Lawfare Daily: Lindsay Chervinsky on ‘Making the Presidency’

[Intro]

Lindsay Chervinsky: So after Adams establishes that he has the right to diplomacy, as he expected, the Army began to deteriorate, and many of the officers returned their commission, many of the troops deserted because they felt that war would not happen. And that began to strengthen his hand vis-à-vis the Cabinet.

Benjamin Wittes: I'm Benjamin Wittes, and this is the Lawfare Podcast with Lindsay Chervinsky, author of “Making the Presidency: John Adams and the Precedents that Forged the Republic.”

Lindsay Chervinsky: The presidency had been dominant in the first eight years but there was a question of whether that dominance was personality-based or institution-based. And so there was a push by members of Congress to seize some of that authority when someone like Washington was no longer in that position.

Benjamin Wittes: Today, we're talking the second presidency, how the norms of executive authority and power that we have understood had to be fought for and established after George Washington left office.

[Main Podcast]

I want to start with one of the reasons that I think this book is getting so much attention and interest right now, which is that John Adams' administration was bracketed by the first and second peaceful transfers of power, one of them under extraordinarily fraught circumstances. So among the many issues in this book that are highly salient to Lawfare readers and listeners, this is very high on the list. So, let's talk about it. John Adams is not generally remembered as one of our great presidents, and I think this book should go a long way to change that in a lot of respects. But talk us through it, is he the great hero of the proposition that American power can transfer without violence?

Lindsay Chervinsky: Yeah, I think that he is. I think that so much of the peaceful transfer of power concept and practice is often remarkably ho-hum in its daily execution. There are a lot of acts that need to take place that are not particularly splashy. They're not particularly sexy. They're not always going to be the thing that a monument is made to. Things like showing up when you know it's going to be difficult. Encouraging your successor to have success. Encouraging your department secretaries to be as cooperative as possible.

These are small things that often happen behind closed doors, but as we've learned, especially over the last several years, none of those things, at least at the time were written down. They were not, certainly not in the Constitution, still not in the Constitution today. And so the character of the transition, what it looks like, how it is supposed to operate, all of that had to start from scratch and it had to start somewhere, and Washington, George Washington went a long way in starting that process by declaring his intent to retire and to not have a third term. But then the person who's coming in plays just as big of a role. We've very much seen that both sides have an awful lot of influence on what that transition is going to look like. And so, Adams is the common denominator in those first two and really sets the tone for what they're going to look like.

Benjamin Wittes: Yeah, and so let's talk about that. There was no chance of political violence in the context of the first transition cause it was mostly a friendly transition, although not a warm transition between Washington and Adams. But there are some enormously fateful decisions made in that transition, about which I had never thought before I read your book. I was aware that Adams had kept Washington's Cabinet, and I had always thought of that as a effort at continuity on his part, which of course it was, but not a lot, I've not thought about it a lot more than that.

And you described something else, which is that, number one, he was kind of forced into that continuity by circumstances, and by the fact that he didn't really have access to good people on his own. But that secondly, this sets up the first profound challenge to the presidency, which is you have continuity in the Cabinet and the presidency is not, is discontinuous. And so, there's a kind of implicit question in there, who should be running things and the Cabinet really felt like the answer was them, which means that for the first time, the president is not somebody with the stature of George Washington, whose very being commands respect and obedience. And you have set up this war between the Cabinet and the president. So talk about that. Did it need to be established that there was not a committee executive, in the United States that the Cabinet worked for the president?

Lindsay Chervinsky: This question really gets at so much of the heart of what I think Adams’ challenge was and what he was trying to tackle, which was that Washington had established all of these precedents for what the presidency would look like. And he had made a lot of decisions for the first time that would, in theory, guide his successors. But as you said, no one else came into the office, and I don't think anyone else ever will come into the office with the same sort of unparalleled, unquestionable right to authority. Maybe you could, like, make an argument that Eisenhower or FDR kind of get close, but even then, that's a stretch.

And so, all of Washington's decisions are very much theoretical or hypothetical for the people that follow because they are not going to have that type of unquestioned authority. And if I may just take a step back to that transition from Washington to Adams, we tend to take that for granted because we know what happened four years later, and that one was much more dramatic. But the American people did not. That was all that they knew. And while you're right, they weren't expecting violence, they were living in a moment that was characterized by the French Revolution. And so that was the sort of transition they were familiar with and were trying to avoid. And it wasn't necessarily even that it would devolve into violence, but that it could devolve into another constitutional convention, which would have been incredibly destabilizing.

So with that context, Adams understood that this transition was very nerve-wracking for the American people because they had only ever been comfortable with one president. They'd only ever seen one president. Of course, the Constitution was the second round of government for this new nation. Most nations don't get second chances, so they were already feeling pretty fortunate about that. And so, as you said, Adams made this decision both to provide continuity in the moment of a lot of tension and a lot of nervousness by the American people, partly out of recognition that Washington had a great deal of trouble filling vacancies in the Cabinet because they were not as prestigious as they are today. The pay wasn't very good. Travel was awful. And so you were going to be away from your home and your families for a long period of time.

But also that he was not Washington. And so if Washington had trouble, he would have trouble. And finally, he had never been in an executive capacity before. He did not sit in on a single Cabinet meeting, so he didn't know how those dynamics actually worked. And he assumed that these secretaries, which appeared to have been loyal to Washington, would also be loyal to him. And that really set up the crux of the situation because they, while nominally of the same party as Adams, which was the Federalist Party, did not have the same sort of reverence for Adams that they had for Washington. So even when they disagreed with Washington, they respected the decision. However, when they disagreed with Adams, they went to great lengths to try and undermine his decision, and over the course of the next couple of years, flirt with outright insubordination.

