During David Frost's series of interviews with Richard Nixon, Nixon (in)famously said

when the President does it, that means that it is not illegal, by definition.

In the aftermath of Nixon getting almost impeached, and having to resign, due to his thwarting of the Watergate investigation, the public widely interpreted this phrase as Nixon expressing the opinion that a President above the law.

But was that really what was being said?

As an analogy (comparing this to a different unrelated situation to demonstrate a principle), let's ask what happens if a police officer says "if a police officer does it, then it's not illegal." Can this be true?

That depends on what it is that they do. A police officer is not doing anything illegal by the virtue of wearing a police uniform and claiming to be a police officer. While a non-policeman, doing the same thing, would be committing the crime of impersonating a police officer. So "if a police officer does it, then it's not illegal" is absolutely true in such a situation.

In a similar vein, there is a number of actions which fall within the scope of the Presidential authority. So if a President exercises the powers of his office as he sees most appropriate, then that's not illegal. While someone else trying to exercises the power, that belongs to the President, that would be illegal.

So the question rests on whether what was being discussed was within the purview of the Presidential powers. Nixon's phrasing was vague. He said

if it's in the best interests of the nation or something

But national defense is within the powers and responsibilities of the Presidential authority. So what was technically wrong with the statement?

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    are you asking whether there are things the president can do that would be illegal if anyone else does them? I'm sure there are (e.g. breaking into the Oval Office because you lost the keys) Mar 24, 2023 at 22:31
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    @user253751 no, that's not the thing which Nixon was commenting on. He was commenting on a President working against anti-war groups.
    – wrod
    Mar 24, 2023 at 22:35
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    Have you read the rest of the interview? Nixon tries to make his viewpoint clear when answering Frost's followup questions.
    – Barmar
    Mar 24, 2023 at 22:35
  • Voting to close as in its current forms it will invite opinions. The question would be more apt if it is re-written to ask how the opposition used the specific comment against Nixon as it will invite more factual answers referring to the speeches of Nixon's opponents.
    – sfxedit
    Mar 25, 2023 at 10:43

2 Answers 2


The statement is technically incorrect.

Frost doesn't clearly specify "it", only that "it" is something illegal which the President judges to be in the best interests of the nation.

Nixon's blanket claim that actions by the President cannot be illegal has no basis in law.

Sure, there are actions that a president can take that would be illegal if others tried to take them (attempting to exercise the powers of President without Constitutional permission is pretty clearly treason) But this is not the claim.

The claim is that any act, which the President deems to be in the interest of the nation is, merely by virtue of the President's judgement, not illegal. This claim has no basis in law.

What is unclear is whether the regular courts can be the proper place to try such acts, or whether the Senate, sitting in an impeachment trial is the only place at which judgement on criminal acts committed by a President can be dispensed.

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    Expanding on the last point: 1) the Constitution doesn't have wording implying a sitting POTUS is immune from criminal prosecution; SCOTUS never opined on this. 2) DOJ decades-old policy, harking back to the 19th century, has been not to indict POTUS, that is pretty much settled; if the crime is especially heinous or damaging to the US, impeachment is more likely (e.g., Nixon). 3) SCOTUS held in Nixon v. Fitzgerald that POTUS “entitled to absolute immunity from damages liability predicated on his official acts”, but there's no civil immunity for private actions (countless precedents). Mar 25, 2023 at 0:34
  • But with the context provided by Barmar, the quotation, rudely torn out of the conversation, is more nuanced than a blanket statement (as much as “Nixon” and “nuanced” belong in the same sentence :-) ). The OP's question is charged, not good at all. Mar 25, 2023 at 0:39
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    That's why I put "technically" in bold. There may be a nuanced way to interpret this as actually true when the context is taken into account and the limitations implied by the context are considered. But technically just consider the question and answer, no, it's not true that the a President's judgment is sufficient to make any action legal.
    – James K
    Mar 25, 2023 at 23:12
  • "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." It could be sedition, perhaps, but not treason.
    – Obie 2.0
    Mar 27, 2023 at 13:00

You have to look at the context of the statement and the rest of the answer.

Frost: ... 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."

So he's not saying that he's above the law and has carte blanche power. But his duty as President to protect the nation in extreme circumtances may require him to take actions that would normally be considered illegal.

For example, in the heat of a crisis, the President can't wait for Congress to pass a law giving him the authority to take some action. So he takes the action, and then Congress may review it and decide whether it was appropriate as part of their oversight role. If they think it was wrong and should not be done in the future, they could then pass a law explicitly prohibiting it.

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    The way I read it, based on the initial four quotes, he is saying "If you see the President doing it, you can't know if it was illegal just because it would normally be illegal - as the President may have unilaterally considered it legal for their given purpose."; specifically with regards to the Houston plan, and not going through a process to check their authority ahead of time. Mar 24, 2023 at 23:14
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    The context, clearly indicated in your quote, is the Huston Plan, which involved mass surveillance of US citizens, burglary, and even potentially internment camps for "radicals." It was an assertion that any crime could be committed if it was claimed to be in the national interest (preventing people from making the nation less "peaceful" and "orderly"). Of course, as Watergate showed, it was really more about ensuring that Nixon was reelected.
    – Obie 2.0
    Mar 24, 2023 at 23:38
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    @AlexanderThe1st no, I didn't mean that. I meant exactly what I did say.
    – wrod
    Mar 25, 2023 at 2:00
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    @wrod I'm pretty sure that's not what he's talking about. He's talking about the legality of the President's actions, not others. But by extension, anyone acting on the President's orders is also shielded.
    – Barmar
    Mar 25, 2023 at 4:30
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    Yeah, I suspect the initial "When the President does it, it's not illegal" was kind of glib, not really meant to be analyzed so literally. It's an extemporaneous interview, things like that happen.
    – Barmar
    Apr 3, 2023 at 20:38

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