Did President Trump Violate The Constitution With The Drone Strikes? – With General Boykin: Should Congress have been consulted before Trump took out Iranian General Soleimani? Or, would it have been irresponsible malfeasance to NOT take him out? Tune in to hear General Boykin answer these questions and more!

Air Date: 03/11/2020

Guest: General Boykin

On-air Personalities: David Barton, Rick Green, and Tim Barton


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Transcription note:  As a courtesy for our listeners’ enjoyment, we are providing a transcription of this podcast. Transcription will be released shortly. However, as this is transcribed from a live talk show, words and sentence structure were not altered to fit grammatical, written norms in order to preserve the integrity of the actual dialogue between the speakers. Additionally, names may be misspelled or we might use an asterisk to indicate a missing word because of the difficulty in understanding the speaker at times. We apologize in advance.

Faith and the Culture

Rick:

Welcome to the intersection of faith and the culture, that’s WallBuilders Live where you’re going to find that intersection of faith and the culture. You say, WallBuilders. What does that stand for? Well, it comes out of a scripture in Nehemiah, that says, arise and rebuild the walls that we may no longer be a reproach.

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More Resources Available Online

David Barton is America’s premier historian. He’s our founder here at WallBuilders. Tim Barton is a national speaker and pastor and president of WallBuilders. And my name is Rick Green. I’m a former Texas legislator and known as America’s Constitution coach. We love bringing these things to you here on WallBuilders Live.

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General Jerry Boykin is going to be our special guest in today’s program. And we asked general Boykin to come on the program, because one of our listeners send in a question and we typically do on Foundations of Freedom Thursday, all questions from you all out there that are listening. So, you can send in those questions, that can be about the declaration, the Constitution, founding principles, how do you apply all those? But what we do sometimes, there’s a question that will actually drive an entire program.

We had a question about President Trump taking out the Iranian official, Soleimani. And was that constitutional? Did he have the authority to do that? Was he outside of what he should have been doing? And look, we’re very adamant here at WallBuilders, that we’re going to hold a president’s feet to the fire.

Whether they are Republican or Democrat, we’re going to look at it from a constitutional perspective and we’re going to make sure that what they’re doing is constitutional. If it’s not, we’re going to call them out on that. So, let’s answer that question today. Was President Trump within his constitutional authority when he took out Soleimani?

Share Your Veteran’s Story

Let’s take a quick break. We’ll be right back with General Jerry Boykin to help answer that question. You’re listening to WallBuilders Live.

Hey, friends, if you’ve been listening to WallBuilders Live for very long at all, you know how much we respect our veterans and how appreciative we are of the sacrifices they make to make our freedoms possible. One of the ways we love to honor those veterans is to tell their stories. Here on WallBuilders Live, once in a while we get an opportunity to interview veterans that have served on those front lines that have made incredible sacrifices, have amazing stories that we want to share with the American people.

One of the very special things we get to do is interview World War Two veterans. You’ve heard those interviews here on WallBuilders Live from folks that were in the band of brothers to folks like Edgar Harrell that survived being Indianapolis to so many other great stories you’ve heard on WallBuilders Live. You have friends and family that also served.

If you have World War Two veterans in your family that you would like to have their story shared here on WallBuilders Live, please email us at radio@wallbuilders.com, radio@wallbuilders.com. Give us a brief summary of the story and we’ll set up an interview. Thanks so much for sharing here on WallBuilders Live.

Welcome General Jerry Boykin

Rick:

Welcome back WallBuilders Live, thanks for staying with us today. So good to have General Jerry Boykin back with us. Been too long, my friend, thanks for coming on today.

Jerry:

I am glad to be with you, Rick.

Rick:

Hey, you serve today as Executive Vice President of Family Research Council, you all do phenomenal work in every area of the culture all across the nation. We love you guys. Throughout your life, though you’ve had an incredible military career and obviously in and around the upper level decisions about things like what happened with the taking out of and I can never tell if I’m saying his name right, but Soleimani, is it.

Jerry:

Soleimani, Qasem Soleimani.

