Takeover, page 47
85. Michael Medved, The Shadow Presidents: The Secret History of the Chief Executives and Their Top Aides (New York: Times Books, 1979), 339.
3. “A CABAL OF ZEALOTS”: 1977–2000
1. T. R. Reid, “White House Staff Chief, in Love with Governing, Now Runs for Congress,” Washington Post, August 28, 1978.
2. Congressional Record, accessed via http://public.CQ.com.
3. Michael Medved, The Shadow Presidents: The Secret History of the Chief Executives and Their Top Aides (New York: Times Books, 1979), 347.
4. Antonin Scalia, speech to the International Conference on the Administration of Justice and National Security in Democracies, Ottawa, Canada, June 12, 2007.
5. Edward Walsh, “Legislative Veto Trend Denounced by President,” Washington Post, June 22, 1978.
6. INS v. Chadha, 462 U.S. 919 (1983).
7. Kenneth Bredemeier, “Goldwater, Other Lawmakers File Suit over Repeal of Taiwan Defense Pact,” Washington Post, December 23, 1978.
8. “11/18 Cheney,” handwritten notes of James A. Baker, The James A. Baker III Papers, Seeley G. Mudd Library, Princeton University, http://media.washingtonpost.com/wp-srv/politics/interactives/cheney/docs/baker_notes.pdf.
9. Charles Fried, Order and Law (New York: Simon & Schuster, 1991), 16.
10. See, e.g., Jeffrey Rosen, “Power of One,” The New Republic, July 24, 2006.
11. Author interview with Steven Calabresi, January 3, 2007.
12. Author interview with Edwin Meese, January 2007.
13. Fried, Order and Law, 49–51.
14. See, e.g., John C. Keeney to the attorney general, memorandum re: “Status Report on Independent Counsel Matter: Preliminary Investigation of Allegations in House Judiciary Committee Report,” March 10, 1986, National Archives, Records Group 60, Edwin Meese Subject Files (1985–1988), box 20, folder: Independent-Counsel(1986).
15. “Separation of Powers: Legislative-Executive Relations,” National Archives, Department of Justice Files, Records Group 60, Edwin Meese Component Correspondence Files, folder: OLP (April–May 1986).
16. Stephen J. Markman to Edwin Meese III, memorandum re: “Separation of Powers,” April 30, 1986, National Archives, Department of Justice Files, Edwin Meese Component Correspondence Files, folder: OLP (April–May 1986).
17. Federalist 70.
18. Humphrey’s Executor v. United States, 295 U.S. 602 (1935).
19. Adding to their confidence, on July 7, 1986, the Court struck down a law that gave the comptroller general, an official who could be fired only by Congress, the right to impose across-the-board spending cuts in order to lower the deficit. The Court ruled that Congress had no right to give such an “executive” power to an official accountable to the legislative branch. The ruling seemed to open the door for a challenge to laws giving executive power to officials who were not accountable to the president. Bowsher v. Synar, 478 U.S. 714 (1986).
20. Jan Crawford Greenburg, Supreme Conflict (New York: Penguin Press, 2007), 200.
21. Richard Cheney to the president, memorandum re: “Ken Cole’s Views on the Domestic Council,” January 20, 1975, Ford Presidential Library, Richard Cheney Files, box 3, folder: Domestic Council—Vice President’s Role 1/75–12/75; memorandum of conversation, February 21, 1975, Ford Presidential Library, National Security Adviser Memoranda of Conversations, box 9, folder: February 21, 1975—Ford, Kissinger, Rumsfeld, Marsh.
22. Morrison v. Olson, 487 U.S. 654 (1988).
23. Fried, Order and Law, 160–161.
24. Ibid., 170.
25. Author interview with former representative Mickey Edwards, November 13, 2006.
26. Ibid.
27. Julia Malone, “Congress Calls for Security for Marines amid Skepticism,” The Christian Science Monitor, October 25, 1983.
28. See, e.g., Richard F. Grimmett, “The War Powers Resolution: After Thirty Years,” Congressional Research Service, RL32267, March 11, 2004, http://www.fas.org/man/crs/RL32267.html.
29. Robert Parry, “Congressional Trip to Grenada Boosts Reagan,” Associated Press, November 8, 1983.
30. James Mann, Rise of the Vulcans: The History of Bush’s War Cabinet (New York: Viking, 2004), 138–145.
31. “Dick Cheney Recalls the Ford Presidency,” National Journal 17, no. 2 (January 12, 1985).
