Presidents Are Acting Not Illegally More And More

When Richard Nixon told David Frost in April 1977, "When the president does it, that means it is not illegal," he was talking not about political burglaries and campaign dirty tricks (though his operatives did all that, too) but a leader's sovereign powers during wartime. That Ron Howard and his screenwriter, Peter Morgan, suggested otherwise in "Frost/Nixon" was one of the few disappointments in an otherwise fine movie. Continuing his argument, Nixon said:

[I]t has been...argued that as far as a president is concerned, that in war time, a president does have certain extraordinary powers which would make acts that would otherwise be unlawful, lawful if undertaken for the purpose of preserving the nation and the Constitution, which is essential for the rights we’re all talking about.

Tom Campbell, Chapman University's law school dean, battled President Clinton over Kosovo when he was serving in Congress. He argues that when presidents grasp for broader foreign policy and war-making prerogatives, judges and Congress wax timid, and especially so since Sept. 11. On the 40th anniversary of the Watergate break-in, John Dean, who turned on Nixon during the the Watergate investigations of 1973-74, says recent presidents have widened the realm of "not illegal" far more than 37. The Los Angeles Times reports:

Executive orders issued by President George W. Bush in the aftermath of Sept. 11 claimed power for the Oval Office to ignore U.S. laws and international treaties.

President Obama has retained some of those extraordinary wartime powers, and his use of drones to attack terrorist suspects has drawn accusations of international law violations.

"I don't think Richard Nixon, in his darkest hour, would have authorized torture," said Dean...

War Powers And The Problem With Presidents

Tom Campbell, who served five terms in Congress from a district in northern California, has been dean of the Chapman University law school since February 2011. "It's a pleasure to have another moderate Republican in Orange County," I told him last night at the Pacific Club in Newport Beach, where Kathy and I were guests of our St. John's friends Bob (serving again as a peerless MC) and Ann Mosier. "On behalf of the other four, welcome."

"Richard Nixon?" he said with a bemused look. Dead these 17 years, I replied, as he knew. "Of course," he said with a smile. "Chuck Percy? George Romney?" Alas, also gone are the great Illinois senator and Michigan governor, beacons of the great American center. Campbell was suggesting that pragmatic conservatism had died along with its lions. Then he perked up and said, "Olympia Snowe! Ah, but then she's retiring."

We agreed that Nixon -- promoting detente with communists, the EPA, and near-universal health insurance, not to mention wage and price controls -- wouldn't be welcome in today's GOP. Indeed in most portraits of the modern conservative movement, Nixon's corner of the Etch A Sketch screen has been rendered inoperative. And yet a prominent local jurist standing nearby said that he too would join a party for the socially tolerant and fiscally prudent. One does meet such people in Orange County, even while clinking glasses in its premier social and business club. Perhaps Mitt Romney, if nominated, will be able to erase the hard-right positions he took to get onto the ticket, having spent years trying to do so with his centrist positions as Massachusetts governor. If not, in November we may learn that the lions' passing presaged a diminishment of the GOP's ability to contend for the White House.

During his lecture on war powers and the U.S. Constitution, Campbell demonstrated the capacity for nuance that makes pragmatists so infuriating. Bolstering his analysis with quotations from the Founders, he argued that only Congress may conduct an aggressive war, though the commander-in-chief has broad authority to act defensively. That being said, the War Powers Act (which Congress passed over Nixon's veto in 1973) lets a president wage war without permission from Congress for up to 90 days, meaning that any president can start World War III by himself so long as he sends Congress a memo within 48 hours of firing the first shot and then wins (or loses) inside of three months.

From Nixon on, presidents have resented this limitation on what some construe as their sovereign right to protect and defend the country. During a congressional hearing after Bill Clinton went to war in Yugoslavia in 1999, Campbell pressed Secretary of State Madeleine Albright to explain the difference between war or hostilities, which would have triggered the War Powers Act, and her description of the massive bombing campaign, armed conflict. She responded, "You're the law professor. You figure it out."

That's the war-making executive's usual high-handedness toward Congress for you. Then there's the judiciary's timidity. When Campbell and 15 Republican and Democratic colleagues sued Clinton for violating the War Powers Act, a federal judge dismissed the lawsuit on the grounds that Congress, though it had refused to declare war, had tacitly authorized it by appropriating funds to pay for it. "But the [current] appropriation isn't for the cruise missiles that are being used in the war," Campbell said. "They've already been paid for. The appropriation is to rebuild the stock that will be needed for the next war." By Campbell's lights, the judge was saying that Congress could only stop an illegal war by reducing the nation's overall preparedness.

Campbell advised judges who may fear being ignored by a willful president to remember July 1974's Nixon vs. United States, when the Supreme Court, by an 8-0 vote, ordered the president to turn over tapes to the Watergate special prosecutor. Nixon complied and then resigned on Aug. 9 in the firestorm over one transcript's contents.

Since Campbell had mentioned Kathy's and my ex-boss, I asked during the Q&A about Nixon's own constitutional scholarship. Campbell had already argued that that Congress had authorized the Vietnam war with the Gulf of Tonkin Resolution in 1964. Fast forward to the 1977 Nixon-Frost interviews, when the ex-president was asked about an operative's scheme to expand the president's power to monitor and harass anti-war activists, 1970's Huston Plan. It was never implemented. But when David Frost wondered why he'd even considered such an appalling abuse of power, Nixon replied that if the president does it, it's "not illegal."

My question last night: Since the U.S. was at war, was Nixon's formulation (widely misunderstood as an excuse for Watergate crimes) actually a defensible assertion of a president's sovereign right to protect the country? Campbell replied that Nixon would have been better off saying that Congress, by authorizing the war, had already permitted security measures at home. It was an overreach for Nixon to arrogate the power to the executive, which, as it turns out, seems to be a persistent problem with presidents.