The American Spectator : The Real Threat to Democracy

Text Size

The Real Threat to Democracy

By Brett Joshpe on 12.8.08 @ 6:08AM

The perils of criminalizing policy differences with the president.

Last week, Fox News reporter Chris Wallace rightfully challenged Ron Howard's comparisons of George W. Bush to Richard Nixon, whose illegal behavior while president led to his resignation. Howard, who is director of the new film, Frost/Nixon, which chronicles reporter David Frost's interviews with the disgraced Nixon after he left office, seems to think, like many on the left, that George Bush was not only a bad president but a lawbreaker who should face investigation and possibly criminal sanction.

Specifically, George W. Bush's execution of the War on Terror and efforts to keep America safe in the wake of September 11 have sparked more than just concert reprimands from the likes of Bruce Springsteen. Bush faces accusations of "war criminal" and "imperial president." Wallace correctly pointed out to Howard after a screening of Frost/Nixon, however, that "to compare what Nixon did, and the abuses of power for pure political self-preservation, to George W. Bush trying to protect this country -- even if you disagree with rendition or waterboarding -- it seems to me is both a gross misreading of history both then and now."

Not only does it represent a gross misreading of history and a blatant neglect for facts, but the suggestion that George W. Bush should face repercussions for political decisions made while president is to invite a threat to democracy, given the implication it could have on future presidential decision-making and the corrosion of any hope for bipartisanship. And the suggestion would not seem so alarming if it were limited to entertainment flakes like Howard or Springsteen. However, presumably serious individuals, like Vice President-elect Joe Biden, have also suggested that the Obama administration might investigate Bush officials for crimes committed.

They are well-stablished legal maxims that "we are a government of laws and not of men" and that "no man is above the rule of law." However, the notion that George W. Bush violated clearly established laws is based on hyperbolic ignorance. Implementation of the policies at issue, from the war in Iraq, to the NSA wiretap program, to waterboarding, had legitimate legal justification and were executed with the good faith belief, and without clear precedent to the contrary, that the Commander in Chief possesses the requisite authority.

Others may hold a different view of the president's constitutional or statutory power. However, those disagreements are part of our constitutional system where not every question has a clear legal answer. The recourse for those legitimate disagreements is what we held on November 4 of this year: elections.

Furthermore, if members of Congress, such as Joe Biden, believed that the president was acting extra-constitutionally while in office, they could have passed legislation declaring waterboarding per se torture or the war in Iraq illegal and unauthorized going forward. If the president, consistent with his constitutional power, vetoed such legislative efforts, Congress could have attempted to override his veto or challenged the president's authority in the federal courts. Had the Supreme Court issued an unambiguous ruling that the president defied, then there might exist a plausible argument that he acted lawlessly. That never occurred, however, nor is it what Bush's critics argue. In most cases, Congress either relented or reached a constitutional compromise with the President, precisely how the system ought to work.

To argue now that Bush acted illegally and "shredded the Constitution" because his administration's legal analysis of ambiguous issues did not comport with the interpretations of certain law professors is folly. Pursuing these accusations would amount to a politically motivated witch-hunt, which anyone who respects the health of our constitutional system should oppose.

When the president takes the oath of office, he says that "I…will to the best of my ability, preserve, protect and defend the Constitution of the United States." While he is not above the law, the president, as the head of one of three co-equal branches of government, deserves a degree of deference and freedom to exercise executive judgment without fear of prosecution after leaving office. This is especially important when the president is pursuing his most crucial and noble duty: protecting the American people.

Threats of legal comeuppance for Bush should not only concern Republicans or conservatives either. Congress, in response to Richard Nixon's executive excesses, passed the Independent Counsel's Act in 1978, creating an independent counsel's office that could investigate officials within the executive branch. The law was challenged in the Supreme Court as a violation of the separation of powers doctrine, since Congress had established an office that possessed power over, but was separate from, the executive.

In Morrison v. Olson, the Supreme Court upheld the constitutionality of the act. There was a lone dissenter, Justice Antonin Scalia, who warned of the political dangers that such an office could pose given the temptation for a special prosecutor to engage in politically motivated investigations or prosecutions. It was not until years later when a special prosecutor named Kenneth Starr was appointed to investigate a series of transactions known as "Whitewater," which ultimately culminated in the Monica Lewinsky scandal and President Bill Clinton's impeachment, that those on the left finally appreciated Scalia's warning.

