Mr. Chairman and members of the committee, I have set forth a brief overview of the testimonial subject where I feel I might be of assistance to the Senate Judiciary Committee’s consideration of Senate Resolution 398 relating to the censure of President George W. Bush, for (1) unlawful electronic surveillance of Americans contrary to the provisions of the Foreign Intelligence Surveillance Act of 1978, as amended; (2) the failure of the President to inform the respective congressional committees of his actions as required by that law; and (3) the presidents conspicuously misleading statements to the American people about the nature of his actions along with his dubious legal arguments claimed as justification for his actions…

Qualifications To Testify

…My qualifications for addressing the committee are more expertise than anyone might wish to have based on personal experience in how presidents can get themselves on the wrong side of the law. Obviously, I refer to my experiences at the Nixon White House during Watergate. That, as it happens, was the last time I testified before the Senate. As with my testimony today, that testimony was voluntarily given. I appear today because I believe, with good reason, that the situation is even more serious. In addition to my first-hand witnessing a president push his powers beyond the limits of the Constitution during my years as White House counsel from, 1970 to 1973, I have spent the past three plus decades studying presidents past and present.

No presidency that I can find in history has adopted a policy of expanding presidential powers merely for the sake of expanding presidential powers. Presidents in the past who have expanded their powers have done so when pursuing policy objectives. It has been the announced policy of the Bush/Cheney presidency, however, from its outset, to expand presidential power for its own sake, and it continually searched for avenues to do just that, while constantly testing to see how far it can push the limits. I must add that never before have I felt the slightest reason to fear our government. Nor do I frighten easily. But I do fear the Bush/Cheney government (and the precedents they are creating) because this administration is caught up in the rectitude of its own self- righteousness, and for all practical purposes this presidency has remained largely unchecked by its constitutional coequals.

Must Censure Be A Purely Political Condemnation?

Members of this committee are quite familiar with the debate that arose during the Clinton impeachment proceedings regarding the propriety of censuring a president…One thing was clear from this protracted debate during the Clinton impeachment, and the same can be said of the debate so far that has been provoked by Senator Feingold’s proposed resolution, censure has long been viewed as a purely political action. That has been true historically as well. Historian Richard Shenkman assembled the precedents for censure during the Clinton proceeding, which he recently republished. This entire debate is fully reviewed in the transcript prepared by Thomas R Lee of a 1999 panel on impeachment, published in the Brigham Young University Law Review (1999). Shenkman found, “All four censures [John Adams, Andrew Jackson, John Tyler, and James Buchanan], however, have more in common than that they simply have been largely forgotten. All were the work of highly partisan politicians eager to score political points.” He concluded, “censures must be bipartisan to carry weight with the American people. History suggests that a resolution passed along party lines would be a source of palpable political divisiveness.”

I am hopeful that Congress for institutional reasons, not partisan gamesmanship, will act on Senator Feingold’s resolution…

Institutional Reason for Censure: Preventing Waiver

…Justice Felix Frankfurter’s concurrence in Youngstown recognized the power of "executive construction of the Constitution," citing United States v. Midwest Oil Co., 236 U.S. 459 (1915), as the basis for that authority, but finding it to exist only when there is a showing of "a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned." ( Youngstown, 343 U.S. at 610-11). Midwest Oil – the leading case on Congressional acquiesce -- is pretty old and times have changed. Nor is this a very precise body of law. What does it take for Congress to question presidential action? Does it mean a member of Congress, a committee, a single chamber, or both houses? And what if the president deliberately and knowingly ignores Congress, relying on his own construction of the Constitution, when both houses have questioned presidential conduct and a law has been signed by a predecessor president? Is it a “political question” that the courts today will not touch? What if Congress does nothing about it? At some point will not a waiver occur when we are talking about constitutional co-equals? These, I suggest, are issues this committee must address. There are two ways to address them: legislation or a resolution expressing the sense of the Congress. Or, of course, doing nothing, and permitting the President to break the laws adopted by Congress.

Bush’s on-going action with his NSA wiretapping (if not secrecy, torture, etc.) and Congressional inaction (or acquiescence) must, sooner or later, intersect, and a point will be reached and crossed when the Congress has all but sanctioned the conduct and the president can violate the law with utter abandonment…It is only necessary to look at the Administration’s interpretation of the September 18, 2001 Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541) which it reads as authorization for the NSA program, to appreciate how far it will push.

And that is what I believe will happen if Chairman Specter’s proposal to involve the Foreign Intelligence Surveillance Act court should become law. If past is prologue, President Bush will not bother to veto the bill, rather he will quietly issue a signing statement saying as Commander in Chief he disagrees with the bill, and he does not care what the FISA court says, and he will just keep doing what he has been doing…

…That is why censure might be the only way for the Senate to avoid acquiescing in what is clearly a blatant violation of the 1978 FISA stature, not to mention the Fourth Amendment…

…In short, I implore the Senate to undertake not a partisan action, but a strong institutional action. I recall a morning – and it was just about this time in the morning and it was exactly this time of the year – March 21, 1973 – that I tried to warn a president of the consequences of staying his course. I failed to convince President Nixon that morning, and the rest, as they say, is history. I certainly do not claim to be prescient. Then or now. But actions have consequences, and to ignore them is merely denial. Today, it is very obvious that history is repeating itself. It is for that reason I have crossed the country to visit with you, and that I hope that the collective wisdom of this committee will prevail, and you will not place the president above the law by inaction. As I was gathering my thoughts yesterday to respond to the hasty invitation, it occurred to me that had the Senate or House, or both, censured or somehow warned Richard Nixon, the tragedy of Watergate might have been prevented. Hopefully the Senate will not sit by while even more serious abuses unfold before it…Thank you again for the opportunity to testify. I would be happy to answer your questions.

