Ex-Presidencies of Laws, Not Men

In order to establish what should be done with ex-presidents, we need to identify the problem we want to solve. There seem to be three possibilities. In the first instance, we may worry that we are wasting valuable wisdom and experience. Robert Hardesty, an aide to President Lyndon Johnson, argued that former presidents in the United States are “a squandered national resource” and lamented that “in a single day’s time we turn our backs on a lifetime of training and knowledge and experience and public esteem and political know-how.”[i] Obviously Hardesty, and presumably his erstwhile boss, thought there is, or should be, a productive role for former presidents.

A second possible problem was identified some years earlier when, addressing the same question, former president William Howard Taft wryly proposed “a dose of chloroform” as a means to protect his countrymen “from the troublesome fear that the occupant [of the nation’s highest office] could ever come back.” Moreover, he pointed out, this would also relieve the former president himself of “the burden of thinking how he is to support himself and his family, fix his place in history, and enable the public to pass on to new men and new measures.”[ii] Taft evidently thought former presidents were as much a liability as an asset, to both their families and the public.

Finally, we may not care about the former presidents themselves at all: what we are concerned about is the office they just vacated. The Former Presidents Act of 1958, which for the first time provided a pension and other expenses for erstwhile occupants of the White House, was enacted to “maintain the dignity” of the Office of the President. The previous year, the Senate committee that recommended underwriting these costs opined that “we expect a former President to engage in no business or occupation which would demean the office he has held or capitalize upon it in any improper way.”[iii] This seems to be the problem Jeffrey Paul Musgrave is principally concerned to address. He wants his ex-presidents to “be on their best behavior” because the “current post-presidential institutions and norms post real problems for U.S. governance.”

I think Musgrave is correct in this focus. Sympathetic as I am with Hardesty’s view of the talents of most American presidents, in general their estimates of their contributions after they leave office are exaggerated. George Washington may have been the first, but he was certainly not the last former president to be dragged into unbecoming partisan politics after he left office, and the opportunities for mischief seem quite high. Whatever you may think of the merits of his efforts, Jimmy Carter’s “freelance diplomacy” in in Korea, Iraq, and elsewhere irritated both Presidents Bush as well as President Clinton.[iv] At the same time, Taft may have been a bit alarmist about the dangers former presidents pose; after all, chloroform would have deprived us of both his service as Chief Justice of the Supreme Court after he left the White House and Herbert Hoover’s able post-war administration of several commissions for Harry Truman after World War II.

This combination of admiration and trepidation with which we view former presidents has been expressed in repeated proposals to create an institutionalized role that would simultaneously honor and shackle them. William Jennings Bryan suggested that all former presidents become ex-officio members of the Senate, to which Taft himself responded, “if I must go and disappear into oblivion, I prefer to go by the chloroform…method. Its pleasanter and less drawn out.”[v] Nonetheless, proposals to designate former presidents in the United States as honorary members of Congress go back at least to 1916 when a bill was introduced to create permanent House seat for former presidents. Beginning in 1944 and for the next nineteen years in succession, members of both the House and the Senate each year introduced similar legislation, and even Truman thought a non-voting seat might be a good idea.[vi] In 1988, the historian Daniel Boorstin suggested that “our living former presidents could provide a core of a new national council, a House of Experience.” Musgrave’s proposal that there be a “bench of Presidents Emeriti” echoes that proposal, providing generous benefits in return for surrendering opportunities to indulge in further politics or commerce. Gerald Ford was more diplomatic than Taft in dismissing Boorstin’s scheme, asking “What should former presidents do? It is my personal opinion that we cannot and should not define a rigid role for former presidents. We are all different and I think that will be the case in the future.” [vii]

Ford was obviously correct about the variety of his counterparts, as his successors bear out, and I think Musgrave’s proposal does not represent such an improvement over Boorstin’s that it merits a different fate. While some might have been content with membership in a “House of Experience” or “bench of Presidents Emeriti,” given what young-ish former presidents can make over a lifetime in lecture fees, book advances and consulting deals, it is hard to imagine the American taxpayer being willing to underwrite emoluments sufficient to compensate for the loss of those opportunities. Moreover, the possibility of chairing blue- ribbon commissions or ceremonially representing the United States abroad hardly seems adequate compensation for giving up the chance to insult or undermine one’s successor, a time-honored American tradition.

So perhaps the question should not be a matter of how to promote or restrict ex-presidents after they have left office—almost inevitably our efforts to create general rules would be contaminated by recent examples—but how to preserve the dignity of the Office of the President itself. After all, institutions rather than people—or as the founders put it, a government of laws, not of men[viii]—are the cornerstone of democracy. Like the designers of the Former Presidents Act, we should focus on incentives for kinds of behavior we wish to discourage in the occupants of the office.

From this vantage point, Musgrave’s proposal that we abolish, or at least substantially reduce, the presidential library and foundation system seems very well-taken; fund-raising to preserve a legacy while still in office (when, presumably, the legacy in question is still under construction) is indeed unseemly, and potentially corrupting—and preserving the papers and artifacts of presidents does seem like a suitable obligation for American taxpayers.

