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A. The Washington Incidents 1. The St. Clair Inquiry
The Attorney General begins with the congressional inquiry of 1792 into the failure of the St. Clair Expedition. The House had appointed a committee to inquire into "the causes of the failure of the late expedition ... and ... to call for such persons, papers ... as may be necessary to assist their inquiries."188 The Committee then asked the Secretary of War for documents and Washington called a Cabinet meeting. 189 At this meeting, Jefferson recorded, the President
neither acknowledged nor denied, nor even doubted the propriety of what the house were doing, for he had not thought upon it, nor was acquainted with subjects of this kind. He could r: dily conceive there might be papers of so secret a nature as that they ought not to be given up.190
The Cabinet was not prepared and adjourned for study. At the second meeting, the conferees were,
of one mind 1. that the house was an inquest, therefore might institute inquiries. 2. that they might call for papers generally. 3. that the Executive ought to communicate such papers as the public goud would permit. & ought to refuse those the disclosure of which would injure the public. Consequently were to exercise a discretion. 4. that neither the commee nor House had a right to call on the head of a deptmt, who & whose papers were under the Presidt. alone, but that the commee, shd instruct their chairman to move the house to address the President. ... It was agreed in this case that there was not a paper which might not be properly producer). . . .191
188 Att'y Gen. Memo. 4. Sec 3 ANNALS OF Cong. 493 (1792). The vote was 44 to 10. Ibid. The colorful background of the Expedition is recounted by Taylor 17-22.
159 Mr. Younger tells us that "the father of his country was at sca . . . the House had taken ... an unprecedented step." Younger 756. Both the Parliamentary and Colonial materials, sce text accompanying notes 51-72 supra, refute his "unprecedented." TAYLOR 22, correctly states that the St. Clair investigation was "entirely in accordance with Parliamentary and colonial governmental traditions." The Younger study threatens to become a gospel of the privilege apologists, see Kramer & Marcuse 904 n.785, 906 n.803, 910 n.810, so it needs to be examined closely.
100 I JEFFERSON 189.
191 Id. at 189-90. (Emphasis added.) Jefferson records that: “Hamilton agreed with us in all these points except as to the power of the house to call on heads of departmts. He observed, tbat as to his departmt the act constituting it (see note 79 supra) had made it subject to Congress in somc points, but he thot himself not so far subject, as to produce all the papers they might call for. They might demand secrets of a very mischievous nature.” Id. at 190. Jefferson's comment betrays little sympathy with this view: "Here I thot he began to fear they would go to examining how far their own members & other persons in the govmnt had been dabbling in stocks, banks & c., and that he probably would choose in this case to deny their power & in short he endeavd to place himself subject to the house when the Executive should propose what he did not like, & subject to the Executive, when the house
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There is nothing to suggest that this "unofficial note" of the meeting102 was ever disclosed to Congress or that Washington asserted to Congress a plenary power to withhold information.'"* Nothing of the sort turns up in the House debate nor in Washington's writings. And Jefferson's memoir notes that it was "finally agreed to speak separation [sic] to the members of commec & bring them by persuasion into the right channel."104 Such “persuasion" could only be embarrassed by an unnccessary and unscttling claim of unlimited discretion to withhold information, and the notes may be viewed as an unexhibited memorandum in Jefferson's own files. All of the St. Clair documents were then turned over; "not even the ugliest line on the flight of the beaten troops was eliminated,"196 an example more than one agency would have done well to ponder in recent years. Thus crumbles the Attorney General's argument that this was a "refusal” to turn over documents.198
The Secretaries of the Treasury and War departments appeared to make "explanations ... in person,"107 and the Secretary of War submitted that on the facts developed "no censure should be imputed to the War Department for not having paid implicit attention to this subject."108 This was recognition that the House could inquire into executive conduct, that it could demand documents for 1965)
shld. propose anything disagreeable.” Ibid. Although Hamilton stood alone and was thus inferentially rejected by Jefferson, Attorney General Rogers, Att'y Gen. Memo. si, cites him in "support” of the view that the "public interest" may be invoked by a department head or the President "in opposition to a blanket demand for information." Hamilton's intimation that he was above the law embodied in a statute, picked up by Attorney General Rogers, will be hereinafter examined. It will also be demonstrated that his claims run counter to the very citations upon whicb Jefferson and the cabinct relicd.
