As strange as it may appear prima facie, a congressional inquiry conducted shortly after the end of World War II is of interest in a work on transparency for the implications that some intellectual effort and originality lead to infer from it. The inquiry was concerned with the Hiss-Chambers case, an espionage case, the meaning of which can be grasped only by taking into adequate consideration the fear of Communism that wrapped up the American politics and society especially in the early years of the Cold War. The case can be summed up as follows. During the summer of 1948, the House Un-American Activities Committee (HUAC), a specific congressional committee of the House of Representatives aimed at protecting the country from the Communism threat, embarked on an investigation involving – among others – Alger Hiss, a U.S. State Department high-ranking official. Especially in light of the testimony of Whittaker Chambers, a confessed former Communist agent, Hiss was accused of being a member of the U.S. Communist Party and of spying for the Soviet
150 W
ILLIAM G.WEAVER –ROBERT M.PALLITTO, State Secrets and Executive Power, 120 Political Science Quart. 85, 89 (2005).
151 N
EAL DEVINS, Congressional-Executive Information Access Disputes: A Modest Proposal – Do
Nothing, 48 Admin. L. Rev. 109, 134 (1996).
152 Ibid. (arguing that when a committee of Congress is conducting an investigation and needs to gain
access to certain executive branch information, “the hearing is the committee’s chance to put a great deal of political and personal pressure on the witness,” i.e., on the official who is required to disclose such information during his or her testimony).
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Union at least until the late 1930s, when Chambers abjured Marxism153. Due to the lack of substantial evidence against Hiss, who categorically denied all accusations, the HUAC was about to let him off, but then-little known California Representative Richard Nixon strived to persuade the Committee to carry on with the inquiry. Hiss was tried twice, and found guilty of perjury in 1950154, whereas the espionage indictment was foreclosed by statute limitations. Today, it is still controversial whether Hiss actually engaged in espionage for the Soviets155.
However, two aspects of this whole affair really matter: the surprisingly high number of FBI records Representative Nixon had access to, and the Representative’s posture, if compared with the one he kept with respect to the Watergate tape recordings more than twenty years later. As will be explained later, indeed, in the 1970s, President Nixon strived to cover up a series of White House conversations related to the Watergate scandal by claiming the existence of absolute executive privilege. On the contrary, Nixon’s approach turned out to be clearly transparency-oriented in the Hiss-Chambers case. As far as this case
153 Chambers alleged that Hiss was a top-level member of the so-called Ware Group, “an
underground organization of the United States Communist Party” operating in the 1930s. HOUSE UN-AMERICAN ACTIVITIES COMMITTEE, Testimony of Whittaker Chambers (August 3, 1948) (quoted in PHILIP ABBOTT, States of Perfect Freedom: Autobiography and American Political
Thought, 94 (Massachussetts, 1987)).
154 The District Court decision was affirmed on appeal (United States v. Hiss, 185 F.2d 822 (2nd Cir.
1950), while by denying a writ of certiorari the Supreme Court refused to review Hiss’s perjury conviction (Hiss v. United States, 340 U.S. 948 (1951)).
155 See, e.g., J
AMES BARRON, The Hiss Defense Doesn’t Rest, New York Times, August 16, 2001 (referring to a “growing consensus that Hiss […] had most likely been a Soviet agent.”); JOHN E. HAYNES –HARVEY KLEHR, Venona: Decoding Soviet Espionage in America, 170 (New Haven, CT: Yale University Press, 1999) (addressing the matter as to whether the VENONA project, a program aimed at decrypting a shower of Soviet spies’ telegrams, proved Hiss’s involvement in espionage activities). The Authors advocate FBI Special Agent Robert Lamphere’s assertion that the codename “ALES”, come out of the VENONA cables, actually was used to identify Hiss. See also GORDON H. WENTWORTH, (Book Review) Allen Weinstein, Perjury: The Hiss-Chambers Case, 1 W. New Eng. L. Rev. 861, 861 (1979) (maintaining that Weinstein’s book “so conclusively documents Hiss’ guilt that there is no longer any doubt as to the justness of the jury’s verdict.”) But see also KAI BIRD – SVETLANA CHERVONNAYA, The Mystery of Ales, The American Scholar (Summer 2007) (arguing that even though evidence against Hiss does not appear to be “clear and definitive,” many historians have followed the easy way of espousing Weinstein’s arguments, characterized by a lot of details.) See also LAMAR WALDRON, Watergate: The Hidden History, 44-45 (Counterpoint, Berkeley, 2012) (“Even the release of the Hiss grand jury testimony, many of the VENONA cables, and other information emerging after the fall of the Soviet Union haven’t provided a definitive answer. Experts on both sides can point to evidence of Hiss’s guilt or innocence.”)
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is concerned, the FBI files document an intense exchange of information between FBI agents and Representative Nixon as the HUAC investigation was ongoing156. Indirect confirmation that Nixon depended mainly upon FBI records to build its leading role during the Hiss- related investigation may be found in the words used by Nixon himself. Indeed, during a speech he made at the House of Representatives on January 26, 1950,157 just a few days after Hiss was convicted for perjury, Nixon complained about a presidential directive158 that ordered all administrative agencies to refuse to release any information concerning the loyalty of executive branch employees to congressional committees159. Therefore – Nixon noted – the HUAC “had to conduct its investigation with no assistance whatever from the administrative branch of the Government, [and thereby the FBI] was unable to lend assistance to the committee.”160
Yet, above all, the Hiss-Chambers Case displays Nixon’s incoherence on transparency over the years161. In such a case, as a Congressman, he appeared to champion transparency as an absolute value. In the aforementioned speech of January 26, 1950, Nixon emphatically underlined his “solemn responsibility, both as a member of the Committee on Un-American Activities and as a member of [the House of Representatives to publicize] certain facts concerning the case which led to the trial and conviction of Alger Hiss for perjury […].”162 He continued by noting that the Hiss-Chambers Case and its implications
156 See A
THAN G.THEOHARIS, The Truman Presidency: The Origins of the Imperial Presidency and
the National Security State, 350-355 (Earl M. Coleman Enterprises, Inc., Publishers, New York,
1979).
