“These cases, and others, are cited to this subcommittee as blanket authority for withholding information. They are cited as establishing in Federal officials, subordinates as well as heads, an inherent right to withhold information—not only from the public and press and individual Congressmen, but also from Congress itself and its committees. They are cited as establishing rights to withhold that are final and not subject to judicial review.
“Moreover,” Cross said, “these Attorney General opinions, which cite no judicial authority, are inaccurate, are at direct variance with pertinent court rulings.”
Cross concluded that Brownell’s “inaccurate” legal rulings “are both cited and applied as if they were Holy Writ to suppress information which this Congress needs in order to legislate, which the press needs in order to perform its functions and which citizens need in order to maintain a self-governing society.”
It was inspiring to have such a clear statement and such an exhaustive study from Harold Cross. He was highly respected by the editors of the American Society of Newspaper Editors, and I was certain that his logic would soon convince many editors of the wisdom of a united opposition to the unbridled claim of “executive privilege.”
Now came my first meeting with Bernard Schwartz, then only thirty-three years old but already a recognized authority in the fields of constitutional and administrative law. The testimony of this short, dark-haired professor with the heavy glasses was clear, well documented, restrained. His condemnation of the May 17, 1954, letter was altogether effective.
The letter claimed, Schwartz said, that the executive agencies had “the absolute privilege and discretion” to withhold information from Congress and the public.
“Those who assert that the law is settled in favor of an unlimited right in the Executive ... do so out of an excess of executive zeal but without any real basis in fact, or in law for that matter.
“There is no statute or judicial decision which justifies the extreme pretensions of privilege consistently maintained by executive officials,” Schwartz said.
“It is true that there is a long history of executive refusals to comply with congressional investigative demands and that these refusals have often been justified, upon supposed legal grounds, by opinions of the Attorney General,” he continued. “Neither opinions of the Attorney General nor the practice of the Executive can justify unwarranted distortions of the Constitution.... Nor does a governmental practice conceived in error become elevated to the plane of legality merely because the error has been long persisted in.”
Schwartz called attention to arguments that Congress was abusing its investigative power, and commented: “To this writer, indeed, the overriding danger is not Congressional abuse but the vesting of unfettered discretion in the Executive to surround with secrecy all its activities.