Schwartz continued: “‘Executive privilege’ is not available to an independent agency like the Civil Aeronautics Board as a possible basis for the withholding of information from the Congress. The Civil Aeronautics Board, as the Supreme Court has recognized, is an independent agency whose members are not subject to the removal power of the President. Such a body cannot in any proper sense be characterized as an arm or an eye of the Executive. It is instead an arm of the Congress, wholly responsible to that body.
“The doctrine of absolute ‘executive privilege’ itself is not supported in law. The cases cited by its proponents are not truly relevant on the power of the Executive to withhold information from the Congress. On the other hand, there are many decisions squarely rejecting the doctrine, even in courtroom cases. In addition, Dean Wigmore (the leading authority on the subject in this country) flatly repudiates the doctrine.”
Although Dr. Schwartz did succeed in eliciting half-promises of co-operation from some officials of the regulatory agencies, most of them dragged their feet. Richard A. Mack, a member of the FCC, wouldn’t show investigators many of his records, including the office diary that provided links for his indictment later on charges of having conspired to violate the federal law. The lack of co-operation by Commissioner Mack was matched by the resistance at CAB, where Schwartz was trying to pin down evidence of contacts by Sherman Adams.
In January 1958—after five months of frustration—Schwartz insisted that the members of the Legislative Oversight Subcommittee get tough and demand full co-operation. Some members of the investigating committee did not want to force the issue. Several of the Republicans came out flatly in support of the Eisenhower administration’s obstructionist tactics.
The lack of support from committee members so irritated Schwartz that it took only a little urging from some newsmen to get him to leak a staff memorandum to The New York Times. It was a lengthy document setting out the well-settled legal principle that it is improper for members of regulatory agencies to have private talks with litigants when a case is in hearing or in the process of being decided. The Schwartz memorandum also questioned the propriety of the members’ accepting lavish entertainment from executives of the industries they were supposed to regulate.
Tempers flared in the days following the leak of the Schwartz memorandum, and finally on February 10, 1958, the House subcommittee voted to fire Dr. Schwartz. I called Dr. Schwartz in the early evening of February 10 to inform him of the subcommittee’s decision and also to tell him that a subpoena was to be issued for him to testify the next morning.
He told me he had copies of every important document from the committee files in a trunk and two cardboard boxes. “Someone should have knowledge of what is in these records,” he said, “so it will be possible to force the subcommittee to continue hearings.” If something dramatic wasn’t done, he was convinced the investigation would never get off the ground.
Dr. Schwartz asked if I wanted the copies of documents to take to members of Congress who had shown an interest in the problems of the regulatory agencies. I said I should not take possession of documents which might be considered the property of the House subcommittee. But since the documents were legally in his custody, I suggested that he could take them to the apartment of Senator John J. Williams, the Delaware Republican, and I would be happy to accompany him.
I had talked with Senator Williams of improper pressure on the regulatory agencies and thought he would take the records. He had fought against tax scandals in the Truman administration, but I regarded him as an objective crusader who would call the strikes the same way if the Eisenhower administration were involved in wrongdoing. I had hoped that Senator Williams might be able to give the investigation of regulatory agencies the same prodding that he had given to the House tax scandals investigations in 1951 and 1952.
Dr. Schwartz said he would be willing to turn the papers over to Senator Williams and explain them to him in detail.