Vice President Dick Cheney's Incredible and Deadly Lie

This week, I agreed to deliver a "Constitution Day" talk on a
college campus. My talk was not partisan. Yet the subject matter I
selected was prompted by the most incredible - not to mention the most
deadly - lie Dick Cheney has yet told, which was reported earlier this
week.

Last year, Washington Post reporter Barton Gellman and Jo Baker, now of the New York Times, did an extensive series for the Post on Cheney. Now, Gellman has done some more digging, and published the result in a book he released this week: Angler: The Cheney Vice Presidency.
The book reveals a lie told to a high-ranking fellow Republican, and
the difference that lie made. In this column, I'll explain how Cheney
defied the separation of powers, and go back to the founding history to
show why actions like his matter so profoundly.

Cheney's Bold Face Lie To Congress

According to Gellman (and to paraphrase from the Post story on his
finding), in the run-up to the war in Iraq, the White House was worried
about the stance of Republican Majority Leader Richard Armey of Texas,
who had deep concerns about going to war with Saddam Hussein. According
to the Post,
Armey met with Cheney for a highly classified, one-on-on briefing, in
Room H-208, Cheney's luxurious hideaway office on the House side of the
Capitol.

During this meeting, the Post reports, Cheney turned Armey
around on the war issue. Cheney did so by telling the House Majority
Leader that he was giving him information that the Administration could
not tell the public -- namely (according to Armey), that Iraq had the
"'ability to miniaturize weapons of mass destruction, particularly
nuclear,' which had been 'substantially refined since the first Gulf
War,' and would soon result in 'packages that could be moved even by
ground personnel.' In addition, Cheney linked that threat to Saddam's
alleged personal ties to al Qaeda, explaining that 'we now know they
have the ability to develop these weapons in a very portable fashion,
and they have a delivery system in their relationship with
organizations such as al Qaeda.'"

The Post story continues, "Armey has asked: "Did Dick
Cheney ... purposely tell me things he knew to be untrue?" His answer:
"I seriously feel that may be the case...Had I known or believed then
what I believe now, I would have publicly opposed [the war] resolution
right to the bitter end, and I believe I might have stopped it from
happening."

In short, it was this lie that sealed the nation's fate, and sent
us to war in Iraq. By lying to such an influential figure in Congress,
Cheney not only may have changed the course of history, but also
corrupted the separation of powers with their inherent checks and
balances.

Cheney's monumental dishonesty, the news of which has been buried
under the current meltdown of the nation's economy, did not strike me
as a topic for a Constitution Day speech. But a realistic discussion of
the working of the separations of powers did seem a fitting topic, for
college students need to understand the basics of our system. After we
remind ourselves of those basics, Cheney's great lie can be viewed not
only as a great immorality and violation of the criminal code, but also
and more fundamentally as the significant breach of his oath of office
to protect and defend the Constitution that it is.

Our Constitutional Separation of Powers

Historians, not to mention contemporary historical documents,
establish that no issue was more important to the founders of our
national government than that of what its structure should be.
Accordingly, in anticipation of the Constitutional Convention in
Philadelphia during the summer of 1787, James Madison of Virginia
plowed through historical accounts of governments and concluded that
there are three basic forms of government: monarchy (the one),
oligarchy (an elite few) and democracy (the many). Each form, however,
had serious drawbacks.

As a result, Madison sought to take the best of each to create a
"republic" - as had been done in varying degrees with many of the
American colonies. Republics, of course, had been around a long time,
for they were the forms employed by the Greeks and Romans. Thus, the
republic was a form of government those who were meeting in
Philadelphia well understood, in which sovereignty resides with the
people who elect agents to represent them in the political
decision-making process.

Madison's republic combined elements of each type of government, in
a mixing of forms. It featured an executive who incorporated the
strength of monarchy without the evils of a King; a Senate that
embodied the wisdom of an oligarchy; and a House that balanced the
self-interest of such elites with a throng of representatives who spoke
for the people of the nation.

Many delegates at the founding convention were mistrustful of a pure
democracy since none had worked well in the past; moreover, the country
was too large and diverse to directly involve everyone. Later, Madison
nicely explained the differences in Federalist No. 14: "[I]n a
democracy, the people meet and exercise the government in person; in a
republic they assemble and administer it by their representatives and
agents. A democracy consequently will be confined to a small spot. A
republic may be extended over a large region."