And it reflected a thinking by them that when the president wasn't someone that they loved, then it did sort of devolve into almost what we would think of as like the British Cabinet model today, where it is really a governing by committee. Maybe the prime minister is sort of first among equals, but it really is a first among equals. Now, what's really interesting is they did not in any way articulate that theory when Washington was in office. So it very clearly depended on who was in that seat, their view of this power. And initially Adams, I think, tried to prioritize maintaining unity and unanimity among the secretaries, trying to maintain some good feelings in this administration, but very quickly realized that was not going to be possible.

Benjamin Wittes: Yeah. And so it is one of the ironies of, the great ironies of the period, one on which Lin Manuel Miranda does not dwell, and actually Ron Chernow does not dwell either, that the person undermining the structure of the presidency at this point, the person who all these Cabinet officers think of themselves as reporting to, is the person who wrote Federalist 70, right?

And is the person who we think of, that is Alexander Hamilton, when we say, Hamiltonian in the context of Article Two, it means belief in a strong executive hierarchy. It means, you know, it means the sort of vertical integration of the executive branch. It means the president's entitlement to fire, you know, principal officers, right? It's a super ironic thing that, that all of these Cabinet officers are you know, going to Cabinet meetings and writing advice for the president that is secretly drafted by Hamilton in an explicit, all but explicit effort to undermine the authority of the president. I'm just interested in your thoughts on that. That the norms that your book is about the establishment of are basically made by Washington, but reinforced in a lasting way over the objections of Alexander Hamilton.

Lindsay Chervinsky: Yeah, it's an excellent point. I mean, you know, I think what's interesting with Hamilton is he did so much to breathe air into the structure of a strong executive as we think of it. So, he was the one that had put forth the legislation that created the financial structure that allowed the American economy to get off the ground, the first federal bank. So he was, and he was incredibly staunch defender of Washington's authority.

But a couple years later, I think two things happened. One, he didn't, it wasn't that he didn't think Adams was smart, or that he wasn't properly elected, or he wasn't the people's choice. It was that he thought Adams was too independent, and Hamilton couldn't control him. Not that Hamilton could ever really control Washington, but more that I think Washington was willing to listen to him, even if he didn't always take his advice. Whereas Adams wanted nothing to do with Hamilton. And that really fueled the second characteristic, which was that Hamilton was always a little bit nuts and that craziness was reigned in when Washington was around because he had a channel through which he could kind of funnel those energies into productivity and Washington's presence kept him in check.

But when he was out of the administration and trying to pull the strings from behind the scenes and did not have a, what we would think of as like a legal or appropriate area to funnel those energies into, he starts to feel like his power and the system that he has created is slipping away. And he became more and more extreme in the need to try and defend the executive. But as he saw it, defend the executive against the presidency. And so over the course of the four years that Adams was in office, he, and then his primary allies in the Cabinet, who are Secretary of State Timothy Pickering, Secretary of War James McHenry, and Secretary of the Treasury Oliver Wolcott Jr. work really hard to maintain a strong executive, but in their hands, not in John Adams’ hands. They want the secretary of state to be the one that's defining foreign policy. They want the secretary of war to be making all decisions about this new expanded army. They want the secretary of treasury to be doing things with the finances independently of the president.

And critically, they want to be able to overrule him if they disagree. And none of that really was written down, and it was very much a different arrangement than when Washington had been in office, but that set up the test to determine who actually did have the legal authority. And so over the course of four years, there were a series of clashes in which Adams asserted his will over the ability to shape foreign policy, the ability to fire secretaries, which had never been done, and really, I think was the pivotal moment in setting the character of the executive branch, to be able to give pardons in the event of a domestic crisis, things like that, that they had all objected to. And yet Adams fought back against and really did uphold the type of presidency that Washington had embodied.

Benjamin Wittes: Yeah. So, let's talk about those three things in turn. But before we do just so that listeners have a sense of the characters that we're talking about, it seems to me other than Hamilton, Hamilton is kind of the eminence grise of these, of this faction of one, you call them arch-Federalists. But this is a group of people who are fanatically anti-French, and some of them quite pro-British, and they are generally northern commercial, from Connecticut or Massachusetts. Their great fear in life other than the French are the Jeffersonians and they are not above being quite authoritarian in dealing with the Jeffersonians. The character who most represents them in this is Timothy Pickering, the secretary of state. So, just for purposes of the rest of this conversation, give us a little precis on, on Mr. Pickering.

Lindsay Chervinsky: I would also add that they were rapidly anti-immigrant because they felt that immigrants were going to side with the Jeffersonians and side with the French to kind of create this cabal. I think that's a really important dynamic, especially when it comes to domestic politics. Timothy Pickering was born to sort of a middling family in New England. He came from many generations of Puritan stock. Although, one historian hilariously said that it wasn't really fair to blame the Puritans for Pickering's personality because he was so extreme. He really did have a disposition that was better suited-

Benjamin Wittes: Ouch.

Lindsay Chervinsky: I know, right? He really did have the disposition that was better suited for the Spanish Inquisition. And it wasn't that he wasn't smart or hardworking. It was that he viewed compromise as a moral failing, and he viewed anyone who disagreed with him as a bug to be squashed. And that is a really bad combination when you're supposed to be in charge of diplomacy, because inherently compromise is going to be required, and seeing another perspective is going to be required.

And so he had come up, he had really sort of made his own way. He had served in the Continental Army with Washington. He had served initially as a commissioner in Washington's administration and then as secretary of war. And Washington had asked six other people to be secretary of state before finally settling on Pickering. So he wasn't anyone's choice for this diplomat. And by the time he came into office, he was in office for about a year and a half with Washington's administration as secretary of state and then remained on for Adams, and they had known each other for a long time.

