The Promise and Perils of Presidential Power

Summary

Strict Scrutiny Podcast Summary
Episode: The Promise and Perils of Presidential Power
Release Date: January 6, 2025
Hosts: Leah Litman, Kate Shaw, Melissa Murray
Guests: Lindsey Chervinsky, Corey Brettschneider
Produced by: Crooked Media

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Introduction

On the inaugural episode of 2025, Strict Scrutiny delves into the intricate dynamics of presidential power in the United States. Hosted by constitutional law professors Leah Litman, Kate Shaw, and Melissa Murray, the discussion is enriched by insights from authors Lindsey Chervinsky and Corey Brettschneider, who explore historical and contemporary challenges to American democracy.

Reflecting on January 6th and Current Context

The episode opens on the four-year anniversary of the January 6th Capitol riot, an event that significantly influenced the discourse around American constitutional democracy and the 2024 presidential election. The hosts note the historical parallels with current events, particularly the re-election of Donald Trump, who had previously incited the January 6th unrest.

Leah Littman remarks:

“[...] Donald Trump will be returning to the office of the presidency. So we thought we would use this pre sitting episode in the new year to have a discussion about the office of the presidency.” (03:18)

John Adams and the Formation of Presidential Norms

Lindsey Chervinsky, author of Making the Presidency: John Adams and the Precedents that Forged the Republic, discusses the challenges John Adams faced as the second president following George Washington. The nascent presidency lacked detailed constitutional guidelines, relying heavily on norms and precedents set by Washington.

Chervinsky explains:

“Article 2 of the Constitution... was just incredibly short. It had very few words. And that meant that much of what it meant to be president was really built on norm and precedent and custom.” (05:22)

Adams grappled with defining the role amidst immense expectations and inevitable criticism, attempting to stabilize the presidency for successors.

The Alien and Sedition Acts: Threats to Democracy

Corey Brettschneider, author of Presidents and the People: Five Leaders Who Threaten Democracy and the Citizens Who Fought to Defend It, examines the Alien and Sedition Acts during Adams's presidency. These acts aimed to suppress opposition, criminalizing criticism of the president, which Chervinsky argues was a direct threat to free speech and democratic principles.

Melissa Murray highlights:

“They were crafting a law that makes it a crime to criticize the President of the United States, but it's not a crime... to criticize the vice president.” (17:29)

This selective suppression aimed to stifle the emerging opposition party, undermining the foundations of a multiparty democracy.

Historical Parallels to Modern Presidential Power

The hosts draw parallels between the early republic's struggles with presidential power and contemporary issues surrounding figures like Donald Trump. The discussion emphasizes the enduring tension between executive authority and democratic accountability.

Chervinsky notes:

“James Madison's commitment to free speech... is essential, especially in moments when the Supreme Court and other institutions may not uphold democratic values.” (27:44)

Watergate and the Fall of President Nixon

Transitioning to more recent history, the episode explores the Watergate scandal and its role in President Richard Nixon's resignation. The grand jury's deliberations and the subsequent pardon Nixon received are scrutinized as pivotal moments that tested the resilience of American democratic institutions.

Murray asserts:

“The pardon was not a good thing for American democracy. We really should have seen Nixon indicted and prosecuted like any other person.” (53:40)

This reflection underscores the importance of holding presidents accountable to preserve constitutional integrity.

Lessons for Donald Trump's Re-Election and Beyond

As Donald Trump prepares for a second, non-consecutive term—the only other president to do so being Grover Cleveland—the hosts and guests discuss historical lessons that could guide current and future responses to potential authoritarian tendencies.

Chervinsky emphasizes:

“Institutions are really easy to tear down. They're really hard to build back up. No matter how flawed an institution is, it's worth trying to improve it and defend it as opposed to trying to build something new from scratch.” (56:13)

Brettschneider adds:

“Ordinary citizens, journalists, and activists have historically been more effective in curbing presidential overreach than institutional checks like the Supreme Court.” (57:22)

Conclusion: The Role of Citizens in Defending Democracy

The episode concludes with a call to action for citizens to actively engage with and claim the Constitution to defend against authoritarian shifts. The historical narratives of Adams, Douglass, and others serve as reminders of the fragility of democracy and the crucial role individuals play in its preservation.

Murray summarizes:

“It's essential in this moment that we claim the Constitution for ourselves and we claim a democratic as opposed to an authoritarian Constitution.” (58:40)

Key Takeaways

• Historical Precedents: Understanding the challenges faced by early presidents like John Adams sheds light on the evolving nature of executive power.
• Threats to Free Speech: The Alien and Sedition Acts exemplify how legislative tools can be used to suppress dissent and undermine democracy.
• Accountability and Institutions: Events like Watergate highlight the necessity of holding presidents accountable to maintain constitutional norms.
• Citizen Engagement: The defense of democracy relies heavily on active citizen participation rather than solely on institutional safeguards.
• Modern Implications: Lessons from history are crucial in navigating and mitigating current and future threats to constitutional democracy.

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For those interested in exploring these themes further, the episode references two insightful books:

• "Making the Presidency: John Adams and the Precedents that Forged the Republic" by Lindsey Chervinsky
• "Presidents and the People: Five Leaders Who Threaten Democracy and the Citizens Who Fought to Defend It" by Corey Brettschneider

Strict Scrutiny continues to provide in-depth, accessible analysis of the Supreme Court and its surrounding legal culture, offering valuable perspectives for lawyers, law students, and anyone intrigued by the complexities of American legal and political landscapes.

Transcript

[Kate Shaw]

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[Melissa Murray]

Please support it's an old joke, but when I argue, man argues against two beautiful ladies like this, they're going to have the last word.

[Leah Littman]

She spoke not elegantly, but with unmistakable clarity.

[Lindsey Chervinsky]

She said, I ask no favor for my sex.

[Leah Littman]

All I ask of our brethren is.

[Lindsey Chervinsky]

That they take their feet off our necks. Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts. I'm Kate Shaw.

[Corey Brettschneider]

I'm Melissa Murray.

