From a panel discussion at the Hofstra University Conference on the Reagan Presidency moderated by William F. Levanstrosser. Papers by Eric M. Freedman, Andrew S. Merrifield , David Mervin, and Frank J. Smist Jr. and John P. Meier. Mark Danner, Elliott Abrams, Charles J. Cooper, Michael A. Ledeen, and Susan Page, discussants. Papers and transcript published in President Reagan and the World, Eric J. Schmertz, Natalie Datlof, Alexej Ugrinsky, eds. (Greenwood Press, 1997)



Discussant: Mark Danner

I feel a bit shell-shocked. When I got out of the car not long ago on this bright, sunny campus, I was greeted by a publicity man from the conference who asked on what panel I would be participating, and when I said Iran-Contra, he visibly brightened. “Oh my gosh, we’re going to have a demonstration!” he said. “It’s very exciting.” I had visions of tomatoes coming at me from the back, and I told him I’d agree to be excited if he would agree to seat me as far as possible from Mr. Abrams, who I assumed would be the target.

I think I’d like to begin by asking about Iran-Contra the question the Jesuits like to ask when they see a difficult problem, which is: What is its quiddity? What is its “whatness”? What separates it from everything else – in particular, from other scandals? And I would suggest to you that what separates Iran-Contra from other scandals, and what makes it remarkable, is the fact that we’re still, almost seven years later, talking about it. Not only here – where one would expect to be talking about it – but within the political system itself. We have had an amazing inability to be quit of it. The political system has not been able to be quit of it, nor has the judicial system.

I think, then, its duration is probably Iran-Contra’s most significant attribute, at least as a key to understanding how it differs from other scandals. Nor do I ascribe its long duration to the inequities of Lawrence Walsh. I think we have to look at the crimes, or the alleged crimes, and, again, ask what makes them different. I don’t agree with Professor Merrifield that we learn very much by comparing these to, or putting them in the same basket with, what happened during Watergate. I think the actions are quite different. One had to do with domestic political affairs, and largely resulted from a siege mentality – even a paranoia – within the Nixon White House, a paranoia that had been exacerbated by the controversy over the Vietnam War.

Iran-Contra was different. To call it a “strategy of malfeasance” may be going a bit far, but it’s certainly true that officials in the Reagan administration adopted unusual methods to get by what they considered unfair restrictions imposed on the president’s inherent powers by Congress. If we’re going to understand Iran-Contra, we have to look at the particular moment in history when it took place. After Watergate, after Vietnam – the first really can’t be understood without the second, I don’t think – Congress began passing a series of laws that together constituted a fairly significant revision of what had been, since the National Security Act of 1947, the national security system of this country. The War Powers Resolution, which was passed in 1973 over President Nixon’s veto, is probably the best known of these laws. Others include the Arms Export Control Act, as amended during the late ‘70s, and the Intelligence Oversight Act of 1980.

Now, during Iran-Contra, it was almost as if Reagan officials were trying to work their way through an obstacle course – avoiding this law, avoiding that law; and I think understanding the need to avoid these laws is the key to understanding the peculiarities of many of the Reagan policies. The arms-for-hostages exchange was the most peculiar and the most regrettable: to avoid the Congressional Intelligence Committees and the Arms Export Control Act, President Reagan conducted his Iran initiatives through staff members on the National Security Council, who – in order to avoid the 1984 Boland Amendment, which forbade aid to the Contras – hired amateur covert operators, or former professional covert operators, to do the leg work.

While this was going on, the president reduced himself and other high officials to the position of personally soliciting aid from foreign leaders. Now I’m not a lawyer, but what always seemed to me to be disgusting about this – and I emphasize disgusting – is there has to be an implied quid pro quo in asking for money from a foreign leader when you happen to be a head of state. King Fahd did not give his millions to the Contras as a personal favor to Ronald Reagan – because he liked Ronnie Reagan, private citizen, or Ronald Reagan’s movies or whatever; the king gave that money because he expected some sort of consideration – maybe not a specific consideration, but something from the administration in return. It is in this that administration officials were, in effect, selling their positions, cashing in on them, to escape Congress’ control of the purse. That has always been the most troubling aspect of it.

I would include in this “list of offenses,” if you will, President Reagan’s and President Bush’s aid to Iraq. Though this aid was not a crime, these presidents did funnel billions of American dollars to Iraq through the Agriculture Department and through the Export-Import Bank, and at least a couple of those billions were sent to Saddam Hussein’s regime after professionals within those institutions had concluded that Iraq would never be able to pay this money back.

Now we come to the second part of this problem: Congress, having passed the laws that it passed, found itself confronted in 1981 with a vigorous administration that didn’t recognize or didn’t accept these prerogatives of Congress; the congressmen and senators were now put in the awkward position of having to see that their own laws were enforced. They didn’t do a very good job of this. Congress discovered very quickly that passing bold laws in a time of presidential unpopularity and congressional supremacy was one thing; enforcing them against a popular, strong president was quite another. Though I agree with those who have said how outraged they were when they found out what had gone on in secret and so on, I believe it’s impossible to understand this affair without acknowledging that, in its behavior throughout the eighties and especially in its hearings in 1987, the Congress did not do its job. Among the many sins of the hearings were the setting of an unrealistic deadline (which meant the administration was able to stonewall successfully on documents), playing to television, and coddling witnesses – most obviously to Colonel Oliver North.

A good many of the problems Lawrence Walsh has had derive from the fact that he had dumped upon him political problems he was not equipped to resolve. In this sense – a different sense than the one President Bush intended – I agree that there has been a “criminalization of policy differences.” Out of those hearings should have come legislation intended to readjust the balance between the executive and the legislative branch. I believe the country is in dire need of a new National Security Act, a comprehensive law that will provide for consultation between the legislature and the executive, that will restore secrecy to its proper place, and that will ensure that, before Americans are sent abroad to fight, the Congress must go on record about it. To me, if such a law had come out of those committee hearings, we might see Iran-Contra in a very different light today.

In the time left, a couple of comments about the papers: I agree, obviously, with some of what Professor Mervin said about the Congress. It is not good at acting quickly; it is not good at deciding; it must reach consensus, which means that often when there are two alternatives – a bad and a worse – Congress will choose the third, which is the worst. This happened again and again throughout the eighties. I can’t follow Professor Mervin very far in his conclusions, however, which I take to be rather extreme. If you’re going to hold that the president, when confronted with a supreme national emergency, can act despite the will of Congress and the public, then there must be at least some way to ensure that the national emergency is indeed serious. Professor Mervin says that he thinks the crisis Reagan talked about with respect to Central America was far-fetched, but that, still, it’s not his place to make judgments like that. Well, I frankly think that statement is ridiculous – or I would, if it didn’t carry with it such serious implications for the expansion of presidential power.

One clue that the Reagan administration somehow realized that they couldn’t get away with doing what Lincoln had done – or doing, arguably, what Roosevelt had done – was that the Reagan people did what they did in secret. They did not face Congress and say, “Well, we’re going to keep sending aid to the Contras and we dare you to do something about it.” Instead, they kept the aid going in secret, because they knew that the American public, despite all the efforts of the Reagan administration, had never come to agree with them that the Sandinistas posed the extreme threat the administration claimed.

My last comment is about Professor Freedman’s paper – and I apologize to the audience, because this concerns his paper rather than his remarks here. He went on at interesting length about whether a president can be indicted rather than impeached, or indicted before he’s impeached. I think this is an interesting question. One of the matters that perplexes me most about Iran-Contra is that I attribute the failure of Congress’s hearings not, in the end, to the incompetence of congressmen and women, but to their realization that serious hearings might well have led, as Lawrence Walsh has recently said, to “timely impeachment proceedings” against the president. The fact is, no one wanted that. The Democrats saw an election coming up that they thought they could win; they were afraid of Reagan’s popularity, so they came up with hearings that, in their flaws, were, in the end, detrimental to this affair. Certainly, the whole question of whether there might have been a part-way option in Congress – I have mentioned passage of legislation – deserves consideration. The vast gulf between doing nothing and impeachment is, I think, a real problem in our system. In 1987 we confronted that problem and, I’m afraid, didn’t do very well.

Eric M. Freedman

INTRODUCTION

The modest purpose of these remarks is to discuss two of the critical areas of constitutional law that require further work in the wake of the Iran-Contra scandal, and to indicate within those areas which problems I see as legitimately open and which can fairly be considered as having been laid to rest.

PRESERVING AND IMPROVING THE INSTITUTION OF INDEPENDENT CONTROL

The independent counsel statute¹ was not renewed when it expired on December 15, 1992. Since then, renewal legislation has moved only slowly through Congress because of the controversy sucessfully generated by a number of Republican spokesmen about the work of Lawrence Walsh.

In my view, a number of the issues that they have raised are spurious and have had the unfortunate effect of diverting the discussion from the real problems that should be addressed. Hence I review a few fundamental propositions before I move onto the more legitimately controversial material.

To begin at the most basic level—so basic, indeed, that I would skip this point except for the presence at our discussion of Mr. Elliott Abrams and Mr. Charles Cooper, whose views in this area can be objectively described as out of the mainstream—the institution of independent counsel is constitutional.

The constitutional objection is that because the independent counsel is not under the control of the president, his or her exercise of power violates the exclusive presidential function of controlling prosecutions.

The Supreme Court rebuffed that argument 7-1 in 1988.² In so doing, the court reached a correct conclusion, but wrote an opinion whose reasoning has

properly been the subject of widespread criticism.³ The court rejected the attack by accepting its premises, and then saying that the independent counsel was sufficiently under control of the president so there was no constitutional violation. Since the whole purpose of the statute was to insulate the independent counsel from residential influence, this rationale was, to say the least, unconvincing.

What the Supreme Court should have done was to reject the premise. There is no warrant for the proposition that the prosecutorial role is exclusively presidential. Historically, that function has been shared not only with other parts of the executive branch but also with the judiciary.⁴ In upholding the independent counsel statute, the Supreme Court ignored this history. Looking at the matter afresh, the court should have assessed the institution in light of the goal of the separation of powers doctrine—namely, promoting representative non tyrannical government—and should have said that having an independent counsel to investigate potential wrongdoing by high executive branch officers promotes rather than retards those purposes. Instead of seeing the office of independent counsel as a constitutionally suspect device to be reluctantly upheld, the court should have viewed it as an implementation of the ideal of the rule of law.

