Here is my presentation from the Take Back American panel on "Curbing the Imperial Presidency." I'm sure it didn't come out this way. But it might be close.
One year after the publication of his book The Imperial Presidency, Arthur Schlesinger wrote the following for a column in Harpers:
We hear a great deal today about the presumably grim consequences of the impeachment of the President—an endless public trial, a people divided, a government paralyzed, a nation disgraced before the world. But suppose the House of Representatives should decide not to impeach Mr. Nixon. That would have its consequences, too—consequences that deserve at least as careful an examination.
For the refusal to impeach would be a decision as momentous as impeachment itself. It would and could be interpreted only as meaning that Congress does not think Mr. Nixon has done anything to warrant impeachment. It would alter the historic relationship of Presidential power to the constitutional system of accountability for the use of that power. The message our generation would send to posterity would be that Mr. Nixon, whatever his other disasters, had conceived and established a new conception of Presidential accountability, and that his successors, so long as they take care to avoid the crudities of a Watergate burglary, can expect to inherit Mr. Nixon’s conception of inherent Presidential authority and to wield the unshared power with which he will have endowed the Presidency. Failure to impeach would be a vindication of a revolutionary theory of Presidential accountability.
Now, I agree with Schlesinger. The fear of an endless public trial, of government paralyzed, of international disgrace—those are not sufficient reasons to avoid impeaching a President (or Vice President or Attorney General) who has overstepped his constitutional authority.
But at the same time, the perspective of thirty years makes it clear. Impeaching Nixon was not sufficient to curb Nixon’s dangerous theories of inherent power. On the contrary, with the impeachment, those theories metastasized into the body of Dick Cheney and others. [I’m a breast cancer survivor and I’m reminded by what can happen when a primary tumor is removed—the removal can actually make it easier for metastases to grow their own blood supply and thus become viable. I don’t usually favor cancer as a metaphor, but in the case of Dick Cheney, I think it is an apt comparison.]
We need to keep Congress working on all the means to curb the imperial presidency, not least because of the approach Libby's pardon. Libby defense team (and Robert Bork and two of the guys who justified torture) want to overturn Libby's prosecution using the argument that Fitzgerald's appointment is unconstitutional. To rebut the argument that Judge Walton made--that Fitzgerald's appointment must be legal, otherwise there wouldn't be any way to investigate senior Administration official--Libby's team argued that a ruling that Fitzgerald's appointment was unconstitutional...
would not, contrary to the Court's concerns, immunize high-level administration officials from future prosecution. Indeed, the Department's own regulations provide for the appointment of a special counsel who is subject to supervision and direction by the Attorney General.
In other words, they argue that the only constitutional way to investigate top Administration officials is with a prosecutor who reports to the Attorney General. Given that the Attorney General is the next guy we're going to need to investigate, that doesn't hold out much hope for criminal prosecution.
But we also need to work on curbing the imperial presidency cultural. To explain why, I’d like to read from Michael Horowitz’ letter in support of leniency for Scooter Libby. As a reminder, Horowitz was the original architect of the Federalist Society, which over the last thirty years has filled our legal system with men and women who often place partisan allegiance above the law. He was also present at the creation of the Arkansas Project, which pursued President Clinton relentlessly until it found a reason—any reason—to impeach. So here is what Horowitz wrote to try to convince Judge Walton to give probation to Scooter Libby after he was convicted of obstructing an investigation that went to the heart of the Administration’s ability to control information, start wars, and retaliate against its perceived enemies.
Disposition of the Libby case will have much to do with whether the country will further and gravely descend into "us v. them" feelings of bitterness and contention. As the Bork case led inexorably to the Clinton impeachment, so can the case before the Court profoundly criminalize and poison the country's political process with calls for retribution on the part of many who will never believe--never--that Scooter merits criminal punishment or, God forbid, incarceration. It is an irony that Scooter would be the last to support such an embittering development, but the esteem in which he is held is such that any but the most Solomon-like disposition of his case could easily ensure this occurrence.
Horowitz—who personally made sure the Bork case led inexorably to the Clinton impeachment—warns of retribution if “God forbid” a Republican-appointed judge should give Scooter Libby jail time for protecting the Vice President’s activities from legal scrutiny. The Michael Horowitz’ of the world have so delegitimized the rule of law as it pertains to the executive that even a legal inquiry conducted entirely by Republicans and Independents is cause for retribution. So while impeachment would carry certain advantages—such as an unquestionable ability to subpoena the executive—by itself it would not achieve the goal of reigning in the Imperial Presidency. While we need to keep the legal tools at our disposal available, we also need to defeat the legitimacy of the imperial presidency culturally.
First, we’ve got to resuscitate respect for the rule of law in this country. And I do think there is opportunity. Jane Hamsher somehow turned the painfully geeky Patrick Fitzgerald into a bit of a sex symbol. And if Hollywood had to pick a hero and a villain of the US Attorney purge, I’ve got a good feeling they’d pick David Iglesias over Kyle Sampson or Brad Schlozman any day. Precisely because the Administration is attacking the rule of law in such ugly fashion, it offers an opportunity to flip their attack on its head and use it to recuperate the rule of law.
We also need to use those within the Administration who believe in the rule of law against it. As Jim Comey’s testimony showed, those who believe in the rule of law can provide powerful tools into exposing the ways in which the Administration doesn’t believe in it—and even with Comey there are still details not yet in the public sphere. More curiously, I’m stumped by David Addington, Cheney’s legal ambassador for the unitary executive. You see, Addington’s conception of the rule of law is twisted and dangerous—but he does, absolutely, believe in the rule of law. Over the course of Libby trial testimony, he revealed (with no shame) that the Vice President’s office was stamping evidence turned over to investigators with an improper classification: “treated as Top Secret/SCI,” he discussed scolding Dan Bartlett for the public exonerations of Libby and Rove as improper during an investigation, and he, by himself, proved that Libby knew Joe Wilson was the spouse of someone who worked at the CIA..
Finally, we have to use the Administration’s botched propaganda against it. It is clear to most, now, that the invasion of Iraq had nothing to do with an attempt to prevent the proliferation of WMD, a desire to spread democracy, or a fight against terrorism. We need to keep refuting those who want to claim this war is part of the war on terror. But we need to take that a step further and talk about the real reason the Administration did invade Iraq: to prop up America’s threatened hegemonic position using a grand strategy that is not only outdated and immoral, but guaranteed to be ineffective in an era of global warming and peak oil. We need to provide for some energy security and it would be lovely to forestall the time when the rest of the world moves away from the dollar as the reserve currency. But Dick Cheney’s attempts to accomplish these goals by invading Iraq have backfired and will hasten the decline of American hegemony. Since the evidence is so clear that the Administration’s stories about Iraq (or now, Iran) are so flimsy, it provides us with an opportunity to demonstrate how Dick Cheney, with all the tools of the imperial presidency, failed. He actually diminished the place of America in the world. And it would provide an opportunity to talk about a new grand strategy that—as it attempts to fight threats like global warming as well as terrorism—can’t be mobilized to serve the purpose of the Imperial Presidency in the same way.
Those are just three ways we can do the cultural work to discredit the imperial presidency even as we pursue all legal means to reign in the Administration. But the overall approach needs to be twofold: to use both legal and cultural means to ensure that Dick Cheney’s theories of power don’t attain legitimacy through our inaction.