Assertion of Executive Privilege in Response to Congressional Demands for Law Enforcement Files
It is the policy of the Executive Branch to decline to provide com m ittees of C ongress with access to or copies o f law enforcem ent files, or m aterials in investigative files whose disclosure might adversely affect a pending enforcem ent action, overall enforcem ent policy, o r the rights of individuals.
C ongressional assurance of confidentiality cannot overcom e concern over the integrity o f law enforcem ent files, not only because o f concern over potential public distribution o f the docum ents by C ongress, but because o f the im portance of preventing direct congressional influence on investigations in progress.
It is the constitutional responsibility of the Executive to determ ine w hether and when m aterials in law enforcem ent files may be distributed publicly, and this responsibility cannot and will not be delegated to C ongress.
T he principle o f executive privilege will not be invoked to shield docum ents which contain evidence of cnm inal or unethical conduct by agency officials, and the docum ents at issue here have been m ade available for inspection by congressional staff m em bers to confirm their proper characteriza tion in this regard.
November 30, 1982
T he C h a ir m a n o f t h e Subcom m it t e e o n O v e r s ig h t and In v e s t ig a t io n s C o m m it t e e o n E nergy and Com m erce
U n it e d S t a t e s H o u s e of R e p r e s e n t a t iv e s
D ear M r . C h airm an : This letter responds to your letter to me of November 8, 1982, in which you, on behalf of the Subcommittee on Oversight and Investiga tions of the Committee on Energy and Commerce of the House of Representa tives, continue to seek to compel the production to your subcommittee of copies of sensitive open law enforcem ent investigative files (referred to herein for convenience simply as law enforcement files) of the Environmental Protection Agency (EPA). Demands for other EPA files, including similar law enforcement files, have also been made by the Subcommittee on Investigations and Oversight o f the P ublic W orks and T ran sp o rtatio n C o m m itte e o f the H ouse of Representatives.
Since the issues raised by these dem ands and others like them are important ones to two separate and independent branches of our Nation’s government, I shall reiterate at som e length in this letter the longstanding position o f the
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Executive Branch with respect to such matters. I do so with the knowledge and concurrence of the President.
As the President announced in a mem orandum to the heads of all executive departm ents and agencies on N ovem ber 4, 1982, “ [t]he policy of this Admin istration is to com ply with Congressional requests for information to the fullest extent consistent with the constitutional and statutory obligations of the Ex ecutive B ranch. . . . [E x ecu tiv e privilege will be asserted only in the most com pelling circum stances, and only after careful review demonstrates that assertion of the privilege is necessary.” M emorandum from the President to the H eads o f Executive Departments and Agencies (Nov. 4, 1982), re: “Procedures G overning R esponses to Congressional Requests for Inform ation,” at 1. Nev ertheless, it has been the policy o f the Executive Branch throughout this Nation’s history generally to decline to provide com m ittees of Congress with access to or copies of law enforcem ent files except in the m ost extraordinary circumstances. Attorney G eneral R obert Jackson, subsequently a Justice of the Supreme Court, restated this position to Congress over 40 years ago:
It is the position of [the] Department [of Justice], restated now with the approval of and at the direction of the President, that all investigative reports are confidential documents of the executive departm ent o f the Government, to aid in the duty laid upon the President by the Constitution to ‘take care that the laws be faithfully executed,’ and that congressional or public access to them would not be in the public interest.
D isclosure of the reports could not do otherwise than seriously prejudice law enforcem ent. Counsel for a defendant or prospec tive defendant, could have no greater help than to know how much o r how little information the Government has, and what witnesses o r sources of information it can rely upon. This is exactly what these reports are intended to contain.
40 Op. A tt’y G en. 45, 46 (1941).
This policy does not extend to all material contained in investigative files. D epending upon the nature of the specific files and the type of investigation involved, much of the information contained in such files may and is routinely shared with C ongress in response to a proper request. Indeed, in response to your subcom m ittee’s request, considerable quantities of documents and factual data have been provided to you. T he EPA estimates that approximately 40,000 docum ents have been made available for your subcommittee and its staff to exam ine relative to the three hazardous waste sites in which you have expressed an interest. The only documents which have been withheld are those which are sensitive m em oranda or notes by EPA attorneys and investigators reflecting enforcem ent strategy, legal analysis, lists of potential witnesses, settlement considerations, and sim ilar materials the disclosure of which might adversely affect a pending enforcem ent action, overall enforcem ent policy, or the rights of individuals.
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I continue to believe, as have my predecessors, that unrestricted dissemination of law enforcement files would prejudice the cause of effective law enforcem ent and, because the reasons for the policy of confidentiality are as sound and fundamental to the administration of justice today as they were 40 years ago, I see no reason to depart from the consistent position of previous Presidents and attorneys general. As articulated by form er Deputy Assistant Attorney General Thomas E. Kauper over a decade ago, the Executive cannot effectively investigate if Congress is, in a sense, a partner in the investigation. If a congressional committee is fully apprised of all details of an investigation as the investiga tion proceeds, there is a substantial danger that congressional pressures will influence the course of the investigation.
