Washington cover-up

William Pierce Rogers was nominated to be United States Attorney General in the fall of 1957. He had served as Deputy Attorney General under Herbert Brownell from the time the Eisenhower administration came to power in January 1953. When he was nominated for the top post, he was forty-five years old and had been included by President Eisenhower on a select list of bright young Republicans qualified as presidential or vice presidential timber for 1960. He was regarded as the closest friend of Vice President Richard Nixon.

The Senate Judiciary Committee hearing on the Rogers nomination had barely started on January 22, 1958, when Senator Estes Kefauver raised the question of the Eisenhower administration’s broad use of “executive privilege.”

“Mr. Rogers,” the Tennessee Senator said, “many of us in the Senate and in the House have been increasingly alarmed over the expansion of the pleading of privilege on information which congressional committees desire, and feel they have a right to have.”

Senator Kefauver explained the philosophy behind the need for full information in a democracy, and then moved to the specific problem:

“I think we all appreciate the fact that under the precedent that when the President has matters up with his Cabinet that he wants to withhold them from public inspection, he has that right; but we find here on numerous occasions when the arms of Congress—the Securities and Exchange Commission, the Federal Communications Commission, the Civil Aeronautics Board, and various and sundry agencies set up by the Congress to administer laws which our Congress has the prime responsibility for administering—they, themselves, are asserting the privilege and they are deciding whether they want to withhold the information or not—things the President does not even know anything about—so that committees of Congress are being hampered in their effort to get information.”

Senator Kefauver started to read from a report of the House Government Operations Committee: “The most flagrant abuse of the so-called legal authority is the misuse of the May 17, 1954, letter from the President to the Secretary of Defense at the time of the Army-McCarthy controversy.... It seems inconceivable that 19 Government departments and agencies would cite this letter as a shadowy cloak of authority to restrict or withhold information from the Congress and the public. This flimsy pretext of so-called legal authority only serves to demonstrate to what extent executive departments and agencies will go to restrict or withhold information.”

Senator Everett Dirksen, the Illinois Republican, interrupted to emphasize that it was a House committee report Senator Kefauver was reading, and that “I want to have that clear.”

Senator Kefauver continued: “We had a case here [meaning among Senate committees], where the head of the Securities and Exchange Commission pled privilege to his conversation with Sherman Adams, when apparently Mr. Adams was trying to get a hearing postponed in a quasi-legislative agency.

“We have a report by Senator Olin Johnston’s committee in which they take great exception to the pleading of privilege by Mr. [R. W. Scott] McLeod in the Ladejinsky case with which you are familiar. We had the Al Sarena [mining land grant] plea of privilege. We had some pleas of privilege in connection with Mr. Gordon Gray when he was dealing with rapid tax amortization, so it is getting to the point, Mr. Rogers, where not the President but any of these agencies ... anybody who does not want any information to be made public, just pleads privilege.”

Senator Dirksen intervened to volunteer comment “before the Attorney General replies, because I was a part of the proceeding on the McCarthy committee, and I was a part of the proceeding involving the Chairman of the Securities and Exchange Commission.”

“If it is all the same to Senator Dirksen, I had rather ask my questions, and you may ask them in your time,” Kefauver replied.

“I do not think there has been any great tendency [to secrecy] in the last few years,” Rogers said. “I was counsel for committees in ... 1947, 1948, and 1949 ... and I do not believe that the problems are much different now and then.”

Then Rogers sought to postpone further discussion. “I would like, I think maybe in the interest of time, to delay a full discussion of this, because I have agreed with Senator Hennings to appear before his committee to discuss this whole matter.”

Senator Kefauver said he would be glad to see the whole matter examined thoroughly by Senator Hennings, but added: “I do think at this time on such an important matter that you should give us some expression of your position, or what your position will be.”