The benefits of the office are well illustrated by the events of the Iran-Contra investigation. The administration’s major concern in the affair was that President Reagan had authorized the shipment of HAWK missiles to Iran in November 1985. The only possible source of authority for him to do that was the National Security Act. But to conduct covert operations under the authority of the act requires a presidential finding and then congressional notification. Those, however, did not exist. President Reagan had simply told his national security advisor, Robert McFarlane, to go ahead. Understandably, Attorney General Edwin Meese believed that this conduct had been illegal.

As it turned out, he underestimated the ingenuity of Mr. Charles Cooper, who later came up with the novel legal theory that once President Reagan said, “Go ahead, Bud,” that was an “oral finding,” and so the National Security Act had never been violated at all. This was a truly creative interpretation of the act, since the precise reason for writing the statute in the first place had been to end the practice of “plausible deniability,” under which covert operations were authorized by a wink and a nod, and if they went wrong no one – least of all the president – was responsible.

In any event, no one had thought of that theory either at the time the events happened, or when they were revealed. Thus when counsel Stanley Sporkin of the Central Intelligence Agency heard about the shipment a month after it happened, he drafted a retroactive finding to authorize it. But when the scandal became public, Admiral John Poindexter, the national security advisor, tore that finding up. Why?

Thanks to the much-maligned Mr. Walsh, the answer to that question is now plain. ⁵ Once Mr. Meese decided that the president might be impeached if it came out that he had authorized the arms transfers, he went around to each of the major cabinet officials, with Mr. Cooper accompanying him, to talk about the events. (In Mr. Meese’s view, this was his investigation; in Mr. Walsh’s view, this was Mr. Meese teaching them the cover story.)

When Mr. Meese got to Secretary of State George Shultz, he delivered the same pointed message as in his other conversations: “If the president knew about the November 1985 HAWK missile shipment, then he would have been committing a crime in authorizing it, But he didn’t know. Got it?”

Everyone else in the administration did get it, including Admiral Poindexter, who had to tear up the retroactive finding to stay consistent with this new version of events, and Chief of Staff Donald Regan, who now admits that he knew this story was false.

But Mr. Shultz told Mr. Meese bluntly that the attempt to deny that the president knew, and blame the whole thing on Mr. McFarlane, would never fly. After all, Mr. Shultz said, just two days previously lie had talked the whole thing over with the president, who had said, in substance, “Sure, I remember that I was in Geneva and authorized that shipment, but that wasn’t arms for hostages, that was policy.”

Of course, as Mr. Walsh has observed, the president’s conversation with Mr. Shultz occurred before his old friend Ed Meese got to him with legal advice, and from then on he didn’t remember things so clearly any more. But the point for present purposes is that the president’s old friend Ed Meese was also the attorney general. And only in the topsy-turvy world of the opponents of the independent counsel would the country be better off if he were now in charge of investigating whether lie had engaged in a cover-up.

Moreover, to look at the matter more generally, it is hard to make a case that overall the investigative power of independent counsel has been abused. Since Watergate, there have been thirty-three preliminary investigations opened by the Justice Department under the statute, and twenty-two times – including most recently Iraqgate – the attorney general has determined not to go forward, which puts an end to the inquiry. (Indeed, it was Mr. Meese who decided to authorize Mr. Walsh’s investigation. Of course, Mr. Meese was under political pressure to do so. But with or without a statute, that political pressure will exist, as the Watergate inquiry itself showed.)

The great advantage of the statutory mechanism is that it provides a credible means for bringing dispassionate prosecutorial judgments to bear on situations enveloped in political suspicions. Eleven independent counsels have been appointed, and seven have not returned any indictments, including, notably, James McKay. Mr. McKay filed an 814-page report which concluded that a factfinder would probably decide beyond a reasonable doubt that Mr. Meese violated federal conflict of interest and tax laws with respect to telephone company stock he owned. Still, Mr. McKay declined to prosecute because an ordinary prosecutor exercising prosecutorial discretion would probably not file criminal charges in such circumstances.

On the other hand, Mr. Walsh, whom Republicans have recently been criticizing for wasting taxpayers’ money, has indicted fourteen people. Two cases did not go to trial because of the pardons issued by President Bush. Of the remaining twelve, eleven have concluded; four resulted injury convictions, and seven in guilty pleas. Two of the convictions were overturned, however, because (with the strong support of the American Civil Liberties Union) the United States Court of Appeals for the District of Columbia Circuit decided to breathe new life into the rules protecting witnesses who had been granted immunity. A fair assessment would be that the system worked just as it should.

And if, indeed, there remain cases of abuse, then, as in all criminal cases, there is always the pardon power—which, as the dénouement of the IranContra affair showed, is likely to be especially accessible to those who are within the reach of the independent counsel’s authority.

Thus the open questions about the institution of the independent counsel are not whether it is fundamentally sound, legally and practically. Rather, they concern whether any new statute can be drafted so as to overcome some vexing problems that the Iran-Contra prosecutions revealed.

Independent counsel Walsh was forced to drop key charges—including the entire indictment against CIA agent Joseph Fernandez, the most important accusations against Colonel North, and a portion of the case against Admiral Poindexter—because executive branch officials, many of them political intimates of the defendants, were in a position to block the release of classified information. ⁶ (In the case of Mr. Fernandez, the classified information in question was that there was a CIA station in Costa Rica, and that he was its chief.)

Once the government (i.e., the Justice Department) had deprived the defendants of information relevant to their defenses, the prosecutor (i.e., the independent counsel) could not constitutionally proceed against them. Since the very purpose of the independent counsel statute is to prevent the executive branch from controlling the prosecution of cases in which it may be laboring under a conflict of interest, the impropriety is manifest. ⁷ At first glance, the remedy may appear simple: since the independent counsel represents the United States for purposes of the prosecution, the independent counsel should represent the United States for the purposes of determining whether the classified material should be released.

That resolution, however, raises a constitutional concern. If “the power to protect national security information were vested in a prosecutor not fully accountable to the President,” ⁸ then the president’s control over foreign relations would certainly be diminished, and, if one were to misread some of the Supreme Court’s broadest dicta in the area, ⁹ unconstitutionally so.

But it is a mistake to consider the power over foreign relations as exclusively presidential. In this area, the Supreme Court has done better than some of those (like Colonel Oliver North in the Iran-Contra hearings) who quote it out of context. Even on its most expansive days, the court has recognized that Congress does have a role in the setting of foreign policy and in determining how much discretion the president is to have in carrying it out. ¹⁰ Thus the president need not be the sole decision maker on the issue of whether or not the

overall interests of the United States are best served by the disclosure of classified information or by the dismissal of an indictment; the president’s discretion can properly be limited by legislative criteria.

Viewing matters from this perspective, a seemingly intractable problem may become less so. Congress should create, and the courts should uphold, solutions that are faithful to the reality of shared powers. For example, if, as one veteran of the Iran-Contra prosecutor’s office has suggested, the relevant statutes were to be amended so that an independent counsel were given the power to challenge on substantive grounds the decision of an attorney general to block disclosure of classified information, ¹¹ this procedure should be upheld as constitutional.

Similarly, judicial doctrines that call for a high degree of deference to executive branch secrecy decisions ¹² are just that—judicial doctrines. They are subject to modification by Congress, which might, for example, require the attorney general to demonstrate to the satisfaction of the court “by a preponderance of objective evidence that the disclosure would cause irreparable harm to the United States.” ¹³

I turn now to the second set of open questions.

Almost all of the response to the Iran-Contra revelations, both from the White House and the congressional investigating committees, was driven by the perception that if Ronald Reagan really did know about the November 1985 arms shipment, and approved it in violation of law, he could be impeached. No one seems to have seriously considered the possibility that he could be indicted, because no one has ever thought seriously about whether a sitting president can be indicted. Yet in the case of Iran-Contra, there might have been much to be said for going that route. Indeed, in the words of Mr. Abrams, one could view the indictment of Ronald Reagan in this situation as achieving “a certain poetic justice.”

Although the question has never been judicially resolved, the country will sooner or later have to face the issue of whether an incumbent president or vice president is subject to indictment. My proposal is that this question has a straightforward answer: yes. This reply is based upon considerations of history, principle, and pragmatism.

As is so often the case, we are lacking in any definitive evidence of the framers’ intent on the question. The Constitution merely provides: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, according to Law.” ¹⁴

The sequence of the clauses, together with an explanation of them by Alexander Hamilton in the Federalist papers in which he apparently contemplated that criminal proceedings would follow an impeachment trial,¹⁵ has been thought by some to suggest the order in which the government must proceed against the officeholder.

However, this inference is a weak one. The Constitution specifically grants federal legislators a limited immunity from arrest but says nothing about a similar executive privilege. According to the later report of one delegate, this omission was deliberate; the framers, mindful of the abuses caused in England by the maxim that the king could do no wrong, decided (although the discussion is not recorded in any surviving notes of the Philadelphia Convention) to reject such a presidential privilege.¹⁶ Thus the dichotomous structure of the impeachment provision is more plausibly explained as designed merely to protect officials against the prior practice in England, where conviction in a parliamentary impeachment trial resulted without further ado in draconian criminal penalties.

At any rate, although the original intent may be obscure,¹⁷ our historical practice is not. In 1804 Aaron Burr, then the vice president, was indicted by the State of New Jersey for killing Alexander Hamilton in their duel. ( New York had already charged him, leading Burr to comment that the episode had sparked “a contention of a very singular nature between the states of New York and New Jersey,” over which one of them would “have the honour of hanging the vice president.”)¹⁸ In response to the New Jersey indictment, a group of senators sent the governor a letter urging that the prosecution be discontinued. They argued that this course would “facilitate the public business by relieving the President of the Senate from the peculiar embarrassments of his present situation, and the Senate from the distressing imputation thrown upon it, by holding up its President to the world as a common murderer.” ¹⁹ But neither the senators, nor President Thomas Jefferson, nor Secretary of State James Madison—both of whom were treating Burr with great solicitude at the time—suggested that the Constitution granted Burr immunity from the prosecution.

In the intervening years, high federal officials have repeatedly been the subjects of criminal charges while still in office. Congressmen and senators have frequently been indicted, and the courts have uniformly adhered to the position taken by the Supreme Court in 1906: despite the importance of the legislator’s function, there is no constitutional barrier to such prosecutions. ²⁰ Similarly, there have been six indictments of sitting federal judges since 1974. In each case, the courts recognized the vital importance of an independent judiciary but nonetheless adopted the view, first taken by the attorney general of the United States in 1796, that the prosecution was permissible. ²¹

And when Ronald Reagan’s secretary of labor, Raymond Donovan, became the first sitting cabinet member ever indicted, the idea of claiming an exemption from prosecution apparently did not even cross his mind. ²²

This is not surprising. To be sure, the courts have sometimes invented doctrines of official immunity—but only in civil cases, not criminal ones. And, even then, the courts have consistently attempted to tailor the rulings in such a way as to encourage officeholders to perform their duties diligently and fearlessly, without shielding them from the consequences of deliberate wrongdoing.

