“On the general subject matter,” Rogers began, “I believe in the value of congressional investigations.... I think they have contributed a great deal to the success of our country, and I think that the executive branch of the Government has the responsibility to make the information available to congressional committees to the fullest extent that it is possible to do so.
“On the other hand,” Rogers went on, “I think that the history of the country has indicated that there are exceptions, and that those exceptions have been recognized by each administration throughout history. I do not think that there is any reason why there should be much general disagreement, and I think if we had a chance to discuss those things in detail that probably our views would be pretty much the same.”
Senator Kefauver asked Rogers about the use of “executive privilege” by officials of the so-called independent regulatory agencies.
“Well,” Rogers said, “I think that possibly there ought to be an even greater attempt made to give all the information to Congress possible, in those agencies.... I think you can make mistakes of judgment if you generalize too much on those things, and I think there has been a tendency to do that.
“I remember debating the subject with Russ Wiggins ... he and Mr. Clark Mollenhoff have been the leaders, and when you get down to it there is not too much in the way of fact. There has been a lot of general observation, but I would like to come up, if you do not mind, and discuss this at length with Senator Hennings’ subcommittee.”
I knew that Russ Wiggins was well informed on the specific instances of arbitrary withholding. I had tried to discuss a number of specific cases with Rogers but always found him unavailable. Additionally, Senator Hennings had found some difficulty in getting an agreement from Rogers to appear before his Judiciary subcommittee.
“I had not quite understood from your last letter,” Senator Hennings told the nominee, “that you were willing to appear before the Constitutional Rights Subcommittee. You did not say that you would not [appear], but I did not quite understand you to say that you would.”
Rogers’ nomination was confirmed by the Senate, and by the time he appeared before the Hennings subcommittee six weeks later he had become the leading spokesman for the ultimate in secrecy under the claim of “executive privilege.” Rogers claimed that the executive branch of the government could properly refuse to give Congress any document that included any advice, recommendation, or conclusion. Although the Constitution says nothing about such a right, Rogers contended that the executive branch did have an “inherent right” to refuse to give testimony or produce records. He further contended that no law of Congress could force production of such records.
This in essence was the position he presented to the Constitutional Rights Subcommittee on March 6, 1958. In addition, smiling, back-patting Bill Rogers now also claimed that the so-called independent regulatory agencies—the FCC, ICC, SEC, CAB, FTC, and FPC—could exercise “executive privilege.” Such a position at the nomination hearing might have created serious problems on his confirmation, for at that time the House Legislative Oversight Subcommittee was engaged in the probe of White House and political influence on the regulatory agencies recounted in the foregoing chapter.
At issue when Rogers testified on March 6 was the question of whether the Congress should amend the “Housekeeping Statute” (5 U.S.C. 22) by stating that this statute covering custody of records could not be used as a justification for withholding records from Congress or the public. Rogers opposed the amendment but said that if it passed, it still could not interfere with the broad right he claimed under “executive privilege.”