How Presidential Power Became Untouchable

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David E. Kyvig, Distinguished Research Professor at Northern Illinois University and a writer for the History News Service, is the author, most recently, of The Age of Impeachment: American Constitutional Culture since 1960.

Congressman Dennis Kucinich has presented 35 articles of impeachment against George W. Bush to the House of Representatives. Yet Congress is no more likely to respond than it did to his earlier proposal to impeach Vice President Dick Cheney. As a consequence, Kucinich's message that constitutional limits apply to presidential authority is not likely to be heeded by either the incumbent president or the Republican who aspires to succeed him.

If so, the outcome will reinforce conclusions previously drawn from the history of impeachments, or more precisely non-impeachments. The legacy of the past 40 years has, ironically and alarmingly, been a sense of presidential invulnerability in the conduct of national security policy. That legacy deeply compromises our constitutional system.

Lessons drawn from Watergate, Iran-Contra, and the relatively easy Bush-Cheney avoidance of impeachment are discernible in John McCain's recent statements. The Republican candidate has concluded that Americans and their representatives will tolerate unrestrained presidential authority if it is justified by even shaky claims of national security necessity. McCain is already asserting presidential prerogatives that Richard Nixon at his boldest would not have claimed while seeking office.

An expansive interpretation of presidential authority in matters of national security began to be quietly constructed, though not forthrightly asserted, during the Nixon administration. After the fact and under fire Nixon defended as legitimate presidential national security actions such as the secret bombing of Cambodia, the clandestine wiretapping of staff members suspected of leaking information to journalists and the break-in at the office of Daniel Ellsberg's therapist.

In drawing articles of impeachment in 1974, the House Judiciary Committee could well have included these acts as constitutional offenses with which to charge Nixon, but decided against doing so. The committee concentrated its attention on the Watergate break-in itself and actions to cover it up. It left other overreaching presidential conduct, including attacks on Cambodia and warrantless wiretaps, uncondemned. For all the notice given Watergate, little has been said about the blueprint for it created for presidential conduct that Congress would tolerate. More than one subsequent president and now a presidential candidate have, however, paid heed.

The Reagan administration learned from Watergate in carrying out its secretive Iran-Contra affair. Its arms transfers to Iran and use of the proceeds to supply the Nicaraguan Contras violated the 1976 Arms Export Control Act and the 1982 Boland Amendment. Nevertheless, when eventually exposed, this executive action was not punished with impeachment. The majority Democrats on the congressional investigating committee proved hesitant to act.

Meanwhile, the Republican minority argued that the administration's conduct was proper and justified. The minority report's author, Wyoming Rep. Dick Cheney, continues to this day to claim unrestricted executive prerogatives in matters of national security.

Non-response to calls for George W. Bush's impeachment have reinforced the Watergate and Iran-Contra demonstrations of the difficulty of thwarting an overreaching president. No wonder that John McCain, watching from his Senate seat since 1985 as impeachment efforts repeatedly failed, has now concluded that an extraordinary claim of presidential authority can be made with impunity and may well end up effectively unchallenged.

McCain's campaign has boldly declared that the Republican presidential candidate believes the chief executive possesses constitutional power to order warrantless telephone taps and e-mail surveillance. McCain ignores the strictures of the Fourth Amendment against warrantless searches as well as a 1978 federal statute that requires FISA court approval and oversight of violations of personal privacy. An aide, Douglas Holtz-Eakin, quotes McCain as thinking that "neither the Administration nor the telecoms need apologize for actions that most people, except for the ACLU and the trial lawyers, understand were Constitutional and appropriate in the wake of the attacks on September 11, 2001."

Before his prospect of holding executive authority himself had grown bright, McCain thought otherwise. Late last year the senator claimed that if he became the next commander in chief, he would consider himself required to obey a statute restricting what he did in national security matters, "no matter what the situation is."

McCain, however, now appears ready to retreat from that simple test and embrace the more empowering standard of presidential authority allowed by recent impeachment history. The presidential power now claimed by McCain will be checked only if the electorate and the Congress together say, "Enough!"

Assertions of unrestrained executive power in the name of national security can be discouraged only if they lead to impeachment and removal -- an unlikely prospect -- or if aspirants for high office who explicitly reject such claims are embraced at the polls. Voters can at the same time support candidates for Congress such as Kucinich who express willingness to use the tools given them to defend the Constitution against overreaching executive authority. Otherwise, recent history suggests, the people of the United States may pay a heavy price for tolerating erosion of the checks and balances wisely incorporated into their Constitution.

