Do past mistakes justify new ones? Some supporters of President Donald Trump‘s Administration are pointing to historical illegalities to justify the current ones.
They should consider the “two wrongs fallacy” that reminds us that two wrongs don’t make a right. Indeed, Americans have historically rejected lawless behavior and, indeed, so have the law breakers some are pointing to.
First on the list is usually President Andrew Jackson. Trump is obsessed with Jackson—his defiance of norms, his 100 duels, his populism, and ostensibly his willingness to ignore the law to get what he wanted. Legend has it that Jackson refused to subordinate himself to the Supreme Court about what was legal and what was illegal.
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But Jackson didn’t challenge the supremacy of the Supreme Court on legal questions. Yes, he failed to enforce the Court’s ruling about Indian claims in Georgia, but he later declared in a proclamation that the Supreme Court had the ultimate power to decide constitutional questions and declared the chief justice he clashed with, John Marshall, a national hero when Marshall passed away.
If Jackson had strayed from his duty to the rule of law, he later realized it was wrong and repented. This wrong is thus poor precedent for Trump justifying his own wrongs by invoking Jackson and echoing words attributed to the Emperor Napoleon Bonaparte that, “a man who saves his country breaks no law.”
But didn’t President Abraham Lincoln ignore the law, too? After all, the Supreme Court declared he was holding suspected rebels without arrest warrants and ignoring writs of habeas corpus seeking their release. Again, true, but not true enough.
The issue was whether the Congress or the president could suspend the writ as provided in the Constitution during a time of rebellion. The Court held that only Congress had the power. Lincoln wrongly didn’t act on the ruling. But, like Jackson, he too backtracked. In 1863 the Congress his party controlled voted to authorize him to suspend habeas corpus as the court required. Why else but in recognition of his mistake would Lincoln ultimately do what the Supreme Court ordered?
After all, Lincoln loved the law. At 28 he declared: “Let reverence for the laws, be breathed by every American mother, to the lisping babe, that prattles on her lap…let it become the political religion of the nation.” Lincoln may have been wrong once but, like Jackson, he knew it and wouldn’t want us to make the same mistakes.
President Richard Nixon once said that “when the president does it, it’s not illegal.” And it’s true, Nixon believed that presidents could boldly circumvent the law to help friends and punish enemies. But his wrong can’t possibly justify Trump’s wrongs. The Supreme Court rejected his claims about presidential prerogatives and Nixon ultimately became a catalyst for reforms and the poster boy for what not to do with the presidency
And, yes, like the others, Nixon admitted he was wrong. First by resigning his office and second through statements before his death that he had failed the American people with his wrongdoing. It was Nixon who when nominated for president in 1968 hailed this country as “the nation with the greatest tradition of the rule of law.” No. Not even Nixon echoed the language we have heard from Trump and his admirers.
Finally, let’s come to President Joe Biden. Did he ignore the Supreme Court ruling on student debt? Did he refuse to enforce immigration laws? Aren’t these examples of lawlessness? Well, no and no. Biden ignored neither thing. Instead, when the Court struck down his attempt to cancel student loan debt, he tried to create a new plan that would work around the ruling under a different law. As for immigration, you might well think he could have been stronger, but Biden in his last year deported people at a faster rate than Trump did at the beginning of his term in 2025.
When it actually happens, presidential lawlessness has rightly been called out in American history. The lesson isn’t to commit more of it. Instead, its infrequency, the admissions of wrongdoing, and our historical repudiation of it tells us something far more vital: Americans want a government of laws not men.
Thomas G. Moukawsher is a former Connecticut complex litigation judge and a former co-chair of the American Bar Association Committee on Employee Benefits. He is the author of the new book, The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It.
The views expressed in this article are the writer’s own.