Presidential Scandal: As Old As The Office Itself

In an era of 24/7 new cycles and constant social media debate the media has a tendency to blow everything out of portion. Sometimes this is rightful coverage such as during national security events, elections or major investigations. Sometimes such coverage is silly and pertains to the color of a suit or an incomplete and misspelled tweet. In this environment it seems no elected official can win or escape critical coverage. Often, the public reveres the founding fathers but nitpicks every action of our current leaders. However, our founders were not without scandal in their time. Here are eight events from early American history that happened to the first four presidents and would destroy a presidency in the twenty-first century.

Washington Pays Off An Islamic Dictator

That title reads like something out of Politico but it’s a historically accurate title for an incident that occurred during George Washington’s presidency. As soon as the United States gained its independence, American merchants lost the protection of the Royal Navy. Suddenly on their own, pirates from northern Africa saw these merchants as easy prey. These Barbary Pirates proved to be a scourge for several presidents but were especially tricky for Washington to deal with as he had no navy to combat them. Washington ordered six frigates during his administration but slow construction meant they would be of no use for several years. Ultimately, Washington appointed a commissioner to negotiate a peace treaty. The Adams Administration signed and ratified the final treaty but it was essentially already in effect. Before the Senate even read the treaty, to make it official with the pirates, payment had already been made. Peace with the pirates came from “forty thousand Spanish dollars,-thirteen watches of gold, silver & pinsbach,-five rings, of which three of diamonds, one of saphire and one with a watch in it, One hundred & forty piques of cloth, and four caftans of brocade” before a treaty even arrived in North America.

The real kicker in all of this is the appearance of “Article 11” which is seen only in the English version of the treaty. This provision does not exist in the Arabic version. Article 11 reads:

“Art. 11. As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen (Muslims); and as the said States never entered into any war or act of hostility against any Mahometan (Mohammedan) nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.”

Inquiries have occurred over the years into where this translation came from but the best answer is that the U.S. junior diplomatic agent who translated the treaty simply did a bad job. Despite the inclusion of the provision in the English text, Senate read the treaty aloud, distributed copies and approved it unanimously.

Despite the treaty’s ratification, the inclusion of Article 11 later proved quite controversial. Adams’ Secretary of War James McHenry stated in 1800:

“The Senate, my good friend, and I said so at the time, ought never to have ratified the treaty alluded to, with the declaration that ‘the government of the United States, is not, in any sense, founded on the Christian religion.’ What else is it founded on? This act always appeared to me like trampling upon the cross. I do not recollect that Barlow [the junior diplomat] was even reprimanded for this outrage upon the government and religion.”

An 1805 treaty between the United States and the pirates did not include such a provision.

Modern Analogy: With no navy and Somali pirates attacking U.S. shipping, President Trump sends diplomats to negotiate a deal with the pirate’s leader. The leader holds authority only in Mogadishu and has complex governance agreements where he swears semi-loyalty to the Saudi Arabian king. To prevent further attacks, the Trump administration works out a secret treaty in which a ransom is paid to this leader and the diplomat leading the charge barely speaks Somali. The ransom is paid before the Senate sees the treaty and the version the Senate does see includes a strange secular provision that no one questions until much later and is not even in the Somali version of the treaty.

A Diplomatic Scandal, an Undeclared War and Loyalty Acts

The expansive scope of presidential power and its associated danger is not a modern issue. The second president in U.S. history, and one of the founding fathers, found himself embroiled in an undeclared war, advocating for partisan loyalty laws and found himself the subject of massive bribes just to negotiate terms in that conflict.

Of course how this president handled all of these situations is something modern leaders around the world could learn from.

During the Revolutionary War the French royal government was a critical ally to the colonies and made extensive loans to them to support their efforts. When the French Revolution toppled the monarchy the United States stopped paying its debts arguing that those loans were made to a previous government and they were not obligated to pay the revolutionaries. In retaliation, French privateers began capturing American merchant ships. With the navy abolished after the revolution, the Americans had no recourse. To prevent a full on war with France the United States sent several ambassadors: Charles Cotesworth Pinckney, John Marshall, and Elbridge Gerry. These ambassadors were approached by French agents and were told that only bribes and a sizeable loan would allow negotiations to even commence. The dispatches from the ambassadors were eventually released to the hyperpartisan Congress with the French agent’s names redacted to X, Y and Z. The XYZ Affair created a political firestorm and nearly led to an outright declaration of war. Adams refused to support a formal war but Congress annulled the Treaty of Alliance made between France and the colonies in 1778 and shortly thereafter authorized a military buildup and attacks on the French navy.