The Massachusetts Federalist community was a small one, and they didn't initially not get along. They just weren't particularly close. And very quickly, Pickering became convinced that Adams could not be trusted, knew nothing was dangerous in his independence, and dangerous in his ideas. And so from the very beginning, Pickering tried to undermine Adams’ appointments, Adams’ foreign policy, Adams’ domestic policy, Adams’ relationship with other potential allies, and then critically towards the end, Adams’ ability to be re-elected. And that was, I think, a general character of how the Cabinet was, in general.

Benjamin Wittes: Right. So, on the one side of the pincer action against Adams is his own party, the unacknowledged leader of the party, which is Hamilton, who is in New York acting with a, his manic brilliance. On the other side of the pincer action are the Jeffersonians, who are to one degree or another, actively pro-French. And this is, of course, at a time, as we will get to, when there really only was one issue in American government, which was, you know, were we going to go to war with France? So, walk us through again, just for the background of the rest of the conversation, what the beef that the Jeffersonians had with Adams was.

Lindsay Chervinsky: Initially, the Jeffersonians, when Adams first was inaugurated, had high hopes that he might be a little bit more amenable to a bipartisan administration. They very quickly were disillusioned because they felt that he had been captured by the warmongering elements in his Cabinet, which he had not. But they felt that he had. They felt that he was not interested in conducting diplomacy with France in good faith, that he was too eager for war. And then once war measures were passed in Congress, he was eager to crush any domestic opposition to that, those war measures.

And that opposition, the crushing of the opposition came in the form of what is known as the Alien and Sedition Acts. It was actually four acts designed to crush sedition, opposition, make it harder for immigrants to become citizens and make it easier for the president to deport people from the country. So they thought he was too in favor of these extreme measures, that he was too eager for war, and that he wanted to impose a, basically American monarchy in the same style of the British monarchy.

Benjamin Wittes: All right, one other background point that I think is important, and I'm honestly not sure that there is any other presidency for which this is true, but the only issue that John Adams really had to deal with was this foreign policy crisis. And it started before he got into office, and it actually, he leaves office and then the success comes in, right? The treaty and the evidence that he had actually handled it very adroitly comes in after he has already been defeated for re-election. I was struck in reading your book that there is no other issue in, you know, there's no, you know. Everything else, the Alien and Sedition Acts, of course, is a derivative function of this one dispute. So, just for purposes of the rest of the conversation, the John Adams administration was about the Quasi-War with France. What was the Quasi-War with France? Why was this dominating U.S. policy?

Lindsay Chervinsky: I think you're absolutely right. I think everything else that grabbed his attention would not have emerged or bubbled up if not for this Quasi-War. And the Quasi-War came about after the Washington administration signed the Jay Treaty with Great Britain, which basically tried to resolve some of the lingering issues from the revolution and reestablish treaty relations between the two nations. And France really resented that treaty because they had been at war with Great Britain, they were going to be at war with Great Britain again. Basically, France and Great Britain had been fighting off and on for centuries. Britain was their biggest enemy and they felt like this treaty undermined their most favored nation ally status with the United States.

And so in response as part of their war effort, they started seizing American ships, imprisoning American sailors, and selling off the goods and maintaining the profits for themselves. This was obviously incredibly unpopular among Americans. They wanted their family members home. They wanted their ships back. They wanted to be paid for their goods. And Washington had sent an envoy over, that didn't go well. So, Adams sent a three-person commission over to France to try and come up with a diplomatic solution to these tensions. They were treated incredibly poorly. They were subject to harassment and really embarrassing demands for bribes and loans before they could even be recognized as American ministers. And ultimately, they were basically kicked out of the country.

When reports came back about that treatment, it became known as the XYZ Affair. XYZ stands for the three unofficial people that they were dealing with in France. And the subsequent period of time in which no war was declared, but these naval seizures were happening, is known as the Quasi-War.

Benjamin Wittes: All right. With that, let's get into the three areas that you identify. The first is who controls the government? Is it a Cabinet kind of committee that the president is the chair of, or is it the president? Now, if you're an originalist constitutional scholar, you say, look at the Constitution, the text says the president gets to appoint these people. The president implicitly, therefore, can fire these people and the president can demand opinions from them. So it's in the Constitution. Don't let historian, non-lawyers tell you that this had to be established. It's right there in the text. Why are they wrong? And what did have to be established first by Washington and then reinforced over the course of this period?

Lindsay Chervinsky: Well, very little of that is actually in the Constitution. It says that the president can make treaties and foreign appointments with the advice and consent of the Senate. But what does advice and consent mean? Does it mean that they actually get to be a part of the deliberations? Does it mean that they have become either a veto or rubber stamp? That was really one of the original questions that Washington had to grapple with. And he ultimately decided after actually meeting with the Senate to discuss with them a potential peace commission to send to meet with native nations, that the Senate was really annoying. And he really didn't want to have anything to do with them as advisors, and was going to submit treaties to them, but was not going to encourage them to participate in the deliberation process.

Benjamin Wittes: I believe he said after that meeting, that will never happen again.

Lindsay Chervinsky: That is correct. He never went back, and no president since has ever gone back, because even though the Senate, in 1789, when he first met with them, only 22 senators were seated. So in theory, it is a more reasonable number than trying to get advice from 100 people. But nonetheless, they were acting like legislators and they wanted to debate it in committee and sort of draw out the process. And he said, foreign policy demands immediate response and demands you debate it in front of me so I can get this information and then make a decision. So he excluded the Senate from the deliberation process.

