Gov. Jay Inslee of Washington has accused President Trump of supporting “illegal and dangerous acts” during the Covid-19 crisis. As a free society, our country should indeed discuss constitutional abuses of power during times of national emergency.
After World War I, for example, the Supreme Court, in Schenck v. United States, argued that restrictions on free speech were justified during wartime. But where should the line be drawn? Has President Donald Trump, by encouraging governors to close much of the American economy, gone too far? Is the Constitution in jeopardy?
If we compare President Trump’s actions with those of President Franklin Roosevelt during World War II, we can see a stark contrast in how these two men approached civil liberties during a national emergency.
FDR: The Original Surveillance President
President Roosevelt stomped like a herd of elephants on the civil liberties of foes, and sometimes friends, before and during World War II. This was especially true in the areas of wiretapping, income tax audits, and the internment of loyal Japanese-Americans.
In December 1939, the Supreme Court in Nardone v. United States barred federal officials from using wiretaps in law enforcement. Robert Jackson, who became attorney general one month later, therefore ordered an end to wiretaps for gathering evidence.
Roosevelt was upset with this ruling and tried to get Congress to pass a law endorsing limited wiretaps in national defense. When that failed, Roosevelt told Jackson the Supreme Court surely did not want to stop wiretaps if the nation were in danger. He ordered Jackson to wiretap “persons suspected of subversive activities against the Government of the United States.”
Jackson reluctantly complied. Then Roosevelt added potential political enemies to his list, and political friends as well. In 1940 Roosevelt instructed the FBI to surveille former President Herbert Hoover. Next came an FBI investigation of Wendell Willkie, who was FDR’s Republican opponent in the 1940 presidential election.
Republican reporters were special targets for wiretaps. Robert McCormick, editor of the Chicago Tribune, which opposed FDR, earned a wiretap and a tax audit. At the Chicago Tribune, reporter Walter Trohan deplored Roosevelt’s constant wiretaps. As he later wrote, the “taps continued on my home [and office] throughout the war. There was seldom a dull moment for me. All of my better news sources knew of the wiretaps, so we had to arrange outside meetings for transmission of news.”
Roosevelt easily slid down a slippery slope from wiretapping German sympathizers, to Republican foes, and eventually to personal friends. In the last case, Roosevelt approached J. Edgar Hoover, head of the FBI, with the request: “I want you to tap [James] Farley’s wire.”
Farley was the president’s postmaster general and distributor of Democratic patronage. FDR became suspicious of him, so Hoover complied indirectly by wiretapping Raymond Tucker. Tucker was editor of the Hartford Courant, and sometimes talked with Farley on the phone.
Later Roosevelt secured wiretaps on his vice president, Henry Wallace; one of his closest political allies, Harry Hopkins; and even his wife Eleanor. The wartime emergency, Roosevelt believed, allowed him wide latitude to violate Nardone v. United States.
Roosevelt Also Abused IRS Powers
In some ways, Roosevelt’s misuse of the Internal Revenue Service for political purposes was more dangerous than his illegal wiretapping. Elliott Roosevelt, the president’s son, sadly observed that his father “may have been the originator of the concept of employing the IRS as a weapon of political retribution.”
Charles Lindbergh, for example, was both wiretapped and audited after he publicly opposed Roosevelt’s foreign policy. When asked about the IRS, Lindbergh told reporters he regularly overpaid his taxes because he was proud to be an American. Thus, the audit on him came to naught.
The president had more success with an audit of Moses Annenberg, editor of the Philadelphia Inquirer, the leading Republican newspaper in the swing state of Pennsylvania. Annenberg went to prison for tax evasion. Next was the wiretapping and IRS audit of John L. Lewis, head of the United Mine Workers, who led his miners on a national strike in 1943. But alas for Roosevelt, Lewis’s taxes were in order.
FDR had a different standard when friends had tax problems. During the war, the IRS stumbled on the fraudulent tax returns of Rep. Lyndon Johnson, a close political ally of the president. At Johnson’s desperate urging, Roosevelt intervened with the IRS in 1944 to shut down the investigation.
Rep. Hamilton Fish often opposed FDR’s foreign policy, yet he won reelection regularly from the president’s home district in New York. Fish therefore received both wiretaps and annual tax audits during the war.
“You might ask,” Fish said, “why I didn’t complain to [House] Speaker [Sam] Rayburn when I found out that my wires were being tapped. There is a simple answer. He would have told me there was nothing I could do about it.” In today’s terms, the Deep State was doing the president’s dirty work.
William C. Sullivan, an FBI agent, seems to confirm Fish’s view. Years after the war, Sullivan said, “Electronic devices were used freely all through World War II, with a minimum of controls. President Roosevelt made requests of various kinds.”
Japanese-Americans Get Hauled Into Camps
The most blatant violation of civil liberties was FDR’s internment of almost 120,000 Japanese-Americans. Japan’s heinous attack on Pearl Harbor naturally exposed those Americans of Japanese descent to special scrutiny. But Roosevelt knew from his wide surveillance network that almost all Japanese-Americans were loyal citizens.
In fact, Hoover told FDR from the start that Japanese-Americans were overwhelmingly loyal. He should have known. His agents broke into Japanese consular offices and grabbed a summary they found of Japan’s spy system in the United States. In 1943, Hoover sent Roosevelt a 480-page report on the subject and advocated “individual” treatment of Japanese-Americans, but Roosevelt refused to end internment.
Now Compare This to Trump’s Actions
What about President Trump’s record on civil liberties during the current Covid-19 emergency? Compared with FDR, President Trump’s actions, as far as we can see them, seem to be more restrained, popular, and guided by expert scientists. He doesn’t wiretap Democratic governors; he phones them to discuss options. No Democrat has yet complained of a targeted IRS audit. Those with coronavirus are quarantined, not relocated to internment camps.
On the use of the military, President Trump has been measured, mainly using the Army, Navy, and National Guard to build emergency hospitals. By contrast, on 16 occasions during World War II, FDR ordered the Army to seize private property.
With private enterprise, President Trump has urged many CEOs to make masks and ventilators, but he prods them mainly with praise and cash. True, he used the old Defense Production Act to force General Motors to make ventilators, and compelled Puritan Medical Products to make swabs, but such intrusions have not been frequent.
As President Trump stated last month, “You know, we’re a country not based on nationalizing our business. Call a person over in Venezuela, ask them how did nationalization of their businesses work out? Not too well.”
Finally, the president has suggested some states can now reopen their economies in phases, but, despite some early bluster, he is leaving the specifics to governors and mayors, not to federal edicts. The coronavirus emergency will indeed change life in the United States in many ways, but our constitutional liberties seem to be intact.