The Quasi-War lasted two years and attempts at peace were made through diplomatic back channels throughout the Adams’ Administration. Military causalities were light on both sides but over 2,000 American merchant ships were captured in the exclusively naval conflict. Eventually negotiators sent in 1799 hammered out a treaty with a rising young French dictator named Napoleon Bonaparte and the war came to an unofficially official close in 1800.

The real controversy of the war came in the form of the Alien and Sedition Acts. Adams’ Federalist Party passed four bills in the name of strengthening national security. The Naturalization Act made it more difficult to obtain citizenship. The Alien Friends Act and the Alien Enemies Act of 1798 allowed the president to imprison and deport non-citizens whom he deemed dangerous as well as non-citizens from a hostile nation. Lastly, the Sedition Act criminalized making false critical statements about the federal government. Thomas Jefferson’s Democratic-Republicans slammed the acts as against the spirit of the young constitution and his party repealed three of the acts when they took over Congress in 1800. The Federalists claimed the acts strengthened national security but they negatively impacted the base of the Democratic-Republicans. Immigrants widely supported Jefferson and by increasing the residence time from five to 14 years that was a direct shot at Jefferson. The Sedition Act led to the prosecution of many pro-Jefferson newspaper owners.

The Alien Enemies Act, however, stayed on the books and was revised during World War I and then utilized by Franklin D. Roosevelt to imprison Japanese, German and Italian aliens during World War II. Harry Truman then used it to deport aliens from those nations during his term. A 1948 Supreme Court ruling held that the presidential powers under the act held true until a formal peace treaty was signed. The Alien Enemies Act is still law today and was recently cited as precedent to support President Trump’s “Protecting the Nation from Foreign Terrorist Entry Into the United States” executive order.

Modern Analogy: The United States, having recently fought in a major war alongside Japan, is deeply indebted to Tokyo. A revolution in Japan overthrows the emperor and sees a republican form of government take hold which is committing atrocities left and right. The United States, which condemns the atrocities, and wants to improve relations with China, refuses to pay those debts justifying the lack of payment as being owed to the emperor, not Japan. In turn, Japan begins to attack American shipping. Lacking a navy, the United States has no recourse but to turn to diplomacy. However, Tokyo refuses to even receive President Trump’s diplomats unless a bribe is paid and a loan is given. The diplomats refuse and send word back to Washington which leaks out and creates a firestorm in the media and in Congress. Congress annuls the old alliance, orders construction of new warships and authorizes conflict with Japan. Negotiations continue for several years while an undeclared naval war is fought. However, because Japan is at war with most of Asia, and the United States has no real navy, casualties are light. During this time though, the Republicans pass several borderline unconstitutional laws that make citizenship more difficult to achieve (because immigrants who naturalize tend to vote Democrat), allow deportation of Japanese citizens and make it illegal to say false bad things about the government. The latter law is largely used to target the New York Times, Washington Post, Salon, CNN and MSNBC. The war comes to a slow quiet close when a dictator takes over Japan but the controversial legislation helps usher in a new Democratic president and Congress.

John Adams Steals the Judiciary

If you think nuking the filibuster or never giving Merrick Garland a hearing is bad, read into John Adams’ last days as president. As Adams’ term came to a close, and his political rival Thomas Jefferson was prepared to take the White House, the outgoing Federalists enacted a last minute plan to pack the judiciary with Federalist judges. The lame duck Congress created numerous appellate courts between the district courts and the Supreme Courts and Adams appointed judges to fill the vacant seats, allegedly up until the last minutes of his presidency. These “midnight judges” were fervently opposed by the Democratic-Republicans who undid the damage by enacting the Judiciary Act of 1802, abolishing all of those newly created Federalist courts.

