tag:theconversation.com,2011:/au/topics/richard-nixon-6848/articlesRichard Nixon – The Conversation2024-03-20T12:22:46Ztag:theconversation.com,2011:article/2244842024-03-20T12:22:46Z2024-03-20T12:22:46ZNixon declared Americans deserved to know ‘whether their president is a crook’ – Trump says the opposite<figure><img src="https://images.theconversation.com/files/578092/original/file-20240226-18-9gxbhg.jpg?ixlib=rb-1.1.0&rect=6%2C34%2C1518%2C839&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Richard Nixon and Donald Trump may seem similar, but they have key differences.</span> <span class="attribution"><span class="source">Official White House portraits</span>, <a class="license" href="http://creativecommons.org/licenses/by-nd/4.0/">CC BY-ND</a></span></figcaption></figure><p>One of the four criminal trials of Donald Trump was slated to start in the next few days, but has been <a href="https://www.npr.org/2024/03/15/1238915986/trump-trial-new-york-delay-judge-stormy-daniels">delayed on procedural grounds</a>. There was a time when it appeared <a href="https://www.nytimes.com/2023/08/18/nyregion/trump-indictments-trial-2024-election.html">possible all of his trials could happen</a> before the November election. Now <a href="https://www.vox.com/politics/24055503/trump-trials-fani-willis-jack-smith-alvin-bragg">it is unclear whether even one</a> will begin in time. As a result, on Election Day, the voting public may not know a key fact about candidate Trump: whether a jury has found him guilty of one or more crimes.</p>
<p>Like Trump, <a href="https://www.washingtonpost.com/wp-srv/politics/special/clinton/frenzy/nixon.htm">scandal followed Richard Nixon</a> <a href="https://www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/101072-1.htm">throughout his political career</a>. And, like Trump, Nixon always managed to claw his way back into the political forefront.</p>
<p><a href="https://www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/080974-3.htm">Until he didn’t</a>.</p>
<p>As a <a href="https://scholar.google.com/citations?user=ow6DhIQAAAAJ&hl=en&oi=ao">scholar of American politics and public opinion</a>, I believe the <a href="https://www.bu.edu/articles/2020/trump-and-nixon-separated-at-birth/">parallels between Trump and Nixon</a> are clear. </p>
<p>Yet there is a telling difference between the two men. Nixon acknowledged the fundamental importance of accountability in a democracy. He went so far as to <a href="https://www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/111873-1.htm">famously declare</a> – during the height of the Watergate scandal – that “people have got to know whether or not their president is a crook.”</p>
<p>Trump, on the other hand, <a href="https://www.reuters.com/legal/trump-not-immune-election-subversion-charges-us-appeals-court-rules-2024-02-06/">outright rejects the assertion</a> that the American people should be able to find out what the justice system says about whether a prospective president is a crook.</p>
<p>In fact, he has gone so far as to assert that the “<a href="https://www.cnn.com/2024/01/18/politics/trump-presidential-immunity/index.html">president of the United States must have full immunity</a>, without which it would be impossible for him/her to properly function.”</p>
<p>Nixon made a similar statement in 1977, telling British journalist David Frost in 1977 that “<a href="https://teachingamericanhistory.org/document/transcript-of-david-frosts-interview-with-richard-nixon/">when the president does it … that means that it is not illegal</a>.” But Nixon hastened to add a crucial caveat that he was talking about war powers and national security, and specifically emphasized that he did not “mean to suggest the president is above the law.” </p>
<p>Afterward, Nixon responded to the backlash from the interview, writing a <a href="https://www.washingtonpost.com/archive/politics/1977/06/05/president-isnt-above-the-law-nixon-insists/71923838-492f-49d7-921f-0add6743501e/">long-winded clarification</a> that reiterated that the president is not above the law. </p>
<h2>Similar, but quite different</h2>
<p>Superficially, Nixon and Trump’s brands of politics share a lot of similarities. </p>
<p>Both men positioned themselves against allegedly crooked liberal elites and used the fact that they were being investigated as evidence that the people in power were trying to silence them and people like them. </p>
<p>As far back as 1952, Nixon was <a href="https://www.washingtonpost.com/wp-srv/politics/special/clinton/frenzy/nixon.htm">accused of keeping a secret stash of donor funds</a> when he was a U.S. senator and a candidate for vice president. His fate as Dwight D. Eisenhower’s running mate in that year’s presidential election looked increasingly uncertain.</p>
<p>His instinct was to go public. On live TV, in what came to be known as the “<a href="https://www.pbs.org/wgbh/americanexperience/features/eisenhower-checkers/">Checkers speech</a>,” Nixon took his case directly to the American people. He positioned himself – an ordinary American with two mortgages, a bank loan and a loan from his parents – against the political elite. That elite, Nixon said, believed only rich men should be in politics, and <a href="https://theconversation.com/politicians-have-long-used-the-forgotten-man-to-win-elections-103570">Nixon was just a regular guy</a>.</p>
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<figcaption><span class="caption">Excerpts from Nixon’s ‘Checkers’ speech saying he had not profited personally from public service. The speech is nicknamed for the dog that was the one gift from supporters he planned to keep.</span></figcaption>
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<p>More than two decades later, Nixon, again facing disgrace, took his case to the public. The Watergate scandal, in which <a href="https://www.washingtonpost.com/wp-dyn/content/article/2002/05/31/AR2005111001227.html">Republican operatives sought to secretly listen in on Democratic Party business</a>, broke in the summer of 1972. Even before that year’s election, <a href="https://www.washingtonpost.com/politics/fbi-finds-nixon-aides-sabotaged-democrats/2012/06/06/gJQAoHIJJV_story.html">Nixon’s White House aides</a> and <a href="https://www.washingtonpost.com/politics/bug-suspect-got-campaign-funds/2012/06/06/gJQAyTjKJV_story.html">his campaign</a> were linked to the effort. Nixon went on to <a href="https://www.270towin.com/1972_Election/">win every state but Massachusetts</a> in the Electoral College.</p>
<p>His popularity <a href="https://www.presidency.ucsb.edu/statistics/data/richard-m-nixon-public-approval">peaked at 67%</a> in late January 1973 following the inauguration for his second term. However, as the Watergate scandal unfolded, <a href="https://www.washingtonpost.com/politics/3-top-nixon-aides-kleindienst-out-president-accepts-full-responsibility-richardson-will-conduct-new-probe/2012/06/04/gJQAx7oFJV_story.html">Nixon’s personal involvement</a> in the spying and attempts to cover it up <a href="https://www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/060373-1.htm">became increasingly clear</a> to the public. <a href="https://www.presidency.ucsb.edu/statistics/data/richard-m-nixon-public-approval">His popularity plummeted</a>.</p>
<p>One year after a landslide Electoral College victory, only <a href="https://www.presidency.ucsb.edu/statistics/data/richard-m-nixon-public-approval">27% of Americans</a> approved of the job Nixon was doing as president. In that context, Nixon made a <a href="https://www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/111873-1.htm">public plea of innocence and forthrightness</a>, declaring that the “people have got to know whether or not their president is a crook.” And he immediately followed that statement with a lie: “Well, I’m not a crook.”</p>
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<figcaption><span class="caption">Richard Nixon acknowledges the importance of accountability in a democracy.</span></figcaption>
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<h2>A contrast in support, and tactics</h2>
<p>Nixon’s instinct to make his case to the American people in the face of political peril emphasizes a key difference from Trump.</p>
<p>Throughout his first term, Nixon enjoyed substantially higher approval than Trump. <a href="https://news.gallup.com/poll/116677/presidential-approval-ratings-gallup-historical-statistics-trends.aspx">On average</a>, 56% of Americans approved of the job Nixon was doing in his first term, compared with only 41% for Trump. Liberal elites may have <a href="https://www.nytimes.com/1970/09/26/archives/drugs-case-for-legalizing-marijuana.html">decried Nixon’s claim</a> that he had the support of a “<a href="https://www.pbs.org/wgbh/americanexperience/features/nixon-silent-majority/">silent majority</a>” at the time, but from a historical perspective, his popularity is undeniable.</p>
<p>Trump’s approval tells a different story and illustrates the differences in the breadth and depth of their support. In <a href="https://doi.org/10.25940/ROPER-31087813">February 1972</a>, 52% of Americans approved of the job Nixon was doing: 80% of Republicans, 51% of independents and 36% of Democrats. Compare that with Trump’s approval in <a href="https://news.gallup.com/poll/203198/presidential-approval-ratings-donald-trump.aspx">February 2020</a>: 47% overall approval, 92% approval among Republicans, 42% with independents and 8% with Democrats.</p>
<p>While <a href="https://projects.fivethirtyeight.com/polls/president-general/2024/national/">most recent polls</a> show that Trump is leading in 2024’s apparent rematch of the 2020 election, he rarely eclipses the 50% threshold. Trump is president of a vocal minority, not the silent majority. Trump doesn’t have to appeal to Democrats, or the median voter for that matter, because he has the <a href="https://www.npr.org/sections/thetwo-way/2016/01/23/464129029/donald-trump-i-could-shoot-somebody-and-i-wouldnt-lose-any-voters">undying support</a> of his faction. And the <a href="https://centerforpolitics.org/crystalball/articles/a-brief-history-of-electoral-college-bias/">U.S. system of electing presidents</a> is biased in a way that means his vocal minority can deliver victory.</p><img src="https://counter.theconversation.com/content/224484/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Spencer Goidel does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The parallels between Trump and Nixon are abundantly clear. Yet even Nixon acknowledged the fundamental importance of accountability in a democracy.Spencer Goidel, Assistant Professor of Political Science, Auburn UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2225272024-02-14T16:56:13Z2024-02-14T16:56:13ZUsing ‘trip killers’ to cut short bad drug trips is potentially dangerous<p>As interest in psychedelics has grown, so has interest in ways to end a bad trip. Recent <a href="https://emj.bmj.com/content/41/2/112">research</a> reveals that people are giving potentially dangerous advice on social media on how to stop a trip that is less than pleasurable.</p>
<p>Psychedelics cause changes in a person’s perception of reality. One of the earliest descriptions of a psychedelic experience in western literature can be found in Aldous Huxley’s 1953 book <a href="https://en.wikipedia.org/wiki/The_Doors_of_Perception">The Doors of Perception</a>. Huxley describes mostly beautiful visions while tripping on mescaline. </p>
<p>And then there were the <a href="https://en.wikipedia.org/wiki/Lucy_in_the_Sky_with_Diamonds">Beatles</a> seeing “tangerine trees” and “marmalade skies” and “a girl with kaleidoscope eyes”. </p>
<p>The last few years have seen a resurgence of illicit use, not only of established psychedelics, such as LSD and magic mushrooms (psilocybin), but also of the <a href="https://link.springer.com/article/10.1007/s40429-019-00249-z">novel psychoactive substances</a> that are psychedelics, such as AMT, 5-MeO-DALT, mCPP and methoxetamine.</p>
<p>There is also renewed interest in studying these drugs as <a href="https://www.thelancet.com/journals/lanpsy/article/PIIS2215-0366(23)00363-2/fulltext">treatments</a> for mental health conditions, such as post-traumatic stress disorder (PTSD) and depression. Even a <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9700827/">single dose</a> of these drugs appears to have long-term therapeutic effects. </p>
<p>But not all trips are pleasurable. Research shows that if someone is in a bad mood or depressed then they are more likely to have a <a href="https://www.sciencedirect.com/science/article/pii/S0955395920303352?via%3Dihub">bad trip</a>, as are people who take too high a dose. </p>
<p>This sort of experience might include extreme fear, time standing still and mood swings. Very high doses of LSD can also cause agitation, vomiting, high blood pressure, hyperthermia and other nasty side-effects. But at regular doses, psychedelics are <a href="https://journals.sagepub.com/doi/epub/10.1177/02698811211069100">relatively safe</a>.</p>
<p>To mitigate against bad trips, people will often take the drug in a relaxing and safe environment, and they might include a friend, or “trip sitter” to look after them for the duration of the trip. This was a common practice in the 1960s among people taking psychedelics.</p>
<h2>Trip killers</h2>
<p>More recently, though, some psychedelic users have been turning to <a href="https://jamanetwork.com/journals/jama/fullarticle/2814696">“trip killers”</a> to end a bad trip. These are drugs that can either block the direct effects of the psychedelic or simply reduce the anxiety associated with a bad trip. </p>
<p>Few clinical studies have examined trip killers, but one has found that <a href="https://academic.oup.com/ijnp/article/26/2/97/6808755">ketanserin</a> – a drug used to treat high blood pressure – reverses the psychedelic effects of LSD.</p>
<p>A <a href="https://emj.bmj.com/content/41/2/112">recent article</a> in the Emergency Medical Journal analysed posts on Reddit about trip killers. The researchers found 128 threads with 709 posts from 2015 to 2023. </p>
<p>Trip killers were discussed most often for LSD (235 posts), magic mushrooms (143 posts) and MDMA (21 posts). The most commonly suggested trip killer was Xanax (an anxiolytic) followed by quetiapine (an antipsychotic), trazodone (an antidepressant) and diazepam (an anxiolytic). Alcohol, herbal remedies, opioids, antihistamines, sleep medication and cannabinoids were barely mentioned.</p>
<h2>Receptor blocking</h2>
<p>LSD and magic mushrooms create their effects by activating certain proteins in the brain. These are called <a href="https://link.springer.com/article/10.1007/s00204-015-1513-x">5-HT2A receptors</a> and are usually activated by the neurotransmitter serotonin (5-HT). There are 14 known 5-HT receptors, but psychedelics have specific activity at only the 5-HT2A subtype. </p>
<p>To kill a trip then, one simply has to give the drug user another drug that blocks (rather than activates) the 5-HT2A receptor. Many prescription drugs can do this and they tend to be <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9252399/">antipsychotic drugs</a>. </p>
<p>Quetiapine from the list above is one popular example, while another antipsychotic, olanzapine, was mentioned in 14 posts in that study. Similarly, the atypical antidepressants trazodone and mirtazapine also block the 5-HT2A receptor.</p>
<p>One can think of these trip killers as working in the same way that <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6728289/">naloxone</a> would be used for heroin or fentanyl overdose. These drugs activate mu opioid receptors in the brain, while naloxone blocks these receptors. Naloxone is therefore used to treat life-threatening respiratory depression from opioid overdose. </p>
<p>Another option for the psychedelics would be to decrease the anxiety associated with the trip by taking anxiolytics, such as <a href="https://www.frontiersin.org/journals/psychiatry/articles/10.3389/fpsyt.2022.1060949/full">benzodiazapines</a> – alprazolam (Xanax) and diazepam (Valium) being the most popular in the posts analysed above. These would also help the drug taker to fall asleep.</p>
<p>Some of the trip-killing drug doses suggested in the Reddit posts were high. For example, <a href="https://bnf.nice.org.uk/drugs/quetiapine/">quetiapine</a> was suggested to be used at 25mg to 600mg, but clinical guidance for these drugs suggests a single dose of up to 225mg. </p>
<p>The doses suggested on Reddit for <a href="https://bnf.nice.org.uk/drugs/alprazolam/">alprazolam</a> are 0.5mg to 4mg but the clinically suggested maximum dose is usually 2mg to 3mg. Four milligrams could cause low blood pressure, oversedation and respiratory depression. Unfortunately, benzodiazepines are also highly addictive and can lead to overdose deaths.</p>
<p>People who turn up at A&E suffering from a bad trip or overdose of a psychedelic will be reassured in a calm environment. If that doesn’t work, they are likely to be given an antipsychotic or low-dose benzodiazepine, at a clinically advised dose. </p>
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Read more:
<a href="https://theconversation.com/a-brief-history-of-drug-fuelled-combatants-219658">A brief history of drug-fuelled combatants</a>
</strong>
</em>
</p>
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<img src="https://counter.theconversation.com/content/222527/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Colin Davidson has previously received funding from the National Institute on Drug Abuse (NIH, USA) and the European Community for projects related to stimulant drug abuse and novel psychoactive compounds respectively. He is currently a paid consultant with the Defence Science Technology Laboratory (MOD) working on new psychoactive compounds.</span></em></p>Psychedelic drug takers are sharing advice on Reddit on how to end a bad trip. Some of the advice is highly suspect.Colin Davidson, Professor of Neuropharmacology, University of Central LancashireLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2219092024-01-25T16:16:34Z2024-01-25T16:16:34ZDonald Trump and the ‘madman theory’ of foreign policy<p>With Donald Trump now looking more and more likely to be the Republican nominee for November’s presidential election, the former president is now making the case that among other things, he would be much more effective than the incumbent, Joe Biden, in areas such as <a href="https://www.theguardian.com/us-news/2023/oct/12/trump-biden-israel-hamas-war-florida-event">foreign policy</a>. For Trump’s supporters it is his unpredictable and risky nature that has led to some of his biggest <a href="https://www.vox.com/world/2018/3/5/17059894/trump-north-korea-policy-work">foreign policy successes</a>. To his detractors he comes across as <a href="https://www.theatlantic.com/international/archive/2017/11/trump-dangerous-foreign-policy/546230/">dangerous and unpredictable</a>. </p>
<p>Trump certainly has leaned in to the <a href="https://edition.cnn.com/2017/09/15/politics/donald-trump-richard-nixon-and-the-madman-theory/index.html">“madman theory”</a> of foreign policy – the idea that an unpredictable and irrational leader would have an advantage in international bargaining. But has Trump’s impulsiveness really been effective – or has it been destabilising?</p>
<p>This is not the first time that the madman theory of foreign policy has been applied to a US leader. Though the theory was first articulated by <a href="https://www.belfercenter.org/publication/madman-or-mad-genius-international-benefits-and-domestic-costs-madman-strategy">Daniel Ellsberg in 1959</a>, the phrase “madman” was popularised from statements made by <a href="https://www.vox.com/the-big-idea/2017/1/4/14165670/madman-theory-nuclear-weapons-trump-nixon">former US president Richard Nixon</a>. Nixon reportedly claimed that he wanted his adversaries to think that he was so obsessed with communism that he <a href="https://politicaldictionary.com/words/madman-theory/">could not be restrained</a> – and would even be crazy enough to start a nuclear war, forcing his enemies to beg for peace. </p>
<p>But while Nixon carefully crafted this image, it is not clear that Trump’s <a href="https://www.vox.com/the-big-idea/2017/1/4/14165670/madman-theory-nuclear-weapons-trump-nixon">madman tendencies</a> are part of a similar master plan.</p>
<p>Madman theory assumes that making seemingly unbelievable threats – such as embarking on nuclear war – are <a href="https://ndisc.nd.edu/assets/467565/mcmanus_madman_theory_book_proposal.pdf">more credible</a> if they are coming from someone who is unpredictable and possibly unstable. This idea flies in the face of traditional <a href="https://muse.jhu.edu/pub/6/article/447711/summary?casa_token=_0TolNV8Zv8AAAAA:jMHGF6g1d2pL0GFQpPCvp_muE6G-mCzNpwYq353q3NKFj7sn1GJkGwaT02nruaK5ajlvRROs31J_">neo-realist theories of international relations</a> that assume that people are rational and consider the consequences of their decisions. This explains the logic of nuclear deterrence, when there is mutually assured destruction – meaning that logical decision makers would never go as far as using their nuclear arsenal.</p>
<p>Instead, madmen supposedly don’t consider the consequences of their actions – which should, in theory, instil fear in their enemies.</p>
<h2>Tool for dictators</h2>
<p>But who are these madmen? Do leaders actually behave this way, and if so have they had any success? Studies of <a href="https://www.jstor.org/stable/43279909">authoritarian regimes</a> have noted that certain types of dictatorships – namely <a href="https://politica.dk/fileadmin/politica/Dokumenter/Afhandlinger/matilde_thorsen.pdf">personalist dictatorships</a>, where power is vested in one person – are more likely to fit the madman stereotype. </p>
<p>But personalist dictators are also <a href="https://www.jstor.org/stable/41495081">most likely to back</a> down after making threats, such as when Idi Amin threatened <a href="https://www.theeastafrican.co.ke/tea/news/east-africa/the-day-idi-amin-wanted-to-annex-western-kenya--1304946">to annex western Kenya in 1976</a>, only to back down after Kenyan president, Jomo Kenyatta, threatened to block Uganda’s imports. Most of these “madmen” are often just full of hot air or their military intelligence is so poor (both inflating their capacities and downplaying their adversaries) that they feel emboldened to engage in risky behaviour that they can’t back up.</p>
<p>In Trump’s case, he led a country with tremendous military power, but rather than being strategic and calculated like Nixon, he has been described as <a href="https://www.google.co.uk/books/edition/A_Trump_Doctrine/rc-AEAAAQBAJ?hl=en&gbpv=1&dq=Republicans+claim+that+Trump%E2%80%99s+unpredictable+nature+led+to+some+foreign+policy+successes&pg=PT52&printsec=frontcover#v=onepage&q&f=false">impulsive, ad hoc and incompetent</a>.</p>
<figure class="align-center ">
<img alt="US president Richard M Nixon shakes hands with Chinese leader, Mao Zedong in 1971." src="https://images.theconversation.com/files/571437/original/file-20240125-15-psmxs5.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/571437/original/file-20240125-15-psmxs5.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=385&fit=crop&dpr=1 600w, https://images.theconversation.com/files/571437/original/file-20240125-15-psmxs5.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=385&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/571437/original/file-20240125-15-psmxs5.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=385&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/571437/original/file-20240125-15-psmxs5.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=484&fit=crop&dpr=1 754w, https://images.theconversation.com/files/571437/original/file-20240125-15-psmxs5.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=484&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/571437/original/file-20240125-15-psmxs5.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=484&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Mad and unpredictable, or just very clever? Richard Nixon meeting Chairman Mao in 1971.</span>
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<p>These traits have certainly affected Trump’s foreign policy, but this mostly has resulted in reckless decisions. The list is long: quitting the Paris Climate Accords, dismantling the Iran-nuclear deal, withdrawing from the UN Human Rights Council, threatening to withdraw from Nato and the World Health Organization and engaging in a bizarre back and forth with North Korean dictator Kim Jong Un, which resulted in a series of <a href="https://foreignpolicy.com/2021/08/13/north-korea-trump-kim-jong-un-love-letters-diplomacy-nuclear-talks/">“love letters”</a> between the two.</p>
<h2>Madmen rarely prevail</h2>
<p>There is not only little evidence that Trump’s exploits have been effective, but also few examples of madman tactics actually working with other leaders. Idi Amin had little success with his <a href="https://www.nytimes.com/1978/11/28/archives/uganda-charles-a-tanzanian-invasion-fighting-said-to-be-in-tanzania.html">provocations with Tanzania</a> in 1978-1979. Nor did Muammar Gaddafi after he <a href="https://www.peaceagreements.org/view/conflict/32/Libyan+Conflicts+%281969+-+1994%29+%282011+-+%29">tried to annex</a> the Aouzou Strip, in northern Chad in 1980.</p>
<p>Research has pointed to <a href="https://www.tandfonline.com/doi/full/10.1080/0163660X.2020.1810424?casa_token=BY_-I_NZk3sAAAAA:v1ktYuuXRUndsA2xNK5ko0Y2qT-Nad0c6gAlbF5ZZLVDQu1pgjEZeNN6XLOqrbH9o6i2DYGn7Zym2pk">several reasons</a> for why madmen are often unsuccessful. For a start it’s never clear if the other people involved actually understand what the “madman” is intending to signal. And even if that is obvious, because the “madman” is deemed crazy their threats are rarely taken seriously.</p>
<p>In Trump’s case it is also not clear if being perceived as “mad” is something to be feared or ridiculed. His unpredictability mostly played out on the world stage through a series of strange exchanges with autocrats – such as <a href="https://edition.cnn.com/2018/07/16/politics/donald-trump-putin-helsinki-summit/index.html">fawning over Vladmir Putin in Helsinki</a> in 2018, where he took the word of the Russian president over his own intelligence agencies. Trump also allegedly <a href="https://www.politico.com/news/2020/09/15/trump-assassinate-syria-assad-415093">threatened to kill</a> Syrian president, Bashar al-Assad in 2017, but then decided to pull US troops out of Syria in December of 2018. </p>
<p>And Trump’s <a href="https://edition.cnn.com/2020/01/06/world/meanwhile-in-america-january-7-intl/index.html">antics with Iran</a> – pulling out of the nuclear deal and threatening to bomb Iranian cultural heritage sites – seemed to do little to deter the Islamic Republic’s nuclear ambitions. In fact, hardliners were then elected in the 2021 elections, which would have been the last thing US foreign policy planners wanted.</p>
<p>Prior to Trump and Kim Jong Un’s “love affair,” Trump engaged in reckless threats to <a href="https://www.aljazeera.com/news/2017/9/19/trump-threatens-to-destroy-north-korea-if-necessary">destroy North Korea</a> (and was himself the recipient of insults from the opposing leader who referred to Trump as <a href="https://www.newstatesman.com/world/2018/03/donald-trump-s-offer-talk-north-korea-tests-madman-theory-limit">“mentally deranged”</a>. Though Trump boasted that his summit with North Korea is one of his <a href="https://trumpwhitehouse.archives.gov/briefings-statements/historic-summit-north-korea-tremendous-moment-world/">foreign policy wins</a>, he accomplished no more than any past presidents and Kim Jong-un remains as much a <a href="https://theconversation.com/north-korea-ramps-up-military-rhetoric-as-kim-gives-up-on-reunification-with-south-213696">danger to regional stability</a> as ever. </p>
<p>In spite of this, Trump has embraced the madman theory. But not only does appearing mad provide limited advantages in negotiating, it actually erodes a leader’s credibility and undermines their nation’s long term foreign policy interests. Madmen theory isn’t really strategic – it’s just idiotic.</p><img src="https://counter.theconversation.com/content/221909/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Natasha Lindstaedt does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Trump’s fans think that his unpredictability was an asset in terms of his foreign policy. It wasn’t.Natasha Lindstaedt, Professor, Department of Government, University of EssexLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2189442023-11-30T17:03:54Z2023-11-30T17:03:54ZHenry Kissinger was a global – and deeply flawed – foreign policy heavyweight<p>Declarations of the end of an era are made only in exceptional circumstances. Henry <a href="https://www.bbc.co.uk/news/world-us-canada-67574495">Kissinger’s death</a> is one of them. </p>
<p>Kissinger was born into a Jewish family in Germany, and fled to the US in 1938 after the Nazis seized power. He rose to one of the highest offices in the US government, and became the <a href="https://history.state.gov/departmenthistory/people/kissinger-henry-a">first person to serve</a> as both secretary of state and national security adviser. </p>
<p>The 1973 <a href="https://www.nobelprize.org/prizes/peace/1973/summary/">Nobel Peace prize</a>, which Kissinger shared with his North Vietnamese counterpart <a href="https://www.nobelprize.org/prizes/peace/1973/tho/facts/">Le Duc Tho</a>, recognised his contribution to the negotiations that ended the Vietnam war. </p>
<p>Kissinger advised a dozen US presidents, from Richard Nixon to Joe Biden. For advocates of realpolitik – a quintessentially pragmatic, utilitarian approach to foreign affairs – Kissinger was both author and master. </p>
<p>Across many years, his viewpoint remained largely unchanged: national security is the centrepiece of sovereignty, as both a means, and end in itself. From this perspective, Kissinger’s transformative diplomatic involvement in seminal events in the 20th century, and iconic insights in the 21st have shaped swathes of western geopolitics. </p>
<p>His fierce ambition was a key part of his vision, namely to rework the bipolar structure of the cold war, bent on establishing both US power, and arguably his own role in it. </p>
<p>Kissinger had no qualms backing the military dictatorship behind <a href="https://www.history.com/this-day-in-history/indonesia-invades-east-timor">Indonesia’s invasion of East Timor</a> in the 1970s. He supported the CIA in overthrowing president <a href="https://www.jstor.org/stable/24483554">Salvador Allende of Chile</a> in 1970, advocated sustained bombing in <a href="https://www.vietnamwar50th.com/1965_stemming_the_tide/Operation-ROLLING-THUNDER-Begins-the-Sustained-Bombing-of-North-Vietnam/">areas of North Vietnam</a>, and encouraged the wiretapping of <a href="https://www.washingtonpost.com/archive/politics/1982/04/14/article-accuses-haig-kissinger-on-wiretaps/7b504a95-48d5-480e-8521-a63dd4150f33/">journalists</a> critical of his Vietnam policy. He prioritised security over human rights, and commercial control over self-determination. </p>
<p>None of this was surprising. Kissinger’s entire approach to foreign policy was unsentimental at best, and brutish at worst. Peace, and the power to conclude a peace, could only be hewn coarsely from the unforgiving fibre of state relations, he believed. </p>
<p>To his critics, Kissinger’s actions in Vietnam, Chile, Indonesia and beyond significantly challenged his legacy of negotiation and diplomacy, and – in the eyes of some – were tantamount to war crimes.</p>
<h2>Peacemaker or polariser?</h2>
<p>Kissinger’s legacy will remain a mixed one. It incorporated truly ground-breaking efforts in opening up talks between <a href="https://www.wilsoncenter.org/blog-post/nixon-china-week-changedwhat">the US with China</a> and the Soviet Union, alongside visibly polarising outcomes for US foreign policy in its relations with South America and south-east Asia. </p>
<p>As secretary of state to presidents Richard Nixon and <a href="https://www.whitehouse.gov/about-the-white-house/presidents/gerald-r-ford/">Gerald Ford</a>, Kissinger’s geopolitical achievements established him as an elder statesman of the Republican Party. This rested on a trinity of endeavours: pulling the US out of the Vietnam War, establishing a host of new diplomatic connections between the US and China, and cultivating the first stages of détente (improved relations) with the Soviet Union. </p>
<p>Vietnam remains the <a href="https://www.theguardian.com/world/2023/jan/11/nobel-peace-prize-henry-kissinger-vietnam">most contentious of these areas</a>, with accusations that Kissinger blithely applied <a href="https://theconversation.com/henry-kissingers-bombing-campaign-likely-killed-hundreds-of-thousands-of-cambodians-and-set-path-for-the-ravages-of-the-khmer-rouge-209353">bombing and destruction in Cambodia</a> to extract the US from the Vietnam war. The peace was fragile and hostilities <a href="https://www.abc.net.au/news/2023-11-30/henry-kissinger-vietnam-war-legacy/103172192">continued for years</a> afterwards without the Americans.</p>
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<h2>Nixon and China</h2>
<p>Kissinger’s reputation is on sturdier grounds with the grand strategy to permanently open relations between the US and both <a href="https://nsarchive2.gwu.edu/NSAEBB/NSAEBB66/">China</a> and the Soviet Union. This facilitated a reduction in east-west tensions that materially benefited the US. It also saw Kissinger effectively playing the two communist powers against each other. </p>
<p>Concentrated through the lens of the cold war, the majority of Kissinger’s interactions were based on an approach that balanced caution with aggression, and pragmatism with the acquisition of power. </p>
<p>This was sometimes directly, but often through the use of proxy wars, including Vietnam and the 1973 Yom Kippur War between Israel and Arab states, which descended into a power play with the Soviets, as did the 1971 India-Pakistan war. The image of Kissinger entirely comfortable with the high-stakes poker game between superpowers is an arresting one. </p>
<p>Post-cold war geopolitics did not diminish Kissinger’s overall approach. He counselled generations of US decision-makers to remember the virtues of allying with smaller states as well as superpowers for reasons of power and commerce, and a commitment to retain lethal force in the <a href="https://www.nixonlibrary.gov/sites/default/files/virtuallibrary/releases/jun12/jun12/jun12_declass16.pdf">US foreign policy toolbox</a>.</p>
<p>For scholars of international relations, Kissinger’s numerous books, from the iconic <a href="https://www.goodreads.com/en/book/show/781183">Diplomacy</a> and <a href="https://www.goodreads.com/book/show/2010474.Nuclear_Weapons_And_Foreign_Policy?ref=nav_sb_ss_5_16">Nuclear Weapons and Foreign Policy</a>, to <a href="https://www.goodreads.com/book/show/58652519-leadership?from_search=true&from_srp=true&qid=VLyaF3eBNd&rank=1">Leadership: Six Studies in World Strategy</a> are an inventory of hard-headed views on the unrelenting demands of classic and modern statecraft and the challenges of crafting not just foreign policy, but grand strategy.</p>
<p>They are also a masterclass in European history, with a powerful message regarding sovereignty and the supreme role of the national interests in foreign policy, regionally and globally. </p>
<p>Kissinger’s relentless dedication to realpolitik as the fiercest approach to managing international affairs is at odds with the many elements of his personality. Nowhere is this more evident than in his writing, with “characteristics ranging from brilliance and wit to sensitivity, melancholy, <a href="https://www.goodreads.com/en/book/show/96110#:%7E:text=Stanley%20Karnow%27s%20Vietnam%3B%20A%20History,when%20the%20book%20was%20published.">abrasiveness and savagery”</a>.</p>
<p>Kissinger’s final impact is on the hardware and software of global diplomacy: guns versus ideas. A pragmatic, even cynical approach tackling the imbalance of power between states impelled Kissinger to promote seemingly paradoxical approaches: ground-breaking diplomatic approaches to ensure peace, easily reconciled with a ruthless reliance on military power. </p>
<p>This, in turn, gave his counterparts little option other than to cooperate, which they generally did, from the North Vietnamese to Soviet leader Leonid Brezhnev, to China’s prime minister <a href="https://www.britannica.com/biography/Zhou-Enlai">Zhou Enlai</a>. </p>
<p>In his later years, seemingly immune to his foreign policy bungles, Kissinger’s celebrity diplomat status remained undimmed, somehow confirming the sense that international relations routinely transcends domestic politics, and in doing so, remains both a high stakes game, and a distinctive area of practice. His passion for foreign affairs never dimmed, commenting on the October 7 Hamas attack just a <a href="https://www.ft.com/content/1c73cfff-c2f4-4ad7-9c7a-dd5db70b883d?emailId=565a3f42-873d-4f06-9d23-3683c23efd61&segmentId=22011ee7-896a-8c4c-22a0-7603348b7f22">few weeks before his death</a>.</p>
<p>For every one of Kissinger’s brilliant moves, there was a bungling countermove. Students of foreign policy need therefore to consider both Kissinger’s scholarship and his practice. </p>
<p>They should look through examples of his work in which one side seizes upon anything resembling a diplomatic opportunity, and commandeers its potential to produce a win, and then calls that a victory. Such victories however could be fleeting and left behind tensions that frequently came home to roost.</p><img src="https://counter.theconversation.com/content/218944/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amelia Hadfield does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>For every one of Kissinger’s brilliant moves, there was a bungling countermove.Amelia Hadfield, Head of Department of Politics, University of SurreyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2189172023-11-30T05:02:58Z2023-11-30T05:02:58ZHenry Kissinger has died. The titan of US foreign policy changed the world, for better or worse<p>Henry Kissinger was the ultimate champion of the United States’ foreign policy battles. </p>
<p>The former US secretary of state <a href="https://www.abc.net.au/news/2023-11-30/henry-kissinger-dies-aged-100/103171512">died</a> on November 29 2023 after living for a century.</p>
<p>The magnitude of his influence on the geopolitics of the free world cannot be overstated. </p>
<p>From world war two, when he was an enlisted soldier in the US Army, to the end of the cold war, and even into the 21st century, he had a significant, sustained impact on global affairs.</p>
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<a href="https://theconversation.com/kissinger-at-100-his-legacy-might-be-mixed-but-his-importance-has-been-enormous-206470">Kissinger at 100: his legacy might be mixed but his importance has been enormous</a>
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<h2>From Germany to the US and back again</h2>
<p>Born in Germany in 1923, he came to the United States at age 15 as a refugee. He learned English as a teenager and his heavy German accent stayed with him until his death.</p>
<p>He attended George Washington High School in New York City before being drafted into the army and serving in his native Germany. Working in the intelligence corps, he identified Gestapo officers and worked to rid the country of Nazis. He won a <a href="https://www.aljazeera.com/news/2023/11/30/henry-kissinger-nobel-prize-winning-warmonger">Bronze Star</a>. </p>
<p>Kissinger returned to the US and studied at Harvard before joining the university’s faculty. He advised moderate Republican New York Governor Nelson Rockefeller – a presidential aspirant – and became a world authority on nuclear weapons strategy. </p>
<p>When Rockefeller’s chief rival Richard Nixon prevailed in the 1968 primaries, Kissinger quickly switched to Nixon’s team. </p>
<h2>A powerful role in the White House</h2>
<p>In the Nixon White House, he became national security advisor and later simultaneously held the office of secretary of state. No one has held both roles at the same time since.</p>
<p>For Nixon, Kissinger’s diplomacy arranged the <a href="https://www.history.com/news/henry-kissinger-vietnam-war-legacy">end of the Vietnam war</a> and the pivot to China: two related and crucial events in the resolution of the cold war. </p>
<p>He won the <a href="https://www.nobelprize.org/prizes/peace/1973/summary/">1973 Nobel Peace Prize</a> for his Vietnam diplomacy, but was also condemned by the left as a war criminal for perceived US excesses during the conflict, including the <a href="https://theconversation.com/henry-kissingers-bombing-campaign-likely-killed-hundreds-of-thousands-of-cambodians-and-set-path-for-the-ravages-of-the-khmer-rouge-209353">bombing campaign in Cambodia</a>, which likely killed hundreds of thousands of people.</p>
<p>That criticism <a href="https://www.huffpost.com/entry/henry-kissinger-dies_n_6376933ae4b0afce046cb44f">survives him</a>.</p>
<p>The <a href="https://theconversation.com/nixon-mao-meeting-four-lessons-from-50-years-of-us-china-relations-176485">pivot to China</a> not only rearranged the global chessboard, but it also almost immediately changed the global conversation from the US defeat in Vietnam to a reinvigorated anti-Soviet alliance.</p>
<p>After Nixon was compelled to resign by the Watergate scandal, Kissinger served as secretary of state under Nixon’s successor, Gerald Ford.</p>
<p>During that brief, two-year administration, Kissinger’s stature and experience overshadowed the beleaguered Ford. Ford gladly handed over US foreign policy to Kissinger so he could focus on politics and running for election to the office for which the people had never selected him.</p>
<p>During the turbulent 1970s, Kissinger also achieved a kind of cult status. </p>
<p>Not classically attractive, his comfort with global power gave him a charisma that was noticed by Hollywood actresses and other celebrities. His romantic life was the topic of many <a href="https://www.theguardian.com/commentisfree/2023/may/27/henry-kissinger-100-war-us-international-reputation">gossip columns</a>. He’s even <a href="https://www.washingtonpost.com/archive/lifestyle/1998/02/05/uncovering-the-sex-lives-of-politicians/3bb26a91-03ec-4a14-8958-f6ac0d95b260/">quoted</a> as saying “power is the ultimate aphrodisiac”.</p>
<p>His legacy in US foreign policy continued to grow after the Ford administration. He advised corporations, politicians and many other global leaders, often behind closed doors but also in public, testifying before congress well into his 90s. </p>
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Read more:
<a href="https://theconversation.com/the-nobel-peace-prize-offers-no-guarantee-its-winners-actually-create-peace-or-make-it-last-213340">The Nobel Peace Prize offers no guarantee its winners actually create peace, or make it last</a>
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<h2>Criticism and condemnation</h2>
<p>Criticism of Kissinger was and is harsh. Rolling Stone magazine’s <a href="https://www.rollingstone.com/politics/politics-news/henry-kissinger-war-criminal-dead-1234804748/">obituary of Kissinger</a> is headlined “War Criminal Beloved by America’s Ruling Class, Finally Dies”. </p>
<p>His association with US foreign policy during the divisive Vietnam years is a near-obsession for some critics, who cannot forgive his role in what they see as a corrupt Nixon administration carrying out terrible acts of war against the innocent people of Vietnam. </p>
<p>Kissinger’s critics see him as the ultimate personification of <a href="https://theconversation.com/a-tortured-and-deadly-legacy-kissinger-and-realpolitik-in-us-foreign-policy-192977">US realpolitik</a> – willing to do anything for personal power or to advance his country’s goals on the world stage. </p>
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<span class="caption">Former US Secretary of State, Henry Kissinger, leaves behind a controversial legacy.</span>
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<p>But in my opinion, this interpretation is wrong.</p>
<p>Niall Ferguson’s <a href="https://books.google.com.au/books/about/Kissinger.html?id=H_ujBwAAQBAJ&redir_esc=y">2011 biography</a>, Kissinger, tells a very different story. In more than 1,000 pages, Ferguson details the impact that world war two had on the young Kissinger. </p>
<p>First fleeing from, then returning to fight against, an immoral regime showed the future US secretary of state that global power must be well-managed and ultimately used to advance the causes of democracy and individual freedom.</p>
<p>Whether he was advising Nixon on Vietnam war policy to set up plausible peace negotiations, or arranging the details of the opening to China to put the Soviet Union in checkmate, Kissinger’s eye was always on preserving and advancing the liberal humanitarian values of the West – and against the forces of totalitarianism and hatred. </p>
<p>The way he saw it, the only way to do this was to work for the primacy of the United States and its allies. </p>
<p>No one did more to advance this goal than Henry Kissinger. For that he will be both lionised and condemned.</p>
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Read more:
