If the president does it, it’s not illegal

December 7, 2007

In recent years, as a result of a variety of jaw-dropping scandals, officials at the Bush White House has made it clear that they believe the president has the authority to decide for himself whether his own conduct is constitutional. Forget the judiciary, checks and balances, co-equal branches, etc. — Nixon once said, “[W]hen the president does it, that means that it is not illegal,” and this president seems to take that maxim to heart.

That said, neither Bush nor his aides go around explicitly making that argument. Instead, they do it in their lawyer’s office.

Sen. Sheldon Whitehouse (D-R.I.), a former U.S. Attorney and state Attorney General, took it upon himself to use his position on the Senate Intelligence Committee to pore over secret opinions issued by the Department of Justice’s Office of Legal Counsel (OLC), which, among other things, justified the administration’s warrantless wiretap program. After taking assiduous notes, Whitehouse announced this morning he needed to show the public “what the Bush administration does behind our backs when they think no one is looking.”

Specifically, he found three legal propositions used by Bush’s OLC.

1. An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.

2. The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II.

3. The Department of Justice is bound by the President’s legal determinations.

Yeah, it’s that bad.

Marcy Wheeler has a really good post on this, with extended excerpts from Whitehouse’s speech, but I found this portion of his remarks particularly striking:

“The President, according to the George W. Bush OLC, has Article II power to determine what the scope of his Article II powers are.

“Never mind a little decision called Marbury v. Madison, written by Chief Justice John Marshall in 1803, establishing the proposition that it is ’emphatically the province and duty of the judicial department to say what the law is.’ Does this administration agree that it is emphatically the province and the duty of the judicial department to say what the President’s authority is under Article II? No, it is the President, according to this OLC, who decides the legal limits of his own Article II power.

“The question ‘whether an action is a lawful exercise of the President’s authority under Article II,’ is to be determined by the President’s minions, ‘exercising his constitutional authority under Article II.’

“It really makes you wonder, who are these people? They have got to be smart people to get there. How can people who are so smart be so misguided?

“And then, it gets worse. Remember point three: ‘The Department of Justice is bound by the President’s legal determinations.’ Let that sink in a minute. ‘The Department of Justice is bound by the President’s legal determinations.’

“We are a nation of laws, not of men. This nation was founded in rejection of the royalist principles that ‘l’etat c’est moi’ and ‘The King can do no wrong.’ Our Attorney General swears an oath to defend the Constitution and the laws of the United States; we are not some banana republic in which the officials all have to kowtow to the ‘supreme leader.’ Imagine a general counsel to a major U.S. corporation telling his board of directors, ‘in this company the counsel’s office is bound by the CEO’s legal determinations.’ The board ought to throw that lawyer out – it’s malpractice, probably even unethical.

“Wherever you are, if you are watching this, do me a favor. The next time you are in Washington, D.C., take a taxi some evening to the Department of Justice. Stand outside, and look up at that building shining against the starry night. Look at the sign outside- “The United States Department of Justice.” Think of the heroes who have served there, and the battles fought. Think of the late nights, the brave decisions, the hard work of advancing and protecting our democracy that has been done in those halls. Think about how that all makes you feel.

“Then think about this statement: ‘The Department of Justice is bound by the President’s legal determinations.’

“If you don’t feel a difference from what you were feeling a moment ago, well, congratulations – there is probably a job for you in the Bush administration.”

Andrew Sullivan, noting Whitehouse’s conclusions, said, “Every time you think you’re hallucinating about the powers this president has accrued to himself, you come across a reality more surreal.” I know exactly how he feels.

OLC- Bush’s own personal Star Chamber, using the ruse of War time tactics to stomp on the sacred infrastructure of freedom. This makes him accountable to no one…jeez Clinton was disbarred…can we just maroon the moron in Dubai and revoke his citizenship?
He’s just a man. Just. a. man. Yet he has been a bull in a china shop.

Can we mutiny and have Congress and the Senate declare him unfit for this ship of state by reason of insanity/incompetence, I wondedr?

they must have a ton of brass cleaner for these clowns cajones…

  • I’m just so tickled we won the Cold War, which was couched as an existential battle of freedom – vs – authoritarianism, so we could usher in an even nastier form of authoritarianism here at home. At least the Soviets had the decency to be atheists.

  • So the president can murder at will if he so chooses. He can sodomize small children if he so chooses. No republican would want that kind of power for a Clinton there head would explode if it was proposed.

  • “It really makes you wonder, who are these people? They have got to be smart people to get there. How can people who are so smart be so misguided?

