Ask the Scholar
Document scope · 1 page
Scholar
Ask about this object, its catalog metadata, its source description, or the page inventory.
For page-specific OCR and visual context, open one of the page chats.
Scholar Source Context
Document identity
localId
23914127
label
Executive Privilege (3)
core
doc
dtoType
document
citationUrl
pageCount
1
Source metadata
id
23914127
sourceUrl
contentType
document
title
Executive Privilege (3)
citationUrl
collections
Philip W. Buchen Files
Philip Buchen's General Subject Files
subjects
Nixon, Richard M. (Richard Milhous), 1913-1994
Legislation
Intelligence
Security classification (Government documents)
Executive privilege (Government information)
largeImageUrl
imageCount
1
hasImages
yes
source
import
hasTranscription
no
Source extras
naId
23914127
coverageEndDate
logicalDate
1976-06-01
month
6
year
1976
coverageStartDate
logicalDate
1974-08-01
month
8
year
1974
levelOfDescription
fileUnit
recordType
description
ocrSource
nara-archive
Single page context
seq
1
pageIndex
0
type
document
mediaId
86524b309c7997e5
ocrText
The original documents are located in Box 13, folder "Executive Privilege (3)" of the Philip
Buchen Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 13 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
OF DEFENSE
GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE
WASHINGTON, D. C. 20301
UNITED STATES OF AMERICA
28 FEB 1975
MEMORANDUM FOR HONORABLE PHILIP BUCHEN
COUNSEL TO THE PRESIDENT
Phil -
In the coming months the Congressional ardor for information, documents
and witnesses from the Executive Branch will surely escalate. This is
especially true once the Select Committee to Study Governmental Opera-
tions With Respect to Intelligence Activities gets under full steam.
The Departments and Agencies of the Executive Branch would benefit from
an expression by the President on executive privilege. A general statement
by him at this time, before any confrontation arises, would be preferable
to addressing the subject after a controversial demand has been made.
Attached are copies of documents and correspondence issued by the past
three Presidents.
Martin Monty R. Hoffmann
Attachments
FORD
ADVROIT
THE WHITE HOUSE,
Washington, May 3, 1973.
The President desires that the invocation of Executive Privilege be held to a
minimum. Specifically:
1. Past and present members of the President's staff questioned by the FBI,
the Ervin Commitee, or a Grand Jury should invoke the privilege only in connec-
tion with conversations with the President, conversations among themselves (in-
volving communications with the President) and as to Presidential papers. Pres-
idential papers are all documents produced or received by the President or any
member of the White House staff in connection with his official duties.
2. Witnesses are restricted from testifying as to matters relating to national
security not by executive privilege, but by laws prohibiting the disclosure of
classified information (e.g., some of the incidents which gave rise to concern
over leaks). The applicability of such laws should therefore be determined by
each witness and his own counsel.
3. White House Counsel will not be present at FBI interviews or at the Grand
Jury and, therefore, will not invoke the privilege in the first instance. (If a dis-
pute as to privilege arises between a witness and the FBI or the Grand Jury, the
matter may be referred to White House Counsel for a statement of the Presi-
dent's position.)
THE WHITE HOUSE,
Washington, May 4, 1973.
The following is a supplement to the Memorandum of May 3, 1973 regarding the
invocation of Executive Privilege:
White House Counsel will be present at informal interviews of White House
personnel by Ervin Committee Staff, but only for the púrpose of observing and
taking notes. Privilege will be invoked by White House Counsel, if at all, only in
connection with formal hearings before the Ervin Committee.
FORD i LIBRARY BERALD
FOR IMMEDIATE RELFASE
MARCH
2,
1973
Office of the White House Proos Secretary
THE WHITE HOUSE
STATEMENT BY THE PRESIDENT
During my prose conference of January 31, 1973, I stated that I would issue
a statement outlining my views on executive privilege.
The doctrine of executive privilege in well established. It was first invoked
by President Washington, and it has been recognized and utilized by our
Presidents for almost 200 years since that time. The doctrine is rooted in
the Constitution, which vosta "tho Executive Power" solely in the President,
and it in designed to protect communications within the executive, branch in
a variety of circumstances in time of both war and peace. Without such pro-
tection, our military security, our relations with other countries, our law
enforcement procedures and many other aspects of the national interest could
be significantly damaged and the decision-making process of the executive
branch could be impaired.
The general policy of this Administration regarding the une of executive
privilege during the next four years will be the same aB the one we have
followed during the past four years and which I outlined in my press conference:
executive privilege will not be used as a shield to prevent embarrassing Infor-
mation from being made available but will be exercised only in those particular
instances in which disclosure would harm the public interest.
1 first enunciated this policy in A memorandum of March 24, 1969, which I
sent to Cabinet officers and heads of agencies. The memorandum read in part:
"The policy of this Administration is to comply to the fullest
extent possible with Congressional requests for information.
While the Executive branch has the responsibility of with-
holding certain information the disclosure of which would be
incompatible with the public interest, this Administration
will invoke this authority only in the most compelling
circumstances and after a rigorous inquiry into the actual
GERALD
LIBRARY
need for its exercise. For those reasons Executive
privilege will not be used without specific Presidential
approval.
In recent weeks, questions have been raised about the availability of officials
in the executive branch to present testimony before committees of the Congress
As my 1969 memorandum dealt primarily with guidelines for providing infor-
mation to the Congress and did not focus specifically on appearances by
officers of the executive branch and members of the President's personal staff,
it would be useful to outline my policies concerning the latter question.
During the first four years of my Presidency, hundreds of Administration
officials spent thousands of hours freely testifying béfore Committees of the
Congress. Secretary of Defense Laird, for instance, made 86 separate
appearances before Congressional committees, engaging in over 327 hours of
testimony. By contrast, there were only three occasions during the first
term of my Administration when executive privilege was invoked anywhere in
the executive branch in response to a Congressional request for information.
These facto speak not of a closed Administration but of one that is pledged to
openness and is proud to stand on its record.
Requests for Congressional appearances by members of the President's
personal staff present a different situation and raise different considerations.
Such requests have been relatively infrequent through the years, and in past
administrations they have been routinely declined. I have followed that san
tradition in my Administration, and I intend to continue it during the remainder
of my term.
(CVER)
Under the doctrine of separation of powers, the manner in which the President
personally exercises his assigned executive powers is not subject to questioning
by another branch of Government. If the President is not subject to such
questioning, it is equally appropriate that members of his staff not be 80
questioned, for their roles are in effect an extension of the Presidency.
This tradition rests on more than Constitutional doctrine: it is also a practical
necessity To insure the effective discharge of the executive responsibility,
a President must be able to place absolute confidence in the advice and
assistance offered by the members of his staff. And in the performance of
their duties for the President, those staff members must not be inhibited by
the possibility that their advice and assistance will ever become a matter of
public debate, either during their tenure in Government or at a later date.
Otherwise, the candor with which advice is rendered and the quality of such
assistance will inevitably be compromised and weakened. What is at stake,
therefore, is not simply a question of confidentiality but the integrity of the
decision-making process at the very highest levels of our Government.
The considerations I have just outlined have been and must be recognized in
other fields, in and out of government. A law clerk, for instance, is not
subject to interrogation about the factors or discussions that preceded a
decision of the judge.
For these reasons, just as I shall not invoke executive privilege lightly, I shall
also look to the Congress to continue this proper tradition in asking for executive
branch testimony only from the officers properly constituted to provide the
information sought, and only when the eliciting of such testimony will serve a
genuine legislative purpose.
As I stated in my press conference on January 31, the question of whether
circumstances warrant the exercise of executive privilege should be determined
FORD
on a case-by-case basis. In making such decisions, I shall rely on the following
guidelines:
LIBRARY
(1). In the case of a department or agency, every official shall comply
with a reasonable request for an appearance before the Congross, provided that
the performance of the duties of his office will not be seriously impaired thereby.
If the official believes that a Congressional request for a particular document
or for testimony on a particular point raises a substantial question an to the nood
for invoking executivo privilege, he shall comply with the procedures net forth
in my memorandum of March 24, 1969. Thus, executive privilege will not be
invoked until the compelling need for its exercise has been clearly demonstrated
and the request has been approved first by the Attorney General and thon by the
President.
(2). A Cabinet officer or any other Government official who also holds a
position as a member of the President's personal staff shall comply with any
reasonable request to testify in his non-White House capacity, provided that
the performance of his duties will not be seriously impaired thereby. If the
official believes that the request raises a substantial question as to the need for
invoking executive privilege, he shall comply with the procedures set forth in
my memorandum of March 24, 1969.
(3). A member or former member of the President's personal staff
normally shall follow the well-established precedent and decline a request for
a formal appearance before a committee of the Congress. At the same time, it
will continue to be my policy to provide all necessary and relevant information
through informal contacts between my present staff and committees of the
Congwoon in ways which preserve intact the Constitutional separation of the
branches.
THE WHITE HOUSE
WASHINGTON
March 24, 1969
MEMORANDUM FOR THE HEADS OF
EXECUTIVE DEPARTMENTS AND AGENCIES
SUBJECT: ESTABLISHING A PROCEDURE TO GOVERN COMPLIANCE
WITH CONGRESSIONAL DEMANDS FOR INFORMATION
The policy of this Administration is to comply to the fullest extent
possible with Congressional requests for information. While the
Executive branch has the responsibility of withholding certain infor-
mation the disclosure of which would be incompatible with the public
interest, this Administration, will invoke this authority only in the
most compelling circumstances and after a rigorous inquiry into the
actual need for its exercise. For those reasons Executive privilege
will not be used without specific Presidential approval. The following
procedural steps will govern the invocation of Executive privilege:
1.
