Alan Zendell, June 4, 2018

Three years after he resigned the presidency, Richard Nixon sat for four televised interviews with noted journalist David Frost. At one point, Frost asked Nixon, “Would you say that there are certain situations…where the president can decide that it’s in the best interests of the nation, and do something illegal?” Nixon replied, “Well, when the President does it that means it’s not illegal.”

Donald Trump’s legal team like to refer back to that interview to remind people that Trump is not the first president to make the argument that he can do things that are illegal without liability for prosecution. Nixon went on to remind Frost that where the president is concerned there are other remedies: he must stand for re-election, he must obtain funding authorization from Congress, and he can be impeached.

Trump’s attorney, Rudy Guiliani made a similar argument last weekend while discussing whether the president has the legal right to pardon himself. Nixon had raised that question too, and in an August 5, 1974 opinion, Mary Lawton, Nixon’s Acting Assistant Attorney General in charge of the Office of Legal Counsel wrote, “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” She also noted that the president had the option to declare himself unable to continue in office under the 25^th Amendment, which would allow the Vice President (as Acting President) to pardon him.

The issue of the president pardoning himself arose out of the debate over whether he could be indicted for committing illegal actions while serving in that office. That question had also been previously addressed by the Justice Department’s Office of Legal Counsel. On October 16, 2000, Assistant AG Randolph Moss wrote, “…all federal civil officers except the President are subject to indictment and criminal prosecution while still in office; the President is uniquely immune from such process.” This decision was in support of a Justice Department ruling, the previous year, “…that the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.”

In the same vein, Nixon had told Frost that sometimes a president must order actions that are technically illegal in the interests of national security, in part to shield subordinates who are charged with executing those orders. That’s important, because it defines an extremely narrow context in which illegal acts taken by a president might be appropriate.  It’s even more important now, because President Trump’s view of presidential power and authority seems to suggest the president can do anything he pleases with complete impunity. Even Nixon never made such a claim.

Neither of the Justice Department’s policies cited above has been tested in court, and they place no restrictions on the scope of the Mueller investigation. Mueller’s charge from the Deputy Attorney General includes the investigation of anything arising from the initial question of possible collusion with Russia during the 2016 election campaign.

All this is currently being discussed because, as Guiliani candidly admitted, the president’s legal strategy is that even if Mueller finds evidence that Trump is guilty of obstruction of justice, he cannot be indicted or prosecuted. Guiliani says the only remedy would be impeachment, and that would throw the entire discussion into the political arena of the 2018 mid-term elections. The assumption is that a House of Representatives dominated by Republicans would never impeach the president, but should the balance of power shift to the Democrats after the election, that might change.

The president’s strategy counts on assuring that Republicans retain control of the House, which is problematic for two reasons. First it ignores the fact that it was Nixon’s own Republican party that forced his resignation by telling him they were prepared to impeach him for obstructing the Watergate investigation and attempting to cover up his own involvement in a number of illegal actions. There might just be enough integrity in the current Republican-controlled Congress for the same thing to occur if Mueller’s final report is sufficiently damning.

But by far, the more important point is that permitting a president to act with impunity, regardless of the technicalities of what the Constitution intended, is a slippery slope that must ultimately result in disaster for our nation. It’s clear that the spirit of our Constitution requires a president who does not have ultimate, unrestrained power who is not above the law. No president can be allowed to disregard all of the established norms of behavior, procedures, and common decency that have protected us from tyranny for two-and-a-half centuries.

Guiliani appears to be saying, “Let the voters decide,” and perhaps he’s right. In the end, it’s our responsibility. We created this monster, and it’s up to us to shackle it.