<a href="https://theconversation.com/a-tortured-and-deadly-legacy-kissinger-and-realpolitik-in-us-foreign-policy-192977">A tortured and deadly legacy: Kissinger and realpolitik in US foreign policy</a>
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<img src="https://counter.theconversation.com/content/218917/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lester Munson works for BGR Group, a Washington DC consultancy, Johns Hopkins University and the U.S. Studies Centre. He is affiliated with George Mason University and the Center for Strategic and International Studies in Washington, DC.</span></em></p>Former US secretary of state, Henry Kissinger has died, aged 100. His legacy, including his involvement in the Vietnam war, is long, complicated and divisive.Lester Munson, Non-resident fellow, United States Studies Centre, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2122332023-09-14T18:53:09Z2023-09-14T18:53:09ZHunter Biden is the latest presidential child to stain a White House reputation − but others have shined it up<figure><img src="https://images.theconversation.com/files/548059/original/file-20230913-25-9vesrk.jpeg?ixlib=rb-1.1.0&rect=13%2C0%2C2982%2C2020&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Joe Biden and family after he was sworn in at the U.S. Capitol, January 20, 2021.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/BidenInauguration/4df43ce386994cf098c6f2e8f1f104fb/photo?Query=Hunter%20Biden%20Joe%20Jill&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=1292&currentItemNo=31&vs=true">AP Photo/Carolyn Kaster</a></span></figcaption></figure><p>Hunter Biden, the surviving son of President Joe Biden, <a href="https://storage.courtlistener.com/recap/gov.uscourts.ded.82797/gov.uscourts.ded.82797.40.0.pdf">was indicted on Sept. 14, 2023</a>, on gun-related charges – facing a possible criminal trial while his father is campaigning for reelection. The charges relate to Hunter Biden’s alleged lying about his drug use when he purchased a gun in 2018. And a conviction could mean <a href="https://www.nytimes.com/2023/09/14/us/politics/hunter-biden-indictment-gun-charges.html">prison time of 10 years</a> <a href="https://www.politico.com/news/2023/09/14/hunter-biden-indicted-on-gun-charges-00115964">or more</a>. </p>
<p>As Hunter Biden’s legal peril rises, with all its ensuing political complications, people have rediscovered the likes of <a href="https://www.biography.com/political-figures/a44270818/hunter-biden-scandals-involving-kids-of-presidents">Ulysses Grant Jr., Alice Roosevelt and Neil Bush</a>, as if the best way to make sense of Hunter Biden is found in a rogues’ gallery of difficult presidential relatives. </p>
<p><a href="https://history.wustl.edu/people/peter-kastor">As a historian of the American presidency</a>, I see the case of Hunter Biden as a revealing indicator of the ways that presidential children have figured in American public life, whether they were beloved or reviled. </p>
<p>Most presidents and first ladies have <a href="https://www.simonandschuster.com/books/All-the-Presidents-Children/Doug-Wead/9780743446334">attempted to protect their children</a> – especially their young children – from the scrutiny and the emotional toll of public life. Whether they were publicly visible or not, their children have always been factors in the presidents’ public lives and presidents have sought to exploit the political benefits they can draw from their children. </p>
<p>Meanwhile, commentators and the American public alike have drawn their own conclusions about individual presidents and the presidency as an institution in part on the basis of presidential children. </p>
<p>In my own research, I have observed that presidents have consistently looked to their adult sons as potential political allies, only to find that young children and especially young daughters have become more effective political assets. Those dynamics have only intensified over time, especially in recent decades as presidents increasingly <a href="https://commonreader.wustl.edu/c/marriage-in-the-white-house/">put their private lives on public display</a>.</p>
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<a href="https://images.theconversation.com/files/548092/original/file-20230913-19-7krw3f.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A collage of three photos of men with brides." src="https://images.theconversation.com/files/548092/original/file-20230913-19-7krw3f.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/548092/original/file-20230913-19-7krw3f.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/548092/original/file-20230913-19-7krw3f.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/548092/original/file-20230913-19-7krw3f.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/548092/original/file-20230913-19-7krw3f.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/548092/original/file-20230913-19-7krw3f.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/548092/original/file-20230913-19-7krw3f.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Their daughters’ weddings help humanize a president; clockwise from left, Lyndon Johnson and daughter Lynda; George W. Bush and daughter Jenna; Richard Nixon and daughter Tricia.</span>
<span class="attribution"><span class="source">Johnson: Getty Images; Bush: Shealah Craighead/The White House via FilmMagic; Nixon: Nixon White House Photographs</span></span>
</figcaption>
</figure>
<h2>America, mirrored</h2>
<p>Presidential children have reflected how Americans think about age and gender, parenting and politics. </p>
<p>Those sometimes abstract concepts assume real form in presidential families. And they operate in unexpected ways. The fact that gender norms often precluded presidential daughters from an <a href="http://ap.gilderlehrman.org/history-by-era/womens-history/essays/women-american-politics-twentieth-century">explicitly political role</a> paradoxically could make them more popular public figures. The assumption that young children <a href="https://www.cnn.com/2014/12/02/politics/political-kids-off-limits/index.html">should be free from the political rough-and-tumble</a> has recently made them highly effective symbols for presidential image-making.</p>
<p>Presidents have often sought a role for their adult sons in supporting their administrations. Many of those sons happily obliged. In 1837, Martin Van Buren <a href="https://www.nps.gov/mava/learn/historyculture/abraham-van-buren.htm">appointed his son, Abraham</a>, to serve as his private secretary, at the time a high-level confidential advisor. Over a century later, <a href="https://www.nps.gov/people/john-eisenhower.htm">Dwight Eisenhower selected his son, John</a>, to serve as assistant staff secretary. <a href="https://erpapers.columbian.gwu.edu/james-roosevelt-1907-1991">James Roosevelt campaigned for his father, Franklin</a>, and quite literally supported him. In public appearances, Franklin would lean on James, holding his hand in what appeared to be an expression of affection but was actually <a href="https://erpapers.columbian.gwu.edu/james-roosevelt-1907-1991">a tactic to hide his polio-related disability</a>. </p>
<p>The ambitions of <a href="https://www.whitehouse.gov/about-the-white-house/presidents/john-quincy-adams/">John Quincy Adams</a>, son of the second president of the U.S., <a href="https://www.whitehouse.gov/about-the-white-house/presidents/john-adams/">John Adams</a> and himself a future president, raised <a href="https://constitutioncenter.org/blog/presidential-nepotism-debate-goes-back-to-the-founders-time">accusations of nepotism</a> in a country that claimed to have eliminated a royal class. But <a href="https://www.whitehousehistory.org/white-house-hostesses-the-forgotten-first-ladies">Martha Jefferson Randolph</a> could fill the traditional role of first lady and serve as confidante to her father, the widower and <a href="https://www.whitehousehistory.org/bios/thomas-jefferson">third U.S. president, Thomas Jefferson</a>. </p>
<p>The sons of Teddy and Franklin Roosevelt both faced accusations that they traded on their fathers’ names <a href="https://fdr.blogs.archives.gov/2018/01/31/sons-of-the-commander-in-chief-the-roosevelt-boys-in-world-war-ii/">to secure undeserved offices</a>. <a href="https://www.penguinrandomhouse.com/books/291313/wilson-by-a-scott-berg/">In contrast, Woodrow Wilson’s daughter</a>, Margaret, served as first lady for over a year before her widowed father remarried. Her younger sister, <a href="https://www.whitehousehistory.org/pioneering-women-of-the-woodrow-wilson-white-house-1913-1921">Jessie, was an activist</a> for women’s suffrage and the League of Nations.</p>
<p>As journalists, historians and the American public have <a href="https://www.penguinrandomhouse.com/books/606853/the-presidents-vs-the-press-by-harold-holzer/">tried to pierce the veil of privacy</a> surrounding presidential private life over the past half-century, presidents and the politicos who surround them have also sought to remove that veil, but selectively so, with an eye toward their own advantage. </p>
<p>Biographers <a href="https://www.gutenberg.org/files/6467/6467-h/6467-h.htm">celebrated presidents like Teddy Roosevelt</a> and <a href="https://www.jfklibrary.org/visit-museum/exhibits/past-exhibits/first-children-caroline-and-john-jr-in-the-kennedy-white-house">John Kennedy who played with their young children</a>. Ronald <a href="https://abcnews.go.com/ThisWeek/family-feud-reagans-children-debate-legacy-father/story?id=12786615">Reagan’s children argued about whether he was a good father</a>, claiming that his private behavior should affect whether people should see him as a great president.</p>
<p>The <a href="https://www.cnn.com/2022/11/18/politics/gallery/white-house-weddings-history/index.html">White House weddings of Lynda Bird Johnson and Tricia Nixon</a> provided opportunities to soften the image of the brass-knuckles political personalities of Lyndon Johnson and Richard Nixon. These were <a href="https://www.whitehousehistory.org/digital-library/exhibits/something-old-something-new-eight-first-daughters-fashionable-white-house-weddings">major public events</a> in their own time, and the notion that Nixon wanted to exploit the event while never abandoning his antagonism toward the Washington press corps was a <a href="https://www.20thcenturystudios.com/movies/the-post">subplot in the 2017 film, “The Post</a>.”</p>
<p>The Johnson and Nixon weddings offered a preview of how White House children provided presidents with image management opportunities. But the process began in earnest 30 years ago, as Bill Clinton, George W. Bush and Barack Obama sought to preserve the privacy of their young daughters even as they made conspicuous efforts to demonstrate their role in raising those daughters. </p>
<p>In “A Place Called Hope,” a promotional film for his 1996 re-election campaign, Bill Clinton beamed with pride as he discussed <a href="https://www.youtube.com/watch?v=LFMo3d9zq9g&t=5m4s">Chelsea Clinton’s growing comfort at political events</a>. George W. Bush <a href="https://www.penguinrandomhouse.com/books/200372/decision-points-by-george-w-bush/">celebrated both of his daughters’ public careers</a>, even when Barbara became an activist with left-leaning organizations. Barack Obama joked with TV host Jimmy Kimmel about managing his daughters’ social media accounts, as if he were <a href="https://www.youtube.com/watch?v=uNyd34TPXUg&t=2m23s">just another befuddled father</a>.</p>
<p>In an era of identity politics, when the explicit <a href="https://www.theatlantic.com/magazine/archive/1993/10/feminisms-identity-crisis/304921/">invocation of feminism could generate a political backlash</a>, these young daughters provided the means for these three presidents to reinforce the image of themselves as members of just another American family and modern fathers who supported their daughters. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/LFMo3d9zq9g?wmode=transparent&start=303" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Bill Clinton speaks about his daughter, Chelsea, in a promotional video.</span></figcaption>
</figure>
<p>Those family-oriented images made the shift to Donald Trump all the more jarring. His approach harkened back to the 19th century, when presidents appointed their adult sons to office while young children rarely appeared in public. Rather than exploit young Barron Trump’s potential to present Trump as a caring father, Trump preferred to emphasize his grown children. </p>
<p>Donald Trump Jr., and Eric Trump <a href="https://www.businessinsider.com/don-jr-and-eric-trump-campaigning-2018-10">regularly served as surrogates for their father</a>. Ivanka Trump and her husband, Jared Kushner, <a href="https://www.theguardian.com/us-news/2017/jan/10/ivanka-trump-jared-kushner-nepotism-conflicts-of-interest">held official appointments</a> in the administration. </p>
<p>Yet whatever benefit he believed he drew from these adult children, Trump found they were immediate <a href="https://apps.bostonglobe.com/opinion/graphics/2021/06/future-proofing-the-presidency/part-3-a-sordid-family-affair/">lightning rods</a> for <a href="https://www.nytimes.com/2019/10/11/us/politics/donald-trump-jr-eric-trump-business.html">public criticism</a>.</p>
<h2>How to look normal</h2>
<p>The template of presidential children making their fathers appear more familiar and accessible still rules. </p>
<p>While the adult children of most Republican candidates have been invisible on the current campaign trail, Florida Gov. Ron DeSantis – often described as <a href="https://www.nytimes.com/2023/03/10/us/politics/desantis-iowa.html">awkward</a> and <a href="https://www.politico.com/news/magazine/2023/01/17/ron-desantis-likability-issue-on-politics-00077927">lacking charm</a> – has made a point of <a href="https://www.nytimes.com/2023/06/18/us/politics/ron-desantis-age.html">appearing with his young children</a>. </p>
<p><a href="https://www.whitehouse.gov/administration/president-biden/">Joe Biden’s preferred political origin story</a> is the image of the caring father who was sworn into the Senate in a hospital ward so he did not leave Beau and Hunter following the car crash that killed Biden’s first wife and his only daughter. </p>
<p>At the Democratic Convention in 2008, Delaware Attorney General Beau Biden nominated his father <a href="https://www.youtube.com/watch?v=EYjrS-F3dCc">as the party’s candidate for vice president</a>. He was the latest presidential son to campaign for his father. But <a href="https://apnews.com/general-news-d8f69eb645d74b7886387f713981b739">Beau died from brain cancer</a> at age 46. With Beau gone and Hunter’s legal problems a political liability, Biden has taken a page from his predecessors’ handbook. </p>
<p>If his administration cannot cast Biden as a young dad like Ron DeSantis, they can surround him with his grandchildren. In fact, when Biden won the presidential election in 2020, one of the first photos from the Biden camp came from his granddaughter, Naomi, showing her generation of the family <a href="https://people.com/politics/election-2020-joe-biden-celebrates-victory-with-grandchildren/">literally surrounding their grandfather</a>. </p>
<p>The indictment wasn’t the only bad news for the Bidens – father and son – in one week. Hunter Biden had already become the ultimate lightning rod for his father, with the announcement on Sept. 12, 2023, by the House GOP that they <a href="https://apnews.com/article/mccarthy-biden-impeachment-shutdown-house-republicans-b187202be8814f7acbdd6e2e937e23d4">will undertake impeachment proceedings</a> based largely on the president’s alleged interactions with his son’s business ventures. Hunter Biden’s place in the story of presidential children is thus clear, a story that politicians now know by heart: As a crucial element in his father’s public image – for better or for worse.</p><img src="https://counter.theconversation.com/content/212233/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter Kastor does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Politics, age and gender combine to shape the understanding of presidents’ families – and the presidents themselves.Peter Kastor, Professor of History & American Culture Studies, Associate Vice Dean of Research, Arts & Sciences at Washington University in St. LouisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2121882023-08-31T12:19:42Z2023-08-31T12:19:42ZSpecial counsels, like the one leading the Justice Department’s investigation of Hunter Biden, are intended to be independent − but they aren’t entirely<figure><img src="https://images.theconversation.com/files/545070/original/file-20230828-25-umot03.jpg?ixlib=rb-1.1.0&rect=35%2C17%2C5955%2C3970&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Attorney General Merrick Garland announces on Aug. 11, 2023, that he has appointed a special counsel to handle the investigations into Hunter Biden.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/attorney-general-merrick-garland-conducts-a-news-conference-news-photo/1592786287">Tom Williams/CQ-Roll Call, Inc via Getty Images</a></span></figcaption></figure><p>On <a href="https://www.npr.org/2023/06/20/1087173827/hunter-biden">June 20</a>, 2023, <a href="https://theconversation.com/a-brief-history-of-colorful-presidential-relatives-from-alice-roosevelt-to-hunter-biden-208183">Hunter Biden</a>, the second son of President Joe Biden, entered into <a href="https://www.collinsdictionary.com/us/dictionary/english/plea-agreement#google_vignette">a plea agreement</a> with prosecutors <a href="https://www.pbs.org/newshour/nation/hunter-biden-agrees-to-plea-deal-for-income-tax-and-illegal-weapon-charges">related to tax-related charges and the illegal possession of a firearm</a>.</p>
<p>On <a href="https://www.politico.com/news/2023/07/26/hunter-biden-plea-deal-00108276">July 26</a>, <a href="https://www.politico.com/news/2023/07/26/proposed-hunter-biden-plea-agreement-00108426">the plea agreement</a> was challenged by <a href="https://abcnews.go.com/Politics/maryellen-noreika-trump-appointed-judge-weighing-hunter-bidens/story?id=101670909">the judge in the case</a>. <a href="https://www.npr.org/2023/07/26/1190211798/hunter-biden-plea-tax-charges">She wanted to know more</a> about any immunity being offered, given that Hunter Biden is under several <a href="https://www.nytimes.com/2023/08/11/us/politics/hunter-biden-legal-troubles-timeline.html">federal investigations</a>.</p>
<p>After the prosecution and defense <a href="https://theconversation.com/hunter-bidens-plea-agreement-renegotiation-is-rare-a-law-professor-explains-what-usually-happens-210531">failed to renegotiate</a> the deal, Attorney General Merrick Garland announced on Aug. 11 that <a href="https://www.justice.gov/usao-de/meet-us-attorney">U.S. Attorney David Weiss</a>, the Donald Trump-appointed lead federal prosecutor for Delaware who had already been investigating the case, had been <a href="https://www.justice.gov/opa/pr/appointment-special-counsel-2">appointed as special counsel</a> so that he would have “the authority he needs to conduct a thorough investigation and to continue to take the steps he deems appropriate independently, based only on the facts and the law.”</p>
<p>After the appointment, Sen. Dick Durbin, an Illinois Democrat, <a href="https://www.durbin.senate.gov/newsroom/press-releases/durbin-statement-on-the-appointment-of-us-attorney-weiss-as-special-counsel-to-investigate-hunter-biden-matters">praised Garland</a> for being “committed to avoiding even the appearance of politicization at the Justice Department.”</p>
<p>Sen. Lindsey Graham, a South Carolina Republican, however, <a href="https://www.foxnews.com/media/sen-graham-slams-doj-special-counsel-hunter-biden-probe-dumb-political-decision">attacked Weiss’ appointment</a> as “<a href="https://youtu.be/nxmlZMIEqio?feature=shared&t=376">a dumb political decision,</a>” despite having <a href="https://www.cassidy.senate.gov/imo/media/doc/Hunter%20Biden%20Special%20Counsel%20Letter%20FINAL.pdf">previously supported it</a>. </p>
<p>From my perspective as <a href="https://scholar.google.com/citations?user=vXXZBEkAAAAJ&hl=en">a political scientist</a>, I believe that while special counsels are intended to be independent, in practice they aren’t entirely. Here’s why.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/545071/original/file-20230828-21-az92sj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man stands at a lectern and gestures with one hand." src="https://images.theconversation.com/files/545071/original/file-20230828-21-az92sj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/545071/original/file-20230828-21-az92sj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=717&fit=crop&dpr=1 600w, https://images.theconversation.com/files/545071/original/file-20230828-21-az92sj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=717&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/545071/original/file-20230828-21-az92sj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=717&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/545071/original/file-20230828-21-az92sj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=901&fit=crop&dpr=1 754w, https://images.theconversation.com/files/545071/original/file-20230828-21-az92sj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=901&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/545071/original/file-20230828-21-az92sj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=901&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">David Weiss, pictured here in 2009, has been a federal prosecutor in Delaware since 2007. He is now also a special counsel investigating Hunter Biden.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/IranSmugglingCharges/583ef025e2af4147807840b335c4e391/photo">AP Photo/Ron Soliman</a></span>
</figcaption>
</figure>
<h2>Independent and special counsels</h2>
<p>Ensuring impartiality in the Justice Department can be difficult, as the attorney general is <a href="https://theconversation.com/should-the-president-pick-the-attorney-general-141333">appointed by</a> – and answerable to – a partisan president. This gives presidents the power to try to compel attorneys general to pursue a political agenda. President <a href="https://www.whitehouse.gov/about-the-white-house/presidents/richard-m-nixon/">Richard Nixon</a> did this during the investigation of the Watergate break-in, which threatened to implicate him in criminal acts. </p>
<p>On the evening of <a href="https://www.npr.org/2018/10/21/659279158/a-brief-history-of-nixons-saturday-night-massacre">Oct. 20, 1973</a>, Nixon ordered Attorney General <a href="https://www.justice.gov/ag/bio/richardson-elliot-lee">Elliot Richardson</a> to fire <a href="https://www.justice.gov/osg/bio/archibald-cox">Archibald Cox</a>, whom Richardson had appointed to lead the Watergate investigation. Richardson refused and resigned. Nixon then ordered Deputy Attorney General <a href="https://www.npr.org/2019/11/27/783492672/william-ruckelshaus-who-defied-nixon-in-saturday-night-massacre-has-died-at-87">William Ruckelshaus</a> to fire Cox. Ruckelshaus also refused and resigned. Finally, Nixon ordered Solicitor General <a href="https://www.justice.gov/osg/bio/robert-h-bork">Robert Bork</a>, the next most senior official at the Justice Department, to fire Cox. Bork complied. </p>
<p>This shocking series of events, often referred to as the <a href="https://www.youtube.com/watch?v=LZuthKhjAfk">Saturday Night Massacre</a>, demonstrated how presidents could exercise political power over criminal investigations.</p>
<p>As a result of the Watergate scandal, Congress passed the <a href="https://www.congress.gov/95/statute/STATUTE-92/STATUTE-92-Pg1824.pdf">Ethics in Government Act of 1978</a>. This allowed for investigations into misconduct that could operate outside of presidential control.</p>
<p>After passage of this legislation, if the attorney general received “specific information” alleging that the president, <a href="https://theconversation.com/what-does-the-vice-president-do-152467">vice president</a> or other <a href="https://www.law.cornell.edu/uscode/text/28/591">high-ranking executive branch officials</a> had committed a serious federal offense, the attorney general would ask a special three-judge panel to appoint an independent counsel, who would investigate. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/545072/original/file-20230828-158158-fmojfm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A black and white photo of a man in a suit pointing at a table stacked with bound volumes." src="https://images.theconversation.com/files/545072/original/file-20230828-158158-fmojfm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/545072/original/file-20230828-158158-fmojfm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=403&fit=crop&dpr=1 600w, https://images.theconversation.com/files/545072/original/file-20230828-158158-fmojfm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=403&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/545072/original/file-20230828-158158-fmojfm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=403&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/545072/original/file-20230828-158158-fmojfm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=506&fit=crop&dpr=1 754w, https://images.theconversation.com/files/545072/original/file-20230828-158158-fmojfm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=506&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/545072/original/file-20230828-158158-fmojfm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=506&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Richard Nixon, here pointing to transcripts of White House tapes he agreed to turn over to congressional investigators, was an inspiration for the 1978 law that created truly independent counsels. It expired in 1999.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/PresidentsLegalTroubles/dbf0e83250c040109016f9bbb50081ea/photo">AP Photo</a></span>
</figcaption>
</figure>
<p>The Ethics in Government Act also disqualified Justice Department employees, including the attorney general, from participating in any investigation or prosecution that could “<a href="https://www.congress.gov/95/statute/STATUTE-92/STATUTE-92-Pg1824.pdf">result in a personal, financial, or political conflict of interest</a>, or the appearance thereof.”</p>
<p>In the decades since the law’s passage, independent counsels investigated <a href="https://www.hsdl.org/c/abstract/?docid=814877">Republicans</a> and <a href="https://www.govinfo.gov/content/pkg/CDOC-105hdoc310/pdf/CDOC-105hdoc310.pdf">Democrats</a> alike. In 1999, <a href="https://www.cnn.com/ALLPOLITICS/stories/1999/03/01/independent.counsel/">Congress</a> let the Ethics in Government Act expire. That year, then-Attorney General <a href="https://www.justice.gov/archive/ag/testimony/1999/aggovern031799.htm">Janet Reno</a> <a href="https://www.washingtonpost.com/wp-srv/politics/special/counsels/stories/counsel063099.htm">authorized</a> the appointment of special counsels, who could investigate certain sensitive matters, similar to the way independent counsels operated. </p>
<p>Robert Mueller, who was appointed in <a href="https://www.justice.gov/opa/pr/appointment-special-counsel">2017</a> by Deputy Attorney General Rod Rosenstein to investigate <a href="https://theconversation.com/russian-interventions-in-other-peoples-elections-a-brief-history-74406">possible Russian interference</a> in the 2016 elections and <a href="https://theconversation.com/fbis-russia-probe-threatens-a-reckoning-for-team-trump-75002">possible links between the Trump campaign and the Russian government</a>, was a special counsel. Some Republicans accused him of <a href="https://www.bbc.com/news/world-us-canada-42372603">bias</a>, despite his long career serving under <a href="https://www.npr.org/2018/02/01/582358540/muellers-reputation-in-washington-is-stunningly-bipartisan-journalist-says">both Democratic and Republican presidents</a>.</p>
<p>In <a href="https://www.justice.gov/sco-durham">2020</a>, John Durham – another <a href="https://www.nbcconnecticut.com/news/local/u-s-attorney-for-connecticut-john-durham-resigns/2432294/">veteran</a> of the Justice Department – was appointed as special counsel to <a href="https://www.justice.gov/storage/durhamreport.pdf">investigate</a> the origins of the investigation that triggered Mueller’s appointment. Michael Sussmann, a former Democratic Party lawyer and target of that probe, accused Durham of <a href="https://www.npr.org/2022/02/15/1080841516/john-durham-sussmann-trump-russia-investigation">political prosecution</a>. Sussmann was later <a href="https://www.nytimes.com/2022/05/31/us/politics/michael-sussmann-durham-fbi.html">acquitted</a>.</p>
<h2>Politicizing the process</h2>
<p>Although special counsels were meant to resemble independent counsels, there are notable differences.</p>
<p><a href="https://sgp.fas.org/crs/misc/R43112.pdf">For instance</a>, while special counsels operate independently of the attorney general, both their appointment and the scope of their investigations are determined by the attorney general. In contrast, the appointment of independent counsels and the scope of their investigations were determined by a three-judge panel, which in turn was appointed by the <a href="https://www.supremecourt.gov/about/about.aspx">chief justice</a> <a href="https://theconversation.com/states-pick-judges-very-differently-from-us-supreme-court-appointments-160142">of the United States</a>.</p>
<p>Also, since Congress authorized independent counsels, presidential influence was limited by law. In contrast, since Justice Department regulations authorize special counsels, a president could try to compel the attorney general to change departmental interpretation of these regulations – or even just revoke them entirely – to influence or <a href="https://www.politico.com/story/2017/06/13/can-trump-fire-special-counsel-robert-mueller-239500">end</a> a special counsel investigation. </p>
<p>For example, on at least one occasion, Trump <a href="https://www.nytimes.com/2018/01/25/us/politics/trump-mueller-special-counsel-russia.html">sought to have Mueller dismissed</a>. When his attorney general, <a href="https://theconversation.com/3-things-jeff-sessions-did-as-attorney-general-that-history-should-remember-106614">Jeff Sessions</a>, <a href="https://twitter.com/realDonaldTrump/status/1235181043881299969">refused to comply</a>, Trump <a href="https://www.washingtonpost.com/politics/2020/03/04/an-emboldened-trump-says-quiet-part-out-loud-about-why-he-fired-jeff-sessions/">fired</a> him.</p>
<p>Sessions was later <a href="https://theconversation.com/should-the-president-pick-the-attorney-general-141333">replaced</a> by <a href="https://www.justice.gov/ag/bio/barr-william-pelham">William Barr</a>, who previously served as attorney general under President George H.W. Bush. Prior to his appointment, Barr sent an unsolicited memo to the Justice Department <a href="https://theconversation.com/nominating-a-crony-loyalist-or-old-buddy-for-attorney-general-is-a-us-presidential-tradition-108160">defending</a> Trump by arguing that presidents have “<a href="https://www.wsj.com/public/resources/documents/BarrMueller.pdf">complete authority to start or stop a law enforcement proceeding</a>.” </p>
<p><a href="https://doi.org/10.1371/journal.pone.0234938">In my own research</a>, <a href="https://doi.org/10.1016/j.soscij.2019.04.006">I have found</a> that abuses of power are more common in situations in which the president and the attorney general are political allies.</p>
<p>For instance, after Mueller finished his <a href="https://www.justice.gov/archives/sco/file/1373816/download">report</a> in 2019, Barr released a <a href="https://www.washingtonpost.com/context/read-attorney-general-barr-s-principal-conclusions-of-the-mueller-report/218b8095-c5e3-4eab-9135-4170f5b3e87f/">summary</a> of its “principal conclusions.” Later, Barr’s summary was criticized for “<a href="https://www.washingtonpost.com/context/special-counsel-mueller-s-letter-to-attorney-general-barr/e32695eb-c379-4696-845a-1b45ad32fff1/">not fully captur[ing] the context, nature, and substance</a>” of Mueller’s work.</p>
<p>In 2020, a Republican-appointed judge <a href="https://context-cdn.washingtonpost.com/notes/prod/default/documents/bd363044-e2ec-4a02-b0b3-43fbc48b2f49/note/f003c01c-cde9-4c1e-a926-bc74e461ca7f.pdf">ruled</a> that Barr “failed to provide a thorough representation of the findings set forth in the Mueller Report” and questioned whether Barr had “made a calculated attempt to influence public discourse … in favor of President Trump.”</p>
<h2>To be or not to be free of partisanship</h2>
<p>The independence of the Justice Department rests, in part, <a href="https://theconversation.com/will-merrick-garland-joe-bidens-pick-for-attorney-general-be-independent-in-that-role-history-says-its-unlikely-151952">on who occupies</a> the offices of president and attorney general.</p>
<p>Trump, for example, <a href="https://www.washingtonpost.com/politics/post-impeachment-trump-declares-himself-the-chief-law-enforcement-officer-of-america/2020/02/18/b8ff49c0-5290-11ea-b119-4faabac6674f_story.html">saw himself</a> as “the chief law enforcement officer of the country” and thought it was appropriate to “be totally involved.” </p>
<p>Meanwhile, Joe Biden has <a href="https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=3093&context=nclr">a long history</a> of supporting the independence of Justice Department investigations, dating back to his <a href="https://www.judiciary.senate.gov/about/chairman/previous">1987-1995 tenure as chairman of the Senate Judiciary Committee</a>.</p>
<p>Barr once <a href="https://www.washingtonpost.com/opinions/former-attorney-general-trump-was-right-to-fire-sally-yates/2017/02/01/5981d890-e809-11e6-80c2-30e57e57e05d_story.html">argued</a> that the attorney general’s role is to advance “all colorable arguments that can [be] mustered … when the president determines an action is within his authority – even if that conclusion is debatable.” </p>
<p>In contrast, Garland – a former U.S. circuit judge – <a href="https://www.justice.gov/opa/pr/statement-attorney-general-merrick-b-garland">insists</a> that “political or other improper considerations must play no role in any investigative or prosecutorial decisions.”</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1690111067576254464"}"></div></p>
<figure><figcaption><span class="caption">Republican Congresswoman Marjorie Taylor Greene has claimed the Biden administration is using the Justice Department unfairly.</span></figcaption></figure>
<p>Garland has served as attorney general for only 2½ years, yet at this point he has appointed more special counsels than <a href="https://www.reuters.com/article/usa-trump-russia-investigations-idINKCN1R01C1">any of</a> <a href="https://www.axios.com/2023/01/13/special-counsel-history-biden-trump-classified">his predecessors</a>.</p>
<p>The first, <a href="https://www.justice.gov/opa/pr/appointment-special-counsel-0">Jack Smith</a>, is overseeing investigations into former President Donald Trump’s role in the <a href="https://theconversation.com/pro-trump-rioters-storm-u-s-capitol-as-his-election-tantrum-leads-to-violence-149142">Jan. 6 insurrection</a>, as well as Trump’s <a href="https://theconversation.com/fbis-mar-a-lago-search-warrant-affidavit-reveals-how-trump-may-have-compromised-national-security-a-legal-expert-answers-5-key-questions-189500">handling of classified government documents</a> upon leaving office in 2021. The second, <a href="https://www.justice.gov/opa/pr/appointment-special-counsel-1">Robert Hur</a>, is overseeing President Joe Biden’s handling of classified documents after leaving office as <a href="https://theconversation.com/kamala-harris-has-tied-the-record-for-the-most-tie-breaking-votes-in-senate-history-a-brief-overview-of-what-vice-presidents-do-210444">vice president</a> in 2017. Weiss’ investigation of Hunter Biden is Garland’s third special counsel appointment.</p>
<p>However, despite attempts by Garland to keep sensitive cases an arm’s length away, the reality is that special counsels – by design – are not as independent as the independent counsels of the past. As a result, the perception of <a href="https://truthsocial.com/@realDonaldTrump/posts/109423468870178087">political prosecution</a> can be hard to avoid.</p>
<p><em>This is an updated version of an <a href="https://theconversation.com/special-counsels-like-those-examining-bidens-and-trumps-handling-of-classified-documents-are-intended-to-be-independent-but-they-arent-entirely-197773">article</a> published Jan. 13, 2023, which was an updated version of an <a href="https://theconversation.com/special-counsels-like-the-one-leading-the-department-of-justices-investigation-of-trump-are-intended-to-be-independent-but-they-arent-entirely-195640">article</a> originally published Dec. 14, 2022.</em></p><img src="https://counter.theconversation.com/content/212188/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joshua Holzer does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Special counsels can help presidential administrations avoid the perception of bias, but they are not as independent as the independent counsels of the past.Joshua Holzer, Assistant Professor of Political Science, Westminster CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2111692023-08-09T22:31:08Z2023-08-09T22:31:08ZThe U.S. tendency to mythologize presidents may explain Donald Trump’s appeal<figure><img src="https://images.theconversation.com/files/541832/original/file-20230809-21-19f9mv.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C4873%2C3195&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Republican presidential candidate former President Donald Trump acknowledges a supporter at a campaign rally on Aug. 8, 2023, at a high school in New Hampshire.</span> <span class="attribution"><span class="source">(AP Photo/Robert F. Bukaty)</span></span></figcaption></figure><iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/the-us-tendency-to-mythologize-presidents-may-explain-donald-trumps-appeal" width="100%" height="400"></iframe>
<p>Donald Trump faces three separate indictments — over 70 criminal and felony counts — <a href="https://www.nytimes.com/2023/08/08/us/trump-georgia-election-grand-jury.html">with additional charges likely to come in the days ahead</a>.</p>
<p>But more stunning than the unprecedented legal cases against the former president is that Trump stands a solid chance of being re-elected president of the United States in 2024.</p>
<p>In most democracies, someone facing serious legal proceedings would not be able to run for office due to constitutional barriers or the inability to be nominated by a political party. Although ex-leaders in other nations are <a href="https://theconversation.com/prosecuting-a-president-is-divisive-and-sometimes-destabilizing-heres-why-many-countries-do-it-anyway-188565">investigated, prosecuted and sometimes even jailed</a>, they very rarely return to power.</p>
<p>What accounts for Trump’s continuing appeal to many American voters?</p>
<figure class="align-center ">
<img alt="A blond man wearing a blue suit and a red tie steps out of an aircraft. His tie and hair blow in the wind." src="https://images.theconversation.com/files/541831/original/file-20230809-15-o0tbaa.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C6501%2C4243&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/541831/original/file-20230809-15-o0tbaa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/541831/original/file-20230809-15-o0tbaa.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/541831/original/file-20230809-15-o0tbaa.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/541831/original/file-20230809-15-o0tbaa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/541831/original/file-20230809-15-o0tbaa.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/541831/original/file-20230809-15-o0tbaa.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Former president Donald Trump arrives at Ronald Reagan Washington National Airport on Aug. 3, 2023, to face a judge on federal conspiracy charges alleging he conspired to subvert the 2020 election. He pleaded not guilty.</span>
<span class="attribution"><span class="source">(AP Photo/Alex Brandon)</span></span>
</figcaption>
</figure>
<h2>American exceptionalism</h2>
<p>American presidents have always been seen to be exceptional individuals. The <a href="https://www.aljazeera.com/features/2021/1/14/why-does-the-us-mythologise-its-former-presidents">myths around U.S. presidents are large</a> and grow over time. </p>
<p>George Washington’s bravery and leadership ensuring victory during the War of Independence. Abraham Lincoln’s honesty and idealism prevailing during the Civil War. Franklin D. Roosevelt’s vision and determination defeating both the Great Depression in the 1930s and the Axis powers during the Second World War.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/541833/original/file-20230809-15-dlv2tb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An elderly man with white hair and a jacket and shirt smiles." src="https://images.theconversation.com/files/541833/original/file-20230809-15-dlv2tb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/541833/original/file-20230809-15-dlv2tb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/541833/original/file-20230809-15-dlv2tb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/541833/original/file-20230809-15-dlv2tb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/541833/original/file-20230809-15-dlv2tb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/541833/original/file-20230809-15-dlv2tb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/541833/original/file-20230809-15-dlv2tb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">In this November 2019 photo, former president Jimmy Carter teaches Sunday school at a Baptist church in Plains, Ga.</span>
<span class="attribution"><span class="source">(AP Photo/John Amis)</span></span>
</figcaption>
</figure>
<p>Even for a presidency deemed less than successful, post-White House actions — as demonstrated by Jimmy Carter’s human rights activism — can redeem a legacy and <a href="https://www.vox.com/2015/8/17/9163717/jimmy-carter-great-leader-outsider">elevate the former president to near mythic status</a>.</p>
<p>Being a typical or average politician running for president will not entice political donors, supporters and voters. Instead, Americans like to believe their presidential candidates have fought their way to the party’s nomination and to election day.</p>
<p>Each president <a href="https://www.thedailybeast.com/how-jackie-kennedy-invented-the-camelot-legend-after-jfks-death">has his own myth</a>, such as rising from poverty, remaining calm under even the most dire circumstances, staring down American enemies abroad or using their status after the end of their years in the White House for the benefit of humanity.</p>
<p>Amid his legal battles, Trump is capitalizing on the desire of some Americans to regard their leaders as larger than life. In the U.S., the president is both head of state and head of government. That isn’t the case in many countries, and it results in far less pressure for one person to embody an entire nation and its people.</p>
<p>In the Trump mythology, the criminal charges are but the arrows of his political enemies, the civil charges but the jabs of the jealous. For Americans — <a href="https://worldpopulationreview.com/country-rankings/lawyers-per-capita-by-country">with more lawyers per capita than any other nation</a> — being charged with a crime is not as uncommon as it is elsewhere. An estimated <a href="https://www.cnn.com/2021/04/27/perspectives/second-chance-hiring-dimon/index.html">70 million Americans have a criminal record</a>.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1643642612979728388"}"></div></p>
<h2>Trump never backs down</h2>
<p>Trump battles on. He never gives in. He always denies wrongdoing. He is ever ready to delay and appeal. He’s always looking for the next legal and political battle. He’s ever vigilant of public perception, and he makes sure to pander to his base of supporters.</p>
<p>His aim to return to the presidency <a href="https://thehill.com/opinion/civil-rights/483935-we-must-reject-trumps-coup-on-the-american-dream/">is the American dream</a>. Every child is taught that no matter what his or her circumstances, attaining the highest office in the land is within grasp. </p>
<p>Trump lost after only one term, sought to remain in office, is accused of inciting a riot to stay in power and then held onto classified documents, among other alleged and actual misdeeds. In the face of so much adversity — even though it’s largely of his own making — Trump’s return to the political arena represents the epitome of the American dream for some.</p>
<p>After all, that dream is one of equal opportunity for all so that everyone can attain their highest goals. From this viewpoint, Trump’s legal woes are simply obstacles that need to be overcome to reach the final goal.</p>
<figure class="align-center ">
