Historically Speaking: Executive Power & The Imperial Presidency—Part 3

By Will Bellaimey with Elizabeth Gracen:

For the latest in my series of conversations with Will Bellaimey, history teacher and co-creator of the podcast All the Presidents, Man, we sat down to talk about the powers of the executive branch. News had broken of protesters in Portland being detained by federal agents under suspicious circumstances, and questions were swirling about the possibility of the president trying to delay the election. I wanted to know if all of this was new, and what history might tell us about the extent and limits of presidential power in a moment of crisis.

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EG: Okay, Will, so where were we?

WB: I think it's time to talk about Vietnam. So, after World War II, we never declare war again. And by we, I mean Congress, and there's a couple reasons why we don't do that again. The first one is that from World War II, we're never really at war with another country in the same way. It's always defined as we're at war with the communists now or later with terrorists. So instead you start to see the rise of both little wars and secret conflicts all around the world that are just ordered by the president. Like when the CIA does a coup on somebody, Congress doesn't even have to approve that.

President Johnson signs the Gulf of Tonkin Resolution - image: manhhai on Visual hunt

EG: But is Congress ever informed in some cases when the president is going to act?

WB: Yes, but the Constitution didn't really foresee the existence of the CIA. It says that the president shall, from time to time, make reports on the State of the Union. So some people would say that all you have to do is give a speech once a year; but there are a lot of laws that do come up. That suggests that there have to be secret committees within Congress that will be briefed about intelligence activities that reach a certain level, but it starts to get very murky, and the use of troops on the ground is often viewed as kind of a different level. If we're going to send in U.S. troops on the ground, into another country, that's a war, right? Well, maybe not if we're not declaring war on a country, if it's just a security action, right? And so at that point, the compromise is what are called authorizations of the use of military force. And the most famous one probably would be the Gulf of Tonkin resolution, where a boat was blown up in the Gulf of Tonkin near Vietnam, and President Johnson asked Congress to give him the authority to use military force against whoever blew up that boat.

Now, at this point, the U.S. already had a lot of troops on the ground in various ways in Vietnam, originally to support the French under Eisenhower and to do lower-level security actions under Kennedy. But once the Gulf of Tonkin resolution is passed, Johnson takes it as a blank check to really expand what becomes the Vietnam War.

That war only ultimately ends in part through Congress asserting a more basic power that goes back to Britain of withdrawing funds and saying to Nixon, “We won't give you the money to keep doing this.” But Nixon still manages to bomb Cambodia and Laos and all these places—and because it's from the air and there are no troops on the ground, he says he doesn't necessarily need authorization. And so the question of where the commander in chief clause ends becomes much more difficult to view.

Then there are authorizations as a military force that are used to do later actions like supporting and then trying to remove Saddam Hussein in the nineties. There were Reagan's actions in a lot of Latin American countries like Grenada that were done through either secret CIA kind of stuff or on some basic commander in chief clause. But the whole Iran Contra scandal comes out of the fact that Congress didn't give him any money to do that. What they were doing there was getting their own money by selling weapons. So it's a way to get around the power of the purse and separation of powers issue. So, here I am talking about foreign policy, but of course I've just like flown by Watergate.

EG: When you hear the words executive privilege, that’s where your mind goes. Watergate and Nixon.

WB: I think it's actually more helpful on some level to think about executive power as basically a combination of the expansion of the federal government and the expansion of the American military. When those two things expand, the presidency expands. Then you combine that with the expansion of the power of the president through the media.

EG: And that changes everything.

WB: Let’s talk about Nixon for a second. Nixon is famous for saying the phrase, “If the president does it, it's not illegal.” And a lot of previous presidents had broken the Constitution and committed crimes. Some of them, like Johnson, were impeached. Some of them have been investigated, but Nixon was pretty much directly involved in a break in. This directly raises some very basic questions about the limitations of the president and specifically what powers Congress has to investigate.

EG: What about transparency in general? How does the public actually ever find out about their leaders and what they are doing? What are our rights as citizens to get that information?

WB: I think it's really clear that Nixon acted in bad faith in using the doctrine of executive privilege to cover his own dirty tricks, which I think anybody would view as amoral. And I also don't think anybody would say it's in the public interest, but there is an actual tension between the importance of transparency for the public good and the existence of certain conversations that under certain circumstances have to be kept secret. I don't think that Hamilton was crazy when he said that secrecy is an essential power of the presidency. The question is just what is in the public interest and when and how does it need to come out and be released? I would say every fight over executive privilege from Nixon on, and probably before, was involved in some version of trying to assert that important fact to cover up a specific action that's either embarrassing or illegal or both. So if we talked about Clinton's impeachment—embarrassing, absolutely, but illegal . . . depends on what your definition of “is” is. In terms of the public interest, it’s hard to say. Certainly all the stuff regarding the Mueller investigation falls into a similar category. And I could give you examples from every president from Nixon on of that tension existing.