If the head of an Executive department or agency (hereafter
referred to as "department head") believes that compliance with
a request for information from a Congressional agency addressed
to his department or agency raises a substantial question as to
the need for invoking Executive privilege, he should consult the
Attorney General through the Office of Legal Counsel of the
Department of Justice.
2. If the department head and the Attorney General agree, in accord-
ance with the policy set forth above, that Executive privilege shall
not be invoked in the circumstances, the information shall be re-
leased to the inquiring Congressional agency.
3. If the department head and the Attorney General agree that the
circumstances justify the invocation of Executive privilege, or
if either of them believes that the issue should be submitted to
the President, the matter shall be transmitted to the Counsel
to the President, who will advise the department head of the
President's decision.
FORD.
55
3
GC
LIBRAR
4. In the event of a Presidential decision to invoke Executive
privilege, the department head should advise the Congres
sional agency that the claim of Executive privilege is being
made with the specific approval of the President.
5. Pending a final determination of the matter, the department
head should request the Congressional agency to hold its
demand for the information in abeyance until such determin-
ation can be made. Care shall be taken to indicate that the
purpose of this request is to protect the privilege pending the
determination, and that the request does not constitute a claim
of privilege.
Richard Nislon
FORD it LIBRARY 078829
THE WHITE HOUSE
WASHINGTON
April 2, 1965
Dear Mr. Chairman:
I have your recent letter discussing the use of the
claim of "executive privilege" in connection with Con-
gressional requests for documents and other information.
Since assuming the Presidency, I have followed the policy
laid down by President Kennedy in his letter to you of
March 7, 1962, dealing with this subject. Thus, the claim
of "executive privilege" will continue to be made only by
the President.
This administration has attempted to cooperate completely
with the Congress in making available to it all information
possible, and that will continue to be our policy.
I appreciate the time and energy that you and your Sub-
committee have devoted to this subject and welcome the
opportunity to state formally my policy on this important
subject.
Sincerely,
5/ Lyndon B. Johnson
The Honorable John E. Moss, Chairman
Foreign Operations and Government
Information Subcommittee
of the
Committee on Government Operations
House Office Building
Washington, D.C.
FORD is LIBRARY GERALD
A. PLATHIC, MINN.
EIGHTY-NINTH CONGRESS
TORDENT 11. MAC CONALD, NASE.
CORNELIUS c. GALLAGHER, N.J.
CAPITOL 5-3741
Congress of the United States
Douse of Representatives
FOREIGN OPERATIONS AND GOVERNMENT INFORMATION SUBCOMMITTEE
OF THE
COMMITTEE ON GOVERNMENT OPERATIONS
RAYDURN HOUSE OFFICE BUILDING, ROOM B371-B
WASHINGTON, D.C. 20515
March 31, 1965
The Honorable
Lyndon B. Johnson
President of the United States
The White House
Washington, D. C.
Dear Mr. President:
The use of the claim of "executive privilege" to withhold
government information from the Congress and the public is an issue
of importance to those who recognize the need for a fully informed
electorate and for a Congress operating as a co-equal branch of the
Federal Government.
In a letter dated May 17, 1954, President Eisenhower used
the "executive privilege" claim to refuse certain information to a
Senate Subcommittee. In a letter dated February 8, 1962, President
Kennedy also refused information to a Senate Subcommittee. There the
similarity ends, for the solutions of "executive privilege" problems
varied greatly in the two Administrations.
Time after time during his Administration, the May 17, 1954
letter from President Eisenhower was used as a claim of authority to
withhold information about government activities. Some of the cases
during the Eisenhower Administration involved important matters of
government, but in the great majority of cases Executive Branch em-
ployees far down the administrative line from the President claimed
the May 17, 1954 letter as authority for withholding information about
routine developments. A report by the House Committee on Government
Operations lists 44 cases of Executive Branch officials refusing in-
formation on the basis of the principles set forth in President Eisen-
hower's letter.
President Kennedy carefully qualified use of the claim of
"executive privilege". In a letter of February 8, 1962 refusing in-
formation to a Senate Subcommittee, he stated that the principle which
is at stake here cannot be automatically applied to every request for
information." Later, President Kennedy clarified his position on the
claim of "executive privilege", stating that --
GERALD FORD LIBRARY
Honorable Lyndon B. Johnson
- 2 -
March 31, 1965
" this Administration has gone to great lengths
to achieve full cooperation with the Congress in making
available to it all appropriate documents, correspondence
and information. That is the basic policy of this Ad-
ministration, and it will continue to be so. Executive
privilego can be invoked only by the President and will
not be used without specific Presidential approval.
As a result of President Kennedy's clear statement, there was
no longer a rash of "executive privilege" claims to withhold information
from the Congress and the public. I am confident you share my views on
the importance to our form of government of a free flow of information,
and I hope you will reaffirm the principle that "executive privilege" can
be invoked by you alone and will not be used without your specific approval.
Sincerely,
JOHN E. MOSS
Chairman
JEM:ab
FORD is LIBRARY 07V830
THE WHITE HOUSE
Washington
March 7, 1962
Dear Mr. Chairman:
This is in reply to your letter of last month inquiring gen-
erally about the practice this Administration will follow in
invoking the doctrine of executive privilege in withholding
certain information from the Congress.
As your letter indicated, my letter of February 8 to Secretary
McNamara made it perfectly clear that the directive to refuse
to make certain specific information available to a special sub-
committee of the Senate Armed Services Committee was limited
to that specific request and that "each case must be judged on
its merits".
As you know, this Administration has gone to great lengths to
achieve full cooperation with the Congress in making available
to it all appropriate documents, correspondence and informa-
tion. That is the basic policy of this Administration, and it will
continue to be SO. Executive privilege can be invoked only by
the President and will not be used without specific Presidential
approval. Your own interest in assuring the widest public ac-
cessibility to governmental information 16, of course, well
known, and I can assure you this Administration will continue
to cooperate with your subcommittee and the entire Congress
in achieving this objective.
Sincerely,
/6/ John F. Kennedy
Honorable John E. Moss
Chairman
Special Government Information
Subcommittee of the Committee
on Government Operations
House of Representatives
Washington, D. C.
FORD LIBRARY
CALLE SMAIRMAN
a ARE a. NOTEMAN. MICH.
THE a, FAMILY FLA.
CAPITOL 4-0111
EXTENSION 8741
EIGHTY-SEVENTH CONGRESS
Congress of the United States
Douse of Representatives
SPECIAL GOVERNMENT INFORMATION SUBCOMMITTEE
OF THE
COMMITTEE ON GOVERNMENT OPERATIONS
HOUSE OFFICE BUILDING
ROOM 218, GEORGE WASHINGTON INN
WASHINGTON, D.O.
February 15, 1962
The Honorable
John F. Kennedy
The President of the United States
The White House
Washington, D. C.
Dear Mr. President:
In your letter of February 8, 1962 to Secretary McNemara you
directed him to refuse certain information to a Senate Subcommittee. The
concluding paragraph of your letter stated:
"The principle which 16 at stake here cannot be
automatically applied to every request for informa-
tion. Each case must be judged on its merits."
A similar letter from President Eisenhower on May 17, 1954 also
refused information to a Senate Subcommittee, setting forth the same argu-
ments covered in your letter. President Eisenhower did not, however, state
that future questions of availability of information to the Congress would
have to be answered as they came up.
I know you are aware of the result of President Eisenhower!
letter. Time after time Executive Branch employees far down the adminis-
trative line from the President fell back on his letter of May 17, 1954 as
authority to withhold information from the Congress and the public.
Some of the cases are well known -- the Dixon-Yates matter and
the investigation of East-West trade controls, for instance -- but many of
the refusals based on President Eisenhower's letter of May 17, 1954 received
no public notice. A report of the House Committee on Government Operations
covering the five years from June, 1955 through June, 1960 lists 44 cases
of Executive Branch officials refusing information on the basis of the
principles set forth in the May 17, 1954 letter.
I am confident that you share my belief that your letter of
February 8, 1962 to Secretary McNamara should not be seized upon by
Executive Branch employees -- many of them holding the same policy-making
positions of responsibility they did under the Eisenhower Administration --
as a new claim of authority to withhold information from the Congress and
FORD
GERAL
LISRARY
The Honorable John F. Kennedy
-2-
February 15, 1962
the public. A Subcommittee staff study indicates that during the year be-
tween the time you took office and February 8, 1962, the claim of an
"executive privilege" to withhold government information was not used
successfully once, compared to the dozens of times in previous years edmin-
istrative employees held up "executive privilege" as a shield against public
and Congressional access to information.
Although your letter of February 8, 1962 stated clearly that the
principle involved could not be applied automatically to restrict informa-
tion, this warning received little public notice. Clarification of this
point would, I believe, serve to prevent the rash of restrictions on govern-
ment information which followed the May 17, 1954 letter from President
Eisenhower.
Sincerely,
/a/ John E. Moss
Chairman
LIBRARY
Executive
Feb. 17, 1975
Privilage
To:
Dudley Chapman
From: Phil Buchen
Materials on Executive
Privilege returned,
along with the book
by Raoul Berger.