Most importantly, Madison's structure had three separate branches
of the government - legislative, executive and judicial -- and each
branch was empowered to check and balance the others, and thereby
diffuse power.

Madison's system, however, has not worked as designed even in the
best of times, not to mention when there is an all-powerful Vice
President hell-bent on gaming the system.

The Reality of Separation of Powers

An article in the June 2006 Harvard Law Journal -- Daryl J. Levinson and Richard H. Pildes, "Separation of Parties, Not Powers," Harvard Law Journal (Jun. 2006) 2311
-- provides one of the better analyses out there of the real-world
workings of the separation of powers, and their accompanying checks and
balances. Professors Levinson and Pildes argue that Madison's vision of
separation of powers has, in fact, been trumped in America by political
parties. Their point is well taken, but as I see it their conclusion is
far more applicable to the Republicans than the Democrats.

"The success of American democracy overwhelmed the Madisonian
conception of separation of powers almost from the outset, preempting
the political dynamics that were supposed to provide each branch with a
'will of its own' that would propel departmental '[a]mbition ... to
counteract ambition'," Levinson and Pildes explain. This, in turn, they
argue, made the underlying theory of the government - separation of
powers - largely "anachronistic."

When they looked at government, however, they found that when
different political parties control the different branches - creating a
divided government - then the parties working through those branches
still do operate as Madison had hoped. Why? By sifting through the work
of noted political scientists, Levinson and Pildes have concluded that
it is not on behalf of protecting the institutional powers that the
checking and balancing occurs; rather, it is through the influence of
party politics operating through that divided branch.

I believe, based on the record (and as someone who worked on the
Hill when Democrats controlled both ends of Pennsylvania Avenue) that
Levinson and Pildes have it half right.

Democrats under unified government (i.e., when Democrats control
both Congress and the White House) have been remarkably
institutionally-minded, and the separation of powers has remained
viable. On the other hand, conservative Republicans - as I have
explained in my book Broken Government (just out in paperback too)
- easily place party loyalty before the responsibilities of the
governmental institution in which they serve. The first six years of
the Bush/Cheney Administration, for example, were a travesty in
Republican denial of institutional responsibilities. In contrast, there
is a long list of Democratic House and Senate Chairmen who have a
on-going history of refusing to be the rubber-stamps of Democratic
Presidents.

For instance, unlike in the situation where Cheney lied to former
Majority Leader Armey, when both the Democratic House and Senate
suspected that President Lyndon Johnson had lied to them about the
incident(s) in the Gulf of Tonkin that provoked Congress to authorize
the war in Viet Nam, they took action. In contrast, Republicans have
not acted on Cheney's lie to Armey - and surely Washington Post reporter Barton Gellman is not the first person to learn about this lie.

Why Cheney Is Not Likely To Be Held Accountable

Those of us who follow these matters have long known - and I have
written before - that it is Dick Cheney who is molding his hapless and
naive president to his will, by effecting endless expansions of
Presidential powers, and acting upon Cheney's total disregard of the
separation of powers.

Cheney does not seem to believe the Constitution applies to "real
leaders," who do whatever they believe they must do. Nor does he
believe in the separation of powers. Indeed, Cheney absurdly claims he
is himself part of the Legislative Branch because he is the presiding
officer of the Senate - though, in practice, that position exists only
to break tie votes. It has long been clear that Cheney has been
corruptly bridging the constitutional separation of powers throughout
the Bush/Cheney presidency.

If Armey is right, Dick Cheney has not only behaved improperly, but
also criminally: In addition, when lying to Armey, Cheney clearly
committed a "high crime or misdemeanor" in his blocking the
Constitution's checks and balances from stopping our march into Iraq.
During the debates that took place during the Constitution's
ratification conventions, it was specifically stated that lying to
Congress about matters of war would be an impeachable offense. Congress
has also made it a crime.

Nonetheless, nothing is likely to happen to Cheney, for Congress is
too busy dealing with the disastrous economy that he and Bush are
leaving behind as they head for the door. No one seems inclined to hold
Cheney responsible, and he appears totally unconcerned about the wrath
of history. Yet in lying even to those in his own party, about reasons
to go to war, he has sunk to a low level few have reached, and it is no
hyperbole to call his actions treasonous to the structure and spirit of
the Republic.