Nashville Bar Journal | February/March 2020 by Nashville Bar Association

FEBRUARY/MARCH 2020 | VOLUME 20 | NO. 1

FEATURE

Impeachment!

ALSO

The Presidents of Tennessee Presidential Inability and Invocation of the 25th Amendment George Washington, The Founding Member

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JOURNAL 6 Journal Journal FEBRUARY/MARCH 2020 | VOLUME 20 | NO. 1

FE ATU R E

Impeachment! Ramona P. Salvo

DEPA R TM E N TS

From the President

Calendar of Events

The Presidents of Tennessee 13 Emma Elliott & Brandon Smith

Hear Ye, Hear Ye

23 Presidential Inability and Invocation of the 25th

Laura Baker

A Look Ahead Jack Norman, Sr. Award Law Day Lunch Liberty Bell Award Trivia Night YLD Mock Trial YLD Race Judicata

17 Photo Gallery 32 Hearsay 34 100% Club 36

CLE Schedule

Amendment

Eleanor K. Wetzel

27 George Washington, The Founding Member

Denty Cheatham

CO L UMNS

Background Check 11 Bart Pickett Gadget of the Month 15 Bill Ramsey & Phillip Hampton Capitol Notes 21 Peggy Sue, the Beagle Hound

FEB/MAR 2020 | NASHVILLE BAR JOURNAL

JOURNAL JOURNAL FROM THE PRESIDENT Leadership & Legacy | Laura Baker Journal The Pulitzer prize winning musical Hamilton has Journal taken Nashville by storm since it opened in December

LAURA BAKER, Publisher

WILLIAM T. RAMSEY, Editor-in-Chief

CAROLINE E. SAPP, Managing Editor LAUREN POOLE, Managing Editor

JILL PRESLEY, Layout/Design/Production

EDITORIAL COMMITTEE KIMBERLY CLARK EMMA ELLIOTT TIM ISHII KELLY FREY ROB MARTIN OLIVIA PARK BRUCE PHILLIPS BART PICKETT SYDNEY RAINES BRANDON SMITH KRISTIN THOMAS JONATHAN WARDLE CRAIG WEBB ELEANOR WETZEL NASHVILLE BAR JOURNAL (ISSN1548-7113) (USPS 021-962) is published bi-monthly by the Nashville Bar Association, 150 4th Ave N, Ste 1050, Nashville, TN 37219. Periodicals Postage Paid at Nashville TN. POSTMASTER: Send address changes to Nashville Bar Journal, 150 4th Ave N, Ste 1050, Nashville, TN 37219-2419. No part of this publication may be reprinted without written permission of the Nashville Bar Journal Editorial Committee. All articles, letters, and editorials contained in this publication represent the views of the authors and do not necessarily reflect the opinions of the Nashville Bar Association. For more information, visit NashvilleBar.org/NashvilleBarJournal. The Nashville Bar Journal welcomes discourse. You may submit counterpoint editorials to Jill.Presley@ nashvillebar.org to be considered by the editorial committee for publication in a future print or online content. NASHVILLE BAR ASSOCIATION 150 4th Ave N, Ste 1050 Nashville, TN 37219 615-242-9272 | NashvilleBar.org The Nashville Bar Association, established in 1831, is a professional organization serving the legal community of Nashville, Tennessee. Our mission is to improve the practice of law through education, service, and fellowship The NBA—with 2,500+ members—is the largest metropolitan bar association in Tennessee.

2019. I saw it for the first time in Chicago and again at TPAC. Embedded in the story and lyrics are powerful messages about leadership and legacy. In honor of Presidents Day, which celebrates George Washington’s birthday, I want to share some wisdom and inspiration that lawyers can take from the musical about Washington’s right-hand man, the Ten-Dollar Founding Father, Alexander Hamilton. “For once in your life, take a stand with pride” A running theme throughout is Aaron Burr’s reticence to take a position, which is contrasted with Hamilton’s outspoken views. Burr is always waiting to see how the wind blows, and Hamilton is portrayed as uncompromising in his beliefs. Both styles have flaws. While it is important for leaders to be comfortable with the discomfort that comes from having an unpopular viewpoint, leaders must also be open to other ideas and opinions. However, a leader who is not willing to stand up for her beliefs is not a leader at all. “History Has Its Eyes on You” Hamilton is eager to take a command in the Revolution and pleads with Washington for the shot. Finally relenting, Washington recounts his first command and leading his men into a massacre witnessing their deaths firsthand. He describes his shame for his mistakes and how he still loses sleep. Washington says to Hamilton: “I know that greatness lies in you. But remember from here on in History has its eyes on you.” It is difficult to live with the consequences of our mistakes, especially when they are devastating to someone else. Lawyers are all too familiar with the pressure of knowing we will be judged for our mistakes and that people are relying on us to solve important, potentially life-altering, problems. This causes serious stress, but the weight of our responsibility as lawyers can be a guiding force in being thoughtful and diligent advocates. “Take a Break” Hamilton is portrayed as a workaholic who refuses to break away from his work. His wife, Eliza, urges him to “take a break” to spend time with his family. Lawyers undoubtedly benefit from time away. We should all take a cue from Eliza and take breaks from the demands of law practice to rest, rejuvenate, and spend time with loved ones. We are better lawyers when we take care of ourselves. Clients benefit when their lawyers are focused and unfrazzled. “The World Was Wide Enough” After killing Hamilton in the infamous duel, Aaron Burr knows history will paint him as a villain. He laments: “I should’ve known the world was wide enough for both Hamilton and me.” In a single shot, Burr changed his legacy and is remembered most for killing Alexander Hamilton. Law practice is naturally competitive work. It’s easy to get caught up in keeping score, and can be hard to avoid holding a grudge when we lose. These lyrics remind us that how we choose to respond to defeat can have a greater impact on our reputations than winning. In the words of the iconic song “My Shot,” don’t throw away your shot to seize every moment and create a life and legacy for which you can be proud.

NASHVILLE BAR JOURNAL | FEB/MAR 2020

NashvilleBar.org/ Calendar of Events | Full calendar online at NashvilleBar.org.

FEBRUARY 2020 M O N D AY

T U E S D AY

W E D N E S D AY

NBF Leadership Forum Steering Committee Mtg | 4:00pm

T H U R S D AY

F R I D AY

Bankruptcy Court Committee Mtg 12:00pm | Customs House

Dial-A-Lawyer | 6:00-8:00pm

3 NBF Trustees Meeting | 12:00pm

Lawyers + Lattes 8:30am | Birch Building

LAW Board Mtg | 11:30am

Historical Committee Mtg 11:30am | Hal Hardin’s Office

11 Ethics Committee Mtg | 12:00pm

PRESIDENTS’ DAY

NALS Mtg | 12:00pm

M O N D AY

T U E S D AY

W E D N E S D AY

NBA Board Mtg | 11:30am

13 NBJ Editorial Committee Mtg 12:00pm | Neal & Harwell

MARCH 2020

6 Collegiality Coffee 10:30am | Historic Courthouse

Memorial Service Committee Mtg 12:00pm

NBA Happy Hour: Trivia Edition 5:30pm | Sea Salt

Holiday | NBA Office Closed

YLD Happy Hour 5:30pm | Black Rabbit

14 Davidson County High School Mock Trial Competition 4:00pm | Historic Courthouse

Diversity Committee Mtg | 12:00pm Finance/Executive Committee Mtg 4:00pm/4:45pm

T H U R S D AY

F R I D AY Diversity Summit 2020 3:00pm | Belmont University

Bankruptcy Court Committee Mtg 12:00pm | Customs House

Dial-A-Lawyer | 6:00-8:00pm

LAW Board Mtg | 11:30am

Historical Committee Mtg 11:30am | Hal Hardin’s Office

NBF Trustees Meeting | 12:00pm

NALS Mtg | 12:00-1:00pm

9 Ethics Committee Mtg | 12:00pm

YLD Board Mtg 12:00pm | Waller

Memorial Service Committee Mtg 12:00pm

Diversity Committee Mtg | 12:00pm Finance/Executive Committee Mtg 4:00pm/4:45pm

YLD Happy Hour 5:30pm | pH

23 NBF Leadership Forum Steering Committee Mtg | 4:00pm

31 FEB/MAR 2020 | NASHVILLE BAR JOURNAL

JOURNAL JOURNAL Journal Journal

Hear Ye, Hear Ye |

Events of Interest

2020 NBA BOARD OF DIRECTORS LAURA BAKER, President

MICHAEL ABELOW, President-Elect

BRANT PHILLIPS, First Vice President TRACY KANE, Second Vice President BART PICKETT, Secretary JEFF ALLEN, Treasurer

