Stanley Forman Reed

“ 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. ”

“ The constitutionality of the Attorney General's exercise of a determinative power as to whether or on what conditions or subject to what disadvantages to the Government he may refuse to produce government papers under his charge must await a factual situation that requires a ruling. ”

“ 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. ”