agreement existed concerning the meaning of section 2(b) (2).

The record shows (109 Cong. Rec. 25618) that Sen. Mundt was not present at the time of the debate on this bill and that his statement was inserted in the record by Sen. Hruska and never actually delivered on the Senate floor. Although there was nothing wrong in doing this, the value of the statement as indicating common intent is certainly very small. This practice, of course, reduced or eliminated the possibility that Senators who held other views would reply to Senator Mundt or debate the point. The actual Senate debate reveals only that if there was any agreed or common purpose it was that the President be given broad discretion to make determinations as to "when in the national interest it would be proper to extend credit." E.g., 109 Cong. Rec. 25626 (Sens. Pastore and Holland).

In the House there was also a general realization that the provision conferred broad responsibility and flexibility on the President to set policy." E.g., 109 Cong. Rec. 25409, 25417, 25419, 25421. The Comptroller General relies mainly on one brief sentence by Representative Rhodes for the conclusion that the President must approve each transaction. See note 3, supra. I do not find this persuasive.

There are other factors that appear to me to be more significant in interpreting section 2(b)(2). Since the enactment of the 1964 Appropriation Act, and continuing to date, the President has followed a consistent practice of making determinations on a country by country basis

The statement was not inserted in the record at the place where debate on this particular provision appears in the record. The Senate debate on trade with Communist countries is at 109 Cong. Rec. 25625-28.

5 E.g., 109 Cong. Rec. 25419 (Rep. Mahon): "The question is whether in the beginning of the period of service of the new President we will give him the flexibility which he has requested in the handling of foreign affairs. I for one, here in the beginning of his administration, am willing to give him this flexibility. He is able, informed, and experienced and he is going to be answerable to the American people. The correctness of his decision on these matters can be decided at a later date even perhaps at the ballot box. We ought not to deny the President the flexibility which he has requested in an area where he has a special constitutional responsibility."

rather than on a transaction by transaction basis. This practice is, of course, consistent with the notion that the President is responsible for determining the broad outlines of foreign policy but not for executing its individual details. See L. Henkin, Foreign Affairs and the Constitution 39 (Foundation Press, 1972). According to the Bank, all such determinations were reported to Congress. Equally important, Congress was promptly notified by the Bank of each separate transaction entered into pursuant to these determinations, so that the notice function of section 2(b) (2) was fully preserved. No objections were raised concerning any determination or individual transaction. Congress re-enacted the identical provisions each time it passed the Bank's appropriation for several years thereafter. Foreign Assistance and Related Agencies Appropriation Act, 78 Stat. 1022 (1964), 79 Stat. 1008 (1965), 80 Stat. 1024-25 (1966), and 81 Stat. 943 (1968).

Subsequently, in 1967, legislation was introduced by Senator Tower to place essentially the same requirement which had been written into the appropriation acts directly into the Bank's charter. His proposal eventually became section 2 (b) (2). 113 Cong. Rec. 12418-19 (1967). There is no indication that Congress was motivated to change the existing administrative practice. The legislative history of the provision is somewhat ambiguous. Export-Import Bank Act Amendments of 1967, Hearings before the Subcommittee on International Finance of the Senate Banking and Currency Committee on S. 1155, 90th Cong., 1st Sess., pp. 21, 44, 49 (1967). Moreover, the language of section 2(b) (2) permits more than one possible interpretation on the issue raised by the Comptroller General. The practice of making determinations on a country by country basis continued, a fact of which Congress was aware. To date, this is the uniform procedure that has been followed.

E.g., H Rep. No. 92-303, p. 10 (1971); Foreign Assistance and Related Agencies Appropriations for 1969, Hearings before the Subcommittee on Foreign Operations of the House Appropriations Committee, 90th Cong., 2d Sess., Part 1, p. 201:

Footnote continued on next page

Given the fact that section 2(b) (2) is unclear, I believe that we can accord great weight to the administrative practice, particularly where, as here, it represents the "contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion * * *." Norwegian Nitrogen Co. v. United States, 288 U.S. 298, 315 (1933). Moreover, as noted, during a ten-year period, Congress has enacted and reenacted this provision in various forms without taking exception to the practice. The Supreme Court has held, under similar circumstances, that Congress can be considered to have approved the practice. Douglas v. Commissioner, 322 U.S. 275, 281 (1944); Boehm v. Commissioner, 326 U.S. 287, 291-92 (1945); Helvering v. Winmill, 305 U.S. 79, 83 (1938). I believe that the Court's reasoning applies here. Such an interpretation is consistent, of course, with the broad purpose of section 2(b) (2)—to engage the President in important and difficult policy questions involving trade with Communist countries. These are questions of particular significance at this time.