<img alt="Hundreds of people storm the Capital building. Tear gas and Trump banners are seen amid the chaos." src="https://images.theconversation.com/files/541834/original/file-20230809-25-j8r79e.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/541834/original/file-20230809-25-j8r79e.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/541834/original/file-20230809-25-j8r79e.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/541834/original/file-20230809-25-j8r79e.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/541834/original/file-20230809-25-j8r79e.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/541834/original/file-20230809-25-j8r79e.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/541834/original/file-20230809-25-j8r79e.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Insurrectionists loyal to Donald Trump storm the Capitol on Jan. 6, 2021, in Washington.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/THE ASSOCIATED PRESS/John Minchillo</span></span>
</figcaption>
</figure>
<h2>Trump’s stature is enhanced</h2>
<p>Trump portrays himself as a man who, through grit and good old American “never-say-die” determination, is following his dream. Being <a href="https://nymag.com/intelligencer/article/what-are-the-legal-cases-against-donald-trump.html">the only former president to be indicted</a> just adds to the magnitude of the hurdles he must clear — and enhances his stature among supporters.</p>
<p>Nothing in the American constitution or federal laws prevents Trump from seeking the presidency or serving if elected. </p>
<p><a href="https://www.cnbc.com/2021/02/13/senate-acquits-former-president-donald-trump-on-charge-of-inciting-insurrection-at-us-capitol-.html">Because the Republican-controlled U.S. Senate acquitted Trump</a> of inciting the Jan. 6 Capitol Hill insurrection, he meets all remaining <a href="https://www.usa.gov/requirements-for-presidential-candidates">constitutional criteria:</a> he’s at least 35 years old, he’s a natural-born citizen and he’s lived in the U.S. for at least 14 years.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1360693221102399491"}"></div></p>
<p>There is a long list of American politicians, most recently Joe Biden, who have faced defeat throughout the course of their careers only to win substantially years later. Second and third chances are common in presidential campaigns. </p>
<p><a href="https://www.npr.org/2020/08/16/902640265/joe-bidens-long-and-rocky-road-to-the-democratic-nomination">Biden sought the Democratic nomination three times</a>. <a href="https://millercenter.org/president/reagan/campaigns-and-elections">Ronald Reagan lost his first run at the Republican nomination</a>. Richard Nixon <a href="https://www.whitehouse.gov/about-the-white-house/presidents/richard-m-nixon/">lost his first election for president but prevailed eight years later.</a></p>
<p>It’s the electorate, not the courts, that will decide Trump’s fate in the fall of 2024. Many voters appear willing to give Trump a second chance, regardless of his legal travails.</p><img src="https://counter.theconversation.com/content/211169/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thomas Klassen does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It’s the electorate, not the courts, that will decide Donald Trump’s fate in 2024. Many voters appear willing to give him a second chance — as Americans often do when it comes to former presidentsThomas Klassen, Professor, School of Public Policy and Administration, York University, CanadaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2104442023-08-08T19:07:18Z2023-08-08T19:07:18ZKamala Harris has tied the record for the most tie-breaking votes in Senate history – a brief overview of what vice presidents do<figure><img src="https://images.theconversation.com/files/540877/original/file-20230802-6332-61kj04.jpg?ixlib=rb-1.1.0&rect=49%2C21%2C4690%2C3453&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Vice President Kamala Harris arrives to cast a tiebreaking vote in the U.S. Senate.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/vice-president-kamala-harris-arrives-at-the-senate-chamber-news-photo/1500382345">Kevin Dietsch/Getty Images</a></span></figcaption></figure><p>On Jan. 20, 2021, <a href="https://theconversation.com/who-is-kamala-harris-joe-bidens-pick-for-vice-president-144122">Kamala Harris</a> became the <a href="https://theconversation.com/kamala-harris-represents-an-opportunity-for-coalition-building-between-blacks-and-asian-americans-144547">first African American, the first person of South Asian descent</a> and the <a href="https://theconversation.com/before-kamala-harris-became-bidens-running-mate-shirley-chisholm-and-other-black-women-aimed-for-the-white-house-143655">first</a> <a href="https://theconversation.com/call-in-the-women-chrystia-freeland-and-kamala-harriss-new-roles-respond-to-the-times-144896">woman</a> to serve as vice president of the United States.</p>
<p>More recently, <a href="https://apnews.com/article/kamala-harris-tiebreaker-vote-db39d642bc423f4984b0ad7b32139ecb">she made history again</a> by casting her 31st tie-breaking vote in the Senate, matching only one other vice president’s record for such votes. <a href="https://rollcall.com/2023/07/12/harris-ties-calhouns-191-year-old-record-for-breaking-senate-ties/">John C. Calhoun</a>, who was vice president from 1825 to 1832, needed all eight years of his term to reach that number. In contrast, Harris has only been in office for two and a half years.</p>
<p>If her tie-breaking continues, Harris could end up as one of the most <a href="https://thehill.com/opinion/white-house/3689844-why-kamala-harris-is-already-among-the-most-consequential-vice-presidents-in-history/">consequential</a> vice presidents in history, casting the deciding votes on several laws, <a href="https://theconversation.com/states-pick-judges-very-differently-from-us-supreme-court-appointments-160142">judicial nominations</a> and spending plans. However, this distinction says more about the Senate than the amount of power the vice president actually wields.</p>
<h2>The ‘most insignificant’ office?</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/377394/original/file-20210106-23-4hlt3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="John Adams" src="https://images.theconversation.com/files/377394/original/file-20210106-23-4hlt3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/377394/original/file-20210106-23-4hlt3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=727&fit=crop&dpr=1 600w, https://images.theconversation.com/files/377394/original/file-20210106-23-4hlt3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=727&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/377394/original/file-20210106-23-4hlt3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=727&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/377394/original/file-20210106-23-4hlt3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=914&fit=crop&dpr=1 754w, https://images.theconversation.com/files/377394/original/file-20210106-23-4hlt3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=914&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/377394/original/file-20210106-23-4hlt3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=914&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">John Adams, the nation’s first vice president, called the job ‘the most insignificant Office.’</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/File:Gilbert_Stuart,_John_Adams,_c._1800-1815,_NGA_42933.jpg">Gilbert Stuart, National Gallery of Art via Wikimedia Commons</a></span>
</figcaption>
</figure>
<p>The role of vice president is only mentioned in the <a href="https://www.archives.gov/founding-docs/constitution-transcript">U.S. Constitution</a> a handful of times.</p>
<p>Article I, Section 3 says that the vice president “<a href="https://www.archives.gov/founding-docs/constitution-transcript#toc-section-3-">shall be President of the Senate but shall have no Vote</a>” except in the event of a tie. Historically, ties have been rare. Since 1789, only <a href="https://www.senate.gov/legislative/TieVotes.htm">299 tie-breaking votes</a> have been cast, and 12 vice presidents, including current President Joe Biden, <a href="https://www.senate.gov/artandhistory/history/resources/pdf/VPTies.pdf">never cast a single one</a>.</p>
<p>The beginning of Article II, Section 1 explains how vice presidents are elected, which was later revised by the <a href="https://www.law.cornell.edu/constitution/amendmentxii">12th Amendment</a>. The end of that section states that presidential power “<a href="https://www.archives.gov/founding-docs/constitution-transcript#toc-section-1--2">shall devolve on the Vice President</a>” in the event of the president’s “Death, Resignation, or Inability to discharge the Powers and Duties of the said Office.”</p>
<p><a href="https://www.law.cornell.edu/constitution-conan/article-2/section-1/clause-6/succession-clause-for-the-presidency">As written, it is unclear</a> whether this meant that a vice president became the new president or was simply serving in an acting capacity. This was later clarified with the passage of the 25th Amendment, which states that “<a href="https://www.law.cornell.edu/constitution/amendmentxxv">the Vice President shall become President</a>.” The 25th Amendment also outlines how to fill a vacancy in the vice presidency, and it provides a mechanism for the vice president to serve temporarily as president if a president becomes “<a href="https://theconversation.com/what-the-25th-amendment-says-about-presidents-who-are-unable-to-serve-102825">unable to discharge the powers and duties</a> of his office.”</p>
<p>Finally, Article II, Section 4 states that vice presidents, like presidents, can be “<a href="https://www.archives.gov/founding-docs/constitution-transcript#toc-section-4--2">removed from Office</a> on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” </p>
<p>So, other than <a href="https://archive.nytimes.com/www.nytimes.com/learning/general/onthisday/big/1010.html">staying out of trouble</a> to avoid impeachment and waiting around to <a href="https://tbsnews.net/world/what-happens-when-us-president-dies-or-incapacitated-141037">serve as</a> – or replace – the president, vice presidents are really only obligated to <a href="https://www.nbcnews.com/politics/congress/mike-pence-casts-tie-breaking-vote-confirm-betsy-devos-education-n717836">occasionally cast a tiebreaking vote</a> in the Senate. This means that the great majority of the time, vice presidents have no real job to do.</p>
<p>John Adams, the first U.S. vice president, once complained to his wife that the vice presidency was “<a href="https://founders.archives.gov/documents/Adams/04-09-02-0278">the most insignificant Office</a> that ever the Invention of Man contrived or his Imagination conceived.” </p>
<p>However, not all have been upset about such inactivity. Woodrow Wilson’s vice president, Thomas Marshall, <a href="https://www.pbs.org/wgbh/americanexperience/features/wilson-thomas-marshall/">quipped after he retired</a>: “I don’t want to work … [but] I wouldn’t mind being Vice President again.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/377397/original/file-20210106-17-109o8zz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Will Hays with Warren Harding and Calvin Coolidge" src="https://images.theconversation.com/files/377397/original/file-20210106-17-109o8zz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/377397/original/file-20210106-17-109o8zz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=437&fit=crop&dpr=1 600w, https://images.theconversation.com/files/377397/original/file-20210106-17-109o8zz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=437&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/377397/original/file-20210106-17-109o8zz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=437&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/377397/original/file-20210106-17-109o8zz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=549&fit=crop&dpr=1 754w, https://images.theconversation.com/files/377397/original/file-20210106-17-109o8zz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=549&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/377397/original/file-20210106-17-109o8zz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=549&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Warren Harding, center, wanted his vice president, Calvin Coolidge, at right, to play an active role in governing.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/chairman-of-the-republican-national-committee-will-h-hays-news-photo/501167655">FPG/Keystone View Company/Archive Photos via Getty Images</a></span>
</figcaption>
</figure>
<h2>The ‘last voice in the room’</h2>
<p>Wilson’s successor as president, Warren Harding, had unconventional views about the importance of the role of the vice president. He thought that “the vice president should be <a href="https://www.govinfo.gov/content/pkg/CDOC-104sdoc26/pdf/CDOC-104sdoc26.pdf">more than a mere substitute in waiting</a>,” and he wished for his vice president, Calvin Coolidge, “to be a helpful part” of his administration. Coolidge later became the <a href="https://www.senate.gov/about/officers-staff/vice-president/VP_Calvin_Coolidge.htm">first vice president</a> in history to attend Cabinet meetings on a regular basis. </p>
<p>In 1923, Harding died, likely of a <a href="https://constitutioncenter.org/blog/after-90-years-president-warren-hardings-death-still-unsettled">heart attack</a>, and Coolidge succeeded him as president. “My experience in the Cabinet,” <a href="https://www.govinfo.gov/content/pkg/CDOC-104sdoc26/pdf/CDOC-104sdoc26.pdf">Coolidge later recalled</a>, “was of supreme value to me when I became President.”</p>
<p>After Harding and Coolidge, many later presidents reverted back to the tradition of keeping vice presidents an arm’s length away, even on key matters. Franklin D. Roosevelt, for instance, <a href="https://www.atomicheritage.org/history/manhattan-project">kept the atomic bomb a secret</a> from Vice President Harry S. Truman, who <a href="https://www.atomicheritage.org/profile/harry-truman">didn’t find out</a> about it until Roosevelt’s death.</p>
<p>For the 1960 presidential election, two-term Vice President Richard Nixon faced off against Sen. John F. Kennedy. At one point during the campaign, reporters asked then-President Dwight D. Eisenhower: “Can you think of a major contribution that Nixon has made to your administration?” Eisenhower replied: “<a href="https://www.virginiabusiness.com/article/how-many-u-s-vice-presidents-can-you-name/">Well, if you give me a week I might think of one</a>.” Nixon lost that election.</p>
<p>In 1976, Jimmy Carter picked Sen. Walter Mondale as his running mate. In a memo sent to Carter after winning the election, Mondale argued that “[t]he <a href="http://www2.mnhs.org/library/findaids/00697/pdf/Mondale-CarterMemo.pdf">biggest single problem of our recent administrations</a> has been the failure of the President to be exposed to independent analysis not conditioned by what it is thought he wants to hear or often what others want him to hear.” </p>
<p>Mondale’s vision for the role of vice president was “to offer impartial advice” so that Carter wouldn’t be “shielded from points of view that [he] should hear.” <a href="https://www.washingtonpost.com/news/monkey-cage/wp/2016/07/20/how-the-vice-president-became-a-powerful-and-influential-white-house-player/">Carter agreed</a> and subsequently made Mondale an integral part of his inner circle.</p>
<p>Biden served 36 years in the Senate before leaving to become Barack Obama’s vice president. When he agreed to be Obama’s running mate, Biden said he wanted to be the “<a href="https://www.chicagotribune.com/news/ct-xpm-2012-09-06-sns-rt-us-usa-campaign-bidenbre8850xj-20120906-story.html">last man in the room</a>” whenever important decisions were being made so he could give Obama his unfiltered opinion. When Biden picked Harris as his running mate, he said he “asked Kamala to be the <a href="https://abcnews.go.com/Politics/biden-harris-make-appearance-historic-democratic-ticket/story?id=72327968">last voice in the room</a>,” to “[c]hallenge [his] assumptions if she disagrees,” and to “[a]sk the hard questions.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/377399/original/file-20210106-21-14f67c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Jimmy Carter and Walter Mondale" src="https://images.theconversation.com/files/377399/original/file-20210106-21-14f67c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/377399/original/file-20210106-21-14f67c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=497&fit=crop&dpr=1 600w, https://images.theconversation.com/files/377399/original/file-20210106-21-14f67c.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=497&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/377399/original/file-20210106-21-14f67c.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=497&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/377399/original/file-20210106-21-14f67c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=624&fit=crop&dpr=1 754w, https://images.theconversation.com/files/377399/original/file-20210106-21-14f67c.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=624&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/377399/original/file-20210106-21-14f67c.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=624&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Vice President Walter Mondale, right, was an active part of President Jimmy Carter’s administration.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CarterMondale/160e66151d984d9fb00f4da936a7252f/photo">AP Photo/Harvey Georges</a></span>
</figcaption>
</figure>
<h2>An ally in an increasingly divided Senate</h2>
<p><a href="https://www.senate.gov/about/powers-procedures/filibusters-cloture.htm">Under the rules of the U.S. Senate</a>, if just one lawmaker doesn’t want a bill to advance, they can attempt to <a href="https://www.youtube.com/watch?v=0HJuaQL3KRI">delay</a> its passage indefinitely via <a href="https://theconversation.com/most-us-states-dont-have-a-filibuster-nor-do-many-democratic-countries-156093">the filibuster</a>. A supermajority of three-fifths of the senators, or 60 of the 100, is required <a href="https://theconversation.com/the-senate-filibuster-explained-and-why-it-should-be-allowed-to-die-123551">to stop the filibuster</a> – or signal that one would not succeed – and proceed to a vote.</p>
<p>Over the years, the Senate has made <a href="https://www.vox.com/policy-and-politics/2016/11/23/13709518/budget-reconciliation-explained">various procedural</a> <a href="https://www.nbcnews.com/politics/congress/nuclear-option-what-it-why-it-matters-n742076">changes</a> to the filibuster, limiting when it can be used.</p>
<p>The end result of <a href="https://www.brennancenter.org/our-work/research-reports/filibuster-reform-short-guide">these reforms</a> is that the Senate is now empowered to do more with just a simple majority. In addition, in recent years, the <a href="https://www.senate.gov/history/partydiv.htm">Senate has become increasingly divided</a>. Together, this has created the conditions that have empowered Harris to cast so many tie-breaking votes so quickly, solidifying both her place in history and <a href="https://theconversation.com/why-biden-might-drop-his-vice-president-and-reasons-why-he-shouldnt-199655">her place alongside Biden in the 2024 election</a>.</p>
<p><em>This is an updated version of an <a href="https://theconversation.com/what-does-the-vice-president-do-152467">article</a> initially published Jan. 19, 2021.</em></p><img src="https://counter.theconversation.com/content/210444/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joshua Holzer does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Kamala Harris is on track to be one of the most influential vice presidents in history. This says more about the Senate than the amount of power the vice president actually wields.Joshua Holzer, Assistant Professor of Political Science, Westminster CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2081432023-06-28T12:35:20Z2023-06-28T12:35:20ZThe New York Times worried that publishing the Pentagon Papers would destroy the newspaper — and the reputation of the US<figure><img src="https://images.theconversation.com/files/534167/original/file-20230626-5693-i6hmnh.jpeg?ixlib=rb-1.1.0&rect=17%2C17%2C2975%2C1808&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The New York Times resumed publication of its series of articles based on the Pentagon Papers in its July 1, 1971, edition, after it was given the green light by the Supreme Court. </span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/PentagonPapersInTheTimes/61378866a8224e64be95556e7b29dcb5/photo?Query=Pentagon%20Papers%20New%20York%20Times&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=1247&currentItemNo=0&vs=true">AP Photo/Jim Wells</a></span></figcaption></figure><p>The late <a href="https://www.nytimes.com/2023/06/16/us/daniel-ellsberg-dead.html">Daniel Ellsberg</a> was a former government contractor who leaked the classified history of the Vietnam War known as the Pentagon Papers to The New York Times. </p>
<p>In doing so, Ellsberg, who died on June 16, <a href="https://www.npr.org/2021/06/18/1007573283/how-the-pentagon-papers-changed-public-perception-of-the-war-in-vietnam">accelerated a shift in public opinion</a> against U.S. involvement in the Vietnam War and, some historians argue, led the Nixon administration to become ever more paranoid and secretive, eventually leading to the Watergate scandal and Nixon’s resignation. </p>
<p>But perhaps the most lasting effect the publication of the Pentagon Papers had was on The New York Times, which had been a solidly pro-establishment newspaper. </p>
<p>The Times almost chose not to publish the papers, since the editor and publisher worried about being sued or prosecuted by the federal government. But they also worried about ruining the international reputation of the U.S., which had reached new highs after World War II. </p>
<p>The leadership of the Times in the early 1970s was a generation older than the <a href="https://upress.missouri.edu/9780826222886/provoking-the-press/">younger reporters who agitated for change</a> from within and from without. They saw the stodgy, institutional Times as unable to accurately portray the turmoil of the 1960s and 1970s and pushed for the paper to reform itself to better speak to younger readers.</p>
<p>The decision to publish did not destroy the Times or the global standing of the U.S. It did begin to chip away at the hidebound paper’s reluctance to change too quickly or to damage political ties to the establishment. </p>
<p>While The New York Times is still slow to change, even more than 50 years after the Pentagon Papers affair, the incident did demonstrate that the paper was willing to jeopardize its connections to other powerful institutions, including the government, in order to serve the greater good – the public interest.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/534172/original/file-20230626-33139-1gwq8z.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A cover page of a publication, labeled 'Top Secret - Sensitive' and entitled 'United States - Vietnam Relations, 1945-1967'" src="https://images.theconversation.com/files/534172/original/file-20230626-33139-1gwq8z.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/534172/original/file-20230626-33139-1gwq8z.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=805&fit=crop&dpr=1 600w, https://images.theconversation.com/files/534172/original/file-20230626-33139-1gwq8z.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=805&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/534172/original/file-20230626-33139-1gwq8z.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=805&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/534172/original/file-20230626-33139-1gwq8z.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1012&fit=crop&dpr=1 754w, https://images.theconversation.com/files/534172/original/file-20230626-33139-1gwq8z.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1012&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/534172/original/file-20230626-33139-1gwq8z.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1012&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The cover page of ‘The History of U.S. Decision-making Process on Vietnam,’ otherwise known as the Pentagon Papers.</span>
<span class="attribution"><a class="source" href="https://nara-media-001.s3.amazonaws.com/arcmedia/research/pentagon-papers/Pentagon-Papers-Part-I.pdf">US National Archives</a></span>
</figcaption>
</figure>
<h2>The conservative New York Times?</h2>
<p><a href="https://scholar.google.com/citations?user=gJ-kc4sAAAAJ&hl=en&oi=ao">I</a> am a historian of American journalism who has studied the turbulent 1960s and early 1970s and the turmoil it created in news organizations, and <a href="https://www.pennpress.org/9780812248883/media-nation/">I have written about the Pentagon Papers</a> and The New York Times’ publication process. I based this research on the journal of A.M. “Abe” Rosenthal, who was the top editor at the paper during this period. Rosenthal’s journal is held at the <a href="https://www.nypl.org/locations/schwarzman/manuscripts-division">New York Public Library</a>.</p>
<p>To those who charge – wrongly – that The <a href="https://www.nytimes.com/2016/07/24/public-editor/liz-spayd-the-new-york-times-public-editor.html">New York Times is a left-wing mouthpiece</a>, it may come as a surprise that The New York Times of 1971 was a conservative institution, unwilling to make waves or make itself the story. The paper’s editorial and business leadership was also fairly politically conservative.</p>
<p>Harrison Salisbury, who was then an associate editor at the paper, recalled the politics of the paper’s executives and top editors in his 1980 memoir. None of the editors could “have won a prize in a flaming liberal contest,” he wrote. And Rosenthal was “the most conservative editor on the paper.” According to Salisbury, Rosenthal chafed at the counterculture and positioned himself “firmly against what he saw as shapeless anarchy swirling up from the streets.”</p>
<p>In the pages of the Times, this manifested as pro-establishment stories. </p>
<p>Times reporter and Pulitzer Prize winner <a href="http://www.davidhalberstam.com">David Halberstam</a> criticized his employer for choosing the government’s version of events in Vietnam over what Halberstam knew from his reporting to be true. </p>
<p>J. Anthony Lukas, another Pulitzer Prize winner for the paper, fought to characterize the trial of <a href="https://www.smithsonianmag.com/history/true-story-trial-chicago-7-180976063/">the Chicago 7</a>, a prosecution of political agitators at the 1968 Democratic National Convention, as a political show trial. The Times insisted that Lukas take the trial at face value, as the government presented it, which agitated Lukas enough that <a href="https://www.thecrimson.com/article/1970/11/17/chicago-the-barnyard-epithet-and-other/">he wrote a book about it</a>.</p>
<p>The Pentagon Papers were the government’s version of the early days of the Vietnam War, but they were a version that the government had not released to the public. The Defense Department had commissioned a secret history of the Vietnam War in order to avoid making the same mistakes it had made in that war in the future. </p>
<p>This study was highly classified because the story it told was not the same story that President Lyndon Johnson’s administration had told to the public, to news organizations or even to Congress. Instead, the papers showed that the government had systematically lied.</p>
<p>When reporter <a href="https://www.nytimes.com/2021/01/07/us/pentagon-papers-neil-sheehan.html">Neil Sheehan photocopied all of the documents</a> that Ellsberg had pilfered and made available to him, he did not immediately inform the Times’s top editor, or even Ellsberg himself. Sheehan knew that the papers were an explosive story, but he also knew that they were classified and that merely possessing them, let alone publishing them, would be a federal crime. </p>
<p>Ellsberg was certainly at risk of going to prison for smuggling them out, and the Times might also face substantial legal penalties. Rosenthal first heard of the papers in April 1971, at least a few weeks after Sheehan obtained them and long after Sheehan knew of their existence. </p>
<p>In his journal, Rosenthal wrote that the Times was “involved in one of the biggest, most voluminous and probably one of the saddest and most damaging stories it has ever confronted journalistically.” </p>
<p>Rosenthal immediately realized just how important the handling of the Pentagon Papers would be to the Times and for the country. In his journal, he ruminated on his loyalty to the Times and the risk that publishing the Pentagon Papers might damage or even destroy the paper if the government prosecuted individual reporters or editors – or successfully sued the Times out of business. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/534179/original/file-20230626-5418-rq42h7.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A dark-haired man in a suit and tie, wearing glasses and sitting down, looking happy." src="https://images.theconversation.com/files/534179/original/file-20230626-5418-rq42h7.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/534179/original/file-20230626-5418-rq42h7.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=747&fit=crop&dpr=1 600w, https://images.theconversation.com/files/534179/original/file-20230626-5418-rq42h7.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=747&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/534179/original/file-20230626-5418-rq42h7.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=747&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/534179/original/file-20230626-5418-rq42h7.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=939&fit=crop&dpr=1 754w, https://images.theconversation.com/files/534179/original/file-20230626-5418-rq42h7.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=939&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/534179/original/file-20230626-5418-rq42h7.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=939&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Abe Rosenthal in 1965. He joined The New York Times in 1943 and worked there for 56 years, until 1999.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/AbeRosenthal/c50b3644ffc545368fc4cad4bc1075d8/photo?Query=Abe%20Rosenthal&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=1&currentItemNo=0">AP</a></span>
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<h2>Challenging the establishment</h2>
<p>The Times was not the only institution that might be damaged by publication. The reputation of the entire nation was at stake, and this caused Rosenthal more worry than protecting the paper. </p>
<p>He wondered if loyalty to country lay in “adhering to a set of long accepted rules and laws, designed not only to protect politicians in general but, to the minds of many, to protect the country itself? Or did it lie in facing a decision to break those rules and laws?” In other words, would breaking the government’s rules on classification make the United States stronger by forcing the country to publicly grapple with its shortcomings?</p>
<p>Rosenthal even worried for a time that the Pentagon Papers were fake, concocted by a student activist group to lure the Times into legal peril and public disrepute.</p>
<p>Rosenthal rented first one, and then two suites at a hotel in New York so that the writers and editors could work in total secrecy away from the paper’s newsroom, sorting through the papers and making sense of them. Editors, executives and lawyers debated over whether stories about the papers could or should be published at all.</p>
<p>Despite his own doubts, Rosenthal eventually decided to move ahead. He had to persuade the publisher, Arthur Ochs “Punch” Sulzberger, that the paper should run the stories, and Sulzberger agreed – against the advice of the paper’s law firm. </p>
<p>Rosenthal told Sulzberger that “it would make a mockery of everything we ever told reporters, because how could we possibly ask them to go out in search for the truth at a time when the ultimate truth, the biggest story ever presented to The Times, had been placed in our laps and we turned away from it out of fear of the consequences of publication?”</p>
<p>Ellsberg himself only learned the Times would publish their series on the Pentagon Papers when the pages of the first installment had already been set in type and prepared for publication. At that point, even the source of the documents couldn’t stop the presses.</p>
<p>For the Times, the Pentagon Papers stories were an early reform of many that would come under Rosenthal and his successors. The reforms tried to address the concerns of the younger generation of reporters who were better in touch with a changing United States. They included expanded arts and cultural coverage, better treatment of women’s issues, and accountability measures such as <a href="https://doi.org/10.1080/00947679.2017.12059156">a daily corrections box</a>.</p>
<p>Rosenthal, and ultimately the Times as a whole, recognized that as the nation and world changed, so must the Times, to fulfill its duty to the public – and the public interest.</p><img src="https://counter.theconversation.com/content/208143/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kevin M. Lerner does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The New York Times’ publication of the Pentagon Papers showed the paper was willing to jeopardize connections to other powerful institutions, including the government, to serve the public interest.Kevin M. Lerner, Associate Professor of Journalism, Marist CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2064702023-05-26T16:10:35Z2023-05-26T16:10:35ZKissinger at 100: his legacy might be mixed but his importance has been enormous<p>Henry Kissinger, who <a href="https://edition.cnn.com/2023/05/23/opinions/henry-kissinger-100-birthday-legacy-andelman/index.html">turns 100 on May 27</a>, is widely regarded as one of the most influential figures in 20th-century international relations. The German-born American diplomat, scholar and strategist has left an indelible legacy in global politics that continues to act as a bookmark for international relations scholars, students and today’s practitioners of statecraft.</p>
<p>From the late 1960s, Kissinger played a momentous role in shaping US foreign policy and navigating the complex dynamics of the cold war era. His contributions to international relations have had a lasting impact, earning him recognition as a visionary strategist and diplomat. </p>
<p>Few would disagree that Kissinger’s influence on US foreign policy has been immense, importantly as a thinker and academic. But his most significant impact was through his work as secretary of state and national security adviser to US presidents Richard Nixon and Gerald Ford. </p>
<p>One of his key contributions was his work towards US rapprochement with the People’s Republic of China, planning Nixon’s <a href="https://theconversation.com/nixon-mao-meeting-four-lessons-from-50-years-of-us-china-relations-176485">historic trip to China in 1972</a> through covert negotiations and deft diplomacy. It was a milestone event in US foreign policy that has shaped Washington’s engagement with Beijing since.</p>
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Read more:
<a href="https://theconversation.com/nixon-mao-meeting-four-lessons-from-50-years-of-us-china-relations-176485">Nixon-Mao meeting: four lessons from 50 years of US-China relations</a>
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<p>Kissinger’s participation in negotiations for the <a href="https://ash.harvard.edu/50-years-later-legacy-paris-peace-accords-isn%E2%80%99t-one-peace">Paris peace accords</a> from 1968 to 1973, which effectively ended the direct US involvement in the Vietnam War, was another key achievement. His relentless efforts in shuttle diplomacy between the US, North Vietnam and South Vietnam, contributed to establishing a ceasefire and evacuating US soldiers, ending direct US involvement.</p>
<figure class="align-center ">
<img alt="Henry Kissinger, Richard Nixon and John Wayne sit around a desk in an office in front of flags." src="https://images.theconversation.com/files/528612/original/file-20230526-21-6lc99m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/528612/original/file-20230526-21-6lc99m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=404&fit=crop&dpr=1 600w, https://images.theconversation.com/files/528612/original/file-20230526-21-6lc99m.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=404&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/528612/original/file-20230526-21-6lc99m.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=404&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/528612/original/file-20230526-21-6lc99m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=508&fit=crop&dpr=1 754w, https://images.theconversation.com/files/528612/original/file-20230526-21-6lc99m.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=508&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/528612/original/file-20230526-21-6lc99m.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=508&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">All smiles: Henry Kissinger with Richard Nixon and actor John Wayne at Nixon’s home in San Clemente, California, July 1972.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Wayne_meets_with_President_Richard_Nixon_and_Henry_Kissinger_in_San_Clemente,_California,_July_1972.jpg">EatPay3/Wikimedia Commons</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span>
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<p>But despite the accolades, triumphs – and even the <a href="https://www.nobelprize.org/prizes/peace/1973/kissinger/acceptance-speech/#:%7E:text=Though%20I%20deeply%20cherish%20this,of%20social%20and%20political%20discontent.">Nobel peace prize in 1973</a> for his contribution to the Paris accords – Kissinger’s record and legacy are controversial. There has long been a debate concerning Kissinger’s approach to international affairs, which according to his many detractors often overlooked ethical considerations. </p>
<p>Concerns about links to violations of human rights and the undermining of democratic values were sparked by his backing for authoritarian regimes such as <a href="https://www.theguardian.com/world/1999/feb/28/pinochet.chile">Chile under Augusto Pinochet</a>. Regardless, Kissinger never wavered in his conviction that his diplomacy should put US interests first while appreciating the complexity of the international scene.</p>
<h2>Foreign policy</h2>
<p>From his days in government, and then through his continuing influence as a renowned scholar, Kissinger’s strategic thinking and diplomatic approach have shaped US foreign policy in significant ways.</p>
<p>The biggest contribution Kissinger made to US foreign policy was his advocacy for <a href="https://warontherocks.com/2015/12/the-kissinger-effect-on-realpolitik/">“realpolitik”</a>. He believed that the US should base its foreign policy decisions on a clear and systematic assessment of power dynamics and the pursuit of geopolitical stability. </p>
<p>It was an approach that emphasised the pragmatic pursuit of national interests instead of a strict adherence to abstract ideological principles. </p>
<p>The key feature of this realpolitik was the importance of maintaining a balance of power, believing the US should actively engage with other major powers to prevent any one nation from gaining hegenomy or threatening US dominance. </p>
<p>This approach shaped his handling of major geopolitical events during the cold war, such as the aforementioned <a href="https://www.kcl.ac.uk/the-50th-anniversary-of-kissingers-secret-trip-to-china-from-the-cold-war-to-a-new-cold-war">normalisation of the relations with China</a> as well as the development of a <a href="https://www.jstor.org/stable/45181235">détente policy towards the USSR</a> in the early 1970s. This perspective also emerged clearly in <a href="https://unherd.com/thepost/henry-kissinger-nato-membership-for-ukraine-is-appropriate/">his approach towards the Russian invasion of Ukraine</a>.</p>
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<p>Kissinger also made significant contributions to arms control and nuclear non-proliferation efforts during his tenure at the state department. His thinking on nuclear deterrence emphasised strategic stability and the need to prevent proliferation. </p>
<p>In this sense, his emphasis on negotiations and diplomatic engagement – intensified by his shuttle diplomacy method – managed to reduce the nuclear threat. </p>
<p>He played a pivotal role in negotiating the <a href="https://www.britannica.com/event/Strategic-Arms-Limitation-Talks">strategic arms limitation talks</a> (Salt) in the 1970s, which resulted in the landmark agreements <a href="https://history.state.gov/milestones/1969-1976/salt">Salt I (1972) and Salt II (1979)</a>, fostering <a href="https://www.jstor.org/stable/45331142">stability in US-USSR relations</a>. </p>
<figure class="align-center ">
<img alt="Henry Kissinger, Richard Nixon and Golda Meir stood smiling with aides." src="https://images.theconversation.com/files/528613/original/file-20230526-21-83cym8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/528613/original/file-20230526-21-83cym8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/528613/original/file-20230526-21-83cym8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/528613/original/file-20230526-21-83cym8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/528613/original/file-20230526-21-83cym8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=504&fit=crop&dpr=1 754w, https://images.theconversation.com/files/528613/original/file-20230526-21-83cym8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=504&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/528613/original/file-20230526-21-83cym8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=504&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Big player: Kissinger with US president Richard Nixon and Israeli prime minister Golda Meir outside the White House in 1973.</span>
<span class="attribution"><a class="source" href="https://picryl.com/media/israeli-prime-minister-golda-meir-standing-with-president-richard-nixon-and">Library of Congress</a></span>
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<p>In the Middle East, his <a href="https://www.jstor.org/stable/1148069">shuttle diplomacy</a> once again demonstrated his ability to bring adversaries to the negotiating table, notably during the Arab-Israeli conflicts of the 1970s and the negotiation of the <a href="https://peacemaker.un.org/egyptisrael-interimagreement75">Sinai II agreement</a> in 1975, which – temporarily at least – stabilised relations between Israel and Egypt.</p>
<h2>J'accuse: Kissinger’s critics</h2>
<p>But Kissinger’s legacy has also attracted foreceful criticism. Among his most vocal and persistent critics was the late British writer and journalist Christopher Hitchens. Hitchens’ book “<a href="https://www.amazon.co.uk/Trial-Henry-Kissinger-Christopher-Hitchens/dp/1859843980">The Trial of Henry Kissinger</a>” presented a series of arguments about alleged war crimes committed by his American “nemesis”. </p>
<figure class="align-left ">
<img alt="Cover of Christopher HItchens' book, The Trial of Henry Kissinger." src="https://images.theconversation.com/files/528614/original/file-20230526-23-i8ocrh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/528614/original/file-20230526-23-i8ocrh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=825&fit=crop&dpr=1 600w, https://images.theconversation.com/files/528614/original/file-20230526-23-i8ocrh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=825&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/528614/original/file-20230526-23-i8ocrh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=825&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/528614/original/file-20230526-23-i8ocrh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1037&fit=crop&dpr=1 754w, https://images.theconversation.com/files/528614/original/file-20230526-23-i8ocrh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1037&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/528614/original/file-20230526-23-i8ocrh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1037&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Christopher Hitchens accused Henry Kissinger of war crimes.</span>
<span class="attribution"><span class="source">Amazon</span></span>
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<p>Hitchens accused Kissinger of disregarding international law and violating the sovereignty of many nations. His alleged involvement in controversial military actions such as the <a href="https://gsp.yale.edu/sites/default/files/walrus_cambodiabombing_oct06.pdf">secret bombing campaigns</a> of Cambodia and Laos has drawn substantial criticism and raised concerns about accountability and transparency in US foreign policy decision-making. </p>
<p>Moreover, America – under his guidance – also stands accused of launching in covert operations to <a href="http://news.bbc.co.uk/onthisday/hi/dates/stories/september/11/newsid_3199000/3199155.stm">overthrow the legitimately elected president of Chile</a>, Salvador Allende, in 1973 in order to install Pinochet), and of turning a blind eye to human rights abuses that occurred during Pinochet’s regime. </p>
