        Investigative Authority of the General Accounting Office


T he G eneral A ccounting Office lacks statutory authority to review the E xecutive’s discharge o f its
   constitutional foreign policy responsibilities.

G A O is precluded by the Intelligence O versight Act from access to intelligence inform ation.

T he m em orandum also reviews generally the executive privilege principles that apply in the contexts
   o f intelligence, law enforcem ent, and deliberative process inform ation.

                                                                                               August 16, 1988

                 M   em o ran d u m   O p in io n    fo r the     E x e c u t iv e S e c r e t a r y
                                 N    a t io n a l   S e c u r it y C o u n c i l

                                Introduction and Summary
   This memorandum is in response to your request for the opinion of this Office
on whether, or to what extent, the Administration has a legal basis for declining
to cooperate with the pending General Accounting Office (“GAO”) investigation
concerning U.S. foreign policy decisions with respect to Manuel Noriega. In its
June 23,1988 letter to the National Security Council, GAO described the nature
and purpose of the investigation: In order to evaluate whether “information about
illegal activities by high level officials of other nations may not be adequately
considered in U.S. foreign policy decisions . . . , the General Accounting Office
is undertaking an initial case study of how information about General Noriega
was developed by various government agencies, and what role such information
played in policy decisions regarding Panama.” As stated in the National Security
Council’s response to GAO of July 13,1988, representatives of GAO have made
it clear that GAO’s “three areas of interest [are] intelligence files, law enforce­
ment files, and the deliberative process of the Executive branch, including inter­
nal communications and deliberations leading to Executive branch actions taken
pursuant to the President’s constitutional authority.”
   Specifically, you have asked this Office to advise you as to whether the GAO
investigation is within GAO’s statutory authority; whether there are statutory or
constitutional grounds for denying GA O ’s request to the extent it is directed
specifically at intelligence information, at law enforcement information, or at de­
liberative process information; and whether there are other grounds for denying
GAO’s request in whole or in part. As explained below, we conclude that on the
present record the GAO investigation is beyond GAO’s statutory investigative

                                                        171
authority.1 Because of this conclusion it is unnecessary to address any constitu­
tional basis for challenging GAO’s authority to conduct the investigation. In ad­
dition, we are unable to evaluate the strength of any constitutional objection to
providing particular information because specific information requests have not
yet been made. As a matter of general guidance, however, we outline the consti­
tutional principles which would be applied in evaluating whether particular in­
formation can be withheld.

I. Authority to Conduct the Investigation

         A. G AO ’s Investigative Authority

                   1. Statutory Limitations
   G A O ’s investigative authority is set forth in subchapter II of chapter 7 of title
31 o f the U.S. Code. Except for section 7 17(b), the various grants of authority in
subchapter II are limited to auditing the finances of government agencies and are
thus inadequate bases for the GAO Noriega investigation, which clearly goes well
beyond a financial audit. See 31 U.S.C. §§ 711-715. Accordingly, GAO must
base this investigation on its authority in section 717(b) to “evaluate the results
of a program or activity the Government carries out under existing law.” 2 Op.
O.L.C. 415,420 (1978) (emphasis added) (where a GAO investigation goes be­
yond fiscal matters, GAO’s authority must be based on section 204(a), the sub­
stantially identical predecessor version of section 717(b)).
   We believe as a matter of statutory construction that the phrase “program or
activity . . . under existing law ” must refer only to activities carried out pursuant
to statute, and not activities carried out pursuant to the Executive’s discharge of
its own constitutional responsibilities.2 The juxtaposition of “program or activ­
ity” with “existing law” strongly suggests an intent to refer to statutory respon­
sibilities. Moreover, the use of the qualifier “existing” appears to suggest that the
laws at issue are statutes that m ay lapse rather than constitutional authorities of
the President, which are of greater permanence. Finally, the legislative history of
section 717(b) confirms that Congress’ focus of concern was the oversight of its
legislative programs: “It is intended that in performing [evaluations under sec­
tion 7 17(b)], the Comptroller General shall review and analyze Government pro­
gram results in a manner which will assist the Congress to determine whether
those programs and activities are achieving the objectives of the law.” H.R. Rep.
No. 1215,91st Cong., 2d Sess. 82 (1970). Nothing in the legislative history man­

    1 M oreover, in addition to G A O ’s lack o f statutory authority to pursue this investigation, we believe that the In­
telligence Oversight A ct for Fiscal Year 1981, Pub. L. No. 9 6-450, § 407,94 Stat. 1975, 1981 (1980), extinguishes
w hatever authority GAO might otherwise possess in gaining access to intelligence information
    2 The views we express here concerning the limitations on G A O ’s investigative authority under section 717(b)
are not novel. In 1978, the O ffice opined that G A O ’s authonty under the similarly worded predecessor to 717(b)
did not extend to the discharge o f the President's constitutional, as opposed to statutory, responsibilities. 2 Op.
O.L.C. 415, 420 (1978) (“ [T]he appointment o f officers o f the United States by the President by and with the ad­
vice o f the Senate does not constitute a G overnment program or activity carried out under existing law . . . . ”).