[Leah Littman]

And I'm Leah Littman. This episode is airing January 6, four years to the day since rioters breached the Capitol in an effort to protest Congress certifying the results of the 2020 presidential election. January 6th featured in many discussions about the future of American constitutional democracy and the 2024 presidential election. Of course, as a result of that election, Donald Trump, who spoke at the Ellipsis event preceding the January 6 riot, during which he called on attendees to defend their country, will be returning to the office of the presidency. So we thought we would use this pre sitting episode in the new year to have a discussion about the office of the presidency.

[Corey Brettschneider]

And we're going to orient our discussion around two fantastic books about the presidenc, books that touch on questions of presidential power, the transition of power, how the presidency got to be what it is today, and how we've seen checks on the power of the president from sometimes unexpected quarters. And we are joined by the authors of those two fantastic books. First, we have Lindsey Chervinsky, the author of Making the John Adams and the Precedents that forged the Republic. Dr. Stravinsky is an historian and the executive director of the George Washington Presidential Library.

[Kate Shaw]

Welcome to the pod.

[Lindsey Chervinsky]

Lindsay.

Lindsay, thank you so much for having me. I'm really excited to be here.

We are also delighted to be joined today by Corey Brettschneider, who's a professor of political science at Brown University, where he teaches constitutional law and political theory. He's also taught at a number of law schools, so he really straddles the worlds of law and political science. And Corey is the author of the excellent new book, the Presidents and the People. Five Leaders who Threaten Democracy and the Citizens who Fought to Defend It. Corey, welcome to the pod and it's great to have you.

[Melissa Murray]

Thanks. Great to be here. I'm looking forward to the conversation.

[Leah Littman]

So, Lindsay, we wanna start with a couple questions for you. Your book Making the Presidency generally outlines the challenges that John Adams faced as the second president, coming right after George Washington, who assumed, as you describe, this almost deity like role in American politics and culture. How did that challenge shape the office of the presidency.

[Lindsey Chervinsky]

Well, as you know, you guys have talked about so often, so much of the presidency isn't written down. Article 2 of the Constitution, especially before all of the amendments and the statutes and laws that have been passed that sort of govern the executive branch was just incredibly short. It had very few words. And that meant that much of what it meant to be president was really built on norm and precedent and custom. And that's pretty tricky when you only have one precedent or one person that you can follow. And that person is really unparalleled in stature because it means that if you diverge from that model, you're going to be criticized. But if you adhere to that model, you're also going to be criticized for falling short. And so whoever came second was really in this position of knowing that it was gonna be terrible. They were going to be criticized, they were going to be unpopular with the American people. And that was a best case scenario. Worst case, they didn't know if the presidency and all of the incredible powers that were granted to it in the Constitution would actually work if anyone else was in office. And so John Adams presidency was really a four year battle to try and ensure that the presidency worked for other people and to defend the character of the presidency as Washington had established.

[Leah Littman]

It's not written down in Article 2, but how about Article 12? Right. That's what spells out all of the.

[Lindsey Chervinsky]

Presidential powers comes later though. Okay, so Lindsay, we definitely do want to talk more about some of the themes that you just identified. But first, Corey, I want to bring you in. The title in some ways conveys the thesis of the book, but I want to just say maybe another word or two about it. And I am quite sure you never wanted to write a book that is quite this. The basic premise of the book, as I understand it, and it could not be more relevant, is essentially that there has always been a real authoritarian streak in the American presidency. And that at a number of critical junctures in American history, there have been these key checks on that streak and on the presidency in general that have come from maybe unexpected places and particular from ordinary Americans sometimes using institutions, but not typically themselves insiders to institutions. So feel free to, you know, correct if I miss described any of that. But basically to come back to John Adams, you know, an important player in your story is John Adams. Can you talk a little bit about how Adams felt about the monarchy and how those views informed his understanding of the presidency that he was shaping as Lindsay was just describing, you know, kind of in the footsteps of George Washington.

[Melissa Murray]

Yes. I mean, as you say, the thesis of the book is about the danger that the American Presidency poses to democracy and to democratic self government. And that's an idea that really was seen at the Founding when Patrick Henry warned that if you have a criminal president that they might even destroy the republic. And the thesis of the book is that we have come close to collapse and we've certainly seen lots of threats to American democracy. But the thing that saves us in each of these cases is citizens that those really who have their rights threatening push back not through courts. Courts in fact, often make things as they do now worse, but through subsequent presidents, through forming these democratic constitutional constituencies that get behind recovery. Presidents who put the norms back. So for me, Adam's threat, I mean, it's interesting, right, because it's not that he's a bad person or a criminal in any way, but it's that he has a philosophy of the presidency in particular that he gets from Montesquieu. And scholars like Gordon Wood have pointed to this. It's kind of well known part of how he thinks about the presidency, that it really isn't part of democracy. It's not subject to popular sovereignty. It's about stability. And what that means when it comes to free speech is that as was true of the common law, that you really aren't free to criticize the President at will. So when it comes time to the question of sedition and whether or not to pass a sedition act and to use it, it really coheres well with his philosophy that there's a limit on free speech when it comes to criticizing the President and the sedition act, which really makes it a crime to criticize the President of the United States. And we know now too that there were many more prosecutions than historians had thought at first. And many of them are about criticism of the President, the kind of thing that you would see on Saturday Night Live today and that we accept. And those criticisms, Adams thinks they're out of bounds. In the same way you can't criticize a monarch.

[Leah Littman]

So you mentioned Patrick Henry suggesting that a criminal president could destroy the country. Was he the original Cassandra? Because of course, he also said give me liberty or give me death, which could also be about the court's rollback of civil rights and civil liberties. So sorry, side note.

