Among the recess appointments was one to the office of District Attorney for the Southern District of Alabama, in place of an officer who had been suspended in July 1885, but whose term of office expired by limitation on December 20, 1885.

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." The response of the Attorney-General was referred to the Judiciary Committee which, on the 18th of February, made an elaborate report exhibiting the issue as one which involved the right of Congress to obtain information.

It urged that "the important question, then, is whether it is within the constitutional competence of either House of Congress to have access to the official papers and documents in the various public offices of the United States, created by laws enacted by themselves." The report, which was signed only by the Republican members of the Committee, was an adroit partisan performance, invoking traditional constitutional principles in behalf of congressional privilege.