“On the general subject matter,” Rogers began, “I believe in the value of congressional investigations.... I think they have contributed a great deal to the success of our country, and I think that the executive branch of the Government has the responsibility to make the information available to congressional committees to the fullest extent that it is possible to do so.

“On the other hand,” Rogers went on, “I think that the history of the country has indicated that there are exceptions, and that those exceptions have been recognized by each administration throughout history. I do not think that there is any reason why there should be much general disagreement, and I think if we had a chance to discuss those things in detail that probably our views would be pretty much the same.”

Senator Kefauver asked Rogers about the use of “executive privilege” by officials of the so-called independent regulatory agencies.

“Well,” Rogers said, “I think that possibly there ought to be an even greater attempt made to give all the information to Congress possible, in those agencies.... I think you can make mistakes of judgment if you generalize too much on those things, and I think there has been a tendency to do that.

“I remember debating the subject with Russ Wiggins ... he and Mr. Clark Mollenhoff have been the leaders, and when you get down to it there is not too much in the way of fact. There has been a lot of general observation, but I would like to come up, if you do not mind, and discuss this at length with Senator Hennings’ subcommittee.”

I knew that Russ Wiggins was well informed on the specific instances of arbitrary withholding. I had tried to discuss a number of specific cases with Rogers but always found him unavailable. Additionally, Senator Hennings had found some difficulty in getting an agreement from Rogers to appear before his Judiciary subcommittee.

“I had not quite understood from your last letter,” Senator Hennings told the nominee, “that you were willing to appear before the Constitutional Rights Subcommittee. You did not say that you would not [appear], but I did not quite understand you to say that you would.”

Rogers’ nomination was confirmed by the Senate, and by the time he appeared before the Hennings subcommittee six weeks later he had become the leading spokesman for the ultimate in secrecy under the claim of “executive privilege.” Rogers claimed that the executive branch of the government could properly refuse to give Congress any document that included any advice, recommendation, or conclusion. Although the Constitution says nothing about such a right, Rogers contended that the executive branch did have an “inherent right” to refuse to give testimony or produce records. He further contended that no law of Congress could force production of such records.

This in essence was the position he presented to the Constitutional Rights Subcommittee on March 6, 1958. In addition, smiling, back-patting Bill Rogers now also claimed that the so-called independent regulatory agencies—the FCC, ICC, SEC, CAB, FTC, and FPC—could exercise “executive privilege.” Such a position at the nomination hearing might have created serious problems on his confirmation, for at that time the House Legislative Oversight Subcommittee was engaged in the probe of White House and political influence on the regulatory agencies recounted in the foregoing chapter.

At issue when Rogers testified on March 6 was the question of whether the Congress should amend the “Housekeeping Statute” (5 U.S.C. 22) by stating that this statute covering custody of records could not be used as a justification for withholding records from Congress or the public. Rogers opposed the amendment but said that if it passed, it still could not interfere with the broad right he claimed under “executive privilege.”

When Representative George Meader, the Michigan Republican, learned of the Rogers testimony he was enraged. Meader and Rogers had both served as counsel for Senate investigating committees in the late 1940s, and Meader had firsthand knowledge of the investigations that Rogers conducted of the Truman administration. He also knew that Rogers had been sharply critical of secrecy in the Truman administration.

“Curious things seem to happen to individuals when they move from one end of Pennsylvania Avenue to the other,” said Representative Meader. He urged the Congress to “strike down” Rogers’ claim with legislation declaring specifically that records must be given to Congress. He referred to the “executive privilege” as “nonexistent imagery” which had no support in the Constitution, in the laws, or in the decisions of the federal courts. Throwing aside all political partisanship, Republican Meader told the House that if the Rogers doctrine prevailed the executive will “become the master, not the servant, of the people.”