EG: I was reading about how after Nixon executive privilege was used much less. And then Bush used it six times. Clinton used is twelve times. Obama only once. It’s almost like “what the market will bear” basically in terms of how much executive power we will accept at certain times in history.

WB: All of these presidents also come at a time when partisanship is really deep and intense in the culture and in the Congress. So that leads to endless investigations of all presidents. Of course, when they're involved in all sorts of enormous bureaucracy and power within the country and an enormous empire and power outside the country, there's just a whole heck of a lot to investigate. There’s a lot of dirty stuff to find. I think you could impeach literally every president that we've had. The question that came up under Trump was, in part, can you impeach a president for anything? The Republican lawyers were arguing that if you allow this person to be impeached under this circumstance, then the president can be impeached for literally anything. And Adam Schiff and co. were saying, “If you don't impeach this person, then the president can't be impeached for literally anything.”

EG: And it feels like his impeachment check has no more power than just a slap on the hand. So where does that leave us? How do we assess the current moment and the anxiety we’re having about the current powers of the executive branch?

WB: We're in a moment of great assertions of executive power and certainly have a president who is by any measure more unstable and less knowledgeable or caring about the limitations of the Constitution than anyone we've ever had in office before Nixon. Nixon used to get drunk and threatened to nuke other countries—and I still think that in that situation he was probably more together than Trump is right now.

EG: Well, that certainly doesn’t give me or anyone else any peace of mind!

WB: I always feel when I have these conversations that it doesn’t really matter who's in that office right now. Some of the problems that we're seeing would just be solved by having somebody even a little bit different in there, but there is no way the problems that have existed for a long time are going to go away. That is way beyond any one individual. There are no simple solutions. A mandatory changing of that person, or maybe this is a mandatory call to arms, the power to limit.

Most of the things that the president has done and is doing is in the hands of other people in government.

Congress has great power to limit the president. On some level, Mitch McConnell is more responsible for the continued excesses of the Trump administration than anyone else. If Congress would limit these things, the excesses would stop. I really think the courts would, in most cases, side with Congress—if they use the powers that are in their hands. Plus, the states have great powers to resist federal control.

EG: And in many states, they're using them and in others they are not.

WB: To me, the fear of “Oh, what is Donald Trump going to do next?” is one that the media likes to tell, because we understand it on very basic level in a who are the good guys and who are bad guys kind of way. That’s a very simplistic and ultimately empty explanation of what's going on in the country.

EG: So what is going on in the country?

WB: What's going on in the country is that this kind of behavior is being purposely enabled at all different levels of government and being purposefully resisted at all different levels of government. And we're seeing ongoing clashes between those two things. So when people watch MSNBC and they're like, “Oh, what if Trump canceled the election?” I have the simultaneous thing to say elections are very much in peril, but they're in peril through the actions of local Secretaries of State and election leaders through the actions of governors, through the police, through the inaction of Congress.

Regardless of what Donald Trump does, if all of those people took their job seriously and did their jobs, the elections will be very safe. We can carry out an incredibly safe and democratic election whose outcome will not be in doubt—even if Donald Trump does everything he can to block it.

Many states, including some key swing states, are in the control of Democratic Secretaries of State who will not be taking their orders from Trump.

EG: So, don’t give up hope that the worst-case scenario won’t play out?

WB: It is playing out. What you're watching on TV is so focused on this one corner of what's going on. It’s like Black Lives Matter. Activists went into the streets, and they weren't demanding that Donald Trump change something; they were demanding that the mayor and the police chief and all these folks change something. And I think one of the biggest things that people need to do is broaden their scope of government.

Because even though the president has become imperial, the president is not a dictator, and our democracy is in great peril, but not just from the president. It’s in great peril, in part, because we've spent so much of our time focused on the president. And if it's destroyed, it won't ultimately be destroyed by one man, one person. And if it's saved, it certainly won't be saved by one person. It’s through individual actions and decisions and following and reverence for the Constitution by people at all levels of government.

Will Bellaimey teaches U.S. Government and Politics at Flintridge Prep School outside Los Angeles where he is also the director of the Los Angeles Museum of Geography, which is staffed entirely by seventh graders. His podcast, All the Presidents, Man, is available here.