The History Behind the Insurrection Act of 1807

Burr Insurrection

Donald Trump said yesterday that he would use this act to take military action in U.S. cities for the purpose of quelling violence.  Here is the text of the act:

An Act authorizing the employment of the land and naval forces of the United States, in cases of insurrections

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the pre-requisites of the law in that respect.

APPROVED, March 3, 1807.

The act has been used several times in U.S. history, most recently by George H.W. Bush during the Rodney King riots in Los Angeles.

The act was born out of president Thomas Jefferson’s concern that Aaron Burr was plotting an insurrection against the United States government. After his term as Vice-President had come to an end in early 1805, Burr headed to Ohio and started recruited frontier settlers with the goal of capturing New Orleans and the Spanish territory west of the Mississippi River for the purpose of creating a separate western country.

But the notorious General James Wilkinson, the governor of Louisiana Territory and a co-conspirator with Burr, eventually turned on the former Vice-President. In October 21, 1806 and October 26, 1806 letters, Wilkinson informed the president about the conspiracy. Somewhere around this time, Jefferson must have talked with or wrote to Secretary of State James Madison about the legality of using federal troops to stop Burr. On 30 October, 1806, Madison wrote to Jefferson to tell him that “it does not appear that regular Troops can be employed, under any legal provision agst. insurrections–but only agst. expeditions having foreign Countries for the object.”

On November 27, two days after he received Wilkinson’s October 21, 1806 letter, Jefferson issued a proclamation calling for Burr and the conspirators to turn themselves in. Since he did not believe he had the constitutional authority to use federal troops to stop Burr, he had to settle for a strongly-worded message.

Here is Jefferson’s  December 2, 1806 message to Congress:

Having recieved information that in another part of the US. a great number of private individuals, were combining together, arming & organising themselves contrary to law to carry on a military expedition against the territories of Spain I thought it necessary by proclamation, as well as by special orders, to take measures for preventing & suppressing this enterprize, for siezing the vessels, arms & other means provided for it, & for arresting & bringing to justice it’s authors & abettors. these measures are now in operation. it was due to the good faith which ought ever to be the rule of action in public as well as in private transactions, it was due to good order & regular govmt. that while the public force was acting strictly on the defensive, and merely to cover our citizens from aggression, the criminal attempts of private individuals to decide for their country the question of Peace or War, & by commencg active & unauthorised hostilities, should be promptly & effectually suppressed.

Jefferson’s opponents, the Federalists, mocked the proclamation and the message to Congress. Here is James Lewis, author of The Burr Conspiracy: Uncovering the Story of an Early American Crisis:

The proclamation and the annual message quickly came under attack. After reading the proclamation, even some Republicans quietly suggested that “the People ought not to have been alarmed or more [energetic] measures taken.” Federalists openly denounced “proclamation-warfare” as an inadequate response to the western crisis. Rather than sending copies of the proclamation west with one express rider, the editor of New York’s People’s Friend argued, Jefferson “had better sent them by one thousand expresses,” with orders to deliver them from the mouths of their muskets.” Federalist concern that Jefferson would fail to take energetic action in time shaped a savage parody of a Republican defense of the annual message. Appearing in a number of Federalist newspapers in early January 1807, “A Speck of War: or, The Good Sense of the People of the Western Country” rooted Jefferson’s policies in his belief “THAT THE GREAT SECRET OF GOVERNMENT IS TO LET EVERYTHING TAKE ITS OWN COURSE.” The likely outcome the satirist suggested, was that Burr would seize New Orleans, fortify it, and make it the capital of a new western empire that would soon “be as strong as ourselves.”

Federalists reserved their greatest contempt for Jefferson’s suggestion that he could not arrest the organizers of a military enterprise against the United States….”It is a self evident truth,” a writer in the New-England Evening Post remarked, “that every nation is under a moral obligation to provide for its self preservation, and as a consequence, that it has a right to make use of all proper means necessary to that end.” Even without a specific law, Federalists insisted, the government had “the power & of course the means [for] preventing any insurrection or enterprize on the public peace or safety. In fact, Jefferson and most Republicans believed otherwise, rejecting the common-law view that the United States’s mere existence as a country sufficed to make some acts illegal. They argued, instead, that the Constitution granted only limited and specific powers to the federal government. It defined treason, for example, but did not make either conspiring to commit treason or preparing to commit treason a crime.

In the end, the Jefferson got his act of Congress, but it was really too late to use it in the Burr conspiracy.

On December 19, 1806, Jefferson enclosed a copy of a bill on insurrections in a letter to John Dawson. It read:

A Bill authorising the emploiment of the land or Naval forces of the US. in cases of insurrection.

Be it enacted &c.    that in all cases of insurrection & of obstruction to the laws of the US. or of any individual state or territory, where it is lawful for the Presidt. of the US. to call forth militia to suppress such insurrection, or to cause the laws to be duly executed, it shall also be lawful for him to employ for the same purposes, such part of the land or naval forces of the US as shall be judged necessary, under the same restrictions & conditions as are by law provided & required on the emploiment of militia in the same case.

On January 22, 1807, Jefferson again updated Congress on attempts to capture Burr.

The insurrection bill became law on March 3, 1807, eleven days after Burr was arrested in Alabama on February 19.

Read more about the Burr Conspiracy here.

Tonight in the Rose Garden and at St. John’s Church, Trump Announced His 2020 Re-Election Strategy

Trump St. Johns

It’s hard to know where to start writing about what we all just witnessed earlier this evening.

Donald Trump was scheduled to speak in the Rose Garden at 6:30pm. Shortly before his speech, Attorney General Bill Barr came out to inspect the crowd. Then federal police used tear gas, flash grenades and rubber bullets to drive-out peaceful protesters in Lafayette Square Park, located across Pennsylvania Avenue from the White House.

Trump’s speech was short. He said that he was an ally of all peaceful protesters. This is another Trump lie. I wrote about that here, but the act of driving these protesters out of the park today was a sign that he does not support peaceful protesters. More on this below.

His speech did not address the racial tensions in America that led to these protests. There was no empathy for the plight of African-Americans in the United States. Trump is incapable of this.

