The Impeachment to Come

First, a series of predictions: The U.S. House of Representatives will impeach Donald Trump.  He will not resign, so the Senate will conduct a trial on whatever charges are brought against him. The next couple of years there’ll be plenty of talk about the meaning of “high crimes and misdemeanors.”   At the end of the day, once all the evidence is in, I will approve of President Trump’s removal from office for “high crimes and misdemeanors.”  Until then, I will try (not always successfully) to keep an open mind.  I will view some participants and spectators as sharks in a feeding frenzy.  And I will not be able to restrain myself from commenting, especially when I think the street buzz fails to appreciate nuances or fails to put today’s events in historical perspective. 

Anticipating all that, and before the gavel brings the first meeting of the Impeachment Committee to order, I thought I’d ask a question intentionally broader than the eventual “high crimes and misdemeanors” question.  Namely, is Donald Trump the most independent, egotistical maverick who has ever served as president?

Perhaps he is.  Perhaps cabinet shake-ups, midnight tweets, criminal investigations and mounting criticism by members of his own party demonstrate that the man is out-of-control, a rogue who has lost all sense of attachment to the country and even to his own political party, an egotistical maverick who thinks he’s smarter than the combined wisdom on Capitol Hill and is prone to take the law into his own hands. 

But on the subject of mavericks, I thought I’d take a look at two pieces of historical data.  One of these is how often presidents have used their veto power.   An independent maverick willing to assert himself over the views of the Congress would seem likely to use the veto more often. 

The other is a president’s use of the Executive Order.  Bypassing Congress, presidents have sometimes attempted to make law by executive order.  The courts have often found that executive orders have exceeded proper presidential powers.   This is certainly not true of all executive orders.  The first such order recognized by the American Presidency Project was George Washington’s order that his cabinet members report back to him on the status of matters in their respective areas of responsibility.  There’s obviously a big difference between the executive activism suggested by that order and, say, Harry Truman’s order nationalizing the country’s steel mills.  So as a measure of presidential activism, the count of a president’s executive orders may be more problematic than a count of his vetoes.  As with vetoes, a president whose party is in control of Congress might be expected to use executive orders less than a president with an opposition party in power on Capitol Hill.  So there are obviously variables at play, not accounted for by the raw numbers  Still, one might expect a president who’s apt to take matters into his own hands, a president who tries to control the country personally rather than letting Congress do so, might be expected to issue more executive orders than a more docile, less activist president.

My thought was that the frequency of presidential vetoes and executive orders may provide at least some insight into the degree of ego and power various presidents have attempted to wield while in office.

In the following table, from FDR through Donald Trump, I’ve included the data for all the presidents.  Before FDR, I’ve included only those presidents who set new record highs for use of executive orders or vetoes.  I’ve used the president’s months in office to convert absolute numbers to monthly rates.  Here’s what I get, using data from the American Presidency Project and the U.S. Senate.

* Figures for Donald Trump are to date, i.e.,  December of 2018.

The numbers above don’t tell the whole story by any means. For example, hundreds of Cleveland’s vetoes were of private pension bills for Civil War veterans. Congress wanted to grant pensions to individual, named veterans after the Pension Bureau had investigated and denied them.  The bills presented the same issue again and again, and the result drastically inflated Cleveland’s total vetoes.

So the bare counts are no doubt subject to all sorts of explanations and interpretations.  But for me, the counts suggest a couple of things worth keeping in mind.

The first is that there have been two growth spurts in presidential activism as measured by these indicators.  The first spurt was when the country was being rended apart and put back together again over the slavery question. President Pierce nearly doubled the prior record of executive orders, Lincoln advanced it again, and after Lincoln’s assassination, Johnson and Grant, while trying to put the country back together again, more than doubled it again.  Meanwhile, Johnson and Grant each set new records for presidential vetoes, and did so by large margins.  It was certainly a tumultuous time.

