Interview With Kevin Gutzman on the CIA and the Constitution
Mandeville, LA – Exclusive Transcript – “Now to one of the principal things that we want to talk to Professor Gutzman about here today, “The CIA-Senate Fiasco and Madison’s Separation of Powers Doctrine.” You wrote this about ten days ago or so and posted it at NomocracyInPolitics.com. I got a chance to read it and shared a little bit of it with the audience. Of course, I followed you and wrote something about this to The Daily Caller. We’ve talked about this almost every day as the story continues to evolve a little bit.” Check out today’s transcript for the rest…
Begin Mike Church Show Transcript
Mike: Now to one of the principal things that we want to talk to Professor Gutzman about here today, “The CIA-Senate Fiasco and Madison’s Separation of Powers Doctrine.” You wrote this about ten days ago or so and posted it at NomocracyInPolitics.com. I got a chance to read it and shared a little bit of it with the audience. Of course, I followed you and wrote something about this to The Daily Caller. We’ve talked about this almost every day as the story continues to evolve a little bit. The more I learn about it, the more repulsed I become by it, and it’s mainly for the reasons you cite. The first two paragraphs in the lead of your story is what an outrage this is. So I’ll let you take it from there. What’s the outrage, or what’s the first outrage of the CIA-Senate fiasco starring Senator Dianne Feinstein?
Kevin Gutzman: Well, Feinstein is absolutely correct to criticize the executive branch for this behavior. What we have going on is a lurching of our government into an increasingly monarchical form.
Frank Buckley at George Mason University has a new book out about the idea that America’s government is looking more and more like a monarchy over time. He says that there’s really no solution under the current constitution, and the only way to avoid increasing concentration of authority in the executive branch would be to follow the example of his homeland, Canada, and have a parliamentary system instead of the one we have. Of course, I don’t see that happening, but then again, I don’t see any end to the phenomenon he’s talking about. Essentially the three branches are supposed to be discreet. What we have is the executive branch spying on what supposedly are secret communications among senators, apparently with the idea of influencing their internal discussions.
Feinstein ought to be beating the drums, I think, for removal from office of people who are responsible for this stuff. Here we see an example of the reason why our constitutional system is in serious disrepair, and that is people tend to put their party affiliation above the branch they’re in. This is a phenomenon that was not anticipated by the people who wrote the Constitution. If you read The Federalist, you don’t find anybody endorsing the idea of parties. In fact, the famous Federalist No. 10 is about how parties have baneful influence. Why think we can expect that there will be no real blowback on the executive branch as a result of spying on what’s going on inside the Senate? To my mind it is appalling. This is the exact kind of situation for which the impeachment power is appropriate, just as Clapper should be impeached for lying under oath to senators, specifically in response to a senator from Oregon who’s a Democrat.
Gutzman: The people responsible for this clearly ought to be bounced on their ears. I can’t understand why there isn’t something done about it immediately. I think, if you remember the U.S. House of Representatives, you should instantly file articles of impeachment against the people who are responsible for this. If it means going for the CIA director, fine. Why is the CIA even spying within the United States in the first place? It’s supposed to be an external spy agency. I have the feeling, and I’m sure I’m one of tens of millions of Americans, that my government concentrates a lot of attention on spying on me, on us. Why is this happening? It needs to stop. All the way around, it’s deplorable. That’s what the piece is about.
Mike: Is this made more deplorable by the fact that it is the Senate that is supposed to be, in Madison’s explanation anyways, the more august of the two bodies, supposed to be comprised of the aristocratic class of Americans that would be nominated originally by their legislatures? These would be men, according to Madison again, and other federalists, that would be well known to the legislators and the governors in the states? In other words, these would be men of high reputation. I was shocked the other day, Kevin. I was reading. I just finished my Times That Try Men’s Souls audio feature. I had included a little piece in there about how this New Jersey guy named Philemon Dickinson had chased the Hessians all around Princeton and Bordentown and Mount Holly and Trenton, New Jersey and killed a bunch of them. Then I look in the roster of the first United States Senate and there’s Philemon Dickinson from New Jersey. My point is, the Senate, unlike the House, was supposed to be comprised of the who’s who of American legislators. That ought to make what’s going on here even the more offensive, right?
Gutzman: Well, certainly if there were going to be this kind of action against one house of Congress, it would be even more surprising that it was being done against the Senate than against the House. Of course, the Constitution gives the Senate roles and several executive functions. They have a role in appointing people and a role in making treaties. In theory they should be cooperating with the executive in important areas. The bottom line is that for the executive to be essentially treating Congress as an enemy, which is what spying is about, it’s just completely unacceptable. This is unacceptable. Yet people in Congress accept it. Those of you ought there who thought “Well, if only we had Republicans in control of one house of Congress, things would change,” I ask: What are they doing about this? Have you heard them saying anything about this? Did Boehner give a speech where he says we’re going to initiate an investigation and there might be impeachments coming? I haven’t heard anything. The appropriate thing to do is to impeach these people. Whoever is responsible for spying on the Senate needs to go. It’s not a question.
Remember when McChrystal made those comments about Obama and they ended up in Rolling Stone Magazine. We have a general in the field criticizing the commander in chief. I said: That guy’s got to be fired. Obama did fire him. This is the same kind of a situation. People who did this have to go. They need to be fired. There’s just no way to tolerate, again, having the executive branch treat the U.S. Congress, in this case the Senate, as an enemy institution. They’re spying on the Senate. It’s totally appalling.
Mike: What it reminds me of as I watch this and learn about it, what it reminds me of is the television show, which I know you’re intimately familiar with, House of Cards. Kevin Spacey has your book on his bookcase. After I read that, I started looking for it. I only saw it once. I think I read on your Facebook that he picked the book up more than once. In any event, this sounds like something out of fiction, like something out of a TV show like House of Cards or something stupid like The West Wing or something that Tom Clancy would include in one of his spy novels. I don’t even think Tom Clancy thought of this one.
