Those which you sent by Mr. Hambly were prepared in too much haste, and
do not I am satisfied, do justice to the cause. ,,258 He asked Jackson to give
the "grounds on which we rest
all the support in your power. .,259
Some passages in Jackson's previous letters were "liable to the imputation
that you took the Spanish posts
as a measure of expediency, and not on
account of the misconduct of the Spanish officers
If you think proper
to authorize the Secretary or myself to correct those passages, Monroe
volunteered, "it will be done with care, though, should you have copies, as
I presume you have, you had better do it yourself. ,,260
Jackson claimed that his activities had been fully authorized and he
therefore refused to take the blame for what had occurred. 261 In particular,
he referred to Calhoun's orders of December 26, authorizing him to "adopt
the necessary measures to terminate" the conflict. 262 These orders, he
253. Letter from President Monroe to General Jackson (July 19, 1818), reprinted in 6
MONROE WRITINGS 54. 56-60.
254. Id. at 56-57.
255. Id. at 57.
256. Id. at 56.
.
257. Id. at 57.
258. Id.
259. Id. at 58.
260. Id. at 59-60.
261. Letter from General Jackson to President Monroe (Aug. 19. 1818). reprinted in 2
JACKSON CORRESPONDENCE 389.
262. Id. at 390. For the relevant text of Calhoun's orders of December 26, 1817, see text
accompanying note 218 supra.
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CONTROL OF INFORMATION
41
contended, superseded the orders earlier sent to Gaines. 263
Monroe's statement that Jackson had acted on his own responsibility²⁶⁴
seems particularly to have affected Jackson. 265 He had, after all, promised
Monroe, in his letter of January 6, to conquer the Floridas without implicat-
ing the government. 266 Even if Monroe had actually sent word through
Rhea that Jackson should go ahead, or if Jackson had reasonably construed
Monroe's silence as approval, the General was nonetheless reneging on his
promise to Monroe by asserting that his actions were authorized. This may
explain why he said, in a confidential letter of August 19:
The assumption of responsibility will never be shrunk from, when the
public interest can be thereby promoted. I have passed through difficul-
ties and exposures for the honor and benefit of my country, and
whenever still, for this purpose, it shall become necessary to assume a
further liability, no scruple will be urged or felt. But when it shall be
required of me to do so, and the result shall be danger and injury to that
country, the inducement will be lost and my consent will be wanting. 267
Jackson seems to have been suggesting that, had Monroe been prepared to
retain the seized area, he would have assumed responsibility, but not with
that inducement lost.
Monroe replied on October 20 that he "was sorry to find that you
understood your instructions relative to operations in Florida differently
from what we intended. ,,268 He was satisfied, in any event, that Jackson had
"good reason" for his conduct, 269 and said that he had never intended to
expose Jackson to "a responsibility
[Jackson] did not contem-
plate. ,,270 Monroe suggested that Jackson state his position in a letter to the
Department of War. 271 "This will be answered, so as to explain ours, in a
friendly manner by Mr. Calhoun, who has very just and liberal sentiments
on the subject. This will be necessary in the case of a call for papers by
Congress, as may be. ,,272 According to Monroe, this procedure would
enable both Jackson and himself to "stand on the ground of honor, each
263. Letter from General Jackson to President Monroe (Aug. 19, 1818), reprinted in 2
JACKSON CORRESPONDENCE 389-90.
264. Letter from President Monroe to General Jackson (July 19, 1818), reprinted in 6
MONROE WRITINGS 54-55.
265. See Letter from General Jackson to President Monroe (Aug. 19, 1818), reprinted in 2
JACKSON CORRESPONDENCE 389.
266. See text accompanying note 223 supra.
267. Letter from General Jackson to President Monroe (Aug. 19, 1818), reprinted in 2
JACKSON CORRESPONDENCE 389.
268. Letter from President Monroe to General Jackson (Oct. 20, 1818), reprinted in 6
MONROE WRITINGS 74.
269. Id.
270. Id. at 75 (emphasis added).
271. Id.
272. Id.
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[Vol. 1977:1
doing justice to the other.
.,273
Jackson refused Monroe's invitation to make a record for Congress
since, as far as he knew, nothing in the War Department files could be used
to demonstrate that he had exceeded his authority. 274 Only Monroe's private
letters to Jackson written after the Seminole campaign indicated a difference
between Monroe and Jackson, and, according to Jackson, none of these
could be made "the basis of an official communication to the secretary of
war. .,275 Jackson offered, however, to respond to an official letter if Monroe
were to direct Secretary Calhoun to write one. 276 Monroe declined this offer,
writing on December 21 that an official letter from Jackson would be
"unnecessary. ,,277 His only intent in suggesting one, he said, was to protect
Jackson. 278
Congress reconvened on November 16, 1818. 279 In a message deliv-
ered to Congress the following day, Monroe claimed that the invasion of
Florida had been an act of self-defense, additionally justified by Spain's
failure to meet its treaty obligation to restrain the Indians in Florida from
hostile acts against the United States. 280 Jackson's orders, the President
said, were carefully drawn so as "not to encroach on the rights of Spain. 281
While executing his instructions, "facts were disclosed respecting the con-
duct of the officers of Spain, in authority there, in encouraging the war,
furnishing munitions of war, and other supplies" to the Indians, so that
Jackson "was convinced that he should fail in his object
if he did not
deprive those savages of the resource on which they had calculated
'282 Jackson's reasons were "duly appreciated,' but the posts had to
be returned to Spain. 283 Restitution of the posts would preserve peaceful
relations; "[t]o a change of them the power of the Executive is deemed
273. Id.
274. Letter from General Jackson to President Monroe (Nov. 15, 1818), reprinted in part in 2
JACKSON CORRESPONDENCE 398-99 n.2. Jackson's belief that there were no inculpatory docu-
ments in the possession of the War Department was apparently correct, as Monroe subsequent-
ly wrote the General that there was "nothing in the Department to indicate a difference of
opinion between you and the Executive, respecting the import of your instructions
Letter from President Monroe to General Jackson (Dec. 21, 1818), reprinted in 6 MONROE
WRITINGS 85-86.
275. Letter from General Jackson to President Monroe (Nov. 15, 1818), reprinted in part in 2
JACKSON CORRESPONDENCE 398-99 n.2.
276. Id.
277. Letter from President Monroe to General Jackson (Dec. 21, 1818), reprinted in 6
MONROE WRITINGS 85.
278. Id. at 85-86.
279. 33 ANNALS OF CONG. 9 (1818).
280. Id. at 13-14.
281. Id. at 14.
282. Id.
283. Id.
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CONTROL OF INFORMATION
43
incompetent. It is vested in Congress only. ,,284
The Senate requested more information on November 30, 1818, 285 and
also on December 17, at which time it specifically requested correspondence
with Spain relating to the war, Jackson's orders, and other specified corres-
pondence with Jackson "or such parts thereof, as may be communicated
with a view to public safety. ,,286 The President responded at various points
by providing numerous documents to both the Senate and the House. 287 The
letter of December 26 bearing instructions to Jackson, edited for the March
25 transmittal, was given to the Senate in full. 288 In addition, Calhoun's
February 6 letter of approbation, excluded entirely in the March 25 transmit-
tal, was produced in excerpted form. 289 Monroe withheld, however, some
284. Id. at 15.
285. Id. at 31. The motion provided: "That the President of the United States be requested
to lay before the Senate, copies of the several documents and papers referred to in his
[November 17] Message to Congress
Id.
286. Id. at 74.
287. On December 3, 1818, Monroe made available to the Senate such of the documents
referred to in his November 17 message to Congress "as have been prepared since that period."
Id. at 35 (message from Monroe to the Senate). In response to the Senate's subsequently passed
resolution of December 17 requesting additional records, Monroe complied on December 28 by
transmitting "a report from the Secretary of State, with the papers and documents accompany-
ing it." Id. at 85 (message from Monroe to the Senate).