For liberals anxious to retaliate against Bush, they should consider the future dangers that their antagonism would pose to both political parties, if not the moral implications of demonizing the president. To ignore that is truly to invite a threat to our democracy that no patriot should ever want.

About the Author

Brett Joshpe is an attorney and entrepreneur in New York City. He is Of Counsel to the American Center for Law & Justice and co-authored the book Why You're Wrong About the Right (Simon & Schuster, 2008).

Letter to the Editor View all comments (20) | Leave a comment

Robbins Mitchell| 12.8.08 @ 6:35AM

Do the lefty Bush haters in and out of government really think that the rest of us will simply sit idly by and allow some kangaroo style court to trump up criminal charges against President Bush and not respond with all the resources at our command?....frankly,I almost wish somebody would try it so I could work out my own animus by destroying them in the process...I've listened to them trash President Bush and lie about him for nearly 8 years now...and I have had a gut full of it.....if the incoming Obama adminstration dares to walk down that road, they are going to have me to deal with in the bargain.....along with millions of other Americans who are equally disgusted.....if they want war,then by all means let us have it.

stu.b.con| 12.8.08 @ 8:02AM

Well said Robbins--if it ever comes to that I will be shoulder to shoulder with you defending W.
I pity the fool!

Melvin Leppla| 12.8.08 @ 8:04AM

The elitist political rocket scientists seriously underestimate the anger that has been brewing in this country for a long time.
We have tried the Republicans and now the Democrats. We have seen the Constitution of this country treated as if it were toilet paper. We have seen corrupt wanton debauchery of elected officials use their political office for personal gain and greed. We are now seeing the wholesale looting of the Treasury with no end in sight.
The political ruling class is not afraid nor do they respect the Constitution. They are not even afraid of the voters anymore. The only thing that they are still afraid of is the 2nd Amendment because that in-itself still give s the American People the power of revolt.
My fellow Americans what choices do we have left. The political ruling class doesn't even hear our voices crying out with anger in how our Country is being sold off to the highest bidder and our laws trampled.
I thought I would never utter the word, "revolt," in this Country, but we who support this country are being forced into a corner with higher taxes, losing our homes, and the abuses of power of tyrannical government who is no longer responsive to the will of the people.
We have but little choice but to take matters into our own hands.

Jan | 12.8.08 @ 8:24AM

Great article.. the problem is the left cry like babies when the Executive branch is under fire when a Democrat is in office but will use everything in their power to bring down a Republican in office. The double standard applies here too. They don't think about what will happen down the road because more often than not THEY get away with it.

Charlie Rangel is a perfect example. He knows what he did (and is doing) was wrong and unethical. He IS above the law and Nancy Pelosi stands by him. Where was the outrage from Democrats when Sandy Berger stuffed his socks full of classified documents? After his admission and his conviction, you heard crickets.. I'm hearing crickets all day when I listen to the news these days.. I would love to focus on the Attorney Generals office. Isn't the Justice Dept supposed to hold people accountable and not play favorites? Don't they have the power to investigate anyone even if they are Democrats? Even if the appointment was made under a Republican President you saw Sandy Berger walk, he should be behind bars. I believe Eric Holder will be the CIA and the average citizens worst nightmare.. He will be scrutinizing everything we do to protect ourselves under the pretense of civil liberties and individual rights in mind, not how do we do whats best to catch the bad guys and keep us safe. He is a partisan hack who will not prosecute his own and will try to "change" the US policies at home and abroad when it comes to decisions the FBI and CIA need to make through his office. The Supreme Court picks will do the same, weaken our defenses and investigative abilities in fighting the war on terror here at home. They are influenced by outside entities that shouldn't have such power. Mexico definitely had a say in how Ramos and Campeon were so unfairly prosecuted and how does Sandy Berger/Rangel get off so lightly?

I'm not a Constitutional scholar and don't pretend to know how the government agencies work entirely but something just stinks.. I may be wrong about how the AG operates, but I don't think I'm that far off.. This is why so many Americans are fed up with politics in general. The left go about their business and go after Republicans not only for real unlawful and unethical deeds done, they go after perceived deeds done.

