Introduction: The History of Presidential Misdeeds

In the early months of 1974 the House Judiciary Committee was navigating through unchartered waters as it investigated President Richard M. Nixon and members of his administration for illegal conduct relating to the Watergate break-in and its subsequent cover-up. Nothing like this inquiry had happened since the impeachment of Andrew Johnson in 1868.

The members and staff of the Committee wanted to know what crimes or assaults against the law previous presidents or their administration had committed in the preceding 185 years? What had Congress done about them? 

John Doar, special counsel to the Committee’s Impeachment Inquiry, asked Yale historian C. Vann Woodward to assemble a group of historians to compile a comprehensive record of Presidential misdeeds. 

Doar wanted the essays to provide the historical context within which he and Committee members might assess the relative scale and nature of illegal acts with which the Nixon administration was charged.  I participated in compiling that record as the author of essays about Thomas Jefferson, James Madison, and James Monroe. 

Our report was eventually published as Responses of the Presidents to Charges of Misconduct. That title was slightly misleading inasmuch as the book’s contents, the verbatim text of the report we eventually submitted to Doar, went beyond registering mere charges of misconduct to compile an unprecedented record of instances of actual executive branch malfeasance that had begun as early as the administration of George Washington and continued for nearly 200 years.  

Because Nixon was in office at the time of the report’s submission to Doar and because the full record of his administration’s activities could not then be fully known (and would not in fact be known for decades), the report ended with the administration of Lyndon B. Johnson.  After all, it was intended to provide the record against which the Nixon administration, still in office, might be compared; it was not intended to be an indictment of that administration.  That was up to the Inquiry.

Given mounting evidence by 2018 that another president was involved in possible lawbreaking and corruption on what most historians believed was an unprecedented scale and depth, I found myself drawn back to a subject that I had hoped the United States had put behind itself 45 years earlier.

Once again, a president, with the aid of senior administration figures, had gone rogue.  

One result of reportage about the President’s actions was a call for an expanded version of the 1974 report through the addition of essays on the seven presidencies since Lyndon Johnson’s, essays starting with Nixon’s presidency and ending with that of Barack Obama. The resulting 2019 book, Presidential Misconduct: From George Washington to Today, of which I was general editor, maintained the approach of its predecessor.  

Comprehensive in their coverage, its new essays reported on both charged and proven misbehavior.  The essays were strictly factual; they avoided interpretation; they proceeded episode by episode from one administration to another; and they steered clear of comparing administrations on a good-and-bad-conduct scale.  That last task was left to the book’s readers. 

Also like its predecessor volume, over which Richard Nixon hovered, the new book’s contents were shadowed by the incumbent president, Donald J. Trump.  Yet as it had proven with the 1974 report, written and issued while the president whose acts had called it forth remained in the White House, it would have been professionally irresponsible to assess the Trump administration without its full record being available and before it had ended.  

Therefore, all that I could write then about the Trump administration was the factual statement that with the investigation being conducted by special prosecutor Robert Mueller and others, Donald Trump and some of his associates were “under scrutiny for a wide range of possible legal and constitutional offenses: collusion with a foreign power to affect the outcome of his election, financial ties with foreign interests that interfere with his ability to act in the national interest, obstruction of justice, suppression of evidence, disregard of campaign finance laws, money-laundering, tax evasion, breaches of the emoluments clause of the Constitution, and other offenses, such as abusing power, directing the commission of felonies and undermining the rule of law and norms of democratic governance.” 

“Already, some of the president’s close associates,” I pointed out, “have pled guilty to perjury, violation of campaign finance laws, and other crimes, and the administration’s compromise of American national security is beyond dispute.”  Not long afterward, criminal investigations and court trials had turned many of the president’s aides into convicted felons.  

By then, too, the sitting president, like Richard Nixon before him, had also been named as “Individual #1” in a sentencing memo filed with the Southern District of New York.  To make matters worse, by the end of his term, Donald Trump had been twice impeached by the House of Representatives and had thus established a new record among American presidents. As this issue of American Heritage goes to press, an unprecedented second senate trial of the former president for an impeachable offense is scheduled to take place starting in early February.

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Now that a new president, Joseph R. Biden, Jr., occupies the Oval Office, the prudence that earlier bound me as author of part of the 1974 report and editor of the 2019 book to follow the rules that governed both is without force. I can write what is now obvious to most historians: The existing record provides ample evidence of the Trump Administration’s gross, illegal and unprincipled deeds while in office, a record that surpasses that of any previous administrations. When we include his apparent incitement of supporters who attacked the United States Capitol on January 6, 2021, that record creates a distinct category of infamy.

To be sure, the metric of misconduct alone is a mis-measure of presidential administrations. Their records must be evaluated on many grounds.  Some presidencies judged a failure by historians, like those of John Quincy Adams and Benjamin Harrison, were effectively untainted by misbehavior; others, like Harry Truman’s, had major achievements to their credit although their reputations were sullied by the significant misdeeds of senior officials.  

