Month: November 2020

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The History behind the Headlines: Presidential Pardons

One of the fascinating ongoing stories of the Trump administration is the frequency with which his associates found themselves convicted of crimes. One of the first was former national security advisor Michael Flynn, who pleaded guilty to lying to the FBI in the course of the investigation into Russian interference in the 2016 US election. The president, via Twitter, announced on November 25 that he had granted Flynn a full pardon. Previous Trump pardons include controversial former Arizona sheriff Joe Arpaio. He also commuted the sentence of advisor and friend Roger Stone, also convicted in the course of special counsel Robert Mueller’s Russia investigation. While the president can use the pardon at his or her discretion, the pardon of Flynn raised some eyebrows. Critics, especially high ranking Democrats, have suggested that Trump has used his pardon power to reward those who lied on his behalf. More pardons are expected in the final weeks of the Trump presidency, many of which will surely raise the ire of those eager to find fault with the president’s actions. Trump’s pardons, while unsavory, pale beside some past pardons.

The earliest high profile pardon was by George Washington on the final day of his tenure. Washington pardoned leaders of the Whiskey Rebellion, a tax protest led by veterans of the Revolutionary War. In need of funds to pay war debt, the federal government taxed the production of spirits. Whiskey was rapidly growing in popularity, and farmers on the western frontier often converted surplus grain into whiskey. Believing themselves to be fighting for the principles of the Revolution, especially against taxation without sufficient representation, farmers violently resisted the new tax. Despite thousands of participants, many of whom were captured, only two were convicted of treason. Washington pardoned them, wrapping up this early challenge to federal authority.

The most controversial use of the pardon was at the end of the Civil War. It was a time of intense division. Though the war was over, and slavery with it, the strong feelings and beliefs that led Americans to take up arms against one another did not disappear. By definition, every Confederate survivor had committed treason, and was thus subject to execution. While only the most bloodthirsty northerners sought capital punishment, there was certainly strong sentiment in favor of harsh punishments. Abolitionists and others with incentive to see southern society destroyed saw this as their moment to make the defeat a total one, to completely impose a northern way of life on the south. Others, especially president Andrew Johnson, wondered how best to move forward in what was still a united nation. Despite having been defeated, southerners still held onto their pride, and to insult that pride by adding punishment to defeat could only further alienate them. After four years of war, many preferred peace over punishment. It is also important to bear in mind the racist motivations for reconciliation; slaves were freed as part of the war, but very few in the north actually cared about the fate of the new freemen, and fewer still wanted responsibility for the freed slaves. Who better to take on this responsibility than those who already had it? The effect on Blacks of allowing former Confederates to walk free was easily secondary to the desire for peace and reconciliation. Johnson declared a general amnesty, exceptions to which included Confederate government officials and those who left the federal armed services to join the Confederacy, among others. Those who did not qualify for the general amnesty were still able to request a special pardon, and the Johnson administration devised an oath each applicant was required to swear in order to receive their pardon. Johnson’s sweeping pardons succeeded in creating a path to a reunified nation, but papered over many of the underlying issues, especially race relations, some of which continue to divide Americans today. 

The most notorious presidential pardon was certainly that of Richard Nixon by Gerald Ford. Nixon had not yet been convicted of any crimes, but had been forced to resign in the wake of the Watergate scandal. Ford unconditionally pardoned Nixon of any and all crimes he may have committed against the United States while president. Similar to Johnson’s pardons of Confederates, Ford claimed that his pardon of Nixon was in the best interest of the nation. Ford justified his pardon by the 1915 Supreme Court case Burdick v. United States, the decision of which stated that a pardon carries an imputation of guilt, and therefore its acceptance carries a confession of guilt. Ford pardoned Nixon despite knowing it would be unpopular. While Nixon’s crimes were not particularly heinous, he was the first, and to this day the only, president to have been caught “red-handed” in clearly illegal conduct while holding the office. It was a tremendous offense against Americans’ ideas of the integrity of the office of the president, and it was perhaps Nixon’s apparent lack of respect for the office that angered people more than the acts themselves. The prestige of the office, and the faith Americans placed in that office, took damage that has not yet been repaired.

