Annotation 14 - Article II

Clause 3. Vacancies during Recess of Senate

Recess Appointments

Setting out from the proposition that the very nature of the executive power requires that it shall always be ''in capacity for action,'' Attorneys General early came to interpret ''happen'' to mean ''happen to exist,'' and long continued practice securely establishes this construction. It results that whenever a vacancy may have occurred in the first instance, or for whatever reason, if it still continues after the Senate has ceased to sit and so cannot be consulted, the President may fill it in the way described. 508 But a Senate ''recess'' does not include holidays, or very brief temporary adjourn ments, 509 while by an act of Congress, if the vacancy existed when the Senate was in session, the ad interim appointee, subject to certain exemptions, may receive no salary until he has been confirmed by the Senate. 510  

Judicial Appointments .--Federal judges clearly fall within the terms of the recess-appointments clause. But, unlike with other offices, a problem exists. Article III judges are appointed ''during good behavior,'' subject only to removal through impeachment. A judge, however, who is given a recess appointment may be ''removed'' by the Senate's failure to advise and consent to his appointment; moreover, on the bench, prior to Senate confirmation, she may be subject to influence not felt by other judges. Nonetheless, a constitutional attack upon the status of a federal district judge, given a recess appointment and then withdrawn as a nominee, was rejected by a federal court. 511  

Ad Interim Designations .--To be distinguished from the power to make recess appointments is the power of the President to make temporary or ad interim designations of officials to perform the duties of other absent officials. Usually such a situation is provided for in advance by a statute which designates the inferior officer who is to act in place of his immediate superior. But in the lack of such provision, both theory and practice concede the President the power to make the designation. 512  

The Removal Power

The Myers Case .--Save for the provision which it makes for a power of impeachment of ''civil officers of the United States,'' the Constitution contains no reference to a power to remove from office, and until its decision in Myers v. United States, 513 on October 25, 1926, the Supreme Court had contrived to side-step every occasion for a decisive pronouncement regarding the removal power, its extent, and location. The point immediately at issue in the Myers case was the effectiveness of an order of the Postmaster General, acting by direction of the President, to remove from office a first-class postmaster, in the face of the following provision of an act of Congress passed in 1876: ''Postmasters of the first, second, and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate, and shall hold their offices for four years unless sooner removed or suspended according to law.'' 514  

A divided Court, speaking through Chief Justice Taft, held the order of removal valid and the statutory provision just quoted void. The Chief Justice's main reliance was on the so-called ''decision of 1789,'' the reference being to Congress' course that year in inserting in the act establishing the Department of State a proviso which was meant to imply recognition that the Secretary would be removable by the President at will. The proviso was especially urged by Madison, who invoked in support of it the opening words of Article II and the President's duty to ''take care that the laws be faithfully executed.'' Succeeding passages of the Chief Justice's opinion erected on this basis a highly selective account of doctrine and practice regarding the removal power down to the Civil War, which was held to yield the following results: ''That article II grants to the President the executive power of the Government, i.e., the general administrative control of those executing the laws, including the power of appointment and removal of executive officers--a conclusion confirmed by his obligation to take care that the laws be faithfully executed; that article II excludes the exercise of legislative power by Congress to provide for appointments and removals, except only as granted therein to Congress in the matter of inferior offices; that Congress is only given power to provide for appointments and removals of inferior officers after it has vested, and on condition that it does vest, their appointment in other authority than the President with the Senate's consent; that the provisions of the second section of Article II, which blend action by the legislative branch, or by part of it, in the work of the executive, are limitations to be strictly construed and not to be extended by implication; that the President's power of removal is further established as an incident to his specifically enumerated function of appointment by and with the advice of the Senate, but that such incident does not by implication extend to removals the Senate's power of checking appointments; and finally that to hold otherwise would make it impossible for the President, in case of political or other differences with the Senate or Congress, to take care that the laws be faithfully executed.'' 515  

The holding in the Myers case boils down to the proposition that the Constitution endows the President with an illimitable power to remove all officers in whose appointment he has participated with the exception of judges of the United States. The motivation of the holding was not, it may be assumed, any ambition on the Chief Justice's part to set history aright--or awry. 516 Rather, it was the concern that he voiced in the following passage in his opinion: ''There is nothing in the Constitution which permits a distinction between the removal of the head of a department or a bureau, when he discharges a political duty of the President or exercises his discretion, and the removal of executive officers engaged in the discharge of their other normal duties. The imperative reasons requiring an unrestricted power to remove the most important of his subordinates in their most important duties must, therefore, control the interpretation of the Constitution as to all appointed by him.'' 517 Thus spoke the former President Taft, and the result of his prepossession was a rule which, as was immediately pointed out, exposed the so-called ''independent agencies,'' the Interstate Commerce Commission, the Federal Trade Commission, and the like, to presidential domination.Unfortunately, the Chief Justice, while professing to follow Madison's leadership, had omitted to weigh properly the very important observation which the latter had made at the time regarding the office of Comptroller of the Treasury. ''The Committee,'' said Madison, ''has gone through the bill without making any provision respecting the tenure by which the comptroller is to hold his office. I think it is a point worthy of consideration, and shall, therefore, submit a few observations upon it. It will be necessary to consider the nature of this office, to enable us to come to a right decision on the subject; in analyzing its properties, we shall easily discover they are of a judiciary quality as well as the executive; perhaps the latter obtains in the greatest degree. The principal duty seems to be deciding upon the lawfulness and justice of the claims and accounts subsisting between the United States and particular citizens: this partakes strongly of the judicial character, and there may be strong reasons why an officer of this kind should not hold his office at the pleasure of the executive branch of the government.'' 518 In Humphrey's Executor v. United States, 519 the Court seized upon ''the nature of the office'' concept and applied it as a corrective to the overbroad Myers holding.

