A BUZZFLASH INTERVIEW
It's quite a stunning explanation of how they feel the presidency should run. For example, they think that when Reagan left office with very high approval ratings, it was like dying rich. They think the president should be down to single digits if he's doing things right, because he's such an authoritarian figure, he's not going to be terribly popular. Well, Bush looks like he's trying to fulfill that image for them.
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BuzzFlash has been interviewing John Dean off and on for several years now. He's a prolific writer and legal commentator on issues relating to executive branch authority, lawbreaking, and the balance of powers.
In short, John provides incisive analysis on issues of grave concern to our democracy. His point of departure for his insights is the Constitution.
Dean -- unlike Antonin Scalia, for instance -- doesn't pay lip service to the original intent of the founding fathers. Rather, he takes the Constitution at its word, applying it to every American equally -- including Cheney and Bush.
That makes John Dean a refreshing voice of justice amidst a mainstream media that de facto proceeds as if the key members of the Bush Administration are above the law.
His Broken Government: How Republican Rule Destroyed the Legislative, Executive, and Judicial Branches comes from a man of great analytical abilities and conscience.
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BuzzFlash: -- Broken Government: How Republican Rule Destroyed the Legislative, Executive, and Judicial Branches is the latest in a series of books you have written about the recent history of the federal government. Lay out for us a bit how this book fits in.
John Dean: It's really the third in a trilogy about post-Watergate Washington. I've looked at what impact conservative rule has had. I open this book with a chapter on a topic that I thought really needs attention -- process.
"Process" is now considered a bad word by political consultants. After writing Worse than Watergate in 2004, which was about the secrecy of the Bush administration, I learned that the Kerry campaign did not use the subject of secrecy because they thought it was a "process" issue. It seemed almost standard policy of Democrats to avoid process issues, with the Congressional leadership telling candidates not to use process issues because they're wimpy. Well, the name of the game played in Washington is process.
Republicans are manipulating the process to their advantage.
Broken Government looks branch by branch at how their side has used, twisted, distorted, and manipulated the process for their pure political gain. It's not been for the gain of the American people that they've written rules and regulations. Process is really the great machinery of government and how decisions are made. And they're making decisions solely to benefit the Republican Party. That isn't the way the system was designed.
BuzzFlash: Before we get into each branch of government, which is pretty much how your book is divided, is your basic premise in this particular book the system of checks and balances?
John Dean: That's the bottom line. Rather than to try to catalog everything that has gone astray, I tried to look at what fundamental problem this manipulation of process was causing, the bottom line being how it was affecting the Constitution. The distortions that are most troublesome have to do with eliminating the checks and balances that were the very unique part of our Constitutional system.
That's what the rest of the world has looked at and said: My goodness, the Founders of this country had some real wisdom in their designing system. In fact, I stuck an Appendix in for people who really don't have any familiarity with the rudimentary separation of powers concept, explaining how it got there and how unique it really is.
BuzzFlash: Let's talk about the basic premise of our constitutional democracy. We were a nation born of a revolt against a monarchy -- King George. A system was constructed that put the power in the hands of the people, in essence, the citizens of the United States, to ensure that no one individual, point of view, religion, et cetera, could ever control the nation.
Beyond the Constitution and the Bill of Rights, this was assured by the system of three branches of government. Not any one of those could emerge supreme and potentially become tyrannical, or assert such authority that it would, in essence, become what America had rebelled against, which was a unitary authority, the monarchical system of government.
John Dean: That's a nice thumbnail.
BuzzFlash: So here we are. And throughout our history, there's always been at some level dirty politics. Look at Tammany Hall for the Democrats as an example, in New York a hundred years ago. Chicago also has had a history of stealing votes, and the debate's still going on about whether the Richard J. Daley machine stole the 1960 election for Kennedy.
John Dean: Actually, I had a question about that the other night. Nixon took this noble stance, essentially: "Well, I didn't want to disrupt the process of the election that Kennedy had won. And I didn't want to contest that and delay it." But I've learned by talking to people who had been around Nixon in those years, they actually found out there had been so much corruption downstate, that if they had won, and if they challenged the Chicago vote, they were likely to be haunted, and actually in even worse trouble, from the downstate vote.
