CHAPTER IIThe 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 meetingand 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 JusticeMarshall 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 PresidentJefferson. 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 aconstructionfirm, 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 toproduce 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 ofMcGrain 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 executivebranch. 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.”