In considering the requests made for the transmission of the reasons for suspensions, and the papers relating thereto, I could not avoid the conviction that a compliance with such requests would be to that extent a failure to protect and defend the Constitution, as well as a wrong to the great office I held in trust for the people, and which I was bound to transmit unimpaired to my successors; nor could I be unmindful of a tendency in some quarters to encroach upon executive functions, or of the eagerness with which executive concession would be seized upon as establishing precedent.
The nominations sent to the Senate remained neglected in the committees to which they had been referred; the requests of the committees for reasons and papers touching suspensions were still refused, and it became daily more apparent that a sharp contest was impending. In this condition of affairs it was plainly intimated by members of the majority in the Senate that if all charges against suspended officials were abandoned and their suspensions based entirely upon the ground that the spoils belonged to the victors, confirmations would follow. This, of course, from my standpoint, would have been untruthful and dishonest; but the suggestion indicated that in the minds of some Senators, at least, there was a determination to gain a partizan advantage by discrediting the professions of the President, who, for the time, represented the party they opposed. This manifestly could be thoroughly done by inducing him to turn his back upon the pledges he had made, and to admit, for the sake of peace, that his action arose solely from a desire to put his party friends in place.
Up to this stage of the controversy, not one of the many requests made for the reasons of suspensions or for the papers relating to them had been sent from the Senate itself; nor had any of them been addressed to the President. It may seem not only strange that, in the existing circumstances, the Senate should have so long kept in the background, but more strange that the Executive, constituting a coördinate branch of the Government, and having such exclusive concern in the pending differences, should have been so completely ignored. I cannot think it uncharitable to suggest in explanation that as long as these requests and refusals were confined to Senate committees and heads of departments, a public communication stating the position of the President in the controversy would probably be avoided; and that, as was subsequently made more apparent, there was an intent, in addressing requests to the heads of departments, to lay a foundation for the contention that not only the Senate but its committees had a right to control these heads of departments as against the President in matters relating to executive duty.
On the 17th of July, 1885, during the recess of the Senate, one George M. Duskin was suspended from the office of District Attorney for the Southern District of Alabama, and John D. Burnett was designated as his successor. The latter at once took possession of the office, and entered upon the discharge of its duties; and on the 14th of December, 1885, the Senate having in the meantime convened in regular session, the nomination of Burnett was sent to that body for confirmation. This nomination, pursuant to the rules and customs of the Senate, was referred to its Committee on the Judiciary. On the 26th of December, that committee then having the nomination under consideration, one of its members addressed a communication to the Attorney-General of the United States, requesting him, “on behalf of the Committee on the Judiciary of the Senate and by its direction,” to send to such member of the committee all papers and information in the possession of the Department of Justice touching the nomination of Burnett, “also all papers and information touching the suspension and proposed removal from office of George M. Duskin.” On the 11th of January, 1886, the Attorney-General responded to this request in these terms:
The Attorney-General states that he sends herewith all papers, etc., touching the nomination referred to; and in reference to the papers touching the suspension of Duskin from office, he has as yet received no direction from the President in relation to their transmission.
At this point it seems to have been decided for the first time that the Senate itself should enter upon the scene as interrogator. It was not determined, however, to invite the President to answer this new interrogator, either for the protection and defense of his high office or in self-vindication. It appears to have been also decided at this time to give another form to the effort the Senate itself was to undertake to secure the “papers and information” which its Committee had been unable to secure. In pursuance of this plan the following resolution was adopted by the Senate in executive session on the 25th of January, 1886:
Resolved, That the Attorney-General of the United States be, and he hereby is, directed to transmit to the Senate copies of all documents and papers that have been filed in the Department of Justice since the 1st day of January, a.d. 1885, in relation to the conduct of the office of District Attorney of the United States for the Southern District of Alabama.
The language of this resolution is more adroit than ingenuous. While appearing reasonable and fair upon its face, and presenting no indication that it in any way related to a case of suspension, it quickly assumes its real complexion when examined in the light of its surroundings. The requests previously made on behalf of Senate committees had ripened into a “demand” by the Senate itself. Herein is found support for the suggestion I have made, that from the beginning there might have been an intent on the part of the Senate to claim that the heads of departments, who are members of the President’s Cabinet and his trusted associates and advisers, owed greater obedience to the Senate than to their executive chief in affairs which he and they regarded as exclusively within executive functions. As to the real meaning and purpose of the resolution, a glance at its accompanying conditions and the incidents preceding it makes manifest the insufficiency of its disguise. This resolution was adopted by the Senate in executive session, where the entire senatorial business done is the consideration of treaties and the confirmation of nominations for office. At the time of its adoption Duskin had been suspended for more than six months, his successor had for that length of time been in actual possession of the office, and this successor’s nomination was then before the Senate in executive session for confirmation. The demand was for copies of documents and papers in relation to the conduct of the office filed since January 1, 1885, thus covering a period of incumbency almost equally divided between the suspended officer and the person nominated to succeed him. The documents and papers demanded could not have been of any possible use to the Senate in executive session, except as they had a bearing either upon the suspension of the one or the nomination of the other. But as we have already seen, the Attorney-General had previously sent to a committee of the Senate all the papers he had in his custody in any way relating to the nomination and the fitness of the nominee, whether such papers had reference to the conduct of the office or otherwise. Excluding, therefore, such documents and papers embraced in the demand as related to the pending nomination, and which had already been transmitted, it was plain that there was nothing left with the Attorney-General that could be included in the demand of the Senate in its executive session except what had reference to the conduct of the previous incumbent and his suspension. It is important to recall in this connection the fact that this subtle demand of the Senate for papers relating “to the conduct of the office” followed closely upon a failure to obtain “all papers and information” touching said suspension, in response to a plain and blunt request specifying precisely what was desired.