A Conversation With Former Solicitor General Ted Olsen About A President’s War Powers
Former Solicitor General and Assistant Attorney General for Legal Counsel Ted Olsen was my guest yesterday for a conversation about a president’s war powers, the role of Congress, and Rudy’s likely judicial nominees. The transcript is here, and the audio is in this hour, immediately after my conversation with Mitt Romney on the same subject. Some key excerpts of the Olsen interview:
HH: Let me ask, Ted, when you were the assistant Attorney General in the office of legal counsel under President Reagan, and it came time to invade Grenada, and Ronald Reagan turned to you and Fred Fielding and Bill Smith, what did you advise him about the War Powers Act? How was he bound by it?
TO: Well, he…presidents right from the beginning have had reservations about the Constitutionality of the War Power Act. And what we did, we had a group that would convene what basically…that was a matter of reporting to Congress with respect to when troops were sent into combat type situations. And what we did was we put together a report that would be sent to Congress that said this is information that is being submitted consistent with the War Powers Act. We did not, we were very careful not to say that we were doing this because the War Powers Act required us to do it, because we all thought that that was unconstitutional.
HH: That was the most interesting part of yesterday’s debate, and of course, you’re an advisor to Mayor Giuliani. And I know when President Reagan turned to this team, what was the collective advice about the Constitutionality of the War Powers Act to Ronald Reagan? And then subsequent to George W. Bush when you were the Solicitor General?
TO: Well, we felt…two parts to that. We…all of us felt that the War Powers Act was unconstitutional to the extent that it purported to restrict the president’s ability to act under exigent circumstances to protect the interests of the United States with respect to military action. Now Congress, of course, has authority under the power to declare war, does have authority to appropriate funds and all of those things. But all of us felt, and I think previous presidents, including President Carter, had reservations about the War Powers Act as well. So that was the advice that we gave then. By the time I came along as Solicitor General under this President Bush, basically the War Powers Act was essentially, or for all practical purposes, a dead letter, because President Clinton had basically ignored the War Powers Act, and no one had really done anything about it, and they couldn’t.
HH: So when President Bush came to you as SG, and to the rest of the legal team in the first Bush term, did he come with the idea that we’re going to go to Congress because it’s politically a good idea? Or because it’s a Constitutionally required idea?
TO: Well, I have to explain that my role was not to give him advice with respect to that matter after September 11. That was…I was the Solicitor General, not the office of legal counsel. So our job was to defend in the Supreme Court actions that had been taken by the government, but I wasn’t part of that legal process.
HH: General Olsen, if in fact Mayor Giuliani becomes President Giuliani, and Iran’s about to get the nuke that we fear that it would, and he calls you up, and you’re in private life or in public office, and he says Ted, what do I do, what would you tell him about what to do, vis–vis Congress?
TO: Well, obviously, if you are a lawyer and you have plenty of time to think about all of the different alternatives, and I think any president taking office would want to get his legal team familiar, that would be his White House Counsel, the Attorney General, the assistant Attorney General, the lawyers in the Defense Department and the State Department, and get together and go over these various options.
And this exchange on Rudy’s likely judicial nominees and Dr. James Dobson’s critique of pro-choice GOPers:
HH: Jim Dobson penned a New York Times editorial. I’m sure you’re familiar with it, that if it’s Rudy Giuliani, he’s just sitting it out. What’s your response to that, and to the idea that you can’t trust Rudy with Supreme Court nominees?
TO: Well, A) you can trust Rudy with Supreme Court nominees. He’s the person in America that I trust the most in connection with this. If someone wants to sit out the election because they’re not satisfied with some aspect of Rudy’s background or Rudy’s policy, then he might as well just vote for Hillary Clinton, because that’s what’s going to happen. I think it’s exceedingly important for Republicans and conservatives and moderates alike to take a deep breath, if there’s a high likelihood, as I think there may be, of an even greater Democratic control of both houses of Congress. A Democratic president is going to appoint Supreme Court justices, appellate court judges, and other federal judges, and increase taxes, and increase the federal spending, and doing lots of things that only a Republican president can prevent. And Rudy Giuliani, in my judgment, is the most qualified and the most electable Republican. And anybody on the conservative side that thinks they’re going to sit that out, they might as well contribute to the Democratic victory, and then take responsibility for what happens, because it will be their fault.