The second spurt began with Teddy Roosevelt and ended with Harry Truman, a period spanning the Great Depression and two world wars.  That spurt is evident in both executive orders and vetoes, with FDR setting the all time record for both, despite the fact his party was in control of both houses of Congress for his entire presidency.  More tumultuous times.

Judged by that historical observation, in this time when the country is so polarized and divided, one might expect we’d have an activist president, at least as assessed by these measures.

The second observation I would make is more subjective, but I think important to think about, even so: namely,the correlation between a president’s “executive activism” as suggested by this data, and his reputation as a great president, as judged by history . To me, this will be important to keep in mind as we face the impeachment proceedings to come – not to argue that Donald Trump is a great president, but to help us remember what standard we’re judging him by, and if we remove him from office, what it is we remove him for.    

Putting Grover Cleveland aside, consider how history has regarded the other notables on the list:  Shortly after his election to office, President Lincoln ordered the arrest of several Maryland legislators who favored secession, right before a scheduled vote on secession, for the transparent reason of keeping Maryland from voting to secede.  (Now that was a bold display of executive activism!)  Yet history has judged that bold presidential action by all but forgetting it. 

Two years later, when Lincoln issued his most famous executive order (the Emancipation Proclamation) he took great pains to make sure it was “legal.” Lincoln disagreed with the U.S.Supreme Court’s recent decision in the Dred Scott case that, because slaves were private property  under state law, the federal government had no right or power to free them.  That decision was the law of the land, but Lincoln circumvented it by asserting that he did have power to confiscate property being used in rebellion against the federal government. So rather than having Congress do it, Lincoln freed the slaves by a stroke of his executive pen.  But recognizing the Supreme Court’s ruling, he only freed those slaves in the states that were in armed rebellion against the national government.  That respect for the rule of law is something Lincoln is much criticized for today.  Current progressive thinking would probably treat him better if he had contravened the law as then decided by the Supreme Court, and used his executive power to free all the slaves.  Lincoln was a maverick, but as judged by history, possibly not maverick enough.

Nearly a hundred years later, when President Truman used an executive order to place the country’s steel mills under federal control, the Supreme Court held his order unconstitutional. Truman is also third on the list of most active vetoers in history.  Yet Truman is highly regarded for his independence today.

Theodore Roosevelt, who set new records for issuing Executive Orders and established a reputation as one of the most egotistical mavericks to ever occupy the office, got his face enshrined on Mount Rushmore.   He is often considered one of the five greatest Presidents in American history.

And Franklin Roosevelt, who tried to pack the Supreme Court when too  much of his agenda was ruled unconstitutional, who set the record for issuing activist executive orders by a large margin, and who set the record for presidential vetoes even though his own party controlled Congress throughout his presidency, is widely hailed by many as the best president in history. He is certainly highly regarded by today’s “progressives” for his executive activism.

The point is that, as I see it, history has generally looked upon presidential activism with high regard  — at least when it approves of the goals a president  has pursued.  

So where does President Trump fall, on these measures of  ego and executive activism?  He has used the Executive Order more frequently than President Obama, but then, Obama’s use of the Executive Order was the lowest in modern times.  When compared to other modern presidents, Trump’s rate has been comparatively low.  And as for his use of the veto power, there have been 2,574 presidential vetoes since 1789 — not one of them by Mr. Trump.

There are a lot of ways to measure a President’s ego, independence, and executive activism. If measured by midnight tweets and rash statements made to the television news media, President Trump is surely the most arrogant President in history. (That’s an easy claim to make considering Andrew Jackson and Ulysses Grant had neither twitter nor TV.)   But measured by such quantifiable things as frequency of executive orders and vetoes, Mr. Trump has been far less of a maverick than either of the Roosevelts , Wilson, or Truman.  And as far as I can tell, being mavericks who were not always in line with their own parties had a lot to do with why such men have been regarded well by history. 

