United States Touhy v. Ragen v. 27 8212 28, 1950, No. 83

CourtUnited States Supreme Court
Writing for the CourtREED
Citation71 S.Ct. 416,340 U.S. 462,95 L.Ed. 417
Decision Date26 February 1951
Docket NumberNo. 83
PartiesUNITED STATES ex rel. TOUHY v. RAGEN et al. Argued Nov. 27—28, 1950

340 U.S. 462
71 S.Ct. 416
95 L.Ed. 417
UNITED STATES ex rel. TOUHY

v.

RAGEN et al.

No. 83.
Argued Nov. 27—28, 1950.
Decided Feb. 26, 1951.

Mr. Robert B. Johnstone, Chicago, Ill., for petitioner.

Page 463

Mr. Robert S. Erdahl, Washington, D.C., for respondent George R. mCswain.

Mr. Justice REED delivered the opinion of the Court.

This proceeding brings here the question of the right of a subordinate official of the Department of Justice of the United States to refuse to obey a subpoena duces tecum ordering production of papers of the Department in his possession. The refusal was based upon a regulation1 issued by the Attorney General under 5 U.S.C. § 22, 5 U.S.C.A. § 22.2

Petitioner, Roger Touhy, an inmate of the Illinois State penitentiary, instituted a habeas corpus proceeding in the United States District Court for the Northern District of Illinois against the warden, alleging he was restrained in violation of the Due Process Clause of the Federal

Page 464

Constitution. In the course of that proceeding a subpoena duces tecum was issued and served upon George R. McSwain, the agent in charge of the Federal Bureau of Investigation at Chicago, requiring the production of cer-

Page 465

tain records which, petitioner Touhy claims, contained evidence establishing that his conviction was brought about by fraud.3 At the hearing that considered the duty of submission of the subpoenaed papers, the U.S. Attorney made representations to the court and to opposing counsel as to how far the Attorney General was willing for his subordinates to go in the production of the subpoenaed papers. The suggestions were not accepted. Mr. McSwain was then placed upon the witness stand and ordered to bring in the papers. He personally declined to produce the records in these words: 'I must respectfully advise the Court that under instructions to me by the Attorney General that I must respectfully decline to produce them, in accordance with Department Rule No. 3229.'4

Thereupon, the judge found Mr. McSwain guilty of contempt of court in refusing to produce the records referred to in the subpoena and sentenced him to be committed to the custody of the Attorney General of the United States or his authorized representative until he obeyed the order of the court or was discharged by due process of law.

On appeal, the Court of Appeals reversed on the ground that Department of Justice Order No. 3229 was authorized by the statute and 'confers upon the Department of Justice the privilege of refusing to produce unless there has been a waiver of such privilege.' 180 F.2d 321, at page 327.

Page 466

The court then considered whether or not the privilege of nondisclosure was waived. It quoted from Supplement No. 2 to Order No. 3229 this language: 'If questioned, the officer or employee should state that the material is at hand and can be submitted to the court for determination as to its materiality to the case and whether in the best public interests the information should be disclosed. The records should be kept in the United States Attorney's office or some similar place of safekeeping near the court room. Under no circumstances should the name of any confidential informant be divulged.' 180 F.2d 328.

The Court of Appeals said that 'this language contemplates some circumstances when the material called for must be submitted 'to the court for determination as to its materiality to the case and whether in the best public interests the information should be disclosed." The court found, however, that no such limited disclosure was requested but that Mr. McSwain was called upon 'to produce all documents and material called for in the subpoena without limitation and that at no time was he questioned' as to his willingness to submit the papers for determination as to materiality and best public interests. Consequently, he was not guilty of contempt unless the law required the witness to make unlimited production. The court thought that since this last would mean there was no privilege in the Department to refuse production, such a holding should not be made. It said: 'Submission could only have been required to the extent the privilege had been waived by the Attorney General and for the purpose and in the specific manner designated.' 180 F.2d 321, 328.

We granted certiorari, 340 U.S. 806, 71 S.Ct. 41, to determine the validity of the Department of Justice Order No. 3229.

Page 467

Among the questions duly presented by the petition for certiorari was whether it is permissible for the Attorney General to make a conclusive determination not to produce records and whether his subordinates in accordance with the order may lawfully decline to produce them in response to a subpoena duces tecum.

We find it unnecessary, however, to consider the ultimate reach of the authority of the Attorney General to refuse to produce at a court's order the government papers in his possession, for the case as we understand it raises no question as to the power of the Attorney General himself to make such a refusal. The Attorney General was not before the trial court. It is true that his subordinate, Mr. McSwain, acted in accordance with the Attorney General's instructions and a department order. But we limit our examination to what this record shows, to wit, a refusal by a subordinate of the Department of Justice to submit papers to the court in response to its subpoena duces tecum on the ground that the subordinate is prohibited from making such submission by his superior through Order No. 3229.5 The validity of the superior's action is in issue only insofar as we must determine whether the Attorney General can validly withdraw from his subordinates the power to release department papers. Nor are we here concerned with the effect of a refusal to produce in a prosecution by the United States6 or with

Page 468

the right of a custodian of government papers to refuse to produce them on the ground that they are state secrets7 or that they would disclose the names of informants.8

We think that Order No. 3229 is valid and that Mr. McSwain in this case properly refused to produce these papers. We agree with the conclusion of the Court of Appeals that since Mr. McSwain was not questioned on his willingness to submit the material 'to the court for determination as to its materiality to the case' and whether it should be disclosed, the issue of how far the Attorney General could or did waive any claimed privilege against disclosure is not material in this case.

