Perhaps the most stunning claim to executive privilege ever made was asserted by President Clinton in Clinton v. Jones (1997), where he argued that executive privilege should shield him from all civil lawsuits. The case in question was a sexual harassment lawsuit filed by Paula Jones based on President Clinton's alleged actions in 1991, while he served as governor of Arkansas. In a unanimous 9-0 ruling written by Justice John Paul Stevens, the Supreme Court dismissed his immunity claim:
With respect to acts taken in his "public character"-- that is official acts--the President may be disciplined principally by impeachment, not by private lawsuits for damages. But he is otherwise subject to the laws for his purely private acts.Where were Democratic politicians during all of this? Calling on Attorney General Janet Reno to fire Kenneth Starr under "just cause" statutes, essentially defanging the entire Office of Independent Counsel; supporting President Clinton's claim for a line-item veto to counteract the agenda of the Republican Congress; and decrying the "witch hunt" into President Clinton's alleged sexual past conducted by, among others, his professed victim Paula Jones.
Deborah accuses the Bush administration of attempting to change the Constitution by requesting a judicial stay on the Detroit judge's Spygate ruling. While I hope the administration's attempt is ultimately unsuccessful, the truth is that nothing that President Bush has done actually changes the Constitution. I believe that it violates the Constitution, a matter to be addressed by the Supreme Court, but then that's why we have a Supreme Court. The president has yet to openly defy a judicial order. Unless and until he does that, he has demonstrated a philosophy of executive power that does not differ in any radical way from the philosophy displayed by the Clinton administration.
Party identification plays a depressing role in all of this. In a recent fantasy article written by Andrew Sullivan, the former New Republic editor asks: What if 9/11 never happened? He imagines President Gore, winner of the 2004 presidential election, responding to a growing terrorist threat by invading Afghanistan. Republican isolationists object to President Gore's military actions, which is entirely consistent with what congressional Republicans did to President Clinton during Kosovo. Remember when the Republican catchphrases on foreign policy condemned "nation-building" and acting as "the world's police"? Remember when the Democratic catchphrases emphasized our role as the world's only remaining superpower, and our responsibility to address humanitarian crises? Now the roles have reversed.
Would we be able to trust a Democratic president to address terrorism without violating civil liberties? Would we be able to trust a Democratic Congress to hold that president accountable? Looking at historical precedents, where wartime presidents of both parties have consistently violated civil liberties and left office as heroes, I believe that the answer must be no. We must be vigilant at all times, and not just when a member of the opposing party is in the White House.
However we feel about the Bush administration and the civil liberties violations it has imposed upon us, our feelings should not lead us to trust members of the other party. As the Clinton administration's record demonstrates, the imperial presidency was not invented by George W. Bush and it probably won't leave office with George W. Bush, either. It is highly probable that the next president, regardless of party, will be dedicated to expanding executive power at the expense of the other two branches of government. Every president since Ronald Reagan has attempted to do so, and the unitary executive theory of the Bush administration stands on the shoulders of the Clinton administration's excesses. Our next president must be kept in check--by the voters, by the Congress (including members of the president's own party), and by the Supreme Court--or President Bush's power-grab will be only the beginning.
