On May 30, former President Donald Trump was convicted of 34 felony counts of falsifying business records to conceal hush money payments made during the 2016 election, making him the first U.S. president to be convicted of a crime. In this episode, two leading historians of the presidency—Stephen Knott of the United States Naval War College, and bestselling and author and attorney David O. Stewart—join Jeffrey Rosen to explore presidential attacks on the judicial system and rule of law throughout American history. They also discuss what this history can teach us in the wake of the Trump criminal verdict.
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Today’s episode was produced by Lana Ulrich, Samson Mostashari, and Bill Pollock. It was engineered by Greg Scheckler and Bill Pollock. Research was provided by Samson Mostashari, Cooper Smith, and Yara Daraiseh.
Participants
Stephen Knott is an Emeritus Professor of National Security Affairs at the United States Naval War College in Newport, Rhode Island. He previously served as co-chair of the Presidential Oral History Program at the Miller Center of Public Affairs at the University of Virginia. He is the author of numerous books about presidential history, including The Lost Soul of the American Presidency: The Decline into Demagoguery and the Prospects for Renewal (2019) and his most recent, Coming to Terms with John F. Kennedy (2022).
David O. Stewart is a best-selling author and former trial and appellate lawyer. He is the author of numerous fiction and nonfiction works, including Impeached: The Trial of President Andrew Johnson and the Fight for Lincoln’s Legacy (2009), and George Washington: The Political Rise of America’s Founding Father (2001). His most recent work, The Burning Land (2023), is a novel set during the Civil War and its aftermath. In 2023, he received the Lifetime Achievement Award from the Washington Independent Review of Books.
Jeffrey Rosen is the president and CEO of the National Constitution Center. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic. His most recent book is The Pursuit of Happiness: How Classical Writers on Virtue Inspired the Lives of the Founders and Defined America.
Additional Resources:
- The Trump Manhattan Criminal Verdict, Count By Count The New York Times (May 30, 2024)
- The Indictment of Former President Trump, NCC’s We the People podcast, (April 6, 2023)
- History of Impeachment from Andrew Johnson to Today, NCC’s We the People podcast, (February 1, 2018)
- David O. Stewart, Impeached: The Trial of President Andrew Johnson and the Fight for Lincoln's Legacy (2009)
- David O. Stewart, American Emperor: Aaron Burr’s Challenge to Jefferson’s America (2011)
- Stephen Knott, The Lost Soul of the American Presidency: The Decline into Demagoguery and the Prospects for Renewal (2019)
- Myers v. United States (1926)
- United States v. Cruikshank (1875)
Excerpt from Interview: David O. Stewart describes Andrew Johnson as an unyielding and confrontational president who clashed with Congress over the Tenure of Office Act, ultimately surviving impeachment, though his national reputation was irreparably damaged.
David O. Stewart: Andrew Johnson was an angry man, and he was a guy who never backed down from a fight. And, the major political donnybrook of his administration was between him and Congress and not with the courts. And in terms of fighting with Congress, he was unrestrained, and he said crazy things, and people thought they were crazy. And he compared himself to Christ and being crucified by these Judas like characters in Congress. And he came across as a bit unhinged. The interesting thing is, for a man who had never spent a day in formal education, he was actually a pretty good lawyer, and he read the Constitution carefully. And when he ended up with this confrontation with Congress, which was over the Tenure of Office Act, which was a statute that limited his ability to remove an appointee that he disliked at that point, and it was Edwin Stanton, the Secretary of War, who was trying to undermine much of what Johnson was doing. And it was this hideous daisy chain of unconstitutional actions basically, or actions contrary to norms.
Congress enacted reconstruction legislation. Johnson tried to undermine it by firing anybody in the South, with the Army who was enforcing it. And then, Stanton and Ulysses S. Grant began to disobey his orders, and both were acting contrary to what we would consider norms, in what they did, they were doing it each, they thought for a higher cause. In retrospect, we tend to think that it was Grant and Stanton who were really serving a higher cause by supporting reconstruction and the rights of the freed slaves. But the Tenure of Office Act required that the Senate approved the removal of a high official, and the Senate was dominated by Johnson's opponents, and they would not approve the removal of Stanton. So he just fired him, and he wanted a confrontation.
He was looking for a fight, and it proceeded in the Senate under an impeachment order. They'd already tried to impeach him once, and this was all according to the rules. And he hired a bunch of good lawyers, and he fought it out on the theory that the Tenure of Office Act was unconstitutional. One of my real takeaways from the episode is that impeachment looks like a legal proceeding, but it isn't. It's a political proceeding. And there were enough by one vote, enough people who voted for his acquittal that he escaped being removed from office. And the Tenure of Office Act was ultimately, some 60 years later, declared unconstitutional in a decision that I actually think is wrong. But it was the Supreme Court's decision.
So I don't really get to say that too much. And so Johnson, long after his death, is slightly vindicated there, it is reminiscent of the Byrd case to the extent that he really was ruined as a national figure by the episode. But he did not challenge or show disrespect, I think, for the court system. His disrespect for Congress was boundless. He really thought they were horrors, but he abided by the procedures that were set out. Now, I've just said that and I need to qualify it. I found considerable evidence, which I believe, which persuaded me, doesn't persuade everyone, that he won because of bribery, that there were senators who were bribed, which was not uncommon in that era. And it was cash. It was nothing very subtle. But that's playing the game hard. Clarence Darrow played the game that way, too. So there we are. It's not a pretty episode. I actually wish they had removed him just for our own redemption as a nation, but it didn't happen.
Excerpt from Interview: Stephen Knott argues that post-Civil War majoritarianism prioritized reunification over protecting minority rights, but highlights Amos Ackerman as a positive example of someone who enforced civil rights and combated the Ku Klux Klan.
Stephen Knott: I think it was majoritarianism run amok. But added to that was this desire on the part of many northern Republicans who had, of course, supported the Civil War and probably had backed the Civil War amendments. They put reunification over protecting the rights of this unpopular minority group. People grew, they just grew tired of it. And that's a common phenomenon in human affairs. You get tired of an issue, so let's just move on and pretend everything is okay. So it's reunification over the rule of law. And you have a number of, including some Republican presidents who make appointments to the Supreme Court, and these appointees are in that sort of reunification camp.
And again, to me, it's another major downside to this majoritarianism belief or principle, if you will, that has very deep roots in America. And I completely understand the notion of the right of self-government, the people to govern themselves. I'm not opposed to that. But we are also about the rule of law. And this was a real test case. This post-Civil War period was a real test case about whether the rights of an unpopular minority were going to be protected as the law required. Never mind morality. But as the law required. And unfortunately, we failed that test in this post-Civil War era. I would just say, both David and Jeff, you're absolutely right. This is an incredibly depressing period to study, but there are some positive role models who emerged during this period.
This is a relatively unknown figure, but Amos Ackerman was Ulysses S. Grant's attorney general for a period of time. He is a former Confederate soldier. And he, during the period from 1870 to 1871, as the Attorney General of the United States, basically destroyed the Ku Klux Klan for a time in various parts of the South. If your audience is looking for a positive example, of someone who believed in the rule of law, who believed in the intention of the 13th, 14th, and 15th Amendments. Take a look at Amos Ackerman and the transition that this man experienced going from a Confederate soldier to an enforcer of civil rights and a destroyer of the Klan is truly remarkable.
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