Presidential Misconduct, Historians, and History

Forty-five years ago, I was a member of the history faculty at Princeton. At that time, I was also on the National Governing Board of Common Cause, the then young organization seeking improvements in American governance at the state and national levels. That position placed me in the midst of efforts, in New Jersey and Washington, D.C., to control the damage being inflicted on the United States by the administration of Richard M. Nixon.  But my two worlds—that of scholarship and teaching on the one hand, and that of public action on the other—hadn’t yet met. Their separation ended on a March day in 1974.

Sitting in my office that morning, I received a phone call from the distinguished scholar of the life and image of Thomas Jefferson, University of Virginia historian Merrill D. Peterson.  He asked me if I’d contribute chapters on the presidencies of Thomas Jefferson, James Madison, and James Monroe for a report on presidential misconduct requested by John Doar, the Special Counsel to the Impeachment Inquiry of the House Committee on the Judiciary. “What’s the purpose of the report,” I inquired. “To provide the context for the Inquiry’s investigation into the possible impeachment of President Nixon,” came his response. How could I refuse? Here was the connection between learning and civic action for an immediate public purpose. I was hooked.

The idea for such a report, I later learned, had arisen in a conversation between William G. Bowen, Princeton University’s president, and Doar, a Princeton graduate then serving as a member of the university’s board of trustees. Doar subsequently reached out to his acquaintance, C. Vann Woodward, the celebrated historian of the American South, to direct the production of the report. Woodward turned to three others, including Peterson, to recruit historians to write the full account. I became one of them.

This was to be history ordered up by others—not a work of scholarship produced according to my interests and inclinations.  More than that, it was to be a scrupulously factual history without interpretation, proceeding administration by administration, episode by episode, without connective tissue.  In this respect, it became an outmoded and noninterpretive kind of history that cut against modern historians’ grain and pulled specific kinds of events out of their larger context. There was no time for new research. Only the use of existing scholarship and public documents.

We were given eight weeks to prepare our assignments. We made the deadline, which was a major achievement in an era when all that was available to us was the telephone, Xerox machine, and postal service. Woodward submitted our composite report, which covered the presidencies from George Washington’s through Lyndon Johnson’s, to Doar in late June. Six weeks later Nixon resigned. As I learned in later conversations and correspondence with Doar and some committee members, Doar had not had time to provide them with the report before the president left office. In the end, historical knowledge had played no role in the Impeachment Inquiry.

But that wasn’t quite the end of it. Since the report’s text, being a government document, was in the public domain, it was available for release by any publisher that wished to take a chance on its sales. Delacorte Press took that chance. Copies of the report, under the title Responses of the Presidents to Charges of Misconduct, appeared in bookstores in the fall of 1974. But with Nixon no longer in the White House, public interest in presidential misconduct had evaporated. The book dropped dead in the marketplace. Nothing was ever heard of it. To this day, most historians don’t know of its existence and that seemed the end of the matter.[*]

Had I been asked 45 years ago whether a constitutional and governance crisis as severe as that of the early 1970s would occur again in my lifetime, I would have expressed strong doubt. Had I been asked whether I might live long enough to live through another one, I might have laughed. But as we know, history has a way of sneaking up even on historians, as it did to me in 2018. Engaged then in writing a book on an entirely different subject and being actively involved in political affairs, I was far from thinking about further studying presidential misconduct. But one day, once again, I received another phone call. On the other end of the line was my professional colleague, the Harvard University historian and New Yorker writer Jill Lepore. “What’s this book I’ve just seen footnoted?” she asked me. “I’ve never heard of it.” After I’d explained its history to her, I realized that it was her intent to write about it for the magazine. When, in September 2018, her account of the book and its origins appeared in the New Yorker, my professional life was once again caught up in the unanticipated.

Lepore’s coverage aroused widespread interest in bringing the 1974 report up to date through the presidency of Barack Obama. Within no time, publishers came calling with proposals.  And like Woodward before me, having agreed to step in to bring an updated report on executive malfeasance into existence, I found myself identifying and recruiting colleagues, managing their hurried work over a mere twelve weeks, arranging for the mutual review of draft essays by the seven authors I’d chosen, and, in January 2019, submitting the manuscript with my new introduction for publication.  The result is a new book, Presidential Misconduct: From George Washington to Today (2019).  It contains the text of the 1974 book unaltered, plus new chapters covering administrations from Nixon’s through Barack Obama’s.

In examining the nation’s history of executive branch wrongdoing recounted in the book, a single consideration—that of ethical and legal conduct by which administrations are measured—is singled out to the exclusion of all others. That’s neither typical nor just. Every presidency deserves to be assessed on its own terms against the number of years it holds office, the vision with which it takes up occupancy of the White House, its success in implementing that vision, the circumstances that surround its tenure in office, the crises that it may meet, and the political skills it brings to its efforts. A presidency’s record of conduct is but one metric against which it should be assessed.

When we speak of the misconduct of a president and of members of his “official family,” what do we mean? Those of us who prepared the 1974 report to the Impeachment Inquiry, as well as its expansion this year, kept the definition purposefully broad. We took misconduct to mean any acts that were unlawful and that injured people or the body politic. That included the use of public office for private gain. It excluded acts that had been the subject of political division. Accordingly, the account omits disputes over whether James Madison could legally order the militias of the New England states into federal service during the War of 1812 and whether Harry S. Truman had the legal authority to seize the nation’s steel mills in 1952 (an action the Supreme Court subsequently determined to be unconstitutional). These were political disputes, not ones that involved matters of misconduct. The report also omitted consideration of events in presidents’ private lives before and after their terms in office.