M emorandum from Thom as E. Kauper, Deputy Assistant Attorney G eneral, Office of Legal Counsel, to Edward L. M organ, Deputy Counsel to the President (Dec. 19, 1969), re: “ Proposed letter from Secretary of the Army Resor to Chairman Rivers re submission of open C1D investigative files,” at 2.
O ther objections to the disclosure of law enforcement files include the poten tial damage to proper law enforcem ent which would be caused by the revelation of sensitive techniques, methods, or strategy; concern over the safety of con fidential informants and the chilling effect on sources of information if the contents of files are widely disseminated; sensitivity to the rights of innocent individuals who may be identified in law enforcement files but who may not be guilty of any violation of law; and well-founded fears that the perception o f the integrity, impartiality, and fairness of the law enforcement process as a whole will be damaged if sensitive material is distributed beyond those persons neces sarily involved in the investigation and prosecution process. Our policy is premised in part on the fact that the Constitution vests in the President and his subordinates the responsibility to “ take Care that the Laws be faithfully ex ecuted.” U .S. C onst., A rt. II, § 3. The courts have repeatedly held that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case. . . .” United States v. Nixon, 418 U .S. 683, 693 (1974).
The policy which I reiterate here was first expressed by President Washington and has been reaffirmed by or on behalf of most of our Presidents, includ ing Presidents Jefferso n , Jackson, L incoln, T heodore R oosevelt, Franklin Roosevelt, and Eisenhower. I am aware of no President who has departed from this policy regarding the general confidentiality of law enforcement files.
I also agree with Attorney General Jackson’s view that promises of con fidentiality by a congressional committee or subcommittee do not remove the basis for the policy of nondisclosure of law enforcement files. As Attorney General Jackson observed in writing to Congressman Carl Vinson, then Chair man of the House Committee on Naval Affairs, in 1941:
I am not unmindful of your conditional suggestion that your counsel will keep this information “inviolate until such time as the
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com m ittee determines its disposition.” I have no doubt that this pledge would be kept and that you would weigh every considera tion before making any m atter public. Unfortunately, however, a policy cannot be made anew because o f personal confidence of the Attorney G eneral in the integrity and good faith of a particular com m ittee chairman. We cannot be put in the position of discrim i nating between committees or of attem pting to judge between them , and their individual m em bers, each of whom has access to inform ation once placed in the hands of the committee.
40 Op. A tt’y G en. at 50.
Deputy A ssistant Attorney G eneral Kauper articulated additional considera tions in explaining why congressional assurances of confidentiality could not overcom e concern over the integrity of law enforcem ent files:
[S]uch assurances have not led to a relaxation of the general principle that open investigative files will not be supplied to C ongress, for several reasons. First, to the extent the principle rests on the prevention o f direct congressional influence upon investigations in progress, dissem ination to the Congress, not by it, is the critical factor. Second, there is the always present concern, often factually justified, with “leaks.” Third, members of Congress may comment or publicly draw conclusions from such docum ents, without in fact disclosing their contents.
K auper M em orandum at 3.
It has never been the position o f the Executive Branch that providing copies of law enforcem ent files to congressional com m ittees necessarily will result in the docum ents’ being m ade public. We are confident that your subcommittee and other congressional committees w ould guard such documents carefully. N or do I mean to im ply that any particular com m ittee would necessarily “leak” documents im properly although, as you know, that phenom enon has occasionally occurred. Concern over potential public distribution of the documents is only a part of the basis for the E xecutive’s position. At bottom , the President has a responsibility vested in him by the Constitution to protect the confidentiality of certain docu m ents which he cannot delegate to the Legislative Branch.
W ith regard to the assurance of confidential treatment contained in your N ovem ber 8, 1982, letter, I am sensitive to Rule XI, Clause 2, § 706c of the Rules o f the House o f Representatives, which provides that “[a]ll committee hearings, records, data, charts, and files . . . shall be the property of the House and all M em bers c f the House shall have access thereto. . . .” In order to avoid the requirem ents of this rule regarding access to documents by all Members of the H ouse, your N ovem ber 8 letter offers to receive these documents in “executive session” pursuant to Rule XI, Clause 2, § 712. It is apparently on the basis of § 7 1 2 that your N ovem ber 8 letter states that providing these materials to your subcom m ittee is not equivalent to making the documents “public.” But, as is
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evident from your accurate rendition of § 712, the only protection given such materials by that section and your understanding of it is that they shall not be made public, in your own words, “without the consent of the Subcom m ittee.”