That's the first piece about foreign policy. It doesn't say anything about the actual deliberations, the actual crafting of the policy. And so that was something that Washington basically just seized the ability to do and went about establishing what the goals would be for foreign policy. And like so many other things, when Congress tacitly accepted those things or approved the byproduct, whether they were trade arrangements or official treaties, they ceded that authority to Washington. They ceded that authority to the presidency.

The second piece, in terms of the department secretaries, there are only a couple of mentions of the executive departments in the Constitution. It says that they will exist, but it doesn't say what ones or how they're to be created or anything like that. And it says that the president can ask for written advice from them. The first federal Congress in the summer of 1789 actually crafted the first three departments, state, treasury, and war, and created the attorney general. But even they could not come to an agreement about how those positions would be removed. So they basically, in the legislation that created them, used passive voice to avoid making any sort of decision and to avoid having to say what they were going to do, and just said, if a secretary is removed, then the chief clerk would be in charge of the documents of that department. So acknowledging that removal can happen, but not actually explaining who has the authority to do so.

So that's just one example of all of the details of the presidency that actually have to be worked out in practice because Article Two is so incredibly short and often depend on who is making that decision for the first time and what is Congress' response and if Congress permits that action, then it starts to take on actual legal weight.

Benjamin Wittes: All right, so Washington establishes these precedents. The Adams Cabinet combined with the Senate in particular, really start challenging them within 24 hours of Washington leaving office. You know, Adams wants to send James Madison as a commissioner to, a peace commissioner to France. And his Cabinet makes clear that they are prepared to resign over this and thereby kneecap him. And so over the course of four years, how does he, he starts out, Jefferson is not wrong at the beginning to say, wow, he looks like he's the captive of his Cabinet, which he kind of was. But over the four years, he actually asserts presidential control over the Cabinet which was not something that Washington really ever had to do because it was just so assumed in the reverence that people had for him. So what's the broad arch story here? How does the president, how does the Adams presidency assert the power of the presidency over the Cabinet rather than remaining as the caged bird of the Cabinet?

Lindsay Chervinsky: He did so in a couple of ways. So the first was. In response to the threat of Quasi-War, Congress greatly expanded the U.S. Army, and most of the Cabinet members were, as we've discussed, were loyal to Alexander Hamilton and wanted to put Alexander Hamilton in charge of this army, and Adams basically said anyone else. Anyone else is fine. But he did not trust Hamilton. He felt that he was young and inexperienced at actual warfare, but also more importantly, he was a little bit deranged.

And so in response to that, those concerns that the Cabinet really wanted to put this person into power, Adams brought back George Washington and he asked him to serve as the Commander-in-Chief. And Washington agreed, although he said that he would remain at Mount Vernon unless he France actually invaded, which meant that the number two person was going to have the day to day governing. And through a series of machinations, the Cabinet worked with Washington, and I think kind of, in a little bit of a way, tricked Washington into boxing Adams into a corner, in which Washington threatened to resign unless Adams gave him Hamilton as his number two.

Adams had to agree because he could not have Washington resign, that would have destroyed his presidency. However, once that occurred, he had a very clear sense of what was happening. He had very clear sense of the loyalties of the Cabinet, of the dangers of this new army, which had become very political. And he came up with a bit of a strategy that used delay, obfuscation, and a pursuit of diplomacy to both pursue his goals and also undermine these threats. And so he did so in a couple of ways.

He remained at Quincy, Massachusetts. Most of the Cabinet were in Philadelphia or in Trenton, New Jersey, depending on whether or not they had to flee yellow fever. And he used that delay to slow roll the expansion of the Army in a way that he very clearly did not for the Navy. So in practice, what that looked like was any time Benjamin Stoddard, the new secretary of the navy, wanted to appoint someone to a position, Adams would have him send a blank commission and the name of the person and Adams would sign it immediately and send it back. With McHenry, who was the secretary of the war, he would make McHenry send him a list of the names. He would then sit on that letter for several days, if not a week, approve the names or disapprove as appropriate. Then make McHenry fill out the commissions and send them back to Quincy, sit on those for a while, then send those back, which meant that McHenry could not make an appointment without at least a month passing. And this made it very difficult.

Benjamin Wittes: And this was because, just to be clear, you actually do need the president's signature for the commission to work, right? This is something that you cannot delegate to, the secretary of war cannot delegate to himself. This president's signature is necessary for there to be a commission.

Lindsay Chervinsky: Yes, absolutely. So the Constitution, and this gets weird and fuzzy with Adams and Washington, because this is the only time this has really happened. The constitution says that the president is the commander-in-chief. While Washington was alive, in the minds of the American people, there were effectively two living presidents. And Washington's experience as the head of the Continental Army made it such that there was no way to have an army without him being involved. So you effectively had two commanders-in-chief. But legally, they needed to have Adams’ signature on the commissions in order to actually make it work, because at least in theory, Washington did report to Adams.

So they could not build out this army without Adams’ participation. And publicly, he said nothing against the Army, but privately, he understood that the arch-Federalists were trying to create basically a spoil system within this army to build out their own political infrastructure with the aim of eventually using it against domestic citizens and for domestic purposes, and he wanted no role in that.  Many of the arch-Federalists actually speculated at one point, why is the Navy going so much faster than the army? Is the president actually involved in this slow-roll process? But they couldn't prove it, because he never said anything outright. And at one point Adams did actually say to McHenry, don't make me choose, like, don't make me choose between the Army and the Navy. You know how I will vote.

Benjamin Wittes: This’s kind of government by passive aggression, right?

Lindsay Chervinsky: Yes.

Benjamin Wittes: It's like, you know, you guys want to seize power from me, but you need my signature on everything. There's no rule that says I have to do stuff quickly for you.