It should be noted that, even before he was requested to produce records pertaining to the
Seminole War, Monroe had stated that "all the documents relating to this occurrence will be
laid before Congress
Id. at 14 (Monroe's Nov. 17 message to Congress). The President
apparently had not, however, transmitted any of the records to Congress until after he had
received the legislative requests for the production of documents. In a message to the Senate
accompanying the transmittal of records on December 3, Monroe attributed the delay to the
length of time necessary to prepare the documents. Id. at 35-36 (message from Monroe to the
Senate). Voluminous documentation ultimately was sent. Message Transmitting Documents
Relating to the War with the Seminole Indians, and to the Trial and Execution of Arbuthnot and
Ambrister (Nov. 17, 1818), reprinted in AMERICAN STATE PAPERS. 1 MILITARY AFFAIRS 681
(1832).
288. Compare Letter from Secretary of War Calhoun to General Jackson (Dec. 26,1817), in
Message Transmitting Documents Relating to the War with the Seminole Indians, and to the
Trial and Execution of Arbuthnot and Ambrister (Nov. 17, 1818), reprinted in AMERICAN
STATE PAPERS, 1 MILITARY AFFAIRS 681-90 (1832) (full text of Calhoun's letter transmitted to
Congress by Monroe on Nov. 17, 1818), with Letter from Secretary of War Calhoun to General
Jackson (Dec. 26,1817), in Communications from the President of the United States Transmit-
ting Information Respecting the War with the Seminoles (March 25, 1818), reprinted in AMERI-
CAN STATE PAPERS, 2 INDIAN AFFAIRS 154, 162 (1834) (excerpt of Calhoun's letter transmitted to
Senate by Monroe on Mar. 25, 1818). See text accompanying notes 217-19 supra.
289. Compare Letter from Secretary of War Calhoun to General Jackson (Feb. 6, 1818), in
Message Transmitting Documents Relating to the War with the Seminole Indians, and to the
Trial and Execution of Arbuthnot and Ambrister (Nov. 17, 1818), reprinted in AMERICAN
STATE PAPERS. 1 MILITARY AFFAIRS 681, 697 (1832) (excerpt of Calhoun's Feb. 6, 1818 letter
transmitted to Congress by Monroe on Nov. 17, 1818), with Communications from the Presi-
dent of the United States Transmitting Information Respecting the War with the Seminoles
(March 25, 1818). reprinted in AMERICAN STATE PAPERS. 2 INDIAN AFFAIRS 154 (1834) (omitting
Calhoun's Feb. 6, 1818 letter from documents transmitted to Senate by Monroe on March 25,
1818). See text accompanying notes 243-44 supra.
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of the material he had failed to turn over during the previous session, 290 as
well as the subsequent correspondence between Jackson and himself con-
cerning the legality of the former's conduct. 291 At no time did Monroe
intimate that the information sent was incomplete. 292 Although extensive
investigations were conducted by both the House and Senate concerning
Jackson's conduct, Jackson and Monroe were vindicated in that no official
action was taken against them. 293 Congress was undoubtedly reluctant to
criticize the Executive in the midst of negotiations then under way with
Spain for the cession of the Floridas. 294 Monroe's explanation for the seizure
290. Monroe's March 25 transmittal excluded both his December 26 letter of personal
encouragement that accompanied Jackson's orders and Jackson's January 6 message proposing
a conquest of the Floridas. See text accompanying notes 249-50 supra. Neither of these letters
was among the documents made available to Congress on November 17, 1818. See Message
Transmitting Documents Relating to the War with the Seminole Indians, and to the Trial and
Execution of Arbuthnot and Ambrister (Nov. 17, 1818), reprinted in AMERICAN STATE PAPERS, 1
MILITARY AFFAIRS 681 (1832).
291. Monroe's letters to Jackson dated July 19, October 20, and December 21, all concern-
ing whether the General had exceeded his authority during the Florida campaign, were withheld
from the November 17 transmittal of documents, as were Jackson's replies of August 19 and
November 15. See id. For a discussion of this correspondence, see notes 253-78 supra and
accompanying text.
292. Not only did the President fail to inform Congress that the proffered information was
incomplete, but he affirmatively misled the legislators by his concomitant assurance that they
would be provided with "all the documents" relating to the Seminole War. 33 ANNALS OF
CONG. 14 (1818) (message from President Monroe to Congress delivered on Nov. 17, 1818).
A motion requesting the President to submit copies of any "instructions" given the
American Minister to Spain was introduced in the House on December 14. Id. at 392-93. The
motion was amended to read "correspondence," however, so as to avoid any appearance of
interfering with the Senate's power over treaties. Id. at 393. The next day the motion passed,
having been cast in more general terms by an amendment requesting from the President "such
further correspondence and proceedings in relation to our affairs with Spain, as in his opinion it
shall not be inconsistent with the public interest to divulge.' Id. at 408. The President complied
with the request on December 28. Id. at 430-31 (message from Monroe to the House). The
House tabled a motion requesting the administration to produce correspondence with Great
Britain pertaining to certain aspects of the Seminole War. Id. at 398.
293. On December 18, 1818 the Senate established a select committee to "inquire relative to
the advance of the United States troops into West Florida
and, particularly, (as to] what
circumstances existed, to authorize or justify the Commanding General in taking possession of
Those [Spanish] posts." Id. at 76. The committee's lengthy report was received by the Senate
on February 24. See id. at 256-68. The Senate did not, however, take any further action prior to
its adjournment on March 3. See id. at 288.
The House Committee on Military Affairs delivered its report on the Seminole War to the
full House on January 12, 1819. Id. at 515-18. The committee specifically recommended that the
House disapprove certain of Jackson's actions during the Florida campaign. Id. at 518. The
committee report was referred to a Committee of the Whole, id. at 530, which subsequently
conducted protracted debates. See id. at 583-97, 600-755, 764-87, 797-922, 925-1073, 1077-1101,
1103-38. Finally, on February 8, the Committee of the Whole rejected the recommendation of
the Military Affairs Committee to disapprove certain of Jackson's actions, as well as two other
resolutions unfavorable to the General. Id. at 1132-33. Thereafter "the House concurred with
the Committee of the Whole in rejecting the resolution of censure reported by the Military
Committee." Id. at 1135-36.
294. Writing contemporaneously, John Quincy Adams observed that it was "a remarkable
Vol. 1977:1]
CONTROL OF INFORMATION
45
of the posts could have been entirely undermined, however, if all relevant
information had been given to Congress, and it certainly would have been if
Congress had known that Monroe had proposed, in confidential correspond-
ence, that Jackson amend and prepare letters in anticipation of a congres-
sional call for documents.
V. CONCLUSION
Early American history tempts one to conclude that, while the cast of
characters has changed, practices concerning information have remained
essentially the same since the Framers governed this nation. There is
considerable truth to this observation, but the point can be greatly over-
stated, evoking unwarranted cynicism. Early presidential conduct does tend
to undermine the argument that the President has no constitutional power to
withhold information from Congress. We should not, however, assess the
conduct of the first presidents on the basis of present expectations which are
derived from inadequate scholarship and a strong desire to find fault with
recent leaders.
Furthermore, though the nation's early history undercuts the argument
that presidents lack discretion to withhold information, it provides no
support whatever for the claim, recently made with monotonous regularity,
that a presidential assertion of privilege! is unreviewable by Congress.
Discretionary power is not to be equated with arbitrary or absolute power. In
our constitutional system discretion usually means judgment "guided by
sound legal principles," producing decisions made "according to the rules
of reason and justice
',295
None of the Framers claimed that the President's power to withhold
material was absolute. Washington apparently felt obliged to comply with
circumstance" that the Senate "unanimously advised and consented to the ratification of the
treaty with Spain" on the same day one of its committees "made a report severely censuring
General Jackson for the transactions of his campaign in Florida which have been among the
most immediate and prominent causes that produced that treaty.' 4 MEMOIRS OF JOHN QUINCY
ADAMS, supra note 245, at 277-78.
