an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Iran-Contra and our Present Constitutional Discontents
It is quite fascinating—and not a little depressing—to read two essays written over fifteen years ago as contributions to a symposium on the Iran-Contra Affair published in the first volume of the National Political Science Review. Two of the essays were written by leading political scientists who went on to become president of the American Political Science Association, Theodore J. Lowi of Cornell and Matthew Holden of the University of Virginia.
Lowi offers a brilliant five-page riff, “Doin’ the Cincinnati or What Is There about the White House That Makes Its Occupants Do Bad Things?” He analogizes such persons as Col. Oliver North and Admiral John Poindexter to members of the 18th-century Society of the Cincinnati, “an organization of officers” who in effect refused to return to ordinary civilian life following American defeat in Vietnam, which, of course, they saw as an utter disgrace caused by “soft” civilians who did not recognize what was necessary to triumph in a tough world. They joined with neo-conservative intellectuals, such as Elliott Abrams and Richard Perle, in resisting what they thought were dangerous trends in American life. And, more to the point, their discontent in the 1970s was followed by service in the Reagan Administration.
Referring to North and his colleagues, Lowi writes that “it is not their individual dedication that counts; what is significant is their togetherness in a new Cincinnati society and their achievement: a coup d’etat that almost succeeded—to control and reorient U.S. policy toward two highly sensitive and strategic regions and, through that, to rededicate overall American foreign policy toward the bipolar definition of the world from which we had departed (or retreated) after Vietnam…. For them, the world may be objectively mulipolar, but it is morally bipolar.
"If the new Cincinnati has not as yet been recognized as coup d’etat plot, it is only because we generally define coup d’etat as an effort to replace an existing ruling group with an entirely new ruling group. But there can be other kinds, such as a partial or specialized coup d’etat, where only one domain or region is taken over…. Watergate itself can be understood as revelation of a coup by President Nixon’s own group of plumbers and others against those parts of the government thought to be out of control or less than loyal to what President Nixon was trying to achieve. In this respect, the Cincinnati coup of 1985-87 is shockingly like the Nixon coup to the extent that a White House-centered group took over a large chunk of foreign policy without the knowledge of, and once discovered, against the wishes of other less ideological parts of the national government….
"The coup failed, and the Cincinnati was exposed, but no thanks to the alleged genius of American political institutions. The coup was actually foiled by the Iranians themselves wit a leak to a Lebanese magazine….
"[We must] recognize that the Iran-Contra affair and the Cincinnati are reflections of a constitutional problem: What is there about the White House that makes its occupants do bad things? Pressure to produce results for the American people has made diplomacy and the presidency natural enemies. Each recent president has been pushed close to or over the brink of personal disgrace by one or more efforts to directly alter the history of a weak country that we have the military power to wipe out but lack the power to change. The evil here is not covert activity as such. There is ample constitutional justification for covert activity in foreign affairs, when that covert acivity is culy constituted. But when it is duly constituted, it is called diplomacy!
"As long as our system depends upon a presidency that requires a regular flow of international results, presidents will seek to short-circuit the slow-moving, bureaucratized diplomatic corp. That will require covert action by a rump group, and cooperation with such a group will leave the president vulnerable to true believers that are willing to put their own beliefs above the national and international procedures whose very purpose is to reduce the violence potential of intense ideologues. Procedures exist as protection against all mullahs, whether they are dressed in black or olive drab, speak Farsi or English, are bearded or clean shaven. Most of the fanatics who do not inhabit Teheran inhabit Washington. Orderly diplomacy is our protection against fanatics, wherever they are."
Holden offers an essay, “Congress on the Defensive: An Hypothesis from the Iran-Contra Problem.” Though he writes with less brio than the effervescent Lowi, it raises just as deep questions about our constitutional order. In particular, he takes issue with the passage in the majority report on the congressional Iran-Contra committee that the affair “resulted from the failure of individuals to observe the law, not from deficiencies in existing law or in our system of government.” This is, argues Holden, incorrect. “The ease with which the members of the White House staff and their allies outside carried out their preferences,” he writes, “makes it credible to believe that the working system tends to be closer to the Poindexter-North practice than the overt theory of political science or the conclusions of the committees might suggest. Congress is on the defensive. It is the victim of a structural weakening that long has been in process.” Devotees of executive power have been engaged in a long-term process, of which Iran-Contra was only one episode, to establish the “primacy” of the President regarding foreign and defense policy that ends up with “a concept of ‘the executive power’ substantially akin to what is ‘the royal prerogative’ in English law.”
Holden notes the importance of modern technology in making it much easier, as a practical matter, for the White House to establish genuine “command and control” over its subordinates, which includes establishing a ethos of secrecy and contempt for anyone outside the environs of the White House and its immediate political allies. He also offers several hypotheses as to why Congress has voluntarily ceded much of its power to the White House. One reason, of course, is that serious debate about public policy requires immense investments of time and energy actually to learn what is involved. Modern politicians get relatively little payoff for such investments, especially if the President can count on loyal supporters (which Holden analogizes to the king’s agents in 18th century British parliaments) to proclaim the supremacy of the President and the inappropriateness of a truly independent Congress (especially, of course, during a time of war). He also makes the important point that there is a long tradition of popular contempt for Congress, expressed by many “humorists,” whereas expression of similar contempt for presidents (who of course are “singular” individuals in a way that “Congress” is not) is thought to be bad form, perhaps even unpatriotic. Moreover, Holden argues, “The presidential office benefits from politics as theater. Politics as theater relieves boredom and frustration, both political and moral, and gives symbolic expression to people’s deep feelings…. The president’s aspirations to do what is right, if the president makes clear that is what he wants, will be respected, even if not venerated.”
I leave it to others to make the fairly obvious applications to our general situation. But might we might say that the seeds of the present constitutional crisis were laid by spineless Democrats who refused to take seriously the prospect of impeaching Ronald Reagan and who refused to raise a ruckus when President George H. W. Bush engaged in his infamous Christmas pardons of 1992 that effectively shut down the investigation of Special Prosecutor Lawrence Walsh into the culpability of Secretary of Defense Caspar Winberger and Bush himself? And, of course, Bush pardoned Abrams as well, who is now back in service in George W. Bush’s administration. No doubt, some of these Democrats are still around, opposing Sen. Russell Feingold’s mild-mannered suggestion that the President at least be censured for manifest contempt for the law. And so it goes….. Posted
by Sandy Levinson [link]
Excellent. I wrote the current rump group up in a recent post, Neoconservatives, and a couple of other nearby posts.
I'd like to see a good discussion of whether a Presidential pardon purportedly given before conviction should be sustained by the federal courts.