One lasting legacy of this flurry of last minute activity was the appointment of Federalist John Marshall to the position of Chief Justice of the Supreme Court following the retirement of Oliver Ellsworth. Marshall would remain on the bench until 1835 and his tenure is the longest lasting legacy of the Federalist Party. Marshall went on to preside over Marbury v. Madison (reinforcing the doctrine of judicial review), the trial of Aaron Burr (establishing strict interpretation of treason), McCullough v. Maryland (affirming federal supremacy over the states when Maryland tried to tax a federal institution as well as providing a broad interpretation of the necessary and proper clause), Cohens v. Virginia (allowing state court decisions to be appealed to the federal courts if jurisdiction is met), Gibbons v. Ogden (affirming supremacy of federal government over state government in interstate commerce), and the so called Marshall Trilogy (laying out the legal foundation for relations between the United States and Indian tribes). Adams deemed the appointment of Marshall as the proudest moment of his life.

In turn, the start of the Jefferson Administration saw efforts to undo the perceived damage to the judiciary. Congress revoked the appellate courts and impeached Samuel Chase, a Federalist Supreme Court justice, for being too biased in his opinions. The impeachment effort failed but it remains the only time a Supreme Court justice has been impeached.

Modern Analogy: As President Obama and a Democratic Congress are preparing to leave office they spend the last few weeks of the lame-duck session creating new courts and filling those positions with liberal judges. In the middle of all of this, Chief Justice John Roberts retires and Obama appoints a 9th circuit California justice to lead the court. This justice will spend the next 30 years laying a more liberal foundation for important constitutional interpretations. When President Trump and the Republicans take office they repeal the court creations and impeach justice Kagan for political bias in her opinions.

The Vice President Kills A Man, Flees, And Then Sort Of Commits Treason

Thomas Jefferson’s vice president, Aaron Burr, didn’t have a great few years from 1804 to 1807. In July of 1804 Burr shot and killed Alexander Hamilton, the de facto leader of the opposition Federalist Party, in a duel. Burr was indicted for murder in New York and New Jersey which caused the Vice President of the United States to run from the law to Georgia. Political leaders, including Thomas Jefferson, allowed the indictments to quietly die and Burr presided as the President of the Senate during the impeachment trial of a supreme court justice. His political career destroyed because of the duel, Burr left Washington and went to the western frontier.

In turns out that Burr, while vice president, had plotted a coup to separate western territory, namely Louisiana, from the United States as early as 1804 when he asked the British ambassador for support so they could regain power in the southwest. Burr met with the ambassador several more times through 1806. Burr worked with volunteers and conspirators from Ohio to New Orleans in 1805 and 1806, including James Wilkinson, a general and the governor of Louisiana Territory. He aimed to create some form of independent government in the western frontier that would then work with a foreign power. He even told a Spanish ambassador that he intended to capture Washington. Jefferson dismissed reports of Burr’s activities as partisan cage rattling.

Wilkinson ratted on Burr to Jefferson in mid-1806 and even sent Jefferson text from letters that Burr had sent him, editing out the parts that included his own plotting. Charges were drawn up and Burr surrendered, then escaped into the wilderness before being captured in February of 1807. The trial occurred in Virginia and was a scandal that rocked the constitution. The court made important precedential decisions on numerous constitutional clauses, notably the clause regarding treason. Ultimately, the court held that there was no treason because an overt act had yet to have been committed. A lack of evidence also played a role. Burr walked out a free man and, possibly to escape his creditors, exiled himself to Europe. Even then the British kicked him out for trying to instigate an expedition to support a Mexican revolution.

Modern Analogy: In this scenario, President Obama has taken over from President Bush and is shutting down Republican backed appellate courts because he did not agree with the judicial appointments they had made at the eleventh hour. While Supreme Court Justice Antonin Scalia is being impeached for partisian judicialship, Vice President Joe Biden challenges Mitch McConnell to a duel and kills him. Maryland and Virginia indict the vice president for murder and he flees to California while friends allow the charges to quietly drop. Biden then returns to preside over an impeachment trial of Justice Scalia. A politically broken Biden moves to isolation in New Mexico at the end of his term. There he works with Army General Ray Odierno, and locals, to create a plot to secede sections of Texas, New Mexico and Arizona from the United States while attacking Mexico. In this effort, Biden coordinates with ambassadors from Russia and China. The media is reporting the crisis but the Obama Administration ignores it until an edited letter from Odierno forces his hand and Biden is arrested. A trial is held where Biden is acquitted because a conservative judge interprets clauses of the constitution narrowly to favor Biden. Biden then moves to Russia but Vladimir Putin kicks him out when it is discovered he is organizing an expedition to help revolutionary insurgents. He then returns to the United States several years later where he is granted admission to the Bar and practices law for another 20 years before his death.

