For Sen. Tim Kaine Of Virginia, Presidential Power Has Gone Too Far

Jun 27, 2020
Originally published on June 27, 2020 3:22 pm

Presidential power only goes so far — and then Congress has the constitutional duty to assert its authority, Democratic Sen. Tim Kaine of Virginia told NPR's Michel Martin in an interview Saturday.

Kaine's comments come amid renewed criticism among Democrats and some Republicans that President Trump repeatedly engages in executive overreach. Some point to the administration's move this month to remove New York federal prosecutor Geoffrey Berman, who had been investigating some of Trump's associates. Others cite the Justice Department's decision to drop the case against the president's former national security adviser Michael Flynn, who had pleaded guilty to making false statements to the FBI during the Russia investigation.

Presidential assertions of executive power are nothing new, Kaine said, pointing to Barack Obama and George W. Bush as examples of commanders in chief who believed they could engage in military activity without a vote from Congress. But the Trump administration goes too far, Kaine said, citing the Flynn case as well as Trump's taking money out of the defense budget to use for a border wall, and blocking witnesses from testifying before congressional committees.

Some powers belong to Congress alone, Kaine said, such as starting trade wars and imposing tariffs. "Presidents take these powers, but Congress has basically just allowed them to," he said.

Kaine was especially critical of what he called the highly politicized pardons of people such as Joe Arpaio, the former sheriff of Maricopa County, Ariz., who was pardoned by Trump after a conviction for criminal contempt of court; or I. Lewis "Scooter" Libby Jr., former Vice President Dick Cheney's chief of staff, convicted of perjury and obstruction of justice in connection with the leak of a CIA officer's identity.

These pardons, Kaine said, are "almost like messages to others: 'Hey, stick with me and I'll pardon you if you don't say anything bad about me.' "

While Kaine is critical of presidents for taking on powers not explicitly conferred by the Constitution, the senator said he's even more critical of a Congress that abdicates its authority to push back. "When Congress abdicates, we just allow this to happen. And Congress has been abdicating — and frankly it's been a bipartisan problem for too long," he said.

Ultimately, Kaine said he believes Congress has let the balance of power between the branches of government become disturbed. "We've let power that was supposed to be at one end of Pennsylvania Avenue run down to the other end," Kaine said. "There's got to be a balance, and we need to reclaim some of it."

Kaine said he is hopeful a bipartisan solution is possible. Trump's attempts at asserting authority is "making a lot of us grapple with the fact that Congresses of both parties under presidents of both parties have let the balance get out of whack," he said.

But Kaine acknowledged that for some Democrats, complaining about executive overreach might be a matter of what he called "situational ethics." There's a possibility, he said, that they might turn a blind eye if presumptive Democratic presidential nominee Joe Biden wins office. "When I was raising real concerns about President Obama's decision to unilaterally engage in military activity, Democrats in my own Senate caucus were basically yelling at me and telling me to knock it off," Kaine said.

That said, given Biden's decades of experience in Congress, Kaine said he is confident a Biden presidency would take pains not to engage in political overreach that tramples over the legislative branch. Biden has "a completely different attitude toward the role of the Article I branch than President Trump does," Kaine said.

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We wanted to spend some time talking about presidential power. How much should a president have? In recent weeks, there has been a lot of focus on how this president wields authority, and not just what he boasts about but what he actually does. The question arises again because of recent actions taken by the Justice Department to remove a high-profile prosecutor who has been investigating the president's allies and to withdraw a guilty plea entered by another.

But the question has arisen long before this president, so we've called somebody who has previously raised objection to the expansion of presidential authority. We're talking about the former vice presidential candidate and Virginia Senator Tim Kaine. Senator Kaine is a Democrat and has been a leading voice raising objections about executive authority under both the Obama and Trump administrations. And he is with us now.

Senator Kaine, welcome back. Thank you for joining us.

TIM KAINE: Good to be back with you, Michel. Thanks.

MARTIN: Well, the particular reason we called you is obviously the president's moves through the Justice Department, I would say, the Justice Department removing this prosecutor in the Southern District of New York, the president backing him up on that. And this has raised questions about whether this - the Justice Department has been politicized. But, as you certainly know, the concern has been that this president has been wielding executive authority in a manner that just was not intended by the founders. And this is just seen as yet another example of that.

And there have also been a number of high-profile court decisions this week that raise these questions as well. So the first question I have is, how long-standing is your concern about this? And it is not limited to the Trump administration.