295. These quotes from Chief Justice Marshall and Lord Halsbury appear in Friendly,
Judicial Control of Discretionary Administrative Action, 23 J. LEGAL ED. 63, 64 (1970). The
distinction between "a discretion to withhold," as Jefferson described it, and absolute discre-
tion is all important, yet not carefully enough drawn. See, e.g. Dorsen & Shattuck 8, 11, 13.
Chief Justice Marshall said in Marbury V. Madison, 5 U.S. (1 Cranch) 137 (1803), that the
Constitution invested the President "with certain important political powers, in the exercise of
which he is to use his own discretion, and is accountable only to his country in his political
character, and to his own conscience." Id. at 165-66. Marshall's point, however, was only that
the courts had no power to control such discretion, because its exercise involved no individual
rights. Id. at 170. He was referring to explicitly conferred powers, such as the authority to
appoint certain executive officers. He was, therefore, making no judgment on the extent of the
President's accountability to Congress, including its authority to reject appointments, to refuse
to fund programs, and to impeach.
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any demand for information that was part of an impeachment investigation;
and when his personal integrity was challenged by a former cabinet
member, Edmund Randolph, he granted Randolph complete access to all the
pertinent information in his control 296 None of the Framers, moreover,
denied Congress' authority to utilize its powers in order to bring pressure
upon the Executive to supply information. When the early presidents secret-
ly withheld material, they did so in order to avoid being asked for it, not
because they felt Congress had no power to make an effective request. Their
secret conduct suggests that they regarded Congress as empowered to
disagree with and override their judgments. Recent presidents, by contrast,
have sought to inflate executive secrecy into a practice that is constitutional-
ly immune from legislative surveillance.
Another important difference between the conduct of early and contem-
porary presidents concerns the number of persons they have claimed to
control. Early presidents felt they could control the flow of information from
their very highest officers, 297 but never claimed discretion to control the
testimony of all executive branch personnel. Some recent presidents, how-
ever, have claimed the power to prevent any person in the executive branch
from providing information to Congress 298 This is an enormously signifi-
cant difference, both conceptually and in practical consequence. A privilege
covering only those officers closest to the President suggests an intention to
protect the deliberative processes of government at the highest level. When
the privilege is extended to all executive personnel, no purpose is suggested
other than the limitless one of keeping Congress from discovering anything
the President might deem undesirable to reveal. Furthermore, even if early
presidents had claimed discretion to control the flow of information from all
executive personnel to Congress, their power would only have extended to a
few offices and a small number of people, performing the most basic
functions of government. Now, such a claim has the potential of giving the
President control over millions of employees, working in hundreds of
different programs, and performing important functions in all aspects of
national and international life.
296. 5 ANNALS OF CONG. 760 (1796) (message from President Washington to the House of
Representatives, March 30, 1796, in response to its request for information as regards the Jay
Treaty); sec A. SOFAER 93 (the Edmund Randolph matter).
297. For example, when the House originally requested information on St. Clair's defeat,
the request was addressed to the Secretary of War. Washington's Cabinet agreed that, since the
President controlled all department heads, the House should be asked to address the President
instead. The resolution was changed accordingly. See text accompanying notes 27-31 supra; A.
SOFAER 79-80. At one point during Madison's presidency he instructed the Secretary of the
Treasury to answer all questions posed by the congressional committee investigating the fall of
Washington City during the War of 1812, suggesting that he fell he could have ordered
otherwise. Id. at 253.
298. See Hearing on Executive Privilege, supra note 13, at 428-38, 441 (testimony of Assis-
tant Attorney General Rehnquist).
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The behavior of early legislators also provides little support for the
claim that the President has unreviewable discretion to withhold informa-
tion. Legislators such as Madison and Gallatin-leading Jeffersonian
Republicans-expressly recognized that the President had discretion to
refuse information. But their statements were almost invariably coupled
with the understanding, often expressed, that the President would give
reasons for withholding material, which the legislature could then review. 299
Rarely did even a single legislator of that period assert that presidential
discretion over information was unreviewable. 300 On several occasions, in
fact, Congress used its powers over appointments, appropriations and
treaties to force the presidents involved to supply more information or suffer
rejection of their proposals. 301
Finally, while the federal courts recognized an evidentiary privilege at
an early date, they claimed and applied the power to review its exercise.
Both the Supreme Court and later Chief Justice Marshall acting as a trial
judge sought to avoid direct confrontations with the executive branch by
299. For example, Madison said, after President Washington withheld Jay Treaty material,
that he was "ready to admit that the Executive had a right, under a due responsibility,
to
withhold information, when of a nature that did not permit a disclosure of it at the time. 5
ANNALS OF CONG. 773 (1796) (emphasis added). During the call for the XYZ dispatches, see
notes 68-78 supra and accompanying text, Gallatin said that "if
he [the President] is
convinced it will be highly injurious to the public welfare, or endanger the safety of our
Commissioners, or prevent the happy issue of our negotiation, to communicate the information,
he will either give it, or state his reasons for withholding it to the House.' 8 id. at 1371 (1798).
Federalist Robert Harper also thought that in this case "the whole [of the information] ought to
be called for; and if the President should think it proper to retain a part, he would doubtless give
sufficient reasons to the House for doing so." Id. at 1369. These examples, of course, are not
meant to imply that presidents were viewed as powerless to disagree with the legislature's
judgment of their actions.
300. Some Representatives claimed, for example, that Washington's refusal to supply
information concerning the Jay Treaty was final and that discussion of any legislative response
would be inappropriate. See, e.g., 5 id. at 762 (1796) (remarks of Rep. Thatcher); id. at
763 (remarks of Rep. Sedgwick); id. at 763-64 (remarks of Rep. Sitgreaves). The House
voted overwhelmingly, nonetheless, to approve two resolutions rejecting certain of Washing-
ton's contentions. Id. at 782-83. Other instances in which apparent claims of absolute discretion
were made may be found in A SOFAER 177 n., 245, 246. None can be given much weight.
301. The most notable instances in which either the House or Senate demonstrated its power
to force information from the President occurred during the attempts to adopt and enforce the
embargo under Jefferson, SEC A. SOFAER 186-87; in response to Madison's appointments of
Gallatin and Russell as ministers (in this instance the Senate committees did not extract the
desired information, but the Senate did reject Madison's nominations). sec id. at 240-42; and
when the Senate learned that John Quincy Adams planned 10 send ministers to the Panama
Congress, see id. at 262. The fact that legislators repeatedly contended that Congress would use
whatever power it possessed to block treaties or other lawful executive actions does not
necessarily mean the legislators acted constitutionally by exercising those powers. Some degree
of self-restraint was widely regarded by legislators as constitutionally required, though the
matter was one that necessarily lay within the legislature's discretion. See,e.g., 5 ANNALS or
CONG. 758-59 (1796) (remarks of Rep. Harper); id. at 1108 (remarks of Rep. Findley).
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proceeding deferentially. 302 Yet both asserted that the courts must ultimately
determine the scope of any privilege to withhold material sought by proper
judicial process.
Early American history therefore shows that executive privilege is
neither myth nor absolute license. The claim that the President has unlimited
power to withhold material sought by Congress or the courts is as untenable
as the assertion that he has no power to do so. Practice indicates that the
division of authority between the branches is somewhere between these
extremes, and is worked out anew in each instance of controversy.
The history we have examined imparts an even more important lesson.
It is that constitutional claims of the executive, legislature and courts
concerning information have less practical importance than might appear
from the degree of attention they receive. Such claims become crucial only
during a formal confrontation between two branches, a relatively rare
occurrence. By focusing on the merits of constitutional claims asserted by
each branch respecting information, as most existing literature tends to do,
one addresses only a small part of the problem of information control as it
has been observed in practice.
The legislative practices of early American history that had by far the
greatest impact on the control of information were Congress' frequent
refusals to request necessary documents and other material, and its willing-
ness to support policies without the intelligence essential to judge their
wisdom. When early sessions of Congress did pass information requests,
moreover, they were almost invariably qualified to permit the President to
withhold material in his discretion. In those few instances where legislators
seemed intent on obtaining information, their motivation often appears to
have been primarily partisan, their aim to harrass and embarrass the execu-
tive.
