[Cannon's Precedents, Volume 6]
[Chapter 183 - Prerogatives As Related To the Executive]
[From the U.S. Government Publishing Office, www.gpo.gov]
PREROGATIVES AS RELATED TO THE EXECUTIVE.
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1. Commendation or censure of the Executive. Section 330.
2. Executive protests against request relating to exercise of
his prerogative. Section 331.
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330. The President having transmitted to the House a message
reflecting on the integrity of its membership, the House declared it a
breach of privilege and ordered it laid on the table.
On December 11, 1908,\2\ Mr. James B. Perkins, of New York, offered,
as involving the privilege of the House, a preamble and resolution
reading as follows:
Whereas there was contained in the sundry civil appropriation bill,
which passed Congress at its last session and became a law, a provision
in reference to the employment of the Secret Service in the Treasury
Department; and
Whereas in the message of the President of the United States to the
two Houses of Congress it was stated in reference to that provision,
``It is not too much to say that this amendment has been of benefit
only, and could be of benefit only, to the criminal classes,'' and it
was further stated,'' The chief argument in favor of the provision was
that the Congressmen did not themselves wish to be investigated by
Secret Service men,'' and it was further stated, ``But if this is not
considered desirable a special exception could be made in the law,
prohibiting the use of the Secret Service force in investigating
Members of Congress. It would be far better to do this than to do what
actually was done, and strive to prevent or at least hamper effective
action against criminals by the executive branch of the Government.''
Now, therefore, be it
Resolved, That a committee of five Members of this House be appointed
by the Speaker to consider the statements contained in the message of
the President and report to the House what action, if any, should be
taken in reference thereto.
The resolution was agreed to, and the Speaker appointed as members of
the select committee thus authorized: Messrs. James B. Perkins, of New
York; Edwin Denby, of Michigan; John W. Weeks, of Massachusetts; John
Sharp Williams, of Mississippi; and James T. Lloyd, of Missouri.
On December 17, Mr. Perkins, from the select committee, reported the
following preamble and resolution, with the unanimous recommendation of
the committee that it be agreed to:
Whereas there was contained in the sundry civil appropriation bill
which passed Congress at its last session and became a law a provision
in reference to the employment of the Secret Service in the Treasury
Department; and
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\1\ Supplementary to Chapter L.
\2\ Second session, Sixtieth Congress, Record, p. 140.
Sec. 330
Whereas in the last annual message of the President of the United
States to the two Houses of Congress it was stated in reference to that
provision, ``It is not too much to say that this amendment has been of
benefit only, and could be of benefit only, to the criminal classes,''
and it was further stated, ``The chief argument in favor of the
provision was that the Congressmen did not themselves wish to be
investigated by secret-service men,'' and it was further stated, ``But
if this is not considered desirable, a special exception could be made
in the law, prohibiting the use of the secret-service force in
investigating Members of Congress. It would be far better to do this
than to do what actually was done, and strive to prevent, or at least
to hamper, effective action against criminals by the executive branch
of the Government'' and
Whereas the plain meaning of the above words is that the majority of
the Congressmen were in fear of being investigated by secret-service
men, and that Congress as a whole was actuated by that motive in
enacting the provision in question; and
Whereas your committee appointed to consider these statements of the
President and to report to the House can not find in the hearings
before committees nor in the records of the House or Senate any
justification of this impeachment of the honor and integrity of the
Congress; and
Whereas your committee would prefer, in order to make an intelligent
and comprehensive report, just to the President as well as to the
Congress, to have all the information which the President may have to
communicate: Now, therefore, be it
Resolved, That the President be requested to transmit to the House
any evidence upon which he based his statements that the ``chief
argument in favor of the provision was that the Congressmen did not
themselves wish to be investigated by secret-service men,'' and also to
transmit to the House any evidence connecting any Member of the House
of Representatives of the Sixtieth Congress with corrupt action in his
official capacity, and to inform the House whether he has instituted
proceedings for the punishment of any such individual by the courts or
has reported any such alleged delinquencies to the House of
Representatives.
