Wednesday, September 8, 2010

On The Imperial Presidency

June 17, 1971

Haldeman: You maybe can blackmail [Lyndon] Johnson on this stuff.
Nixon: What?
Haldeman: You can blackmail Johnson on this stuff and it might be worth doing [...]
Nixon: Do we have it?  I've asked for it.  You said you didn't have it.
Haldeman: We can't find it.
Kissinger: We have nothing here, Mr. President.
Nixon: Well, damnit, I asked for that because I need it.[...]
Haldeman: Huston swears to God there's a file on it and it's at Brookings.

Nixon [to Haldeman]: Bob?  Bob?  Now do you remember Huston's plan?  Implement it.
Kissinger: ...Now Brookings has no right to have classified documents
Nixon: ...I want it implemented...Goddamnit, get in and get those files.  Blow the safe and get it.

---
March 21, 1973

Dean [to Nixon]: ...Now, where, where are the soft spots on this?  Well, first of all, there's the, there's the problem of the continued blackmail...which will not only go on now, it'll go on when these people are in prison, and it will compound the obstruction-of-justice situation.  It'll cost money.  It's dangerous.  Nobody, nothing -- people around here are not pros at this sort of thing.  This is the sort of thing Mafia people can do: washing money, getting clean money, and things like that uh, -- we're -- we just don't know about those things, because we're not use to, you know -- we are not criminals.

Nixon: That's right....How much money do you need?
Dean: I would say these people are going to cost, uh, a million dollars over the next, oh, two years.
[Pause]
Nixon: We could get that...if you need the money...you could get the money....What I mean is, you could, you could get a million dollars.  And you could get in in cash.  I, I know where it could be gotten.


Okay, it's time for me to finally write about the flipside of the problem of presidential weakness: the imperial presidency.

The problem is as follows.  Richard Neustadt said, back at the end of the Eisenhower administration, that the presidency was constitutionally a very limited (or "weak") position.  Presidents are not absolute rulers of the government; they're not, Neustadt explains, even absolute rulers of the executive branch.  They can only give orders to executive branch departments and agencies and hope to have those orders carried out in relatively rare and strictly limited situations -- and even then, operating by giving orders turns out to be terribly costly for presidents who try.  (Note: this is also true of Members of Congress, governors, foreign prime ministers, party and interest group leaders, and others who presidents need things from, but it's the exec branch that's important here).

So Neustadt believed.  But Watergate and other episodes (especially but certainly not limited to the Johnson, Nixon, Reagan, and W. Bush administrations) raise the question of: what if the president doesn't take "no" for an answer?  What if the president finds a way around the bureaucracy?  What if he does what he wants done, essentially, by himself -- or by people he hires who are loyal to the president, not to their agencies?  If the normal functioning of American politics is full of built-in checks and balances, what if presidents find a way to cheat that system, and to find ways to govern unchecked and unbalanced?

My answer is going to be: yes, presidents have tried to do that.  They generally do it through the "Presidential Branch" of government -- the White House Office, and the larger Executive Office of the President.  They have, in limited ways and for short periods of time, apparently succeeded.  But in the cases for which we have information, what these presidents have found is that the system is stronger than they thought, and that going rogue has all sorts of dangers to the president.  On the whole, I am convinced that this kind of thing -- that is, using the Presidential Branch to get things done that the president wants but that the normal processes of government stymie -- doesn't "work" in the sense of allowing a president to have unlimited dictatorial powers.  It doesn't work at all; it backfires, and destroys those who would try it.  I'm an optimist, in other words, about this problem.  It is, nevertheless, even from my optimistic position, a real danger to be aware of.  And there's no question that presidents do have the capacity to attempt it, and can create all sorts of damage in the process. 

And remember: the key here is presidents.  It is surely true, and will be true in any government, that some officials will have the option of abusing their power.  That's important to know, and it's at least somewhat important to make sure that measures are taken to prevent that sort of thing, whether it's by a vindictive IRS agent, a petty municipal health and safety inspector, a nasty police officer, or a power-crazed staffer at the National Security Council.  But what we're talking about here is a much bigger deal -- we're talking about whether presidents can become, essentially, elected dictators.  So yes, it's important that people working for the president may do illegal things, but it's a lot more important if he can with impunity order them to do those things and have his orders carried out.  There are also very important questions of what the government as a whole can do, and should be able to do, under the law.  I don't want to in any way discount that set of questions (such as whether the law should allow the government should be able to spy on citizens, or what sorts of protections should be required against holding people without charges).  But, again, they are not about presidential abuse of power; they're about democratic choices about laws.  The problem of the Imperial Presidency isn't about which laws should be passed.  It's about the possibility that the law might not be able to constrain a president at all.