The most important executive branch practice during the nation's early
years was to keep from Congress even the fact that information had been
withheld. This was done for a variety of reasons, some genuinely based on
protecting national interests, others designed to protect the administration
from criticism or to prevent legislative interference with executive initia-
tives. The practice seldom left Congress ignorant of executive aims. Con-
gress seems 10 have had ample evidence, for example, of Jefferson's system
of dual correspondence, 303 of Madison's down-playing of French neutrality
violations, 304 and of Monroe's objectives and machinations in the
Floridas 305 But executive secrecy enabled the President to proceed without
302. See notes 97-101 supra and accompanying text.
303. See text accompanying notes 83-85 supra.
304. See text accompanying notes 118-26 supra.
305. See text accompanying notes 220-94 supra.
Vol. 1977:1]
CONTROL OF INFORMATION
49
having to submit detailed justification, and it enabled Congress to avoid
responsibility for the President's initiatives.
Constitutional doctrine was unquestionably a significant aspect of the
judiciary's early role concerning information. But the judicial role was itself
insignificant. The courts became involved only in cases between the govern-
ment and private persons, never in a dispute over information between
Congress and the President. Further, while a principle of judicial supervi-
sion was established, it was tempered by practical as well as theoretical
limits, and its application constituted no meaningful part of the process of
conducting foreign or military affairs.
This predominantly political and practical pattern which dominated
information control in the nation's early years has remained essentially
unchanged. Congress has alternated in recent years between being too
deferential and being irresponsible or partisan. 306 Presidents continue to
avoid letting Congress know that information has been withheld, and they
have operated unilaterally in foreign and military affairs. 307 The courts are
more frequently involved in deciding disputes over information, but until
recently the disputes have never involved an outright conflict between the
legislative and executive branches of government. 308 Furthermore, the
courts continue to apply deferential and limited rules for disclosure. 309
306. The best discussion of congressional ifresponsibility is still Telford Taylor's Grand
Inquest, supra note 26. Examples of deference are numerous. See, e.g., D. EISENHOWER.
MANDATE FOR CHANGE, 1953-1956, at 218, 303-04 (1963). Even the deference accorded so
non-political a figure as Eisenhower, however, was the result of a complex mix, one of the
principal elements of which was the President's successful wooing of the bipartisan support
needed for his legislative programs. Id. at 192-95, 436, 547; see S. ADAMS. FIRSTHAND REPORT.
THE STORY OF THE EISENHOWER ADMINISTRATION 9 (1961).
307. See generally A. SCHLESINGER. THE IMPERIAL PRESIDENCY (1973); CONGRESSIONAL
CONFERENCE ON THE PENTAGON PAPERS, supra note 2, at 62-64; STAFF OF HOUSE COMM. ON
ARMED SERVICES. 92D CONG., 1ST SESS. UNITED STATES-VIETNAM RELATIONS 1945-1967. A
STUDY PREPARED BY THE DEPARTMENT OF DEFENSE (Comm. Print 1971) (12 vols.).
308. The federal district and circuit courts in the District of Columbia have recently found
jurisdiction to pass upon the enforcement of committee subpoenas addressed to President
Nixon. In both cases, however, enforcement was denied because of an inadequate showing of
need or a refusal to promise confidentiality. Senate Select Comm. on Presidential Campaign
Activities V. Nixon, 370 F. Supp. 521 (D.D.C.), off d, 498 F.2d 725 (D.C. Cir. 1974). Most
recently, the same court of appeals found jurisdiction in a suit to enforce a committee subpoena
issued to obtain wiretap information from the American Telephone and Telegraph Co., even
though the Attorney General had intervened to prevent enforcement. The court remanded,
however, suggesting that the legislative and executive branches attempt to settle the dispute.
United States V. American Tel. & Tel. Co., 551 F.2d 384 (D.C. Cir. 1976).
309. In suits to obtain information from the executive, other than those brought under the
Freedom of Information Act, the moving party must show sufficient need. Even if great need is
shown, the equities in the executive's favor may be deemed to overcome the applicant's case
for disclosure. The executive is given the benefit of generous presumptions, and sensitive
materials are usually examined in camera, thereby preventing a full opportunity for the moving
party to participate in evaluating the executive's claim. Finally, not even an in camera hearing
is assured, where the executive makes some showing that the material's confidentiality is
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These observations provide useful guidance in evaluating proposals to
alter the present allocation of power. First, they show that one should not
expect Congress consistently to utilize its powers over appropriations,
appointments and other matters to compel production of information. The
legislature has "learned" several times in American history that presidents
can abuse excessive power. But what one Congress learns, another forgets;
experience has proven the need for supplementary measures. 310 Nor is
Congress likely to redress the present power imbalance by holding executive
officers in contempt. Congress has largely abandoned its power to hold
persons summarily in contempt, relying instead on a statutory substitute,
which, like other criminal statutes, is enforceable only by executive ac-
tion. 311 The summary contempt power is in any event subject to abuse, and
its application seems particularly inappropriate to punish officers complying
with orders of the President. 312
Second, statutory reforms may well encourage a regular flow of infor-
mation and discourage invocations of privilege. But statutes requiring ex-
ecutive officers to submit information have existed since 1789, and they are
unlikely to result in fundamental or lasting adjustments in legislative or
executive behavior. In addition, most statutes requiring information-and a
surprising number exist3¹³-have been construed by various presidents to
particularly important. Sec United States V. Reynolds, 345 U.S. 1, 9 (1953); Chicago & S. Air
Lines, Inc. V. Waterman Steamship Corp., 333 U.S. 103, 111 (1948); Cox, Executive Privilege,
122 U. PA. L. REV. 1383, 1408, 1416 (1974).
310. See Note, Executive Privilege and the Congressional Right of Inquiry, 10 HARV. J.
LEGIS. 621, 642-61 (1973).
311. Contempt of Congress Act, 2 U.S.C. § 192 (1970):
Every person who having been summoned as a witness by the authority of either
House of Congress to give testimony or to produce papers upon any matter under
inquiry before either House
willfully makes default, or who, having appeared,
refuses to answer any question pertinent to the question under inquiry, shall be
deemed guilty of a misdemeanor
By this enactment, the major responsibility for determining contempt was theoretically shifted
from the Congress to the courts. The actual transition, however, did not occur until Congress
abandoned its summary power to punish for contempt in 1945. C. BECK. CONTEMPT OF CON-
GRESS 5-7, 247-48 (App. C-2) (1959). See generally E. EBERLING. CONGRESSIONAL INVESTIGA-
TIONS: A STUDY OF THE ORIGIN AND DEVELOPMENT OF THE POWER OF CONGRESS TO INVESTIGATE
AND PUNISH FOR CONTEMPT 302-03 (1928).
312. See generally R. GOLDFARB. THE CONTEMPT POWER 42-45, 199-279, 289-90 (1963).
313. Numerous statutes requiring information concerning expenditures were consolidated in
5 U.S.C. § 2954 (1970), which provides:
An Executive agency, on request of the Committee on Government Operations of the
House of Representatives, or of any seven members thereof, or on request of the
Committee on Government Operations of the Senate, or any five members thereof,
shall submit any information requested of it relating to any matter within the jurisdic-
tion of the committee.
The General Accounting Office, which is required to submit reports to Congress "from time to
time," 31 U.S.C. § 60 (1970), has the following grant of statutory power:
All departments and establishments shall furnish to the Comptroller General such
information regarding the powers, duties, activities, organization, financial transac-
tions, and methods of business of their respective offices as he may from time to time
require of them, and the Comptroller General, or any of his assistants or employees,
Vol. 1977:1]
CONTROL OF INFORMATION
51
apply only to information they feel it is proper to submit. 314 Congress has
proved no more insistent than usual in demanding compliance with these
statutes. 315
The information practices observed in early American history, and
largely followed today, also demonstrate the risks and limited utility of
relying on the courts to bring about adjustments in the power of the
legislative and executive branches. Numerous arguments have recently been
advanced for some regular form of judicial review of information disputes,
many deserving of more detailed consideration than is appropriate here. 316
Even assuming, however, that jurisdictional barriers to such suits can be
overcome, 317 history shows that they could involve the courts in highly
when duly authorized by him, shall, for the purpose of securing such information,
have access to and the right to examine any books, documents, papers, or records of
any such department or establishment.