FORD & LIBRARY RERALD
THE WHITE HOUSE
WASHINGTON
February 13, 1975
NOTE FOR:
PHIL BUCHEN
FROM:
DUDLEY CHAPMAN
DC
SUBJECT:
Executive Privilege
Materials
Attached are:
(1) President Ford's statement before
the Hungate Subcommittee;
(2) A copy of my note to Phil Areeda
on this subject;
(3) Raoul Berger's book on Executive
Privilege;
(4) The Supreme Court Opinion in United
States V. Nixon;
(5) A recent article by Archibald Cox;
(6) An article on legislative privilege
which provides some interesting comparisons
(see my note attached); and
(7) A notebook I have collected containing
some older materials.
FORD is LIGNAR
Executive Privilege:
A Constitutional Myth
TU
Also by Raoul Berger
Impeachment: The Constitutional Problems
"An admirable and powerful work valuable and illuminating."
-Arthur M. Schlesinger, Jr.
"The best book we have on the historical origins and meanings of the
constitution provision."-The New York Times
"Raout Berger conveys the excitement of high policy, while he
advances challenging new theses-and does it all with sure, deft
craftsmanship which makes even the footnotes good reading."
-Willard Hurst
"A scholarly, objective and clarifying treatment of a vital topic that
has been much obscured by partisan discussion."-John P. Dawson
Studies in Legal History
SBN 674-44476-0
Harvard University Press
Cambridge, Massachusetts
LIBRARY GERALD ? FORD
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 74-1478
Alfred A. Knopf, Inc. ,
Victor L. Marchetti,
John D. Marks,
Appellees,
versus
William Colby, as Director of
Central Intelligence of the
United States; and Henry
Kissenger, as Secretary of
State of the United States,
Appellants.
No. 74-1479
Alfred A. Knopf, Inc. ,
Victor L. Marchetti,
John D. Marks,
Appellants,
versus
William Colby, as Director of
Central Intelligence of the
United States; and Henry
Kissinger, as Secretary of
State of the United States,
Appellees.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Albert V. Bryan, Jr.,
District Judge.
Argued June 3, 1974.
Decided February 7, 1975
Before Haynsworth, Chief Judge and Winter and Craven, Circuit
Judges.
FORD is LIBRARY G7U830
Floyd Abrams (Eugene R. Scheiman, Loretta A. Preska and Cahill
Gordon and Reindel on brief) for Appellant, Alfred A. Knopf,
Inc., in No. 74-1479 and for Appellee, Alfred A. Knopf, Inc.,
in No. 74-1478; Melvin L. Wulf (John H. F. Shattuck, American
Civil Liberties Union Foundation, on brief) for Appellants
Marchetti and Marks in No. 74-1479, and for Appellees Marchetti
and Marks in No. 74-1478; Irwin Goldbloom, Attorney, United
States Department of Justice, (Carla A. Hills, Assistant
Attorney General, Brian P. Gettings, United States Attorney,
David J. Anderson and Raymond D. Battocchi, Attorneys, United
States Department of Justice, John S. Warner, General Counsel,
Lawrence R. Houston and John K. Greeney, Attorneys, Central
Intelligence Agency, Mark B. Feldman, Deputy Legal Adviser, and
K. Eugene Malmborg, Assistant Legal Adviser, Department of
State, on brief) for Appellants in No. 74-1478 and for
Appellees in No. 74-1479).
HAYNSWORTH, CHIEF JUDGE:
This is a sequel to United States V. Marchetti,
4 Cir. 466 F.2d 1309 in which, because of a secrecy agreement
he had executed, we upheld an injunction prohibiting Marchetti's
public disclosure of classified information acquired by him
during the course of his employment by the Central Intelligence
Agency and requiring him to submit any material he intended
to publish to that agency for its review in advance of publi-
cation.
After our earlier decision, Marchetti, in collaboration
with John Marks, a former employee of the State Department who
had bound himself not to disclose classified information
acquired by him during the course of his employment, prepared
the manuscript of a book which the plaintiff, Alfred A. Knopf,
Inc. intended to publish. After review in the CIA, a letter
was written specifying the deletion of 339 items said to
contain classified information. Later, after a conference with
Marchetti and his lawyer, the CIA agreed to release 114 of the
deletions. Later another 29 deletion items were released and
still later another 57, leaving 168 deletion items upon which
the CIA stood fast.
à LIBRARY CERALD
This action was filed by Alfred A. Knopf, Inc
,
Marchetti and Marks in the United States District Court for
the Southern District of New York, seeking an order which would
permit the publication of the then remaining deletion items.
On motion of the defendants, the action was transferred to
the Eastern District of Virginia where the Marchetti case had
been tried and where it could come before the same judge who
had tried Marchetti.
I.
At the trial, the four deputy directors of the CIA
were presented as witnesses. Collectively they covered all
of the 168 deletion items, each covering certain of them.
Each testified, in effect, that the deletion item revealed
information which was classified, that the information was
classified from the inception of the program or from the time
of the witness' first contact with it and was still classified.
With respect to most, if not all of the items, however, the
witness was unable to say who classified the information, for
1
Executive Order No. 10501 , in effect in the relevant times,
did not require the classifying officer to record his identity,
2
as Executive Order No. 11652 now does. Nor were they certain
1. November 10, 1953, 18 Fed. Reg. 7049.
2. March 10, 1972 as amended April 26, 1973, 38 Fed. Reg. 10245.
-2-
about when a particular matter had been classified except
certain of the items with respect to which the witness stated
the information had been classified from the beginning or from
the time of his first contact with it.
These witnesses were questioned about the manner in
which they determined that particular items had been classified.
Typically, the response was that the witness read the Marchetti-
Marks manuscript, marked passages which he thought revealed
classified information and then called upon members of the staff
for research assistance. The witness indicated that he wished
to be certain of his grounds and to make no mistake. The
witness then reviewed classified documents produced by the staff,
and, after consultation with staff assistants, made his deter-
mination or judgment that particular information was, indeed,
classified. There were indications that the witness considered
his own recollection, institutional history, reports of staff
members and classified documents in deciding whether or not
particular information was classified.
The District Judge was persuaded that information,
which might be sensitive to our national defense or to our
relations with foreign nations, is not classified until a
classifying officer makes a conscious determination that the
governmental interest in secrecy outweighs a general policy
of disclosure and applies a label of "Top Secret" or "Secret"
or "Confidential" to the information in question. The testi-
mony of the deputy directors, with its imprecision and the
- 3 -
generality of the considerations which they said underlaid
their determinations seemed insufficient to persuade him that
undisclosed individuals had gone through such conscious processes
during the time of Marchetti's employment. It seemed to him
that the deputy directors were making ad hoc classifications
of material after having read the Marchetti-Marks manuscript,
though he recognized that the deputy directors denied that
they were doing any such thing.
Late in the trial, the United States offered a batch
of documents, most of them bearing "Top Secret" stamps and
collectively containing information relating to the deletion
items. Some of these documents dealt with the actual classi-
fication of certain information. When a document, for instance,
specified that certain information relating to a particular
program should be classified as "Top Secret" while other
information respecting that program should be classified as
"Secret", the Judge accepted the document as showing that
someone had gone through the conscious process of deciding
whether, and in what degree, particular information should be
classified. On this basis the District Judge found that the
information embodied in 26 of the 168 items was classified
during the time of Marchetti's employment. As to the remainder
of the 168 deletion items, however, he found the submitted
documents of no persuasive value. He was of that opinion
because he had been told that a document properly classified
as "Top Secret" may contain some bits of information which are
not classifiable at all. His difficulty was compounded by the
- 4 -
fact that many of the documents marked "Top Secret" had been
reproduced with all of their contents blocked out except for
one paragraph, sentence or message relating to a deletion item.
He reasoned that only the classifying officer could say what
information in a particular document led him to classify the
entire document "Top Secret" and that a limited disclosure
of something extracted from a document classified as "Top Secret"
did not establish classification of that information as "Top
Secret" or even as being classified in any degree. Recognizing
that the deputy directors, at the very least, had testified
that the disclosed information was classifiable, he still was
of the view that the testimony and the documents in combination
did not prove that the disclosed classifiable information had
in fact been classified by the unidentified and possibly
unidentifiable classifying officer. Though recognizing that
some or much of the disclosed information, revealed in the
deletion items, was "sensitive", the District Judge concluded
that the United States had not shown that the remaining 142
deletion items had been classified. He felt, in short, since
reasonableness of classification was proscribed, as we held
in Marchetti, appropriate recognition of the first amendment
rights of Marchetti and of Marks required strict proof of
classification which he found wanting under the standards
developed at the trial.
- 5 -
When writing in Marchetti, we did not foresee the
problems as they developed in the district court. We had not
envisioned any problem of identifying classified information
embodied in a document produced from the files of such an
agency as the CIA and marked "Top Secret", "Secret" or
"Confidential". Of course, a document containing the results
of tests of highly secret equipment may contain an incidental
reference to the weather on a given day at a designated place
in the United States, but we foresaw no particular problem
in separating the grain from such chaff. With our strictures
against inquiry into the reasonableness of any classification,
however, we perhaps misled the District Judge into the
imposition upon the United States of an unreasonable and
improper burden of proof of classification.
When the earlier case was before us, we had supposed
that all information in a classified document in the possession
of the CIA, except rather obvious chaff of the sort we have
mentioned, should be held to be classified and not subject to
disclosure. We were influenced in substantial part by the
principle that executive decisions respecting the classifying
of information are not subject to judicial review. See, e.g.,
3
EPA V. Mink, 410 U.S. 73 (1972). The October 1974 amendments
to the Freedom of Information Act introduced new considerations.