Jefferson Ruins The Economy And The Navy

When Thomas Jefferson took office, the national debt stood at $83 million. In an effort to lower that and implement his Democratic-Republican philosophy he reduced government including the navy. Jefferson envisioned a small brown water navy of cheap gun boats and coastal defenses to protect American ports as opposed to the Adams’ era blue water frigates. His policies did reduce the debt by $20 million but his naval decisions left the American coast vulnerable to British attack during the War of 1812.

These decisions all happened at a time when the need for a navy could not be more clear. Tensions between the U.S. and Britain were increasing and the British were boarding merchants and impressing (forcibly taking) American sailors at will. At the same time, the few American frigates in service were fighting pirates in northern Africa. This all led up to the Chesapeake-Leopard Affair where a British warship fired on an American vessel off Virginia, killing three sailors, wounding 17 and impressing four into service (one who would later be hanged for deserting the Royal Navy).

Instead of responding militarily (probably because there was no navy to respond with), Jefferson levied economic sanctions on Britain via the Embargo Act of 1807. This act hoped to force France and Britain into respecting the United States by cutting off all shipping from the U.S. to those countries. The plan backfired severely as one would expect when a fledgling country voluntarily suspends trade with its two biggest partners. Smuggling began almost immediately and neither the French of British economy was impacted by the embargo.

Modern Analogy: In an effort to reduce the national debt, President Trump makes cuts to the government and the navy despite an ongoing trade crisis in the Pacific where Japan and China are at war. Both countries are harassing American shipping and China is taking American sailors off of ships and putting them to work on their own. To keep America safe, a number of yachts and barges are equipped with light weapons and tasked with keeping the Japanese and Chinese navies, which have aircraft carriers and missile cruisers, away from Seattle, San Francisco and Los Angeles. A Chinese destroyer attacks an American container ship off California, killing three sailors, wounding a dozen more and taking four prisoner where one is later executed. Instead of responding militarily, Trump shuts down American shipping between both Japan and China. This has no effect of either economy but the U.S. falls into an immediate economic depression.

The Electoral College Fails And Creates A Constitutional Crisis

Under the original constitutional text, each elector could vote for two persons in a presidential election. The person with the greatest number of votes, with a majority, won the presidency. If more than one individual received the same number of votes, the House would then choose from the two to determine who won. If no one received a majority then the House would choose from the top five vote winners to determine which of those five won the presidency. Whichever candidate finished second would be the vice president.

This system collapsed as soon as George Washington retired. In the 1796 election, John Adams received a majority of electoral votes but the second votes were scattered resulting in the Democratic-Republican candidate, Thomas Jefferson, finishing second and becoming vice president. This meant the president and vice president were direct political foes. An attempt to introduce an amendment went nowhere and both sides opted to go with a party ticket option for the 1800 election which caused the system to crash again.

In the 1800 election, the electors followed the party ticket method but, no surprise, running mates Thomas Jefferson and Aaron Burr ended in a tie. It took 36 votes in the House to break the deadlock and elect Jefferson president. This finally led to the Twelfth Amendment which established the system utilized today.

Modern Analogy: Donald Trump wins the presidency through the Electoral College but Mike Pence finishes third behind Hillary Clinton. This means that Donald Trump is the president while Hillary Clinton is the Vice President within the Trump Administration. An effort to fix this glaring defect is ignored and in 2020 election, the Democrat ticket of Clinton-Kaine results in tie after tie in the House until Clinton wins after 36 attempted votes. At any point in that process Tim Kaine, the agreed upon vice presidential candidate, could have won the presidency from under his own running mate.

James Madison Basically Steals A State

The United States eyed Spanish East and West Florida since the end of the American Revolution. Not only were the Spanish territories right on their doorstep but West Florida’s boundary on the Mississippi River made it vital to controlling the overall river. However with a constant state of near-war existing between the U.S. and France and Britain, going to war with Spain was seen as a poor idea. While lengthy negotiations occurred between the U.S. and Spain, American settlers continually encroached on the area and combined with holdover British settlers (Britain controlled the Floridas until the end of the American Revolution when they were returned to Spain) and rebelled. The Republic of West Florida lasted 74 days with its capital at St. Franciscville, on the Mississippi River in modern day Louisiana. The rebels captured Baton Rouge but failed in an effort to take Mobile.

