Recent comments made by Dick Cheney and Alberto Gonzales reveal an interesting glimpse into the mindset of an administration that ran roughshod over the Constitution for eight years.
In his repudiation of the government's investigation into CIA interrogation abuses, Cheney expressed incredulity that Holder authorized the investigation independently, since "the President is the chief law enforcement officer in the administration. He's now saying, well, this isn't anything that he's got anything to do with."
When questioned on this point by Chris Wallace, Cheney referred to the Constitution as defining the President as "chief law enforcement officer of the land." He went on to insist that the "President bears responsibility for this" - 'this' being the investigation announced on August 24, although Holder and the White House have confirmed this was an independent decision of the DoJ.
Two days later, Alberto Gonzales, in a radio interview discussing the CIA investigation decision, also referred to the President as "the chief law enforcement officer in our unitary system of government." He distinguished between the President in this capacity, and the Attorney General as "the chief prosecutor of the United States."
Characterizing the President as the "chief law enforcement officer" is not only an incorrect shading of his duties, it distinctively colors the conversation which follows from it. A White House official corrected this, saying "That's not true. It's the Attorney General." Nevertheless, the false characterization lingers, distorting the role of the President and fueling right-wing umbrage at assumed partisanry in play.
Framing Presidential Power
Of greater interest to me, however, is the mindset and worldview that this framing suggests in the first place. It comes from a former Attorney General recognized to have done the bidding of the Bush White House very closely, and from a former Vice President recognized to have been a major architect of the detainee interrogation program - a man who also did much of that bidding of Gonzales, both when he was White House legal counsel and later as Attorney General.
Framing the President as "chief law enforcement officer" (in addition to his military role as Commander in Chief) and the AG simply as a "chief prosecutor" implies an all-encompassing, over-powerful office of the Executive - a take that is admittedly not a complete surprise in the Imperial Presidency crafted by Cheney and Bush[1,2]. It also suggests where the nexus of ethical responsibility and decision-making authority laid in legal matters: clearly not in the Department of Justice or with the AG, which Cheney dismisses as merely "a statutory officer" and Cabinet member.
Now, it is true that appointees come and appointees go, and the final responsibility for actions of the Executive Branch as a whole lie with the President. In line with this, it has been increasingly common in our national mind to conceive of the President as responsible for the country as a whole. This rather ignores the massive role of Congress, and the essential role of the Judiciary, and invests the Presidency with that much more perceived if not actual power.
Perceptions aside, the President in fact is not responsible for making the decisions that fall within the purview of the various agencies of the Cabinet. Whether it be matters of Treasury finance, public health in the Department of Health, or - as in this case - matters of law examined or not by the Department of Justice, the role of the office of President is to set policy and direction, and to ensure that those policies are implemented. The detailed decisions of a cabinet office are supposed to be made by the head of that office. Hence, the Attorney General is, rightfully, "the chief law enforcement officer of the land," as in fact it proclaims at the DoJ website (and has, since they have had a website).
The Cabinet and the Presidency
Of course, the reality of presidential interaction with cabinet appointees is more convoluted than that. More than one past attorney general (and for that matter, past head of the EPA, DoE and other agencies) have been more rather than less biddable by the President. Some have been very close, politically and personally, to the one who appoints them to their agency. This typically leads to zealous policy conformance with White House wishes, and has also led in the past to some notorious cases of incompetents with no personal vision for their offices, but literally taking their marching orders from a president.
However, it has also been the case that career professionals in a given field take their appointed offices very seriously, and have taken actions at times that have been less deferent to White House wishes or even in outright opposition to same. When there is a sitting President who is comfortable delegating and encourages a strong, autonomous Cabinet, these "statutory officers" often act in a much more independent - even controversial - manner, than do appointees under an strongly ideologically controlling administration.
How Much Does the President Control, Anyway?
Perhaps it is not really surprising to learn that Cheney, the premier Bush administration ideologue, finds it difficult to conceive of an Attorney General making an independent decision in a weighty and politically fraught matter, even though the President's explicitly stated stance has been to give his AG wide latitude to pursue the duties of his office as he sees fit.
Gonzales, though still framing the AG as an elevated prosecutor rather than the chief law enforcement officer, at least recognizes this wide prosecutorial latitude.
In both cases, though, there is an unsettling, tacit assumption of a huge amount of power concentrated in the office of the President. It could be argued that in Cheney's case, he took this as power accruing to the office of the Executive generally, which justified his many actions as the most powerful vice president this country has ever seen - manipulating the levers of power out of sight of the public eye, orchestrating much of the White House policy and actions to suit his agenda.
As Jon Stewart once quipped,"in the Bush White House the division of labor from Cheney's viewpoint was, 'I get everything that's important, and you get everything that's fun.'"
A Notorious Concentration of Power
For the purposes of this post, read "power" for labor, and there is more than a kernel of truth in that humurous assertion. The full extent of the VP's machinations is not yet known, but unsettling tidbits continue to come to light: most recently, that he masterminded the pet project of CIA assassination teams, and it was his call to keep this activity from the responsible congressional oversight committee. There was also his push to literally "test the Constitution" by using military forces to conduct domestic terrorism arrests, which I wrote about previously here.
In the case of Gonzales, we see him bowing to this over-arching presidential power in his creation of the OLC torture memos, and his compliance with the firing of various USAGs for political reasons.
All of these incidents are indicative of either a slavish obedience to, or a Machiavellian use of, the power which concentrates in the Presidency. Indeed, it reflects an overblown sense of that power, an all-consuming, all-authorizing entitlement that is rightfully called "the Imperial Presidency."
The hazards of that are something the Founding Fathers knew and were well wary of in their decision not to create a King of the United States, but to create instead a governmental system they hoped would function to check and balance the tendency of power to aggregate at the nexus where it is exercised.
Did they succeed in their experiment?
Sometimes I think the jury's still out on that.
1. Arthur Schlesinger coined the term "Imperial Presidency" to describe the Nixon presidency. Is it surprising to recall that Cheney got his start in the halls of power under that regime?
3. The constitutional and statutory basis for cabinet authority has some interesting quirks and byways of its own. That context would help illuminate the role of the AG, and the relationship between AG and President, but that is obviously way beyond the scope of this post. I may dig into it later, if time allows.
4. Paraphrased from memory. I wrote this down at the time but can't find the exact quote at this writing, although I think I have it pretty close. If you know the Daily Show comment to which I refer, please post it in the comments.
This post originally appeared at Cogitations: Questioning the Nexus Between Fear, Security and Power.