My point?  I simply hope that, as the impeachment proceedings progress, we keep in mind that impeachment was not designed to punish presidents for having policies and positions we disagree with.  Impeachment was not intended as a remedy for presidents with big egos, or even for those who run counter to the views on Capitol Hill or within their own political parties.  Let’s not impeach Donald Trump because he’s a maverick, unless we think that presidents yet to come who are cut from the mold of Jackson, Lincoln, Wilson and both Roosevelts  will deserve to be impeached for their  roguishness.  Let’s think long and hard, with a sound historical perspective, about the separation of powers, the presidency, and the best meaning to give to “high crimes and misdemeanors.”

I may be wrong, but I predict I’ll have more to say in the months to come about that term.  But those are my thoughts for now.  I look forward to hearing yours.

— Joe

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8 thoughts on “The Impeachment to Come”

  1. Point I don’t think they will win an impeachment charge it’s not a crime to be a fool. second point what good will it do the country except to divide. Third point I really hope your wrong .

    1. Thanks Dave. To your three points, my own thoughts are: 1) It’s not a crime to be a fool, but I think impeachment and the potential of removal from office are ultimately political questions, not legal ones. If Congress were to remove Mr. Trump from office for “being a fool,” I don’t believe the Supreme Court would overturn that action. 2) Sadly, I agree that impeachment will further divide the country. I only hope that, whatever happens and whatever the outcome, we eventually start listening to each other again. 3) I agree.

  2. Can you imagine the vile hatred for Donald Trump has not stopped him from daily fighting for this country and the restoration of its greatness!
    Before he was elected, a plan to take him out was hatched through the FBI and the Obama justice department. The deep state which includes both Democrats and Republicans, has been orchestrating his ruin from the get go. Alan Dershowitz has written about the case to impeach president Trump and has debunked most of the mythical high crimes and misdemeanors. He presents the case that is basically a criminalization of politics which hurts our democracy. Your prediction that we will have this procedure because of the hell bent obstructionism being practiced by the Democrats who have just been elected to take over the Congress, is sad at best. Perhaps you have allowed yourself to become tainted by your own dislike for a president whose policies you claim you favor but his crude methods you abhor. Learn something about the deep state and see if you can stomach listening to Mark Levin, Shawn Hannity or even Rush Limbaugh. There is a reason why Alan Dershowitz is only heard now on Fox news and shunned by his liberal friends on Martha’s Vineyard. Perhaps the guy who studied the Conscience of a Conservative as a teenager has been duped by the same crowd who politically destroyed Barry Goldwater in 1964. They got to him later in life as he recanted many of his own beliefs, maybe they have gotten to you, dear cousin.

    1. Dear Cousin –
      Does your comment mean that you disagree with my prediction that the House will vote to impeach Mr. Trump? More importantly, does it mean that you have already made up your mind about whatever charges and evidence may be brought forth? If so, I wonder what you think about the quotation from Epictetus that’s featured among the rotating banners on this website: namely, “It is impossible for a man to begin to learn what he thinks he already knows.” Just curious.

      1. I think that it’s very possible that there is a log in somebody’s eye. I think that impeachment might proceed, but it will only further the divide. Trump may be a rude bombastic fool in your eyes, but to me, he is exactly what many of us deplorables have been waiting for, that is, to shake the establishment in Washington to its core. The FBI and the Justice Department have been horribly corrupted, in their attempt to overthrow this legitimately elected president! You of all people should be outraged at how the FISA court was used by the Obama administration, to spy on an American citizen, running for president. There are real investigative reporters, emerging as the new Woodward and Bernstein’s on Fox News! Do you even know who they are or are you just not interested? We who listen to what’s being discovered about this corrupt shadow government, get designated by some as illiterates, who are blindly following a fool for a president. Do you believe Trump supporters are fools? Perhaps it’s time to hedge your bet about the next two years, as the stock market starts this massive correction, concerning the visceral hatred that is driving the obsession to remove Trump from office. If you do pause, and you get over why his crude behavior nauseates you, then perhaps your interest in this corruption, at the highest levels in Washington, will become the topic that can help educate our need to debate. You can expose blind obstinate opinions like mine and get rid of, “know it alls!” It’s possible that an old dog, can learn a new trick. Don’t you think?