Trump rightly condemned the destruction of property and the outside rabble-rousers who, by all reports, are causing this damage. But rather than trying to bring the country together, he blamed state governors for the riots and destruction in major urban areas.  (He did the same thing on a call with governors this morning). At one point in the speech, Trump said that he wants “healing” not “hatred.” Please look in the mirror Mr. President. You are an agent of hate in this country. There is nothing you have done in your presidency thus far to bring any kind of national healing whatsoever.

When Trump said “America always wins,” he was not referring to a much-needed victory over the evil of racial injustice, but was rather referring to the use of military force and violence to stop the riots. This, for Trump, is the only way he understands a “win” for America. Trump plans to mobilize the U.S. Army in cities around the country through the use of the 1807 Insurrection Act (I will write more on this in another post) to “dominate the streets.” He also sent a dog-whistle to his base by referencing his protection of Second Amendment rights. Some will no doubt see this as the president telling them to take matters into their own hands.

When Trump talked about justice in this speech, he meant quelling the riots through force. He did mention justice for George Floyd, but these words have no meaning until his presidency reverses course on the issue of race. Trump must not only stop the race-baiting, but must support policies that will address systemic racism in America. I don’t see this happening because Trump does not understand the true meaning of justice.

I wrote about justice this morning, with the help of 20th-century German moral philosopher Joseph Pieper: “…the claim implicit in the principle of justice [is that we] must confirm the other person in his otherness and procure for him that which is due.” Justice starts with empathy and understanding, but Trump is a narcissist and he does not read.

Throughout the speech, Trump kept saying that he is a “law and order” president. This is another dog-whistle. Here is what I wrote about this phrase in Believe Me: The Evangelical Road to Donald Trump:

For most Americans, “law and order” is associated with Richard Nixon’s 1968 presidential campaign. According to historian Michael Flamm, “law and order was the most important domestic issue in the presidential election and arguably the decisive factor in Richard Nixon’s narrow triumph over Hubert Humphrey.” As might be expected, the need to bring law and order to American streets was a response to a significant rise in crime during the 1960s, particularly among African Americans and juveniles in American cities. The high crime rate among black men brought fear to white working-class Americans. Flamm notes that “by the late 1960s, white Americans overwhelmingly associated street crime with African Americans, who were more than seventeen times likely as white men to be arrested for robbery. The worst fears of white Americans materialized in the summer of 1967, when race riots broke out in Detroit and Newark. The violence continued in 1968 following the assassinations of Martin Luther King Jr. and Robert Kennedy. In Chicago, Mayor Richard Daly ordered his police officers to shoot looters on sight in the street. In Washington D.C. , race riots, led by black activist Stokely Carmichael, came within blocks of the White House, prompting President Lyndon Johnson to dispatch federal troops armed with machine guns to quell the violence. Later in the year, the Chicago police used tear gas to control protesters at the Democratic National Convention.

The Nixon campaign capitalized on the chaos. Nixon promised that, if elected, he would end the riots–using force if necessary. His campaign blamed the lack of law and order on the Democrats and portrayed his opponent, Hubert Humphrey, as weak on crime. Nixon consistently denied he used the phrase “law and order” to send a message to white voters who feared African American violence, but many of his conservative supporters clearly heard the message. Nixon walked a fine line on matters related to race. He was aware, from watching his independent opponent, George Wallace, that calling attention to racial difference worked very well in presidential campaign, especially in the South. Yet Nixon was not Wallace: he opposed segregation and supported the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Still, when he was not in front of the cameras, he was not reticent about his disdain for the “damn negroes.” He confided to his counsel, John Ehrlichman, that Lyndon Johnson’s Great Society programs would not help African Americans because “blacks were genetically inferior to whites.” After filming a campaign advertisement calling for law and order in public schools, Nixon said to his aides, “Yet, this hits it right on the nose…it’s all about law and order and the damn Negro-Puerto Rican groups out there.

Like Nixon, Donald Trump claims that his use of the term “law and order” has nothing to do with race. Yet when he combines the phrase with a steady drumbeat of attention to “Muslim terrorists” or illegal Mexican immigrants that he claims were committing violent crimes, he is sending a message to his largely white working-class constituency that he hears, shares, and prioritizes their fears. Trump wants to restore law and order to America much like Nixon promised to do in the 1960s. Is this what he has in mind when he says he wants to make America great again?

After Trump’s speech, he walked out the front door of the White House to nearby St. John’s Episcopal Church. It is known as the “Church of the Presidents” because every American president, beginning with James Madison, has attended the church (presidents sit in pew 54). During some of the protests on Sunday night (March 31) a fire started outside the church and spread into the basement of the parish house. It was extinguished quickly and there was no major damage. The words “The Devil is across the street” was sprayed on the church in graffiti and windows were smashed.

Trump walked to St. John’s for a photo-op. The church did not know he was coming and both the Episcopal bishop of Washington D.C. and the rector of the church have condemned the visit.

Trump stood before the church and held-up a Bible. When a reporter asked him if he was holding his Bible, Trump said it was “a Bible.” He then invited several members of his cabinet and staff to join him. (Interestingly enough, Mike Pence was not present).

And that is all he did. He stood there, held-up the Bible at a couple of different angles, and then left. He did not pray. He did not offer words of comfort or healing. He did not pray for the coronavirus victims. The message was clear. Trump’s law and order response–an approach with deep roots in racism and violence–is somehow informed by the Old and New Testament. (Once again, let’s remember that Trump’s favorite Bible verse is “an eye for an eye”). Off the top of my head, I cannot think of a U.S. president who has used a Bible–a material object representing the word of God–in this way.

Here a good rule of thumb. Whenever a public official uses the Bible to justify law and order during times of unrest, expect the worst. I think history offers some good lessons on this front, from politicians in the antebellum South to Nazi Germany. One should also be concerned when a president uses tear gas, rubber bullets, and flash grenades to remove peaceful protesters in front of a church for the purpose of using this sacred space to fortify such a show of power.