JUSTIN CAMPBELL, Assistant Treasurer GILBERT SCHUETTE, YLD President LELA HOLLABAUGH, General Counsel LAURA SMITH, Immediate Past President LYNNE INGRAM, First Vice President-Elect DANIEL BEREXA, Second Vice President-Elect HON. MELISSA BLACKBURN BRIGID CARPENTER RAQUEL L. EVE OLUYEMO LORA BARKENBUS FOX MARY TAYLOR GALLAGHER JEFF GIBSON WILLIAM “PAZ” HAYNES MARTESHA JOHNSON HON. ELLEN HOBBS LYLE JUNAID ODUBEKO LIZ SITGREAVES ERIC SMITH DARKENYA WALLER LUTHER WRIGHT, JR. HON. BILL YOUNG GULAM ZADE STEPHEN ZRALEK

NBA Happy Hour: The Trivia Edition

Join us for our annual Trivia Night Happy Hour on Tuesday, February 18, at Sea Salt in downtown Nashville. Registration is at 5:30pm and the games begin at 6:00pm. We’ll provide food and drinks—compliments of Huseby—and fun times with your attorney friends and colleagues. RSVP in teams of six at NashvilleBar.org/Trivia. n

Liberty Bell Award Nominations

Nominations are now being sought for the Liberty Bell Award, which will be presented during the Law Day Luncheon on Friday, May 1, at the Renaissance Nashville Hotel. This award is given to the person or group—not necessarily attorneys or law related groups—who has promoted a better understanding of the rule of law, encouraged greater respect for law and the courts, stimulated a sense of civic responsibility, or contributed to good government. Nominations should be submitted to the NBA Community Relations Committee via Traci. Hollandsworth@nashvillebar.org no later than Friday, March 13. n

NBA TEAM MONICA MACKIE, Executive Director SHIRLEY CLAY, Finance Coordinator WENDY COZBY, Lawyer Referral Service Coordinator CAMERON GEARLDS, CLE Coordinator TRACI HOLLANDSWORTH, Programs & Events Coordinator JILL PRESLEY, Marketing & Communications Director VICKI SHOULDERS, Membership Coordinator, Office Manager

HAVE AN IDEA FOR AN ARTICLE? We want to hear about the topics and issues you think should be covered in the journal. Send your ideas to Jill.Presley@nashvillebar.org.

Jack Norman, Sr. Award Nominations

Nominations are being sought for the Jack Norman, Sr. Award, which will be presented during the NBA Law Day Lunch on Friday, May 1. Nominations and supporting documentation should be emailed to the NBA Criminal Law & Criminal Justice Committee Chair, Joshua Brand, at joshua@joshuabrandlaw.com no later than Friday, March 6. Visit NashvilleBar.org/Awards to learn more. n

NASHVILLE BAR JOURNAL | FEB/MAR 2020

2019 Jack Norman, Sr. Award Winner, Maria Wooten (center), with family.

2020 Law Day Lunch

In celebration of the American Bar Association’s Law Day, the Nashville Bar Association invites you to join us on Friday, May 1, at the Downtown Renaissance Hotel for our annual Law Day lunch. For more information and tickets, visit NashvilleBar.org/LawDay. n ABOUT THIS YEAR’S LAW DAY THEME: The Law Day 2020 theme is Your Vote, Your Voice, Our Democracy: The 19th Amendment at 100. In 2019-2020, the United States is commemorating the centennial of the transformative constitutional amendment that guaranteed the right of citizens to vote would not be denied or abridged by the United States or any state on account of sex. American women fought for, and won, the vote through their voice and action. The women’s suffrage movement forever changed America, expanding representative democracy and inspiring other popular movements for constitutional change and reform. Yet, honest reflection on the suffrage movement reveals complexity and tensions over race and class that remain part of the ongoing story of the Nineteenth Amendment and its legacies.

A Look Ahead: Mark Your Calendars! Feb 21-22 | YLD Mock Trial Competition @ Metro Courthouse Mar 6-7 | Diversity Summit 2020 @ Belmont University Mar 24 | YLD Happy Hour @ pH Mar 28 | YLD Race Judicata @ Edwin Warner Park May 1 | Law Day Luncheon @ Renaissance Hotel May 14 | Golf Tournament @ Vanderbilt Legends Club May 21 | Spring Memorial Service @ Downtown Presbyterian Church Jun 13 | Family Zoo Day @ Nashville Zoo Jul 23 | NBA Happy Hour: Karaoke Edition @ Alley Taps

YLD Race Judicata

Come out and race for a cause! Show your

support on Saturday, March 28, at Edwin Warner Park for YLD Race Judicata. Proceeds from the race will benefit two local charities—Able Youth and Achilles International Nashville.

Race options include wheelchair 5K/10K, in-

dividual/3-person Team 5K, and individual 10K. The race will begin at 8:30am at Shelter #11 The Young Lawyers Division is seeking volunteers for the Davidson County High School Mock Trial competition on February 21-22 at the Historic Courthouse. Visit NashvilleBar.org/MockTrial to learn more!

along the Harpeth River Greenway. For more information and to register, visit NashvilleBar.org/ RaceJudicata. n FEB/MAR 2020 | NASHVILLE BAR JOURNAL

Feature Story | Ramona P. DeSalvo

NASHVILLE BAR JOURNAL | FEB/MAR 2020

Impeachment!

Impeachment is the topic of conversation across the US, yet many Americans have read little about the process or the history of impeachment. A typical reaction to impeachment tends to be emotional and along party lines rather than a firm understanding of the constitutional process. Tennesseans may be surprised to learn that history appears to be repeating itself when the impeachment of President Andrew Johnson is viewed in light of the US House of Representatives’ actions in conducting the current impeachment hearings.

by the legislature as it could render the president subservient to it rather than be treated as an equal branch of government. The terms “malpractice,” “neglect of duty,” “corruption,” and “maladministration” were each discussed and rejected as the appropriate standard for impeachment. The framers followed the English procedure and in the existing American states, namely, to have the president charged in the House of Representatives and tried by the Senate.2 The Constitution does not specify how impeachment is to be initiated.

Constitutional Background of Impeachment The US Constitution mentions “impeachment” six times. Article 1, Section 2 grants the President the power to grant reprieves and pardons except in the case of impeachment. Article 1, Section 3 sets forth the punishment for impeachment, including Article I, Section 2 that provides, “The House of Representatives shall … have the sole Power of Impeachment.”1 Section 3 of the same Article states, “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.” Article III, Section 2 states, “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.” The grounds for impeachment are articulated in Article II, Section 4 that provides, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” The framers debated the proper means of reining in an errant president. The delegates rejected having the president removable

Johnson’s Impeachment Andrew Johnson was the first president to be impeached. President Johnson, known as the “Tennessee Tailor” based upon his trade in Greeneville, Tennessee, began his political career in 1833 as a village alderman and then mayor. In 1835, he took a seat in the new Tennessee legislature. By 1843, Johnson joined the 28th US Congress as a Democrat representative. Johnson served four terms in Congress before becoming a two-term governor in Tennessee, serving from 1853 to 1857. His governorship was followed by a successful run to the US Senate. Lincoln was inaugurated president in March 1861, and the Civil War began on April 12, 1861. Senator Johnson, a War Democrat, was devoted to the preservation of the Union, but he believed slavery needed protection. He retained his Senate seat when Tennessee seceded, but resigned upon his 1862 appointed as military governor of Tennessee. Despite opposition against the rebel state of Tennessee, Johnson became the vice-presidential nominee in 1864, working feverishly to restore Tennessee to the union before leaving his (continued on page 8) (continued on page 00)