  3. I’m trying to take stock of where you and I agree, and where we don’t. This is what I come up with:
    1) I predicted that Mr. Trump would be impeached. You appear to agree that he might be.
    2) You said that if he is impeached, it would further divide the country. I agree.
    3) I said that he might be the most arrogant, egotistical maverick president ever, but that even if he is, he shouldn’t be impeached for that. You seem to have interpreted what I wrote on that point as a call for his impeachment. If so, I apparently didn’t express myself successfully. I have not called for his impeachment.
    4) Having predicted that the House will impeach him, I am trying to think ahead. If my prediction is correct and he is impeached, I hope to consider all evidence and points of view before making up my mind. Perhaps you can help me do that, by informing me of facts or reasoning I may not be aware of.
    5) You consistently characterize the president in glowing, positive terms, while characterizing his critics in vile terms. Understand that, at the same time, I am bombarded by Trump critics who consistently characterize the president in vile terms and characterize his critics in glowing terms. Just as I would say to them, if you want to maximize your likelihood of persuading me to your point of view, please know that I’m more likely to be persuaded by factual statements of specific conduct rather than accolades and condemnations about the parties involved.
    5) For example, to say that the FBI has been “horribly corrupted” tells me something about your feelings and conclusions, so it informs me about you, but it doesn’t really add anything to my knowledge about the FBI — much less about Mr. Trump. Accolades about Fox News tels me something about you, but not about the FBI, or Trump, or anything else. Ad hominem arguments tend to turn me away from those that make them, not bring me closer to their points of view. I strongly believe the same is true for most people.
    6) I am not outraged that the FISA court was used to spy on a candidate, perhaps because I’m not familiar with the matter. Would you care to enlighten me?
    7) As for whether Trump supporters are fools, I will say this: I absolutely do not think they are fools simply because they support him, any more than I think his critics are fools for opposing him. But I think all of us have a great deal of fool in us, often evidenced in how we think, often in how we try to win others over to our points of view. Ultimately, I would defer to the wisdom I find in the banner quotations that rotate at the top of these pages.
    Best,
    Joe

  4. I have started to consider the possibility that there is less “wrong”with Trump than there is with a country unable to accept the results of an election.
    I think it might be related to the rise of one-or two-child families.
    For each article you can find about how “it’s not true that only children are spoiled brats” there are probably dozens of people married to them who say “they’re spoiled brats.”
    First and last born children are also in this group of spoiled brats. Those of us who were middle children are accustomed to never getting our own way, and learn early in life nobody cares about their feelings, life isn’t fair, suck it up, and never, ever, let anyone see them cry.
    Middle children are either baffled by or scornful of the tantrums of firsts, lasts, and Onlies.
    I suspect it is the large number of first, last, and only children who are still, two years later, running around like their hair is on fire because the election didn’t go the way they wanted. They seem to think there is something wrong in the universe. Gravity is inside out. The earth’s magnetic field has flipped. Something is terribly wrong. The Russians did it.

    This popular idea that people voted for Trump because the Russians made them do it is delusional. The idea that Trump has done something impeachable, in spite of all evidence to the contrary, is also looking delusional. They’re all nuts.

    1. “The idea that Trump has done something impeachable” — I think that since impeachment is a purely political matter, the mere fact of being elected president makes one impeachable. I think it has always been for the House of Representatives to decide what is impeachable and what isn’t, and given the current state of things, I still predict they’ll find something to impeach him for –for crimes if they can find proof of any, and for being a “divisive president” if they can’t. As for “in spite of all evidence to the contrary,” I may be wrong, but I suspect we haven’t yet seen all the evidence that will be brought to bear. They’re certainly working hard to come up with some. Finally, as for middle children, since I am one, I couldn’t agree with you more! 🙂

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