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December 16,
Investigation 1926
A document from the CQ Researcher archives:
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Daugherty and Sinclair Contempt Cases
British, Colonial and State Precedents
Investigations by the House and Senate
Executive Resistance to Legislative Inquiries
Under the Constitution the House has the sole authority of impeachment and the
Senate the sole power to try impeachment cases; each house is made the judge of
the election and qualifications of its members; each may punish its members for
disorderly behavior, and, with the concurrence of two-thirds, may expel a member.
In investigations carried on under the judicial authority thus conferred, it is well
established that the House and Senate may employ the same power to compel the
attendance of witnesses and their answers to proper questions that resides in the
courts of justice.
On the other hand, the Supreme Court has declared Congress to be without
authority to conduct investigations of a judicial character into matters over which it
possesses no judicial authority. In the leading case under this head, Kilbourn v.
Thompson,1 it was held that the House had no power to compel an unwilling witness
to testify or produce documents or to punish him for disobedience because the
investigation in which it was engaged constituted an invasion of the powers reserved
under the Constitution to the judicial branch of the government.
The Supreme Court's decision in the case of Kilbourn v. Thompson was rendered in
1880. In no decision since has it settled the question whether the legislative branch
has power to compel testimony in aid of legislation. This question is prominently
raised in the pending cases of Mally S. Daugherty and Harry F. Sinclair, both of which
arose out of the Senate investigations of 1924.
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The Daugherty contempt case has been pending before the Supreme Court for more
than two years, indicating a close division of opinion among the members of the
Court upon the issues involved. Although the two cases differ in details, the decision
in this case will probably be controlling in the Sinclair contempt case, for unless
decided upon some minor point, which appears unlikely, the Daugherty case should
go a long way toward establishing the limits within which Congress may exercise
compulsory powers of investigation.
The investigating committee thereupon reported these facts to the Senate which
adopted a resolution, April 26, 1924, reciting that
The resolution ordered that the President pro tempore of the Senate issue his
warrant commanding the Sergeant-at-Arms, or his deputy, to take Daugherty into
custody and bring him before the bar of the Senate
Daugherty, when arrested under this order, applied for a writ of habeas corpus
which was issued by Judge A. M. J. Cochran of the United States District Court,
southern district of Ohio. The case was thereupon appealed by the government to
the Supreme Court.
Section 102 of the Revised Statutes of the United States provides that
Sinclair's refusal to testify was reported to the Senate and certified to the District
Attorney, as provided in the above statute, and in due course Sinclair was indicted
and tried. The lower court held that certain of the questions asked by Senator Walsh
were improper and that Sinclair was within his rights in refusing to answer them.
Certain other questions, however, were held by the court to be proper questions and
should have been answered by Sinclair - if the Senate was acting within its proper
authority in conducting the investigation. As to the Senate's authority to conduct the
Teapot Dome investigation, that was a question for decision by an appellate court.
On the basis of this decision the case was taken to the Court of Appeals of the
District of Columbia, which withheld its decision pending action by the Supreme
Court in the Daugherty case. During the last session of Congress, however, an act
was passed forbidding appeals in such cases and the case was thereupon dismissed
by the Court of Appeals. This action is now before the Supreme Court upon petition
for review.
The court took notice of the fact that the Senate in ordering Daugherty's arrest had
asserted that his testimony was necessary as a basis for such legislative and other
action as the Senate may deem necessary and proper,
After pointing out that the Supreme Court not only had never held that such power
existed, but had never said anything favoring its existence, Judge Cochran added
Judge Cochran deemed the Senate's assertion of a legislative purpose and after
thought, which was expressed after its authority had been challenged, and which
could not be held to reveal the real purpose of the investigation.
Since the Senate was without authority to conduct the investigation which was in
progress, it followed that it was without authority to order Mally Daugherty's arrest
and had no power to punish him for his contempt of an authority which had no
existence.
The government sought to show that both the Department of Justice and the oil
leasing investigations were directed to legislative ends. This had been asserted by
the Senate in the order for Daugherty's arrest, and in the resolution renewing the
authority of the oil leasing committee during the Sixty-eighth Congress, which had
declared that the purpose was to ascertain what, if any, other or additional
legislation may be advisable.
Unless the government's first proposition - that both houses have power to conduct
investigations in aid of legislation - is sustained by the Supreme Court its whole
argument in both these cases falls to the ground. If the Senate has no authority to
compel testimony in aid of legislation, argument as to whether the Department of
Justice and oil leasing investigations were legislative or judicial in character is beside
the point. Chief attention was given by the government, therefore, in both these
cases to sustaining its first point.
The main question presented for decision in the pending cases is whether the
legislative power conferred by the Constitution upon Congress includes the power
to conduct investigations and to punish contumacious witnesses for contempt. The
question whether the investigations out of which these cases arose were legislative
or judicial in character takes a place of secondary importance, although decisions
favorable to Daugherty and Sinclair on this point would have the effect of outlawing
for the future such investigations as were conducted by the Senate in 1924 into the
operations of the executive branch of the government and the activities of its
officials.