<p>Similarly the country’s ostensible support for the Suharto dictatorship in Indonesia disregarded human rights and basic ethics. Of this, Kissinger had <a href="https://www.spectator.co.uk/article/there-are-three-possible-outcomes-to-this-war-henry-kissinger-interview/">this to say</a> in a interview with The Spectator in 2022:</p>
<blockquote>
<p>I am, by instinct, a supporter of a belief that America – with all its failings – has been a force for good in the world and is indispensable for the stability of the world. It is in that region that I have made my conscious effort.</p>
</blockquote>
<p>Despite all the criticism, Kissinger endured and remains a respected international relations scholars and advisor to this day. After leaving government in 1977, he reentered academia, serving as a professor at Harvard University, where he had previously earned his doctorate in government. As a scholar, Kissinger wrote several influential books, including Diplomacy (1994), On China (2011), and World Order (2014).</p>
<p>That he was <a href="https://www.weforum.org/events/world-economic-forum-annual-meeting-2023/sessions/a-conversation-with-henry-kissinger-historical-perspectives-on-war">invited to address the World Economic Forum at Davos</a> this year shows that, although divisive, even today Henry Kissinger remains a highly influential figure.</p><img src="https://counter.theconversation.com/content/206470/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anurag Mishra is affiliated with ITSS Verona. </span></em></p><p class="fine-print"><em><span>André Carvalho and Zeno Leoni do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Love him or hate him, you can’t ignore the importance of Henry Kissinger’s legacy in government and as a public intellectual.André Carvalho, PhD Researcher, Department of War Studies, King's College LondonAnurag Mishra, PhD Researcher at the School of International Studies, Jawaharlal Nehru University Zeno Leoni, Lecturer, Defence Studies Department and Lau China Institute, King's College LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2042442023-05-11T12:14:19Z2023-05-11T12:14:19Z‘Courage is contagious’: Daniel Ellsberg’s decision to release the Pentagon Papers didn’t happen in a vacuum<figure><img src="https://images.theconversation.com/files/524975/original/file-20230508-245278-dy5r7b.jpg?ixlib=rb-1.1.0&rect=6%2C7%2C1016%2C689&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Daniel Ellsberg addresses supporters during an anti-war protest in 2010 in front of the White House.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/daniel-ellsberg-former-military-analyst-who-released-the-news-photo/107633814?adppopup=true">Karen Bleier/AFP via Getty Images</a></span></figcaption></figure><p>In 1971, when Daniel Ellsberg arrived at a federal court in Boston, a journalist asked if he was concerned about the prospect of going to prison for leaking a 7,000-page top-secret history of the Vietnam War. Ellsberg responded with <a href="https://www.umass.edu/ellsberg/">a question of his own</a>: “Wouldn’t you go to prison to help end this war?” </p>
<p>The classified documents Ellsberg released to The New York Times and 18 other newspapers were quickly dubbed <a href="https://timesmachine.nytimes.com/timesmachine/1971/06/13/170503942.html?pageNumber=1">the Pentagon Papers</a>. They exposed more than two decades of government deceit about U.S. involvement in Vietnam, from 1945 to 1968.</p>
<p>Ellsberg <a href="https://www.washingtonpost.com/obituaries/2023/06/16/daniel-ellsberg-pentagon-papers-dead/">died June 16, 2023</a>, three months after announcing that he had been diagnosed with terminal cancer. To millions of Americans <a href="https://www.penguinrandomhouse.com/books/288895/patriots-by-christian-g-appy/">who opposed the war</a>, his whistleblowing was an act of patriotism – but millions of others regarded it as treason. In <a href="http://scua.library.umass.edu/services-at-scua/research-guides/daniel-ellsberg-papers/">Ellsberg’s own papers</a> at UMass Amherst, where <a href="https://www.umass.edu/history/member/christian-appy">I teach history</a> and direct <a href="https://www.umass.edu/ellsberg/initiative/">the Ellsberg Initiative for Peace and Democracy</a>, you can read hundreds of letters to him from ordinary citizens expressing both extremes: the highest possible praise, and vitriolic, often antisemitic, hostility.</p>
<p>How a young war planner became a peace activist is one of the most striking conversion stories in American history. But Ellsberg’s political and moral transformation did not happen in a vacuum. It reflected a titanic shift in public attitudes about the Vietnam War. The massive anti-war movement inspired and reinforced Ellsberg’s dissent – and, in turn, his example has emboldened activists and whistleblowers in the decades since.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/524966/original/file-20230508-247807-ifidbq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A pile of old papers, mostly typed with handwritten notes on them, and an ID card." src="https://images.theconversation.com/files/524966/original/file-20230508-247807-ifidbq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/524966/original/file-20230508-247807-ifidbq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=415&fit=crop&dpr=1 600w, https://images.theconversation.com/files/524966/original/file-20230508-247807-ifidbq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=415&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/524966/original/file-20230508-247807-ifidbq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=415&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/524966/original/file-20230508-247807-ifidbq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=522&fit=crop&dpr=1 754w, https://images.theconversation.com/files/524966/original/file-20230508-247807-ifidbq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=522&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/524966/original/file-20230508-247807-ifidbq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=522&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Some of the papers from the archive of Daniel Ellsberg pictured at UMass Amherst in 2019.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/some-of-the-papers-from-the-archive-of-daniel-ellsberg-are-news-photo/1170829568?adppopup=true">Jonathan Wiggs/The Boston Globe via Getty Images</a></span>
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<h2>A ‘knightly calling’</h2>
<p>Once a fervent Cold Warrior, Ellsberg joined the Marine Corps in the mid-1950s, earned his doctorate in economics from Harvard and in 1959 became a nuclear war analyst for the Rand Corp., a think tank that, at the time, was funded mostly by the Air Force. In 1964, he was one of the brainy young analysts, dubbed “whiz kids” by the media, that <a href="https://slate.com/news-and-politics/2009/07/death-of-the-whiz-kid-robert-strange-mcnamara-1916-2009.html">Defense Secretary Robert McNamara</a> recruited to the Pentagon.</p>
<p>Throughout his 20s and early 30s, Ellsberg believed that serving the president <a href="https://www.penguinrandomhouse.com/books/288895/patriots-by-christian-g-appy/">was a “knightly calling</a>,” even if it required lying to the public. So how did he come to believe that loyalty to truth-telling <a href="https://www.simonandschuster.com/books/Papers-on-the-War/Daniel-Ellsberg/9781439193761">superseded loyalty to the chief of state</a>?</p>
<p>From 1965 to 1967, Ellsberg went to Vietnam for the State Department, believing the war was a challenging but necessary part of a global struggle to contain communism. Yet he became deeply disillusioned, convinced that the war could not be won. He was particularly disturbed by indiscriminate <a href="https://us.macmillan.com/books/9781250045065/killanythingthatmoves">U.S. bombing and shelling</a>, most of it on South Vietnam, the land the U.S. claimed to be protecting. About 20,000 American lives had already been lost, and roughly a million Vietnamese people had been killed, about half of them civilians. By the war’s end eight years later, 58,000 Americans and 3 million Vietnamese had died. </p>
<h2>Pivotal moments</h2>
<p>By 1968, Ellsberg was trying to persuade U.S. leaders to seek a negotiated end to the war. On his own time, meanwhile, he was beginning to meet anti-war activists who advocated a bottom-up effort to demand immediate U.S. withdrawal.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/524970/original/file-20230508-195023-603w13.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A black and white photo of a huge crowd seated in a park, with skyscrapers in the background." src="https://images.theconversation.com/files/524970/original/file-20230508-195023-603w13.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/524970/original/file-20230508-195023-603w13.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=428&fit=crop&dpr=1 600w, https://images.theconversation.com/files/524970/original/file-20230508-195023-603w13.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=428&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/524970/original/file-20230508-195023-603w13.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=428&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/524970/original/file-20230508-195023-603w13.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=538&fit=crop&dpr=1 754w, https://images.theconversation.com/files/524970/original/file-20230508-195023-603w13.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=538&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/524970/original/file-20230508-195023-603w13.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=538&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Thousands of demonstrators sit in Sheep Meadow in Central Park in New York City protesting the war in Vietnam on April 27, 1968.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/thousands-of-demonstrators-sit-in-sheep-meadow-in-central-news-photo/1320037070?adppopup=true">Dick Yarwood/Newsday RM via Getty Images</a></span>
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<p>One of them, <a href="https://www.gazettenet.com/Ellsberg-hg-102819-29645137">a Gandhian pacifist named Janaki Natarajan</a>, convinced Ellsberg that he should study leading advocates of nonviolent resistance, such as <a href="https://www.americanrhetoric.com/speeches/mlkatimetobreaksilence.htm">Martin Luther King Jr.</a>, <a href="https://xroads.virginia.edu/%7EHyper2/thoreau/civil.html">Henry David Thoreau</a> and <a href="https://www.warresisters.org/store/revolution-and-equilibrium-barbara-deming">Barbara Deming</a>. To this day, one of Ellsberg’s favorite quotations comes from Thoreau’s “<a href="https://xroads.virginia.edu/%7EHyper2/thoreau/civil.html">Civil Disobedience</a>”: “Cast your whole vote, not a strip of paper merely, but your whole influence.”</p>
<p>But most galvanizing for Ellsberg were the Pentagon Papers, which he helped compile for McNamara. Full of technocratic euphemisms for <a href="https://nsarchive2.gwu.edu/coldwar/documents/episode-11/02.pdf">lethal policies</a>, the documents convinced him that the entire history of U.S. involvement in Vietnam <a href="https://www.penguinrandomhouse.com/books/307777/american-reckoning-by-christian-g-appy/">was marked by deception</a>: that it was an aggressive counterrevolution that denied the Vietnamese people the right of self-determination, disguised as a battle for democracy.</p>
<p>Ellsberg had first viewed the Vietnam War as a just cause to be won, then as an unwinnable stalemate to be gradually abandoned. By late 1969, however, he saw it as an immoral war to be ended unilaterally and immediately.</p>
<p>Millions of Americans had already come to that conclusion. Back in 1965, in fact, Ellsberg’s future wife, Patricia Marx, <a href="https://www.ellsberg.net/secrets-a-memoir-of-vietnam-and-the-pentagon-papers/">agreed to a first date</a> only if it included an anti-war demonstration in Washington.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/524968/original/file-20230508-180826-czd1cx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An older man in a suit flashes a peace sign, one arm around an older woman in an orange top and black slacks." src="https://images.theconversation.com/files/524968/original/file-20230508-180826-czd1cx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/524968/original/file-20230508-180826-czd1cx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=900&fit=crop&dpr=1 600w, https://images.theconversation.com/files/524968/original/file-20230508-180826-czd1cx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=900&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/524968/original/file-20230508-180826-czd1cx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=900&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/524968/original/file-20230508-180826-czd1cx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1130&fit=crop&dpr=1 754w, https://images.theconversation.com/files/524968/original/file-20230508-180826-czd1cx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1130&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/524968/original/file-20230508-180826-czd1cx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1130&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Daniel Ellsberg and his wife, Patricia Marx Ellsberg, attend the Cinema for Peace gala in Berlin in 2019.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/daniel-ellsberg-and-his-wife-patricia-marx-ellsberg-attend-news-photo/1097988162?adppopup=true">Tristar Media/Getty Images</a></span>
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</figure>
<p>Just as he finished reading the Pentagon Papers, Ellsberg attended <a href="https://credo.library.umass.edu/view/full/mums1093-s10a-i003">a War Resisters League conference</a> that proved pivotal to his decision to leak the documents. There he met a few of the 3,250 young Americans who were sentenced to up to three years in prison for <a href="https://uncpress.org/book/9780807854365/confronting-the-war-machine/">resisting the draft</a>. Deeply moved by their courage, Ellsberg asked himself <a href="https://www.penguinrandomhouse.com/books/288895/patriots-by-christian-g-appy/">what he could do</a> if he were willing to risk prison and his career.</p>
<p>A month later, with help from his friend and Rand colleague Anthony Russo, Ellsberg began photocopying the Pentagon Papers. </p>
<h2>Going public</h2>
<p>For the next year and a half, Ellsberg tried to get anti-war members of Congress to put the documents into the congressional record and hold hearings. None was willing, so he <a href="https://fair.org/home/action-alert-what-can-now-be-told-by-nyt-about-pentagon-papers-isnt-actually-true/">eventually offered them</a> to war correspondent Neil Sheehan at The New York Times – the first newspaper to report on the papers’ revelations.</p>
<p>Public interest was scant, however, until President Richard Nixon <a href="https://theconversation.com/how-richard-nixons-obsession-with-daniel-ellsberg-and-the-pentagon-papers-sowed-the-seeds-for-the-presidents-downfall-159113">began attacking the press and Ellsberg</a>. Although the Pentagon Papers did not include Nixon’s time in office, the White House feared that Ellsberg might leak more documents – especially about Nixon’s 1968 effort to <a href="https://www.nytimes.com/2017/01/02/us/politics/nixon-tried-to-spoil-johnsons-vietnam-peace-talks-in-68-notes-show.html">sabotage the Vietnam peace talks</a> to improve his odds of winning the presidential election.</p>
<p>The government indicted Ellsberg on a dozen felony counts with a possible 115-year prison sentence. He was the first American ever <a href="https://www.mtsu.edu/first-amendment/article/1045/espionage-act-of-1917">criminally charged under the Espionage Act of 1917</a> for disclosing classified documents to the press and public rather than to a foreign agent or nation.</p>
<p>Ellsberg was spared prison. Late in his 1973 trial, Watergate prosecutors discovered that the White House <a href="https://www.washingtonpost.com/politics/break-in-memo-sent-to-ehrlichman/2012/06/04/gJQAKsRCJV_story.html">had authorized crimes</a> against him, including a break-in at his psychiatrist’s office, in a failed search for incriminating information. The judge had little choice but to declare a mistrial.</p>
<h2>Post-Papers life</h2>
<p>Ellsberg was a free man, but the personal cost of his dissent was severe. He lost many friends and had to forge a new career as a writer and lecturer. For more than five decades he has been an activist and has been arrested for nonviolent civil disobedience some 80 times on behalf of peace, <a href="https://www.umass.edu/ellsberg/featured-documents/nuclear-weapons/">nuclear disarmament</a>, government accountability and First Amendment rights. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/524969/original/file-20230508-244517-ed82s3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="On a snowy day, a police officer escorts a man whose hands are in zip ties, as police on horses look on." src="https://images.theconversation.com/files/524969/original/file-20230508-244517-ed82s3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/524969/original/file-20230508-244517-ed82s3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=445&fit=crop&dpr=1 600w, https://images.theconversation.com/files/524969/original/file-20230508-244517-ed82s3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=445&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/524969/original/file-20230508-244517-ed82s3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=445&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/524969/original/file-20230508-244517-ed82s3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=559&fit=crop&dpr=1 754w, https://images.theconversation.com/files/524969/original/file-20230508-244517-ed82s3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=559&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/524969/original/file-20230508-244517-ed82s3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=559&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Daniel Ellsberg flashes two peace signs behind his back while being arrested during an anti-war protest in front of the White House in 2010.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/daniel-ellsberg-former-military-analyst-who-released-the-news-photo/107633304?adppopup=true">Win McNamee/Getty Images</a></span>
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<p>To most government insiders, Ellsberg’s mutiny was an unpardonable breach of the national security state. No one with so much access to power and privileged information in the U.S. government has ever broken so radically with the policies they once supported.</p>
<p>Yet 50 years later, Ellsberg was <a href="https://rightlivelihood.org/the-change-makers/find-a-laureate/daniel-ellsberg/">widely lauded</a>, even by many people critical of <a href="https://www.newyorker.com/magazine/2016/12/19/daniel-ellsberg-edward-snowden-and-the-modern-whistle-blower">the younger whistleblowers</a> <a href="https://www.nbcnews.com/feature/edward-snowden-interview/edward-snowden-says-he-was-inspired-pentagon-papers-whistleblower-n117556">he inspired</a> and defended. Since Sept. 11, 2001, more than a dozen other people have faced criminal charges under the Espionage Act, and some – including <a href="https://www.youtube.com/watch?v=3VCOmUfgBZE">Jeffrey Sterling</a>, <a href="https://www.npr.org/sections/thetwo-way/2013/08/03/208602113/pentagon-papers-leaker-daniel-ellsberg-praises-snowden-manning">Chelsea Manning</a>, <a href="https://www.washingtonpost.com/local/legal-issues/daniel-hale-drone-leak-sentence/2021/07/27/7bb46dd6-ee14-11eb-bf80-e3877d9c5f06_story.html">Daniel Hale</a> and <a href="https://www.nytimes.com/2021/06/14/us/politics/reality-winner-is-released.html">Reality Winner</a> – have been incarcerated. </p>
<p>In early March 2023, Ellsberg made public <a href="https://www.commondreams.org/opinion/daniel-ellsberg-pentagon-papers">a letter to friends and supporters</a> announcing that <a href="https://www.commondreams.org/opinion/daniel-ellsberg-pentagon-papers">he had only months to live</a>. He closed by thanking fellow activists whose “dedication, courage, and determination to act have inspired and sustained my own efforts.” </p>
<p>Ellsberg’s life and legacy are reminders that individual acts of moral courage depend on examples set by others, and they have the potential to spark more, far into the future. As Ellsberg often said, “<a href="https://www.theguardian.com/world/2021/jun/13/daniel-ellsberg-interview-pentagon-papers-50-years">civil courage is contagious</a>.”</p>
<p><em>This article was updated to include Ellsberg’s death on June 16, 2023.</em></p><img src="https://counter.theconversation.com/content/204244/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Christian Appy is the director of the Ellsberg Initiative for Peace and Democracy at the University of Massachusetts, Amherst.
He is currently writing a biography of Ellsberg.</span></em></p>The Vietnam War whistleblower, who died on June 16, 2023, wrestled with his decision to leak thousands of pages of government documents.Christian Appy, Professor of History, UMass AmherstLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1964512023-03-30T22:30:50Z2023-03-30T22:30:50ZManhattan grand jury votes to indict Donald Trump, showing he, like all other presidents, is not an imperial king<figure><img src="https://images.theconversation.com/files/518609/original/file-20230330-20-6w7wz.jpg?ixlib=rb-1.1.0&rect=0%2C16%2C5391%2C3567&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former President Donald Trump's indictment by a Manhattan grand jury will test his legal and political power.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-u-s-president-donald-trump-speaks-during-a-rally-at-news-photo/1476375309">Brandon Bell/Getty Images</a></span></figcaption></figure><p>A Manhattan grand jury voted to indict former President Donald Trump on March 30, 2023, for his <a href="https://www.reuters.com/legal/trumps-alleged-hush-money-payments-path-criminal-charges-2023-03-30/">alleged role in paying porn star</a> Stormy Daniels hush money.</p>
<p>Trump lawyer Joe Tacopina <a href="https://www.pbs.org/newshour/politics/donald-trump-indicted-lawyer-says">confirmed the indictment</a>.</p>
<p>The New York Times reported that it is not yet clear <a href="https://www.nytimes.com/live/2023/03/30/nyregion/trump-indictment-news">what exact charges Trump will face</a>, but a formal indictment will likely be issued in the next few days. Manhattan District Attorney Alvin Bragg is <a href="https://apnews.com/article/who-is-alvin-bragg-trump-manhattan-da-d77a4ec8df9a2b2b35f6e8bb9a52a5a7">the first prosecutor</a> ever to issue an indictment against a former president. Trump is still the center of <a href="https://www.nytimes.com/article/trump-investigations-civil-criminal.html">several ongoing investigations</a> regarding other alleged criminal activity, including actions he took while in office. </p>
<p>American history is rife with presidents who have used their office to extend executive authority. </p>
<p>Presidents are not kings. George Washington <a href="https://www.npr.org/sections/deceptivecadence/2011/02/20/133499991/sing-out-mr-president-george-washington-down-on-the-farm">once reflected on this distinction</a>, saying, “I had rather be on my farm than be emperor of the world.”</p>
<p>But American politics and presidency scholars – <a href="https://scholar.google.com/citations?user=_khILTgAAAAJ&hl=en">including me</a> – have long worried about <a href="https://www.worldcat.org/title/imperial-presidency/oclc/704887">the idea of an imperial presidency</a> – <a href="https://politicaldictionary.com/words/imperial-presidency/">meaning, a president</a> who tries to exert a level of control beyond what the Constitution spells out.</p>
<p>Trump was just another example of a president acting as if he was king by just another name.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/506678/original/file-20230126-33788-q2cznk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="People stand behind a large banner that says 'indict Trump,' and hold up their own small signs in front of an official government building." src="https://images.theconversation.com/files/506678/original/file-20230126-33788-q2cznk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/506678/original/file-20230126-33788-q2cznk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/506678/original/file-20230126-33788-q2cznk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/506678/original/file-20230126-33788-q2cznk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/506678/original/file-20230126-33788-q2cznk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/506678/original/file-20230126-33788-q2cznk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/506678/original/file-20230126-33788-q2cznk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">People protest in Manhattan in April 2022, demanding the indictment of former President Donald Trump.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1390386928/photo/former-us-president-trump-stop-running-for-president-in-2024.jpg?s=1024x1024&w=gi&k=20&c=G022z32BTLMpcY-MqVx79QdM4GN3-b_fU4W2CR_D1g0=">Pablo Monsalve/VIEWpress</a></span>
</figcaption>
</figure>
<h2>Expanding role of the presidency</h2>
<p>While some early presidents, notably<a href="https://millercenter.org/president/jackson/impact-and-legacy"> Andrew Jackson</a> and<a href="https://jmp.princeton.edu/events/abraham-lincolns-invention-presidential-war-powers"> Abraham Lincoln,</a> expanded the executive branch, most were constrained by the dominance of the legislative branch in their day.</p>
<p>The growth of the executive branch in terms of size and power began in earnest during the 20th century. </p>
<p>Franklin Roosevelt <a href="https://www.smithsonianmag.com/history/when-franklin-roosevelt-clashed-with-the-supreme-court-and-lost-78497994/">attempted to pack</a> the Supreme Court to overcome opposition to his <a href="https://politicaldictionary.com/words/imperial-presidency/">New Deal legislation</a>, a series of public works and spending projects in the 1930s.</p>
<p>Roosevelt wanted to add a justice for every existing judge on the court who did not retire by age 70 – but it was a transparent attempt to alter the court’s composition to favor his agenda, and <a href="https://supremecourthistory.org/schs-historical-documentaries/fdr-courtpacking-controversy-full-script/">the Senate shot it down</a>. </p>
<p>Richard Nixon decided to impound money authorized for programs simply because he disagreed with them. Nixon had vetoed the <a href="https://www.govinfo.gov/content/pkg/STATUTE-86/pdf/STATUTE-86-Pg816.pdf">Federal Water Pollution Control Act Amendments of 1972</a> but was overridden by Congress. He still <a href="https://www.nytimes.com/1973/10/07/archives/nixons-impounding-of-billions-in-federal-money-is-complicated-issue.html">withheld money</a>, which eventually <a href="https://supreme.justia.com/cases/federal/us/420/35/">culminated in a 1975 Supreme Court case</a>, in which the court <a href="https://law.jrank.org/pages/9356/Presidential-Powers-Power-Impoundment.html">ruled against Nixon</a>.</p>
<p>Other presidents tried to unduly influence more mundane aspects of life.</p>
<p>In August 1906, for example, Theodore Roosevelt <a href="https://www.history.com/news/theodore-roosevelt-spelling-controversy">issued an executive order</a> forcing the Government Printing Office to begin using the new spellings of 300 words – including “although” and “fixed” – in order to simplify them. </p>
<p>Following broad public criticism of this plan, <a href="https://childrenofthecode.org/code-history/roosevelt.htm">Congress voted </a>to reject these proposed spelling improvements in 1906.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A black and white photo shows two men sitting in armchairs facing each other." src="https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=406&fit=crop&dpr=1 600w, https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=406&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=406&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=510&fit=crop&dpr=1 754w, https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=510&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=510&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Richard Nixon speaks with journalist David Frost in 1977, three years after Nixon resigned.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/50426386/photo/frost-interviews-nixon.jpg?s=612x612&w=gi&k=20&c=ghRZcU4BWKy-fprsduiqPDQybzP0A86zbemPw8rP1os=">John Bryson/Getty Images</a></span>
</figcaption>
</figure>
<h2>Trump’s turn</h2>
<p>Trump’s actions and words throughout the presidency also suggest he believed that the office gave him overarching power.</p>
<p>For example, Trump reflected on his power over states to force them to reopen <a href="https://www.politico.com/states/california/story/2020/04/13/trump-claims-total-authority-over-state-decisions-1275506">during the COVID-19 crisis,</a> saying in April 2020, “When somebody’s president of the United States, the authority is total.” But governors actually maintained the control over what remained open or closed in their states during the pandemic. </p>
<p>Trump has also treated the independent judiciary as an inferior branch of government, subject to his control. </p>
<p>“If it’s my judges, you know how they’re gonna decide,” <a href="https://www.washingtonpost.com/politics/trump-to-congress-see-you-in-court/2019/04/26/9f114890-678d-11e9-82ba-fcfeff232e8f_story.html">Trump said</a> of his potential judicial appointees in 2016. </p>
<p>Chief Justice John Roberts rejected Trump’s view on this issue <a href="https://www.nbcnews.com/politics/supreme-court/rare-rebuke-chief-justice-roberts-slams-trump-comment-about-obama-n939016">in 2018, saying,</a> “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. … What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”</p>
<h2>It’s classified</h2>
<p>There is a rigorous procedure if presidents decide to declassify information. This <a href="https://www.archives.gov/isoo/policy-documents/cnsi-eo.html">complex process</a> involves all classified material being reviewed by appropriate government agencies and experts at the National Archives.</p>
<p>But Trump <a href="https://www.lawfareblog.com/can-trump-just-declare-nuclear-secrets-unclassified">claimed at one point</a> any documents he took home were already declassified. </p>
<p><a href="https://www.nytimes.com/2022/08/14/us/politics/trump-classified-documents.html%20%20https://www.msn.com/en-us/news/politics/donald-trump-tells-fox-news-host-i-can-declassify-docs-just-by-thinking-about-it/ar-AA1267nK">He later asserted</a>, “There doesn’t have to be a process, as I understand it. … You’re the president of the United States, you can declassify just by saying it’s declassified, even by thinking about it.”</p>
<p>These comments help substantiate Trump’s belief in his absolute authority. There are <a href="https://www.brennancenter.org/our-work/research-reports/government-classification-and-mar-lago-documents">specific procedures</a> in place to <a href="https://www.archives.gov/isoo/policy-documents/cnsi-eo.html">manage declassification</a> that do not involve psychic powers.</p>
<h2>One real superpower</h2>
<p>If the American presidents have one superpower, it is the <a href="https://theconversation.com/pardon-me-an-ethicists-guide-to-what-is-proper-when-it-comes-to-presidential-pardons-151461">power of the pardon</a>. American presidents can pardon people, and the legislative and judiciary branches cannot prevent it. </p>
<p>Past presidents have used pardons largely in the service of justice, but at times to also reward personal friends or connections. But Trump took it even further, using this power seemingly as a way to <a href="https://www.cnbc.com/2020/12/22/-trump-pardons-15-including-people-convicted-in-mueller-probe-.html">reward his loyal supporters</a> – and <a href="https://www.cnn.com/2022/09/01/politics/january-6-pardons-trump-2024/index.html">says he will</a> seriously consider pardoning the Jan. 6, 2021, Capitol rioters if he is reelected. </p>
<p>Trump also apparently considered <a href="https://www.nytimes.com/2021/01/07/us/politics/trump-self-pardon.html">granting himself</a> a pardon as a way to avoid any prosecution for his involvement with the Capitol attack. </p>
<p>A self-pardon would also potentially place any president in constitutional murky water. </p>
<p>A <a href="https://supreme.justia.com/cases/federal/us/236/79/#89-90">1919 Supreme Court ruling</a> declared that a pardon “carries an imputation of guilt and acceptance of a confession of it.” So, if Trump had pardoned himself for anything, he would have admitted to having committed a crime – for which he could still potentially be impeached or investigated under any applicable state law, which is not covered by a presidential pardon.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/506672/original/file-20230126-19246-iwt56b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="People are seen in a large conference or other official looking room, looking at a large projecter screen that has details about government pardons and Jan. 6." src="https://images.theconversation.com/files/506672/original/file-20230126-19246-iwt56b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/506672/original/file-20230126-19246-iwt56b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=391&fit=crop&dpr=1 600w, https://images.theconversation.com/files/506672/original/file-20230126-19246-iwt56b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=391&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/506672/original/file-20230126-19246-iwt56b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=391&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/506672/original/file-20230126-19246-iwt56b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=491&fit=crop&dpr=1 754w, https://images.theconversation.com/files/506672/original/file-20230126-19246-iwt56b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=491&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/506672/original/file-20230126-19246-iwt56b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=491&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Private communications about presidential pardons are shown during a hearing of the Jan. 6 committee in June 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1241485404/photo/house-january-6th-select-committee-holds-its-fifth-hearing.jpg?s=1024x1024&w=gi&k=20&c=eUF7kc7woKyBGwO0e5wzrqPZx-mtQd0OJHQQjsmkRCs=">Mandel Ngan-Pool/Getty Images</a></span>
</figcaption>
</figure>
<h2>After office</h2>
<p>Since leaving office, Trump has <a href="https://www.nytimes.com/2022/09/30/us/politics/trump-executive-privilege.html">attempted to claim</a> post-presidential executive privilege, independent of the current administration. But President Joe Biden – who must first give Trump this privilege – never extended it to his predecessor. </p>
<p>Trump’s defense that he was allowed to store classified documents at Mar-a-Lago as a result of executive privilege has <a href="https://www.politico.com/news/2022/12/01/appeals-court-tosses-trumps-lawsuit-over-mar-a-lago-search-00071743">largely been unsuccessful</a> in the courts. </p>
<p>Trump has also used his time as president to avoid any lawsuits that emerged after he left office. </p>
<p>In January 2023, a federal judge shot down Trump’s attempt to dismiss a 2022 defamation lawsuit filed by the writer E. Jean Carroll, who says Trump raped her in the 1990s. Trump denied the rape in 2019. </p>
<p>In court, <a href="https://www.reuters.com/legal/court-weighs-immunity-donald-trump-defamation-case-over-rape-claim-2023-01-10/">Trump argued that</a> anything he said as president should be protected and he should be given immunity during that period. </p>
<p>Though a ruling is still pending, Carroll <a href="https://www.theguardian.com/us-news/2023/jan/13/trumps-e-jean-carroll-lawsuit-absurd-ruling">has argued in court</a> that immunity would apply only if Trump were referring to presidential matters, and not personal ones. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/506680/original/file-20230126-3492-8m0y34.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A white man with a blue suit walks past a row of American flags with the words 'Make America Great again' on a banner above the flags" src="https://images.theconversation.com/files/506680/original/file-20230126-3492-8m0y34.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/506680/original/file-20230126-3492-8m0y34.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/506680/original/file-20230126-3492-8m0y34.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/506680/original/file-20230126-3492-8m0y34.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/506680/original/file-20230126-3492-8m0y34.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/506680/original/file-20230126-3492-8m0y34.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/506680/original/file-20230126-3492-8m0y34.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former President Donald Trump speaks at an event in his Mar-a-Lago home in November 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1441806213/photo/former-u-s-president-donald-trump-makes-an-announcement-at-his-florida-home.jpg?s=1024x1024&w=gi&k=20&c=aExQgUpOv8qb42hejd_g4ntovKv8zgjdvpCMU_ozkMs=">Joe Raedle/Getty Images</a></span>
</figcaption>
</figure>
<h2>Everyone is held to the same rules</h2>
<p>American presidents serve a limited amount of time governing before they return to the general population’s ranks. </p>
<p>Those privileged enough to hold the top office in the U.S. are still citizens. They are held to the same laws as everyone else and, the founders believed, should never be held above them. </p>
<p>Throughout history, many presidents have pushed the boundaries of power for their own personal preferences or political gain. However, Americans do have the right to push back and hold these leaders accountable to the country’s laws.</p>
<p>Presidents have never been monarchs. If they ever act in that manner, I believe that the people have to remind them of who they are and whom they serve.</p><img src="https://counter.theconversation.com/content/196451/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Shannon Bow O'Brien does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Trump’s indictment will force Americans to grapple with the exact role of presidents – and limits of their power.Shannon Bow O'Brien, Associate Professor of Instruction, The University of Texas at AustinLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1976772023-03-30T22:24:09Z2023-03-30T22:24:09ZTrump indictments won’t keep him from presidential race, but will make his reelection bid much harder<figure><img src="https://images.theconversation.com/files/518608/original/file-20230330-2836-xyrjtj.jpg?ixlib=rb-1.1.0&rect=51%2C25%2C5623%2C3751&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former President Donald Trump has been indicted by a Manhattan grand jury.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2024Trump/fdf2a5bcf6a848a1b418a7f3383fa70a/photo">AP Photo/Evan Vucci</a></span></figcaption></figure><p>In a historically significant move, the Department of Justice has <a href="https://www.nytimes.com/live/2023/06/08/us/trump-indictment-documents">charged former President Donald Trump</a> with seven counts related to his retention of classified documents.</p>
<p>It’s the first time a U.S. president or former president has been federally indicted. Trump was also <a href="https://apnews.com/article/trump-hush-money-new-york-indictment-election-027d0e5ac1881a4c55c6379deae75faa">indicted in March</a> by a Manhattan grand jury on New York state charges related to hush money payments made to a porn star just before the 2016 presidential election.</p>
<p>Trump is expected to continue his <a href="https://secure.winred.com/save-america-joint-fundraising-committee/c2d9c0ea50f9b2b0/?utm_campaign=20230607&utm_medium=website">campaign for the presidency</a>, seeking to regain in 2024 the position <a href="https://apnews.com/article/donald-trump-michael-pence-electoral-college-elections-health-2d9bd47a8bd3561682ac46c6b3873a10">he lost in 2020 to Joe Biden</a>. </p>
<p>What are the consequences of an indictment and potential trial for his campaign and, if his effort is successful, his future presidency?</p>
<p><a href="https://constitution.congress.gov/browse/article-2/section-1/clause-5/#:%7E:text=No%20Person%20except%20a%20natural,been%20fourteen%20Years%20a%20Resident">Article II of the U.S. Constitution</a> <a href="https://theconversation.com/no-an-indictment-wouldnt-end-trumps-run-for-the-presidency-he-could-even-campaign-or-serve-from-a-jail-cell-194425">sets forth very explicit qualifications for the presidency</a>: The president must be 35 years of age, a U.S. resident for 14 years and a natural-born citizen. </p>
<p>In cases involving analogous qualifications for members of Congress, <a href="https://www.oyez.org/cases/1968/138">the Supreme Court has held</a> that such qualifications form a “constitutional ceiling” – prohibiting any additional qualifications to be imposed by any means. </p>
<p>Thus, because the Constitution does not require that the president be free from indictment, conviction or prison, it follows that a person under indictment or in prison may run for the office and may even serve as president.</p>
<p>This is the prevailing legal standard that would apply to former President Trump. The fact of his indictment and potential trial is irrelevant to his qualifications for office under the Constitution.</p>
<p>Nevertheless, there seems no question that indictment, conviction or both – let alone a prison sentence – would significantly compromise a president’s ability to function in office. And the Constitution doesn’t provide an easy answer to the problem posed by such a compromised chief executive.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/506724/original/file-20230127-25-rzcolt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a blue suit, red tie and white shirt showing a clenched fist in front of several US flags." src="https://images.theconversation.com/files/506724/original/file-20230127-25-rzcolt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/506724/original/file-20230127-25-rzcolt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=414&fit=crop&dpr=1 600w, https://images.theconversation.com/files/506724/original/file-20230127-25-rzcolt.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=414&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/506724/original/file-20230127-25-rzcolt.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=414&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/506724/original/file-20230127-25-rzcolt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=520&fit=crop&dpr=1 754w, https://images.theconversation.com/files/506724/original/file-20230127-25-rzcolt.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=520&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/506724/original/file-20230127-25-rzcolt.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=520&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former President Donald Trump, at a campaign event at his Mar-a-Lago home on Nov. 15, 2022, in Palm Beach, Fla., when he announced he was seeking another term in office and officially launched his 2024 presidential campaign.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-u-s-president-donald-trump-gestures-during-an-event-news-photo/1441799553?phrase=Trump&adppopup=true">Joe Raedle/Getty Images</a></span>
</figcaption>
</figure>
<h2>Governing from jail?</h2>
<p>A presidential candidate could be indicted, prosecuted and convicted by either state or federal authorities. Indictment for a state crime may seem less significant than federal charges brought by the Department of Justice. </p>
<p>Ultimately, though, the spectacle of a criminal trial in state or federal court would have a dramatic effect on a presidential campaign and on the credibility of a president, if elected. </p>
<p>All defendants are presumed innocent until proved guilty. But in the case of conviction, incarceration in state or federal prison involves restrictions on liberty that would significantly compromise the president’s ability to lead.</p>
<p>This point – that functioning as president would be difficult while under indictment or after being convicted – was made plain in a <a href="https://www.justice.gov/sites/default/files/olc/opinions/2000/10/31/op-olc-v024-p0222_0.pdf">2000 memo</a> written by the Department of Justice. The memo reflected on a <a href="https://s3.documentcloud.org/documents/4517361/092473.pdf">1973 Office of Legal Counsel memo produced during Watergate</a> titled “Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution while in Office.” The background to the 1973 memo was that <a href="https://www.britannica.com/event/Watergate-Scandal">President Richard Nixon was under investigation</a> for his role in the Watergate break-in and <a href="https://archive.nytimes.com/www.nytimes.com/learning/general/onthisday/big/1010.html">Vice President Spiro Agnew was under grand jury investigation for tax evasion</a>.</p>
<p>These two memos addressed whether a sitting president could, under the Constitution, be indicted while in office. They concluded he could not.