FEB/MAR 2020 | NASHVILLE BAR JOURNAL

Feature Story | military governor role. He completed the process of emancipation and restoration in Tennessee, and issued a proclamation certifying amendments to the state constitution and calling for elections to the legislature and for governor. Notwithstanding, Johnson had no concern for the new freedmen, and did not publicly support national black suffrage, believing it to be a state issue. Johnson was inaugurated on March 4, 1865. Six weeks later, Lincoln was assassinated, and Johnson took the oath of office. A firm Unionist, Johnson believed the seven confederate states had never seceded as secession was unconstitutional. His plan for reconstruction to restore the confederate states included their abolishment of slavery, repeal of secession ordinances, and repudiation of confederate debt. Johnson adopted policies reflecting his deeply held views on states’ rights while undermining efforts to integrate freedmen into society.3 Talk of impeachment that began in 1865 was accelerating. In January 1867, the Judiciary Committee discussed im-

Impeachment! (continued from page 7)

peachment, but some felt the measure was too drastic and could backfire politically. Johnson opposed Congress’s Reconstruction Act, first introduced in February 1867 after the South refused to ratify the 14th Amendment. Johnson had a presidential plan for reconstruction, and thus, he vetoed the proposed act. His veto was overridden. The 40th Congress took office in March 1867 and passed second and third Reconstruction Acts that were vetoed and again overridden. The earlier impeachment resolution was again introduced. An investigation was conducted about allegations regarding Johnson’s cabinet appointments, pardons, and the failure to try Jefferson Davis. The members adjourned without action. Johnson was furious, publicly lashing out when he learned of later effort to investigate his bank accounts. Despite facing repeated threats of impeachment, Johnson continued to work and maintained a busy social schedule. The House again investigated Johnson to impeach him based upon his alleged involvement in Lincoln’s assassination, and

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pages allegedly missing from Booth’s diary that could have exonerated Mary Surratt whose death warrant Johnson signed. Meanwhile, the administration conducted the people’s business including purchasing Alaska. (The press mocked it as “Johnson’s Polar Bear Garden.”) When no evidence could be mustered against Johnson, the impeachment inquiry ended. By 1868 Johnson was determined to act against his suspended Secretary of War Stanton. Johnson vetoed the Tenure of Office Act as unconstitutional, and removed Stanton, replacing him with General Thomas. Stanton had Thomas arrested and refused to leave office. The Senate passed a resolution denying Johnson’s power to remove Stanton without the Senate’s consent.4 On February 24, 1868, the House impeached Johnson by a strict party vote of 128 to 47, issuing 11 articles of impeachment largely consisting of policy disagreements about reconstruction. Johnson appeared calm but was agitated. He wanted to fire his defense attorneys and argue the case himself. His counsel advised him not to appear at the Senate trial because Johnson’s past careless, public pronouncements had caused him trouble. Johnson remained at the White House during the Senate trial. The facts were not in dispute, but it was a question of lawful intent and legal interpretation. The president believed the proceedings were unfair, that Republicans wanted control of the Union for political purposes, that he had committed no crime, and it was Congress that violated the Constitution. The May 16, 1868 vote on the first article was along party lines with 35 “guilty” to 19 “not guilty,” one vote short of the required two-thirds to convict. All Democrats and seven Republicans voted to acquit. (continued on page 12)

NASHVILLE BAR JOURNAL | FEB/MAR 2020

DIVERSITY 2020

Setting the Vision for Diversity within the Legal Profession Featuring keynote speakers Ronald Harris, VP of Diversity and Inclusion at BlueCross BlueShield of TN, and Colonel Linda Strite Murnane of the US Air Force (retired), Diversity 2020 is a collaborative effort of members of the Tennessee legal community designed to bring attorneys together from across the state to set concrete goals and create actionable plans for increasing the number of diverse lawyers hired, retained, and promoted across business types.

MARCH 6-7, 2020 Belmont University 1901 15th Ave S Nashville, TN 37212

CAN YOU NAME THESE PEOPLE?

Be the first person to email the correct answer to Jill.Presley@nashvillebar.org, and your name—along with the correct answer—will appear in the next issue.

DEC/JAN GOLDEN OLDIES

Congrats to Graham Matherne at Wyatt, Tarrant & Combs for identifying the individuals in last issue’s photo. From left to right: Chancellor Carol McCoy, Kate Stephenson, and Zan Blue.

NBA Firm Spotlight

Thank you to everyone at Bone McAllester Norton for all you do. We value your membership and support!

(pictured L to R: Sam McAllester, Jack Stringham, Charles Robert Bone, Henry Leventis, Shea Hasenauer, David Briley, Jack Spencer, Knight Lancaster, Charles W. Bone, Stacey Garrett Koju, Courtney Lutz, Mandy Strickland Floyd, James Crumlin, Glen Civitts, Jack King, Paz Haynes )

NASHVILLE BAR JOURNAL | FEB/MAR 2020

BACKGROUND CHECK

Laura Baker | Bart Pickett

With a new year comes a new president for the NBA. This year we have the good fortune of being led by Nashville-native Laura Baker. She grew up in Bellevue as the second of four children. Her father was a civil engineer and her mother is a nurse practitioner. She attended St. Henry for her primary education and graduated from Father Ryan High School. Following her high school graduation in 1999, she moved to Memphis to study at Rhodes College. She chose the small liberal arts school since it was close to, but still far enough away from, home. While at Rhodes, the political science major continued participating in mock trial, which she became smitten with in high school. It was this love of the courtroom that led Laura to law school. In 2003, Laura packed up and headed to East Tennessee. She chose UT College of Law because she wanted to get the big, SEC school experience. She loved her time at UT, which provided for a great education and introduced her to some of her closest friends. While there, she competed on the National Trial Team, served on the Journal of Law and Policy, and served in the student bar association. She spent her first summer interning at the

Nashville DA’s office. During her second summer, she clerked for firms in Memphis and Knoxville. Following graduation in 2006 and while studying for the bar, Laura remembers seeing an online posting for a job at what was then the firm of Branham & Day. That fortuitous find led to a job that has lasted her entire legal career. After beginning at the firm as a brand-new associate, Laura is now one of three partners at The Law Offices of John Day, practicing 100% civil litigation. She enjoys being a trial lawyer and helping people as they seek recovery and normalcy following personal injury. Since beginning her career in Nashville, Laura remains active in the legal world. After years of serving on multiple committees, she served as the president of Lawyers’ Association for Women from 2014-15. She also spent several years in the Harry Phillips Inn of Court. After her experience in 2014 in the inaugural class of the Nashville Bar Foundation’s Leadership Forum, she felt inspired to step up and take a leadership role within the NBA. She first served as the co-chair for the Chancery & Circuit Court Committee, which led to her to run for and be elected to the NBA Board of Directors in 2016. Laura spent a year on the Membership Committee, and then served on the Executive Committee prior to being elected president by her fellow board members. Laura has many goals for this year. First, she wants to focus on the 100th anniversary of the passage of the 19th Amendment granting women the constitutional right to vote. She wants the NBA to join the city in celebrating the historic anniversary and

recognizing the role our city and state played in its passage. In particular, she hopes to work with NBA members to provide education and outreach on the 19th Amendment at local high schools. Laura also wants to focus on pro bono work and increasing participation by our members, including celebrating Pro Bono Week set in October. Finally, she will highlight the Diversity Summit that the NBA is spearheading and hosting in conjunction with other bar associations across the state. Laura has John Day to not only thank for her job, but also for her family. Not long after starting at the firm, co-worker Brandon Bass introduced her to his brother, JT Baker. Laura and JT hit it off immediately and were married in 2012. JT works at Vanderbilt University as a senior business intelligence analyst. While they used to love to travel and could often be found on a golf course or singing karaoke, their hobbies have changed drastically to revolve around their children. The couple live in Bellevue with their two children: Claire (4 years) and Hudson (10 months). After many years of living apart, Laura also has all her siblings in Nashville again—including a sister who is raising her family in the same neighborhood. n BART PICKETT is an attorney at the Law Offices of Julie Bhattacharya Peak where he represents Liberty Mutual Group, Inc.’s insureds and customers of its affiliated groups in litigation throughout Middle Tennessee. Prior to practicing, Pickett worked as a law clerk for the Honorable Judge Thomas W. Brothers of the Sixth Circuit Court of Davidson County and the Honorable Joseph P. Binkley, Jr. of the Fifth Circuit Court of Davidson County.

