The New York Times - 12.09.2019

WASHINGTON — Democratic
presidential candidates broadly
agree that President Trump has
shaken the presidency loose from
its constitutional limits and say
that the White House needs major
new legal curbs, foreshadowing a
potential era of reform akin to the
post-Watergate period if any of
them wins next year’s election.
In responses to a New York
Times survey about executive
power, the Democrats — along
with two Republicans mounting
primary challenges to Mr. Trump
— envisioned a rebuke of his term
by enshrining into law previous
norms of presidential self-re-
straint.
Many called for new laws that
would require presidents to dis-
close their tax returns and to di-
vest from significant assets; bar
them from appointing close rela-
tives to White House positions;
and constrain their abilities to
award security clearances and to
fire special prosecutors investi-
gating their administration,
among other potential reforms.
The survey is the first and most
detailed collection of the candi-
dates’ views on a set of issues that
they are rarely asked about, yet
often prove crucial to the outcome
of political fights: the scope and
limits of a president’s power to act
unilaterally or even in defiance of
statutes.
The survey — which elicited an-
swers from 15 Democrats, includ-
ing all in the top polling tier and
eight of the 10 in Thursday’s de-
bate — also focused on recurring
constitutional disputes that have
arisen under recent presidents of
both parties on matters including
secrecy and war.
“The American people should

fully know how candidates will
use the power of the presidency,”
Senator Elizabeth Warren wrote,
echoing other candidates who
agreed that voters should know
their views before deciding whom
to entrust with the power of the
White House.
Presidents have “a responsibil-
ity to make sure excess power is
not used to start endless wars, at-
tack the privacy of Americans, or
undermine the democratic values
of our country,” she added.
But though the candidates
“seem committed to reforming
the presidency,” they might have
second thoughts from the vantage
point of the Oval Office, said Jack
Goldsmith, a Harvard law profes-
sor and former senior Justice De-
partment official in the George W.
Bush administration who re-
viewed their responses.
“The next Democratic presi-
dent will happily accept new rules
on tax releases, but will have a
harder time accepting constraints
on security clearances and emer-
gency or war powers,” he said.
“Institutional prerogative often
defeats prior reformist pledges.”
Indeed, former Vice President
Joseph R. Biden Jr. expressed a
more expansive view of presiden-
tial war powers after eight years
in the Obama White House than
he did in 2007 during an earlier
run for president.
The 2020 candidates agreed on
some issues, including that Mr.
Bush was wrong to claim after the
Sept. 11 attacks that he could over-
ride surveillance and anti-torture
laws because he was the com-
mander in chief.
But they diverged about others,
like whether President Barack
Obama’s invocation of the same
power was legitimate. Mr. Obama
used similar reasoning to disre-
gard a requirement that he give
Congress 30 days’ notice before
transferring Guantánamo Bay de-
tainees as part of the 2014 Bowe
Bergdahl prisoner swap.
Senator Kamala Harris, for ex-
ample, wrote that while a presi-
dent can lawfully override or by-
pass statutes that are clearly un-
constitutional, she thought the de-
tainee transfer law — along with
the surveillance and anti-torture
laws — was a constitutional limit
that presidents must obey.
“The executive branch is not
above the law,” she wrote, adding,
“As president, I would respect
these laws.”
By contrast, Mr. Biden de-
fended the decision by Mr. Obama
— then his boss — to immediately
carry out the exchange after the
deal was struck instead of waiting
30 days. Obama administration of-
ficials argued that a delay would
have endangered the captive sol-
dier’s life.
“The transfer of detainees from
Guantánamo was an exchange of
prisoners in a conflict, and there-

fore a valid exercise of the com-

mander-in-chief power,” Mr. Biden

wrote.

He participated in an earlier it-

eration of the survey as a senator

seeking the 2008 presidential

nomination, and his new answers

reflected the understanding of ex-

ecutive authority that he gained

from watching close up as Mr.

Obama wielded it.

In late 2007, for example, Mr. Bi-

den offered a restrictive view of

when presidents may unilaterally

direct the military to attack other

countries, writing: “The Constitu-

tion is clear: Except in response to

an attack or the imminent threat

of attack, only Congress may au-

thorize war and the use of force.”

But in the new survey, Mr. Bi-

den called it “well established”

that presidents may launch lim-

ited strikes “without prior con-

gressional approval when those

operations serve important U.S.

interests.”