Department of Justice Order No. 3229, note 1, supra, was promulgated under the authority of 5 U.S.C. § 22, 5 U.S.C.A. § 22. That statute appears in its present form in Revised Statutes § 161, and consolidates several older statutes relating to individual departments. See, e.g., 16 Stat. 163. When one considers the variety of information contained in the files of any government department and the possibilities of harm from unrestricted disclosure in court, the usefulness, indeed the necessity, of centralizing determination as to whether subpoenas duces tecum will be willingly obeyed or challenged is obvious. Hence, it was appropriate for the Attorney General, pursuant to the authority given him by 5 U.S.C. § 22, 5 U.S.C.A. § 22, to prescribe regulations not inconsistent with law for 'the custody, use, and preservation of the records, papers, and property appertaining to' the Department of Justice, to...

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594 practice notes
  • King v. United States, No. 248-65.
    • United States
    • Court of Federal Claims
    • February 16, 1968
    ...possessed by the judiciary.22 See United States v. Boutwell, 17 Wall. 604, 607, 21 L.Ed. 721 (1873); United States ex rel. Touhy v. Ragen, 340 U.S. 462, 472-473, 71 S.Ct. 416, 95 L.Ed. 417 (1951) (Frankfurter, J., concurring); Land v. Dollar, 88 U.S.App.D.C. 311, 190 F.2d 366, 623, cert. gr......
  • Pratt, In re, Cr. 37534
    • United States
    • California Court of Appeals
    • December 3, 1980
    ...to an FBI agent not to produce the investigative file "(i)s valid and has the force of federal law. (United States ex rel. Touhy v. Ragen, 340 U.S. 462 (71 S.Ct. 416, 95 L.Ed. 417); Jackson v. Allen Industries, Inc., (6 Cir.), 250 F.2d 629.) The trial court was therefore bound by the execut......
  • Kasi v. Angelone, No. CIV.A. 200CV470.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • January 10, 2002
    ...agents have the right to refuse to obey a subpoena duces tecum under the Housekeeping Statute.10 See United States ex rel. Touhy v. Ragen, 340 U.S. 462, 468, 71 S.Ct. 416, 95 L.Ed. 417 (1951); Smith v. Cromer, 159 F.3d 875, 878 (4th Cir.1998). The Department of Justice, in accordance with t......
  • F.B.I. v. Superior Court of Cal., No. C-07-01876 PJH (JCS).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • August 22, 2007
    ...in a legal proceeding are valid in light of 5 U.S.C. § 301 and the Supreme Court's decision in United States ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417 (1951). Accordingly, pursuant to Touhy, the state court lacks the authority to compel Agent Linehan and AUSA Kim, two......
  • Request a trial to view additional results
542 cases
  • King v. United States, No. 248-65.
    • United States
    • Court of Federal Claims
    • February 16, 1968
    ...possessed by the judiciary.22 See United States v. Boutwell, 17 Wall. 604, 607, 21 L.Ed. 721 (1873); United States ex rel. Touhy v. Ragen, 340 U.S. 462, 472-473, 71 S.Ct. 416, 95 L.Ed. 417 (1951) (Frankfurter, J., concurring); Land v. Dollar, 88 U.S.App.D.C. 311, 190 F.2d 366, 623, cert. gr......
  • Pratt, In re, Cr. 37534
    • United States
    • California Court of Appeals
    • December 3, 1980
    ...to an FBI agent not to produce the investigative file "(i)s valid and has the force of federal law. (United States ex rel. Touhy v. Ragen, 340 U.S. 462 (71 S.Ct. 416, 95 L.Ed. 417); Jackson v. Allen Industries, Inc., (6 Cir.), 250 F.2d 629.) The trial court was therefore bound by the execut......
  • Kasi v. Angelone, No. CIV.A. 200CV470.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • January 10, 2002
    ...agents have the right to refuse to obey a subpoena duces tecum under the Housekeeping Statute.10 See United States ex rel. Touhy v. Ragen, 340 U.S. 462, 468, 71 S.Ct. 416, 95 L.Ed. 417 (1951); Smith v. Cromer, 159 F.3d 875, 878 (4th Cir.1998). The Department of Justice, in accordance with t......
  • F.B.I. v. Superior Court of Cal., No. C-07-01876 PJH (JCS).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • August 22, 2007
    ...in a legal proceeding are valid in light of 5 U.S.C. § 301 and the Supreme Court's decision in United States ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417 (1951). Accordingly, pursuant to Touhy, the state court lacks the authority to compel Agent Linehan and AUSA Kim, two......
  • Request a trial to view additional results

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