Following ABC's Stephanopoulos, NBC's Williams used partial Alito response to suggest Alito rejected strong executive power

››› ››› RAPHAEL SCHWEBER-KOREN

Covering the nomination hearing of Supreme Court nominee Samuel A. Alito Jr., NBC News correspondent Pete Williams asserted that "Alito himself told the senators this week that a president does not have the power to disregard a law." But Williams based this on only a part of a response Alito gave on the issue of presidential power. In fact, Alito's entire response on the issue constitutes a legal truism that tells senators nothing about his views on presidential power versus congressional power -- that the president cannot disregard a law that is constitutional. Simply put, Alito told the committee that the president has to follow the law except when he doesn't have to.

During the January 13 broadcast of NBC's Nightly News, NBC News justice correspondent Pete Williams presented only part of the response Supreme Court nominee Samuel A. Alito Jr. gave to questions at his Senate hearing, and from that partial response, Williams asserted that "Alito himself told the senators this week that a president does not have the power to disregard a law." But Williams left out the rest of Alito's statement on presidential power: The president does not have the power to disregard a law -- that is constitutional. Put simply, as Media Matters for America has previously noted, Alito told the committee nothing it didn't already know -- that the president has to follow the law except when he doesn't have to. Far from the pronouncement on the relative powers of Congress and the president that Williams claimed, Alito's responses to Sen. Patrick Leahy (D VT), when taken in their entirety, amount to a legal truism that told senators nothing about his views on particular statutes or particular presidential actions: that a president is bound by congressional statutes except when Congress has exceeded its constitutional authority in passing those statutes.

Williams's selective quoting echoed a similar distortion on January 12 by ABC chief Washington correspondent George Stephanopoulos, who cropped a key part of an Alito quote to falsely suggest that the nominee had "backed away from past statements suggesting a supremely powerful president."

Williams's report first quoted from the testimony of "legal scholars" at Alito's Senate hearings "who warn[ed] that Alito seemed willing to endorse an expansive view of presidential power." He then followed up with Alito's response to Leahy during the January 10 hearings,* which Williams presented as contradicting the scholars' concerns about Alito's views on presidential power:

WILLIAMS: Alito himself told the senators this week that a president does not have the power to disregard a law.

ALITO [video clip]: No person in this country is above the law, and that includes the president, and it includes the Supreme Court.

In fact Alito's full set of responses to Leahy on January 10 show that he did not actually back off from previous statements in support of executive power. Leahy asked him about an August 2002 Justice Department legal memo -- which the department has since withdrawn -- written by Jay S. Bybee, the head of the Office of Legal Counsel, that stated that "[a]ny effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution's sole vesting of the Commander-in-Chief authority in the president. ... Congress can no more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield." Leahy asked Alito his view of the memo's conclusions:

LEAHY: What is your view -- and I ask this because the memo's been withdrawn; it's not going to come before you. What is your view of the legal contention of that memo that the president can override the laws and immunize illegal conduct?

ALITO: Well, I think the first thing that has to be said is that -- is what I said yesterday, and that is that no person in this country is above the law, and that includes the president and it includes the Supreme Court. Everybody has to follow the law, and that means the Constitution of the United States, and it means the laws that are enacted under the Constitution of the United States. Now, there can be -- there are questions that arise concerning executive powers, and those specific questions have to be resolved, I think, by looking to that framework that Justice [Robert H.] Jackson set out, that I mentioned earlier.

LEAHY: Well, let's go into one of those specifics. Do you believe the president has the constitutional authority as commander in chief to override laws enacted by Congress and immunize people under his command from prosecutions if they violate these laws passed by Congress?

ALITO: Well, if we were in -- if a question came up of that nature, then I think you'd be in -- where the president is exercising executive power in the face of a contrary expression of congressional will through a statute or even an implicit expression of congressional will, you'd be in that -- in what Justice Jackson called "the twilight zone," where the president's power is at its lowest point. And I think you'd have to -- you'd have to look at the specifics of the situation.

Under continued questioning from Leahy, Alito more fully stated his position that "[n]either the president nor anybody else, I think, can authorize someone to -- can override a statute that is constitutional":

LEAHY: But is that saying that there could be instances where the president could not only ignore the law, but authorize others to ignore the law?

