No one (should be) above the law

Welcome back to The Long Version, a newsletter by Jonathan M. Katz.

I’ve been trying to get back to doing this newsletter after my surprise absence, but two things keep interfering. One is that I’m also trying to get back to work on my book on Smedley Butler and the origins of U.S. imperialism. The other is that, whenever I find a few hours to do a newsletter, the impeachment hearings of our absurdly corrupt president seem to come on.

Today, though, there was a little moment of kismet where both of those distractions came together. Arguing for holding Trump accountable, Prof. Michael Gerhardt, a constitutional law scholar at the University of North Carolina, dragged out a quote from the godfather of American empire himself, Teddy Roosevelt:

“No man is above the law and no man is below it; nor do we ask any man’s permission when we require him to obey it. Obedience to the law is demanded as a right; not asked as a favor.”

It’s a fine quote, crafted in TR’s trademark style: direct, pithy, with ample semicolons. But thanks to my book research, I happen to know a little bit about the irony of the context in which he gave it—context which, if you’ll go with me on a little side trip, could tell us something about the imperial expansion of presidential power, and how it’s come home to roost in the Trump era.

The Long Version

The quote shows up in Roosevelt’s third state of the union address. He was one of the last presidents to give the annual address to Congress in writing, and unlike today (when the SOTU is usually delivered in January) he sent it at the end of the year, on December 7, 1903.

It appears at the very top, in which Roosevelt bragged about the establishment of his new Department of Commerce and Labor. That department, later split into two, also included an investigative arm that later became the Federal Trade Commission. In effect, he was saying that both corporations and newly ascendant labor unions would be held accountable under his administration. Fair enough.

In fact, that might not have been the most relevant part of the speech to today’s hearing, which centered on President Trump’s attempted extraction of personal favors from Ukraine’s government in exchange for military aid. Roosevelt also addressed corruption specifically. “There can be no crime more serious than bribery,” Roosevelt wrote. “Other offenses violate one law while corruption strikes at the foundation of all law … Government of the people, by the people, for the people will perish from the face of the earth if bribery is tolerated.”

The irony is what Roosevelt had done the month before he delivered those pious words. For years, he had been trying to find a place in Central America to build a transoceanic canal, connecting the Atlantic to the Pacific, and facilitating U.S. expansion and trade. He had been convinced by a group of businessmen, headed by one of the first Wall Street law firms, Sullivan & Cromwell, to choose a route the clique owned on the Colombian isthmus of Panama.

But Colombia refused to agree to Roosevelt’s terms. So on November 3, 1903, a U.S. warship steamed into the harbor of Colón, on the Atlantic side of Panama, and set off a revolution.

This had all been meticulously planned in advance, with a skill that would make Rudy Giuliani salivate. American intermediaries had gone to Panama to meet with a group of elite merchants who supported the canal. Sullivan & Cromwell’s agents had planted stories in Joseph Pulitzer’s New York World ahead of time to make the revolution sound inevitable—predicting it to the day. With U.S. Marines rushing ashore to keep Colombian forces at bay, the Panamanian conspirators bribed the Colombian Army regiment in Panama City to defect.

The U.S. immediately recognized the new Republic of Panama. The conspirators turned leaders in turn granted the United States effective sovereignty over what would be called the Canal Zone.

When Roosevelt asked his attorney general, Philander Knox, to prepare a memo laying out the legal justification for all this, he supposedly replied: “Mr. President, I think it would be better to keep your action free from any taint of legality.”

‘In the interest … of the whole civilized world’

Roosevelt devoted half of his 1903 state of the union to the Panama affair, blustering and outright lying to Congress. He omitted any mention of U.S. involvement, and cast a niche effort involving a few wealthy Panamanians as a widespread social movement, in which “the people of Panama” supposedly “rose literally as one man.”

After he left the presidency, Roosevelt would come clean—bragging that he had outfoxed not only Colombia but the legislative branch of the U.S. government. “I took the Isthmus, started the canal and then left Congress not to debate the canal, but to debate me.” In 1921, the Senate formally apologized to Colombia, and made a $25 million payment in restitution. By that point, the U.S. had the Panama Canal, and with it was on its way to becoming the world’s richest and most powerful superpower.

Scholars see the seizure of the Panama Canal as a signal episode not only in U.S. imperialism but in the creation of the imperial presidency. The hypocrisy was astounding. Roosevelt had used shady corporate ties to conduct foreign policy while demanding corporations show “obedience to the law.” He called bribery the most serious crime imaginable, weeks after bribery won him his signature foreign policy achievement. And he set a precedent for all presidents who followed by doing an end-run around Congress, then sending a message to them lying about it.

Trump’s crimes differ from Roosevelt’s in some important respects. Roosevelt helped Panamanians break Colombian law, and might have broken international law if someone had been around to enforce it, but doesn’t seem to have run afoul of any U.S. laws. He lied to Congress, but he didn’t obstruct its Article I powers to investigate him. And while he plainly interfered in multiple other countries, he did not invite them to interfere inside the United States. Trump, by contrast, has done both.

Contrary to what many people on the internet believe, hypocrisy doesn’t invalidate an argument. Roosevelt was right: No one is above the law and no one is below it. And democracy and corruption are incompatible. Roosevelt should have been held responsible for what he did in Panama. Violating another country’s sovereignty should not be tolerated, any more than we should tolerate when someone else violates ours.

For way too long, U.S. leaders have given speeches about democracy and the rule of law without respecting it elsewhere. Those who cant about hypocrisy at the exclusion of everything else have enabled a president who seems to violate it everywhere, every day. The end of the Trump era should mark the beginning of a move in the other direction.

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Jonathan M. Katz is a freelance journalist and author. His next book, Gangsters of Capitalism, traces the origins and contradictions of America’s empire. Follow him on Twitter @KatzOnEarth.