The power of the presidential pardon may soon see its ultimate test, as there is significant speculation that Trump may pardon himself before leaving office. Debate among experts over the legality of such a move is often overshadowed by distress and disgust that a president would consider pardoning himself, a notion that seems more at home among third world dictatorships than in the United States of America. Trump’s allies rightly point out that there is no limitation placed on the power to pardon, and nothing in the Constitution or in any legal precedent states that he cannot pardon himself. Since the president can only pardon for crimes against the United States, and has no power over state crimes, Trump remains vulnerable to his current legal trouble in New York, and elsewhere.

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The History behind the Headlines: Contested Elections

President Donald Trump and his supporters refuse to acknowledge the reported results of the 2020 presidential election, seeking to turn this into another contested election. Many of us have not-so-fond memories of Florida’s chads from 20 years ago. But while this moment feels tense, with multiple accusations of fraud, it is nothing compared to the most sharply contested, and most fraudulent in U.S. history: the 1876 Hayes-Tilden election.

In the two weeks after the election, Trump posted over 300 tweets about the election. These included both tweets claiming he had won fairly, and accusations that the election was fraudulent. His legal team, led by Rudy Giuliani, has launched numerous legal actions, none of which has been successful. Hearing Trump’s claims of fraud and a stolen election, I can’t help but be reminded of the election of 1876.

Rutherford B. Hayes really should never have become president. Initially after Ulysses Grant’s two terms as President, the most likely Republican candidate was Grant himself. After Grant’s decision not to run, the next obvious choice was Congressman James G. Blaine. Late in the campaign, Democrats in the House of Representatives opened an investigation into Blaine’s dealings with a railroad. Damning letters were produced, and Blaine gained no popularity by securing the letters himself, then refusing to hand them over. Nevertheless, he still entered the Republican nomination as the frontrunner, with five others considered serious competitors, including Hayes. On the first ballot, though he received 285 votes, and his closest rival only 124, Blaine was still short of the majority of 378. Subsequent votes saw his tally increase, and the gap grow. Hayes was low in field, but significantly his tally increased with each subsequent vote. If the anti-Blaine faction could agree on a compromise, their combined votes would reach a majority. That compromise came in the form of Rutherford B. Hayes. While the final tally saw Blaine rise all the way to 351, Hayes jumped from 113 to 384, narrowly winning the nomination.

Hayes faced New York Governor Samuel J. Tilden in the general election. Tilden won the popular vote, and had 184 electoral votes, just one shy of a majority, to Hayes’s 165; in Florida, Louisiana, and South Carolina each party claimed victory, while a single elector from Oregon was ruled out and had to be replaced. Tilden needed only one state, or even just the one elector from Oregon, to win the presidency, while Hayes needed to run the table. As a Democrat, Tilden performed very well in the south, comfortably winning each former Confederate state, except the contested three, which happened to be the final three states still under federal control as part of Reconstruction after the Civil War. By the morning after the election, nearly everyone, even Republicans, had acknowledged Tilden’s victory, believing the final counts to be a mere formality. However, John C. Reid, managing editor of the hugely influential New York Times, telegraphed the Republican managers in each of the three states, informing them that all was not lost, and asking, “Can you hold your State?” Each dutifully reported a Hayes victory, and the Republicans announced that Hayes had won.

One can only imagine the chaos of these vote counts. Unlike today’s electronic records and instant communication, ballots were paper, and news travelled slowly. President Grant ordered federal troops in the three southern states to maintain order while the vote counting proceeded. Ultimately, two contradictory certified returns were sent to Washington from each state, and there was no guidance in the Constitution for how to address the crisis. Some Republicans wanted the Executive to decree the results, and defend them with the military. The controversy dragged on into the new year. Congress created a fifteen member committee, comprised of seven Republicans and seven Democrats. The fifteenth was supposed to be an independent, but at the last moment he was unable to serve, and the committee chose an eighth Republican in his stead. 

The hearing dragged on. Democrats demanded that the committee investigate the legitimacy of the votes themselves, while Republicans insisted that the only purpose of the committee was to determine which of the conflicting returns was the one properly certified by the state board. Of course, in the end, it came down to Florida. The Republican-led electoral commission rather blatantly threw out enough Democrat votes to see Hayes received the majority. A cursory investigation by the electoral commission would have exposed the fraud. Yet, instead of standing firmly behind their demand for just such an investigation, Democrats calmly allowed each contested return to be ruled in favor of the Republicans, each time by a solid 8-7 partisan vote. Each decision was ratified by not only the Republican-led Senate, but also the Democratic House. Why did Democrats allow it?

