Therefore, at the
time the Senate took up the case, the Tenure of Office Act did
not apply to it, and the only question actually open was whether
the acting officer should be confirmed or rejected. Nevertheless,
the disposition to assert control over executive action was so
strong that the Senate drifted into a constitutional struggle
over a case that did not then involve the question of the
President's discretionary power of removal from office, which was
really the point at issue.
On December 26, 1885, the Judiciary Committee notified the
Attorney-General to transmit "all papers and information in the
possession of the Department" regarding both the nomination and
"the suspension and proposed removal from office" of the former
incumbent. On January 11, 1886, the Attorney-General sent to the
Committee the papers bearing upon the nomination, but withheld
those touching the removal on the ground that he had "received
no direction from the President in relation to their
transmission." The matter was debated by the Senate in executive
session and on January 25, 1886, a resolution was adopted which
was authoritative in its tone and which directed the
Attorney-General to transmit copies of all documents and papers
in relation to the conduct of the office of District Attorney for
the Southern District of Alabama since January 1, 1885. Within
three days, Attorney-General Garland responded that he had
already transmitted all papers relating to the nomination; but
with regard to the demand for papers exclusively relating to the
suspension of the former incumbent he was directed by the
President to say "that it is not considered that the public
interests will be promoted by a compliance.
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