OK, now to the stories. 

I'm going to have two lines of argument: first, that even White House staff don't necessarily follow presidential orders; and second, that doing things this way rapidly yields policy disasters.

Go back up to the top and read the first sequence (Nixon, Haldeman, Kissinger).  Haldeman is the president's chief-of-staff, the position that Rahm Emanuel holds today.  Kissinger is National Security Adviser.  Huston is Tom Huston, who Nixon had put in charge of formulating a plan for spying on and disrupting domestic opponents of the administration.  The plan, which included explicitly illegal actions by the government, was halted by the objections of the J. Edgar Hoover, still at the FBI.  As a result, and after the Pentagon Papers leaked in June 1971, Nixon and the top staff of the White House decided to implement the plan themselves, forming a unit within the White House staff -- the Plumbers -- to do it.  (You'll note too that while there really were violent and dangerous domestic dissidents, it took almost no time for the president's focus to shift to non-violent people such as Pentagon Papers leaker Daniel Ellsberg,

Now, the Plumbers did do plenty, but here's the thing: the relationship between the things they actually did and the things the president wanted turned out to be quite loose.  Sometimes, there was a clear cause-and-effect.  Nixon wanted Ellsberg smeared.   To do so, the Plumbers asked the CIA to prepare a psychological profile of Ellsberg (no, I don't know why they thought that was the way to go about it).  The CIA, however, refused to help the president's men smear a US citizen who the government was already prosecuting for a crime.  So, the Plumbers instead decided to break into Ellsberg's psychiatrist's office to steal his file.  Stupid (see below), but sort of what the president wanted.  In other cases, however, the cause-and-effect doesn't seem to be there.  As far as we know, Nixon never ordered anyone to break into Democratic Headquarters, which of course is what started the whole thing unraveling.  On the other hand, as seen above, Nixon was eager to stage a break-in at Brookings, but that never happened, although Liddy did come up with a few wild plots that he never implemented.   There are plenty of other examples, but perhaps the most dramatic is that after the burglars were caught, they (Hunt, particularly) promptly blackmailed the president in order to stay out of jail.   Or if you like, maybe John Dean's betrayal of the president -- Dean pretended to still be loyally coordinating the cover-up in spring 1973 even after he was already ratting everyone out to prosecutors.  So point #1: even within the Presidential Branch, even within the circle in which the president seems to be most able to get his way, it appears that presidents often don't get what they demand. 


Now, go back and read the second sequence above, with John Dean and Nixon.  Dean is White House Counsel, and in that role his main job by this point is to coordinate the cover-up of various illegal activities (that is, his job is obstruction of justice).  The key phrase to focus on here is what I put in bold: "people around here are not pros at this sort of thing."

Why is that important?  The history of the Imperial Presidency, of the president trying to bully his way through the bureaucracy by bypassing the normal departments and agencies and having the Presidential Branch undertake operations, is a history of clown shows and bad jokes.  Let's see...we have Ollie North showing up in Tehran with a cake and a Bible; we have the much less funny but equally disastrous policy of torture during the Bush presidency; and we have Watergate.  There are so many examples of incompetency during Watergate...I guess my favorite is that Plumbers Hunt and Liddy, after putting together elaborate disguises for themselves in order to travel to Ellsberg's psychiatrists office (to "case the joint," as it were), took (recognizable) pictures of themselves in front of the office.   Pictures that they then left in the White House, to be discovered by FBI agents after the Watergate break-in (although they didn't know what it was for some time).  They were, like Ollie North and David Addington, "not pros at this sort of thing."

Now, it's possible that it's just random bad luck for all involved, but I don't think that's right.  I think it's systematic.  The White House isn't set up to run government operations; it's set up to advise the president, to produce independent information for the president, and to assist the president in various other ways.  When you're hired by the CIA, you get trained in the proper procedures, you have the full support of others who know the proper procedures, and you have all sorts of rules and regulations to make sure you do your job correctly.  Obviously, that doesn't always prevent foolish mistakes, but at least there are likely to be regular procedures intended to ensure competence.  On Day One in the White House, there's nothing.  No rules, no procedures, no support, and depending on who gets hired only the dimmest of institutional memory.  And so if a president tries to operate the government out of the White House, the odds of things going drastically wrong are fairly high.  That's the logic of the situation...and I think the evidence is exactly what the logic suggests.