This uniform course of practice is consistent with what we know of the philosophy underlying the structure of our government. The framers had no faith in the goodness of human nature, particularly the human nature of officeholders. On the contrary, they believed that power tends to corrupt. Those who wrote the Constitution would be saddened but by no means shocked to hear us discussing matter-of-factly the possibility that the country’s highest officials might be guilty of criminal behavior. For the framers, the primacy of law was the basic instrument by which the inevitable tendency of public officials to abuse their positions would be curbed. No one doubts, therefore, that, to control the predictable misconduct of those who would hold high office, the practical politicians who wrote our Constitution provided for two separate checks on our most powerful public officials.

Impeachment was designed to curb behavior undermining the president or vice president’s fitness to continue governing. As Hamilton wrote in The Federalist, the impeachment power was vested in Congress because the purpose of the procedure is to reach those offenses “of a nature which may with peculiar propriety be denominated political,” that is, those which “proceed from the abuse or violation of some public trust,” rendering the offender unworthy of continued public confidence. ²³

Thus, although the Constitution speaks in terms of “high crimes and misdemeanors,” it has long been settled that impeachable abuses of power are not limited to crimes. As then-Representative Gerald R. Ford said while seeking the impeachment of Justice William O. Douglas, “About the only thing that the authorities can agree upon in recent history…is that an offense need not be indictable to be impeachable.”²⁴ When Richard Nixon bombed Cambodia and concealed it from Congress, this was an impeachable offense, even if not a crime, and could properly have led to his removal from office.

Criminal sanctions serve a different social purpose. The criminal code, defined in statutes and applied by a neutral judiciary, embodies a minimum standard of behavior which society requires of all citizens. If, for instance, Lyndon Johnson drove drunk, he should have been convicted of drunken driving-not impeached. In this way, society would have expressed its disapprobation of his conduct, while retaining a leader who had done nothing to undermine his political legitimacy.

But the dual force of these checks is largely lost if they are available only sequentially; hence, in light of our deep-rooted commitment to the principle that officeholders must abide by the rule of law, the soundest way to view the relationship between the impeachment and criminal sanctions is that they are available simultaneously.

Thoughtful opponents of the view presented here rarely quarrel with the ideas presented so far. Rather, they raise three much more practical arguments, which we may label the “harassment objection,” the “intrusiveness objection,” and the “functional removal objection.”

The Harassment Objection. If presidents and vice presidents were amenable to criminal prosecutions, the argument goes, they might be subjected to endless harassment by local prosecutors. Nearly two centuries of experience demonstrate that this concern is overblown.

In 1807, when Aaron Burr (by this time a private citizen) was charged in federal court with treason, Chief Justice John Marshall wrote a landmark opinion affirming the defendant’s right to seek possibly exculpatory documents and testimony from President Thomas Jefferson.²⁵ Ever since then, as United States v. Nixon²⁶ resoundingly reaffirmed, the law has required that presidents and vice presidents give evidence in criminal proceedings. Yet the courts have enforced this duty with considerable deference to the demands of the president’s office, thus protecting the incumbent from harassment while making evidence available in appropriate cases.

The courts’ evidentiary rulings in the Iran-Contra prosecutions illustrate this pattern. In the prosecution of Colonel Oliver North, the trial judge ruled that the presidential materials sought were not necessary to the defense, thus mooting any questions concerning the mode of compliance. ²⁷ In the prosecution of Admiral Poindexter, the trial judge ruled: (1) the materials sought from President George Bush (who had been vice president during the period in question) were irrelevant or cumulative;²⁸ (2) the court would conduct an in camera inspection of portions of the diary kept by Ronald Reagan while he was president to determine whether they had to be turned over to the defense;²⁹ and (3) the defense was entitled to take the videotaped deposition of former president Reagan concerning his conduct in office, but under the supervision of the trial judge, at a time and place convenient to the witness, and in secret, so that the government would have the opportunity to move for redactions from the testimony before it was made public.³⁰

Since there are presumably many more situations in which it might be plausibly claimed that the president has relevant evidence than ones in which it might be plausibly claimed that the president has committed a crime, the case for testimonial immunity is—from the point of view of safeguarding against harassment—stronger than the case for criminal immunity. The fact, therefore, that the courts have for almost two hundred years been able to reach appro

priate accommodations in the testimonial context strongly supports the view that they would be able to do so in the criminal context, where an indicted president or vice president would have all the protections afforded to any criminal defendant. ³¹

In light of the ample legal resources available to the leaders of the executive branch, and their power to mobilize public opinion, subjecting them to the infrequent need to defend themselves in the courts is greatly preferable to turning each allegation of criminal conduct into the traumatic struggle of an impeachment battle. Yet a rule of absolute immunity would have just this effect. Only a single congressman is needed to set the impeachment machinery in motion, and if there is reason to believe that a president or vice president has committed a crime—particularly one for which the statute of limitations may expire before the end of the incumbent’s term—such a congressman will surely be found.

The Intrusiveness Objection. This objection differs from the harassment objection in focusing on the claimed disruption to the functioning of the president resulting from potential, as opposed to actual, prosecutions. The concern is that, intimidated by the prospects of criminal liability, the officeholder would be deterred from the appropriately energetic exercise of duty.

The answer is as pragmatic as the objection. The argument advanced here is simply that the president is amenable to prosecution and has no “generalized” criminal immunity. But after that threshold has been crossed, there might well be a particularized substantive privilege if in a specific case there is some concrete reason to believe that indeed the imposition of liability for some particular criminal conduct (e.g., ordering the assassination of a foreign leader, as opposed to beating one’s butler during an argument) would chill the president’s legitimate exercise of discretion. To be sure, any such formulation leaves a zone of uncertainty, but, as the courts have recognized in similar contexts, there is no empirical support for the intuitively unlikely proposition that this will impair the vigor with which public servants discharge their duties. ³² As a result, application of the criminal law will be restricted to just the area in which it is needed, controlling venality.

The Functional Removal Objection. The “functional removal” argument is equally unavailing. Special Prosecutor Leon Jaworski apparently believed that since the president or vice president could not run the country from a prison cell, incarceration would be tantamount to removal from office, which is the exclusive prerogative of Congress.

This argument is doubly flawed. First, it rests on an attenuated chain of hypotheticals. Common sense suggests that an indicted president or vice president will in all likelihood resign or be impeached. If he or she retains the political support to resist doing so, it is highly improbable that he or she will be sentenced to serve a prison term while in office.

Second, the argument is in any event legally invalid. Not only has it already been rejected in the cases of federal legislators and judges, but, in fact, impeachment is not the only constitutional mechanism for removing the president from office. The unlikely event of a president being sentenced to jail (assuming that modern technology did not indeed permit one to run the country from a prison cell) would be a perfect occasion for the invocation of the Twenty-Fifth Amendment, which specifically provides mechanisms for the president either to relinquish or to have taken away executive power in case of a temporary disability to perform his or her duties.

I conclude that the second set of questions left open after the Iran-Contra affair can be definitively answered: having the indictment of a president heard in a court of law, just as in the case of any other citizen, would serve rather than violate the Constitution.

Notes

The author gratefully acknowledges the support given to his efforts by research funding from Hofstra University, and the devoted secretarial assistance of Nancy A. Grasser. The author has previously addressed the second question presented by this paper in Eric M. Freedman, “The Law as King and the King as Law: Is a President Immune from Criminal Prosecution before Impeachment?” Hastings Constitutional Law Quarterly 20 ( 1992): 7.

[1.] 28 U.S.C 595©] ( 1987).

[ 2.] See Morrison v. Olson, 487 U.S. ( 1988). Similarly, despite the valiant efforts of President Bush in his signing statement to suggest the contrary, there is little doubt that what is probably the most significant legislative by-product of the Iran-Contra affair to date, Title VI of the Intelligence Authorization Act, Fiscal Year 1991, Pub. L. No. 10288, 105 Stat. 429, which strengthens the obligations of the president to report covert activities to Congress, is constitutional. See Paul Gumina, “Title VI of the Intelligence Authorization Act, Fiscal Year 1991: Effective Covert Action Reform or ‘Business as Usual’?” Hastings Constitutional Law Quarterly 20 ( 1992): 149.

[ 3.] In addition to Justice Antonin Scalia’s dissent, which gained cogency from being aimed at an easy target, see, e.g., Stephen L. Carter, “The Independent Counsel Mess”, Harvard Law Review 102 ( 1988): 105, 113-16.

[4.] See Stephanie A. J. Dangel, Note, “Is Prosecution a Core Executive Function? Morrison v. Olson and the Framers’Intent”, Yale Law Journal 99 ( 1990): 1069.

[5.] See “Birth of a Scandal and Mysteries of Its Parentage”, New York Times, December 25, 1992, p. A23; “Meese Testifies That Impeachment Was a Worry”, New York Times, March 29, 1989, p. A17. The final round of inquiries conducted by independent counsel Lawrence Walsh – which was aborted by the pardons issued by President Bush (see “Bush Pardons 6 in Iran-Contra Affair, Aborting a Weinberger Trial; Prosecutor Assails ‘Cover-Up,’” New York Times, December 25, 1992, p. A1) – was aimed at determining whether President Reagan or any of his top aides lied during the effort to absolve him of responsibility. See “Walsh Is Said to be Mulling Reagan Charges”, Wall Street Journal, July 27, 1992, p. A12; “In Iran-Contra Inquiry, New Interest in Reagan Aides’ Actions”, New York Times, July 12, 1992, p. A17; “IranContra Inquiry Turns to Top Reagan Officials”, New York Times, June 26, 1992, p. A17.

[ 6.] See “Two Charges against Poindexter Dismissed”, New York Times, July 26, 1989, p. B6; “U.S. Drops Part of Its Case against Iran-Contra Figures”, New York Times, June 17, 1989, p. A7; “Key North Counts Dimissed by Court”, New York Times, January 14, 1989, p. A1. See also “Justice Delays Iran – Contra Justice,” New York Times, October 21, 1989, p. A24 (editorial criticizing Justice Department performance).

