MEMORANDUM March 14 1975 Question has been raised as to the legal consequences which would follow if a government official should request his secretary to monitor all his telephone calls and thereafter to prepare from stenographic notes written transcripts of all or significant portions of such telephone calls For purposes of this memorandum it is assUl' ed unless otherwise indicated that such monitoring and transcribing is carried out without the specific consent of the other party to telephone calls It is further assumed that the transcript• are given at least limited circulation to other member• of the government official's office for their information and that a file of such transcripts is kept by the official's secretary for future reference 1 The first question presented is whether the practice of 11 0n±tQring and transcribing telephone calls is illegal In an opinion dated September 25 1974 this office expressed the view that the practice of monitoring and transcribing telephone calls is not illegal -2- 2 The second question is whether the transcripts of such monitored telephone calls could be regarded as the personal property of the official who arranged for the monitoring and transcription One can conceive of circumstances in which such a claim might be sustainable but the facts of the hypothetical case assumed at the outset would not sustain that claim Here the transcript is given at least limited circulation is used to inform other members of the staff of official actions to be taken and in effect becomes a document used in the execution of government business When these facts are put together with the fact that the calls themselves involve government business that the stenographer is employed by the government and that the transcripts are made on government time the result is that a claim that the transcripts 4re personal property becomes clear untenable Only if the transcripts were made and used exclusively by the government official himself would there be any chance of claiming that they are personal property and even then success is uncertain It will be recalled that Secretary of State Byrnes was a former shorthand reporter and used that skill to record his diplomatic negotiations His notes I believe would have been considered personal property -3- 3 The third question is whether the official who has kept files of transcripts of monitored telephone calls is free to destroy the transcripts If the transcripts were purely for his personal use then presumably he would be free to destroy them This would be all the more true if any such file was intended to be used as a temporary file in which case the file would be considered a working file and could be destroyed If however as we have heretofore assumed the transcripts were concerned with official business were circulated within the office for information of other officials in order to apprise them of actions to be taken by them then clearly such documents are official records and may not be destroyed 4 The fourth question is whether the transcripts of monitored telephone conversations are subject to production upon request by an ordinary citizen newspaperman or lawyer under the Freedom of Information Act we believe that the transcripts may properly be denied under Exception 5 5 u s c A S552 b 5 of the Freedom of Information Act on the ground that they are internal agency records to the extent that they DECLASSIFIED Authority l i D i1 I - -4- reveal the internal deliberative process leading to decision making within the Executive Branch However denial would not prevent the transcripts from being reviewed in camera by a court if the requesting individual elects to appeal the administrative denial to the courts The statute provides that after in camera inspection the judge is authorized to make his own detennination as to whether the transcripts fall within Exception 5 Any official who has preserved the transcripts would be obliged to supply them to the court for inspection in camera unless a constitutional objection based on executive privilege is sustained However the official could not invoke executive privilege without specific Presidential approval If the transcript involved information properly classified under Executive Order 11652 it could also properly be denied under Exception 1 of the Freedan of Information Act which provides for withholding information required to be kept secret for national defense or foreign policy reasons Again however the denial would be subject to court review This exception would be particularly relevant if the transcript involved conversations with a foreign government official DEDfulFIED Authority - 95 5r a_ I - -s- Special problems arise depending on the - status of the other party to the conversation which was monitored and transcribed If the other party is another official of the government Exception 5 as well as Exception 1 may be plausibly invoked party If the