That legal rationale for ordering

limited attacks without congres-

sional approval echoed the

Obama administration’s stance

during the NATO intervention in

Libya in 2011. But the bombing

campaign violated a limit on exec-

utive war-making powers that

both Mr. Obama and Mr. Biden

had said they would respect in the

2007 candidate survey.

Importantly, however, Mr. Bi-

den said both then and now that

any bombing of Iranian nuclear

sites — a prospect in which the

scope of unilateral presidential

war-making authority has repeat-

edly come up — would require pri-

or authorization from Congress

because it would carry too much

risk of escalation into a major war.

Still, several of Mr. Biden’s ri-

vals took a more constrained view,

suggesting that a rationale of

serving American “interests” is

not enough to justify even limited

strikes without Congress.

“In situations where the use of

force is necessary, absent an im-

minent threat to our national se-

curity, I will take that case to Con-

gress and the American people to

seek authorization,” former Rep-

resentative Beto O’Rourke wrote.

Most candidates left the door

open to using presidential signing

statements, when approving bills,

to claim a right to bypass provi-

sions they see as unconstitution-

ally infringing on executive pow-

ers. But the answers submitted by

the campaign of Senator Bernie

Sanders pledged he would never

use them.

“Signing statements circum-

vent the will of Congress and have

no constitutional or legal legitima-

cy,” the response said.

The survey revealed broader

disagreements about the wisdom

of several other potential reforms

raised by Mr. Trump’s record. Sig-

nificant numbers of candidates

stood on both sides of ideas like

curtailing future presidents’ lati-

tude to invoke emergency powers

and to choose acting agency

heads when temporarily filling

vacancies.

But the candidates were largely

united in rejecting the view of Mr.

Trump’s legal team, including At-

torney General William P. Barr,

that obstruction of justice laws do

not apply to presidents who abuse

their official powers to interfere

with investigations for corrupt

reasons.

Many also expressed skepti-

cism of the Justice Department’s

view that sitting presidents are

immune from indictment, which

bound the special counsel, Robert

S. Mueller III, as he weighed Mr.

Trump’s attempts to obstruct the

Russia investigation. Most said

they would sign a law pausing the

statute of limitations for offenses

by presidents.

But they split over what else to

do about it. Several said they

would direct the department’s Of-

fice of Legal Counsel to rescind its

opinion, while others sidestepped

that question. Mayor Pete

Buttigieg argued that it would in-

terfere with Justice Department

independence for a president to

simply direct the office, com-

monly called O.L.C., to change its

legal interpretation.

“Because the integrity of the

Justice Department is critical to

the rule of law, I do not think it

would be appropriate for any

president to dictate the legal con-

clusions that O.L.C. may issue or

retract,” Mr. Buttigieg wrote.

After The Times began the sur-

vey, Protect Democracy, a nonpar-

tisan group of former officials

seeking to prevent a decline “into

a more authoritarian form of gov-

ernment,” lobbied the candidates

to participate. Justin Florence, a

former Obama White House law-

yer and the group’s co-founder,

praised those who answered the

questions.

“This survey provides critical

insights into how each candidate

understands the limits on the im-

mense powers they’re seeking,”

Mr. Florence said.

Several prominent Democratic

candidates have not answered the

questions. They include Mayor

Bill de Blasio, who issued a gen-

eral statement; Julian Castro, the

former Housing and Urban Devel-

opment secretary; former Repre-

sentative John Delaney; and the

businessmen Tom Steyer and An-

drew Yang.

THE NEW YORK TIMES NATIONALTHURSDAY, SEPTEMBER 12, 2019 N A23

I would support legisla-

tion requiring the presi-

dent to divest from his

or her holdings and

place them in a blind

trust. I would also sup-

port legislation restrict-

ing presidents from en-

gaging in business trans-

actions with foreign

entities.... I would sign

a bill clarifying that the

existing nepotism stat-

utes apply to White

House staff.

MICHAEL BENNET

Only in the most exigent

circumstances would I

use force without exten-

sive consultation with

Congress. Any initiation

of the use of force

against Iran or North

Korea — unless in re-

sponse to an imminent

attack — could certainly

result in a wide-scale

conflict and constitute a

“war” in the constitu-

tional sense that would

require authorization by

Congress.

JOSEPH R. BIDEN JR.

Congress has legitimate

constitutional authority

to issue subpoenas com-

pelling disclosure of

information about exec-

utive branch wrongdo-

ing. Executive privilege

is intended to be a nar-

row privilege, and any

agency deliberation in-

volving the White House

should meet a high bar

to qualify for it.