FEB/MAR 2020 | NASHVILLE BAR JOURNAL

Editorial |

Impeachment! (continued from page 8)

The Senate then voted to adjourn. When they reconvened, the second and third articles met with the same result, and the trial was over. Johnson was acquitted on May 26. The impeachment affected the remainder of his presidency with another impeachment attempt made with new far-fetched charges that failed. In his Farewell Address, Johnson attacked Congress’s reconstruction policies, insisted he upheld his oath, and demanded a return to the principle that the Constitution and the Union were one and inseparable. Johnson sought, but did not win his party’s nomination in the next presidential election. Conclusion Highly charged politics, policy disagreements, and substitution for an election are not a sound, viable grounds for impeachment.5 Reviewing what occurred from 1865 to 1868 as Republicans impeached President Johnson for political reasons sheds light on present day impeachment efforts. History appears to be repeating itself with the valuable lessons of the past presumably unknown or ig-

nored by those who should know better. n Endnotes All citations to the US Constitution are from the original transcription on parchment by Jacob Shallus on display at the National Archives. The spelling and punctuation reflect the original.

LAWYER REFERRAL & INFORMATION SERVICE

The Federalist No. 65 (Alexander Hamilton).

Johnson freed his slaves in 1863, and later believed slavery should be abolished.

The Tenure of Office Act was effectively declared unconstitutional in 1926. See Myers v. United States, 272 U.S. 52, 116–18 (1926).

The US Senate maintains research regarding impeachment that is accessible online.

The factual background is a compilation prepared by the author relying on a variety of resources, including visiting the Andrew Johnson National Historical Site and Museum in Greenville, Tennessee. See also David O. Stewart, Impeached (2009); Hans Trefousse, Andrew Jackson, A Biography (1989); Erick Trickey, Andrew Johnson National Historic Site, Articles of Impeachment; PBS American Experience, The Impeachment of Andrew Johnson.

RAMONA S. DESALVO practices copyright, trademark, and entertainment law at DeSalvo Law Firm in Nashville. She earned her BA from University of California, Berkeley, and her JD from University of Cincinnati College of Law. She is admitted in Tennessee, Ohio, and California (inactive). Ramona is a Fellow of the American and Nashville Bar Associations, a member of NARAS, Copyright Society, ABA, TBA, NBA, and a past president of the Tennessee Lawyers’ Association of Women.

Are you looking for another avenue for revenue and referrals, specifically those tailored to your practice area? If so, the NBA Lawyer Referral & Information Service needs you. We are currently in need of attorneys who handle issues such as:

Consumer Social Security Disability Tenants’ Rights Title VII Employment For information on joining the NBA LRIS, visit NashvilleBar. org/LRISAttorneyRegistration or contact Wendy.Cozby@ nashvillebar.org. We look forward to hearing from you!

THE EXCLUSIVE REFERRAL SERVICE FOR THE NBA 12

NASHVILLE BAR JOURNAL | FEB/MAR 2020

Editorial |

Emma Elliott & Brandon Smith

The Presidents of Tennessee On Presidents Day, the typical focus is on Washington and Lincoln, which is understandable given the historic role these two presidents played in our national history. Tennesseans, however, should use the holiday to recount the contributions of our fellow statesmen who have served as President of the United States: Andrew Jackson, James Polk, and Andrew Johnson. These individuals each have a record of accomplishment—including the good, the bad, and the ugly. Tennessee history is our history. Ignoring or rewriting our past is a disservice to future generations who will seek to grapple with some of the same societal and ethical issues that faced our three Tennessee presidents. In looking at these three men, we can preserve their memory, and hopefully learn from their actions and their failures. The Bad: Andrew Jackson (1829-1837) Serving as the 7th president, Andrew Jackson was the first Tennessean to occupy the White House, besting John Quincy Adams in a contentious election. Jackson’s record and accomplishments as president are a mixed bag, at

best—this attorney, planter, slave-owner, land speculator, soldier, senator, and then finally president definitely made his mark. Starting on a high note, giving Jackson credit for what is likely his greatest accomplishment: defending the Gulf coast in the final days of the War of 1812. The British were attempting one last maneuver to defeat the newly established US and landed a large army with the goal of taking New Orleans. Jackson, undermanned and unprepared, made deals with local pirates, enlisted black soldiers, and battled the British up the Mississippi River. Though the Treaty of Ghent was already signed, Jackson helped achieve this final important victory against the British. While recovering from his battle wounds in 1822, Jackson began to follow national politics once again, and criticized the Monroe administration and the Second Bank of the US as corrupt. Then, he rejoined the US Senate and relaunched his political career. His views were embraced with populist fervor as he railed against the corrupt elites running Washington. In 1828, Jackson supporters coalesced around (continued on page 14)

FEB/MAR 2020 | NASHVILLE BAR JOURNAL

Editorial |

The Presidents of Tennessee (continued from page 13)

him forming the Democratic Party, and elevated him to the White House. Notoriously, Jackson turned on the Cherokee allies he fought beside in the War of 1812 when gold was discovered on the land they were settling. The result was the â&#x20AC;&#x153;negotiatedâ&#x20AC;? treaties and forced march along the Trail of Tears in 1838. In the modern vernacular, it would be hard not to describe this as anything other than ethnic cleansing. His enactment of the Tariff of 1828, which nearly led to a small civil war with South Carolina, was peacefully resolved, though, and Jackson asked Congress to give him the authority to enforce the Tariff by force. If he had any second thoughts about slavery, he would certainly find allies decrying the practice in his own times. Instead, Jackson seems to have not been bothered by the slave trade. Brevity demands only a cursory review of these scandalsâ&#x20AC;&#x201D;not to mention Jacksonâ&#x20AC;&#x2122;s continued ownership of slaves after the trade had become

widely criticized and eventually ended, and lead to a dim view of Jackson. His brash and combative nature might have served him well in defeating the British, but not as much while serving as President. Though many Americans question his place on the $20 bill, none can deny his significant legacy. The Good: James Polk (1845-1849) Hailing from present-day Maury County, James Polk, the 11th president was both the first dark horse candidate, and one of the most successful presidents in American history. Polk, not one to over-promise, was the last presidentâ&#x20AC;&#x201D;if not the only oneâ&#x20AC;&#x201D;to accomplish each of his campaign promises: (1) to reestablish an independent treasury; (2) to reduce tariffs; (3) to settle the Oregon boundary dispute with Great Britain, and; (4) to acquire California, New Mexico, and the interior west. President Tyler managed to preempt Polkâ&#x20AC;&#x2122;s effort annex Texas by completing the process just days prior to Polkâ&#x20AC;&#x2122;s inauguration.