The resolution was agreed to, and in response thereto the President,
on January 4, 1909,\1\ transmitted to the House a message, which, after
quoting the resolution in full, said:
I am wholly at a loss to understand the concluding portion of the
resolution. I have made no charges of corruption against Congress nor
against any Member of the present House. If I had proof of such
corruption affecting any Member of the House in any matter as to which
the Federal Government has jurisdiction, action would at once be
brought, as was done in the cases of Senators Mitchell and Burton, and
Representatives Williamson, Hermann, and Driggs, at different times
since I have been President. This would simply be doing my duty in the
execution and enforcement of the laws without respect to persons. But I
do not regard it as within the province or the duties of the President
to report to the House ``alleged delinquencies'' of Members, or the
supposed ``corrupt action'' of a Member ``in his official capacity.''
The membership of the House is by the Constitution placed within the
power of the House alone. In the prosecution of criminals and the
enforcement of the laws the President must resort to the courts of the
United States.
In the third and fourth clauses of the preamble it is stated that the
meaning of my words is that ``the majority of the Congressmen are in
fear of being investigated by secret-service men'' and that ``Congress
as a whole was actuated by that motive in enacting the provision in
question,'' and that this is an impeachment of the honor and integrity
of the Congress. These statements are not, I think, in accordance with
the facts. The portion of my message referred to runs as follows:
The portion of the message referred to is here set out in full and
the message continues:
A careful reading of this message will show that I said nothing to
warrant the statement that ``the majority of the Congressmen were in
fear of being investigated by the secret-service men,'' or ``that
Congress as a whole was actuated by that motive.'' I did not make any
such
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\1\ Journal, p. 85; Record, p. 373.
Sec. 330
statement in this message. Moreover I have never made any such
statement about Congress as a whole, nor, with a few inevitable
exceptions, about the Members of Congress, in any message or article or
speech. On the contrary I have always not only deprecated but
vigorously resented the practice of indiscriminate attack upon
Congress, and indiscriminate condemnation of all Congressmen, wise and
unwise, fit and unfit, good and bad alike. No one realizes more than I
the importance of cooperation between the Executive and Congress, and
no one holds the authority and dignity of the Congress of the United
States in higher respect than I do. I have not the slightest sympathy
with the practice of judging men, for good or for ill, not on their
several merits, but in a mass, as members of one particular body or one
caste. To put together all men holding or who have held a particular
office, whether it be the office of President, or judge, or Senator, or
Member of the House of Representatives, and to class them all, without
regard to their individual differences, as good or bad, seems to me
utterly indefensible; and it is equally indefensible whether the good
are confounded with the bad in a heated and unwarranted championship of
all, or in a heated and unwarranted assault upon all. I would neither
attack nor defend all executive officers in a mass, whether Presidents,
governors, Cabinet officers, or officials of lower rank; nor would I
attack or defend all legislative officers in a mass. The safety of free
government rests very largely in the ability of the plain, every-day
citizen to discriminate between those public servants who serve him
well and those public servants who serve him ill. He can not thus
discriminate if he is persuaded to pass judgment upon a man, not with
reference to whether he is a fit or unfit public servant, but with
reference to whether he is an executive or legislative officer, whether
he belongs to one branch or the other of the Government.
This allegation in the resolution, therefore, must certainly be due
to an entire failure to understand my message.
The message takes up the request of the House for evidence as
follows:
The resolution continued: ``That the President be requested to
transmit to the House any evidence upon which he based his statements
that `the chief argument in favor of the provision was that the
Congressmen did not themselves wish to be investigated by Secret
Service men.' '' This statement, which was an attack upon no one, still
less upon the Congress, is sustained by the facts.
If you will turn to the Congressional Record for May 1 last, pages
5553 to 5560, inclusive, you will find the debate on this subject. Mr.
