The First Century
An Indian uprising along the Indiana-Ohio border in 1791 set the
stage for the first investigation by Congress of decisions in the
executive branch. President Washington, then in his first term, sent
Major General Arthur St. Clair into the wilderness to put a stop to
the raids.
General St. Clair and his fourteen hundred American soldiers were
camped along the headwaters of the Wabash River on November 3 when
they were surprised by the attack of a strong force led by Little
Turtle, chief of the Miami.
The Indians killed more than six hundred officers and men and
forced the others to retreat. It was a humiliating defeat, one that
still ranks among the worst in our history. Congress demanded an
explanation.
On March 27, 1792, the House of Representatives appointed a select
committee to inquire into the failure of the St. Clair expedition,
and “to call for such persons, papers, and records, as may be
necessary to assist their inquiries.” For the first time, the
President and his Cabinet were presented with the problem of whether
to make papers and testimony available to Congress.
President Washington called a meeting of his full Cabinet to
determine the proper way to proceed, for he was aware that the action
taken would set a precedent on such matters.
Thomas Jefferson wrote the following account of the meeting and the
conclusions drawn by the Washington Cabinet:
“First, that the House was an inquest, and therefore might institute
inquiries. Second, that it might call for papers generally. Third,
that the Executive ought to communicate such papers as the public
good would permit, and ought to refuse those, the disclosure of
which would injure the public; consequently were to exercise a
discretion. Fourth, that neither the committee nor House had a right
to call on the head of a department, who and whose papers were under
the President alone; but that the committee should instruct their
chairman to move the House to address the President.”
Jefferson also wrote:
“Hamilton agreed with us in all these points except as to the power
of the House to call on the heads of departments. He observed that
as to his department, the act constituting it had made it subject to
Congress in some points, but he thought himself not so far subject
as to be obliged to produce all the papers they might call for. They
might demand secrets of a very mischievous nature. (Here I thought
he began to fear they would go on to examining how far their own
members and other persons in the government had been dabbling in
stocks, banks, etc., and that he probably would choose in this case
to deny their power; and in short, he endeavored to place himself
subject to the House, when the Executive should propose what he did
not like, and subject to the Executive when the House should propose
anything disagreeable.)... Finally agreed, to speak separately to the
members of the committee, and bring them by persuasion into the right
channel. It was agreed in this case, that there was not a paper which
might not be properly produced; that if they should desire it, a
clerk should attend with the originals to be verified by themselves.”
Although the Cabinet indicated a need for a discretion to withhold
papers “which would injure the public,” President Washington agreed
that in the case of the St. Clair expedition “there was not a paper
which might not be produced.”
There was no withholding by President Washington in this case, and it
could hardly be regarded seriously as a precedent for any right to
arbitrarily refuse executive papers to Congress.
There was one other instance in Washington’s administration in
which the Congress asked for executive papers. In this case, the
House of Representatives asked for the papers and instructions to
United States ambassadors who negotiated the Jay treaty. This time
Washington refused to deliver the papers to the House on the specific
constitutional grounds that the Senate, not the House, is authorized
to advise and consent on treaty matters.
A Supreme Court case in the administration of President Thomas
Jefferson raised the question of whether it was possible for the
courts to force the Cabinet to perform certain acts required by law.
In the last hours of the administration of President John Adams a
“midnight appointment” was made of a justice of the peace for the
District of Columbia named William Marbury, a minor Federalist
political figure. James Madison, who became the new Secretary of
State in the Jefferson administration, refused to deliver the
commission to Marbury to complete the appointment process.
Marbury asked the Supreme Court to issue a writ of mandamus under the
Judiciary Act of 1789 to force Madison to deliver the commission. In
February 1803, Chief Justice John Marshall delivered the opinion of
the court. First he dealt with the question of whether Madison had
a right to refuse to deliver the commission to a properly appointed
official. The decision was a rebuke to Secretary of State Madison and
stated: “Is it to be contended that the heads of departments are not
amenable to the laws of their country?”
However, the opinion went on to conclude that the Constitution
provided no method for the Supreme Court to issue writs to force
the executive action requested. Chief Justice Marshall stated that
the Judiciary Act providing for a writ was inconsistent with the
Constitution, and that “a law repugnant to the Constitution is void.”
