When the President does it (Watergate, Agent Orange, torture) by mattsteinglass
December 22, 2008, 2:30 pm
Filed under: President, United States

In a Steve Benen post I see that Nixon’s infamous line (from the Frost interviews, aka Frost/Nixon) “When the President does it, that means it is not illegal” is actually more complicated than I’d understood:

In context, Frost had asked about the notion that a president can “do something illegal,” if he/she decides the crime is “in the best interests of the nation.” Frost was particularly interested in the notion of the Huston Plan, which endorsed illegal surveillance and black bag jobs against Americans. After uttering the now famous phrase, Nixon added, “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.”

Benen doesn’t really follow through on the implications here but in fact this makes the Nixon line seem significantly less evil and crazy than it sounds when truncated. It sounds to me like what he’s talking about here is a version of the doctrine of sovereign immunity. Part of that doctrine holds that people can’t be held responsible for actions they undertook at the order of the government.

One example of the doctrine is its application in voiding suits by victims of Agent Orange, the toxic chemical defoliant used in the Vietnam War, against the chemical companies that manufactured the stuff. US courts have consistently held that the chemical companies can’t be held liable for damages because they were simply carrying out government orders: President Kennedy personally authorized the use of Agent Orange in Vietnam. (Meanwhile, the government can’t be held responsible for damages because of sovereign immunity. Which means nobody can be held responsible, which is nice and neat, isn’t it?) Plaintiffs have attempted to end-run around this problem by noting that Agent Orange wasn’t supposed to be toxic; the high dioxin levels in the herbicide resulted from pushing the manufacturing process too fast. But as it turns out the companies made the Defense Department aware of this problem and DoD signed off on it, so the courts have held that they’re indemnified.

It sounds like what Nixon is saying here is at least in part similar: when the President orders you to do something (like break into the opposition party’s campaign headquarters), that means it’s not illegal for you to do it. You’re just following orders. And that doesn’t on the face of it seem so crazy. If a government authority tells you to do something that might in some cases be illegal — if a policeman orders a tow truck operator to take away someone’s car, say — we don’t hold the truck operator responsible when it turns out the policeman was acting illegally. Obviously this wouldn’t hold for crimes against humanity, but for something like breaking into an office, it’s at least a debatable point. It seems healthier to expect citizens to demand further proof of legal authority before following orders like this, but there’s some gray area there.

But there’s no gray area if the President is arguing that it’s not illegal for him, either. At that point you have impunity. And impunity is explicitly not part of the governing philosophy of the United States. Whatever crimes and misdemeanors the founding fathers expected Presidents to be able to get away with, breaking into the offices of the opposition political party cannot possibly have been among them. And it is hard to believe that authorizing torture could have been among them, either.


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