Washington cover-up

by Clark R. Mollenhoff

No one was going to get me to defend those uninformed editorials that had been based on the belief that the May 17, 1954, letter was a single shot of secrecy aimed at Senator McCarthy. I was on much firmer ground when the subject switched to the case of McGrain v. Daugherty (1927) in which the Supreme Court stated that the power to compel witnesses to produce records and testify is a necessary part of the legislative function.

“Under the Rogers doctrine, the Congress is reduced to a third-rate division of Government,” I said. “Its investigations can be limited to what officials in the executive branch of the Government feel it is wise to produce. If the Government has full discretion as to which facts will be made available to the public, the press, or the Congress, then there is no more than half freedom [to investigate].

“I do not want to be limited in my reporting to the self-serving declaration from men like Richard A. Mack as to what a fine job is being done at the Federal Communications Commission.

“I do not want to be limited to the comments of T. Lamar Caudle, Assistant Attorney General under the Truman administration, as to what a fine job is being done in the prosecution of tax-law violations.

“I do not want to be limited to the comments of Harold Talbott, former Air Force Secretary, as to how he is handling Air Force procurement.

“I do not want to be limited to the statements of former Secretary of Interior Fall that the handling of Teapot Dome oil reserves was really in the public interest.”

Also called to testify for Sigma Delta Chi was V. M. (Red) Newton, the managing editor of the Tampa Tribune. Herbert Brucker, editor of the Hartford Courant, testified on behalf of the American Society of Newspaper Editors. And Harold Cross, the able lawyer for the A.S.N.E., submitted a legal analysis.

Nearly all newspaper, broadcasting, and legal organizations favored the Moss-Hennings amendment to the Housekeeping Statute. It passed Congress with ease despite Administration opposition and on August 12, 1958, President Eisenhower signed it.

The amendment to the Housekeeping Statute said simply: “This section does not authorize the withholding of information from the public or limiting the availability of records to the public.” However, as he signed it into law, President Eisenhower said: “It is not intended to, and indeed could not, alter the existing power of the head of an executive department to keep appropriate information or papers confidential in the public interest. The power in the executive branch is inherent under the Constitution.”

President Eisenhower had obviously accepted the Rogers theory in full. He had accepted the misleading precedents set out in a Justice Department memorandum in which it was represented to him that George Washington had started all this withholding from Congress. He had been convinced by his subordinates that the “executive privilege” claims made between 1954 and 1958 usurped no more authority than George Washington had. And he had been convinced by some of his advisers that he would be weakening the presidency if he did not stand by the extreme “executive privilege” doctrine.