other s a foreign diplomat Exception 1 is plausible enough and appropriate in principle If however the other party is a member of the general public neither Exception 5 nor Exception 1 seems plausible Finally special problems arise depending on the status of the person requesting the transcript If that person was the other party to the telephone call which has been transcribed it will be very difficult to deny a request for a copy under the Freedom of Information Act Indeed none of the nine exceptions seems available to support denial and no precedent has been found in the cases Accordingly cur opinion is that any request from a party to the telephone call must be met s Th fifth question is whether transcripts of monitored telephone conversations are subject to production in response to congressional subpoena DECLASSIFIED Authority 1 1 f 9 5r a_ I -6- The answer to this question depends not on t he Freedom of Information Act but rather on the constitutional doctrine of executive privilege As previously noted specific Presidential approval must be secured before an official in the Executive Branch may interpose execut e privilege Assuming however that such approval is secured a major legal issue is presented for decision The Supreme Court for the first time in United States v Nixon No 73-1766 decided July 24 1974 addressed itself to the question of executive privilege In this case the Court rejected a claim of absolute privilege for Presidential records needed as evidence in a c·r iminal case not involving national security secrets At the same time the Court recognized a constitutional basis for the concept of executive privilege and reserved its position as to whether documents affecting military diplomatic or sensitive national security secrets were entitled to an absolute or only a qualified privilege The Court's views on the scop and nature of the privilege are best conveyed by quoting the following passages from its unanimous opinion in the Nixon case DECLASSIFIED J JD -l9 5r a_ Authority • • -7- Ho ·c ·cr nt·i th- r the cl Jt in - of - cp 1 r 1 1 0f' j J n·r nor the nc ·d for C J lf 1 •11ti dity of hiz h cvC'l commu11it t · tions · itl -0ut mot - rn 1 · 1in -1 1 1b o i tP ui 1 - li'Jd 1v·iv i ' t· ·1·1 'Ill ' · J rJ J l Ji• c '1 · l 1 l'O'•t• l r s 1rl 11' 1 _ ft •• ••'-' under all c-i ·cntl -t -dlCf 'r c r-s l clii's J CC·d f J l V ll•' plctc · 1 nclor nd objccfr ity frc1 1 th·i crs ca1ls fo · g i-cat clcfrrc11r -- fr01n the• rot r s Ho ·r- 'C'r wk 1 tht· privii - r depends okly un the bro' ld 1 1· 1 dil c· c nti tccl cbira of public i11krc t in tl c ro 1Ei c t tly of sucJ1 rcp · -1 1tiont a confront ttion wit o h · Y 11c - cs b cm a clnim c f 11c d lo pr0 tc- 't ini' t • lir' i n tic- c r 11 i' ivc 11alion 1l r·curit · crrts - °' fin it di 1 t lt tli 4 · p' tl c 'L -l• t C ' 'll 1J - 'I'' • 1·· C'Olln Tll''' 'll b J -i 1··v r ' • d 11· •c·· l fi l l'ti 1 c · 11· l 1•· 11 f'l '1i1· 1 i ·1c1• _ -i n1· 1•· ntl ·· climi11i b Ly prc1d _1r i l u uch rna 1· al fo it1 c 11 er 1 inspcctic 11 ith Ii hl' j irn t tti n tl t l t 1 ril 't ec•urt 1 will be c ·l rl tc p ·o icl ' · l o 1• t' ' L l i '-- -o v 1 1 ' l 11 'I I l o t 1 l 1 _ 4 • • l • • • • • • • 1 • - • o • - • - I 1 •• 1 _ 1 - • ' 0 DECLASSIFIED Authority l y9- 5Ca -8- 1·11 L'' I prt· ·1 ' • would pbce m tlir n- 1 y of thr pcimarv co11$titutional du y of the Ju J' · tlc·c· · ·m · crrn 111 · · J p ·o cc u• • 1c 1 •· l 11u •· 11·11 t • Io Ji l t1ons w01 l I pbii ly tonfl1ct with the function of the -comts under - rt ll I In designing the trur turc of our Governinrnt - nd di• i lin·· u1cl rdl0c 1tii1 6 tk - 01·- rr·i· u p ower amo1 th ·cri rorqt rd l ir nch2$ tl1c Frnm rs oi the Constitution sot ht to provide a romprd1 n sin· 1 y $tcm but the i rpnr 1 te pov ers were not i11tPndcd to oue ratc with r b oh1te indc j cndcnce · Th it 1 1 ' ditnl'••t ' · ·•' t • ' l •·• I· I •• i1 1tt llltljll ' Vhile the Constitution diffusC's po· n r the Lett er to secure liberty it 11 co11tcmpl itc· tli i t prnctic will intc-g ·f tc tl c cfopc-rE- -cl p iwns into 'Ol'l 1blc ovcrnme nt ft C'11j oi 1 upo l it bran 'ltcs f ' ' -tr 1lc1 c' s J 11 ' • 1 b u t 111ce t cpc·1 c 1c rntonomy b ut rrc1proc1ty Yow · ioi n f ' r - - Tub e 'a · Sric7Jcr 3- ' 3 V S 79 1 013 1 0 i2 hck on J conr urrin 6 s pro ·H n 'l'c l'rcad t c rt I I owc1s 01 U1 c r rc 1 e1 t nn ab ohit pfr -ilc c r 5 1f ninst a snlJJ ie na es e i i d to cnforc- -n r 1t o r ·i 1i1 nl ftn ti tC's 011 l O mm·c than - r cn- 1 cralizrcl ct i •1 of the pu' l c intr•r -t i 1 rc11 ' idcnti i1i y of 1 I • l l t p - • non m1ht - ry lltI no1 c11p c mntw c 1 c 011s ot ' ·------· ' -- - -- •--· 1l the con ·t1tuL 01 1l u 11 -wcc 01 a wc 1 1 c o ·crn 1 - -n f II I nml grnYciy imp ir th e ro c oi 1c court und 'r in J l C 1 I I 1• Sillc -- ·e conr uc • t l t l 1ite Jt _li lnnte 1 _- s o f t H' Ju 1ci l proct· -s nt ty 0111 - · i lt prv -idcmi l pri• ilC' e it il3 llC'CC - 1-- to renJq• to • '01 Jll t11 111 t'i'S S in a ll ' ll11cr th at pre t'n· t h ' C' '- - '1 t 11 fu11c·1i0 1s of cn h br 11rb Th right nnd illch· ' tl · tluiy 10 n 0h-e th 1t 1U ' -tion k 'S nc• fr• t 1 I j1 • ry f -c11n rc1·q ·1 i11 h h n· -- 'C C' • ' ' nt tt - · • l ' t ' Oil ·· · · - '·'- 1· r ' l ·It · ·· 111 • 1 1 tc flt ' l' ' ' 1 ·' 0 l'J' U11itcd ' c · J' fr •t t 1f 0 • 1 - lq - 1 J' 0 J- G l lSO -9- 'l'ht c q1 c 1tion 0f - P n • - d• 1it to the co11 icle 11tia litv oi his com·crs t 011 at d r n·e 'punrit ·1 ct' ii c the cl i i11 of onfrclenti i Y S i iu d ici d 1i1·' i1 1r•r t i01•s ior ex 1rnplr' h is all the value to · -hi l1 c7 ZOi· J k•Ierr-- c c foi the priYacy of all citizens nnd added to t hos Yalur th ncce it ' for prnt1 ction of ihe publ c int rc 3t in c 1ndicl o bjt'C' i c and cn 11 Llunt or h 11·fh ori nio ns i 1 prc id rn d c cci ionm iking A l'n·sid0nl n nci those who n i t hirn must be flee t o e - plorc al t • rnnti· v in the pru c s of h p i • g policies and 1u tl in g dcci -ion s a 1d to do so in i wny rn rny _would be un ·illi g to cxp ·c s rxccpt privately T hc ·e· 1 re the co11 id ral ions justiiyin a p iJ r c _ for p rcsiclcnti nl cr n1rnu11il' 1tions The p rivi kr c 1 - fti n- j cbmc-ntr l to t H' opr r cr ion of f O 'Ci' lm 1t n11d ii w - tric ly l rooted in th H' p ratio11 of po crs uncl e the Con ti t u- tion ' Jn fron · 8irfrr - - r S A ip P C' - S7 F d i 0' 1 173 the Court of ppr ds h el l th t f 1Ch prc i knt d ' ll m·11 r·a tiu1 trc ''p cC' · nrtin • · id nt 'ili nnd tl1i pi -iticrn - • cep ·u _ both p r rtie 3 in tht• prr r•nt lili - 1tio 1 n ·rcc wi h i Tr C11id Ju tiC'e br --li t1i ' • - · at i1111 thc ·cfo -l' th t in no r l C of th h i1 ci woul c- 1l11 t b ·r quir rl to proc --cd z 1i ' thC' I'ic id • il - g n - _ n 0 r lin u r in li clu '' r nit ii SifJf • · J 'T J• l 1 S l Vt ·7' l ' ' ••I __ g cl •Ui' 1 __ _C c·p i · _ _ __ __ __ 1 ·c 1 1 • - - DECLASSIFIED AuthorityMp t --1 --- '- • -10- The Nixon case involved a judicial subpoena issued in a criminal case in which accused defendants sought the materials in question But we are here considering the question whether a claim of executive privilege can be successfully asserted against a congressional subpoena If a congressional subpoena is resisted by the Executive the remedy for the Congress is to apply to the courts The Congress itself has no power to punish for contempt Kilbourn v Thompson 103 U S 168 1880 However Congress can provide by law for the punishment of contempt In re Chapman 166 U S 661 1897 2 u s c §192 makes it a misdemeanor to refuse to give testimony or to produce papers upon any matter under inquiry before either House or any committee of either House of Congress There are cases in which the courts have refused to punish for refusal to respond to congressional subpoenas because of defects in congressional procedures However for our purposes it should be assumed the Congress will be able to correct any deficiencies which may be found in the enabling resolution or in the procedures which preceded the issue of the subpoena DECLASSIFIED Authority 1 @y 5Co _ i • • -11- Ultimately therefore the courts will be called upon to decide whether a particular congressional subpoena is enforceable against a Presidentially approved assertion of executive privilege In that event one would predict on the basis of the language quoted above from the Nixon case that the courts would reject a generalized claim of executive privilege for transcripts of monitored telephone calls but might recognize the claim as to those portions of the transcripts which relate to military diplomatic or sensitive national security secrets or to records of the internal deliberations of the Executive Branch At this point in the analysis however it is necessary to take account of the differences between judicial and legislative procedures By long established tradition judicial proceedings are open to the public except in rare instances Moreover the adversary system presupposes full access by counsel on both sides to all relevant information In legislative proceedings on the other hand the executive session is a frequent occurrence Custanarily members of congressional committees are given access on a need-to-know basis to classified or secret information and documents Staff members of congressional committees are given security DECLASSIFIED MW i • • -12- clearances Classified files are maintained in t he committee rooms Thus the congressional committee can plausibly argue that it has procedures for protecting classified or secret information The force of this argument should not be underestimated nor could it b e disregarded by the President in making his decision as to whether to invoke executive privilege In the present state of the law no one can safely predict how much scope the courts would allow to a claim of executive privilege in the face of a congressional subpoena 9- i DECLASSIFIED Autliority ili