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.