[Corey Brettschneider]

So Lindsay, the book covers the tenuous and uncertain nature of the President's role. And you specifically focus on Adams relationship with his Cabinet. Some of the disputes between the President and the Cabinet happened about Matters that today we would treat as though they are obviously matters of exclusive or core presidential powers. But that wasn't necessarily the case at the founding or in the first couple of administrations. So one issue that you highlight is the dispute about the president's role with regard to the military. And John Adams became president after George Washington, who had literally led the Continental army, and no one questioned Washington's leadership over American forces as commander in chief. That wasn't the case for Adams, who did not have the same kind of military provenance. And indeed, Washington himself, when asked to serve as lieutenant general of the army in the event of an invasion by France, asserted the power to determine the officer ranks rather than allowing the president as commander in chief to do so. So can you say a little bit more about that? How did we get to the point where it is natural and obvious that the president is the commander in chief and has that kind of purview over the armed forces?

[Lindsey Chervinsky]

Yeah, that's a great question, and I commend you on picking two scholars who have, like, completely divergent views of Adams. It'd be pretty. I'd love to get into this edition, act a little bit more, because I have a very different interpretation, but in terms of the military, you know, so this was one of the questions that was. Was really a result of Washington's stature. And when Washington said something, it almost carried constitutional weight because people could not really argue with him because of the risk of their own political reputation. So when Washington said he wanted Alexander Hamilton to be his number two in the army, even though that prerogative would have gone to any other president or would have gone to him when he was president, John Adams couldn't really do anything because if Washington threatened to resign, his presidency was going to be kneecapped. So it wasn't actually really until much later in the presidency when Washington was no longer alive and that threat was sort of not hanging over people, that the power of commander in chief started to actually crystallize.

[Corey Brettschneider]

One of the really interesting exchanges that you highlight is, again, a challenge over the Cabinet where Adams confronted a dispute over foreign policy. Adams had a Secretary of State, Pickering, and other members of his cabinet, and you describe them as a group known as the Essex Junta. And it's literally trying to steer the country toward war, while Adams as president is trying to secure peace. What is generally, Lindsey, the flavor of these kinds of disputes, both on the domestic side and in foreign policy, between the president and his Cabinet?

[Lindsey Chervinsky]

Well, I think there was a real question about what was the role of the Cabinet secretaries in the executive branch, were they part of like a shared committee, like we might think of as the British Cabinet today, where you have a Prime Minister who's sort of first among equals but each has a constitutional role or are they really truly subordinate to the President? And with Washington it hadn't been a question. But with Adams, with, especially with Secretary of State Pickering, who by the way was one of the all time worst Secretaries of State, he really believed that he was always the smartest person in the room and he knew better. And he believed he was entitled to pursue his own policy. And it wasn't until spoiler alert, Adams eventually fired him that that sort of test came pushed to shove.

[Corey Brettschneider]

He should have been on a faculty.

[Lindsey Chervinsky]

He really should have. He would have fit in.

[Leah Littman]

So stepping back, you know, the book recounts all this conflict between the President and his Cabinet and how members of the Cabinet thought it proper that they would be the ones to direct national and foreign affairs rather than the President. You know, they did not conceive of themselves as just executing the President's will or being in arm of the President, exercising the President's executive power. So asking you to kind of generalize from this, which I know is always a little bit tricky, you know, what do you make of what this says about the originalists bona fides of the unitary Executive theory which imagines that the President exercises and possesses all executive power and that all executive officers are merely the President's delegatees and must be subject to Presidential control?

[Lindsey Chervinsky]

Well, generally the idea that you know, the founders thought that is a sentence that is usually a red flag that whatever anyone is going to say next is a load of crock because the founders rarely agreed on anything except for one thing which is that the President was not supposed to be king and the President was supposed to be responsible to the rule of law and responsible for his actions and after he left office was just an average citizen. And Washington and Adams were so meticulous about demonstrating this principle through really symbolic action. And the Cabinet, while ultimately the resolution of Adams presidency was that indeed the Cabinet is subordinate to the President, the President is not above Congress, the President is not above the Supreme Court. And both Washington and Adams had a very healthy respect for the other branches and the checks that they were supposed to place on the President.

[Kate Shaw]

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[Corey Brettschneider]

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[Lindsey Chervinsky]

Corey, let's bring you back into this conversation, and let me ask if you can frame for us your view. And Lindsey will definitely give you a chance to interject with yours of the Alien and Sedition Acts and just maybe the. The laws themselves and the, you know, kind of foreign policy backdrop. And then we'll actually get into the prosecutions and responses.

[Melissa Murray]

They're crafted in large part in response to a newspaper editor named Bache, who had criticized not just Adams, but also Adams family. And that draws the ire of. Of Adams wife Abigail Adams. And I think one of the most important things legally to think about is how they're crafted. It makes it a crime to criticize the President of the United States, but it's not a crime under the way they're written to criticize the vice president. Now, why would you craft a law like that? They're gerrymandered essentially as a shutdown of the opposition party.

[Leah Littman]

This has all sorts of wild echoes of January 6th, right? It is illegal to criticize the president, not illegal to criticize, and other things the vice president.

[Melissa Murray]

Yeah. I mean, the other echo is as you start to look into these cases, one of the most interesting ones is a prosecution Attempted prosecution of an editor named Dwayne, who, what he really does is just report on and publish a bill that would allow the Federalists to deny the certification of electoral votes. And that draws not just the ire of the Federalists, but an attempted prosecution. And there's a long story about that. So it really is not. I think a lot of times it's seen as a sort of benign moment. But the more that you emphasize not just free speech and the limits of it, but the right to dissent, the right to criticize a president as essential to democracy, the more you see it for what it was, which was a threat to the possible development of multiparty democracy, including a right to criticize the President of the United States.

[Corey Brettschneider]

Right.

[Lindsey Chervinsky]

And just to say, in terms of the gerrymandering of the statute, if I'm right, it criminalized criticizing the President and Congress, both Federalists controlled at the time, but allowed the criticism of the Vice President, who at the time is Democratic Republican Jefferson. So it is really, on its face, an effort to stymie the development of inter party competition as parties are kind of developing as you know, a meaningful force in American politics and governance. Okay, so then maybe before we get into the specifics of some of the prosecutions, Lindsay, how is your view of the kind of animating purpose of these statutes different?