What we witnessed today was the president using this moment of racial strife and social unrest to announce his November 2020 campaign strategy. He will present himself as a strongman who will protect fearful white people. In this sense, he is like the Savage in C.S. Lewis’s Pilgrim’s Regressa Nietzschian warlord who tells Vertue that “If I am to live in a world of destruction let me be its agent and not its patient.” And he will justify all of this using the Bible–a direct appeal to his fearful white evangelical base who believe Trump is their divinely-appointed champion. It was all staged, not unlike a reality television show.

The court evangelicals, as expected, support what Trump did today. If you believe that America is a Christian nation and needs to be reclaimed as such, then anytime the president lifts a Bible, and especially if it is done at a historic church, it is a great thing.

Here is Robert Jeffress of First Baptist Church in Dallas:

Fox News has Robert Jeffress lined-up for an early morning appearance:

Expect Jeffress to talk about this.

Tony Perkins just retweeted:

Here is Marc Burns:

I am reminded of a quote I added to the Commonplace Book this morning:

All moral laws derive from one law: that of truth” [Goethe]…A person who is incapable of viewing things impartially, uninfluenced by the affirmations or negations of the will, a person who is incapable, for a time, of simply keeping silent and perceiving what is there, and then of converting what he has seen and learned into a decision, is incapable of achieving the good, or in other words is incapable of performing an ethical act in the full sense of the term.  —Joseph Pieper, “The Art of Making Right Decisions,” *Civitas* (1970) in The Weight of Belief: Essays on Faith in a Modern Age, 212.

For the sake of the country, Trump needs to keep silent and start “perceiving what is there.”

Take the Trump Inaugural Address History Exam (My Piece This Morning at *USA Today*)

Trump inauguration

Here is a taste of “Did he free us from disease? 15 essay questions for a Trump inaugural address history exam”:

One day soon, students will read Donald Trump’s inaugural address. Good history teachers will understand the speech, as they do with all presidential rhetoric, in the larger context of the Trump presidency.

I recently revisited the speech amid this coronavirus pandemic. I imagined what kind of essay questions I would put on a future exam related to this period in American history. Here are a few:

Trump never had an approval rating over 50%. Considering this fact, how should we explain his calls for national unity? Other presidents saw their approval ratings soar in times of crisis. Why didn’t this happen to Trump?

Trump said that the “Bible tells us, how good and pleasant it is when God’s people live together in unity.” Did this kind of spiritual harmony exist during Trump presidency? Did the church speak truth to power with a united voice? Discuss the state of American Christianity in the age of Trump.

Read the rest here.

Is Trump’s Authority “Total” When It Comes to Reopening the Economy?

Trump Press Conference

Short answer: No.

Although he would obviously like it to be.

The Washington Post talked to some constitutional scholars.  Here is a taste of Meagan Flynn’s and Allyson Chiu’s piece:

When President Trump was asked during Monday’s news briefing what authority he has to reopen the country, he didn’t hesitate to answer. “I have the ultimate authority,” the president responded, cutting off the reporter who was speaking.

Trump later clarified his position further, telling reporters, “When somebody is the president of the United States, the authority is total and that’s the way it’s got to be. … It’s total. The governors know that.”

The local leaders, Trump said, “can’t do anything without the approval of the president of the United States.”

Trump’s eyebrow-raising assertions about the reach of his office during national emergencies, which were also echoed by Vice President Pence at the briefing, came on the same day governors on both coasts announced their own plans to begin working toward reopening their states amid the ongoing global coronavirus pandemic.

While the president appears convinced he is the only one empowered to make the critical determination, his extraordinary assertions of authority over the states astounded legal scholars, leaving them wondering, as they have before about Trump’s broad claims, where on earth he got them.

“You won’t find that written in the Federalist Papers anywhere,” Robert Chesney, a law professor at the University of Texas at Austin, told The Washington Post.

Not only does the power Trump asserted have no basis in reality, experts said, but it’s also completely antithetical to the Constitution, the concept of federalism and separation of powers — whether during a time of emergency or not.

“This isn’t ancient Rome where there’s a special law that says in the event of an emergency all the regular rules are thrown out the window and one person, whom they called the dictator, gets to make the rules for the duration of the emergency or for a period of time,” Chesney said. “We don’t have a system like that.”

On Twitter, Steve Vladeck, another professor at the University of Texas School of Law, rebutted Trump’s “authority is total” remark.

“Nope,” Vladeck wrote. “That would be the literal definition of a *totalitarian* government.”

Read the rest here.

“When Trump demanded to know whom he’d voted for in 2016, McCabe was so shocked…”

McCabe

I finally got around to reading George Packer’s piece in The Atlantic on Trump’s attack on American institutions. It is chilling.  It reveals a mafia-style presidency.  It sheds new light on the fact that Trump demands loyalty to him, not to American institutions. And he surrounds himself with right-wing Christians like Bill Barr and Mike Pompeo to carry out his tyranny.  This passage on how Trump treated former FBI Director Andrew McCabe is revealing:

“Your only problem is that one mistake you made,” McCabe later recalled Trump saying. “That thing with your wife. That one mistake.” McCabe said nothing, and Trump went on: “That was the only problem with you. I was very hard on you during my campaign. That money from the Clinton friend—I was very hard. I said a lot of tough things about your wife in the campaign.”

“I know,” McCabe replied. “We heard what you said.” He told Trump that Jill was a dedicated doctor, that running for office had been another way for her to try to help her patients. He and their two teenage children had completely supported her decision.

“Oh, yeah, yeah. She’s great. Everybody I know says she’s great. You were right to support her. Everybody tells me she’s a terrific person.”

The next morning, while McCabe was meeting with his senior staff about the Russia investigation, the White House called—Trump was on the line. This was disturbing in itself. Presidents are not supposed to call FBI directors, except about matters of national security. To prevent the kind of political abuses uncovered by Watergate, Justice Department guidelines dating back to the mid-’70s dictate a narrow line of communication between law enforcement and the White House. Trump had repeatedly shown that he either didn’t know or didn’t care.

The president was upset that McCabe had allowed Comey to fly back from Los Angeles on the FBI’s official plane after being fired. McCabe explained the decision, and Trump exploded: “That’s not right! I never approved that!” He didn’t want Comey allowed into headquarters—into any FBI building. Trump raged on. Then he said, “How is your wife?”