What conclusions can be drawn from the record? The first thing one notes is the appearance of wrongdoing at the very outset of American constitutional government. In 1792, during George Washington’s first term, an assistant secretary of the Treasury walked off with roughly $250,000 in public funds (a large sum in that day’s money) and speculated with it. Greed, the source of much future wrongdoing, appeared early. Other kinds of wrongdoing, those stemming from embarrassment and shame, flowed in expected human channels. A frequent example were attempted cover-ups of official misbehavior, the first being of an extramarital affair of Alexander Hamilton. Impeachment efforts put in their appearance in the late 1790s, and Thomas Jefferson was the first president whose conduct elicited House debate to consider impeaching him (a clearly a partisan effort that failed spectacularly with a single vote).

If the sources of misconduct didn’t vary greatly, the specific nature of wrongdoing changed over the decades as circumstances changed. When government by the wealthy gentry gave way, starting in the 1820s, to male office holders from the more general population and when the number of federal offices available swelled with the size of government, the purchase of public office and kickbacks to office holders (what came to be called the “Spoils System”) became more frequent. It was not until 1883, with the passage of the Pendleton Civil Service Reform Act, that competitive examinations, a merit system, and a bar on firing federal officials for political reasons began the cleanup of illicit money in the federal service. Since then, laws establishing rules for federal contracting, outlawing bribes for votes, and protecting whistleblowers have gone some distance to make federal office holders more compliant with ethics and the public trust. But of course, as we see repeatedly, more could be done. For instance, while no one can any longer directly purchase federal office, the unrestricted flow of money into political campaigns (guaranteed by the notorious 2010 Supreme Court decision in Citizens United v. Federal Election Committee lifting restrictions on political contributions by corporations and other organizations) and the continued use of campaign contributions to gain appointments, such as ambassadorships, show how much more needs to be done to clamp down and penalize unethical and unwarranted influences in elections and the public service.

More worrisome is the emergence during the Nixon administration of new forms of misconduct. It was only then that, for the first time, a president orchestrated misconduct from the Oval Office and was named as an unindicted coconspirator in a court of law. Then in the 1980s, a kind of government-within-the-government came into being within the Reagan White House. Its aim was to avoid and subvert limitations set by Congress on the use of appropriated funds for unapproved use, as in the Iran-Contra Affair.

Set against the record established in Presidential Misconduct, today’s crisis is the gravest of its sort the United States has ever faced. In its assault against the Constitution, law, and ethics, in the manner of the Nixon White House it has combined the management of illegal acts from the Oval Office with the creation of a shadow cabal, like that of the Reagan administration, which this time includes private citizens unauthorized to speak for the United States who operate outside the authorization of law. As I write this, neither lawmakers, members of the press, or citizens generally understand that this flagrant departure from law and custom represents an extraordinary development in American history.

Having arrived at this juncture, we must ask ourselves what’s available to the nation to prevent such circumstances from arising in the future. Have the obstacles beyond what James Madison termed “parchment barriers”—the laws and regulations that we hope will govern official behavior—helped prevent misconduct in the past on the part of the highest officers in the land? Only, it seems, to an extent. A robust free press, Congressional investigations, legal challenges, elections, and protests have all served their intended purposes. Yet investigations stall, the press is thwarted in its investigative impulses, courts fail to convict and punish, pardons are issued, and elections and citizen protests are sometimes to no avail.

If that is the case, then how are we to assess the overall record? Should we be pleased with its general aspect—say, that official wrongdoing has not been more frequent and harmful than it has proved to be—or distressed by the amount of miscreance revealed in Presidential Misconduct? Here, the historical record doesn’t provide a convincing answer. For one thing, the answer must depend on comparative records. But there are none to allow us to compare the official conduct of the American federal government to, say, the records of those of Great Britain and France over a similar expanse of time. Yes, the American record is no doubt better than that of Russia and North Korea, but those nation-states are not democratic republics with which we must be compared. Nor is it clear whether a nation-to-nation comparison is the correct one to make. Might we not be better off comparing federal conduct with that of the states and cities? If we do and choose Rhode Island, Louisiana, and Chicago as jurisdictions of comparison, then perhaps the federal record isn’t so disappointing after all.

In short, historians have much work to do before the record we have compiled, first in 1974 and now, again, in 2019 can be useful in assessing worthy and unworthy presidential conduct. This will require at least some aspiring historians to take up the challenges of making the history of presidential misconduct a normal topic of research and reflection.

A historian in Washington, D.C., James M. Banner Jr., is the author most recently of Being a Historian: An Introduction to the Professional World of History (2012).  In December 2019, The Economist named Presidential Misconduct: From George Washington to Today one of its books of the year.

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[*] With one exception: Only a single review of the book—in Reviews in American History—ever appeared.  Irregularly, I was its author. I wrote the assessment only after arranging with the journal’s editor, Stanley I. Kutler, future author of The Wars of Watergate: The Last Crisis of Richard Nix (1990), that I would make a clean breast of my involvement in the project whose result I was reviewing. My principal purpose was less to evaluate the report itself than to put on record a footnote to the larger Impeachment Inquiry—historians’ involvement in it. But the review also gave me the opportunity to reflect on historians’ inattention to administrative history and to many of the subjects covered in the report. No one ever called me or the journal’s editor to account for the review. But I wouldn’t advise others to follow my example, which could be defended only because of the special and unusual circumstances of the book and its contents.