Why did Polk contend that it would be inappropriate for him to hand over the requested materials to Congress? Polk argued that it would be inappropriate for a president to question the motives and rationale of a predecessor who wished to conceal certain facts. Does this strike you as an appropriate method of governing for a republic? Did Polk make any exception to his claim that this type of material can never be handed over to Congress? What argument did Polk make in favor of secrecy in foreign negotiations? When Polk noted that all nations engaged in these types of practices, was he acknowledging that the United States was no different than any other world power?
Who has the stronger argument in terms of invoking executive privilege: George Washington or James K. Polk? Congress attempted to investigate what happened in Maine, but the investigation was blocked at nearly every turn. What does this case teach us about the effectiveness of checks and balances in the realm of foreign policy, especially regarding clandestine operations? (See First Annual Message to Congress, Message to the House of Representatives.)
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Introduction
The domestic covert operation launched by John Tyler and Daniel Webster prompted a “retroactive” impeachment investigation in 1846 directed against Secretary of State Webster after the House Foreign Affairs Committee was informed that something unusual had taken place in Maine a few years earlier that involved expenditures from the Secret Service Fund. The committee chairman alleged that Webster was guilty of several impeachable offenses, including using the Secret Service Fund to “corrupt party presses.”
President James K. Polk was no fan of Daniel Webster, or of former president John Tyler, for that matter. In the message to the House reprinted below, he expressed willingness to cooperate with an impeachment investigation but was able to shut down the investigation by reminding Congress of the confidential nature of the contingency fund created by Congress during George Washington’s presidency. Polk’s argument focused in part on the importance of protecting the sources and methods used by the United States in its clandestine operations. Polk’s success in blunting the House investigation set a precedent for near-complete presidential control over the secret instruments of American foreign policy. Polk’s observation in this message to the House that “the experience of every nation on earth has demonstrated that emergencies may arise in which it becomes absolutely necessary for the public safety or the public good to make expenditures the very object of which would be defeated by publicity. . . in no nation is the application of such sums ever made public,” could have been uttered by almost every American president from Woodrow Wilson to Joseph Biden.
Daniel Webster, a senator from Massachusetts since 1845, denied the allegations, and his stature as one of the giants of Congress and as a golden-tongued defender of all things American helped fend off the effort. The documents the House requested finally became public in 1970, when a scholar from Harvard University unearthed the dusty papers that revealed that Webster was in fact guilty of some of the allegations leveled against him.
—Stephen F. Knott
President James K. Polk, Special Message to the House of Representatives, April
20, 1846, Congressional Globe, 29th Congress, 1st session, 698, available at https://memory.
loc.gov/cgi-bin/ampage.
I have considered the resolution of the House of Representatives of the 9th instant,1 by which I am requested “to cause to be furnished to that House an account of all payments made on president’s certificates from the fund appropriated by law, through the agency of the State Department, for the contingent expenses of foreign intercourse from the 4th of March, 1841, until the retirement of Daniel Webster from the Department of State, with copies of all entries, receipts, letters, vouchers, memorandums, or other evidence of such payments, to whom paid, for what, and particularly all concerning the northeastern-boundary dispute with Great Britain.”
With an anxious desire to furnish to the House any information requested by that body which may be in the executive departments, I have felt bound by a sense of public duty to inquire how far I could with propriety, or consistently with the existing laws, respond to their call.
The usual annual appropriation “for the contingent expenses of intercourse between the United States and foreign nations” has been disbursed since the date of the act of May 1, 1810, in pursuance of its provisions. By the third section of that act it is provided—
That when any sum or sums of money shall be drawn from the Treasury under any law making appropriation for the contingent expenses of intercourse between the United States and foreign nations the president shall be, and he is hereby, authorized to cause the same to be duly settled annually with the accounting officers of the Treasury in the manner following; that is to say, by causing the same to be accounted for specially in all instances wherein the expenditure thereof may in his judgment be made public, and by making a certificate of the amount of such expenditures as he may think it advisable not to specify; and every such certificate shall be deemed a sufficient voucher for the sum or sums therein expressed to have been expended.