Although Madison was wrong in withholding the commission from
Marbury, the court held that under the Constitution there was no
way to force action. The case did not mean that Madison had a legal
right, but only that Marbury had no remedy. The Marbury appointment
was in essence a political matter and could only have been countered
indirectly by the impeachment of the President.
The specific question of congressional access to executive papers
was raised in one case in the Jefferson administration. In 1807,
President Jefferson was requested to furnish the House “any
information in the possession of the Executive” on the allegation
of a conspiracy by Aaron Burr. However, the request specifically
exempted papers “such as he [Jefferson] may deem the public welfare
to require not to be disclosed.”
President Jefferson displayed an awareness of the dangers of
arbitrary withholding of information by carefully explaining the
nature of the papers he did not deliver. He stated that these papers
included matters “chiefly in the form of letters, often containing
such a mixture of rumors, conjectures, and suspicions as to render it
difficult to sift out the real facts and unadvisable to hazard more
than general outlines, strengthened by concurrent information or the
particular credibility of the relator.”
Later, when Aaron Burr was actually tried for treason in Richmond,
Chief Justice Marshall issued a subpoena for papers in Jefferson’s
custody, including a private letter from General James Wilkinson to
Jefferson. While Jefferson continued to assert a right to determine
which papers he would produce, he did in fact send all the documents
requested in the subpoena. Also, General Wilkinson appeared at the
trial and testified fully about his communications with President
Jefferson. Chief Justice Marshall’s decision conceded that the
President could not be summoned to make a personal appearance before
a judicial body because of the nature of his position and the dignity
of his office. Since Jefferson produced all the documents under
subpoena there was no need for adjudicating the issue of what types
of papers might be withheld. [The trial eventually resulted in a jury
acquittal for Burr.]
Until President Jackson’s term there were no significant
controversies over requests for information. Jackson was involved in
a number of disputes. Although he consistently asserted a right to
withhold information from Congress, he usually sent the requested
documents along with his angry criticism of Congress for making the
requests.
A Senate investigation of land frauds in the Jackson administration
resulted in demands for papers dealing with land transactions
conducted by a Jackson appointee. President Jackson refused to
deliver the papers to Congress, but the resulting cover-up of land
frauds could hardly be called a precedent worthy to be followed.
President John Tyler was requested to submit to the House of
Representatives the reports of Lieutenant Colonel Ethan Allen
Hitchcock concerning an investigation of frauds which were alleged
to have been perpetrated on the Cherokee Indians. President Tyler
produced a part of the information at the time of the request but
declined to produce the full investigative reports in 1843. He argued
that to be effective such investigations must often be confidential.
“They may result in the collection of truth or falsehood; or they
may be incomplete, and may require further prosecution,” Tyler said.
“To maintain that the President can exercise no discretion ... would
deprive him at once of the means of performing one of the most
salutary duties of his office ... and would render him dependent upon
... [another] branch [of government] in the performance of a duty
purely executive.”
However, in a later message to Congress on the Cherokee Indians
matter, President Tyler directed that all of the reports be made
available. He did not acknowledge the right of Congress to command
the Executive to produce all information. Neither did he claim an
unlimited right for the President to withhold. He declared that there
must be some discretion left with the President when “the interests
of the country or of individuals” is to be affected by production of
the records. He enumerated some circumstances in which he felt the
President actually had a duty to withhold—as, for example, during a
pending law enforcement investigation.
After the Civil War there was a flurry of investigations, but these
caused little conflict. The corrupters in the Grant administration
were foresighted enough to bring key members of the Republican
Congress into their dishonest schemes as an insurance against
exposure by the committees of Congress.
A Democratic Congress, elected in 1874, initiated a series of
investigations into the War and Treasury Departments to eradicate the
corruption and to set the stage for the next presidential campaign
in 1876. The frauds were so raw that the feeble efforts to hide
them were useless. The inquiries disclosed how the government was
defrauded by a “Whisky Ring” that evaded millions of dollars in taxes
on distilled whisky. The “ring” operated with co-operation from
some Treasury officials as well as from President Grant’s private
secretary, General Orville E. Babcock.