[7.] In the case of the Iran-Contra prosecutions, the situation was not aided in the least by the fact that the “classified” information that attorneys general Meese and Dick Thornburgh sought to protect was both innocuous and widely known. See Senate Select Committee on Secret Military Assistance to Iran and the Nicaraguan Opposition, House Select Committee to Investigate Covert Arms Transactions with Iran, Report of the Congressional Committees Investigation of the Iran-Contra Affair, S. Rep. No. 216, H.R. Rep. No. 433, 100th Cong., 1st Sess., p. 144 ( 1987); Anthony Lewis, “Government of Laws?” New York Times, November 30, 1989, p. A31.

[ 8.] United States v. Fernandez, 887 F.2d 465, 471 (4th Cir., 1989).

[9.] See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 ( 1936).

[10.] See ibid., p. 320.

[11.] Sandra D. Jordan, “Classified Information and Conflicts in Independent Counsel Prosecutions: Balancing the Scales of Justice after Iran-Contra”, Columbia Law Review 91 ( 1991): 1651.

[12.] E.g., United States v. Reynolds, 345 U.S. 1 ( 1953).

[13.] Jordan, “Classified Information and Conflicts,” p. 1674.

[14.] U.S. Constitution, art. I, sec. 3, cl. 7.

[15.] See The Federalist, nos. 65, 69.

[16.] See Ten Annals of Congress, pp. 72-74 (1800) (Remarks of Charles Pinckney).

[17.] In fact, members of the founding generation disagreed sharply on precisely our question both in formal debate on the Senate floor during its first session. See Kenneth R. Bowling and Helen E. Veit, eds., The Diary of William Maclay and Other Notes on Senate Debates(Baltimore: Johns Hopkins Press, 1988), pp. 445-49 (notes of Vice President John Adams), 464-67 (notes of Senator William Samuel Johnson of Connecticut), 483-89 (notes of Senator William Paterson of New Jersey); and in more informal political discussion, see Edgar S. Maclay, ed., Journal of William Maclay, U.S. Senator from Pennsylvania, 1789-1791( New York: D. A. Appleton & Co., 1890), pp. 166-67.

[18.] “Letter from Aaron Burr to Theodosia Alston”, December 4, 1804, in Matthew L. Davis , ed., Memoirs of Aaron Burr with Miscellaneous Selections from his Correspondence ( New York: Harper & Bros., 1836-37), pp. 351-52.

[19.] The text of the letter is to be found in J. S. Biddle, ed., Autobiography of Charles Biddle, Vice President of the Supreme Executive Council of Pennsylvania, 1745-1821 ( Philadelphia: E. Claxton & Co., 1883), pp. 306-8.

[20.] See Burton v. United States, 202 U.S. 344, 365-70 ( 1906). The subsequent cases are canvassed in Freedman, “The Law as King”, pp. 30-32.

[21.] For a description of these cases, see Freedman, “The Law as King,” pp. 25-29.

[22.] Donovan was indicted by a New York State grand jury in September 1984 on charges relating to alleged fraud in connection with public works performed by a company with which he had previously been connected. He resigned in March 1985, and, after unsuccessfully seeking to remove the charges to federal court (see Application of Donovan, 601 F.Supp. 574 [S.D. N.Y. 1985]), eventually won a complete acquittal (see “Donovan Cleared of Fraud Charges by Jury in Bronx”, New York Times, May 26, 1987, p. A1).

[23.] The Federalist, no. 65.

[24.] 116 Congressional Record, H3113-14 (daily ed., April 15, 1970).

[25.] United States v. Burr, 25 F.Cas. 30 (C.C.D. Va., 1807) (No. 14, 692d)

[26.] 418 U.S. 683 (1974).

[27.] United States v. North, Cr. No. 88-0080-02, 1989 U.S. Dist. LEXIS 2903 (D.D.C., March 31, 1989)(refusing to enforce subpoena issued to ex-president Reagan and noting that court had previously quashed subpoena issued to ex-vice president, and sitting president, Bush; court had power in both cases, but defendant had failed to show that subpoenas likely to yield relevant evidence). See Comment, “Legitimacy: The Sacrificial Lamb at the Altar of Executive Privilege”, Kentucky Law Journal 78 ( 198990): 817, 832-33 (agreeing with decision insofar as it affirmed power, but criticizing it for imposing an excessively heavy threshold burden on defendant).

[28.] United States v. Poindexter, 725 F.Supp. 13, 30 (D.D.C., 1989).

[29.] United States v. Poindexter, 727 F.Supp. 1501, 1511 (D.D.C., 1989). After conducting this examination, the court initially determined that some of the entries were relevant (see United States v. Poindexter, 732 F.Supp. 135 [D.D.C., 1990]; “Reagan Is Ordered to Provide Diaries in Poindexter Case”, New York Times, January 31, 1990, p. A1), but ultimately refused to provide them to the defense in light of the government’s assertion of executive privilege and Admiral Poindexter’s opportunity (described in the text) to take the former president’s testimony. See United States v. Poindexter, Cr, No. 88-0080-01, 1990 U.S. Dist. LEXIS 2881 (D.D.C., March 21, 1990); Poindexter Loses Fight for Reagan Notes”, New York Times, March 22, 1990, p. A20.

[30.] See United States v. Poindexter, 732 U.S. 165 (D.D.C., 1990); United States v. Poindexter, 732 F.Supp. 142 (D.D.C., 1990). Rulings (2) and (3) were both made over vigorous objection (see “Reagan Asks Court to Kill Subpoena”, New York Times, December 7, 1989, p. A27), but former president Reagan complied without seeking appellate review (see “Reagan Testifies He Did Not Order Any Illegal Acts”, New York Times, February 23, 1990, p. A1). In mid-1992 he also met voluntarily with the independent counsel for an all-day private interview that was transcribed by a court reporter (see New York Times, October 10, 1992, p. A6).

[31.] Moreover, quite apart from any additional protections that Congress might choose to grant, these officials would be likely to enjoy special safeguards: the right of removal to federal court, and the right to federal injunctive relief against harassing prosecutions. See Freedman, “The Law as King”, pp. 65-66.

[32.] See United States v. Nixon, 418 U.S. 683, 712, n. 20 ( 1974) (“[W]e cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such disclosures will be called for in the context of a criminal prosecution”); see also United States v. Gillock, 445 U.S. 360, 373 ( 1980) (while allowing federal prosecutors to use evidence of state legislators’ official acts “may have some minimal impact on the exercise of his legislative function,” the court will not “impair the legitimate interest of the Federal Government in enforcing its criminal statutes [for] only speculative benefit to the state legislative process”).

Andrew S. Merrifield

The ” President’s Special Review Board” on Iran-Contra, popularly known as the Tower Commission, looked primarily at the operation of the National Security Council (NSC) and its staff, following the dictates of its assignment when created by President Reagan at the end of 1986. It completed its assign­ment quickly and submitted a report for public consumption by February 1987. The study looked in more detail at the Iranian arms deals and the subsequent diversion of profits to aiding the Contras than it did at the rest of the Contra program. Much of the evidence for the report was provided by the executive branch. The letter included with the report stated, “In general, we received a positive response to our inquiries from every agency, including the White House.”¹ The commission concluded that the affair was a disaster and at­tempted to explain why.

The report found, as summarized by a New York Times editor, “a National Security Council led by reckless cowboys.” ² It further laid substantial blame on President Reagan’s management style. “He did not force his policy to undergo the most critical review available….At no time did he insist upon account­ ability and performance review.” ³ It did not recommend massive changes in the National Security Council structure or operations, because it claimed that the organization was, by necessity and tradition, a reflection of the particular president. ⁴ Rather, it looked at the situation as failure that was first and fore­most related to problems of aberrant behavior and management style.

Later investigations in Congress, in the courts, and among various journalists and scholars have subsequently uncovered far more material, and this led to some reassessment of the initial finding of the Tower Commission. President Reagan apparently knew substantially more than reported to the commission. ⁵ Likewise, the material presented by some of the participants in Iran-Contra suggested that the aberrant nature of the scandal may not have been so aberrant after all. Testimony by such people as Lt. Colonel Oliver North and his secretary, Fawn Hall, shared an eerie similarity to the testimony of executive department employees involved in the earlier presidential scandal, Watergate. Fawn Hall, for example, testified, “I believed in Colonel North, and there was a very solid and very valid reason he must have been doing this for, and sometimes you have to go above the written law, I believe.”⁶ John Ehrlichman, chief domestic advisor to Richard Nixon, took the position that if the president approved certain actions in the name of national security, then it was not illegal. He also argued that such niceties as the Fourth Amendment protection against illegal search and seizure “has been considerably eroded over the years, has it not?” ⁷ Other testimony also seemed to share parallel interpretations and meanings as to what could be done by members of the executive in the name of national security.

This strongly suggests that one of the most important observations about the Iran-Contra affair, the uniqueness of it, is not accurate. The affair seems to represent an example of an evolving tradition of circumvention as an executive governance strategy in a hostile political environment. The issue is worth more detailed study. Is circumvention a new strategy? What are some of its general characteristics?

The basic ingredients of this argument are that circumvention is a recognizable political strategy employed in the modern presidency. Specifically, circumvention exists when there is a conscious, systematic violation of either the spirit or the letter of the law to accomplish long-term strategic goals, and that this activity is done in secrecy. Circumvention need not be a convictable or impeachable offense. It does not have to be part of an overt conspiracy; it often may be related to a mind-set. It can include evasions, half-truths, attempts to mislead, doctoring the facts for maximum spin, as well as lying. In Iran-Contra it may have been, at times, “a very thin line,” as Robert Owen, an aide to Lt. Colonel North said, or “a fine line,” as Vice President Bush said. ⁸ Circumvention can occasionally meet the test of ethical administrative behavior laid out by John Rohr—the low road. Here “ethical behavior is reduced to staying out of trouble.” ⁹ This can include bending the facts to fit the desired outcome and avoidance of wrongdoing by such action. This, according to Rohr, “runs the risk of developing a dangerous attitude of pharisaism.”¹⁰ The hostile political environment, as built into the system by the authors of the Constitution of 1787, exists whenever an individual or group – either formal or informal – has potential power to deny the president what he wants. This argument accepts Clinton Rossiter’s assertion that the president cannot be separated from the men around him. ¹¹

Circumvention, therefore, is not simple political corruption in the presidency, either for personal enrichment or for short-term reelection goals, for example. The corruption associated with Tea Pot Dome is not circumvention in this sense. Neither was the search of the passport files of Bill Clinton or his mother by members of the Bush White House. One is greed; the other is a result of getting caught up in the heat of the moment near the end of a presidential campaign.