The Humphrey Case .--The material element of this case was that Humphrey, a member of the Federal Trade Commission, was on October 7, 1933, notified by President Roosevelt that he was ''removed'' from office, the reason being their divergent views of public policy. In due course, Humphrey sued for salary. Distinguishing the Myers case, Justice Sutherland, speaking for the unanimous Court, said: ''A postmaster is an executive officer restricted to the performance of executive functions. He is charged with no duty at all related to either the legislative or judicial power. The actual decision in the Myers case finds support in the theory that such an office is merely one of the units in the executive department and, hence, inherently subject to the exclusive and illimitable power of removal by the Chief Executive, whose subordinate and aide he is. . . . It goes no farther; much less does it include an officer who occupies no place in the executive department and who exercises no part of the executive power vested by the Constitution in the President.

''The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied in the statute. . . . Such a body cannot in any proper sense be characterized as an arm or eye of the executive. Its duties are performed without executive leave and, in the contemplation of the statute, must be free from executive control. . . . We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named, [the Interstate Commerce Commission, the Federal Trade Commission, the Court of Claims]. The authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime. For it is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter's will. . . .

''The result of what we now have said is this: Whether the power of the President to remove an officer shall prevail over the authority of Congress to condition the power by fixing a definite term and precluding a removal except for cause, will depend upon the character of the office; the Myers decision, affirming the power of the President alone to make the removal, is confined to purely executive officers; and as to officers of the kind here under consideration, we hold that no removal can be made during the prescribed term for which the officer is appointed, except for one or more of the causes named in the applicable statute.'' 520  

The Wiener Case .--Curtailment of the President's power of removal, so liberally delineated in the Myers decision, was not to end with the Humphrey case. Unresolved by the latter was the question whether the President, absent a provision expressly delimiting his authority in the statute creating an agency endowed with quasi-judicial functions, remained competent to remove members serving thereon. To this query the Court supplied a negative answer in Wiener v. United States. 521 Emphasizing therein that the duties of the War Claims Commission were wholly adjudicatory and its determinations, final and exempt from review by any other official or judicial body, the Court unanimously concluded that inasmuch as the President was unable to supervise its activities, he lacked the power, independently of statutory authorization, to remove a commissioner serving thereon whose term expired with the life of that agency.

The Watergate Controversy .--A dispute arose regarding the discharge of the Special Prosecutor appointed to investigate and prosecute violations of law in the Watergate matter. Congress vested in the Attorney General the power to conduct the criminal litigation of the Federal Government, 522 and it further authorized him to appoint subordinate officers to assist him in the discharge of his duties. 523 Pursuant to presidential direction, the Attorney General designated a Watergate Special Prosecutor with broad power to investigate and prosecute offenses arising out of the Watergate break-in, the 1972 presidential election, and allegations involving the President, members of the White House staff, or presidential appointees. He was to remain in office until a date mutually agreed upon between the Attorney General and himself, and the regulations provided that the Special Prosecutor ''will not be removed from his duties except for extraordinary improprieties on his part.'' 524 On October 20, following the resignations of the Attorney General and the Deputy Attorney General, the Solicitor General as Acting Attorney General formally dismissed the Special Prosecutor 525 and three days later rescinded the regulation establishing the office. 526 In subsequent litigation, it was held, by a federal district court, that the firing by the Acting Attorney General had vio lated the regulations, which were in force at the time and which had to be followed until they were rescinded. 527 The Supreme Court in United States v. Nixon 528 seemed to confirm this analysis by the district court in upholding the authority of the new Special Prosecutor to take the President to court to obtain evidence in the President's possession. Left unsettled were two questions, the power of the President himself to go over the heads of his subordinates and to fire the Special Prosecutor himself, whatever the regulations said, and the power of Congress to enact legislation establishing an Office of Special Prosecutor free from direction and control of the President. 529 When Congress acted to create an office, first called the Special Prosecutor and then the Independent Counsel, resolution of the question became necessary.

The Removal Power Rationalized .-- The tension that had long been noticed between Myers and Humphrey's Executor, at least in terms of the language used in those cases but also to some extent in their holdings, appears to have been ameliorated by two decisions, which purport to reconcile the cases but, more important, purport to establish, in the latter case, a mode of analysis for resolving separation-of-powers disputes respecting the removal of persons appointed under the appointments clause. 530 Myers actually struck down only a law involving the Senate in the removal of postmasters, but the broad- ranging opinion had long stood for the proposition that inherent in the President's obligation to see to the faithful execution of the laws was his right to remove any executive officer as a means of discipline. Humphrey's Executor had qualified this proposition by upholding ''for cause'' removal restrictions for members of independent regulatory agencies, at least in part on the assertion that they exercised ''quasi- '' legislative and adjudicative functions as well as some form of executive function. Maintaining the holding of the latter case was essential to retaining the independent agencies, but the emphasis upon the execution of the laws as a core executive function in recent cases had cast considerable doubt on the continuing validity of Humphrey's Executor.