Peter K. Clarke - 10/9/2007

Dean is not the issue.

The issue is the sleepwalking Republicans who blindly support the most incompetent President of EITHER party for at least the last 80 years (and there have been more than a few bunglers from BOTH sides).

U.S. Constitution, ratified 1788
Article II, section 4: "The President, Vice-President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of Treason, Bribery, or other high crimes and misdemeanors."

Gerald Ford, 1970: "...an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment of History."

http://www.ford.utexas.edu/library/speeches/700415f.htm

If lying about adultery is an impeachable high crime, then what about lying to launch a bungled foreign military adventure ?

If steamrolling such an unplanned ineptly-run and deceit-ladenmilitary adventure in a mad rush set by the political campaign calendar, knowing full well that one likely result would be to be vastly improve the recruiting possibilities for Al Qaeda and other known enemies of the United States is not treason, then what is ?

andy mahan - 9/18/2006

Yeah, Let's get em! And let's also get the 80 senators and 300 congressmen who blindly agreed to whatever was put before them. These incompetents could have checked the President but instead the dolts chose to endorse and repeatedly autorize financing of an unplanned ineptly-run and deceit-ladenmilitary adventure. These 380 people are assuredly guilty of treason.

That aside, how about the entire Senate that has ignored the will of the people in favor of amnesty for illegal aliens?

andy mahan - 9/18/2006

Talk all you like. Republicans prefer this kind of nutty dialogue among the crats. It diverts them from doing anything substantive (as if they were able). So bring it on, bring on Cynthia McKinney. Bring on Dean (either one) bring on Kerry's 30 day pull out....
Dean or no Dean, House or no House, Senate or no Senate--it won't happen.

Michael John Keenan - 4/10/2006

http://judiciary.senate.gov/testimony.cfm?id=1825&;wit_id=5189

The above link will give a more balance to this discussion considering that Mr. Halperin comes from the other side of the fence and was being spy upon. Together the testimony of both is cause for concern and what I believe, if true, is impeachable.

Besides how can you worry how many immigrants may have broken the law when the Mr. Bush seems to be doing the same thing. HE BROKE THE LAW. As matter a fact the Bush Family Nafta agreement has only made breaking the law more attractive as it draws people like a magnet right up next to our border. The special economic zone should be given back to Mexico and Nafta declared a success and then recinded. That is how you will stop more non-citizen from coming here and wanting to break the law.

I am Citizen Michael John Keenan

Lisa Kazmier - 4/10/2006

And Liddy and Ehrichman do? How ridiculous is your post if you have nothing more substantive to say?

Frederick Thomas - 4/10/2006

Nixon's "overreach" surely pales next to that of many of his predecessors, LBJ for example. Spying on opponents? Lying about it? Surely LBJ set the higher (or lower) standard for these.

One wonders what it is that Nixon did that got the leftie media dogs and certain senior FBI malfeasants so exercised. It may have been his 40's role on the HUAC, which correctly identified many of their proteges as communist agents or sympathizers, Hiss included. Then there was his role in winning over Helen Douglas, which was borderline ethical but no different than the mud-slinging we have seen before and since. No grudge like an old grudge.

As far as Dean is concerned, his only "expertise" seems to be in his bungling of the Watergate legal matter for his client, the President. Dean is an expert bungler, but that does not mean he is worth listenting to now.

Douglas M. Charles - 4/10/2006

Dean has no credibility?

I think Dean is uniquely qualified in his analysis in that he, very intimately, knows how executive shenanigans work.

Jonathan Dresner - 4/10/2006

Because he's citing Rick Shenkman, of course! HNN Editor and blogger entered into Congressional Record!

Dean's status as an expert on presidential overreach should carry some weight, too...

Bill Heuisler - 4/10/2006

Why should anyone believe anything John Deam says? Dean is a proven liar, recorded as the instigator of the Watergate break-in and coverup.

He got only 6 months in prison after he cut a deal and turned on the others. According to court records, Dean instigated the break-in and took charge of the coverup the day after the Watergate arrests. This was also the sworn testimony of Ehrlichman,Liddy, Colson, Strachan and Bennett. Dean also admitted under oath that he withheld key information from the White House.

Ehrlichman said (Dean) "kept the information to himself...didn't inform those of us in the White House who had some responsibility for the matter and we adopted a line that nobody in the White House was involved...which didn't happen to be true."

Unrebutted testimony in three civil cases alleges the Watergate break-in was done to secure evidence of a call girl ring Dean knew about that was being used by people at the DNC.
How did he know? His girlfriend, Maureen's roommate was the madam.

This last was in Liddy's book and Dean sued him for libel - but then dropped the matter.

The guy has no credibility. Why include him on HNN?
Bill Heuisler