3. Pub. L. No. 93-502, 88 Stat. 1561.
- 6 -
Title 5, Section 552 (b) (1) of the United States Code has
been amended to provide for non-disclosure of matters that are
"(A) specifically authorized under criteria established by
an Executive order to be kept secret in the interest of national
defense or foreign policy and (B) are in fact properly classified
pursuant to such Executive order." Furthermore, a new subsection
was introduced into Section 552 (a), paragraph (B) of the new
subsection now numbered (4) specifically providing for judicial
review de novo and specifically providing that the judge
"may examine the contents of such agency records in camera to
determine whether such records or any part thereof shall be
withheld under any of the exemptions set forth in subsection (b)
of this section, and the burden is on the agency to sustain its
action." The legislative history makes it clear that the
Congress intended to overthrow the result of Mink. See, e.g.,
Conference Report No. 93-1200, U. S. Code Cong. & Admin. News,
93rd Cong., 2d Sess. 6221 at 6223, 6226. That history also
discloses a congressional intention that the judge need not
inspect the document in camera or require its production.
He may act on the basis of testimony or affidavits but, in
appropriate cases, he now has a right by virtue of the statute
to require production of the document for his inspection
in camera.
- 7 -
Since the Freedom of Information Act as now amended
clearly provides for judicial review of questions of classifi-
ability, any citizen now can compel the production of information
actually classified if its classification was not authorized
4
by the Executive Order. These plaintiffs should not be denied
the right to publish information which any citizen could compel
the CIA to produce and, after production, could publish. We
thus move to the conclusion that the deletion items should be
suppressed only if they are found both to be classified and
classifiable under the Executive Order.
We observed in Marchetti that the Congress has
required the Director of the CIA to protect intelligence sources
5
and methods from unauthorized disclosure.
In keeping with
the Congressional directive, Executive Order No. 11652,
Classification and Declassification of National Security
Information and Material, as amended by Executive Order
6
No. 11714 provides in § (1) (A) that information shall be
4. §552 (b) (3) was not amended. It exempts matters "specifically
exempted from disclosure by statute " The statutory
direction to the Director to protect intelligence sources
and methods from unauthorized disclosure may be such a
statute, but such information is also clearly authorized
to be classified by the Executive order. The problems that
will arise therefore will be concerned with the application
of (b) (1) rather than (b) (3).
5. 50 U.S.C.A. §403 (d) (3) See Marchetti, 466 F.2d 1309 at 1316.
6. 38 Fed. Reg. 10245.
- 8 -
classified "Top Secret" if its disclosure would disrupt
"foreign relations vitally affecting the national security,"
would compromise "vital national defense plans * * * communi-
cations intelligence systems," would reveal "sensitive
intelligence operations" or disclose "scientific or technological
developments vital to national security." Subparagraph B
provides that information shall be classified as "Secret" if
it reveals "significant military plans or intelligence operations."
This would encompass any significant intelligence operations
not otherwise classifiable under Subparagraph A as "Top Secret."
Subparagraph C requires the classification as "Confidential"
of all other information the unauthorized disclosure of which
might reasonably be expected to damage the national security.
The author of this opinion has examined some, but
not all, of the 142 deletion items. The information in at
least some of them does relate to sensitive intelligence
operations and to scientific and technological developments
useful, if not vital, to national security. Such items
would seem clearly to be classifiable under the authorization
of the Executive Order; others may relate to intelligence
sources or methods, the protection of which Congress has
decreed in the National Security Act of 1947⁷ and classifiable
under the Executive Order.
7. 50 U.S.C.A. § 403 (d) (3).
- 9 -
The statutory requirement is not directed to any
procedure. It simply requires protection of intelligence
sources and methods against unauthorized disclosure, and
provision of such protection may require a variety of activity.
One obviously appropriate tool in providing that protection,
however, is a system of classification required under a
succession of Executive orders. Under the statute and those
orders, a classifying officer is required to classify a
document containing classifiable information and to determine
the degree under the guidelines of the current Executive
order. Under Executive Order No. 10501, he performed his
duty by affixing the appropriate stamp, "Top Secret", "Secret"
or "Confidential."
There is a presumption of regularity in the
performance by a public official of his public duty. "The
presumption of regularity supports the official acts of public
officers and, in the absence of clear evidence to the contrary,
courts presume that they have properly discharged their
official duties." United States V. Chemical Foundation, Inc.
272 U.S. at 14, 15. That presumption leaves no room for specu-
lation that information which the district court can recognize as
proper for top secret classification was not classified at all by
the official who placed the "Top Secret" legend on the document.
This is so whether or not the document contains or may
contain other information which should have been classified
in the same degree. Under the prevailing practice of
classifying a document in accordance with the most sensitive
- 10 -
information it contains, the presumption, in the absence of
affirmative proof to the contrary, requires the conclusion
that all information within it, required by the Executive
Order to be classified, was classified when the legend was
affixed to the document, even though the particular bit of
relevant information, alone, may be properly classified only
in a lower degree than the document's classification. In short,
the government was required to show no more than that each
deletion item disclosed information which was required to be
classified in any degree and which was contained in a document
bearing a classification stamp.
The presumption dispenses with another problem which
bothered the District Judge, the time of classification. He
took the view that the government must show that the document
was classified before Marchetti left the service. We are
dealing, however, with information acquired by Marchetti
during his employment by the CIA. It simply cannot be
supposed that no one performed the duty of classification
until after his employment had terminated.
It would have been nice, of course, if, in each
instance, the government could have identified and produced
the classifying officer who, from other records or extra-
ordinary memory, could have testified that he classified the
document on a certain day and that, in doing so, he consciously
intended to classify the relevant item of information. That
was a practical impossibility, but, in light of the presumption,
- 11 -
unnecessary. The office of the presumption, however, is
supported by the testimony of the deputy directors that
information was classified from the beginning of the operation
to which it relates or from the time the Agency first received
it.
Nor was it necessary for the government to disclose
to lawyers, judges, court reporters, expert witnesses and
others, perhaps, sensitive but irrelevant information in a
classified document in order to prove that a particular item
of information within it had been classified. It is not to
slight judges, lawyers or anyone else to suggest that any
such disclosure carries with it serious risk that highly
sensitive information may be compromised. In our own chambers,
we are ill equipped to provide the kind of security highly
sensitive information should have. The national interest
requires that the government withhold or delete unrelated
items of sensitive information, as it did, in the absence of
compelling necessity. It is enough, as we have said, that
the particular item of information is classifiable and is
shown to have been embodied in a classified document. This
approach is consistent with the Freedom of Information Act which,
as we have noticed, provides the judge only with discretionary
authority even to require production of the document for his
in camera inspection; he may find the information both
classified and classifiable on the basis of testimony or
affidavits.
- 12 -
It is said, however, that some classifiable infor-
mation is not classified. Reference is made to disclosure of
this country's development of Multiple Independently Targeted
Reentry Vehicles and the release of information about North
Vietnamese forces operating in South Vietnam, including the
identity of units, their strength and the routes they took
to reach their operating areas. These disclosures, however,
were the result of high level executive decisions that
disclosure was in the public interest, to counter popular and
congressional pressure for more missiles, in the first
instance, and, in the second instance, to bolster domestic
support for our own military effort in South Vietnam. They
are instances of declassification by official public disclosure.
There has been no such disclosure of any of the information
with which we are concerned, and there is nothing in the
record to suggest that any of this classified information has,
otherwise, been officially declassified. In the absence of
declassification and of any countervailing evidence, the
testimony of the deputy directors and the presumption of
regularity compel a finding that information properly
classified under the guidelines of the applicable Executive
Order and embodied in a document bearing a classification
stamp was classified at the time the information first came
into the possession of the Agency or Department.
Moreover, if the documents in evidence, the testi-
mony of the deputy directors and the presumptions compel a
judicial finding that the material is both classifiable and
- 13 -
classified, the plaintiffs are not without an avenue of relief
within the Executive Branch. Under §7 of Executive Order 11, 652,
the National Security Council was given the responsibility of
monitoring the implementation of the Order. To assist the
Council, an Interagency Classification Review Committee was
created. It is authorized to consider and act upon suggestions
and complaint from persons within and without government.
Composed of representatives of the Departments of State, Defense,
and Justice, the Atomic Energy Commission, the Central
Intelligence Agency and the Staff of the Security Council,
it would not be expected to serve any parochial interest of
a particular agency unless it coincided with the national
interest. The members of the Review Committee, far more than
any judge, have the background for making classification and
declassification decisions. If, therefore, any of the items
in dispute are thought to be properly declassifiable now,
there appears to be an available administrative remedy
which is far more effective than any the judiciary may provide,
which can function without threat to the national security
and which can act within the Executive's traditional sphere
of autonomy.
For such reasons, we conclude that the burden of
proof imposed upon the defendants to establish classification
was far too stringent and that it is appropriate to vacate
the judgment and remand for reconsideration and fresh findings
imposing a burden of proof consistent with this opinion and
including the additional element of classifiability.
- 14 -
II.
We decline to modify our previous holding that the
First Amendment is no bar against an injunction forbidding the
disclosure of classifiable information within the guidelines
of the Executive Orders when (1) the classified information was
acquired, during the course of his employment, by an employee
of a United States agency or department in which such information
is handled and (2) its disclosure would violate a solemn agree-
ment made by the employee at the commencement of his employment.
With respect to such information, by his execution of the
secrecy agreement and his entry into the confidential employ-
ment relationship, he effectively relinquished his First
Amendment rights.
III.