In Bowsher v. Synar, 531 the Court held that when Congress itself retains the power to remove an official it could not vest him with the exercise of executive power. Invalidated in Synar were provisions of the l985 ''Gramm-Rudman-Hollings'' Deficit Control Act 532 vesting in the Comptroller General authority to prepare a detailed report on projected federal revenue and expenditures and to determine mandatory across-the-board cuts in federal expenditures necessary to reduce the projected budget deficit by statutory targets. By a 1921 statute, the Comptroller General was removable by joint congressional resolution for, inter alia, ''inefficiency,'' ''neglect of duty,'' or ''malfeasance.'' ''These terms are very broad,'' the Court noted, and ''could sustain removal of a Comptroller General for any number of actual or perceived transgressions of the legislative will.'' Consequently, the Court determined, ''the removal powers over the Comptroller General's office dictate that he will be subservient to Congress.'' 533  

Relying expressly upon Myers, the Court concluded that ''Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment.'' 534 But Humphrey's Executor was also cited with approval, and to the contention that invalidation of this law would cast doubt on the status of the independent agencies the Court rejoined that the statutory measure of the independence of those agencies was the assurance of ''for cause'' removal by the President rather than congressional involvement as in the instance of the Comptroller General. 535 This reconciliation of Myers and Humphrey's Executor was made clear and express in Morrison v. Olson. 536  

That case sustained the independent counsel statute. 537 Under that law, the independent counsel, appointed by a special court upon application by the Attorney General, may be removed by the Attorney General ''only for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel's duties.'' Inasmuch as the counsel was clearly exercising ''purely'' executive duties, in the sense that term was used in Myers, it was urged that Myers governed and required the invalidation of the statute. But, said the Court, Myers stood only for the proposition that Congress could not involve itself in the removal of executive officers. Its broad dicta that the President must be able to remove at will officers performing ''purely'' executive functions had not survived Humphrey's Executor. It was true, the Court admitted, that, in the latter case, it had distinguished between ''purely'' executive officers and officers who exercise ''quasi-legislative'' and ''quasi- judicial'' powers in marking the line between officials who may be presidentially removed at will and officials who can be protected through some form of good cause removal limits. ''[B]ut our present considered view is that the determination of whether the Constitution allows Congress to impose a 'good cause'-type restriction on the President's power to remove an official cannot be made to turn on whether or not that official is classified as 'purely executive.' The analysis contained in our removal cases is designed not to define rigid categories of those officials who may or may not be removed at will by the President, but to ensure that Congress does not interfere with the President's exercise of the 'executive power' and his constitutionally appointed duty to 'take care that the laws be faithfully executed' under Article II. Myers was undoubtedly correct in its holding, and in its broader suggestion that there are some 'purely executive' officials who must be removable by the President at will if he is to be able to accomplish his constitutional role. . . . At the other end of the spectrum from Myers, the characterization of the agencies in Humphrey's Executor and Wiener as 'quasi-legislative' or 'quasi-judicial' in large part reflected our judgment that it was not essential to the President's proper execution of his Article II powers that these agencies be headed up by individuals who were removable at will. We do not mean to suggest that an analysis of the functions served by the officials at issue is irrelevant. But the real question is whether the removal restrictions are of such a nature that they impede the President's ability to perform his con stitutional duty, and the functions of the officials in question must be analyzed in that light.'' 538  

The Court discerned no compelling reason to find the good cause limit to interfere with the President's performance of his duties. The independent counsel did exercise executive, law-enforcement functions, but the jurisdiction and tenure of each counsel were limited in scope and policymaking or significant administrative authority was lacking. On the other hand, the removal authority did afford the President through the Attorney General power to ensure the ''faithful execution'' of the laws by assuring that the counsel is competently performing the statutory duties of the office.

It is now thus reaffirmed that Congress may not involve itself in the removal of officials performing executive functions. It is also established that, in creating offices in the executive branch and in creating independent agencies, Congress has considerable discretion in statutorily limiting the power to remove of the President or another appointing authority. It is evident on the face of the opinion that the discretion is not unbounded, that there are offices which may be essential to the President's performance of his constitutionally assigned powers and duties, so that limits on removal would be impermissible. There are no bright lines marking off one office from the other, but decision requires close analysis. 539  

As a result of these cases, the long-running controversy with respect to the legitimacy of the independent agencies appears to have been settled, 540 although it appears likely that the controversies with respect to congressional-presidential assertions of power in executive agency matters are only beginning.

Other Phases of Presidential Removal Power .--Congress may ''limit and restrict the power of removal as it deems best for the public interest'' in the case of inferior officers. 541 However, in the absence of specific legislative provision to the contrary, the President may remove at his discretion an inferior officer whose term is limited by statute, 542 or one appointed with the consent of the Senate. 543 He may remove an officer of the army or navy at any time by nominating to the Senate the officer's successor, provided the Senate approves the nomination. 544 In 1940, the President was sustained in removing Dr. E. A. Morgan from the chairmanship of TVA for refusal to produce evidence in substantiation of charges which he had levelled at his fellow directors. 545 Although no such cause of removal by the President was stated in the act creating TVA, the President's action, being reasonably required to promote the smooth functioning of TVA, was within his duty to ''take care that the laws be faithfully executed.'' So interpreted, it did not violate the principle of administrative independence.

The Presidential Aegis: Demands for Papers

Presidents have more than once had occasion to stand in a protective relation to their subordinates, assuming their defense in litigation brought against them 546 or pressing litigation in their behalf, 547 refusing a call for papers from one of the Houses of Congress which might be used, in their absence from the seat of government, to their disadvantage, 548 challenging the constitutional validity of legislation which he deemed detrimental to their interests. 549 One of the principal efforts throughout our history has been his efforts to spread his own official immunity to them, by resisting actions of the courts or of congressional committees to require divulgence of confidential communications from or to the President, that is, communications that Presidents choose to regard as confidential. Only recently, however, has the focus of the controversy shifted from protection of presidential or executive interests to protection of the President himself and the locus of the dispute shifted to the courts.

