SUPREME COURT: Attorneys General

Nine justices in black robes held high court in the Capitol. A few feet to the north in another, larger chamber of the same building, were assembled the Senatorial group of the lawmakers of the Nation. The question before the court was: “Where do the powers of our legislative neighbors end?”

Specifically, the case was that of the United States versus Mally S. Daugherty. The history of the case had only a few salient points. The Senate had appointed a committee to investigate the conduct in office of Harry Daugherty, Attorney General. Believing that evidence which had a bearing on the case might be obtained, the committee issued a subpoena for Mally S. Daugherty, brother of the Attorney General, to come before it bringing certain books and papers. He refused. Meanwhile, the Attorney General resigned. Shortly afterwards, the Senate ordered Mai Daugherty arrested for failing to answer its subpoena. The Southern District Court of Ohio held that he was unlawfully arrested and discharged him. The Government took an appeal to the Supreme Court.

The question before the high court was: Has one of the Houses of Congress power to compel the attendance of witnesses; and if so, has it the power to compel witnesses in such an investigation as this? A. I. Vorys and John B. Phillips represented Mr. Daugherty. They argued that the Senate is a legislative body; its power to force witness is restricted to impeachment cases, election contests and cases in which attempts are made to expel members; if there was power to compel witness to testify with a view to gaining information on which to base legislation, it rested in both Houses, not in either one alone; but the investigation of the Attorney General was not conducted with the avowed purpose of finding a basis for future legislation. The power of making such an investigation did not lie in Congress; Congress was in fact usurping the functions of the judicial and executive branches of the Government.

For the Government appeared the erstwhile Attorney General, George W. Wickersham, acting as a special Assistant to Attorney General Stone. He argued that Congressional investigations could legitimately make investigations as a basis for legislation, and that it was to be presumed, without avowed statement of purpose, that the Senate had made its inquiry for legislative ends; the: investigation was entirely proper and the power to compel testimony resided in the investigating committee.

The justices in black robes asked many questions and then retired to meditate before delivering an opinion that will have an important bearing on future Congressional inquiries.