Bloomberg Pledges Restraint on Executive Power but Reserves Legal Wiggle Room

“It would be unwise for me as a candidate for president to categorically rule out committing the armed forces in such circumstances,” he wrote. “I know that unforeseen circumstances can arise in matters of national security. But bypassing Congress should only be contemplated when action is necessary to protect the country and is limited in scope and duration.”

Bloomberg, the former mayor of New York, laid out his views in written answers to a New York Times survey of presidential candidates about their understanding of the scope of executive power on a range of issues that have arisen over the past two decades. The Times conducted the main survey last summer, before Bloomberg had entered the race.

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The Times has published Bloomberg’s full answers online, alongside those of 19 other current and former candidates — including those who have qualified for recent debates: Joe Biden, Pete Buttigieg, Amy Klobuchar, Bernie Sanders, Tom Steyer and Elizabeth Warren.

Jack Goldsmith, a Harvard Law School professor and former senior Justice Department official in George W. Bush’s administration, said that while many of Bloomberg’s responses were fairly conventional, his stated inclinations about when he would unilaterally use force abroad seemed narrower than recent presidents of both parties.

“While preserving wiggle room, the thrust is that the president should not use force except in cases of self-defense, pretty narrowly conceived,” he said. “That position would rule out Trump’s use of force in Syria in response to chemical weapons attacks, Obama’s use of force in Libya and in some strikes in Iraq, and some of the broader statements of self-defense power made during the George W. Bush administration.”

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The Times also asked Bloomberg to respond to a lengthy list of potential new legal curbs on executive power raised by previous norms of presidential behavior that Trump has violated or challenged.

Bloomberg said he would consider signing legislation to constrain presidents from dangling pardons “in a self-protective context,” appointing close family members to White House positions, intervening in pending Justice Department law enforcement actions, firing a special prosecutor who is investigating potential high-level wrongdoing by the executive branch and accepting nonfinancial assistance from foreign governments for political gain.

Notably, the potential overhauls he favorably singled out did not include several other issues raised by Trump’s behavior that might also affect Bloomberg, as a fellow wealthy businessman. They include the ability of a president to keep secret his or her tax returns, to engage in business transactions with foreign governments while in office and to choose not to divest from significant business holdings or place them into a blind trust.

On the main executive power questions, the answers provided by Bloomberg generally followed a pattern. He made strong gestures toward obeying norms of presidential self-restraint, not abusing power, and being reluctant to act based on extraordinary claims of executive power. But he also often left himself flexibility rather than unequivocally declaring steps to be legally off limits.

“The answers seem crafted to avoid raising any red flags for Democrats who have been repelled by the Trump administration’s claims of presidential authority — even if the answers don’t categorically refer to certain problematic past uses of executive power as unlawful,” said Peter Shane, an Ohio State University law professor and co-author of a separation-of-powers casebook.

For example, Bloomberg said he would be “extremely concerned” about detaining an U.S. citizen, arrested on domestic soil, in military custody as an enemy combatant rather than in the civilian criminal justice system — as the Bush administration did after the Sept. 11 attacks. But he stopped short of saying the Constitution would never let him do so.

Similarly, Bloomberg spoke critically of the practice of presidents issuing “signing statements” deeming parts of bills to be unconstitutional intrusions into their executive powers, even as they sign them into law. He said the right response to a flawed bill “is almost always to veto it, not to sign it and to say that it is unconstitutional.” But he reserved the right to use such statements in “very rare circumstances — which I hope would never arise.”

And Bloomberg largely sidestepped a question about the legitimacy of presidents claiming that their constitutional authority as commander in chief permitted them to lawfully override federal statutes — as Bush did in authorizing the National Security Agency and the CIA to bypass legal constraints on surveillance and torture, and Obama did in transferring five Guantánamo detainees to Qatar in the Bowe Bergdahl prisoner exchange.

While noting that each of those acts was “expressly contrary to acts of Congress,” Bloomberg did not rule out making a similar claim to bypass a law. Rather, he echoed a famous formulation for analyzing whether and when the president can override a law, by Justice Robert Jackson in a 1952 case striking down President Harry Truman’s seizure of steel mills.

“As president I would govern by the principle that presidential authority is at its zenith when authorized by both the Constitution and acts of Congress, and is at its weakest and riskiest when contrary to an act of Congress but somehow authorized by a broad reading of the Constitution,” Bloomberg wrote.

But he explicitly approved a disputed claim by the Obama administration legal team that it was lawful for Obama to order a drone strike that targeted and killed a U.S. citizen in Yemen, Anwar al-Awlaki, who had received no trial but had been deemed by executive branch officials to be an operational terrorist leader whose capture was infeasible.

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Bloomberg wrote that he “would have no hesitation to authorize lethal force” against someone like al-Awlaki.

Like several other Democratic candidates, Bloomberg criticized Attorney General William Barr, who is known for his maximalist interpretation of executive power, saying that he rejected “the current attorney general’s view of presidential authority.”

In particular, like many Democratic candidates, he spurned Barr’s view that obstruction-of-justice laws do not apply to a president who abuses his authority over the Justice Department in order to corruptly impede an investigation.

Bloomberg did not say whether he would maintain novel Espionage Act charges brought by Barr’s Justice Department against Julian Assange, the WikiLeaks founder, for soliciting, acquiring and publishing classified government secrets. Those are common acts for investigative journalism, whether or not Assange counts as a “journalist.”

But Bloomberg, the founder of Bloomberg News, otherwise issued a robust endorsement of press freedoms at a time when recent administrations of both parties have cracked down on leaks and Trump has regularly tarred reporters as “the enemy of the people.”

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Bloomberg pledged to vigorously protect the First Amendment’s rights of speech and press freedoms, saying they “are not negotiable.”

“They cannot be compromised,” he continued. “To me, the press is the friend of the people. Without commenting on particular cases, I would adopt a very strong presumption against any criminal cases against journalists.”

This article originally appeared in The New York Times .