Following years in which claims of executive privilege were resolved one way or another on the basis of the political strengths of the parties, in primarily interbranch disputes, the issue was finally the subject of the first judicial elaboration of the doctrine to take place in our history; the doctrine of executive privilege was at once recognized as existing and having a constitutional foundation while at the same time it was definitely bounded in its assertion by the principle of judicial review. Because of these cases, because of the intensified congressional-presidential dispute, and especially because of the introduction of the issue into an impeachment proceeding, a somewhat lengthy treatment of the doctrine is called for.

Conceptually, the doctrine of executive privilege may well reflect different considerations in different factual situations. Congress may seek information within the possession of the President, either in effectuation of its investigatory powers to oversee the conduct of officials of the Executive Branch or in effectuation of its power to impeach the President, Vice President, or civil officers of the Government. Private parties may seek information in the possession of the President either in civil litigation with the Government or in a criminal proceeding brought by government prosecutors. Generally, the categories of executive privilege have been the same whether it is Congress or a private individual seeking the information, but it is possible that the congressional assertion of need may over-balance the presidential claim to a greater degree than that of a private individual. The judicial precedents are so meager yet that it is not possible so to state, however.

The doctrine of executive privilege defines the authority of the President to withhold documents or information in his possession or in the possession of the executive branch from compulsory process of the legislative or judicial branch of the government. The Constitution does not expressly confer upon the Executive Branch any such privilege, but it has been claimed that the privilege derives from the constitutional provision of separation of powers and from a necessary and proper concept respecting the carrying out of the duties of the presidency imposed by the Constitution. Historically, assertion of the doctrine has been largely confined to the areas of foreign relations, military affairs, pending investigations, and intragovernmental discussions. 550 The current and ongoing litiga tion involved, of course, the claim of confidentiality of conversations between the President and his aides.

Private Access to Government Information .--Private parties may seek to obtain information from the Government either to assist in defense to criminal charges brought by the Government or in civil cases to use in either a plaintiff's or defendant's capacity in suits with the Government or between private parties. 551 In criminal cases, a defendant is guaranteed compulsory process to obtain witnesses by the Sixth Amendment and by the due process clause is guaranteed access to relevant exculpatory information in the possession of the prosecution. 552 Generally speaking, when the prosecution is confronted with a judicial order to turn over information to a defendant that it does not wish to make available, the prosecution has the option of dropping the prosecution and thus avoiding disclosure, 553 but that alternative may not always be available; in the Watergate prosecution, only by revoking the authority of the Special Prosecutor and bringing the cases back into the confines of the Department of Justice could this possibility have been realized. 554  

The civil type of case is illustrated in United States v. Reynolds, 555 a tort claim brought against the United States for compensation for the deaths of civilians in the crash of an Air Force plane testing secret electronics equipment. Plaintiffs sought discovery of the Air Force's investigation report on the accident, and the Government resisted on a claim of privilege as to the nondisclosure of military secrets. The Court accepted the Government's claim, holding that courts must determine whether under the circumstances the claim of privilege was appropriate without going so far as to force disclosure of the thing the privilege is designed to protect. The showing of necessity of the private litigant for the information should govern in each case how far the trial court should probe; where the necessity is strong, the court should require a strong showing of the appropriateness of the privilege claim but once satisfied of the appropriateness no matter how compelling the need the privilege prevails. 556  

Prosecutorial and Grand Jury Access to Presidential Documents .-- Rarely will there be situations when federal prosecutors or grand juries seek information under the control of the President, since he has ultimate direction of federal prosecuting agencies, but the Watergate Special Prosecutor, being in a unique legal situation, was held able to take the President to court to enforce subpoenas for tape recordings of presidential conversations and other documents relating to the commission of criminal actions. 557 While holding that the subpoenas were valid and should be obeyed, the Supreme Court recognized the constitutional status of execu tive privilege, insofar as the assertion of that privilege relates to presidential conversations and indirectly to other areas as well.

Presidential communications, the Court said, have ''a presumptive privilege.'' ''The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution.'' The operation of government is furthered by the protection accorded communications between high government officials and those who advise and assist them in the performance of their duties. ''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.'' The separation-of-powers basis derives from the conferral upon each of the branches of the Federal Government of powers to be exercised by each of them in great measure independent of the other branches. The confidentiality of presidential conversations flows then from the effectuation of enumerated powers. 558  

However, the Court continued, the privilege is not absolute. The federal courts have the power to construe and delineate claims arising under express and implied powers. Deference is owed the constitutional decisions of the other branches, but it is the function of the courts to exercise the judicial power, ''to say what the law is.'' The Judicial Branch has the obligation to do justice in criminal prosecutions, which involves the employment of an adversary system of criminal justice in which all the probative facts, save those clearly privileged, are to be made available. Thus, while the President's claim of privilege is entitled to deference, the courts must when the claim depends solely on a broad, undifferentiated claim of confidentiality balance two sets of interests.

''In this case we must weigh the importance of the general privilege of confidentiality of presidential communications in performance of his responsibilities against the inroads of such a privilege on the fair administration of criminal justice. The interest in preserving confidentiality is weighty indeed and entitled to great respect. However we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution.

''On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President's acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. . . .

