THE LAWFARE PODCAST: Lindsay Chervinsky on “Making the Presidency” Original Air Date (Archive): September 23, 2024
Lawfare Archive Episode Date: November 11, 2025
Host: Benjamin Wittes
Guest: Lindsay Chervinsky, author of Making the Presidency: John Adams and the Precedents that Forged the Republic

Episode Overview

This episode revisits a pivotal conversation between Ben Wittes and Lindsay Chervinsky, focusing on John Adams’s presidency and the foundational precedents that shaped the office of the President in the early Republic. The discussion explores Adams’s defense and reformulation of presidential power—especially national security authority—in the face of intense inter- and intra-party conflict. Chervinsky details how Adams’s presidency, often overshadowed by Washington and Jefferson, set crucial norms around the peaceful transfer of power, executive authority, the role of the Cabinet, and the use of presidential prerogatives such as firing Cabinet members and granting pardons.

Key Discussion Points & Insights

1. The Peaceful Transfer of Power and Adams's Place in History

• Adams’s Role in the Peaceful Transfer:
  • Chervinsky argues Adams should be seen as a hero of the notion that “American power can transfer without violence” ([07:10]).
  • Adams’s efforts behind the scenes—encouraging successors, facilitating cooperation, and ensuring continuity—were pivotal:

    “These are small things that often happen behind closed doors. But as we've learned, especially over the last several years, none of those things...were written down...so the character of the transition...had to start from scratch.” — Lindsay Chervinsky ([07:26])

• Washington vs. Adams in the Transition:
  • Washington’s retirement was critical but “the person who's coming in plays just as big of a role ... Adams is the common denominator in those first two and really sets the tone for what they're going to look like.” ([07:54])

2. The Cabinet and Executive Authority: The Institutional Vs. Personal Presidency

• Transition Challenges:
  • Adams inherited Washington’s Cabinet, more out of necessity than choice, and this created immediate tests:

    “There is a kind of implicit question in there who should be running things? And the Cabinet really felt like the answer was them.” — Ben Wittes ([09:24])

• Personality vs. Institution:
  • “No one else came into the office—and I don't think anyone else ever will—come into the office with the same sort of unparalleled, unquestionable right to authority. ... All of Washington's decisions are very much theoretical or hypothetical for the people that follow because they are not going to have that type of unquestioned authority.” — Chervinsky ([10:45])
• Cabinet as a Potential “Committee Executive”:
  • The Cabinet, led by men like Timothy Pickering, began treating the presidency as more of a committee—especially when Adams, less revered than Washington, took office. ([13:55])

3. Party Factionalism and the “Arch Federalists”

• Hamilton’s Intrigues:
  • Ironically, Hamilton, exponent of a strong presidency (Federalist 70), worked to undermine Adams through the Cabinet:

    “All of these cabinet officers are ... writing advice for the President that is secretly drafted by Hamilton in an all but explicit effort to undermine the authority of the President.” — Ben Wittes ([15:02])

• Pickering, Personality, and Polarization:
  • Pickering, described as fit for the Spanish Inquisition more than diplomacy, spearheaded internal Cabinet resistance ([20:30]):

    “He viewed compromise as a moral failing. And he viewed anyone who disagreed with him as a bug to be squashed.” — Chervinsky ([21:06])

4. The Jeffersonians’ Opposition and the Quasi-War Context

• The Core Challenge:
  • Adams faced pressure from both his own party’s “Arch Federalists” and Jeffersonians—who viewed him as a monarchist and enemy of immigrants ([23:37], [24:46]).
• Foreign Policy as Central—The Quasi War With France:
  • Most domestic fights, including the Alien and Sedition Acts, stemmed from the Quasi War and related tensions with France ([25:55]).

