Public trial by public jury

At one point in the Iran-Contra hearings, Arthur L. Liman, Senate chief counsel, said (rather testily I thought): "This is not a prosecution, Col. North, this is an investigation." To which Col. North might well have said in response, "You could have fooled me, counsel." 

Mr. Liman might also have fooled the millions of Americans viewing the proceedings on their television screens. They know what a prosecution looks like. After all, they are a public schooled in TV courtroom trials, weaned on them, in fact, and to such an audience the trial setting must have been very familiar.

An investigation? What was there to investigate? By the time of the public hearings, the committees knew the answers to almost every question they were to ask. They had the files, the "PROF" notes, the slides, the receipts, the canceled traveler's checks, the cables, the telephone logs, the tapes, the transcriptions; they had the works. They knew, generally, what Col. North was going to say, and, because he had already testified in private, they knew in detail what Adm. John Poindexter was going to say. And yet they sat there, day after day and week after week, listening, occasionally orating, and routinely neglecting their ordinary legislative business. To what end?

It had the looks of a trial all right -- district attorney, defense counsel, witness, exhibits, judge, and, at the other end of Pennsylvania Avenue, the defendant -- a trial conducted for the benefit (but not necessarily the enjoyment) of the public.

How else to explain the charts, the blowups of documents and "composites" of bills, with the well-groomed assistants helping the television audience by pointing, like Vanna White, to the salient provisions and required signatures? How else to explain the care taken to allow the television cameras to focus on the PROF notes and other exhibits? How else to explain why defense counsel Brendan Sullivan also came armed with photographs -- of Col. North standing beside that stack of documents, of newspaper accounts of Abu Nidal's terrorism, and the like -- and why he was quick to make a public display of the stacks of telegrams supporting his client? And, finally, how else to explain why Rep. Jim Courter (R., N.J.) asked that Col. North be allowed to present his anti-Soviet slide show -- or, as the Democrats muttered in private, his dog-and-pony show? The hearings are a public trial by public jury.

More precisely, they are a public trial of a number of complex constitutional issues, conducted under the assumption that the public is qualified to render judgment, and that the president and Congress must be guided by that judgment whatever it is. Sen. Warren Rudman (R., N.H.) gave voice to this notion when he said that the American people "have a right to be wrong" in political matters but suggested that on constitutional issues their judgment is definitive. At issue here are the respective roles of president and Congress in the design and control of foreign policy.

Congress, with the support of much of the press, insists that a way must be found "to deter further abuses of presidential power." Fair enough, but Congress is also inclined to define an abuse as any activity undertaken without its formal approval.

The argument is that in a democracy everybody, including the president, is under the law and is obliged to obey it. "This is a government of laws," said one of the Democratic committee members, by which he implied, incorrectly, that our system, like the one we renounced in 1776, is one of legislative supremacy. It is, on the contrary, one of constitutional supremacy, which means, among other things, that whether the president is obliged to obey the law depends on whether the law is constitutional.

Unfortunately, the only person constitutionally qualified to make this case was off in Indiana talking about budget deficits. So it was left to Fawn Hall to say, improperly and without further explanation, that one might occasionally "rise above" the law, and to Col. North to speak generally about the separation of powers, and then to Robert McFarlane who, with his notion of presidential accountability, seemed to surrender the field without an argument. Without that argument, there is a real danger that Congress, taking its direction from the public, will undermine the constitutional powers of the presidential office.

These powers include the withholding of material formally requested by the Congress. George Washington was the first of a long line of presidents to insist on this prerogative of the office. They include the right to withhold material formally requested by the courts, even, as Thomas Jefferson confirmed, material required in a pending trial and requested by the chief justice. They include making of executive agreements with foreign nations without the consent of the Senate or, as Franklin Roosevelt demonstrated when he traded 50 newly reconditioned warships to the British, without consulting Congress and, in fact, deliberately circumventing it. They include commanding an army general to disobey a formal order issued by another chief justice, and, to go down the list of other actions taken by President Abraham Lincoln, suspending the privilege of habeas corpus, spending money not appropriated by the Congress, proclaiming a naval blockade of Southern ports, enlarging the size of the Army and Navy, shutting down newspapers and ordering the Army to arrest their editors, and, in the most extreme case, simply by executive order, declaring that, on Jan. 1, 1863, "all persons held as slaves within any state, or designated part of a state, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward and forever free."

These are examples of the executive power vested in the president by the Constitution and available for use in emergencies. It is understood (or at least it used to be understood) that on such occasions the president may proceed without legislative authority and sometimes even in violation of it. The power exists when necessity requires its use, and it is up to the president both to claim or assert the authority. For example, only he or someone acting under his explicit orders may claim the privilege to withhold information from Congress and courts -- and to demonstrate the necessity of its use. This is what Lincoln did in his special message to Congress on July 4, 1861, and what President Reagan has failed to do.

Admittedly, the power can be abused, and obviously there will sometimes be disagreements as to whether it has been abused. In this area, the Constitution invites dispute because it cannot define the exact point at which the law of Congress must give way to executive prerogative. Some of these disputes can be resolved in the Supreme Court, but not all of them, not those that arise when the president, citing what he claims as his constitutional authority, chooses to ignore the court or even to defy it.

On that subject there can be no constitutional law. The issue raised can be resolved only by referring it back to the people. And they render judgment not in a poll taken after watching a televised exchange between Col. North and committee chairman Sen. Daniel Inouye, but in the House of Representatives, which, under the Constitution, has "the sole Power of Impeachment," and in the Senate, which, in this case with the chief justice presiding, has "the sole Power to try all Impeachments." Had Lincoln not been persuasive in that special message to Congress, this might have been the course of action followed in 1861.

The ultimate constitutional authority in these matters is not the people in their capacity as television audience, but the House and Senate acting in the name of the people -- and, presumably, acting more responsibly than when basking in the klieg lights of television. Certainly the issues deserve a better hearing than they have been getting so far.

Mr. Berns is John M. Olin university professor at Georgetown University and an adjunct scholar at the American Enterprise Institute.

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