Washington cover-up

by Clark R. Mollenhoff

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.