Circumvention is also not open defiance of hostile political actors, like President Lincoln’s abuse of the writ of habeas corpus and the use of the military in civilian trials during the Civil War, or President Franklin Roosevelt’s actions on Lend Lease in the autumn of 1941. Lincoln and Roosevelt both assuredly violated at least the spirit of the law, but their actions were not secretive. Finally, circumvention is not altering long-established policies through executive reinterpretation of their meanings, as Nixon’s attempts to change civil rights enforcement by the Department of Justice in school desegregation cases. ¹² Again, Nixon did not work to violate the law secretly, but to reinterpret it, more or less publicly.

Circumvention is worth studying in the Iran-Contra affair for three interrelated reasons. First, Iran-Contra was certainly the largest black mark against the Reagan administration discovered during his term. It created the largest drop in both the president’s popularity and his effectiveness. ¹³ This black mark also led to U.S. engagement in the Persian Gulf in 1987, with the reflagging of the Kuwaiti tankers and the subsequent deaths of both U.S. military personnel and Iranian civilians.

Second, circumvention suggests a pattern of presidential behavior and a governance strategy that is underreported, understudied, and important. Circumvention is not based on cooperation between the executive and the potentially hostile political world, as is capitulation or Richard Neustadt’s discussions on bargaining. ¹⁴ Nor is it overtly confrontational, as are strategies related to the use of the media to take the case directly to the people, like Samuel Kernell’s “going public”; ¹⁵ strategies based on reinterpretation of statutes and administrative directives; or the defiance strategies of Franklin Roosevelt and Lincoln. It is based on avoiding compliance of existing laws and practices with the highest possible level of secrecy.

Finally, the circumvention in Iran-Contra is worth studying because of what it does to the U.S. presidency as an institution. Presidents seem to be unable to control the presidency, leading to unsuccessful administrations and rising distrust and cynicism about the office, the officeholder, and the seeker of the office. Ronald Reagan as the chief administrator had restored faith in the office and the officeholder for millions of Americans after the failures of Lyndon Johnson, Richard Nixon, Gerald Ford, and Jimmy Carter. He had made mistakes and not captured the hearts and minds of whole segments of the population, but he had made inroads with some of the disenchanted. Sincerity and principle seemed to be his greatest stock-in-trade, and he seemed to have more of it than most of his immediate predecessors. So the realization that he had played a game very differently than the one the people thought he played added to the cynicism.¹⁶

Circumvention seems to exist: it hurt Ronald Reagan, and it hurts the modern presidency. It should be looked at. The whole issue of circumvention in the Iran-Contra affair is both too large and too complex to try to even outline in a brief paper. Instead, this paper will look at a few examples that show some of the characteristics of circumvention, and that suggest that they are not unique to the Reagan presidency. For the sake of brevity, I will not deal with some of the more notorious actions that led to convictions, public humiliations, and so on.

During 1984, members of the NSC staff, including the president’s advisor, Robert McFarlane, worked to supply weapons to the Contras in an effort to circumvent the Boland Amendment. McFarlane, North, and others at various times attempted to get arms captured by the Israelis in Lebanon transferred to the Contras. They also contacted the U.S. Department of Defense (DOD) and the CIA. They hoped that the DOD could give arms to the CIA, and then the CIA could give those arms to the Contras. This latter scheme ran afoul of DOD legal counsel, who determined that it would be illegal. This killed the plan. ¹⁷ Later in the same year, Admiral John Poindexter, then an aide to McFarlane, tried to have weapons sent from El Salvador to the Contras. ¹⁸ At the end of the year, Colonel North also worked on plans to aid the Contras from such diverse locations as China, through Guatemala, and through Chile. ¹⁹

In 1985 various additional attempts were made to arm the Contras through indirect aid, including trips to Central America by Vice President Bush. Bush tried to persuade Central American leaders that Contra aid would be beneficial to all parties—the United States, the Contras, and the other Central American countries. ²⁰ In February 1985, President Reagan suggested that Honduras could give weapons to the Contras, and the United States would reimburse them. The next day, North sent a memo to McFarlane recommending that the deal be kept from Congress. ²¹

These are only a few brief examples of the attempts to get aid to the Contras through indirect aid. The level of secrecy alone does not point to circumvention of the law. Clearly, when discussing a great deal of both policy and political strategy, one can expect confidentiality in the presidency. However, evidence from Colonel North’s trial suggests that certain participants at meetings where Bush’s trip to Central America was discussed wondered about the Boland Amendment and any promises made. ²²

Former President Bush has refused to discuss much of his role in the scandal on the basis that he will not divulge the content of any conversation he had with President Reagan. He did say, however, during the 1992 campaign, that “he had ‘nothing to explain.’” He also claimed “nobody has suggested that I’ve done anything wrong at all.”²³ His precise role in the affair became muddier in December 1992, when he sent additional documents to the special prosecutor Lawrence Walsh, long after he claimed he had turned over all relevant material. In addition, his pardon of Caspar Weinberger, before the beginning of the trial, on Christmas Eve 1992, made it more likely that some information about key players would be more difficult to get hold of. ²⁴

Sometime, probably in early 1984, President Reagan told McFarlane that he expected the NSC to do what was necessary to keep the Contras together “body and soul.” ²⁶ To accomplish this, members of the administration turned to third countries to supply the money for the Contras that Congress had cut off. CIA Director William Casey asked King Fahd of Saudi Arabia to help underwrite both the Contras and the rebels in Angola as well. ²⁷ Duane Clarridge, a Casey assistant, wanted to make similar requests from South Africa in 1984, but the revelations about the mining of Nicaraguan harbors by the CIA destroyed any chance to make such a request then. ²⁸

In addition to public officials attempting to raise money from third country governments, quasi-independent fund-raising organizations were also established. One organization, headed by Carl Channell, used a letter from Adolfo Calero, a prominent Contra, to meet and solicit notable U.S. anti-communists like Joseph Coors and Bunker Hunt. ²⁹ An assistant to Channell even suggested that they solicit funds from Ross Perot, but apparently North nixed that idea by arguing that it would be difficult to keep the fund-raising secret if Perot became involved. ³⁰

Retired General John Singlaub also opened a private fund-raising organizations for the Contras in 1984. At first he tried to work through the CIA, but Casey told him directly that such overt contact would violate the Boland Amendment. ³¹ Singlaub nonetheless did deal with both North and Assistant Secretary of State Elliot Abrams. Singlaub testified that his lawyer told him that it was legal to deal with NSC staff like North, because Boland did not cover the NSC. He also testified that he believed people at the State Department above Abrams, probably including Shultz, knew of what he was doing.

Singlaub received help from North, but did not play too large a role in “private funding” because Casey and others thought that he kept too high a profile. ³² The fact that they wanted to squeeze out a man of his stature and dedication to the cause, and Casey’s apparent overt statement that CIA involvement, even with “private” fund-raising, violated the Boland Amendment, seem to demonstrate that key members of the administration knew that they were on potentially shaky ground. Both types of third party funding exemplify a circumvention strategy.

THE COVER-UP OF IRAN-CONTRA IN OCTOBER AND NOVEMBER 1986

The Iran-Contra affair began to unravel in the fall of 1986 as a result of two

only marginally related incidents: the shooting down of an Enterprise plane over Nicaragua, and the publication of information on McFarlane and North’s trip to Teheran in the Lebanese press. The pilot and the co-pilot of the downed plane were both killed, but with the capture of crew member Eugene Hasenfus, a former Marine with Vietnam experience, members of the administration began to work quickly on damage control. Assistant Secretary of State for Latin American Affairs Elliot Abrams testified before the House Intelligence Committee, along with two members of the CIA, and all led Congress to believe that the administration had played no role in supplying the airplane or knew much about its activities. ³³ In 1991 Mr. Abrams plead guilty to “two misdemeanors charges of withholding information from House and Senate committees during testimony.” ³⁴ Abrams was pardoned for his misdemeanor convictions at the same time that Weinberger was by Bush, at the end of 1992. North later also admitted that he had worked to cover up government involvement after this incident. ³⁵

Before the heat of the plane crash died down, a story appeared in a Lebanese weekly newspaper that discussed McFarlane’s trip to Teheran in May 1986. With the release of this story, the senior-most officials in the administration began to assess the damage. Secretary of State Shultz sent a telegram to Admiral Poindexter that argued that minimal information should be given out to the public, in the most flattering light, about the actions being taken in Iran. ³⁶ Poindexter answered the next day saying that after consulting with several other top advisors, including both Secretary of Defense Weinberger and Vice President Bush, that they believed they should not expose the administration’s role in the whole affair. ³⁷

During the next couple of weeks, the White House continued to send out false information about the Iranian hostage situation. President Reagan himself misled the public during a nationally televised speech in which he denied that there had been any dealings of arms for hostages, and in which he undercounted the amount of weapons sent to Iran by at least 50 percent. These evasions were publicly exposed in a press conference within a matter of days. ³⁸

These few examples show characteristics of a circumvention strategy: evasions, half-truths, letting the facts dribble out, attempting to put the best face forward, as well as direct deceptions. The activities of Iran-Contra were not as orchestrated from the top, as much of the Watergate cover-up was. They were instead part of a mind-set that apparently saw other institutions of government, and in some cases—as in the battles within the administration between Shultz and some others—even within the executive branch, as disloyal or dangerously wrongheaded. Under these circumstances, circumvention apparently seemed to be the best method of accomplishing the tasks at hand.

As stated above, these are brief examples of this governance strategy in the

Iran-Contra affair. Taken together, they suggest that this is far more than “cowboys” running amuck. Compared with the other major executive branch scandal of the last generation, Watergate, they flesh out the contention that this type of strategy did not begin with the Reagan presidency and that it appears to be a “strategy.”

Watergate is a scandal that appropriately fits as a comparison to IranContra. It is well documented and recent enough to be relatively coherent without lengthy explanation. These two ingredients are valuable for this type of brief exposition.