Senator Thomas C. Hennings, whose subcommittee had heard the Rogers testimony, was equally alarmed. A few days after the hearings Hennings received a letter from Rogers designed “to clarify” his testimony. On March 6, Rogers had testified:

“Now I don’t recall any instance when Washington, Jefferson or Truman or anyone else ever relied upon this [the Housekeeping Statute] as a basis for ‘executive privilege’ for withholding information. It is something entirely different. This is a bookkeeping statute which says they keep the records, they hold them physically. It doesn’t relate at all to ‘executive privilege’.”

While stating that the Housekeeping Statute included no right to withhold information, Rogers in the same hearing admitted that it had been erroneously used by officials who had meant to use the “executive privilege” to keep government records secret.

In a letter that followed his testimony, however, Rogers completely reversed himself and stated that the Housekeeping Statute is “a legislative expression and recognition of the ‘executive privilege’.”

Hennings replied that Rogers’ letter of explanation was “incompatible” with his testimony. He said that Rogers’ letter was not only “inconsistent” from a legal standpoint, but “completely baffling when compared with his oral testimony. In almost two years of investigations and study of the subject of freedom of information,” Hennings continued, “I have come across a number of cases where various misguided, secrecy-minded executive department officials, eagerly seeking authority to justify withholding information from the Congress and the public have tortured the simple provisions of the [law] ... beyond all recognition. This interpretation now offered by the Attorney General in his letter surpasses all of these others so far.”

On the specific point at issue, Chairman Hennings wrote that he believed the Housekeeping Statute had no connection with constitutional claims of “executive privilege.” “I am amazed at the Attorney General’s assertion that it does. I think the Attorney General’s letter presents overwhelming proof of the urgent need to amend [the law] ... to make clear beyond any doubt that Congress intended it to be merely a housekeeping statute and not an instrument of censorship.”

Rogers’ testimony had sent his critics scurrying to the records. When he was chief counsel for a Senate subcommittee investigating a loyalty case in the Truman administration, Rogers had been balked by an executive order issued by President Truman barring Congress from personnel files in loyalty investigations. The records showed that Rogers had fought against this secrecy, limited as it was. The committee report, written under his direction, stated:

“Congress is entitled to know the facts giving rise to the requests and to satisfy itself by firsthand information that the reasons are valid. Any other course blinds the legislative branch and permits action only when the president provides a ‘seeing-eye dog’ in the form of a request for legislation required by the executive.

“If the subcommittee is denied the right to examine the facts in specific cases where there appears to be a breakdown in the loyalty program, it cannot make a complete appraisal of the program.”

I had the switch in Rogers’ thinking very much in mind when, less than a month after his appearance, the Hennings subcommittee called me to testify as a representative of the freedom of information committee of the national journalism fraternity, Sigma Delta Chi. I told the subcommittee I opposed any general legislation to allow officials to hide records, and felt that in those areas where secrecy is needed it could be covered by specific legislation.

“We have seen the proof year after year,” I testified, “that the unlimited grant of the right to hide the record will lead to abuse of power, corruption and mismanagement.

“Of course, the Attorney General tells us he does not believe that secrecy is being used to hide errors or crimes in the executive branch of Government. Mr. Rogers felt different about this ten years ago. Then he was ... busy digging out and exposing the crimes, favoritism, and errors which he felt were being covered up by secrecy.... We might say that Mr. Rogers was highly successful.”

I continued:

“Mr. Rogers may feel things are different today. However, we can never trust the judgment of those in power who might be inclined to make self-serving declarations on their own virtues. This has happened often in the past. We know now that at least eight or ten congressional committees have made it clear they are not as sure as Mr. Rogers that secrecy is not being used to hide crimes, favoritism, and blunders today.

“It is not necessary to arrive at any conclusion on the virtues of this administration or any administration, to conclude that secret government is not in keeping with democracy.

“Even if we accept an administration’s declaration on the many virtues it possesses, we must be guided by this principle: ‘Never trust a good man to make secret decisions for you, if it would frighten you to lodge the same power in an evil man or a man who is on the other side of the political fence.’”

