Presidential Powers

Presidential Powers

Sean Wilentz, NYT 7/9/07

Twenty years ago this week, Lt. Col. Oliver North testified for six days
before a special joint House and Senate investigating committee. Permitted
by the Democratic majority to appear in his bemedaled Marine uniform, and
disastrously granted immunity, Colonel North freely admitted that he had
shredded documents, lied to Congress, and falsified official records.

Colonel North justified these crimes as necessary to protect two of the
Reagan administration’s covert policies: defying a Congressional ban on
aiding the anti-Sandinista contra insurgents in Nicaragua; and selling arms
to Iran –– officially classified as a terrorist state –– in order to free
American hostages in the Middle East.

Mixing bathos with belligerence, Colonel North played the incorruptible
action hero facing down Washington politicians and lawyers. He also
suggested that, under the Constitution, the president and not Congress
held ultimate authority to direct foreign policy.

Most of the Congressional committee members, Republicans and
Democrats alike, expressed shock at Colonel North’s testimony. And
despite the surge in Colonel North’s personal popularity, he failed to sway
other Americans on the underlying issues, Clear majorities in opinion polls
said that Colonel North had gone too far in his covert operations, especially
in helping the contras. Roughly half of those polled believed that he had
acted as if he was above the law. Sixty percent said that Congress was
more trustworthy than the Reagan White House on foreign relations.

And Mr. North was eventually convicted of three federal felonies ––
receiving an illegal payment, obstruction of a Congressional inquiry, and
destroying official documents, although an appellate court held that his
testimony delivered under Congressional immunity may have affected
jurors and reversed one conviction. (Prosecutors gave up on the other two.)

But there were dissenters. A number of House Republicans on the
committee cheered Colonel North on. One who led the way was Dick
Cheney of Wyoming, who praised Colonel North as “the most effective and
impressive witness certainly this committee has heard.”

Mr. Cheney, the congressman, believed that Congress had usurped
executive prerogatives. He saw the Iran-contra investigation not as an
effort to get to the bottom of possible abuses of power but as a power play
by Congressional Democrats to seize duties and responsibilities that
constitutionally belonged to the president.

At the conclusion of the hearings, a dissenting minority report codified
these views. The report’s chief author was a former resident fellow at the
American Enterprise Institute, Michael J. Malbin, who was chosen by Mr.
Cheney as a member of the committee’s minority staff. Another member of
the minority’s legal staff, David S. Addongton, is now the vice president’s
chief of staff.

The minority report stressed the charge that the inquiry was a sham,
calling the majority report’s allegations of serious White House abuses of
power “hysterical.” The minority admitted that mistakes were made in the
Iran-contra affair but laid the blame for them chiefly on a Congress that
failed to give consistent aid to the Nicaraguan contras and then
overstepped its bounds by trying to restrain the White House.

The Reagan administration, according to the report, had erred by failing
to offer a stronger, principled defense of what Mr. Cheney and others
considered its full constitutional powers. Not only did the report defend
lawbreaking by White House officials; it condemned Congress for having
passed the laws in the first place.

The report made a point of invoking the framers. It cited snippets from
the Federalist Papers –– like Alexander Hamilton’s remarks endorsing
“energy on the executive” –– in order to argue that the president’s long-
acknowledged prerogatives had only recently been usurped by a reckless
Democratic Congress.

Above all, the report made the case for presidential primacy over foreign
relations. It cited as precedent the Supreme Court’s 1936 ruling in United
States v. Curtiss-Wright Export Corporation, which referred to the
“exclusive power of the president as the sole organ of the federal
government in the field of international relations.”

History, the report claimed, “leaves little, if any doubt that the president
was expected to have the primary role of conducting the foreign policy of
the United States.” It went on: “Congressional actions to limit the president
in this area therefor should be reviewed with a considerable degree of
skepticism. If they interfere with the core presidential foreign policy
functions, they should be struck down.”

These conclusions went beyond what had long been considered the
outermost limits of presidential powers –– and they put a special twist on
history. Hamilton certainly desired a strong executive, but warned that it
would be “utterly unsafe and improper” to give a president complete
control over foreign policy.

The Curtiss-Wright decision actually concerned a presidential claim of
constitutional power to act in the absence of an act passed by Congress,
not in violation of such an act.

One of the foremost constitutional scholars of the 20th century, Edward
S. Corwin, stated in 1957 that the Constitution was “an invitation to struggle
for the privilege of directing American foreign policy”,  and that in many
cases “the lion’s share” of that privilege belonging to the president. But
Corwin finally insisted that “the power to determine the substantive content
of American foreign policy is a divided power.”

The Iran-contra joint committee majority in 1987, including some Senate
Republican members, charged that the minority report, with tortuous
illogic, reduced Congress’s foreign policy role to nearly nothing. Senator
Warren Rudman, a New Hampshire Republican and vice chairman of the
Senate side of the investigating committee, paraphrased Adlai Stevenson
and quipped that the minority report had separated the wheat from the
chaff and left in the chaff.

His comments did not lead Mr. Cheney to alter course, as Mr. Cheney’s
actions as vice president demonstrate. Asked by a reporter in 2005 to
explain his expansive views about presidential power, “If you want
reference to an obscure text, go look at the minority views that were filed
with the Iran-contra committee.”

“Nobody has ever read them,” he said, but they “are very good in laying
out robust view of the president’s prerogatives with respect to the conduct
of especially foreign policy and national security matters.”

In truth, as Mr. Cheney had also remarked, the struggle for him began
much earlier, during the Nixon administration. A business partner says that
Mr. Cheney told him that Watergate was merely “a political ploy by the
president’s enemies.” For Mr. Cheney, the scandal was not Richard Nixon’s
design for an imperial presidency but the Democrats’ drive for an imperial

Still, Mr. Cheney’s quest to accumulate unaccountable executive power
–– a quest that has received much attention of late –– took a major turn 20
years ago. And part of Iran-contra’s legacy has now became a legacy of the
Bush-Cheney administration.

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