Starting in early 1969, the Nixon presidency began illegal wiretaps on the telephones of journalists, employees of their own government, and even on the president’s brother. In all cases, they were interested in the gathering of political intelligence and chose to bypass the normal processes. ³⁹ Ehrlichman created a “private detective” agency in the office of White House Counsel to gather political intelligence on politicians and private citizens. This office continued under John Dean, and one “stringer” of the “agency,” Anthony Ulasewicz, became a key player in the Watergate cover-up. Ulasewicz met with Ehrlichman only once, and received money from leftover campaign funds, so that there would always be a distance between him and the White House. This would make it easier to deny White House culpability. ⁴⁰

These two examples and numerous more, ranging from extortion-like campaign fund-raising techniques, trying to use the IRS to investigate political opponents, and burglaries, exemplify systematic activity to circumvent the normal political process of open bargaining or overt conflict. The strategic considerations in both the campaign organization and the Nixon presidency parallel the strategic considerations of Iran-Contra. Together they build a prima facie case for studying circumvention. The Nixon administration, like the Reagan administration, believed that the other branches of government were often hostile to their aspirations, and that even much of the executive branch could not be trusted to do what they should in serving the president. Key members of the administration, in their memoirs and reminiscences of their White House service, regularly point to their frustration with Congress and the bureaucracy as partial justification for what happened. ⁴¹ Nixon himself argued that what he did was not different from what Democrats had done before and had done to him. ⁴²

The Gulf of Tonkin Resolution in August 1964 became the de facto declaration of war for the United States in Vietnam. Though the actual facts surrounding the encounter between the two U.S. destroyers, the USS Maddox and the C. Turner Joy, and patrol boats from North Vietnam are somewhat confused, the Johnson administration used the incident to ask Congress for authorization to pick up the fighting in the region.

None of the facts concerning the covert war that had taken place for the previous six months were given to Congress when President Johnson asked for the resolution. The issue was presented as overt aggression, “unprovoked attacks…[against] routine patrols.”⁴⁶ Later, one observer admitted that the call for U.S. bombing of North Vietnam in retaliation for the incident was based on “ex post facto [italicized in the original] intelligence.”⁴⁷ Johnson himself, in a rare moment of candor well after the fact, said, “For all I know, our Navy was shooting at whales out there.”⁴⁸

The Gulf of Tonkin Resolution, like both many features of Iran-Contra and the Watergate affair, shares many of the traits of circumvention. The administration sold Congress on a policy with half-truths and limited information, information that they were entitled to before they could make such a commitment. In the case of the Gulf of Tonkin Resolution, the administration did not withhold information because they feared Congress or portions of their own executive branch, as were the cases in the other two incidents of circumvention. President Johnson calculated his actions in Vietnam based on what he hoped to accomplish domestically – civil rights policy and the Great Society – and because he was concerned about the upcoming presidential elections.⁴⁹

WHY STUDY CIRCUMVENTION AS PART OF THE REAGAN LEGACY?

The Gulf of Tonkin Resolution, Watergate, and Iran-Contra are not the only three incidents of circumvention in the last two generations since World War II. A pattern of deceit in peacetime evolved as part of the Cold War mentality. This pattern was defended by such luminaries as Thomas Bailey, the Stanford historian, who argued in 1949, “Because the masses are notoriously shortsighted and generally cannot see danger until it is at their throats, our statesmen are forced to deceive them into an awareness of their own long-run interests.”⁵⁰ These same sentiments were also echoed by Samuel Hunington: “You may have to sell [intervention or other military action] in such a way as to create the misimpression that it is the Soviet Union that you are fighting.”⁵¹ Hunington’s recommendation came in 1981, but the fact that circumvention has become part of U.S. presidential governance strategy does not make it either sound policy nor unimportant. The Reagan presidency had a profound impact

on the U.S. system and the American presidency. It demands continued research and thought because not all of the questions raised about the administration have been answered. Among these important unanswered questions are the ones surrounding this scandal.

President Bush referred to the prosecution of Iran-Contra participants as “the criminalization of policy differences” in his presidential pardon of Weinberger, McFarlane, and the rest.⁵² Journalist Alexander Cockburn wrote, a few days later, that Iran-Contra was part of a secret attempt “to inflict criminal terror on Nicaragua.” ⁵³ Obviously, the controversy continues as both part of the legacy of this important administration and as part of the study of the modern presidency. Ronald Reagan’s presidency is important for its own sake and for its impact on the office. Circumvention had a critical impact on his presidency, a fatal impact on Nixon’s, and significantly altered the Johnson administration as well.

In looking, however briefly, at the three cases, there are differences in perceptions of how the system worked between the three administrations, and there were differences in what each administration wanted to accomplish. Likewise, the human element is different. Presidents Johnson and Nixon are more stylistically compatible, more secretive and calculating than President Reagan. But in all three cases, the administrations, by opting to circumvent the processes of the U.S. system of bargaining and cooperating with the legislature, of confronting this same legislature, and of keeping the players and citizens informed of policy goals, followed policies that led to disasters. They also helped create and solidify a feeling of cynicism in the U.S. body politic.

Most of the people involved in these three affairs did not break laws; at times, they took great care to insure that the letter of the law was followed. Most did not even employ circumvention strategies. But circumvention strategies seem to follow only the ethical low road of not actually breaking the law—at its strategic best. It fails to strive for the ethical high road for both elected officials and those appointed to carry out public policy. The evidence of these scandals suggests, without demonstrating conclusively, that there are changing strategies within the presidency. These changes are too profound to ignore.

Notes

This is a revised paper from the one originally presented to the conference participants and from the scaled-down and modified paper actually delivered at the conference. In the original paper and the paper actually delivered at the conference, the word “malfeasance” was used to describe activities in the various administrations under discussion. Some of the discussants on the panel maintained in effect that “malfeasance” is a word with strict legalistic meaning, In this revision I have deleted the word, because this is not an indictment or legalistic document, but a discussion of an emerging and identifiable executive strategy. Instead I have used the word “circumvention” to describe the activities under discussion: a seeming occasional willingess to skirt the intent of the Constitution and the laws of Congress passed under it.

[1.] John L. Tower, et al., The President’s Special Review Board on the National Security Council: The Tower Commission (New York: Bantam Books/New York Times Books, 1987), p. i

[ 2.] Ibid., p. xv

[3.] Ibid., p. 79

[4.] Ibid., p. 3

[5.] Theodore Draper, A Very Thin Line: The Iran-Contra Affairs ( New York: Hill and Wang, 1991), pp. 108-9; and Ann Wroe, Lives, Lies, and the Iran-Contra Affair (London: I. B. Tauris, 1991), p. 279.

[6.] Fawn Hall, in The Joint Hearings before the House Select Committee to Investigate the Covert Arms Transactions with Iran and the Senate Select Committee on Secret Military Assistance to Iran and the Nicaraguan Opposition, 100th Congress, 1st sess., vol. 1004(Washington, D.C.: Government Printing Office, 1987) (hereafter cited as ICJH), pp. 496-97.

[7.] John Ehrlichman, Hearings before the Select Committee on the Presidential Campaign Activities of the United States Senate, 93rd Congress, 1st sess. ( Washington, D.C.: Government Printing Office, 1973-74), p. 2600.

[8.] Draper, A Very Thin Line, p. xiii.

[9.] John Rohr, Ethics for Bureaucrats: An Essay on Law and Values ( New York: Marcel Dekker, 1978), p. 54.,

[10.] Ibid.

[11.] Clinton Rossiter, The American Presidency ( Baltimore: Johns Hopkins University Press, 1956; repr. 1987), p. 28.

[12.] See Gary Greenberg, “Revolt at Justice”, in Amy Gutmann and Dennis Thompson , eds., Ethics and Politics: Cases and Comments, 2nd ed. ( Chicago: NelsonHall, 1990), pp. 94-103.

[13.] Jane Mayer and Doyle McManus, Landslide: The Unmaking of the President, 1984-1988 ( Boston: Houghton Mifflin, 1988) p. 386.

[14.] See Richard Neustadt, Presidential Power and the Modern Presidents: The Politics of Leadership from Roosevelt to Reagan (New York: Free Press, 1990).

[15.] See Samuel Kernell, Going Public: New Strategies of Presidential Leadership ( Washington, D.C.: Congressional Quarterly Press, 1982).

[16.] Mayer and McManus, Landslide, p. 316.

[17.] Report of the Congressional Committees Investigating the Iran-Contra Affair of the House and Senate, 100th Congress, 1st sess. (Washington, D.C.: Government Printing Office, 1987) (hereafter cited as ICR), pp. 35-35.

[18.] National Security Archives Document Set (microfiche), The Iran-Contra Affair, 1983-1988: The Making of a Scandal, ed. Peter Kornbluh (Arlington, Va.: ChadwyckHealey, 1990) (hereafter cited as NSA, ICA), “Stipulations of the Facts of the United States v. North”, pp. 16, 38.

[19.] NSA, ICA, North memos, doc. 644, 664.

[20.] Draper, A Very Thin Line, p. 108.

[21.] NSA, ICA, Reagan letter, doc. 855; North memo, doc. 859.

[22.] Los Angeles Times, April 13, 1989; and Draper, A Very Thin Line, p. 77.

[23.] San Francisco Chronicle, December 26, 1992, p. A19.

[24.] Ibid., p. A1

[25.] Lou Cannon, President Reagan: The Role of a Lifetime (New York: Simon & Schuster, 1991) p. 355.

[ 26.] Draper, A Very Thin Line, p. 33.

[27.] NSA, ICA, CIA memo, doc. 376.

[28.] ICR, p. 38.

[29.] Joseph Coors, The Report of the Congressional Committees Investigating the lran-Contra Affair: Depositions Before the Staff of the Joint Senate Committee on Secret Military Assistance to Iran and the Nicaraguan Opposition and the House Select Committee to Investigate Covert Arms Trafficking with Iran, 100th Congress, 1st sess., 1987-1988, Vol. VII, Appendix B, p. 724 (hereafter cited as Depositions).

[30.] Ibid.; Donald Conrad, Depositions, Vol. VI, Appendix B, p. 299.

[31.] John Singlaub, ICJCH, vol. 100-3, p. 174.

[32.] Ibid., pp. 186, 188-89, 950.

[33.] Wroe, Lives, p. 253.

[34.] New York Times, October 8, 1991, p. A6.

[35.] ICR, p. 144

.[36.] NSA, ICA, Shultz telegram, doc. 3691.

[37.] NSA, ICA, Poindexter telegram, doc. 3698.

[38.] George Shultz, Turmoil and Triumph: My Years as Secretary of State (New York: Scribner’s Sons, 1993), pp. 818-20, 827-28; Mayer and McManus, Landslide, pp. 302-3, 312-14; and Draper, A Very Thin Line, pp. 473-83.