Rick:

Yeah, alright. So, we’ve had questions from our audience about whether or not the President, you know, should have done this on his own, does Congress need to be involved in all that? So, if you don’t mind, I’m just going to read your question for one of our listeners and then we’ll go for it. He said, “€œMy question is related to all the hubbub from the democrats regarding President Trump’s issuance of orders to attack Soleimani. Does the constitution require congressional approval, authorization for such actions? Thanks for all you guys do to educate the people, to strengthen our country.”€ From David in League City, Texas. So, David, you’re not alone.

President Obama Ordered an American Citizen Be Killed

A lot of folks have been asking about this. And yeah, General, man, I mean, you would have thought the President had just completely gone outside the Constitution and gone rogue and all that good stuff, the way the media responded to what seems like was a good thing for our troops in taking out this guy that he killed so many of our folks.

Jerry:

Yeah. Do you remember in 2011, when President Obama ordered the killing of Anwar al-Awlaki, an American citizen and American Imam? In fact, the guy that was the Imam in the church that radicalized a guy that did all the shooting at Fort Hood, Texas, Malik Nadel Hassan, Major US Army. He was taken out by a drone and I don’t remember any of this.

Rick:

None of this hubbub happened then.

Jerry:

No. And he was an American citizen. So, the hubbub, the noise about this is all political. It is just all political. If it had been anybody other than Donald Trump, it wouldn’t have been an issue. But that then brings us back to, okay, so what’s the legality and the constitutionality of this? You know, the by Article 2, Section 2 of the Constitution, the President is the commander in chief. That means he is in charge of the military. He has ultimate authority over the military. This War Powers Act that is being cited was passed in 1973 in an administration that was under a lot of pressure and that was the Nixon administration because of the Watergate and all.

Restricting Article 2 Powers

And what they were trying to do on a bipartisan effort was to restrict that President or any future President from getting into another 10 year war without at least congressional approval for the expenditures of that war. And”€¦

Rick:

That one be in Vietnam, right?

Jerry:

That would have been in Vietnam. And even though he vetoed it, it was overruled, the veto was overruled. But if you look at what has unfolded since that was passed in 73, you will see that there is an ongoing debate about its constitutionality and what it really means and how it should really be applied. And each president has applied it in a slightly different way.

And if you go back to, for example, of Barack Obama’s time in office and we started bombing in Libya. At the end of the 60 days, when the War Powers Act allegedly says you either have to cease or you have to get congressional approval, when that time came, Barack Obama unilaterally declared it to be unconstitutional. And there has not been a rigid adherence to this. And I’ll say this just as a last comment.

Just Two Minutes to Decide

Had the United States President known that this man, Soleimani was where he was in that two minute period and had not taken him out, as far as I’m concerned, it would have been malfeasance on the part of the president. Because Soleimani had just attacked with his forces, the Quds force, an escalation that killed two Americans. And then his forces had overrun the US embassy and set it on fire. And he was back in Iraq again and we knew that he was there and we knew we had a two minute window to take him out. It would have been irresponsible malfeasance on the part of the President, had he not reduced this threat.

Rick:

He would not have been defending the country at all and actually putting more of our troops in harm’s way, our ambassadors and others in harm’s way in the future as well. And you mentioned, I mean, short window here. You’ve been in those meetings where these kind of things happen. I guess this wasn’t, I mean, he had to make a decision pretty quick on this, I’m assuming.

Jerry:

He absolutely had to make a decision quickly. And what that really means is, he had to give the forward commander the authority that once you can confirm that he’s there, you have my authority to take him out.

Why Notify Your Enemies?

Because again, two minute window, a two minute window and that is the norm. Sometimes it’s less than that. Which also is, you know, comes into play when you talk about, well notify Congress. Well, we all know, let the people in Congress know. Did anybody watch the impeachment? Did anybody watch the leaks that were coming out of the impeachment? Is that really the body that you want to notify, particularly if US forces are going to be placed into a vulnerable situation and you want to go tell people that are going to leak it for political purposes to embarrass the president? What you’re doing is you’re jeopardizing the lives of our young men and women.