I thus conclude that the President and the Bank acted lawfully in making and following determinations on a country to country basis pursuant to section 2(b)(2), and in notifying the Congress of each determination and transaction.

Respectfully,

WILLIAM B. SAXBE.

"Mr. Passman. Without any further Presidential determination, you can negotiate loans for other commodities; can you not?

"Mr. Linder. With that particular country; yes.

DURATION OF PRESIDENTIAL DETERMINATION

"Mr. Passman. Once the Presidential determination is made, that is almost the equivalent of a statute; isn't it?

"Mr. Linder. It is within the statute."

IMPEACHMENT INVESTIGATION BY HOUSE COMMITTEE STATUTORY PROVISIONS ON DISCLOSURE OF TAX RETURN INFORMATION

The powers of the House Judiciary Committee in connection with its Presidential impeachment investigation do not override the provisions of the Internal Revenue Code of 1954 regulating disclosure of tax return information (26 U.S.C. 6103).

THE SECRETARY OF THE TREASURY.

MAY 25, 1974.

MY DEAR MR. SECRETARY: I respond to your letter of May 15, 1974, concerning the requests of the Committee on the Judiciary of the House of Representatives for certain information regarding the President's income tax returns for 1969 and subsequent years. You ask for my opinion with respect to the question whether the powers of the Judiciary Committee in connection with its Presidential impeachment inquiry override the provisions of the Internal Revenue Code relating to the disclosure of tax return information.

We have considered the views expressed in your letter and in the letter of the Chief Counsel of the Internal Revenue Service, as well as the position set forth by the Special Counsel of the Committee on the Judiciary. I concur in your determination that the pending requests for information fall within the scope of § 6103 of the Internal Revenue Code of 1954 (26 U.S.C. § 6103), and that the conditions prescribed by § 6103 for the release of tax return information have not been met. Regarding your specific inquiry, my conclusion is that the statutory provisions in question are not overridden by the powers of the Committee on the Judiciary.

The pertinent facts may be summarized as follows: On May 9, 1974, Chairman Rodino of the Committee on the Judiciary sent the Commissioner of Internal Revenue a letter requesting "copies of all audit or investigative reports, witness statements, documents furnished by the taxpayer,

and other materials in the possession of the Internal Revenue Service which relate directly or indirectly to the gift of personal papers purportedly made by the President in 1969, or the treatment of the gift as a charitable deduction in his 1969 federal income tax returns."

On May 13, Mr. John Doar, the Committee's Special Counsel, wrote the Commissioner that the request was intended to cover "the complete IRS audit report on President Nixon's tax returns which led to the assessment of the deficiency for the years 1969-72." In a second letter dated May 13, Mr. Doar requested that the Commissioner inform the Committee whether or not the IRS advised President Nixon (in November 1973) that the IRS intended to audit his return.

The position of the Department of the Treasury, as indicated in your letter of May 15 and the May 17 letter of the Chief Counsel, is that all of the information requested by the Committee on the Judiciary comes within § 6103 of the Internal Revenue Code, as interpreted in the applicable Treasury regulations.

The general provision on disclosure of tax return information, Code § 6103 (a), provides in part as follows:

"(a) Public record and inspection.

"(1) Returns made with respect to taxes imposed by chapters 1, 2, 3, and 6 upon which the tax has been determined by the Secretary or his delegate shall constitute public records; but, except as hereinafter provided in this section, they shall be open to inspection only upon order of the President and under rules and regulations prescribed by the Secretary or his delegate and approved by the President."

The matter of disclosure to congressional committees is dealt with in § 6103(d) (1) and (2). The former provision is as follows:

"(1) Committee on Ways and Means and Finance.

"(A) The Secretary and any officer or employee of the Treasury Department, upon request from the Committee on Ways and Means of the House of Representatives, the Committee on Finance of the Senate, or a select committee of the Senate or House specially authorized to investigate returns by a resolution of the Senate or House, *** shall furnish