Two distinct classes of expenditure are authorized by this law—the one of a public and the other of a private and confidential character. The president in office at the time of the expenditure is made by the law the sole judge whether it shall be public or private. Such sums are to be “accounted for specially in all instances wherein the expenditure thereof may in his judgment be made public.” All expenditures “accounted for specially” are settled at the Treasury upon vouchers, and not on “president’s certificates,” and, like all other public accounts, are subject to be called for by Congress, and are open to public examination. Had information as respects this class of expenditures been called for by the resolution of the House, it would have been promptly communicated.
Congress, foreseeing that it might become necessary and proper to apply portions of this fund for objects the original accounts and vouchers for which could not be “made public” without injury to the public interests, authorized the president, instead of such accounts and vouchers, to make a certificate of the amount “of such expenditures as he may think it advisable not to specify,” and have provided that “every such certificate shall be deemed a sufficient voucher for the sum or sums therein expressed to have been expended.”
The law making these provisions is in full force. It is binding upon all the departments of the government, and especially upon the executive, whose duty it is “to take care that the laws be faithfully executed.” In the exercise of the discretion lodged by it in the executive several of my predecessors have made “certificates” of the amount “of such expenditures as they have thought it advisable not to specify,” and upon these certificates as the only vouchers settlements have been made at the Treasury.
It appears that within the period specified in the resolution of the House certificates were given by my immediate predecessor, upon which settlements have been made at the Treasury, amounting to $5,460. He has solemnly determined that the objects and items of these expenditures should not be made public, and has given his certificates to that effect, which are placed upon the records of the country. Under the direct authority of an existing law, he has exercised the power of placing these expenditures under the seal of confidence, and the whole matter was terminated before I came into office. An important question arises, whether a subsequent president, either voluntarily or at the request of one branch of Congress, can without a violation of the spirit of the law revise the acts of his predecessor and expose to public view that which he had determined should not be “made public.” If not a matter of strict duty, it would certainly be a safe general rule that this should not be done. Indeed, it may well happen, and probably would happen, that the president for the time being would not be in possession of the information upon which his predecessor acted, and could not, therefore, have the means of judging whether he had exercised his discretion wisely or not. The law requires no other voucher but the president’s certificate, and there is nothing in its provisions which requires any “entries, receipts, letters, vouchers, memorandums, or other evidence of such payments” to be preserved in the executive department. The president who makes the “certificate” may, if he chooses, keep all the information and evidence upon which he acts in his own possession. If, for the information of his successors, he shall leave the evidence on which he acts and the items of the expenditures which make up the sum for which he has given his “certificate” on the confidential files of one of the executive departments, they do not in any proper sense become thereby public records. They are never seen or examined by the accounting officers of the Treasury when they settle an account on the “president’s certificate.” The First Congress of the United States on the 1st of July, 1790, passed an act “providing the means of intercourse between the United States and foreign nations,” by which a similar provision to that which now exists was made for the settlement of such expenditures as in the judgment of the president ought not to be made public. This act was limited in its duration. It was continued for a limited term in 1793, and between that time and the date of the act of May 1, 1810, which is now in force, the same provision was revived and continued. Expenditures were made and settled under presidential certificates in pursuance of these laws.
If the president may answer the present call, he must answer similar calls for every such expenditure of a confidential character, made under every administration, in war and in peace, from the organization of the government to the present period. To break the seal of confidence imposed by the law, and heretofore uniformly preserved, would be subversive of the very purpose for which the law was enacted, and might be productive of the most disastrous consequences. The expenditures of this confidential character, it is believed, were never before sought to be made public, and I should greatly apprehend the consequences of establishing a precedent which would render such disclosures hereafter inevitable.