CORY BOOKER

With respect to Iran and

North Korea, we must

consider the enormous

regional consequences

before pursuing any

military action against

those countries. Absent

an imminent threat, I

would want to give Con-

gress the opportunity to

authorize action against

these countries before

taking any action...

STEVE BULLOCK

Because the integrity of

the Justice Department

is critical to the rule of

law, I do not think it

would be appropriate for

any President to dictate

the legal conclusions

that O.L.C. may issue or

retract.... That said, as

President I will appoint

people to lead the Jus-

tice Department who

share my view that no

person is above the law,

and that decisions about

prosecution or investiga-

tion must never be polit-

ical.

PETE BUTTIGIEG

We should not criminal-

ize politics or acts

grounded in presidential

discretion. While the

president is in office,

immunity from indict-

ment is appropriate. But

that immunity cannot

extend to acts committed

before a president is

elected or discovered

after a president has left

office.

TULSI GABBARD

It is a fundamental tenet

of our democratic system

of government that no

person — not even the

president — is above

the law. As such, I do

not believe that sitting

presidents are immune

from criminal indictment

and trial. I would also

consider signing legisla-

tion to keep the statute

of limitations from run-

ning while a sitting pres-

ident is in office.

KAMALA HARRIS

Signing statements have

long been used by Presi-

dents seeking to explain

or clarify their views on

executing the law, but

some administrations

have abused this tool to

simply get around laws

they didn’t agree with. I

would consider using

signing statements in

rare circumstances and

the use of these state-

ments would be based

on sound legal theories.

AMY KLOBUCHAR

As president, I will work

to restore the balance of

power on questions of

war. In situations where

the use of force is neces-

sary, absent an immi-

nent threat to our na-

tional security, I will take

that case to Congress

and the American peo-

ple to seek authorization.

BETO O’ROURKE

Transparency in all fac-

ets of our democracy

should be valued at the

highest level and treated

with the most scrutiny.

TIM RYAN

Bernie believes it’s clear

that the use of drone

strikes lacks meaningful

accountability, and has

occurred without suffi-

cient explanation of their

legality. There may be

instances when the use

of drones is appropriate,

but the legal basis must

be explained, and the

actions must be taken by

the Department of De-

fense, not the C.I.A.

BERNIE SANDERS

I believe declaring a

national emergency is an

important presidential

power. I also believe

President Trump mis-

used the authority, but

that should not cause us

to change the law. If

necessary, the courts

and/or Congress should

intervene.

JOE SESTAK

In recent years, execu-

tive branch lawyers and

commentators have

increasingly tried to

expand the scope of the

commander-in-chief

clause beyond its

purview. I reject that

approach. As president, I

will not expand the

scope of the command-

er-in-chief clause to jus-

tify aggrandizing presi-

dential powers or to

override federal statutes.

ELIZABETH WARREN

The Espionage Act...

violates freedom of

speech and press by

criminalizing publica-

tions without proof that

the disclosures were

intended to and did

cause material harm to

the national security of

the United States. The

First Amendment does

not permit a British style

Official Secrets Act for

classified information. I

would drop the Espio-

nage Act counts against

Assange.

MARIANNE WILLIAMSON

I will work with Con-

gress as appropriate to

draft these types of

checks to curb an impe-

rial presidency. These

reforms should include

restrictions on when and

how the White House

can intervene in law

enforcement activity as

well as explicit limita-

tions on how the presi-

dent may use the pardon

process.

JOE WALSH

I think an otherwise

proper assertion of exec-

utive privilege could

extend to executive

branch deliberations not

involving the White

House. On the other

hand, the oversight re-

sponsibilities of Con-

gress clearly warrant the

issuance of subpoenas

seeking evidence of po-

tential wrongdoing.

WILLIAM F. WELD

In June, a questionnaire was sent

to candidates challenging President

Trump in the 2020 election. A simi-

lar survey was conducted in each of

the past three presidential primary

campaigns.

Seventeen candidates have re-

sponded, including all the Demo-

crats in the top tier of current polls

and two Republicans who an-

nounced primary challenges to Mr.

Trump. The Times published their

answers online. Read them at

nytimes.com/2020powers2

How the Project

Was Conducted

By CHARLIE SAVAGE

Reforming Urge to Rein In Executive Powers