But what about a president indicted, convicted, or both, before taking office, as could be the case for Trump?</p>
<p>In evaluating whether a sitting president could be indicted or imprisoned while in office, both the 1973 and 2000 memos outlined the consequences of a pending indictment for the president’s functioning in office. The earlier memo used strong words: “[t]he spectacle of an indicted President still trying to serve as Chief Executive boggles the imagination.” </p>
<p>Even more pointedly, the memos observe that a criminal prosecution against a sitting president could result in “physical interference with the President’s performance of his official duties that it would amount to an incapacitation.” </p>
<p>The memo here refers to the inconvenience of a criminal trial that would significantly detract from the president’s time commitment to his burdensome duties. </p>
<p>But it’s also lawyer’s language to describe a more direct impediment to the president’s ability to govern: He might be in jail.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/506727/original/file-20230127-25-d1i7qh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a blue suit, white shirt and red tie, wearing glasses, faces a crowd of reporters with microphones on a sidewalk." src="https://images.theconversation.com/files/506727/original/file-20230127-25-d1i7qh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/506727/original/file-20230127-25-d1i7qh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/506727/original/file-20230127-25-d1i7qh.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/506727/original/file-20230127-25-d1i7qh.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/506727/original/file-20230127-25-d1i7qh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/506727/original/file-20230127-25-d1i7qh.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/506727/original/file-20230127-25-d1i7qh.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former New York Mayor Rudy Giuliani arriving at the Fulton County Courthouse in Atlanta, Ga., on Aug. 17, 2022, to appear before the special grand jury investigating efforts to overturn the 2020 election.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/GeorgiaElectionInvestigation/e57d949e422646d8b46e78ca8ac56f99/photo?Query=georgia%20election%20investigation&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=239&currentItemNo=13">AP Photo/John Bazemore</a></span>
</figcaption>
</figure>
<h2>Core functions affected</h2>
<p>According to the 1973 memo, “the President plays an unparalleled role in the execution of the laws, the conduct of foreign relations, and the defense of the Nation.” </p>
<p>Because these core functions require meetings, communications or consultations with the military, foreign leaders and government officials in the U.S. and abroad in ways that cannot be performed while imprisoned, constitutional law scholar <a href="https://www.universitypressscholarship.com/view/10.12987/yale/9780300123517.001.0001/upso-9780300123517-chapter-2">Alexander Bickel remarked in 1973</a> that “obviously the presidency cannot be conducted from jail.” </p>
<p>Modern presidents are peripatetic: They travel nationally and globally on a constant basis to meet with other national leaders and global organizations. They obviously wouldn’t be able to do these things while in prison. Nor could they <a href="https://georgewbush-whitehouse.archives.gov/infocus/katrina/">inspect the aftermath of natural disasters</a> from coast to coast, <a href="https://www.reaganlibrary.gov/archives/speech/remarks-announcing-intention-nominate-sandra-day-oconnor-be-associate-justice">celebrate national successes and events</a> or <a href="https://obamawhitehouse.archives.gov/the-press-office/2016/10/13/remarks-president-opening-remarks-and-panel-discussion-white-house">address citizens and groups on issues of the day</a>, at least in person.</p>
<p>Moreover, presidents need access to classified information and briefings. But imprisonment would also obviously compromise a president’s ability to access such information, which must often be <a href="https://www.nbcnews.com/politics/politics-news/what-scif-who-uses-it-n743991">stored and viewed in a secure room</a> that has been protected against all manner of spying, including blocking radio waves – not something that’s likely available in a prison.</p>
<p>As a result of the president’s varied duties and obligations, the memos concluded that “[t]he physical confinement of the chief executive following a valid conviction would indisputably preclude the executive branch from performing its constitutionally assigned functions.” </p>
<p>Translation: The president couldn’t do his job.</p>
<h2>Running from prison</h2>
<p>Yet what to do if citizens actually elect an indicted or incarcerated president? </p>
<p>This is not out of the question. At least one incarcerated presidential candidate, Eugene Debs, garnered almost a million votes <a href="https://theconversation.com/the-presidential-campaign-of-convict-9653-203027">out of a total 26.2 million cast</a> in the election of 1920. </p>
<p>One potential response is the 25th Amendment, which enables the president’s Cabinet to declare the president “unable to discharge the powers and duties of his office.” </p>
<p>The two Department of Justice memos note, however, that the framers of the 25th Amendment never considered or mentioned incarceration as a basis for the inability to discharge the powers and duties of the office. They write that replacing the president under the 25th Amendment would “give insufficient weight to the people’s considered choice as to whom they wish to serve as their chief executive.” </p>
<p>All this brings to mind Justice Oliver Wendell Holmes’ <a href="https://www.google.com/books/edition/The_Supreme_Court_and_American_Constitut/sPiGrv0h6mkC?hl=en&gbpv=1&dq=If+my+fellow+citizens+want+to+go+to+hell,+I+will+help+them.+Its+my+job&pg=PA11&printsec=frontcover#v=onepage&q&f=false">admonition about the role of the Supreme Court</a>: “If my fellow citizens want to go to Hell I will help them. It’s my job.” </p>
<p>Holmes’ statement came in a letter reflecting on the Sherman Antitrust Act, which he thought was a foolish law. But Holmes was prepared to accept the popular will expressed through democracy and self-determination. </p>
<p>Perhaps the same reflection is apt here: If the people choose a president hobbled by criminal sanctions, that is a form of self-determination too. And one for which the Constitution has no ready solution.</p>
<p><em>This story is an updated version of <a href="https://theconversation.com/trump-indictment-wont-keep-him-from-presidential-race-but-will-make-his-reelection-bid-much-harder-197677">an article</a> that was published on March 30, 2023.</em></p><img src="https://counter.theconversation.com/content/197677/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stefanie Lindquist does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>With a federal indictment of former President Donald Trump, currently a presidential candidate, a legal scholar explores what the law says about the consequences of such an unprecedented act.Stefanie Lindquist, Foundation Professor of Law and Political Science, Arizona State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2001522023-03-14T12:23:43Z2023-03-14T12:23:43ZDon’t trust the news media? That’s good<figure><img src="https://images.theconversation.com/files/514930/original/file-20230313-20-dh6jh0.jpeg?ixlib=rb-1.1.0&rect=9%2C3%2C2108%2C1406&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Approach with caution, advises a journalism scholar.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/newsreader-filming-in-press-room-royalty-free-image/694041078?phrase=news%20room&adppopup=true">simon kr/E+/Getty Images</a></span></figcaption></figure><p>Everyone seems to hate what they call “the media.” </p>
<p>Attacking journalism – even accurate and verified reporting – provides <a href="https://fivethirtyeight.com/features/why-being-anti-media-is-now-part-of-the-gop-identity/">a quick lift for politicians</a>. </p>
<p>It’s not just Donald Trump. Trump’s rival for the 2024 Republican nomination, Florida Gov. Ron DeSantis, <a href="https://www.wfla.com/news/politics/gov-ron-desantis-to-speak-in-jacksonville/">recently criticized</a> “the Lefty media” for telling “lies” and broadcasting “a hoax” about his policies.</p>
<p>Criticizing the media emerged as an effective bipartisan political tactic in the 1960s. GOP Sen. Barry Goldwater’s 1964 presidential campaign got the ball rolling by needling the so-called “<a href="https://www.cnn.com/2020/02/29/opinions/lyndon-johnson-barry-goldwater-liberal-media-bias-hemmer/index.html">Eastern liberal press</a>.” </p>
<p>Democratic President Lyndon Johnson’s lies about the Vietnam War clashed with accurate reporting, and a “credibility gap” arose – the growing public skepticism about the administration’s truthfulness – to the obvious irritation of the president. Johnson complained CBS News and NBC News were so biased he thought their reporting seemed “<a href="https://www.nytimes.com/2017/05/30/opinion/lyndon-johnson-vietnam-war.html">controlled by the Vietcong</a>.”</p>
<p>Democrats like Chicago’s Mayor Richard J. Daley, who complained bitterly about news coverage of the 1968 Democratic convention – labeling it “<a href="https://www.politico.com/magazine/story/2018/09/02/how-fake-news-was-born-at-the-1968-dnc-219627/">propaganda</a>” – and Federal Communications <a href="https://law.uiowa.edu/people/nicholas-johnson">Commissioner Nicholas Johnson</a>, who published “<a href="https://www.worldcat.org/title/59804">How to Talk Back to Your Television Set</a>” in 1970, argued that “Eastern,” “commercial” and “corporate” media interests warped or “censored” the news. </p>
<p>In 1969, Republican President Richard Nixon’s vice president, Spiro Agnew, launched a public <a href="https://theconversation.com/he-was-trump-before-trump-vp-spiro-agnew-attacked-the-news-media-50-years-ago-122980">campaign against news corporations</a> that instantly made him a conservative celebrity. </p>
<p>Agnew warned that increased concentration in news media ownership ensured control over public opinion by a “tiny and closed fraternity of privileged men, <a href="https://www.desmoinesregister.com/story/opinion/columnists/2019/11/10/fifty-years-ago-spiro-agnew-and-des-moines-speech/4166207002/">elected by no one</a>.” Similar criticism emerged from leftists, including <a href="https://www.penguinrandomhouse.com/books/78912/manufacturing-consent-by-edward-s-herman-and-noam-chomsky/">MIT linguist Noam Chomsky</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/514934/original/file-20230313-26-hjldur.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man with a receding hairline and gray hair talking into a microphone." src="https://images.theconversation.com/files/514934/original/file-20230313-26-hjldur.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/514934/original/file-20230313-26-hjldur.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=406&fit=crop&dpr=1 600w, https://images.theconversation.com/files/514934/original/file-20230313-26-hjldur.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=406&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/514934/original/file-20230313-26-hjldur.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=406&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/514934/original/file-20230313-26-hjldur.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=511&fit=crop&dpr=1 754w, https://images.theconversation.com/files/514934/original/file-20230313-26-hjldur.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=511&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/514934/original/file-20230313-26-hjldur.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=511&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Vice President Spiro Agnew said in 1969 that concentrated news media ownership ensured control over public opinion by a ‘tiny and closed fraternity of privileged men, elected by no one.’</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/american-politician-us-vice-president-spiro-agnew-speaks-news-photo/846059208?phrase=Spiro%20Agnew&adppopup=true">David Hume Kennerly/Getty Images</a></span>
</figcaption>
</figure>
<p>The bipartisan popularity of news media criticism continued to grow as politicians found attacking the messengers the fastest way to avoid engaging in discussion of unpleasant realities. Turning the spotlight back on the media also helped political figures portray themselves as victims, while focusing partisan anger at specific villains.</p>
<p>Now, only 26% of Americans have a favorable opinion of the news media, according <a href="https://knightfoundation.org/reports/american-views-2023-part-2/">to a poll published in February 2023</a> by Gallup and the Knight Foundation. Americans across the political spectrum share a growing disdain for journalism – no matter how accurate, verified, professional or ethical.</p>
<p>Yet open debate over journalism ethics signals healthy governance. Such argumentation might amplify polarization, but it also facilitates the exchange of diverse opinions and encourages critical analyses of reality.</p>
<h2>Journalistic failures damaged trust</h2>
<p>Americans grew to distrust even the best news reporting because their political leadership encouraged it. But multiple failures exposed over the past several decades also further eroded journalistic credibility. </p>
<p>Long before <a href="https://www.theguardian.com/media/2005/mar/09/digitalmedia.tvnews">bloggers ended Dan Rather’s CBS News career in 2005</a>, congressional investigations, civil lawsuits and scandals revealing unethical and unprofessional behavior within even the most respected journalism outlets doomed the profession’s public reputation.</p>
<p>In 1971, CBS News aired “<a href="https://www.britannica.com/topic/The-Selling-of-the-Pentagon">The Selling of the Pentagon</a>,” an investigation that revealed the government spent tax dollars to produce pro-military domestic propaganda during the Vietnam War. </p>
<p>The program <a href="https://www.byrdcenter.org/blog/the-selling-of-the-pentagon-staggers-v-cbs">infuriated U.S. Rep. Harley Staggers</a>, who accused CBS of using “the nation’s airwaves … to deliberately deceive the public.” </p>
<p>Staggers launched an investigation and subpoenaed CBS News’ unpublished, confidential materials. CBS News President Frank Stanton <a href="https://www.nytimes.com/1971/04/10/archives/cbs-gains-support-for-defiance-of-subpoena.html">defied the subpoena</a> and was eventually vindicated by a vote of Congress. But Staggers, a West Virginia Democrat, publicly portrayed <a href="https://www.congress.gov/bound-congressional-record/1971/07/13">CBS News as biased</a> by insinuating the network had much to hide. <a href="https://content.time.com/time/subscriber/article/0,33009,904979,00.html">Many Americans agreed with him</a>. </p>
<p>“The Selling of the Pentagon” was the first of many investigations and lawsuits that damaged the credibility of journalism by exposing – or threatening to expose – the messy process of assembling news. As with the recent <a href="https://www.npr.org/2023/03/06/1161221798/if-fox-news-loses-defamation-dominion-media">embarrassing revelations about Fox News</a> exposed by the Dominion lawsuit, whenever the public gets access to the backstage behavior, private opinions and hypocritical actions of professional journalists, reputations will suffer. </p>
<p>But even the remarkable Fox News revelations shouldn’t be considered unique.</p>
<h2>Repeated lying</h2>
<p>Numerous respected news organizations have been caught lying to their audiences. Though such episodes are rare, they can be enormously damaging. </p>
<p>In 1993, General Motors <a href="https://www.nytimes.com/1993/02/10/us/nbc-settles-truck-crash-lawsuit-saying-test-was-inappropriate.html">sued NBC News</a>, accusing the network of deceiving the public by secretly attaching explosives to General Motors trucks, and then blowing them up to exaggerate a danger.</p>
<p>NBC News admitted it, settled the lawsuit and news division President Michael Gartner resigned. The case, <a href="https://www.washingtonpost.com/archive/politics/1993/02/10/nbc-apologizes-for-staged-crash-settles-with-gm/fe1d1da2-9939-4076-a7e2-8e625d7ddede/">concluded The Washington Post’s media critic</a>, “will surely be remembered as one of the most embarrassing episodes in modern television history.”</p>
<p>Additional examples abound. Intentional deception – knowingly lying by consciously publishing or broadcasting fiction as fact – <a href="https://cjc.utpjournals.press/doi/full/10.22230/cjc.2006v31n1a1595">occurs often enough in professional journalism</a> to cyclically embarrass the industry.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/514946/original/file-20230313-26-3kx646.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A screenshot of a clipping from the New York Times, July 2, 1971, about a contempt vote against CBS and its top executive." src="https://images.theconversation.com/files/514946/original/file-20230313-26-3kx646.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/514946/original/file-20230313-26-3kx646.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=738&fit=crop&dpr=1 600w, https://images.theconversation.com/files/514946/original/file-20230313-26-3kx646.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=738&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/514946/original/file-20230313-26-3kx646.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=738&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/514946/original/file-20230313-26-3kx646.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=927&fit=crop&dpr=1 754w, https://images.theconversation.com/files/514946/original/file-20230313-26-3kx646.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=927&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/514946/original/file-20230313-26-3kx646.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=927&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A front page story in The New York Times on July 2, 1971, with details about the conflict in Congress over the CBS documentary ‘The Selling of the Pentagon.’</span>
<span class="attribution"><a class="source" href="https://timesmachine.nytimes.com/timesmachine/1971/07/02/issue.html">New York Times archive</a></span>
</figcaption>
</figure>
<p>In cases such as <a href="https://www.cjr.org/the_feature/the_fabulist_who_changed_journalism.php">Janet Cooke and The Washington Post</a>, <a href="https://ajrarchive.org/Article.asp?id=1838">Stephen Glass and the New Republic</a>, <a href="https://www.nytimes.com/2003/05/11/us/correcting-the-record-times-reporter-who-resigned-leaves-long-trail-of-deception.html">Jayson Blair</a> and <a href="https://www.washingtonpost.com/archive/lifestyle/2002/02/22/new-york-times-feature-was-fiction/35e234a4-9cb6-47b8-8e1c-3bc95a0cb34d/">Michael Finkel</a> of The New York Times, and <a href="https://www.nytimes.com/2020/11/01/business/media/atlantic-ruth-shalit-barrett.html">Ruth Shalit Barrett and The Atlantic</a>, the publication of actual fabrications was exposed. </p>
<p>These episodes of reportorial fraudulence were not simply errors caused by sloppy fact-checking or journalists being deceived by lying sources. In each case, journalists lied to improve their careers while trying to help their employers attract larger audiences with sensational stories.</p>
<p>This self-inflicted damage to journalism is every bit equal to the attacks launched by politicians. </p>
<p>Such malfeasance undermines confidence in the news media’s ability to fulfill its constitutionally protected responsibilities. If few Americans are willing to believe even the most verified and factual reporting, then the ideal of debate grounded in shared facts may become anachronistic. It may already be.</p>
<h2>Media criticism as democratic participation</h2>
<p>The pervasive amount of news media criticism in the U.S. has intensified the erosion of trust in American journalism. </p>
<p>But such discussion can be seen as a sign of democratic health. </p>
<p>“Everyone in a democracy is <a href="https://www.hup.harvard.edu/catalog.php?isbn=9780674695870&content=toc">a certified media critic</a>, which is as it should be,” media sociologist Michael Schudson once wrote. Imagine how intimidated citizens would respond to pollsters in Russia, China or North Korea if asked whether they trusted their media. To question official media “truth” in these nations is to risk incarceration or worse. </p>
<p>Just look at Russia. As Putin’s regime censored independent media and pumped out propaganda, <a href="https://twitter.com/YaroslavConway/status/1627374815697936385">the nation’s least skeptical citizens</a> became the war’s foremost supporters.</p>
<p>As a <a href="https://cmj.umaine.edu/faculty-staff/michael-j-socolow/">media scholar and former journalist</a>, I believe more reporting on the media, and criticism of journalism, is always better than less.</p>
<p>Even that Gallup-Knight Foundation report chronicling lost trust in the media <a href="https://knightfoundation.org/reports/american-views-2023-part-2/">concluded that</a> “distrust of information or [media] institutions is not necessarily bad,” and that “some skepticism may be beneficial in today’s media environment.”</p>
<p>People choose the media they trust and criticize the media they consider less credible. Intentional deception scandals have been exposed at outlets as different as The New York Times, Fox News and NBC News. Just as the effort to demean the media has long been bipartisan, revelations of malfeasance have historically plagued media across the political spectrum. Nobody can yet know the long-term effect the <a href="https://www.documentcloud.org/documents/20527880-dominion-v-fox-news-complaint">Dominion lawsuit</a> will have on the credibility of Fox News specifically, but media scholars know the scandal will justifiably further erode the public’s trust in the media.</p>
<p>An enduring democracy will encourage rather than discourage media criticism. Attacks by politicians and exposure of unethical acts clearly lower public trust in journalism. But measured skepticism can be healthy and media criticism comprises an essential component of media literacy – and a vibrant democracy.</p><img src="https://counter.theconversation.com/content/200152/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael J. Socolow does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Journalism has been fodder for politicians’ contempt for generations. A huge percentage of the public doesn’t trust the news media either. That mistrust isn’t a bad thing in a democracy.Michael J. Socolow, Associate Professor, Communication and Journalism, University of MaineLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1980112023-02-05T08:02:19Z2023-02-05T08:02:19ZWeed in South Africa: apartheid waged a war on drugs that still has unequal effects today<figure><img src="https://images.theconversation.com/files/505591/original/file-20230120-26-2j6065.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa's governing ANC has continued the anti-cannabis repression inherited from apartheid.
</span> <span class="attribution"><span class="source">shutterstock</span></span></figcaption></figure><p>Cannabis is being commercialised into a multibillion-dollar global industry and South Africa wants a piece of the pie. In his <a href="https://www.gov.za/speeches/president-cyril-ramaphosa-2022-state-nation-address-10-feb-2022-0000">2022 state of the nation address</a>, President Cyril Ramaphosa spoke of developing a hemp and cannabis sector to boost the post-COVID economy.</p>
<p>Poor rural communities in South Africa have <a href="https://www.bbc.com/news/world-africa-62524501">long cultivated cannabis</a> in illegal conditions of risk. They now face losing out to corporate interests and the wealthy.</p>
<p>How did the stakes become so high – and so unequal?</p>
<p>My <a href="https://www.journals.uchicago.edu/doi/10.1086/721253">recent historical study</a> helps answer this question. It reveals how an apartheid-era drug law incited a “war on drugs” that was in effect a “war on cannabis”.</p>
<p>In 1971 a law was passed that subjected the cannabis plant and its products to the strictest possible controls. This set in motion a structurally racist policy that continued well into the post-apartheid era. </p>
<h2>Apartheid’s 1971 anti-drug law</h2>
<p>In 1971, South Africa’s apartheid government passed the <a href="https://www.lac.org.na/laws/annoSTAT/Abuse%20of%20Dependence-Producing%20Substances%20and%20Rehabilitation%20Centres%20Act%2041%20of%201971.pdf">Abuse of Dependence-Producing Substances and Rehabilitation Centres Act</a>. Lawmakers boasted it was the</p>
<blockquote>
<p>toughest anti-drug law in the Western World. </p>
</blockquote>
<p>The law’s main target was white “hippy” youth. </p>
<p>The law followed recommendations by a state-sponsored inquiry, the <a href="https://libguides.lib.uct.ac.za/c.php?g=182363&p=1581392">Grobler Commission</a>. The commission focused only on white South Africans’ misuse of synthetic and pharmaceutical drugs such as LSD, Mandrax (methaqualone) and heroin. </p>
<p>Though the commission did not in fact turn up evidence of an extensive drug abuse problem, it nevertheless recommended tough suppression.</p>
<p>To the ruling <a href="https://www.sahistory.org.za/article/national-party-np">National Party</a>, the use of drugs by white people appeared to threaten Afrikaner religious culture and the future of a white South Africa. They hyped the drug problem as</p>
<blockquote>
<p>a form of terrorism that is more dangerous than the armed terrorism we are familiar with on our country’s borders. </p>
</blockquote>
<p>This language of crisis enabled the apartheid lawmakers to borrow from the country’s draconian anti-terrorism laws, such as the <a href="https://omalley.nelsonmandela.org/index.php/site/q/03lv01538/04lv01828/05lv01829/06lv01927.htm">1967 Terrorism Act</a>, used to put down anti-apartheid activism.</p>
<p>Like the anti-terrorism legislation, the 1971 anti-drug act provided for harsh minimum prison sentences and detention without trial for purposes of interrogation. It also removed the court’s discretion in sentencing for drug offences.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/cannabis-policy-changes-in-africa-are-welcome-but-small-producers-are-the-losers-179681">Cannabis policy changes in Africa are welcome. But small producers are the losers</a>
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</em>
</p>
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<p>When it was debated in parliament, the principle of “toughness” appealed across party lines – except for the lone voice of the Progressive Party MP <a href="https://www.sahistory.org.za/people/helen-suzman">Helen Suzman</a>. Suzman observed that although the Grobler Commission excluded research on substance use by the majority black South Africans, the law would nonetheless apply to them. </p>
<p>Similarly, she argued, the commission had not investigated cannabis – a substance considered by many to be less socially harmful than legal alcohol or tobacco. Yet it was to be scheduled in the new law as a “prohibited dangerous drug”, along with heroin and cocaine. </p>
<h2>Lone voice of reason</h2>
<p>For <a href="https://www.dukeupress.edu/the-african-roots-of-marijuana">centuries in Africa</a>, including parts of South Africa, the cannabis plant had important indigenous cultural value and was cultivated for a variety of social and pharmacological uses. </p>
<p>Cannabis was first <a href="https://www.tandfonline.com/doi/abs/10.1080/02582473.2022.2128274">criminalised in the country in 1922</a>. But drug <a href="https://theconversation.com/what-history-teaches-us-about-shaping-south-africas-new-cannabis-laws-150889">policing remained relatively weak</a> for three decades. In the gap, and with growing urban markets, commercial cannabis livelihoods emerged to combat <a href="https://www.jstor.org/stable/24566750#metadata_info_tab_contents">growing rural poverty</a>. </p>
<p>In such conditions – as Suzman pointed out – punitive drug control, created to combat white pill-popping, was clearly going to fall on black South Africans for cannabis offences. </p>
<p><a href="https://www.journals.uchicago.edu/doi/10.1086/721253">Suzman fought hard</a>. She pointed out that a <a href="https://en.wikipedia.org/wiki/Shafer_Commission">“Marijuana Commission”</a> was under way in the US, documenting how the supposed dangers of cannabis were greatly exaggerated. She argued for a less criminalising status for cannabis in South Africa.</p>
<p>Her views were defeated and apartheid’s extraordinary drug legislation was easily passed. Cannabis was classified among those substances marked for strictest suppression.</p>
<h2>The law’s impacts</h2>
<p>This decision proved to be a watershed. The <a href="https://www.journals.uchicago.edu/doi/10.1086/721253">effects of the 1971 anti-drug law</a> were immediately evident, falling disproportionately on black South Africans. Cannabis accounted for well over 95% of drug-related arrests and convictions across all “race” groups. </p>
<p>In a 1972 assessment by the Natal Provincial Supreme Court – in the case <a href="https://www.journals.uchicago.edu/doi/10.1086/721253">State v Shangase and Others</a> - judges showed how prison terms of two to ten years were being imposed even for the petty possession of single cannabis “<em>zol</em>” (joint).</p>
<p>The “rehabilitation centres” part of the 1971 law applied only to white offenders since – <a href="https://www.journals.uchicago.edu/doi/10.1086/721253">as Suzman had pointed out</a> – the segregationist state did not provide drug treatment programmes for black people. But, even for convicted white users, sentences involving treatment applied in less than 1% of cases.</p>
<p>Paradoxically, but unsurprisingly, illegal cannabis cultivation increased within the segregated spaces of apartheid.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/a-new-approach-to-criminalisation-could-end-cape-towns-drug-wars-121769">A new approach to criminalisation could end Cape Town's drug wars</a>
</strong>
</em>
</p>
<hr>
<p>An illegal crop in high demand was profitable to grow, and even more so to trade. Helicopters spraying herbicides and multiple checkpoints raised the stakes of drug politics for all parties.</p>
<p>The laws’s embedded racism meant that as tough drug suppression continued after apartheid ended, its racist effects also continued.</p>
<h2>A reckoning with history is needed</h2>
<p>The 1971 anti-drug law was replaced in 1992 with a <a href="https://www.gov.za/documents/drugs-and-drug-trafficking-act">Drugs and Drug Trafficking Act</a>. The new law maintained harsh sentences and cannabis remained illegal. The African National Congress, which came into power in 1994, reproduced the heavy-handed tactics it had inherited from the apartheid National Party: militarised suppression, spraying and incarcerations.</p>
<p>In <a href="https://theconversation.com/south-african-court-frees-cannabis-from-colonial-and-apartheid-past-103644">2017 and 2018</a>, the government’s cannabis policy was successfully challenged in the courts, on grounds of cultural and religious freedom. This also opened a window for liberalising cannabis as a commercial venture for certain products. Yet <a href="https://theconversation.com/cannabis-policy-changes-in-africa-are-welcome-but-small-producers-are-the-losers-179681">the actual policy remains unclear and contested</a>.</p>
<p>Apartheid’s 1971 law, and the parallel growth of an illegal economy, shaped South Africa’s unequal cannabis landscape. Now, in an opening cannabis economy, rural cultivators remain in a vulnerable position against more powerful interests. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/marijuana-use-in-south-africa-what-next-after-landmark-court-ruling-103607">Marijuana use in South Africa: what next after landmark court ruling?</a>
</strong>
</em>
</p>
<hr>
<p><a href="https://www.journals.uchicago.edu/doi/full/10.1086/721752">Decolonising drug-related knowledge and policies</a> in South Africa requires a deeper reckoning with history, including from apartheid into the present.</p>
<p>*Quotations from the <em>Debates of the House of Assembly</em>, Hansard (Cape Town: Government of the Republic of South Africa, 5 May 1971.</p><img src="https://counter.theconversation.com/content/198011/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thembisa Waetjen receives funding from the National Research Foundation.</span></em></p>A 1971 law, and the parallel growth of an illegal economy, shaped South Africa’s unique cannabis landscape.Thembisa Waetjen, Associate Professor of History, University of JohannesburgLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1974752023-02-03T13:30:25Z2023-02-03T13:30:25ZCivil rights legislation sparked powerful backlash that’s still shaping American politics<figure><img src="https://images.theconversation.com/files/506449/original/file-20230125-16-70s0sb.jpeg?ixlib=rb-1.1.0&rect=0%2C0%2C3868%2C2598&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A group of voters lining up outside the polling station, a small Sugar Shack store, on May 3, 1966, in Peachtree, Ala., after the Voting Rights Act was passed the previous year. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/group-of-voters-lining-up-outside-the-polling-station-a-news-photo/3088626?phrase=Voting%20Rights%20Act&adppopup=true">MPI/Getty Images</a></span></figcaption></figure><p>For nearly 60 years, conservatives have been trying to <a href="https://www.theatlantic.com/magazine/archive/2021/03/voting-rights-act-democracy/617792/">gut the Voting Rights Act</a> of 1965, the crowning achievement of the civil rights movement. <a href="https://jepson.richmond.edu/faculty/bios/jhayter/">As a scholar of</a> American voting rights, I believe their long game is finally bearing fruit.</p>
<p><a href="https://www.oyez.org/cases/2012/12-96">The 2013 U.S. Supreme Court decision</a> in <a href="https://www.bunkhistory.org/resources/1027">Shelby County v. Holder</a> seemed to be the death knell for the Voting Rights Act.</p>
<p><a href="https://www.nybooks.com/articles/2013/08/15/the-court-right-to-vote-dissent/">In that case</a>, the court struck down a portion of the Voting Rights Act that supervised elections in areas with a history of disenfranchisement.</p>
<p>The Supreme Court is currently considering a case, <a href="https://www.scotusblog.com/case-files/cases/merrill-v-milligan-2/">Merrill v. Milligan</a>, that might gut what remains of the act after Shelby.</p>
<p>Conservative legal strategists want the court to say that Alabama – <a href="https://www.naacpldf.org/merrill-v-milligan-supreme-court/">where African Americans</a> make up approximately one-quarter of the population, still live in concentrated and segregated communities and yet have only one majority-Black voting district out of seven state districts – should not consider race when drawing district boundaries. </p>
<p>These challenges to minority voting rights didn’t emerge overnight. The Shelby and Merrill cases are the culmination of a decadeslong conservative legal strategy designed <a href="https://www.theatlantic.com/magazine/archive/2022/10/john-roberts-supreme-court-voting-rights-act/671239/">to roll back</a> the political gains of the civil rights movement itself.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/506451/original/file-20230125-22-zpgh30.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A receipt for a $1.50 poll tax paid in 1957 by Rosa Parks." src="https://images.theconversation.com/files/506451/original/file-20230125-22-zpgh30.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/506451/original/file-20230125-22-zpgh30.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=246&fit=crop&dpr=1 600w, https://images.theconversation.com/files/506451/original/file-20230125-22-zpgh30.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=246&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/506451/original/file-20230125-22-zpgh30.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=246&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/506451/original/file-20230125-22-zpgh30.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=309&fit=crop&dpr=1 754w, https://images.theconversation.com/files/506451/original/file-20230125-22-zpgh30.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=309&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/506451/original/file-20230125-22-zpgh30.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=309&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A number of Southern states had a poll tax that was aimed at preventing by Black people, many of whom couldn’t afford to pay it. This is a receipt for a $1.50 poll tax paid in 1957 by Rosa Parks.</span>
<span class="attribution"><a class="source" href="https://www.loc.gov/resource/mss85943.002605/?sp=2&r=0.026,-0.021,1.01,0.419,0">Library of Congress, Rosa Parks Papers</a></span>
</figcaption>
</figure>
<h2>Victory – and more bigotry</h2>
<p>The realization of civil and <a href="https://www.washingtonpost.com/news/made-by-history/wp/2017/07/02/the-civil-rights-act-was-a-victory-against-racism-but-racists-also-won/">voting rights laws</a> during the 1960s is often portrayed as a victory over racism. The rights revolution actually gave rise to more bigotry.</p>
<p>The Voting Rights Act criminalized the use of discriminatory tests and devices, including literacy tests and <a href="https://www.npr.org/sections/codeswitch/2013/10/21/239081586/the-racial-history-of-the-grandfather-clause">grandfather clauses</a> that exempted white people from the same tests that stopped Black people from voting. It also required federal supervision of certain local Southern elections and barred these jurisdictions from making electoral changes without <a href="https://www.justice.gov/crt/about-section-5-voting-rights-act">explicit approval from Washington</a>.</p>
<p>These provisions worked. </p>
<p>After 1965, <a href="https://www.crmvet.org/docs/ccr_voting_south_6805.pdf">Black voters instigated a complexion revolution</a> in Southern politics, as African Americans voted in record numbers and elected an unprecedented number of Black officials. </p>
<p>In fact, the VRA worked so well that it gave rise to another seismic political shift: White voters left the <a href="https://www.theatlantic.com/ideas/archive/2019/08/emerging-republican-majority/595504/">Democratic Party</a> in record numbers.</p>
<p>As Washington protected Black voting rights, this <a href="https://newrepublic.com/article/158320/western-origins-southern-strategy">emerging Republican majority</a> capitalized on fears of an interracial democracy. Conservatives resolved to turn the South Republican by associating minority rights with white oppression. </p>
<p>In 1981, conservative political consultant and GOP strategist Lee Atwater recognized that Republicans might exploit these fears. <a href="https://www.thenation.com/article/archive/exclusive-lee-atwaters-infamous-1981-interview-southern-strategy/">He argued</a>: </p>
<blockquote>
<p>“You start out in 1954 by saying, "Nigger, nigger, nigger.” By 1968 you can’t say “nigger” – that hurts you, backfires. So you say stuff like, uh, forced busing, states’ rights, and all that stuff, and you’re getting so abstract. Now, you’re talking about cutting taxes, and all these things you’re talking about are totally economic things and a byproduct of them is, blacks get hurt worse than whites.“</p>
</blockquote>
<h2>‘Retard civil rights enforcement’</h2>
<p>It wasn’t just Southerners who aimed to undo the revolution enabled by the Voting Rights Act. </p>
<p>President Richard Nixon helped begin this process by promising Southerners that he wouldn’t enforce civil rights. In fact, in a secret meeting with <a href="https://www.nytimes.com/2003/06/27/us/strom-thurmond-foe-of-integration-dies-at-100.html">segregationist Sen. Strom Thurmond</a>, Nixon promised to ”<a href="https://www.amacad.org/publication/past-future-american-civil-rights">retard civil rights enforcement</a>.“ </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/506474/original/file-20230125-11748-j7xsu2.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Three men in suits at a large gathering smoking cigars, clapping and looking happy." src="https://images.theconversation.com/files/506474/original/file-20230125-11748-j7xsu2.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/506474/original/file-20230125-11748-j7xsu2.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=394&fit=crop&dpr=1 600w, https://images.theconversation.com/files/506474/original/file-20230125-11748-j7xsu2.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=394&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/506474/original/file-20230125-11748-j7xsu2.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=394&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/506474/original/file-20230125-11748-j7xsu2.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=495&fit=crop&dpr=1 754w, https://images.theconversation.com/files/506474/original/file-20230125-11748-j7xsu2.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=495&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/506474/original/file-20230125-11748-j7xsu2.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=495&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Conservative political consultant and GOP strategist Lee Atwater, center, at the GOP National Convention in Dallas, Aug. 23, 1984, recognized that Republicans might capitalize on white people’s fears of rising Black political power.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/RNCCigars/b716a9e732ca4ea39fd610b1faa0171f/photo?Query=Lee%20Atwater&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=51&currentItemNo=11">AP Photo/Ed Kolenovsky</a></span>
</figcaption>
</figure>
<p>By the early 1980s, President Ronald Reagan also used white people’s <a href="https://www.thenation.com/article/archive/exclusive-lee-atwaters-infamous-1981-interview-southern-strategy/">growing fear of African American political clout</a> to his advantage. </p>
<p>Reagan’s administration, according to voting rights expert <a href="https://www.sup.org/books/title/?id=26493">Jesse Rhodes</a>, used executive and congressional control to reorganize the Civil Rights Division of the Justice Department and the Supreme Court.</p>
<p>The objective?</p>
<p>To undermine how Washington enforced the Voting Rights Act – without appearing explicitly racist.</p>
<p>One of the Reagan administration’s strategies was to associate minority voting rights with so-called reverse discrimination. They argued that laws privileging minorities discriminated against white voters. </p>
<h2>Undoing progress</h2>
<p>Here’s the background to that strategy:</p>
<p>The years following 1965 were characterized by the <a href="https://jointcenter.org/wp-content/uploads/2019/11/VRA-report-3.5.15-1130-amupdated.pdf">dilution of Black Southerners’ voting power</a>. Realizing that they couldn’t keep African Americans from voting, Southerners and segregationists resolved to weaken votes once they’d been cast. They gerrymandered districts and used other means that would dilute minority voting power. </p>
<p>African Americans took the fight to the courts. In fact, nearly 50 cases involving vote dilution <a href="https://www2.law.umaryland.edu/marshall/usccr/documents/cr12v943a.pdf">flooded the court system after 1965</a>.</p>
<p>Over the course of the 1970s, the Supreme Court met the challenge of <a href="https://constitution.congress.gov/browse/essay/amdt14-S1-8-6-6/ALDE_00013453/">vote dilution</a> by mandating the <a href="https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=2905&context=law_lawreview">implementation of majority-minority districts</a>. </p>
<p>Conservatives during the early 1980s had become increasingly alarmed by the Supreme Court’s and Department of Justice’s preference for drawing racial district boundaries to give minorities more influence in elections in such ”<a href="https://ballotpedia.org/Majority-minority_districts">majority-minority districts</a>.“ <a href="https://www.democratic-erosion.com/2021/10/24/unpacking-redistricting-are-majority-minority-districts-really-what-theyre-cracked-up-to-be/">These districts</a> aimed to guarantee that minorities could elect candidates of their choice free from machinations such as vote dilution. </p>
<p>With little regard for vote dilution itself, conservative politicians and their strategists argued that majority-minority districts discriminated against whites because they privileged, like affirmative action policies, equality of outcomes in elections <a href="https://edeq.stanford.edu/sections/section-1-equality-opportunity-and-alternatives/equality-outcome">rather than equal opportunity to participate</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/506475/original/file-20230125-3412-tih2e4.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A gray-haired man in a suit walking in front of a lot of marble steps." src="https://images.theconversation.com/files/506475/original/file-20230125-3412-tih2e4.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/506475/original/file-20230125-3412-tih2e4.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/506475/original/file-20230125-3412-tih2e4.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/506475/original/file-20230125-3412-tih2e4.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/506475/original/file-20230125-3412-tih2e4.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/506475/original/file-20230125-3412-tih2e4.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/506475/original/file-20230125-3412-tih2e4.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Edward Blum, a longtime conservative legal activist, has brought and won many cases at the Supreme Court rolling back civil rights gains.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/edward-blum-a-long-time-opponent-of-affirmative-action-in-news-photo/1437982045?phrase=Edward%20Blum&adppopup=true">Chip Somodevilla/Getty Images</a></span>
</figcaption>
</figure>
<h2>Tidal wave</h2>
<p>This strategy paid off. </p>
<p>During the 1980s, Republicans used congressional control, a Republican White House and judicial appointments to turn the <a href="https://www.nytimes.com/2015/07/29/magazine/voting-rights-act-dream-undone.html">federal court system and the Department of Justice even further right</a>. </p>
<p>By the 1990s, conservatives replaced federal officials who might <a href="https://www.washingtonpost.com/archive/politics/2006/01/09/proving-his-mettle-in-the-reagan-justice-dept/416680ce-9ee7-485f-86f8-df6570cab56f/">protect the Voting Rights Act</a>. In time, these developments, and growing conservatism within the courts, prompted conservative litigation that continues to shape civil rights laws.</p>
<p>A tidal wave of anti-civil rights litigation, led by <a href="https://slate.com/news-and-politics/2022/10/supreme-court-edward-blum-unc-harvard-myth.html">a well-funded man</a>, Edward Blum, flooded the court system. Blum sought to undermine the Voting Rights Act’s supervision of local elections and undo racial quotas in higher education and employment. </p>
<p>Blum, <a href="https://www.democrats.senate.gov/imo/media/doc/Captured%20Courts%20Equal%20Justice%20report.pdf">a legal strategist</a> affiliated with the conservative American Enterprise Institute, helped engineer these now-famous test cases – <a href="https://www.reuters.com/article/us-usa-court-casemaker-cases/cases-edward-blum-has-taken-to-the-supreme-court-idUKBRE8B30Z120121204">Bush v. Vera (1996), Fisher v. University of Texas (2013) and Shelby v. Holder (2015)</a>. He also orchestrated <a href="https://www.washingtonpost.com/politics/2022/10/24/edward-blum-supreme-court-harvard-unc/">two pending cases</a> at the court that could reshape the consideration of race in college admissions, <a href="https://www.oyez.org/cases/2022/20-1199">Students for Fair Admissions Inc. v. President & Fellows of Harvard College</a> and <a href="https://www.oyez.org/cases/2022/21-707">Students for Fair Admissions Inc. v. University of North Carolina</a>. </p>
<p>These cases, at their core, attacked the rights revolution of the 1960s – or rights that privilege minorities. The argument? </p>
<p>These protections are obsolete because Jim Crow segregation, especially its overt violence and sanctioned segregation, is dead.</p>
<h2>New claim, old game</h2>
<p>Nearly 30 years of Republican or divided control of Congress and, to a lesser degree, the executive office gave rise to increasingly conservative <a href="https://newrepublic.com/article/156855/republican-party-took-supreme-court">Supreme Court nominations</a> that have not just turned the court red; they all but ensured favorable outcomes for conservative litigation.</p>
