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44 A.B.A. J. 941 (1958)
Constitutional Law: The Papers of the Executive Branch

handle is hein.journals/abaj44 and id is 941 raw text is: Constitutional Law: The Papers of the Executive Branch by William P. Rogers ° Attorney General of the United States This is a state-ment by Attorney General Rogers on the right of the Executive Branch to withhold documents and other materials from Con- gress. The Attorney General made this statement before the Subcommittee on Constitutional Rights of the Senate Judiciary Committee on March 8. The position taken by Mr. Rogers was that the executive right to withhold materials from Congress springs from the doctrine of separation of powers. I appreciate the opportunity of appearing before this Senate Com- mittee to present my views as to the extent of the inquiry which can be made by the legislative branch of the Government concerning the decision making process and documents of the Executive Branch. As might be expected from the division of our Government into three separate branches, this ques.- tion has arisen from time to time from the very earliest days of our national government. I. Current Principles and Practices In the Justice Department over a period of time we have made a very careful study of numerous incidents which have occurred and which illus- trate many facets of the problem. Be- fore getting into a discussion of his- torical precedents and principles, how- ever, I should like to acquaint the committee with my general views and with the particular practices we have followed and are following in the De- partment of Justice. We live in a democracy in which an informed public opinion is absolutely essential to the survival of our nation and our form of government. It like- wise is true that Congress must be well informed if it is to do its legislative job realistically and effectively. The vast majority of requests by Congress for information from the Executive Branch, as you know, are honored quickly and complied with fully. The furnishing of such information is beneficial to Congress, the Executive Branch and to the people themselves. In the Department of Justice we strive to furnish Congress with the requested information, and to make public that part of our activities which would be of interest to the public and which properly can be disclosed without in- terfering with the discharge of our duties and responsibilities or which might be improper or violate the canons of ethics. With reference to the right of the public to know generally as distin- guished from the Legislative Branch, it seems to me that there are four principles which it is well to keep in mind: 1. While the people are entitled to the fullest disclosure possible, this right, like freedom of speech or press, is not absolute or without limitations. Disclosure must al- ways be consistent with the na- tional security and the public in- terest. 2. In recognizing a right to withhold information, the approach must be not how much can legitimately be withheld, but rather how little must necessarily be withheld. We injure no one but ourselves if we do not make thoughtful judgments in the classification process. 3. A determination that certain in- formation should be withheld must be premised upon valid reasons and disclosure should promptly be made when it appears that the factors justifying non-disclosure no longer pertain. 4. Non-disclosure can never be justi- fied as a means of covering mis- takes, avoiding embarrassment, or for political, personal or pecu- niary reasons. All persons agree that information which would adversely affect our national security should not be dis- closed. Then too there are compelling reasons for non-disclosure in the field of foreign affairs, in the area of pend- ing litigation and investigations which may lead to litigation, information made confidential by statute, investiga- tive files and reports, and, finally, in- October, 1958 • V61. 44 941

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