Tawney of Minnesota, Mr. Smith of Iowa, Mr. Sherley of Kentucky, and
Mr. Fitzgerald of New York, appear in this debate as the special
champions of the provision referred to. Messrs. Parsons, Bennet, and
Driscoll were the leaders of those who opposed the adoption of the
amendment and upheld the right of the Government to use the most
efficient means possible in order to detect criminals and to prevent
and punish crime. The amendment was carried in the Committee of the
Whole, where no votes of the individual members are recorded, so I am
unable to discriminate by mentioning the members who voted for and the
members who voted against the provision, but its passage, the Journal
records was greeted with applause. I am well aware, however, that in
any case of this kind many Members who have no particular knowledge of
the point at issue, are content simply to follow the lead of the
committee which had considered the matter, and I have no doubt that
many Members of the House simply followed the lead of Messrs. Tawney
and Smith, without having had the opportunity to know very much as to
the rights and wrongs of the question.
I would not ordinarily attempt in this way to discriminate between
Members of the House, but as objection has been taken to my language,
in which I simply spoke of the action of the House as a whole, and as
apparently there is a desire that I should thus discriminate, I will
state that I think the responsibility rested on the Committee on
Appropriations, under the lead of the Members whom I have mentioned.
Now as to the request of the Congress that I give the evidence for my
statement that the chief argument in favor of the provision was that
the Congressmen did not themselves wish to be investigated by Secret
Service men.
The part of the Congressional Record to which I have referred above
entirely supports this statement. Two distinct lines of argument were
followed in the debate. One concerned the
Sec. 330
question whether the law warranted the employment of the Secret Service
in departments other than the Treasury, and this did not touch the
merits of the service in the least. The other line of argument went to
the merits of the service, whether lawfully or unlawfully employed, and
here the chief if not the only argument used was that the service
should be cut down and restricted because its members had ``shadowed''
or investigated members of Congress and other officers of the
Government. If we examine the debate in detail it appears that most of
what was urged in favor of the amendment took the form of the simple
statement that the committee held that there had been a ``violation of
law'' by the use of the Secret Service for other purposes than
suppressing counterfeiting (and one or two other matters which can be
disregarded), and that such language was now to be used as would
effectually prevent all such ``violation of law'' hereafter. Mr.
Tawney, for instance, says: ``It was for the purpose of stopping the
use of this service in every possible way by the departments of the
Government that this provision was inserted;'' and Mr. Smith says:
``Now, that was the only way in which any limitation could be put upon
the activities of the Secret Service.'' Mr. Fitzgerald followed in the
same vein, and by far the largest part of the argument against the
employment of the Secret Service was confined to the statement that it
was in ``violation of law.'' Of course such a statement is not in any
way an argument in favor of the justice of the provision. It is not an
argument for the provision at all. It is simply a statement of what the
gentlemen making it conceive to have been the law. There was both by
implication and direct statement the assertion that it was the law, and
ought to be law, that the Secret Service should only be used to
suppress counterfeiting; and that the law should be made more rigid
than ever in this respect.
The message then discusses at length the Secret Service, and
legislation affecting it, and concludes:
In conclusion, I most earnestly ask, in the name of good government
and decent administration, in the name of honesty and for the purpose
of bringing to justice violators of the Federal laws wherever they may
be found, whether in public or private life, that the action taken by
the House last year be reversed.
I also urge that the Secret Service be placed where it properly
belongs, and made a bureau in the Department of Justice, as the Chief
of the Secret Service has repeatedly requested; but whether this is
done or not, it should be explicitly provided that the Secret Service
can be used to detect and punish crime wherever it is found.
Theodore Roosevelt.
The White House, January 4, 1909.
On January 8, 1913,\1\ Mr. Perkins offered, as privileged, the
following resolution:
Whereas the annual message of the President contained the following
paragraph:
``Last year an amendment was incorporated in the measure provided for
the Secret Service, which provided that there should be no detail from
the Secret Service and no transfer therefrom. It is not too much to say
that this amendment has been of benefit only, and could be of benefit
only, to the criminal classes. If deliberately introduced for the
purpose of diminishing the effectiveness of war against crime it could
not have been better devised to this end. It forbade the practices that
had been followed to a greater or less extent by the executive heads of
various departments for twenty years. To these practices we owe the
securing of the evidence which enabled us to drive great lotteries out
of business and secure a quarter of a million of dollars in fines from
their promoters. These practices have enabled us to discover some of
the most outrageous frauds in connection with the theft of Government
land and Government timber by great corporations and by individuals.
