Wherever Richard Nixon is today, I have no doubt he is smiling up at the Supreme Court. Just short of fifty years after he resigned from the White House, the nation’s highest court has come around to Nixon’s view that if the president does something it is by definition “not illegal.”
In May 1977 Nixon articulated this view during an interview conducted by the British journalist David Frost. Talking about the shady things Nixon had done to quash anti-Vietnam War protests and to covertly surveil activists, Frost asked Nixon, “What you are saying is there are certain situations… where the president can decide that it’s in the best interest of the nation or something and do something illegal?”
With a gentle tilt of his head, Nixon responded, “When the president does it, that means it’s not illegal.”
Nixon’s brazen assertion that the president is above the law, or rather that presidential action defines what is or is not law, has long been regarded as an outlier in American history. But no more.
Monday’s Supreme Court’s decision on the immunity claim brought by former Pres. Donald Trump in the hope of shielding himself from criminal prosecution is nothing short of stunning. It signals that Nixon was something of a prophet and that his outlier view is now the law of the land.
Not only is the result stunning, so is the reasoning that produced it.
If anyone wades through its dense legal prose, Chief Justice Roberts’ majority opinion, written to express the view of the six conservative justices on the court, they should come away alarmed at the lengths to which those justices were willing to go to protect the twice impeached and now convicted felon who once sat in the Oval Office.
A Court supposedly dedicated to “originalism” offers only history lite. A Court that denigrates balancing tests embraced them to help Trump. At the same time, it almost entirely ignored some of the interests that needed to be balanced.
And there’s more.
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The Court articulated a view of presidential power that guts our system of checks and balances. Roberts’s opinion was entirely focused on the remote possibility that criminal liability might get in the way of an energetic and expansive use of that power. It........