The Presidency and the Law: The Clinton Legacy (review)

Since the creation of the Constitution, American presidents and legislatures have been wrangling over power. President James Madison endorsed a hemmed-in executive answering to a more powerful Congress whereas Alexander Hamilton and Theodore Roosevelt envisioned a presidential power limited only by the interests of the nation. This edited compilation of nine essays documents a steady rise in presidential power since the inception of the office, highlighting the most blatant encroachments on the Constitution both before and during the Clinton administration.

Each chapter recounts history's most glaring examples of Oval Office power expansion, exposing a system of unchecked executive supremacy. Examining abuses of war power, executive privilege and immunity, presidential pardon and campaign finance rules, all of the contributors make compelling cases. With an eye on the intent of the framers of the Constitution, authors explore the impact of scandals and crises on presidential power, the independent counsel, and the impeachment process. They use Clinton's Hamiltonian view of the presidency to show an ever-growing tendency of our presidents, both Democrat and Republican, to follow their own rulebook.

This contemporary look at the clash of the executive and legislative branches is written clearly enough to be as useful to the layperson interested in American government as it is to the legal, historic, or communication scholar. The book seems especially timely as President Bush pushes to expand his power to fight the war on terrorism.

Editors David Gray Adler and Michael A. Genovese have assembled these works to attack what they see as a breakdown of the system of checks and balances. Although the criticism can be somewhat overzealous in some of the essays, these spirited sections make the most entertaining reading as the authors argue their cases against the presidents, especially Clinton.

Thomas E. Cronin's foreword serves as the opening argument with a summary of the ongoing debate over the merits of a Hamiltonian or Madisonian president. After concluding that Clinton's boundary-crossing initiatives caused harm to the institution of the presidency, Cronin provocatively invites him to use the book's arguments to frame his defense in his memoirs. The following chapters make up the remaining points of the prosecutorial agenda.

Nancy Kassop deftly fires the first volley as she illustrates how Clinton illicitly expanded his power through persistent exploitation of executive orders and bypassing of congressional disapproval for war. Conversely, she shows how he inadvertently contracted that power with a penchant for using executive immunity and privilege to defend himself throughout his scandal-ridden tenure. In her view, Clinton tried to expand his executive privilege so far and so often that his string of precedent-setting legal losses permanently tainted White House operating procedures. "The decisions on executive privilege and government attorney-client privilege have already affected the way business gets done in the White House . . . no one takes notes any longer, for fear of having them subpoenaed" (12). Kassop resists a full assault on Clinton by highlighting the Republican partisan nature of the impeachment. She impugns the "constitutionalization of politics," saying, "Raw political strategy, converted into constitutional tactics, seemingly paved the way for their [Republican leaders] efforts, with little regard for the consequences to their party" (15).

Mark Rozell's chapter, however, vigorously impugns Clinton's attempts to block damaging evidence and testimony with executive privilege throughout multiple investigations. Rozell dismisses counter arguments and delivers the damning verdict of giving executive privilege "a bad name . . . like Nixon before him" (70). Rozell's moral indignation, however, detracts from his otherwise sound argument.

Interestingly, one of Nixon's legacies, namely the office of the independent counsel, would figure prominently in Clinton's administration as well. Robert Spitzer follows the independent counsel from its Watergate beginnings to its current inactive state, making the case for its revival in spite of a checkered, partisan past. Spitzer...