    But, they are smart. Maybe misguided, but smart. They have figured out that they can do whatever they want, and there is barely a man in Washington who will say “boo” to them. Most of them (D’s and R’s) ENABLE the behavior. Just look what it takes to even hold a vote on contempt charges for people who long ago LEFT the administration. Sheesh.
    As long as people feel they can get away with stuff, they will continue to do it and push the envelope further and further. Human nature.

  • Appalling- it took 2,000 years to get away from this. These people are dumb, and that is why our country has been making such bad moves and getting do wrecked over the course of Bush’s presidency- they have no understanding of the importance of our most basic and ingenuous institutions, such as constitutional democracy (the very reason we are supposed to have a president, not a dictator).

    Anyone who supports this is an evil idiot.

  • At this moment in our history, we would do well to kick Mr.s Bush, Cheney, Bolton, McConnell and all their immediate minions to the curb for being so undemocratic, and a true threat to our heritage and future! -Kevo

  • 1) Bush is a torturer.
    Historians will hang him with that label…
    Nothing he or his aides can do will dodge that devastating condemnation.
    All of his other crimes pale in comparison.
    An American President has both condoned and insisted on torture.
    Think about that…
    It is almost impossible to type such a statement.
    But there it is: Bush is a torturer.

    2) Callimaco said:
    History will condemn Pelosi for taking impeachment off the table.
    Please see #1.
    In other words: ABSOLUTELY. She is an enabler of torture.

  • Just noticed #5 above – Cut this apolitical reactionary drivel out! The Honorable Nancy Pelosi will not be condemned. Get your story straight! George Bush’s Administration will be condemned despite whatever Speaker Pelosi does or doesn’t do. Just think, historians will have a field day with the Republican party of the years 1994 t0 2008. This is the era, historians will agree, when the Republican party made a contract with America to take power, and ended up disgracing itself and its members under the leadership of the worse president in our nation’s history. Leave Speaker Pelosi alone – I too would like to see impeachment on the table, but I get the reasons it is not, do you? -Kevo

  • Bush makes me so angry I could explode. I’d like to tie him to a chair for a week and not let him get up for anything, and make him listen to Keith Olberman’s “Thursday Night Special” the entire time while he sat in his own offal.

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  • “Leave Speaker Pelosi alone – I too would like to see impeachment on the table, but I get the reasons it is not, do you? -Kevo”

    Pelosi’s refusal to let impeachment go forward is a betrayal of her oath of office.

    That’s the bottom line. Period.

  • Kevo

    Leave Speaker Pelosi alone – I too would like to see impeachment on the table, but I get the reasons it is not, do you?

    Honest question: what reasons do you get that she took impeachment off the table before the new Democrats were even sworn into office? The only one I’ve heard is that it would unacceptably upset America.

  • Bullshit…Pelosi has done as much to ensure no accountability for the Bush regime for publicly making such a statement and by refusing to allow it any time. There is no doubt that Bush Cheney deserve to be held accountable through impeachment hearings for crimes against the constitution and the country. “Political” reasons for not doing so were publicly announced before the question was even asked…by the Speaker of the House regardless of the crimes committed. History will not remember this Speaker of the House for any other reason except she was the speaker who took impeachment off the table for the most corrupt and unpopular presidency in our nations recent history. That she refused to hold town meetings on the issue or listen to public demand. She didn’t have to make the comment but it sure told Bush/Cheney that they would not be held accountable and that makes her an enabler. She is the reason it is not being done…She is the one who could make it happen…She is the one who allows this crime family to continue its activity…She is as much to blame for preventing impeachment hearings to hold this administration accountable as the reasons to hold it accountable.

    These people are smart but they are definitely not misguided. This is exactly what they hoped to accomplish. This is a dictatorship that just hasn’t insisted on it …yet. But the OLC has declared the President supreme ruler and maker of laws.

    It wouldn’t surprise me one bit to find out that Pelosi was actually Bush’s covert partner. Her actions make that a reasonable thought. There is no downside to impeachment hearings and the only way to not know that is to not want to know it. (see Fein, Greenwald, Cris Floyd, Nichols…the list is huge with all the arguments and evidence)

    My question is: Does the public at large know of the OLC’s opinion or of Whitehouse’s speech? Do they think anything can be done about it? I doubt it. Most, like me, are living in fear of this president, of what he might do next. Living under the fear of being rendered or tortured. Not fear of “terrorists” but fear of our own government under OLC’s supreme ruler.

  • I find myself wondering, from time to time, if it wouldn’t be the better course to simply stop talking about what the Congress should do about the evil that resides in the Oval Office—and rise up against this administration. Clearly the Congress will not do its job, Justice will not do its job, and the media will not do its job.