                                                           172
ifests any congressional intent to extend GAO’s investigative authority beyond
statutory programs into the Executive’s discharge of its constitutional responsi­
bilities. See S. Rep. No. 924, 93d Cong., 2d Sess. 72 (1974); S. Rep. No. 202,
91st Cong., 1st Sess. (1969); H.R. Rep. No. 1215, supra, at 18, 34, 81-84; 116
Cong. Rec. 24,597 (1970).

          2. GAO Has Not Justified its Investigation Under Section 717(b)
    We conclude on the record before us that GAO has not established that it has
authority under section 717(b) to pursue this investigation. The subject of the in­
vestigation according to GAO is foreign policymaking, a subject matter which is
generally within the purview of the President’s power under Article II of the Con­
stitution. GAO has failed to assert any interest in evaluating the results of any
specific statutory program or activity that may relate to foreign policy.
    As this Office has consistently observed,3 Section 1 of Article II confers on
the President plenary authority to represent the United States and to pursue its
interests outside the borders of the country, subject only to limits specifically set
forth in the Constitution itself and to such statutory limitations as the Constitu­
tion permits Congress to impose by exercising one of its enumerated powers. See
generally United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).
Specifically, the President’s constitutional authority includes the authority to ne­
gotiate with foreign nations, to articulate the foreign policy of the United States,
to carry out diplomatic and intelligence missions, and to protect the lives of Amer­
icans abroad. Id.
    Of course, pursuant to its own substantial authority under the Commerce
Clause and its exclusive power of appropriation, Congress has enacted statutes
that relate to the foreign policy of the United States. For instance, Congress has
appropriated funds for foreign assistance and enacted statutes regulating arms
sales to foreign governments. If GAO were to express a specific interest in ma­
terials relating to such statutes, there would be reasonable and legitimate ques­
tions as to which materials were within the scope of G AO’s section 717(b) au­
thority, and which were not.
    The request before us, however, does not present these close questions. The
GAO letter of June 23,1988 makes it clear that foreign policymaking is the sub­
ject of the GAO investigation, and it provides no basis for concluding that GAO
is interested in reviewing Executive foreign policymaking pursuant to statutory
authority. The GAO letter states that the GAO investigation is premised on a con­
cern that “information about illegal activities by high level officials of other na­
tions may not be adequately considered in U.S. foreign policy decisions” and that
it is directed at learning “what role [information about General Noriega] played
in policy decisions regarding Panama.” The GAO letter thus demonstrates an in­


    3    See, e g , Memorandum for Judith H. Bello, General Counsel, Office of the United States Trade Representa­
tive, from Charles J. Cooper, Assistant Attorney General, Office o f Legal Counsel, Re The President's Authority
to Terminate the International Express M ail Agreement With Argentina Without the Consent o f the Postal Service
(June 2, 1988).


                                                     173
terest in our “diplomatic” or “national security” foreign relations with Panama
and General Noriega, and provides no basis for concluding that it relates to ac­
tivities undertaken by the Executive under any specific statute.
   We therefore conclude based on the nature of the GAO request that the sub­
ject of the GAO investigation is the Executive’s discharge of its constitutional
foreign policy responsibilities, not its statutory responsibilities. The subject is
thus not “a program or activity the Government carries our under existing law,”
and it is beyond GAO’s authority under 31 U.S.C. § 717(b). Accordingly, unless
this request is tailored to inquire specifically about a program or activity carried
out under existing statutory law, we believe there is no obligation to grant GAO
access to executive branch agencies for purposes of conducting this investiga­
tion.
        B. Intelligence Oversight
   In addition to the infirmity in GAO’s statutory authority to pursue this inves­
tigation, we believe that GAO is specifically precluded by statute from access to
intelligence information. In establishing by law the oversight relationship be­
tween the intelligence committees and the executive branch, Congress indicated
that such oversight would be the exclusive means for Congress to gain access to
confidential intelligence information in the possession of the executive branch.4
   This intelligence oversight system has been codified at 50 U.S.C. § 413. That
section sets forth requirements for the Director of Central Intelligence, the heads
of all other federal agencies involved in intelligence activities, and the President
to inform the Congress through the intelligence committees (and in some cir­
cumstances the Speaker and minority leader of the House of Representatives and
the majority and minority leaders of the Senate) of intelligence activities.
   The legislative history of section 413 makes it clear that both the legislative
and executive branches believed they were establishing a comprehensive scheme
for congressional oversight of intelligence activities that would constitute the ex­
clusive means of congressional oversight. As President Carter stated when he
signed the section into law, it
           establishes, for the first time in statute, a comprehensive system
           for congressional oversight of intelligence activities The over­
           sight legislation that was passed ... codifies the current practice