Id. $ 54.
314. Consider the discussion of 5 U.S.C. § 2954 (1970) in U.S. DEP'T OF JUSTICE. Is A
CONGRESSIONAL COMMITTEE ENTITLED TO DEMAND AND RECEIVE INFORMATION AND PAPERS
FROM THE PRESIDENT AND THE HEADS OF DEPARTMENTS WHICH THEY DEEM CONFIDENTIAL IN
THE PUBLIC INTEREST?, reprinted in SUBCOMM ON CONST. RIGHTS OF THE SENATE COMM. ON THE
JUDICIARY, 85TH CONG., 2D SESS., THE POWER OF THE PRESIDENT TO WITHHOLD INFORMATION
FROM CONGRESS 63-146 (Comm. Print 1958), which takes the position that the earlier version
of the statute does not change the law with respect to the heads of departments to keep from
public view matters which in their judgment should remain confidential.
Similarly, when the Comptroller General, acting under authority of 31 U.S.C. § 54 (1970)
(see note 313 supra), requested from the Secretary of the Air Force a report on the Air Force
ballistics program, access was refused. See Availability of Information from Federal Depart-
ments and Agencies, Hearings Before the Special Subcomm. on Gov't Information of the House
Comm. on Gov't Operations, 85th Cong., 2d Sess., pt. 16, at 3568, 3578-81 (1958). See also the
recent exchange of letters between FBI Director Clarence M. Kelley and Comptroller General
Elmer B. Staats concerning access to files in connection with the GAO's wiretapping survey,
reprinted in 122 CONG. REC. H5102-03 (daily ed. June 1, 1976). See generally Berger, Executive
Privilege V. Congressional Inquiry, 12 U.C.L.A. L. REV. 1044, 1111-18 (1965).
315. When President Nixon invoked executive privilege in 1971 to deny the Senate Commit-
tee on Foreign Relations access to Department of Defense military assistance five-year plans,
the Committee added the following language to the foreign aid bill of 1972, 22 U.S.C. § 2680(b)
(Supp. III 1973):
The Department of State shall keep the Committee on Foreign Relations of the
Senate and the Committee on Foreign Affairs of the House of Representatives fully
and currently informed with respect to all activities and responsibilities within the
jurisdiction of these committees. Any Federal department, agency or independent
establishment shall furnish any information requested by either such committee
relating to any such activity or responsibility.
The statute failed to prevent the President from invoking executive privilege to protect USIA
Country Planning Memoranda only five weeks later, and without adverse consequence. Sec
Note, supra note 310. at 643, 654-60.
316. See generally Cox, supra note 309, at 1422-35; Dorsen & Shattuck; Note, supra note
310. at 661-71.
317. The jurisdictional arguments vary in complexity. Standing and subject-matter jurisdic-
tion can probably be overcome by statute, but may otherwise present insurmountable difficul-
ties. See Senate Standing Order 77, S. Doc. No. 93-1, 93d Cong., 1st Sess. 104 (1973) (authoriz-
ing any Senate committee to bring suit on behalf of and in the name of the United States in any
court of competent jurisdiction if "necessary to the adequate performance of the powers vested
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charged conflicts over matters of great political complexity. United States V.
Nixon is an alluring but deceptive analogy. The case stemmed from a
motion for discovery in a criminal proceeding, and therefore did not involve
Congress. While it could have led to a confrontation between the Court and
President Nixon, the latter was at that point so beleaguered and politically
weak, and his contentions so sweeping, that the Court could safely hold that
he had relinquished his control over the Special Prosecutor and order
production of the materials in dispute. A suit to obtain Gouverneur Morris'
correspondence from President Washington, for example, 318 or information
concerning the Decree of St. Cloud from President Madison, 319 or secret
plans concerning the Floridas from President Monroe, 320 would have pre-
sented far less tractable problems. The Court would have been forced to
decide such questions as which branch is the more deserving of its assist-
ance, whether Congress would in fact assure confidentiality, and whether
Congress was engaged in an effort to embarrass or obstruct a president
rather than in some endeavor felt to be more constructive. 321
Whatever the merits of involving the courts in settling information
disputes, moreover, that device will contribute little to dealing with the
practices that have led to the present allocation of power over information-
legislative irresponsibility, executive secrecy, and judicial deference to
executive assertions. If Congress is unwilling to pass and insist upon
requests for necessary information, it is likely to be equally unwilling to ask
in it
"). The case or controversy requirement is likely to be satisfied where a House of
Congress seeks information denied it by the President. The court might, however, refuse to
pass on such controversies because they would be deemed to present non-justiciable "political
questions." See generally Cox, supra note 309, at 1422-35; Note, The Justiciability of Confron-
tation: Executive Secrecy and the Political Question Doctrine, 16 ARIZ. L. REV. 140 (1974).
Professor Henkin's recent illuminating examination suggests a reappraisal of that doctrine. His
analysis would still require courts to determine whether the questions presented in such cases
are committed to other branches, and whether an order requiring disclosure is appropriate in
any such case, given Congress' vast powers and other equitable considerations. Henkin, Is
There a "Political Question" Doctrine?, 85 YALE L.J. 597 (1976).
318. See notes 35-40 supra and accompanying text.
319. See notes 127-52 supra and accompanying text.
320. See notes 212-94 supra and accompanying text.
321. Judge Leventhal has made these dangers clear in an analysis that is worth reading in
full:
To decide this case on the merits, we would be called on to balance the constitutional
interests raised by the parties, including such factors as the strength of Congress's
need for the information in the request letters, the likelihood of a leak of the
information in the Subcommittee's hands, and the seriousness of the harm to national
security from such a release. The question arises whether judicial intervention is
inappropriate, for lack of ascertainable standards, and in recognition of the consid-
eration that a better balance would result in the constitutional sense, however
imperfect it might be, if it were struck by political struggle and compromise than by a
judicial ruling.
United States V. American Tel. & Tel. Co., 551 F.2d 384, 391 (D.C. Cir. 1976). Also useful is the
thoughtful analysis in Casper, Constitutional Constraints on the Conduct of Foreign and
Defense Policy: A Nonjudicial Model, 43 U. CHI. L. REV. 463 (1976).
Vol. 1977:1]
CONTROL OF INFORMATION
53
the courts to enforce a subpoena for the same material. Suits for information
would be filed, but only rarely could an outright confrontation occur of such
persistence as to allow for meaningful judicial involvement. Experience
indicates that such suits would be most likely, absent more fundamental
changes in legislative procedures and behavior, where a legislative majority
is intent on harrassing or embarrassing a minority-party president. In addi-
tion, the prospect of judicial review will not necessarily lead presidents to
behave differently. Presidents intent on keeping material secret from Con-
gress, in order to conduct foreign affairs with considerable independence,
may become even more secretive and evasive if knowledge of plans or
intentions might lead to lawsuits to obtain material.
Finally, experience indicates that, while the Supreme Court would
probably reject an executive claim of absolute discretion, it might well
establish principles and practices for reviewing executive claims that would
institutionalize too great a degree of secrecy. The federal courts have been
too prepared to accept executive claims based on national security needs. 322
Congress could, theoretically, use its powers to press for information re-
gardless of the Court's refusal to require production; however, once Con-
gress has sought judicial determination of an executive privilege dispute, it
will become difficult for it to overcome or evade decisions adverse to its
claims. To the extent that Congress succéeds in avoiding or ignoring judicial
decisions in favor of executive secrecy, it may well be at the expense, not
only of executive power, but also of the credibility of judicial orders in
separation-of-powers litigation.