Lindsay Chervinsky: Yes. It's an amazing stall tactic that infuriates everyone involved with the Army but has a real tangible effect on the morale. Like it makes it very difficult for people to be excited about being in the Army when things are going so slow.

Benjamin Wittes: The other important element of this is that because the war with France doesn't materialize, the Navy still has a role, which is protecting U.S. shipping. But a buildup of a large domestic army that you in fact have no use for actually isn't, it doesn't turn out to be very significant in French calculations. And so you end up with this big power base in this quite large army, but there's nothing to do with it.

Lindsay Chervinsky: Yes, absolutely. And Adams's support for the Navy had been long documented. He was a good son of New England, where all the wood came from, most of the sailors came from, all the ships were built, a lot of the merchants were based, so he understood why a navy would be useful to help protect American trade.

It would also strengthen his hand in diplomacy. There's, I know you guys have a recent conversation with Max Boot about Reagan and Reagan had this term: peace through strength. So Adams had that same concept. He didn't use those words, but the idea was that if you have a really strong navy, it's going to make your diplomacy work better because you have demonstrated that you can defend yourself. And the Navy paid for itself in less than a year in terms of the insurance savings that it provided to the American people. So Adams supported the Navy, was very encouraging of the Navy. This demonstrated to Americans that they could defend their borders without this army. He slow rolled the Army.

And the third piece of it was that he pursued diplomacy avidly, even when much of the Cabinet did not. And he was able to do so because he had a series of, basically, informants in Europe that he had cultivated. One, and perhaps the most important of which, was his son, John Quincy Adams, who was the minister to Berlin. And they cultivated and encouraged others to report back to them about the status of what was happening in France and sent those reports directly to John Adams, not to the State Department, but directly to the president, such that he could see that there was this real tangible shift in the French government. And the real tangible shift meant that diplomacy would actually be possible.

And so once he had received assurances from the French government that the next round of envoys would be treated with more respect than in the XYZ Affair. He nominated a new envoy, William Vans Murray, who was the minister to, the minister at the Hague to be this new diplomat. And this was really one of the fighting points with the Cabinet and with Congress, because the Federalists recognized that additional diplomacy would undercut their army, and they did not want that. They wanted this war. And so members of the Senate met with members of the Cabinet and tried to figure out how they could scuttle this arrangement.

And there were real constitutional implications, in which Washington had actually warned about when he was president, which is that if the Senate rejects the location of a minister, not a minister itself, but rejects the location of a minister, which is what they were thinking about doing here, then they were inserting themselves in foreign policy in a way that would have major implications for future presidents. And so they had to think about if there was a Jeffersonian president in the future, or there was a Jeffersonian Senate in the future and a Federalist president, would they want that power arrangement to be the same? And ultimately they formed a compromise where Adams added a couple of other envoys and they agreed to the mission. And by agreeing to do so, they established that the president does have the right to make these appointments.

Benjamin Wittes: Yeah. So just for the Article Two afficionados here: the problem, you know, again, Article Two says he can appoint X, Y, and Z­­­— maybe I should use different letters— people with the advice and consent of the Senate. But it doesn't say whether in rejecting this nomination for this office, you're rejecting the person, or whether you're rejecting the fact that we should send a minister to Great Britain to do A, B, and C, right?

And again, that's just something that the text of the Constitution doesn't say, but it was really important to Washington and then John Adams to say, all right, I get to decide if I'm sending a minister to this country. You don't get to decide that. You get to decide whether the person is acceptable, not whether the project is acceptable. Again, something that had to be decided in the Washington administration and then reaffirmed in the Adams administration. All right, so we have slow-rolling, passive aggression, we have diplomacy, and then we also have the firing power. I'm just going to put a quarter in and let you go.

Lindsay Chervinsky: So after Adams establishes that he has the right to diplomacy, as he expected, the Army began to deteriorate, and many of the officers returned their commission. Many of the troops deserted because they felt that war would not happen. And that began to strengthen his hand vis-à-vis the Cabinet.

In the spring of 1800, the Federalist, sort of, leaders, you know, I've heard a lot today from American voters that they really wish that there was like this group that was in charge of selecting the nominees, like there's this like secret group that's going to somehow make decisions, but that's actually how it worked in 1800. There was like this group of Federalist leaders and a group of the Jeffersonian leaders, and they selected who their candidate was going to be. And they very grudgingly acknowledged that Adams would be the candidate again. And once he had that candidacy in hand, then he decided to make a number of changes in the Cabinet. He started with James McHenry, who was the secretary of war. Infuriatingly, he never wrote down why he started there. I suspect because everyone kind of knew that McHenry wasn't very good at his job and so it would be less objectionable to people.

Benjamin Wittes: He was kind of a dolt.

Lindsay Chervinsky: He was a dolt. He was apparently a very nice man. He just didn't have a whole lot of executive capacity. And so managing the details of this huge department, he just completely failed at it. So, Adams started off having this conversation with him. He ultimately requested the opportunity to resign, which was the gentlemen's way out, and what had happened in Washington's administration. And Adams said, yes, he resigned at the end of the month. He wrote up a long description of that conversation.

A couple days later, Adams sent a letter to Secretary of State Timothy Pickering and also offered him the opportunity to resign. So, despite the fact that they have not gotten along for three years, he offered him the gentleman's way out. And Pickering sent probably the snottiest letter that he had ever written back to the president, basically saying, no, I would like to keep the position through the end of your term. I could use the money and I'd really rather not. I don't know if he was calling Adams bluff, thinking that the president wouldn't do anything about it or thinking that the Senate wouldn't permit it. Whatever the reason, he miscalculated because basically, an hour later, John Adams sent a letter back saying you are hereby removed from office. And he had the locks changed on the secretary of state offices just to make sure that Pickering couldn't take all of the materials from his office. He then sent a replacement for that position, who was John Marshall.

