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$Unique_ID{bob01089}
$Pretitle{}
$Title{Iran-Contra Affair: The Report
Chapter 27A Rule of Law}
$Subtitle{}
$Author{Various}
$Affiliation{}
$Subject{government
congress
funds
money
power
law
constitution
executive
branch
control}
$Date{1987}
$Log{}
Title: Iran-Contra Affair: The Report
Author: Various
Date: 1987
Chapter 27A Rule of Law
SIR THOMAS MORE: The law, Roper, the law. I know what's legal not
what's right. And I'll stick to what's legal . . . .
WILLIAM ROPER: So now you'd give the Devil benefit of law!
MORE: Yes. What would you do? Cut a great road through the law to get
after the Devil?
ROPER: I'd cut down every law in England to do that!
MORE: Oh? And when the last law was down, and the Devil turned round on
you - where would you hide, Roper, the laws all being flat? This country's
planted thick with laws from coast to coast - Man's law, not God's - and if
you cut them down - and you're just the man to do it - d'you really think you
could stand upright in the winds that would blow then?
- A Man For All Seasons by Robert Bolt
Too many laws were "cut down" in the Iran-Contra Affair by officials who,
like Roper, decided that the laws inhibited pursuit of their goals.
This process began when members of the National Security Council staff
decided "to take some risks" with the law, in John Poindexter's words, in
order to continue support for the Contras. At the end, as Oliver North
acknowledged, they were engaging in conduct such as lying to Congress that
they knew was plainly "wrong."
The Committees were charged by their Houses with reporting violations of
law and "illegal" or "unethical" conduct, and if the Committees are to be
true to their mandates, they cannot hesitate to draw the inevitable
conclusions from the conduct these officials displayed during this affair.
The judgments of these Committees are not the same as those required of
the Independent Counsel. He must decide whether there was criminal intent
behind any violation, whether there are any extenuating circumstances, and
whether prosecution is in the public interest. The Committees express no
opinions on these subjects and our comments in this section are purposefully
general so as not to prejudice any individual's rights. Our focus is not on
whether the technical and demanding requirements of criminal statutes have
been met, but on whether the policy underlying such statutes has been
frustrated. Moreover, the list of statutes implicated by the Iran-Contra
Affair is not exhaustive.
Because of the importance of the Boland Amendment to this investigation,
this Report considers the applicability of that Amendment to the NSC in a
separate chapter. The only issue under the Boland Amendment that is addressed
in this chapter is the legality of the diversion. The Boland Amendment aside,
however, the Committees find that activities in the Iran-Contra Affair,
including the diversion, were conducted and later covered up by members of the
NSC staff in violation of the Constitution and of applicable laws and
regulations.
Use of Donated Funds to Evade Congress' Power of the Purse
Overview
The Committees find that the scheme, taken as a whole, to raise money to
conduct a secret Contra-support operation through an "off-the-shelf" covert
capacity (the Enterprise) operating as an appendage of the NSC staff violated
cardinal principles of the Constitution.
Several witnesses at the public hearings contended that the covert action
to support the Contras did not violate the Boland Amendment because it was
financed by contributions, not appropriated funds. The Boland Amendment by
its terms, they maintained, only prevented the President from spending
appropriated funds to support the Contras. But that ignores a greater
principle. The Constitution contemplates that the Government will conduct its
affairs only with funds appropriated by Congress. By resorting to funds not
appropriated by Congress - indeed funds denied the executive branch by
Congress - Administration officials committed a transgression far more basic
than a violation of the Boland Amendment.
The power of the purse, which the Framers vested in Congress, has long
been recognized as "the most important single curb in the Constitution on
Presidential Power." The Framers were determined not to combine the power of
the purse and the power of the sword in the same branch of government. They
were concerned that if the executive branch had both the power to raise and
spend money, and control over the armed forces, it could unilaterally embroil
the country in war without consent of Congress, notwithstanding Congress'
exclusive power to declare war.
When members of the executive branch raised money from third countries
and private citizens, took control over that money through the Enterprise, and
used it to support the Contras' war in Nicaragua, they bypassed this crucial
safeguard in the Constitution. As Secretary of State George Shultz testified
at the public hearings: "You cannot spend funds that the Congress doesn't
either authorize you to obtain or appropriate. That is what the Constitution
says, and we have to stick to it."
The Power of the Purse and the Constitution
Article I, Section 9, Clause 7 of the Constitution, the appropriations
clause, provides:
No money shall be drawn from the Treasury, but in consequence of
appropriations made by law.
The appropriations clause was intended to give Congress exclusive control of
funds spent by the Government, and to give the democratically elected
representatives of the people an absolute check on Executive action requiring
expenditure of funds.
The Framers viewed Congress' exclusive power of the purse as intrinsic to
the system of checks and balances that is the genius of the United States
Constitution.
James Madison, the principal architect of the Constitution, explained:
The House of Representatives alone can propose the supplies requisite for the
support of government. They, in a word, hold the purse . . . . This power of
the purse may, in fact, be regarded as the most complete and effectual weapon
with which any constitution can arm the immediate representatives of the
people for obtaining a redress of every grievance, and for carrying into
effect every just and salutary measure.
Col. George Mason, another Constitutional Convention delegate, stated, ". . .
the purse and the sword ought never to get into the same hands, whether
legislative or executive."
This concept has been a guiding constitutional principle for 200 years.
As President Reagan stated at an October 22, 1987, press conference: "The
President of the United States cannot spend a nickel. Only Congress can
authorize the spending of money."
Congress' exclusive control over the expenditure of funds cannot legally
be evaded through use of gifts or donations made to the executive branch.
Were it otherwise, a President whose appropriation requests were rejected by
Congress could raise money from private sources or third countries for armies,
military actions, arms systems, and even domestic programs.
The Government may, of course, receive gifts. However, consistent with
Congress' constitutionally exclusive power of the purse, gifts like all other
"miscellaneous receipts" must, by statute (31 U.S.C. Section 484) be placed
directly into the Treasury of the United States, and may be spent only
pursuant to a Congressional appropriation. [The significance of this
proposition is explained in a major General Accounting Office publication on
Appropriations Law, which serves as a guide for Government officials: "Once
money is deposited into a "miscellaneous receipts" account, it takes an
appropriation to get it back out. E.g. 3 Comp. Gen. 296 (1923); 2 Comp. Gen.
599,600 (1923). Thus, the effect of 31 U.S.C. Section 484 is to ensure that
the executive bra