''We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.'' 559  

Obviously, this decision leaves much unresolved. It does recognize the constitutional status of executive privilege as a doctrine. It does affirm the power of the courts to resolve disputes over claims of the privilege. But it leaves unsettled just how much power the courts have to review claims of privilege to protect what are claimed to be military, diplomatic, or sensitive national security secrets. It does not indicate what the status of the claim of confidentiality of conversations is when it is raised in civil cases; nor does it touch upon denial of information to Congress.

Neither does the Court's decision in Nixon v. Administrator of General Services 560 elucidate any of these or other questions that may be raised to any great degree. In upholding the Presidential Recordings and Materials Preservation Act, which directed the Government to take custody of former President Nixon's records to be screened, catalogued, and processed by professional archivists, in GSA, the Court viewed the assertion of privilege as directed only to the facial validity of the requirement of screening by executive branch professionals and not at all to be related to the possible public disclosure of some of the records. The decision does go be yond the first decision's recognition of the overbalancing force of the necessity for disclosure in criminal trials to find ''comparable'' ''adequate justifications'' for congressional enactment of the law, including the preservation of the materials for legitimate historical and governmental purposes, the rationalization of preservation and access to public needs as well as each President's wishes, the preservation of the materials as a source for facilitating a full airing of the events leading to the former President's resignation for public and congressional understanding, and preservation for the light shed upon issues in civil or criminal litigation. While interestingly instructive, the decision may be so attuned to the narrow factual circumstances that led to the Act's passage as to leave the case of little value as precedent.

Congressional Access to Executive Branch Information .-- Presidents and Congresses have engaged in protracted disputes over provision of information from the former to the latter, but the basic thing to know is that most congressional requests for information are complied with. The disputes, however, have been colorful and varied. 561 The basic premise of the concept of executive privilege, as it is applied to resist requests for information from Congress as from private parties with or without the assistance of the courts, is found in the doctrine of separation of powers, the prerogative of each coequal branch to operate within its own sphere independent of control or direction of the other branches. In this context, the President then asserts that phase of the claim of privilege relevant to the moment, such as confidentiality of communications, protection of diplomatic and military secrets, preservation of investigative records. Counterpoised against this assertion of presidential privilege is the power of Congress to obtain information upon which to legislate, to oversee the carrying out of its legislation, to check and root out corruption and wrongdoing in the Executive Branch, involving both the legislating and appropriating function of Congress, and in the final analysis to impeach the President, the Vice President, and all civil officers of the Federal Government.

Until quite recently, all disputes between the President and Congress with regard to requests for information were settled in the political arena, with the result that few if any lasting precedents were created and only disputed claims were left to future argument. The Senate Select Committee on Presidential Campaign Activities, however, elected to seek a declaratory judgment in the courts with respect to the President's obligations to obey its subpoenas. The Committee lost its case, but the courts based their rulings upon prudential considerations rather than upon questions of basic power, inasmuch as by the time the case was considered impeachment proceedings were pending in the House of Representatives. 562 The House Judiciary Committee subpoenas were similarly rejected by the President, but instead of going to the courts for enforcement the Committee adopted as one of its Articles of Impeachment the refusal of the President to honor its subpoenas. 563 Congress has considered bills by which Congress would authorize congressional committees to go to court to enforce their subpoenas; the bills did not purport to define executive privilege, although some indicate a standard by which the federal court is to determine whether the material sought is lawfully being withheld from Congress. 564 The controversy gives little indication at the present time of abating, and it may be assumed that whenever the Executive and Congress are controlled by different political parties there will be persistent conflicts. One may similarly assume that the alteration of this situation would only reduce but not remove the disagreements.


[Footnote 508] See the following Ops. Atty. Gen.: 1:631 (1823); 2:525 (1832); 3:673 (1841); 4:523 (1846); 10:356 (1862); 11:179 (1865); 12:32 (1866); 12:455 (1868); 14:563 (1875); 15:207 (1877); 16:523 (1880); 18:28 (1884); 19:261 (1889); 26:234 (1907); 30:314 (1914); 33:20 (1921). In 4 Ops. Atty. Gen. 361, 363 (1845), the general doctrine was held not to apply to a yet unfilled office which was created during the previous session of Congress, but this distinction was rejected in the following Ops. Atty. Gen.: 12:455 (1868); 18:28 (1884); and 19:261 (1889). In harmony with the opinions is United States v. Allocco, 305 F.2d 704 (2d Cir. 1962). For the early practice with reference to recess appointments, see 2 G. Haynes, The Senate of the United States, (Boston: 1938), 772-778.

[Footnote 509] 23 Ops. Atty. Gen. 599 (1901); 22 Ops. Atty. Gen. 82 (1898). How long a ''recess'' must be to be actually a recess, a question here as in the pocket veto area, is uncertain. 3 O. L. C. 311, 314 (1979). A ''recess,'' however, may be merely ''constructive,'' as when a regular session succeeds immediately upon a special session. It was this kind of situation that gave rise to the once famous Crum incident. See 3 W. Willoughby, op. cit., n.294, 1508-1509.

[Footnote 510] 5 U.S.C. Sec. 5503. The provision has been on the books, in somewhat stricter form, since 12 Stat. 646 (1863).

[Footnote 511] United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985) (en banc), cert. den., 475 U.S. 1048 (1986). The opinions in the court of appeals provide a wealth of data on the historical practice of giving recess appointments to judges, including the developments in the Eisenhower Administration, when three Justices, Warren, Brennan, and Stewart, were so appointed and later confirmed after participation on the Court. The Senate in 1960 adopted a ''sense-of-the-Senate'' resolution suggesting the practice was not a good idea. 106 Cong. Rec. 18130-18145 (1960).

