§ 682. Power of the President to Control the Institution and Prosecution of Suits by the Department of Justice.

The power of the President to control the institution and continuance of suits by the Attorney-General and his assistants may seem to some an improper one, but its existence has been recognized since the foundation of the government. In 1827 the Attorney-General declared that he "entertained no doubt of the constitutional power of the President to order the discontinuance of a suit for it is one of the highest duties to take care that the laws be faithfully executed, and consequently that they may not be abused by any officer under his authority or control, to the grievance of any citizen." In 1831 Taney, then AttorneyGeneral, declared: "If it should be said that the District Attorney having the power to discontinue the prosecution, there is no necessity for inferring a right in the President to direct him to exercise it, I answer that the direction of the President is not required to communicate any new authority to the District Attorney, but to direct him in the execution of a power he is admitted to possess. The most valuable and proper measure may often be for the President to order the District Attorney to discontinue prosecution. The District Attorney might refuse to obey the President's order; and if he did refuse, the prosecution, while he remained in office, would still go on; because the President himself could give no order to the court or to the clerk to make any particular entry. He could act only through his subordinate officer, the District Attorney, who is responsible to him and who holds his office at his pleasure. And if that officer still continue. a prosecution which the President is satisfied ought not to continue, the removal of the disobedient officer and the substitution of one more worthy in his place would enable the President through him faithfully to execute the law. And it is for this among other reasons that the power of removing the District Attorney resides in the President." 24

24 Op. Atty.-Gen., II, 482.

In United States v. San Jacinto Tin Co.25 and United States v. Bell Telephone Co.26 was upheld a general power of the Attorney-General and of his assistants, acting not in pursuance of any express statutory authority, but under their general powers as officers for the enforcement of the legal rights of the United States, to institute suits. In the first case the court say: "If the United States in any particular case has a just cause for calling upon the judiciary of the country, in any of its courts for relief the question of the appeal to the judicial tribunals of the country must primarily be decided by the AttorneyGeneral of the United States. We are not insensible to the enormous power and its capacity for evil thus reposed in that department of the Government. But it has often been said that the fact that the exercise of power may be abused is no sufficient reason for denying its existence, and if restrictions are to be placed upon the exercise of this authority by the AttorneyGeneral it is for the legislative body which created the office to enact them."

§ 683. Information to Congress.

The constitutional obligation that the President "shall from time to time give to the Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient," 27 has, upon occasion, given rise to controversy between Congress and the President as to the right of the former to compel the furnishing to it of information as to specific matters. As a result of these contests it is practically established that the President may exercise a full discretion as to what information he will furnish, and what he will withhold.28

25 125 U. S. 273; 8 Sup. Ct. Rep. 850; 31 L. ed. 747.

26 128 U. S. 315; 9 Sup. Ct. Rep. 90; 32 L. ed. 450. 27 U. S. Const., Art. II, Sec. III.

28 In Field v. People (3 Ill. 79) the general question as to the right of a governor to refuse, at his discretion, to supply the legislature with information and papers demanded of him, was carefully considered by the court. In the course of its opinion the court say:

"The President may require the opinion of the heads of departments, their

During the administration of Cleveland a vigorous and long continued controversy was waged as to the right of the Senate or of its committees to obtain from the office of the Attorney-General certain papers bearing upon certain suspensions from office made by the President. At this time the law of 1567, as amended by that of 1869, was in force, which placed various limitations upon the powers of the President with respect to suspensions and removals from office. One George W. Duskin having been suspended, during the recess of the Senate, from the office of District Attorney, and one J. D. Burnett appointed as his successor, the Senate, when called upon to confirm the nomination of Burnett, through the Judiciary Committee called upon the Atviews, counsel, and advice, relative to the legality or policy of measures. In this exercise of the right he calls on one or more, according to the difficulty or importance of the subject; but whether the consultation is separate, or in cabinet counsel, it is always private and confidential, and is so regarded, not only by the officers but by the law also; for none of the officers or their clerks (who are sworn to secrecy) can be required to give testimony of transactions, or matters of a confidential character. But neither in contemplation of law, nor in fact, is there any official confidential intercourse between the Governor and Secretary, or other officers of the executive departments. He may call upon them for information relative to matters connected with their offices. He may, for example, enquire of the Treasurer what amount of money is in the Treasury, of the Auditor, what amount of warrants are outstanding, and of the Secretary, what are the kind and number of commissions to which he has put the State seal; or whether the laws are all distributed, etc. These are all public matters, in reference to which there can be no secrecy, nor confidence, and it is only in relation to such that the Governor can require information. He has no right to the opinion or advice of the Secretary, as to the legality or propriety of measures of any kind; and as all the duties of the Secretary are prescribed by law, and as it is only in relation to them that he can be required to give information, there cannot, therefore, in the nature of things, be any implication of confidence from communications relative to a public law or to matters of fact recorded for public information.