32. The MacNeil/Lehrer NewsHour, PBS, April 11, 1986.
33. Theodore Draper, A Very Thin Line (New York: Hill and Wang, 1991), 17–24.
34. Ibid., 24.
35. Jane Mayer, “The Hidden Power,” The New Yorker, July 3, 2006.
36. Hearing of the U.S. House of Representatives Select Committee to Investigate Covert Arms Transactions with Iran and the U.S. Senate Select Committee on Secret Military Assistance to Iran and the Nicaraguan Opposition, July 20, 1987.
37. Report of the Congressional Committees Investigating the Iran-Contra Affair, 100th Cong., 1st sess., November 1987, H. Rept. 100–433, S. Rept. 100–216, 16–21.
38. Ibid., 457.
39. Gary Thatcher, “Minority Report Takes Strong Issue,” The Christian Science Monitor, November 19, 1987.
40. Richard Cheney, “Covert Operations: Who’s in Charge?” Wall Street Journal, May 8, 1988. Cheney and his allies succeeded in blocking the bill in 1988, although Congress passed a watered-down version of the forty-eight-hour bill two years later. By then, Cheney was back in the executive branch, serving as secretary of defense to the new president, George H. W. Bush.
41. “Vice President’s Remarks to the Traveling Press,” December 20, 2005, http://www.whitehouse.gov/news/releases/2005/12/20051220-9.html.
42. For a fuller treatment of the first Bush administration’s efforts to govern unilaterally, see Charles Tiefer, The Semi-Sovereign Presidency: The Bush Administration’s Strategy for Governing Without Congress (Boulder: Westview, 1994).
43. William P. Barr, “Common Legislative Encroachments on Executive Branch Authority,” July 27, 1989, 13 U.S. Op. Off. Legal Counsel 248, 1989 WL 595833 (OLC).
44. Neil Kinkopf, “Furious George,” Legal Affairs, September/October 2005.
45. “Remarks at Dedication Ceremony of the Social Sciences Complex at Princeton University in Princeton, New Jersey,” 27 Weekly Comp. Pres. Doc. 589, May 10, 1991.
46. Richard Cheney, “Congressional Overreaching in Foreign Policy,” draft prepared for March 14–15, 1989, American Enterprise Institute conference Foreign Policy and the Constitution, on file with the author.
47. “The Gulf War—Oral History—Dick Cheney,” Frontline, http://www.pbs.org/wgbh/pages/frontline/gulf/oral/cheney/1.html.
48. Ibid.
49. Author interview with Lawrence Wilkerson, November 30, 2006.
50. Senate Committee on Armed Services, Nominations of David S. Addington, to Be General Counsel of the Department of Defense, and Robert S. Silberman, to Be Assistant Secretary of the Army for Manpower and Reserve Affairs; to Consider Certain Pending Civilian Nominations; to Consider Certain Pending Army and Air Force Nominations; and to Discuss, and Possibly Consider, Certain Pending Navy and Marine Corps Nominations, July 1, 1992.
51. Rosen, “Power of One.”
52. Robert Pear, “Ending Its Secrecy, White House Lists Health Care Panel,” New York Times, March 27, 1993.
53. Phyllis Schlafly, “Clinton’s Power Grab Through Executive Orders,” Eagle Forum, January 20, 1999, http://www.eagleforum.org/column/1999/jan99/99-01-20.html.
54. See, e.g., Walter Dellinger to Alan J. Kreczko, memorandum re: “Placing of United States Armed Forces Under United Nations Operational or Tactical Control,” May 8, 1996.
55. Chamber of Commerce of the United States v. Reich, 74 F.3d 1322 (D.C. Cir. 1996).
56. “War Powers Resolution, RIP,” National Review, August 23, 1993.
57. Randolph Moss to the attorney general, memorandum re: “Authorization for Continuing Hostilities in Kosovo,” December 19, 2000, http://biotech.law.lsu.edu/blaw/olc/final.htm.
58. Guy Gugliotta, “Whipping Up a Role Reversal,” Washington Post, May 4, 1999.
59. Ibid.
60. Eric Schmitt and Steven Lee Myers, “Clinton Lawyers Give a Go-Ahead to Missile Shield,” New York Times, June 15, 2000.
61. Video available at http://www.cato.org/realaudio/con-07-12-00p4.ram. The George Washington University law professor Orin Kerr wrote about this presentation on the legal blog Volokh Conspiracy on September 18, 2006.
62. Mayer, “The Hidden Power.”
63. Rita Beamish, “Cheney Says He Won’t Run for President in ’06,” Associated Press, January 3, 1995.
64. Michelle Mittelstadt, “Bush Builds Campaign Brain Trust,” Associated Press, February 25, 1999.
65. Rick Klein, “Cheney Will Lead Search for Bush’s Running Mate,” Dallas Morning News, April 26, 2000.
66. Governor George W. Bush, statement re: “Selection of Former Defense Secretary Richard B. Cheney to Be the Republican Vice Presidential Candidate,” July 25, 2000.