“She’s fine.”

“When she lost her election, that must have been very tough to lose. How did she handle losing? Is it tough to lose?”

McCabe said that losing had been difficult but that Jill was back to taking care of children in the emergency room.

“Yeah, that must have been really tough,” the president told his new FBI director. “To lose. To be a loser.”

As McCabe held the phone, his aides saw his face go tight. Trump was forcing him into the humiliating position of not being able to stand up for his wife. It was a kind of Mafia move: asserting dominance, emotional blackmail.

“It elevates the pressure of this idea of loyalty,” McCabe told me recently. “If I can actually insult your wife and you still agree with me or go along with whatever it is I want you to do, then I have you. I have split the husband and the wife. He first tried to separate me from Comey—‘You didn’t agree with him, right?’ He tried to separate me from the institution—‘Everyone’s happy at the FBI, right?’ He boxes you into a corner to try to get you to accept and embrace whatever bullshit he’s selling, and if he can do that, then he knows you’re with him.”

McCabe would return to the conversation again and again, asking himself if he should have told Trump where to get off. But he had an organization in crisis to run. “I didn’t really need to get into a personal pissing contest with the president of the United States.”

Far from being the political conspirator of Trump’s dark imaginings, McCabe was out of his depth in an intensely political atmosphere. When Trump demanded to know whom he’d voted for in 2016, McCabe was so shocked that he could only answer vaguely: “I played it right down the middle.” The lame remark embarrassed McCabe, and he later clarified things with Trump: He was a lifelong Republican, but he hadn’t voted in 2016, because of the FBI investigations into the two candidates. This straightforward answer only deepened Trump’s suspicions.

Read the entire piece here.

Has Trump Learned Any Lessons from His Impeachment?

Trump USA Today

No. None.

Here is CNN:

On Wednesday, Trump publicly praised the Justice Department for reversing its call for a stiff jail term for Stone after his own critical late night tweet that laid bare fears of blatant interference in bedrock US justice.

“I want to thank the Justice Department for seeing this horrible thing. And I didn’t speak to them by the way, just so you understand. They saw the horribleness of a nine-year sentence for doing nothing,” the President told reporters.

He noted that the four prosecutors who quit the Stone case “hit the road,” raising the prospect that their protests failed to introduce accountability to the administration and only served to further hollow out the government and make it more pliable to the President.

Trump denied that he crossed a line. But his tweet left no doubt about what he wanted to happen. And his strategy, in this case and others, actually worked.

Just as he used US government power to smear Joe Biden in the Ukraine scandal, he succeeded in getting favorable treatment for a friend in the Stone case — though the final sentence will be up to a judge.

The Stone affair has also added to evidence that Attorney General William Barr is acting more as the President’s personal lawyer and less to ensure the neutral administration of justice.

Trump’s brazen approach was on also display Wednesday when he was asked what he learned from impeachment — after several GOP senators said they hoped he would take lessons to be restrained.

“That the Democrats are crooked, they got a lot of crooked things going. That they’re vicious, that they shouldn’t have brought impeachment,” Trump told reporters.

Read the entire piece here.

Lamar Alexander’s Statement is Full of Historical Problems

lamar-alexander

If Lamar Alexander wants to oppose witnesses in the Donald Trump impeachment trial he has that right.  But spare us the “history” lesson.

Alexander statement says:

I worked with other senators to make sure that we have the right to ask for more documents and witnesses, but there is no need for more evidence to prove something that has already been proven and that does not meet the United States Constitution’s high bar for an impeachable offense.

So it sounds like Alan Dershowitz’s “absurd” and “baffling” argument convinced the senior Senator from Tennessee.  In embracing the Dershowitz argument, Alexander has chosen to reject the consensus of legal scholars and American historians.

Alexander continues:

“There is no need for more evidence to prove that the president asked Ukraine to investigate Joe Biden and his son, Hunter; he said this on television on October 3, 2019, and during his July 25, 2019, telephone call with the president of Ukraine. There is no need for more evidence to conclude that the president withheld United States aid, at least in part, to pressure Ukraine to investigate the Bidens; the House managers have proved this with what they call a ‘mountain of overwhelming evidence.’ There is no need to consider further the frivolous second article of impeachment that would remove the president for asserting his constitutional prerogative to protect confidential conversations with his close advisers.

“It was inappropriate for the president to ask a foreign leader to investigate his political opponent and to withhold United States aid to encourage that investigation. When elected officials inappropriately interfere with such investigations, it undermines the principle of equal justice under the law. But the Constitution does not give the Senate the power to remove the president from office and ban him from this year’s ballot simply for actions that are inappropriate.

So what is the difference between an “impeachable” offense and an “inappropriate” offense?  Again, Alexander has been swayed by Dershowitz’s argument.  Alexander believes that the president is guilty, but he does not believe that Trump committed an impeachable offense.  (Dershowitz doesn’t think Trump is guilty of anything). This is also clear from the next part of Alexander’s statement:

“The question then is not whether the president did it, but whether the United States Senate or the American people should decide what to do about what he did. I believe that the Constitution provides that the people should make that decision in the presidential election that begins in Iowa on Monday.  

“The Senate has spent nine long days considering this ‘mountain’ of evidence, the arguments of the House managers and the president’s lawyers, their answers to senators’ questions and the House record. Even if the House charges were true, they do not meet the Constitution’s ‘treason, bribery, or other high crimes and misdemeanors’ standard for an impeachable offense.

Alexander goes on:

“The framers believed that there should never, ever be a partisan impeachment. That is why the Constitution requires a 2/3 vote of the Senate for conviction. Yet not one House Republican voted for these articles. If this shallow, hurried and wholly partisan impeachment were to succeed, it would rip the country apart, pouring gasoline on the fire of cultural divisions that already exist. It would create the weapon of perpetual impeachment to be used against future presidents whenever the House of Representatives is of a different political party.

“Our founding documents provide for duly elected presidents who serve with ‘the consent of the governed,’ not at the pleasure of the United States Congress. Let the people decide.”

