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To the Editors of The Crimson:
Your July 10 news story on Professor Freund's reaction to President Nixon's decision to withhold information from the Select Committee on Presidential Campaign Activities raises some very interesting questions about the separation of powers in the United States.
Although there may be no clear legal basis for Congressional powers to subpoena the President to appear before Congressional Committees, the question of the Congressional power to subpoena duces tecum has firm legal foundation.
At the Trial of Aaron Burr, Justice Marshall confined the dictum of non-disclosure of communications that was set forth in Marbury v. Madison. The 1809 U.S. v. Burr decision cited:
That the President of the United States may be subpoenaed and examined as a witness, and required to produce any paper in his possession...
Marshall, who had been an ardent advocate of the Constitution at the Virginia Ratification Convention was hardly oblivious to the fact that his ruling was not barred by the separation of powers principle. Inherent in the separation of powers principle was the doctrine of checks and balances which afforded the Congress with the function of overseeing the operations of the Executive Branch. Clearly, the power to oversee the affairs of the administrative branch or to investigate the actions of officials in the executive branch must be reinforced with the powers of subpoena.
In addition, the doctrine of "Executive Privilege" cited by Professor Freund as the basis for the Presidential refusal to hand over documents is hardly a viable foundation for such a claim. "Executive Privilege" is a doctrine without statutory or constitutional foundation. In fact, it has developed unrestrained over the years, as a matter of habit on the part of the Executive and an act of courtesy on the part of the Congress. Although the constitutionality of the doctrine has not been decided, advocates are hard pressed to find any legal justifications for the "privilege." Thus, the doctrine should be considered more of a precedented practice than a legal right and should not be considered a justifiable rationale for the withholding of information.
The major law which governs the disclosure of government papers is Section 22 of Title 5 U.S.C. which provides that:
...each department head can make rules and regulations to preserve its records and keep them secret from disclosures by its agents...
However, two judicial decisions, Boske v. Comingore (1900) and U.S.ex.rel. Touhy v. Ragen (1950), have held this statute to be a so-called "housekeeping" measure. In fact, note 3 of Title 5 U.S.C. provides:
This section is intended to furnish departments with housekeeping authority and it cannot be construed to authorize executive department heads to determine whether papers and records are privileged or bar demand for production of evidence found not privileged...
In other words, the evident purpose of Congress was to furnish each department with the authority to regulate the conduct of its officers and employees in order to allow for the centralization of decision-making within the department itself.
Nonetheless, executive departments continue to rely on that statute in refusing information to the Congress. Indeed, it seems incredulous to rely on a statute passed by the Congress as authority for denying Congress access to departmental records. In order to further clarify its intent, the Congress in 1958 added the following sentence:
This section does not authorize withholding information from the public or limiting the availability to the public.
All other regulations concerning the disclosure of government papers are only administrative regulations established by executive order. In fact, our system of classification in the U.S. was not established by law through an act of Congress. It was created by the President, and applies only to the employees of the Executive Branch of Government. It defies all legal principle when the internal regulations of the Executive Branch of Government should supercede the Constitution, the intent of Congress implied in statutory law and the precedents of the Judiciary. Clearly, the principle of withholding documents and information is a dubious and illegal activity when practiced by the Executive.
In deference to Professor Freund, I must conclude that the disclosure of information by the President is not only the moral thing to do, but also, the legal thing to do.
An administration which has pledged itself to strict constructionism has seriously compromised itself by indulging in affairs of questionable constitutionality, i.e. impoundment of Congressionally appropriated funds, executive privilege, the pocket veto, the abuse of the war powers in the Cambodian war. The administration should now face the same legal constraints all citizens are expected to live by. Steven Mednick
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