4. THE AGENDA
1. Author interviews with Bradford Berenson, November 14, November 28, and December 1, 2006.
2. The official count in Florida gave Bush a victory over Gore by 537 votes out of more than six million cast. The tiny margin put a spotlight on the lack of precision in the state’s voting system, which relied on punch-card ballots in some counties and fill-in-the-bubble optical-scan ballots in others. Hanging chads and sloppily filled-in ballots meant that machine counters had discarded many thousands of votes across Florida. In normal elections, with larger margins, the slight fuzziness made no difference, so there was no need to inspect such ballots by hand. But in 2000, a recount could easily shift the balance to Gore, who had won the popular vote nationally but needed Florida’s electoral votes to become president. Lawyers from both parties descended upon every county in Florida. Democrats pushed for a recount and had early success in a few counties whose second looks shrank Bush’s margin of victory. Then Republicans dug in, asking courts to halt the recounts and accept a decision by Secretary of State Katherine Harris, who was also the cochair of Bush’s Florida campaign, to certify the results as they stood, with Bush still slightly ahead. The Florida Supreme Court ordered a full statewide recount. But on December 12, 2000, the Supreme Court stepped in. By a 5–4 vote, the slight conservative majority bloc reversed the state court decision and halted the recount, ensuring that Bush and Cheney would take over the White House.
3. Alan Berlow, “The Texas Clemency Memos,” The Atlantic Monthly, July/August 2003.
4. Berenson interviews.
5. Andrew Rudalevige, The New Imperial Presidency (Ann Arbor: University of Michigan Press, 2006), 208.
6. Berenson interviews.
7. This Week, ABC, January 27, 2002.
8. Author interview with a knowledgeable source.
9. Author interview with John Yoo, March 8, 2007.
10. Nicholas Horrock, “Bush Nominates Prof for a Top DOJ Post,” United Press International, July 10, 2001.
11. Carri Geer Thevenot, “UNLV Law Professor Ready for DC Job,” Las Vegas Review-Journal, November 19, 2001.
12. “Attorney General Ashcroft Welcomes White House Nominee for Assistant Attorney General for the Office of Legal Counsel,” July 10, 2001, http://www.usdoj.gov/opa/pr/2001/July/315ag.htm.
13. Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, statement before the Subcommittee on Commercial and Administrative Law and the Subcommittee on Courts, the Internet, and Intellectual Property, House Judiciary Committee, concerning settlement of the NextWave case, December 6, 2001.
14. Peter Slevin, “Scholar Stands by Post-9/11 Writings on Torture, Domestic Eavesdropping,” Washington Post, December 26, 2005.
15. “Two Korean-Americans Nominated for White House Office Positions,” Korea Times, April 21, 2001.
16. Yoo interview.
17. John C. Yoo, “The Continuation of Politics by Other Means: The Original Understanding of War Powers,” 84 Cal. L. Rev. 167, 196–241 (1996).
18. This more traditional understanding of war power, rejected by Yoo, is further supported by the Founders’ explicit purpose in giving Congress the power to raise armies. The Founders did not anticipate that the United States would someday maintain a large standing military force in peacetime, so they believed that presidents’ need to go to Congress to obtain a warfighting force would help ensure that presidents did not disobey the Founders’ decision that only Congress could decide whether the country should go to war.
19. James Madison, “political Observations,” April 20, 1795, in The Papers of James Madison, vol. 15 (March 24, 1793–April 20, 1795), ed. Thomas A. Mason and others (Charlottsville: University Press of Virginia, 1985), 518–521.
20. Slevin, “Scholar.”
21. Cass Sunstein, “The 9/11 Constitution,” The New Republic, January 16, 2006.
22. Yoo interview.
23. R. Jeffrey Smith and Dan Eggen, “Gonzales Helped Set the Course for Detainees,” Washington Post, January 5, 2005.
24. Author interview with a knowledgeable source.
25. Author interview with Lawrence Wilkerson, November 30, 2006.
26. Daniel Klaidman and others, “Palace Revolt,” Newsweek, February 6, 2006.
5. “BEHIND CLOSED DOORS”: SECRECY I
1. “Remarks by the President at Energy Policy Meeting,” January 29, 2001, http://www.whitehouse.gov/news/releases/20010129-1.html.
2. Jeffrey Birnbaum, “Fat and Happy in DC,” Fortune, May 28, 2001.
3. Haley Barbour to Vice President Richard Cheney, memorandum re: “Bush-Cheney Energy Policy and CO2,” March 1, 2001, obtained by Judicial Watch through Freedom of Information Act lawsuit against the Department of Commerce, on file with Judicial Watch and with the author.