Well, I totally agree that they are completely political in their intention and their purpose and in their execution. Where I think we differ a little bit in our sort of assessment of it is the presidency was not the main governing force behind legislation in the 1790s, and Congress, especially the extreme wing of the Federalist Party was. And so the extreme Federalists were the ones that were pushing the legislation, were writing the legislation, were sort of whipping the votes for the legislation. And our old friend Secretary of State Timothy Pickering was the one who was really responsible for overseeing the prosecutions. Which is not to say that Adams doesn't deserve blame for signing the legislation. I do think it's the dark mark on his presidency. If I may, there's one other piece that I think is really important. At the time, there weren't the sort of carve outs of First Amendment protections that we honor today, including things like, you know, you can't shout fire in a crowded theater or speech that is intended to provoke violence is not protected. And at the time, newspapers were calling for violence and there was violence in the streets. Which is a really good lesson for us today, which is that you can have a real justifiable fear, but you can't allow it to be perverted for political reasons, which is what the arch Federalists did.

[Corey Brettschneider]

So Corey, what do you make of that characterization on your telling? Some of the editors and publishers that were targeted under the Alien and Sedition Acts were critical players in ensuring that Adams did not win the election of 1800. And weirdly, Thomas Jefferson, who was Adams's rival, quietly supported their efforts and their criticism of Adams. So is there more to this story?

[Melissa Murray]

Well, I think Lindsey's correct. The right to dissent certainly is not established. I think what the right to free speech according to the Federalists, all it really was was rights against prior restraint. And that that idea combined with the idea that the President was not an absolute monarch, but that there were analogies between the protection of the President and the protection of the monarch, leads to the idea that there isn't a right to dissent, a right to criticize the President. But the core cases of the prosecutions and the ones, the most important ones that I shut focus on are criticisms of the President. And of course, the prosecutions come as our structure of government presents from the executive branch. So what are they? They include the criticism of the President's by bash of the President's family. They include a criticism of him as a kind of two faced, but used in a way that is offensive to today's ears but still political. That he was a hermaphroditical figure is what one of the editors says. And then the most important prosecution to my mind when we're thinking in the context of Trump, is the prosecution of Dwayne for what? For basically unfoiling and doing what the press needs to do, which is reporting on an attempted self coup. That really when you look at John Eastman's plan, in many ways it echoes that the attempt to deny certification of electoral votes. So in sum, what the Sedition act was, it's seen throughout American history BY People like McCullough as kind of benign. But what it really is is the shutdown, attempted shutdown of the opposition party.

[Leah Littman]

So I want to return to the efforts to modify the certification in a little bit just because of the parallels. But Lindsey, since you brought up the extant mob violence and political violence that was happening at the time and the relationship between that and the sedition acts. This is also part of a larger story that your book tells about mob violence, political violence and the precariousness of democr in the early days in the United States. So the book tells a story from 1798, one of the events in the lead up to the passage of the alien and Sedition acts, about a 10,000 person mob appearing in front of the President's house to protest eventually dispersed. But people woke up the next morning expecting to find people murdered and the city in flames, and they didn't. Also, a large mob assembled in the lead up to the certification of the 1800 election because of rumors that Federalists plan to manipulate the electoral college count. So can you say a little bit about this terrain and what, if any, lessons it might have for us today?

[Lindsey Chervinsky]

Well, I think, you know, these stories tend to get swept under the rug because they didn't turn into the horrific, violent episodes that we do tend to remember. And it's useful to us to not remember how close our republic has come to almost falling apart at several different moments, especially if we're talking about a certain narrative about, you know, like the Revolution of 1800, which was Jefferson's phrase to describe the election of 1800. But I think the main takeaway is that the American people have always been a fairly violent people. And the 1790s especially was a very violent time. Newspaper editors were regularly pulled out of their offices and beaten in the streets. There were sort of roving bands of militias that were armed that affiliated with certain political parties and were often organized by ethnic group. And this, this clash outside the President's house occurred at a time when there weren't security gates, there was no secret service, there was no nothing to protect the President. And same is true with Congress in 1800 when a mob gathered outside of the sort of in construction capitol, there was no security force, there were no people to call up. And it was really a remarkable feat that it didn't turn into something much worse. But in particular, the mob in 1800 was threatening to kill anyone who took the presidency other than Thomas Jefferson. And I think those echoes are just unbelievably extraordinary that we were there before and what got us through was civic virtue or people putting the Constitution above their own political interests, which is hopefully a good model for what we would ask for in the future.

And Corey, can I ask whether I'm right to suspect that you might characterize some of these mobilizations in a different light, not denying that there was a threat of violence underlying them, but that they should be understood as at least in part demonstrations of popular opposition to threatened official repression or lawlessness, and that the mobs in some sense are the ones valorizing the Constitution or you know, maybe not exclusively, but in part?

[Melissa Murray]

Well, I guess I'd say about it that violence and the threat of violence is often used throughout American history to justify the shutdown of speech. We've seen that often you see it during war, for instance. And I think you just have to look at whether or not it was a justified kind of threat, at least in the context of the Sedition act and Adams party's actions and what the editors were actually saying and the thing that they were prosecuted for wasn't actually threatening to kill the president or threats of violence. It was what we would think of as kind of benign, everyday important criticism. And so what's so important about the moment is, and Lindsey, I thought was exactly right to say this, the idea that, that the right to speech is the right to dissent isn't yet established. I think we owe that to the editors who stood up to this Sedition act, who used their trials as a way of advertising the notion that the right to dissent can be peaceful. So that's what I'd emphasize. The hero in many ways of that period, of that cluster, the recovery comes from James Madison, who even during the War of 1812, when there is a real war on, and has lots of calls for the shutdown of dissent and a new Sedition act even refuses to do so, in fact, champions opposition editors like Hanson, who were subject to mob violence at that time. So violence, I think we just have to be a little careful about it because it's often used to justify the shutdown of civil liberties. And I think you're about to see that in the coming presidency for sure.