157 U.S. Congress, Cong. Rec., 81st Cong., 2nd Sess. (January 26, 1950) extract: pp. 999-1000; 1002-
1006 (in THEOHARIS, id., at 355-360).
158 Harry S. Truman, Directive on the Need for Maintaining the Confidential Status of Employee
Loyalty Records (March 15, 1948), online by GERHARD PETERS –JOHN T.WOOLLEY, The American
Presidency Project. http://www.presidency.ucsb.edu/ws/?pid=13128.
159 T
HEOHARIS, The Truman Presidency, supra note 156, at 358.
160 Ibid.
161 For a connection between the Hiss-Chambers Case and President Nixon’s invocation of absolute
executive privilege to prevent disclosure of the Watergate tape-recordings and related documents, see LOUIS FISHER, The Politics of Executive Privilege, 229-230 (Carolina Academic Press, Durham, N.C., 2004); MARK J.ROZELL, Executive Privilege, Presidential Power, Secrecy and Accountability, 55 (2nd ed., Kansas, University Press, 2002) (“Although President Nixon is remembered for his unremitting defense of an absolute executive privilege power during Watergate, he did not always hold such a view.”); LAURENT SACHAROFF, Former Presidents and Executive Privilege, 88 Tex. L. Rev. 301, 349 (2009).
162 T
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“involve[d] considerations which affect[ed] the very security of this Republic.”163 Furthermore, a White House tape contains the explicit admission of Nixon, while he was serving as President of the United States, that by leaking details on the case to the press he had provoked Hiss’s conviction even before the evidence against Hiss was examined by the grand jury164. Beyond any doubt, neither the press nor congressional investigations are supposed to turn into weapons politicians may deploy to tear someone apart or to achieve other merely personal goals. Since Richard Nixon came out as the true winner in the Hiss- Chambers Case, which afforded him a degree of public visibility he certainly did not have before, it is possible to argue that in such a case, he exploited the value of transparency just to boost significantly his own political career. The discrepancy in his behavior is showed by the fact that with respect to the Watergate scandal, Nixon appeared to champion an opposite value – the value of executive branch secrecy.
Such discrepancy was brought up at the President’s News Conference of March 15, 1973,165 where the President was asked to explain why he based his conduct in the Hiss- Chambers Case on transparency, while he hampered the congressional investigation over the Watergate scandal by invoking the need for secrecy. The response of President Nixon turns out to be very interesting. He contended that the two cases were actually very dissimilar, because the Hiss-Chambers Case was concerned with espionage, while the Watergate affair was not. In the former, for the very reason that the HUAC “was investigating espionage against the Government of [the United States], that committee should have had complete cooperation from at least the executive branch of the Government in the form that [the HUAC] asked.”166 The Watergate scandal, instead, was not an espionage case, or if one deems it as such, it was concerned with a different type of espionage, one that not only was merely domestic and thus did not involve any relations with foreign countries or organizations, but also had a clear political nature: It was, as the President put it, “espionage by one political organization against another.”167 Therefore, Congress – Nixon concluded –
163 Ibid. 164 W
ALDRON, Watergate, supra note 155, at 44 (quoting a statement of President Nixon recorded by a White House tape of July 1, 1971) (“We won the Hiss case in the papers. We did. I had to leak stuff all over the place […]. It was won in the papers […]. I leaked everything […]. I leaked out the testimony. I had Hiss convicted before he ever got to the grand jury.”)
165 Richard Nixon: 1973: Containing the Public Messages, Speeches, and Statements of the
President, (Washington, D.C., Gov’t Print. Off., 1975), p. 202.
166 Id., at 211. 167 Id., at 212.
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“would have a far greater right and would be on much stronger ground to ask the Government to cooperate in a matter involving espionage against the Government than in a matter like [Watergate] involving politics.”168 President Nixon’s argument was weak, since the essential purpose of the oversight power of Congress is to pinpoint any wrongdoing perpetrated within the executive branch or – in any event – imputable to it. Claiming that congressional committees should deliberately refrain from inquiring into sectors wherein executive branch officials somehow operate means raising the odds that such sectors be affected by misconduct.
If some sense may be found in the President’s reasoning, it is probably related to the fact that espionage represents a traditional activity, the primary purpose of which is to tackle national security threats and prevent any harm to the country. This consideration, however, leads to argue that intelligence and other activities aimed at protecting the country may require some amount of secrecy. However, such a conclusion contrasts with the President’s position: In the event of a true threat to the U.S. national security, the two political branches of government must ensure to each other the highest level of cooperation, and thus there should not be any room for executive secrecy. Furthermore, the fact that today, the concept of homeland security adds to the more old-fashioned concept of national security suggests that the whole picture of threats is more complicated and broader than it used to be in the past. However, one lesson may certainly be drawn from Nixon’s incoherence: despite being essential to spotting misbehavior in the executive branch, congressional investigations way well be biased, especially if they underlie interests that are blatantly different from that in increasing transparency in the Federal Government.
C. Congress’s Power of Inquiry Into the Executive Branch When There Is No Written