I am fully aware of the strong and correct public feeling which exists throughout the country against secrecy of any kind in the administration of the government, and especially in reference to public expenditures; yet our foreign negotiations are wisely and properly confined to the knowledge of the executive during their pendency.2 Our laws require the accounts of every particular expenditure to be rendered and publicly settled at the Treasury Department. The single exception which exists is not that the amounts embraced under president’s certificates shall be withheld from the public, but merely that the items of which these are composed shall not be divulged. To this extent, and no further, is secrecy observed.
The laudable vigilance of the people in regard to all the expenditures of the government, as well as a sense of duty on the part of the president and a desire to retain the good opinion of his fellow citizens, will prevent any sum expended from being accounted for by the president’s certificate unless in cases of urgent necessity. Such certificates have therefore been resorted to but seldom throughout our past history.
For my own part, I have not caused any account whatever to be settled on a presidential certificate. I have had no occasion rendering it necessary in my judgment to make such a certificate, and it would be an extreme case which would ever induce me to exercise this authority; yet if such a case should arise it would be my duty to assume the responsibility devolved on me by the law.
During my administration all expenditures for contingent expenses of foreign intercourse in which the accounts have been closed have been settled upon regular vouchers, as all other public accounts are settled at the Treasury.
It may be alleged that the power of impeachment belongs to the House of Representatives, and that, with a view to the exercise of this power, that House has the right to investigate the conduct of all public officers under the government. This is cheerfully admitted. In such a case the safety of the republic would be the supreme law, and the power of the House in the pursuit of this object would penetrate into the most secret recesses of the executive departments. It could command the attendance of any and every agent of the government, and compel them to produce all papers, public or private, official or unofficial, and to testify on oath to all facts within their knowledge. But even in a case of that kind they would adopt all wise precautions to prevent the exposure of all such matters the publication of which might injuriously affect the public interest, except so far as this might be necessary to accomplish the great ends of public justice. If the House of Representatives, as the grand inquest of the nation, should at any time have reason to believe that there has been malversation in office by an improper use or application of the public money by a public officer, and should think proper to institute an inquiry into the matter, all the archives and papers of the executive departments, public or private, would be subject to the inspection and control of a committee of their body, and every facility in the power of the executive be afforded to enable them to prosecute the investigation.
The experience of every nation on earth has demonstrated that emergencies may arise in which it becomes absolutely necessary for the public safety or the public good to make expenditures the very object of which would be defeated by publicity. Some governments have very large amounts at their disposal and have made vastly greater expenditures than the small amounts which have from time to time been accounted for on president’s certificates. In no nation is the application of such sums ever made public. In time of war or impending danger the situation of the country may make it necessary to employ individuals for the purpose of obtaining information or rendering other important services who could never be prevailed upon to act if they entertained the least apprehension that their names or their agency would in any contingency be divulged. So it may often become necessary to incur an expenditure for an object highly useful to the country; for example, the conclusion of a treaty with a barbarian power whose customs require on such occasions the use of presents. But this object might be altogether defeated by the intrigues of other powers if our purposes were to be made known by the exhibition of the original papers and vouchers to the accounting officers of the Treasury. It would be easy to specify other cases which may occur in the history of a great nation, in its intercourse with other nations, wherein it might become absolutely necessary to incur expenditures for objects which could never be accomplished if it were suspected in advance that the items of expenditure and the agencies employed would be made public.
Actuated undoubtedly by considerations of this kind, Congress provided such a fund, coeval with the organization of the government, and subsequently enacted the law of 1810 as the permanent law of the land. While this law exists in full force I feel bound by a high sense of public policy and duty to observe its provisions and the uniform practice of my predecessors under it. With great respect for the House of Representatives and an anxious desire to conform to their wishes, I am constrained to come to this conclusion.
If Congress disapprove the policy of the law, they may repeal its provisions. . . .
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