Notwithstanding the sincerity of your view that § 712 provides adequate protection to the Executive Branch, I am unable to accept and therefore must reject the concept that an assurance that documents would not be made public “without the consent of the Subcomm ittee” is sufficient to provide the Executive the protection to which he is constitutionally entitled. While a congressional comm ittee may disagree with the President’s judgm ent as regards the need to protect the confidentiality of any particular docum ents, neither a congressional comm ittee nor the House (or Senate, as the case may be) has the right under the Constitution to receive such disputed docum ents from the Executive and sit in final judgm ent as to whether it is in the public interest for such documents to be made public.1 To the extent that a congressional committee believes that a presidential determination not to disseminate documents may be improper, the house of Congress involved or som e appropriate unit thereof may seek judicial review (see Senate Select Committee v. Nixon, 498 F.2d 725 (D .C. Cir. 1974)), but it is not entitled to be put in a position unilaterally to make such a determ ina tion. The President’s privilege is effectively and legally rendered a nullity once the decision as to whether “public” release would be in the public interest passes from his hands to a subcommittee of Congress. It is not up to a congressional subcom mittee but to the courts ultimately “ ‘to say what the law is’ with respect to the claim of privilege presented in [any particular] case.” United States v. Nixon, 418 U .S. at 705, quoting M arbury v. M adison, 5 U .S. (1 Cranch) 137, 177 (1803).
I am unaware of a single judicial authority establishing the proposition which you have expounded that the power properly lies only with Congress to determ ine whether law enforcem ent files m ight be distributed publicly, and I am com pelled to reject it categorically. The crucial point is not that your subcommittee, o r any other subcommittee, might wisely decide not to make public sensitive inform a tion contained in law enforcement files. Rather, it is that the President has the constitutional responsibility to take care that the laws are faithfully executed; if the President believes that certain types of information in law enforcement files are sufficiently sensitive that they should be kept confidential, it is the President’s constitutionally required obligation to make that determ ination.2 1 Your N ovem ber 8 letter points out that in my opinion o f O ctober 13, 1981, to the P resident, 43 O p A tt’y G e n ________, 5 Op. O L C . 27 (1981), a passage from the C o u rt’s opinion in U n tied Sla tes v. N ixon, 4 1 8 U .S 683 (1974), was quoted in which the w ord “ p u b lic'’ as it appears in the C ourt's op inion was inadvertently o m itte d . S ee 5 Op. O L C at 29 That is correc t, but the significance you have attributed to it is not. The om ission o f th e word "p u b lic" was a technical erro r m ade in the transcription o f the final typew ritten version o f the opinion. T his e rro r will be corrected by inclusion of the w ord “ public” in the official p n n te d version o f that opinion. However, the om ission o f that word w as not m aterial to the fundam ental points contained in the o p inion The reasoning contained therein rem ains the sam e A s the discussion in the text of this letter m akes clear, I am unable to accept yo u r argum ent that the provision of docum ents to C ongress is not, for purposes o f the P resident’s executive privilege, functionally and legally equivalent to making the docum ents pu b lic, because the pow er to m ake the docum ents public sh ifts fro m the E xecutive to a unit o f C ongress T hus, for these purposes th e result under U n ite d S tates v. N ixon w ould be identical even if the C o u rt had itself not used the w ord “ public” in the relevant passage 2 It was these principles that w ere em bodied in A ssistant A ttorney G eneral M cC onnell’s letters of O cto b e r 18 and 2 5 ,1 9 8 2 ,to you U n d erth ese principles, y o u rc ritic is m o f M r M cC o n n ells statem ents m ade in those letters m ust be rejected M r M cC o n n ell’s statem ents represent an institutional viewpoint that does not, and cannot, d ep e n d upon the p ersonalities involved I regret that you chose to take his observations personally.
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T hese principles will not be employed to shield documents which contain evidence o f crim inal or unethical conduct by agency officials from proper review. However, no claim s have been advanced that this is the case with the files at issue here. As you know, your staff has examined m any of the documents which lie at the heart of this dispute to confirm that they have been properly characterized. These arrangem ents were made in the hope that that process would aid in resolving this dispute. Furthermore, I understand that you have not accepted A ssistant Attorney General M cC onnell’s offer to have the documents at issue made available to the members of your subcommittee at the offices of your subcom m ittee for an inspection under conditions which would not have required the production of copies and w hich, in this one instance, would not have irreparably injured our concerns over the integrity of the law enforcement process. Your apparent rejection of that offer would appear to leave no room for further com prom ise of our differences on this matter.
In closing, I emphasize that we have carefully reexamined the consistent position of the Executive Branch on this subject and we must reaffirm our com m itm ent to it. We believe that this policy is necessary to the President’s responsible fulfillm ent of his constitutional obligations and is not in any way an intrusion on the constitutional duties of Congress. 1 hope you will appreciate the historical perspective from which these views are now communicated to you and that this assertion of a fundamental right by the Executive will not, as it should not, im pair the ongoing and constructive relationship that our two respective branches must enjoy in order for each of us to fulfill our different but equally im portant responsibilities under our Constitution.
Sincerely, W il l ia m F rench S m it h