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2017-2018 Issue III Editors' Picks National Opinion

“That Constitution will be no more!”: Trump, Jefferson, and Presidential Challenges to the Judiciary

“They ought to look into Judge Curiel because what Judge Curiel is doing is a total disgrace. Okay?” declared then-presidential-candidate Donald Trump at a June 1, 2016 campaign rally.

Trump insisted that Curiel was unqualified to preside over a fraud case against Trump University, because “He’s a Mexican. We’re building a wall between here and Mexico.” (Curiel was born in Indiana.)

Since becoming president, Trump has continued his attacks on the judiciary. He frequently takes to Twitter to abuse the judges who block his policies, a strategy he has deployed in his efforts to win judicial approval of his travel ban.

Trump’s diatribes against individual judges are one-of-a-kind, but presidential conflict with the judiciary is not new.

Donald Trump and Thomas Jefferson are, in temperament, experience, and belief, entirely different. Jefferson is honored at Mount Rushmore as one of America’s greatest Presidents; Trump, most would agree, is unlikely to join him. But, like Trump, Jefferson waged a war with the judiciary during his presidency and sought to control the outcome of court cases by attacking individual judges.

There are also parallels in the opposition responses to each president’s feuds with the judiciary. Like today’s Democrats, the turn-of-the-nineteenth century Federalists were a minority in both houses of Congress under Jefferson. They tried to counter the president’s attacks by using the press to warn that his actions threatened the principle of judicial independence.

When he entered office in 1801, Jefferson and his Republicans had firm control of the White House and Congress. But the departing Federalists had packed the courts full of their partisans, and Jefferson immediately came under pressure from his supporters to replace Federalist judges with Republicans.

Jefferson struck the first blow on February 4, 1803, when he asked the House of Representatives to impeach New Hampshire District Court Judge John Pickering. While Trump called for someone to “look into Judge Curiel,” the Republicans went further: They compiled a series of detailed charges against the Federalist judge, alleging that he had committed high crimes and misdemeanors during his tenure that warranted removal from his office.

What followed was a curious proceeding. Pickering, the Federalists argued, was indeed insane and an alcoholic, but these were not impeachable offenses.

The Litchfield Monitor published an article admitting that Judge Pickering “was unfortunately bereft of his reason,” but maintained that his trial was “the most cruel, unfeeling and savage instance of persecution, that has ever been witnessed among a civilized people.”

The Republicans, uncomfortable with treating insanity as impeachable, argued that Pickering was sane and had knowingly committed legal indiscretions. Although the proceedings were contentious, Jefferson and the Republicans ultimately managed to convict Pickering and remove him from office.

Immediately following the ruling, the Republicans impeached their next target: Supreme Court Justice Samuel Chase. Unlike Pickering, Chase was fit for office, but he was notoriously pro-Federalist. He was impeached on charges that amounted to procedural errors from when he was serving as a trial judge. Federalists viewed the impeachment as a partisan affair and suspected that if Chase were to be convicted, the Republicans would quickly move to impeach Chief Justice John Marshall.

Throughout these two proceedings, the opposition Federalists stressed that impeaching individual judges on political grounds was abhorrent to the Constitution and judicial independence. Because they were a minority in Congress, the Federalists took to the press to make their case.

In an essay series published in the New-York Evening Post in 1801, Alexander Hamilton declared “that Constitution will be no more!” He added that Jefferson’s assault on the judicial system were “the prelude perhaps of calamities to this country, at the contemplation of which imagination shudders!”

The Federalists believed that they would only be able to to protect the judiciary if they could alarm Americans and make them believe that the Constitution was under threat.

The Columbian Centinel argued in 1804 that with the impeachment of Justice Chase, Jefferson “has annihilated the main pillar of the constitution, the only effectual check to arbitrary and tyrannical conduct.”

The strategy worked. Americans followed the Chase impeachment en masse and the proceedings in the Senate became a public spectacle. In the end, Chase was acquitted, but just barely. A majority of Senators voted against him on three of the articles of impeachment, but because a handful of Republicans had abstained from the vote, the Republicans could not reach the required two-thirds threshold. Chase’s trial helped to solidify the principle of judicial independence. If just a few votes had been flipped, though, the trial’s legacy would have been very different.

Today’s Democrats are a far-cry from the Federalists, and President Trump is no Jefferson. But Trump’s attacks on judges who oppose his political agenda echo Jefferson’s efforts to mold the judiciary, and Democrats’ proclamations by Democrats in the press about threats to judicial independence echo the rhetoric used by Federalists.

Liberal outlets lambaste President Trump for interfering with the courts and Department of Justice investigations. Some writers take it a step further, as former Secretary of Labor Robert Reich LAW’ 73 did when he wrote that Trump’s attacks on the judiciary are “another ground for impeachment.” Others publications call for Americans to protect the “independent judiciary” and warn that President Trump has “declared war on the judiciary.” A political cartoon in the New York Times, titled “Trump vs. the Judges,” shows an angry President Trump with a sledgehammer in hand confronting a judge.

But today’s proclamations about the threats to judicial independence lack the edge that characterized Federalist rhetoric. When the New York Times runs a satirical cartoon that shows Trump asking whether Guantanamo has room for “bad judges,” it is criticizing the President for having the gall to threaten the centuries-old precedent of judicial independence. You would be hardpressed to find a serious political commentator who believes that President Trump’s attacks will fundamentally reshape America’s political institutions. The relationship between the judiciary and the executive is not up in the air in the same way that it was in Jefferson’s time.

Trump’s actions may have precedents, but Jefferson’s intrusions into the judicial system were repudiated and proved politically damaging. Even before judicial independence was solidly established in American politics, attacks by the White House on individual judges were seen as distasteful and unpopular. If America could survive Jefferson and the Republicans’ assault on the judicial system, it can overcome Trump’s Twitter rants.