The right of Congress to investigate a president — and the concept of executive privilege — took shape more than 200 years ago with the first congressional probe of the executive branch. The year was 1792, and the president was George Washington.
In Washington’s day, the Northwest Territory crisis grew out of efforts by Congress and the White House to expand America’s frontiers into Indian territories. As a result, U.S. military forces frequently clashed with Native American tribes.
In 1791, Washington named Maj. Gen. Arthur St. Clair, the 54-year-old governor of the Northwest Territory, to lead an expedition against resistant tribes in the region. Washington personally warned St. Clair: “Beware of a surprise attack. You know how the Indians are.”
St. Clair faced many challenges. His troops were a combination of regular Army soldiers and ill-trained militiamen. The pay was low and so was morale. Funding from the War Department was uncertain. So was the adequacy of supplies provided by federal contractors. But as the winter of 1791 approached, St. Clair said he received a letter from War Secretary Henry Knox urging him “in the name of the president in the most positive terms, to press forward the operations.”
So in late October, St. Clair set out from the Ohio Valley with 1,400 men. By early November, they neared the villages of the Miami tribe on the Wabash River in what is now Indiana. Just before dawn on Nov. 4, while St. Clair’s men were preparing for breakfast, Miami Indian Chief Little Turtle launched exactly the kind of surprise attack of which Washington had warned St. Clair. The Indians wiped out St. Clair’s forces, killing more than 600 men and wounding more than 250. It was the worst defeat of the U.S. military by Native Americans in history.
President Washington received word of the disaster as he was hosting a dinner in the nation’s capital, Philadelphia. He waited until his guests had left and then exploded to his private secretary, Tobias Lear, with a diatribe against St. Clair: “To suffer that army to be cut to pieces … by a surprise — the very thing I guarded him against. Oh, God. Oh, God, he’s worse than a murderer.”
Washington soon relieved St. Clair of his military command and replaced him with Gen. “Mad” Anthony Wayne.
In March of 1792, the House moved to investigate the Washington administration’s role in the military disaster. But members weren’t sure how to proceed with the probe. Rep. William Giles of Virginia proposed that the House instruct President Washington to conduct the investigation. The House voted down the proposal after some members objected that Congress didn’t have such authority.
The House then approved a special investigating committee. The measure authorized the committee to “call for such persons, papers and records as may be necessary to assist their inquiries.”
As America’s first president, Washington was always aware that his actions would set precedents for his successors. So he asked his Cabinet for advice. Washington’s Cabinet was the first team of rivals, especially Secretary of State Thomas Jefferson and Treasury Secretary Alexander Hamilton.
The Cabinet, however, quickly agreed that Congress had the right to conduct the investigation. According to Jefferson, Hamilton had reservations about giving Congress access to executive branch documents because lawmakers “might demand secrets of a very mischievous nature.” But the Cabinet, including Hamilton, nevertheless agreed that the president should give the committee all papers that “the public good would permit,” but “ought to refuse those the disclosure of which would harm the public.”
The latter was the start of the concept of executive privilege that administrations have invoked in inquiries from Teapot Dome and Watergate to current probes. The Washington Post has reported that President Trump may invoke executive privilege on his confidential discussions in investigations by both the House and special counsel Robert S. Mueller III.
President Washington gave the House committee copies of all the papers it wanted. The committee began public hearings with witnesses, including St. Clair and Secretary of War Knox, who blamed each other for the military debacle.
In May 1792, the panel sent its findings to the House. The report faulted Knox as underfunding the expedition. But the committee mainly blamed the U.S. Army’s quartermaster general, Samuel Hodgdon, and his contractors for “mismanagement and neglect” in providing supplies. For instance, the gunpowder “was not of good quality.” The report basically exonerated St. Clair.
During the proceedings, another precedent occurred. Part of the investigative report critical of Knox was leaked to the press. Knox quickly wrote and sent to the House a 100-page defense of his actions in the case. After the complaints from Knox and others, the House in November sent the report back to the investigating committee for revisions.
In 1793, in a new session of Congress, the House — perhaps influenced by Secretary Knox’s friends — did not vote on the final committee report. So the first congressional probe of the executive branch ended without any specific action taken. Although the report exonerated St. Clair, his reputation was tarnished. He tried to get the House to reopen the inquiry so that he could clear his name.
St. Clair never succeeded and died in poverty in 1818 at the age of 81. Meantime, the House investigation into what became known as “St. Clair’s Defeat” firmly established that Congress has the power to investigate presidents and their administrations.
Ronald G. Shafer is a freelance writer in Williamsburg, Va., and the author of “The Carnival Campaign. How The Rollicking 1840 Campaign of ‘Tippecanoe and Tyler’ Too Changed Presidential Elections Forever."
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