"The reasoning in favor of the Governor's authority to remove the Secretary, because of the latter's duty to register his official acts, can have no application to the Secretary of State; an officer whose office is created, and whose duty to keep a register of the acts of the Governor is prescribed by the Constitution. In the performance of this, as of other duties, he does not act as the Governor's officer, subject to his control and direction, but as the officer of the Constitution, bound to the performance of such duties only as have been assigned by that instrument and the law."

torney-General to send to it all papers and information in the Department of Justice bearing upon the nomination of Burnett, as well as "all papers and information touching the suspension and proposed removal from office of George W. Duskin." To this request the following reply was given: "The Attorney-General states that he sends herewith all papers, etc., touching the nomination referred to; and in reference to the papers touching the sus pension of Duskin from office, he has as yet received no direction from the President in relation to their transmission."

Previously to this the committees of the Senate had made requests for information upon the heads of various of the other departments, which requests had been refused at the direction of the President. The Senate now, January 25, 1886, however, as a body, and not through one of its committees, made a demand in the following terms: "Resolved, that the Attorney-General of the United States be, and he hereby is, directed to transmit to the Senate copies of all documents and papers . . . in relation to the conduct of the office of District Attorney of the United States for the Southern District of Alabama." To this demand the Attorney-General replied: "In response to the said resolution, the President of the United States directs me to say that the papers and documents which are mentioned in the said resolution and still remaining in the custody of the Department, having exclusive reference to the suspension by the President of George M. Duskin it is not considered that the public interests will be promoted by a compliance with the said resolution." Thereupon the Senate adopted a vigorous resolution of condemnation of the action of the President,29 declaring it to be "in violation of his official duty and subversive of the fundamental principles of the Government, and of a good administration thereof." Accompanying this resolution a majority and minority report were made by the Judiciary Committee.30

On March 1, 1886, President Cleveland in a special message

29 Feb. 18, 1886. Sen. Miscl. Doc. No. 74, 49th Cong., 1st Sess.

30 Senate Report No. 135, 49th Cong., 1st Sess.

to the Senate argued at length the propriety and constitutionality of his position.

The constitutionality of his position would seem to be clear. The point has never been precisely passed upon in the courts, but in Totten v. United States the court declared that an action against the Government in the Court of Claims upon a contract for secret services could not be maintained because "the secrecy which such contracts impose precludes any action for their enforcement. The publicity produced by an action would itself be a breach of a contract of that kind, and thus defeat a recovery." The opinion then goes on to declare, obiter, “It may be stated as a general principle, that public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential, and respecting which it will not allow the confidence to be violated." 32

§ 684. The President's Control of Foreign Relations.

In the chapter dealing with the Treaty-Making Power, the extent of the President's control of the foreign relations of the United States was fully considered.

§ 685. The Veto Power of the President.

The exercise by the President of the veto power has given rise to very few constitutional questions, and, where these have arisen, they have been considered, incidentally, elsewhere in this treatise.33

§ 686. The President's Pardoning Power.

The Constitution provides that the President "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

31 92 U. S. 105; 23 L. ed. 605.

32 For a further discussion of this subject see speech of Senator A. O. Bacon, Jan. 13, 1909, Cong. Rec. vol. 43, p. 1011ff. See also debate in the Senate, March 3, 1909, Cong. Rec. vol. 43, p. 3813ff.

33 Chapter XXXIX.