<p>These include the Shelby and Merrill cases and, more recently, <a href="https://www.washingtonpost.com/politics/2022/10/24/edward-blum-supreme-court-harvard-unc/">litigation</a> that seeks to remove racial considerations from college admissions.</p>
<p>In the Shelby case, the court held that the unprecedented number of African Americans in <a href="https://www.thenation.com/article/archive/fifty-years-after-march-selma-everything-and-nothing-has-changed/">Alabama</a> – and national – politics meant not merely that racism was gone, it meant that the <a href="https://www.theatlantic.com/politics/archive/2018/07/how-shelby-county-broke-america/564707/">Voting Rights Act is no longer relevant</a>. </p>
<p>These cases, however, have all but ignored <a href="https://newrepublic.com/article/165283/suppress-black-vote-jim-crow">the uptick</a> in conservatives’ claims of <a href="https://www.retroreport.org/video/poll-watchers-and-the-long-history-of-voter-intimidation/">voter fraud and political machinations</a> at polling stations in predominantly minority voting districts. </p>
<p>In fact, the rise of voter fraud allegations and <a href="https://www.washingtonpost.com/outlook/2020/11/19/true-danger-trump-his-media-allies-denying-election-results/">contested election results</a> is a new iteration of old, and ostensibly less violent, racism.</p>
<p>The Voting Rights Act was not only effective; Washington was also, initially, committed to its implementation. The political will to maintain minority voting rights has struggled to keep pace with the continuity of racist trends in American politics.</p>
<p>The work of protecting minority voting rights remains <a href="https://www.politico.com/news/magazine/2022/01/05/democracy-january-6-coup-constitution-526512">unfinished</a>.</p><img src="https://counter.theconversation.com/content/197475/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Julian Maxwell Hayter does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Conservatives and the GOP have mounted a decadeslong legal fight to turn the clock back on the political gains of the civil rights movement.Julian Maxwell Hayter, Associate Professor of Leadership Studies, University of RichmondLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1978482023-01-19T13:37:53Z2023-01-19T13:37:53ZThe weaponization of the federal government has a long history<figure><img src="https://images.theconversation.com/files/505142/original/file-20230118-12-62f853.jpeg?ixlib=rb-1.1.0&rect=0%2C12%2C8647%2C5743&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Nixon urged the IRS to audit his perceived enemies; Donald Trump wanted to do the same.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/tax-form-1040-royalty-free-image/939798290?phrase=irs%20audit&adppopup=true">LPettet/ iStock / Getty Images Plus</a></span></figcaption></figure><p>Now that House Republicans have created a “<a href="https://www.nytimes.com/2023/01/10/us/politics/house-republican-committee-weaponization-government.html">Select Subcommittee on Weaponization of the Federal Government</a>,” let’s revisit a classic of that power-abusing genre, featuring its greatest star, Richard M. Nixon.</p>
<p>The subcommittee’s express purpose is investigating federal investigators for alleged “illegal or improper, unconstitutional, or unethical activities,” at which Nixon was an acknowledged master. I’ve been listening to Nixon abuse power on the <a href="https://millercenter.org/the-presidency/secret-white-house-tapes/about">secret White House tapes</a> for two decades with the <a href="https://www.virginia.edu/">University of Virginia</a>’s <a href="https://millercenter.org/">Miller Center</a>. I’ve written about his decisions to sabotage Vietnam peace talks to <a href="https://www.upress.virginia.edu/title/4886">damage the Democrats’ 1968 presidential campaign</a>, to time his withdrawal from Vietnam to <a href="https://www.upress.virginia.edu/title/4984">help his 1972 reelection campaign</a>, and to <a href="https://prde.upress.virginia.edu/conversations/4006699">spring former Teamsters president Jimmy Hoffa</a> from prison in return for the union’s political support.</p>
<p>This story is a forgotten sequel to the Watergate break-in. No one has ever <a href="https://www.politifact.com/factchecks/2020/may/21/facebook-posts/facebook-post-comparing-obama-allegations-watergat/">proved</a> that President Nixon ordered burglars to photograph documents and plant listening devices at the headquarters of the Democratic National Committee, known as the DNC. </p>
<p>But Nixon himself created proof that he abused his presidential authority to go after the DNC with the investigative powers of the Internal Revenue Service. He captured this high crime on tape less than two months after the Watergate burglars’ arrests.</p>
<h2>‘Can’t we investigate people?’</h2>
<p>“Are we looking over the financial contributors of the Democratic National Committee?” Nixon asked his chief of staff on Aug. 3, 1972. “Are we running their income tax returns? Or is the Justice Department checking to see whether or not there’s any antitrust suits? Do we have anything going on any of these things?”</p>
<p>“Not as far as I know,” said H.R. “Bob” Haldeman.</p>
<p>“We have all this power and we aren’t using it. Now, what the Christ is the matter?” Nixon asked. </p>
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<a href="https://images.theconversation.com/files/505134/original/file-20230118-23-vtd6ur.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two men in suits walking on a path toward the White House." src="https://images.theconversation.com/files/505134/original/file-20230118-23-vtd6ur.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/505134/original/file-20230118-23-vtd6ur.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/505134/original/file-20230118-23-vtd6ur.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/505134/original/file-20230118-23-vtd6ur.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/505134/original/file-20230118-23-vtd6ur.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=504&fit=crop&dpr=1 754w, https://images.theconversation.com/files/505134/original/file-20230118-23-vtd6ur.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=504&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/505134/original/file-20230118-23-vtd6ur.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=504&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">President Richard Nixon walks with his assistant H.R. Haldeman from the Executive Office Building to the White House for a Cabinet meeting in December 1969.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CapitolRiotWatergate/4f8c6c2b2fc54c96bcbd7d5502c7c9ad/photo?Query=Richard%20Nixon%20Haldeman&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=8&currentItemNo=1">AP photo/file</a></span>
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</figure>
<p>“We’ve got a guy who’s a pluperfect bastard. He’s a loyalist – he’s a fanatic loyalist – in the IRS,” said John D. Ehrlichman, whose title was assistant to the president for domestic affairs and whose job was <a href="https://www.nytimes.com/1974/03/02/archives/federal-grand-jury-indicts-7-nixon-aides-on-charges-of-conspiracy.html">henchman</a>. </p>
<p>“He’s with us, you mean?” Nixon asked.</p>
<p>“He’s our guy,” Ehrlichman said. “One Treasury secretary after another, starting with [David M.] Kennedy, [John B.] Connally, now [George P.] Shultz, has said, ‘Oh, Jesus, can’t you get this guy out of there? Can’t you just take him out? He’s making all kinds of trouble for us. He’s too partisan.’”</p>
<p>The president’s mood darkened. “Shultz is not long for this life, in my opinion, because he’s not being political enough,” Nixon said. “I don’t care how nice a guy is. I don’t care how good an economist he is. We can’t have this bullshit.” His frustration was growing. “Can’t we investigate people?” Nixon asked. “Is there anything we can do?”</p>
<p>“Yes,” Ehrlichman said.</p>
<p>“I would think that we could get some people with some guts in the second term, when we don’t care about repercussions,” Haldeman said.</p>
<p>Nixon wanted to do something immediately about the <a href="https://www.britannica.com/biography/Larry-OBrien">chairman of the Democratic National Committee, Larry O’Brien</a>. O'Brien directed John F. Kennedy’s victorious presidential campaign in 1960 and Lyndon B. Johnson’s in 1964. “If you could dirty up O’Brien now, I think it might be a lot better than to wait until later,” Nixon said. </p>
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<a href="https://images.theconversation.com/files/505138/original/file-20230118-17-urvo6q.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two men in suits sitting at a table strewn with papers." src="https://images.theconversation.com/files/505138/original/file-20230118-17-urvo6q.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/505138/original/file-20230118-17-urvo6q.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=423&fit=crop&dpr=1 600w, https://images.theconversation.com/files/505138/original/file-20230118-17-urvo6q.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=423&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/505138/original/file-20230118-17-urvo6q.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=423&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/505138/original/file-20230118-17-urvo6q.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=531&fit=crop&dpr=1 754w, https://images.theconversation.com/files/505138/original/file-20230118-17-urvo6q.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=531&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/505138/original/file-20230118-17-urvo6q.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=531&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Nixon, right, at a meeting with aide John D. Ehrlichman in 1972.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/NIXONEHRLICHMAN/8b52814648e5da11af9f0014c2589dfb/photo?Query=Nixon%20Ehrlichman&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=16&currentItemNo=13">AP photo</a></span>
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<h2>Abuse of power</h2>
<p>Under pressure from the White House, the <a href="https://www.nytimes.com/1974/07/17/archives/former-irs-commissioners-affidavit-on-lawrence-o-brien-audit.html">IRS subjected O’Brien to an audit during the 1972 presidential campaign</a>. The audit found a “relatively small deficiency,” which O’Brien promptly paid. Treasury Secretary Shultz and IRS Commissioner Johnnie Walters told Ehrlichman there was nothing more they could do.</p>
<p>“I wanted them to turn up something and <a href="https://www.nytimes.com/1974/07/11/archives/irs-said-to-shift-plans-for-rebozo-inquiry-on-100000-testimony-by.html">send him to jail</a> before the election,” Ehrlichman later said. There are few purer expressions of authoritarianism than an attempt to jail the titular head of the opposition party during a campaign.</p>
<p>Shortly before Nixon resigned in 1974, the House Judiciary Committee cited his abuse of his power over the IRS in an <a href="https://www.nytimes.com/1974/08/04/archives/the-committees-accusations-article-article-article.html">article of impeachment</a>.</p>
<h2>Chief of staff: Trump requested audits</h2>
<p>In 1998, Congress made it a felony for a president to “<a href="https://www.law.cornell.edu/uscode/text/26/7217">request, directly or indirectly</a>,” an IRS audit or investigation.</p>
<p>None of that stopped President Donald Trump from requesting IRS audits, according to his own former White House chief of staff, John Kelly. </p>
<p>“I would say, ‘It’s inappropriate, it’s illegal, it’s against their integrity, and the IRS knows what it’s doing, and it’s not a good idea,’” <a href="https://www.nytimes.com/2022/11/13/us/politics/trump-irs-investigations.html">Kelly told The New York Times</a> in November 2022. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/505139/original/file-20230118-7884-4ignci.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two men in suits, one with a bright red tie, in an elegant room." src="https://images.theconversation.com/files/505139/original/file-20230118-7884-4ignci.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/505139/original/file-20230118-7884-4ignci.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=461&fit=crop&dpr=1 600w, https://images.theconversation.com/files/505139/original/file-20230118-7884-4ignci.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=461&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/505139/original/file-20230118-7884-4ignci.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=461&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/505139/original/file-20230118-7884-4ignci.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=579&fit=crop&dpr=1 754w, https://images.theconversation.com/files/505139/original/file-20230118-7884-4ignci.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=579&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/505139/original/file-20230118-7884-4ignci.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=579&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">White House Chief of Staff John Kelly, right, says that President Donald Trump wanted the IRS to conduct audits on people Trump had publicly attacked.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/TrumpJohnKelly/494095061494422ab38b47ea714cf6d7/photo?Query=John%20Kelly%20Donald%20Trump&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=627&currentItemNo=10">AP Photo/Pablo Martinez Monsivais</a></span>
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<p>Trump said the IRS should investigate two former FBI officials, Director James Comey and Deputy Director Andrew McCabe, Kelly said. Trump has <a href="https://www.washingtonpost.com/politics/2019/05/23/trump-not-understanding-treason-names-people-he-thinks-committed-capital-crime/">publicly, and baselessly</a>, accused Comey and McCabe of treason, a capital crime.</p>
<p>After Kelly left the White House, both Comey and McCabe were subjected to unusually intense IRS audits, the kind tax lawyers refer to as “an <a href="https://www.nytimes.com/2022/07/06/us/politics/comey-mccabe-irs-audits.html">autopsy without the benefit of death</a>,” New York Times reporter Michael S. Schmidt wrote. Through a spokeswoman, Trump denied any knowledge of the audits. A Trump spokeswoman also denied Kelly’s account.</p>
<p>If Kelly told the truth, then Donald Trump managed to weaponize the IRS more effectively than Richard Nixon. That’s a sentence that I, as the author of <a href="https://www.upress.virginia.edu/title/4886">two</a> <a href="https://www.upress.virginia.edu/title/4984">books</a> on Nixon’s worst abuses of power, found difficult to type. </p>
<p>Kelly has made exactly the kind of credible allegation that a “Select Subcommittee on Weaponization of the Federal Government” worthy of the name would investigate. Yet none of the Republicans who spoke before their <a href="https://www.nytimes.com/2023/01/10/us/politics/house-republican-committee-weaponization-government.html">party-line vote</a> to establish the subcommittee expressed any interest in investigating government weaponization by politicians of their own party. </p>
<p>Congress has the power, even the obligation, to unearth and eliminate government weaponization. But if the subcommittee abuses its power for partisan ends, it will merely be an example of the problem it’s supposed to solve.</p><img src="https://counter.theconversation.com/content/197848/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ken Hughes is a research specialist with the Presidential Recordings Program of the University of Virginia's Miller Center, whose work is funded in part by grants from the National Historical Publications and Records Commission.</span></em></p>The House GOP is scrutinizing federal investigators for alleged abuses of power. But will they probe abuses that may have been committed by members of their own party?Ken Hughes, Research Specialist, the Miller Center, University of VirginiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1977732023-01-13T13:33:15Z2023-01-13T13:33:15ZSpecial counsels, like those examining Biden’s and Trump’s handling of classified documents, are intended to be independent – but they aren’t entirely<p>Attorney General <a href="https://www.justice.gov/ag/staff-profile/meet-attorney-general">Merrick Garland</a> has now appointed two veteran prosecutors as special counsels to oversee investigations into how President Joe Biden and former President <a href="https://www.whitehouse.gov/about-the-white-house/presidents/donald-j-trump/">Donald Trump</a> handled classified documents after leaving office – <a href="https://www.nytimes.com/live/2023/01/12/us/biden-classified-documents">Biden after he ended his terms as vice president</a> in 2017, and <a href="https://www.nytimes.com/2022/11/18/us/politics/jack-smith-special-counsel-trump.html">Trump after leaving the Oval Office</a> in 2021. </p>
<p><a href="https://www.cnn.com/2023/01/12/politics/who-is-robert-hur-special-counsel/index.html">Robert Hur</a>, a former federal prosecutor in Maryland, will investigate whether Biden or any of his staff or associates mishandled classified information. <a href="https://www.nytimes.com/2022/11/18/us/politics/jack-smith-special-counsel-trump.html">Jack Smith</a>, a longtime top investigator in the Department of Justice, is overseeing <a href="https://www.justice.gov/opa/pr/appointment-special-counsel-0">two criminal investigations</a> into former President <a href="https://www.whitehouse.gov/about-the-white-house/presidents/donald-j-trump/">Donald Trump</a>.</p>
<p>Garland’s goal, in both cases, is to shield the probes from the appearance of partisanship.</p>
<p>But in <a href="https://truthsocial.com/@realDonaldTrump/posts/109406714029467005">immediate</a> and <a href="https://truthsocial.com/@realDonaldTrump/posts/109418948251497568">repeated</a> attacks, <a href="https://www.youtube.com/watch?v=nuWwzsROQSU">Trump</a>, and some of his <a href="https://truthsocial.com/@RepMTG/posts/109427543912303347">allies</a>, alleged <a href="https://truthsocial.com/@realDonaldTrump/posts/109423468870178087">political bias</a> anyway. For instance, in one highly charged social media post, the former president argued that he won’t “<a href="https://truthsocial.com/@realDonaldTrump/posts/109423251440782165">get a fair shake</a>” from Smith.</p>
<p>Biden, for his part, has said he is “<a href="https://www.nytimes.com/live/2023/01/12/us/biden-classified-documents#biden-said-he-was-cooperating-fully-and-completely-with-a-justice-department-review">cooperating fully and completely</a>” with the Justice Department’s inquiries.</p>
<p>Fairness and justice, though, are what Garland appointed Smith and Hur to deliver. In his announcement that Smith would take charge of the Department of Justice investigations into Trump’s role in the <a href="https://theconversation.com/pro-trump-rioters-storm-u-s-capitol-as-his-election-tantrum-leads-to-violence-149142">Jan. 6 insurrection</a> and Trump’s <a href="https://theconversation.com/fbis-mar-a-lago-search-warrant-affidavit-reveals-how-trump-may-have-compromised-national-security-a-legal-expert-answers-5-key-questions-189500">handling of classified government documents</a>, Garland described Smith <a href="https://www.justice.gov/opa/speech/attorney-general-merrick-b-garland-delivers-remarks-appointment-special-counsel">as someone who</a> “has built a reputation as an impartial and determined prosecutor.”</p>
<p>When appointing Hur, Garland emphasized his “<a href="https://www.justice.gov/opa/pr/appointment-special-counsel-1">department’s commitment to both independence and accountability</a> in particularly sensitive matters and to making decisions indisputably guided only by the facts and the law.”</p>
<p>In his own statement, Smith, <a href="https://www.npr.org/2022/11/18/1137847204/who-is-doj-special-counsel-jack-smith">who most recently</a> investigated and prosecuted war crimes at <a href="https://www.icc-cpi.int/about/the-court">the International Criminal Court</a> in <a href="https://www.denhaag.nl/en/in-the-city/introducing-the-hague/a-short-history-of-the-hague.htm">The Hague</a>, <a href="https://www.justice.gov/opa/pr/statement-special-counsel-jack-smith">promised to</a> “independently … move the investigations forward … to whatever outcome the facts and the law dictate.”</p>
<p>From my perspective as <a href="https://scholar.google.com/citations?user=vXXZBEkAAAAJ&hl=en">a political scientist</a> who studies presidential systems, I believe that while special counsels are intended to be independent, in practice they are aren’t entirely. Here’s why.</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man with dark hair and a salt-and-pepper beard, sitting behind a large table or desk." src="https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Special Counsel Jack Smith, examining Trump’s actions.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/NetherlandsKosovoWarCrimes/0b477946e8f641f5b2b7521cafd05cb4/photo?Query=Jack%20Smith%20DeJong&mediaType=photo&sortBy=creationdatetime:desc&dateRange=Anytime&totalCount=3&currentItemNo=2">AP Photo/Peter Dejong, Pool</a></span>
</figcaption>
</figure>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/504318/original/file-20230112-34767-pce8rf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a suit stands outside." src="https://images.theconversation.com/files/504318/original/file-20230112-34767-pce8rf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/504318/original/file-20230112-34767-pce8rf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=431&fit=crop&dpr=1 600w, https://images.theconversation.com/files/504318/original/file-20230112-34767-pce8rf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=431&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/504318/original/file-20230112-34767-pce8rf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=431&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/504318/original/file-20230112-34767-pce8rf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=542&fit=crop&dpr=1 754w, https://images.theconversation.com/files/504318/original/file-20230112-34767-pce8rf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=542&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/504318/original/file-20230112-34767-pce8rf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=542&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Special Counsel Robert Hur, examining Biden’s actions.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/BidenClassifiedDocuments/28021b9a199041d2b64cd83a941dd593/photo">AP Photo/Steve Ruark</a></span>
</figcaption>
</figure>
<h2>Independent and special counsels</h2>
<p>Ensuring impartiality in the Department of Justice can be difficult, as the attorney general is <a href="https://theconversation.com/should-the-president-pick-the-attorney-general-141333">appointed by</a> – and answerable to – a partisan president. This gives presidents the power to try to compel attorneys general, who head the department, to pursue a political agenda. President <a href="https://www.whitehouse.gov/about-the-white-house/presidents/richard-m-nixon/">Richard Nixon</a> did this during the investigation of the Watergate break-in, which threatened to implicate him in criminal acts. </p>
<p>On the evening of <a href="https://www.npr.org/2018/10/21/659279158/a-brief-history-of-nixons-saturday-night-massacre">Oct. 20, 1973</a>, Nixon ordered Attorney General <a href="https://www.justice.gov/ag/bio/richardson-elliot-lee">Elliot Richardson</a> to fire <a href="https://www.justice.gov/osg/bio/archibald-cox">Archibald Cox</a>, whom Richardson had appointed to lead the Watergate investigation. Richardson refused and resigned. Nixon then ordered Deputy Attorney General <a href="https://www.npr.org/2019/11/27/783492672/william-ruckelshaus-who-defied-nixon-in-saturday-night-massacre-has-died-at-87">William Ruckelshaus</a> to fire Cox. Ruckelshaus also refused and resigned. Finally, Nixon ordered Solicitor General <a href="https://www.justice.gov/osg/bio/robert-h-bork">Robert Bork</a>, the next most senior official at the Department of Justice, to fire Cox. Bork complied. </p>
<p>This shocking series of events, often referred to as the <a href="https://www.youtube.com/watch?v=LZuthKhjAfk">Saturday Night Massacre</a>, demonstrated how presidents could exercise political power over criminal investigations.</p>
<p>As a result of the Watergate scandal, Congress passed the <a href="https://www.congress.gov/95/statute/STATUTE-92/STATUTE-92-Pg1824.pdf">Ethics in Government Act of 1978</a>. This allowed for investigations into misconduct that could operate outside of presidential control.</p>
<p>After passage of this legislation, if the attorney general received “specific information” alleging that the president, vice president or other <a href="https://www.law.cornell.edu/uscode/text/28/591">high-ranking executive branch officials</a> had committed a serious federal offense, the attorney general would ask a special three-judge panel to appoint an independent counsel, who would investigate. </p>
<p>The Ethics in Government Act also disqualified Department of Justice employees, including the attorney general, from participating in any investigation or prosecution that could “<a href="https://www.congress.gov/95/statute/STATUTE-92/STATUTE-92-Pg1824.pdf">result in a personal, financial, or political conflict of interest</a>, or the appearance thereof.”</p>
<p>In the decades since the law’s passage, independent counsels investigated <a href="https://www.hsdl.org/c/abstract/?docid=814877">Republicans</a> and <a href="https://www.govinfo.gov/content/pkg/CDOC-105hdoc310/pdf/CDOC-105hdoc310.pdf">Democrats</a> alike. In 1999, <a href="https://www.cnn.com/ALLPOLITICS/stories/1999/03/01/independent.counsel/">Congress</a> let the Ethics in Government Act expire. That year, then-Attorney General Janet Reno <a href="https://www.washingtonpost.com/wp-srv/politics/special/counsels/stories/counsel063099.htm">authorized</a> the appointment of special counsels, who could investigate certain sensitive matters, similar to the way independent counsels operated. </p>
<p>Robert Mueller, who was appointed in <a href="https://www.justice.gov/opa/pr/appointment-special-counsel">2017</a> by Deputy Attorney General Rod Rosenstein to investigate <a href="https://theconversation.com/russian-interventions-in-other-peoples-elections-a-brief-history-74406">possible Russian interference in the 2016 elections</a> and <a href="https://theconversation.com/fbis-russia-probe-threatens-a-reckoning-for-team-trump-75002">possible links between the Trump campaign and the Russian government</a>, was a special counsel. Some Republicans accused him of <a href="https://www.bbc.com/news/world-us-canada-42372603">bias</a>, despite his long career serving under <a href="https://www.npr.org/2018/02/01/582358540/muellers-reputation-in-washington-is-stunningly-bipartisan-journalist-says">both Democratic and Republican presidents</a>.</p>
<p>In <a href="https://www.justice.gov/sco-durham">2020</a>, John Durham – another <a href="https://www.nbcconnecticut.com/news/local/u-s-attorney-for-connecticut-john-durham-resigns/2432294/">veteran</a> of the Department of Justice – was appointed as special counsel to investigate the origins of the investigation that triggered Mueller’s appointment. Michael Sussmann, a former Democratic Party lawyer and target of that probe, accused Durham of <a href="https://www.npr.org/2022/02/15/1080841516/john-durham-sussmann-trump-russia-investigation">political prosecution</a>. Sussmann was later <a href="https://www.nytimes.com/2022/05/31/us/politics/michael-sussmann-durham-fbi.html">acquitted</a>.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1597377821353332736"}"></div></p>
<h2>Politicizing the process</h2>
<p>Although special counsels were meant to resemble independent counsels, there are notable differences.</p>
<p><a href="https://sgp.fas.org/crs/misc/R43112.pdf">For instance</a>, while special counsels operate independently of the attorney general, both their appointment and the scope of their investigations are determined by the attorney general. In contrast, the appointment of independent counsels and the scope of their investigations were determined by a three-judge panel, which in turn was appointed by the <a href="https://www.supremecourt.gov/about/about.aspx">chief justice of the United States</a>.</p>
<p>Also, since Congress authorized independent counsels, presidential influence was limited by law. In contrast, since Department of Justice regulations authorize special counsels, a president could try to compel the attorney general to change departmental interpretation of these regulations – or even just revoke them entirely – to influence or <a href="https://www.politico.com/story/2017/06/13/can-trump-fire-special-counsel-robert-mueller-239500">end</a> a special counsel investigation. </p>
<p>For example, at one point, Trump <a href="https://www.nytimes.com/2018/01/25/us/politics/trump-mueller-special-counsel-russia.html">wanted to fire Mueller</a>. After his attorney general, <a href="https://www.washingtonpost.com/politics/2020/03/04/an-emboldened-trump-says-quiet-part-out-loud-about-why-he-fired-jeff-sessions/">Jeff Sessions</a>, who had recused himself from the Russia probe, did not “<a href="https://twitter.com/realDonaldTrump/status/1235181043881299969">end the phony Russia Witch Hunt</a>,” Trump fired him.</p>
<p>Seemingly supportive of this, <a href="https://www.justice.gov/ag/bio/barr-william-pelham">William Barr</a>, who had served as attorney general under President <a href="https://www.whitehouse.gov/about-the-white-house/presidents/george-w-bush/">George W. Bush</a>, sent an unsolicited memo to the Department of Justice defending Trump by arguing that presidents have “<a href="https://www.wsj.com/public/resources/documents/BarrMueller.pdf">complete authority to start or stop a law enforcement proceeding</a>.” </p>
<p><a href="https://theconversation.com/nominating-a-crony-loyalist-or-old-buddy-for-attorney-general-is-a-us-presidential-tradition-108160">Unsurprisingly</a>, Trump then <a href="https://theconversation.com/should-the-president-pick-the-attorney-general-141333">chose</a> Barr to replace <a href="https://theconversation.com/3-things-jeff-sessions-did-as-attorney-general-that-history-should-remember-106614">Sessions</a> as attorney general.</p>
<p><a href="https://doi.org/10.1371/journal.pone.0234938">In my own research</a>, <a href="https://doi.org/10.1016/j.soscij.2019.04.006">I have found</a> that abuses of power are more common in situations in which the president and the attorney general are political allies.</p>
<p>For instance, after Mueller finished his <a href="https://www.washingtonpost.com/graphics/2019/politics/read-the-mueller-report/?itid=lk_inline_manual_21">report</a> in 2019, Barr released a <a href="https://www.washingtonpost.com/context/read-attorney-general-barr-s-principal-conclusions-of-the-mueller-report/?noteId=9048a12b-2332-4645-a1be-d645db216eb5&questionId=218b8095-c5e3-4eab-9135-4170f5b3e87f">summary</a> of its “principal conclusions.” Later, Barr’s summary was criticized for “<a href="https://www.washingtonpost.com/context/special-counsel-mueller-s-letter-to-attorney-general-barr/e32695eb-c379-4696-845a-1b45ad32fff1/">not fully captur[ing] the context, nature, and substance</a>” of Mueller’s work.</p>
<p>In 2020, a Republican-appointed judge <a href="https://context-cdn.washingtonpost.com/notes/prod/default/documents/bd363044-e2ec-4a02-b0b3-43fbc48b2f49/note/f003c01c-cde9-4c1e-a926-bc74e461ca7f.pdf">ruled</a> that Barr “failed to provide a thorough representation of the findings set forth in the Mueller Report” and questioned whether Barr had “made a calculated attempt to influence public discourse … in favor of President Trump.”</p>
<h2>To be or not to be free of partisanship</h2>
<p>The independence of the Department of Justice rests, in part, on who occupies the offices of president and attorney general.</p>
<p>Trump, for example, <a href="https://www.washingtonpost.com/politics/post-impeachment-trump-declares-himself-the-chief-law-enforcement-officer-of-america/2020/02/18/b8ff49c0-5290-11ea-b119-4faabac6674f_story.html">saw himself</a> as “the chief law enforcement officer of the country” and thought it was appropriate to “be totally involved.” </p>
<p>Meanwhile, <a href="https://www.whitehouse.gov/administration/president-biden/">Biden</a> has <a href="https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=3093&context=nclr">a long history</a> of supporting the independence of Department of Justice investigations, dating as far back as his <a href="https://www.judiciary.senate.gov/about/chairman/previous">1987-1995 tenure as chairman of the Senate Judiciary Committee</a>.</p>
<p>Barr once <a href="https://www.washingtonpost.com/opinions/former-attorney-general-trump-was-right-to-fire-sally-yates/2017/02/01/5981d890-e809-11e6-80c2-30e57e57e05d_story.html">argued</a> that the attorney general’s role is to advance “all colorable arguments that can [be] mustered … when the president determines an action is within his authority – even if that conclusion is debatable.” </p>
<p>In contrast, Garland – a former U.S. circuit judge – <a href="https://www.justice.gov/opa/pr/statement-attorney-general-merrick-b-garland">insists</a> that “political or other improper considerations must play no role in any investigative or prosecutorial decisions.”</p>
<p>Given that <a href="https://www.youtube.com/watch?v=9TeYOZWGu8s">Trump</a> and <a href="https://www.nbcnews.com/politics/joe-biden/biden-cranks-courtship-top-donors-ahead-2024-presidential-election-rcna59029">Biden</a> may end up facing off in <a href="https://www.newyorker.com/news/letter-from-bidens-washington/are-we-doomed-to-see-a-biden-trump-rematch-in-2024">2024</a>, it makes sense that Garland would want to appoint special counsels in order to avoid directly overseeing investigations into his boss and into a political opponent of his boss.</p>
<p>Still, Smith and Hur will not be entirely independent of Garland, just as Garland <a href="https://theconversation.com/will-merrick-garland-joe-bidens-pick-for-attorney-general-be-independent-in-that-role-history-says-its-unlikely-151952">is not entirely independent</a> of Biden.</p>
<p><em>This is an updated version of an <a href="https://theconversation.com/special-counsels-like-the-one-leading-the-department-of-justices-investigation-of-trump-are-intended-to-be-independent-but-they-arent-entirely-195640">article</a> originally published Dec. 14, 2022.</em></p><img src="https://counter.theconversation.com/content/197773/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joshua Holzer does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Special counsels can help administrations avoid the perception of bias, but politics is never fully out of the picture.Joshua Holzer, Assistant Professor of Political Science, Westminster CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1965592023-01-12T13:21:28Z2023-01-12T13:21:28ZTrump is facing various criminal charges – here’s what we can learn from legal cases against Nixon and Clinton<figure><img src="https://images.theconversation.com/files/504070/original/file-20230111-14-t9gpgf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Donald Trump waves to people during a New Year's event at his Mar-a-Lago home in December 2022. </span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1453537376/photo/donald-trump-addresses-the-press-on-new-years-eve-at-mar-a-lago-mansion.jpg?s=1024x1024&w=gi&k=20&c=ZPmora_FI5LKPZ9ezZ3DTxKoHRFR0iuAkvGdPSewxJ4=">Joe Raedle/Getty Images</a></span></figcaption></figure><p>A <a href="https://www.cnn.com/2023/01/09/politics/fulton-county-grand-jury-trump-election/index.html">Georgia special grand jury has finished its work</a> investigating whether former president Donald Trump and his allies committed crimes when trying to overturn the 2020 election results.</p>
<p>While special grand juries cannot themselves issue indictments, they can recommend district attorneys do so. This and other recent news about Trump’s mounting legal problems has led to a number of legal experts and <a href="https://www.washingtonpost.com/opinions/2023/01/10/georgia-fulton-investigation-trump-indictment/">political observers</a> saying that Trump could soon be indicted.</p>
<p>Trump, meanwhile, faces several other criminal investigations that could also result in indictments. The Department of Justice is <a href="https://www.vox.com/policy-and-politics/23306941/donald-trump-crimes-criminal-investigation-mar-a-lago-fbi-january-6-election-georgia-new-york">investigating Trump</a> for retaining government documents in violation of several federal laws. </p>
<p>And the House Select Committee to Investigate the January 6th Attack on the United States Capitol <a href="https://apnews.com/article/january-6-final-hearing-investigation-wraps-0bceb95826c1c836023d2810ccbeccca">referred Trump</a> to the Department of Justice in December 2022, <a href="https://www.npr.org/2022/12/23/1145160544/jan-6-report-committee-donald-trump">citing multiple likely</a> criminal violations in his role of orchestrating an attack on the Capitol. The Department of Justice’s special counsel is now investigating. </p>
<p>Trump, who may become the first former president of the United States to be indicted by a court of law, is not the first modern president with <a href="https://www.wsj.com/articles/which-presidents-have-been-tied-to-a-crime-a-history-1534943720">legal problems</a>. But the question of whether a president – sitting or former – should be charged with a crime has come up three times in the last half-century. </p>
<p>As a <a href="https://law.wayne.edu/profile/ew9862">legal scholar</a>, I understand the important questions raised about the rule of law within U.S. democracy by the possible indictment of a former president. </p>
<p>The <a href="http://rolalliance.org/rol-alliance-impact/rule-of-law-democracy/">rule of law</a> means that no one is above the law. It ensures that the rules are made by and for the people. Those rules are enforced equally and adjudicated through well-established procedures. For the rule of law to prevail, any decision to indict a former president – or not to – has to be credible, independent and supported by evidence.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/503889/original/file-20230110-19-tgeje0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A white man with a blue suit walks past a row of American flags with the words 'Make America Great again' on a banner above the flags." src="https://images.theconversation.com/files/503889/original/file-20230110-19-tgeje0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/503889/original/file-20230110-19-tgeje0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/503889/original/file-20230110-19-tgeje0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/503889/original/file-20230110-19-tgeje0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/503889/original/file-20230110-19-tgeje0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/503889/original/file-20230110-19-tgeje0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/503889/original/file-20230110-19-tgeje0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former President Donald Trump speaks at an event in his Mar-a-Lago home in November 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1441806213/photo/former-u-s-president-donald-trump-makes-an-announcement-at-his-florida-home.jpg?s=612x612&w=gi&k=20&c=R2vt8_lclk72suKPt3eLn75Rak5i1LT6SIe18wHUig0=">Joe Raedle/Getty Images</a></span>
</figcaption>
</figure>
<h2>Being a current or former president matters</h2>
<p><a href="http://www.processhistory.org/presidential-misconduct-historians-and-history/">Presidential misconduct</a> is not new. </p>
<p>Presidents have engaged in unlawful activity. Some have even run into legal problems while in office. But their legal problems are often settled by the time they leave office and fade from the public’s memory. </p>
<p>The perseverance of Trump’s legal problems raises important new questions about how to deal with misconduct by a former president.</p>
<p>This matters, because federal law treats former presidents differently from sitting presidents. Former presidents do not retain all the legal advantages of being president. For example, former presidents can try to assert executive privilege to shield certain documents and information from Congress, courts and the public to protect the nation, but courts <a href="https://www.theusconstitution.org/litigation/thompson-v-trump/">have limited their</a> ability to do so. </p>
<p>The question of whether a sitting president can be indicted remains unresolved. In 2000, the Department of Justice <a href="https://www.justice.gov/olc/opinion/sitting-president%E2%80%99s-amenability-indictment-and-criminal-prosecution">adopted a policy</a> against indicting a sitting president. The policy protects presidents while they are in office so they can fulfill their constitutional duties. </p>
<p>But it is tradition, not law or policy, that has kept former presidents from indictment in <a href="https://www.theatlantic.com/ideas/archive/2020/10/case-criminally-investigating-ex-president/616804/">the past 240 years</a>. </p>
<p>The legal arguments against indicting a sitting president – namely that it would undermine the capacity of the executive branch to perform its constitutional functions – lose weight once a president leaves office. A former president becomes a private citizen and no longer has any duties under the Constitution.</p>
<h2>Legal trouble for sitting presidents</h2>
<p>A few presidents have faced legal problems while in office, including Republican Richard Nixon and Democrat Bill Clinton. </p>
<p>Nixon famously ran into legal trouble after his <a href="https://www.britannica.com/event/Watergate-Scandal">reelection campaign</a> burglarized and bugged the Democratic National Committee’s headquarters in June 1972 – and he subsequently participated in the effort to cover up the scandal. </p>
<p>Nixon resigned in 1974 before the House of Representatives could have potentially impeached him – or the Senate could have convicted him and removed him from office <a href="https://www.vox.com/2014/8/7/5970967/what-was-watergate-scandal-nixon">for his crimes</a> of obstruction of justice, abuse of power and contempt of Congress.</p>
<p><a href="https://www.britannica.com/biography/Leon-Jaworski">Special Prosecutor Leon Jaworski</a>, who was investigating the Watergate scandal, struggled with the question of whether a court can indict a sitting president. </p>
<p>The U.S. Constitution does not say that the president is immune from ordinary processes of the criminal law. It does, however, provide for impeachment and removal from office. </p>
<p>Some believe that because the Constitution establishes an <a href="https://www.lawfareblog.com/indicting-and-prosecuting-sitting-president">impeachment process</a> to address presidential misconduct, it should take precedent over a criminal indictment. Others worry that indictment would interfere with a president’s ability to fulfill his or her constitutional duties.</p>
<p>Jaworski left this legal question open and chose not to indict Nixon in 1974. He transmitted the evidence he had gathered on Nixon’s involvement in Watergate to the House so it could pursue impeachment proceedings. </p>
<p>The grand jury that was also investigating the Watergate scandal, however, <a href="https://www.nytimes.com/1974/06/07/archives/jury-named-nixon-a-coconspirator-but-didnt-indict-st-clair-confirms.html">voted in June 1974</a> to name Nixon as an unindicted co-conspirator in an alleged conspiracy to obstruct justice. It also recommended indicting seven men involved in the crime.</p>
<p>Nixon’s successor, President Gerald Ford, then faced the question of how to deal with Nixon’s misconduct after his predecessor resigned the office. Ford didn’t have the power to indict, but he could pardon Nixon for his alleged crimes. Ford decided that it was in the best interest of the country to <a href="https://www.history.com/this-day-in-history/ford-pardons-nixon">move on</a> from the Watergate scandal and to not allow prosecutors to indict Nixon. </p>
<p>Shortly after Nixon’s resignation, Ford <a href="https://www.history.com/this-day-in-history/ford-pardons-nixon">granted a full</a>, free and absolute pardon to Nixon in September 1974 for all offenses committed during his tenure as president. Ford’s pardon ensured that Nixon would not face indictment as a former president.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A black and white photo shows two men sitting in arm chairs facing each other." src="https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=406&fit=crop&dpr=1 600w, https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=406&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=406&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=510&fit=crop&dpr=1 754w, https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=510&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/503893/original/file-20230110-16-vgiocz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=510&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Richard Nixon speaks with journalist David Frost in 1977, three years after Nixon resigned.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/50426386/photo/frost-interviews-nixon.jpg?s=612x612&w=gi&k=20&c=ghRZcU4BWKy-fprsduiqPDQybzP0A86zbemPw8rP1os=">John Bryson/Getty Images</a></span>
</figcaption>
</figure>
<h2>Another kind of legal trouble</h2>
<p>Clinton was never indicted, but he faced serious consequences for his presidential misconduct. His legal problems related to his treatment of and relationships with several women who were not his wife. </p>
<p>Clinton was accused of lying in court proceedings in a sexual harassment case filed against him. His alleged lying led to his impeachment for lying under oath to a federal grand jury and obstruction of justice. The Senate voted not to convict him, and thus he was not removed from office. A <a href="https://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/contempt041399.htm">federal district judge</a> held Clinton in contempt of court for making false statements in deposition testimony in the case. </p>
<p>Unlike Nixon, Clinton paid a price for his presidential misconduct. An Arkansas Supreme Court <a href="https://www.washingtonpost.com/archive/politics/2000/07/01/arkansas-court-panel-sues-clinton/9226bfa2-3297-453a-b680-d8a34b1f98f8/">committee sued him</a> for his behavior while in office and asked that Clinton be disbarred for his behavior.</p>
<p>Clinton <a href="https://www.washingtonpost.com/archive/politics/2001/01/20/in-a-deal-clinton-avoids-indictment/bb80cc4c-e72c-40c1-bb72-55b2b81c3065/">settled</a> the suit by agreeing to a five year suspension of his law license, a $25,000 fine and public acknowledgment that he had violated the Arkansas Rules of Professional Conduct. He accepted a punishment far harsher than the reprimand normally given in similar situations, but escaped criminal prosecution. </p>
<h2>Preserving the rule of law</h2>
<p>Trump now faces multiple criminal investigations that could result in an indictment. No former president has faced so many possible indictments. </p>
<p>Any decision for or against indicting Trump could threaten the rule of law if it is not carefully considered and supported by the evidence. As weighty and historic as the decisions about indicting Trump may seem, they reflect the country’s larger struggle in navigating how to deal with presidential misconduct.</p>