[Footnote 512] See the following Ops. Atty. Gen.: 6:358 (1854); 12:32, 41 (1866); 25:258 (1904); 28:95 (1909); 38:298 (1935).

[Footnote 513]   272 U.S. 52 (1926).

[Footnote 514] 19 Stat. 78, 80.

[Footnote 515] Id., 272 U.S., 163-164.

[Footnote 516] The reticence of the Constitution respecting removal left room for four possibilities: first, the one suggested by the common law doctrine of ''estate in office,'' from which the conclusion followed that the impeachment power was the only power of removal intended by the Constitution; second, that the power of removal was an incident of the power of appointment and hence belonged, at any rate in the absence of legal or other provision to the contrary, to the appointing authority; third, that Congress could, by virtue of its power ''to make all laws which shall be necessary and proper,'' etc., determine the location of the removal power; fourth, that the President by virtue of his ''executive power'' and his duty ''to take care that the laws be faithfully executed,'' possesses the power of removal over all officers of the United States except judges. In the course of the debate on the act to establish a Department of Foreign Affairs (later changed to Department of State) all of these views were put forward, with the final result that a clause was incorporated in the measure that implied, as pointed out above, that the head of the department would be removable by the President at his discretion. Contemporaneously, and indeed until after the Civil War, this action by Congress, in other words ''the decision of 1789,'' was interpreted as establishing ''a practical construction of the Constitution'' with respect to executive officers appointed without stated terms. However, in the dominant opinion of those best authorized to speak on the subject, the ''correct interpretation'' of the Constitution was that the power of removal was always an incident of the power of appointment, and that therefore in the case of officers appointed by the President with the advice and consent of the Senate the removal power was exercisable by the President only with the advice and consent of the Senate. For an extensive review of the issue at the time of Myers, see Corwin, The President's Removal Power Under the Constitution, in 4 Selected Essays on Constitutional Law (Chicago: 1938), 1467.

[Footnote 517] Id., 272 U.S., 134. Note the parallelism of the arguments from separation-of-powers and the President's ability to enforce the laws in the decision rendered on Congress' effort to obtain a role in the actual appointment of executive officers in Buckley v. Valeo, 424 U.S. 1, 109 -143 (1976), and in many of the subsequent separation-of- powers decisions.

[Footnote 518] Annals of Congress 611-612 (1789).

[Footnote 519]   295 U.S. 602 (1935). The case is also styled Rathbun, Executor v. United States, Humphrey having, like Myers before him, died in the course of his suit for salary. Proponents of strong presidential powers long argued that Humphrey's Executor, like A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), both cases argued and decided contemporaneously, reflected the anti-New Deal views of a conservative Court and wrongfully departed from Myers. See Scalia, Historical Anomalies in Administrative Law, 1985 Yearbook of the Supreme Court Historical Society 103, 106-110. Now-Justice Scalia continues to adhere to his views and to Myers. Morrison v. Olson, 487 U.S. 654, 697 , 707-711, 723-727 (1988) (dissenting).

[Footnote 520] Id., 295 U.S., 627-629, 631-632. Justice Sutherland's statement, quoted above, that a Federal Trade Commissioner ''occupies no place in the executive department'' was not necessary to the decision of the case, was altogether out of line with the same Justice's reasoning in Springer v. Philippine Islands, 277 U.S. 189, 201 -202 (1928), and seems later to have caused the author of it much perplexity. See R. Cushman, The Independent Regulatory Commission (New York: 1941), 447- 448. As Professor Cushman adds: ''Every officer and agency created by Congress to carry laws into effect is an arm of Congress. . . . The term may be a synonym; it is not an argument.'' Id., 451.

[Footnote 521]   357 U.S. 349 (1958).

[Footnote 522] 28 U.S.C. Sec. 516.

[Footnote 523] 28 U.S.C. Sec. Sec. 509, 510, 515, 533.

[Footnote 524] 38 Fed. Reg. 14688 (1973). The Special Prosecutor's status and duties were the subject of negotiation between the Administration and the Senate Judiciary Committee. Nomination of Elliot L. Richardson to be Attorney General, Hearings before the Senate Judiciary Committee, 93d Congress, 1st sess. (1973), 143 passim.

[Footnote 525] The formal documents effectuating the result are set out in 9 Wkly. Comp. of Pres. Docs. 1271-1272 (1973).

[Footnote 526] 38 Fed. Reg. 29466 (1973). The Office was shortly recreated and a new Special Prosecutor appointed. 38 Fed. Reg. 30739, as amended by 38 Fed. Reg. 32805. See Nomination of William B. Saxbe to be Attorney General, Hearings before the Senate Judiciary Committee, 93d Congress, 1st sess. (1973).

[Footnote 527] Nader v. Bork, 366 F. Supp. 104 (D.D.C. 1973).

[Footnote 528]   418 U.S. 683, 692 -697 (1974).

[Footnote 529] The first question remained unstated, but the second issue was extensively debated in Special Prosecutor, Hearings before the Senate Judiciary Committee, 93d Congress, 1st sess. (1973); Special Prosecutor and Watergate Grand Jury Legislation, Hearings before the House Judiciary Subcommittee on Criminal Justice, 93d Congress, 1st sess. (1973).

[Footnote 530] Bowsher v. Synar, 478 U.S. 714 (1986); Morrison v. Olson, 487 U.S. 654 (1988). This is not to say that the language and analytical approach of Synar are not in conflict with that of Morrison; it is to say that the results are consistent and the analytical basis of the latter case does resolve the ambiguity present in some of the reservations in Synar.

