Abner Mikva Interview: Conversations with History; Institute of International Studies, UC Berkeley

Politics, Values and the Separation of Powers: Conversation with Abner Jay Mikva, former congressional representative from Illinois, former appellate judge, former counsel to the president; 4/12/99 by Harry Kreisler
Photo by Jane Scherr

Page 5 of 6

Counsel to the President

Your third position was as Counsel to the President of the United States in the Clinton administration. What did you learn from that brief stint in the executive branch?

I learned it wasn't as easy to get 250 million people to move in the same direction as I used to think it was when I was in Congress or a judge.

Maybe it was easier then.

It was easier because as a congressman I could reach my constituency. It was four or five hundred thousand people. I had a newsletter and I would campaign. I could pretty much understand where they were going. Even if I was swimming upstream, I knew what I was swimming upstream about and I knew where my supporters were and I knew where my opponents were. As a judge, it was simple. I wasn't there to make policy. I was simply supposed to interpret the statutes that others made, review the orders of the executive branch handed down through its agencies, and just be an umpire rather than a policy maker. But in both those positions, it was easy to criticize the executive branch, and I did, because it always seemed that the decisional process was so ephemeral, so unorganized, so disorganized. You would have one agency going this-a-way and another agency going that-a-way. You would have a president just sort of hamstrung, not making any decisions on anything. You would have the country sometimes just sort of drifting into positions by accident. As I say, as a congressman, I could write angry letters to the Pentagon, or to the FBI or to the White House saying, why don't you do so and so and so and so.

Mikva with President Clinton and Attorney General Janet Reno, 1995 When I got to the White House, I realized that the president is trying to speak to all 250 million of us. And we have lots of different views. How you establish enough of a consensus to bring the country with you so that you are not just out there by yourself is a lot more difficult process than I thought it was.

And is it a lot more difficult process than it was when you were, say, in the Congress looking at the presidency?

I think so, I think that the communication process is so much more instantaneous and so much more far-flung. When I first was elected to the Congress, and certainly when I was elected to the legislature, television was in its infancy and it wasn't that big a factor in elections or in molding public opinion as it is today. We had some talk shows that were on both television and radio that had an inordinate effect on the political process, but not anywhere near as many as we do now, where people's views are molded by what is said on Sunday morning. Some of these shows are populated by "instant experts" who never thought about the problem until five minutes before they go on the television show. Its very hard to move public opinion when you have these communication forces which are not within the presidential control and shouldn't be, but which just sort of get the American people to glom onto a position without a lot of thought, without a lot of careful preparation, and frequently, without a lot of facts.

One example I would use is the question of whether or not we should have what was called Reagan's Star Wars, the missile defense system. Experts have told me when I was in Congress, when I was on the court, and even when I was at the White House that there is no way the defense can keep up with the offense, and that's true of any defensive system. The Great Wall was a wonderful defensive system until they invented the horse. The Maginot Line was a great defensive system until the Blitzkrieg. The Nike [missile] sites that we had in many of our parks and internal places in the country were a great defense system until they invented the [MIRV] missile. I just don't think that the defense can ever keep up with the offense, and therefore spending a lot of money on this Star Wars system without being able to see what it is we are defending against and how effective it will be is a great mistake. But Ronald Reagan was able to move it very fast because he would make these very emotional pleas on television or during the State of the Union addresses or other times about how we needed this to protect ourselves against "the Ruskies." Now President Clinton is moving in that same direction; he has a little harder job explaining who it is we are protecting ourselves against, because it's not the Russians anymore. Nonetheless, people are making up their minds for or against it without really knowing a lot of the facts, without really recognizing what the alternatives are. If we put that kind of money into this Star Wars system, it's going to be at the expense of doing something else that some people would like to do, whether it's schools, or Social Security, or the environment. These points of view are influenced so quickly and so dramatically by television and the other communications media.

In your job, the biggest item on your desk must have been what was then called Whitewater and ultimately became the impeachment of President Clinton. What do you see as the political consequences of this ordeal that we've just gone through?

It obviously has not had an effect on President Clinton's popularity except maybe it has made it go up. I don't think it's because the majority of the American people approve of his behavior, but they sort of resent what appeared to be a political effort on the part of the Republicans to undo the 1996 election by removing President Clinton through the impeachment process.