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Shortly after taking office, Polk entered into negotiations with British Foreign Secretary, Lord Aberdeen, over the Oregon boundary dispute and worked out the compromise which set the boundary and the 49th Parallel, resulting in the Senate approving the 1846 Oregon Treaty and the inclusion of what is now Idaho, Montana, Oregon, Washington, and Wyoming into the territory of the US. Congress passed legislation to reduce the protectionist tariffs of 1842 and to restore the independent Treasury. Polk had accomplished his objectives in record time. Unfortunately, the annexation of California and New Mexico were fraught with difficulty, culminating in the Mexican American war. In November of 1845, Polk secretly sent John Slidell as a special envoy to Mexico City, but the Mexican government refused to receive him. After a bit of deception from Mexican President Antonio Lopez de Santa Anna, US forces defeated Mexico in September 1847, and the peace negotiations added California, Nevada, Utah, and parts of Arizona, New Mexico, Colorado, and Wyoming to the US. Polk had successfully expanded the nation by 1.2 million square miles. Polk kept his final promise, only serving one term in office, and left office in March 1849. He and his wife, Sarah, returned to Tennessee. Polk serves as an example of practicality in presiding over our country. Though the Mexican American war has its fair share of criticism, Polk stands out as a president who has had a lasting historical and geographic impact on the United States. However, despite

(continued on page 22)

BILL & PHIL’S GADGET OF THE MONTH

Observations from CES 2020 |

We recently returned from the 2020 Consumer Electronics Show (CES) in Las Vegas. Every year this tech pageant parades a cavalcade of cutting-edge technology that we will likely be using in our everyday lives in the near future. While we were mesmerized by this year’s latest innovations, we also paused to reflect on the past decade of advancements and marveled at how yesterday’s “cutting-edge” tech is now mainstream. We are only 10 years removed from the debut of Steve Jobs’s iPad tablet computer. We remember Jobs predicting that someday soon instead of picking up a newspaper or a book to read, we would just consume this content from this odd, touch-screen device that was neither a laptop nor a smart phone. At the time, Jobs’s vision seemed like science fiction; we now know he was eerily prescient. Walking over the vast exhibition halls at the show, we saw how far the consumer tech industry has advanced in the past decade. Incredibly thin and vivid TVs, wireless speakers and earphones, voice-activated AI assistants, touchscreens on everything, drones for every task imaginable, augmented and virtual reality experiences, and smart home products from the kitchen to the bathroom—what used to wow us is re

Bill Ramsey & Phillip Hampton

ally just ho-hum (especially for younger consumers). Our yawning indicates that the industry has been successful over the past decade in quickly bringing big tech advancements to the masses. But even after all the innovations of the past that have become commonplace, there are still new products that capture our imagination. CES 2020 provided plenty of stimulation for that forward-thinking imagination. After passing by several thousand exhibits, we were impressed with the following trends: • A PC/laptop revival with some new and exciting form factors • An explosion of wireless earphones and ear buds • Artificial Intelligence (AI) playing much larger role in everyday tasks and work • Big growth in health and wellness technology • Tech to help overcome human physical limitations The rumors of the death of the PC (and laptop) have been widely exaggerated. But these tried and true computing platforms just won’t go away, as we saw more innovation than usual. Dual screen laptops were the biggest hit and largest innovation category. Microsoft had already announced a new dual-screen device called Surface Neo before the show, while others are following suit. Dell has the Dell Duet, and Lenovo introduced the ThinkPad X1 Fold (technically just one screen that folds in half). 5G—the new ultra-fast digital cellular network currently being rolled out nationwide—was an undercurrent for just about everything this year. We are now seeing 5G-compliant laptops coming to market, including Dell’s impressive Latitude 9510, which is a great business-level laptop that is both 5G and

WiFi 6 compliant and boasts an incredible 30-hour battery life. HP and Lenovo also had new 5G capable models, the HP Elite Dragonfly and Lenovo Yoga 5G, respectively. As we walked the exhibit floor, we’re not sure if we saw more wireless ear buds protruding out of the ears of the 175,000 attendees or more booths hawking the “best sounding” wireless ear buds on the market. Like a swarm of locusts, wireless ear buds were everywhere. Apple surely started this trend with its impressive AirPods. We saw everything from AirPod knockoffs from various little-known foreign companies to really top-of-the-line competitors like Samsung’s Galaxy Buds and Jaybird’s Elite Active 75t. AI has been around for a long time and has meant different things to different sectors of the economy. Many think of technology like Amazon’s ever-popular Alexa assistant as AI, but we are beginning to see real AI applications at work and play that go well beyond a virtual assistant giving the weather and traffic conditions. For example, we spoke with a representative from John Deere at the company’s massive farm equipment exhibit and he talked about how AI integrates with the state-of-theart farming equipment to assist in preparing the soil, planting, fertilizing, and harvesting crops to maximize efficiency. Bill noted that the farming principles that the rep talked about were the same principles that Bill’s father applied decades ago as a farmer—but today they are being implemented on a massive scale by machine and artificial intelligence. Continuing a trend from the past couple of years, we saw a huge growth in health and wellness technology. The (continued on page 16)

FEB/MAR 2020 | NASHVILLE BAR JOURNAL

Gadget of the Month | baby boomers are retiring at a rate of 10,000 per day, and many of them are looking to technology to make their golden years more healthy and enjoyable. The Withings ScanWatch has a built-in electrocardiogram for detecting arrhythmia. MedWand is a gadget that allows doctors to examine patients remotely. Mateo is a weight tracking smart bath mat that also measures body composition and posture. Neo HiFi was just one of many advancements in hearing aid technology. We may be getting old, but we’re fighting father time with all the tech we can get our hands on. We were also reminded that there are much more formidable physical challenges that people face, and technology is making great strides. For people who suffer from dyslexia, Abeye introduced

Observations from CES 2020 (continued from page 15)

Lexilens, smart eyewear that filters out the symptoms of this disorder. OrCam showcased MyEye 2.0, an advanced artificial vision device for people who are visually impaired. Of course, CES would not be CES without a healthy dose of the bizarre. Samsung introduced its Star Wars-like personal robot ball called “Ballie.” We saw a toilet tissue robot that will retrieve a new roll for you if you are caught without a square to spare. There was the Manta5 water bike that lets you pedal a bike across a body of water (for real). You really have to go to CES to fully appreciate the breadth and diversity of today’s consumer technology. There is nothing like it in the entire world. We hope to still be going in 2030 when we will be laughing at all the tech we once thought

was only possible in science fiction. n See you next month,

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OCT/NOV 2019 | NASHVILLE BAR JOURNAL

LEGISLATIVE COLUMN

Capitol Notes | Peggy Sue, the Beagle Hound

If you want a friend in this town, get a dog. —President Harry Truman 2020 Session The 111th General Assembly is fully engaged in its 2020 annual session. Some dogs say that the session does not really begin until the Governor files his proposed budget, and that seems to be the case this year. Speaking of Governor Lee, feelings are a little tender with our legislative friends now. Legislative leaders typically do not like surprises. With the sudden unveiling of two recent decisions concerning refugee resettlement and paid family medical leave for executive branch employees, both speakers were caught flatfooted and more than a little bit surprised. Perhaps it is time for Governor Lee to ponder a new puppy. Governor Bill Lee Beginning his sophomore year, Governor Lee still enjoys his role as a former political outsider now on the inside. In March 2019, Governor Lee established the Criminal Justice Investment Task Force through Executive Order 6. In July, the Task Force sought the technical assistance of the Justice Reinvestment Initiative (JRI) to engage in a comprehensive review of Tennessee’s criminal justice system. JRI is an initiative of the Coun

cil of State Governments and is funded in part with a grant from the US Department of Justice. The Task Force submitted its report with 23 recommendations in December 2019. The task force findings reflect that Tennessee’s system is heavy on incarceration and a high rate of recidivism and that our communities are no safer than those in other states. The report notes a powerful need for mental health and substance abuse treatment services. The report also notes the harshness of our present parole board practices of granting parole with the condition that an offender seek mental health or substance abuse treatment services before being released on parole. Of course, the department of correction has a shortage of those services, so the state finds itself in the position of releasing an offender who has completed his or her sentence before he or she may be released on parole. Otherwise known as a system only Kafka would have loved. TennCare Block Grant News On November 20, 2019, Tennessee submitted its TennCare Block Grant Proposal to the Centers for Medicare and Medicaid Services (CMS). A week later, CMS notified the State that the proposal was complete and accepted and opened a 30-day federal comment period which ended on December 27, 2019. As was the original draft, the final proposal was still skinny on details and long on generalized rhetoric. The process will become murkier now as the state and CMS begin negotiations to reach an agreement. Any agreement must be ratified by the General Assembly before it becomes effective. An agreement is not expected, if at all, before summer. Governor Lee has stated that he is not averse to calling a special legislative session for the required legislative ratifica-

tion if CMS and the State reach a deal. Who Knew? While we prefer biscuit hunting to more formal dog work, who knew Tennessee has a National Bird Dog Museum in Grand Junction in Hardeman County, just a few hunts east of Memphis. The museum has a Field Trial Hall of Fame in addition to the Sporting Dog Wing, a Retriever Field Trial Hall of Fame, and the Wildlife Heritage Center. Check it out at BirdDogFoundation.com. Checklist for February & March 1. Be sure that your family members and all others you care about are registered to vote—and then vote. We must exercise our voting muscles just like our other muscles or we will become weak. Here is a link to register or revise one’s registration online: ovr.GoVote.tn.gov. 2. Census Day is April 1. Be sure to be counted. Your community depends on you to do so. 3. Watch for the April 2 qualifying deadline for candidates filing to run for our state legislative offices and our federal congressional offices. That date sets the field for the August and November elections. Calendar Notes State and NBA offices will be closed on Monday, February 17, for Presidents Day. The first day of the early voting period in the Tennessee presidential and local office primary is Wednesday, February 12. The official precinct based primary election day in Tuesday, March 3. n PEGGY SUE is fond of the classic 1957 Buddy Holly song. When hunting legislative news or biscuits, she is hard to contact.

