That's the takeaway from one of the best things I've read in some time, Jack Goldsmith's article in the NYT Magazine this past weekend, well-titled as "How Dick Cheney Reined in Presidential Power." Goldsmith begins by recapping the famous hospital confrontation involving John Ashcroft, James Comey, himself (of Justice's OLC), and Andy Card and Alberto Gonzalez. He goes on to quite properly set it in the context of a strategy of presidential power based on secrecy and White House dictatorial control:
Unilateralism in secret is sometimes necessary at the height of a crisis, and Cheneyism was effective in the short run. But it is disastrous over the medium and long term. The president cannot accomplish much over time without the assistance of his bureaucracy and the other institutions of government. And he cannot garner that assistance through mere commands. He must instead convince these institutions that his policies are good and lawful ones that they should support.That's exactly the Neustadtian point that you'll hear me making over and over (full argument here): that circumventing the system is possible in the short run, but then yields entirely predictable disaster. Goldsmith continues:
Cheney...complains about pesky government lawyers, a weak-kneed Congress, activist justices and a treasonous press that exposed, rejected or changed nearly all of the Bush counterterrorism policies. What he does not say is that his insistence on circumventing these institutions was often responsible for their blowback. The surveillance confrontation resulted when Justice Department lawyers discovered that prior legal opinions were filled with factual and legal errors caused by an absence of deliberation about the complicated program. And damaging leaks about the surveillance program resulted from the perception of illegitimacy inside the government caused by Cheney’s corner-cutting unilateralism.You may wonder why I'm so obsessed with Watergate, but this is points to one of the main, critical, themes. I mean, Watergate is a great story with great characters and all, but it also reveals much about what presidential power really is and how it works and doesn't work. For example, what Goldsmith is talking about here is what I think of as the Hunt/Liddy problem: why were the president's men during Watergate such inept losers? Was it bad luck (that is, from Nixon's point of view)? Poor management skills? I believe it was instead something systematic. When the president wants to do something, and the system resists, and he chooses to plunge ahead anyway by doing it essentially behind the back of the system...well, then you get Hunt and Liddy, and Ollie North, and "poor legal opinions...filled with factual and legal errors caused by an absence of deliberation about the complicated programs." And: Colin Powell's speech to the UN. And: not just the illegality of torture and Gitmo, but the rank incompetence that we've seen over and over.
Dick Cheney is a good example of all of this exactly because his prior reputation would never have led people to guess that he'd make such a habit of botching things. And yet, botch things he did, over and over. Not because he didn't understand policy, but because he -- and by extension, George W. Bush -- refused to accept the limitations on the presidency imposed by the Constitutional system of institutions. And as Cheney shows and as Goldsmith says, the consequences are predictable: poor policy execution, followed by a loss of presidential power.
Just to be clear: the alternative to Cheneyism isn't passivity. Presidents should fight hard for things, and they should be held accountable when they don't -- although part of what it means to need to bargain to get things done is that some presidential preferences will no doubt fall when the president learns from institutional resistance. What they shouldn't do, however, is to react to that resistance with Constitutionally suspect end runs, whether it's to avoid Congress or to avoid legitimate portions of the executive branch. Whatever one thinks of the ethics of it all, the bottom line remains that it just doesn't work.