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Can the President Legally Break the Law?
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“When the president does it, that means that it is not illegal.” — Richard M. Nixon (1913-94)

Legal scholars have been fascinated for two centuries about whether an American president can break the law and remain immune from prosecution. During the Civil War, Abraham Lincoln ordered troops to arrest, without warrant, and incarcerate, without due process, many peaceful, law-abiding journalists and newspaper editors — and even a member of Congress — in the Northern states. Wasn’t that kidnapping?

During World War I, Woodrow Wilson ordered federal agents to arrest people who sang German beer hall songs or read aloud from the Declaration of Independence in public. Wasn’t that infringing upon the freedom of speech?
During the Great Depression, Franklin D. Roosevelt ordered banks to confiscate gold from Americans who had purchased and possessed it lawfully. Wasn’t that theft?

In the early 1970s, Richard Nixon used the CIA to spy on Americans and to frustrate the FBI’s efforts to investigate a burglary at the Democratic National Committee’s Watergate headquarters, and then he denied doing any of this. Wasn’t that an invasion of privacy and obstruction of justice and using a federal office for deception? Years after his resignation, Nixon infamously told David Frost in a live interview that no matter what the president does, it is lawful. Where did he get that argument from?

And President Donald Trump has asked Congress for money to condemn real estate and build a border barrier in Texas. Congress said no, yet he plans to spend the money anyway. Doesn’t that violate his oath to uphold the Constitution?

Though there may have been political consequences to each of these presidential acts of lawlessness — there were for Nixon, at least — there were no legal consequences in the form of impeachment or prosecution. The Constitution itself limits impeachment to treason, bribery or other high crimes and misdemeanors.

The “high crimes and misdemeanors” language was interpreted by the House Judiciary Committee in 1974 to include material interference with a governmental function and obstruction of justice and the use of a governmental asset to deceive the public — but not any garden-variety crime, such as bank or tax fraud or kidnapping or invasion of privacy or misappropriation of federal funds.

During the presidency of Bill Clinton and afterward, the Department of Justice ordered research about whether a president could be charged with a crime against his will and while still in office. The DOJ now possesses three scholarly legal opinions on the subject. Two of them say he cannot be prosecuted; one of them says he can. All three are based on the same law and history but employ different deference to the presidency.

ORDER IT NOW

Two of those opinions say that if there is probable cause of crime by the president and the time during which the law requires a prosecution to commence — the statute of limitations — would expire while the president is in office, he or she should be indicted while in office but the prosecution should be deferred until he or she is no longer president. One of the opinions, incredibly, mimics the Nixonian president-as-prince idea and basically tells the Department of Justice to forgo prosecution.

Clinton was prosecuted while in office for testifying falsely — lying under oath in a civil deposition, a crime rarely prosecuted — but it was with his consent. Presumably, he consented to the quick prosecution and guilty plea in the final days of his presidency to avoid a costly and prison-exposed post-presidential indictment for more serious crimes.

I have recounted this brief history of presidential lawbreaking as a background to a discussion of the political period I suspect we are all about to enter. That period will commence with the expected release of the report of special counsel Robert Mueller. Under the court rules through which he was appointed, however, his report is not for Congress or the president or the public but rather for the attorney general and those engaged by him to analyze it.

There may be parts of the report that could not lawfully be made public. For example, if a grand jury took testimony about the president’s alleged and denied obstruction of justice related to his firing of FBI Director James Comey — i.e., testimony about whether he did so for a venal or unlawful purpose, such as preventing the FBI from discovering other presidential crimes — and the grand jury decided not to indict the president, the existence of that testimony, as well as its substance, must remain secret under the law. The same is the case for all references to a decision not to indict someone.

That is at least the theory of grand jury secrecy; those not indicted should not have their names dragged through the mud.

Now back to Nixon’s the-president-can-commit-no-crime argument and that DOJ opinion basically agreeing with it. This view of the presidency is imperial. Is the president of the United States so integral to the preservation of the Constitution that he cannot be diverted from that job to the rigors of defending himself or herself in a criminal prosecution?

If the answer is yes, how about when he or she is no longer employed in the defense of the Constitution? If the answer to this question is no, who should be trusted with a get-out-of-jail-free-forever card? And where is that in the Constitution?

