CONGRESSIONAL DEMANDS UPON THE EXECUTIVE FOR INFORMATION. By EDWARD CAMPBELL MASON. Can the President of the United States, or his subordinates in the Executive Department, be compelled to transmit papers or give information to Congress? Apparently we have here two questions: one as to Congressional demands for information with papers, and another as to Congressional demands for information without papers. Really, however, the questions are the same in their nature, in their historical development, and in regard to the principles which govern them. It is in short the question as to whether the National Legislature can compel the National Executive to disclose facts in its possession. Congress is constantly demanding such testimony, and while in the great majority of instances, notably in the case of the impeachment of President Johnson, the demand is complied with; still there are a number of well defined cases in which the Executive Department, by the authority of its chief, has refused to answer the questions or supply the papers. In the present paper the attempt will be made to settle two questions. First, are these Congressional demands reasonable; and secondly, has Congress the power to enforce its demands? Let us begin with the cases in which information has been refused. The first of these is the famous one in Washington's administration, when the President refused to transmit to the House of Representatives a copy of the instructions 367] 33 given to the United States minister, who negotiated the Jay treaty.' The refusal had the unanimous assent of the Cabinet,' and was based, first, on the unfavorable effect such a disclosure would have on future negotiations with foreign nations. And secondly, on the fact that it did not appear that the inspection of the papers called for could be relative to any purpose under cognizance of the House of Representatives.' The President implied that had they called for the papers for the purposes of impeachment, he might have complied.* In the House Mr. Madison admitted the right of the Executive to refuse to send papers to Congress whenever the state of business in his department, or the contents of the papers required it. But he emphatically denied the right of the President to step outside the limits of his branch of the Government, and refuse papers because they could serve no legislative purpose. This latter question he maintained was for the Legislature alone to determine.* A second case occurred in 1833, when the Senate requested the President to transmit to it a copy of a paper which had been published, and which purported to have been read in the Cabinet. In the debate on the passage of the resolution, Mr. Benton said that the call was unjustified. A paper could be made use of in only two ways: Either as an aid in legislation, or for the purpose of impeachment. The paper called for in this instance could not be used in the first way, and was confessedly not to be used in the second way. Therefore the request was improper. President Jackson refused to comply, on the ground that the paper was a private communication, and the Senate had no more right to call for it than they would have had to demand information in regard to a private conversation between himself and the heads of the department.' 1 House Journal, vol. ii., p. 466. Schouler's "History of the United States," vol. i., p. 309–310. 'House Journal, vol. 2, p. 487. 5 "Annals of Congress," 4th Cong., 1st Series, p. 773. 6 Senate Journal, 1st sess., 23d Cong., p. 40. 4 Ibid. Benton's "Thirty Years in the United States Senate," vol. i., p. 399. In 1842 President Tyler refused to send to the House the names of the members of the Twenty-sixth and Twentyseventh Congresses, who had applied to him for office.' It seems likely that the information sought was to be used in an attempt which was being made at that time to amend the Constitution, so that the appointment of members of Congress to offices under the United States Government, might be prevented during and immediately after their terms as Congressmen. The inquiry was thus germane to legislation undertaken by Congress. The President refused the request, however, on the ground that the House had nothing to do with his power of appointment. The fourth case occurred in 1842. In that year the House of Representatives called on the Secretary of War for the reports made to his department by a United States commissioner, who had recently investigated certain alleged frauds on the Cherokee Indians.' The request was made. in aid of an independent investigation, undertaken by the House. The Secretary refused to comply, on the ground that the publication of the papers would be detrimental to the public interests, and to the rights of certain individuals. The refusal gave rise to a sharp debate. John Quincy Adams maintained the right and power of the House,under its authority to draw up articles of impeachment,-to call for any and all papers in the Executive Department. If the House did not have the power to reach such papers, the power of impeachment-so Mr. Adams argued-would be valueless.* Mr. Adams's colleague, Caleb Cushing, on the other hand upheld the power of refusal, and based it on the fact that Congress and the Executive were co-ordinate branches of the Government; neither one of which was subject to the control of the other. Congress could demand if it chose, but the President had a power of refusal co-extensive with the legislative inquiries. House Journal, 2d sess., 27th Cong., p. 421; Senate Miscellaneous Docs., 2d sess., 49th Cong., No. 53, p. 167. 2 Congressional Globe, 2d sess., 27th Cong., pp. 350-973. 3 House Journal, 2d sess., 27th Cong., pp. 831-832. 4 Congressional Globe, 2d sess., 27th Cong. The Secretary's refusal was referred to the Committee on Indian Affairs, who reported a series of resolutions affirming the power of the House to call for all papers relating to matters within its legislative sphere; declaring that the present matter was within that sphere, and calling on the President to forward the desired papers.' The papers were finally sent to Congress because the reasons for keeping them secret no longer existed. The President, however, justified the Secretary of War for his refusal, on the ground that the President, through his agents, could refuse to send papers to Congress, whenever in his discretion public interest would be sacrificed or private confidence violated by a compliance.' The Committee on Indian Affairs made a long report on this message in which they reaffirmed the power of the House and based their argument, as did Mr. Adams, on the power of impeachment, or, as they put it, on the constitutional right of the House of Representatives to a full and free inquiry into the conduct of the administration.' The report further says that the House, not the President, is the proper judge as to whether or not secrecy is required; that if in the opinion of the House it is necessary, it will be scrupulously maintained. In 1846 the Executive for the fifth time refused to comply with a request for information. The call was for an account of the expenditures by the State Department, from the secret fund for foreign negotiations, from March 4, 1841, to the retirement of Daniel Webster from the State Department. These expenditures had been made, as the law allowed, upon the President's receipts or certificates without vouchers. The request was refused on the ground that the only explanation of the expenditures which could be said to belong to the Government was the certificates of the President. It 1 House Journal, 2d sess., 27th Cong., pp. 1183, 1286, 1290. House Journal, 3d sess., 27th Cong., p. 465. House Reports, 3d sess., 27th Cong., vol. iii., No. 271. 4 House Journal, 1st sess., 29th Cong., p. 649. was admitted that on the confidential files of the State Department were to be found detailed accounts of the uses to which the money in question had been put. These were, however, in the nature of private communications from one President to his successor, which the successor would not be justified in disclosing. In 1885 occurred the sixth and last of these refusals on the part of the Executive to furnish papers or information. In July of that year, during the recess of the Senate, President Cleveland removed G. M. Duskin, United States Attorney for an Alabama district. J. D. Burnett was designated to fill the vacancy. In January 1886 the question of Burnett's confirmation came up in the Senate, and that body called on the Attorney-General for all the papers in the Department of Justice relative to Duskin's removal.' The Attorney-General, on the President's direction, refused to comply with the request on the ground that the Senate had no power to review or revise the President's removal of Federal officials during the recess of the Senate. Furthermore, he declared that the papers in question, although filed in the Department of Justice, were private and thus not subject to the call of the Senate in any case.' The Senate, in reply, claimed that the papers were necessary in order to determine whether or not there was a vacancy to be filled, and therefore should be transmitted. This argument of course implies that papers should be furnished whenever they were relative to a matter over which Congress had cognizance. We have now examined the cases. The next questions What are the principles upon which the refusals are based; and are those principles sound? In the first place are the Congressional demands reasonable? It is to be noted at the outset that the vast majority of demands are admitted by all to be reasonable, and are complied with by the Executive. But in the instances we are considering this admission has not been made. Were 1 Congressional Record, 1st sess., 49th Cong., p. 1585. |