In the course of my testimony, Senator Roman Hruska, the Nebraska Republican, sought to defend the Eisenhower administration’s claim of “executive privilege” in the May 17, 1954, letter:

“He [President Eisenhower] directed that the Secretary of the Army instruct his employees not to disclose information, and the large segment of the American press at that time hailed that decision as being something very fine and very wise and very just.”

No one was going to get me to defend those uninformed editorials that had been based on the belief that the May 17, 1954, letter was a single shot of secrecy aimed at Senator McCarthy. I was on much firmer ground when the subject switched to the case of McGrain v. Daugherty (1927) in which the Supreme Court stated that the power to compel witnesses to produce records and testify is a necessary part of the legislative function.

“Under the Rogers doctrine, the Congress is reduced to a third-rate division of Government,” I said. “Its investigations can be limited to what officials in the executive branch of the Government feel it is wise to produce. If the Government has full discretion as to which facts will be made available to the public, the press, or the Congress, then there is no more than half freedom [to investigate].

“I do not want to be limited in my reporting to the self-serving declaration from men like Richard A. Mack as to what a fine job is being done at the Federal Communications Commission.

“I do not want to be limited to the comments of T. Lamar Caudle, Assistant Attorney General under the Truman administration, as to what a fine job is being done in the prosecution of tax-law violations.

“I do not want to be limited to the comments of Harold Talbott, former Air Force Secretary, as to how he is handling Air Force procurement.

“I do not want to be limited to the statements of former Secretary of Interior Fall that the handling of Teapot Dome oil reserves was really in the public interest.”

Also called to testify for Sigma Delta Chi was V. M. (Red) Newton, the managing editor of the Tampa Tribune. Herbert Brucker, editor of the Hartford Courant, testified on behalf of the American Society of Newspaper Editors. And Harold Cross, the able lawyer for the A.S.N.E., submitted a legal analysis.

Nearly all newspaper, broadcasting, and legal organizations favored the Moss-Hennings amendment to the Housekeeping Statute. It passed Congress with ease despite Administration opposition and on August 12, 1958, President Eisenhower signed it.

The amendment to the Housekeeping Statute said simply: “This section does not authorize the withholding of information from the public or limiting the availability of records to the public.” However, as he signed it into law, President Eisenhower said: “It is not intended to, and indeed could not, alter the existing power of the head of an executive department to keep appropriate information or papers confidential in the public interest. The power in the executive branch is inherent under the Constitution.”

President Eisenhower had obviously accepted the Rogers theory in full. He had accepted the misleading precedents set out in a Justice Department memorandum in which it was represented to him that George Washington had started all this withholding from Congress. He had been convinced by his subordinates that the “executive privilege” claims made between 1954 and 1958 usurped no more authority than George Washington had. And he had been convinced by some of his advisers that he would be weakening the presidency if he did not stand by the extreme “executive privilege” doctrine.

Robert Donovan, in his book The Inside Story, related that President Eisenhower “told the Cabinet he wanted it clearly understood that he was never going to yield to the point where he would become known as a President who had practically crippled the Presidency.” This determination accounted for President Eisenhower’s frequent use of the comment that he was merely reiterating a principle used by Presidents “back to the time of George Washington.”

The “historic precedents,” as I have indicated earlier, did not stand up under close investigation. In an article for the Federal Bar Journal of January 1959, J. Russell Wiggins, executive editor of the Washington Post and Times Herald, told how the historic background—as President Eisenhower understood it—was first described. It appeared in the Federal Bar Journal on April 1949, in an article by Herman Wolkinson, a Justice Department lawyer. Wiggins pointed out that an almost identical copy of the Wolkinson memorandum accompanied the May 17, 1954, letter written by Eisenhower to Defense Secretary Wilson. An expanded version of the same material was used by Attorney General Rogers in testimony before Congress.