These practices have enabled us to get some of the evidence
indispensable in order to secure the conviction of the wealthiest and
most formidable criminals with whom the Government has to deal, both
those operating in violation of the antitrust law and others. The
amendment in question was of benefit to no one excepting to these
criminals, and it seriously hampers the Government in the detection of
crime and the securing of justice. Moreover, it not only affects
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\1\ Record, p. 458.
Sec. 331
departments outside of the Treasury, but it tends to hamper the
Secretary of the Treasury himself in the effort to utilize the
employees of his department so as to best meet the requirements of the
public service. It forbids him from preventing frauds upon the Customs
Service, from investigating irregularities in branch mints and assay
offices, and has seriously crippled him. It prevents the promotion of
employees in the Secret Service, and this further discourages good
effort. In its present form the restriction operates only to the
advantage of the criminal, of the wrongdoer. The chief argument in
favor of the provision was that the Congressmen did not themselves wish
to be investigated by Secret Service men. Very little of such
investigation has been done in the past; but it is true that the work
of the Secret Service agents was partly responsible for the indictment
and conviction of a Senator and a Congressman for land frauds in
Oregon. I do not believe that it is in the public interest to protect
criminals in any branch of the public service, and exactly as we have
again and again during the past seven years prosecuted and convicted
such criminals who were in the executive branch of the Government, so
in my belief we should be given ample means to prosecute them if found
in the legislative branch. But if this is not considered desirable a
special exception could be made in the law prohibiting the use of the
Secret Service force in investigating Members of the Congress. It would
be far better to do this than to do what actually was done, and strive
to prevent or at least to hamper effective action against criminals by
the executive branch of the Government.''
Understanding this language to be a reflection on the integrity of
its membership, and aware of its own constitutional duty as to its
membership, the House in respectful terms called on the President for
any information that would justify the language of the message or
assist it in its constitutional duty to purge itself of corruption.
The President in his message of January 4, denies that the paragraph
of the annual message casts reflections on the integrity of the House;
attributes to the House ``an entire failure to understand my message;''
declares that he has made no charge of corruption against any Member of
this House, and by implication states that he has no proof of
corruption on the part of any Member of this House.
Whether the House in its resolution of December 17, 1908 correctly
interpreted the meaning of the words used by the President in his
annual message, or whether it misunderstood that language, as the
President implies, will be judged now and in the future according to
the accepted interpretations of the English language. This House,
charged only with its responsibility to the people of the United States
and its obligation to transmit unimpaired to the future the
representative institutions inherited from the past, and to preserve
its own dignity, must insist on its own capacity to understand the
import of the President's language. We consider the language of the
President in his message of December 8, 1908, unjustified and without
basis fact and that it constitutes a breach of the privileges of the
House: Therefore be it
Resolved, That the House, in the exercise of its constitutional
prerogatives, declines to consider any communication from any source
which is not in its judgment respectful; and be it further
Resolved, That the special committee and the Committee of the Whole
House on the state of the Union be discharged from any consideration of
so much of the President's annual message as relates to the Secret
Service, and is above set forth, and that the said portion of the
message be laid on the table; and be it further
Resolved, That the message of the President sent to the House on
January 4, 1909, being unresponsive to the inquiry of the House and
constituting an invasion of the privileges of this House by questioning
the motives and intelligence of Members in the exercise of their
constitutional rights and functions, be laid on the table.
After extended debate, the resolution was agreed to--yeas 212, noes
36.
331. In cases where its investigations have suggested the culpability
of executive officers, the Senate has by resolution submitted advice or
suggestions to the Executive.
Sec. 331
The Senate having adopted a resolution advising the Executive as to
matters within the sphere of his duties, the latter in a statement to
the press announced that no official recognition would be accorded it.