Gutzman: Who would have contemplated a situation in which the executive branch was treating the Senate as an enemy institution? Who would have contemplated a situation in which the National Security Agency, which is supposed to be, again, a spy agency whose efforts are directed at foreigners outside the country, was spying on us? There used to be a law that they couldn’t do anything within the United States. Now, in the wake of 9/11, Congress has decided to allow them to have some activities within the United States in case there were communications between people in the U.S. and suspected Al-Qaeda people outside the country. Instead of that, we end up with apparently wide-ranging spying.
If the federal spy apparatus is directed at the Congress, how do you think they’re treating you? How do you think they’re treating individual Americans who don’t have any authority when it comes to their appropriations, who can’t haul their directors in and interrogate them under oath? I think it’s only the tip of the iceberg. I have to laugh because it’s so absurd. Who could really imagine it? It’s got to go. I can’t understand why the Republicans who run the House of Representatives, which is the body in Congress where impeachments are supposed to start, why they’re not impeaching people right now. They should be impeaching people right now.
Mike: Well, they’re worried about reelection and they have sugar subsidies to worry about. Plus, they have binding things. They have to save the world from Vladimir Putin. And they have to save Ukrainians from those evil, despicable Crimeans. Now they’ve got to save Italians from the citizens of Venice because the Venetians are coming to get them. They have international matters to attend to, Professor Gutzman. I know you think these things are supposed to be done by the people’s house, but come come, now, my good man. That’s not what we elect people to go to Congress for, to enact laws and to supervise the other branches of government. I always marvel at this, I really do. I’ve been banging this drum, just as you did, just as frustratingly as you just did. I can hear it in your voice. What in the world is going on here? Do you guys have any procedure — look, on any given day there are at least five members of the House of Representin’ that listen to this radio show on the way to work. I know this because I know all five of them. I know at least one of them is listening right now. What are you doing? Why are you not doing something about this? And don’t tell me that Boehner won’t let it come to the floor. Screw Boehner. Go in there under special orders like Louie Gohmert used to do and Newt Gingrich used to do and bang that drum. As Kevin says, something has got to be done about this.
I want to follow this up with a question that you are intimately familiar with. In 1916 or 1917, somewhere around there, the federal Congress was conned into this idea by the president then, Woodrow Wilson, that they needed to compel young men to go off to Europe and die in ditches of trench foot with French and British guys on the Maginot Line and get involved in World War I. Many young men, still being republicans, said: You can’t make me go; you can’t conscript me. Wilson’s answer was: Oh, yeah, you wanna bet? Not only that, Wilson and Congress said: Not only do you have to go, but don’t speak out against our holy, sacred federal government, because if you do we’ll lock you up. Of course, the same young men said: You can’t do that. We have a First Amendment. To which Wilson and Congress replied: Wanna bet? Tell the audience about the Espionage Act of 1917 and then the Sedition Act of 1918 and how they came about.
Gutzman: Well, the bottom line is that Congress resuscitated the old notion of the sedition act that had been, one thought, put to rest with the election of Jefferson and the republicans in 1800 and the expiration of the original Sedition Act was 1798. They made it a crime, essentially, to criticize the government, criticize the war policy, say anything that might be an impediment to prosecuting the war, and included, of course, into the conscription policy. We ended up with the most disgraceful Supreme Court decision of the 20th century, the court’s decision in what are called the Selective Draft Law Cases. Essentially what the court said was: They have conscription in the British Empire and the French Empire and the Japanese Empire, the Turkish Empire, the Russian Empire – see a theme here? — obviously every government can conscript, and that includes the U.S. government, which, of course, is totally opposite the way one thought we were to read the U.S. Constitution, which is by looking at it to find specific grants of power to the Congress in case we found a clause that said Congress will have power to conscript people.
Since 1918 and the Selective Draft Law Cases, we have understood that the Supreme Court’s decision is essentially: We’ll let the executive branch conscript people into the military. Although we don’t currently have conscription going on, the official position of the U.S. government is they can draft people if they want to. Tom Woods and I wrote a whole chapter in Who Killed the Constitution about this. I think if anything is unconstitutional, it’s drafting people into the military. If you’d said that in 1917 or 1918, you would have been prosecuted under the Sedition Act and found yourself in prison. That happened to several people. This was the way that your most prominent Progressives and President Woodrow Wilson understood the constitutional system, essentially that the federal government could do anything it wanted to. That’s one example.
I want to say something else about impeachment. One of those fellows in the House of Representatives gave a speech last week in the House in which he said: We can’t use impeachment because impeachment is about punishing people. Well, let me tell your listeners, I wrote my first master’s thesis about how federal impeachment, in this case impeachment of judges but it’s the same principal. That is totally incorrect. Impeachment is a political remedy. It’s not a criminal power. It’s a political remedy for removing people from office who have been abusing their positions.
There have been numerous people in American history, as there were numerous people in English history before that — that’s where we got the impeachment process in our Constitution, of course, from the English precedence — who were removed from office not for violating the speed limit or punching somebody in a bar, but for abusing their offices. That’s exactly what the power is about. If Congress didn’t have the authority to remove scofflaw, to remove constitution-flouting members of the judiciary and executive, what would be the solution to that kind of situation? That speech didn’t even make any sense. I could tell listening to it that the guy essentially had no idea what he was talking about. Likely my next piece for Nomocracy In Politics is going to be about the impeachment power. I think it’s obvious there are a lot of people out there who don’t really understand it.
End Mike Church Show Transcript