|
Abstract: Despite its significance, the actual extent or the privilege of the legislature to keep its papers confidential has not been fully considered. As a foundation for further analysis, this article analyzes the current claims of plenary congressional privilege in the light of history. It will be shown that congressional claims of privilege are considerably more qualified and limited than those that have been attributed to Congress of late, and that the only ancient and invariable precedent is the one which protects original copies of legislative papers.
If one looks solely to the sweeping language of modern resolutions passed by Congress in response to subpoenas for its papers, it is easy to conclude that Congress has always asserted absolute and unreviewable discretion to withhold documentary evidence subpoenaed for judicial purposes. However, this superficial analysis removes these words from their historical context. In the earliest congressional responses to subpoenas for papers, Congress never asserted any privilege based on the confidentiality of its papers. Rather, its concern and its resolutions were directed toward protecting its original documents and ensuring that its agents would not act in this sensitive area without explicit authorization. What, at first glance, may seem to be powerful words of privilege thoughtfully included in the first paragraph of all contemporary resolutions can thus be traced directly back to a claim of absolute privilege only as to the production of original papers. The routine reiteration of these words in modern times should not invest them with an autogenous meaning.
|