[39.] See Theodore White, Breach of Faith: The Fall of Richard Nixon ( New York: Atheneum, 1975); and Stanley Kutler, The Wars of Watergate: The Last Crisis of Richard Nixon ( New York: Alfred Knopf, 1990).

[40.] See John Ehrlichman, Wiftiess to Power: The Nixon Years ( New York: Simon & Schuster, 1982); John Dean, Blind Ambition: The White House Years ( New York: Simon & Schuster, 1976); and Anthony Ulasewicz with Stuart A. McKeever, The President’s Private Eye (Westport, Conn.: MASCAM Publishing, 1990).

[41.] See Ehrlichman, Witness to Power, H. R. Haldeman, The Ends of Power ( New York: New York Times Books, 1978); and Jeb Stuart Magruder, An American Life: One Man’s Road to Watergate ( New York: Atheneum, 1974).

[42.] Richard Nixon, RN: The Memoirs of Richard Nixon ( New York: Grosset and Dunlap, 1978), pp. 512, 515.

[43.] Larry Berman, Planning a Tragedy: The Americanization of the War in Vietnam ( New York: W. W. Norton, 1982), p. 32.

[44.] Neil Sheehan, The Pentagon Papers, as Published by the New York Times ( New York: Bantam Books, 1971), p. 235.

[45.] Berman, Planning a Tragedy, p. 33; and Sheehan, The Pentagon Papers, p. 235.

[46.] George C. Herring, “The War in Vietnam”, in Robert A. Divine, The Johnson Years, Vol. I ( Lawrence: University of Kansas Press, 1987) p. 28

[47.] Joseph Goulden, Truth Is the First Casualty: The Gulf of Tonkin Affair—Illusion and Reality ( Chicago: Rand McNally, 1969), p. 15

[48.] Ibid., p. 160.

[49.] Berman, Planning a Tragedy, p. 3.

[50.] Noam Chomsky, The Culture of Terrorism ( Boston: South End Press, 1988), p. 2.

[51.] Ibid., p. 2

[52.] San Francisco Chronicle, December 25, 1992, p. A1

[ 53.] San Francisco Chronicle, December 27, 1992, p. A17.

David Mervin

The Iran-Contra affair arouses strong feelings among many Americans. It is widely regarded as one of the great calamities of the Reagan years, involving shameful law-breaking on a grand scale by senior public officials from the president downwards. In its emotional impact, this affair bears some resemblance to the trauma of Watergate, and it might be thought presumptuous for a foreign scholar to enter the debate on such an intensely controversial issue. However, while there are many disadvantages to studying a political system from the outside, there is one advantage—that of perspective. Coming from another political culture and being detached from the emotional and partisan implications of highly contentious political issues can, ideally, allow outsiders to offer insights less readily apparent to those more intimately involved. I will return in the concluding paragraphs of this paper to the possible merits of an external perspective.

The Iran-Contra affair is a vastly complicated subject, and this discussion focuses on only one, narrow, yet central, element—the legitimacy of Ronald Reagan’s intentions in attempting to aid the Contras. This raises a number of questions, the most crucial being whether there are circumstances where a president is entitled to take initiatives in defense of the national security, even in the face of congressional and public opposition.

There can be no doubt that presidents have a special responsibility for dealing with immediate national security crises. The framers of the Constitution were originally inclined to reserve exclusively to Congress the right to make war, but they eventually agreed that this was to go too far; the legislature should have the right to declare war, leaving to the executive, in the words attributed to James Madison and Elbridge Gerry, “the power to repel sudden attacks.” ¹ The latter position was reaffirmed twenty years ago when the War Powers Resolution included a provision recognizing that a president must be allowed to respond unilaterally, in the short term, to any “national emergency created by attack on the United States, its territories or possessions, or its armed forces.”²

It is clear then that, in emergencies, chief executives are entitled to take action without waiting for Congress to meet and to agree on a course of action. However, there is more to this than the founding fathers could have anticipated; a responsibility for dealing with “sudden attacks” is not met simply by mobilizing forces once an attack has begun. Despite the awesomely grave implications for the Constitution, it is difficult to avoid the conclusion that, in the modern age, in some circumstances, presidents have to be allowed to take unilateral initiatives as a way of preventing attacks from occurring at all. In other words, a dutiful chief executive today must be alert not just to immediate threats at the nation’s borders, but also to those that may be gestating thousands of miles away. Moreover, having identified such a threat, a president is surely obliged to attempt to meet it, even in the face of apathy and opposition in Congress and among the public at large.

This was Franklin Roosevelt’s situation in the 1930s. He observed with increasing alarm the unchecked advance of the Third Reich in Europe, and repeatedly warned the American people that they could not afford to ignore what was happening on the other side of the Atlantic. In a fireside address before the United States entered World War II, the president reassured his listeners that the nation was:

mustering its men and its resources only for purposes of defense—only to repel attack. ...But we must be realistic when we use the word “attack”; we have to relate it to the lightning speed of modern warfare…it would be suicide to wait until [enemies] are in our front yard. When your enemy comes at you in a tank or a bombing plane, if you hold your fire until you see the whites of his eyes, you will never know what hit you. Our Bunker Hill of tomorrow may be several thousand miles from Boston. ³

Nevertheless, prior to the attack on Pearl Harbor at least, Roosevelt’s freedom to act was constrained by the powerful aversion to foreign entanglements that persisted in Congress and among the public. The reluctance of members of Congress to see the United States enter the war, even as late as 1941, is reflected in the famous 203-202 vote in the House of Representatives to approve an extension of the draft. Similarly, the lack of enthusiasm among the public for intervention was shown by innumerable polls. One, taken on September 17, 1941, two years after hostilities had begun between Britain and Germany, had 87 percent of Americans answering no to the question, “Should the United States go into the war now and send an army to Europe to fight?”⁴

FDR was, accordingly, obliged to move with stealth in 1940 and 1941, concealing his true purposes and often acting in a manner contrary to the letter and the spirit of the Constitution. Thus the exchange of American destroyers for British bases, the dispatch of American troops—first to Greenland and then, much more controversially, to Iceland—were all put into effect by executive agreements. These and other actions by Roosevelt—such as the issuing of
“shoot on sight” orders to Navy ships escorting convoys in the Atlantic, and the signing of the Atlantic Charter, with its reference to “the final destruction of the Nazi tyranny”—were hardly consistent with neutrality.

The crux of Roosevelt’s strategy at this time was support for the British. He was convinced that if Britain and its navy fell into German hands, the United States would become fatally vulnerable. To put it another way, the president, in meeting his responsibility “to repel sudden attacks,” concluded that he must do everything possible to help the British “keep body and soul together,” and he was not unduly troubled by constitutional niceties in doing so.

Even if the parallels are by no means exact, there are surely important similarities between Roosevelt’s situation and Ronald Reagan’s forty years later. Reagan saw Communism in Central America as a burgeoning threat to U.S. national security that he was obliged to confront, much as Roosevelt had viewed the advance of Nazism in Europe; and support for the Contras in Nicaragua became the sine qua non of Reagan’s policy in the region in a manner comparable to Roosevelt’s support for the British.

Like Roosevelt, Reagan’s freedom to respond to what he saw as a developing crisis was limited by public opinion and isolationism in Congress. Whereas Roosevelt had had to contend with a legislature and a public with jaundiced memories of American intervention in World War I, Reagan was obliged to battle against the even more bitter legacy of Vietnam. FDR found it necessary repeatedly to reassure Americans, “Your boys are not going to be sent into any foreign wars,” a refrain that Reagan echoed, with “there is no thought of sending combat troops to Central America.”⁵ Both these presidents were frustrated in their efforts to alert the public to the dangers they perceived, and each excoriated his opponents in Congress for playing politics with vital matters of national security and denounced fifth columnists and propagandists acting on behalf of the enemy within the United States.

These were two presidents who, forty years apart, perceived a threat to the national security of the United States and sought to respond to it in the face of opposition that they believed to be based on apathy, ignorance, misinformation, and partisanship. Whereas Roosevelt’s leadership has been widely praised, however, and doubts as to the constitutionality of his actions have long since disappeared, Reagan has been roundly condemned, with some even suggesting he should have been impeached for his efforts to circumvent the Boland Amendment.

There is little doubt that Reagan deserves severe condemnation for mismanagement in this affair. Apart from a general desire to halt the spread of Communism in Central America, the objectives of his policy remained unclear, and he failed abysmally to resolve rampant divisions on the issue among his senior advisors. In the circumstances, his notoriously detached managerial style became a disastrous weakness with policymaking hijacked, in Lou Cannon’s words, by “self-important advocates of covert action who were contemptuous of congressional opposition and American public opinion.” ⁶ In that regard, Reagan’s inept performance was far removed from FDR’s skillful leadership in the earlier period. On the other hand, it is difficult to see that President Reagan’s intentions in trying to help the Contras “keep body and soul together” were, in principle, any less legitimate than Roosevelt’s determination to aid the British.

Some would argue that both of these presidents were guilty of acting unconstitutionally, but even if that charge can be sustained, that is by no means the end of the matter. Notwithstanding the ominous implications for democratic government, some eminent authorities have argued that occasions do arise where political leaders are entitled to act outside the framework of statutory and constitutional law. As John Locke put it, in some situations, the national interest requires that “the laws themselves…give way to the executive power. ...This power to act according to discretion for the public good, without the prescription of law and sometimes even against it, is that which is called ‘prerogative.’”⁷

There has been a tendency to discount the importance of John Locke’s influence on the framers of the Constitution, but what of Thomas Jefferson?⁸ In a famous passage, the latter gave powerful support to chief executives presuming to venture outside the law in defense of the security of the nation:

A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property, and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.⁹

This is surely an unanswerable argument. However much the rule of law and the sanctity of the Constitution are cherished, in some circumstances, they have to take second place to the ultimate purpose of government: the preservation of the nation and the safety of the people.

It is notable that there is no mention of either Locke or Jefferson in Harold Koh’s influential book, described on its cover as “the definitive historical and constitutional analysis of the Iran Contra affair.” In that same work, the precedents set by Abraham Lincoln are also treated as being of no account. Lincoln’s many violations of the Constitution under the press of civil war are not relevant, we are led to believe, to questions of foreign policy.¹⁰ However, Lincoln acted as he did out of a concern for the “public safety,” and he reasonably enough bracketed together “cases of rebellion or invasion” as threats to the public safety.¹¹ It seems reasonable, therefore, to construe “public safety” as being synonymous with the more modern expression, “national security.”

