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 he 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 margin of 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 who 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.