My lawyer friend BG, whom I hope will one day be a Senator from a red state, sent this interesting note on the legal precedent of Congress’s right to know the content of Gonzales’s secret memos:
The following is from a 1941 opinion issued by Robert Jackson when he was Attorney General. Jackson, who had previously served as Solicitor General and later went on to be a Supreme Court Justice and Nuremberg prosecutor, probably understood the need to protect executive branch deliberations better than anyone. And his concurring opinion in Youngstown Sheet and Tube Company v. Sawyer (1952) is probably the most influential judicial statement on the separation of powers doctrine. Therefore, his views on this topic seems highly relevant.
The primary purpose of this Attorney General opinion was to defend the
executive branch’s refusal to turn over internal deliberative materials to a congressional committee (FBI investigative reports specifically). But he added this passage at the end:
“Of course, where the public interest has seemed to justify it, information as to particular situations has been supplied to congressional committees by me and by former Attorneys General. For example, I have taken the position that committees called upon to pass on the confirmation of persons recommended for appointment by the Attorney General would be afforded confidential access to any information that we have — because no candidate’s name is submitted without his knowledge and the Department does not intend to submit the name of any person whose entire history will not stand light.” 40 U.S. Op. Atty. Gen. 45 (1941).
The same should be true for the White House and Gonzales’s memoranda.
I hope someone can get this tidbit up to staffers today at the Gonzales hearings.
— Steve Clemons