Presidential Misconduct: Some Historical Perspective

This week, Democrats on the House Judiciary Committee trotted out a trio of dispassionate legal experts to explain why the impeachment of Donald Trump was justified. They were there to bring a veneer of gravitas and erudition to what’s been, until now, a highly partisan affair.

But however smart people such as Michael Gerhardt, distinguished professor of constitutional law at University of North Carolina, might be, they aren’t immune from peddling partisan absurdities. Once Gerhardt argued that Trump’s conduct was “worse than the misconduct of any prior president,” we no longer had any intellectual obligation to take him seriously on the topic.

Because while I’m certainly not a distinguished professor, I am very confident that history began before 2016. Which means that, even if I concede Gerhardt’s framing of Trump’s actions — bribery, extortion, etc. — I can rattle off at least a dozen instances of presidential misconduct that are both morally and constitutionally “worse” than Trump’s blundering attempt to launch a self-serving Ukrainian investigation into his rival’s shady son.

Let’s ignore for a moment that American presidents have owned their fellow human beings, and focus instead on the fact that in 1942, the president of the United States signed an executive order that allowed him to unilaterally intern around 120,000 Americans citizens of Japanese descent. Not only was the policy deliberately racist, it amounted to a full-bore attack on about half the Constitution that he had sworn to uphold. Such an attack was a specialty of FDR’s, despite the all the hagiographies written about his imperial presidency.

Woodrow Wilson — who regularly said things like, “a Negro’s place is in the corn field” — didn’t merely re-segregate the civil service, personally firing more than a dozen supervisors for the sin of being black; he first pushed for, and then oversaw the enactment of, the Sedition Act. Wilson threw dissenters and political adversaries into prison, instructed the postmaster to refuse delivery of literature he deemed unpatriotic, and a created an unconstitutional civilian police force that targeted Americans for political dissent.

So, all of what Wilson did was “worse.”

Sorry to say, but despite their great achievements, both John Adams and Abraham Lincoln suspended habeas corpus, the latter without any congressional approval. Surely, deep down, even those who act as if Russian social-media ads can topple the republic believe that denying citizens their fundamental rights of due process is a more serious offense than President Trump’s rhetoric and actions?

We can go on and on. Andrew Jackson ignored courts and laws and used his power to ethnically cleanse lands that he also sometimes happened to have a financial interest in. Teddy Roosevelt threatened American citizens with military intervention and abused his power in one way or another every day of his presidency. A reckless John Kennedy probably shared a mistress with a leading Chicago mobster Sam Giancana, whom he met in the White House, setting himself up for blackmail or worse.

Nixon may have lost his job after obstructing an investigation into freelance GOP spying on his political opponents, but Lyndon Johnson skipped any pretense, and just asked the FBI and CIA to spy for him. CIA officials, illegally operating inside the United States, spied on the Goldwater campaign in 1964 and brought Johnson information he used to undermine his opponents at every turn. That’s “worse.”

Johnson also lied about the Gulf of Tonkin, escalating the Vietnam War, and then kept lying about the war until he left office. I won’t even bother to catalogue the instance of other presidents misleading the public — either though lies of commission or lies of omission — in their efforts to precipitate or extend military conflicts, costing thousands of American lives. All of this misconduct is in every conceivable way “worse” than Trump’s actions.

Bill Clinton couldn’t go a month without some shady and humiliating scandal.

Now, maybe, Gerhardt doesn’t view incidents that weren’t investigated, prosecuted, or contemporaneously illegal as “misconduct.” That would be unfortunate. But even if so, referring to Trump’s actions as “worse than the misconduct of any prior president” would be terminally ahistorical.

Another Democratic expert, Stanford law professor Pamela Karlan, actually drew applause for a canned line about the Constitution’s prohibition on titles of nobility: “While the President can name his son Barron,” she said, “he can’t make him a baron.”

Karlan’s line might have induced only some eye-rolling from me, if I hadn’t known that she was also a Barack Obama donor.

Barack Obama. The same president who ignored Congress and created laws by fiat.

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