“No man is above the law and no man is below it: nor do we ask any man’s permission when we ask him to obey it.”
Theodore Roosevelt, Third Annual Message, December 7, 1903
A claim this week by President Trump’s personal lawyer that the “president cannot obstruct justice because he is the chief law enforcement officer” sparked immediate comparison to Richard Nixon’s notorious 1977 statement, “When the president does it, that means that it is not illegal.”
While the Senate Judiciary Committee did approve a charge of obstruction of justice against Nixon in 1972, Nixon’s 1977 statement to interviewer David Frost referred to another article, considered but rejected by the committee: the secret bombing of Cambodia. The committee also rejected an article regarding Nixon’s personal finances and failure to pay taxes.
Nixon famously resigned before the House of Representatives could vote on the three articles of impeachment – in addition to obstruction, the committee approved articles charging him with abuse of power and contempt of Congress. But it was widely accepted the House would vote to impeach.
In a memo prepared for Watergate Special Prosecutor Leon Jaworski, the legal team argued not only that “no man in this country is so high that he is above the law,” but the offense of obstruction was of particular concern.
“Failure to deal evenhandedly with the President would be an affront to the very principle on which our system is built. And this failure would be all the more severe because of the nature of the crime in question, a conspiracy to obstruct justice, the purpose of which was to place certain individuals beyond the rule of law. The result would probably be greater public disrespect for the integrity of the legal process than has already been created by public knowledge of attempts by the nation’s highest officials to put themselves beyond the law.”
Twenty three years later, Congress would vote to impeach President Bill Clinton, on charges of perjury and obstruction of justice.
The special prosecutor investigating Clinton, Ken Starr, wrote in his report, “An effort to obstruct justice by withholding the truth from the legal process – whether by lying under oath, concealing documents, or improperly influencing a witness’s testimony – is a federal crime. There is substantial and credible information that President Clinton engaged in such efforts to prevent the truth of his relationship with Monica Lewinsky from being revealed in the Jones case.”
No President is above the law. Nixon and Clinton were not, and Trump is not. Nor is the President the chief law enforcement officer in the nation; the Attorney General holds that distinction.
President Trump, of course, has not been charged with obstruction of justice or any other offense. But his lawyer’s claim represents a dangerous and un-American view.
Thomas Paine, in his revolutionary pamphlet Common Sense, wrote “But where, says some, is the King of America? … In America the law is king.”
John Adams enshrined the concept in the Massachusetts Constitution with the often-quoted phrase, “a government of laws, not of men.”
It has been a common rhetorical device in modern American politics for rivals to accuse one another of placing themselves above the law, particularly when protesting some executive action or another. But with the notable exceptions of Nixon and Trump, it’s unheard of for a U.S. President to claim that privilege for himself. It’s disputed whether King Louis XIV of France really said “L’etat, c’est moi” – “I am the state” – on his deathbed in 1715, but it’s certain that the expression has consistently has been held up as the antithesis of American rule of law.
There are nine current members of the Senate who voted to convict President Clinton of obstruction of justice in 1999. They would be hard pressed, now, to agree with Trump’s legal team that the offense does not exist.
By Marc H. Morial