[Lindsey Chervinsky]

I totally agree with the characterization of Madison as sort of like the, the hero in this story, because what's really interesting is Jefferson during his presidency, encouraged a lot of the states to actually to go after their own sedition cases, whereas Madison, I think, had a much more sort of pure ideological commitment to free speech.

[Leah Littman]

So I'm glad you mentioned that, Lindsay, because if James Madison was in some ways a hero, John Adams also did some good for the country in taking a longer term institutional picture. There were interesting tidbits in your book that add, I think, more color to the images we have about certain figures in American history. So you've already mentioned Alexander Hamilton. You know, in the book he's kind of depicted as this conniving, meddlesome guy who threatened the future of American democracy. He's one of the people who views the cabinet as the entity governing the nation. And when it appeared that the Federalists were going to lose an election, he proposes that New York change how it selects its electors through committee. That would basically bypass the popular vote in a state when it looks Like New York will select a pro Republican slate. You know, pretty close to a coup, as you note. And then Jefferson, also a complicated figure. You know, he presses the resolutions against the Alien and Sedition Acts farther than James Madison would have, urging some role for state nullification, which of course then gets picked up in the lead up to the Civil War by the American Confederacy, but then turns around and encourages Sedition act prosecutions, you know, when he is president. And in the lead up to the uncertain election of 1800, he basically threatens that Republicans will use violence depending on what the Federalist Party does in the lead up to the election and its aftermath. So, I guess what should we make of these richer, more nuanced and highly complicated pictures of these key figures in American constitutional history? History.

[Lindsey Chervinsky]

Well, I love that you highlighted all of those different elements. And I think it's so important because these figures are, you know, real and human and fallible, and they're not perfect. And sometimes they do things worth celebrating and sometimes they do things that make us really want to cringe or hide under the table because they come so close to throwing away this project that they had worked so hard and in some cases literally bled for. But, you know, I think what I take away from certain of these moments, especially the ones, you know, with James Madison where he's sort of tempering things and Jefferson, I do actually give him credit at the end of the book for his embrace of unity in his inaugural address, is they often recognize when they come too close to the brink and they try and step back and fix it. And so they recognize where things have maybe almost gone very badly and try and rectify that situation. And so, you know, Jefferson is the first to say we are all Republicans, we are all Federalists, and now we expect most presidents to try and issue a unifying call in that way. But it was revolutionary in 1800 when he was the first to do so.

[Leah Littman]

Can I just ask a quick follow up, which is do you have any kind of speculation about what makes them realize they might be going too far just so we can maybe internalize that and apply it in a given situation?

[Lindsey Chervinsky]

I can't imagine why you would be asking. Yeah, you know, I think. Well, with, with Jefferson, what I think was for him was the realization point was by the time Congress actually decided on him as the third president, because of course, the election was thrown to the House of Representatives, he was about two and a half weeks away from his inauguration. And had Congress gotten to the inauguration date and there hadn't been a resolution, I genuinely don't know what would have happened. And I think that they didn't either. I think that they suspected there would be armed force involved. And then you're looking at a situation that looks perilously close to the French Revolution. And for all that he kind of tried to put blinkers on about the French Revolution, I do think they recognized that the, the Constitution and the Republic was fragile because they had just built it. You know, we tend to, I think, think that, oh well, of course it's going to survive. It's been around for almost 250 years. We'll be fine. They did not think that. And so I think that, you know, sort of reality check about the fragileness of this, this institution was so essential to them being able to do the right thing.

[Kate Shaw]

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[Corey Brettschneider]

You also note that Adams was a particularly good voice to have in this moment because despite his many flaws as a man and as a president, one thing that he did repeatedly was to prioritize country, and again a fledgling country ahead of his own personal interest. So you note his pardoning of individuals who had been convicted of treason when he had doubts about how the court was interpreting and defining the term treason. And he did this even where his party might seek political retribution against political opponents using these statutes. He pursued peace with France, even though there were those in his party who were very hawkish on the question of war with France. And again, as you've noted, he most profoundly rose to the occasion in this transition of power. He's the first president to lose reelection, yet he concedes gracefully and is willing to cede power to Thomas Jefferson, even though Jefferson's own election is one that gets thrown to the House of Representatives and isn't a clear cut election electoral victory in the way that we might think of it. But he accepts this. Can you say more about just how he was truly remarkable for this moment? And perhaps we haven't appreciated in the fullness of history what made him a particularly good leader for these times that were marked, as you say, by incredible fragility.

[Lindsey Chervinsky]

Absolutely. Well, in a lot of ways I think he was sort of the ideal person for this moment because he was willing to be unpopular if he thought he was doing what was right. And he had first demonstrated that in the 1770s when he represented the British soldiers after the Boston Massacre. And so it takes a sort of certain perverse satisfaction, like a willingness to kind of stick it to your own party if you think you are doing the virtuous thing. And he did that at several points, as you said, throughout his presidency or.

[Leah Littman]

It means more public defenders as presidents.

[Corey Brettschneider]

Other possible lesson, this is big Associate Dean energy, I'm not gonna lie.

[Lindsey Chervinsky]

But I think most importantly, when I came to the election and then the transition of 1800 to 1801, he had such a long term view because his entire life project had been creating this experiment. And so he was willing to practice restraint. He said he would have nothing to do with a lot of the shenanigans that his fellow Federal Federalists were up to. He wouldn't participate in an attempt to basically steal the election. He told Jefferson he believed he was the rightful winner. So he acknowledged the results of the election. He then, once it was clear Jefferson was going to win, was quite instrumental in making his cabinet participate in what we would consider to be sort of briefings and the, the required, or what we would hope to be required transition activities long before it was mandated by law. And lastly, as you said, he lost and he went home. And this was the age of Napoleon. Napoleon did not go home. Napoleon, you know, came back from islands in the middle of nowhere. And he often gets a bad rap for leaving before the inauguration. But that tradition wasn't established for another four and a half decades. And he genuinely believed, I think, that his presence would be a distraction and would undermine that turning of the page. And so for me, losing and going home was a radical thing to do.