Benjamin Wittes: So wait, so just pause on this because this is, it sounds like a routine thing, the president firing a Cabinet officer. It is not at this point, 11 years into the republic, a routine thing. And it is not without some controversy as to whether it's allowable.

Lindsay Chervinsky: Correct. So, the controversy emerges when Adams is sent in the replacement, because in theory, the Senate did not have a role to play, in theory, over him sending that letter to Pickering. It came to a head when Adams nominated the replacement. And this actually happened in other periods where this power has been contested. when he sent in the replacement, who was John Marshall, as secretary of state, the Senate deliberated whether or not to reject it. There is no evidence that they demanded that Adams replace Pickering in that position or put Pickering back in that position. But they worried that if they rejected Marshall, then Adams would appoint someone that they found even more objectionable.

And this question all centered on the fact that when the first federal Congress crafted these laws, there had been a very vibrant debate in Congress over what the replacement power or what the firing ability and the replacement power should look like. Some people have felt like the president has a sole power to appoint with the Senate's approval, the president should be able to remove with the Senate's approval. Others felt like the president should be able to remove at will because the president has to be able to trust the people he works with. Others just weren't really sure.

Benjamin Wittes: And just to be clear, that first position doesn't go away, right? That becomes the ultimately, the Tenure in Office Act in the Civil War, a post-Civil War period that gets, the violation of which gets Andrew Johnson impeached. It's really not until the 20th century that we kind of, come firmly as a governance structure to understand that removal follows ineluctably from appointment and that you can't put restrictions on the president's removal power, at least vis-à-vis principal officers.

Lindsay Chervinsky: Yes, that's absolutely right. So, and what's interesting about the Tenure of Office Act and the deliberations with Johnson, is when he fired Edwin Stanton, who was the secretary of war. And he fired Stanton because they disagreed over how to implement reconstruction policies in the South, the Senate, again, participated once he tried to appoint a replacement.

And that led to his impeachment, as you said. And it wasn't until a 1926 Supreme Court case, Myers v. the United States, where the Supreme Court basically said, yes, this is a constitutional right. The president has the right to remove people at will and to appoint a replacement, which the Senate can then reject, but they cannot object to the removal portion of that decision. And so that's really important for Adams because it was very much a theoretical power at the time, and had the Senate rejected it, then you would have had the type of executive by committee that the secretaries were really trying to implement.

Benjamin Wittes: All right. And so a big final component that you mention here is the use of presidential prerogative powers, particularly vis-à-vis the pardon. And again, these are matters for the 1790s nerds, you know, Hamilton is the great, you know, exponent of the pardon power. The benign power of the pardon prevents the justice system from, I think the language is adopting a countenance too sanguinary and cruel, right, is the-. But it's actually in the context of this, Hamilton is really not playing a constructive role, and what we think of as the pardon power is, the pardon power as first Washington and then Adams used it. So walk us through the role of the pardon in establishing the modern executive.

Lindsay Chervinsky: Well, boy, that's a big topic. So the pardon power as legal scholars will know, and I don't want to get out over my skis here, and I know that there are a lot of legal scholars who have devoted incredible knowledge and resources to the pardon power in the modern context.

But in Washington's administration, it was understood that this pardon power existed to show mercy, especially when either a decision had been wrongly held, or when someone had demonstrated contrition, when an example had already been made, and when that sort of act of clemency would be good for the American people more broadly. And Washington granted a number of pardons, although still a relatively small handful, based on today's numbers. But his main focus on the pardons were after the Whiskey Rebellion, in which a number of protesters in western Pennsylvania had objected to a whiskey excise tax on local distilleries. That protest had started off peacefully. Over a couple of years it became violent and it led to a confrontation between militias that Washington had called up, though critically he was not present, and these protesters, who fled.

Many of them were sentenced, some were sentenced to death, and he ultimately granted pardons because he, one, they had acknowledged wrongdoing, and they had acknowledged the supremacy of the Constitution and the federal government, and so made the appropriate apologies and acknowledgments of power. But two, for Washington, the enforcement of the whiskey excise tax was not about the money, it was about the principle that the federal government has the right to levy taxes, and then to enforce that collection. So once that principle had been established, once it had been enforced, it didn't matter if these couple of people were executed or not. It was sort of irrelevant. And Washington felt that he had the appropriate stature and had demonstrated significant toughness that he could then grant clemency in this particular way.

Benjamin Wittes: So why does this then, why doesn't that end the conversation? Why, like, why does the power need to be reasserted so shortly later?

Lindsay Chervinsky: Because no one else was Washington. And so that type of clemency, it was much more questionable when it wasn't someone who had such unquestionable authority and who had such unquestionable control over the federal government.

So in Adams administration, there was a small skirmish that was known as the Fries’s Rebellion. Rebellion is really an exaggeration of this event. It was a small handful of protesters, again, in Pennsylvania. This time protesting a new tax that was put on dwellings and property. It was not violent. No one was killed. No property was destroyed. Although in the crushing of said rebellion, one cow was killed. That was the only fatality. And the judicial proceedings in which these people were tried were very extreme. The way a lot of the judges instructed the jury, the way that they manage the proceedings today, would not hold up under current judicial code. There was no judicial code like that at the time.

And Adams worried that these judicial proceedings would craft a definition of treason that was overly broad. Basically any one poor choice, any time in which someone protested acts of government, it would be defined as treason.mSo he ultimately, over the objection and over the recommendation of all of his Cabinet secretaries, did grant pardons to all of those who were convicted of treason in this moment, believing that it had been a judicial malpractice and that they deserved clemency because they had demonstrated the appropriate sorrow for these actions. And it meant that other presidents could also use the pardon power. It meant that you didn't need to have stature just like Washington to assert that type of authority, even if other people really disagreed with you.