On February 11, 1924,\1\ the Senate, after debate, by a vote of yeas
47, nays 34, agreed to the following:
Whereas the United States Senate did on January 31, 1924, by a
unanimous vote adopt Senate Joint Resolution No. 54 to procure the
annulment of certain leases in the naval oil reserves of the United
States; and
Whereas the said resolution, among other things, declared as follows:
``Whereas it appears from evidence taken by the Committee on Public
Lands and Surveys of the United States Senate that certain lease of
naval reserve No. 3, in the State of Wyoming, bearing date April 7,
1922, made in form by the Government of the United States, through
Albert B. Fall, Secretary of the Interior, and Edwin Denby, Secretary
of the Navy, as lessor, to the Mammoth Oil Co., as lessee, and that
certain contract between the Government of the United States and the
Pan American Petroleum & Transport Co., dated April 25, 1922, signed by
Edward C. Finney, Acting Secretary of the Interior, and Edwin Denby,
Secretary of the Navy, relating, among other things, to the
construction of oil tanks at Pearl Harbor, Territory of Hawaii, and
that certain lease of naval reserve No. 1, in the State of California,
bearing date December 11, 1922, made in form by the Government of the
United States through Albert B. Fall, Secretary of the Interior, and
Edwin Denby, Secretary of the Navy, as lessor, to the Pan American
Petroleum Co., as leesee, were executed under circumstances indicating
fraud and corruption; and
``Whereas the said leases and contract were entered into without
authority on the part of the officers purporting to act in the
execution of the same for the United States and in violation of the
laws of Congress; and
``Whereas such leases and contract were made in defiance of the
settled policy of the Government, adhered to through three successive
administrations, to maintain in the ground a great reserve supply of
oil adequate to the needs of the Navy in any emergency threatening the
national security.''
Therefore be it
Resolved, That it is the sense of the United States Senate that the
President of the United States immediately request the resignation of
Edwin Denby, as Secretary of the Navy.
On motion of Mr. Joseph T. Robinson, of Arkansas, by a vote of yeas
51, nays 34, the Secretary of the Senate was directed to transmit a
copy of the resolution to the President of the United States.
On February 13, 1925,\2\ on motion of Mr. Henry Cabot Lodge, of
Massachusetts, by unanimous consent, a statement issued by the
President to the press was printed in the Record as follows:
No official recognition can be given to the passage of the Senate
resolution relative to their opinion concerning members of the Cabinet
or other officers under Executive control.
As soon as special counsel can advise me as to the legality of these
leases and assemble for me the pertinent facts in the various
transactions I shall take such action as seems essential for the full
protection of the public interests. I shall not hesitate to call for
the resignation of any official whose conduct in this matter in any way
warrants such action upon my part. The dismissal of an officer of the
Government, such as is involved in this case, other than by
impeachment, is exclusively an Executive function. I regard this as a
vital principle of our Government.
In discussing this principle Mr. Madison has well said: ``It is laid
down in most of the constitutions or bills of rights in the Republics
of America; it is to be found in the political writings of the most
celebrated civilians, and is everywhere held as essential to the
preservation of liberty that the three great departments of government
be kept separate and distinct.''
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\1\ First session Sixty-eighth Congress, Record, p. 2245.
\2\ Record, p. 2335.
Sec. 331
President Cleveland likewise stated the correct principle in
discussing requests and demands made by the Senate upon him and upon
different departments of the Government, in which he said: ``They
assume the right of the Senate to sit in judgment upon the exercise of
my exclusive discretion and Executive function, for which I am solely
responsible to the people from whom I have so lately received the
sacred trust of office. My oath to support and defend the Constitution,
my duty to the people who have chosen me to execute the powers of their
great office and not to relinquish them, and my duty to the Chief
Magistracy, which I must preserve unimpaired in all its dignity and
vigor, compel me to refuse compliance with these demands.''
The President is responsible to the people for his conduct relative
to the retention or dismissal of public officials. I assume that
responsibility, and the people may be assured that as soon as I can be
advised so that I may act with entire justice to all parties concerned
and fully protect the public interests I shall act.
I do not propose to sacrifice any innocent man for my own welfare,
nor do I propose to retain in office any unfit man for my own welfare.
I shall try to maintain the functions of the Government unimpaired, to
act upon the evidence and the law as I find it, and to deal thoroughly
and summarily with every kind of wrongdoing.
In the meantime such steps have been and are being taken as fully to
protect the public interests.