The District Judge properly held that classified
information obtained by the CIA or the State Department was
not in the public domain unless there had been official
disclosure of it. This we strongly intimated in our earlier
opinion. Rumors and speculations circulate and sometimes
get into print. It is one thing for a reporter or author
to speculate or guess that a thing may be so or even,
quoting undisclosed sources, to say that it is so; it is quite
another thing for one in a position to know of it officially
to say that it is so. The reading public is accustomed to
treating reports from uncertain sources as being of uncertain
reliability, but it would not be inclined to discredit reports
of sensitive information revealed by an official of the United
- 15 -
States in a position to know of what he spoke. The problem
is highlighted and the appropriateness of the answer we
reach emphasized by the fact that Marks, on Fifth Amendment
grounds, on five different occasions declined to answer whether
he was the undisclosed source of information contained in five
magazine articles offered by the plaintiffs to show that the
information was in the public domain. A public official in
a confidential relationship surely may not leak information
in violation of the confidence reposed in him and use the
resulting publication as legitimating his own subsequent open
and public disclosure of the same information. The same rule
must apply though there be no basis for suspicion that one
of the plaintiffs was the undisclosed source of the previously
published information, for security of all official secrets
would break down if speculative and unattributed reports were
held to have removed all of their protection from them.
It is true that others may republish previously
published material, but such republication by strangers to
it lends no additional credence to it. Marchetti and Marks
are quite different, for their republication of the material
would lend credence to it, and, unlike strangers referring to
earlier unattributed reports, they are bound by formal agree-
ments not to disclose such information.
One may imagine situations in which information
has been so widely circulated and is so generally believed
to be true, that confirmation by one in a position to know
- 16 -
would add nothing to its weight. However, appraisals of
such situations by the judiciary would present a host of
problems and obstacles. It may readily be done by the Inter-
agency Classification Review Committee. If a particular item
is held by the court to be not in the public domain because
not officially disclosed, the Review Committee may still find
that it has so far entered the public domain that it should
be declassified. As long as it remains classified, however,
there should be no further judicial inquiry.
IV.
On the basis of what the District Judge described
as "an extremely subjective judgment" he found that seven
of the deletion items contained information which was either
learned by them outside of their employment or was learned
both during their employment and afterwards and would have
been learned afterwards "in any event." He concluded that
they could publish the information contained in those items.
The agreement, of course, covers only information
learned by them during their employment and in consequence of
it. It does not cover information gathered by them outside
of their employment or after its termination. They may not
publish information first received by them during the course
of their employment even though they later learned of it by
communications which did not place the information in the
- 17 -
public domain. In a sense, they may be said to have later
learned all of the information contained in articles and other
materials offered by them in an attempt to show that certain
information was in the public domain, but that is not the
kind of knowledge acquisition which places the material beyond
the reach of the secrecy agreements. Information later
received as a consequence of the indiscretion of overly trusting
former associates is in the same category. In short, the
individuals bound by the secrecy agreements may not disclose
information, still classified, learned by them during their
employments regardless of what they may learn or might learn
thereafter.
Moreover, neither should be heard to say that he
did not learn of information during the course of his employ-
ment if the information was in the Agency and he had access
to it. At least, a substantial presumption should be raised
against him in those circumstances. With whatever apparent
sincerety a fallible recollection may be expressed, one in
Marchetti's high position in the CIA should be presumed to
have been informed of all important items of information to
which he had access.
On remand the District Judge should review these
general findings in light of this opinion, authorizing
disclosure of those items of information only which first
came to them unofficially after the termination of their
employment.
- 18 -
V.
The judgment is affirmed in part, vacated in part
and remanded for such further proceedings as may be necessary
in accordance with this opinion.
AFFIRMED IN PART;
VACATED IN PART;
REMANDED.
FORD LIBRANT
- 19 -
i
THE WHITE HOUSE
WASHINGTON
2-6-75
PHIL:
Attached is an excerpt on Executive
Privilege from an earlier memo.
Ken
GERALD LIBRERY R. FORD
4
demonstrates a responsible and constitutional approach of condemning
only that property necessary for the public use.
II. EXECUTIVE PRIVILEGE
A. Executive Privilege as a Constitutional Right.
In United States V. Nixon,
U.S.
(1974) 42 U.S. L. W.
5237, 5244 (decided July 24, 1974), the Supreme Court unanimously
recognized the existence of a constitutionally based Executive
Privilege.
Executive privilege may be considered to have three aspects --
first, with reference to a judicial demand for information or materials;
second, with reference to a Congressional demand; and third, with
reference to the public at large. Further, the judicial demand aspect
may be separated into cases where the demand is for evidence relevant
to a criminal trial, e.g., United States V. Nixon, supra, and cases
where the demand is merely for discovery material in a civil case,
e.g., Committee for Nuclear Responsibility, Inc. V. Seaborg, 463 F. 2d
788 (D. C. Cir. 1971); Nader V. Butz, 60 F.R.D. 381 (D. D. C. 1973),
appeal pending. The thrust of Nixon was that in a criminal case if the
evidence was indeed determined to be relevant after in camera inspection,
then the privilege would be defeated. In Seaborg, however, a civil case,
LIBRARY
5
the in camera inspection was merely to determine if the privilege
was rightfully claimed, in which case the material would remain
confidential and the privilege would be upheld.
Congressional demands for material also may fall into two
categories. The first would be a normal committee request, demand,
or subpoena for material which may be rejected on the basis of
Executive Privilege where it is deemed by the President that the
production of such material would be detrimental to the functioning
of the Executive Branch. This at least has been the consistent
practice by practically every administration and acceded to by Congress.
This should be contrasted with a demand for material pursuant to an
impeachment inquiry, which some presidents have acknowledged would
require production of any and all executive material. See e.g.,
Washington's statement, 5 Annals of Congress 710-12 (1796). Finally,
there is the demand by statute for general public access to information.
This last is the situation presented by S. 4016.
The analysis of the different situations in which Executive
Privilege may be invoked and its differing weight and treatment is
instructive, for it, not surprisingly, reveals that the more particularized
and the more compelling the demand for material is, the less weight
Executive Privilege has. Thus, in Nixon, the Court acknowledged that
FORD
LIBRARY
6
a general claim of privilege depe nds "on the broad, undifferentiated
claim of public interest in the confidentiality of such conversations.
"
,
42 U.S. L. W. at 5244, and it was for that reason that the privilege
would fail against a showing of particularized need in a criminal trial.
The importance of that public interest in confidentiality, nevertheless,
was emphasized. "The privilege is fundamental to the operation of
government and inextricably rooted in the separation of powers under
the Constitution. /citing cases/. " Id. at 5245. The conclusion, there-
fore, is clear that absent such a particularized need for evidence in
a criminal trial, the public interest in fostering free and frank
discussion, by protecting it with confidentiality, would serve to sustain
a claim of Executive Privilege. The device of in camera inspection
reflects this understanding. Yet S. 4016 would jettison this acknowledged
public interest and authorize general public access to all presidential
conversations without any showing of need for that access, particu-
larized or otherwise.
B. Disclosure of Privileged Material.
S. 4016 contemplates that former President Nixon's presidential
tapes and materials shall be made available "for use in any judicial
proceeding or otherwise subject to court subpoena or other legal
process. " (Section 3(b)). Moreover, Section 6 of the Bill directs the
13
7
Administrator to issue regulations governing access to the tapes so
as to authorize him to allow general public access to each and every
Presidential conversation recorded between 1969 and 1974 with but
three restrictions -- if national security is involved, if the Special
Prosecutor determines that an individual's right to a fair and impartial
trial will be prejudiced, or if a court determines that a person's
right to a fair and impartial trial would be prejudiced.
The scheme envisaged by S. 4016, therefore, would in effect
reverse both United States V. Nixon, supra, and Committee for Nuclear
Responsibility, Inc. V. Seaborg, supra. This is so first because
- Section 3(b) directs that materials simply "shall
be made available
for use in any judicial proceeding.
" No provision is made for in
camera inspection which the Court required in both Nixon and Seaborg.
In fact the clear intent of the language is to do away with that
judicially derived requirement. The decision in Nixon, however, is
constitutionally based, and the requirement of an in camera inspection
is the result of a careful balancing of competing constitutional interests.
42 U.S. L. W. at 5244-45. This careful balancing is destroyed by
S. 4016, and instead all material subpoenaed or otherwise shall be
made available. Not only does S. 4016 eliminate the constitutional
balancing the Supreme Court required in criminal cases, but it also
repudiates the decision in Seaborg, a civil case.
8
In Seaborg the District of Columbia Circuit acknowledged the
importance of confidentiality in contributing substantially to the
effectiveness of government decision-making. 463 F. 2d at 792.
Thus, a demand for materials in discovery proceedings would not
defeat Executive Privilege, rather the court would inspect the material
to see if the privilege was rightfully invoked. If it was, then the
material would not be produced, even if relevant. See Committee for
Nuclear Responsibility, Inc. V. Seaborg, 463 F. 2d 796, 799 (D. C.
Cir. 1971). Thus, S. 4016 not only eliminates the need for in camera
inspection, but more importantly it overrules the holding that material
for which Executive Privilege is rightfully claimed is indeed privileged
from production in a civil case. Again S. 4016 attempts to overrule
a judicial, constitutional decision by statute.
