The first hour of today’s program will consist of interviews with Mitt Romney and Rudy Giuliani-surrogate Ted Olsen, as well as Dean John Eastman and Professor Erwin Chemerinksy on whether or not presidents need to consult with Congress prior to the use of force. Transcripts will be up here later.
Bottom line: Presidents always consult with their lawyers before deciding whether to use force and whether to consult with Congress. I am quite certain Ted Olsen did so as part of the Reagan Administration legal team, and Mayor Giuliani as Associate Attorney General may have been part of that review as well, though the AAG typically is more concerned with law enforcement than the War Powers Act.
Romney gave his answer about consulting lawyers in the context of questions about a president’s legal obligation (if any) to obtain congressional authorization. In this context it was natural, though probably not very savvy, for Romney to talk about lawyers. Debaters points aside, I would expect a president contemplating military action against a foreign country to seek the opinion of administration lawyers on legal questions regarding the proper role of Congress under the Constitution in the matter.
Third, Romney made it clear that, bottom line, he “would make sure that we would take the action necessary to keep Iran from having a nuclear weapon.” So Romney’s answer cannot be construed as imposing either a “lawyers’ test,” much less a “global test” with respect to this issue.
The real question for all the candidates: Would you pull the trigger if you had thought there was an imminent threat to the U.S? The GOP’s big three all said yes in various ways, but they all said yes.
The record of the last President Clinton on this particular issue speaks louder than words: He refused to do so, time and time again. There is no reason to believe Senator Clinton would act more forcefully than her husband did, and her sponsorship of War Power Act 2.0 vis-a-vis Iran is proof of that predisposition to kick cans down roads in the hope of keeping poll ratings high.