What It Means to Trust and Believe Women

by Chris Edelson, assistant professor of government, American University School of Public Affairs

For much of American history, legal rules and cultural norms have deemed women unworthy of trust or responsibility.  The law often treated women as children, incapable of carrying out adult duties. Women did not have the right to vote until 1920. It took until 1961 for the Supreme Court to strike down laws automatically excluding women from jury duty.   Until 1979, state laws made it legally impossible for a husband to rape his wife. In the early 19th century, the doctrine of “coverture” provided that a married woman did not have legal status separate from her husband.  In the eyes of the law, married women were not their own person.  Women were barred—by law or by practice—from professions like law, medicine, and politics.

We like to think those days are long behind us, that women are no longer second-class citizens relegated to a separate, lesser sphere. But it may be difficult, especially for men, to recognize the ways in which significant problems linger.

The recent flood of stories about sexual assault and harassment has pulled back the curtain—in ways that are often painfully obvious but also sometimes harder to see. When women have come forward with allegations of sexual assault or misconduct by powerful men, they are often ridiculed, slandered, dismissed, or simply not believed. One of the dozens of women who described being sexually assaulted and harassed by Harvey Weinstein wore a wire to record incriminating comments; prosecutors did not bring charges.  Four women have accused Roy Moore of sexual assault, attempted rape, or groping. Moore has called this a political witch hunt and the ultra-right wing Breitbart News sent reporters to Alabama in an effort to “discredit the women”.  17 women have described being assaulted, groped, or harassed by Donald Trump. Trump called them liars and threatened to sue them after the election. He never sued, but he was elected president, and the womens’ charges have largely been ignored (though one of the women, Summer Zervos, has filed a defamation lawsuit against Trump).

Even when multiple women come forward with highly credible allegations, it is quite possible nothing will happen—or, more accurately, nothing will happen to the man they accuse. The women who describe what happened to them can expect to be publicly smeared and derided. The focus is on whether to believe their accounts—even when the stories they tell are persuasive, specific, and corroborated.

This of course reminds us what hasn’t changed. A contest between one blustering, disingenuous man and multiple, even dozens, of credible women somehow becomes an even match—or even one where the women lose. Women still know that they cannot count on being trusted or believed. No wonder so many do not immediately come forward with their accounts.

There may be, however, cautious reason for some hope. Some Republicans in Congress have decided that the women accusing Moore can be trusted. Senate majority leader Mitch McConnell (R-KY) bluntly concluded that “I believe the women”. When Leeann Tweeden said that Sen. Al Franken kissed and groped her in 2006 without her consent, Senate Democrats condemned Franken’s behavior and called for an investigation.  These are important first steps, though it is not enough. First, it remains to be seen whether there will be any consequences for Roy Moore or Al Franken. With Franken in particular, it may be his word against Tweeden’s, unless additional women come forward. Will her account be dismissed with the tired “he said, she said” rationale? Second, and more broadly, it’s essential to consider what it means to really believe and trust women. Sen. McConnell is right that men should believe women when they come forward with credible accusations of sexual assault and harassment. But men must also trust women when they say they can decide what happens to their body during pregnancy, or whether they should have access to contraception.  And, most centrally, men should welcome and support the long overdue necessity of equal representation for women in elected office, on the federal and state bench, in corporate boardrooms, and across society.  When that happens, maybe it won’t be necessary any longer to wonder whether men will believe or trust women.  Women will be able to ensure, by themselves, that their voices have power and consequence.

Exploring the Limits of Presidential Power

by Chris Edelson, Assistant Professor of Government, American University School of Public Affairs

In March 2009, about a month after President George W. Bush and Dick Cheney left office, Scott Horton declared that “[w]e may not have realized it, but in the period from late 2001-January 19, 2009, this country was a dictatorship.  That was thanks to secret memos crafted deep inside the Justice Department that effectively trashed the Constitution.”  Some of the most infamous of these memos were drafted by John Yoo, an Office of Legal Counsel attorney from 2001-2003.  Yoo and others – most notably, Cheney’s counsel, David Addington – advanced the unitary executive theory, a theory of presidential power Cheney had personally favored for decades.