Jan| 12.8.08 @ 8:51AM

I meant to add that this is why people on the right get fed up with politics. They see this double standard happen when it comes to what the left do and feel powerless. They seem to get away with doing whatever they want and the right are always playing defense and beaten when it comes to getting their message out so the public has the convincing arguments that will influence their opinions. Their eyes need to be opened to see the double standard. What Pres Bush did was well within his power to do. We will be at war with terrorists for years to come and the dirty little secret is that our troops will never be "coming home" they will just move on to the next theater of operation....

Anthony| 12.8.08 @ 10:28AM

I, for one, am glad to see some posters really get their backs up on this entire leftist folly. This is the culmination of 40 yrs of leftist control in the media, entertainment, academia, and the government, both elected and the un-elected shadow government, ie the bureaucrats. Republicans, and especially President Bush, have allowed the loony left to occupy and control the cultural and political message without a serious response, hence, the build up to this madness of criminalizing the actions of political foes. This sunami of leftist hegemony will not cease until and unless we conservatives stand up and say ENOUGH!! Basic human nature tells us that people will continue their recklessness as long as the tide keeps sweeping them along without consequence. We helped create this mess, and we will be the ones to clean up the mess after this insanity reveals its true ,ugly, purpose. So, if it's going to happen, I say, bring it on, let's get it over with, once and for all.

Appleby| 12.8.08 @ 11:25AM

Of course, we won't have this problem with the antichrist-elect; disagreeing with King O is already defined as Racism.

LEN| 12.8.08 @ 11:40AM

Brett try reading the Constitution again, Congress and only Congress may declare war, then the Commander-In-Chief executes that war. You seem to me to be another apologist for another RINO. As a Conservative I believe that the Constitution is the law of the land, and that what we have now is one party (Democrats) whose entire foundation is in opposition to the law of the land, and another which is 50/50 and even then I really don't hear many putting forward good Constitutionally based arguments. To rule apart from the Constitution is then to do so only by might, and this Tyranny.
Frankly the Declaration of Independence was issued and the Revolution fought under less extreme circumstances than we have today, either we start to have legitimate or governmnet or we may need another Revolution. By the way just in case one might say I haven't read the legal arguments put forth concerning Presidential "War Powers", I have and go back to the Constitution, only Congress. George Bush may have meant well but was in way a friend to the Constitution. Federal (we act in this country as if it's National) Government grew under him and he continued to use the Presidenatial office far beyond the scope of what was laid out in the Constitution. Read the Constitutional Convention debates and see how the Founding Fathers feared what we are experiecing today.

The Kingfish| 12.8.08 @ 11:41AM

These fools don't realize what kind of matches they are playing with in their histrionics. The Roman Republic began to unravel when the Optimates and Populaires began to criminalize their opposition's legal acts. Caesar HAD to cross the Rubicon as Cato and his allies had made it clear once he lost his imperium they were going to prosecute him. This is how civil wars begin.

Dai Alanye| 12.8.08 @ 12:01PM

LEN is correct about the letter of the Constitution but questionable about the application of presidential powers. Presidents have been ordering military action since the time of our fuss with the so-called Barbary Pirates, and it is accepted because it usually seems to suit the needs of the time.

Part of the problem, of course, is Congressional unwillingness to declare war in many cases, even when as significant as Korea or Vietnam. They willingly pass the buck to the President.

Jeremiah| 12.8.08 @ 6:14PM

I think that George W Bush made some colassal blunders and was all in all a terrible president.

However, I think this piece is correct to identify these issues as part of the natural fray of politics: this is precisely the sort of thing our system expects us to be fighting out, here and elsewhere.

Impeachment and pursuit of criminal sanctions against presidents is very dangerous business. In Nixon's case those things were probably warranted. In Clinton's they were not and in Bush's they most certainly are not. Wallace is right that Bush's motives never seem primarily to have been for his own political -- let alone financial -- gain. I think this is a case of all's fair. Bush did what he thought he was right: American's have the right to scrutinize what he did and make a judgment, but this is not a matter for courts and lawyers.

