Washington cover-up

by Clark R. Mollenhoff

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.”