Trump’s dangerous attacks on rule of law have US historical precedents

trump’s dangerous attacks on rule of law have us historical precedents

‘While commentators and journalists are rightly focused on the danger of the moment, there are historical precedents for what we face today.’ Photograph: Seth Wenig/AP

Donald Trump’s threats to democracy – including his promise to govern as a dictator on “day one” and his refusal to abide by the norm of a peaceful transition of power – are often called unprecedented. While commentators and journalists are rightly focused on the danger of the moment, there are precedents for what we face today. Three examples, far from minimizing the current danger, show both how fragile American democracy has always been and how American citizens can fight successfully to save it.

The first example of a presidential threat to democracy came close to the founding. The second US president, John Adams, criminalized dissent and sought to prosecute his critics. The number of these prosecutions was vast. The most recent research on the subject identifies 126 individuals who were prosecuted. These cases were not just based on the hurt feelings of a thin-skinned president (although they were partly that). They came in response to reports that Adams’s party was attempting a kind of self-coup, not unlike the events of January 6.

Specifically, when a newspaper editor published a plan that Adams’s Federalist Party had developed to refuse to certify electoral votes for their opponents, Adams signed a retaliatory law that allowed for the punishment of critics of the president. The law was drafted with its targets in mind. It made criticism of the president a crime but held no such penalty for critics of the vice-president, Thomas Jefferson, a leader of the opposition party. And the prosecutions were swift and harsh. Newspaper editors found themselves facing prison for their words.

The second example came after the civil war. Andrew Johnson’s presidency was devoted to defending white supremacy and ensuring that the end of slavery did not mean equality for Black Americans. It was also marked by threats against his perceived enemies, including a notorious speech in which he called for violence against his pro-Reconstruction opponents in Congress.

The third example came more recently. Like Adams, Richard Nixon sought to silence his enemies, but not by signing a questionable law – by engaging in a criminal conspiracy. We know now that his plans included crimes well beyond those of Watergate, even potentially firebombing the Brookings Institution. Nixon believed that a safe at Brookings held documents damaging to him. When his national security advisor Henry Kissinger told him that such documents should be retrieved by a legal process, he retorted: “I want it implemented on a thievery basis. Goddamn it, get in and get those files. Blow the safe and get it.”

One major target of Nixon’s criminal schemes was Daniel Ellsberg, who leaked the Pentagon Papers. In an an interview shortly before his death, Ellsberg told me that, as recently released evidence suggests, Nixon sought to “incapacitate” him.

The danger of presidencies like Adams’s, Johnson’s, and Nixon’s consisted not just of their attacks on legal and democratic norms. It also lay in the way they read the constitution to support an authoritarian vision of the presidency. Adams saw analogies between monarchs and presidents. Johnson compared himself to Moses. Nixon spoke of his vast domestic powers that were the result of what he saw as an ongoing civil war with student protesters – a view that led him to famously proclaim, in his interview with David Frost, that “when the president does it, that means that it is not illegal”.

In each of these three dangerous moments, however, American democracy fought back. During the Adams administration, the newspaper editors standing trial published stories about their own prosecutions to highlight Adams’ authoritarianism and to demand a right to dissent under the first amendment. They also turned the outrage at Adams into a major issue in the 1800 election, resulting in the election of Jefferson. When Jefferson proclaimed in his first inaugural “We are all Republicans, we are all Federalists,” he sent a clear signal that the Sedition Act, the Adams administration’s tool for prosecuting opponents, would be allowed to expire.

As for Johnson, the House impeached him, and though he survived his Senate trial, he was so discredited that he failed to receive his own party’s presidential nomination in 1868. That general election in that year saw pro-Reconstruction citizens elect Ulysses S Grant with the aim of putting down Klan violence and protecting equal citizenship, promises partially realized with the passage of the Ku Klux Klan Act and the indictments of over 3,000 white supremacist terrorists. Pro-Reconstruction Americans rallied around the cause of equal citizenship championed by Frederick Douglass, who opposed Johnson in a White House confrontation and in his public speeches.

In the case of Nixon, Ellsberg, rather than allowing himself to be silenced, only grew bolder in criticizing the president. In fact, he used his own trial to expose Nixon’s abuses, just as newspaper editors had done under Adams. Ultimately the judge in his case dismissed the trial. Finally, the unknown citizens of Grand Jury One, convened in the Watergate trial, fought to gather the evidence of Nixon crimes, handing over information to Congress that led to his resignation.

In stark contrast to Nixon’s authoritarian understanding of the constitution, these citizens emphasized the idea that no person, not even a president, was above the law.

These three examples demonstrate that the danger to American democracy has always lain partly in the power of the presidency itself. At the founding, Anti-Federalists argued against ratifying the constitution on the grounds that presidential power was too vast and dangerous. The behavior of Adams, Johnson, and Nixon shows clearly that the Anti-Federalists’ worries were well founded – and that presidential threats to democracy are not unique to today’s moment.

Despite these precedents, however, there is one sense in which the current moment is uniquely dangerous. In these past examples, authoritarian presidents were cast into the dustbin of history, lacking the political power to continue their constitutional abuses. This time, a president who threatened democracy is doubling down, and we risk seeing him take office once again.

The current threat is also unique in that Trump has learned from his previous term where the choke points of American democracy lie. Unlike Adams, Johnson and Nixon, he threatens to recapture the presidency with a clear roadmap for toppling the traditional checks on the office.

Trump understands, for instance, that with a loyalist attorney general, he might never face accountability for his crimes. He would certainly see to it that such an AG fired special prosecutor Jack Smith, currently pursuing two cases against him. Thanks in part to sympathetic justices he appointed, he might also be immunized by the supreme court for any future crimes committed in office as long as these crimes are construed as “official acts”. While Nixon eventually resigned under threat of impeachment and indictment, Trump withstood two impeachments with no hint of even remotely backing down. Unlike Nixon, Trump not only shamelessly refused to resign but has continued his assault on democracy.

So, what can we learn about the threat of the moment from these historical examples? One lesson is clear: we the people are ultimately responsible for rescuing democracy and our democratic constitution. We should find inspiration from those figures who opposed Adams, Johnson and Nixon as we demand accountability in two senses.

First, we should demand the legal accountability Nixon escaped. The jury in Trump’s New York case has made the first step here. And that legal accountability should continue in the other cases against the president.

Secondly, and most importantly, the American people need to seek accountability at the ballot box. This election, just like the elections in 1800 and 1868, is a referendum on the future of self-government. In those past moments, the American people rejected authoritarianism and voted for presidents who sought to restore fundamental pillars of American democracy that were under threat.

Today, we must persuade our fellow Americans to do the same.

Corey Brettschneider is professor of political science at Brown University and the author of The Presidents and the People: Five Leaders Who Threatened Democracy and the Citizens Who Fought To Defend It

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