Benjamin Wittes: And again, the originalist would say, wait a minute, the pardon power is sitting there right in the Constitution. It says, John Adams has the pardon power. It didn't need to be reinforced. He used it just as his predecessor has, but it's just there. Why are they wrong? What is the argument that actually this was a power that the use of which needed to be established and legitimized?

Lindsay Chervinsky: So much of executive authority, especially, depends on interpretation, especially judicial interpretation.

So today, for example, when people discuss possible limitations to the pardon power or possible reforms to the pardon power, the conversation centers on what the Supreme Court has upheld as the pardon power, not what the Constitution says about the pardon power, but what the Supreme Court has determined are the limits or the lack of limits on the pardon power. And that is true of many other elements of executive powers. It's not what the Constitution says. It's how it's been interpreted.

And so Washington had one interpretation, but it was untested. It was unquestioned. Adams had a similar interpretation, and what he demonstrated is that interpretation can stand even when the Cabinet secretaries disagree. If the Supreme Court had challenged that, if Congress had challenged that, there might have been a different interpretation. But instead, he started to build up the practice that this is indeed one of the president's most unilateral authorities. And that practice takes decades, if not centuries, to build up the type of power and institutional weight that we attribute it to today.

Benjamin Wittes: So what was the alternative possibility? Adams wants to do this, the Cabinet opposes it, the Congress, there was a lot of opposition in Congress, and you know, so if something, if it had gone the other way, what would the pushback, what did the pushback look like? And what was the threat?

Lindsay Chervinsky: The secretaries that had disagreed with it had given their opinions in writing ahead of time. They could have published those, and Congress could have opened an investigation into whether the decision had been made inappropriately. The attorney general, who at the time did not have a Department of Justice, was really more of a constitutional advisor to the president and to the federal government, could have brought forward a case challenging those pardons. And then it would have been very interesting to see what the Supreme Court, which was stacked with Federalists at the time, including some very intense arch-Federalists, how they might have responded to the president's pardon. Now, I'm getting into some really funky hypotheticals here, because obviously this didn't happen and we don't know what they would say, but it is a possibility because he was the first to do it that wasn’t Washington.

Benjamin Wittes: Yeah, I think this is a really important point. There are so many things about the U.S. government structure, that there was a huge range of possibility of what they could have been. And we take these early founding era precedents, which in fact created path dependencies, and we don't think about, we assume that they are inevitable, because the path dependencies feel so built in. And they're not inevitable, right? It's not inevitable that advice, in advice and consent, is meaningless. And it's not inevitable that, you know, having power of all pardons includes when your Cabinet secretary is viscerally object and when you piss off Congress, right? Like you could imagine a lot of systems that are different from that.

I want to ask you about one other area that is super important to Lawfare readers and listeners, and probably I suspect you're not going to get asked in any other interview that you do on this book, which is I was really fascinated by the push and pull of executive privilege in diplomatic consideration. So, the first peace commission the, which leads to the XYZ Affair, there is this elaborate dance between Adams and the Jeffersonians in Congress in particular. They're trying to embarrass him because they believe that the reports of the diplomats are going to show that he's bent on war with France. And of course, they show something completely different, which is that he's there with very reasonable, modest proposals for U.S.-French relations, and the French government is saying, we won't even meet with you unless you pay big bribes. Right? And so it's kind of radically different.

So the data is super favorable to him, but he's got a real equity in secrecy, which is that he doesn't know that his commissioners are out of the country yet, and he doesn't want them to get guillotined. And so he wants it out there, but he wants to delay to make sure that he has, gives them time to get out of dodge. And so what he does is this, I think, remarkable assertion of executive privilege, which is, hey, I'm going to give you all this stuff, but I'm not going to do it right now. And the result is this, I think, super modern struggle between, you know, the executive and legislative branch over sensitive diplomatic information. And ironically, I think the results of it are very similar to the results of, say, the Zelenskyy-Trump phone call where, you know, okay, we have the right not to give it to you, but we'll give it to you, you know, in the right context, right?

So talk us through that. Is there anything similar in the Washington administration where there are, I know there is, you know, kind of executive confidentiality in the military context with some of the Indian Wars. But there's here you have, you know, it's diplomatic, and they're basically asserting a temporary executive privilege over it. Your thoughts?

Lindsay Chervinsky: So, Washington's context was really useful to Adams in this case. Washington had first considered using executive privilege in 1792 when Congress created a committee to investigate the very embarrassing defeat of Arthur St. Clair's army out west against native nations. Ultimately, they decided not to assert executive privilege because they didn't feel that it would harm, basically what we would consider to be national security. But they made it very clear that the request for information had to go to the president, not to the department secretaries themselves, and basically made Congress reword its request before Washington said yes. And then he did, and he complied with several committees over the next several years.

In 1796, when the House was debating the Jay Treaty. And the House was debating the Jay Treaty because under the terms of the treaty, it had to raise funds for one of the terms of the committee, and so it inserted itself into this process and many of the Jeffersonians in the House hated this treaty. And so, they thought that if they could get a hold of the instructions Washington had given to Jay and the deliberations then it would demonstrate that again, they had not been negotiating in good faith. And they could embarrass the administration such that it would scuttle the treaty.