Effective reform in the control of information must be premised on the
realization that present-day information practices are deeply ingrained. To
accept the long-standing nature of the problems of legislative inadequacy,
executive secrecy and judicial deference is at least a first step toward
322. In United States V. Nixon, 418 U.S. 683 (1973), the Court stated that "when the ground
for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only
on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of
due process of law
Id. at 713. The President, therefore, was required to submit the
subpoenaed tapes of relevant discussions for in camera inspection. The Court added language,
however, indicating that more than "a presumptive privilege" might be accorded a claim of
privilege on the ground of military or diplomatic secrets. "As to these areas of Art. II duties the
courts have traditionally shown the utmost deference to Presidential responsibilites." Id. at
710. The Court went on to imply that not even in camera scrutiny should be afforded such
claims where
[i]t may be possible to satisfy the court, from all the circumstances of the case, that
there is a reasonable danger that compulsion of the evidence will expose military
matters which, in the interest of national security, should not be divulged
the court should not jeopardize the security which the privilege is meant to protect
by
examination of the evidence, even by the judge alone, in chambers.
Id. at 711 (quoting United States V. Reynolds, 345 U.S. 1, 10 (1953)). See generally Develop-
ments in she Law-The National Security Interest and Civil Libertics, 85 HARV. L. REV. 1130,
1207-31 (1972).
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recognizing the difficulty of dealing with these problems. If we were faced
simply with the need to reassert some clear constitutional principle-
adhered to by the Framers but recently ignored-then perhaps the courts
could provide the necessary remedy. There is, however, no clear constitu-
tional principle the judiciary can invoke to remedy institutional inadequacies
concerning information. The courts may well play a useful role, but the
great challenge to be confronted is to devise more fundamental changes.
These changes should involve not only the manner in which Congress seeks
information, but also the manner in which it functions in the areas of foreign
and military affairs, so that it might not so easily evade its responsibilities.
The precise shape of meaningful reform requires far more detailed
consideration and analysis than is possible in this essentially historical
examination. Some guiding principles do emerge, however, from the ap-
praisal of past and present practice. Changes in legislative procedures
should be aimed at combatting the reticence and insufficient involvement of
the legislature in policy planning. Congress recently took such a step by
establishing its own highly professional mechanism for analyzing and estab-
lishing spending priorities independently of the executive. 323 That mecha-
nism encourages the accumulation of information necessary to make the
judgments that Congress is, for the first time, forcing itself to make. Similar
adjustments can and should be made in the development of foreign and
military policy. 324 The policy-making and reviewing bodies that Congress
323. Congressional Budget and Impoundment Control Act of 1974, 31 U.S.C. §§ 1301 et seq.
(Supp. IV 1974). Recent discussion of this Act suggests that, while budgetary conflicts between
the President and Congress will continue in both the political and judicial arenas, the Act will
provide a mechanism for formalizing resolution. See Mills & Munselle, Unimpoundment:
Politics and the Courts in the Release of Impounded Funds, 24 EMORY L.J. 313, 335-42 (1975).
Other discussions have related to the highly sophisticated concepts embodied in the Act. See,
e.g., Surrey & McDaniel, The Tax Expenditure Concept and the Budget Reform Act of 1974, 17
B.C. INDUS. & COM. L. REV. 679 (1976).
324. Extensive consideration is now being given to such adjustments. Sec, e.g., Sym-
posium-Organizing the Government to Conduct Foreign Policy: The Constitutional Questions,
61 VA. L. REV. 747 (1975). Professor Henkin has most recently suggested the sorts of adjust-
ments that may be necessary:
I do not believe that we are compelled to choose between Congress' constitutional
right (or duty) to know and the President's duty (or right) to withhold. Congress has
to be seen as part of the foreign policy process, with the same right and need to know
as major Executive officials. But the need of Congress to know does not necessarily
mean that 500 members of Congress must know, when only some authorized commit-
tee or subcommittee really needs to know. The need to know some things does not
necessarily mean a need to know everything. The need to know substantive matters
does not necessarily mean a need to know delicate or titillating details that may
jeopardize confidentiality within the Executive Branch or in diplomatic relations.
And, as the Constitutional Fathers, and Congresses, and the American people have
understood ever since we became a nation, the need to know does not necessarily
mean the need to make public, when public knowledge is not in the public interest. If
Congress organizes itself and disciplines itself to be content with what it needs to
know and to maintain necessary confidentiality about it, the claim of executive
privilege to withhold from Congress will not prevail.
Henkin, The Constitution and Foreign Affairs, in Essays on the Constitution of the United
States, Bicentennial Lecture Series, Utah State University (1976) (to be published).
Vol. 1977:1]
CONTROL OF INFORMATION
55
could establish in these areas would seem likely to develop special incen-
tives for obtaining information, including a willingness to handle sensitive
material with care. These deliberative bodies should be given the power and
resources to collect information from sources other than the executive
branch-in short, the means to compete more forcefully for the information
essential to participation in formulating government policy. 325
Changes in executive branch practices should be aimed at holding
secrecy and evasiveness to a minimum. The deliberative process needs to be
protected, but the executive branch should not be permitted to stifle minority
opinion within itself when Congress is called upon to approve particular
policies. Existing statutes protect the right of certain executive officials to
convey their opinions to Congress, even if at variance with presidential
policy. 326 This healthy practice has worked well and could be expanded to
include most officials, excepting only the President's closest advisors.
Another much-needed step is to make more credible and effective the
sanctions against giving Congress false information or willfully delaying
compliance with its information requests. Executive officers should routine-
ly be sworn before being allowed to testify or to submit information.
Congress should, moreover, create within the Department of Justice an
office specifically responsible for investigating cases of possible perjury or
obstructionism referred by the legislature. hough such an officer would be
appointed by the President and subject to the Attorney General's direction,
direct accountability to Congress (including Senate review in the appoint-
ment process) would tend to lessen the individual's susceptibility to partisan
or other improper pressures. If this measure failed to achieve the necessary
degree of compliance, Congress could return to enforcing its power of
contempt through some fair and orderly mechanism free of executive con-
trol, such as a special prosecutor. 327 To make legislative requests effective,
executive branch personnel must be convinced that they may be punished
325. Additional authority could also (or alternatively) be conferred on the General Account-
ing Office to collect needed information. For a thorough and thoughtful consideration of this
possibility, see Morgan, The General Accounting Office: One Hope for Congress 10 Regain
Parity of Power with the President, 51 N.C.L. REV. 1279, 1350-65 (1973).
326. 10 U.S.C. $141(c) (1970) (Joint Chiefs of Staff permitted to voice personal views on
national defense to congressional committees); 22 U.S.C. $2680(b) (Supp. III 1973) (certain
foreign affairs officials permitted to express individual views upon request of House and Senate
committees on foreign affairs).
327. S. 495, 94th Cong., 2d Sess. (1976), the proposed Watergate Reorganization and
Reform Act of 1976, would have established an office of Congressional Legal Counsel to
represent the interests of Congress in certain types of litigation; its counsel, appointed jointly
by the chief officers of the Senate and House, would have been empowered to bring civil
actions to enforce congressional subpoenas and to cooperate with any criminal proceeding for
contempt of Congress. A mechanism was included providing for employment of a temporary
special prosecutor whenever the Attorney General or President had a conflict of interest with
(1976). respect to a particular investigation or prosecution. Sec also H.R. 15634, 94th Cong., 2d Sess.
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severely for allowing their allegiance to a president to lead them to violate
the higher duties to which they are sworn.
