WHEN THE PRESIDENT DOES IT…. It’s been a common refrain over the last eight years, but it’s even more common now in light of the new Frost/Nixon movie: “When the president does it, that means that it is not illegal.”
In context, Frost had asked about the notion that a president can “do something illegal,” if he/she decides the crime is “in the best interests of the nation.” Frost was particularly interested in the notion of the Huston Plan, which endorsed illegal surveillance and black bag jobs against Americans. After uttering the now famous phrase, Nixon added, “If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president’s decision in that instance is one that enables those who carry it out, to carry it out without violating a law.”
Fox News’ Chris Wallace asked Dick Cheney something similar for an interview aired this morning: “If the president during war decides to do something to protect the country, is it legal?” Cheney’s answer wasn’t exactly Nixonian, but it was close.
“General proposition, I’d say yes. You need to be more specific than that. I mean — but clearly, when you take the oath of office on January 20th of 2001, as we did, you take the oath to support and defend and protect the Constitution of the United States against all enemies, foreign and domestic.
“There’s no question about what your responsibilities are in that regard. And again, I think that there are bound to be debates and arguments from time to time, and wrestling back and forth, about what kind of authority is appropriate in any specific circumstance. But I think that what we’ve done has been totally consistent with what the Constitution provides for.”
By saying he’d need Wallace to “be more specific,” Cheney seemed to suggest that he may see limits on the “Presidential prerogatives > rule of law” formulation.
On the other hand, the rest of his answer seemed to indicate that those limits are not immediately apparent to Cheney. Indeed, given the question, and Cheney’s response in the context of his constitutional oath, he seems to think that a president protecting the country can do anything — literally — so long as the chief executive is responding to a national threat, or at least what the president perceives as a national threat.
Matt Yglesias had a good item noting that while protecting the country is a good idea, Cheney’s principles are inconsistent with a democracy, since every president always believes there are threats, which in turn could lead presidents to routinely supersede the law. (Indeed, in Cheney’s case, it’s even more extreme, since the mere possibility of terrorism is enough to empower the White House to ignore legal limits.)
Underlying all of this is an odd conservative lack of faith in democracy. Cheney’s implicit theory is that the democracies prevailed in the Cold War — surely a time of greater external threat — despite our liberal political systems. In fact, the openness of liberal democracy was a major strength. Robust political competition, a free press, transparency in government, etc. helped ensure that policy errors would actually be corrected and that corrupt practices would be curbed. Cheney-style autocracy works fine as long as nobody is ever incompetent or corrupt, but that’s never. And it certainly doesn’t describe the Bush-Cheney administration.