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Former Solicitor General and Rudy advisor Ted Olsen on the War Powers Act controversy from the GOP debate.

Thursday, October 11, 2007
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HH: From Mitt Romney on to the former Solicitor General of the United States, the Honorable Ted Olsen, sent to us by the Giuliani campaign. Ted, always a pleasure, thanks for joining us again.

TO: My pleasure, thank you.

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-a-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. So there is one sense in which you would want to do planning with respect to things like this, and look at the legal implications of all of the alternatives. It’s always better to have Congressional support for whatever the president might decide to do. On the other hand, the president, when the Constitution was enacted, the Constitution created a single executive, as opposed to a collective executive, and consisting of two or three or more persons, because the framers of the Constitution wanted to have energy in the Executive. They wanted the president to be able to act swiftly and efficiently to protect the nation when it was necessary. So if the president was facing an immediate danger to the citizens of the United States, the president might not have time to consult with members of Congress. It all depends upon the circumstances. But ultimately, we elect a president to be able to protect this nation in times of emergencies, and the president has to do that sometimes.

HH: And take people inside these discussions. How do they actually unfold? Because you’ve been doing this in the Executive Branch through, well, three administrations, really, for unofficial roles with the first Bush, but how does it actually happen when conflict and war, and bombs have to be dropped, whether it’s in Libya or Grenada or Panama or Iraq, how does the White House actually function at a time like that?

TO: Well, I can say probably most, with a greater sense of precision what we were doing during the Reagan administration. We had a standing group which consisted of the White House Counsel, the assistant Attorney General for the office of legal counsel, someone from the Defense Department, someone from the National Security Council, someone from the State Department, and we would meet regularly to try to anticipate and to provide the president, and the Executive Branch, with the best possible legal advice we could give. Sometimes, it was well before the events unfolded if we knew what was coming, or if we knew that we ought to plan for them. Sometimes, it was after something might have happened, and we wanted to give the president the best legal advice afterwards. Now it all depends upon the circumstances. This whole issue of consulting with lawyers reminded me of a situation that I remember reading about with respect to things that were happening during the Clinton administration. They might have a terrorist, say it’s in Afghanistan or Pakistan or someplace, they might locate bin Laden or something like that, and have just a few minutes to act if they’re going to send a missile down to blow him up. That is not an occasion when you have to start calling lawyers all over the United States, or wherever they might be, to convene to express a legal opinion. You need to be ready to act and without having to go get legal opinions.

HH: When Mayor Giuliani says yesterday it really depends on the exigency of the circumstances and how legitimate it is, that it’s whether it’s really an exigent circumstance, it’s desirable. He’s talking about having previously consulted with legal authorities, gotten a good paradigm on which to work, and then applying the paradigm to the facts at hand?

TO: Well, of course that’s true, but it may be the case under some exigent circumstances, because you never know what’s going to happen, sometimes a president may have to act without having had that advance planning. That’s the very definition of exigent circumstances. At the moments after the planes were crashed on September 11, decisions might have to be made without going through an elaborate legal process, and that’s why we want someone who is cool under fire, who has judgment, who knows how to handle emergencies, and has the courage to take the steps that are necessary to protect the nation first, and then consult with all the wise experts afterwards, if that’s necessary. Hopefully, that won’t happen, but you want a president who’s decisive enough to act in the nation’s interest.

HH: A couple of related questions, Ted Olsen. Jeff Toobin’s going to be on the program later today. Have you read The Nine yet?

TO: I’ve read portions of it.

HH: Do you believe his account of Bush V. Gore is accurate there as to the Court’s agonizing, and to the illegitimacy of the decision?

TO: Here’s my answer to that. I found portions of it with which I will respectfully disagree from a factual standpoint. Now Jeff apparently interviewed some people that I have not talked to, but I don’t have time to go into details with respect to this. There were a number of things that I’d love to get on a program with Jeff, and talk about with respect to his version of certain things that I am pretty darn familiar with.

HH: Well, I’d love to set that up. Last question, 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.

HH: Ted Olson, former Solicitor General of the United States, thank you.

End of interview.

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