1. Pursuant to Department of Justice Order No. 3229, issued by the Attorney General under 5 U.S.C. 22, a subordinate official of the Department of Justice refused, in a habeas corpus proceeding by a state prisoner, to obey a subpoena duces tecum requiring him to produce papers of the Department in his possession. Held: Order No. 3229 is valid and the subordinate official properly refused to produce the papers. Pp. 463-468.
2. The trial court not having questioned the subordinate official on his willingness to submit the material "to the court for determination as to its materiality to the case" and whether it should be disclosed, the issue of how far the Attorney General could or did waive any claimed privilege against disclosure is here immaterial. P. 468.
3. Order No. 3229 was a valid exercise by the Attorney General of his authority under 5 U.S.C. 22 to prescribe regulations not inconsistent with law for "the custody, use, and preservation of the records, papers and property appertaining to" the Department of Justice. Boske v. Comingore, 177 U.S. 459 . Pp. 468-470.
180 F.2d 321, affirmed.
In a habeas corpus proceeding by a state prisoner, the District Court adjudged a subordinate official of the Department of Justice guilty of contempt for refusal to produce papers required by a subpoena duces tecum. The Court of Appeals reversed. 180 F.2d 321. This Court granted certiorari. 340 U.S. 806 . Affirmed, p. 470.
Robert B. Johnstone argued the cause for petitioner. With him on the brief were Edward M. Burke and Howard B. Bryant. [340 U.S. 462, 463]
Robert S. Erdahl argued the cause for McSwain, respondent. With him on the brief were Solicitor General Perlman, Assistant Attorney General McInerney, Stanley M. Silverberg and Philip R. Monahan.
MR. JUSTICE REED delivered the opinion of the Court.
This proceeding brings here the question of the right of a subordinate official of the Department of Justice of the United States to refuse to obey a subpoena duces tecum ordering production of papers of the Department in his possession. The refusal was based upon a regulation 1 issued by the Attorney General under 5 U.S.C. 22.
[ Footnote 2 ]
Petitioner, Roger Touhy, an inmate of the Illinois State penitentiary, instituted a habeas corpus proceeding in the United States District Court for the Northern District of Illinois against the warden, alleging he was restrained in violation of the Due Process Clause of the Federal [340 U.S. 462, 464] Constitution. In the course of that proceeding a subpoena duces tecum was issued and served upon George R. McSwain, the agent in charge of the Federal Bureau of Investigation at Chicago, requiring the production of certain [340 U.S. 462, 465] records which, petitioner Touhy claims, contained evidence establishing that his conviction was brought about by fraud. 3 At the hearing that considered the duty of submission of the subpoenaed papers, the U.S. Attorney made representations to the court and to opposing counsel as to how far the Attorney General was willing for his subordinates to go in the production of the subpoenaed papers. The suggestions were not accepted. Mr. McSwain was then placed upon the witness stand and ordered to bring in the papers. He personally declined to produce the records in these words:
On appeal, the Court of Appeals reversed on the ground that Department of Justice Order No. 3229 was authorized by the statute and
We find it unnecessary, however, to consider the ultimate reach of the authority of the Attorney General to refuse to produce at a court's order the government papers in his possession, for the case as we understand it raises no question as to the power of the Attorney General himself to make such a refusal. The Attorney General was not before the trial court. It is true that his subordinate, Mr. McSwain, acted in accordance with the Attorney General's instructions and a department order. But we limit our examination to what this record shows, to wit, a refusal by a subordinate of the Department of Justice to submit papers to the court in response to its subpoena duces tecum on the ground that the subordinate is prohibited from making such submission by his superior through Order No. 3229. 5 The validity of the superior's action is in issue only insofar as we must determine whether the Attorney General can validly withdraw from his subordinates the power to release department papers. Nor are we here concerned with the effect of a refusal to produce in a prosecution by the United States 6 or with [340 U.S. 462, 468] the right of a custodian of government papers to refuse to produce them on the ground that they are state secrets 7 or that they would disclose the names of informants. 8
We think that Order No. 3229 is valid and that Mr. McSwain in this case properly refused to produce these papers. We agree with the conclusion of the Court of Appeals that since Mr. McSwain was not questioned on his willingness to submit the material "to the court for determination as to its materiality to the case" and whether it should be disclosed, the issue of how far the Attorney General could or did waive any claimed privilege against disclosure is not material in this case.
Department of Justice Order No. 3229, note 1, supra, was promulgated under the authority of 5 U.S.C. 22. That statute appears in its present form in Revised Statutes 161, and consolidates several older statutes relating to individual departments. See, e. g., 16 Stat. 163. When one considers the variety of information contained in the files of any government department and the possibilities of harm from unrestricted disclosure in court, the usefulness, indeed the necessity, of centralizing determination as to whether subpoenas duces tecum will be willingly obeyed or challenged is obvious. Hence, it was appropriate for the Attorney General, pursuant to the authority given him by 5 U.S.C. 22, to prescribe regulations not inconsistent with law for "the custody, use, and preservation of the records, papers, and property appertaining to" the Department of Justice, to promulgate Order 3229.
