So, what happened in 1794? Did President George Washington use “irregular” or secret back channels to negotiate a treaty with Great Britain? Was it comparable to the Ukraine scandal today?
In 1794, Washington was about halfway through his second term as president. Although the Revolutionary War against the British Empire had ended more than a decade earlier, tensions between the two countries festered, threatening to spill over into another war.
First, the British continued to occupy forts in northwest territories that they had agreed to leave at the end of the Revolutionary War. Plus, the British had placed strict trade rules and high tariffs on American goods, while at the same time flooding the U.S. market with British goods.
Most critically, the British navy was engaging in something called “impressment,” which means they were capturing American ships, stealing the supplies and forcing the sailors to join the British navy. At the time, the British were at war with France, a conflict in which the United States was trying to remain neutral. The British justified their actions by saying the neutral vessels were going to help their enemies.
These actions threatened to spill over into a new war. Secretary of State Thomas Jefferson, who had spent five years in France, sided with the French. But Treasury Secretary Alexander Hamilton was sympathetic to the British, and he convinced Washington that negotiating a treaty with them would be better for U.S. economic interests.
Washington sent Supreme Court Chief Justice John Jay, who was also pro-British. Jay had few bargaining chips, and Hamilton didn’t exactly help. Jay threatened that the U.S. could join in a neutrality pact with Denmark and Sweden; Hamilton secretly told British officials the administration wasn’t actually serious about that.
Unsurprisingly, the resulting treaty was not great. Great Britain agreed to vacate the forts they had already agreed to vacate previously; granted the United States “most-favored nation” status; and agreed to compensate the United States for goods bound for France but not to stop seizing ships.
The treaty was “immensely unpopular with the American public,” according to the State Department’s Office of the Historian. In 1795, the Senate passed it 20-10, and Washington signed the treaty. Jay resigned from the court.
So what does this have to do with the Ukraine scandal? Good question!
Washington sent Jay to negotiate a deal on behalf of U.S. interests — the interest being not getting into a war. Nunes failed to mention that the current impeachment inquiry is looking into whether Trump was trying to negotiate a deal not for U.S. interests but for his own political gain.
While it would be highly irregular for a president to send a Supreme Court justice to negotiate a treaty today, it is critical to remember that during Washington’s presidency, there was no “regular.” Everything he did was the first time a president had done something. Sometimes that worked out well, and sometimes it did not. In fact, at the time, the Supreme Court had heard only a few cases and had yet to establish the concept of judicial review.
Of course, shoehorning history, and specifically Washington, into current political debates is not an activity confined to the Republican Party.
In 2018, many progressives quoted Washington calling the United States “an asylum to the persecuted” to attack Trump’s crackdown on Latin American asylum seekers. At the time, historian Jill Lepore told The Washington Post it was not an apt use of Washington, because his understanding of “asylum” was utterly different from how we understand it today as a formalized process.
Lastly, Washington and the United States paid a price for the treaty. The controversy was so bitter that it solidified the nascent political parties, one against the other. Washington saw the Federalists and the Democratic-Republicans as a threat to the unity of the young country, which he warned about in his Farewell Address of 1796:
“One of the expedients of party to acquire influence within particular districts is to misrepresent the opinions and aims of other districts. You cannot shield yourselves too much against the jealousies and heartburnings which spring from these misrepresentations; they tend to render alien to each other those who ought to be bound together by fraternal affection.”
As an example, he cited the Jay treaty.