Finally, a substantial judicial role could also be contemplated in secur-
ing a reallocation of power over information. Initially, however, Congress
should avoid calling upon the courts to issue purportedly definitive determi-
nations of the legislature's power to obtain information from the execu-
tive. 328 The effects of the recent amendments to the Freedom of Information
Act are as yet unknown. Suits by individuals (including members of Con-
gress) are now supposed to trigger judicial review of materials claimed to be
exempt in the interest of national defense or foreign policy, to insure that
they were "in fact properly classified pursuant to such Executive order. ,,329
In addition, the FOIA could be amended once more, if necessary, to enable
individuals to sue the Office of the President, as an agency of government,
for all information in its control, except the material specifically exempted
by the Act. 330 The applicable rules would undoubtedly be construed to
328. Several bills that would authorize suits in the federal courts have been introduced in
both the House and Senate in recent years. Most are in the form of amendments to the Freedom
of Information Act, 5 U.S.C. § 552 (1970). See, e.g., H.R. 4938, H.R. 7221, and H.R. 9448, 93d
Cong., 1st Sess. (1973). A bill introduced by Senator Edward Kennedy during the same session,
S. 2073, is discussed in Dorsen & Shattuck 34-35. The most comprehensive (and apparently
most recent) effort is S.2170, 94th Cong., 1st Sess. (1975), introduced by Senator Muskie and
several others. It would have amended Title III of the Legislative Reorganization Act of 1970,
84 Stat. 1140 (codified in scattered sections of 2, 5, 8, 31, 40 U.S.C.), by providing (1) that all
agency heads are required to keep committees with jurisdiction over their activities "fully and
currently informed"; (2) that each agency head will provide all information requested by
two-fifths of a committee relating to any matter in the committee's jurisdiction; (3) that a claim
of privilege must be asserted within 20 days of the date of the subpoena or within 10 days of an
oral request, by the President, "formally and expressly" instructing the officer to refuse the
material, and setting forth "the ground on which it is based"; (4) that the committee or either
House could then commence a civil action in the United States District Court for the District of
Columbia to enforce the subpoena; (5) that the court shall have original jurisdiction of such
actions "without regard to the sum or value of the matter in controversy," with power to issue a
"mandatory injunction or other order as may be appropriate"; (6) that appeals may be taken;
(7) that both Houses must take steps to protect information requiring protection against
disclosure, and must investigate and prosecute breaches of confidentiality; (8) that the bill
would not require production of any material "if such furnishing or production is prohibited by
an Act of Congress"; and (9) that nothing in the bill shall be construed as "in any way impairing
the effectiveness or availability of any other procedure whereby Congress may obtain informa-
tion needed to enable it to exercise a legislative function under the Constitution.' The exemp-
tion for material required to be kept confidential by an Act of Congress is discussed in Note,
The Effect of the 1976 Amendment to Exemption Three of the Freedom of Information Act, 76
COLUM. L. REV. 1029 (1976).
329. 5 U.S.C.A. $ 552(b)(1) (West Supp. 1976).
330. The change could be accomplished by redefining "agency" in the act to include the
Office of the President. See, e.g., H.R. 9448, 93d Cong., 1st Sess. (1973); H.R. 12471, 93d
Cong., 2d Sess. (1974); Committee on Civil Rights, Executive Privilege: Analysis and Recom-
mendations for Congressional Legislation, 29 RECORD OF A.B.N.Y.C. 177, 202-03 (1974). A bill
authorizing members of Congress to sue in their official capacities is another measure that, if
adopted, would submit to the courts the power to define Congress' authority. See S. 2170, 94th
Cong., 1st Sess. (1975) (discussed at note 328 supra).
Vol. 1977:1]
CONTROL OF INFORMATION
57
accommodate the need for confidential communications among the Presi-
dent and his cabinet officers or advisors. 331 But the courts should be
empowered at least to require the executive to claim it is withholding
material for some legitimate reason. If, despite these reforms, the courts are
still too ready to accept executive assertions of the need for secrecy, they
will only have demonstrated anew the importance of changing the nature of
Congress' policy-formulating activities, rather than entrusting to the courts
the problem of defining the limits of the congressional power to inquire.
331. On the extent to which "advice" ought to be protected by a privilege, an excellent
starting point for analysis is the contrasting treatments in Dorsen & Shattuck 29-33 and
Baldwin, supra note 13, at 19-22.
75 COLUMBIA LAW REVIEW 1318 (Nov. 1975)
EXECUTIVE PRIVILEGE: AN HISTORICAL NOTE
ABRAHAM D. SOFAER*
The debate over the extent of a President's power to withhold material
requested by Congress continues virtually unabated long after the pardon of
Richard Nixon. Advocates on both sides of recent disputes, as well as scholars,
have placed great weight-perhaps disproportionate weight-on historical
precedent. Yet, astonishing as it may seem, most writing on this important
subject is inaccurate and incomplete.¹
In particular, one historical incident that should add considerably to
our understanding of executive privilege has been completely overlooked.
The purpose of this brief Note is to bring this event to public attention, and
thus further delineate the framework for the current historical debate.
The existing literature on executive privilege discusses two major inci-
dents concerning the control of information during Washington's presidency,
events accorded special scrutiny and weight because Washington was the first
President and Chairman at the Constitutional Convention. The earliest in-
volved a request by a committee of the House of Representatives, in 1792, for
"public" material relating to the November 1791 defeat of General Arthur St.
Clair.² Washington called his cabinet together to decide whether he could
withhold any material which, if disclosed, would harm the public interest.⁸
They concluded that Washington could withhold such material, but, as it
turned out, all of the information sought by the House was deemed safe to
disclose.4 Consequently, the cabinet's opinion in the St. Clair matter has been
discounted by some as mere theoretical discussion, not even publicly espoused.⁸
The second major information dispute widely discussed and analyzed
involved a House request in 1796 for instructions and other papers concerning
the Jay Treaty with Britain. This request was qualified to allow Washington
to withhold material the disclosure of which might interfere with ongoing
negotiations.⁶ With Alexander Hamilton's encouragement,⁷ Washington re-
*
Professor of Law, Columbia University School of Law. Professor Sofaer is
Director of the American Bar Association Study of the War Powers in American History.
1. See, e.g., the discussion in Sofaer, Book Review, 88 HARV. L. REV. 281 (1974).
Compare Berger, Executive Privilege: A Reply to Professor Sofaer, 75 COLUM. L. REV.
603 (1975).
2. 32 THE WRITINGS OF GEORGE WASHINGTON 15 n. 41 (J. C. Fitzpatrick, ed. 1939)
[hereinafter cited as WASHINGTON'S WRITINGS] THE COMPLETE JEFFERSON 1222 (S. V.
Padover, ed. 1943) [hereinafter cited as PADOVER].
3. Jefferson reported in his diary that "the President had called us to consult, merely
because it was the first example, and he wishes so far as it should become a precedent, it
should be rightly conducted." 32 WASHINGTON'S WRITINGS, supra note 2, at 15 n. 41;
PADOVER, supra note 2, at 1222.
4. The "Anas" in 2 THE WRITINGS OF THOMAS JEFFERSON 213-14 (P. L. Ford, ed.
1904).
5. See R. BERGER, EXECUTIVE PRIVILEGE: A CONSTITUTIONAL MYTH 168-69 (1974).
6. 5 ANNALS OF CONGRESS 759 (1796) [hereinafter cited as ANNALS].
7. Hamilton's advice was based on two points-executive discretion to withhold sensi-
tive material and a lack of any discernible House function to which the information could
relate. Hamilton to Washington, March 7, 1796, in 10 THE WORKS OF ALEXANDER
HAMILTON 145-46 (Fed. ed. 1904).
EXECUTIVE PRIVILEGE
1319
fused to send the material requested. Instead of relying on a claimed dis-
cretion to withhold material in the public interest, however, he justified his
refusal to comply primarily on the ground that the House had no function to
perform in connection with treaties other than to provide the necessary imple-
menting funds.8 Though it seems clear that most House members would have
acquiesced in a blanket refusal by Washington to supply the information
because its disclosure would harm the nation, the incident's precedential value
for executive withholding has been discounted because Washington chose to
rely on the more sweeping ground that the House lacked any proper function
to justify the request.