BuzzFlash: That just goes to show you, we've had bipartisan corruption. But aside from that, we've basically had a system in which both parties have more or less played by the rules. You fight to get elected. You state your case. You try to win. You appoint people who may be of your party's ideological bent, but tend not to be extremists. And the checks and balances generally worked. Democracy has been a machine that's functioned fairly well.
John Dean: It's not pretty. It never has been. But you're right -- it has basically worked because of the structure that was there. This effort to manipulate the process is relatively new, where you are fundamentally changing the working of the system.
BuzzFlash: The United States together is a nation of diverse people, and what holds us together is an allegiance to the Constitution. We have loyalty to this constitutional structure itself. What makes us America is freedom, liberty. We swear allegiance to the system of checks and balances that ensures that everyone gets due process, the right to vote, the right to express their opinion, the right to practice their faith, and so forth.
So fast forward to now. I want to get your take on this. The Democrats briefly controlled the Senate under Tom Daschle. The issue of Bush federal judicial nominees came up, and whether they could be defeated in the Judiciary Committee, and therefore not advance to the Senate and go for an "up or down" vote. This was the mantra of the right. Then there was the emergence of the so-called "nuclear option" -- that the Republicans would eliminate the filibuster. Now we see that under the Democrat-controlled Senate, the Republicans are filibustering almost everything that the Bush administration says no to. Yet when Bill Frist was Senate majority leader, he was saying we should eliminate the filibuster, and everything should have an "up or down" vote. Now the Republicans won't allow much of anything that the Bush administration disagrees with to have an up or down vote. Is that manipulation of the process?
John Dean: Let me just clarify a couple of points. When the Democrats controlled the Senate, and they blocked or delayed some of Bush's extreme judicial nominees, they were merely doing what the Republicans had done to Clinton in the extreme, and nothing close to what the Republicans had done in refusing to give judges a hearing. The Republicans wouldn't even put them on the schedule -- wouldn't even consider the nominations, under Orrin Hatch and others. That was a total abuse.
During the brief time during the Bush administration when the Democrats controlled the Senate, they were still running a pretty steady calendar. The issue you're raising is what happened on the floor when there was a threat of a filibuster requiring a super-majority -- in other words, 60 votes -- to get the nomination to be considered. Frist decided that they would call upon a change in the rules for what's called the executive calendar. They weren't initially saying let's eliminate the filibuster across the board. They were just addressing things on the executive calendar -- the things that the Constitution requires the Senate to consider, like treaties and matters of advice and consent.
People like Orrin Hatch were then saying, well, this is just unprecedented. They forget that Richard Nixon, back in '68 when he was on the campaign trail, convinced the Republicans in a Democratically controlled Senate to filibuster Lyndon Johnson's selection of Abe Fortas as Chief Justice. This is the first time that a threat of filibuster was ever used to block a judicial nomination. The Republicans started the process. When it became clear that Fortas couldn't ever get through that, he asked that his name be withdrawn. So, again, the Republicans were misstating what the actual facts were and what the actual precedents were.
It was not really as fundamental an attack on the Constitution as the issues that I deal with in Broken Government. I looked at things that were much more basic. This is really a manipulation of the rules, and I could have filled volumes with the difference between the two parties on the manipulation of the rules.
Ironically, it was the Southern Democrats in the Senate who invented a lot of this manipulation of the rules, or practicing the fine art of parliamentary misuse, I guess is the best word. They did it for racist reasons. They didn't want civil rights legislation to get through the Senate, and the Senate has traditionally been a body that blocks everything. The Southerners have always been the masters of these rules.
BuzzFlash: Clearly there's an imbalance in the outrage that reaches through the mainstream media about this. With Bill Frist, this was a huge thing. He was going to drop the "nuclear" bomb. And with the Democrats and Harry Reid, it doesn't seem to echo through the public discourse and the news media.
