Trump Echos Nixon’s ‘If the President Does It, It’s Legal By Definition’
On Tuesday, January 9, 2024, Donald Trump’s lawyer argued a preposterous and frightening legal point in front of a D.C. Circuit Court of Appeals panel: the president could order the assassination of a political rival and get away with it as long as he wasn’t impeached.
Before the three justice panel — incidentally, all women — Trump’s attorney John Sauer was asked if the president would be persecuted if he ordered SEAL Team Six to assassinate a political rival. Sauer’s response made history — as it was the first time such an argument had ever been made inside a high level American court. Sauer responded by saying that persecution of the president would be barred because a former president is immune to criminal prosecution. Sauer said:
“He would have to be impeached and convicted.”
The very next day, Trump — when asked about Sauer’s statement — agreed. The president is immune to criminal persecution unless impeached and convicted.
Never mind that the president is sworn to uphold the country’s laws. Never mind that this is really what Trump believes. Never mind that this is exactly the opposite of what Trump’s lawyers claimed during his Impeachment trial in the Senate, that he was not susceptible to conviction because after he left the White House, he would be subject to criminal prosecution. And never mind that no American president has ever been impeached and convicted.
Back when he was president in June 2020, Trump wanted to to put American troops on the streets in response to protests. Defense Secretary Mark T. Esper broke with Trump and said that active-duty military troops should not be sent to control the wave of protests in American cities. The day before Trump had threatened to do exactly that.
Trump and his lawyer are echoing what Richard Nixon famously claimed. In a 1977 interview British journalist David Frost, Nixon implied that the US Constitution had granted an American President extraordinary powers and allowed him to break the law. In other words, the President is above the law applicable to all other US citizens. If he—and, he alone—deems his actions to be beneficial to the country, then, by definition they are not illegal.
Of course this is nonsense and the kind of thinking that led Nixon and the nation into his Watergate nightmare and his ultimate resignation in 1974.
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 interest 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 … if, for example, the president approves something … approves an action, ah … because of the national security or in this case because of a threat to internal peace and order of, ah … ah … significant magnitude … then … the president’s decision in that instance is one, ah … that enables those who carry it out to carry it out without violating a law. Otherwise they’re in an impossible position.
In the end, Nixon was much more than just a crooked, corrupt and paranoid politician. He was power hungry, went after his political enemies with the force of the federal government, from the Black Panthers, anti-Vietnam war protesters all the way to actor Paul Newman. From COINTEL Pro to the Huston Plan (mentioned by Frost) Nixon had the FBI use an array of covert and unconstitutional methods — including assassinations — to control and destroy his enemies.
This led to Watergate and after two years and more of investigations and congressional hearings, Nixon was forced to resign in August 1974 after forcing the nation through the most disgraceful period in modern American political history since the McCarthy Era.
And just the other day, this week, Sauer made his argument as Trump sat just a few feet away. Immediately Sauer’s immunity argument received pushback from across the legal and political and media spectrum.
Special counsel Jack Smith’s legal team member, James Pearce, said the idea would bring an “extraordinarily frightening future.” Pearce said:
“What kind of world are we living in … if a president orders his SEAL team to murder a political rival and then resigns or is not impeached — that is not a crime? I think that is an extraordinarily frightening future that should weigh heavily on the court’s decision.”
That “extraordinarily frightening future” would certainly be the reality if Trump is elected. He’s threatened to enact martial law, jail or shoot those disloyal, erect massive detention camps, and only be a dictator “for one day.” Yeah, right.
But, this is certainly an historic and frightening moment, when the leading opposition candidate argues he should be able to get away with murder if he ducked impeachment — and mean it!
Funny how the defense has gone from innocence to immunity.