On May 19, 1977, during a third televised interview with British journalist David Frost, former president Richard Nixon responded to a question about why he had “authorized burglaries, wire-tapping and other illegal actions against anti-Vietnam War protesters.” He said, “Well, when the president does it, that means that it is not illegal.”
This resulted in an immediate firestorm, so Nixon submitted a 2,500-word statement to the Washington Star in an attempt to clarify his remarks. He made some good points. He began by walking back his previous statement that seemed to imply that a president is not subject to the law.
“First, I do not believe and would not argue that a President is above the law. Of course he is not. The question is what is the law and how is it to be applied with respect to the President in fulfilling the duties of his office.
“Precedents over the years have sanctioned some degree of latitude in the use by presidents of emergency situations. I believe such latitude is necessary, and at times vital. My insistence that this latitude does not place president above the law is not a semantic quibble. To me, it is a vital distinction which goes to the heart of our constitutional system.”
Nixon went on to note that there are several areas where the country quite justifiably declines to engage in rigid legal literalism. Obviously, prosecutors are granted a pretty wide latitude to overlook certain crimes if they feel charging them would not be in the greater interest of justice. In other cases, there are arcane or poorly crafted laws on the books in many jurisdictions that no one seriously expects will be enforced.
The core of his argument, though, was specific to presidential power and responsibilities.
Urging that President be accorded “some faith in his judgement” and “room for maneuver” in emergency circumstances, Nixon said: “His powers are not unlimited. But either can be existing law – in a limited way, and at times of special need – and still meet these larger responsibilities.”
When he said presidential actions are inherently legal, Nixon explained, he was “referring to that traditional latitude provided in dealing with emergencies.”
Even in this letter, however, it was clear that Nixon had a very broad definition of what could constitute an emergency. He approvingly cited the FBI’s use of “illegal surreptitious entry” during the administration of Lyndon Johnson to take down the Ku Klux Klan: “Was that breach of the law by the FBI right or wrong? Was the Klan’s threat to individual liberties sufficient to justify that intrusion on its members’ liberties?”
He compared the Klan’s terrorism to the bombings and plots of the antiwar Weathermen. In his view, these were examples of emergencies that could justify plainly unconstitutional responses from a president. It’s not that unconstitutional acts were somehow legal if it was the president who ordered them, but more that they should be forgiven as a matter of discretion.
In truth, that really is how our system works. I think it’s basically supposed to work that way. If the president does something unjustifiable and unforgivable, then Congress should impeach and remove them. Short of that, they can censure them and take other actions to rein them in. But impeachment is supposed to be reserved for “high” crimes and misdemeanors, which obviously means that there can be “low” crimes that don’t justify removal.
Obviously, there will never be unanimity on these kinds of disputes. Some people thought Ronald Reagan should be impeached for the Iran-Contra affair. Many members of Congress actually voted to remove Clinton from office over his coverup of sexual trysts with a White House intern. George W. Bush started a war based on lies and authorized warrantless surveillance. All of those scandals involved crimes or abuses of power that were ultimately overlooked.
Watergate is usually hailed as a high point for the rule of law. It set an important precedent that the president cannot commit crimes with impunity. Every time a president gets away with committing a crime, it chips away at that precedent and potentially encourages lawlessness in future administrations.
One lesson is that we already grant our presidents a pretty wide latitude to break the law while they are in office, but this comes at a cost. I’d also note that one unfortunate result of President Ford giving Nixon a broad pardon is that we have no precedent for a lawbreaking president being held accountable after he leaves office.
There are rumors that the prosecutors with the Southern District of New York are considering indicting President Trump. This would violate Department of Justice policy that a sitting president cannot be charged with a crime, but it’s only a policy and not a law. It would presumably require the approval of newly-confirmed Attorney General William Barr. I would be shocked if Barr went along with it, although perhaps he could be convinced if the evidence is overwhelming and has serious implications for national security.
Either way, Nixon was correct that presidents are afforded a certain latitude both as a matter of practice and as part of our constitutional design. What kind of crimes will be tolerated can change over time or according to the partisan composition of Congress. This is frustrating to people who think in binary right/wrong terms or that think principles and laws should be evenly and consistently applied without much respect for context or nuance.