FEB/MAR 2020 | NASHVILLE BAR JOURNAL

Editorial |

The Presidents of Tennessee (continued from page 14)

Polk’s successes, he left office without resolving the coming crisis over slavery that would soon embroil the nation in civil war.

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The Ugly: Andrew Johnson (1865-1869) While born in North Carolina, Andrew Johnson settled and began his political career in Greeneville, Tennessee. As a “Union Democrat” and the only southern US senator to return to Washington post-secession, Johnson was a natural and unifying choice for Abraham Lincoln’s vice president in the 1864 election. However, he was only vice president long enough to deliver a drunken address before the Senate on inauguration day. After President Lincoln’s assassination and serving 43 days in office, Andrew Johnson was sworn in as the 17th president of the US on April 15, 1865. Johnson began his presidency guns-a-blazin’ by permitting the hanging of Mary Surratt for her part in the conspiracy to assassinate President Lincoln, making her the first woman to be executed by the federal government in the US. Further, Johnson ordered the capture of Confederate President Jefferson Davis and set a bounty of $100,000 for his arrest. Johnson’s devotion to the Union and early apprehension of Davis earned him a reputation as a president that would be tough and fair at a time of unrest and division. His policies during Reconstruction, however, quickly raised serious concerns among northerners and the Republican-controlled Congress. While Congress sought to require a loyalty oath from members of Southern states prior to reintegration to the Union, Johnson was ready to welcome the Southern states with no strings

NASHVILLE BAR JOURNAL | FEB/MAR 2020

attached, under the theory that the states never really left the Union. The Southern states widely elected former Confederates to represent their interests in Washington; the northern Congress refused to seat them, instead establishing a separate committee to manage reconstruction efforts. The ideological conflict between Johnson and the legislature intensified upon Johnson’s veto of the Freedman’s Bureau Bill and the Civil Rights Bill, both efforts to confer basic rights and citizenship to freed slaves. Johnson’s rationale: the bills discriminated in favor of African Americans and against whites. Congress swiftly overrode the veto on both bills, as well as proposed and adopted the Fourteenth Amendment, just for good measure. After numerous power squabbles and overridden vetoes, Congress (over Johnson’s veto) passed the Tenure in Office Act, which limited Johnson’s ability to fire Lincoln-holdover Cabinet members, including Secretary of War Edwin Stanton. Johnson’s preoccupation with firing Stanton, however, lead to his impeachment by the House of Representatives. After a nearly threemonth impeachment trial, during which time Johnson angled to appease Moderate Republican legislators, Johnson was acquitted when the Senate failed to achieve a supermajority vote to remove him from office by a single vote. Johnson’s legacy remains characterized by a regressionist racial attitude, numerous political missteps, and public bluster, and paranoia (he reportedly compared himself to Christ on multiple occasions and accused abolitionist leaders of attempting to assassinate him). (continued on page 29)

Editorial |

Eleanor Wetzel

Presidential Inability and Invocation of the 25th Amendment Trump’s presidency renewed interest in the 25th Amendment—particularly Section 4, which only has been invoked in cinematic contexts. A proliferation of op-eds in anticipation of election results, and increasingly after the New York Times 2018 anonymous editorial, have discussed the possibility of using Section 4 as an alternative to impeachment. What Does the Amendment Authorize? The first three sections are generally uncontroversial and have been tested during multiple administrations: Section 1 constitutionalizes the “Tyler precedent”1 in event of a president’s death or resignation; Section 2 authorizes the president to nominate a new vice president (VP) whenever a vacancy occurs, mirroring the post-1940 practice of presidents choosing running mates; and Section 3 addresses the voluntary transfer of presidential authority, usually short-term such as during medical procedures. Section 4, however, concerns the involuntary transfer of presidential authority; it involves a process initiated by the VP to address incapacity whereas impeachment is a political pro-

cess initiated by Congress to address criminal activity. The Amendment took effect in February 1967 and expands upon Article II, Section 1, clause 6 of the US Constitution, which simply provides that upon a president’s removal, death, resignation, or inability to complete duties, the powers “devolve on” the VP. Although the framers debated what might constitute “inability,”2 the constitutional text offers no further guidance, and the issue remained unaddressed until the passage of the 25th Amendment. What Was Tennessee’s Role? Tennessee Senator Estes Kefauver had advocated for a constitutional amendment during the Eisenhower administration. President Eisenhower was not the first president to suffer significant physical ailments in office; however, his health coupled with Cold War tension elevated concern about the country’s leadership should the president be rendered unable to execute his duties. Senator Kefauver, chair of the Judiciary Committee’s Subcommittee on Constitutional Amendments, introduced a proposal before the (continued on page 24)

FEB/MAR 2020 | NASHVILLE BAR JOURNAL

Editorial |

Presidential Inability... (continued from page 23)

86th Congress (1959-1960). Although it did not pass, it was an impetus for the American Bar Association (ABA)’s study on presidential disability and advocacy for an amendment. By 1961, however, interest had waned with the election of youthful John F. Kennedy. Senator Kefauver nonetheless persisted and brought forth another resolution in June 1963. He was unable to continue pushing for its passage though as he died two months later after suffering a heart attack on the senate floor. President Kennedy’s November 1963 assassination reignited concerns about presidential succession; thus, by the year’s end, Indiana Senator Evan Bayh—the new chair of the subcommittee—introduced amendment proposal SJ Res. 139. Despite renewed interest and passage in the Senate, the proposal was carried over to the next congressional session due to lack of action in the House. The delay benefited Senator Bayh in securing the support of the ABA, which had

held a conference on “Presidential Inability and Vice Presidential Vacancy” in January 1964. Ultimately, Senator Bayh’s renewed resolution SJ Res. 1 passed the Senate in February 1965. Both Houses passed the final version by mid-summer; ratification by the requisite 38 states took almost two years; and the Amendment became operative on February 23, 1967. How Does Section 4 Operate? Section 4 provides that the VP immediately assumes the powers of acting president whenever he, along with a majority of either (1) “the principal officers of the executive departments” (i.e., the Cabinet) or (2) “such other body as Congress may by law provide” (no precedent but has been interpreted as a congressionally-convened panel of medical experts or others), provide written notice to the Senate president pro tempore and the House speaker that the president “is unable to discharge the powers and duties of his office.” The president

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then may challenge by self-proclaiming “that no inability exists” and resume his powers and duties—unless within four days, the VP (again with the majority of either the Cabinet or other congressionally-established body), transmits a declaration that the president “is unable to discharge the powers and duties of his office.” Should the VP do so, he retains authority for a narrow timeframe while Congress makes a determination. If Congress determines by two-thirds vote of both Houses that the president is “unable to discharge the powers and duties of his office,” the VP remains as acting president; otherwise, power reverts back to the president. No precedent, however, exists to provide further clarification about the process. Scholars have noted that during President Ronald Reagan’s term, his aides discussed the possibility of invoking Section 4, but no formal action was taken.6 Concerns about President Reagan’s cognition, however, led to the creation of the Commission on Presidential Disability, which in 1988, issued its Final Report. In light of the commission’s recommendations, all post-1989 presidential administrations—with the exception of the current administration—publicly confirmed development of contingency plans in case of executive inability.7 In short, Section 4 is the most controversial and only untested section. The VP bears responsibility to initiate the proceedings where Congress serves as the referee and ultimate decision maker.8 The questions posed by Delegate John Dickson at (continued on page 26)

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Editorial |

Presidential Inability... (continued from page 24)

the 1787 constitutional convention, however, still remain unanswered: “What is the extent of the term ‘disability’ and “who is to be the judge of it?”9 n

Id. 6 See, e.g., Joel K. Goldstein, Taking from the Twenty-Fifth Amendment: Lessons in Ensuring Presidential Continuity, 79 Fordham L. Rev. 959, 979 (2011). 5

Thomas H. Neal, Presidential Disability Under the Twenty-Fifth Amendment: Constitutional Provisions and Perspectives for Congress, Congressional Research Service, at 18 (updated Nov. 2018).