<p>The next steps in Trump’s legal saga will be key in determining how our democracy decides to hold former presidents accountable for their misconduct.</p><img src="https://counter.theconversation.com/content/196559/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kirsten Matoy Carlson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Trump isn’t the first modern president with legal problems, but he would be the first former president to be indicted for alleged crimes.Kirsten Matoy Carlson, Professor of Law and Adjunct Professor of Political Science, Wayne State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1959992022-12-23T13:12:55Z2022-12-23T13:12:55ZJan. 6 committee tackled unprecedented attack with time-tested inquiry<figure><img src="https://images.theconversation.com/files/502472/original/file-20221221-20-vyealk.jpeg?ixlib=rb-1.1.0&rect=0%2C0%2C5015%2C3331&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A Dec. 19, 2022 meeting of the Select Committee to Investigate the January 6th Attack on the U.S. Capitol, in Washington, DC. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/an-image-is-displayed-on-a-screen-during-a-meeting-of-the-news-photo/1245732523?phrase=House%20January%206%20committee&adppopup=true">Getty Images</a></span></figcaption></figure><p>After 18 months, more than 1,200 interviews and <a href="https://www.axios.com/2022/12/20/jan-6-committees-unanswered-questions">10 public hearings that presented 70 witnesses’ testimony</a>, the House Select Committee to Investigate the January 6 Attack <a href="https://int.nyt.com/data/documenttools/january-6-committee-final-report/2095325cbebd8378/full.pdf">released its 845-page final report</a> late on Dec. 22, 2022. The report recommended that the Department of Justice prosecute former President Donald Trump on four criminal charges, including conspiracy and incitement of insurrection. It also contained several legislative recommendations, including <a href="https://www.npr.org/2022/12/22/1139951463/electoral-count-act-reform-passes">reform of the process</a> to count electoral votes in presidential elections. The committee also notably recommended that Congress bar Trump and other officials involved in the insurrection from running for office again under the 14th amendment.</p>
<p>The committee’s recommendation to prosecute a former president was unprecedented. But its investigation of the events of Jan. 6, 2021 fell squarely within Congress’ power, and added a new chapter to a centuries-long history of congressional investigations into government scandals and failures.</p>
<h2>Regular oversight</h2>
<p>Congress has broad investigative powers. Its standing and special committees, known as select committees, regularly conduct <a href="https://theconversation.com/jan-6-hearings-are-only-the-tip-of-the-iceberg-when-it-comes-to-important-congressional-oversight-hearings-185369">both preemptive oversight and retroactive investigations</a>. Their aim: to identify specific cases of wrongdoing both inside and outside government. </p>
<p>Committee investigative reports, released at the end of focused probes, often serve as valuable historical documents. They provide detailed chronicles of the events that motivated the inquiries. For instance, <a href="https://www.congress.gov/114/crpt/hrpt848/CRPT-114hrpt848.pdf">the final report released by the House Select Committee on Benghazi</a> offered a minute-by-minute accounting of events leading to the deadly terrorist attacks on the American consulate in Benghazi, Libya, on the night of Sept. 11, 2012. </p>
<p>The reports typically reiterate the questions that prompted the investigation, explain how the committee conducted its work and delineate the relevant evidence and progression of events. Finally, a report will provide provides recommendations for fixing the problems the inquiry uncovered. </p>
<p>These recommendations may be classified into three distinct types: legal, legislative and institutional. Of the 11 distinct recommendations the Jan. 6th committee offered in its final report, one was a legal recommendation focused on accountability, nine proposed new policies and actions, and one proposed increased oversight in Congress itself. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/500435/original/file-20221212-110709-uu9du9.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An antique-looking newspaper clipping about a Senate committee's attempt to get witnesses to testify in 1860." src="https://images.theconversation.com/files/500435/original/file-20221212-110709-uu9du9.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/500435/original/file-20221212-110709-uu9du9.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=585&fit=crop&dpr=1 600w, https://images.theconversation.com/files/500435/original/file-20221212-110709-uu9du9.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=585&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/500435/original/file-20221212-110709-uu9du9.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=585&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/500435/original/file-20221212-110709-uu9du9.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=735&fit=crop&dpr=1 754w, https://images.theconversation.com/files/500435/original/file-20221212-110709-uu9du9.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=735&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/500435/original/file-20221212-110709-uu9du9.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=735&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A brief New York Times story from Jan. 26, 1860, about witnesses summoned to testify at a Senate committee investigation of John Brown and fellow abolitionists’ raid on a government arsenal at Harpers Ferry, in what is now W.Va.</span>
<span class="attribution"><a class="source" href="https://timesmachine.nytimes.com/timesmachine/1860/01/26/88149088.html?pageNumber=2">New York Times archive screenshot</a></span>
</figcaption>
</figure>
<h2>Legal referrals</h2>
<p>Committees can recommend legal action, such as civil or criminal prosecutions, or both. But Congress cannot itself levy civil or criminal charges against the subjects of investigations. </p>
<p>Instead, committees may recommend that the Department of Justice consider indictments based on the evidence presented in the final committee reports. Federal prosecutors often conduct their own parallel investigations during the same time frame as congressional inquiries but take Congress’ evidence and referrals seriously. The <a href="https://www.nytimes.com/live/2022/12/19/us/jan-6-committee-trump">Jan. 6th committee’s vote on Dec. 19, 2022</a> was the first time Congress has referred a former president for criminal prosecution.</p>
<p>In the 1920s, during its investigation of <a href="https://www.levin-center.org/thomas-walsh-and-the-teapot-dome-investigation/">the Teapot Dome bribery scandal</a>, the Senate Public Lands Committee <a href="http://academic.brooklyn.cuny.edu/history/johnson/teapotdome.htm">found evidence of corruption by, among others</a>, Interior Secretary Albert Fall. Committee Chairman Thomas Walsh recommended that Fall be <a href="https://www.nytimes.com/1924/02/10/archives/walsh-arraigns-teapot-dome-looters.html">prosecuted for “contemptuous disregard of the law.”</a> <a href="https://www.levin-center.org/thomas-walsh-and-the-teapot-dome-investigation/">Fall was also investigated by special counsels</a> appointed by President Calvin Coolidge and was indicted and served prison time for bribery. </p>
<p>In the 1970s, <a href="https://www.levin-center.org/the-watergate-hearings/">Congress’ investigation</a> into the Nixon administration’s cover-up of the Watergate break-in led to <a href="https://www.cnn.com/2014/01/23/us/watergate-fast-facts/index.html">the conviction of three Nixon aides for obstruction of justice</a>. In the 1980s, the Senate’s Iran-Contra investigation, along with the independent Tower Commission’s report, into secret and unlawful arms sales to Iran by the Reagan administration <a href="https://www.brown.edu/Research/Understanding_the_Iran_Contra_Affair/prosecutions.php">led to the convictions of three Reagan administration advisers</a> for charges ranging from conspiracy to obstruction of Congress. </p>
<p>In highly political investigations, Congress may stop short of recommending specific criminal charges. But it can encourage federal prosecutors to review the committee’s findings over the course of their own investigations. </p>
<p>For instance, <a href="https://www.washingtonpost.com/wp-srv/politics/special/whitewater/timeline.htm">in 1994, Attorney General Janet Reno appointed an independent counsel</a> to investigate property investments in the Whitewater Development Corp. made by Bill and Hillary Clinton when they were governor and first lady of Arkansas. </p>
<p>A year later, the Senate established a special committee to conduct its own Whitewater inquiry. <a href="https://www.govinfo.gov/content/pkg/CRPT-104srpt280/pdf/CRPT-104srpt280.pdf">In the Republican majority’s final report</a>, the committee accused the Clinton administration of “highly improper conduct.” But it stopped short of recommending criminal indictments. </p>
<p>In a follow-up letter <a href="http://edition.cnn.com/ALLPOLITICS/1997/gen/resources/infocus/whitewater/repub.letter.html">to independent counsel Kenneth Starr</a>, the committee suggested that he “take whatever action you deem appropriate” after reviewing the committee’s evidence against three Clinton aides. <a href="https://archive.nytimes.com/www.nytimes.com/library/politics/070199hubbell-starr.html">Starr later indicted one of those aides for fraud</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/500475/original/file-20221212-113234-uu5no9.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Many circus clowns in a room watching a TV." src="https://images.theconversation.com/files/500475/original/file-20221212-113234-uu5no9.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/500475/original/file-20221212-113234-uu5no9.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=397&fit=crop&dpr=1 600w, https://images.theconversation.com/files/500475/original/file-20221212-113234-uu5no9.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=397&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/500475/original/file-20221212-113234-uu5no9.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=397&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/500475/original/file-20221212-113234-uu5no9.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=499&fit=crop&dpr=1 754w, https://images.theconversation.com/files/500475/original/file-20221212-113234-uu5no9.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=499&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/500475/original/file-20221212-113234-uu5no9.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=499&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Senate’s Watergate hearings, which began May 17, 1973, were watched by an estimated 3 out of 4 of the nation’s homes. Clowns on a break from Shrine Circus in Pittsburgh watched during their time off.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/between-the-acts-clowns-from-the-shrine-circus-take-time-to-news-photo/1169767644?phrase=watergate%20hearing&adppopup=true">Bettmann Archive/Getty Images</a></span>
</figcaption>
</figure>
<h2>Legislative recommendations</h2>
<p>Committee reports often include guides for policy reform in both the executive and legislative branches to address the failures that sparked the investigation. </p>
<p>Perhaps a committee’s most far-reaching set of legislative proposals came <a href="https://www.senate.gov/about/powers-procedures/investigations/church-committee.htm">after the Church Committee investigated</a> the CIA’s role in the assassination of foreign leaders and its potentially unconstitutional domestic surveillance. The committee in 1976 made 96 recommendations for reforming the U.S. intelligence community in <a href="https://www.aarclibrary.org/publib/contents/church/contents_church_reports_ir.htm">its final six-volume report</a>. </p>
<p>Two years after the report’s release, Congress followed through. It passed <a href="https://bja.ojp.gov/program/it/privacy-civil-liberties/authorities/statutes/1286">the Foreign Intelligence Surveillance Act</a>, commonly known as “FISA.” The law required intelligence agencies to obtain warrants before conducting surveillance on American citizens. </p>
<p>In light of the committee’s revelations of the FBI’s spying on activists like Martin Luther King Jr. – <a href="https://kinginstitute.stanford.edu/encyclopedia/federal-bureau-investigation-fbi">approved by the long-standing agency director, J. Edgar Hoover</a> – Congress also established a single 10-year term for FBI directors. </p>
<p>And while Congress did not enact the Church Committee’s proposal to <a href="https://www.aarclibrary.org/publib/church/reports/ir/html/ChurchIR_0148a.htm">ban foreign assassinations</a>, <a href="https://www.britannica.com/event/Executive-Order-11905">President Gerald Ford did so</a> via executive order in 1976. This order was revised, yet <a href="https://irp.fas.org/crs/RS21037.pdf">upheld, by Presidents Carter, Reagan, Bush and Clinton</a>. But it was weakened by policies adopted for the U.S. war on terror beginning in 2001. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/fomOeIhEWDg?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">CIA Director William Colby is interrogated by Sen. Frank Church at a 1975 hearing of the Church Committee on intelligence operations. Colby exhibits a dart pistol that fires poisonous ammunition.</span></figcaption>
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<h2>Institutional modifications</h2>
<p>Committees can make suggestions for increasing the ease and effectiveness of future oversight, both inside and outside Congress. Such a move can be sold to fellow legislators as a nonpartisan imperative for checking executive power.</p>
<p>For example, after the conclusion of the Truman Committee’s World War II-era investigation in which it was charged with “<a href="https://www.hsgac.senate.gov/imo/media/doc/PSI%20Historical%20Background%20-%20Updated%20to%20116th%20Congress.pdf">exposing waste, fraud, and abuse in the war effort and war profiteering</a>,” Congress made the committee permanent, establishing the Senate Permanent Subcommittee on Investigations. That subcommittee currently has the broadest investigative jurisdiction of any Senate committee, with the power to investigate all government agencies as well as all “<a href="https://www.hsgac.senate.gov/imo/media/doc/PSI%20Historical%20Background%20-%20Updated%20to%20116th%20Congress.pdf">aspects of crime and lawlessness within the United States which … affect the national health, welfare, and safety</a>.”</p>
<p>And in response to the Church Committee’s suggestion in 1976, Congress established Permanent Select Committees on Intelligence <a href="https://catalog.archives.gov/id/10535577">in the House</a> <a href="https://www.intelligence.senate.gov/about">and Senate</a>. Both have access to classified information and oversight of the U.S. intelligence community, including the CIA and the National Security Agency. </p>
<p>Congress can also pass laws to facilitate or strengthen oversight within government agencies themselves. For instance, <a href="https://www.govinfo.gov/content/pkg/STATUTE-92/pdf/STATUTE-92-Pg1101.pdf">the Inspector General Act of 1978</a> established centralized, independent oversight offices in major government agencies. It <a href="https://crsreports.congress.gov/product/pdf/R/R45450">was inspired by</a> a <a href="https://www.ojp.gov/pdffiles1/Digitization/63790NCJRS.pdf">House committee’s final report</a> on waste and mismanagement in the Department of Health, Education and Welfare. </p>
<h2>Political effects</h2>
<p>Committee reports may also have important political consequences, though those effects are not necessarily planned or anticipated. </p>
<p>During its 2014-2016 investigation, for instance, the <a href="https://www.congress.gov/committee/house-select-committee-on-the-events-surrounding-the-2012-terrorist-attack-in-benghazi/hlzi00">House Benghazi committee</a> discovered that Hillary Clinton had improperly used a private email server when she was secretary of state.</p>
<p><a href="https://www.nytimes.com/2016/06/29/us/politics/hillary-clinton-benghazi.html">The committee did not recommend criminal charges against Clinton</a>. But it condemned the State Department for delays in turning over Clinton’s emails to the committee <a href="https://www.congress.gov/114/crpt/hrpt848/CRPT-114hrpt848.pdf">and argued that</a> “[T]he manner in which those records were housed during and after her tenure … makes it impossible to ever represent to the families of those killed in Benghazi that the record is whole.” </p>
<p>The email controversy would dog Clinton in her 2016 campaign for the presidency. The decision by FBI Director James Comey, in October 2016, <a href="https://vault.fbi.gov/director-comey-letter-to-congress-dated-october-28-2016/Director%20Comey%20Letter%20to%20Congress%20Dated%20October%2028%2C%202016%20Part%2001%20of%2001/view">to inform Congress of new information</a> regarding Clinton’s emails <a href="https://fivethirtyeight.com/features/the-comey-letter-probably-cost-clinton-the-election/">may have contributed to her loss to Donald Trump in November 2016</a>.</p><img src="https://counter.theconversation.com/content/195999/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Claire Leavitt has received funding from the Project on Government Oversight (POGO) and the Levin Center for Oversight and Democracy. </span></em></p>The House Jan. 6 committee’s final report is the latest in a long series of congressional studies that have tried to answer hard questions about government failures and suggest ways to avoid them.Claire Leavitt, Assistant Professor of Government, Smith CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1929772022-12-14T13:14:29Z2022-12-14T13:14:29ZA tortured and deadly legacy: Kissinger and realpolitik in US foreign policy<figure><img src="https://images.theconversation.com/files/499844/original/file-20221208-16432-ws570q.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C3300%2C2218&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Richard Nixon, left, speaks with national security adviser Henry Kissinger at the White House in September 1972.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/NixonKissinger/b9e3bd1e6db94514bffa443c9bf8c876/photo">AP Photo</a></span></figcaption></figure><p>Henry Kissinger, <a href="https://www.nytimes.com/2023/11/29/us/henry-kissinger-dead.html">who died on Nov. 29, 2023, at age 100</a>, exercised more than 50 years of influence on American foreign policy. </p>
<p>I am <a href="https://scholar.google.ca/citations?user=7b6xo3QAAAAJ&hl=en">a scholar of American foreign policy</a> who has <a href="https://doi.org/10.1017/S0020818311000324">written</a> on Kissinger’s service from 1969 to 1977 as national security adviser and secretary of state under the Nixon and Ford administrations. I have seen how his foreign policy views and actions played out for good and, mostly, for ill.</p>
<p>When Kissinger entered government as Richard Nixon’s national security adviser, he espoused a narrow perspective of the national interest, <a href="https://theconversation.com/lessons-in-realpolitik-from-nixon-and-kissinger-ideals-go-only-so-far-in-ending-conflict-in-places-like-ukraine-179979">known as “realpolitik,”</a> primarily centered on maximizing the economic and military power of the United States. </p>
<p>This power- and transactionalist-oriented approach to foreign policy produced a series of destructive outcomes. They ranged from fomenting coups that put in place murderous dictatorships, <a href="https://nsarchive.gwu.edu/briefing-book/chile/2020-11-06/allende-inauguration-50th-anniversary">as in Chile</a>, to killing unarmed civilians, <a href="https://gsp.yale.edu/sites/default/files/walrus_cambodiabombing_oct06.pdf">as in Cambodia</a>, and alienating potential allies, <a href="https://www.nytimes.com/2020/09/03/opinion/nixon-racism-india.html">as in India</a>. </p>
<h2>Damaging approach</h2>
<p>In his <a href="https://www.worldcat.org/title/world-restored-metternich-castlereagh-and-the-problems-of-peace-1812-1822/oclc/964314724">dissertation turned first book</a>, Kissinger argued foreign policymakers are measured by their ability to recognize shifts in political, military and economic power in the international system – and then to make those changes work in their country’s favor.</p>
<p>In this model of foreign policy, the political values – democracy, human rights – that make the United States a distinctive player in the international system have no role. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/499855/original/file-20221208-17002-k8glwk.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A large crater in the ground with burned trees and ruined buildings behind it." src="https://images.theconversation.com/files/499855/original/file-20221208-17002-k8glwk.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/499855/original/file-20221208-17002-k8glwk.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=389&fit=crop&dpr=1 600w, https://images.theconversation.com/files/499855/original/file-20221208-17002-k8glwk.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=389&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/499855/original/file-20221208-17002-k8glwk.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=389&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/499855/original/file-20221208-17002-k8glwk.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=489&fit=crop&dpr=1 754w, https://images.theconversation.com/files/499855/original/file-20221208-17002-k8glwk.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=489&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/499855/original/file-20221208-17002-k8glwk.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=489&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Bomb craters and ruins are almost all that remains of the Cambodian town of Kampong Tram on Aug. 1, 1973, destroyed by U.S. bombing.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CambodiaDestruction/d23e29b81e414e9399431e38ca9fa33c/photo">AP Photo</a></span>
</figcaption>
</figure>
<p>This perspective, with its self-declared realistic agenda, along with Kissinger’s place at the top of the foreign policy establishment as national security adviser and secretary of state for the better part of a decade, made Kissinger into something of a <a href="https://nypost.com/2022/07/09/henry-kissinger-every-president-but-biden-invites-me-to-white-house/">foreign policy oracle</a> for American policymakers of all stripes. </p>
<p>Yet Kissinger’s record reveals the problems with the narrow conception of national interest devoid of values. His time in government was characterized by major policy decisions that were generally detrimental to the United States’ standing in the world. </p>
<h2>Cambodian carnage</h2>
<p>When Nixon took office in 1968, he had <a href="https://www.youtube.com/watch?v=5HBON-ZIyUE">promised an honorable end</a> to the war in Vietnam. </p>
<p>Nixon faced a problem, however, in trying to gain control of the conflict: the porousness of Vietnam’s borders with Cambodia, through which supplies and soldiers from North Vietnam flowed into the South. </p>
<p>To address this problem, <a href="https://rowman.com/ISBN/9780815412243/Sideshow-Kissinger-Nixon-and-the-Destruction-of-Cambodia-Revised-Edition">Nixon dramatically escalated a bombing campaign</a> in Cambodia started under his predecessor, President Lyndon Johnson. Nixon later initiated a ground invasion of Cambodia to cut off North Vietnamese supply routes. </p>
<p>As William Shawcross details in <a href="https://rowman.com/ISBN/9780815412243/Sideshow-Kissinger-Nixon-and-the-Destruction-of-Cambodia-Revised-Edition">his defining book</a> on the subject, Kissinger supported Nixon’s Cambodia policy. </p>
<p>Despite the fact that Cambodia was not party to the conflict fought in Vietnam, U.S. bombing of Cambodia is <a href="https://gsp.yale.edu/sites/default/files/walrus_cambodiabombing_oct06.pdf">estimated</a> to have exceeded the total tonnage of all the bombs dropped by the U.S. during World War II, including the nuclear bombs at Hiroshima and Nagasaki. </p>
<p>The campaign killed tens of thousands of Cambodians and displaced millions. The destruction caused by the bombing as well as partial American occupation in 1970 were <a href="https://www.nybooks.com/articles/1979/06/28/the-crime-of-cambodia/">crucial to creating</a> the political and social instability that facilitated the rise of the <a href="https://gsp.yale.edu/case-studies/cambodian-genocide-program">genocidal Khmer Rouge regime</a>. That regime is <a href="https://www.economist.com/books-and-arts/2013/09/25/blood-meridian">estimated to have killed 2 million Cambodians</a>. </p>
<h2>Supporting a genocidal leader</h2>
<p>In 1970 and 1971, Nixon, with Kissinger’s advice and encouragement, supported Pakistan’s dictatorial president Yahya Khan in his <a href="https://www.penguinrandomhouse.com/books/212279/the-blood-telegram-by-gary-j-bass/">genocidal repression of Bengali nationalists</a> and war against India. </p>
<p>That conflict is estimated to have killed at <a href="https://www.smithsonianmag.com/history/genocide-us-cant-remember-bangladesh-cant-forget-180961490/">least 300,000 and possibly more than a million Bengalis</a>. Khan targeted for complete elimination the Hindus in what would become Bangladesh.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/502559/original/file-20221222-10182-ra4l8i.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A tent crowded with people and their belongings." src="https://images.theconversation.com/files/502559/original/file-20221222-10182-ra4l8i.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/502559/original/file-20221222-10182-ra4l8i.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=486&fit=crop&dpr=1 600w, https://images.theconversation.com/files/502559/original/file-20221222-10182-ra4l8i.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=486&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/502559/original/file-20221222-10182-ra4l8i.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=486&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/502559/original/file-20221222-10182-ra4l8i.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=611&fit=crop&dpr=1 754w, https://images.theconversation.com/files/502559/original/file-20221222-10182-ra4l8i.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=611&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/502559/original/file-20221222-10182-ra4l8i.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=611&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Refugees in a makeshift camp at Bongaon, fleeing fighting on the border between India and Pakistan, 26th June 1971.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/refugees-in-a-makeshift-camp-at-bongaon-fleeing-fighting-on-news-photo/831668538?phrase=refugee%20india%20fleeing%20camp%201971&adppopup=true">Mark Edwards/Keystone Features/Getty Images</a></span>
</figcaption>
</figure>
<p>In frustration at pressure from India over the subsequent refugee crisis, Kissinger agreed with Nixon that India – a fellow democracy bearing the burden of millions of refugees from East Pakistan — needed a “<a href="https://doi.org/10.1017/CBO9781139628969">mass famine</a>” to put the country in its place. </p>
<p>The duo went so far as to send an aircraft carrier battle group to threaten India after it suffered a series of cross-border attacks by Pakistan. </p>
<p>Nixon and Kissinger’s policy in support of Pakistan during a period of unvarnished brutality and aggression played a significant role in <a href="https://indianembassy-moscow.gov.in/pdf/Indo%20Soviet%20Treaty_2021.pdf">pushing India toward an alignment with the Soviet Union</a>. Nixon and Kissinger injected distrust of the United States into the foundations of Indian foreign policy, dividing the world’s oldest and largest democracies for decades. </p>
<h2>Exploiting Kurds, empowering Saddam</h2>
<p><a href="https://www.csmonitor.com/1996/1018/101896.opin.column.1.html">In 1972</a>, Kissinger agreed to a request from the Shah of Iran to provide military aid to Kurds in Iraq who were seeking an independent homeland. Iran’s goal was to put pressure on the Iraqi regime controlled by Saddam Hussein, while <a href="https://history.state.gov/historicaldocuments/frus1969-76v27/d24">Kissinger sought to keep the Soviets out of the region</a>. The scheme was predicated on the Kurds’ belief that the United States supported Kurdish independence, a <a href="https://history.state.gov/historicaldocuments/frus1969-76v27/d25">point the Shah noted</a>. But the U.S. abandoned the Kurds on the eve of an Iraqi offensive in 1975, <a href="https://archive.org/details/PikeCommitteeReportFull">and Kissinger coldly noted that</a> “covert action should not be confused with missionary work.” </p>
<p>Ultimately, the Iraqi defeat of the Kurds would <a href="https://www.britannica.com/biography/Saddam-Hussein">empower Hussein</a>, who would go on to destabilize the region, kill hundreds of thousands of people and fight unprovoked wars with Iran and the United States. </p>
<h2>‘Amoral vision’</h2>
<p>After Kissinger left government service in 1977, he founded <a href="https://www.henryakissinger.com/">Kissinger Associates</a>, a geopolitical consulting firm. Publicly, <a href="https://www.henryakissinger.com/speeches/opening-statement-by-dr-henry-a-kissinger-before-the-senate-armed-services-committee/">Kissinger consistently advised U.S. policymakers</a> to bend U.S. policy to accommodate the interests and actions of important foreign powers like Russia and China. </p>
<p>These positions were consistent with Kissinger’s demonstrated willingness to trade away rights of others to gain advantage for the U.S. His positions also presumably enabled Kissinger Associates to maintain access with the foreign policy elites of those countries.</p>
<p>In May 2022, Kissinger <a href="https://www.nytimes.com/2022/05/25/world/europe/henry-kissinger-ukraine-russia-davos.html">publicly argued</a> that Ukraine, a victim of unprovoked aggression by Russia, should cede portions of its internationally recognized territory seized by Russia – as in Crimea – or by Russian proxies such as the Donetsk People’s Republic.</p>
<p>Kissinger also maintained that the United States should accommodate China, <a href="https://www.bloomberg.com/news/articles/2020-11-16/kissinger-warns-biden-of-u-s-china-catastrophe-on-scale-of-wwi?leadSource=uverify%20wall">arguing</a> against a concerted effort by democracies to counter the rising power and influence of China. </p>
<p>Foreign policy is a difficult field, fraught with complexity and unanticipated consequences. Kissinger’s vision, however, does not offer a panacea to the challenge of American foreign policy. </p>
<p>Over decades, Kissinger’s amoral vision of national self-interest has produced its own set of disasters, a reality the American public and foreign policy leaders are well-advised to bear in mind.</p>
<p><em>This story has been updated to reflect Kissinger’s death on Nov. 29, 2023.</em></p><img src="https://counter.theconversation.com/content/192977/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jarrod Hayes does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Henry Kissinger’s influence on US foreign policy was profound. His transactional approach – avowedly values free – included support of murderous and genocidal foreign leaders.Jarrod Hayes, Associate Professor of Political Science, UMass LowellLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1956402022-12-14T13:14:13Z2022-12-14T13:14:13ZSpecial counsels, like the one leading the Department of Justice’s investigation of Trump, are intended to be independent – but they aren’t entirely<figure><img src="https://images.theconversation.com/files/500554/original/file-20221212-1590-rbisur.jpeg?ixlib=rb-1.1.0&rect=15%2C7%2C5276%2C3498&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Merrick Garland, center, announcing on Nov. 18, 2022, that he will appoint a special counsel for the Department of Justice investigation into former President Donald Trump.
</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/attorney-general-merrick-garland-delivers-remarks-at-the-u-news-photo/1442590814?phrase=Jack%20Smith%20Merrick%20Garland&adppopup=true">Anna Moneymaker/Getty Images</a></span></figcaption></figure><p>When Attorney General <a href="https://www.justice.gov/ag/staff-profile/meet-attorney-general">Merrick Garland</a> appointed veteran prosecutor <a href="https://www.nytimes.com/2022/11/18/us/politics/jack-smith-special-counsel-trump.html">Jack Smith</a> as special counsel to oversee two criminal investigations into former President <a href="https://www.whitehouse.gov/about-the-white-house/presidents/donald-j-trump/">Donald Trump</a> on <a href="https://www.justice.gov/opa/pr/appointment-special-counsel-0">Nov. 18, 2022</a>, Garland’s goal was to shield the probes from the appearance of partisanship.</p>
<p>But in <a href="https://truthsocial.com/@realDonaldTrump/posts/109406714029467005">immediate</a> and <a href="https://truthsocial.com/@realDonaldTrump/posts/109418948251497568">repeated</a> attacks, <a href="https://www.youtube.com/watch?v=nuWwzsROQSU">Trump</a>, and some of his <a href="https://truthsocial.com/@RepMTG/posts/109427543912303347">allies</a>, alleged <a href="https://truthsocial.com/@realDonaldTrump/posts/109423468870178087">political bias</a> anyway. For instance, in one highly charged social media post, the former president argued that he won’t “<a href="https://truthsocial.com/@realDonaldTrump/posts/109423251440782165">get a fair shake from</a>” Smith.</p>
<p>Fairness and justice, though, are what Garland appointed Smith to deliver. In his announcement that Smith would take charge of the Department of Justice investigations into Trump’s role in the <a href="https://theconversation.com/pro-trump-rioters-storm-u-s-capitol-as-his-election-tantrum-leads-to-violence-149142">Jan. 6 insurrection</a> and Trump’s <a href="https://theconversation.com/fbis-mar-a-lago-search-warrant-affidavit-reveals-how-trump-may-have-compromised-national-security-a-legal-expert-answers-5-key-questions-189500">handling of classified government documents</a>, Garland described Smith <a href="https://www.justice.gov/opa/speech/attorney-general-merrick-b-garland-delivers-remarks-appointment-special-counsel">as someone who</a> “has built a reputation as an impartial and determined prosecutor.”</p>
<p>In his own statement, Smith, <a href="https://www.npr.org/2022/11/18/1137847204/who-is-doj-special-counsel-jack-smith">who most recently</a> investigated and prosecuted war crimes at <a href="https://www.icc-cpi.int/about/the-court">the International Criminal Court</a> in <a href="https://www.denhaag.nl/en/in-the-city/introducing-the-hague/a-short-history-of-the-hague.htm">The Hague</a>, <a href="https://www.justice.gov/opa/pr/statement-special-counsel-jack-smith">promised to</a> “independently … move the investigations forward … to whatever outcome the facts and the law dictate.”</p>
<p>From my perspective as <a href="https://scholar.google.com/citations?user=vXXZBEkAAAAJ&hl=en">a political scientist</a> who studies presidential systems, I believe that while special counsels are intended to be independent – in practice, they are aren’t entirely. Here’s why.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man with dark hair and a salt-and-pepper beard, sitting behind a large table or desk." src="https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/499630/original/file-20221207-18-4eqrht.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Newly appointed Special Counsel Jack Smith, when he was prosecutor at the Kosovo Specialist Chambers court in The Hague, Nov. 10, 2020.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/NetherlandsKosovoWarCrimes/0b477946e8f641f5b2b7521cafd05cb4/photo?Query=Jack%20Smith%20DeJong&mediaType=photo&sortBy=creationdatetime:desc&dateRange=Anytime&totalCount=3&currentItemNo=2">AP Photo/Peter Dejong, Pool</a></span>
</figcaption>
</figure>
<h2>Independent and special counsels</h2>
<p>Ensuring impartiality in the Department of Justice can be difficult, as the attorney general is <a href="https://theconversation.com/should-the-president-pick-the-attorney-general-141333">appointed by</a> – and answerable to – a partisan president. This gives presidents the power to try to compel attorneys general, who head the department, to pursue a political agenda. President <a href="https://www.whitehouse.gov/about-the-white-house/presidents/richard-m-nixon/">Richard Nixon</a> did this during the investigation of the Watergate break-in, which threatened to implicate him in criminal acts. </p>
<p>On the evening of <a href="https://www.npr.org/2018/10/21/659279158/a-brief-history-of-nixons-saturday-night-massacre">Oct. 20, 1973</a>, Nixon ordered Attorney General <a href="https://www.justice.gov/ag/bio/richardson-elliot-lee">Elliot Richardson</a> to fire <a href="https://www.justice.gov/osg/bio/archibald-cox">Archibald Cox</a>, whom Richardson had appointed to lead the Watergate investigation. Richardson refused and resigned. Nixon then ordered Deputy Attorney General <a href="https://www.npr.org/2019/11/27/783492672/william-ruckelshaus-who-defied-nixon-in-saturday-night-massacre-has-died-at-87">William Ruckelshaus</a> to fire Cox. Ruckelshaus also refused and resigned. Finally, Nixon ordered Solicitor General <a href="https://www.justice.gov/osg/bio/robert-h-bork">Robert Bork</a>, the next most senior official at the Department of Justice, to fire Cox. Bork complied. </p>
<p>This shocking series of events, often referred to as the <a href="https://www.youtube.com/watch?v=LZuthKhjAfk">Saturday Night Massacre</a>, demonstrated how presidents could exercise political power over criminal investigations.</p>
<p>As a result of the Watergate scandal, Congress passed the <a href="https://www.congress.gov/95/statute/STATUTE-92/STATUTE-92-Pg1824.pdf">Ethics in Government Act of 1978</a>. This allowed for investigations into misconduct that could operate outside of presidential control.</p>
<p>After passage of this legislation, if the attorney general received “specific information” alleging that the president, vice president or other <a href="https://www.law.cornell.edu/uscode/text/28/591">high-ranking executive branch officials</a> had committed a serious federal offense, the attorney general would ask a special three-judge panel to appoint an independent counsel, which would investigate. </p>
<p>The Ethics in Government Act also disqualified Department of Justice employees, including the attorney general, from participating in any investigation or prosecution that could “<a href="https://www.congress.gov/95/statute/STATUTE-92/STATUTE-92-Pg1824.pdf">result in a personal, financial, or political conflict of interest, or the appearance thereof</a>.”</p>
<p>In the decades since the law’s passage, independent counsels investigated <a href="https://www.hsdl.org/c/abstract/?docid=814877">Republicans</a> and <a href="https://www.govinfo.gov/content/pkg/CDOC-105hdoc310/pdf/CDOC-105hdoc310.pdf">Democrats</a> alike. In 1999, <a href="https://www.cnn.com/ALLPOLITICS/stories/1999/03/01/independent.counsel/">Congress</a> let the Ethics in Government Act expire. That year, then-Attorney General Janet Reno <a href="https://www.washingtonpost.com/wp-srv/politics/special/counsels/stories/counsel063099.htm">authorized</a> the appointment of special counsels, who could investigate certain sensitive matters, similar to the way independent counsels operated. </p>
<p>Robert Mueller, who was appointed in <a href="https://www.justice.gov/opa/pr/appointment-special-counsel">2017</a> by Deputy Attorney General Rod Rosenstein to investigate <a href="https://theconversation.com/russian-interventions-in-other-peoples-elections-a-brief-history-74406">possible Russian interference in the 2016 elections</a> and <a href="https://theconversation.com/fbis-russia-probe-threatens-a-reckoning-for-team-trump-75002">possible links between the Trump campaign and the Russian government</a>, was a special counsel. Some Republicans accused him of <a href="https://www.bbc.com/news/world-us-canada-42372603">bias</a>, despite his long career serving under <a href="https://www.npr.org/2018/02/01/582358540/muellers-reputation-in-washington-is-stunningly-bipartisan-journalist-says">both Democratic and Republican presidents</a>.</p>
<p>In <a href="https://www.justice.gov/sco-durham">2020</a>, John Durham – another <a href="https://www.nbcconnecticut.com/news/local/u-s-attorney-for-connecticut-john-durham-resigns/2432294/">veteran</a> of the Department of Justice – was appointed as special counsel to investigate the origins of the investigation that triggered Mueller’s appointment. Michael Sussmann, a former Democratic Party lawyer and target of that probe, accused Durham of <a href="https://www.npr.org/2022/02/15/1080841516/john-durham-sussmann-trump-russia-investigation">political prosecution</a>. Sussmann was later <a href="https://www.nytimes.com/2022/05/31/us/politics/michael-sussmann-durham-fbi.html">acquitted</a>.</p>
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<h2>Politicizing the process</h2>
<p>Although special counsels were meant to resemble independent counsels, there are notable differences.</p>
<p><a href="https://sgp.fas.org/crs/misc/R43112.pdf">For instance</a>, while special counsels operate independently of the attorney general, both their appointment and the scope of their investigations are determined by the attorney general. In contrast, the appointment of independent counsels and the scope of their investigations were determined by a three-judge panel, which in turn was appointed by the <a href="https://www.supremecourt.gov/about/about.aspx">chief justice of the United States</a>.</p>
<p>Also, since Congress authorized independent counsels, presidential influence was limited by law. In contrast, since Department of Justice regulations authorize special counsels, a president could try to compel the attorney general to change departmental interpretation of these regulations – or even just revoke them entirely – to influence or <a href="https://www.politico.com/story/2017/06/13/can-trump-fire-special-counsel-robert-mueller-239500">end</a> a special counsel investigation. </p>
<p>For example, at one point, Trump <a href="https://www.nytimes.com/2018/01/25/us/politics/trump-mueller-special-counsel-russia.html">wanted to fire Mueller</a>. After his attorney general, <a href="https://www.washingtonpost.com/politics/2020/03/04/an-emboldened-trump-says-quiet-part-out-loud-about-why-he-fired-jeff-sessions/">Jeff Sessions</a>, who had recused himself from the Russia probe, did not “<a href="https://twitter.com/realDonaldTrump/status/1235181043881299969">end the phony Russia Witch Hunt</a>,” Trump fired him.</p>
<p>Seemingly supportive of this, <a href="https://www.justice.gov/ag/bio/barr-william-pelham">William Barr</a>, who had served as attorney general under President <a href="https://www.whitehouse.gov/about-the-white-house/presidents/george-w-bush/">George W. Bush</a>, sent an unsolicited memo to the Department of Justice defending Trump by arguing that presidents have “<a href="https://www.wsj.com/public/resources/documents/BarrMueller.pdf">complete authority to start or stop a law enforcement proceeding</a>.” </p>
<p><a href="https://theconversation.com/nominating-a-crony-loyalist-or-old-buddy-for-attorney-general-is-a-us-presidential-tradition-108160">Unsurprisingly</a>, Trump then <a href="https://theconversation.com/should-the-president-pick-the-attorney-general-141333">chose</a> Barr to replace <a href="https://theconversation.com/3-things-jeff-sessions-did-as-attorney-general-that-history-should-remember-106614">Sessions</a> as attorney general.</p>
<p><a href="https://doi.org/10.1371/journal.pone.0234938">In my own research</a>, <a href="https://doi.org/10.1016/j.soscij.2019.04.006">I have found</a> that abuses of power are more common in situations in which the president and the attorney general are political allies.</p>
<p>For instance, after Mueller finished his <a href="https://www.washingtonpost.com/graphics/2019/politics/read-the-mueller-report/?itid=lk_inline_manual_21">report</a> in 2019, Barr released a <a href="https://www.washingtonpost.com/context/read-attorney-general-barr-s-principal-conclusions-of-the-mueller-report/?noteId=9048a12b-2332-4645-a1be-d645db216eb5&questionId=218b8095-c5e3-4eab-9135-4170f5b3e87f&utm_term=.83d1434abd9d">summary</a> of its “principal conclusions.” Later, Barr’s summary was <a href="https://yarmuth.house.gov/press/yarmuth-statement-ag-barrs-summary-principal-conclusions-mueller-report">criticized</a> for “<a href="https://www.washingtonpost.com/context/special-counsel-mueller-s-letter-to-attorney-general-barr/e32695eb-c379-4696-845a-1b45ad32fff1/?itid=lk_inline_manual_2">not fully captur[ing] the context, nature, and substance of</a>” Mueller’s work.</p>
<p>In 2020, a Republican-appointed judge <a href="https://context-cdn.washingtonpost.com/notes/prod/default/documents/bd363044-e2ec-4a02-b0b3-43fbc48b2f49/note/f003c01c-cde9-4c1e-a926-bc74e461ca7f.pdf">ruled</a> that Barr “failed to provide a thorough representation of the findings set forth in the Mueller Report” and questioned whether Barr had “made a calculated attempt to influence public discourse … in favor of President Trump.”</p>
<h2>To be or not to be free of partisanship</h2>
<p>The independence of the Department of Justice rests, in part, on who occupies the offices of president and attorney general.</p>
<p>Trump, for example, <a href="https://www.washingtonpost.com/politics/post-impeachment-trump-declares-himself-the-chief-law-enforcement-officer-of-america/2020/02/18/b8ff49c0-5290-11ea-b119-4faabac6674f_story.html">saw himself</a> as “the chief law enforcement officer of the country” and thought it was appropriate to “be totally involved.” </p>
<p>Meanwhile, President <a href="https://www.whitehouse.gov/administration/president-biden/">Joe Biden</a> has <a href="https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=3093&context=nclr">a long history</a> of supporting the independence of Department of Justice investigations, dating as far back as his <a href="https://www.judiciary.senate.gov/about/chairman/previous">1987-1995 tenure as chairman of the Senate Judiciary Committee</a>.</p>
<p>Barr once <a href="https://www.washingtonpost.com/opinions/former-attorney-general-trump-was-right-to-fire-sally-yates/2017/02/01/5981d890-e809-11e6-80c2-30e57e57e05d_story.html">argued</a> that the attorney general’s role is to advance “all colorable arguments that can [be] mustered … when the president determines an action is within his authority – even if that conclusion is debatable.” </p>
<p>In contrast, Garland – a former U.S. circuit judge – <a href="https://www.justice.gov/opa/pr/statement-attorney-general-merrick-b-garland">insists</a> that “political or other improper considerations must play no role in any investigative or prosecutorial decisions.”</p>
<p>Given that <a href="https://www.youtube.com/watch?v=9TeYOZWGu8s">Trump</a> and <a href="https://www.nbcnews.com/politics/joe-biden/biden-cranks-courtship-top-donors-ahead-2024-presidential-election-rcna59029">Biden</a> may end up facing off in <a href="https://www.newyorker.com/news/letter-from-bidens-washington/are-we-doomed-to-see-a-biden-trump-rematch-in-2024">2024</a>, it makes sense that Garland would want to appoint a special counsel in order to avoid directly overseeing any investigations into a political opponent of the president under whom he serves. </p>
<p>Still, Smith will not be entirely independent of Garland, just as Garland <a href="https://theconversation.com/will-merrick-garland-joe-bidens-pick-for-attorney-general-be-independent-in-that-role-history-says-its-unlikely-151952">is not entirely independent</a> of Biden.</p><img src="https://counter.theconversation.com/content/195640/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joshua Holzer does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Special counsels are not entirely independent, but they do still help administrations avoid the perception of bias.Joshua Holzer, Assistant Professor of Political Science, Westminster CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1891242022-08-23T20:05:14Z2022-08-23T20:05:14ZIn Plagued, journalists have traded their independence for access, resulting in a kind of political pornography<p>The publication of <a href="https://www.panterapress.com.au/product/plagued/">Plagued</a>, by Simon Benson and Geoff Chambers, is destined to become a classic study of the perils for journalists in writing books about current political events.</p>
<p>You might have missed it in the tumult swirling around former Prime Minister Scott Morrison’s multiplying ministries trick – but Plagued is where the public got its first inkling that Morrison had a yen for job-sharing.</p>
<p>By “inkling”, I mean the book had part of the story, but not the most important part. That should ring alarm bells: the main benefit of journalists writing books is they have the time and space to dig deeper into current events to reveal what is not known, or is rushed past, in daily media coverage.</p>
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<p><em>Review: Plagued: Australia’s two years of hell – the inside story – Simon Benson and Geoff Chambers (Pantera Press)</em></p>
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<h2>Politically significant ‘inside story’</h2>
<p>The book’s revelations are not just politically significant but will surely feature in future historians’ accounts of the 2019-2022 Coalition government.
