If the president does it, it’s not illegal

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.