See generally John D. Feerick, The Twenty-Fifth Amendment: Its Complete History And Earliest Applications (2nd ed. 1992). The ABA awarded Feerick the ABA Medal in 2017 for his contributions drafting the Amendment.

Endnotes When William Harrison died during his presidency, John Tyler assumed office, asserting he was president not simply acting president.

2 James Madison, The Writing of James Madison, vol. IV (Gilliard Hunt ed., Putnam’s Sons 1900) (Aug. 27, 1787 journal entry). 3 See, e.g., Robert E. Gilbert, Presidential Disability and the Twenty-Fifth Amendment: The Difficulties Posed By Psychological Illness, 79 Fordham L. Rev. 843, 844-47 (2011).

See, e.g., Birch Evans Bayh, One Heartbeat Away: PresidenDisability and Succession (1968); Presidential Inability and Vacancies in the Office of Vice President: Hearing before S. Comm. on the Judiciary, 89th Cong. 57-63 (Jan. 29, 1965) (ABA statement). 4

tial

See supra note 2.

ELEANOR WETZEL is a research attorney licensed to practice in Indiana and Tennessee. She is a Fellow of the Nashville Bar Foundation and has been an active member of the Nashville Bar Journal Editorial Committee since 2004.

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Editorial |

Denty Cheatham

George Washington, The Founding Member On one of the vacation trips my wife, Rose, and I have taken to New England, touring antique shops, I once spotted a framed document that interested me so much I had to purchase it. It is an 1875 reproduction of the certificate given “George Washington Esquire” by the “United Colonies,” appointing him “General and Commander in Chief of the Army of the United Colonies and of all the forces raised or to be raised by them and of all others who shall voluntarily offer their services and join the said army for the defense of American liberty and for repelling every hostile invasion thereof.” It is dated “Philadelphia June 19, 1775,” and carries John Hancock’s large signature as president of the Congress.1 I reflected on the fact that, even though it was signed more than a year before the “United Colonies” declared their independence, already George Washington had received the title of “Commander in Chief.” It is difficult to understand Washington apart from the role he played as the founder of our nation. As Garry Wills has said: “Washington already stood for an entire people, before some observers even suspected there was a people. Before there was a nation—before there was any symbol of that nation (a flag, a Constitution, a national seal)—there was Washington.”2

As Wills has also said, Washington’s life “verged on legend, even as he lived it, because he had models he was trying to live up to.” However, there were “three great moments” that seemed to sum up his life: “the resignation of his commission as Commander in Chief, his sponsorship of the New Constitution in 1787, and his surrender of the presidency by a farewell address.”3 The first—and last—of these events are probably the ones that inspired the greatest fame and admiration, then and now. For in almost all the revolutions in world history, the heroic leader did not surrender his powers and authority and return to private citizenship, as did the Roman Cincinnatus. Yet Washington did this twice, once after the war for independence was won, and again after a national government was formed and he had twice been elected to serve as its chief executive. It was this unique restraint that led him to become a sort of secular god (if that is possible) and be revered as the greatest of all Americans. To focus solely on these events, however, should not cause us to underrate what he accomplished as commander in chief in the American Revolution. His role in this cannot be fully ap(continued on page 28)

FEB/MAR 2020 | NASHVILLE BAR JOURNAL

Editorial |

George Washington, The Founding Member (continued from page 27)

preciated if we do not understand the kind of leader he was. Washington was a great leader because of his devotion to the cause, his physical appearance and deportment, his courage, his perseverance, his ability to inspire, and his wise selection and leadership of subordinate commanders. He was probably not the most brilliant general. He made mistakes and lost battles. When he was successful, it was often because he listened to subordinates who were perhaps more talented in devising strategy and tactics, and because he learned from his mistakes. But ultimately, in planning and carrying out the campaign that led to the surrender and capture of Cornwallis’s army at Yorktown (with French assistance), he probably did display military brilliance, though there is little doubt he also showed that quality all great military leaders must have—luck. Although he was a practical man without all the learning of lawyers like Hamilton, Madison, or Jefferson, Washington profited from their contributions while serving as president and as leader of the movement to draft and adopt the Constitution. His thinking was a product of the Age of Reason and the Enlightenment in which he lived, which led him to envision America becoming a republic reminiscent of Rome, with leaders who inspired citizens by their moral examples of civic virtue. This included the view that the United States was to be a nation with full religious liberty and separation of church and state. I once visited the oldest synagogue in this country, the Touro Synagogue in Newport, Rhode Island, which I learned the President Washington had visited in 1790. He wrote a letter shortly thereafter to the Jews who worshipped there, stating that US citizens should be 28

proud “for having given mankind examples of an enlarged and liberal policy… worthy of imitation,” in which “[a]ll possess alike liberty of conscience and immunities of citizenship.” The letter goes on to say that the US Government “gives to bigotry no sanction, to persecution no assistance,” and “requires only that they who live under its protection should demean themselves as good citizens in giving it on all occasions their effectual support.”4 A key to what Washington intended, and did, in all the roles he played in our nation’s founding, was that he acted to unify the colonies and helped mold them into a nation. He wanted the colonies to go to war with a national army instead of scattered militia groups; as a military commander he maintained civilian control of the armed forces, recognizing their authority; he lent his prestige to the efforts to adopt a Constitution that would create a stronger national government while avoiding involvement in the divisive debates over specific provisions; and as president he attempted to avoid or resolve the issues creating the factions between Hamiltonians and Jeffersonians (except where he considered the national interest lay on one side of the issue). That he succeeded in his efforts to unify is evidenced by the unanimity in which he was chosen to serve as president. Although a wealthy Virginia slaveowner, it appears Washington did not morally approve of slavery and did not believe the common prejudice that African-Americans were inferior human beings. He approved of the enlistment of free African-Americans in his army, integrated with the other soldiers. Yet, although he was urged by Lafayette and others to use his prestige to publicly call

NASHVILLE BAR JOURNAL | FEB/MAR 2020

for ending slavery, he failed to do so, possibly due to fears that raising the issue would divide the Union of States he was determined to establish, and that it would alienate his wife Martha and her relatives.5 However, he did provide in his handwritten will for the freeing of the slaves he owned outright, numbering over a hundred, and providing funds for the care of those who were aged and to educate those who were children.6 That is something none of our other Founders who were slaveholders did. Obviously, Washington benefitted throughout his life from the unpaid labor of the slaves he owned or controlled, and arguably he should have done more to end this moral wrong and erase this stain on the reputation of the nation. He was imperfect. Yet his greatness in so many other areas is such that I believe every American, regardless of ancestry or ethnicity, should continue to revere him as the Father of our country and one of our greatest men. n Endnotes 1

The copy is certified by R. Delano, Secretary of the Interior.

Garry Wills, Cincinnatus: George Washington & the Enlightenment, (1984).

xxi 3

Id. xxiv-xxvi.

Joseph J. Ellis, His Excellency: George Washington (2004).

Henry Wiencek, An Imperfect God: George Washington: His Slaves, & the Creation of America (2003).

Washington was trustee for about two hundred other dower slaves he acquired by reason of his marriage to Martha, but he lacked the legal right to free them.