I can't really predict what's going to happen in the 2000 election. I think there will be some individual congressional districts that will be influenced by how members voted, particularly if they voted for the impeachment and for the removal. But I can't predict what effect if any it's going to have on the presidential election. The one prediction that I sadly would make is that it has diminished the people's respect for the institutions of government, all the institutions -- the Congress, the courts, and the presidency. We had no heroes come out of this impeachment process. Unlike the Watergate activities back in the seventies, where even though the presidency was disgraced, Richard Nixon resigned in disgrace, the Congress came out with heroes -- they were perceived to be the good guys. The courts came out with heroes -- we made a household name out of a district judge named John Sirica. There are no counterparts to that in this impeachment procedure. And I find that very sad.

Do you think the presidency itself has been especially hurt? There have been a number of court decisions in the course of this ordeal, for example on Executive Privilege, that suggests that there will be long-term consequences for that institution.

I think that the consequences thus far, as far as the court decisions are concerned, are very, very bad. You mentioned Executive Privilege. I think that a president and his advisors have to realize that from here on in, anything they say or do is going to be subject to inquiry, not only by Congress, but also by grand juries; that there really is no privilege as far as advice you give to the president or that the president seeks. That makes it a lot harder for the president to get the different kinds of views that he ought to get when he is making these monumental decisions.

I think that some of the smaller things are going to loom large in the presidential horizon. For example, the court holding that there is no privilege on the part of the Secret Service in terms of disclosing what it is they [prosecutors] seek. Presidents notoriously resist the desire of the Secret Service to protect the president as much as they think is necessary. I saw President Clinton resist many of the things the Secret Service wanted to do. I remember the argument that went on for weeks before he would agree to letting Pennsylvania Avenue be closed up. Because no president likes to be isolated from the people or feel that at his every move he is being surrounded by guards. He can never work a rope line. He can never press the flesh. He can never look at somebody and talk to somebody. I think that the fact that the courts have held that there is no Secret Service privilege means that the presidents are going to be that much more resistant to the efforts of the Secret Service to protect them. I think there is going to be a substantial impact on the presidency from the courts holding that the president is not immune from being sued while he is in the White House. While this president was sued by Paula Jones, I think future presidents will find somebody that wants their fifteen minute of fame by suing the sitting president. If that court decision stands, it's going to mean there will be this chaos going on continually.

The bottom line, as you said earlier in a presentation at the Institute of Governmental Studies, is that this was a political fight, one branch of the government going after another. Does it bother you that so much of the discussion was really in legalese -- lawyers debating -- which in some ways obfuscated what was going on?

Yes, but it is inevitable, because the impeachment article sounds like it is a legal process. We inherited it from the British just about the time they were abandoning it. I think that their last impeachment was in 1807. We put it in our Constitution in 1787. They abandoned it because it was political process couched in legal terms. The prime minister at about the time they abandoned it said "If you want to bring down the government, use the political tools to bring it down. Offer a vote of no confidence and that will bring down the government, but don't pretend there is some legal problem with my ministers." Well, we put it in with that same lack of precision that the British had used it. The key words in the American impeachment process are "high crimes and misdemeanors." That sounds like a legal term, but you can't parse it as a legal term because "high crimes" sounds like something serious -- treason, bribery -- but misdemeanors are traffic tickets. And which do you mean? So the result is, we don't mean either of those, what we mean is political behavior.

I told earlier about the incident --

I was in the Congress when then-Congressman Gerry Ford was trying to impeach a Supreme Court justice who was unpopular with the conservative points of view. My colleague, a congressman from Indiana, and I kept badgering Congressman Ford, who was a lawyer but had not practiced law very much, and we thought we could joust with him easily. We kept demanding that he give us some legal definition of what high crimes and misdemeanors meant. Did it mean traffic tickets? Did it mean minor offenses such as is meant by misdemeanors? He fumbled and hemmed and hawed and finally he said, "I'll tell you what is an impeachable offense. An impeachable offense is anything that 218 members of the House say it is," which is the majority of the House. And in retrospect, he was right. Because basically, the impeachment process is the process by which one political branch, the Congress, decides to superimpose its view on the other political branch, the presidency, to the point of trumping, negating, the previous presidential election. And that's a political process. You can't make that a legal process no matter how hard you try. It's too dangerous.

In this particular case, its seems some of the actors were willing to burn the White House down, figuratively.

Well, there are people who are very, very angry with this president. Angry to the point of being willing to engage in irrational behavior. It's the only way I can explain it. Obviously, the less successful they were, the angrier they got. I think it frustrated some of the House leadership and House managers to know that the more they attacked President Clinton, the more popular he became. Indeed, his popularity numbers, his approval numbers, are higher than he would have any reason to hope for, were it not for the fact that a lot of American people think that he was persecuted by the Republicans in Congress and their way of objecting to it was to show the flag.

Next page: Advice to Students

© Copyright 1999, Regents of the University of California