Lindsay, before we leave, the topic of John Adams, is there anything you want to add about the role of Abigail Adams in this kind of early shaping of the office of the presidency? She's obviously a very significant figure.

Abigail is, I think, the most fun part of this book. She is such a savvy political observer and can totally see exactly what was happening and what sort of machinations everyone was up to. She had a very good sense of someone's character, character. And she could write a cutting turn of phrase like almost no one else. She was by far his most important advisor. Occasionally that did lead him wrong, especially around the Alien and Sedition Acts. But largely, I think she encouraged him to pursue what was best for the good of the nation and lent him really essential support when it came to things like foreign policy and the transition. And what I love about her is that she was recognized as this political thinker by everyone at the time. So it wasn't just him respecting and appreciating her. She was very much understood to be this person.

[Corey Brettschneider]

So, Corey, if we could pivot from the Adams presidency, which apparently, like so many other great presidencies was supported by a really indispensable woman who got very little credit. Let's pivot to modern day presidential history. There's a theme in your book about presidents who threaten the constitutional order or core constitutional values, and these ordinary individuals who respond and stand up to them and sometimes best those presidents. I would really love to hear about your account of the conflict between James Buchanan, that famous bachelor president who probably was terrible because he didn't have a great woman, he was elected president in 1856 and he led the country into civil war, and the individual who stepped up and really challenged him to be a better president, he failed on many occasions. But to be a better president was Frederick Douglass.

[Kate Shaw]

So can you say a little bit.

[Corey Brettschneider]

More about the relationship between Buchanan and Douglass?

[Melissa Murray]

Yeah, it's a moment in the same way that the editors, I think, really deserve credit for fighting back against these sedition acts and establishing the idea not just that there's some general right to free speech, but really a right to dissent that includes the right to be free from criminal punishment for our opinions. The contribution to American democracy that Frederick Douglass made, I think is just unparalleled, that Buchanan is pretending to be a George Washington figure, that he's neutral when it comes to the Dred Scott case in particular, which, as your listeners know, essentially denied black Americans nationally any rights under the federal Constitution. And at the time, there's a question, how do you fight back against Dred Scott? And the most common view of abolition is led by the Garrisonian wing that says, look, this is evidence that the entire Constitution just has to be trash, that it's really a pact with the devil, that it's inherently evil. And Douglass is the one who says, no, it's not the problem of Dred Scott. And I think this resonates in particular with this podcast, that it's really the American Constitution's not the problem, it's these false interpretations of it. And that the key is to really reclaim the Constitution as against the Dred Scott court, which, by the way, Buchanan turns out, as Douglass suspected to have lobbied for this evil decision. And the way to fight back is to look for its principles. The declaration, the idea that, for instance, as Douglass often says, that the preamble says we the people, not we the white people. He talks about the ban on the corruption of blood that you can inherit, the punishments of parents. What is that he says, but an anti slavery principle. So he really teaches America how to read this document as one of democratic principles, meaning principles that guarantee a right of equal citizenship. In a multiracial democracy.

[Corey Brettschneider]

And interestingly, Douglas interest in the Declaration of Independence as an elaboration of what the Constitution means actually gets worked into the 14th Amendment and is part of that particular provision of the Constitution. Did Douglass have a similar kind of relationship with the next three presidents, Abraham Lincoln, Andrew Johnson and Ulysses S. Grant?

[Melissa Murray]

I think there's a parallel that you get a kind of pattern of crisis in the Buchanan president presidency with the combination of Buchanan secretly teaming up with the court and the idea that this constituency that's really led by Douglas prevails upon subsequent presidents to recover a democratic idea of the Constitution. So in Lincoln, I really think Douglas teaches Lincoln how to read the Constitution. Lincoln thinks, for instance, that the Fugitive Slave act has to be enforced, that Dred Scott is wrong, but that it has to be recognized, at least in its narrow holding. And Douglas all along is the one that's saying, and also Lincoln is saying the war is not about slavery. And Douglas all along is pushing back, saying no, we the people means this war has to be a recovery of the basic human dignity of the enslaved. That the Declaration isn't just some abstract thing, but that it is an anti slavery principle. Lincoln doesn't have that early in his presidency, although he comes to it by his last speech and by Gettysburg. And so the story I tell really is of Douglas teaching Lincoln how to read the Constitution. The real hero of that period is Ulysses Grant, who really makes good on Douglass commitment to equal citizenship, not just in supporting the 15th amendment, but in supporting the Enforcement act, the shutdown of more than a thousand white terrorists throughout America who were trying to interfere with the basic rights of black Americans, including the right to free speech.

[Kate Shaw]

Speech.

[Leah Littman]

So let's talk briefly about Woodrow Wilson, who you describe as wholly committed to a constitutional vision predicated on white supremacy and fundamentally hostile to multiracial democracy. Once again, does this sound familiar? So Wilson refused to prosecute lynchings. He screened Birth of a Nation in the White House and resegregated the federal workforce. Your discussion of Wilson focuses on two characters who spent their lives battling in various ways, Wilson's modernized version of white supremacy. And those two characters are Ida B. Wells and William Monroe Trotter. Could you tell us about them?

[Melissa Murray]

Sure. I went into the archives in Princeton and really wanted to know, and I think listeners will find this part interesting, what was Wilson saying in all these classes about consequences, Constitutional law? We know he showed Birth of a Nation in the White House. And, you know, I wanted to know more about what the philosophy here was and what you Find there is that really it is a deep philosophical commitment, not just to white supremacy, that's not new, but to the combination of nationalism and white supremacy. And so for Wilson, really, unlike many of the other presidents, many of the framers, he thinks of the President as the first among equals and devoted to a kind of German ideal of national efficiency. Now, what's in the way?

[Leah Littman]

Better than the original German?

[Melissa Murray]

Exactly. You can't make this stuff up. What sounds to him like, what is the thing that he thinks gets in the way of national efficiency? It's what he calls friction. And friction is sort of the enemy of the thing that the President is supposed to pursue. Now, what does he mean by friction? He means integration. So when he's confronted in the White House by Ida B. Wells and William Monroe Trotter, he says, you're creating friction. You're advocating for friction. All I'm trying to do is reduce, stop existing. Exactly. And so this is a deep commitment. You see it in his textbook, you see it in his lectures, and of course you see it in his actions. He resegregates the federal government. And that's the thing that Ida B. Wells and Trotter are calling him out for. And in real time, they don't prevail. But the point of my book is they create an agenda, a legacy that ultimately other citizens will pick up later in the 20th century.

[Lindsey Chervinsky]

And the book I will just commend to readers that Corey really did go deep into the archives at Princeton. And I think the book offers a very unsparing account of Wilson, who I think is often portrayed as a more complicated figure. And to some degree, you say it's really not that complicated. If you've actually gone back and read decades of his lecture notes, as you did, there was also a note in the book that I. I did not. Other listeners might have known this. I either didn't know or had hadn't remembered that Wilson actually won a previously unprecedented percentage of the black vote for a Democrat. Right. At the time. The Republicans are the party of civil rights and racial equality, so he won something like 30% of the black vote. Obviously, this is in a. This is pre Voting Rights act, so obviously those numbers are skewed. But all this was on kind of vague promises of civil rights enforcement that were obviously not something he was ever going to deliver on. And since we're noting his parallel, or.

[Corey Brettschneider]

Maybe he was thinking of civil rights for disenfranchised Southerners. Kate, it's just how you frame the civil rights.

[Lindsey Chervinsky]

He was just. He Was vague enough that people could hear what they wanted in his promises is the point I am making.

[Leah Littman]

Yeah, he was on the pioneering end of the new minority, the conservative white men from the south. Right.

[Melissa Murray]

And it is true that trotter, you know, is duped in the beginning that at one point he supports him. Right, supports him. And, you know, that's part of the story of the book, is the realization that this sort of supposed hero who stands for international democracy is somebody who really does in a fundamental way threaten the possibility of recovery. Not just of recovery, but that he's making things so much worse because of the nationalism. It's the growing. The federal government at the same time is advocating for segregation. And as the federal government is growing, he is segregating it. And so he's really spreading these ideas. And it's so much worse. I mean, I talk about in his speeches, his use of the term hyphenate to talk about disloyal Americans, by which he means black americans, Italian Americans, and really in the midst of red summer, stoking violence, when a president's obligation should be to quell it.

[Kate Shaw]

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[Lindsey Chervinsky]

Okay, so we've talked so far, Corey, largely about kind of the presidential adversaries or antagonists who are journalists and activists. But I wanna pivot now to the Nixon part of your book because the Watergate grand jury is of kind of a different character. And so as we start to move the conversation closer to the present day, what role in your telling did the Watergate grand jury play in the fall of President Richard Nixon?

[Melissa Murray]

I was honored to talk to two of the living grand jurors on the phone during COVID Incredible to get get these people on the phone, including Ethel Peoples, who had been a low income worker who found herself in a position where she was in a position to vote whether or not to indict the President of the United States. Now of course they didn't carry through that indictment, but there was a straw poll in which they made the decision. And as one of the jurors, Elaine Edlon, puts it, many of them raised two hands to emphasize how much they saw enough evidence that they wanted to indict Nixon. Now why didn't they do it ultimately? Leon Jaworski of course, is often portrayed as a hero prevails on them to make a deal, essentially which is that they'll pass on the information that they've gathered to Congress for impeachment. That's known as the roadmap. They'll go to court to get the remaining tapes, which they do. That's US Versus Nixon. And Philip Lacovara argues that case, who gave me a lot of the details for this chapter, in addition to the grand juror and the information that's come from FOIA requests. But the most important part of the deal is that after he resigns, and no one doubted, by the way, that it was constitutional to do this, they would indict the President, then former President of the United States. So when that happens, why doesn't it happen? Well, we know that there was a meeting between Jaworski and Haig, and soon after, the pardon follows. And my view, unlike many, is that the pardon was not a good thing for American democracy.

[Leah Littman]

It hid so weird because Brett Kavanaugh informed us that the country just celebrates every year the day for pardon Nixon. This is practically a national holiday.

[Melissa Murray]

Yeah. And if you want to show that somehow this crazy immunity case, which is made up out of thin air, is a good thing, you would want to celebrate this pardon. But I'll note, and as Kate's noted, too, and it's, and I believe in the New York Times, the pardon assumed and said that former presidents were not immune. So nobody was thinking that there was immunity for Nixon once he left office. And that was the deal that was made. They're also convinced not to indict. With a really horrific argument by Jaworski. He says if you indict him now, he's going to surround the White House and have a self coup. Nixon, and that among other possibilities, including the fact that he might have immunity as a sitting president, convinces these grand jurors to at least temporarily back off. And to my mind, it was the wrong decision. We really should have seen Nixon indicted and prosecuted like any other person, and we would have had a very different relationship to the presidency. And so unlike the other episodes, Jaworski's.

[Leah Littman]

Argument sounds a lot like Sam Alito during the oral arguments in Trump versus the United States, in which he speculated that the availability of criminal liability against presidents would lead presidents to do coups and refuse to leave office.

[Melissa Murray]

Right. It's a total twisted logic that Alito and others have. And you know, it's. It's the idea that we would defer to a president who might engage in a coup. I mean, I find that horrendous. It's exactly the opposite lesson that we should be drawing.

[Corey Brettschneider]

Well, speaking of all of that, Lindsay.

[Kate Shaw]

Let'S bring you back in.

[Corey Brettschneider]

We are standing at the precipice of Donald Donald Trump's second inauguration. This is only the second time in the history of the United States that a president will have served two non consecutive terms. The first was Grover Cleveland, and never thought we would be doing the Grover Cleveland again, but here we are. Your book really focuses on Adams's role in instantiating a set of norms around the peaceful transition of power, even in circumstances where there are really pitched political battles over elections and the direction of American democracy. Ultimately, Donald Trump, the first time around in 2020, peacefully departed. After a little cuckoo kachu, he ultimately left and allowed Joe Biden to be inaugurated, although he very clearly declined to attend that inauguration, a departure from an established norm. Now he's returning to power, and he is considerably more aggrieved and far more prepared than he might have been in his first term. Are there any lessons from the history that you've canvassed for this book that might guide us as we Prepare for Trump 2.0?

