The Road to the Trump Presidency

by Stephen Knott, author of The Lost Soul of the American Presidency; The Decline into Demagoguery and the Prospects for Renewal / Opinions expressed here are entirely his own.

Donald Trump is everything critics of a populist presidency, particularly Alexander Hamilton, warned about—a demagogue who practices the “little arts of popularity” for purposes of firing up his base, a man lacking the attributes of a magnanimous soul, a purveyor of conspiracy theories, and a president incapable of distinguishing between himself and the office he temporarily holds.

Yet Hamilton’s fear of a demagogic, populist presidency, was realized long before the election of Donald Trump. In fact, the seeds were first planted by Thomas Jefferson in his “Revolution of 1800.” The Sage of Monticello launched the presidency on a populist course that, in the long run, undermined the intentions of the framers of the Constitution. While many members of the founding generation were worried that a demagogue manipulating public passions would destroy the republic, Jefferson argued that public opinion served as the “best criterion of what is best,” and that enlisting and engaging that opinion would “give strength to the government.” As the nation’s only nationally elected figure, Jefferson’s executive was rooted in popular support and thus uniquely situated to serve as a spokesman for and implementer of the majority’s wishes.

Jefferson turned his rival Alexander Hamilton’s arguments on their head, arguing that popular opinion conferred constitutional legitimacy. Jefferson made this abundantly clear in a letter he wrote to James Madison in 1787: “after all, it is my principle that the will of the Majority should always prevail.” In essence, the majority would govern, not the Constitution.

The “Revolution of 1800” paved the way for the populist presidency of Andrew Jackson who held that the fundamental principle of the American government was majority rule. While the American framers believed in government by consent, they did not believe in government by the majority, believing instead in a system of representation and other “filtering” elements including judicial review, indirect election of Senators, and the Electoral College. Jackson believed that checks on majority rule, including the Electoral College, represented a perversion of the principle that “as few impediments as possible should exist to the free operation of the public will.”

As all demagogues are inclined to do, Andrew Jackson played upon fears to mobilize his base. No one understood this better than John Quincy Adams, a target of Jackson’s wrath and a champion of the rights of other frequent targets of those resentments, including abolitionists, free Blacks, and Native Americans. Unpopular minorities bear the brunt of the populist presidency, and Adams was one of the last of a dying breed who understood the threat this presented to the American body politic. According to Adams, Jackson was “a man governed by passion rather than reason, a demagogue.”

With Jackson’s election to the presidency, and with the wider success of his movement at the state and local level, the American republic moved from a system designed to check majority tyranny to one where an unfettered majority governed, using its power at the state level to disenfranchise an unpopular minority (free blacks) and to press for the expansion of slavery, and leveraging its powers at the state and the federal levels to remove a different but equally unpopular minority from its midst, Native Americans.

The coalition Jackson assembled was, at bottom, a cauldron of boiling partisan, racial, and class resentments, and in Jackson’s case, all of those elements, plus decades of personal resentments thrown into the mix. Thirty years later, Jackson’s fellow Tennessean, Andrew Johnson, who considered Jackson his beau ideal of a president, stirred the same populist pot on his path to power, rising to prominence as the nineteenth century’s version of Donald Trump.

The refounded presidency of Jefferson and Jackson was embraced by many twentieth century progressives. While Jefferson and Jackson did not believe in an activist federal government, these progressives did. But having unmoored the presidency from the Constitution and grounded it in public opinion, it was a small step for Jefferson’s and Jackson’s heirs to claim that the president spoke for the majority and was uniquely situated to view the whole, and that the people demanded a federal government that could be as big as it wanted to be, led by a president who was as big a man as he wanted to be.

Progressive politicians, Franklin Roosevelt in particular, along with historians such as Arthur Schlesinger Jr. and Henry Steele Commager, considered Andrew Jackson to be a precursor to Franklin Roosevelt and the New Deal. The age of Jackson and the age of Roosevelt may have been a century apart, but both men fought the elites of their day and considered themselves the tribune of the people. As with Jackson, FDR was a genius at firing up his base by labeling his opponents as un-American evil doers.

Sadly, Donald Trump represents the apotheosis of those who sought a more responsive, unrestrained presidency, rooted in public opinion. This refounded presidency placed the office on a dangerous and unsustainable path, a path of heightened expectations that encourages a contemptuous view of checks and balances. It also diminished the important unifying role the president was expected to play as head of state, forcing him to become a party leader and policy formulator—in short, a perpetual partisan lightning rod. All of this has contributed to an erosion of respect for the office.

The United States would be well served to return to the constitutional presidency envisioned by George Washington, Alexander Hamilton and James Madison. They designed a presidency of “sober expectations,” one that did not pander to or manipulate the public, one that was averse to the notion that it was the president’s job to provide “visionary leadership,” and one that was less inclined to implement the majority will at the expense of political, racial, and economic minorities.

The prospects for a renewal of the office are slim, but not impossible. A recovery of the constitutional presidency, one respectful of the rule of law and appreciative of the role of the president as head of state, rather than full-time rabble rouser, is within our reach. It would require, however, a renewed appreciation for the limits of the office and the limits of politics, along with an understanding that history is littered with examples of leaders who, as Alexander Hamilton put it, “overturned the liberties of republics.” These demagogues began their careers “by paying an obsequious court to the people; commencing demagogues, and ending tyrants.”

Stephen F. Knott (@publius57) is professor of national security affairs at the United States Naval War College in Newport, Rhode Island. His many books include Alexander Hamilton and the Persistence of Myth and Rush to Judgment: George W. Bush, the War on Terror, and His Critics, both from Kansas, and Secret and Sanctioned: Covert Operations and the American Presidency.

