Following the mass shooting at Pulse nightclub in Orlando, presumptive Republican presidential nominee and celebrity businessman Donald Trump repeatedly implied that President Barack Obama might be more sympathetic to Islamic State goals than protecting the American people. Those comments prompted some analysis of Trump’s rhetorical habit of launching political attacks by insinuation. In addition, a number of recent articles have noted the 1980s mentorship Trump enjoyed from Roy Cohn, who served as the notorious congressional inquisitor for Sen. Joseph P. McCarthy (R-Wisc.) during the Second Red Scare. Meanwhile, during the week after the shooting, Newt Gingrich, who is reportedly being considered as Trump’s vice presidential nominee, suggested it is time to reconstitute a House Un-American Activities Committee (HUAC).

The ghosts of McCarthyism rattle their chains in 2016.

Nostalgia for either the goals or tactics of the McCarthy era should give us great pause. It was a period of paranoia and divisiveness fueled by congressional investigations that violated due process, trampled civil liberties, and stifled political dissent. Below, I offer some historical context to the current debate that should serve as a reminder of why McCarthyism is such a discredited chapter in American history. 

Attack by Insinuation

First, Trump launched his attack on the President’s motives. As the Washington Post reported:

“Look, we’re led by a man that either is not tough, not smart, or he’s got something else in mind,” Trump said in a lengthy interview on Fox News early Monday morning. “And the something else in mind — you know, people can’t believe it. People cannot, they cannot believe that President Obama is acting the way he acts and can’t even mention the words ‘radical Islamic terrorism.’ There’s something going on. It’s inconceivable. There’s something going on.”

In that same interview, Trump was asked to explain why he called for Obama to resign in light of the shooting and he answered, in part: “He doesn’t get it or he gets it better than anybody understands — it’s one or the other, and either one is unacceptable.” …

During an appearance on the “Today” show later Monday morning, Savannah Guthrie pushed Trump to explain what he meant in the earlier interview.

“Well there are a lot of people that think maybe he doesn’t want to get it,” Trump said. “A lot of people think maybe he doesn’t want to know about it. I happen to think that he just doesn’t know what he’s doing, but there are many people that think maybe he doesn’t want to get it. He doesn’t want to see what’s really happening. And that could be.”

Eric Levitz provides a helpful exegesis of Trump’s comments. Passive-aggressiveness is one of the hallmarks of this type of rhetorical attack. Trump is able to assert that the President “doesn’t want to get it” but when pressed on the outrageous assertion that the President of the United States is a traitor, Trump can suggest he doesn’t believe that, just that “a lot of people” do. It represents the worst of the politics of insinuation. Seth Meyers did a humorous takedown of Trump’s post-Orlando comments that accurately concluded Trump’s “vague innuendo” appeals to the “vague outer fringes while avoiding accountability.” Trump has deployed these tactics on other topics, including his insinuations that:

  • Ted Cruz’s father was involved in the assassination of President John F. Kennedy. (“I mean, what was he doing — what was he doing with Lee Harvey Oswald shortly before the death? Before the shooting?”)
  • Cruz is ineligible to run for President because he was born in Canada. (“I’d hate to see something like that get in his way. But a lot of people are talking about it and I know that even some states are looking at it very strongly, the fact that he was born in Canada and he has had a double passport.”)
  • President Obama’s birth certificate is a fake. (“An ‘extremely credible source’ has called my office and told me that @BarackObama’s birth certificate is a fraud.”)

In each of these statements, Trump fails to take ownership of the attack. For each, Trump can avoid responsibility by hiding behind a question mark, “a lot of people” or a “source.” That was a lesson Trump learned at the feet of Roy Cohn, McCarthy’s infamous counsel, whose relationship with and mentorship of Trump has been well-documented of late (see here, here, here, and here).

Accusations of “Un-American” Behavior

Meanwhile, addressing the threat presented by Islamic State-inspired terrorism, Gingrich said:

Let me go a step further, because remember, San Bernardino, Fort Hood, and Orlando involve American citizens. We’re going to ultimately declare a war on Islamic supremacists and we’re going to say, if you pledge allegiance to ISIS, you are a traitor and you have lost your citizenship. And we’re going take much tougher positions. In the late 1930s, President Franklin Roosevelt was faced with Nazi penetration in the United States. We originally created the House Un-American Activities Committee to go after Nazis. We passed several laws in 1938 and 1939 to go after Nazis and we made it illegal to help the Nazis. We’re going to presently have to go take the similar steps here. [Emphasis added.]

Gingrich’s comment appeared timed to amplify Trump’s Manchurian candidate attack on President Obama.

