How Congress got its power to investigate and subpoena

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Back in his day, Robert Morris was a pretty big deal. He was just one of two men to sign all three our nation’s founding documents: the Declaration of Independence, the Articles of Confederation and the U.S. Constitution.

Morris came to prominence in Colonial America by making a pile of money in the shipping industry. When things went south with the British, he employed his ships and business connections to trade flour and other goods to France for guns.

But in becoming the “Financier of the Revolution,” Morris was also a target of critics who wondered whether he was using his government posts in finance to benefit a fellow named Robert Morris.

In 1790, fed up with constant attacks in the press, Morris did something truly extraordinary: He wrote a letter to President George Washington and both houses of Congress asking – almost begging – to be investigated.

“Wherefore, and encouraged by a consciousness of the Integrity of his Administration, your Memorialist is desirous that a Strict Examination should be had into his Conduct,” Morris wrote, “in order that if he has been guilty of Maladministration it may be detected and Punished, if otherwise, that his Innocence may be manifested, and acknowledged.”

Morris’s mouthful of a demand was taken up in the House of Representatives, where members referred it to a select committee, ultimately helping lay the foundation for the wide-ranging subpoena power Congress uses to investigate/torment the executive branch, including the president.

That’s right: Some of the fiery congressional hearings that have captivated Americans for centuries – from the John Brown raid on Harpers Ferry, to Watergate, to the Iran-Contra affair, to President Donald Trump’s business deals and Russian connections – began with a Founding Father raising his hand to say, “Investigate me!”

These days, the fireworks of congressional subpoenas are almost taken for granted. If Democrats control the House and a Republican occupies the White House, game on. Same goes the other way. During Bill Clinton’s presidency, Dan Burton, the Republican chair of the powerful House Oversight Committee, issued more than 1,000 subpoenas.

Last week, the House Judiciary Committee – now controlled by Democrats – sent letters requesting information to more than 80 Trump associates, including the president’s sons, Donald Trump Jr. and Eric Trump, and his son-in-law, Jared Kushner. If they resist, subpoenas could follow.

Back when Morris made his request, the idea of Congress conducting investigations was new, but not entirely novel. Like many aspects of governance, the founders and constitutional framers looked to the Brits for inspiration.

James Wilson, a key framer, published an essay in 1774 extolling the virtues of the British House of Commons, members of which he called “grand inquisitors of the realm.”

“The proudest ministers of the proudest monarchs have trembled at their censures,” Wilson wrote, “and have appeared at the bar of the house, to give an account of their conduct, and ask pardon for their faults.”

Therefore, it was the job of the House of Representatives, Wilson wrote, to “form the grand inquest of the state” and “diligently inquire into grievances arising from both men and things.”

One problem, though.

“The Constitution,” according to a Congressional Research Service paper, “provided no express powers for Congress to investigate, issue subpoenas, or to punish for contempt.”

Whoops.

The power emerged from a series of precedents derived from congressional actions and Supreme Court decisions – implied powers that began, historians say, with Morris and his request that Congress investigate his tenure as superintendent of Finance under the Articles of Confederation.

A select committee that included James Madison issued a report recommending that a panel of five House members examine Morris and his finances.

While some members objected to the cost of an investigation, Madison argued that the effort was necessary because the House “should possess itself of the fullest information in order to doing justice to the country and public officers,” according to a transcript in the Annals of Congress.

In the end, the “committee did not find evidence of maladministration,” the National Archives wrote in a footnote to a digital version of Morris’s letter. (However, nobody has provided an explanation for how such a wonderful word – maladministration – vanished from the political lexicon.)

After being cleared, Morris returned to life as a businessman. But after running into money problems following some bad land deals, the Financier of the Revolution spent three of his last eight years of life residing in debtors prison.