Wolkinson’s article had stated:

“In the great conflicts which have arisen in the administrations of Washington, Jackson, Tyler, Cleveland, Theodore Roosevelt, and Herbert Hoover, the Executive has always prevailed.”

Wiggins’ painstaking research had convinced him quite otherwise. “This contention is simply not supportable even on the basis of the historical episodes to which Mr. Wolkinson alludes and which the Department of Justice has incorporated in its memorandum.”

Getting down to the specific episodes, Wiggins told how Congress, in March 1792, had passed a resolution to initiate an investigation of the disastrous expedition into Indian territory by Major General St. Clair. The investigating committee had asked for all records and papers dealing with the expedition. President Washington did call a cabinet meeting to discuss whether the papers should be given to Congress but finally concluded “to make all the papers available” to Congress. (See Chapter II.)

“If this case is precedent for anything,” wrote Wiggins, “it is a precedent to show that the first President was in favor of disclosure, as a principle of government, and as a constitutional matter, except in some possible instances which might later arise, but which in this affair did not exist.”

There was one time when President Washington did refuse to send papers to the Hill. This was when the House of Representatives asked him for the instructions and papers furnished our ambassadors in negotiating the Jay treaty. “But,” said Wiggins, “this no more sustains the claim to sweeping powers of non-disclosure than the first episode. Here, President George Washington refused the papers on the sound and specific constitutional ground that the Senate and not the House was entrusted with authority to advise and consent on the making of treaties.”

After reviewing most of the so-called “withholding precedents” used by Wolkinson and President Eisenhower, Wiggins pointed out that President Jackson and President Tyler had bitterly opposed giving papers to Congress but in the end had forwarded all records requested.

Concluded Wiggins: “In most of Mr. Wolkinson’s examples, the Congress prevailed, and got precisely what it sought to get.”

Because Senator Hennings and Congressmen Moss and Meader had pushed through the amendment to the Housekeeping Statute over Administration objections, they realized that reliance upon “executive privilege” could now become all the more stubborn and Congress would need to take further action.

“In the minds of most people in this country, governmental censorship probably is associated most closely with war or dictatorship,” Chairman Hennings said. “Official suppression of the truth generally is regarded as something alien to the American tradition of freedom and incompatible with our system of self-government. Yet, despite these national attitudes, censorship and suppression of the truth are slowly becoming more and more commonplace in our federal government, and secrecy threatens to become the rule rather than the exception.”

From the Republican side, the two Democrats were joined by Congressman Meader. “The net effect of the Attorney General’s statement,” said Meader, “is that the executive branch of the Government will give to the Congress or its committees such information as the executive branch chooses to give and no more. I wonder if the American people and their elected representatives in Congress appreciate the significance of this ... pronouncement of the executive branch of the Government.”

Meader declared that the Rogers doctrine “makes possible a rigged, distorted, slanted” picture of what is going on in a Government agency.

“The unlimited discretion in the executive branch of the Government over access to information in its possession asserted by the Attorney General, would vest in the departments the power by ex parte presentations of half truths to build a record which would permit only one conclusion.”

In an analysis that filled six pages in the Congressional Record, Meader pointed out that Rogers admitted there was “no judicial precedent governing this question” of “executive privilege.” “More study, not less, is required for intelligent policy making in these days,” he pleaded. “This asserts a doctrine of executive power which I believe is wholly out of keeping with our concept of democracy and self-government. It smacks of totalitarianism, and I hope it will never prevail in this country.”

But the nonpartisan plea for reason and law made little impression. The Eisenhower administration was smug in its popularity. Leaders of Congress were too busy with political chores to pay attention to any problem not connected with the business of getting re-elected. The press could not or would not think logically or consistently on the subject. Secrecy that stood in the way of an individual reporter or newspaper was deplored by that reporter or newspaper, but by too few others. For the most part the attack on secrecy lacked co-ordination, consistency, and enlightened concern.