The Constitution Under Attack: The Harding Affair—War, Love and Espionage

Jan. 23, 2017

In 1917, when the United States entered the war in Europe, President Wilson asked Congress to pass an espionage bill, given the high level of foreign spies in the United States. The Espionage Act of 1917 was the response, and it is still on the books today.

Warren Harding, then a Senator from Ohio, was in a relationship with a woman who arguably was a German spy and who was being watched carefully by military authorities, the Department of Justice and a home-grown vigilante group known as the American Protective League. Before his mistress could be arrested, Harding warned her to stop her activities.

Around this time, Congress passed an amendment to the Espionage Act, known informally as the Sedition Act, making it a crime to speak against the government, recruitment, the Constitution, or the military or naval forces. While Harding’s mistress and her husband avoided arrest, Socialist Eugene Debs was not so lucky. His political speech in Canton, Ohio, on June 16, 1918, resulted in his arrest, trial, conviction and imprisonment in the Atlanta penitentiary.

President Wilson denied requests to pardon Debs and other political speakers. The Supreme Court, per Justice Oliver Wendell Holmes’ opinion, affirmed Debs’ 10-year sentence. It was left to Warren Harding after being elected in 1920 to exercise the Power of the Pardon, reserved to the Executive Branch, to commute and release Debs on Christmas Day, 1921.

The Preamble to Ohio’s Rules of Professional Responsibilities places a high value for lawyers to reach out to their communities in just this manner. “[A] lawyer should further the public’s understanding of and confidence in the rule of law and the judicial system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”

What does The Harding Affair teach lawyers about national security, the Constitution and free speech?

Join author James D. Robenalt at a must-see OSBA CLE, The Constitution Under Attack: The Harding AffairWar, Love and Espionage, on Feb. 22, 2017, in Columbus, Cleveland, Perrysburg or via Webcast to find out.



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