KAINE: Oh, not at all. In fact, there are areas where I think President Trump is grabbing congressional power that really doesn't rightfully belong to the president, but he's doing it in ways that Democratic and Republican presidents have done it. And then there are some things that he's doing that are very unique, that he's done that nobody else would have even thought about doing.

In the former, President Trump asserts, as did President Obama, President Bush and many presidents, that they can take the nation to war without the vote of Congress, even, though Article 1 clearly says you need a vote of Congress to initiate war. And then a second power that many presidents have taken with congressional approval is the power to do trade wars and impose tariffs. Under the Constitution, trade is for Congress, not the president.

In both of these areas, though, I blame Congress more than the president. I think the presidents take these powers, but Congress has basically just allowed them to. And I've been trying since I got to Congress in 2013 in the Senate - I've been trying to get Congress to reclaim some of these powers.

MARTIN: Well, you have succeeded as, you know, few have in this current, you know, polarized era in getting some Republican support to express objections, specifically when - in areas of military action, where you feel that the president has overreached. But those have been very rare occurrences. I mean, why do you...

KAINE: Yeah.

MARTIN: ...Think that is?

KAINE: Well, I think war is one that really causes people to look in the mirror - you know, the prospect of another war in the Middle East. The two times I've used a procedure under the War Powers Resolution to try to rein in the president, one dealing with the U.S. participation in the civil war in Yemen, and second, the prospect of another war in the Middle East against Iran, I do think Republicans are, like, you know, war's a big deal. And I'll get eight to 10 Republicans to join with Democrats to try to put checks against the president.

But in many other areas, as you point out, the president is taking money out of the defense budget to use for a border wall. We can't get Republicans to say, hold on a second - Congress is the appropriator. The president often won't allow witnesses to come and testify before congressional hearings. The president is doing some very, very dangerous things, in my view, that are even out of character with what any other president has done.

MARTIN: The courts have objected - I mean, at the Supreme Court, President Trump's authority was challenged when the court ruled to extend, at least for now, the Deferred Action for Childhood Arrivals program, which allows people brought to the U.S. without authorization as children to stay and work in the United States.

And the president - and the U.S. Court of Appeals for the Ninth Circuit just on Friday ruled that the administration's use of Pentagon funds to build a wall along the U.S.-Mexico border is illegal. So two instances in which the courts have stepped in - I mean, do you interpret that as a sign that the third coequal branch of the government is trying to reassert authority?

KAINE: I believe so, although it's a mixed sign. You know, the border wall case, the Ninth Circuit said the president couldn't take funds from the military to use for a non-military emergency. The Fifth Circuit, though, has held the opposite. But, Michel, even if the courts - the Article 3 branch is exercising its prerogative, the Congress shouldn't be allowed to abdicate its responsibility. This - you know, I want a Congress that fully occupies Article 1 and a president who fully occupies Article 2 and courts that, you know, do what they need to do.

But I sometimes worry if I go to colleagues on the Armed Services Committee, Republican colleagues, and say, wait. We just appropriated this money for the Pentagon. You don't want to let this president just take it willy-nilly away to use it for something else. I think if they say, well, we'll let the courts figure it out - no, we need to figure it out.

I - in some ways, while I'm critical of presidents for taking on these powers that aren't really theirs, I'm more critical of Congress. When Congress abdicates, we just allowed this to happen. And Congress has been abdicating, and frankly, it's been a bipartisan problem for too long.

MARTIN: If a Democrat takes office next year, isn't there going to be pressure from Democrats to take aggressive moves to counteract things that this administration has done?

KAINE: Yeah. You would certainly be right to worry about some situational ethics where the people complaining on my side about President Trump would suddenly turn a blind eye to a Democratic president doing some stuff. And look. When I was raising real concerns about President Obama's decision to unilaterally engage in military activity, Democrats in my own Senate caucus were basically yelling at me and telling me to knock it off.

However, here is something I see. The Democratic nominee who I believe will be president is Joe Biden. He was in the Senate for 30 years. This is a guy who really understands the Article 1 branch. Now, he's going to want to be a full Article 2 president for sure. And he'll want to use executive orders, as presidents have, legitimately. But I do think that a Vice President Biden will have a completely different attitude if he's president - he'll have a completely different attitude toward the role of the article on branch than President Trump does.

MARTIN: That was Senator Tim Kaine. He's a Democrat from Virginia. Senator Kaine, thanks so much for talking to us once again.

KAINE: Yeah, Michel - so glad to do it. Look forward to talking soon. Transcript provided by NPR, Copyright NPR.