What S. 4016 does to violate Executive Privilege vis-a-vis
judicial demands for presidential materials, however, is minor
compared to its provision for general public access to all the materials
except national security information. To give authority to the
Administrator to allow general public access would be to negate
Executive Pribilege altogether with no concomitant public interest
being served in its stead, rather catering only to the gross curiosity
VORD
9
of the public. To open all the most personal aspects of any person's
life to the public for no legitimate reason is a violation of privacy
if nothing else, but when that person is also a President it is a most
virulent attack on the Separation of Powers.
In United States v. Nixon, supra, the Supreme Court unanimously
held that presidential communications are "presumptively privileged. "
* * *
"The expectation of a President to the confi-
dentiality of his conversations and correspondence,
like the claim of confidentiality of judicial deliberations,
for example, has all the values to which we accord
deference for the privacy of all citizens and added to
those values the necessity for protection of the public
interest in candid, objective, and even blunt or harsh
opinions in presidential decision-making. A President
and those who assist him must be free to explore
alternatives in the process of shaping policies and
making decisions and to do so in a way many would
be unwilling to express except privately. These are
the considerations justifying a presumptive privilege
for presidential communications. 42 U.S. L. W. at 5245.
* * *
The effect of the presumption is to give the privilege effect until
it is challenged by a particularized demand for certain materials.
Only then is the presumption overcome. S. 4016's general authority
for public access, however, ignores the presumption and provides no
opportunity for the invocation of the privilege. In short, the
10
constitutionally based privilege, acknowledged by the Supreme Court
and given effect by lower courts, is to be eliminated by a mere
statute. Because executive privilege is constitutionally based, however,
it is not subject to repeal or restriction by statutes. Rather statutes
must themselves conform to the constitutional right of Executive
Privilege.
Even commentators who have expressed a very circumscribed
view of Executive Privilege, for example, Raoul Berger, have never
suggested that Congress has the power to make each and every
presidential paper and conversation public, willy-nilly without regard
to the confidences upon which many such conversations and papers were
based. Rather, these commentators have merely expressed the opinion
that calls by Congress for particular materials necessary for its
consideration of legislation or by the judiciary for relevant evidence
have a higher public interest than the executive's generalized need for
confidential communications. This weighing of the conflicting public
interests is precisely the approach that was utilized in Senate Select
Committee V. Nixon, 370 F. Supp. 521, 522 (D.D.C. 1974). See also
Nixon V. Sirica, 487 F. 2d 700, 716-18 (D. C. Cir. 1973). And it was
recognized in Senate Select Committee V. Nixon, 370 F. Supp. at 524,
that even Congress' right to demand information by subpoena is limited
FORD
11
to proceedings in aid of its legislative function. The conclusion to
be drawn, therefore, from both the cases and the commentators is
that there is no authority for Congress to require the publication of
all presidential papers and conversations. Such an action would violate
the Doctrine of Separation of Powers and render the President but a
servant of Congress.
The United States Court of Appeals for the District of Columbia
circuit recognized this full well in Nixon V. Sirica, 487 F. 2d at 715;
* * *
We acknowledge that wholesale public access to
Executive deliberations and documents would
cripple the Executive as a co-equal branch.
* * *
Such could be the result of S. 4016, and for that reason it is of
extremely dubious Constitutional validity.
C. Former Presidents' Rights to Invoke Executive Privilege.
The question may be raised whether a former President
has the authority to invoke Executive Privilege for materials generated
during his presidency, but the rationale behind Executive Privilege
and the interest it serves compels the answer that a former President
may indeed invoke Executive Privilege in the same manner as a sitting
12
President. This is so because the public interest in the confidentiality
of executive discussions requires that those discussions remain
confidential indefinitely, not to be publicized as soon as the President
leaves office, for if these discussions were to become public after
the President leaves office, future discussions with future Presidents
would ever after be chilled by the knowledge that within at least eight
years those discussions could be public. Viewed another way, the
invocation of Executive Privilege is not so much to protect the content
of the particular discussions demanded as it is to protect the expectation
of confidentiality which enables future discussions to be free and frank.
That expectation of confidentiality would be destroyed, and the public
interest which it serves with it, if the mere leaving of office would
destroy that confidentiality. As early as 1846 this principle was
recognized and honored by President Polk. Richardson, Messages and
Papers of the Presidents, Vol. IV, 433-34.
Harry S. Truman in 1953, having returned to private life, was
subpoenaed by a House committee to testify concerning matters that
transpired while he was in office. Refusing by letter, he explained that
to subject former Presidents to inquiries into their acts while President
would violate the separation of powers.
13
* *
It must be obvious to you that if the doctrine of
separation of powers and the independence of the
Presidency is to have any validity at all, it must
be equally applicable to a President after his term
of office has expired when he is sought to be
examined with respect to any acts occuring while
he is President.
The doctrine would be shattered, and the President,
contrary to our fundamental theory of constitutional
government, would become a mere arm of the
Legislative Branch of the Government if he would
feel during his term of office that his every act
might be subject to official inquiry and possible
distortion for political purposes.
* * *
The House committee accepted the letter and did not attempt to enforce
the subpoena, indicating perhaps its concurrence with President
Truman's claim of privilege.
D. Custody as an Element of the Privilege.
The above discussion has dealt with the constitutional violation
of Executive Privilege committed by the disclosure provisions of S. 4016.
In addition, however, serious constitutional questions are raised by
the mere custody provisions set forth in the bill. That is, while it is
clear that Executive Privilege limits the ability of Congress or courts
to disclose presidential materials, it may also be that Executive
Privilege extends to attempts merely to wrest custody of privileged
materials from a President or former President even with supposed
safeguards against their disclosure.
GERAL
There are no cases on point or examples of similar actions to
answer this question, but the policy considerations are telling to
support a claim that privileged ma terials cannot even be wrested
from the custody of the President unless and until a court has
determined that they may at least be examined in camera.
The policy served by Executive Privilege is advanced most
effectively by maintaining the custody of the privileged materials in
the person entrusted with the right of asserting that privilege, for
without custody he is unable to insure that attempts to gain access to
privileged material will be resisted or tested by the courts. Thus,
separation of custody from the person responsible for safeguarding the
confidentiality of the materials separates the function from the re-
sponsibility for it in violation of the most elementary laws of management
efficiency. The President or former President is the one individual
with the interest in assuring continuing confidentiality; the Administrator
has no such interest and therefore is not the proper person to maintain
custody. Moreover, the President is the person with the knowledge
of what needs to be maintained as confidential and what not.
All these considerations suggest that the President or former
President should retain custody of the privileged materials, and that
FORD LIBRART
15
a statute which wrests this privileged material completely from
his control violates the Separation of Powers by removing executive
material from the executive and by undermining the privilege by
separating the custodian of the materials from the defender of the
privilege.
III. RIGHT OF PRIVACY
Section 6 of S. 4016 presents another constitutional issue. It
would result in an abridgement of the constitutionally guaranteed right
of privacy with respect to all persons whose conversations were the
subject of the tape recordings to be condemned and made public by
the bill.
Section 6 of the bill gives to the Administrator authority to release
the tape recordings to the public subject to only three restrictions.
These restrictions are: (1) "information relating to the Nation's security
shall not be disclosed" (section 6(1)); (2) there shall be no release
if "the Office of Watergate Special Prosecution Force certifies in
writing that such disclosure or access is likely to impair or prejudice
an individual's right to a fair and impartial trial" (section 6(3)(A)); and
(3) there shall be no release "if a court of competent jurisdiction
determines that such disclosure or access is likely to impair an
individual's right to a fair and impartial trial" (section 6(3)(B)).
[an. 11/1975]
cyo
went X
Office of the Attorney General
Wheaton Byers
+
Washington, n. C. 20530
JUSTITIA
Jan Wilderite
MEMORANDUM
Re: Privilege of the Executive Branch to
Withhold Information from
Congressional Committees
Several agencies are exploring the possibility of
refusing to provide the Senate and House Select Committees
access to documents that are considered highly sensitive.
While an informal agreement has been reached with the House
Select Committee to govern the publication or de-classi-
fication of Executive branch documents -- an agreement to
which the Senate Select Committee also apparently subscribes
- no general agreement has been adopted to determine what
documents or information may be withheld from the Committees.
Each agency, of course, has attempted to fashion some arrange-
ments with the Committees to protect the sensitivity of cer-
tain information, e.g., by excising especially sensitive
information or by offering a briefing in lieu of furnishing
the actual documents. There is no assurance, however, that
the Committees will not press further. The only basis for
withholding or denying access to especially sensitive docu-
ments is to assert a privilege.
The issue of privilege could also arise once the
documents have been furnished since, under the agreement, if
a Committee desires to make a document public and the Presi-
dent certifies that the interests of the government require
that the document be kept in confidence, the document must be
returned. The Committee could then assert their unbridled
claim to the document by taking their case to the courts. The
defense of the Executive branch would be that the document is
covered by a privilege from disclosure. It should be pointed
out that there is some slight risk the agreement to return the
document under such circumstances might be treated by the courts
as an effort - perhaps unsuccessful to create a case or
controversy. It is also possible that a committee, in spite
of the agreement, might not return the document and might pro-
ceed to (1) publish it, which would leave the Executive without
an effective remedy or, (2) announce that it was going to pub-
lish, which, in my view, woud make a difficult case for the
- 2 -
Executive to succeed in getting court action.
It is important that we approach this assertion of
privilege in a systematic fashion, both in order to enable
your decisions to be more consistent and also in order to
provide some guidance to the agencies as to which documents
they may reasonably submit for your consideration. The
following discussion is intended to facilitate the construc-
tion of a framework for future actions.