On the issue of “partisan” impeachments and the founders, here is historian Joanne Freeman:

Moreover, as historian Kevin Kruse has been reminding us, there were no political parties when the founders wrote the Constitution:

Alexander also suggests that the “founding documents” teach that “the people” should decide whether to move a president.  Here he is connecting “impeachment” with the vote and will of “the people.” But the Constitution makes no such connection.

First, as James Madison made clear in Federalist 39, “The President of the United States is impeachable at any time during his continuance in office.” In other words, the president can be impeached during an election year.

Second, the framers were skeptical about trusting the people to make decisions about important matters such as impeachment.  The framers did not trust the “ballot”on impeachment.  Read the Constitution as it was written in 1787.  Senators were not directly elected by the people.  They were appointed by state legislatures. This is precisely why the framers believed that the Senate was best suited to serve as judges in an impeachment trial. The “people” in the House of Representatives brought charges in the president (impeachment), but the Senate, those so called “gods on Mount Olympus,” would decide whether or not the people were right (removal). As Madison wrote in Federalist 10, the passions of the people needed to be filtered through “a medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.”  In fact, the framers of the Constitution had such a mistrust of the people that they did not allow them to vote directly for the president.  It is worth noting that they did not even record the popular vote in presidential elections until 1824.

In the end, Lamar Alexander can oppose impeachment trial witnesses for all kinds of reasons, but please don’t appeal to the founders.

Alexander’s sketchy use of the founding-era is particularly troubling considering that he has always been a strong advocate for more history and civics in public schools.

Heather Cox Richardson on Alan Dershowitz’s Absurd Argument on the Senate Floor

Dershowitz Senate

Here is Boston College history professor Heather Cox Richardson at her site, “Letters from an American“:

Today, on the floor of the Senate, retired Harvard Professor Alan Dershowitz said the quiet part out loud. Trying to argue that it was okay for Trump to withhold congressionally approved funds from Ukraine until Ukraine’s president agreed to smear Trump’s key rival in the 2020 election, Dershowitz said that Trump’s actions were in the public interest because Trump believes that his reelection is what’s best for the country. “Every public official that I know believes that his election is in the public interest… and if a president did something that he believes will help him get elected, in the public interest, that cannot be the kind of quid pro quo that results in impeachment.”

Dershowitz is so far out on a limb on this one he’s dangling out there on the fuzzy tips. Other legal scholars note that his interpretation of what is acceptable behavior from a president quite literally means that the president can do anything to stay in power. Republicans are flocking to Dershowitz’s argument, although some are willing to concede that if a president breaks a law, that would be an impeachable offense. That concession is marred in this case, of course, by the fact that the Government Accountability Office has concluded that Trump did, in fact, break a law by withholding funds from Ukraine, and also by the complication that currently, a 1973 Department of Justice memo does not permit a sitting president to be indicted. Trump’s lawyers are currently in court arguing that a sitting president cannot be investigated, either. So… how would we establish that a president had committed a crime?

In any case, this interpretation is so completely ahistorical and bonkers that lawyers and constitutional scholars are chewing it to bits all over the media tonight. If a president can do anything to get reelected, including using the power of the American government to pressure a foreign country into smearing a rival, under what possible circumstances would we ever have a change in president? He or his selected replacements will rule forever.

But this chilling perversion of the American presidency does say a great deal about today’s Republican leaders. They have bought into the idea that they, and only they, should rule. This has been a long time coming.

Read the rest here.

What Happened in the Senate Yesterday?

Impeachment Image

CNN has a nice overview. Here is a taste:

Republicans have variously argued that Trump did nothing wrong, the Democrats made up impeachment charges or that there was no quid pro quo in Ukraine. But they have apparently been pushed to this final, fallback position in the light of Bolton’s claim in a manuscript for his new book first reported by The New York Times that Trump did indeed tell him to withhold aid to Kiev until it opened probes into his domestic foes.

The legal reasoning from Dershowitz — while outside the mainstream — is giving Republican senators political cover to stand with the President.

The Harvard emeritus professor claimed on the Senate floor that if a politician thinks his reelection is in the national interest, any actions he takes towards that end cannot by definition be impeachable.

“And if a president did something that he believes will help him get elected, in the public interest, that cannot be the kind of quid pro quo that results in impeachment,” Dershowitz argued.

Lead House impeachment manager Adam Schiff however argued that such a position suggested an interpretation of the Constitution that held it acceptable for a President to abuse his power and Congress could do nothing about it.

“You can’t do anything about it because if he views it as in his personal interest, that’s just fine. He’s allowed to do it. None of the founders would have accepted that kind of reasoning,” Schiff said, adding later, “In fact, the idea that the core offense that the founders protected against, that core offense is abuse of power, is beyond the reach of Congress through impeachment would have terrified the founders.”

CNN legal expert Carrie Cordero said that Dershowitz’s arguments — that CNN reporters in the chamber said were warmly received by Republican senators — were nonsensical.

“It basically means that a President can do anything and they can make a subjective determination that their reelection is in the national interest,” Cordero said.

“It invites and opens the door to anything that is in the realm of foreign influence.”

Dershowitz reacted angrily later on in the question-and-answer session to suggestions by the House impeachment managers that he was in a slim minority of legal thought, claiming that constitutional experts who did not agree with him treated Republican and Democratic presidents by different legal standards.

“These scholars are influenced by their own bias, by their own politics and their views should be taken with that in mind. They simply do not give objective assessments of the constitutional history,” Dershowitz said.

The spectacle of Republicans adopting such arguments is remarkable since the party that once saw itself as the epitome of limited government is coalescing in an effort to broaden the unrestrainable power of the presidency. But it is also thematically compatible with the idea of a “unitary executive” — a theory that grants expansive powers to the presidency and is advanced by some conservative lawyers — including current Attorney General William Barr. In his own way, Trump has argued similar points, claiming that Article II of the Constitution gives him the power to do anything he wants.

Read the entire piece here.

I was struck by Dershowitz’s statement that all other Constitutional scholars are “influenced by their own bias, by their own politics and their views should be taken with that in mind.  They simply do not give objective assessments of constitutional history.”

Such a statement implies that Dershowitz is the only true, objective constitutional scholar in the world.   Everyone else is biased.  Only he is right.  This is like Trump saying “I alone can fix it.”

Dershowitz’s absurd argument is an appeal to the Trump base.  Dershowitz is telling Trump supporters that there is a deep state of elite liberal law professors who are out to get them and their president.  I have not had a chance to watch Fox News today, but I am imagine they are running with this argument.

“Dershowitz’s view is so absurd that I don’t know of even one legal scholar who studies the Constitution who agrees with him”

Dershowitz

During the impeachment trial, Trump defense lawyer Alan Dershowitz made the case that “abuse of power” is not an impeachable offense. Harvard University constitutional law scholar Noah Feldman (along with nearly all other constitution scholars) disagree.

Here is Feldman today at Bloomberg News:

As Republicans scramble to argue that they don’t need to call witnesses in Donald Trump’s Senate impeachment trial, one argument seems to be gaining traction: that witnesses are irrelevant, because even if Trump did everything he’s accused of doing, abuse of power is not an impeachable offense.

This argument isn’t merely wrong. It is the single most dangerous argument that any of Trump’s defenders have made during the entire impeachment process. If abuse of power isn’t impeachable, what is?

The strongest version of this argument has been made by Alan Dershowitz, who has insisted that the Constitution’s “high crimes and misdemeanors” include only crimes found in the statute books, not abuse of power.

That’s obviously wrong. In 1725, in a case the framers knew, Thomas, Earl of Macclesfield, was impeached by the House of Commons specifically for “Abuse of his Power” and “great Abuse of his Authority.” The House of Lords convicted him for it.

At the constitutional convention, on July 20, 1787, Edmund Randolph, the governor of Virginia who had introduced the Virginia plan, stated specifically that “the propriety of impeachments was a favorite principle with him” because “[t]he Executive will have great opportunitys of abusing his power.” In Federalist 65, Alexander Hamilton defined “high crimes and misdemeanors” as “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”

Dershowitz’s view is so absurd that I don’t know of even one legal scholar who studies the Constitution who agrees with him. That includes Dershowitz himself, who in 1998 said (correctly) that impeachment doesn’t have to be for a crime.

Read the rest here.

Some Context for Adam Schiff’s Hamilton Quote

Hamilton

Adam Schiff opened the first day of arguments in the Trump impeachment trial with a quote from an enclosure in an August 18, 1792 letter from Alexander Hamilton to George Washington.  His choice of texts is getting a lot of attention today.

Hamilton’s enclosure was part of his reply to a July 29, 1792 letter from Washington.
While the president was home at Mount Vernon he heard from fellow Virginians (probably George Mason and Thomas Jefferson) who were critical of the way the Federalist administration was conducting policy and interpreting the Constitution.  Washington asked Hamilton to respond to twenty-one popular criticisms of the Federalist-controlled government.

Washington’s criticism No. 14 read: “That the ultimate object of all this is to prepare the way for a change, from the present republican form of Government, to that of a monarchy; of which the British Constitution is to be the model.”

This was a pretty common Anti-Federalist critique.  It was also common among the members of the Jeffersonian opposition to the Federalist administration after ratification in 1789.  These men believed that the Constitution gave too much power to the national government and relied too heavily upon British political customs.  They feared that Washington, Adams (VP), Hamilton (Secretary of the Treasury), and the members of the Federalist-controlled Congress would replace the President of the United States with some form of monarchy.

These Jeffersonian fears are understandable.  Washington often acted like a king.  And everyone knew that Hamilton was an Anglophile.  During the Constitution Convention Hamilton argued that the newly created executive should have a life term.  This, he believed, was the only way of maintaining order and preventing the people from having too much power.  James Madison, who summarized Hamilton’s six-hour speech at the Constitutional Convention, wrote:

As to the Executive, it seemed to be admitted that no good one could be established on Republican principles.  Was not this giving up the merits on this subject.  The Hereditary interest of the King was so interwoven with that of the Nation, and his personal emoluments so great, that he was placed above the danger of being corrupted from abroad–and at the same time was both sufficiently independence at home, one of the weak sides of Republicans was their being liable to foreign influence & corruption.  Men of little character, acquiring great power become easily the tools of intemedling Neibours, Sweden was a striking instance.  The French & English had each their parties during the late Revolution which was effected by the predominant influence of the former.  What is the inference from all these observations?  That we ought to go as far in order to attain stability and permanency, as republican principles will admit.  Let one branch of the Legislature hold their places for life or at least during good behaviour.  Let the executive also be for life.

Of course Hamilton’s ideas were not adopted. The framers decided that the executive would serve a four-year term. But some thought Hamilton had not fully abandoned his earlier commitment to an executive for life.

Below is an excerpt from Hamilton’s response to George Washington  Hamilton argues that Jeffersonian worries about the Federalists turning the presidency into a monarchy are absurd. The real threat of tyranny is not the current administration and its policies, but the possibility that a leader might emerge who would tap into the passions of the people.  I have highlighted the passage used by Adam Schiff this afternoon.

The idea of introducing a monarchy or aristocracy into this Country, by employing the influence and force of a Government continually changing hands, towards it, is one of those visionary things, that none but madmen could meditate and that no wise men will believe.

If it could be done at all, which is utterly incredible, it would require a long series of time, certainly beyond the life of any individual to effect it. Who then would enter into such plot? For what purpose of interest or ambition?

To hope that the people may be cajoled into giving their sanctions to such institutions is still more chimerical. A people so enlightened and so diversified as the people of this Country can surely never be brought to it, but from convulsions and disorders, in consequence of the acts of popular demagogues.

The truth unquestionably is, that the only path to a subversion of the republican system of the Country is, by flattering the prejudices of the people, and exciting their jealousies and apprehensions, to throw affairs into confusion, and bring on civil commotion. Tired at length of anarchy, or want of government, they may take shelter in the arms of monarchy for repose and security.