This piece was distributed for non-exclusive use by the History News Service, an informal syndicate of professional historians who seek to improve the public's understanding of current events by setting these events in their historical contexts. The article may be republished as long as both the author and the History News Service are clearly credited.

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Christian Seppa - 6/16/2008

The point that I am not hearing here, and which swung the balance for me, is the fact that veil of executive privilege cannot be used during impeachment proceedings.

Once the American people get an unvarnished look at the scope and severity of the issues unearthed, voting Republican will seem downright unpatriotic. The Cheney/Bush administration has used executive privilege to conceal crimes petty and monumental, as a matter of regular business.

We do not need to find the administration guilty of impeachable offenses in order to achieve positive gains for our country and at the ballot box. It is the duty of our representatives to investigate the articles presented by Congressman Kucinich. It is also a political winner.

To fail to initiate proceedings will mean that future generations will curse the laxity of our response to the enormity of the abuses, as they will have nothing but appeasement as a precedent. By ‘letting it slide’, we implicitly endorse, to our lasting shame, and with lasting harm to the republic.

The refusal of the house Judiciary to consider the impeachment of Dick Cheney last year makes impeachment now a quixotic affair, to be sure. It assumes that Congress could do the research and make the case in an unreasonably short amount of time. And as the Democratic leadership has failed thus far, it may be safe to assume that they would fail again. And any effort, however valid, could be ignored by the major media outlets, or dismissed by voters as a ’stunt’ in an election year.

On the other hand, there is a tremendous amount of scholarship and research already in existence which could make light work of demolishing efforts to defend the indefensible, unshielded by executive privilege. With the threat of prosecution for perjury, supporters of administation initiatives will be far more open to telling the truth and exposing the mechanisms used to dismantle the rule of law. The only ’stunt’ thus revealed would be the coup d’etat, almost complete, undertaken on behalf of a global military-industri-oil complex. The media, seeing their patrons indicted, would know that the political wind was changing, and with it the repercussions for speaking truth to power.

If nothing else, initiating impeachment proceedings will keep the spotlight on the crimes of the administration, whose policies John McCain seems eager to continue, and will remind voters how appealing change can truly be. Furthermore, it will become virtually impossible for the administration to initiate hostilities with Iran. Or meddle unlawfully with electoral systems. Or swindle more taxpayer money from the coffers. Or much of anything else.

William J. Stepp - 6/16/2008

Otherwise, recent history suggests, the people of the United States may pay a heavy price for tolerating erosion of the checks and balances wisely incorporated into their Constitution.

Lincoln, Wilson and FDR exceeded their constitutional authority in conducting war. Why do they get a free pass?
Could it be because the author loves the Big Government of the pre-Nixon era, but loathes GOoPers and the post-LBJackass Big Government they have built?
Okay, the author was focusing on more recent history, but a nod to this era's presidential predecessors to provide a bit of context would have been useful.

John W Bland - 6/16/2008

Well and concisely said. We the sheeple of the united corporations and associated super rich are about as aware of what's happening, gradually but surely, as the cattle gathered at the entrance to the slaughterhouse.

What would the founders do? A quote from an unknown author . . . Their aim in everything they did was to control the uses of power – to prevent the state, the government, from overwhelming society. They meant to force the government to serve, not the interests or ideas defined by those who controlled it, but the public’s interests defined by delgates freely chosen by the people. They did not need a Stalin or a Saddam Hussein to show them what the dangers were. They knew all about arbitrary arrests, secret courts, confessions by torture, official lies, and the suppression of dissent. Free elections and trial by jury, John Adams wrote, were the only security we have “against being ridden like horses, and fleeced like sheep, and worked like cattle, and fed and cloathed like hoggs and hounds.”

And a couple from Mr. Thomas Jefferson . . . "I hope we shall crush in its birth the aristocracy of our monied corporations which dare already to challenge our government to a trial by strength, and bid defiance to the laws of our country." "When once a republic is corrupted There is no possibility of remedying any of the growing evils but by removing the corruption . . . every other correction is either useless or a new evil.

Remember Kitty Genovese? Now it's lady liberty that's being attacked. Gonna watch and do nothing again?