I discussed some incidents with him which I felt merited investigation, and he told me he was having trouble getting access to material he requested. The CAB appeared ready to try to pull down a secrecy curtain as broad as “executive privilege” because it could have no legal substance for an independent regulatory agency.
On September 19, Dr. Schwartz requested that the CAB allow members of the House subcommittee staff “to receive and examine any records, documents, or information directly, or indirectly, pertaining to your agency, function or business within the jurisdiction of this subcommittee.”
A few days later, on September 23, he pressed CAB Chairman James R. Durfee for full access to CAB records. Durfee insisted the CAB would screen all files containing documents or communications from other agencies or departments of government. It was now apparent that Durfee was going to refuse access to internal governmental communications on grounds of “executive privilege.” Dr. Schwartz was irate. He termed Chairman Durfee’s position “completely ridiculous” and suggested that Durfee obtain competent legal counsel.
By this time the pressure of the investigation was being felt by a number of the regulatory agencies. The chairmen of the six regulatory agencies met at a luncheon at the University Club in Washington the next week to determine how to handle the inquisitive Dr. Schwartz. Because of the success some government departments had been having with “executive privilege” some of the chairmen decided that this was to be the answer for their agencies, but there was no general agreement.
Dr. Schwartz was not discouraged by the lack of information; he only pressed harder. Subcommittee Chairman Morgan Moulder took the suggestion of Dr. Schwartz and set October 17 as a public hearing date for CAB. In the meantime, on October 5, he followed another Schwartz suggestion and asked that the CAB prepare and submit a report on “all gifts, honorariums, loans, fees, or other payments” of things of value received by CAB employees from any “person, firms, corporation, association, organization, or group having any interest, direct or indirect,” in any matter before the board.
Dr. Schwartz was allowed to examine the public files, but his efforts to obtain files of correspondence with the White House and with other agencies ran into the claim of “executive privilege.” In the first months, he nevertheless became aware that Sherman Adams and others on the White House staff had been extremely active in reaching various regulatory agencies.
In an exhaustive eighty-two-page “Memorandum of Law,” filed on October 17, Dr. Schwartz exposed the true nature of the “executive privilege” arguments. They all sprang from the idea that “the King can do no wrong.”
“In the pretension of those who espouse ‘executive privilege,’” he said, “the infallibility recognized in the King in the days when he was personally sovereign of England has been attributed to the President in our system. The reasoning which supports the doctrine should shock the intelligence, as well as the sense of justice, of those who truly believe in the essentials of representative democracy.”
He reported that the CAB claimed “the authority to screen files and records before they are made available to the subcommittee, with a right to the Board in its discretion to remove any and all documents” that could be considered personal files of Board members or communications within CAB or with the White House.
“The Civil Aeronautics Board cannot claim privilege with regard to communication between the Board, on the one hand, and the President or other departments and agencies, on the other. Such an assertion of privilege cannot defeat the right of this subcommittee to investigate the relationship between the independent regulatory agencies and the executive branch.”