Catch of the Day

So many "scandals," so many silly analogies -- but Steve Benen appears to be exactly correct about Lamar Alexander's ridiculous comparison between Iran-Contra and Obama Administration efforts to raise money for publicizing options under the ACA. Benen:

In order for Alexander's comparison to make sense, here's what would have happened: imagine Obama asked Congress to approve the Affordable Care Act, but instead, Congress did the opposite, approving a measure ordering the president not to change the existing the health care system. Obama, undaunted, sold weapons to North Korea and then used the profits to do the opposite of what Congress instructed.

That sounds about right.

Benen's whole post is good, but I'll expand some of the history, anyway. He notes that there's plenty of precedent for public-private partnerships in these kinds of cases. Alexander's point is that if Congress doesn't fund it, the government can't pay for it. That's correct -- but that's not relevant here, since what HHS is doing is finding funds for a private entity ("Enroll America"), not a government agency. Alexander thinks that doesn't matter because the Contras were also a private agency, but the major difference is that in the 1980s the Boland Amendment and other law specifically prohibited the government from doing anything to help the Contras; the narrower issue of Iran-Contra was whether that prohibition applied to National Security Council staff. In this case, while Congress didn't supply any money for HHS to fund Enroll America, they did not specifically tell HHS that it couldn't implement the law as part of their normal responsibilities.

At any rate, Alexander has forgotten even more: the larger problem of Iran-Contra wasn't that the administration was raising private funds for the Contras; it was that the Reagan Administration retailed weapons to Iran and then used the profits elsewhere. That's not the executive raising money from the private sector for something in the private sector; that's the executive generating new funds that they control and that Congress can't touch. Indeed, the real scary part of Iran-Contra (and here, I'm working from memory) was the idea that this could be self-sustaining; the executive branch could develop permanent funding streams that Congress would have nothing to do with. That would indeed upset the Constitutional balance, and that's probably the core of why Iran-Contra was such a large scandal.

And back to Benen's point: unlike the Contra war, which Congress opposed and was trying to stop, the ACA is actually law; it's the responsibility of HHS to attempt to carry it out as best it can. Certainly, if there's no funding for a specific task, they can't spend money on it. But there's no Congressional prohibition against trying to execute this particular law; indeed, the presumption is exactly the opposite, that HHS has been told by Congress to enact Obamacase as best as it can.

And meanwhile: Nice catch!

Dept. of Phony Reagan/Real Reagan Examples

Oy, Bob Woodward:

The Washington Post’s Bob Woodward attacked President Barack Obama on Wednesday, saying the commander-in-chief’s decision not to deploy an aircraft carrier because of budget cuts is “a kind of madness.”

“Can you imagine Ronald Reagan sitting there and saying ‘Oh, by the way, I can’t do this because of some budget document?’” Woodward said Wednesday on MSNBC’s “Morning Joe.”

I've seen multiple reactions blaming Woodward for suggesting that Barack Obama should, basically, ignore the law -- but so far, none that have actually called him out on the "Reagan" part of this.

Because Ronald Reagan wasn't just told by Congress not to deploy a ship; he was told by Congress to shut down a proxy war. And when he didn't listen, it became a full-blown disaster.

This is the story of the Boland Amendment, in which Congress to shut down a US proxy war in Nicaragua. The US had not only been funding the anti-government "Contras," but the CIA had taken direct action (mining harbors, for example) against Nicaragua. The history of this stuff is pretty complicated, but I think it's fair to say three things. First, the Boland Amendment had a real effect.  In some real and important ways, he followed the law, Woodward's hypothetical Reagan notwithstanding.

On the other hand, he also did attempt to get around the law. The law said that no US money could be spent, so Reagan had the National Security Council staff solicit private and third-country funds for the Contras. The third-party  funding was clearly legal, since it was beyond the scope of Congress. However, the use of NSC staff was not necessarily legal; it was based on a supposed loophole in the law since the NSC wasn't specifically mentioned. Third, however, the Reagan team clearly went beyond the law in the "Iran-Contra" affair by selling arms to the Iranians with the intent of sending the profits to the Contras.