For my part, I think context and nuance are vital components in how we should treat problematic presidents. When considering whether Trump should be removed from office, it’s not solely about broken laws but also about competence, mental stability, grasp of reality, and an unprecedented lack of truthfulness. It’s not just about his personality and performance either, but also about the way he is unjustifiably undermining both people’s faith in our institutions and the proper functioning of those institutions.
The bottom line is that not every crime is an impeachable offense, but some things that are not technically crimes at all can justify impeachment. It’s not necessarily a crime to be compromised by a foreign power, but it does mean that a president cannot properly discharge the powers and duties of his office.
President Trump has already been implicated in many crimes, as a businessman, candidate and as president. Not all of them should be considered grounds for removal from office. Some of his bad decisions may be of grave concern but still within the discretion of a president to make. The overall picture, however, is unmistakable.
He cannot remain in office.
Shorter Nixon: Hippies are always an emergency, so its always legal to punch them!
Fascist.
Brown people at the border are about exactly as much an emergency as long-haired youth.
Both you & Mr Nixon make good points. Laws made by man are inherently myopic, some extremely so. It’s part of the problem with our constitution.
We need some kind of system improvement that will help us get rid of incompetent government no matter what the political striping. I think the unitary executive part of the system is one significant flaw. Maybe related, the presidency seems to create these bubbles of epistemic closure that turn out to be wrong. This is part of where Mr Nixon went off. Low productivity congresses are another problem. Hard problems need the thinking of a lot of people with diverse viewpoints and backgrounds – that’s what I think congresses should be doing. What’s ours up to? I’m hopeful about the new House.
The more discretion you allow Presidents to commit illegal acts, the more ANY prosecution comes to be seen as partisan and political, and the more difficult it becomes for any partisan congress to convict. It is with some justification that Trump sees the Mueller inquiry as a political witch hunt because the Kenneth Starr one became just that.
If you want to promote a culture of law abidance you have have to set an example at the top. If you believe some discretion and latitude is necessary for a President to be able to act effectively – particularly at times of emergency – you have to codify in law the degree of that latitude.
For instance, you could require that a “state of emergency” can only be declared by a two thirds majority of Congress or that any crimes a President is alleged to have committed before he entered office can only be prosecuted after he leaves office. The only exception to that rule being if those crimes could reasonably be seen to have contributed to his election in the first place.
Laws which are only enforced against minorities or the less powerful discredit the whole edifice of the law. There is ample evidence that many of Trump’s crimes were known to prosecutors before he became President but they were scared off by his money, power and influence. This, more than anything, brings the law as a whole into disrepute. The “everyone is doing it” defense becomes absolute.
When used selectively, the law becomes just another weapon for the powerful to use against the weak in the class war that is raging throughout the USA. More often than not, the exercise in proprietorial discretion is a reward for power and privilege.
There has to be a demonstrable reason of public interest NOT to enforce the law in every instance. All else is a consequence of bad law or undue privilege.
It can also be argued that the immediate sequel to Watergate set exactly the opposite precedent: while Nixon may have been disgraced in many quarters (unfortunately not all), he was subjected to no legal consequences whatsoever, thanks to a chucklehead Republiclown representative from Michigan.
In any case, while the reasons for focusing the central question of the piece on the president are obvious, I think the real question is: “How much crime can a foundationally corrupt political party systematically commit and enable?”
My guess, judging by his distinguished history, is that Barr sees his job as doing what it takes to protect the Repugnican party in this continuing conduct. If it means ultimately sacrificing Dolt And Rump, that will happen, but in the meantime, Repugnican politicians will do their worst to stave off that outcome, as long as they can perform whatever kabuki they think is required to protect themselves.
And speaking of Repugnican crime, the latest on the emoluments front.
“Dolt And Rump” !! Stealin’ it!
So how are violations of the Hatch Act enforced? What’s the point of the Emoluments Clause? Who gets to decide what qualifies as High Crimes and Misdemeanors?