Gingrich is correct that the HUAC was formed as a select committee in 1938 to investigate domestic fascist influences in light of the Nazi threat. It became a permanent standing committee in 1945. Even the House of Representatives characterizes the HUAC in negative terms, noting that under Chairman Martin Dies, Jr. (D-Tex.) “it rapidly became a soapbox from which New Deal programs were denounced and real and imagined communist subversives were routed out.” It concludes: “At the height of the Cold War rivalry between the United States and Soviet Union, HUAC’s influence soared and contributed to a climate of domestic fear stoked by its sensational and often unsubstantiated investigations.”

On the Senate side, in 1953–54, McCarthy chaired the Permanent Subcommittee on Investigations (PSI), then a subcommittee of the Committee on Government Operations. PSI was “given custody of the jurisdiction of the former Special Committee to Investigate the National Defense Program (the so-called ‘War Investigating Committee’ or ‘Truman Committee’), chaired by then-Senator Harry S. Truman during the Second World War.” Truman’s role on that committee helped him rise to prominence on his path to becoming Vice President on Franklin Delano Roosevelt’s ticket.

That legacy is ironic given Truman’s repeated expressions of distaste for Red Scare congressional investigative tactics. In 1948, Truman warned against “an atmosphere in which no man feels safe against the public airing of unfounded rumors, gossip, and vilification.” Truman explicitly called that atmosphere “the most un-American thing we have to contend with today.” Truman’s comments were understood as a rebuke of HUAC Chairman J. Parnell Thomas’s public pronouncement that he had “a great amount of testimony” on the alleged un-American activities of one Arthur Adams.

A US Senate historical account provides a sense of the acrimony generated by McCarthy’s accusations and tactics:

What began as colorful soon became contentious. When Republicans returned to the Majority in the Senate in 1953, Wisconsin’s junior Senator, Joseph R. McCarthy, became the Subcommittee’s Chairman. Two years earlier, as Ranking Minority Member, Senator McCarthy had arranged for another Republican Senator, Margaret Chase Smith of Maine, to be removed from the Subcommittee. Senator Smith’s offense, in Senator McCarthy’s eyes, was her issuance of a “Declaration of Conscience” repudiating those who made unfounded charges and used character assassination against their political opponents. Although Senator Smith had carefully declined to name any specific offender, her remarks were universally recognized as criticism of Senator McCarthy’s accusations that communists had infiltrated the State Department and other government agencies. Senator McCarthy retaliated by engineering Senator Smith’s removal from the Subcommittee, replacing her with the newly-elected Senator from California, Richard M. Nixon.

Upon becoming Subcommittee Chairman, Senator McCarthy staged a series of highly publicized anti-communist investigations, culminating in an inquiry into communism within the U.S. Army, which became known as the Army-McCarthy hearings. During the latter portion of these hearings, in which the parent Committee examined the Wisconsin Senator’s attacks on the Army, Senator McCarthy recused himself, leaving South Dakota Senator Karl Mundt to serve as Acting Chairman of the Subcommittee. Gavel-to-gavel television coverage of the hearings helped turn the tide against Senator McCarthy by raising public concern about his treatment of witnesses and cavalier use of evidence. In December 1954, in fact, the Senate censured Senator McCarthy for unbecoming conduct. In the following year, the Subcommittee adopted new rules of procedure that better protected the rights of witnesses. The Subcommittee also strengthened the rules ensuring the right of both parties on the Subcommittee to appoint staff, initiate and approve investigations, and review all information in the Subcommittee’s possession.

The moment most associated with the end of McCarthy’s influence came during Army-McCarthy hearings when McCarthy objected to the grilling of Cohn and assailed the reputation of one of the Army’s young lawyers. The Army’s chief counsel Joseph N. Welch famously responded, “Have you no sense of decency, sir?” (The Senate has now published the entire set of transcripts of the McCarthy hearings, including the closed sessions.)

HUAC, McCarthy, and other congressional inquiries during that period gave rise to litigation testing congressional investigative power and processes, although the courts were loath to intervene in Article I processes. In 1953, the Supreme Court noted, in United States v. Rumely, “there is wide concern, both in and out of Congress, over some aspects of the exercise of congressional power of investigation.” I discuss many of these cases, as well as judicial reticence to adequately protect due process interests, in my law review article Congressional Due Process. Congress still does not do enough to ensure that procedural safeguards are honored in its investigations, but the McCarthy era represented its nadir.

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Congressional investigations are an implied element of the Constitution’s grant of legislative power to Congress in Article I. The power of legislative inquiry is also essential to checks and balances in the operation of the American scheme of separation of powers. But Trump’s rhetorical tactics and Gingrich’s proposal to reconstitute HUAC conjure up a bygone and discredited era of congressional investigative abuse. McCarthyism needs to remain in history’s graveyard.