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20 U. Pitt. L. Rev. 755 (1958-1959)
Congressional Investigations and Executive Secrecy: A Study in the Separation of Powers

handle is hein.journals/upitt20 and id is 757 raw text is: CONGRESSIONAL INVESTIGATIONS AND EXECUTIVE SECRECY:1 A STUDY IN THE SEPARATION OF POWERS Irving Younger* Power tends to corrupt, and absolute power corrupts absolutely. The founders of our nation were occupied with finding workable solu- tions to practical problems, and had little leisure for oracles so studied, plain and final as Lord Acton's best-known epigram. Yet its underlying wisdom did not escape them. They knew that power tends to corrupt; they also knew that the major repository of power is government. A ten- dency to corruption, then, is a characteristic of politics and the price of civilization. Containment of that tendency is one end of government: to achieve it, the new nation needed a shrewdly constructed constitution. And shrewdness those incandescent politicians of America's early years had in abundance. They took the measure of Acton's menace, and with the simplest of perceptions skewered it. They perceived that no man can push to the limits if another man pushes in the contrary direction.2 We know this obvious and deep maxim as the principle of check and balance. It is a major premise of our Constitution, requiring that the three great powers of government be separate and coordinate. The fact of separation is universally acknowledged; but its consequences are perhaps insufficiently appreciated. Because the legislative branches are coordinate, American constitutionalism takes unique turns. Because the judicial and executive branches are coordinate, administration in * A.B., Harvard; LL.B., New York University; Associated with the firm of Paul, Weiss, Rifkind, Wharton & Garrison, New York, New York. 1. The political doctrine of executive secrecy, which involves the power of the execu- tive to withhold information from the legislature, should be distinguished from the evidentiary rule of executive privilege, which involves the right of the executive to withhold otherwise relevant evidence when some potential injury to the public is deemed to outweigh the requirements of a fair trial. On the evidentiary privilege, there are many cases, e.g., Jencks v. United States, 353 U.S. 657 (1957); United States v. Reynolds, 345 U.S. 1 (1953); United States v. Schneiderman, 106 F. Supp. 731 (S.D. Cal. 1952); Ticon Corp. v. Emerson Radio &, Phonograph Corp. 206 Misc. 727, 134 N.Y.S.2d 716 (Sup. Ct. 1954); and a voluminous literature. E.g., Haydock, Some Eviden- tiary Problems Posed by Atomic Energy Security Requirements, 61 HAxv. L. REV. 468 (1948); McAllister, Executive or Judicial Determination of Privilege of Government Documents?, 41 J. CRim. L., C. & P.S. 330 (1950); Sanford, Evidentiary Privileges Against the Production of Data with the Control of Executive Departments, 3 VAID. L. REv. 73 (1949).

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