So they requested all of the executive papers pertaining to the treaty in March of 1796, and Washington asserted executive privilege for the first time. He didn't use those words, as you know, Dwight Eisenhower was the first to actually use that phrase. But he wrote a letter to the House on March 30^th, 1796, basically saying, for national security reasons, diplomacy requires a certain expectation of secrecy. Otherwise, other nations will not engage with us in good faith. They have to be able to debate in privacy. So, I will not be handing over these documents. However, and he drew two really important distinctions.

The first was: if this was an impeachment proceeding, then I would hand over the documents because that is a higher level of congressional oversight than just a regular congressional committee. Second, he then said, I was at the Constitutional Convention. I was there when we were deciding how foreign policy was made. The House has no role in foreign policy. You're trying to assert yourself in the Constitution in an inappropriate way. And if you don't believe me, I have the journals from the Constitutional Convention in the Department of State offices and you're welcome to come look at them.  So it's the ultimate like Washington mic drop moment. But because of the power of his prestige, the House backed down and acceded to his assertion of executive authority, did not get the papers, and ultimately did approve the treaty.

Several years later, when Adams was in the presidency, he basically does the same thing. He says I need more time and then I will get you the information. But critically, the difference was Adams actually really wanted that information out there, whereas Washington did not. And so, what I think is really amazing about the evidence that demonstrates these behind the scenes conversations was that Adams was, again, sort of slow-playing this process to give his diplomats time to get out of France, but working with the Federalists to get them to encourage the Jeffersonians to up their demands. The Federalists knew exactly what were in the papers, the Jeffersonians did not. And so they basically made the Jeffersonians look like fools, because when they demanded and they demanded, and they demanded these papers, and finally Adams turned them over, then it really embarrassed the Jeffersonians.

It made them look like they, didn't know anything, could not be trusted on foreign policy, and it really rebounded to Adams great success. It made him, it was the most popular moment in his presidency. And I think that if he had just turned them over, it would have appeared to have been maybe making political hay out of this diplomatic situation. But because he was complying with the Jeffersonians’ requests, which he had basically engineered, it made him look like he was just complying with Congressional oversight. And so, he sort of was using executive privilege to delay the process, but it was interesting that he used it for very partisan purposes and almost a 180 of what Washington was trying to do.

Benjamin Wittes: Right. I mean, he used it both to delay, but also to heighten dramatic tension and excite people's expectations about what it would be, in order to then prove them wrong.

Lindsay Chervinsky: Yes. And you're righ, I don't think anyone else will ask me that because no one else has.

Benjamin Wittes: Yeah, it's just, it's a very Lawfare specific question. One thing that I was struck by in reading your book, and I'm going to close with this and just give you a chance to sort of wrap up on this question, is the degree to which the assertion of these precedents that become very important for our sense of what the executive is all have their roots in the need to manage this pincer action that's waged against him by truly crazy, I mean, Federalists, who were really quite nuts and the rabidness of the Jeffersonians, which, you know, you know, I love my James Madison as much as the next guy. Bbut they were bad actors in this situation, and so he's caught between them.

He's the only sane person in the United States and in this context, he makes his mistakes. But he's really, you know, he actually did a remarkable service in this presidency, which was. keeping us out of a war with France without forcing us into the hands of the British. And by the way, the evidence of that is that Jefferson, after rabidly campaigning against him, by the end of the Madison administration, the Jeffersonians had become the Federalists, right? They adopted all their policies. But it seems to me that the specific areas that you're talking about really emerge out of this problem of being wedged between these two forces of people who are driven crazy by the 1790s.

And I'm, like, wondering if we should think of, you know, the idea of the independent presidency that has all these powers that are not seizable by the Cabinet and that are ultimately unilaterally formable, usable by the president, is really a creature of, emerges from this process of different institutions in this period trying to capture the presidency and kind of turn it into a figurehead for their respective positions.

Lindsay Chervinsky: I think it is a product of two forces. The first is the federal government was, as you said, only 11 years old. And the presidency had been dominant in the first eight years, but there was a question of whether that dominance was personality-based or institution-based. And so, I think you're right. There was a push by members of Congress to seize some of that authority when someone like Washington was no longer in that position, or at least to heighten the position of Congress vis-à-vis the presidency, whereas what, the presidency had really been supreme for the first eight years. And so there was an attempt to try and make it a little bit more equal.

The second big force was the rise of intense partisanship. And at this point, the country was far enough removed from the end of the Revolutionary War that the fear of an external enemy had receded somewhat. And instead, what had taken its place, was these two parties with these two different visions of what the future of the nation should be. And they had become convinced that the other was a mortal threat to their vision. And because the parties were weak and partisanship was so intense, the most rabid forces in that, in each party, tended to take over. And so, Adams was faced with trying to protect the institutions from those partisan forces that were attempting to put their own partisan needs, their own political goals above the Constitution. I define this in the book as civic virtue, of putting the Constitution above your own personal interests, and a number of people do exhibit it, especially towards the end of Adams’ presidency. But I think that he does, for the most part, for the duration of his presidency, recognizing that it's really not about him. It's about the office, it's about the Constitution, and it's about the future of the republic.

Benjamin Wittes: We are going to leave it there. Lindsay Chervinsky, it's a terrific book. Congratulations on it. The book is “Making the Presidency, John Adams and the Precedents that Forged the Republic.” Thank you so much for joining us today.

Lindsay Chervinsky: Thank you so much for having me. This was really fun.

Benjamin Wittes: The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad-free versions of this and other Lawfare podcasts by becoming a material supporter of Lawfare using our website, lawfaremedia.org/support. You'll also get access to special events and other content available only to our supporters. Have you rated and reviewed the Lawfare Podcast? If not, please do so wherever you get your podcasts and look out for our other podcasts. This podcast is edited by Jen Patja. Our theme song is from Alibi Music. As always, thank you for listening.