4. Joseph Kelliher to Dana Contratto, e-mail re: “National Energy Policy,” March 18, 2001, on file with Judicial Watch and with the author. Bush would later make Kelliher, who was then a top adviser to the secretary of energy, the chairman of the Federal Energy Regulatory Commission.
5. After the task force finished its report, Lundquist would stay on as the White House’s director of energy policy, working with Congress as it turned Cheney’s task force report into an impenetrable, phone book–sized bill. Lundquist would leave government service on March 26, 2002, and open a lobbying business the next day. The Lundquist Group set up shop in a “posh office building perched kitty-corner from the Capitol” at 101 Constitution Avenue and began taking in hundreds of thousands of dollars annually from clients such as British Petroleum and Duke Energy Corporation. Susan Milligan and Maud Beeman, “Cheney Aide Now Lobbyist on Energy,” Boston Globe, April 25, 2004.
6. John Dingell and Henry Waxman to Andrew Lundquist, April 19, 2001, http://www.house.gov/commerce_democrats/press/107ltr42.shtml.
7. David Addington to Billy Tauzin and others, May 4, 2001, http://www.house.gov/commerce_democrats/press/lundquist.pdf.
8. Walker switched his party registration from Republican to Independent in 1996. Author interview with David Walker, March 8, 2007.
9. David Addington to Anthony Gamboa, May 16, 2001, http://www.house.gov/commerce_democrats/press/vp.ltr.pdf.
10. “Chronology of GAO’s Efforts to Obtain NEPDG Documents from the Office of the Vice President, April 19, 2001–August 25, 2003,” http://www.gao.gov/press/chronologynepdg.8.21.03_1.pdf.
11. “Energy Task Force: Process Used to Develop the National Energy Policy,” U.S. General Accounting Office, August 2003, 22, http://www.gao.gov/new.items/d03894.pdf.
12. Louis Brandeis, Other People’s Money, and How the Bankers Use It, rev. ed. (1933; repr., Bedford / St. Martin’s, 1999).
13. Bob Woodward, “Cheney Upholds Power of the President,” Washington Post, January 20, 2005.
14. Charlie Savage, “In Terror War’s Name, Public Loses Information,” Boston Globe, April 24, 2005.
15. Author interviews with Bradford Berenson, November 14, November 28, and December 1, 2006.
16. Author interview with Christopher Farrell, December 15, 2006.
17. Larry Klayman and Thomas Fitton to Richard B. Cheney, re: “National Energy Policy Development Group, a De Facto Federal Advisory Committee,” June 25, 2001, on file with the author.
18. David S. Addington to Larry Klayman, July 5, 2001, on file with the author.
19. Quoted in Byron York, “GAO vs. Cheney: Coming Soon,” National Review, February 20, 2002, http://www.nationalreview.com/york/york022002.shtml; see also “Chronology of GAO’s Efforts.”
20. “Chronology of GAO’s Efforts.”
21. Grosjean v. Am. Press Co., 297 U.S. 233 (1936).
22. U.S. v. Sinclair, 321 F. Supp. 1074 (E.D. Mich. 1971).
23. “Damon J. Keith Biography,” Wayne State University, Walter P. Reuther Library, http://www.reuther.wayne.edu/keith_bio.html.
24. Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002); internal quotation marks omitted.
25. North Jersey Media Group v. Ashcroft, 308 F.3d 198 (3rd Cir. 2002). The dissenting vote was cast by Judge Anthony Scirica, another Reagan appointee.
26. Savage, “In Terror War’s Name.”
27. Alberto Gonzales to John Carlin, August 1, 2001, http://www.fas.org/sgp/news/2001/09/presrecs.html.
28. Neil Lewis, “Bush Claims Executive Privilege in Response to House Inquiry,” New York Times, December 14, 2001.
29. Glen Johnson, “Bush Denies Congress Papers for FBI Probe,” Boston Globe, December 14, 2001.
30. Edwin Chen, “Bush Refuses to Turn Over Justice Records to Congress,” Los Angeles Times, December 14, 2001.
31. Pete Yost, “Bush Invokes Executive Privilege to Keep Justice Department Investigative Documents Secret,” Associated Press, December 14, 2001.
32. George Lardner Jr., “White House Request to Restrict Clinton Pardon Data Upheld,” Washington Post, April 2, 2003.
33. This Week, ABC, January 27, 2002.
34. York, “GAO vs. Cheney.”
35. Walker interview.
36. Dana Milbank, “GAO Ends Fight with Cheney over Files; Weakening of Hill’s Oversight Decried,” Washington Post, February 8, 2003.
