The Cleveland Era: A Chronicle of the New Order in Politics

by Henry Jones Ford

Meanwhile, the Senate had raised an issue which the President met with a force and a directness probably unexpected. Among the recess appointments was one to the office of District Attorney for the Southern District of Alabama, in place of an officer who had been suspended in July 1885, but whose term of office expired by limitation on December 20, 1885. Therefore, at the time the Senate took up the case, the Tenure of Office Act did not apply to it, and the only question actually open was whether the acting officer should be confirmed or rejected. Nevertheless, the disposition to assert control over executive action was so strong that the Senate drifted into a constitutional struggle over a case that did not then involve the question of the President's discretionary power of removal from office, which was really the point at issue.

On December 26, 1885, the Judiciary Committee notified the Attorney-General to transmit "all papers and information in the possession of the Department" regarding both the nomination and "the suspension and proposed removal from office" of the former incumbent. On January 11, 1886, the Attorney-General sent to the Committee the papers bearing upon the nomination, but withheld those touching the removal on the ground that he had "received no direction from the President in relation to their transmission." The matter was debated by the Senate in executive session and on January 25, 1886, a resolution was adopted which was authoritative in its tone and which directed the Attorney-General to transmit copies of all documents and papers in relation to the conduct of the office of District Attorney for the Southern District of Alabama since January 1, 1885. Within three days, Attorney-General Garland responded that he had already transmitted all papers relating to the nomination; but with regard to the demand for papers exclusively relating to the suspension of the former incumbent he was directed by the President to say "that it is not considered that the public interests will be promoted by a compliance."

The response of the Attorney-General was referred to the Judiciary Committee which, on the 18th of February, made an elaborate report exhibiting the issue as one which involved the right of Congress to obtain information. It urged that "the important question, then, is whether it is within the constitutional competence of either House of Congress to have access to the official papers and documents in the various public offices of the United States, created by laws enacted by themselves." The report, which was signed only by the Republican members of the Committee, was an adroit partisan performance, invoking traditional constitutional principles in behalf of congressional privilege. A distinct and emphatic assertion of the prerogative of the Senate was made, however, in resolutions recommended to the Senate for adoption. Those resolutions censured the Attorney-General and declared it to be the duty of the Senate "to refuse its advice and consent to proposed removals of officers" when papers relating to them "are withheld by the Executive or any head of a department."

On the 2nd of March, a minority report was submitted, making the point of which the cogency was obvious, that inasmuch as the term of the official concerning whose suspension the Senate undertook to inquire had already expired by legal limitation, the only object in pressing for the papers in his case must be to review an act of the President which was no longer within the jurisdiction of the Senate, even if the constitutionality of the Tenure of Office Act should be granted. The report also showed that of the precedents cited in behalf of the majority's contention, the applicability could be maintained only of those which were supplied by cases arising since 1867, before which time the right of the President to remove officers at his own discretion was fully conceded.

The controversy had so far followed the ordinary lines of partisan contention in Congress, which public opinion was accustomed to regard with contemptuous indifference as mere sparring for points in the electioneering game. President Cleveland now intervened in a way which riveted the attention of the nation upon the issue. Ever since the memorable struggle which began when the Senate censured President Jackson and did not end until that censure was expunged, the Senate had been chary of a direct encounter with the President. Although the response of the Attorney-General stated that he was acting under the direction of the President, the pending resolutions avoided any mention of the President but expressed "condemnation of the refusal of the Attorney-General under whatever influence, to send to the Senate" the required papers. The logical implication was that, when the orders of the President and the Senate conflicted, it was the duty of the Attorney-General to obey the Senate. This raised an issue which President Cleveland met by sending to the Senate his message of March 1, 1886, which has taken a high rank among American constitutional documents. It is strong in its logic, dignified in its tone, terse, direct, and forceful in its diction.

Cleveland's message opened with the statement that "ever since the beginning of the present session of the Senate, the different heads of the departments attached to the executive branch of the government have been plied with various requests and documents from committees of the Senate, from members of such committees, and at last from the Senate itself, requiring the transmission of reasons for the suspension of certain officials during the recess of that body, or for papers touching the conduct of such officials." The President then observed that "though these suspensions are my executive acts, based upon considerations addressed to me alone and for which I am wholly responsible, I have had no invitation from the Senate to state the position which I have felt constrained to assume." Further on, he clinched this admission of full responsibility by declaring that "the letter of the Attorney-General in response to the resolution of the Senate... was written at my suggestion and by my direction."

This statement made clear in the sight of the nation that the true issue was between the President and the Senate. The strength of the Senate's position lay in its claim to the right of access to the records of public offices "created by laws enacted by themselves." The counterstroke of the President was one of the most effective passages of his message in its effect upon public opinion. "I do not suppose," he said, "that the public offices of the United States are regulated or controlled in their relations to either House of Congress by the fact that they were 'created by laws enacted by themselves.' It must be that these instrumentalities were enacted for the benefit of the people and to answer the general purposes of government under the Constitution and the laws, and that they are unencumbered by any lien in favor of either branch of Congress growing out of their construction, and unembarrassed by any obligation to the Senate as the price of their creation."

The President asserted that, as a matter of fact, no official papers on file in the departments had been withheld. "While it is by no means conceded that the Senate has the right, in any case, to review the act of the Executive in removing or suspending a public officer upon official documents or otherwise, it is considered that documents and papers of that nature should, because they are official, be freely transmitted to the Senate upon its demand, trusting the use of the same, for proper and legitimate purposes, to the good faith of that body; and though no such paper or document has been especially demanded in any of the numerous requests and demands made upon the departments, yet as often as they were found in the public offices they have been furnished in answer to such applications." The point made by the President, with sharp emphasis, was that there was nothing in his action which could be construed as a refusal of access to official records; what he did refuse to acknowledge was the right of the Senate to inquire into his motives and to exact from him a disclosure of the facts, circumstances, and sources of information that prompted his action. The materials upon which his judgment was formed were of a varied character. "They consist of letters and representations addressed to the Executive or intended for his inspection; they are voluntarily written and presented by private citizens who are not in the least instigated thereto by any official invitation or at all subject to official control. While some of them are entitled to Executive consideration, many of them are so irrelevant or in the light of other facts so worthless, that they have not been given the least weight in determining the question to which they are supposed to relate." If such matter were to be considered public records and subject to the inspection of the Senate, the President would thereby incur "the risk of being charged with making a suspension from office upon evidence which was not even considered."

Issue as to the status of such documents was joined by the President in the sharpest possible way by the declaration: "I consider them in no proper sense as upon the files of the department but as deposited there for my convenience, remaining still completely under my control. I suppose if I desired to take them into my custody I might do so with entire propriety, and if I saw fit to destroy them no one could complain."

Moreover, there were cases in which action was prompted by oral communications which did not go on record in any form. As to this, Cleveland observed, "It will not be denied, I suppose, that the President may suspend a public officer in the entire absence of any papers or documents to aid his official judgment and discretion; and I am quite prepared to avow that the cases are not few in which suspensions from office have depended more upon oral representations made to me by citizens of known good repute and by members of the House of Representatives and Senators of the United States than upon any letters and documents presented for my examination." Nor were such representations confined to members of his own party for, said he, "I recall a few suspensions which bear the approval of individual members identified politically with the majority in the Senate." The message then reviewed the legislative history of the Tenure of Office Act and questioned its constitutionality. The position which the President had taken and would maintain was exactly defined by this vigorous statement in his message: