Presidents, the Constitution, and the Rule of Law

Excerpt from

Jon Roland
Jan 3, 2006 01:17

-------- Original Message --------
Presidents, the Constitution, and the Rule of Law
Date: Mon, 02 Jan 2006 20:39:56 -0600
From: Jon Roland
Constitution Society
7793 Burnet Road #37,
Austin, TX 78757

The following is an actual transcript of an interview with the president:

INTERVIEWER: So what in a sense, you're saying is that there are certain situations … where the president can decide that it's in the best interests of the nation or something, and do something illegal.

PRESIDENT: Well, when the president does it that means that it is not illegal.

INTERVIEWER: By definition.

PRESIDENT: 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.

INTERVIEWER: 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?

PRESIDENT: 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.

INTERVIEWER: Pulling some of our discussions together, as it were; speaking of the Presidency … 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?

PRESIDENT: 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.

INTERVIEWER: But there was no comparison was there, between the situation you faced and the situation Lincoln faced, for instance?

PRESIDENT: 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—

INTERVIEWER: But when you said … 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?

PRESIDENT: 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 tittle, 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.

Those with long memories have probably already figured out that the interviewer was David Frost and the (former) president was Richard Nixon.

Nixon was forced from office, though, not because of his view of the breadth of the president’s constitutional powers but because the nation became convinced that he was using those powers (whether or not they were constitutional) in bad faith for craven purposes. In the current situation, though, it appears (from all external clues, at least) that the president is using his power (whether or not in accordance with the constitution) in good faith, in the sense that he appears to believe that the actions he is taking will benefit the security of the nation. I am curious whether list members think that this apparent good faithNote will make a difference in adjudication of the president’s actions, and whether it should make a difference.


Neil B. Cohen
Jeffrey D. Forchelli
Professor of Law
Brooklyn Law School
250 Joralemon Street
Brooklyn, New York 11201
Telephone: (718) 780-7940 Fax: (718) 780-0375

Note from forwarder: Not discussed here is the position of those who follow the orders of the president. If the presdient lacks authority, and the actions are illegal, then so are their actions, and it is not a defence that they were "just following orders", even if the president is not impeached for it. Of course, they might expect protection from a presidential pardon, or from the statute that forbids prosecutions in federal court by private parties, leaving only presidential appointees to prosecute them. But in principle, they are subject to prosecution, especially if the president, to avoid blame of himself, decides to throw some of his underlings overboard as a ritual sacrifice.

-- Jon


Samuel A. Alito Jr.

Released: Friday, December 23, 2005

1984 Justice Department memo Alito wrote expressing the view that the Attorney General should be immune from suit over illegal wiretaps [PDF text]. The memo was written in connection with a Reagan-era case involving wiretaps ordered by former Attorney General John Mitchell during an investigation into a suspected plot to kidnap National Security Advisor Henry Kissinger.



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