The Iran-Contra affair is seen by Koh as an unacceptable, “nearly successful assault upon the constitutional statutes and norms” which make up the “National Security Constitution.” This consists of a “normative vision,” or political culture, based upon the text of the Constitution, judicial decisions, certain statutes and historical precedents. At the heart of this culture is the

assumption that foreign policy should be the outcome of “balanced institutional participation” rather than being made exclusively by president.¹² Historically, there had been many violations of the norms of this culture, but these were aberrations rather than amendments to the National Security Constitution that had persisted over time, and could be seen in its purest form in Justice Robert Jackson’s concurring opinion in Youngstown Sheet and Tube Company v. Sawyer ( 1952), the case where, by a majority of 6-3, the United States Supreme Court denied Truman’s right to seize steel mills on national security grounds. Koh found in Jackson’s opinion wording especially pertinent to the Iran-Contra affair: “When the President takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”¹³

Presidents and other public officials undoubtedly do operate in a context shaped by a “normative vision of the foreign policy-making process,” but it is questionable whether that phenomenon is adequately represented by one opinion of one Supreme Court justice who, in any case, had previously held quite different views. To this foreign observer, at least, it is to engage in constitutionalism carried to excess to place so much weight on one such opinion, however impressive the reasoning it contains may be to constitutional lawyers. Surely questions as to the acceptability and legitimacy of how presidents respond to national security crises have to be dealt with in broader terms? In particular, due account must be taken of the precedents set by widely revered former presidents. Lincoln’s response to the rebellion of the South is surely of relevance, and Theodore Roosevelt, Woodrow Wilson, Franklin Roosevelt, Harry Truman, Dwight Eisenhower, John Kennedy, and others can hardly be disposed of as deviant cases—as presidents who acted illegitimately outside the framework of the national security constitution. It is also difficult to take too seriously the suggestion that William Howard Taft’s “strict constructionist” theory of presidential leadership is the one most appropriate for foreign policy purposes.¹⁴

It would be difficult to identify two more powerful influences on the American political culture than Abraham Lincoln and Franklin Roosevelt. Historians and political scientists have praised them elaborately, while members of the public, who may, at best, be only dimly aware of who William Howard Taft was, have perceptions of Lincoln and FDR as exceptional leaders who overcame great odds to confront successfully two of the greatest crises of American history. The fact that both strayed a fair distance from the path of constitutional righteousness in doing so has had little effect on the significance of their monumental contributions to American perceptions as to how presidents should meet their responsibilities.

When Ronald Reagan and his staff sought to get aid to the Contras in the face of popular and congressional opposition, they could draw comfort from the awesome precedents set by giants of American history like Lincoln and Roosevelt, to say nothing of those many other presidents who have not adhered strictly to the Constitution when taking action in defense of the national security.

Some would argue, however, that Reagan’s crime was more heinous than that of other chief executives in that he persisted with his policy even after Congress had passed legislation, the Boland Amendment, supposedly specifically designed to terminate that policy—”the administration’s activities in support of the Contras were conducted in direct contravention of the will of Congress.”¹⁵ One problem with this line of argument is that it hardly makes sense to speak of a “will of Congress” on any issue, and on the matter of aiding the Contras, as is so often the case, Congress was divided and confused. As Senator Orrin Hatch observed, “In contrast to President Reagan’s consistent policy of support for the Nicaraguan freedom fighters, Congress enacted an inconsistent series of amendments. From 1982 to 1987, Congress changed its collective mind virtually every other year – offering support one year and withdrawing it the next – with no consistency even among the Boland amendments themselves.”¹⁶

Similar confusion and incoherence existed in Congress in the early 1940s, with some members supporting Roosevelt’s policy of aiding the British, others appalled by the implications of that policy, while yet another group complained that the president’s responses to the crisis in Europe were unduly timid. Unlike Reagan, however, Roosevelt had the advantage of large majorities in both the House and the Senate to help him fend off partisan assaults.

The United States Congress is, in many respects, an impressive institution, particularly by comparison with some of its counterparts elsewhere. It is close to the American people, it carries real clout within the political system, it is well staffed, and it is possible for members to become highly effective specialists rather than remaining largely impotent generalists. Nevertheless, Congress shares some of the problems of all legislatures. It lacks the information sources available to the executive, it is incapable of swift response, and secrecy cannot be guaranteed. More specifically, members of Congress are notoriously individualistic; they are likely to be partisan and they are vulnerable to parochial pressures and special interests, making it especially difficult for them to develop policies in the national interest. They can often become professional oppositionists; lacking any responsibility for the execution of policy, they can make careers out of harrying those on whom that duty falls. ¹⁷

Those who rail against presidents exceeding their constitutional powers in the making of foreign policy often appear to suggest that policy outcomes would be vastly improved if only Congress was allowed to play a fuller part. “For better or worse, the Constitution does not confer on the executive sole power over the country’s foreign policy; when a President behaves as if it did, the result tends to be policies that are ill-conceived and corrupt.”¹⁸ The inadequacies of Congress discussed above, and the record of the interwar period when the legislature last dominated the foreign policy process, do little to suggest that a greater role for Congress would make for better policy.

It is also important to remember that chief executives have been repeatedly encouraged to take the reins of national security policy into their own hands by leading members of the legislature itself. Senior members of both houses and both parties have dwelt at length on congressional weaknesses and the need to defer to the executive in the making of national security policy. Among the more notable members who have argued in these terms at some stage of their careers can be included Senators Arthur Vandenberg, Paul Douglas, Wayne Morse, William Fulbright, Herbert Lehmann, Tom Connally, Lyndon Johnson, Barry Goldwater, John Tower, and Charles Mathias, as well as House leaders such as one-time Speaker Sam Rayburn and, more recently, former minority whip, Richard Cheney.¹⁹

Congress and the courts are regularly castigated by their critics for their lack of will in restraining “imperial” presidents bent on seizing control of the foreign policy process.²⁰ However, these alleged failings are perhaps best understood as arising from the reluctant recognition by many legislators and judges of the hard realities of the situation. They have come to accept that, whatever the high priests of constitutional law may say, Congress is illequipped to be a co-partner in these matters; that its role is bound to be a subordinate one; that, ultimately, the president is responsible for the national security and must be given an appropriate degree of freedom to meet that most daunting of all his obligations.

Such assumptions may not square completely with the intent of the framers and, without doubt, they are quite unacceptable to many academics. As scholars, however, we deal with these matters in a theoretical context where we are able to linger over constitutional exegesis and can enjoy the luxury of pontificating fearlessly from the sidelines.²¹ Presidents, on the other hand, operate in the real world; on them falls the responsibility for making the desperately difficult decisions upon which the fate of the nation and millions of lives may depend.

The question that needs to be faced is, what do we expect a president to do when he identifies a threat to the national security, but is unable to convince either Congress or the people that such a threat exists? Can we realistically ask him to interpret the Constitution literally? Must we really insist that he study the fine print of the Youngstown decision, defer to Congress at every turn, and adopt President Taft as his role model? Is it really his duty to do nothing?

Any president worthy of the job will reject such a course of nonaction. He will seek to exercise leadership, drawing sustenance from the towering examples of Lincoln, Franklin Roosevelt, and others, and declining to accept passively the restraints on his freedom of action that Congress may well attempt to impose. Obviously, it is highly desirable for there to be a consensus in Congress and the country behind whatever policy the president pursues; yet, if that support is lacking, he cannot be expected to surrender, to abdicate his responsibility to lead.

Like Lincoln and Franklin Roosevelt and many other presidents before him, Reagan, in struggling to get aid to the Contras in the face of congressional and popular opposition, was endeavoring to exercise leadership. However imperfectly he performed the role, he was trying to do the job he was elected for in the first place. As Theodore Sorensen observed some years ago:

A President cannot afford to be modest. No one else sits where he sits or knows all that he knows. No one else has his power to lead, to inspire, or to restrain the Congress and country. If he fails to lead, no one leads….The nation selects its President, at least in part, for his philososphy and his judgment and his conscientious conviction of what is right—and he need not hesitate to apply them. He must believe in his own objectives. He must assert his own priorities.²²

As I argued earlier, Reagan’s policy objectives lacked clarity, but vague though they were, he was attempting to impose his priorities rather than meekly accepting those of his opponents. He sought, in other words, to break out of the gridlock—that tendency toward ungovernability that constantly afflicts the American political system.

Some find laughable the very idea of bracketing Reagan with such eminent predecessors as Lincoln and Roosevelt; how, it is asked, can Reagan’s diagnosis of the situation in Central America in the 1980s possibly be equated with the undeniably dire emergencies posed by civil war and the advance of Nazism? ²³ Few doubt that presidents are entitled to act outside the Constitution in some circumstances, but for such behavior to be acceptable, it seems, the emergency must be genuine in the eyes of the observer. However, the crucial questions of whether a crisis exists at all, or of how desperate the situation really is, are matters of subjective judgment. Scholars, at least, are obliged to avoid the use of double standards and should not be drawn into analyses where President A’s unconstitutional actions are condoned because, in our view, he faced a real crisis, whereas President B is denounced for violating the Constitution in circumstances which we believe did not constitute a crisis.

For what it is worth, I happen to believe that Reagan’s policy toward Nicaragua was, from the beginning, misconceived and ill-judged. It seems to me that he overreacted to communist activity in the region, that his fears of a threat to the national security of the United States were far-fetched, and that a crisis, therefore, did not in fact exist.²⁴ However, my opinion in that regard is separate from my role as an academic student of politics, and does not provide an appropriate basis for any judgment by me as to the legitimacy of President Reagan’s intentions in trying to get aid to the Contras. In common with some other political scientists, I take the view that the focus of our attention should be the policy process, while leaving to others pronouncements as to the desirability of the policies being pursued.²⁵

It also seems to me undeniable that the president and Congress cannot be co-equals when it comes to the making of foreign policy. His is the primary or leading role, and his oath of office plus his constitutional position as the repository of executive power and commander in chief, to say nothing of his “power to repel sudden attacks,” all combine to place upon him a particular, paramount responsibility for the safety of the nation. This is not to suggest that the legislature in the United States should not play a large part in the foreign policy process. Mechanisms such as the appropriation and treaty processes guarantee that Congress is in no danger of being reduced to a position comparable to that of the House of Commons in such matters. But there has to be a willingness on the part of the legislature and others to recognize that circumstances may arise where it is legitimate for a president to act unilaterally in response to what he perceives as a threat to the national security. Undeniably, such a position carries with it grave implications for democratic government which Americans, in particular, find deeply alarming. The attitudes and values inherent in their political culture cause them to rea