Our system of government is not prepared to deal with this level of criminality and conspiracy. It just isn’t.
Indicting a sitting President has to be an option at some point.
it is designed for it though, the problem is that it wasn’t designed to account for a complicit Congress
That makes sense.
I don’t think the problem is merely complicity.
Take the Republican controlled congress thru most of Mr Obama’s time – when it wasn’t in near civil war with itself it was completely against whatever Mr Obama had in mind.
Crimes aren’t crime if committed by a Republican. Period.
The GOP base thinks Jesus empowered them to run the country forever and any change to white male power is illegal and unconstitutional. Democrats make the mistake of thinking that if they win elections that gives the right to govern. But, Conservatives believe that Liberals can never govern legitimately, because it’s changing the social order, which is an illegitimate goal.
So, we’re in a total war situation where crimes aren’t “crimes” and attempting to impeach “their” president is treason! It doesn’t matter what “crimes” Trump committed, he did it in a good cause, which is why they say he could shoot someone in the middle of Constitution avenue and it wouldn’t change their opinion. So said “well it would depend on who he shot.” Nancy Pelosi or some “libtard” would be OK with them.
Since there is no overarching standard for “high crime”, it will always have to boil down to a case by case appraisal by the particular Congress, and of course it matters whether Congress is controlled by a serious constitutionalist party or a party that operates with complete intellectual dishonesty and in utter bad faith. But it is quite doubtful that the Founders would have condoned serial presidential crimes, nor would they have thought that a prez displaying Der Trumper’s level of outright uncontrollable lying should remain in office.
You know what’s an “emergency”, Mr Nixon? Having half the country secede from the Union. That might excuse suspending the writ of habeas corpus. Or having the Pacific Fleet destroyed one fine morning at Pearl Harbor. Or having North Korea attack South Korea. But Richard Nixon never faced a national emergency, and nor has political criminal Trumper–although I wonder if even Richard Nixon himself would question whether Der Trumper has broken too many laws for a responsible Congress to overlook.
Mueller has slow walked this little problem to the point where the obvious response will now be “leave it to the people!” Small comfort there, given the US electorate, haha. Ultimately the Repub party is unperturbed about having a lawbreaking mental defective as Prez as long as the Repub base “approves” of him. That’s where we’re at. So (as with so much else) the Founders’ idea of a separate legislative branch as a check on a tyrannical executive has been completely destroyed by the “conservative” movement and its plutocrat billionaire benefactors.
Back when the Constitution was written, the term “high crime” had a specific meaning. We could do worse than the old meaning of the term.
“High crimes” were misuse of government power or misuse of authority.
The Constitution even talks about “treason, bribery and other high crimes, so it gives us a couple of examples of high crimes.
If you follow this reasoning, ordinary criminal behavior unrelated to government, such as lying about a blow job, would not be high crimes and thus, accordingly, matters for the regular criminal justice system – indictments, trials etc.
I believe (who am I?) that the Founders went too far in the direction of discretion for Presidents when it comes to the law. Sure, there must be some discretion, and nuance is important. These situations should be taken on a case by case basis. But the boundaries set in the Constitution appear to be such that they leave too much room for arguments that would effectively put a president above the law. That is why Nixon came off that way in his initial discussion with David Frost that he had to come back and correct, somewhat, although typically it’s that first thought that is closest to the truth, in this case the truth of what Nixon actually believed. BTW here Nixon was sitting, essentially scot-free from his crimes – I can think of many people who were imprisoned for a hell of a lot less, although they weren’t Presidents of course – and yet felt the need to recast his original statement on the matter, even though he had nothing over him, because double jeopardy and he’d already been pardoned.
The larger problem is the fact that when it comes to the president illegal behavior is limited to a political decision. Which the Founders apparently thought was fine since they expected a certain level of integrity in legislators that would rise above party and put the country first. They apparently could not imagine the corruption and cowardice of today’s GOP.
With Trump, it’s not just his criminality, corruption and self-dealing. There are instances on each of those counts, pre-Mueller, that justify impeachment proceedings. But its his incompetence I believe that poses the most serious risk.