John Dean: Let me back up just a little bit, because this does fit in with what I explained as to how the Republicans won control of the House. It was through pure efforts to destroy the institution. They tore it down. They used every tactic they could think of to try to tarnish the House so they could gain control and then rebuild it in their own image. Now that they've lost control, what they're trying to do is again destroy the institution with rather fundamental and crude actions, because the House is changing the rules. It is under repair. They are passing one item after another, only to see them tied up in the Senate.
The public generally doesn't understand this. It may look like the Democrats aren't any better than the Republicans at running these institutions. They're not getting anything through Congress that is satisfying anybody. Most people are unaware that under current Senate procedures, all that has to happen is either for one member to request a hold on a piece of legislation and they can tie it up, or they can threaten a filibuster. People don't understand, for example, a motion to recommit in the House. They don't understand a cloture vote in the Senate. But let me tell you what they do understand about process. They do know when they're getting screwed.
BuzzFlash: The Republicans are probably very pleased with the recent polls showing Congressional approval at 18%.
John Dean: They are delighted because their strategy is working. This is how they won control of the House after Democrats had controlled it for forty years. When the Republicans got control, they would damn near destroy it and eliminate its fundamental functions. So, they are succeeding again. And they will go to the voters in 2008 and say: "Listen, Democrats can't run this place." But they won't be confessing that their own actions are the ones resulting in the inability of the Democrats to run the Congress.
BuzzFlash: Let's keep two threads in mind as we talk about the book. One, on pages 45 and 46, you mention the dilemma of the right wing -- that they're in an awkward position managing government, an agency whose missions and very existence they disagree with. That's a paradox for them. They are the government, and yet they're trying to dismantle the government. Then the second thing, on page 117, is that the separation of powers is a uniquely distinguishing feature of our democratic republic. With that in mind, let's start with the legislative branch.
John Dean: If I had to give you a sound bite as to what's gone astray under Republican rule in the legislative branch, it's that they refuse to have deliberation. They eliminated the deliberative process and literally closed out the opposition party. And they did it in a remarkable array of ways -- everything from the way they structured the body, where they appointed chairmen who are not necessarily particularly able, but were able to raise money to further the Republican majority, to the way they would write legislation outside the committee.
They would have lobbyists hand them the legislation. They would put it into a piece of legislation in the dead of the night. They would open votes which normally would take fifteen minutes, and run them for three hours. Bribery actually was done in some instances to get members to vote. But they were satisfied just with the one-vote majority.
They brought an instability into the body, the likes of which it had never been. I've had some historians tell me there were some times right after the Civil War where it was pretty rough. Yes, but that was before there was professional staff and before the Congress had fully institutionalized itself. That was the pre-modern Congress. I'm focusing on the modern Congress and the drastic impact they have had on the Constitutional basis, the rules, the traditions. There's something that's called the regular order, which they refuse to follow.
There's also good news, though. I do recognize that since they lost control in '06, the Democrats have been busy repairing. They have done things like change the ethics rules. They have gone to a longer work week. They have not done things like have conference committees, where they freeze the other party out. In fact, a lot of Republicans were surprised that Pelosi didn't have a reign of retribution for what they'd done to them for the last ten years. To the contrary, she wants to see the people's business done.
BuzzFlash: So you say the legislative branch is broken but under repair.
John Dean: Correct.
BuzzFlash: From an outcome standpoint, though, because of the lack of a filibuster-proof majority in the Senate, basically nothing of any consequence gets out of Congress.
John Dean: That is true. But they've actually brought the rules back. One example concerns earmarks. Now they have some level of transparency in both the House and the Senate. The executive calendar is actually moving again in the Senate. So it is being repaired. Of course, not all the things that the Americans had hoped for by turning over control to the Democrats, have happened, because of the obstructionism. I actually saw that coming. As I was finishing Broken Government, I noted in there that the Republicans still are hell-bent on busting the place up, notwithstanding the efforts to repair it.
