If the Washington Administration Had an Office of Legal Counsel . . .

To:  Edmund Randolph, Attorney General of the United States

From:  Paul Colborn (J.D. expected May 1793), Office of Legal Counsel

Date: April 1, 1792

Re: Assertion of executive privilege in response to congressional requests for information

In preparation for tomorrow’s cabinet meeting, you have requested the opinion of this office on a matter of some delicacy. On March 27, the House of Representatives appointed a special committee to conduct an investigation of recent military operations initiated by Major General Arthur St. Clair, the governor of the Northwest Territory. As this represents the first time the House has authorized an investigation of this sort, our response will set an important precedent.

To briefly review the relevant facts, for the past several years the United States has been engaged in both diplomatic negotiations and military conflict with Indian nations in the Northwest Territory. Pursuant to orders from President Washington, in 1790 St. Clair sent General Josiah Harmar to lead a punitive expedition against the more recalcitrant elements of the indigenous population. This effort did not go well. Harmar lost about 200 men in battle and did not achieve his objective.

Last year St. Clair personally led another offensive against the Miami Indians in the Ohio region. The results were even worse. On November 4, 1791, St. Clair’s army was surrounded and completely destroyed by Indian forces. In a letter to the Secretary of War, St. Clair described this “as unfortunate an action as almost any that has been fought.” 3 Annals of Congress 1055. St. Clair is now considering an early retirement.

The House has empowered its committee “to call for such persons, papers and records, as may be necessary to assist their inquiries.” 3 Annals of Congress 493. Pursuant to this authority, the committee has made a broad request to the President for documents that might shed light on the causes of St. Clair’s defeat. We view this as a “fishing expedition” for politically explosive or embarrassing information that might gain the committee members some attention in the press.

The President has asked his cabinet for advice on how to respond to the committee request. Specifically, he wishes to know whether the House has the constitutional authority to seek the information requested and whether he may or should withhold any of the responsive documents.

We accept that the House is an inquest and is entitled to request documents and other information from the executive branch. See generally Mort Rosenberg, Congressional Oversight Manual (1st ed. 1791). However, this principle must be limited by a doctrine we have termed “executive privilege,” which subsumes the privileges set forth below:

      Military Secrets. The documents include detailed description of troop movements and supply issues leading up to the battle of November 3, 1791. See 3 Annals of Congress 1052-59. They contain information such as numbers of troops garrisoned at particular locations and the orders of battle employed against the enemy. See 3 Annals of Congress 1144. This type of military information, the release of which could jeopardize national security, lies at the very core of executive privilege.

         The documents are also replete with descriptions of weaknesses in our security posture, particularly with regard to our ability to supply troops and the capabilities and discipline of our militia forces. See, e.g., 3 Annals of Congress 1116 (report of an officer that “many of his men were so awkward that they could not take their gunlocks off to oil them and put them on again, nor could they put their flints as to be useful.”). Revelations of this type of information can only assist and encourage hostile powers to contest our interests in the Northwest Territory and elsewhere.

         Diplomatic Secrets. The documents contain information and observations about the various Indian nations that could adversely affect the President’s conduct of foreign policy. For example, St. Clair’s letter to the President on Sept. 16, 1789, notes that the Kentucky people “are in the habit of retaliation” against the Indians, “perhaps without attending precisely to the nations from which the injuries are received.” 1 Annals of Congress 927-28. This acknowledgment of possible treaty violations could prejudice the President’s efforts to maintain peaceable relations with several of the tribes.

         Also many of the responsive documents, like the aforementioned letter, unfortunately refer to the Indian nations generally as “savages.” We prefer to distinguish between the peaceful Indian nations that respect their treaty obligations with the United States and the enemy combatants (or “homegrown terrorists”) with whom we must deal firmly.

         Deliberative process. Virtually all of the documents were prepared in the course of confidential deliberative discussions. For example, St. Clair provided candid battlefield reports to the Secretary of War. 3 Annals of Congress 1052-59. These reports were designed to assist the Secretary and the President in making critical decisions regarding military strategy, requests for appropriations, government contracting and the training and equipping of troops. Although most of the communications were not directly with the President, many of these decisions will ultimately be made at the presidential level. Thus, they are the kind of deliberative communications that it is most important to protect.

         Failure to protect these communications will deprive the President and senior executive branch officers of robust and candid advice from their subordinates in the future. The documents contain, for example, unvarnished criticism of the “want of discipline” and “disgraceful” conduct of the militia. See 3 Annals of Congress 1057-59. They also include St. Clair’s report of his own medical condition. See 3 Annals of Congress 1053 (“the indisposition that had hung around me for some time, sometimes appearing as a bilious cholic, and sometimes as rheumatic asthma, to my great satisfaction changed to a gout in the left arm and hand, leaving the breast and stomach perfectly relieved, and the cough, which had been excessive, entirely gone.”)

        If military and civil officers know that their candid observations may be exposed to Congress and the general public, the executive branch deliberative process will surely suffer as a result.

         Confidential law enforcement files. Among the documents are the records of a court of inquiry called to investigate General Harmar’s conduct during the campaign of 1790, particularly with regard the allegation that he was “intoxicated all the campaign, and unable to execute the important duties of his station.” 3 Annals of Congress 1118. Testimony given by numerous line officers and other fact witnesses demonstrated that this allegation was without foundation. It is precisely for this reason that the executive branch should not provide Congress with the raw information contained in law enforcement files.  Disclosure of this type of information would interfere with the executive’s exercise of its law enforcement and other investigatory authority.

          Attorney-client. Although the documents do not as a rule implicate the attorney-client privilege, there is one important exception. Under no circumstances should this memorandum be produced to Congress. Such disclosure would surely have a chilling effect on the willingness my future colleagues in this office to provide candid legal advice. A memorandum such as this would no doubt preclude its author from a future advice and consent position were the Senate to learn of its contents.

For all of these reasons we strongly recommend that you urge the President not to produce the documents requested by the House committee. It may be necessary for you to take a more forceful posture in this regard than would be your natural inclination. The President has been known to be incautious about sharing information against his best interests, as exemplified by the infamous “cherry tree” incident. You will need all of your lawyerly skills to persuade him that discretion is the better part of valor here.

We likewise advise against allowing St. Clair or other line officers to provide testimony directly to Congress. Perhaps the House committee would accept a briefing from a high-ranking administration spokesman, someone who could give the legislators a clear picture of the overall situation without delving into messy and distracting factual details. Surely the House does not want to end up like the National Assembly of France, which once spent a whole night examining a drum major. See 3 Annals of Congress 491 (really).

In case the House does not see matters as we do, however, it might be advisable to encourage General St. Clair and other potential fact witnesses to consult counsel to advise them on their personal legal options. Although beyond the scope of this memorandum, we note the potential relevance of the Fifth Amendment to the Constitution, which was ratified this past December.

[Historical postscript: President Washington’s cabinet in fact met on April 2, 1792 and agreed that the request of the House committee should be honored. Although it found that the President had the discretion to withhold documents “the disclosure of which would injure the public,” it concluded that “there was not a paper which might not be properly produced” in response to this particular request. Washington therefore directed the Secretary of War to produce the papers requested. He also encouraged St. Clair to provide his testimony directly to the House. See Louis Fisher, The Politics of Executive Privilege 10-11 (2004).]

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