Revisiting David E. Kyvig’s “The Age of Impeachment”

Some books seem to live forever, others live multiple lives.

In the summer of 2017, as President Trump was making news with pardons, Jeffrey Crouch’s 2009 book The Presidential Pardon Power began to garner a lot (like, a lot!) of attention.

No, thanks again to President Trump, David E. Kyvig’s 2008 book The Age of Impeachment; American Constitutional Culture since 1960 is roaring back to life.

In this magisterial work, Bancroft Prize-winning historian David Kyvig chronicles the rise of a culture of impeachment since 1960—one that extends far beyond the infamous scandals surrounding Presidents Richard Nixon (Watergate) and Bill Clinton (Monica Lewinsky) and has dramatically altered the face of American politics.

A buzz word in today’s public life, “impeachment” was anything but that before 1960. Since then it has been transformed from a historically little-known and little-used tool of last resort into a political weapon of choice. By examining the details and consequences of impeachment episodes involving three Supreme Court justices, a vice president, five federal judges, and four presidents, Kyvig explores this seismic shift in our constitutional culture and gauges its ongoing implications for American political life.

Beginning with the John Birch Society’s campaign against Chief Justice Earl Warren, impeachment efforts became far more frequent after 1960, with eight actually ending in resignation or removal. In describing these efforts, Kyvig recounts stories and subplots about key political actors and the controversies they inspired. He argues that judicial cases are as important as the better-known presidential ones and shows why those cases that did not proceed—against not only Warren, but also Abe Fortas, William O. Douglas, Spiro Agnew, Ronald Reagan, and George W. Bush—are as illuminating as those that did.

Kyvig demonstrates that impeachment has been the bellwether of a changing—and increasingly toxic—political climate. Perhaps most important and ominous, the increasing threat of impeachment has encouraged presidents to hide potentially impeachable actions behind a thick veil of executive secrecy, while dramatically expanding executive power beyond the reach of either Congress or the courts

Combining political and legal history at their best, Kyvig also explores the cultural impact of journalist David Frost, editorial cartoonist Herblock, and filmmakers Alan Pakula, Robert Altman, and Oliver Stone. A gifted storyteller, he presents a cautionary tale that should be read by all who care about our national government and its ability to survive and thrive in perilous times.

The Supreme Court, the President and Impeachment

by Joshua E. Kastenberg, author of The Campaign to Impeach Justice William O. Douglas; Nixon, Vietnam, and the Conservative Attack on Judicial Independence

The Constitution does not expressly set out a specific legal standard for impeaching a president or judge, but it does use the term “high crimes and misdemeanors” as an operative reason for removal. Certainly, it is possible for the House of Representatives to impeach a president, cabinet official, judge, or Supreme Court justice for noncriminal behavior: Gerald Ford tried this against William O. Douglas. Ford argued that “high crimes and misdemeanors” and “good behavior” was a malleable standard, one that was “whatever a majority of the House believes it to be at a given time.” In 1970, Ford failed to convince the House that Douglas merited impeachment.

It may be difficult to draw parallels between Justice Douglas and President Trump because Douglas had served on the Court for three decades and did not come into office with vast wealth (or the claim of vast wealth). Yet there is a parallel between then and now. Ford accused Douglas of unethical behavior, consorting with foreign entities, and misconduct by receiving money from the Mafia. However, there was no evidence to substantiate the latter two allegations. (Douglas may have crossed the line by publishing a book and several articles in a magazine reputed to be pornographic, and Douglas’s extramarital affairs were the basis for other impeachment demands).

Democrats who have argued for impeaching President Trump are alleging an abuse of power by coercing or aligning with the president of Ukraine to damage a political opponent. There are also investigations into his finances as well as payoffs to mistresses.

Thus there is a parallel of sorts. Of course, a president is commander in chief and generally gains office by an Electoral College vote; meanwhile, a Supreme Court justice gains office by a presidential nomination and Senate approval. But the standard for impeachment—notwithstanding Ford’s claims to the contrary—is the same. Ford acted on April 15, 1970, by demanding impeachment and claiming that the Central Intelligence Agency had “dirt” on Douglas’s foreign activities and that the Securities and Exchange Commission and Internal Revenue Services also had proof of Douglas’s malfeasance. None of these agencies produced evidence against Douglas. Nor did the Federal Bureau of Investigation or Justice Department provide evidence (even though Attorney General John Mitchell promised evidence would be forthcoming).

It appears to be the case that in our present circumstances there is evidence, by President Trump’s own admission, of seeking foreign help against a political rival. There’s also the questionable timing of President Trump withholding military aid, followed by the release of congressionally appropriated monies after the Ukrainian president promised that a new prosecutor might relook an investigation into Hunter Biden.

Bribery is a specified offense in the Constitution. There is a prima facie case of it in regard to the president. Douglas was unpopular with conservatives: he engaged in extrajudicial activities that are prohibited by codes of ethics today but were not at the time. Somewhere in all of this, it is time for the House to employ a constitutional, rather than Ford’s, standard.

Joshua E. Kastenberg is associate professor of law and the Lee and Leon Karelitz Professor in Evidence and Procedure at the University of New Mexico School of Law. His many books include To Raise and Discipline an Army: Major General Enoch Crowder, the Judge Advocate General’s Office, and the Realignment of Civil and Military Relations in World War I and Law in War, War as Law: Brigadier General Joseph Holt and the Judge Advocate General’s Department in the Civil War and Early Reconstruction, 1861–1865.