Rick:

Yeah. Yeah. I mean, it seems to me, there’s two very plain practical, just policy reasons for the President to have this power under the Constitution. The founders had wisdom in doing this. One is just speed of action: there’s no time to go get congressional approval for something like this. And two as you’re saying, just, you know, effectiveness without leaks and trying to get, you know, not even 535 of them to understand, but even a committee, you know, an intelligence committee to know about this and it not get leaked. I mean, it just makes sense that the President has this power. They can always come back and you know, have hearings later and do their thing later to investigate what he did. But we would be foolish in the world we live in to strip this power from any president and not allow the executive branch to do what the executive branch needs to do.

Autonomous Entities

Jerry:

Well, that’s exactly right. And you stop and think about a naval ship at sea. I mean, that is a very autonomous entity out on the seas, of course, is governed by maritime law. You know, I mean, a ship”€™s captain, literally in the military, you know, has ultimate authority. But what if that ship was about to be attacked? You knew that there was an enemy about to attack that ship and that ship captain made a unilateral decision to immediately reduce that threat by preemptively taking it out, what would the average American think? They would think, well, that was the right thing to do. How you know, were you sure that it was a threat? Were you sure it was the right thing to do?

Well, okay, now ration that up a notch, to the President’s authority to reduce threats to America preemptively when those targets appear and his intelligence community tells them that their intention is to be a threat to the United States. We have to be able to preempt things that the President and only the President is aware of because his intelligence community is telling him about it and you can’t share it. Because you risk compromising the operation and missing the window of opportunity and the threat remains.

Rick:

And I guess going forward, General and I had no idea. I’m so glad you shared the history on the War Powers Act. I did not know that Nixon had vetoed that.

War Powers Act

You could imagine any President would veto that because it’s encroaching on the executive branch’s power and, you know, the Founder said they’ve got constitutional arms to fight each other, basically. And he was protecting the constitutional power of the president doing that. You know, they overrode his veto.

I guess, so there’s been a couple of times that the Senate or the House either one has had some sort of resolution regarding the War Powers Act during Trump’s presidency and I think he was able to veto one of those, right and it didn’t get overridden. And then I guess now they’re talking about doing it again with some of the things or maybe they’ve already passed another resolution and he’ll get to veto.

Jerry:

Well, what they’re doing is they”€™ll to try and pass modification to the”€¦ And frankly, this is led in large part by Mike Lee. I mean, he was”€¦

Rick:

One of our good guys, but yeah, you wouldn’t expect him to do that. Yeah.

Jerry:

Yeah, you’d expect it from Rand Paul, because he’d been pretty consistent on them. But Rand Paul, Mike Lee and Bernie Sanders started this back in 2018, trying to limit the powers of the President. And I think they got it through the Senate, I’m not sure. I don’t think that it’s been voted on yet in the house. But like, you know, any president, I don’t care who he is, whether he’s a Republican and Democrat, any president that knows that there is a threat that needs to be eliminated and refuses to take that action and do so is, I believe irresponsible.

The Wisdom of the Founders

Rick:

Yeah. Well, the Founders had more wisdom. I think they could have imagined some of the things we face today, obviously. But based on the principles of the setup that they did with the separation of powers, they wisely put that power in the hand of the President and we need to keep it there. Whether it’s this president or Democrat president that comes along, I mean, the system still works better this way, as you mentioned when President Obama did the exact same thing in taking out other terrorists.

Jerry:

Yeah. And you got to remember this. Look, we went into a bombing campaign in Kosovo under Bill Clinton, a Democratic President. With no congressional authority, no congressional approval, we went into Libya under Barack Obama with none. And to his credit, when George W. decided to go into Iraq, he did, in fact, go before Congress and ask for their authority and he got it. But that was a much more deliberate operation, a much more deliberate activity, where he had the time to go and take that before Congress. And the idea of it leaking was less of a problem because the world was already speculating that America would do that.

So, you know, different presidents have violated what some think are the provisions of the War Powers Act. But I would say to you, what they’ve done is they’ve just literally worked around it, because there’s not a rock solid. There has been a court ruling on it being unconstitutional, but there have been other debates and questions about its constitutionality. And you know, just called one Court has said yes, it doesn’t mean that they all would.

FRC

Rick:

That’s right. That’s right. Yeah, no doubt about it. General, always good to have you. I look forward to having you back again soon. We’re not going to take as long this time to get you back because we missed you.