Another congressional investigation of the Grant administration
implicated Secretary of War W. W. Belknap in widespread graft in the
assignment of trading posts in the Indian territory. He resigned
from office in the face of a threat of impeachment, carrying with
him a presidential letter expressing “regret” that he was leaving
government. President Grant’s letter of “regret” to a man who had
betrayed a trust set a pattern for Presidents for a long time to
come. The whole ritual, indeed, has remained the same. First come the
accusations, followed by denials of any improprieties. Then comes the
effort to hide the records. This is followed by the tardy admission
of facts but a denial of illegality, and finally the letter from the
President lauding the dishonest public official for his fine service
coupled with “regretful” acceptance of his resignation.
The corruption of the Grant administration is considered by many to
be the worst blot on the nation’s escutcheon. Republican political
figures organized a construction firm, the Crédit Mobilier of
America, which was used to divert lavish profits from the building
of the Union Pacific Railway. An American diplomatic figure lent his
name to a huge mine swindle, Navy contracts were for sale, and there
were wholesale frauds in the custom houses.
The widespread scandals of the Grant administration presented no
basic problem for Congress in obtaining government records because
the key evidence in these cases could be obtained from sources
outside the executive branch.
However, a problem did develop in 1876 when the Democratic House
sought to obtain testimony and records of financial transactions
of Jay Cooke & Company. Jay Cooke & Company was one of the largest
financial institutions of the time, and Jay Cooke was close to the
Grant administration and Republican party politics. When the House
of Representatives discovered that the Secretary of the Treasury had
deposited large sums of money with a London branch of Jay Cooke &
Company, it sought to determine whether there was some impropriety
involved in the decision to make the deposit.
In the course of its investigation, the House issued a subpoena
for Hallet Kilbourn, who managed some real estate operations for
Jay Cooke & Company. Kilbourn refused to produce the documents
sought and argued that the House had no right to investigate private
affairs. The House ordered him arrested for contempt.
Kilbourn was imprisoned by House Sergeant at Arms John Thompson.
Kilbourn immediately obtained a court order for his release and then
sued Thompson for false imprisonment. The U. S. Supreme Court held
that Thompson was liable for damages, and in the decision threw a
doubt over the right of Congress to punish witnesses for refusing to
answer questions or produce records.
The decision upset the long-standing view that the power of Congress
to investigate was as broad as the almost limitless power of inquiry
of the British Parliament. The U. S. Supreme Court stated:
“We are sure no person can be punished for contumacy as a witness of
either House, unless his testimony is required in a matter into which
that House has jurisdiction to inquire, and we feel equally sure that
neither of these bodies possess the general power of making inquiry
into private affairs of the citizen.”
It was not until 1927, when the U. S. Supreme Court decided the case
of _McGrain v. Daugherty_, that the right of Congress to compel
testimony was firmly reaffirmed. In the intervening thirty-five years
two Presidents successfully resisted the Congress!
President Grover Cleveland, a Democrat, faced a Republican Senate,
and Theodore Roosevelt, an independent-minded Republican, took
delight in testing his strength even against a Republican Congress.
President Cleveland in 1886 backed his Attorney General in refusing
to deliver to the Senate some reports dealing with the administration
of the United States District Attorney’s office in the District of
Columbia. The man who had held the office had been suspended, and
Cleveland argued that the report on the reasons was the business of
the executive branch. Because the Kilbourn case had weakened the
position of Congress, Cleveland was not challenged.
President Theodore Roosevelt refused to allow his Attorney General
to deliver papers to the Senate dealing with the status of
investigations involving the U.S. Steel Corporation. The papers
included an Attorney General’s opinion on the U.S. Steel Corporation
case.
Although the papers sought involved a pending case, the Senate
insisted on pursuing the matter. Herbert K. Smith, head of the Bureau
of Corporations, was summoned and was threatened with contempt
and imprisonment if he failed to produce the documents. President
Roosevelt asked Smith for the papers and, after taking them into
his possession, informed the Senate the only way they could get the
papers would be by impeaching him. The Senate then dropped the matter.
The infamous scandals of the Harding administration renewed the will
of the Congress, and proved for all time the need for Congress to
investigate even when a President assures the public that “all is
well.”