How many times have you heard that phrase? I’m guessing that it’s not been frequent, but it’s true in at least one instance. In 1977, the former president sat for an interview with British journalist David Frost. Frost asked Nixon about a president committing an illegal act. Nixon responded thusly: “When the president does it, that means it’s not illegal.” That remark caused audible gasps throughout America.
Boldy, Richard Nixon claimed that the Constitution allows a president to break the law. Thomas Jefferson disagreed with that view. Of course, one might reasonably argue that a president could break the law if doing so were necessary to, say, preserve the Union. However, Nixon claimed that preserving the Union was not a prerequisite. Abraham Lincoln disagreed with that view.
This week the United States Supreme Court sided with Nixon rather than Jefferson or Lincoln. Of course, this means that the court also agreed with Former President Donald Trump.
In a 6-3 ruling that fell along party lines, SCOTUS has given Trump license to do essentially anything that he wants to do were he to regain the White House. This is not hyperbole; I have reviewed the perspectives of more than a dozen constitutional scholars from across the political spectrum. The court decided that presidents have “absolute immunity” from being prosecuted for actions that are deemed to be “core constitutional powers.” Further, a president has “presumptive immunity” for other presidential acts. Sadly — though predictably — SCOTUS does not clearly state what constitutes either.
The three Democratic appointees on the court vociferously disagreed with the six Republicans, with Justice Sonia Sotomayor and Justice Ketanji Brown Jackson writing strongly worded dissents. Pointedly reading her dissent in court, Sotomayor said, “The court effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding,” She went further, saying, “Ironic, isn’t it? The man in charge of enforcing laws can now just break them.”
Incredulously, Chief Justice John Roberts called the objections of the dissenters “fearmongering on the basis of extreme hypotheticals.” But one must ask what is “hypothetical” about what Trump did — or has threatened to do? What was hypothetical about what Nixon and other presidents did or attempted to do? The Supreme Court’s ruling did not happen in a historical or counter-factual vacuum; it had lived experience to learn from, beginning long before Watergate.
What presidential actions are probably legal now? Covering up an illegal break-in? Check! Trying to submit a false slate of electors? Check! Telling the Vice President not to certify an election? Check! Trying to cajole state officials into “finding” the number of ballots that would change the outcome of an election? Check! Inciting a failed coup? Checkmate!
It is incredibly difficult to overstate the import and potential impact of what the Republican justices on the Supreme Court have done. (And, yes, there is an extremely clear divide between the Republicans on the court as compared to the Democrats.) While there have been a few bipartisan surprises this term, in the main the justices have voted along party lines on the major issues.
It is true that SCOTUS ruled that the president does not have complete immunity for “unofficial acts”, the definition of which will be decided by lower courts. Given Trump’s prior actions, and a judiciary that has proven to be very favorably disposed to him during the last four years, those of us who are deeply concerned about a second term should take little solace. For example, Trump should feel emboldened to persecute and prosecute those who are on his “enemies list” (à la Nixon).
As much as I am concerned about President Biden’s age and all the factors that accompany it, I’m infinitely more concerned that a Trump victory in November would guarantee all manner of malfeasance (e.g., attempting to jail his political opponents), let alone unacceptable policy decisions (e.g., attempting to restrict our role in NATO, regression on climate action, etc.).
In 2016, Donald Trump was a political novice who had an extremely short attention span and little interest in the administrivia of the Oval Office. While his attention span has not improved, the implementation of the far right’s Project 2025 would render Trump’s aversion to governing irrelevant. His co-conspirators have given him a blueprint for becoming a “unitary executive” (aka, a wannabe dictator) on steroids. Trump doesn’t even need to read that massive document. It’s plug-n-play and he would have ample sycophants to carry out its dictates.
Remember “Hillary’s emails” and the aftermath thereof? We are in this insufferable morass because just enough sensible people in 2016 voted irresponsibly — or did not vote at all. They let the perfect be the enemy of the sane. Let’s not make the same mistake again.
Nixon was correct, but he wasn’t right. Neither is the Supreme Court.