A third incident exists, however, which in important respects is more
definitive than the other two in demonstrating the extent to which Washington
felt himself empowered to withhold certain types of information. On January
17, 1794, approximately midway in time between the St. Clair investigation
and the Jay Treaty request, a motion was made in the Senate to direct Secre-
tary of State Edmund Randolph "to lay before the Senate the correspondences
which have been had between the Minister of the United States at the Republic
of France [Gouverneur Morris] and said Republic, and between said Minister
and the office of Secretary of State." The motion was subsequently amended to
address the President, rather than the Secretary, and to "request" rather than
"direct" that the information be provided. It passed without recorded debate
on January 24, by the narrow vote of 13-11, and contained no qualification
allowing withholding in the public interest.¹⁰
Washington regarded the material as sensitive and asked his cabinet for
their advice. Three cabinet members met on January 28 to consider the
Senate's resolution, with the following results:
General Knox is of opinion, that no part of the correspondences
should be sent to the Senate:
Colonel Hamilton, that the correct mode of proceeding is to do
what General Knox advises; but the principle is safe, by excepting
such parts as the President may choose to withhold:
Mr. Randolph, that all the correspondence proper, from its
nature, to be communicated to the Senate, should be sent; but that
what the President thinks improper, should not be sent.¹¹
8. Message of March 30, 1796, 5 ANNALS 760.
9. See, e.g., J. R. WIGGINS, FREEDOM OR SECRECY 257 (1964) ; sce also Sofaer, Book
Review, supra note 1, at 288-90.
10. 4 ANNALS 38 (1794).
11. Cabinet Opinion, January 28, 1794, in 4 THE WORKS OF ALEXANDER HAMILTON
505-06 (J. C. Hamilton, ed. 1850-51). Besides taking part in the cabinet opinion, Secretary
of State Edmund Randolph wrote a few notes to Washington on this matter. After having
examined Morris' ministerial correspondence he found
little of what is exceptionable and so much of what the most violent call patriotic.
The parts to be withheld will probably be of these denominations: (1) what re-
lated to Mr. G[ene]t [the French Minister]; (2) some harsh expressions of the
conduct of the rulers of France, which if returned to that country, might expose
him [Morris] to danger; (3) the authors of some interesting information, who,
if known would be infallibly denounced. He speaks indeed of his court a phrase
which he might as well have left alone.
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COLUMBIA LAW REVIEW
[Vol. 75:1318
In a separate opinion William Bradford, the Attorney General, stated
that "it is the duty of the Executive to withhold such parts of the said cor-
respondence as in the judgment of the Executive shall be deemed unsafe and
improper to be disclosed." He dealt specifically with the fact that the request
was unqualified, arguing "that the general terms of the resolve do not ex-
clude, in the construction of it, those just exceptions which the rights of the
Executive and the nature of foreign correspondences require. Every call of
this nature," he continued, "where the correspondence is secret and no specific
object pointed at, must be presumed to proceed upon the idea that the papers
requested are proper to be communicated; and it could scarcely be supposed,
even if the words were stronger, that the Senate intended to include any letters,
the disclosure of which might endanger national honor or individual safety."12
Washington accepted the view espoused by his cabinet that he could with-
hold information in the public interest. On February 26, he responded to the
Senate's request, clearly indicating that he had withheld some material:
I have caused the correspondence, which is the subject of your
resolution of the 24th day of January last, to be laid before me. After
an examination of it, I directed copies and translations to be made;
except in those particulars which, in my judgment, for public con-
siderations, ought not be communicated.
These copies and translations are now transmitted to the Senate;
but the nature of them manifest the propriety of their being received
as confidential.¹⁸
No completely reliable evidence could be found on what material was
actually withheld. The American State Papers contain forty dispatches Morris
sent to Jefferson during 1792 and 1793, including several items accompanying
those dispatches.¹⁴ Dispatch No. 34 was not communicated, probably because
it contained nothing significant enough to warrant its inclusion. 15 The other
Randolph to Washington, January 26, 1794, in IV CORRESPONDENCE OF THE AMERICAN
REVOLUTION 446 (J. Sparks, ed. 1853). Another letter told about a private meeting with
James Madison and Justice James Wilson, suggested by Washington himself. Sec D. S.
FREEMAN, J. A. CARROLL & M. W. ASHWORTH, 7 GEORGE WASHINGTON 151 (1948).
Randolph quoted Madison as saying:
There must be many things which the President cannot communicate with
propriety: that if he was to select such as he thought proper and transmit them,
and the Senate was to make an opposition, the people would go with the President
against the Senate.
Letter of January 29, 1794, in PAPERS OF GEORGE WASHINGTON, Library of Congress
Microfilm, Series 4, reel 105. In a third letter Randolph differeniated between the execu-
tive and legislative powers of the Senate. If the Senate's resolution was considered
executive action, then Randolph said the request could be totally denied. Randolph inti-
mated that the resolution was "legislative" and therefore that the Senate had "greater lati-
tude of power" in that they could call for papers unrelated to pending business. But even in
such a situation, he wrote, "the President interposes his discretion, so as to give them no
more, than in his judgment, is fit to be given." Randolph to Washington, after January 24,
1794, in 7 GEORGE WASHINGTON, supra, at 97.
12. Bradford to Washington, Cabinet Opinion, in 4 THE WORKS OF ALEXANDER
HAMILTON, supra note 11, at 494-95.
13. American State Papers, 1 FOREIGN RELATIONS 329 (1833).
14. Id. at 329-78.
15. Dispatch Number 34 mainly contained a discussion of the fluctuation of the
1975]
EXECUTIVE PRIVILEGE
1321
dispatches are printed in full with a notation by the reporter of the State
Papers that "the paragraphs which were omitted, in the papers communicated
to the Senate, are now supplied." Markings on the originals of the dispatches,
contained in the National Archives, indicate that the material withheld prob-
ably consisted generally of Morris' appraisal of France's leaders, and of its
military and political situation, expressed often in colorful and derogatory
terms. In any event, no further recorded Senate action was taken to obtain
the material withheld.¹⁷
The Morris incident is thus valuable historical evidence that Washington
(and his cabinet) felt entitled to withhold material "for public considerations."
Significantly, he withheld the material in this instance from the Senate, which
he recognized as possessing special foreign-affairs responsibilties. He did
so, moreover, despite the absence of any explicit permission in the request.
Washington apparently agreed with Bradford that a "national interest" quali-
fication should always be implied. The Senate acquiesced in this action, with-
out any resolutions or recorded debate challenging the President's authority
to exercise his discretion in this way.
Having said these things, it must also be said that Washington's percep-
tion of his power may not have been shared by Congress. Acquiesence may
only signify that the Senate was willing to trust the President in this instance.
Had the Senate wished to force the matter, nothing would have prevented a
majority from demanding the material, especially in confidence, or from using
their power over foreign policy, funds and offices to pressure the President to
divulge. The incident shows only that Washington exercised discretion, and
that the Senate nodded, indicating his action was not improper in principle.
It thus fails to provide support for the proposition that Washington had not
only a right to withhold but a right to withhold immune from legislative pres-
sure to disclose. The Morris incident, therefore, though more directly demon-
strating an executive discretion to withhold information than other reported
incidents, should not be treated as dispositive of issues it does not reach.
French monetary system, as well as two requests for reimbursement from the government
(for money given a naval officer in distress and for the cost of engraving passports).
Morris to Jefferson, August 7, 1793, in National Archives Microfilm, DISPATCHES FROM
UNITED STATES MINISTERS TO FRANCE, M 34, reel 4. Several other dispatches contain
brackets, apparently indicating the material not communicated. Id.
16. American State Papers, 1 FOREIGN RELATIONS 329 (1883).
17. The only material found concerning the Senate's reaction is the following obscure
passage from a letter by James Monroe to Thomas Jefferson on March 3, 1794, in 1
WRITINGS OF JAMES MONROE 280, 283-84 (S. M. Hamilton, ed. 1899):
Abt. 3 weeks past a resolve passed the Senate by a majority of one for re-
questing the President to lay before the Senate the correspondence of Gr. Morris,
with our Ex: & with that of France also. Two days past he laid before us a
voluminous correspondence, stating "that he had omitted such parts as in his
judgment ought not to be communicated." It has not yet been taken up. The
opinion however of many is that his discretion sho'd. extend to time only, but
this assumes the control over the whole subject & in all respects. The re-
moval of Mr. G[enet], if it wo'd have been proper in any event to discuss this
point (considering the Senate a branch of the legislature) will I presume prevent
it.