Big Elk| 12.8.08 @ 6:18PM

Opie was cute as a littl TV kid, but as a gay, ugly, bald-headed, bad actor he sucks. opie and the hollywood Bush-haters have never forgiven Bush for winning the 200o election over the liar Al Gore, but Bush won that election fair and square, no matter what the hollywood uglies want or say. Prediction: Frost/Nixon will "bomb" at the box office.

mike| 12.8.08 @ 7:32PM

Wow, I've never heard from so many people who hate our country so very much. You want to start another civil war because a democrat won the election. Why don't we all stop calling each other names and work together to build a better USA for all our kids? I'm sure you have lots of names to call me but I'm an American first, then a democrat. I voted for Obama but against my own interests. I'm sure my taxes are going up because I'm in the top 1% of taxpayers, but I can handle it. I voted for Obama because I saw all the hope he inspired in young people. I don't particularily want my taxes raised, but my companies will continue to thrive and grow. I'm more worried about my fellow Americans that are losing their jobs and homes. I'm not anti-republican- I think Reagan was a great president, but Bush has let us all down and did not, in any way act like a compassionate conservative that he promised to be. I'm aware of the website I'm on and that most of you won't agree with me. That Ok, that's the beauty of our great, beautiful country. I was just kind of hoping that we could tone it down a bit and cool it with the incredible anger and , instead, come together and stop treating each other as enemies. Would it really be so bad if the new president turned out to be a great one? OK, now I've had my say and now I'm going to have dinner with my 4 beautiful daughters. So, even if you still want to call me names, it won't matter!

Jeremiah| 12.8.08 @ 7:39PM

Big Elk --

Thanks for your thoughtful, well-tempered and patiently analytic response to the thread.

You've contributed several ideas that we hardly could have done without. Especially that notion that Democrats are primarily motivated by anger about the 2000 election and our failure to elect "the liar" Al Gore.

You couldn't have been more right. That's exactly what motivates us Democrats. And that's all that motivates us.

David Govett| 12.8.08 @ 8:57PM

Opie's a dope.

Mark| 12.8.08 @ 9:06PM

Mike;
How dumb, they weren't commenting on Obama, this talk is about criminalizing politics. Oh, and if Obama raises taxes, he will slow the economy. he is going to build bridges (so he can control the $$) instead of canceling income taxes (that he can't control). Time to wake up.

mike| 12.8.08 @ 9:50PM

Hey Mark,
Congratulations, you're the first to call me a name! I was responding to the people who were talking about revolting against the perceived bias of the media, leftists, etc. Please read the e-mails from the classy folks like Robbins Mitchell, etc. There's a lot of anger and violence in their words. That's what I was reacting to. Some people were talking about the criminalizing of politics, but if you look at the thread again, you'll see what I was reacting to and why I was trying to be reasonable. Oh, and if you lower taxes without reducing spending, then all you're doing is running up deficits. You can try to outgrow the deficits but, well, that doesn't seem to be working very well right now. I have over 2000 employees and dumb and asleep and not words they'd use to describe me. Look at how well we're doing with eight years of lowering taxes. Your turn.

Mike

Rich Irwin| 12.8.08 @ 10:41PM

Interesting read.

George W. Bush's legacy will be his leadership in his response to 9/11 and Hurricane Katrina.

No amount of bluster from either liberal or conservatives will change that.

But it's funny how much Bruce Springsteen sticks in the craw of the far right. "entertainment flake" - good to call someone names in an article that is, in part, speaking against that.

Chris| 12.9.08 @ 10:05AM

Sorry, I must disagree. This same argument was brought up during Iran-Contra, when Elliott Abrams complained that he was prosecuted criminally because of differences that were actually political.

That is false. Abrams lied, countless times, and some of them were told under criminal circumstances. He pleaded to some of them in order to escape felony charges. (Bush 41 pardoned him later).

Isn't what's good enough for "Rapist Bill" Clinton good enough for everybody? He lied too, remember? Amspec readers should certainly remember that!

Conservatives should value loyalty to the Constitution and the rule of law more highly than they value loyalty to political hacks who betray them at every turn.

Michele San Pietro| 12.10.08 @ 6:15PM

I am an Italian americanologist who greatly prefers Republicans over Democrats, but I do agree with Mike when he says it's time to stop insulting each other and being constructive. This applies to my Italy as much as it applies to the United States.