Petitioner challenges the validity of the issue of the order under a legal doctrine which makes the head of a department rather than a court the determinator of the admissibility of evidence. In support of his argument [340 U.S. 462, 469] that the Executive should not invade the Judicial sphere, petitioner cites Wigmore, Evidence (3d ed.), 2379, and Marbury v. Madison, 1 Cranch 137. But under this record we are concerned only with the validity of Order No. 3229. The constitutionality of the Attorney General's exercise of a determinative power as to whether or on what conditions or subject to what disadvantages to the Government he may refuse to produce government papers under his charge must await a factual situation that requires a ruling. 9 We think Order No. 3229 is consistent with law. This case is ruled by Boske v. Comingore, 177 U.S. 459 . 10
That case concerned a collector of internal revenue adjudged in contempt for failing to file with his deposition copies of a distiller's reports in his possession as a subordinate officer of the Treasury. The information was needed in litigation in a state court to collect a state tax. The regulation upon which the collector relied for his refusal was of the same general character as Order No. 3229. 11 After referring to the constitutional authority for the enactment of R. S. 161, the basis, as 5 U.S.C. 22, [340 U.S. 462, 470] for the regulation now under consideration, this Court reached the question of whether the regulation centralizing in the Secretary of the Treasury the discretion to submit records voluntarily to the courts was inconsistent with law, p. 469. It concluded that the Secretary's reservation for his own determination of all matters of that character was lawful.
We see no material distinction between that case and this.
The judgment of the Court of Appeals is
MR. JUSTICE CLARK took no part in the consideration or decision of this case.
[ Footnote 2 ] "The head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it."
[ Footnote 3 ] The subpoena was also addressed to the Attorney General. There is no contention, however, that the Attorney General was personally served with the subpoena; nor did he appear. See Fed. Rules Civ. Proc., 45.
[ Footnote 4 ] We take this answer to refer to both the original Department of Justice Order No. 3229 and the supplement.
[ Footnote 5 ] Although in this record there are indications that the U.S. Attorney was willing to submit the papers to the judge alone for his determination as to their materiality, the judge refused to accept the papers for examination on that basis. There is also in the record indication that the U.S. Attorney thought of submitting the papers to the court and opposing counsel in chambers but changed his mind. For our conclusion none of these facts are material, as the final order adjudging Mr. McSwain guilty of contempt was based, as above indicated, on a refusal by Mr. McSwain to produce, as instructed by the Attorney General in accordance with Department Order No. 3229.
[ Footnote 6 ] Cf. United States v. Andolschek, 142 F.2d 503.
[ Footnote 7 ] See Wigmore, Evidence (3d ed.), 2378.
[ Footnote 8 ] See Wigmore, Evidence (3d ed.), 2374.
[ Footnote 9 ] Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549 . For relatively recent consideration of the problem underlying governmental privilege against producing evidence, compare Duncan v. Cammell, Laird & Co., 1942. A. C. 624, with Robinson v. State of South Australia, 1931. A. C. 704.
[ Footnote 10 ] That case has been generally followed. See, e. g., Ex parte Sackett, 74 F.2d 922; In re Valecia Condensed Milk Co., 240 F. 310; Harwood v. McMurtry, 22 F. Supp. 572; Stegall v. Thurman, 175 F. 813; Walling v. Comet Carriers, Inc., 3 F. R. D. 442, 443.
[ Footnote 11 ] The following excerpts will show the similarity:
Issues of far-reaching importance that the Government deemed to be involved in this case are now expressly left undecided. But they are questions that lie near the judicial horizon. To avoid future misunderstanding, I deem it important to state my understanding of the opinion of the Court - what it decides and what it leaves wholly open - on the basis of which I concur in it. [340 U.S. 462, 471]
I wholly agree with what is now decided insofar as it finds that whether, when and how the Attorney General himself can be granted an immunity from the duty to disclose information contained in documents within his possession that are relevant to a judicial proceeding are matters not here for adjudication. Therefore, not one of these questions is impliedly affected by the very narrow ruling on which the present decision rests. Specifically, the decision and opinion in this case cannot afford a basis for a future suggestion that the Attorney General can forbid every subordinate who is capable of being served by process from producing relevant documents and later contest a requirement upon him to produce on the ground that procedurally he cannot be reached. In joining the Court's opinion I assume the contrary - that the Attorney General can be reached by legal process. [340 U.S. 462, 473]
Though he may be so reached, what disclosures he may be compelled to make is another matter. It will of course be open to him to raise those issues of privilege from testimonial compulsion which the Court rightly holds are not before us now. But unless the Attorney General's amenability to process is impliedly recognized we should candidly face the issue of the immunity pertaining to the information which is here sought. To hold now that the Attorney General is empowered to forbid his subordinates, though within a court's jurisdiction, to produce documents and to hold later that the Attorney General himself cannot in any event be procedurally reached would be to apply a fox-hunting theory of justice that ought to make Bentham's skeleton rattle. [340 U.S. 462, 474]