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The power of the legislative branch to conduct investigations in aid of its legislative
function and to compel testimony by unwilling witnesses before its committees of
inquiry was well established in Great Britain at the time the United States
government was founded. American legislative machinery and procedure was largely
modeled upon the British pattern, and on this basis it has been argued that the
framers of the Constitution when conferring the legislative power upon Congress,
must have intended, in the absence of express provision to the contrary, to confer
the power of investigation as an intrinsic part of the power to legislate.
The persuasive value of British precedents and practices was denied by the Supreme
Court, however, in the case of Kilbourn v. Thompson, on the ground that the High
Court of Parliament was originally a judicial as well as a legislative body. The exercise
by the House of Commons of the judicial authority to compel testimony was held in
this decision to trace back to its ancient exercise of judicial functions. The American
Congress, stripped at its creation of all except a few enumerated judicial functions,
could not be conceded the same range of judicial authority that continued to be
exercised by the British House of Commons.
This position has been disputed by later authorities who have held that there was no
clear distinction between legislative power and judicial power at the time the
British Parliament functioned as a court, and that the power of compelling testimony
was no more judicial than it was legislative in its origin. The same process was
employed by Parliament in its discharge of both functions, and it has been argued
that its exercise was as necessary to the proper discharge of the one function as the
other. In view of this argument, there is the possibility that the Supreme Court in the
pending contempt cases will reverse the position assumed by the Court in 1880
when the case of Kilbourn v. Thompson was decided.
The power of Parliament over the purse led to the creation of committees to
determine whether funds appropriated were being properly expended and by 1640
a large number of committees had come into being with power to make detailed
investigations into all the operations of the government. Even the military and naval
branches were compelled to disclose the details of their operations when
dissatisfaction with the conduct of military movements arose in Parliament. All
manner of scandals were investigated, and witnesses preparing to flee the country
were seized and imprisoned pending their examination by committees of inquiry.
By the time the American colonies had gained their independence, tradition and
usage had placed beyond dispute the power of the House of Commons to employ
compulsory process in the investigation of any matter of public concern. This power,
when challenged, was upheld by the courts.
The Pennsylvania House of Delegates asserted its authority not only to investigate
the expenditure of public funds but also to inquire into misbehavior by the
Governor's appointees. When charges of fraudulent, corrupt and wicked practices
were made against William Moore, judge of the court of common pleas in 1757,
witnesses who refused to testify or testified untruthfully in the investigation made
by the House were arrested and imprisoned, and the House, having no power to
remove Judge Moore, petitioned the Governor to take him from the bench.
Numerous other cases of this nature occurred in the state legislatures and the power
of the legislatures, when challenged, was upheld by the state courts.
It is a well established principle of this parliamentary law, said Judge Daly, New
York, in the case of Briggs v. MacKellar, that either house may institute any
investigation having reference toany matter affecting the public interest upon
which it may be important that it should have exact information, and in respect to
which it would be competent for it to legislate. The right to pass laws, necessarily
implies the right to obtain information upon any matter which may become the
subject of law. It is essential to the full and intelligent exercise of the legislative
functionIn American legislatures the investigation of public matters before
committees, preliminary to legislation, or with the view of advising the house
appointing the committee is as well established as it is in England, and the right of
either house to compel witnesses to appear and testify before its committees, and to
punish for disobedience has been frequently enforced.
Prior to the Supreme Court's decision of the case of Kilbourn v. Thompson broad
powers of investigation were conceded to the state legislatures in the decisions of
state courts. While there have been some decisions of state courts since 1880
tending to impose restrictions upon these powers, the right to investigate in aid of
legislation has in general been upheld.
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The first use of the power of investigation by the national legislature occurred during
the Second Congress, within two years after the ratification of the federal
Constitution by the thirteenth state.
On March 27, 1792, a resolution directing the President to conduct an inquiry into
the disaster to General St. Clair and his army in the northwest was voted down by
the House of Representatives 35 to 21 and a substitute resolution was adopted 44 to
10 where under a committee of the House, armed with power to send for persons
and papers, was authorized to make the investigation.
Objection was raised on this occasion to the power of the House to conduct an
inquiry into the conduct of an officer directly under the control of the Executive, and
not amenable to the process of impeachment. To this objection it was replied that
an inquiry into the expenditure of all public money is the indispensable duty of this
House.
Thus the first congressional investigation was based upon the power of
appropriation. The investigation disclosed that the St. Clair defeat had been due to
causes for which the commander of the expedition had been in no way responsible.
Impeachment of the President for failure to remove General Wilkinson was urged by
Taylor as a basis for the investigation. Sheffey said the power to make the
investigation arose out of the control of the public funds.
On the basis of these arguments the House reaffirmed its power of investigation by
adopting the resolution for the Wilkinson investigation by a vote of 80 to 29.