[Lindsey Chervinsky]

Wow, that's a big question. Well, you know, I think. Well, I think one of the lessons is, and this isn't necessarily from the book, but I think it's probably something that both Corey and I can talk to you about, work in general on the presidency is that presidents learn. Presidents learn how the executive system works. They get better at being president, or at least more effective at being better.

We might not.

Important, important distinction they get. They get more effective. They get better at working the system as they go along. And I don't think that Trump is going to be any different from that. In fact, we saw even in just his first term, the difference between year one and year four was significant. So I think that's why.

[Leah Littman]

Are you saying we finally are going to get Infrastructure Week in the second Trump term?

[Lindsey Chervinsky]

I would never make that promise.

[Leah Littman]

I'll hold that.

[Corey Brettschneider]

If by Infrastructure Week you mean the rescission of the 14th Amendment, then correct, that is what will happen.

[Lindsey Chervinsky]

Yeah. It is amazing how the 14th Amendment is all of a sudden just a figment of some people's discretionary. Yes, exactly, discretionary. You know, I think a couple of the lessons are at moments when things were extremely tense, the people who made a difference aren't necessarily the names that we would remember today. Sometimes they're just congressmen who were in their 30s and early 40s who are making compromises across party lines to try and come up with a solution. And so what that tells to me is that people should not feel defeated by a threat because I think it is possible for individuals to make a difference. Corey's work certainly attention attest to that as well. For me, the big lesson about that I took from this book was that institutions are really easy to tear down. They're really hard to build back up. And so no matter how flawed an institution is, it's worth trying to improve it and defend it as opposed to trying to build something new from scratch because they knew how hard that was to do and they didn't want to do it again. And that I think is a useful lesson.

[Corey Brettschneider]

Yeah.

[Lindsey Chervinsky]

Let me just say something. I've had so many thoughts about kind of institutions and people who sometimes have thought of themselves as institutionalists and you know, are sort of really questioning whether that's something that a label that is worth kind of retaining. And I think being critical minded about institutions right now is actually really, really important. But I also think that institutions and norms which are related but not identical in some ways, like that's all the Constitution is. And I don't know if it's possible to say, well, we are going to have to abandon institutions because they won't save us without also abandoning the Constitution. And maybe, you know, you want to not align yourself with sort of the Frederick Douglass wing of the Constitution actually is worth fighting for and saving. And that's a reasonable position. But I am having a hard time figuring out how to distance ourselves fully from institutions without essentially also relinquishing the Constitution. But obviously there's, there's more to say there. But, but maybe Corey, you know, some general thoughts from you. You, I think, as the conversation has made clear, you argue throughout the book that carefully reading history does suggest that what we think of as these more institutional, traditional, institutional checks on the President, impeachment, or the suprem say haven't been particularly effective. But much more effective have been the responses of ordinary citizens, journalists, activists, members of grand juries. So what lessons does all of that hold for the period we are entering upon?

[Melissa Murray]

I mean, I think the lesson of the current moment, which as you say, is that the Supreme Court is not going to save us in this moment. And we have a president who has basically proposed on day one to violate the most explicit part of the text of the fourteenth Amendment of the Constitution as a whole, the guarantee of birthright citizenship. So given that the institutions are likely not going to be meaning the Court, the presidency, of course, and Congress, which is controlled by the President's party, are not going to be what saves us? Why not abandon the Constitution? And I think my thought in the book is that it's because when you really look at American history, the real heroes are citizens who read the Constitution for themselves and used it to claim their own rights against and standing up to authoritarian presidents or presidents with authoritarian ambitions. And they've done that not by litigating. Even Brown, I say, is not as important in the recovery from Wilson as the Truman committee and the 1964 Civil Rights act in particular. The thing that really did even more than Brown to desegregate America's schools, those were things that were achieved by citizens, famously in some cases and less famously in others, standing up to authoritarianism and prevailing on subsequent presidents to recover. So it's so essential in this moment that we claim the Constitution for ourselves and we claim a democratic as opposed to an authoritarian Constitution.

[Leah Littman]

Lindsey Chervinsky and Corey Brettschneider, thank you so much for writing illuminating rich books and for a conversation that, while of course it is bleak and concerning in some respects, also has notes of optimism and how to think about the next four years as we are thinking about how our Constitution and our democracy is going to function under this administration. So thank you both.

[Lindsey Chervinsky]

Thank you so much for having us. I really appreciate the conversation.

[Melissa Murray]

Thanks so much. Really enjoyed it.

[Leah Littman]

And we should reiterate that their books are making the presidency, John Adams and the precedents that forged the Republic and the Presidents and the people, five leaders who threaten democracy and the citizens who fought to defend it.

[Unknown Speaker]

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[Lindsey Chervinsky]

Past.

[Unknown Speaker]

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[Corey Brettschneider]

Videos Strict Strict is a Crooked Media production hosted and executive produced by Leah Lippman, me, Melissa Murray and Kate Shaw. We are produced and edited by Melody.

[Kate Shaw]

Rowell and Michael Goldsmith is our associate producer.

[Corey Brettschneider]

We get audio support from Kyle Segland and Charlotte Landez and music is by Eddie Cooper.

[Kate Shaw]

We get production support from Madeline Harris.

[Corey Brettschneider]

And Ari Schwartz and Matt De Groat is our head of production. We are very grateful for our digital team, Phoebe Bradford and Joe Matusky, who gets all of this into all the.

[Kate Shaw]

Different platforms that you look at.

[Corey Brettschneider]

And if you are interested in other platforms, you can subscribe to strict scrutiny on YouTube where you can catch full episodes of us in the flesh. Find [e-mail] strict scrutiny podcast and if.

[Kate Shaw]

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[Corey Brettschneider]

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[Unknown Speaker]

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