Jerry:

Well, I look forward to it, Rick. Look forward. Look forward to being with you. You guys are carrying a heavy load in this country, trying to, you know, keep history in our schools and keep history on the people’s minds throughout this nation and that is so important.

Rick:

Well, we appreciate what you guys do. Tell Tony and the whole team there at FRC, WallBuilders loves you guys, keep up the good work. We’ll get you back again soon.

Jerry:

Okay, brother, God bless you.

Rick:

Very special thanks to General Jerry Boykin for joining us today. Back with David and Tim Barton. Guys, man, he covered a lot there. And I learned a lot about War Powers Act and the President’s authority and the history of all of this in the first place.

An Interesting History

David:

I”€™ll tell you, Rick, listen to Jerry Boykin, go over the history of the War Powers Act, was absolutely amazing to me. I did not realize that every single president since 1973 is interpreted in different direction. So there really is no union”€¦

Tim:

Which was not totally surprising, as he said that. I thought, oh, yeah, I could see those guys. Okay, I can see that.

David:

Well, it’s interesting too that Democrats are going after Trump on this and Democrat President Obama says, oh, this is unconstitutional ct. Wait a minute. Where’s the inconsistency here? But I was reminded of something that goes back to fundamental principle. And I don’t think I fully understood why the War Powers Act was passed. And Jerry just kind of went by really quick. He said and so, we wouldn’t have another 10 year long war like we hadn’t Vietnam, because that was not a congressionally authorized war. That was a police action. LBJ really kind of ran that many ways and Nixon inherited it. So, it wasn’t like we had a declaration of war and we go 10 years literally on that thing.

Original Intent

And so, if that is the purpose of the Act, the fundamental premise of constitutional interpretation and legal interpretation is you go with the original intent. What was its purpose? We know that constitutionally, we even know from the Bible. The Bible says that you go by the spirit of law, not by the letter of law. The letter can get you really off. If you get into Johnson titles, go back for what the purpose was. Well, if the purpose of the law is to keep you from getting involved in a 10 year long fight somewhere, that’s not the same thing as taking out a terrorist has killed more than 600 Americans. That’s not a 10 year long fight you’re talking about. You’re talking about almost a police action, a single incident to take out someone who is responsible for at least 600 American deaths directly, not counting all the indirect stuff.

Tim:

Yeah. And one of the things he pointed out toward the end of the interview was that, right, George Bush went before Congress and that made sense. Because he wanted to do an official campaign, we want to put boots on the ground. Right? We’re going overseas, we want to take troops. And so, at that point, it makes sense that you have to go before Congress to get a war declared. But as Boykin said, right, this is not about a war, this was about a strike. And even as he explained this, I thought it was interesting.

Soleimani

He pointed out that when you look at taken out Soleimani, if you were the President and somebody came and say, hey, we found this guy who’s responsible for killing all these Americans. We have a two minute window to take him out, what do you want to do? He said that it would have been malfeasance to not take him out.

David:

Yeah, malfeasance and negligence.

Tim:

Right. So, if you have the opportunity to take out a really, really, really bad guy who is responsible for more than 600 American deaths and that’s American deaths. That’s not all the deaths he’s responsible for. Because certainly that would be in probably the thousands at that point you’re looking at. But when you are looking at the 600 plus American lives that this guy is directly responsible for and I thought it was interesting. He said that you have two minutes, he says, is really the average time you have to make this move, to get somebody.

David:

Yeah, that was interesting, wow.

Making the Call to Protect

Tim:

He said, but that time frame is the norm, sometimes it’s less. And I thought, okay, that’s interesting. Because if you have two minutes, you say, okay, give me 15-20 seconds to think about this. What will this mean? What are the consequences? And obviously, you can have some advisors around you, they’re going to give you some thought and input. Probably, this guy’s name has been on a list and so, you’ve been prepared. If we see, right, somebody off this list, here’s what we do with them. So probably, there’s been a level of briefing, there’s been some conversation.