[Footnote 531]   478 U.S. 714 (1986).

[Footnote 532] The Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. 99-177, 99 Stat. 1038.

[Footnote 533] Id., 478 U.S., 729, 730. ''By placing the responsibility for execution of the . . . Act in the hands of an officer who is subject to removal only by itself, Congress in effect has retained control over the execution of the Act and has intruded into the executive function.'' Id., at 734. Because the Act contained contingency procedures for implementing the budget reductions in the event that the primary mechanism was invalidated, the Court rejected the suggestion that it should invalidate the 1921 removal provision rather than the Deficit Act's conferral of executive power in the Comptroller General. To do so would frustrate congressional intention and significantly alter the Comptroller General's office. Id., 734-36.

[Footnote 534] Id., 726.

[Footnote 535] Id., 725 n. 4.

[Footnote 536]   487 U.S. 654 (1988).

[Footnote 537] Pub. L. 95-521, title VI, 92 Stat. 1867, as amended by Pub. L. 97-409, 96 Stat. 2039, and Pub. L. 100-191, 101 Stat. 1293, 28 U.S.C. Sec. Sec. 49, 591 et seq.

[Footnote 538] Id., 487 U.S., 685-93.

[Footnote 539] But notice the analysis followed by three Justices in Public Citizen v. Department of Justice, 491 U.S. 440, 467 , 482-489 (1989) (concurring), and consider the possible meaning of the recurrence to formalist reasoning in Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 , (1989). And see Justice Scalia's utilization of the ''take care'' clause in pronouncing limits on Congress' constitutional power to confer citizen standing in Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2142-2146 (1992), although it is not clear that he had a majority of the Court with him.

[Footnote 540] Indeed, the Court explicitly analogized the civil enforcement powers of the independent agencies to the prosecutorial powers wielded by the independent counsel. Morrison v. Olson, 487 U.S. 654, 692 n. 31 (1988).

[Footnote 541] United States v. Perkins, 116 U.S. 483 (1886), cited with approval in Myers v. United States, 272 U.S. 52, 161 -163, 164 (1926), and Morrison v. Olson, 487 U.S. 654, 689 n. 27 (1988).

[Footnote 542] Parsons v. United States, 167 U.S. 324 (1897).

[Footnote 543] Shurtleff v. United States, 189 U.S. 311 (1903).

[Footnote 544] Blake v. United States, 103 U.S. 227 (1881); Quackenbush v. United States, 177 U.S. 20 (1900); Wallace v. United States, 257 U.S. 541 (1922).

[Footnote 545] Morgan v. TVA, 28 F. Supp. 732 (D.E.D. Tenn. 1939), affd., 115 F. 2d 990 (6th Cir. 1940), cert. den. 312 U.S. 701 (1941).

[Footnote 546] E.g., 6 Ops. Atty. Gen. 220 (1853); In re Neagle, 135 U.S. 1 (1890).

[Footnote 547] United States v. Lovett, 328 U.S. 303 (1946).

[Footnote 548] E.g., 2 J. Richardson, op. cit., n.42, 847.

[Footnote 549] United States v. Lovett, 328 U.S. 303, 313 (1946).

[Footnote 550] For a good statement of the basis of the doctrine, the areas in which it is asserted, and historical examples, see Executive Privilege: The Withholding of Information by the Executive, Hearings before the Senate Judiciary Subcommittee on Separation of Powers, 92d Congress, 1st sess. (1971), 420-443, (then-Assistant Attorney General Rehnquist). Former Attorney General Rogers, in stating the position of the Eisenhower Administration, identified five categories of executive privilege: (1) military and diplomatic secrets and foreign affairs, (2) information made confidential by statute, (3) information relating to pending litigation, and investigative files and reports, (4) information relating to internal government affairs privileged from disclosure in the public interest, and (5) records incidental to the making of policy, including interdepartmental memoranda, advisory opinions, recommendations of subordinates, and informal working papers. The Power of the President To Withhold Information from the Congress, Memorandum of the Attorney General, Senate Judiciary Subcommittee on Constitutional Rights, 85th Congress, 2d sess. (Comm. Print) (1958), reprinted as Rogers, Constitutional Law: The Papers of the Executive Branch, 44 A.B.A.J. 941 (1958). In the most expansive version of the doctrine, Attorney General Kleindeinst argued that the President could assert the privilege as to any employee of the Federal Government to keep secret any information at all. Executive Privilege, Secrecy in Government, Freedom of Information, Hearings before the Senate Government Operations Subcommittee on Intergovernmental Relations, 93d Congress, 1st sess. (1973), I:18 passim. For a strong argument that the doctrine lacks any constitutional or other legal basis, see R. Berger, Executive Privilege: A Constitutional Myth (Cambridge: 1974). The book, however, precedes the Court decision in Nixon.

[Footnote 551] There are also, of course, instances of claimed access for other purposes, for which the Freedom of Information Act, 80 Stat. 383 (1966), 5 U.S.C. Sec. 552, provides generally for public access to governmental documents. In 522(b), however, nine types of information are exempted from coverage, several of which relate to the types as to which executive privilege has been asserted, such as matter classified pursuant to executive order, interagency or intra-agency memoranda or letters, and law enforcement investigatory files. See, e.g., EPA v. Mink, 410 U.S. 73 (1973); FTC v. Grolier, Inc., 462 U.S. 19 (1983); CIA v. Sims, 471 U.S. 159 (1985); John Doe Agency v. John Doe Corp., 493 U.S. 146 (1989); Vaughn v. Rosen, 484 F. 2d 820 (D.C.Cir. 1973), cert. den., 415 U.S. 977 (1974).