BuzzFlash: The second branch of government you deal with is the Executive Branch. It is badly broken and certainly in need of repair. The question at this point is, is it repairable? You've written so much about the Executive Branch in your fine law columns and in your books, characterizing and documenting the authoritarian nature of the Executive Branch. It doesn't seem repairable as long as Bush and Cheney are in power. They seem to be going for enhanced unitary executive authority.
John Dean: It's true. In fact, the bottom line for this affair is going to be removing Republicans from the Executive Branch. They have embedded so many people, contrary to the Civil Service laws, that it's going to take not just 2008, but 2012, 2016, and possibly 2020 and 2024 to clear this problem up. If the public ever becomes aware of this, it's going to be a long time before they ever let another Republican back in 1600 Pennsylvania Avenue.
BuzzFlash: Recently the Director of National Intelligence, Mike McConnell, was orchestrating not just the extension of the six-month FISA law, but even an expansion to provide more powers. McConnell is pushing for this extensively, with Bush and Cheney in the background. Why, at this late date in this administration, are they doing this, unless it's that they believe a Republican will win the presidency in 2008? They certainly aren't doing this for Hillary Clinton.
John Dean: That's true. One has to understand how the conservative philosophy about executive powers has changed. They started strengthening the presidency during the Reagan administration. At one point, Newt Gingrich actually believed the Legislative Branch could become the dominant branch, but he was out-foxed by Clinton. During the government shutdown, Gingrich realized that he couldn't be king of the hill and deal with a President of equal standing. That's when they really went full bore and decided that we have to have a strong presidency.
With Clinton, they realized -- we have all these presidential powers, and we don't want to alter the powers of the presidency. We want to affect the person who is President. That's when they went after Clinton relentlessly, attacking the man, trying to tie up his presidency, diluting his powers at any point. That's been their consistent philosophy.
You see this if you read books like Terry Eastland's Energy in the Executive, which is something of a handbook for Republicans and conservatives in understanding executive power. It's quite a stunning explanation of how they feel the presidency should run. For example, they think that when Reagan left office with very high approval ratings, it was like dying rich. They think the president should be down to single digits if he's doing things right, because he's such an authoritarian figure, he's not going to be terribly popular. Well, Bush looks like he's trying to fulfill that image for them.
Bush is not a theorist; he is not a long-visioned man. It's Cheney who is trying to get these powers in fast while they can, pushing the envelope constantly to build this enormously powerful presidency. He's been convinced, even before 9/11, that we need a dominant president, this unitary executive theory. It doesn't matter that they may well not have a Republican in power. In that case, they will then turn to the tactic of trying to see if they can destroy the person who's actually there, while keeping those powers.
BuzzFlash: So if a Democrat gets in, they bring the Democrat down, as they tried to do with Clinton, beginning with the Arkansas project that resulted in the impeachment process.
John Dean: That's exactly the game they play.
BuzzFlash: Even if a Democrat wins, the idea is to weaken them to the point they can't use the powers we've created for the presidency -- but the power will be there for when we return.
John Dean: That's what they will attempt. That's why a book like this is so important -- so people will understand what in the hell they're doing and why they're doing it. They are gaming the system.
This is why I have such disgust with what they're doing. They don't give a damn about taking care of the general public and the broader public interest. They have one interest -- what's best for Republicans? That's often big business. That's often people who are in small business and successful. And it forgets over half the country. To me, it's disgusting.
That's why they call me a partisan to the Democrats. I say I am a partisan for good government, honest government, and you guys are screwing with the system. You're gaming a process and creating a government that is quite unfair.
BuzzFlash: In many ways, you are a true conservative, and they are right wing. There's a big difference. A conservative believes in states' rights, in the right to privacy, in local community control. Now we have a government that says we can tap your phones at will without court order, and the federal government predominates in so many areas of our life. States' rights are insignificant in comparison to executive order and federal decrees. That's not conservative.
John Dean: Not at all.
BuzzFlash: That's radical.
John Dean: That's what it is.