When Iran-Contra was revealed, it was a total disaster for Reagan. His approval ratings suffered a severe and long-lasting hit (about 15 points, basically lasting from late fall 1986 through mid-1988). He lost his Chief of Staff and National Security Adviser. He suffered through major televised hearings exposing various embarrassing Administration details. And a special prosecutor was appointed, who wound up (for better or worse) hounding the administration up until George H.W. Bush issued pardons in 1992.

Now, I usually think about Iran-Contra in the context of "imperial presidency" discussions and argue that the lesson of Iran-Contra is the same as the lesson of Watergate: it is extremely dangerous to a presidency to attempt to act within the Presidential Branch -- in this case, the National Security Council -- instead of through the properly equipped and authorized departments and agencies of the Executive Branch proper.

But of course the more obvious lesson is: Presidents who defy the laws that Congress has passed risk big trouble!

In other words, its not just that Bob Woodward's (current) view of presidential supremacy is both historical and Constitutional nonsense; it's that it's a really, really, really bad idea for presidents who are interested in their own continued influence. For Woodward to blithely assert that presidents should be like Reagan and get around the will of Congress is, well, about as misguided as it gets.

After Old Scandals

From comments, James objects to my advocacy for pardon-plus-commission, and points to Watergate and Iran-Contra.  He asks:

What is your assessment of the Watergate and Iran-Contra pardons? You apparently don't think they have been as damaging in the long term as I do. Just let bygones be bygones? What kind of effect does that have in the long term? I ask sincerely.

Others chimed in with similar concerns.  I'll run through a bit of history, and then try to answer the question.  But to be clear: I do not think that pardon-plus commission is the same as "let bygones be bygones."  

The only Watergate pardon was Nixon himself.  Lots of people went to jail -- the president's chief of staff, his political director (wasn't his title, but...), his chief domestic adviser, the WH counsel, and quite a few other people.  Of those who clearly committed crimes in Watergate, the only ones to really re-enter politics were Liddy, as a right-wing yakker; Chuck Colson, who seems to have become a behind-the-scenes adviser to conservative groups in addition to his prison ministry work; and John Dean, who writes books that foolish liberals buy.  Well, Nixon also wrote a ton of books and did talk to Republican leaders, eventually, behind the scenes.  Of other Nixon-era figures who went on to careers with the GOP, most were either fully uninvolved with any of the Watergate stuff (Pat Buchanan and David Gergen, for example, were totally clean of anything as far as I know).  I suppose the exceptions are Fred Malik (not a criminal in Watergate; he counted the Jews at the IRS at Nixon's request, then became a GOP power player); Henry Kissinger (probably not involved in Watergate, but involved in illegal tapping, and of course he's been accused of a wide variety of international misbehavior); and Al Haig (on the periphery of various things, and may have tried to cut a pardon deal for Nixon with Ford).  I find it very, very difficult to believe that any high-level White House or executive branch staff could look at Watergate and believe that criminal activity wasn't risky; the only one who really came out ahead was Liddy, and a lot of careers, as well as reputations, were ruined.

Iran-Contra was a lot different.  On Iran-Contra, IIRC, there were something like five pardons, with the big one being Cap Weinberger.  I'll look it up because I can't spell Weinberger...oops, sorry, six pardons.  The pardons happened Christmas 1992, six years after the scandal.  As far as I know, the only one of the six to re-enter politics was Elliot Abrams (who had copped a misdemeanor plea), who served in some capacity during the G.W. Bush administration.  Ollie North was not pardoned, and IIRC he was convicted but the conviction was overturned; he re-entered politics as a failed Senate candidate and then as a yakker.  Same thing with Admiral John Poindexter: convicted, conviction overturned, and returned to government during the G.W. Bush administration.  As far as I know, no one else directly involved in Iran-Contra (as opposed to general Central American policy) has played any part in politics since 1986.  I doubt that Abrams, North, and Poindexter believe Iran-Contra helped their careers, but it's a lot better case than it was for the Watergate felons.

