Nixon was right


When the president does it, that means that it’s not illegal.

Like most Americans, I’m familiar with this infamous quote, from a Nixon interview with David Frost in 1977. I always considered it an example of the maniacal hubris of Richard Nixon.

The thing is, I’ve come to understand that, at least from an functional standpoint, it is basically true.

What happens if the president breaks the law? Well, he might use his executive powers to direct law enforcement not to pursue it. But if he didn’t, presumably, he could be brought up on charges and a court could find him guilty. If it were a federal crime, he could just pardon himself, but if not, I guess he could even go to jail.

But, can he lose the presidency over a crime?

It seems, not directly. As far as I can tell — and I hope legal types will educate me — the Constitution contains precisely two ways to get rid of a president:

  • an election
  • impeachment

Both of these are obviously political processes. There’s certainly nothing there saying that if you commit a crime of type “X”, you’re out.

Conventional wisdom expects that if the president does something even moderately unsavory, political pressure will force the House of Representatives to impeach him. I would have taken comfort in that up until a few months ago, but now … not so much.

Today’s House of Representatives is highly polarized, and the party in power (by a ratio of 240 / 193) is poised to make great strides towards realizing its long-held agenda. Would they let a little unlawful presidential activity get in the way of that? I don’t think so.

What if their own constituents don’t care about a president breaking some laws that they think are pointless or unjust? Let’s say Trump’s tax returns show up on Wikileaks, and forensic accountants come up with evidence of tax fraud. Are we sure voters will not see that as a mark of genius?

Congress will move to impeach if and when the pressure from that activity gets in the way of their agenda, and not before. That time could, in theory, never come.

I’m afraid that people holding their breath for an impeachment based on the emoluments clause may pass out waiting.

Donald Trump once said this:

Also, probably one of DT’s more truthful statements. (Though my legal team informs me that murder is not a federal crime, so he would not be able to self-pardon.)


3 thoughts on “Nixon was right”

  1. Well, the President can do illegal things; what does not happen is ordinary criminal prosecution for those illegal things. Even with a federal system (in which the state government, for instance New York, could bring charges), the elected executive does not have to answer to those charges before a judge until his or her term is over. Removing the President is, by design, a political process. Trump, like Nixon, is likely to turn into a political liability, though. The question is how long his party will continue to think of him as their “useful idiot” as they pursue their policy agenda. May not be too long, since Pence would be just as good. Pissed off Trump supporters are unlikely to take their revenge against members of the House or Senate. That said, I don’t know what I’d predict.

    [My immediate thought is “let me off before I get sick!”]

    1. I should have mentioned that you had explained some of this to me already.

      Yes, I guess the point of my post was not to determine the legality of something the president does, but to determine if a presidential tree falls in the woods and there is nobody to do anything about it… yadda.

      Having the selection of the president be a legal process seems like a good idea, but the founders probably did not consider the possibility that someone might flout the law and have a huge constituency that loves him for it.

      I can see how empowering the SCOTUS to depose the president might seem like a bad idea, but, I dunno, maybe if they set the bar high, like unanimous decision, it might not have been such a bad thing.

      My wnole point of this post was that I don’t think there is any getting off this roller-coaster soon. We are stuck. And there is not even the slightest murmur out of the House that they would even consider impeachment.

  2. “Conventional wisdom expects that if the president does something even moderately unsavory, political pressure will force the House of Representatives to impeach him.”

    If you still believed this, you were apparently not paying attention during the George W. Bush or Barack Obama regimes. Torture, assassination, mass surveillance, waging aggressive war…do none of these high crimes and misdemeanors count as even “moderately unsavory” in your book?

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