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In the comments of this question, I came across this quote from Nixon:

but when the president does it, that means that it is not illegal

My common sense is telling me that logically, there must be some situations where what the president does is the law but it shouldn't be all the time.

Was this quote "correct" in the day it was said and to what degree? Is there any ground to this claim and if there is, what is the situation required for this to be true? Is it still true?

Any example situations are welcome that can serve to explain this to someone who's not really proficient in US Law. Let's take extreme and not so extreme examples, the president shot someone or he trafficked illegal drugs (directly committing the crime), the president pardoned a mob boss (aiding and abetting a criminal?), the president approved some operation which involved crimes and anything else you can think of.

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    Also, would this be a better question for law stackexchange or is this a good question to ask here? Any edits are welcome :) – John Hamilton Nov 22 at 10:48
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The fuller context of the quote (emphasis on the part the question quoted):

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 Five days later, after opposition from J. Edgar Hoover, the plan was withdrawn, but the president's approval was later to be listed in the Articles of Impeachment as an alleged abuse of presidential power.

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.

Clearly there are things which when authorized by the president become legal. E.g. the declassification of materials (as Peter's comment exemplified), the strike on a foreign terrorist abroad (well, at least as far US law is concerned) and so forth, i.e. almost anything that falls under the remit of an executive order.

But Nixon's concrete example, the wiretappings he ordered, ultimately were probably not legal for him to order, although he didn't have to stand up in a criminal court to defend them because Ford pardoned him. But Nixon did resign essentially over those, so the part where he says he was responsible in front of the electorate turned out true in a sense. And some of the operatives that carried out some of Nixon's Houston Plan as well as some of his advisers were actually convicted and imprisoned so at least their actions were clearly deemed illegal, despite what Nixon claimed.

There was actually a grand jury criminal indictment against Nixon, the full text of which was released to the public only in 2018; as summarized:

The documents released today also include the criminal indictment, approved by a grand jury, against President Nixon on four criminal counts: bribery, conspiracy, obstruction of justice and obstruction of a criminal investigation.

(In general, grand jury information is protected by Federal rules on criminal procedure.) These documents had been made available to the House Judiciary Committee when it was deliberating whether to impeach Nixon, but had not been [fully] entered into the public domain.

  • So, am I right to assume that had Ford not pardoned Nixon then he could be convicted of these crimes and possibly imprisoned? Then his statement is not correct, even though he didn't get convicted. Oh, and I think I'll ask a follow-up question here (not the question in this comment). – John Hamilton Nov 22 at 11:44
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    @JohnHamilton: possibly, but that is of course speculation to some degree. I have not seen it disputed that Nixon could have been tried after he left office (had he not been pardoned as well). – Fizz Nov 22 at 11:48
  • Thank you. I'm reading the full transcript now. I'll accept the answer if there are no better answers in a day or so. (Doesn't seem like there will be, but who knows.) Also, no need for the follow-up since that question is already answered (that was what I had in mind for a follow-up): politics.stackexchange.com/questions/12755/… – John Hamilton Nov 22 at 11:51
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Nixon was wrong in arguing that if the President determines something to be in the best interest of the nation, then he gets to do it. He has great discretion and latitude in setting agendas and policies, and for creating rules interpretations under which agencies will implement laws.

However, laws are still laws, and the President does not have the power to disregard laws. If a law impedes the President from doing what is in the best interests of the nation, in his opinion, then, if valid, the President should be able to lobby Congress to make changes in the laws. That is how the system is supposed to work when laws conflict with Presidential desires. If Congress does not agree, as a co-equal branch of government, the President does not have the power or authority to unilaterally ignore that.

However, there are certain areas of the previously mentioned discretionary powers where the act of a President does make it legal. For instance, the President needs no sign-off or approval when determining whether to de-classify information. If you or I were to blurt out secret details of a covert operation, we go to jail for divulging classified information. If the President does it, their act of divulging simultanously de-classifies that information - the act of the President doing it makes it legal.

As president, Trump has the legal power to declassify information. He also has the authority to share information with whomever he wants, including foreign adversaries.

ABC News: Trump has legal authority to declassify intelligence

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    Upvoted, but a general comment - why do we use "co-equal" when "equal" works just as well? It's lie appending every scandal with "-gate" - it's annoying. – John Bode Nov 22 at 16:14
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    @JohnBode The branches are co-equal, not equal. They differ vastly in their structure, means of election, and responsibilities, making them not equal. They are co-equal in that despite those differences they hold the same rank. You could say, similarly, that the Army and Navy are co-equal military branches. Neither is positioned to give orders to the other, but they are not equal: the Navy has more boats, for example. english.stackexchange.com/questions/497805/… – Bryan Krause Nov 22 at 17:58
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    @BryanKrause It was my understanding that the Army has more boats, but the Navy has them beat with ships. +1 either way. – Jeff Lambert Nov 22 at 18:57
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    @JeffLambert You're right, ships would have been a safer call. – Bryan Krause Nov 22 at 19:29
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    @BryanKrause: Thanks for the explanation. I've always been able to disambiguate "equal" in my head (i.e., not equal in structure or composition, but equal in weight or power), but I can understand that not everyone can or wants to, so using separate terms is reasonable. It's just that "co-equal" ... grates. – John Bode Nov 22 at 20:15
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Everybody can have an opinion whether certain actions of a president were legal or not, and these opinions differ wildly.

What's difficult is to officially determine whether a given action is illegal. At the end of the day this must be done by an (institutional or factual) opponent of the president. This can be

  • Congress, in an impeachment;
  • the Supreme Court;
  • the leader of a succeeding regime, as in the trials against GDR soldiers;
  • or a victorious foreign power, as in the Nuremberg Trials.

Whether an ordinary criminal court can try and sentence a president is apparently unclear.

There is little doubt though that a former president can be tried after their term ended, even for crimes which they committed during their presidency.

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