     4 As a general matter, intelligence gathering is often viewed as a form of diplomatic activity that is within the
President’s Article n powers. As Professor Louis Henkin has noted, “[t]he gathering of information is a principal
purpose of sending ambassadors and maintaining diplomatic relations, an exclusive Presidential power. It is only
a small extension to conclude that gathering information by any means is part of the President’s ‘eyes and ears’
function. There is, therefore, a strong case for presidential authonty to obtain intelligence not only through our em­
bassies but also through our agents representing the Executive . . . . ” Letter from Louis Henkin to Representative
Louis Stokes, March 31, 1987, reprinted in HM. 1013, H.R. 1371, and Other Proposals Which Address the Issue
o f Affording Prior Notice of Covert Actions to Congress: Hearings Before the Subcomm on Legislation o f the House
Permanent Select Comm, on Intelligence, 100th Cong., 1st Sess. 221 (1987).

                                                       174
           and relationship that has developed between this administration
           and the Senate and House intelligence committees over the past
           3 years.5
   Senator Huddleston, sponsor of the floor amendment containing the version
of section 413 that was enacted into law, emphasized upon the amendment’s in­
troduction the comprehensive and exclusive nature of the scheme being estab­
lished: “this amendment is identical to Senate bill 2284 which the Senate passed
by a vote of 89 to 1 on June 3 of this year. It is a bill that establishes the con­
gressional oversight procedures dealing with our intelligence agencies.”6 Sena­
tor Huddleston also agreed, in a floor colloquy with Senator Javits on S. 2284,
with the following statement by Senator Javits:
           1 agree thoroughly with the need for simplifying [the practice of
           the oversight committees]. There are some seven committees here
           that could have had this wrestling match with the executive . . . .
           I am satisfied ... that the method we now have chosen ... repre­
           sents a fair, effective, and objective way in which to accomplish
           the results of simplifying the intelligence relations between the
           President and Congress ... and limiting further the opportunities
           for misadventure, premature disclosure, and so forth . . . . What
           we are doing is simply legislating... a new arrangement or modus
           vivendi for the handling of information and consultations between
           Congress and the intelligence agencies ... ?
   The Senate report on S. 2284 also confirms the understanding that congres­
sional oversight with respect to intelligence matters was to be limited to the in­
telligence committees. In the “general statement” that preceded the section by
section analysis, the report noted:
              Out of necessity, intelligence activities are conducted primar­
           ily in secret. Because of that necessary secrecy, they are not sub­
           ject to public scrutiny and debate as is the case for most foreign
           policy and defense issues. Therefore, the Congress, through its in­
           telligence oversight committees, has especially important duties
           in overseeing these vital activities by the intelligence agencies of
           the United States. [50 U.S.C. § 413] is intended to authorize the
           process by which information concerning intelligence activities

    3 16 Weekly Comp. Pres. Doc. 2231 (Oct. 14, 1980).
    6 126 Cong. Rec. 17,692 (1980).
    7 126 Cong. Rec. 17,692-93 (1980) Senator Moyruhan agreed with the position of Senators Huddleston and
Javits that a major purpose of the Intelligence Oversight Act was to reduce the number of congressional commit­
tees that sought intelligence information: “there is a rule of intelligence, which the Senator [Javits] knows well from
his wartime experience, which is that you protect sensitive information by compartmentation. The more important
that matter is the fewer persons you want to know about i t . . . . ” Id. at 17,694.