BuzzFlash: Let's move on to the third branch, which you probably are most pessimistic about. You describe the third branch as being near the breaking point.
John Dean: The most startling part of this analysis was looking at what authoritarians and Republicans have done to the judicial process. This was the stunner to me. I needed to explain to people how they'd actually done this, and how it goes back to my time in the White House. In a sense, I'm partially responsible, although I've apologized for their putting Bill Rehnquist on the Supreme Court.
BuzzFlash: You also wrote a book called The Rehnquist Choice in 2001.
John Dean: It was a different time, and I was looking at a very specific way that Nixon had of selecting Supreme Court justices. Thinking that I knew who Bill Rehnquist was, and Nixon wanting a conservative, I said, this is the man you want. And, boy, he got him in spades.
As I say, I have apologized for that. I thought I knew Rehnquist. Then I saw him literally just dissemble in front of the Senate about his past. He was never vetted, and it was a sorry chapter. Unfortunately it became a pattern -- he is the first of what I call fundamentalist jurists. As most people know, all it takes is five votes by the Supreme Court to really control the federal law.
BuzzFlash: Or the presidency, as we saw in 2000.
John Dean: Conservatives will often swing and vote with what I called the fundamentalists. Rehnquist, Scalia, and Thomas are fundamentalists. It wasn't clear initially exactly what Roberts was when he replaced Rehnquist, nor Alito. In my talking to people who literally make their living by practicing in front of that Court or teaching about that Court, I have raised this question. It's pretty clear that, while they're a little bit more subtle, a little bit more nuanced, they too are fundamentalists. So we have four fundamentalists on the Court now.
If we get another vacancy on that Court, I think the Senate has absolutely got to put its foot down like they did with Ted Olson and say we will not confirm another fundamentalist to this Court. We want the American people to vote on this. This is too important. The polls show about 75% of the American people do not want a fundamentalist type of federal law.
In the book, I sort of project where the Court's rulings would come out if they had five votes -- and it's devastating. It's legal positions you could never get either of the political bodies of the federal government to approve. But yet you could now make them the law of the land if you had five fundamentalist jurists. This has implications for my grandchildren that I don't want those little girls to have to live with.
BuzzFlash: I would venture to reframe what they're called. I think they're extremists and constitutional revisionists. Scalia talks about being a strict constructionist, but, basically, he promotes his notions. He claims they're in the Constitution, but they aren't. He believes that there basically is no separation of church and state. He believes, as Alito and Roberts and Thomas do, in the dramatic reduction of checks and balances by the assertion of a strong unitary authority -- not just strong, but almost an all-powerful unitary authority. These are people, who, in the name of the Constitution, are actually radical revisionists of the Constitution.
John Dean: They are that. I call them fundamentalists because this term is widely known and used in the legal community. It's term we really need people to understand.
BuzzFlash: We also have to consider the rest of the federal judiciary. Many, many decisions, which had gone against the assertion of authority by the Bush administration, have been overturned in the federal appellate courts by appointees of either Reagan, Bush I or Bush II. Key people like Laurence H. Silberman and David B. Sentelle seem to be around at key times. There's a whole group of these people who sit in key positions in the federal courts.
John Dean: There is something called the Federalist Society that sees to the care and feeding of these people, and the breeding of them, and the development of their thinking, from law school to the federal bench.
BuzzFlash: Being a member of the Federalist Society is like their Good Housekeeping Seal of Approval. Whereas many people have at least a vague notion of what's going on with the Executive Branch and Congress --
John Dean: -- they know almost nothing about the federal judiciary.
BuzzFlash: Yes, that's my point. If you talk to people about the judiciary, they say, What? They don't know who's involved, they don't know what it does, they think the judiciary is somehow a neutral force or something. They don't realize that judges are people with opinions. The law is an evolutionary process in this country, and that's why you have a judicial system. Someone has to make a ruling based on their judgment of the law. There's no way that their personal viewpoint on the law and their ideology do not enter into it.
