Post-Watergate Cases

Two post-Watergate cases, both involving congressional demands for access to executive information, demonstrate both the judicial reluctance to involve itself in the essentially political confrontations such disputes represent and also the willingness to intervene where the political process appears to be failing.

In United States v. AT&T, the D.C. Circuit was unwilling to balance executive privilege claims against a congressional demand for information unless and until the political branches had tried in good faith but failed to reach an accommodation. In that case, the Justice Department had sought to enjoin AT&T's compliance with a subpoena issued by a House subcommittee. The subcommittee was seeking FBI letters requesting AT&T's assistance with warrantless wiretaps on U.S. citizens allegedly made for national security purposes. The Justice Department argued that the executive branch was entitled to sole control over the information because of "its obligation to safeguard the national security." The House of Representatives, as intervenor, argued that its rights to the information flowed from its constitutionally implied power to investigate whether there had been abuses of the wiretapping power. The House also argued that the court had no jurisdiction over the dispute because of the Speech or Debate Clause.

The court rejected the "conflicting claims of the [Executive and the Congress] to absolute authority." With regard to the executive's claim, the court noted that there was no absolute claim of executive privilege against Congress, even in the area of national security:

The executive would have it that the Constitution confers on the executive absolute discretion in the area of national security. This does not stand up. While the Constitution assigns to the President a number of powers relating to national security, including the function of commander-in-chief and the power to make treaties and appoint Ambassadors, it confers upon Congress other powers equally inseparable from the national security, such as the powers to declare war, raise and support armed forces and, in the case of the Senate, consent to treaties and the appointment of ambassadors.

Likewise, the court rejected the congressional claim that the Speech or Debate Clause was "intended to immunize congressional investigatory actions from judicial review. Congress' investigatory power is not, itself, absolute."

According to the court, judicial intervention in executive privilege disputes between the political branches is improper unless there has been a good faith but unsuccessful effort at compromise. There is in the Constitution; the court held, a duty that the executive and Congress attempt to accommodate the needs of each other:

The framers, rather than attempting to define and allocate all governmental power in minute detail, relied, we believe, on the expectation that where conflicts in the scope of authority arose between the coordinate branches, a spirit of dynamic compromise would promote the resolution of the dispute in the manner most likely to result in the efficient and effective functioning of our governmental system. Under this view, the coordinate branches do not exist in an exclusive adversary relationship to one another when a conflict in authority arises. Rather, each branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the conflicting branches in the particular fact situation.

The court refused to resolve the dispute because the executive and Congress had not yet made that constitutionally mandated effort at accommodation. Instead, the court "encouraged negotiations in order to avoid the problems inherent in [the judiciary] formulating and applying standards for measuring the relative needs of the [executive and legislative branches]." The court suggested, however, that it would resolve the dispute if the political branches failed to reach an accommodation. The court-encouraged negotiations ultimately led to a compromise. Subcommittee staff was allowed to review some unedited memoranda describing the warrantless wiretaps and report orally to subcommittee members. The Justice Department retained custody of the documents.

The federal district court in the District of Columbia displayed the same reluctance to intervene in an executive privilege dispute with Congress in United States v. House of Representatives. There the court dismissed a suit brought by the Justice Department seeking a declaratory judgment that the Administrator of the Environmental Protection Agency (EPA) "acted lawfully in refusing to release certain documents to a congressional subcommittee" at the direction of the President. The Administrator based her refusal upon President Reagan's invocation of executive privilege against a House committee probing the EPA's enforcement of hazardous waste laws. 

The court dismissed the case, without reaching the executive privilege claim, on the ground that judicial intervention in a dispute "concerning the respective powers of the Legislative and Executive Branches ... should be delayed until all possibilities for settlement have been exhausted." "Compromise and cooperation, rather than confrontation, should be the aim of the parties." As the Court of Appeals had done in United States v. AT&T, the district court in United States v. House of Representatives encouraged the political branches to settle their dispute rather than invite judicial intervention.

Only if the parties could not agree would the court intervene and resolve the interbranch dispute, and even then, the courts advised, "Judicial resolution of this constitutional claim...will never become necessary unless Administrator Gorsuch becomes a defendant in either a criminal contempt proceeding or other legal action taken by Congress." Ultimately the branches did reach an agreement, and the court did not need to balance executive and congressional interests.