Trump once boasted that he could shoot someone on Fifth Avenue in New York in broad daylight and get away with it or pardon himself. I hope this was Trumpian comedic exaggeration. If not, it is the revelation of a dangerous Nixon-like mentality that the rule of law — which requires that no one be above the law’s commands or beneath its protections — applies to everyone but him.

Can the president legally break the law? If he can, we will soon be back to the Nixon days. And we all know how they ended.

Copyright 2019 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Constitutional Theory, Donald Trump 
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  1. anonymous[340] • Disclaimer says:

    Mr. Napolitano still gets to wear a robe. But he’s now an altar boy for St. Mueller, vainly swinging the Constitution thurible to cover the stench of all things Washington.

    Who here still takes this columnist seriously?

    • Replies: @Liberty Mike
    , @Anon
  2. If his Executive Order banning “bump stocks” is allowed to stand, then that means POTUS has more power than the legislative branch when it comes to the guns.

  3. Haw, haw! (slaps knee)

    Trump building a wall even tho Congress won’t? So Trump breaks the Constitution?!?
    Shoot fire, y’all, that ain’t nothin’.

    When I broke the Constitution I did it up right, lemme tell yew.

    I got your sons sent off to wars in lots of places, and them wars are like medieval wars, goin’ on fer decades and nobody knows why or what for!!
    (An’ yore daughters, too. Ah’m equal opportunistic)

    An’ I shore didn’t ask no Congress for no declaration of war, like them dang Conservatives said that dang Constitution requires. Who needs that? It’s just a piece of paper.

    When some of them Democrats said they’s gonna impeach me over that, that was just for show. It was their turn to “pretend fight” so that all of y’all would think there’s two parties.

    Mah buddy Dennis Kucinich stopped lookin’ fer UFO’s long enough to fill out the paperwork to impeach me, after I got with Nancy Pelosi and we came up with that plan an’ told Dennis to be the pit-bull. That fed his ego.

    It got all of y’all riled up like roosters fightin’ over the only hen! So it was one of the best fund-raisers that both of us ever piggy-backed off of! Or I should say “we” since we’re just one uni-party inside D.C.

    Oh, ah better git back to talkin’ ’bout Religion of Peace and how we have to fight wars on everybody over there instead of fightin’ somebody else somewhere.

    After we got mah buddy Bayrack in there, he just kept it goin’. That way ah dont look so bad. We all agreed beforehand to keep it that way. Bi-partisan!

    An’ no TV judge never said I broke no laws – even when I got us in endless wars on fake evidence!
    Mah buddy Dick said I should do that, so ah did.

  4. anonymous[340] • Disclaimer says:
    @Liberty Mike

    No, not since about November 2017. I’ve submitted dozens of comments about his weird veneration of Washington’s priestly (legal) class and his propaganda in behalf of the Establishment that has truly been meddling in the 2016 election. He seems to have lost the respect of most of the readership here, which is why I asked my question.

    You?

  5. Is this possibly the same Napolitano who I listened to speaking a Mises U? That guy was at least coherent.

    The Mueller report is intended for by use of the AG. He has the discretion to do with it, or not do with it, what he chooses.

    Whatever in the world does that have to do with whether a president can commit a crime?

    Of. purse the president can commit a crime, and even be prosecuted for it, but, since he is in charge of the DOJ, he would have to be really incompetent for that to happen.

  6. Precious says:

    Can the President Legally Break the Law?

    That depends, are we talking about a special-class citizen President, or a second-class citizen President?

    So far, a special-class citizen President, like Obama, can break the law with impunity and get away with it. Obama has yet to answer for his many crimes. Actually, even a special-class citizen who is not President, like Hillary Clinton, can do the same.

    But a second-class citizen President, like Trump, cannot legally follow the law without getting attacked in the press and threatened with prosecution.

    So the real question is, are real Americans still legal in their own country? Or is it not their country anymore?

  7. anonymous[253] • Disclaimer says:

    “we all know how the nixon days ended” ?

    Do we really?

    Name the five worst things Nixon did and anybody who cares about our republic can name five similar and worse things that all the other presidents of his generation did.

    I grant that there is room for argument, but it is school-child level ignorance to single out Richard Nixon in the way Ignorant Lawyer Napolitano a.k.a. Judge Napolitano did in this sad demagogic rant.

  8. The President’s main duty is to protect the country from invasion. The fact that Trump can’t do this without being second-guessed by a hostile media, and mired in endless lawsuits in corrupt courts staffed by disloyal dual citizen judges, n attacked in Congress by violently anti-American dual citizen “representatives” is a sad commentary on the collapse of our American institutions.

