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How Presidential Power Became Untouchable

by David E. Kyvig on Jun 12, 2008

David E. Kyvig

Congressman Dennis Kucinich has presented 35 articles of impeachment against George W. Bush to the House of Representatives. Yet Congress is no more likely to respond than it did to his earlier proposal to impeach Vice President Dick Cheney. As a consequence, Kucinich’s message that constitutional limits apply to presidential authority is not likely to be heeded by either the incumbent president or the Republican who aspires to succeed him.

If so, the outcome will reinforce conclusions previously drawn from the history of impeachments, or more precisely non-impeachments. The legacy of the past 40 years has, ironically and alarmingly, been a sense of presidential invulnerability in the conduct of national security policy. That legacy deeply compromises our constitutional system.

Lessons drawn from Watergate, Iran-Contra, and the relatively easy Bush-Cheney avoidance of impeachment are discernible in John McCain’s recent statements. The Republican candidate has concluded that Americans and their representatives will tolerate unrestrained presidential authority if it is justified by even shaky claims of national security necessity. McCain is already asserting presidential prerogatives that Richard Nixon at his boldest would not have claimed while seeking office.

An expansive interpretation of presidential authority in matters of national security began to be quietly constructed, though not forthrightly asserted, during the Nixon administration. After the fact and under fire Nixon defended as legitimate presidential national security actions such as the secret bombing of Cambodia, the clandestine wiretapping of staff members suspected of leaking information to journalists and the break-in at the office of Daniel Ellsberg’s therapist.

In drawing articles of impeachment in 1974, the House Judiciary Committee could well have included these acts as constitutional offenses with which to charge Nixon, but decided against doing so. The committee concentrated its attention on the Watergate break-in itself and actions to cover it up. It left other overreaching presidential conduct, including attacks on Cambodia and warrantless wiretaps, uncondemned. For all the notice given Watergate, little has been said about the blueprint for it created for presidential conduct that Congress would tolerate. More than one subsequent president and now a presidential candidate have, however, paid heed.

The Reagan administration learned from Watergate in carrying out its secretive Iran-Contra affair. Its arms transfers to Iran and use of the proceeds to supply the Nicaraguan Contras violated the 1976 Arms Export Control Act and the 1982 Boland Amendment. Nevertheless, when eventually exposed, this executive action was not punished with impeachment. The majority Democrats on the congressional investigating committee proved hesitant to act.

Meanwhile, the Republican minority argued that the administration’s conduct was proper and justified. The minority report’s author, Wyoming Rep. Dick Cheney, continues to this day to claim unrestricted executive prerogatives in matters of national security.

Non-response to calls for George W. Bush’s impeachment have reinforced the Watergate and Iran-Contra demonstrations of the difficulty of thwarting an overreaching president. No wonder that John McCain, watching from his Senate seat since 1985 as impeachment efforts repeatedly failed, has now concluded that an extraordinary claim of presidential authority can be made with impunity and may well end up effectively unchallenged.

McCain’s campaign has boldly declared that the Republican presidential candidate believes the chief executive possesses constitutional power to order warrantless telephone taps and e-mail surveillance. McCain ignores the strictures of the Fourth Amendment against warrantless searches as well as a 1978 federal statute that requires FISA court approval and oversight of violations of personal privacy. An aide, Douglas Holtz-Eakin, quotes McCain as thinking that “neither the Administration nor the telecoms need apologize for actions that most people, except for the ACLU and the trial lawyers, understand were Constitutional and appropriate in the wake of the attacks on September 11, 2001.”

Before his prospect of holding executive authority himself had grown bright, McCain thought otherwise. Late last year the senator claimed that if he became the next commander in chief, he would consider himself required to obey a statute restricting what he did in national security matters, “no matter what the situation is.”

McCain, however, now appears ready to retreat from that simple test and embrace the more empowering standard of presidential authority allowed by recent impeachment history. The presidential power now claimed by McCain will be checked only if the electorate and the Congress together say, “Enough!”

Assertions of unrestrained executive power in the name of national security can be discouraged only if they lead to impeachment and removal — an unlikely prospect — or if aspirants for high office who explicitly reject such claims are embraced at the polls. Voters can at the same time support candidates for Congress such as Kucinich who express willingness to use the tools given them to defend the Constitution against overreaching executive authority. Otherwise, recent history suggests, the people of the United States may pay a heavy price for tolerating erosion of the checks and balances wisely incorporated into their Constitution.


David E. Kyvig, Distinguished Research Professor at Northern Illinois University, is author of "The Age of Impeachment: American Constitutional Culture since 1960" (2008).