The unitary executive theory, as implemented by the Bush administration, was claimed to justify effectively unchecked presidential power over the use of military force, the detention and interrogation of prisoners, extraordinary rendition and intelligence gathering.  According to the unitary executive theory, since the Constitution assigns the president all of “the executive power”, he can set aside laws that attempt to limit his power over national security.  This is an enormous power: critics charge that it effectively places the president above the law.  Advocates of broad presidential power argue it is necessary to defend the nation against the threat posed by terrorism.

In the fall of 2009, I was designing a new class on presidential national security power—what I call “emergency presidential power”.  I call it “emergency” power because presidents have often claimed the need for extraordinary power during emergency or crisis—whether real or contrived.  Such power has sometimes been wielded unilaterally, sometimes with congressional authorization—or, perhaps it would be better to say, claimed authorization.

I was interested in providing a way for students to understand and assess the ways in which presidential power has been used since 9/11.  In order to do this, I wanted to begin by providing historical context, starting with the origins of the Constitution and continuing by examining the historical use of emergency presidential power before the September 11 attacks.  This would provide a useful way to understand what had happened after 9/11, and to consider whether the Bush administration had acted legitimately.

I did not intend to present a specific argument as to the best way to define emergency presidential power.  Instead, I wanted to present students with the evidence and the arguments made by both sides.  How had the Bush administration justified its actions?  How had critics responded?  Who had the best case—taking the text of the Constitution, historical evidence, judicial precedent, and interbranch practice into account?  As I planned for the course, I looked for a textbook I could use.  When I couldn’t find anything that looked like an exact fit, I decided to design my own materials.

Over the past four years, those materials developed into Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror.  The book begins with foundational materials – the Constitution itself and its origins, the Federalist Papers, Washington’s Neutrality Proclamation and the related Pacificus-Helvidius debate – followed by presidential practice since Washington.  I discuss the odd history of the sole organ doctrine, the question as to whether Lincoln constitutionalized Lockean prerogative, Roosevelt’s actions during World War Two, Truman during the Korean War, and Nixon’s use of power against his critics and political opponents. Historical discussion sets the stage for examination of the post 9/11 presidency, beginning of course with the Bush administration.  Along the way, I have added chapters about the Obama administration.  As a candidate, Barack Obama criticized the Bush administration’s approach to emergency power and promised to restore the rule of law.  As president, Obama and executive branch lawyers have found ways to justify broad presidential power, for instance by unilaterally authorizing military action in Libya and ordering the killing of Anwar al-Awlaki, a U.S. citizen and AQAP member who the administration said had taken an operational role in planning attacks against the United States.  (The Syria episode took place too late to include in this book).

The book provides students, and anyone interested in the debate over the scope and limits of emergency presidential power, with the raw materials needed to make sense of the debate.   It is essential, of course, to understand scholarly perspectives, and I explain the differences between scholars like Louis Fisher, who emphasizes checks and balances, the need to place presidential power under the rule of law, and Adrian Vermeule or Eric Posner, who argue that presidential power cannot be, and should not be, restrained by the rule of law.

Harold Koh is a scholar who earned a reputation as a critic of unrestrained presidential power and, before 2009, would have been associated with the Fisher camp.  In 2008, Koh predicted that, when it comes to the rule of law, “the last eight years are far less important than the next [eight] years.”  I think he was right, but I am not sure yet what the verdict is.  More than five years after Koh made his statement, the question today is whether the Obama administration (in which Koh served as an executive branch lawyer) has, in fact, taken a substantively different approach than the Bush administration when it comes to defining presidential power.   That will continue to be a central question as President Obama finishes his second term, and when future presidents take office.  As the amorphous “war on terror” continues on, with no clear end in sight, the essential problem for constitutional democracy will be whether executive branch officials, lawyers, and scholars can find ways to ensure that presidents have the ability to defend the nation while also ensuring that power is limited by the rule of law.  I hope that this book provides some ways to think about this problem, and to arrive at some satisfactory solutions.