192 This note is printed among "The Anas," what Jefferson called the "loose scraps," which included "unofficial notes and memoranda of interviews and meetings." 1 JEFFERSON 154.
193 During the course of the debate on the Aaron Burr-General Wilkinson affair in 1810, Mr. Pearson referred to the St. Clair investigation and said: "The power which Congress then exercised had not then bcen questioned. ..." 21 ANNALS OF CONG. 1747 (1810). Nevertheless a number of writers have stated that the claim of privilege was "declared," TAYLOR 29, or "announced” Bishop 477. CJ. BARTK 31.
194 1 JEFFERSON 190. It is a privilege proponent who suggests that this was accomplished at Washington's request by the "cabinet's master politician," Younger 757.
106 6 FREEMAN, BIOGRAPHY OF WASHINGTON 339 (1948-1957). Washington wrote the Secretary of War, April 4, 1792: “You will lay before the House of Representatives such papers from your Department as are requested by the enclosed Resolution." 32 THE WRITINGS OF WASHINGTON 15 (1939). Even one critical of the proposed inquiry, W. Smith, stated that "in any case where it shall appear that the Supreme Executive bas not done his duty, he should be fully in favor of an inquiry." 3 ANNALS OF CONo. 491 (1792).
196 Att'y Gen. Memo. 4.
that purpose, and that executive officers felt called upon to make explanations. Washington acquiesced in the right of Congress to institute an inquiry into the conduct of an executive officer, for on the same day that he instructed the Secretary of War to turn over the requested papers, he wrote General St. Clair:
As the House of Representatives has been pleased to institute an inquiry into the causes of the failure of the late expedition, I should hope an opportunity would thereby be afforded you, of explaining your conduct, in a manner satisfactory to the public and yourself.109
Later he was more emphatic in welcoming a rumored investigation of the Secretary of the Treasury, Alexander Hamilton.-00 Beyond doubt the power of the House to investigate into executive misconduct in the highest places was exercised and recognized from the beginning.201
Jefferson's notes merit close attention. They were not the product of speculation in vacuo but, he tells us, of resort to "the proceedings of the commons in the case of S. Rob. Walpole."202 Bred to the common law, Jefferson turned to English precedents to determine the respective rights of legislature and executive, and it will be instructive to scrutinize his citations to the Walpole inquiry. Materials drawn therefrom, pertinent to his first two points, show that he was entirely right in concluding that Congress could act as an “inquest” which might institute inquiries, call for papers
199 Dated April 4, 1792; 32 WRITINGS OF WASHINGTON 15-16 (1939).
200 "With respect to the fiscal conduct or the S-t-y of the Tr-s-y I will say nothing; because an enquiry, more than probable, will be instituted next Scssion of Congress into some of the Allocations against him; ... and because, if I mistake not, he will seek, rather than shrink from, an investigation . . . . No one . . . wishes more devoutly than I do that they may be probed to the bottom, be the result what it will.” Letter to Pendleton, Sept. 23, 1793. 33 WRITINGS OF WASHINGTON 95 (1940). (Emphasis added.)
201 Contemporaneously with the St. Clair investigation, the House, sitting as a Committee of the Whole, debated a number of Resolutions charging the Secretary of the Treasury with grave derelictions, among them, with violating the terms of an appropriation law. 3 ANNALS OF Cosc. 905, 907 (1792). After vigorous debate Hamilton was acquitted of wrongdoing. But the power to investigate into his official conduct was never questioned. To the contrary, Mr. Lee, who voted against the Resolutions, took as his theme "whether the Secretary of the Treasury had acted legally," id. at 931, and he "dilated on the necessity of the purest and most confidential communication between the Secretary of the Treasury and the Legislature ...." Id. at 932.
James Madison, an advocate of the Resolutions, declared that "it was the duty of the Secretary, in complying with the orders of the House, to inform the House how the law had been executed . . . to explain his own conduct. ..." ld. at 934. An opponent, Mr. Boudinot, said that "we're now exercising the importani vffice of the grand inquest of the Nation” and noted that the inquiry was "into the conduct of an officer of the Government in a very important and highly responsible station." Id. at 947-48.