That's the history; now to think about it a little.  I can see arguments either way on Ford's pardon of Nixon, but on balance I think it was the right thing to do.  Thirty-five years on, I don't think Nixon's reputation is any better than it would have been had he been put on trial, convicted, and jailed.  Probably more to the point, I don't think that the crimes that Nixon and his people committed would have been any more or less rejected had Nixon been jailed.  Especially since Nixon would only have been indicted for the cover-up, and not the original crimes -- and the one thing that I think it too bad is that people mistakenly believe that a lesson of Watergate is that the cover-up is the problem. (Nixon probably committed felonies before the break-in, but as I said we don't know that for a fact.  However, Haldeman, Ehrlichman, Mitchell, Magruder, and Colson (among others) all had committed felonies before the break-in, and while it's vaguely possible that Nixon could have survived in office had all of them turned themselves in on June 18, 1972 and confessed to everything they had done, it seems rather unlikely to me).  As far as an example, it is possible that future presidents may have taken comfort in the Nixon pardon, but hard to believe that anyone in the presidential or executive branches (or on campaign staff) did so, since everyone but the president spent time in prison.

Iran-Contra is a much more difficult question.  I have a lot less sympathy for the Iran-Contra pardons, although I don't think it's entirely unreasonable to believe that the independent counsel in that case (Lawrence Walsh) was...I don't want to say out of control, but I've never really been convinced that it was a great idea to be moving to a trial of Cap Weinberger over six years and what would have been two presidencies after Iran-Contra.  Obviously, in the case of Iran-Contra, the various public investigations were long over with by the time of the pardons, and whatever George H.W. Bush intended, they were taken as vindication, with most Republicans believing that Walsh and the Democrats had criminalized policy differences (which, in my view, was absolutely not true).  On the whole, I tend to agree with commenter James and other commenters that the Iran-Contra aftermath (which consisted of a presidential commission, followed by a Congressional investigation, followed by a never-ending independent counsel operation, followed by pardons by the president who had been involved in the scandal in the first place) was awful.  While on balance I think those who were caught up in the legal consequences of Iran-Contra probably did feel that they had suffered, they also wound up feeling that they were unfairly stigmatized -- and Republicans generally agreed.  The consequences, mild as they were, probably did serve as a deterrent for future illegal activity, but a very mild one at best. 

I think it's awfully hard, however, to argue that pardons were the key step.  The entire process broke down.  Looking back, I don't know what would have been better.  But I do think that one of the lessons for those who believe that torture should be met by prosecutions and prison time is just how difficult that might be, just in practical terms.  If the goal, as commenters argue, is to deter future misdeeds, then lengthy prosecutions with uncertain results are unlikely to do the trick, or at least so I believe.  Moreover, and this is one of the things I've argued several times before, the shared legal jeopardy across an administration makes everyone a lot less likely to cooperate with investigations. After all, Cap Weinberger wasn't at the heart of Iran-Contra, but he wound up in trouble years later.  The truth is that prosecutions for torture might get to the people most responsible -- or might wind up ignoring them, if they were good at covering themselves, and put people tangential to the problem into prison.  Or perhaps low-level operatives pay the price, and the people who actually set the policy go free.  That's the long-term prognosis for prosecutions.  And, given the previous example, there's every possibility that the next Republican president would pardon anyone who does get convicted.

That's certainly not what I am advocating in the present case.  I guess what I think is that another drawn-out legal process, like the one from 1987-1992, is likely to get the same results; Republicans will feel persecuted for partisan reasons, or at least claim that they feel that way, and between that and real legal jeopardy for so many people, they will rally around the torturers.  Which will mean (and has meant) endorsing torture ever less grudgingly.  Basically, I think that the goals of reviving the consensus against torture and of devising good procedures for dealing with terrorists are not compatible with the goal of prosecuting people.  I understand those who believe that there's a moral imperative involved in seeking justice for those who committed evil acts.  I can't really argue against that.  All I can do is to say that politics involves trade-offs, and in this case, if I'm right, satisfying the moral imperative will involve real costs that those who oppose torture, in my opinion, should be reluctant to accept.