[Footnote 552] See Brady v. Maryland, 373 U.S. 83 (1963), and Rule 16, Federal Rules of Criminal Procedure. The earliest judicial dispute involving what later became known as executive privilege arose in United States v. Burr, 25 F. Cas. 30 and 187 (C.C.D. Va. 1807), in which defendant sought certain exculpatory material from President Jefferson. Dispute continues with regard to the extent of presidential compliance, but it appears that the President was in substantial compliance with outstanding orders if not in full compliance.

[Footnote 553] E.g., Alderman v. United States, 394 U.S. 165 (1968).

[Footnote 554] Thus, defendant in United States v. Ehrlichman, 376 F. Supp. 29 (D.C.D.C. 1974), was held entitled to access to material in the custody of the President wherein the President's decision to dismiss the prosecution would probably have been unavailing.

[Footnote 555]   345 U.S. 1 (1953).

[Footnote 556] Id., 7-8, 9-10, 11. Withholding of information relating to governmental employees' clearances, disciplines, or discharges often raise claims of such privilege. E.g., Webster v. Doe, 486 U.S. 592 (1988); U. S.Dept. of the Navy v. Egan, 484 U.S. 518 (1988). After the Court approved and implemented a governmental secrecy agreement with some of its employees, Snepp v. United States, 444 U.S. 507 (1980), the Government expanded its secrecy program with respect to classified and ''classifiable'' information. When Congress sought to curb this policy, the Reagan Administration convinced a federal district judge to declare the restrictions void as invasive of the President constitutional power to manage the executive. National Federation of Federal Employees v. United States, 688 F.Supp. 671 (D.D.C.), vacated and remanded sub nom., American Foreign Service Assn. v. Garfinkel, 490 U.S. 153 (1989). For similar assertions in the context of plaintiffs suing the Government for interference with their civil and political rights during the protests against the Vietnam War, in which the plaintiffs were generally denied the information in the possession of the Government under the state- secrets privilege, see Halkin v. Helms, 598 F.2d 1 (D.C.Cir. 1978); Id., 690 F.2d 977 (D.C.Cir. 1982); Ellsberg v. Mitchell, 709 F.2d 51 (D.C.Cir. 1983). For review and analysis, see Quint, The Separation of Powers Under Carter, 62 Tex. L. Rev. 785, 875-880 (1984). And see Totten v. United States, 92 U.S. 105 (1875).

[Footnote 557] United States v. Nixon, 418 U.S. 683, 692 -697 (1974).

[Footnote 558] Id., 707-708. Presumably, the opinion recognizes a similar power existent in the federal courts to preserve the confidentiality of judicial deliberations, cf. New York Times Co. v. United States, 403 U.S. 713, 752 n. 3 (1971) (Chief Justice Burger dissenting), and in each House of Congress to treat many of its papers and documents as privileged. Cf. Soucie v. David, 448 F. 2d 1067, 1080, 1081-1982 (C.A.D.C. 1971) (Judge Wilkey concurring); Military Cold War Escalation and Speech Review Policies, Hearings before the Senate Committee on Armed Services, 87th Congress, 2d sess. (1962), 512 (Senator Stennis). See Calley v. Callaway, 519 F. 2d 184 (5th Cir., 1975) (en banc), cert. den., 425 U.S. 911 (1976); United States v. Ehrlichman, 389 F. Supp. 95 (D.D.C., 1974).

[Footnote 559]   418 U.S. 683, 711 -713. Essentially the same decision had been arrived at in the context of subpoenas of tapes and documentary evidence for use before a grand jury in Nixon v. Sirica, 487 F. 2d 700 (D.C.Cir. 1973).

[Footnote 560]   433 U.S. 425, 446 -455 (1977). See id., 504, 545 (Chief Justice Burger and Justice Rehnquist dissenting). The decision does resolve one outstanding question; assertion of the privilege is not limited to incumbent Presidents. Id., 447-449. Subsequently, a court held that former-President Nixon had had such a property expectancy in his papers that he was entitled to compensation for their seizure under the Act. Nixon v. United States, 978 F.2d 1269 (D.C.Cir. 1992).

[Footnote 561] See the extensive discussion in Shane, Legal Disagreement and Negotiation in a Government of Laws: The Case of Executive Privilege Claims Against Congress, 71 Minn. L. Rev. 461 (1987).

[Footnote 562] Senate Select Committee on Presidential Campaign Activities v. Nixon, 370 F. Supp. 521 (D.D.C.), affd., 498 F. 2d 725 (D.C.Cir. 1974).

[Footnote 563] President Nixon's position was set out in a June 9, 1974, letter to the Chairman of the House Judiciary Committee. 10 Wkly. Comp. Pres. Docs. 592 (1974). The impeachment article and supporting material are set out in H. Rept. No. 93-1305, 93d Cong., 2d sess. (1974).

[Footnote 564] For consideration of various proposals by which Congress might proceed, see Hamilton & Grabow, A Legislative Proposal for Resolving Executive Privilege Disputes Precipitated by Congressional Subpoenas, 21 Harv. J. Legis. 145 (1984); Brand & Connelly, Constitutional Confrontations: Preserving a Prompt and Orderly Means by Which Congress May Enforce Investigative Demands Against Executive Branch Officials, 36 Cath. U. L. Rev. 71 (1986); Note, The Conflict Between Executive Privilege and Congressional Oversight: The Gorsuch Controversy, 1983 Duke L. J. 1333.

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