James Madison declared, based on weak claims from the Louisiana Purchase, that the U.S. should annex the new Republic. The fledgling government of West Florida opposed this move but the U.S. Governor from New Orleans invaded the territory and formally annexed it. Congress passed a resolution in 1811 agreeing to occupation of the disputed territory and that it should remain “subject to ongoing negotiations”. A secret Congressional authorization in 1812 allowed the U.S. to take more disputed land and the Americans slowly ate West Florida all the way to the Mobile area. This left only the Spanish capital of Pensacola and the Florida Peninsula itself as Spanish territory. In the midst of all of this, the Spanish could do nothing as they were mired in the Napoleonic Wars and more important wars of independence in Latin America. The remaining Florida territories were finally ceded in 1819 under the Adams-Onis Treaty in exchange for an American promise that they would not interfere in Spanish Texas.

Modern Analogy: For 30 years the United States desires the Canadian provinces of British Columbia and Yukon Territory based on very tenuous claims, an influx of American immigrants into the area and a desire to unify the lower 48 with Alaska. The American migrants secede and create a Republic of Columbia that is promptly invaded by the Governor of Washington and annexed into the United States. The next two years see secret Congressional authorizations moving the line of American control further and further into British Columbia. Canada protests but is concerned with an unbeatable dictator that ties up resources to the east while Quebec has started its own war of independence. Eventually, all that is left of the Canadian west coast are the Yukon Territory and Vancouver, both of which are bought by the United States eight years later in exchange for promising not to interfere and annex the Northwest Territories. Less than a decade later, the Americans interfere in the Northwest Territories.

Washington D.C. Is Captured And Burned

The modern media coverage of this event alone would dwarf all of the above. It’s a seminal moment in American history and the low point of the War of 1812. While Madison did about as well as he could to prosecute the war given the status of the military he inherited, history typically doesn’t look kindly on those leaders who lose their capitals.

For most of the War of 1812, British war resources were tied up fighting Napoleon in Europe. The fighting in Canada was largely conducted by militias and Native American allies, while what forces the Royal Navy could spare blockaded the coast and harassed American merchants. After the Battle of Waterloo sent Napoleon to his final exile, those resources were suddenly free for other uses. British marines and ships flooded Bermuda and proceeded to raid the Atlantic Coast. One British admiral, familiar with Chesapeake Bay, urged an attack on the vulnerable region. Angered by American burnings of towns in Canada earlier in the war, the British sought to gain retribution on Washington while sending a devastating political message. The Royal Navy scattered scant American naval forces and British troops landed. They engaged, and defeated, 6,500 American militia and marines at near Bladensburg, Maryland. This caused Madison and the government officials in Washington flee to Brokeville, Maryland while the British occupied the capital. The British ten burned a number of buildings, including the Capitol and the White House, in retaliation for the burnings in Canada. A sudden storm, possibly a hurricane, prevented more damage to the city, while damaging Royal navy ships, but the British continued north up the Chesapeake to attack Baltimore. The failure to subdue Fort McHenry saved Baltimore, dispersed the British raiders and led to the creation of the national anthem.

The reaction to the burning of Washington is far more measured than anything you would see today. American newspapers condemned the destruction as “needless vandalism” and the British public were shocked at the actions of their own military. European leaders condemned the attacks as did some British MPs on the floor of Parliament. Some British and American commentators justified the destruction based on the burnings in Canada. The Madison Administration was largely spared for the defensive failure.

Modern Analogy: Presidents Bush and Obama dismantle the military despite a growing threat of war with the UK. Once the war breaks out, the UK sends a small raiding force to the Atlantic Coast. Finding Chesapeake Bay defenseless, the UK lands troops, scatters the Maryland National Guard and captures Washington. President Trump, the government and all of the policy wonks living in D.C. flee to small nearby towns while the British troops burn things down. A hurricane blows in putting out the fires and damaging the raiding force. The UK forces travel to Baltimore where they are beaten by a fixed fortification and forced to retreat while a lawyer watches and writes a song that will be played before future sporting events.