So what the argument suggests so far is that while presidents can try to run things themselves, in fact there are good reasons to expect that it won't work out very well.  On the one hand, even within the White House giving orders doesn't work out very well; on the other, to the extent it does work, those orders aren't likely to be well-executed.

That's the argument from within the presidency.  But there's also good reason to believe that presidential attempts to bypass the regular mechanisms of constitutional government cause problems outside of the White House.  Nixon, again, is a good example.  Each breach of regular constitutional order produces another agency, another interest group, another committee chair, with less of a stake in the man or woman in the Oval Office.  I think Nelson W. Polsby's analysis is the most useful one.  Polsby asks: why didn't Nixon at some point purge the White House, confess (some) of the crimes that had taken place, take the hit, and move on?  Because
Nixon obviously feared more than anything placing himself at the mercy of the goodwill of the people in charge of the various arenas in which disclosure was demanded: the courts, the press, the special Senate Watergate Investigating Committee, the House Judiciary Committee.  He must have felt that in each of these arenas he had no political credit, no goodwill to call on.
That's because:
[In Nixon's] view, his election conferred not only an extraordinary measure of legitimacy upon him, but also a kind of illegitimacy upon many of the very people with whom a President ordinarily does business: the bureaucrats, interest group leaders, journalists, Congressmen, and party leaders of official Washington...To most of these groups in the course of his Presidency Nixon gave intentional offense, and in each case it was offense of a character that carried with it a clear threat of a very basic kind...Nixon's policies...consisted of a systematic trampling of his political fences, a direct assertion that the legitimacy of the Presidency entailed the illegitimacy of those other political elites to whom a President normally is accountable (see below for citation, pp. 44-45).
In other words, yes, Nixon was (almost) impeached and would have been convicted for Watergate.  But the reason that everyone, Republicans included, were willing to take that step, the reason that people saw individual acts they had tolerated in the context of other presidencies in a larger context that demanded he be removed from office, was because of impoundment, and enemies lists, counting the Jews at BLS, a secret war in Cambodia, and on and on.

Seen from this angle, Nixon's gamble is basically that he doesn't need anyone else -- with the Presidential Branch created and enlarged from Truman on, it's no longer necessary for presidents to play by the (constitutional) rules, even knowing the costs it would have in the normal way that the presidency and the constitutional system are supposed to work.  The reason the two stories above (that presidents cannot actually run the White House as dictators, and that doing so risks incompetent government) are so important, in my view, is because if it turns out that one cannot actually run the nation out of the White House, if it just doesn't really work, then the president cannot afford to alienate everyone else in the system, and so we need not overly fear the Imperial Presidency. 

That's my reading of the evidence.  On the other hand...well, I'm not absolutely certain.  Maybe Nixon's White House has problems because of his personality; maybe Reagan's WH problems stem from his, er, management style; maybe George W. Bush's problems were a result of his inexperience.  I'm uncomfortable enough with the potential of presidential abuse that I tend to support the two-term limit on the presidency, even though I do think it has significant costs -- at least there's no chance for a president to perpetuate abuse beyond eight years.  Overall, however, my judgment is that presidents who attempt to govern by themselves, without constraints and against the constitutional grain, are only buying trouble for themselves.  That is, the constitutional system (and thus the rule of law) is in fact stronger than the presidential urge to overcome it.  Even if sometimes it seems a very close thing.



Long, long post, and here are the works cited.  The quotations at the top are found in Stanley I. Kutler, ed., Abuse of Power: The New Nixon Tapes.  The first sequence is from page 3; the other is found on page 254.

My best source for the Nixon stories is still Fred Emory's Watergate

And I quoted from Nelson W. Polsby, Congress and the Presidency.

7 comments:

  1. Good post, but it leaves me wishing you had devoted more analysis to extraordinary presidential powers after Nixon, specifically with regards to the (briefly mentioned) torture scandal under President Bush, and Obama's legal efforts to solidify the expansion of executive powers under his predecessor. In the long run, that stuff is scarier to me than the Plumbers' haphazard break-in and blackmail attempts, because over time it's getting legitimized.

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  2. Maybe Nixon's White House has problems because of his personality...

    For me, there's no "maybe" about it. In fact, in searching for evidence of the imperial presidency, it seems an all-too-common mistake to focus on the cartoon paranoid buffoonery of Nixon - Nixon's really not the President you should fear.