As I've said, all of this would be especially true if George W. Bush himself would cooperate by accepting a pardon, admitting to what happened, and denouncing torture.  With him (and certainly Powell, and probably Rice if Bush was in, and with those three probably quite a few others) on board, Cheney and his gang would really be isolated.  A subsequent truth commission, with legal jeopardy no longer an issue and partisanship at least somewhat subdued, could then, I believe, have a chance to work.  The people who carried out the policies, and with any luck at least some of those who initiated the policies, might tell the truth freely.  They might explain exactly what happened, that it was torture, that it didn't actually "work" in terms of getting information (assuming that's the case, which I think is most likely), and that it was the wrong thing to do and un-American.  Obviously, I could be wrong about that...but I think that there are a lot of people involved who think of themselves as honorable, who got caught up in things that they never expected and were not prepared for, and who probably are not very proud of what they did. 

Maybe I'm wrong; maybe everyone involved, from Bush on down, really thinks that torture was something to be proud of.  As far as I can tell, Dick Cheney does.  But I'm willing to bet that I'm right.

The other cost would have to be that Obama would talk about how Bush started off with the best of intentions, and how overreaction in wartime is a sad but consistent theme in American history, and so Bush is just like Wilson and FDR.  I realize that's a very tough pill for liberals to swallow, but I just don't see an alternative that has any better chance of preventing a fully Cheneyized future Republican party, which will, we know, sooner or later wind up back in the White House.  Oh, and by the way, pardon would not preclude impeachment and conviction of federal judges (I think it would protect people from being disbarred).  However, it wouldn't protect them from losing their jobs or their reputations, which could certainly happen if an honest, open commission puts people in the spotlight.

I guess, all things said, that I'd turn the original question back around: I do think that the aftermath of Iran-Contra went wrong, and I think that something extraordinary should be done so that the aftermath of torture doesn't go wrong.  Prosecution, however, isn't something new -- it's exactly what people tried to do in 1987.  It didn't work then, and in my view it's even less likely to work now.  Pardon -- from a Democrat who opposed the policy, not from a Republican who was involved in it, and before prosecutions, not after years of legal fights -- would be extraordinary.  If handled right, and with a little luck, I think it could work.  And, again, I just don't know of a viable alternative.

Shame and the GOP

Steve Benen has a nice outraged post about the new GOP candidates for 2010 that were involved in the U.S. Attorney scandal a few years back.  Hey, Steve!  How about a little context? 

Watergate figures G. Gordon Liddy, Chuck Colson, and Fred Malek are all respected members of the GOP and/or conservative establishment (to be fair, John Dean seems to be a respected member of the Dem and/or liberal establishment, or at least someone that a lot of them treat as if he's respectable.  Big mistake, in my opinion).

Scandal-plagued former Speaker Newt Gingrich is too.  Tom DeLay, as well.

As is Iran-Contra figure Ollie North. 

And Ralph Reed, of the Abramoff scandal.

And that's off the top of my head; I'm sure there are more -- and I'm not even counting the torture gang from the recent administration.

Can't think of many equivalents on the Democratic side.  Jim Wright slunk off and disappeared from public life, as far as I know.  Dan Rostenkowski?  Pretty quiet after prison.  I don't notice Mike Espy having a regular show on MSNBC, and Henry Cisneros, who was as far as I can tell not even guilty of anything, is at best a very quiet back-room player, if that.  I'm sure many Republicans would say that Bill Clinton trumps all of them, but if you want to count him, you would have to count Reagan (Iran-Contra) and Bush (torture), not to mention the Vitter/Ensign wing of the Republican party, or values guru/slot machine addict Bill Bennett.  If I'm missing major figures (from either side), please add a comment. 

So, no, this is basically just business-as-usual for the GOP.