Those then, who resist a confirmation of public order, are the true Artificers of monarchy—not that this is the intention of the generality of them. Yet it would not be difficult to lay the finger upon some of their party who may justly be suspected. When a man unprincipled in private life desperate in his fortune, bold in his temper, possessed of considerable talents, having the advantage of military habits—despotic in his ordinary demeanour—known to have scoffed in private at the principles of liberty—when such a man is seen to mount the hobby horse of popularity—to join in the cry of danger to liberty—to take every opportunity of embarrassing the General Government & bringing it under suspicion—to flatter and fall in with all the non sense of the zealots of the day—It may justly be suspected that his object is to throw things into confusion that he may “ride the storm and direct the whirlwind…”

The truth unquestionably is, that the only path to a subversion of the republican system of the Country is, by flattering the prejudices of the people, and exciting their jealousies and apprehensions, to throw affairs into confusion, and bring on civil commotion. Tired at length of anarchy, or want of government, they may take shelter in the arms of monarchy for repose and security.

Hamilton is saying that the real threat to republicanism is a populist demagogue.  You can see why Schiff thought this passage was appropriate for an impeachment trial.

Matthew Henry: “Advancement to authority will divulge the ambition and selfishness of men’s hearts”

White House

This morning a historian friend shared devotional writer Matthew Henry‘s commentary on Ezekiel 19:1-9.  Henry writes:

When professors, [as in those who affirm a faith in or allegiance to something], of religion form connexions with ungodly persons, their children usually grow up following after the maxims and fashions of a wicked world. Advancement to authority discovers [i.e., will divulge] the ambition and selfishness of men’s hearts; and those who spend their lives in mischief, generally end them by violence.

Ezekiel 19:1-9:

“Take up a lament concerning the princes of Israel and say:

“‘What a lioness was your mother
    among the lions!
She lay down among them
    and reared her cubs.
She brought up one of her cubs,
    and he became a strong lion.
He learned to tear the prey
    and he became a man-eater.
The nations heard about him,
    and he was trapped in their pit.
They led him with hooks
    to the land of Egypt.

“‘When she saw her hope unfulfilled,
    her expectation gone,
she took another of her cubs
    and made him a strong lion.
He prowled among the lions,
    for he was now a strong lion.
He learned to tear the prey
    and he became a man-eater.
He broke down[a] their strongholds
    and devastated their towns.
The land and all who were in it
    were terrified by his roaring.
Then the nations came against him,
    those from regions round about.
They spread their net for him,
    and he was trapped in their pit.
With hooks they pulled him into a cage
    and brought him to the king of Babylon.
They put him in prison,
    so his roar was heard no longer
    on the mountains of Israel.

Some Founders Wanted an Impeached President to be Suspended from Office Until Tried and Acquitted

gouverneur-morris-hero

Gouverneur Morris

This did not make it into the Constitution, but John Rutledge of South Carolina and Gouverneur Morris  of Pennsylvania thought it might be a good idea.

September 14, 1787:

Mr. Madison. The President is made too dependent already on the Legislature by the power of one branch to try him in consequence of an impeachment by the other. This intermediate suspension, will put him in the power of one branch only. They can at any moment, in order to make way for the functions of another who will be more favorable to their views, vote a temporary removal of the existing Magistrate.

Today’s Quote from the Federalist Papers

From Alexander Hamilton in Federalist 75:

However proper or safe it may be in governments where the executive magistrate is an hereditary monarch, to commit to him the entire power of making treaties, it would be utterly unsafe and improper to intrust that power to an elective magistrate of four years’ duration. It has been remarked, upon another occasion, and the remark is unquestionably just, that an hereditary monarch, though often the oppressor of his people, has personally too much stake in the government to be in any material danger of being corrupted by foreign powers. But a man raised from the station of a private citizen to the rank of chief magistrate, possessed of a moderate or slender fortune, and looking forward to a period not very remote when he may probably be obliged to return to the station from which he was taken, might sometimes be under temptations to sacrifice his duty to his interest, which it would require superlative virtue to withstand. An avaricious man might be tempted to betray the interests of the state to the acquisition of wealth. An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents. The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States

Trump’s Veto Message to His Base

I just received this e-mail from the President of the United States.  He continues to play to darkness over light.  He continues to play to fear over hope.  And who are these 93% of Americans who want  him to finish the wall?  Perhaps they are members of his staff or the GOP senators who supported him.  This letter sounds like the musings of an insecure tyrant.

Friend,

The liberal swamp will never learn. That’s why I just VETOED the Pro-Crime, Pro-Drugs, and Pro-Open Borders Democrat inspired resolution.

Liberals in the Senate chose politics, I chose YOU.

59 Senators voted to put illegal immigrants and political games over YOUR safety. DISGRACEFUL!

But, when I asked American Patriots (the people that matter) over 93% said YES VETO & FINISH THE WALL. When the people talk, I always listen.

As your Commander-in-Chief, I will NEVER put politics over the safety of American Citizens, so help me God.

Even with this Veto, the attacks will keep coming from the “Border Deniers” and their allies in the mainstream media. We have to do something HUGE to have the resources to fight back.

That’s why I need you to contribute to the most important fund of my presidency – the OFFICIAL WALL DEFENSE FUND.

The Wall is being finished. Trust me. But the radical liberals will keep pushing back construction while precious American lives are lost. NO MORE!

I need you to step up, Friend. This is your moment to go down in history and FINISH THE WALL. 

Please contribute at least $5 by 11:59 PM TONIGHT to our Official Wall Defense Fund and your gift will be TRIPLE-MATCHED.

Thank you,

Donald Trump

President of the United States

Did Lincoln Offer a “verbal cake and ice cream” to slaveowners?

Who was responsible for the Emancipation Proclamation?  Was it Lincoln?  The Republican Party? The slaves themselves?  Gettysburg College Civil War scholar Allen Guelzo makes a case for Lincoln in his recent piece in The Wall Street Journal.  Here is a taste:

In an age when rocking century-old statues off their pedestals has become a public sport, no historical reputation is safe. That includes Abraham Lincoln, the Great Emancipator.

