Politicizing Prosecution: An Origin Story
Even if Donald Trump is correct that the prosecutions against him are a partisan attack, it is not the first and likely not the last. How did it get started?
Determining what constitutes a partisan (as opposed to a political) prosecution is challenging. Motivations are a tricky thing to discern. The line between policy, ideology, and partisanship are not only blurry but sometimes overlap. Sometimes policy and ideology can serve as a pretext for a more partisan prosecution. This last circumstance arose in the first partisan prosecutions. Those prosecutions occured between 1798 and 1800 when Federalist President John Adams and his administration used a newly enacted Sedition law to prosecute Republicans who criticized the government.
Today, much of our partisan division results from differing interpretations of the Constitution. This was also the case, believe it or not, in the 1790s just after the Constitution was ratified. Federalists supported a broad interpretation of the Constitution that gave the executive and the Federal government implied authorities. Within a few years a counter interpretation emerged. Led by Thomas Jefferson and James Madison, the Republican interpretation focused on a strict and narrow reading of the Constitution giving the Federal government only the powers assigned to it by the Constitution. The chasm first emerged on the national scene over Treasury Secretary Alexander Hamilton’s proposal for a Bank of the United States. Jefferson’s faction opposed this because chartering a national bank was not among the powers given to Congress. Hamilton’s view prevailed and predominated during the 1790s.
The partisan divide intensified as the decade progressed and the United States became more entangled in foreign affairs. In the battles for European dominance, the Federalists supported the British, who were the main trading partner for the United States. Naturally, the Republicans favored the French. With the Federalists predominating in Congress and in possession of the presidency, relations with France deteriorated. This led to a quasi-war which threated to become a full-scale war.
Coinciding with the quasi war with France was the rise of the print media. Each faction had their own newspaper that promoted the faction’s views. Stories appearing in one paper would be re-printed and then circulated by other newspapers. Thus, one person’s opinion about the government’s policy regarding France could be circulated around the country within a month. Many of the most vocal writers opposed the Adams Administration’s French policy. For its part, the Adams Administration perceived this criticism as a threat to national security.
To address this threat, Federalists in Congress passed numerous pieces of legislation, including a Sedition Act. While sedition was a common law offense, there was debate about whether the federal government had authority to prosecute common law crimes. Making sedition a statutory offense alleviated this potential problem.
When the law passed in July of 1798, the federal government wasted no time enforcing it. Secretary of State Timothy Pickering scoured Philadelphia’s Republican newspaper as it re-printed anything critical of the government. Pickering then identified the originating Republican newspaper and sent instructions to the relevant United States Attorney to initiate a prosecution if the attorney believed it to violate the law. Nearly all instructions went to the two most loyal Federalist prosecutors, William Rawle of Pennsylvania and Richard Harison of New York. In some instances, President Adams himself used Pickering to deliver prosecution instructions. In one instance, apparently unfamiliar with Rawle’s political leanings, vented to Pickering that if Rawle did not prosecute he was not performing his duty.
Federalist-leaning judges also played a significant role in sedition enforcement. They would instruct grand juries to read the local newspapers and identifying any potential seditious writings. This led to indictments against Republican newspaper editors and a Republican member of Congress.
From its inception, the Sedition law had a partisan political purpose. Though justified as necessary for national security, it was used as a means to silence Republican critics. Pickering’s instructions focused on the publishers. The goal was to shutter the newspapers. Once the offending Republican newspaper stopped publishing, Adams extended a pardon to the convicted publisher. This shows how the Adams Administration sought to silence its critics more than punish the law’s offenders.
Resistance to the Sedition Act’s enforcement also reveals its partisan purpose. In southern states, which were more supportive of the Republican faction, both federal prosecutors and grand juries refused to act on alleged seditious publications. In Maryland, the United States Attorney delayed seeking an indictment that Pickering ordered pursued. The delay led to the grand jury’s refusal to indict. In Delaware, when a Federalist-leaning judge asked the grand jury and the federal prosecutor to bring forth seditious writings, both reported that none could be located despite multiple prominent Republican newspapers in the state. No cases were pursued in North Carolina, South Carolina or Georgia. Nor does it appear anyone attempted to pursue charges.
The law and its enforcement was designed to supress Republican dissent to Federalist policy. It effectively forced several Republican newspapers in northern states to close. Yet its ultimate consequence was to strengthen the Republican opposition. The partisan nature of the prosecutions provided Republicans with a rallying point. By electing more Republicans, they could end the partisan prosecutions. This is precisely what happened. Thomas Jefferson became president and Republicans gained control over Congress. The Republican party would remain in power until 1829. The Federalist party would never again play a prominent role in national politics.
The story of the Adams Administration using federal criminal prosecution as a partisan tool reveals both the ease with which it can occur and the potenital unintended consequences. In the short term, the partisan prosecutions shuttered Republican newpapapers. Yet it cannot be said that the short-term benefit outweighed the long-term costs. By enacting and enforcing a partisan law, the Federalist faction lost its relevance. This should serve as a cautionary tale for those who seek to politicize the Justice Department for partisan purposes.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!