Yet when measured by this single, admittedly narrow standard applied to over 230 years of government under the Constitution, there is no doubt that the Trump presidency has surpassed all of them, even the most law-breaking, by a wide margin and that the stain of its misdeeds will darken its reputation for time immemorial.  In fact, the United States will be fortunate should the Trump presidency’s record stand forever as the nadir of presidential malfeasance and that none ever exceed its record of criminality and corruption.

Until the Nixon administration, most instances of official corruption and unlawful behavior grew from greed — from the use of public office for private gain.  Many of those instances involved the corruption of the federal civil service by favoritism and the outright sale and purchase of offices.  

By the 1880s, so extensive and pervasive was this kind of corruption that Congress in 1883 enacted the Pendleton Civil Service Reform Act, the law that established a professional federal civil service and authorized the creation of stated qualifications and competitive examinations for civil service employment.  Since then, additional safeguards and standards, such as those embodied in the 1939 Hatch Act, which prohibits political activity and fund-raising by federal employees, have cleansed the civil service of all but rare instances of outright corruption and misbehavior.

Yet as the record shows, other forms of corruption and illegality have proved impossible ever fully to root out. Nevertheless, until the 1970s corruption remained at a reasonably low level and never seriously threatened the basic integrity of American government, however blatant and egregious any instances of corruption might seem at the time.  

With Nixon’s administration, however, the United States entered a new era in executive branch misconduct. Most of Nixon’s predecessors whose administrations were scarred by scandal had simply failed to set and apply standards of conduct or, too trusting or too uninvolved in oversight of their senior officials, had simply turned blind eyes to intimations of wrong-doing. Theirs were acts of omission.  

By contrast, Nixon actively orchestrated illegal efforts from the Oval Office, the first president known to have done so. His were acts of commission. Nixon was also the first president to be named by a 1974 federal grand jury as an unindicted co-conspirator for his involvement in covering up the break-in at the Democratic National Headquarters at the Watergate complex in Washington. He was forced from office as a result, the first president to meet that fate.

The Reagan administration added to the Nixon administration’s innovation with a departure in wrong-doing of its own.  In the 2019 book, Jeremi Suri terms the so-called Iran-Contra Affair, a complex operation in which administration officials surreptitiously shifted funds from a congressionally authorized purpose to one specifically prohibited by legislative action, “the most significant constitutional crisis since Watergate.”  

Whether President Reagan knew of the involvement of senior White House officials in the scheme has remained unclear. But what was novel in the diversion of funds, an operation attended by corrupt trading in cash and arms by scores of people, governments, and agencies in many countries, was the involvement of a small cabal of White House officials, possibly without the president’s knowledge, operating beyond the knowledge and reach of law.  The stage was now set for what has occurred during the Trump administration.

By the middle of Trump’s single term in office, when the corruption, incompetence, and heedlessness of law permeating his administration were already clear, the president and his close advisors managed to surpass both the Nixon and Reagan administrations’ records of misdoing with a kind of recombinant misconduct vastly greater than anything ever before seen in American history.  Emblematic of the magnitude of its lawlessness was its integration of Nixon- and Reagan-style offenses against the law.  

Exemplary in that regard was the president’s executive office oversight of a cabal of people, such as Rudolph Giuliani, employed from outside, rather than inside (as during the Reagan presidency), the administration, people who sought to promote foreign policy objectives in Ukraine and elsewhere without oversight by Congress and in furtherance only of the president’s personal goals rather than of considered national objectives.

By that time, the American public had learned not to be surprised by the scale and nature of the Trump administration’s misdeeds.  This is not the place to try to number and name the individual items. The full evidence and full record of this presidency will require years if not decades to discover and the dedication of historians too numerous to imagine to recount. The articles in this issue devoted to the Trump administration, articles not part of presidential misconduct and thus not subject to limitations that guided its contents, suggest the ways in which history will view Biden's predecessor and hint at the arguments about it that will arise.

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It is not part of a historian’s responsibility to predict the future.  Students of the past are qualified as professionals only to look behind them.  Yet as a citizen, a historian is free to venture a guess as to how the administration of the 45th president of the United States will be measured by future historians.  

The prediction of this historian is three-fold.  

First, that the record of misconduct and sheer corruption of the Trump administration will, when captured in its entirety, inarguably exceed by many factors that of any other president before him.  

Second, that protections against the enormity of the Trump administration’s law- and norm-breaking will have to be and will be strengthened to prevent any analogous departures from the rule of law in the future.  

And third, that, given the re-affirmation of Americans’ historical collective commitment to their Constitution, to the rule of law, to equality, and to democracy that we have witnessed since the attack on the Capitol on January 6th, the United States will recover from the injuries inflicted on it by its highest elected official and emerge once again as the great nation it is and the greater one is always seeks, however haltingly, to become.