It is at this point that the story moves from official, documented, public information to the realm of shady, behind-closed-doors deal making. While there is no hard evidence to support the theory, it is widely believed by historians that Democrats allowed the committee to rule in favor of the Republicans in exchange for an end to Reconstruction. The removal of federal troops from the south was the biggest point of the compromise, but it also included cabinet appointments, a transcontinental railroad, and, in a betrayal that would shape race relations forever, the implicit promise of Republicans not to interfere with White southern Democrats’ treatment of still newly freed Blacks. Rutherford B. Hayes, beneficiary of two compromises, neither of which could be said to reflect the will of the voters, was inaugurated on March 5, 1877.

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The History behind the Headlines: Thanksgiving

It’s that time of year again! We gather with family- smaller gatherings this year- stuff our faces, watch some football, and maybe, if it’s still in the family tradition, talk about what we’re thankful for. But in recent years, there has been a bigger push, especially in our schools, to dig a little bit deeper into why we gather, what we actually celebrate, and what really happened back in 1621. This has led to some pushback, especially among lawmakers. Tom Cotton of Arkansas recently claimed liberal “charlatans” were rewriting history, stating “Too many have lost the civilizational self confidence needed to celebrate the Pilgrims.”

We all know that the pilgrims came here for religious freedom, right? What many of us don’t know is that they actually fled Europe in search of a place where they would be permitted to practice extreme religious intolerance. Yet those, like Cotton, who do not wish to see the Pilgrims’ good name besmirched, do have a point. The voyage across the Atlantic required tremendous courage. When they were forced to land on Cape Cod, rather than their intended destination further south, they took the extraordinary step of drafting and signing the Mayflower Compact, which organized them into a body politic, and became the document by which they self-governed. Despite a high mortality rate, the colonists survived, with the help of the Wampanoags. This story of gritty survival against the odds is a heroic tale, one not undeserving of celebration. But the pilgrims were only one group that attended that famous harvest feast in 1621, and relations between the groups were not as friendly as the traditional portrayal would have us believe.

The pilgrims did not discover happy Native Americans living in a paradise- they discovered a shattered community still reeling from a deadly plague, most likely smallpox. The Wampanoag did not aid the pilgrims out of simplistic kindheartedness, but out of a knowledge that their world was changing rapidly, and a new ally might come in handy. Even as their numbers dwindled due to poor nutrition and inadequate shelter in the cold, the new arrivals were still able to mount armed expeditions against other Indian groups on behalf of the Wampanoags. Their militarism increased as new colonists arrived. Weakened by sickness and intertribal conflict, many native villages were abandoned in the face of the colonists’ aggression. A decade after they landed, the colonists embarked on an extermination campaign, burning villages and killing hundreds of Pequots. Governor William Bradford announced that from then on, Thanksgiving would be a celebration of “the bloody victory, thanking God that the battle had been won.”

So perhaps we have the history of what we celebrate a bit wrong, but that doesn’t mean we shouldn’t celebrate, right? After all, Thanksgiving is about giving thanks! But is it? Our Thanksgiving is a variation of a traditional harvest festival, celebrating the season’s bounty before the hard winter. We’ve come a long way from celebration of a harvest. The date of Thanksgiving was fixed as the fourth Thursday in November by Abraham Lincoln in 1863, in celebration of Union victories in the war. Now, American Thanksgiving is more often described as “food, family, and football” than as an opportunity to give thanks for a harvest or a victory. In recent years it has ceased to even hold that meaning, as Black Friday shopping deals have steadily encroached on the holiday. At least we can all be thankful for the great deals we’re getting.

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Hello world!

The History behind the Headlines is a podcast/blog. Each week, I write a blog about the historical context of something in the news. As Mark Twain said, “History doesn’t repeat itself, but it often rhymes.” I search for those rhymes. In addition to my weekly blog post, a guest and I discuss both the headlines and the history in a weekly podcast. Join us each week, for a dose of “how did we get here?” Learn something new with us, about your past and your present, and come away with some food for thought about your future.