The investigation was made by a select committee of nine, which resorted to the
power to subpoena witnesses and compel testimony, without having any question of
its authority raised.
A request for a similar investigation was made by Gideon Granger, during his term of
office as Postmaster General, and in 1850 Secretary of War Crawford asked an
investigation of his conduct in relation to the payment of certain claims. Various
other requests for investigations have come to the House and Senate from officials
of the executive branch, but such requests have not always been complied with.
Simonton's refusal to testify was reported to the House together with a resolution
for his arrest to answer for contempt, and a bill making such refusal a criminal
offense. The expiration of the session was near at hand, and it was explained in
debate that since the power of the House to imprison did not extend beyond its
session - a well established rule under the British parliamentary practice - Simonton
would thus be enabled to escape with little punishment. The main purpose of the bill
was explained by its author to be to inflict a greater punishment than the
committee believe the House possess the power to inflict. Both the resolution and
the bill were passed by the House by overwhelming majorities, and no question of
the power to inflict punishment in cases of contumacy was raised during the
consideration of the bill by the Senate.
One of the Senate committees had been charged with the task of searching out the
facts attending the late invasion and seizure of the armory and arsenal of the United
States at Harpers Ferry, in Virginia, by a band of armed men. In this investigation a
witness named Hyatt refused to testify. He was arraigned before the bar of the
Senate and when he persisted in his refusal to answer resolutions were offered
proposing his imprisonment for contempt.
In the debate upon these resolutions Charles Sumner of Massachusetts argued that
the Senate had no power to compel testimony in aid of legislation.
On the basis of this argument a resolution was adopted 44 to 10 directing that Hyatt
be committed to the common jail of the District of Columbia, and kept in close
custody until he should be willing to answer the questions propounded to him by the
Senate.
Senator Fessenden, in arguing for the resolution in the upper house, again stressed
the legislative basis for investigations.
During the 65 years that have elapsed since this first joint investigation, nearly a
score of investigations have been carried on by joint committees of the two houses
usually into matters of nation wide concern in which concerted action by the two
houses has seemed desirable.
Of the 50 most important investigations since the close of the Civil War, excluding
those undertaken by joint committees of inquiry, 34 have been carried out by Senate
committees and only 16 by committees of the House. During recent years all of the
outstanding investigations have been conducted by committees of the upper house.
Since 1910, according to a recent statement by Chairman Warren of the Senate
Appropriations Committee, Senate investigations have cost, the country $1,658,500,
with those conducted during the last session costing approximately $275,000.
The explanation of the reversal during recent years of the roles played during the
early history of the country by the House and Senate in the conduct of investigations
is to be found in the increasing size of the lower body, the necessity for limitation of
debate and the concentration of control over the activities of the House in the hands
of a comparatively few leaders. When these leaders are of the political party which is
in control of the executive branch, it is unlikely that any resolution for an
investigation which is known in advance to contain possibilities of embarrassment to
the administration will be permitted to come to a vote.
In the Senate, on the other hand, opposition to any investigation which commands
the support of a determined minority is useless, for the reason that a few senators
always have it within their power to obstruct the program of the majority by
filibuster, and to employ the Senate forum for airing their charges until such time as
the majority is ready to submit to their demands. Thus a form of senatorial courtesy
has developed which permits a freedom of investigation equal to the Senate's
freedom of debate.
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Power to call for persons and papers in legislative investigations, it has been pointed
out in recent studies of the powers of the American Senate, may readily be
converted into a power of supervision over the executive branch, thus affording a
valuable safeguard against executive inefficiency and corruption and forcing some
accountability into the rigid irresponsibility of the American system.1
The first refusal of the Executive to comply with a request for information occurred
in 1796 when the House requested President Washington to lay before it certain
papers relating to the negotiation of a treaty with Great Britain. The President in
refusing the request pointed out that the assent of the House was not necessary to
the validity of the treaty, and that the treaty itself exhibited all the objects requiring
legislative provision.
In 1834 and 1835 when the Senate called for documents relating to persons
nominated before that body, Jackson complied with its requests although he noted
that he did not concede the right of the Senate to make them. Then the Senate
called for copies of charges made to him against an official he had removed from
office, and Jackson replied:
This reply was resented by the Senate. It appointed a committee to consider the
matter, and in its report the committee said:
On April 11, 1924, President Coolidge sent a special message to the Senate
transmitting a, letter from the Secretary of the Treasury protesting against the
employment of Francis J. Heney, with private funds provided by Senator Couzens, to
take charge of the Senate's investigation of the Bureau of Internal Revenue. In his
letter Secretary Mellon said
Fully endorsing the expressions of his Secretary of the Treasury, the President, in his
special message to the Senate said:
President Coolidge's special message of April 11, 1924 was the most vigorous protest
ever made by an American Chief Executive against the unrestrained exercise of
powers of investigation by the legislative branch, and the pending contempt cases of
Daugherty and Sinclair present the most forceful challenge to the continued exercise
of such powers that has ever been offered in the federal courts.
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Footnotes
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