                                                         175
           of the United States is to be shared by the two branches in order
           to enable them to fulfill their respective duties and obligations to
           govern intelligence activities within the constitutional framework.
           The Executive branch and the intelligence oversight committees
           have developed over the last four years a practical relationship
           based on comity and mutual understanding, without confronta­
           tion. The purpose of [section 413] is to carry this working rela­
           tionship forward into statute.8
   Based on the evidence of intent on the part of both the legislative and execu­
tive branches that oversight by the intelligence committees would be the exclu­
sive method of congressional oversight concerning intelligence information, we
conclude that 50 U.S.C. § 413 stands as statutory authority for the Administra­
tion to decline to provide GAO with access to any intelligence information sought
in the Noriega investigation.
II. Executive Privilege
   Should GAO, in response to an appropriate direction from Congress, subse­
quently undertake an investigation properly related to its statutory authority, it
would then be necessary to review established principles concerning the main­
tenance of confidentiality with respect to certain executive branch information.
Congressional investigations normally do not pose this problem to the degree
suggested by the pending GAO investigation because they are properly tailored
to address non- confidential subjects. Disturbingly, and in contrast, the type of
information in which GAO expressed interest in its letter of June 23, 1988 sug­
gests a desire to review confidential material generally not available outside the
executive branch, such as intelligence, law enforcement, and deliberative process
information.9
   Since GAO has not yet made any specific requests, we cannot analyze the case
for withholding any particular document or information. What we do below is
summarize briefly the general executive privilege principles that apply in the in­
dividual contexts of intelligence, law enforcement, and deliberative process in­
formation.
        A. Protection of Intelligence Information
  In the hierarchy of executive privilege, the “protection of national security”
constitutes the strongest interest that can be asserted by the President and one to
     8 S Rep. No. 730, 96th Cong., 2d Sess. 5 (1980) (emphasis added) More specifically, the Senate report stated
that “[t]his amendment repeals the congressional reporting requirement of the Hughes-Ryan Amendment of 1974
. . . The effect is to limit reporting to the two intelligence oversight committees, as compared with the seven com­
mittees that now receive such reports . . . ” Id at 5.
     9 This subject is usually discussed in terms of “executive privilege,” and we will use that convention here. The
question, however, is not strictly speaking just one of executive privilege. The pnvdege itself need not be claimed
formally vis-a-vis Congress except m response to a lawful subpoena

                                                        176
which the courts have traditionally shown the utmost deference. In United States
v. Nixon, for instance, the Court contrasted President Nixon’s claim of executive
privilege based on the Executive’s general interest in confidentiality with a claim
based on the President’s national security responsibilities:

        [President Nixon] does not place his claim of privilege on the
        ground they are military or diplomatic secrets. As to these areas
        of Art. II duties the Courts have traditionally shown the utmost
        deference to Presidential responsibilities.

