• Marc Johnson

Congress Investigates


Darrell Issa is the latest of a long, long line of Congressional investigators, politicians who have frequently overplayed their powerful hands. Occasionally and thankfully throughout our history a few investigators have brought real credit to the important role of the Congressional investigation, a Washington institution with a long and checkered past.

The chairman of the Republican National Committee gleefully suggested the other day that Issa will have a busy summer.  “I’ve got a good feeling that Darrell Issa is going to be having quite a summer in reviewing what’s been going on here in the White House as far as this scandal is concerned,” said Reince Priebus and he was only referring to the Congressional review of the IRS scandal. Since Priebus spoke Issa has issued additional subpoenas for more White House records on Benghazi. All signs indicate he has hardly begun.

A Brief History of the Congressional Investigation

What is widely acknowledged to have been the first Congressional investigation took place during the presidency of George Washington in 1792 and centered on an inquiry into a disastrous military expedition led by Major General Arthur St. Clair against native tribes in the then-Northwest Territories. St. Clair lost more than half of his 1,400 man command – a defeat substantially greater than Custer’s at the Little Big Horn – and Congress, trying to understand what happened and why, eventually requested documents and records pertaining to the expedition from Secretary of War Henry Knox. After some days of consideration, Washington ordered Knox, as well as Secretary of the Treasury Alexander Hamilton, to turn over the documents to Congress.

Feeling its way into the virgin territory of a Congressional investigation of the Executive branch, Congress, much as it still does, moved in fits and starts over the next year. Witnesses were called, reports examined, politics reared its unruly head and eventually in 1793 nothing much happened. General St. Clair was more-or-less vindicated, but he felt his good name had still been damaged badly. It is true that St. Clair, a significant Revolutionary War figure, has largely been forgotten, one of the earliest examples perhaps of the power of Congress to ruin a reputation. In an essay on this very first Congressional investigation, George C. Chalou notes that General St. Clair “emerged neither victor nor victim.” It was not a particularly auspicious beginning.

Every president, including the greatest ones like Jackson and Lincoln, have had to navigate the politics and public relations of the Congressional investigation. The great historian Arthur Schlesinger, Jr. has written that Jackson complained in 1820, while subject of a Congressional investigation, that “he was deprived of the privilege of confronting his accusers, and of interrogating and cross-examining witnesses summoned for his conviction.”

Lincoln’s every executive decision and his strategy as Commander-in-Chief during the Civil War were poured over and second guessed by The Joint Select Committee on the Conduct of the Present War, an all-powerful Congressional committee dominated by Radical Republicans often a odds with Lincoln. Historian Elizabeth Joan Doyle has written about the notorious committee and its imperious chairman Sen. Benjamin Wade of Ohio. “So flagrant were the abuses of the civil rights of the objects of the committee’s wrath (selective vendettas were carried on against a number of military officers) that one can only conclude that in the mid-nineteenth century most of the Republican majority in Congress agreed with Wade and Congressman Thaddeus Stevens that, in wartime, there could be neither a Constitution nor a Bill of Rights.” Ironically most of the members of the Civil War-era Committee on the Conduct of the War were lawyers.

The Congressional investigation, often marked by raw partisanship and fueled by ambitious political players, had fallen into such disrepute in the early 20th Century that the great columnist Walter Lippmann wrote of “that legalized atrocity, the Congressional investigation, in which congressmen, starved of their legitimate food for thought, go on a wild and feverish manhunt, and do not stop at cannibalism.”

Montana Sen. Thomas J. Walsh substantially rehabilitated the image of the Congressional investigation in 1922 with his calm, through and ultimately brilliant investigation into the Teapot Dome scandal. Teapot Dome, along with Watergate in the Nixon-era, is now generally considered to have established the gold standard for one branch of government investigating another. Walsh’s findings sent a Cabinet member, Interior Secretary Albert Fall, to jail and his handling of the investigation was so widely praised, after the fact, that the New York Sun said that the Montana senator was nothing less than a “Statue of Civic Virtue.”

In 1924, Walsh’s Montana colleague Burton K. Wheeler led a headline grabbing investigation that forced Warren Harding’s attorney general, Harry Daugherty, to resign and exposed widespread corruption in the Justice Department. (Daugherty has recently gotten a new lease on life, if you can call it that, as a shady character is the popular television series Boardwalk Empire.) Hard to believe now but both Senate investigations were widely condemned at the time, even by the New York Times, as nothing more than Congressional “poking into political garbage cans.”

One reason the Walsh and Wheeler probes were so powerful, and ultimately so effective, was the completely bi-partisan nature of the investigations. Republicans had the majority in the Senate in the 1920’s, but Democrats Walsh and Wheeler, both lawyers trained at assembling evidence and questioning witnesses, were given authority by GOP chairmen to run the high profile investigations. Imagine such a thing today. I can’t, it’s impossible. Wheeler’s investigation also ultimately played a key role in an important Supreme Court decision of lasting significance – McGrain v. Daugherty – that validated the power of the Congress to compel testimony as a critical component of its Constitutional responsibility to legislate.

Few today would defend the fairness or bi-partisanship of investigations in the 1940’s and 1950’s by the House Un-American Activities Committee or Joseph McCarthy’s reputation ruining, made-for-TV events that eventually claimed the Wisconsin senator as a victim of his own excess. By the same token Harry Truman’s exemplary investigation of the defense industry in the 1940’s shines as a beacon for the way Congress should, but doesn’t always, exercise its awesome responsibility to check and balance the executive.

Here’s what Truman said in 1944. “The power to investigate is one of the most important powers of Congress. The manner in which that power is exercised will largely determine the position and the prestige of the Congress in the future.” Truman was correct. The power to investigate is essential to our system and it can be used for many purposes, to illuminate and legislate or to damage and destroy.

Here’s hoping Darrell Issa has read his history. He might consider just what kind of investigator he wants to be – a Ben Wade or a Harry Truman, conducting a”wild and feverish manhunt” or a sober investigator remembered as a “statue of civic virtue?”

The power and prestige of the Congress are on the line as Mr. Issa heads into his busy summer.

 

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©2019 by Marc C Johnson