    I couldn't locate the cite, but recent research (at UofM, or maybe Harvard, or both) showed that the most successful individuals at corporations are those with the greatest social skills, irrespective of corporation level or discrepancy in candidate intelligence, talent or drive. As such we should expect that those individuals who rise to near the CEO's level will be those with the best social skills. A President, as CEO, should be surrounded by mostly socially adept immediate subordinates.

    Now when you think of those best able to play the system at companies where you have worked, you can probably relate to the danger of managing them via paranoia. These uber-players are the type that play along with paranoia (in furthering their ascent) but typically stab the paranoid in the back when the opportunity is rife, as happened to Nixon and any number of other similar executives who tried to manage in his counterproductive style.

    Drawing the comparison out one step further, the CEOs who win loyal subordinates are the ones who adopt the friendly, "go-along, get-along" personas of their successful, immediate underlings, in contrast to the iron-fisted style of paranoids like Nixon. (Think of Jack Welch and "boundaryless organizations", whatever the heck that means in real life, but it sure sounds friendly as a talking point). We could imagine Clinton being a successful dictator, and possibly also W. Bush, in their ability to not be off-putting to those players immediately under them.

    Indeed, consider (arguably) the most politically successful dictator in our lifetimes: Saddam Hussein. In his public persona, did Saddam come across as a surly uber-paranoid Nixon-type, or was he always vastly smiling in public, like a sunny Sunni Bill Clinton in demeanor?

    More: arguably the most politically successful dictator of the 20th century was Josef Stalin, a man who overcame a bad review from Lenin on his deathbed, apparently as a result of being a tremendously good listener, widely reported by the 20's bolsheviks to be a really easy guy to talk with.

    In summary, whether the Presidency can (or has) assumed imperial powers is probably not all that well revealed by the failings of the poor-player Nixon. "Nixon" and "the effective imperial President" are apples and oranges in the abstract, thus the example may not be all that conclusive in the particular.

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  3. Here's where the Neustadt argument begins to sour for me, though, and where I don't think Kernell has picked up the slack and we need to turn to different perspectives. That is, the Bush presidency.

    It's not that previous presidents haven't all tried, with varying degrees of success, to try to be an elected dictator in some ways. It's that Bush was able to succeed in a way that previous presidents had not: he succeeded through acquiescence. Nixon, as you so ably note, had burned his bridges particularly because of his way of looking at conflict and compromise. However, Bush was able to keep pushing the boundaries because of judges, bureaucrats, and legislature that were largely willing to go along with the idea. I hate to quote one of the Star Wars prequels, but it's actually apt: "So this is how democacy ends: to thunderous applause." The problem, as I see it, is that the bonds of partisanship have become so strong, reinforced by both ideology and a perception of shared fates, that ambition no longer checks ambition: in fact, shared fates means that ambition will reinforce ambition.

    Sure, it's far from absolute. Bush didn't want DHS, but his own party in Congress essentially told him that they wouldn't fight that battle for him, and that battle wasn't even a slam dunk loss. No Child, Millenium Challenge are a couple more examples where Bush needed Congress to do the actual act (no fevered dreams of a unitary presidency could even imagine otherwise) and they told him to take a hike.

    But take a look at Bush's imperial presidency, and the same thing under Obama. Bush's imperial power grabs were only opposed by Democrats from 2001-2008, and Obama's continuation of a number of those policies have basically gone unchallenged. This is not because Democrats agree with Obama on the merits of the policies, but because they fear that the fortunes of Obama are their own. Committee chairs have spent 12 years writing minority reports, and they'll swallow their pride to not go back to that. Ditto for the half of the caucus that chairs a subcom. And, of the remaining half, at least half of them (1/4 of the total) are painfully aware that their seat depends almost entirely on Obama's fortunes. Being politicians, they tend to think optics are everything, so even if they oppose something, they won't do so if push comes to shove.

    But Matt, you say, why wasn't the "imperial presidency" a threat in the first period of partisan polarization (1800-1910ish)? Because, despite shared ideologies, their fortunes were not shared. Simply put, chairing a committee wasn't the plum then that it is now. Members had much closer relationships with their constituents. Moreover, their election had less to do with local voters than with local party leaders. They might not come back next year, but that wasn't because national mood and national media had soured on their guy.

    Neustadt mentions partisan and ideological ties as a resource that the president can draw on. But, I wonder if that's like saying erosion was a factor in creating the Grand Canyon. I wonder if the rewriting that Neustadt needs is to incorporate the new reality of shared ideologies and fates better.

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  4. "The history of the Imperial Presidency, of the president trying to bully his way through the bureaucracy by bypassing the normal departments and agencies and having the Presidential Branch undertake operations, is a history of clown shows and bad jokes."