John Dean: The federal judiciary probably affects them in their daily life more than the two political branches.
BuzzFlash: It really didn't get keyed up until the Reagan administration.
John Dean: That's when they formalized and institutionalized the process of finding cookie-cutter type candidates to put on the federal judiciary.
BuzzFlash: They were tenacious in trying to pack the bench, and they have been that way under Bush II. They realize the importance of packing the federal bench, not only at the Supreme Court level. There are just too few opportunities there.
John Dean: If you noticed, I put a table in the book showing that they have won that battle. Of the 181 federal judgeships, 53% are controlled by Republicans. I would say probably 80% of those, if not higher, are pretty hard-core Republican conservatives.
BuzzFlash: They often nominate people with very limited legal credentials, but they're loyalists and they've drunk the water. It's not a question of their legal ability or their disposition and records on the bench. It's a question of their ideology.
John Dean: Bottom line, the Republicans have politicized the non-political branch. A ruling on a legal issue, by a panel on the court of appeals or by the Supreme Court, is not much different than a position the Republican National Committee would take.
BuzzFlash: Exactly. It's not laughable, but it is, in a way.
John Dean: It's painfully laughable.
BuzzFlash: You also have a chapter about repairing government and restoring proper process. So, is there any hope?
John Dean: I happen to be a glass-half-full type of person. I think there is hope. I have long ago given up on people who are apathetic about government. I think people really have a right to be bad as citizens, if that's what they want to be. For years, I've looked at the studies of what will get people interested in government and interested in the way it operates, and how to become active in it. And every one of them fails. They never really make any difference. It's just a factor that Americans are always going to rank amongst the world's democracies as the least caring about their system.
The good news is that there are enough people who do care, who are, in a sense, proxies for those who don't. I take some comfort in that. If you give these people the facts, they will make the right decision. My parallel has always been, because I find it terribly instructive, the American jury system. It is democracy in a miniature, a micro situation. You take twelve people from different walks of life, different levels of education, give them facts, give them what the rules are. And 99 out of 100 times, they will come out with the right decision.
They'll make good judgments collectively. It is somewhat mysterious how they do this, and why they do it. But the results just happen to work out. I think the same is true whether they're Republicans, Democrats, moderates -- wherever they fall on the spectrum. When they get the hard facts, they will make a determination. Yes, about 25% are blinded by their leaders who have no conscience, and they will follow them blindly over the cliff. The other 75% of the active people in the American political scene do make wise judgments.
We see it constantly. The reason I write these books is to get the word out to them. You know, a very small part of the population actually reads books. I plan to stay out with this one for quite awhile. I plan to do much more lecturing than I've done in the past. I've had a lot of requests to do it, to share this information with people. I bring it to their attention, because I'm convinced they'll do the right thing after they get the information.
And I don't carry the water for anybody. I'm just telling people this is the way it is. Look at my documentation. I'm not quoting the left. I'm quoting across the spectrum for the points I'm making, and I document the points I make.
BuzzFlash: In the end, you have been a vigorous defender of constitutional government.
John Dean: That is my agenda.
BuzzFlash: If today that is a partisan agenda, then we're in real trouble, because this is the foundation of our government. This is where we started in this interview. This is what binds us together as a nation of diverse people -- our belief in a constitutionally based government.
John Dean: In a sense, it's our civil religion.
BuzzFlash: And the checks and balances will keep any one group from seizing control of the government. What you are saying in Broken Government is that, since the judiciary are ultimately the umpires of the checks and balances, we're perilously close to that system breaking down.
John Dean: If one more fundamentalist or radical gets on that next bench seat -- and swings that to a solid five-person majority -- I worry deeply. These are issues that must be addressed in 2008.
BuzzFlash: John, thanks so much.
John Dean: You're welcome.
BuzzFlash Interview conducted by Mark Karlin.
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John Dean on FindLaw.com
John W. Dean, White House Counsel to Richard M. Nixon During His Presidency, And Author of "The Rehnquist Choice" - A BuzzFlash Interview, 10/22/02.