What other provisions might shore up an office that seems to need an infusion of the dignity that, as Musgrave persuasively argues, its founders brought to it naturally? An ex post facto truth commission, while providing sensational grist for American presidential historians, seems unlikely to add gravitas to the office. Since, pace my civics schoolbooks, all American presidents seem to have been human, I am not sure revelation of otherwise hidden peccadillos, mistakes, or shortcomings should be routinized so quickly into our assessment of the choices we have made of people to lead us. Obviously, criminal wrong-doing should be established and revealed when and where it exists, but there seem to be adequate mechanisms in the existing legal arrangements.

It might, however, make sense to establish new thresholds for those who seek the office—a sort of preemptory dignity check. Perhaps all candidates should be required, as opposed to expected, to reveal their tax returns. Perhaps they should be obliged to make public the results of a thorough medical examination by a team of non-partisan physicians. Moreover, with two-earner and multigenerational households becoming the norm, social media proliferating, and wealthy businessmen increasingly “crossing over” into political careers, perhaps additional detail about the terms and conditions of the Office of the President would be worthwhile. The scope of the emoluments clauses could be updated[ix]; the terms and conditions governing use of private email, Twitter, and other social media accounts clarified; the rights and obligations of the president’s immediate family members specified.

After all, the character of our ex-presidents will never be better than the quality of our presidents. Those of us concerned with the roles and responsibilities of ex-presidents should pay attention to our “raw material”—the presidents themselves—as well as to the circumstances in which they might thrive, and we might benefit, when they leave office. And we should keep in mind that it is preservation of the strength and dignity of the office itself that matters most.

Notes


[i] Robert, L. Hardesty “With Lyndon Johnson in Texas: A Memoir of the Post-presidential Years,” in Richard Norton Smith and Timothy Walch, Farewell to the Chief: Former Presidents in American Public Life, Worland, Wyoming: High Plains Publishing CO., 1990), 95

[ii] Richard Norton Smith and Timothy Walch, eds. “Introduction,” Farewell to the Chief: Former Presidents in American Public Life, Worland, Wyoming: High Plains Publishing CO., 1990), p. xi

[iii] John Whiteclay Chambers, “Presidents Emeritus,” American Heritage, June/July 1979, 30:4https://www.americanheritage.com/presidents-emeritus?page=5#4; “Former Presidents: Pensions, Office Allowances, and Other Federal Benefits,” August 22, 2008 – March 16, 2016

https://www.everycrsreport.com/reports/RL34631.html

[iv] Douglas Brinkley, “Clintons and Carters Don’t Mix,” The New York Times Aug. 28, 1996,

https://www.nytimes.com/1996/08/28/opinion/clintons-and-carters-don-t-mix.html; “Rice criticizes Carter for having met Hamas.” The New York Times, April 22, 2008.https://www.nytimes.com/2008/04/22/world/africa/22iht-mideast.4.12240861.html; Frank Gaffney, Jr, “Presidency: Ex-Presidents Who Don’t Know When to Shut Up,” 2002 https://historynewsnetwork.org/article/730

[v] Smith and Walch, 1990, op. cit., xi

[vi] Walch, Timothy, Walch, “Former Presidents in American Public Life: A Guide to Further Reading and Research;” Lewis Gould, Lewis, “’Big Bill’ and ‘Silent Cal:’ William Howard Taft and Calvin Coolidge as Former Presidents;” and McCoy, Donald R. “’Be Yourself:’ Harry S. Truman as a Former President,” in Richard Norton Smith and Timothy Walch, Farewell to the Chief: Former Presidents in American Public Life, op. cit., 16, 56, 191

[vii] Daniel J. Boorstin, “Saving a National Resource: An Address on the Role of Former Presidents in American Public Life; ”and Gerald R. Ford, “Personal Reflections on My Experiences as a Former President, in Smith and Walch op. cit, 143, 149, 173

[viii] C. Bradley Thompson, ed., The Revolutionary Writings of John Adams, “Novanglus; or, A History of the Dispute with America, from Its Origin, in 1754, to the Present Time” (Indianapolis: Liberty Fund, 2000)

[ix] “The Emoluments Clauses and the Presidency: Background and Recent Developments,” November 5, 2019

https://crsreports.congress.gov/product/pdf/R/R45992

Also from this issue

Lead Essay

  • Paul Musgrave argues that both formal laws and informal norms shape an ex-president’s obligations and opportunities. Not only that, but a sitting president’s expectations about their future will shape their behaviors while they serve. Musgrave recommends several measures both formal and informal that he argues would lessen the influence and the dangers that ex-presidents can present.

Response Essays

  • Lori Cox Han characterizes the norms governing former presidents as mostly informal. Under them, modern ex-presidents have pursued a wide variety of activities. Regarding the newest member of the club, she writes, “The many things that made Donald Trump unique as a candidate and president… are exactly the things that will drive his post-presidential years.” She predicts that we may see renewed attention to post-presidential ethics, and perhaps new formal restrictions on former presidents’ behavior.

  • Lisa Anderson writes that the integrity of the institution of the presidency is the most important consideration in crafting our rules and norms for ex-presidents. She agrees that presidential libraries and foundations should likely be abolished, among other reforms. She closes by recommending a set of new disclosure requirements for presidential candidates, writing, “the character of our ex-presidents will never be better than the quality of our presidents.”

  • Prof. Andrew Rudalevige invokes Machiavelli to discuss the institution of the former president. Those who have served are likely to be motivated by the judgment of posterity, and that judgment should be used to keep them acting in honorable and useful ways. To that end, presidential recordkeeping should be reformed and centralized, aiding scholars in their work while limiting former presidents’ powers to hide documents from public view.