    I would almost welcome an invasion by Chinese or Russian soldiers to put the pathetic circus in DC out of its misery n bring sanity n order back to the US.

  9. Fact is Democrats are invincible, invulnerable and each and every time their scandals are exposed the lügenpresse covers for them til the point when the scandal has faded away, has been “forgotten”.

    If the remaining sane and loyal Republicans do not finally wake up to the fact that they are at war with the Democrat scumbags the country will go down the tubes to never be rescued.

    Their only hope is to finally cast off their hellish fear of the “race card”.

    AN is a covert leftist/Democrat and he has no fucking clue as to what he is blathering about.

    Authenticjazzman “Mensa” qualified since 1973, airborne trained US Army vet, and pro jazz artisit.

  10. anonymous[340] • Disclaimer says:
    @Liberty Mike

    I hope that you weren’t just messing with me. You’re not a “Judge” fan, are you?

  11. Anon[253] • Disclaimer says:
    @anonymous

    No one with an IQ of any positive integer. Ron Unz should really no longer publish this garbage.

  12. APilgrim says:

    The ‘poof’ viewpoint.

  13. TG says:

    The President can break (or perhaps a better word would be, ignore) the law, but only if the rich and powerful find it to be in their interest for him to do so.

    If it is not in the interest of the rich and powerful for the president to perform some action, then it is illegal (and racist and fascist and LITERALLY HITLER), even if it isn’t.

  14. What about Clinton reclassifying satellite technology, taking it out of the Defense Department’s purview, so that it could be sold to the Chinese? He also got campaign contributions from the Chinese, and in the ensuing decades (between 2000 – 2010), 6 million US manufacturing jobs were shifted to China.

    Acting against your own country’s economic interests is just fine, especially if top 20%ers benefit.

    The worst, morally speaking, was the abandonment of between 1,205 — 20 soldiers in Vietnam, with a CIA division created to suppress information dribbling out of the area, like 14,000 total sightings of the soldiers and, even a year later, scientifically transmitted PAVE data confirming the exact ID numbers of 20 still-alive American soldiers.

    The story is detailed far more than most of today’s so-called reporters bother to do in that linked Syd Shaunberg article on of Ron Unz’s articles.

    Is it legal for a POTUS to leave US soldiers behind to be tortured or starved in a war-ravaged region? Presidents have gone to great lengths to save foreign nationals who befriended US troops, or who worked for the CIA, from harm when the US leaves a battle-scarred region, even putting citizens in jail when they reveal information that could lead to their death or injury (Chelsea Manning).

    Those soldiers left behind in Vietnam were drafted.

    They were citizens—something that means nothing, obviously. They went to Vietnam to fight for a country that left them behind to die, knowingly, bypassing the chance to save them with a mere $3.25 million payment to the Vietcong government. A US president who did business with Chairman Mao was too horrified to give a communist government that payment, a fraction of what the US government now spends on womb-productive illegal aliens every year ($113 billion).

    What about that story on here about so-called Tokyo Rose, Iva Torguri, a natural-born citizen who was sentenced to (in total) 7 years of prison time. They punished to the max this zoology major, and later grocery-store manager, for what turned out to be nothing like the narrative.

    It was a series of war-time broadcasts by a girl stuck in Japan after Pearl Harbor that didn’t really involve overt propaganda as it turns out. Several girls were compelled to make the tapes, so they used intonations in their voices to convince non-English-speaking people that they were doing what they were told, trying to stay safe until they could go home.

    Which President was in office when, years later, the CIA made 2 men present false testimony against this little fish, an individual citizen who could not have been any threat to anyone, leading to a stiff sentence? She was finally pardoned by a POTUS, but not until her youth was over.

    Even if these things were legal, it just shows what a huge gap exists between what is legal and what is moral, with even the smallest illegalities treated much more harshly that outright, life-ruining immorality.

  15. buckwheat says:

    Why is this asshole Napolitano even on here? If he gets 10 comments 9 of them are making fun of him. He is turning into a male(?) Kamala Harris looking for who he can suck off to further his career. Remove this clown or start a new category called DUMBASS Columnists.

  16. the rule of law — which requires that no one be above the law’s commands or beneath its protections — applies to everyone but him

    When did Jussie Smollett become President?

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