As the constitutional abuses of the Bush administration came light, we've often repeated the old Nixon quote "if the president does it, it's not illegal." But until I was reminded by a reader today, I hadn't recalled the specific conversation in detail:
The following is an excerpt from an interview with former President Nixon conducted by David Frost. It aired on television on May 19, 1977.
FROST: The wave of dissent, occasionally violent, which followed in the wake of the Cambodian incursion, prompted President Nixon to demand better intelligence about the people who were opposing him. To this end, the Deputy White House Counsel, Tom Huston, arranged a series of meetings with representatives of the CIA, the FBI, and other police and intelligence agencies.
These meetings produced a plan, the Huston Plan, which advocated the systematic use of wiretappings, burglaries, or so-called black bag jobs, mail openings and infiltration against antiwar groups and others. Some of these activities, as Huston emphasized to Nixon, were clearly illegal. Nevertheless, the president approved the plan. Five days later, after opposition from J. Edgar Hoover, the plan was withdrawn, but the president's approval was later to be listed in the Articles of Impeachment as an alleged abuse of presidential power.
FROST: So what in a sense, you're saying is that there are certain situations, and the Huston Plan or that part of it was one of them, where the president can decide that it's in the best interests of the nation or something, and do something illegal.
NIXON: Well, when the president does it that means that it is not illegal.
FROST: By definition.
NIXON: Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president's decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they're in an impossible position.
FROST: So, that in other words, really you were saying in that answer, really, between the burglary and murder, again, there's no subtle way to say that there was murder of a dissenter in this country because I don't know any evidence to that effect at all. But, the point is: just the dividing line, is that in fact, the dividing line is the president's judgment?
NIXON: Yes, and the dividing line and, just so that one does not get the impression, that a president can run amok in this country and get away with it, we have to have in mind that a president has to come up before the electorate. We also have to have in mind, that a president has to get appropriations from the Congress. We have to have in mind, for example, that as far as the CIA's covert operations are concerned, as far as the FBI's covert operations are concerned, through the years, they have been disclosed on a very, very limited basis to trusted members of Congress. I don't know whether it can be done today or not.
FROST: Pulling some of our discussions together, as it were; speaking of the Presidency and in an interrogatory filed with the Church Committee, you stated, quote, "It's quite obvious that there are certain inherently government activities, which, if undertaken by the sovereign in protection of the interests of the nation's security are lawful, but which if undertaken by private persons, are not." What, at root, did you have in mind there?
NIXON: Well, what I, at root I had in mind I think was perhaps much better stated by Lincoln during the War between the States. Lincoln said, and I think I can remember the quote almost exactly, he said, "Actions which otherwise would be unconstitutional, could become lawful if undertaken for the purpose of preserving the Constitution and the Nation."
Now that's the kind of action I'm referring to. Of course in Lincoln's case it was the survival of the Union in wartime, it's the defense of the nation and, who knows, perhaps the survival of the nation.
FROST: But there was no comparison was there, between the situation you faced and the situation Lincoln faced, for instance?
NIXON: This nation was torn apart in an ideological way by the war in Vietnam, as much as the Civil War tore apart the nation when Lincoln was president. Now it's true that we didn't have the North and the South—
FROST: But when you said, as you said when we were talking about the Huston Plan, you know, "If the president orders it, that makes it legal", as it were: Is the president in that sense—is there anything in the Constitution or the Bill of Rights that suggests the president is that far of a sovereign, that far above the law?
NIXON: No, there isn't. There's nothing specific that the Constitution contemplates in that respect. I haven't read every word, every jot and every title, but I do know this: That it has been, however, argued that as far as a president is concerned, that in war time, a president does have certain extraordinary powers which would make acts that would otherwise be unlawful, lawful if undertaken for the purpose of preserving the nation and the Constitution, which is essential for the rights we're all talking about.
At the time, considering the Huston Plan as being based on a legitimate legal doctrine setting forth the unlimited power of the president to "preserve the nation" was considered by most people to be a figment of Tricky Dick's paranoid fantasies. It was ridiculous, lunacy, the fevered imaginings of a disgraced and somewhat unhinged political figure. Sure, everyone knew the government did things like that, particularly in the various red scares, but thought they at least had the decency not to pretend it was based upon some unenumerated royal prerogative.
I guess we know now that wasn't true, don't we? It was, in fact, a constitutional philosophy that was believed by members of Nixon's party for over 30 years. It manifested itself in Iran-Contra and came to full fruition with the torture, imprisonment and surveillance regime of the Bush administration. It wasn't a fluke. They really believed the president had the power to do anything he wanted and the only thing stopping him was the congressional appropriations process.
The question is if that has now become a mainstream philosophy. I would guess that it has and that we will spend many decades arguing not whether the president has these sovereign powers but rather how sweeping they are and under what circumstances they will be used.The congress is on the verge of legalizing the unlimited and secret use of private corporations to spy on its customers without warrants. It has already shown a complete willingness to allow the president to designate people at his discretion as being beyond the scope of the constitution, human rights and international law, including the right to torture. The Supreme Court is only one vote shy of sanctioning all of that for generations.
We will have no way of knowing if or how they are using these powers to "preserve the nation" (In the days after 9/11 we know for a fact that they did use them to monitor dissenters.) Presidents will undoubtedly be tempted to use them for political purposes under that doctrine, just as Nixon did, if the populace ever becomes that vociferous again. Who knows what "preserving the nation" will mean next time?
Whatever doesn't kill the authoritarian beast only makes it stronger. We'll be dealing with the fallout from this for yet another 30 years. Indeed, this time it may just stick forever.