DENTY CHEATHAM received his BA from the University of the South in 1963, majoring in history. He graduated from Vanderbilt Law School in 1965 and has been a member of the Nashville Bar Association since 1971. He has practiced law with his wife, Rose Palermo, at their office on Music Row in Nashville since 1973.

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Editorial |

The Presidents of Tennessee (continued from page 22)

Looking Forward In a letter to John Adams, dated August 1, 1816, Thomas Jefferson wrote that he enjoyed the dreams of the future better than the history of the past. This sentiment is understandable—American history is filled with contradictions and includes great strides towards justice and freedom and great tragedies of slavery and war. In On the Pulse of Morning, Maya Angelou offered a better admonition, “history, despite its wrenching pain, cannot be unlived, but if faced with courage, need not be lived again.” On this Presidents Day, let those of us who have sworn to defend the constitution, to speak for those who do not have voices, and to be officers of the court and advocates of truth, take one moment to remember our past with courage and conviction to leave this world better than when we found it. n EMMA ELLIOTT is an associate in the litigation and dispute resolution group at Reno & Cavanaugh and represents development entities and housing authorities in complex federal and state litigation and administrative proceedings. Emma also assists with commercial real estate transactions and affordable housing development. BRANDON SMITH serves in the Office of the Tennessee Solicitor General. He is a graduate of Abilene Christian University, earned his JD from University of Kansas, and his LLM from the George Washington University. All views expressed are his own and not his employer’s.

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Directions Mix together the dry ingredients to create a rub for the meat. Pat the meat dry and rub the mixture onto all surfaces of the meat. Wrap the meat in plastic wrap or place it in a covered container. Refrigerate overnight. Remove the meat from the refrigerator and let it stand at room temperature for an hour. About 8 hours before you plan to serve dinner, preheat the oven to 300 degrees. Spray a large roasting pan and a rack with cooking spray. Put the meat, fat side up, on the rack in the pan. Add 2 cups of water to the bottom of the pan. Cover the roasting pan with foil and roast the meat for 6½ hours. After a couple of hours, you can baste the meat with the pan drippings, but it is fine if you don’t baste it. After 6½ hours, remove the foil. Turn the oven temperature up to 350 degrees and continue to roast the meat for about an hour or until the meat is well-browned. Remove the meat from the oven and let it stand, tented with foil, for 30 minutes before slicing and serving. You can serve it plain, with the strained pan drippings, or with sauces or condiments of your choice such as horseradish, salsa verde, chutney, or chili sauce. *Use any salt-free mixture you like such as an Italian seasoning blend or create your own mixture.

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Hearsay | Honors & Awards, On the Move, Firm News H ONORS & AWARDS

Kentucky College of Law) is a member of the tax and bankruptcy practice groups, Madison Crooks Haynes (Vanderbilt University Law School) is a member of the economic development practice group, Daniel L. Lawrence (Vanderbilt University Law School) is a member of the litigation practice group; Sarah Staples (Vanderbilt University Law School) is a member of the Healthcare Practice Group, and Richard W.F. Swor (Belmont University College of Law) is a member of the litigation practice group.

The Copyright Society of the South has named attorney Tara Aaron of Nashville firm Aaron & Sanders to serve on its 2020 Board of Directors. Aaron focuses her practice on copyright, trademark, and licensing. Lisa Cole, president and managing shareholder of Lewis Thomason, has been named one of the “100 Women Who Inspire Us” by the American Bar Association Section of Litigation. Cole was honored at the 2019 Women in Litigation Joint CLE Conference, which kicked off celebration of the 100th anniversary of the passage of the 19th Amendment. Cole has focused her practice on representing medical providers in health care liability cases and employers in state and federal court. Caroline Sapp of the Law Offices of John Day has been selected to participate in the Tennessee Bar Association’s 2020 Leadership Law program. Now in its 17th year, the program is designed to equip Tennessee lawyers with the vision, knowledge, and skills necessary to serve as leaders in their profession and local communities. ON T HE M OVE Bradley is pleased to announce five new attorneys in the Nashville office. Bethany Breeze Davenport (University of 34

Rosalyn Broad has joined North, Pursell & Ramos as an associate attorney. Her practice will focus on healthcare liability defense, civil litigation, and corporate law. Rosalyn graduated cum laude from Tulane University School of Law in 2019. SIMS|FUNK has added Mark Donnell to the firm. Donnell represents companies and individuals in a wide range of business and commercial disputes, and also assists parties in financial distress

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and insolvency-related matters, including bankruptcy proceedings, commercial foreclosures, receivership actions, and post-judgment collection efforts. Dickinson Wright is pleased to announce the election of Colin Ferguson as a new member of the firm’s Nashville office. He provides counsel to business entities and individuals in corporate, real estate, and financing transactions. Richard E. Graves has joined Bradley’s Nashville office as an associate in the real estate practice group. Graves will focus on real estate law and zoning and land use. Prior to joining Bradley, he was an attorney at Frantz, McConnell & Seymour, and clerked for Judge Sharon Lee of the Tennessee Supreme Court. Bob Mendes has joined Sherrard Roe Voigt & Harbison as a member. Mendes concentrates his practice in the areas of commercial litigation, business bankruptcy and transactions. Burr & Forman announces the recent addition of Nashville-based attorney Jordan Puryear. He will be providing services to producers, suppliers, product

Hearsay | Honors & Awards, On the Move, Firm News manufacturers, wholesalers, and retail CBD locations, as well as lenders, funds, and other financial institutions. Puryear received his undergraduate degree from Samford University and his law degree from Belmont University College of Law. Christopher C. Sabis has joined Sherrard Roe Voigt & Harbison as a member. Sabis concentrates his practice in the areas of government and internal investigations as well as false claims act litigation. George S. Scoville, III, Davidson Lentz and Kaitlin White have joined the Lewis Thomason Nashville office. Scoville recently served as a Judicial Law Clerk to the Honorable Sheryl Lipman in the US District Court for the Western District of Tennessee, and primarily practices in the firm’s product liability group. Lentz and White, both recent graduates from Belmont University College of Law, practice primarily in the transportation practice group. Dodson Parker Behm & Capparella have added James Walker to the firm as a new associate where he will focus his practice on business services, nonprofit law and appellate litigation. Walker graduated from Vanderbilt University School of Law

and received a Business and Law Certificate. FIRM NEWS Six attorneys at Bradley have been elevated to partner: Brandon Bundren, a member of the intellectual property practice group; Bart J. Kempf, a member of the real estate and environmental law practice groups; Sarah K. Laird, a member of the real estate practice group; Jake Neu, a member of the intellectual property practice group; Scarlett Singleton Nokes, a member of the government enforcement and investigations practice group; and John P. Rodgers, a member of the labor and employment practice group.

The Davidson County Circuit Court Clerk’s Office launched its e-filing system in July of last year for the Circuit and Probate offices, and is working on a

similar system for the General Sessions, Criminal, and Juvenile Courts. The system does not require a fee per filing or an annual user fee. There is a convenience fee of 2.25% for payments made by credit card or e-check. Mariam Stockton has been named partner at Neal & Harwell. Stockton joined the firm in 2011 and is a member of the firm’s litigation group, representing clients in high-profile entertainment and business disputes, and in white-collar criminal defense. Lauren Spahn was recently named a partner of the business and entertainment law firm Shackelford, Bowen, McKinley & Norton. Spahn represents the legal and business interests of recording artists, songwriters, publishers, promoters, major and independent record labels, and all other entertainment related clients. Mary Balthrop and Eric Osborne have been named members at Sherrard Roe Voigt & Harbison. Balthrop’s practice areas include real estate and commercial lending, corporate and non-profit organizations. Osborne focuses his practice on antitrust and cost recovery, complex commercial litigation, and white collar/ civil investigation practices. n

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Nashville Bar Journal | February/March 2020

Articles inside

George Washington, The Founding Member

Hear Ye, Hear Ye

Capitol Notes

Gadget of the Month

Presidential Inability and Invocation of the 25th Amendment

Background Check

The Presidents of Tennessee