So, what happened?</p>
<p>Plagued is the work of two experienced journalists: Simon Benson, political editor for The Australian (and before that for The Daily Telegraph) and Geoff Chambers, chief political correspondent for The Australian (previously news editor at The Daily Telegraph).</p>
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<p>The newspapers’ owner, News Corp Australia, has a large, well-resourced Canberra political bureau and appeared to have a direct line to the former prime minister and his office. News Corp regularly received speeches ahead of other journalists and broke numerous stories. The company’s media outlets strongly supported the former Coalition government, to the point of using its journalism to campaign for it – as academics <a href="https://theconversation.com/as-news-corp-goes-rogue-on-election-coverage-what-price-will-australian-democracy-pay-181599">Denis Muller</a> and <a href="https://theconversation.com/will-news-corp-change-its-approach-after-labors-election-win-not-if-the-us-example-is-anything-to-go-by-183650">Rodney Tiffen</a> have written in articles for The Conversation.</p>
<p>The subtitle of Plagued is “Australia’s two years of hell – the inside story”. The back-cover blurb trumpets the two journalists’ “exclusive access to the crucial machinations of government at the country’s highest levels, not just within the corridors of power but also behind doors normally sealed”.</p>
<p>The promise of taking readers into places normally hidden from their view is territory Bob Woodward of The Washington Post has been mining since the 1976 publication of his account, co-authored with Carl Bernstein, of the end of the Nixon presidency, <a href="https://www.simonandschuster.com.au/books/The-Final-Days/Bob-Woodward/9781439127650">The Final Days</a>.</p>
<p>Woodward and Bernstein took us into the Lincoln Sitting Room the night before Nixon resigned in 1974, to see Nixon asking his secretary of state, Henry Kissinger, to pray with him. Similarly, Benson and Chambers take us into the Lodge in January 2020 after Morrison, “badly bruised by the fierce criticism of his family’s Hawaiian holiday”, has returned to work and is receiving early warnings about <a href="https://theconversation.com/australias-response-to-covid-in-the-first-2-years-was-one-of-the-best-in-the-world-why-do-we-rank-so-poorly-now-187606">COVID-19</a>. </p>
<p>The authors describe Morrison stepping out of a dinner at the Lodge with his treasurer, Josh Frydenberg, and the Nationals leader, Michael McCormack, to take a phone call from his elder brother. “Morrison could hear the dread in his brother’s voice even before he heard the fateful words, ‘Dad’s gone’.”</p>
<p>What we’re offered is a seat in the room where great ones make crucial decisions affecting all our lives. It can be thrilling to read. Watch Nixon as he beats the carpet in anguish, contemplating his political mortality. Listen as Frydenberg tells Morrison early in the global pandemic that the budget surplus is toast and the wage subsidy package is going to cost $130 billion. My God, replies the PM.</p>
<p>There are a number of problems here. First, positioning the reader at the scene of important events is alluring, but how do we know the events are being accurately recounted? We don’t. We have to trust the authors. </p>
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Read more:
<a href="https://theconversation.com/explainer-scott-morrison-was-sworn-in-to-several-portfolios-other-than-prime-minister-during-the-pandemic-how-can-this-be-done-188718">Explainer: Scott Morrison was sworn in to several portfolios other than prime minister during the pandemic. How can this be done?</a>
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<h2>Gaining readers’ trust</h2>
<p>One way journalistic authors can gain trust is by telling readers how they know what they know – and sharing their means for weighing sources’ conflicting accounts of events. This has become increasingly common in recent years, precisely because of earlier <a href="https://newrepublic.com/article/159333/bob-woodwards-critics-missing-point">controversies</a> involving Bob Woodward, among others. There was a lot of debate, for example, about whether Nixon did actually thump the carpet.</p>
<p>A recent example of improved practice in book-length journalism is Patrick Radden Keefe’s <a href="https://www.panmacmillan.com.au/9781529063073/">Empire of Pain: The Secret History of the Sackler Dynasty</a>. It has 62 pages of endnotes and a five-page note on sources, outlining the thousands of pages of court documents, law enforcement files and letters Radden Keefe drew on (and how he obtained them), along with the number of interviews he conducted – 200-plus. Where Radden Keefe attributes thoughts or feelings to people, it is because his interviewees have told him what they thought and felt, or he is relying on a characterisation from someone who knew them.</p>
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<figcaption><span class="caption">Patrick Radden Keefe’s Empire of Pain is an example of improved practice in book-length journalism.</span></figcaption>
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<p>Plagued has endnotes, but they are for secondary sources or transcripts of ministers’ media conferences. This is fine, but it accounts for only a portion of the book’s contents and none of its insider material. For instance, a series of text messages Morrison sent the Victorian Premier, Daniel Andrews – which range from comradely support (“Hang in there Dan”) to an exchange about the Commonwealth and state governments coordinating responses to the second wave of the virus in mid-2020.</p>
<p>Morrison and Andrews, the authors report, enjoyed good relations in private, even if they sometimes clashed in public. After Andrews <a href="https://theconversation.com/view-from-the-hill-aged-care-crisis-reflects-poor-preparation-and-a-broken-system-143556">sharply criticised</a> aged-care facilities and Health Minister Greg Hunt publicly rebuked him, Morrison sent the premier a text saying, “Am standing up shortly, I assure you my tone will be very supportive […] There is nothing to be gained by personalising the challenges we face”, to which Andrews replied, “Agreed”.</p>
<p>I say “report” because the book says nothing about who was interviewed or when. Occasionally the phrase “Morrison later recalled” is deployed, but that’s primarily when he is quoted commenting on past events. It is the only (oblique) sign that he has been interviewed for the book. Very few others – not Andrews, nor federal ministers – are quoted from interviews with the authors, as far as can be told from the book itself.</p>
<p>Benson and Chambers have not only failed to give readers any idea of the source of their exclusive material, but aggravate matters by rendering numerous passages in the omniscient authorial voice – as quoted above, when Morrison learnt of his father’s death. The omniscient authorial voice is a longstanding device in novels where the author is literally the creator of their fictional universe, but journalists by definition are not omniscient. They deal with verifying the truth of events that are contested or confected or hidden.</p>
<p>Again, it is a common criticism of Woodward’s work. The trend in recent works of long-form journalism is to avoid an omniscient authorial voice and practice some humility, drawing attention to the limits of what can be known – and to the writer’s own position and predisposition towards the subject. Margaret Simons has been doing this for years, first in her 1999 book <a href="https://www.goodreads.com/book/show/1179555.Fit_To_Print">Fit to Print</a>, when she shone a light on the workings of the Canberra press gallery.</p>
<p>More recently, when Katharine Murphy, political editor of Guardian Australia, wrote about the global pandemic for <a href="https://www.quarterlyessay.com.au/essay/2020/09/the-end-of-certainty">a Quarterly Essay</a> (published in late 2020), she foregrounded how she was not part of the “Yes mate” club of male broadcast interviewers chosen by Morrison to reach his preferred public – and neither was her publication, Guardian Australia.</p>
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Read more:
<a href="https://theconversation.com/parliament-must-act-to-ensure-australia-never-has-secret-ministers-again-188884">Parliament must act to ensure Australia never has 'secret ministers' again</a>
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<h2>Morrison’s perspective</h2>
<p>With humility and transparency not in the offing, what becomes clear by the end of Plagued is that it recounts the past three years primarily from the perspective of Scott Morrison.</p>
<p>The reader is given his version of every event; it is the authors’ preferred version. Morrison, according to Plagued, works harder than anyone, is across his brief better than anyone, cares more about the Australian people, knows better than anyone what is needed, sees geopolitical trends more clearly. He wants to rise above daily politics and yearns to bring people together – a quality he admired in former Australian prime ministers <a href="https://theconversation.com/the-larrikin-as-leader-how-bob-hawke-came-to-be-one-of-the-best-and-luckiest-prime-ministers-91152">Bob Hawke</a> and Joe Lyons.</p>
<p>Problems that arise are always the fault of others, from the “sclerotic”, “folder-bearing bureaucrats” who fail to brief him quickly enough about the crisis in aged-care homes, to overly cautious officials on the Australian Technical Advisory Group on Immunisation, and everyone in between. </p>
<p>The result of the 2022 federal election comes as something of a jolt to this relentlessly Morrison-marinated narrative. The change of government is dispensed with in four short paragraphs on the book’s final page. A brief explanation is proffered a few pages earlier: </p>
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<p>Politically, the prime minister had fallen victim to the longevity of the plague, the elevation of hostile Labor premiers to a national platform, the inevitable mistakes that would be made the longer it persisted, and an impatient and cranky public.</p>
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<p>Morrison’s own reflection is: “The only thing I can observe is that our critics are seeking absolute perfection and anything less than that is a failure, and that means the whole world failed.”</p>
<p>If that straw-man-seeking language sounds familiar, it is. Morrison sounded a similar note <a href="https://www.youtube.com/watch?v=vFSB7cMfqTk">in his hour-long media conference</a> on 17 August, when he said as prime minister he was “responsible pretty much for every single thing that was going on, every drop of rain, every strain of the virus”. </p>
<p>It was at that media conference, too, that Morrison pitchforked his obedient chroniclers into the briar patch. He revealed he had given Benson and Chambers “contemporaneous interviews” where he told them he’d been sworn in as health minister alongside Greg Hunt in March 2020.</p>
<p>As they report, Morrison and Hunt agreed that checks and balances were needed on the powers of <a href="https://www.health.gov.au/sites/default/files/documents/2021/04/foi-request-2268-release-documents-advice-to-the-governor-general-foi-2268-explanatory-memorandum.pdf">section 475</a> of the Biosecurity Act. Passed in 2015 under the previous Coalition government, it gave a health minister sweeping powers that overrode other laws and were not disallowable by parliament. </p>
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<p>Morrison then hatched a radical and until now secret plan with [then Attorney-General, Christian Porter’s] approval. He would swear himself in as health minister alongside Hunt" who “not only accepted the measure but welcomed it”. </p>
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<p>In the next paragraph, they quietly report Morrison also swore himself in as finance minister alongside Matthias Cormann, but don’t say whether Cormann knew.</p>
<p>Excerpts of Plagued, including reference to Morrison’s hidden new powers, were published in The Weekend Australian on 13 August. But nobody seemed to notice until nearly 48 hours later, <a href="https://www.theguardian.com/media/2022/aug/19/australians-buried-lede-on-morrison-begs-the-question-who-knew-what-when">according to a chronology</a> pieced together by Amanda Meade, media writer for Guardian Australia.</p>
<p>Then, thanks to reporting by Samantha Maiden of News.com.au and Andrew Clennell of Sky News, it was revealed there was a third portfolio Morrison had acquired – Resources – and that Cormann had not been let in on the secret. </p>
<p>On Monday 15 August, the current Labor Prime Minister, Anthony Albanese, expressed his alarm at news of the secret plan and vowed to seek advice about its legality, and its implications for the Westminster system of government. The issue ran all week, prompting calls for Morrison to resign from parliament and launching a thousand comic memes, which Morrison himself wanted everyone to know via Facebook that he too found amusing. </p>
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Read more:
<a href="https://theconversation.com/view-from-the-hill-morrisons-passion-for-control-trashed-conventions-and-accountability-188747">View from The Hill: Morrison's passion for control trashed conventions and accountability</a>
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<h2>Journalists seduced and betrayed</h2>
<p>On Sunday 21 August, Maiden clarified on ABC TV’s Insiders that it was Cormann who rang Morrison demanding an explanation, rather than Morrison <a href="https://www.abc.net.au/insiders/from-the-couch/14027376">calling his former longtime finance minister</a> to apologise. Something else was becoming clear: Morrison had done <a href="https://theconversation.com/remembering-janet-malcolm-her-intellectual-courage-shaped-journalism-biographies-and-helen-garner-163005">a reverse Janet Malcolm</a>, first seducing, then betraying his two journalistic courtiers.</p>
<p>He had seduced them with the prospect, unique as far as we know, of exclusive access to him “in the middle of the tempest”, as Morrison put it at his media conference. He gave them the most defensible end of the story – assuming power for Health alongside Hunt at the beginning of the pandemic – and another morsel – assuming power for Finance.</p>
<p>But no more. Now, Benson and Chambers have no one but themselves to blame for failing to ask more questions. They called it “a secret plan” and secrets are to journalism what catnip is to cats.</p>
<p>Then Morrison betrayed them by revealing 58 minutes into the media conference that he’d told them about the shared ministerial arrangement at the time. It’s not clear whether Morrison told them about all five portfolios, and that he had actually overruled one minister, Keith Pitt – on an issue driven not by the pandemic, but the desire to be re-elected. And the authors are being reticent. </p>
<p>Asked by Kieran Gilbert on Sky News when they became aware, Chambers said, “Well, we spoke to dozens of people over two years and this was part of the story and, well, the story is out now. So that’s my response.” If Chambers were a politician bowling up that answer at a media conference, do you think that would satisfy his questioners?</p>
<p>The whole tawdry episode brings to mind <a href="https://www.nybooks.com/articles/1996/09/19/the-deferential-spirit/">a famous essay by Joan Didion</a>, where she argued Bob Woodward wrote books “in which measurable cerebral activity is virtually absent”. That is, Woodward relentlessly accumulates quotidian details – what people eat, what they wear – but refuses to question the meaning of events or discuss the issues he is reporting. She quotes Woodward saying, essentially, he writes self-portraits of the people who cooperate with him for his books. </p>
<p>This sounds eerily like Plagued. It’s replete with quotidian details: the former PM’s official car in Sydney was a “bullet-proof white BMW 7 Series”; early in the pandemic he and Daniel Andrews enjoyed a “glass of whiskey from a bottle of single-malt Tasmanian lark”. Yet it rarely pauses to question Morrison’s version of events – and equally rarely seeks to contextualise events, or consider alternative perspective in any but the most cursory way. </p>
<p>On the former, Plagued does not mention, for instance, that one of the main reasons Morrison was fiercely criticised for his Hawaiian holiday was because he was <a href="https://theconversation.com/view-from-the-hill-scott-morrison-trips-on-a-truth-test-172316">secretive about it</a>. On the latter, the issue of <a href="https://theconversation.com/in-2021-metoo-finally-made-it-to-auspol-what-happens-next-173153">gender equality</a>, for instance, loomed large in the last term of government; but it occupies just two pages in Plagued.</p>
<p>What began as two News Corp Australia journalists’ attempt to secure Scott Morrison’s reputation as the leader who steered Australia through the global pandemic looks most likely to have tarnished his legacy forever. That’s an eye-watering own goal. </p>
<p>When Didion’s essay about Woodward’s work was published in The New York Review of Books in 1996, it was headlined “The deferential spirit”. For its republication five years later in a selection of her essays, she chose another title: “Political pornography”. Sad to say, it is a title that could refer to Plagued.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/remembering-janet-malcolm-her-intellectual-courage-shaped-journalism-biographies-and-helen-garner-163005">Remembering Janet Malcolm: her intellectual courage shaped journalism, biographies and Helen Garner</a>
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<img src="https://counter.theconversation.com/content/189124/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Katharine Murphy, whose work is mentioned in this article, is an adjunct associate professor of journalism at Deakin University. </span></em></p>What began as two journalists’ attempt to secure Scott Morrison’s reputation seems likely to tarnish his legacy forever. It’s an eye-watering own goal – and problematic journalism, in various ways.Matthew Ricketson, Professor of Communication, Deakin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1885652022-08-16T20:31:31Z2022-08-16T20:31:31ZProsecuting a president is divisive and sometimes destabilizing – here’s why many countries do it anyway<figure><img src="https://images.theconversation.com/files/518811/original/file-20230331-26-olfn9u.jpeg?ixlib=rb-1.1.0&rect=16%2C5%2C3646%2C2427&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Manhattan District Attorney Alvin Bragg, second from right, ran the investigation that led to former President Donald Trump's indictment.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/TrumpLegalTroublesAlvinBragg/06d30d99d4e74b86b7ce679bf3c305a6/photo?Query=Alvin%20Bragg&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=now-24h&totalCount=22&currentItemNo=20">AP Photo/Yuki Iwamura</a></span></figcaption></figure><p>A Manhattan grand jury on March 30, 2023, <a href="https://www.nytimes.com/live/2023/03/30/nyregion/trump-indictment-news">indicted former President Donald Trump</a> on charges likely related to the cover-up of his relationship with a porn star. He’s the first U.S. president or former president to be criminally charged.</p>
<p>Trump is also under investigation in other cases. These include the Aug. 8, 2022, <a href="https://www.nytimes.com/live/2022/08/08/us/trump-fbi-raid">seizure of documents from his Florida home</a> by the FBI, continued progress in a <a href="https://www.nytimes.com/2022/07/23/us/politics/trump-georgia-election-interference.html">Georgia state investigation into Republican election tampering</a> and the ongoing revelations of evidence presented by the congressional committee <a href="https://theconversation.com/with-trumps-role-on-jan-6-becoming-clearer-and-potentially-criminal-gop-voters-are-starting-to-look-at-different-options-186108">investigating the Jan. 6 insurrection</a>.</p>
<p>While charging a former president with a criminal offense is a first in the United States, in other countries ex-leaders are <a href="https://www.jstor.org/stable/24758118?seq=1">routinely investigated, prosecuted</a> and even jailed.</p>
<p>In March 2021, former French President <a href="https://apnews.com/article/nicolas-sarkozy-convincted-corruption-france-6ee89cb03ba8f3888ac64447ebf61f28">Nicolas Sarkozy was sentenced to a year in prison</a> for corruption and influence peddling. Later that year, the trial of Israel’s longtime Prime Minister <a href="https://www.nytimes.com/2021/02/08/world/middleeast/benjamin-netanyahu-trial.html">Benjamin Netanyahu</a> related to breaches of trust, bribery and fraud while in office commenced. And Jacob Zuma, the <a href="https://www.reuters.com/article/us-safrica-zuma/arms-deal-corruption-trial-against-south-african-ex-president-zuma-to-start-in-may-idUSKBN2AN0W2">former president of South Africa who was charged with money laundering and racketeering</a>, has yet to <a href="https://www.aljazeera.com/news/2022/4/11/corruption-trial-delayed-against-south-africas-former-president">face trial</a> after years of delays. </p>
<p>At first glance, <a href="https://www.economist.com/europe/2021/03/01/nicolas-sarkozys-jail-sentence-shocks-frances-political-class">prosecuting current or past top officials</a> accused of illegal conduct seems like an obvious decision for a democracy: Everyone should be subject to the rule of law. </p>
<p>But presidents and prime ministers aren’t just anyone. They are chosen by a nation’s citizens or their parties to lead. They are often popular, sometimes revered. So judicial proceedings against them are <a href="https://cpb-us-w2.wpmucdn.com/voices.uchicago.edu/dist/5/539/files/2017/05/AJPS-2021_Pol-Scandal.pdf">inevitably perceived as political</a> and become divisive. </p>
<h2>Destabilizing prosecutions</h2>
<p>This is partly why <a href="https://www.fordlibrarymuseum.gov/library/document/0019/4520699.pdf">U.S. President Gerald Ford pardoned</a> Richard Nixon, his predecessor, in 1974. Despite clear evidence of criminal wrongdoing in the Watergate scandal, <a href="https://www.fordlibrarymuseum.gov/library/document/0019/4520699.pdf">Ford feared</a> the country “would needlessly be diverted from meeting (our) challenges if we as a people were to remain sharply divided over” punishing the ex-president. </p>
<p>Public reaction <a href="https://www.nytimes.com/1974/09/09/archives/reaction-to-pardon-of-nixon-is-divided-but-not-entirely-along-party.html">at the time</a> was divided along party lines. Today, some <a href="https://constitutioncenter.org/blog/the-nixon-pardon-in-retrospect">now see</a> absolving Nixon as necessary to <a href="https://www.abebooks.com/book-search/title/time-to-heal/author/gerald-ford/signed/">heal the nation</a>, while others believe it was a historic mistake, even taking Nixon’s deteriorating health <a href="https://ethicsunwrapped.utexas.edu/case-study/pardoning-nixon">into account</a> – if for no other reason than it emboldens future impunity of the kind Trump is accused of.</p>
<p><a href="https://sites.uw.edu/uwpoliticaleconomy/">Our research</a> on prosecuting world leaders finds that both sweeping immunity and overzealous prosecutions can undermine democracy. But such prosecutions pose different risks for older democracies such as France and the U.S. than they do in younger democracies like South Africa.</p>
<h2>Mature democracies</h2>
<p>Strong democracies are usually competent enough – and the judicial system independent enough – to prosecute <a href="https://theconversation.com/why-trumps-challenges-to-democracy-will-be-a-big-problem-for-biden-152218">politicians who misbehave</a>, including top leaders. </p>
<p>Sarkozy is France’s second modern president to be found guilty of corruption, after <a href="https://www.bbc.com/news/world-europe-16194089">Jacques Chirac in 2011</a> for kickbacks and an attempt to bribe a magistrate. The country didn’t fall apart after either conviction. <a href="https://www.politico.eu/article/nicolas-sarkozy-jail-sentence-corruption/">Some observers, however, say</a> that Sarkozy’s three-year prison sentence was too harsh and politically motivated. </p>
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<a href="https://images.theconversation.com/files/389912/original/file-20210316-22-770jnb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Sarkozy, wearing a face mask, walks through a glass building, trailed by another man in a suit. A police officer salutes." src="https://images.theconversation.com/files/389912/original/file-20210316-22-770jnb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/389912/original/file-20210316-22-770jnb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=403&fit=crop&dpr=1 600w, https://images.theconversation.com/files/389912/original/file-20210316-22-770jnb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=403&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/389912/original/file-20210316-22-770jnb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=403&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/389912/original/file-20210316-22-770jnb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=506&fit=crop&dpr=1 754w, https://images.theconversation.com/files/389912/original/file-20210316-22-770jnb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=506&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/389912/original/file-20210316-22-770jnb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=506&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Sarkozy leaves court after being found guilty of corruption and influence peddling in 2021.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-french-president-nicolas-sarkozy-leaves-court-after-news-photo/1304713844?adppopup=true">Kiran Ridley/Getty Images</a></span>
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<p>In mature democracies, prosecutions that <a href="https://www.washingtonpost.com/news/worldviews/wp/2017/05/10/south-korea-just-showed-the-world-how-to-do-democracy/">hold leaders accountable</a> can solidify the rule of law. South Korea <a href="https://www.economist.com/asia/2020/01/16/south-koreas-president-curbs-the-power-of-prosecutors">investigated and convicted</a> five former presidents starting in the 1990s, a wave of political prosecutions that culminated in the <a href="https://www.bbc.com/news/world-asia-37971085">2018 impeachment of President Park Geun-hye</a> and, soon after, the conviction and imprisonment of her predecessor, Lee Myung-bak. </p>
<p>Did these prosecutions deter future leaders from wrongdoing? For what it’s worth, Korea’s two most recent presidents have so far kept out of legal trouble. </p>
<h2>Overzealous prosecution versus rule of law</h2>
<p>Even in mature democracies, prosecutors or judges can abuse prosecutions. But overzealous political prosecution is more likely, and potentially more damaging, in emerging democracies where courts and other public institutions may be <a href="https://journals.sagepub.com/doi/abs/10.1177/106591290605900306">insufficiently independent from politics</a>. The weaker and more beholden the judiciary, the easier it is for leaders to exploit the system, either to expand their own power or to take down an opponent.</p>
<p>Brazil embodies this dilemma. </p>
<p>Ex-President <a href="https://www.reuters.com/article/us-brazil-politics-lula/brazil-judge-annuls-lulas-convictions-opens-door-to-2022-run-idUSKBN2B02F0">Luiz Inácio “Lula” da Silva</a>, a former <a href="https://www.france24.com/en/20180405-brazil-lula-suffers-downfall-stunning-rise">shoeshine boy turned popular leftist</a>, was jailed in 2018 for accepting bribes. Many Brazilians thought his prosecution was a <a href="https://www.washingtonpost.com/world/the_americas/he-was-the-most-popular-politician-on-earth-now-brazils-lula-could-go-to-jail/2016/10/21/1569f2c0-897f-11e6-8cdc-4fbb1973b506_story.html">politicized effort to end his career</a>, but <a href="https://www.bbc.com/news/world-latin-america-63451470">Lula was re-elected in October, 2022</a>.</p>
<p>A year later, the <a href="https://www.theguardian.com/world/2019/mar/21/brazils-former-president-michel-temer-arrested-in-corruption-investigation">same prosecutorial team</a> accused the conservative former President Michel Temer of accepting millions in bribes. After his term ended in 2019, <a href="https://www.nytimes.com/2019/03/21/world/americas/michel-temer-arrested-prisao.html">Temer was arrested</a>; his trial <a href="https://www.bbc.com/news/world-latin-america-41755666">was later suspended</a>. </p>
<p>Both Brazilian presidents’ prosecutions were part of a <a href="https://theconversation.com/why-brazil-is-winning-its-fight-against-corruption-71968">yearslong sweeping anti-corruption probe by the courts</a> that has jailed dozens of politicians. Even the probe’s lead prosecutor is <a href="https://theconversation.com/brazils-operation-car-wash-a-corruption-investigator-is-accused-of-his-own-misdeeds-118889">accused of corruption</a>. </p>
<p>Depending on one’s perspective, Brazil’s crisis reveals that <a href="https://www.economist.com/the-americas/2021/02/27/the-sad-quiet-death-of-brazils-anti-corruption-task-force">nobody is above the law</a> or that the government is incorrigibly corrupt – or both. With such confusion, it becomes easier for politicians and voters to view leaders’ transgressions as a normal cost of doing business. </p>
<p>For Lula, a conviction didn’t end his career. He was released from jail in 2019 and the Supreme Court later annulled his conviction. Lula is now <a href="https://www.reuters.com/world/americas/lulas-lead-narrows-single-digit-brazil-race-poll-2022-08-08/">leading the 2022 presidential race against current Brazilian President Jair Bolsonaro</a>. </p>
<h2>Stability versus accountability</h2>
<p>Historically, Mexico has taken a different approach to prosecuting past presidents: It doesn’t.</p>
<p>During the 20th century, Mexico’s ruling Institutional Revolutionary Party, or PRI, established a system of <a href="https://themonkeycage.org/2012/12/what-do-legislatures-in-authoritarian-regimes-do/">patronage and corruption</a> that <a href="https://www.cambridge.org/core/books/voting-for-autocracy/F6671D230EC7C458A30035ADB20F9289">kept its members</a> in power and other parties in the minority. While making a show of <a href="https://www.economist.com/the-americas/2020/08/27/a-former-official-fires-a-legal-missile-at-mexicos-political-class">going after</a> smaller fish for petty indiscretions, the PRI-run legal system <a href="https://books.google.com/books?id=XljPDwAAQBAJ&pg=PT237&lpg=PT237&dq=PRI+impunidad+sistema+legal+autocracia&source=bl&ots=ORccgnvCG2&sig=ACfU3U27BRKEFgK9IFuutq6v4vVLYghRzg&hl=en&sa=X&ved=2ahUKEwiwgf-4uLXvAhWRs54KHaj9CjYQ6AEwB3oECA8QAw#v=onepage&q=PRI%20impunidad%20sistema%20legal%20autocracia&f=false">wouldn’t touch top party officials</a>, even the most openly corrupt.</p>
<p>Impunity kept Mexico stable during its transition to democracy in the 1990s by placating PRI members’ fears of prosecution after leaving office. But <a href="https://theconversation.com/governors-gone-wild-mexico-faces-a-lost-generation-of-corrupt-leaders-76858">government corruption flourished</a>, and with it, organized crime. </p>
<p>That may be changing, though. In early August 2022, Mexican federal prosecutors confirmed that <a href="https://politica.expansion.mx/mexico/2022/08/02/fgr-reporta-que-tiene-abiertas-diversas-carpetas-de-investigacion-contra-epn">it has several open investigations into former PRI President Enrique Peña Nieto</a> for alleged money laundering and election-related offenses, among other crimes. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/389913/original/file-20210316-20-1x4b7d8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Man in face mask and face shield holds a sign reading 'trials for ex-presidents - sign here'" src="https://images.theconversation.com/files/389913/original/file-20210316-20-1x4b7d8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/389913/original/file-20210316-20-1x4b7d8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/389913/original/file-20210316-20-1x4b7d8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/389913/original/file-20210316-20-1x4b7d8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/389913/original/file-20210316-20-1x4b7d8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/389913/original/file-20210316-20-1x4b7d8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/389913/original/file-20210316-20-1x4b7d8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A protester in Mexico City calls for the prosecution of several former presidents implicated in a corruption scandal.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/an-activist-displays-a-banner-during-the-collection-of-news-photo/1228287609?adppopup=true">Pedro Pardo/AFP via Getty Images</a></span>
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<p>Mexico is far from the only country to overlook the bad deeds of past leaders. Our research finds that only <a href="https://faculty.washington.edu/vmenaldo/Articles%20in%20Journals/ISQ%20Article.pdf">23% of countries that transitioned to democracy between 1885 and 2004</a> charged former leaders with crimes after democratization. </p>
<p>Protecting authoritarians – including those who oversaw human rights violations – may seem contrary to democratic values, but many transitional governments have decided it is necessary for democracy to take root. </p>
<p>That’s the bargain South Africa struck as apartheid’s decades of segregation and human rights abuses ended in the early 1990s. South Africa’s white-dominated government <a href="https://books.google.com/books?id=zsdJDwAAQBAJ&printsec=frontcover&dq=Albertus+Menaldo#v=onepage&q&f=false">negotiated with Nelson Mandela’s Black-led African National Congress</a> to ensure outgoing government members and supporters would avoid prosecution and largely retain their wealth. </p>
<p>This strategy <a href="https://anchor.fm/political-economy-forum/episodes/Karen-Ferree-Are-Voters-Tribal-er4u0q">helped the country transition to majority Black rule in 1994 and avoid</a> a civil war. But it hurt efforts to create a more equal South Africa. As a result, the country has retained one of the <a href="https://time.com/longform/south-africa-unequal-country/">world’s highest racial wealth gaps</a>. </p>
<p><a href="https://theconversation.com/why-growing-corruption-is-a-threat-to-south-africas-national-security-74110">Corruption is a problem</a>, too, as former President Zuma’s prosecution for lavish personal use of public funds shows. But South Africa has a famously independent judiciary. Despite pushback from some African National Congress stalwarts and several legal appeals, Zuma’s prosecution continues. And it may yet deter future misdeeds. </p>
<h2>How mature is mature?</h2>
<p>Israel is partly a testament to the rule of law – and partly a cautionary tale about prosecuting leaders in democracies.</p>
<p>Israel didn’t wait for Prime Minister Benjamin Netanyahu to <a href="https://theconversation.com/a-major-democracy-fights-to-maintain-the-rule-of-law-this-time-its-israel-127584">leave office to investigate wrongdoing</a>. But the court process was fraught with delays, in part because Netanyahu used state power to resist what he called a “<a href="https://www.cnn.com/2018/02/18/world/netanyahu-police-investigation">witch hunt</a>.” </p>
<p>The trial triggered protests by his Likud party. Netanyahu tried unsuccessfully to secure immunity <a href="https://www.jpost.com/israel-news/politics-and-diplomacy/benjamin-netanyahus-successful-stalling-strategy-analysis-623967">and stall</a>. He was even reelected while under indictment, and his trial is not over yet.</p>
<p>With the Trump indictment, the process will reveal something fundamental about American democracy. Whatever the outcome, they will be a matter of both law - and politics. </p>
<p><em>This is a substantially updated version of an <a href="https://theconversation.com/prosecuting-ex-presidents-for-corruption-is-trending-worldwide-but-its-not-always-great-for-democracy-156931">article originally published on March 16, 2021</a>.</em></p><img src="https://counter.theconversation.com/content/188565/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Both sweeping immunity and overzealous prosecutions of former leaders can undermine democracy. But such prosecutions pose different risks for older democracies like the US than in younger ones.Victor Menaldo, Professor of Political Science, Co-founder of the Political Economy Forum, University of WashingtonJames D. Long, Professor of Political Science, Co-founder of the Political Economy Forum, University of WashingtonMorgan Wack, Doctoral Candidate in Political Science, University of WashingtonLicensed as Creative Commons – attribution, no derivatives.