418 U.S. 683,710(1974) (emphasis added).

      B. Protection of Law Enforcement Information
   With respect to open law enforcement files, it has been the policy of the ex­
ecutive branch throughout our Nation’s history to protect these files from any
breach of confidentiality, except in extraordinary circumstances. Attorney Gen­
eral Robert H. Jackson well articulated the basic position:
           It is the position of this Department, restated now with the ap­
        proval of and at the direction of the President, that all investiga­
        tive reports are confidential documents of the executive depart­
        ment of the Government, to aid in the duty laid upon the President
        by the Constitution to “take care that the Laws be faithfully exe­
        cuted,” and that congressional or public access to them would not
        be in the public interest.
          Disclosure of the reports could not do otherwise than seriously
       prejudice law enforcement. Counsel for a defendant or prospec­
       tive defendant, could have no greater help than to know how much
       or how little information that Government has, and what witnesses
       or sources of information it can rely upon. This is exactly what
       these reports are intended to contain.
40 Op. Att’y Gen. 45, 46 (1941).
   There are, however, circumstances in which the Department of Justice may
decide to disclose to Congress information about prosecutorial decisions. This is
particularly true where an investigation has been closed without further prose­
cution. In such a situation concerns about real or perceived congressional inter­
ference with an investigation, and about the effects of undue pretrial publicity on
a jury, would disappear. Still, extreme caution must be applied whenever the dis­
closure of such records is contemplated. Much of the information in a closed
criminal enforcement file such as unpublished details of allegations against par­
                                        177
ticular individuals and details that would reveal confidential sources and inves­
tigative techniques and methods would continue to merit protection.
         C. Protection of Deliberative Process Information
    The Constitution gives the President the power to protect the confidentiality
of deliberations within the executive branch. See Nixon v. Administrator of Gen.
Servs., 433 U.S. 425, 446 455 (1977); United States v. Nixon, 418 U.S. at 708.
This is independent of the President’s power over foreign affairs or national se­
curity, or law enforcement; it is rooted instead in “the necessity for protection of
the public interest in candid, objective, and even blunt or harsh opinions in Pres­
idential decisionmaking.” Id. at 708. The Supreme Court has held that, for this
reason, communications among the President and his advisers enjoy “a pre­
sumptive privilege” against disclosure in court. Id.
    The reasons for this privilege, the Court said in United States v. Nixon, are
“plain.” “Human experience teaches that those who expect public dissemina­
tion of their remarks may well temper candor with a concern for appearances
and for their own interests to the detriment of the decisionmaking process.” Id.
at 705. Often, an advisor’s remarks can be fully understood only in the context
of a particular debate and of the positions others have taken. Advisors change
their views, or make mistakes which others correct; this is indeed the purpose
of internal debate. The result is that advisors are likely to be inhibited if they
must anticipate that their remarks will be disclosed to others, not party to the
debate, who may misunderstand the significance of a particular statement or
discussion taken out of context. Some advisors may hesitate out of self interest
to make remarks that might later be used against their colleagues or superiors.
As the Supreme Court has stated, “[a] President and those who assist him must
be free to explore alternatives in the process of shaping policies and making de­
cisions and to do so in a way many would be unwilling to express except pri­
vately.” Id. at 708.
    These reasons for the constitutional privilege have at least as much force when
it is Congress, instead of a court, that is seeking information.10The United States
Court of Appeals for the District of Columbia Circuit has explicitly held that
the privilege protects presidential communications against congressional in­
quiries."
    10 The Supreme Court has assumed that the constitutional privilege protects executive branch deliberations
against Congress to some degree. See United States v Nixon, 418 U S. at 712 n.19. Moreover, in Nixon v. Admin­
istrator o f Gen. Servs., 433 U.S. 425 (1977), the Court held that the constitutional privilege protects executive
branch deliberations from disclosure to members of the same branch in a later administration; the Court rejected
the specific claim of privilege in that case not because the privilege was inapplicable but because the intrusion was
limited and the interests justifying the intrusion were strong and nearly unique. See id. at 446-55.
    11 During the Watergate investigation the court of appeals rejected a Senate committee’s efforts to obtain tape
recordings of conversations in President Nixon’s offices The court held that the tapes were constitutionally privi­
leged and that the committee had not made a strong enough showing to overcome the privilege. Senate Select Comm,
on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C Cir 1974) (en banc). The court held that the com­
mittee was not entitled to the recordings unless it showed that “the subpoenaed evidence is demonstrably critical
to the responsible fulfillment of the Committee’s functions ” Id at 731 (emphasis added).

                                                        178
         D. Accommodation with Congress
              1. Governing Principles
   Because a claim of executive privilege is not absolute, the executive branch
has a duty to seek to accommodate requests that are within Congress’ legitimate
oversight powers. See United States v. AT&T, 567 F.2d 121, 127 130 (D.C. Cir.
1977) (suggesting that, even when a claim of executive privilege rests on national
security grounds, the Executive does not enjoy clear and absolute discretion to
deny legitimate congressional requests for information, but that each of the two
branches must attempt to balance and accommodate the legitimate needs of the
other).12 This duty of accommodation means that the Executive should attempt
to satisfy the requests of Congress as completely as it can without making harm­
ful disclosures. See Memorandum for the Attorney General from John M. Har­
mon, Assistant Attorney General, Office of Legal Counsel, Re: The Constitu­
tional Privilege for Executive Branch Deliberations: The Dispute with a House
Subcommittee over Documents Concerning the Gasoline Conservation Fee (Jan.
13, 1981). In this spirit, the Executive has occasionally offered Congress sum­
maries of documents prepared in such a manner as not to disclose, for example,
deliberative aspects that might chill executive branch decisionmaking. See id. at
22-23.
   The nature of the accommodation required in responding to a congressional
request for information depends on the balance of interests between the Execu­
tive and Congress. In order for its interests to be given weight, Congress must ar­
ticulate its need for the particular materials; it must “point[] to . .. specific leg­
islative decisions that cannot responsibly be made without access to materials
uniquely contained” in the presumptively privileged documents (or testimony) it
has requested, and show that the material “is demonstrably critical to the re­
sponsible fulfillment of the Committee’s functions.” Senate Select Comm, on
Presidential Campaign Activities v. Nixon, 498 F.2d at 731, 733.13
    12 It should be emphasized, however, that in United States v. AT&T the information Congress sought related to
wiretaps on American citizens placing telephone calls from the United States. Although these wiretaps were justi­
fied on national security grounds and the President, in turn, could assert national security as a basis for withhold­
ing the information, Congress clearly had a substantial interest in this subject matter, because the wiretaps impli­
cated the individual rights of American citizens. Accordingly, we believe that a court may view the relative weights
of executive and legislative interests differently when the information sought relates directly to the conduct of for­
eign relations rather than to the rights of American citizens.
    13 In Senate Select Committee, for example, the court held that the committee had not made a sufficient show­
ing of need for copies of the presidential tape recordings, given that the President had already released transcripts
of the recordings. The committee argued that it needed the tape recordings “in order to verify the accuracy o f’ the
transcripts, to supply the deleted portions, and to gain an understanding that could be acquired only by hearing the
inflection and tone of voice of the speakers. But the court answered that in order to legislate a committee of Con­
gress seldom needs a “precise reconstruction of past events.” 498 F.2d at 732. “The Committee has . . . shown no
more than that the materials deleted from the transcripts may possibly have some arguable relevance to the subjects
it has investigated and to the areas in which it may propose legislation. It points to no specific legislative decisions
that cannot responsibly be made without access to materials uniquely contained in the tapes or without resolution
of the ambiguities that the transcripts may contain.” Id. at 733. For this reason, the court stated, “the need demon­
strated by the Select Committee .. is too attenuated and too tangential to its functions” to override the President’s
constitutional privilege Id