ALITO: Well, Senator, if you're in that situation, you may have a question about the constitutionality of a congressional enactment. You have to know the specifics of the --

LEAHY: Let's assume there's not a question of the constitutionality of the enactment. Let's make an easy one. The -- we pass a law saying it's against the law to murder somebody here in the United States. Could the president authorize somebody, either from an intelligence agency or elsewhere, to go out and murder somebody and escape prosecution, or immunize the person from prosecution, absent a presidential pardon?

ALITO: Neither the president nor anybody else, I think, can authorize someone to -- can override a statute that is constitutional. And I think you're in this -- when you're in the third category under Justice Jackson, that's the issue that you're grappling with.

LEAHY: Why wouldn't it be constitutional for the -- or wouldn't it be constitutional for the Congress to outlaw Americans from using torture?

ALITO: And Congress has done that. And it is certainly -- it is certainly an expression of a very deep value of our country.

LEAHY: And if the president were to authorize somebody -- or say they would immunize somebody from doing that, he wouldn't have that power, would he?

ALITO: Well, Senator, I think the important points are that the president has to follow the Constitution and the laws. And it is up to Congress to exercise its legislative power. But as to specific issues that might come up, I really need to know the specifics. I need to know what was done and why it was done, and hear the arguments on the issue.

But, as Media Matters for America noted after Stephanopoulos's quote cropping, what Alito said is nothing more than a truism learned in the first year of law school: A president is bound to follow statutes that Congress had the constitutional authority to pass. Alito's statement only raises questions; it doesn't answer them. What is the scope of Congress' constitutional authority? What is the scope of the president's constitutional authority? Alito's statement says nothing about that balance of power, much less anything about his views on whether the president has the constitutional authority to authorize conduct that violates a congressional ban on torture.

During his report, Williams identified the same issue as critical to the controversy over Bush's statement upon signing the congressional ban on cruel, inhuman, or degrading treatment of detainees, "that he'd follow [that] law as long as it did not conflict with his constitutional authority to protect the American people from further terrorist attacks." Despite noting the president's statement, Williams still selectively used Alito's responses at the hearing to suggest that Alito had taken a position against the president, when, in fact, Alito had not done so.

From the January 13 broadcast of NBC's Nightly News:

WILLIAMS: The judiciary committee chairman, Arlen Specter [R-PA], today said he'll vote for Samuel Alito, whose confirmation now seems assured. But among today's final witnesses were legal scholars who warn that Alito seemed willing to endorse an expansive view of presidential power.

ERWIN CHEMERINSKY (Duke Law School professor) [video clip]: It's too dangerous to have a person like Samuel Alito, with his writings and records on executive power, on the United States Supreme Court.

WILLIAMS: They claim that President Bush has been especially eager to use the statements he makes in signing bills into law to limit their legal reach. Case in point, they say the president's statement two weeks ago, at his Texas ranch, in signing the congressional ban on torture. The president said he'd follow the law as long as it did not conflict with his constitutional authority to protect the American people from further terrorist attacks.

SEN. JOHN MCCAIN (R-AZ) [video clip]: Do we sacrifice our ideals --

WILLIAMS: Senator John McCain, who sponsored the bill, said it was never intended to contain any kind of waiver. And legal scholars testifying today said the president was trying to leave a big loophole.

LAURENCE TRIBE (Harvard Law School professor) [video clip]: That was understood to mean that he will decide in his unfettered discretion when the method of interrogation crosses the McCain line and is cruel and inhumane.

WILLIAMS: Alito himself told the senators this week that a president does not have the power to disregard a law.

ALITO [video clip]: No person in this country is above the law, and that includes the president, and it includes the Supreme Court.

WILLIAMS: And his defenders said today that a Justice Alito would not cave to demands from a president.

ANTHONY KRONMAN (Yale Law School dean) [video clip]: I have no reason to think that Judge Alito begins with a strong dispositional inclination to always favor governmental power.

*Alito initially made the statement that no one is above the law during his opening statement on January 9. But that statement was not what Williams quoted. In his opening statement, Alito said, "[T]here is nothing that is more important for our Republic than the rule of law. No person in this country, no matter how high or powerful, is above the law, and no person in this country is beneath the law."

Posted In
Government, Nominations & Appointments, The Judiciary
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NBC
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Pete Williams
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Supreme Court Nominations, Alito Nomination
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