    The People of this nation defeated a tyrant before, without the aid of a Justice department, without the aid of electronic and broadcast media, and without a fully-functional Government. The “Congress” at that time was no more than a group of learned men who saw what this land could be, were it to throw off the chains of tyranny. Those who sought freedom from the “royal George” of that day were in the minority; yet, the vast bulwark of the “Tory” majority elected not to openly support the throne of England because the occupant of that throne was no longer worthy of support. What we tauntingly refer to as “Das Base” today is roughly equal in percentage-of-population as was the organized support for George III in the opening period of our first Revolution.

    And just as the fight to sever the bonds of tyranny did not begin overnight then, so it will not begin overnight today. But, the beginning of that “second beginning” can begin today. All it takes is for someone to stand up and say that this nation is still worth fighting for—and for someone else to decide that such a decision is the correct decision; the honest decision, and the ethically/morally proper decision to make.

    Thus, the question is posed: Who will stand and make that decision? Who believes that these United States of America are still worth the effort? Who will step beyond mere hand-wringing, and stand for the Constitution and that for which IT stands?

  • Amen to PeteCO … that pretty much describes what a lot of Americans stand for…. (I did not say all Americans)

    I’m getting tired of all the whining about what Pelosi is or is not doing…. The fact is: Bush and the Republican Cabal did all this to America. NOT Pelosi or any democrat…. Are they doing all they can? Probably not. Should they be growing a spine? Most definitely! Do I wish Bush/Cheney would be impeached? YES, a resounding yes….

    However: reality is…. the democrats, spine or no spine, have tried to play nice (which they shouldn’t) and even simple subpoenas are being stonewalled. What makes you think that Impeachment proceedings will go any further? I can already hear you about trying at the very least… And what would that do? Give the Bush administration a way to maneuver for the next 12 months until they leave office; at what cost? It would be the American taxpayer who’d be footing the bill for the defense as well as the prosecution.

    Just think what President Hillary Clinton, or President Obama could accomplish by merely accepting the powers of the President, as used by Bush. I’m not saying they should abuse that power, the way the Bush gang did (which I’m sure no Democratic President would do to that extent) but use some of that unchecked power to disclose all the damage the Bush gang and the neocons have brought upon America and the world.

    Just imagine, in the first 100 days of the Democratic Presidency, have an unprecedented ‘perp’ walk, unlike any seen before in American history. Make it clear to the world that America may stray from time to time, but that the American people do hold their office holders accountable, even if that means having to wait until a change of administration.

    Now… that would be vindication enough for me. I can think of a very long list of Bush Administration officials, who’d be paraded at the ‘new and improved’ Justice Department, being indicted for their respective crimes.

  • Time will show the Republican party working to undermine the institutional framework of our republic. The Honorable Speaker simply put doesn’t want to aid and abet such an enterprise. Instead, to all who condemn her, what is your vision of positive future policy, and how do you propose to get there? -Kevo

  • The criminality that is going on right now will be overshadowed if the voters of this country don’t demand accountability and throw alot of the bums (from both sides of the aisle) out and insist that some of these people be sent to prison.

    It’s bad enough to witness some of the behavior going on (but really, we can’t expect anything other than snake-like behavior from snakes), but we really have no excuse if we don’t demand accoutability on all levels from all who are responsible for this obsenity.

    I have no patience, for example, for those who support the likes of someone like Clinton (and a whole host of others)- just more of the same old bs.

    Ultimately we will have only ourselves to look to if a cleansing doesn’t occur.

  • It’s good to be the king. I can only hope that the Republican’s belief in Presidential Infallibility will be extended to a Democratic president.

  • “Time will show the Republican party working to undermine the institutional framework of our republic. The Honorable Speaker simply put doesn’t want to aid and abet such an enterprise. Instead, to all who condemn her, what is your vision of positive future policy, and how do you propose to get there? -Kevo”

    That, of course, doesn’t make a lick of sense. By this “logic” police aid and abet criminals when they arrest them!

    As for my “vision of positive future policy” – simple: restore the constitution. How do you get there? Impeachment.

  • Check out our Sheldon! I love that guy. Not that Chafee was all that terrible for a Republican, but we totally traded up. (Thank you, Club for Growth.) I picked this up on Washington Wire, btw. Dunno if they’ve got anything the other’s missed.

    Anyway, this is why I keep harping that I’d be willing to cut a deal on telco immunity from civil action. If that would get Republicans to budge, I think it would be worth it to start pulling the covers off this stuff NOW, not a year from now (and if we gave the Repub’s the civil immunity thing and they still wouldn’t budge, then god damn the Democrats if they couldn’t even manage to win that one in the court of public opinion.) There are people in our government that logic tells me the telco’s can finger who absolutely need to go to jail right now. We may never get Bush or Cheney but if we don’t start sending some people to jail for this sort of thing, they will just keep doing it.