Executive privilege has traditionally been asserted
with respect to four general categories of information:
defense secrets, foreign affairs secrets, materials relating
to criminal investigations, and internal advice-giving within
the Executive branch. The third category, criminal investi-
gative materials, is not generally involved in the present
inquiry. We have attempted in the table that follows this
memorandum to establish for the other three categories what
seems to us an appropriate scale of importance, on the basis
of representative documents provided by various agencies.
Documents falling into some of the categories are furnished
as examples.
Several caveats are in order:
(1) You should be aware that your decision as to
the level at which executive privilege will be asserted at
this time with respect to this particular Congressional inquiry
does not commit you or the Executive branch to a determina-
tion that the privilege may be asserted in the future only at
that level of importance. Obviously, in any situation the
validity of invoking the privilege depends not merely upon the
information to be protected but also upon the need and justi-
fication for the request. The present Congressional inquiry
is of an extraordinary sort, which cannot feasibly be conducted
without a large amount of confidential information, and it is
undoubtedly appropriate in this case to go far beyond what would
normally be presented to other committees of the Congress.
(2) A distinctive feature of the present situation
is the fact that your failure to assert privilege at the initial
stage will not necessarily result in public disclosure of the
information in question. As noted above, all documents are
being provided on the agreed-upon condition that they will not
be disclosed beyond the Committees if we object. Thus, initially
the decision is merely whether to make it available to the Com-
mittees; not whether the information should be furnished to
the public or even the rest of the Congress. Certain types of
information which would be withheld from a Congressional com-
- 3 -
mittee that made no such non-disclosure commitment -- for
example, material in category I (4) of the table covering
present evaluations of U.S. and foreign military strength
- might well be provided in the present case. On the
other hand, there may still be items which you would wish
to withhold despite the non-disclosure commitment --- either
because such commitment does not provide adequate assurance
against leaks (for example, with respect to certain informa-
tion in category I (2) covering highly secret weapons sys-
tems) or because disclosure to the Committee itself, even
without further dissemination, would compromise the interest
in question (for example, certain material in category II (5)
covering information provided in confidence by a foreign
government.
(3) The categories in the following table necessarily
overlap, since two of them (defense information and foreign
affairs information) are directed at the protection of content,
while the third (advice-giving within the Executive branch) is
directed at protection of a process. Thus, the third category
is established without regard to any such differentiation of
content. For example, a particular communication between
a President and a foreign head of state (the highest level of
privilege under category III) may involve highly sensitive
military or foreign affairs secrets, or may be the most inno-
cuous expression of social sentiment. You may wish to decide
that all confidential communications between presidents and
foreign heads of state must be kept confidential in order that
the process of such exchanges may in the future remain unin-
hibited by any possibility of disclosure to the Congress. Or
you may decide that such communications should be withheld in
the present circumstances only if they also involve material
which is sensitive for military or foreign affairs reasons
(though the level of sensitivity may be lower than that required
to warrant withholding the same information contained in a
document from a low level of the Executive branch.)
(4) The levels in category III -- Confidentiality of
Executive decision-making -- are established without regard to
whether the particular communication in question compromises
the integrity of the Executive branch decision-making process.
The matter could be treated differently. That is to say, instead
of protecting, for example, all advice-giving from Presidential
advisers to the President (category III (2)) you might decide
to protect only those communications that would positively
embarrass particular individuals. This approach would signi-
ficantly reduce the scope of privilege claimed under category
III -- especially if names are deleted. One difficulty with
a selective application of category III is that each isolated
- 4 -
withholding may appear to be an admission of something to
hide. This concern can be obviated in large part by pro-
viding an explanation to the Committee as to the reason why
the information is excised. (Indeed, whenever excisions
are made, the nature of the information should be described
to justify the excisions and thereby overcome any suspicions.)
While it is also true that it may not suffice to preserve
the frankness of NSC discussions merely to assure the part-
cipants that future Presidents will consider carefully what
releases of information might embarrass them, participants
cannot always be certain that other participants who are
Executive officials. will forever preserve the confidentiality
of the discussions.
(5) Although it is believed that the categories
listed under each of these topics in the following table
are generally in descending order of importance with respect
to the assertion of Executive privilege, it is undoubtedly
true that most categories cover such a wide range of material
that the less significant matters in a higher category may
well be less important than the most significant in a lower.
For example, the items which consist of present evaluations
of U.S. and foreing military strength (category I (4)) may
range all the way from an assessment of Russian missile
capacity to an evaluation of the Indian navy.
(6) It is not necessary, or even desirable, to make
a decision as to the assertion of Executive privilege on a
document-wide basis. That is to say, in most cases, portions
of a document can be released with deletions that will protect
the sensitive information. This principle has its least
force with respect to category III (although deletion of names
of participants in meetings or authors of policy papers may
be adequate), since it is there that the entire process,
rather than individual items of information, must be protected.
It should be evident from the foregoing discussion
that the present exercise cannot provide definitive answers
with respect to the production or non-production of any parti-
cular documents. This decision can obviously be made only on
a case-by-case basis, applying judgments relative to all of
the categories set forth below.
- 5 -
CATEGORIES
I. Defense Secrets -- Information the disclosure
of which would impair our national defense
(1) Present contingency military planning for war
(2) Highly secret weapons systems
(3) Highly sensitive intelligence sources and methods for
collection of defense-type information
(4) Present evaluation of U.S. and foreign military strength
(5) Military action taken or planned in past international
crises
(6) Past contingency military planning for war
(7) Past evaluations of U.S. and foreign military strength
II. Foreign Affairs Secrets -- Information the
disclosure of which will impair our conduct
of foreign relations
(1) Present secret military or intelligence arrangements
with foreign nations
(2) Present interventions in domestic affairs of foreign
nations
(3) Cooperation of present foreign political figures with
U.S.
(4) Highly sensitive intelligence sources and methods for
collection of foreign affairs-type information
(5) U.S. activity (whether known or unknown to the foreign
nation) whose public disclosure would require retaliatory
response
(6) Information of any sort provided in confidence by a
foreign government
(7) Evaluation of present foreign leaders
(8) Assessment of present foreign intentions
- 6 -
(9) Past intervention in domestic affairs of foreign
nations
(10) Past military or intelligence arrangements with
foreign nations
(11) Cooperation of former foreign political figures
with U.S.
III. Confidentiality of Executive Decision-Making ---
Information the disclosure of which (antici-
pated by future officials) would impair the
frankness and integrity of the consultative
process
(1) Confidential communications between the President and
foreign heads of state
(2) Intimate, spontaneous discussions between a President
and his top advisers
(3) Written views of a President on policy matters
(4) Written advice by individual advisers to the President
(5) Institutional policy recommendations to the President
(6) Agenda items for meetings with the President
(7) Policy discussions among individual advisers to the
President in preparation of their recommendations
to him
(8) Policy views of lower-level officials presented to
Presidential adviers in preparation for the latter's
recommendations to the President
(9) Policy views of lower-level officials on issues not
destined for Presidential decision
(10) Agenda items for meetings below Presidential level
(11) Background documents interpreting Presidential decisions
(12) Unsigned policy discussions
ITEM WITHDRAWAL SHEET
WITHDRAWAL ID 00695
Collection/Series/Folder ID No
: 001900176
Reason for Withdrawal
:
NS, National security restriction
Type of Material
: MEM, Memo (s)
Creator's Name
: Attorney General
Description
:
re privilege of the Executive Bra
nch to withhold information from congressional committees
Creation Date
: 1975
Volume (pages)
: 2
Date Withdrawn
: 05/11/1988
exempted 1/97 (ut 3/97)
- 9 -
III. Confidentiality of Executive Decision-Making ---
information the disclosure of which (anticipated
by future officials) would impair the frankness
and integrity of the consultative process
(1) Confidential communications between the President and
foreign heads of state (list of Presidential letters
beginning in 1950)
(2) Intimate, spontaneous discussions between a President
and his top advisers (minutes of NSC meeting April 20,
1963)
(3) Written views of a President on policy matters
(4) Written advice by individual advisers to the President
(Roger Hilsman memorandum to President, dated 30 May
1962)
(5) Institutional policy recommendations to the President
(OMB memorandum to President on 1976 budget decisions)
(6) Agenda items for meetings with the President (PFIAB
Agenda items from 1961-1975)
(7) Policy discussions among individual advisers to the
President in preparation of their recommendations to
him (no example)
(8) Policy views of lower-level officials presented to
Presidential advisers in preparation for the latter's
recommendations to the President (Memo for the DCI,
21 Feb. '64, subject: Responsibilities in the para-
military field)
(9) Policy views of lower-level officials on issues not
destined for Presidential decisions (no example)
(10) Agenda items for meetings below Presidential level
(PFIAB meeting of 3 October 1974)
(11) Background documents interpreting Presidential decisions
(Minutes of meeting of 40 Committee, 8 June 1971)
(12) Unsigned policy discussions (NSC Staff Memo for 303
Committee, 5 April 1965)
FBI Relationships with the Senate and House Select Committees
Senate Select Committee
FBI relationships with the Senate Select Committee generally
have been harmonious with responses to the Committee requests
delivered promptly. When difficulties have occurred they
have been overcome by negotiation and tolerance on both sides.
Future difficulties that may be confronted and require similar
resolution include the scope of any public hearing regarding
electronic surveillance of foreign nationals or their agents
and establishments.