It is “now widely held,” Columbia historian Stephanie McCurry announced in a 2016 article, that emancipation “wasn’t primarily the accomplishment of Abraham Lincoln or the Republican Party, but of the slaves themselves, precipitated by the actions they took inside the Confederacy and in their flight to Union lines.” Ebony editor Lerone Bennett put this argument forward in his 2000 book, “Forced Into Glory: Abraham Lincoln’s White Dream.” The Zinn Education Project, which distributes Howard Zinn’s “A People’s History of the United States” to students, claims that Lincoln offered “verbal cake and ice cream to slaveowners,” while slaves themselves did “everything they could to turn a war for national unity into a war to end slavery.”

The case against Lincoln is a lot less energizing than it seems. Slavery, as it emerged in American life and law, was always a matter of state enactments. There was no federal slave code, and Madison had been particularly eager to ensure that the Constitution gave no federal recognition to the idea that there could be “property in man.” But there was also no federal authority to move directly against slavery in the states.

The attempt by the Southern slave states to break away in 1861 seemed to offer several ways to strike at slavery. Some U.S. Army officers attempted to declare slaves “contraband of war,” and therefore liable to seizure like any other military goods. But the “contraband” argument fell into the error of conceding that slaves were property, and, anyway, no legal opinions on the laws of war regarded such property seizures as permanent.

Congress tried to put a hand on slavery through two Confiscation Acts, in 1861 and 1862. But “confiscating” slaves wasn’t the same thing as freeing them, since the Constitution (in Article I, Section 9) explicitly bans Congress from enacting “bills of attainder” that permanently alienate property. Confiscation would also have had the problem of ratifying the idea that human beings were property.

Lincoln tried to dodge the constitutional issues by proposing, as early as November 1861, a federal buyout of slaves in the four border states that remained loyal to the Union—Delaware, Kentucky, Maryland and Missouri. But the representatives of those states rebuffed the offer, telling Lincoln that they “did not like to be coerced into Emancipation, either by the Direct action of the Government, or by indirection,” as a Maryland congressman reported.

Many slaves didn’t wait on the courts or Congress, and instead ran for their freedom to wherever they could find the Union Army. But the Army wasn’t always welcoming, and there was no guarantee that the war wouldn’t end with a negotiated settlement including the forced return of such runaways. Fugitive slaves were free, but their freedom needed legal recognition.

If you can get past The Wall Street Journal paywall, you can read the rest here.

Joanne Freeman on Federalist No. 76 and the Whitaker Lawsuit

Trump and Whitaker

A group of Senate Democrats–Richard Blumenthal (D-Conn), Sheldon Whitehouse (D-R.I.), and Mazie K. Hirono (D-Hawaii)–has filed a lawsuit against the Trump administration.  The suit challenges the constitutionality of the appointment of Matthew Whitaker as acting attorney general.

The suit invokes the Constitution’s Appointments Clause and references Alexander Hamilton in Federalist 76:

The Constitution’s Appointments Clause requires that the Senate confirm high-level federal government officials, including the Attorney General, before they exercise the duties of the office. The Framers included this requirement to ensure that senior administration officials receive scrutiny by the American people’s representatives in Congress. The Appointments Clause is also meant to prevent the President, in the words of Alexander Hamilton in Federalist 76, from appointing officers with “no other merit than that of…possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.”

“Installing Matthew Whitaker so flagrantly defies constitutional law that any viewer of School House Rock would recognize it. Americans prize a system of checks and balances, which President Trump’s dictatorial appointment betrays,” Blumenthal said. “President Trump is denying Senators our constitutional obligation and opportunity to do our job: scrutinizing the nomination of our nation’s top law enforcement official. The reason is simple: Whitaker would never pass the advice and consent test. In selecting a so-called “constitutional nobody” and thwarting every Senator’s constitutional duty, Trump leaves us no choice but to seek recourse through the courts.”

On Twitter, Yale historian Joanne Freeman provides some context:

What Trump Can Learn About “Witch Hunts” from the Pennsylvania Catholic Sex Abuse Scandal

Donald_Trump_and_Pope_Francis_(24486540493)

Paul Elie, a senior research fellow at Georgetown University’s Berkeley Center for Religion, Peace, and World Affairs, reminds us that sometimes “witch hunts” turn-up witches.

In 2002 , a Mexican cardinal said that the Boston Globe’s reporting on sexual abuse in the Catholic Church was a “witch hunt.”  We now have a similar sex abuse scandal in Catholic Pennsylvania.  (I have not seen anyone call this a witch hunt yet, but I could be wrong).  Elie argues the press, the prosecution, and the people remain the best way to keep powerful priests and politicians accountable.

Maybe Trump should head down to the White House cinema and watch Spotlight.  He might learn something about the essential role the press must play in curbing executive power.

Here is a taste of his piece at Time:

“Witch hunts” is what prominent cardinal Óscar Rodríguez Maradiaga of Honduras called the Boston Globe’s and other outlets’ reporting on decades of sexual abuse by Catholic priests in 2002, after the coverage led to accusations of a cover-up. He is now one of Pope Francis’ closest advisers. But they were not witch hunts. They told the truth and exposed the perils of unchecked power exercised by another cardinal, Boston’s Bernard Law. That reporting led to Law’s resignation, the removal and prosecution of priestly offenders, and a promise from U.S. bishops to install a “zero tolerance” policy on sexual abuse.

Sixteen years later, the phrase witch hunt calls to mind President Trump’s assault on the free press, the rule of law, and our constitutional system of checks and balances and the separation of powers. What happens when those curbs on executive power are weak or nonexistent? Too often we look to places like Vladimir Putin’s Russia to answer that question. Instead, we should look to the Catholic Church; we can see the consequences in the broken lives of thousands of victims and the anguish of our Catholic neighbors — because the crisis of priestly sexual abuse is a crisis of executive power run amok.

Read the entire piece here.

Understanding the Supreme Court Decision on Trump’s Travel Ban

Gorsuch Trump

Some nice context here from CNN writer Chris Cilizza.  Here are his “5 takeaways“:

 

  1. “Elections matter. A lot.”
  2. “This is as much Mitch McConnell’s victory as it is Donald Trump’s”
  3. “The President has loads of power”
  4. “The court didn’t take Trump literally”
  5. “The court wanted to make clear it wasn’t endorsing past Trump statements on Muslims.”

See how Cilizza develops these points here.