    First of all, there is nothing particularly jokey about the Iran-Contra affair. It was deadly serious, and the fact that it was full of its share of bungling does not make it less so. To reduce the whole matter to Ollie North bringing a cake and Bible to Tehran--actually I think it was McFarlane who did that--is far, far too glib.

    But there's a larger issue with your claim in the quote above: you are not actually talking about "the history of the Imperial Presidency," but rather the history that we currently know about. The difference is not trivial, and to make a distinction here is not to indulge in conspiracy theory.

    To the extent that we know about "imperial" moves by presidents, it tends to relate to what ended up being major blunders, e.g. Watergate and Iran-Contra. These were supposed to remain under wraps but obviously did not, and based solely on these test cases you are indeed justified in saying that "doing things this way rapidly yields policy disasters."

    It would be naive, however, to think that there are not any number of examples of which we are not aware as yet, and perhaps never will be. I would be astounded if there were not a number of cases of the Presidential Branch operating outside of the normal channels (and the law) and doing so successfully, just as there are really out there CIA ops and other foreign policy matters which we only learn about much later or never. It's essentially tautological that a situation where a president and staff operated outside the normal channels "successfully" would mean that neither you nor I nor any of us normal folks would know about it--thus such cases are necessarily excluded from your discussion here.

    I think this plows a rather large hole through your analysis--you implicitly assume we know about most or all of the examples of imperial presidential behavior. Yet to assume that almost begs the question--indeed the statement "in the cases for which we have information, what these presidents have found is that the system is stronger than they thought, and that going rogue has all sorts of dangers to the president" could be rewritten as "when they get caught and we hear about it does not go well for them, therefore we can be optimistic that the system works well." I don't want to exaggerate my point here, but this is somewhat akin to saying that the streets are safe because there are clearly a number of criminals in jail.

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  5. I agree with most of the points made in the previous comments. Focusing on the comic-opera episodes we know about, like cakes-to-Iran or the burgling of Ellsberg's psychiatrist's office, misses what people are really talking about when they worry over the imperial presidency. They're referring to things like the bombing of Cambodia, secret foreign policies in Central America in defiance of Congress, and more recently the Iraq war, the "black sites," the warrantless surveillance and assassination orders on American citizens, etc. Plus there's the ratchet effecct, where each presidency seems able to get away with things that previous presidents wouldn't even have tried. If there's some kind of Neustadtian brake operating on all this, it doesn't seem like one we can rely on very much.

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  6. I'd make a slightly different point--on impeachment specifically. I think presidents have good reasons to try to create power for themselves and defy the law, because if you've got a shredder, and aren't stupid enough to bug yourself, and you've got a good lawyer, you can get away with anything. Impeachment is a completely useless tool. Why would Nixon have been impeached? Why was Clinton? Why was Johnson? Because there was absolutely no question that they broke a law--there was a blue dress to substantiate claims Clinton committed perjury; tapes in Nixon's case, etc. I contend that without a smoking gun, impeachment is never on the table. Which makes it effectively meaningless as a tool to control presidential abuses of power in the post-Clinton era. Look at Bush's signing statements. If that isn't failure to execute the law of the land, what is? But it's an act that is easily confused by legal mumbo-jumbo in a way that Clinton's perjury could not be. Never mind petty theft, if presidents can get away with the big stuff like undermining the rule of law, I don't think we can write off the imperial presidency so easily.

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  7. What Geoff, Jeff, and Prof. Dominguez said. We still don't know very much about Iran-Contra, as most of the worst stuff was covered up with the help of Congress, where, by the way, one Congressman Dick Cheney as the ranking House Republican on the investigation was very influential in suppressing damaging information, and George W Bush as President, immediately after being sworn in, blocked public access to presidential papers relevant to Iran-Contra in the Reagan and first Bush administrations. Remember that the Weinberger Six were pardoned before Lawrence Walsh could bring further information relevant to HW Bush's role in Iran-Contra to light. What else does he know?

    And we still don't know about all of the abuses carried out by the second Bush administration. Far from it. We only know about that which a very few enterprising journalists were able to discover, and their editors and publishers were willing to publish. We know that the New York Times and the Washington Post have suppressed stories by their own journalists that were unfavorable to Bush and Cheney, et al. We have no idea what journalists as yet have not discovered.

    I think you are overly optimistic, Jonathan, in thinking that our leaders and their followers are completely inept. That's what you are implying, right?

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