                                                         179
            2. Procedural Issues
   Only rarely do congressional requests for information result in a subpoena of
an executive branch official or in other congressional action. In most cases the
informal process of negotiation and accommodation recognized by the courts,
and mandated for this Administration by President Reagan,14 is sufficient to re­
solve any dispute. On occasion, however, the process breaks down, and a sub­
poena is issued by a congressional committee or subcommittee.15 At that point,
it would be necessary to consider asking the President to assert executive privi­
lege. Under the terms of the President’s Memorandum, executive privilege can­
not be asserted vis-a-vis Congress without specific authorization by the Presi­
dent, based on recommendations made to him by the concerned department head,
the Attorney General, and the Counsel to the President.
                                                 Conclusion
   We believe that there are statutory grounds which preclude GAO’s present re­
quest for access to executive branch agencies for the purposes of conducting the
investigation described in its letter of June 23, 1988. Should GAO’s request be
reformulated in a manner which properly relates it to a congressional interest
within the terms of 31 U.S.C. § 717(b) and which comports with the statutory re­
strictions on access to intelligence information found in 50 U.S.C. § 413, it will
be appropriate at that time to consider the application of additional lawful au­
thority to withhold particular national security, intelligence, law enforcement, or
deliberative process information. This Office is available for consultation with
respect to requests for particular documents or information.
                                                                        D o u g l a s W . K m ie c
                                                              Acting Assistant Attorney General
                                                                   Office of Legal Counsel
    14 President Reagan’s November 4,1982 Memorandum for the Heads of Executive Departments and Agencies
on “Procedures Governing Responses to Congressional Requests for Information” states:
        The policy of this Administration is to comply with Congressional requests for information to the
        fullest extent consistent with the constitutional and statutory obligations of the Executive Branch .
        [E]xecutive pnvilege will be asserted only in the most compelling circumstances, and only after care­
        ful review demonstrates that assertion of the privilege is necessary Historically, good faith negotia­
        tions between Congress and the Executive Branch have minimized the need for invoking executive
        privilege, and this tradition of accommodation should continue as the primary means of resolving con­
        flicts between the Branches.
    15 In the current context, such a subpoena could only be issued after GAO had reported to its congressional re­
quester that it was unable to obtain the information from the executive branch. Before requesting that a congres­
sional committee issue a subpoena, GAO might attempt to enforce its request for information pursuant to the judi­
cial enforcement mechanism authorized under 3 1 U S C §716. Such a course of action could be successfully resisted
by the executive branch without a claim of executive pnvilege, however, because judicial enforcement is precluded
whenever the Director of the Office of Management and Budget or the President certify that the information could
be withheld under exemptions (b)(5) (information withholdable in litigation) or (b)(7) (law enforcement informa­
tion) of the Freedom of Information Act (5 U.S.C. § 552(b)(5), (b)(7)) and ‘‘disclosure reasonably could be expected
to impair substantially the operations of the Government." 31 U S C § 716(d)(1)(C). Upon such a certification,
GAO would presumably refer enforcement to the congressional committee.

                                                        180
