If cabinet officers and subordinate officials had refused to testify about the Teapot Dome affair on grounds of “confidential executive communications,” it could have stifled the entire investigation by Senator Thomas Walsh, the Montana Democrat. Under the “executive privilege” theory, Secretary of Navy Edwin Denby and Secretary of Interior Albert B. Fall could have refused to give testimony or produce records of events leading up to the leasing of the Teapot Dome oil reserves. Fall’s crimes might never have been uncovered, and he would have avoided the exposure and conviction.
Similarly, the tax scandals of the Truman administration could have been buried by claiming that all papers except those involving final decisions were “confidential executive communications.” It had been vital to learn the nature of advice and recommendations of both high-level and low-level officials on settlements of huge tax cases. Attorney General J. Howard McGrath could have claimed that his conversations with T. Lamar Caudle, the Assistant Attorney General in charge of the Tax Division, were “confidential executive business.”
Caudle and White House Aide Matthew Connelly could have claimed that their communications were “confidential executive business.” As it was, the Caudle-Connelly communications were actually used as the basis of criminal charges on which Caudle and Connelly were convicted and sent to prison. A number of other officials of the Internal Revenue Service were convicted on charges arising out of revelation of the “advice and recommendations” they gave that were part of a huge tax “fix” operation.
I talked to several members of the Army-McCarthy committee, and with several of my newspaper colleagues, Democratic and Republican senators alike were disturbed at this seemingly limitless claim for “executive privilege.” They hoped that the Eisenhower administration had written the letter for just this one hearing and had used the broad language merely to avoid an impression that Senator McCarthy was being singled out for special treatment. Among the newspaper reporters the attitude was that Joe McCarthy was getting about what he had coming to him; there was little concern over what use might be made of the precedent in other investigations.
Many of the reporters had been misled by a memorandum that accompanied the Eisenhower letter. It said, in effect, that President Eisenhower was doing no more than George Washington and many other Presidents had done. By invoking such names as George Washington and Thomas Jefferson, the memorandum made it possible to pass off the Eisenhower letter as a mere “clarification” of an old and settled principle. A close reading of “the precedents” disclosed in fact that President Washington actually opposed withholding information from Congress. (See Chapter I.) He once refused to deliver treaty papers to the House but only because the Senate, not the House, had jurisdiction to ratify treaties.
President Jefferson had taken papers into his personal custody in connection with the Aaron Burr case, and thus defied the federal court by declaring that the only way the papers could be reached would be by impeaching him. He was right. The law is quite settled on this point; neither the courts nor the Congress can compel the President to testify or produce personal letters, papers, and memorandums. President Jefferson eventually did send the documents subpoenaed by Chief Justice Marshall. But even if Jefferson had refused to produce these documents, it would hardly seem to be an adequate reason for allowing a lawyer for the Army Department to refuse to testify about a meeting with a cabinet officer and several White House aides.
The late Ed Milne, of the Washington Bureau of the Providence Journal, shared my concern. He and I each wrote stories demonstrating how the Truman tax scandals and the Harding Teapot Dome scandals could have been hidden forever if “executive privilege” had barred testimony of all high-level conversations.
We also reminded our readers of the Republican reaction to the ducking and evasion of the Truman administration between 1946 and 1952. Senator Homer Ferguson, the Michigan Republican, was chairman of one of the committees that investigated the Truman administration in the late 1940s. His chief counsel at the time was William P. Rogers, who later became Eisenhower’s Attorney General and a chief advocate of the ultimate in executive secrecy. Only a year before Eisenhower’s election (September 27, 1951), Ferguson spoke out bluntly on the issue of suppression of facts by the executive departments: “It may be said that this practice of suppressing information in the executive department got its big start back in March, 1948. The Senator from Michigan [himself] was then chairman of the Senate Investigations Subcommittee and was investigating things that could be embarrassing to the administration. The subject of the investigation was the operation of the Government’s loyalty program, revolving around the case of William Remington.”
Senator Ferguson continued: “An executive order was issued, placing certain files under the direct and exclusive jurisdiction of the President. On occasion files were taken to the White House in order that they could not be subpoenaed. In the course of our hearings, an admiral was able to tell the Senator from Michigan, off the record, the fact that because of an order by the President of the United States he was not permitted to testify.”
As I have shown (in Chapter III), the Truman administration did try to hide embarrassing facts from Congress. President Truman issued an executive order placing certain personnel files under a secrecy blanket, and on some occasions he ordered files delivered to his personal custody at the White House so they could not be reached by subpoena. His administration stalled investigations of flagrant crimes for months. But President Truman never asserted any constitutional right by which all high-level officials could claim an “executive privilege” to refuse to testify or produce records.