5. Testing and Asserting Presidential Power

Three major precedents established:

a. Presidential Control Over Cabinet

• Slow-Rolling the Army, Supporting the Navy:
  • Adams used geographical distance (staying in Quincy, MA), delay tactics, and selective cooperation to slow down initiatives favored by the Hamiltonian Cabinet, particularly the expansion of the Army ([33:24]–[36:36]).
  • “It’s an amazing stall tactic that infuriates everyone involved with the army, but has a real tangible effect on morale.” — Chervinsky ([38:25])

b. Appointment and Removal Powers

• The Firing of Timothy Pickering:
  • Adams became the first president to categorically assert the power to fire Cabinet members.
  • When Pickering refused to “resign,” Adams simply dismissed him and changed the locks on the Secretary of State’s office ([48:56]–[50:24]).
  • Legal uncertainty surrounded this act, as the Constitution was ambiguous; later precedent and the 1926 Myers v. United States Supreme Court decision would clarify this authority ([52:52]).

    “It is not, at this point, 11 years into the Republic, a routine thing. And it is not without some controversy as to whether it's allowable.” — Wittes ([50:24])

c. The Pardon Power

• Pardoning in the Freeze Rebellion:
  • Adams’s use of the pardon after the “Freeze Rebellion” further cemented the President’s independent prerogative, even against Cabinet and congressional opposition ([55:05]).
  • “Adams worried that these judicial proceedings would craft a definition of treason that was overly broad. ... So he ultimately, over the objection ... of all of his cabinet secretaries, did grant pardons to all.” — Chervinsky ([57:21])
  • Establishes that presidential power “means that you didn't need to have stature, just like Washington, to assert that type of authority, even if other people really disagreed with you.” ([58:40])

6. Executive Privilege in Diplomacy

• Asserting Secrecy and Deliberate Disclosure of Diplomatic Papers:
  • Adams, following the precedent set by Washington, asserted the right to temporarily withhold diplomatic correspondence for national security ([66:20]–[70:46]), using this authority to gain a political advantage by orchestrating the timing and drama of their release.
  • “He used it both to delay, but also to heighten dramatic tension and excite people's expectations about what it would be in order to then prove them wrong.” — Wittes ([71:02])
  • Chervinsky:

    “Because he was complying with the Jeffersonians' request, which he had basically engineered, it made him look like he was just complying with congressional oversight. And so he sort of was using executive privilege to delay the process. ... he used it for very partisan purposes and almost a 180 of what Washington was trying to do.” ([70:40])

Notable Quotes & Memorable Moments

• On Institutional Precedent:

  “So much of executive authority, especially, depends on interpretation, especially judicial interpretation. ... It's not what the Constitution says. It's how it's been interpreted.” — Chervinsky ([59:53])

• On Partisanship and the Presidency:

  “Adams was faced with trying to protect the institutions from those partisan forces that were attempting to put their own partisan needs, their own political goals above the Constitution.” — Chervinsky ([74:15])

• On Slow-Rolling the Army:

  “By passive aggression. You guys want to seize power from me, but you need my signature on everything. There's no rule that says I have to do stuff quickly for you.” — Wittes ([38:07])

Key Timestamps (HH:MM:SS)

• [07:10] — The significance of Adams in establishing peaceful transfers of power
• [10:38] — Cabinet continuity under Adams and the challenge to executive authority
• [14:29] — Hamilton’s undermining of Adams despite advocating a strong executive
• [25:55] — The Quasi War and its centrality to the Adams presidency
• [33:24] — Assertion of presidential power over the Cabinet by slow-rolling Army appointments
• [48:56] — Adams's historic firing of Cabinet members
• [55:05] — Use of the presidential pardon, establishing non-Washington precedent
• [66:20] — Assertion of executive privilege over diplomatic correspondence
• [73:31] — Concluding perspective on the institutionalization of the presidency amid intense partisanship

Concluding Thoughts

The episode convincingly argues that John Adams's presidency—though often overshadowed—was indispensable in converting the largely Washington-dependent executive authority into institutional precedents. Under extraordinary partisan and governmental pressure, Adams’s assertion of presidential power clarified the boundaries of Cabinet authority, solidified the President’s control over appointments and dismissals, established use of prerogative power (like pardons and executive privilege), and modeled the civic virtue needed for peaceful transfer of power. Chervinsky’s narrative makes clear that many assumptions about the “inevitability” of executive power are in fact the result of fragile, sometimes accidental, choices made in those early, tumultuous years.

Recommended Listening for anyone interested in the origins of American executive power, national security law, and the perennial tension between personality and institution in U.S. governance.