202 See 1 JEFFERSON 190.
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generally and, he might have added, require members of the "Administration” to appear before it.203
He was, however, less happy in his citations for his third point: "that the executive ought to communicate such papers as the public good would permit, ought to refuse those the disclosure of which would injure the public. Consequently were to exercise a discretion.” This third point is crucial for privilege adherents, for upon this “precedent" the executive branch, in large part, has built its historical claims of unlimited discretion to withhold.204 And it appears to be the first time in Anglo-American history that a broad executive claim of "discretion” to withhold was formulated, although not communicated to Congress. Because Jefferson was not pretending to make bricks without straw but turning to precedent, it is important to examine his citations closely.
Jefferson cites first to page 81 of the proceedings205 at which point Pelham was expressing his opposition to a motion to refer certain papers which had been laid before the House to a Select Committee. That page contains nothing relative to executive discretion, but at page 82 Pelham stated:
When Gentlemen's curiosity prompts them to desire a Light on any
public safety. Some support for this view is found at a point not cited by Jefferson. The House had requested all correspondence with the King of Prussia "relating to the State of War in the Empire," and the King replied that the request would be "carefully examined, in order to see how far the same may be complied with, without Prejudice to the Publick, and consistently with the Confidence reposed in him by other Princes."206 This caution is patently confined to matters of high import in the nature of "state secrets.” Not daunted the House immediately requested all correspondence with the States General about the same subject,207 and later requested all corre
203 See note 191 supra. Contemporary jurisprudential confirmation that the legislature is an "inquest," is found in a 1791 lecture by Justice James Wilson of the Supreme Court: "The house of representatives . . . form the grand inquest of the state. They will diligently inquire into grievances . ..." TAYLOR 13 n.*. Hale v. Henkel, 201 U.S. 43, 61 (1906), says of these lectures that Justice Wilson "may be assumed to have known the current practice ...." See also Wesberry x. Sanders, 376 U.S. 1, 17 (1964). And see note 119 supra.
204 Att'y Gen. Memo. 5; Younger 771.
spondence relating to the treaty with Spain.208 Such stubborn insistence by the House, which was to achieve ascendancy over the King, is incompatible with an established principle of executive discretion. What the King said in fighting a lost cause was not binding on the subsequently victorious Parliament. But even the claimed discretion was of limited scope, for Sir William Yonge, another opposition spokesman, who reiterated Pelham's "consistent with the public safety” phrase, conceded that "with regard to domcstic Affairs, we have a much greater Latitude; because we may more freely call for all Papers relating to any such Affair."209
Jefferson's second citation, to page 173, reads strongly against his proposition, as Pitt's statement at this point makes abundantly plain:
It is said, by some Gentlemen, that by this Inquiry we shall be in Danger oi discovering the Secrets of our Government to our Enemies. This Argument, Sir, by proving too much proves nothing at all. If it were admitted. it would always have been, and forever will be, an Argument against our inquiring into any Affair in which our Government can be supposed to have a Concern. ... We have had many Parliamentary Inquiries into the Conduct of Ministers of State, and yet I defy anyone to shew, that any State Affair was thereby discovered which ought to be concealed, or that our publick Affairs, either
Abroad or at Home, suffered by any such Discovery.210 Thus Pitt rejected the argument that even important secrets should stay the hand of inquiry, and this at a time when England was sore beset by foreign and domestic problems.
Finally, Jefferson cites to page 44 of the appendix, the Committee report. There the Committee recounted the refusal of John Scrope to testify about a large sum known as the “Secret Service Money" on the ground that:
The Disposal of Money issued for Secret Service, by the Nature of it, requires the utmost Secrecy, and is accounted for to His Majesty only, and therefore his Majesty could not permit him to disclose any Thing on that Subject.211
This behaviour "greatly surprised” the Committee, and small wonder. The total sum involved was about £1,380,000, which translated into present values probably represented the then staggering sum of about $15,000,000, of which sum, according to evidence the Committee laid before the House, £1,112,831 was traced to the hands
208 Id. at 246. 209 Id. at 99. (Emphasis added.) 210 Id. at 173. 211 Id, at App. (Comm. Rept. 44-45).