House Select Committee
In the past the FBI has experienced the following difficulties
with the House Select Committee:
(1) It has held public hearings which were orchestrated
to present adverse views without an opportunity for
prepared rebuttal, such as occurred on October 9, 1975,
regarding electronic surveillance matters;
(2) It has demanded delivery of documents on unreas-
onably short notice considering the time necessary to
locate and prepare for deliver the enormous quantity
of documents called for;
(3) It has interviewed employees, former employees
and confidential sources of the FBI without first
advising the FBI of the proposed interview and has
demanded the appearance of agents below the policy-
making level.
A large number of documents dealing with electronic surveillance
conducted without a warrant between 1970 and July 30, 1975, were
furnished to the Committee on Friday, October 10, 1975. Certain
excisions in these documents were made and it remains to be seen
whether the Committee will accept the determinations made as to
what types of information, e.g., identities of subjects who were
monitored, should have been excised.
The overriding concern for the future is the need to establish
an understanding on both sides of the policies to be followed by
each in responding to the Committee's mandate. General agreement
to specified operating procedures would alleviate the suspicion
on the part of the Committee and the fear of Committee reesponsi-
bility on the part of the FBI.
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
December 24, 1974
MEMORANDUM FOR PHILLIP E. AREEDA, PHILIP W. BUCHEN,
WILLIAM E. CASSELMAN II, DUDLEY H. CHAPMAN
STANLEY EBNER, KENNETH A. LAZARUS,
BARRY ROTH, ANTONIN SCALIA, LEON ULMAN
SUBJECT: Executive Privilege
Attached is the House report accompanying H.R. 12462, a bill
to amend the Freedom of Information Act to require that
information be made available to Congress. There have been
hearings on this bill as well as on related bills in the
Senate. I have been told informally that the House Government
Operations Committee has plans to move this bill early in
the next Congress.
Robert P. Beaue
Robert P. Bedell
Assistant General Counsel
Attachment
FORD LIBRAN,
THE WHITE HOUSE
WASHINGTON
December 13, 1974
MEMORANDUM FOR THE PRESIDENT
FROM:
PHILIP BUCHEN
SUBJECT:
Enrolled Bill: S. 4016 -- Nixon Papers and Tapes
Friday, December 20, is the last day for action on the referenced bill.
This is to outline its anticipated impact and to furnish my views on
an appropriate course of action.
Title I
1. General. Title I governs the possession, security and accessibility
of tape recordings and other materials of former President Nixon.
Three separate stages of implementation are involved.
2. First Stage. Upon enactment, the following provisions of Title I
would have to be implemented.
(a) Possession. The Administrator of GSA is directed to take
complete control and possession of all tapes and other
materials of the former President. [Sec. 101]
(b) Preservation. None of the tapes or other materials could
ever be destroyed absent affirmative congressional consent.
[Sec. 102(a)]
(c) Access. (i) The tapes and other materials would be made
available immediately, subject to any rights, defenses or
privileges which may be asserted for "subpoena or other
legal process. " Thus, the papers and tapes would be subject
to subpoena by the Special Prosecutor, by Congress, by
state law enforcement officials and by private parties in
administrative, civil or criminal proceedings. before either
a state or Federal tribunal. Moreover, the materials would
also be discoverable incident to a state or Federal court
action or appropriate administrative proceeding. [Sec. 102(b)
LIBRARY
2
(ii) President Nixon or his designate would be denied any
access to the tapes or other materials within the possession
of GSA until the issuance of protective regulations as dis-
cussed below. (See 3 infra.) Although there is no express
provision for notice from GSA to the former President
regarding requests for access, this would be consistent
with legislative intent in order to allow him to assert any
privilege in opposition to such a request. [Sec. 102(c)]
(iii) Any agency or department in the Executive branch of
the Federal government would be authorized access to the
tapes and other materials for "lawful Government use. "
Here too, there is no express provision for notice to
allow consideration of a competing privilege but such
notice would be consistent with legislative history.
[Sec. 102(d)]
3. Second Stage. The Administrator of GSA is directed to issue
protective regulations "at the earliest possible date" governing
the possession, security and custody of tapes and other materials.
On a theoretical plane, some of these tapes and other materials
could have been already accessed as discussed above. As a
practical matter, however, the regulations can be issued
within a week from date of enactment. Therefore, the only
real import of this stage is that it triggers access to the
tapes and materials by the former President or his designate
subject to the restraints of this title. [Sec. 103]
4. Third Stage. The third stage of implem entation under Title I
involves the establishment of regulations governing general
public access to the tapes and other materials.
(a) Timing. Within ninety (90) days after enactment of the subject
bill, the Administrator of GSA will submit to both Houses of
Congress proposed regulations governing public access to the
tapes and other materials [Sec. 104(a)]. These regulations
LIBRARY
3
shall take effect upon the expiration of ninety (90)
legislative days after submission to the Congress
unless disapproved by either House. [Sec. 104(b)(1)]
(b) Standards. In drafting these regulations, the Administrator
is directed to take into account a series of specified needs:
(1) to provide the public with the full truth on the abuses of
governmental power incident to "Watergate"; (2) to make
the tapes and materials available for judicial proceedings;
(3) to guarantee the integrity of national security
information; (4) to protect individual rights to a fair trial;
(5) to protect the opportunity to assert available rights
and privileges; (6) to provide public access to materials
of historical significance; and (7) to provide the former
President with tapes or materials in which the public has
no interest as set forth above. [Sec. 104(a)]
5. Judicial Review. A provision is included to allow for expedited
judicial review of the constitutional issues which will be raised.
[Sec. 105(a)]
6. Compensation. The bill authorizes compensation to the former
President if it is determined that he has been deprived of personal
property under its provisions.
7. Constitutional Issues. Although Title I is probably constitutional
on its face, it will no doubt be substantially cut back as various
provisions for access are applied in the face of competing claims,
primarily Executive Privilege.
The seven major issues presented by the measure involve:
(1) the novel type of eminent domain which it contemplates;
(2) the appropriate scope of Executive Privilege; (3) relevant
rights of privacy; (4) its impact upon First Amendment rights;
(5) the Fifth Amendment privilege against self-incrimination;
(6) the claim that it constitutes a Bill of Attainder; and (7) Fourth
Amendment claims relating to unreasonable searches and seizures.
The bill itself provides the opportunity to litigate each of these
possible objections.
FORD
LIBRAR
4
Title II
Title II would establish a "Public Documents Commission" to study
problems with respect to the control, disposition and preservation
of records produced by or on behalf of "Federal officials", defined
to include virtually all officers and employees of the three branches
of government.
This 17-member commission would be composed of two Members of
the House of Representatives; two Senators; three appointees of the
President, selected from the public on a bipartisan basis; the
Librarian of Congress; one appointee each of the Chief Justice of the
United States, the White House, the Secretary of State, the Secretary
of Defense, the Attorney General, and the Administrator of General
Services; and three other representatives, one each appointed by the
American Historical Association, the Society of American Archivists,
and the Organization of American Historians.
The Commission would be directed to make specific recommendations
for legislation and recommendations for rules and procedures as may
be appropriate regarding the disposition of documents of Federal
officials. The final report is to be submitted to the Congress and the
President by March 31, 1976.
Discussion
1. Should the bill be enacted? There are essentially three arguments
against the enactment of the subject bill. First, it is inherently
inequitable in singling out one President and attempting to reduce the
traditional sphere of Presidential confidentiality only as to him.
Second, it holds some potential for political exploitation and could
lead to more sensational and destructive exposures of the former
President's dealings and the confidential statements or writings of
other parties with no purpose other than the satisfaction of idle
curiosity. Third, it could require a great deal of unnecessary
litigation, depleting further the financial resources of Mr. Nixon and
drawing the judiciary further into the quagmire of "Watergate".
On the other hand, there are four factors that support enactment of
the bill. First, as noted above, it does provide a remedy for Mr. Nixon
5
to pursue in asserting relevant rights and privileges. Second, it
will introduce some element of finality to White House involvement
in the various tapes disputes. Third, a veto would be interpreted
as "more cover-up" which would undermine your efforts to put
"Watergate" behind us. Fourth, it could enhance the likelihood of
an agreement between Henry Ruth and counsel for Mr. Nixon
governing access to the tapes and other materials, thereby
expediting the mission of the Special Prosecutor.
2. Should the bill be signed or merely allowed to become law
Assuming that you believe the bill should be enacted, I see no reason
for you to withhold your signature. Since this is purely a question
of form, there would appear to be no significant reason to risk any
political losses that could be incurred.
3. Should a public statement be issued? In my opinion, a statement
should be issued. The statement would be shaped along the following
lines. First, the existence of constitutional issues might only be
noted -- no opinion would be expressed on the relative merits of
competing claims. Second, you could indicate your understanding
of Congressional intent to the effect that the former President be
given every opportunity to litigate any claims of privilege which may
be available to him. Third, you would request the Administrator of
GSA to move promptly to discharge his duties in accordance with the
spirit and the letter of the law. Finally, you would indicate that a
talent search is underway to recruit Presidential appointees to the
"Public Documents Commission" and that you are hopeful the
commission will be able to suggest even-handed and uniform rules
governing access to the documents of all Federal officials.
4. Agency Views. The Domestic Council and OMB make no
recommendations concerning this measure. The view of the
Department of Justice is that S. 4016 should be allowed to become
law.
FORD
6
Action
1. S. 4016 should be enacted into law.
Approve
Disapprove
2. The bill should be signed.
Approve
Disapprove
3. A public statement should be issued.
Approve
Disapprove
4. The statement should follow the format noted above.
Approve
Disapprove
See Me
10R0