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.