  • I am a lawyer and, with a couple of caveats, I basically see no obvious problem with these propositions in principle. Just because w says it doesn’t mean it’s wrong.
    1. An executive order cannot limit a President.
    I see no constitutional problem with this at all. As long as the orders concern an area over which the president has constitutional authority he can write executive orders. I see no reason why he cannot set aside an order he himself or another president created. The alternative would be to bind the president unless he had a new formal order to replace or modify the old one. It is a political issue whether the president is a “good” president if he is so arbitrary that no one can predict whether he will follow his own or his predecessors’ orders.
    2. The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II.
    With a caveat, this is entirely reasonable. Lots of people, including the president, regularly decide what authority the Constitution gives them in a particular situation. Courts regularly determine whether a claim violates the Constitution. Congress decides whether and how it can write a law. Cops decide whether they can enforce laws in any given situation. The caveat is that all of these judgments, including w’s, must be subject to a final determination by the Supreme Court whose job it is to decide what the Constitution means. Unless w overtly thumbs his nose at the Supreme Court or the Constitution, he can and must decide what powers he has. The alternative is to have the Supreme Court issue an advisory opinion every time the president wants to do something.
    3. The Department of Justice is bound by the President’s legal determinations.
    Again, with a caveat, this is reasonable. The president is, after all, the head of the executive branch, which includes DOJ. So, unless his orders are in obvious conflict with the Constitution or a Supreme Court decision, what he says about the law has to bind the department. Do we really want every Assistan US attorney deciding whether to follow the president’s legal determinations?
    That said, w obviously abuses all of these principles big time. Cheney and Addington are masters at expanding these powers. They get people like John Woo to write legal opinions with just enough veneer to make them legitimate. But that doesn’t mean the basic principles are wrong.
    The solution to w’s abuse of all these powers is three-fold. First, there is the political solution — elections. Unfortunately, this failed in 2004 and did not sufficiently succeed in 2006 to give us a Congress that could pass veto-proof laws restraining the president. Second, there is the legal solution. The Supreme Court will eventually rule on some of these abuses. Third, there is the personal integrity solution. People who report to the president can resign if they think he is overstepping his authority. This president has had far too many enablers.
    Call me a cynic, but I fully expect [name your favorite D candidate] when he/she becomes president to hold onto many of the expanded powers.

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  • The same day that Sen. Whitehouse was taking on the White House, Speaker Pelosi was busy jumping the shark by making brave statements about the goings on in the Page Dorm (quote) “As a mother and a grandmother, nothing is more important to me than the safety and security of our House pages.”

    Great, thanks Nancy. If this is your top priority, then why don’t we just put you in charge of the Cub Scouts? For actual national leadership in a time of constitutional crisis, please see the Gentleman from Rhode Island.

    I’ve sent a note to Senator Whitehouse’s office, thanking him profusely, and have asked my own representatives (from New York) to support him to the hilt. Schumer probably will. Hillary is a question mark.

  • To Paul W: Alberto Gonzales, John Yoo and David Addington are all lawyers, so you’re hardly in good company on that fact alone.

    Like you, they seem to have overlooked the key tenant of Marbury vs. Madison, which states flatly that the Supreme Court, and ONLY the Supreme Court can determine what is and is not legal. The rest of us are simply required to obey, or challenge if we feel so inclined. Or perhaps they didn’t, which is why they felt the need to classify their opinions as top secret.

    But more to the point, and contrary to what you say, you NEVER decide what is or is not legal. When you see a stop sign, and choose to slow down, you’re not making a decision about the validity of the law, you’re simply following what we all consider established practice. If the practice is in question, you disobey, and take your chances, or you consult a lawyer, and then make the call. At no time do your actions count as a ruling on the law itself.

    The principle is no different for the President. In this case, you rely on the advice of your Attorney General (who makes his own calls about the DOJ junior assistants and their opinions.) If your AG tells you something is legal, it’s still just an opinion. You can still be challenged in a court of law, and the Supreme Court can still decide against you.

  • You might not like what Nancy did but do you balme her look at who woud be running the country if we impeached Bush!!!!!!!!! Now that is even scarrier than a Burning Bush……

  • any congressman or woman who voted for the patriot act should be brought up on charges of treason.They swore an oath to the constitution of the united states of america to protect the constitution and instead violated it.They should be found guilty,stood against a wall,and shot.Bush and Cheney should be the first to take thier rightful place at the same wall.

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