But if you have to make a call and it’s like, hey, this guy, we just saw him. He came out of this building, he’s going toward this, we have 30 seconds. If you have less than two minutes because two minutes seems like maybe a long time in some scenarios, right, if you’re holding your breath underwater, two minutes is a long time. But if you’re having to make a call that has these potential incredible ramifications, this is something that I think sometimes we don’t give credit to how difficult a president job is on many levels, with the responsibility, the burden, the things they have to do and in this case, being able to make that call. And one thing too, dad, I’m going to throw in real quick because dad, I know you have other things too and Rick, if you want to jump in, that’s great too.

Mike Lee

But as General Boykin pointed out that Mike Lee is someone who has been against some of this power. And Mike Lee is someone that we’ve known for many years. We think he’s a really good guy, really good senator on so many levels, very constitutional. Mike Lee is not against President Trump on this. Mike Lee has been against this since Mike Lee has been elected. Because Mike Lee is someone who says, look, we should follow the strict powers of the Constitution and the way that this War Powers Act is interpreted there is not with Constitution really says.

Now, we could have a disagreement and say, well, Mike, we think, right, based on the Constitution, it should be this. You can have a constitutional disagreement. But one thing about Mike Lee and I’m saying this really kind of defense Mike Lee, is that Mike Lee is a consistent constitutional defender. And so, the reason he is there is he’s not positioning itself against President Trump, he has been a very consistent voice in this.

And I say that because sometimes he can get thrown under the bus and he joins all the Democrats to go against President Trump

A Constitutionalist

David:

Bernie Sanders wants more power [crosstalk 22:31].

Tim:

Yeah, okay. That’s not who Michael is. But Mike Lee, every time he sees an overreach from the Constitution, Mike Lee has been a voice saying that’s wrong, we shouldn’t do it. And this has been on so many levels.

David:

You know, and looking even at this thing and thinking about, Tim, as you said, the two minute aspect. I was really struck with how and I mean this, I don’t mean to sarcastically. I mean, this genuinely. How sad it is, that you really cannot afford to inform Congress right now, because you know it is going to be leaked. I mean, if he had called Congress, this should not have been a question. I don’t care whether you”€™re Democrat, Independent, I don’t care if you”€™re Socialist, I don’t care what you are. You should be wanting to save and advance the 600 American lives that were taken. You should want to stop the guy so he will not kill another American. You should want to defend Americans more than you want to do anything else.

And the thought that if he had contacted Congress, it would have been leaked and it would have been. I mean, that is one of the saddest commentaries. And I really mean that genuinely.

A Common Moral Code

Tim:

Well, and I think guys, one of the reasons even for that is when we no longer have a common moral code that we follow and rights and wrongs become subjective, right. We live in an era where people are more interested in doing harm to President Trump than they are doing what’s right for America. And this is why you see people in his own administration, you see people in Congress, you see people, right both the House, the Senate, even judicial where they’re coming out just against President Trump, because they don’t like President Trump. And it’s crazy that we’ve come to such a politically polarizing place, that it’s no longer about what’s good for America. It’s what can we do to harm the other side?

And we got to get back to going, no, wait a second. Let’s big picture, go back and look at this. What is best for America? And certainly, in this situation, what was best for America was for President Trump to take out Soleimani.

Rick:

What a great question for us always to ask. What is best for America? What’s best for the community and the State, the nation as a whole? Not just what individually we think or you know, or what’s best for us as a particular family or a particular community, what’s going to be good for the entire nation. That’s the kind of attitude we need to have with all of these subjects. And certainly, it’s good to have a president that thinks like that and is willing to make decisions based on that. That has long term effects, setting that kind of an example and certainly in protecting the entire nation.

General Welfare

Which is what by the way, general welfare is all about in the Constitution and same in the Articles of Confederation originally is protecting the general welfare, the entire nation, the system itself. Those are important concepts to understand. It wasn’t individual welfare where you could take from one American citizen to give to another and take care of them. No, no, it’s a general protection of the entire nation. That’s why they’re in Article 1, Section 8. That phrase general welfare is in the context of our common defense as well.

Did President Trump Violate The Constitution With The Drone Strikes? – With General Boykin

So really appreciate General Jerry Boykin helping to put all of that into perspective for us and certainly some of the history on the War Powers Act, how these things work, what’s even practical for a president to be able to do in the heat of the moment and an immediate response so that we as a nation can be protected and so we can protect those that are putting their lives on the line for us all over the world.

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