Above the Law: Essay and a Scary Story

Above the Law: A Legal Essay with a Scary Hypothetical

By Damon Nomad

We have all heard it a hundred times, a thousand times. No one is above the law, not even the president. Well, there is a bit of a wrinkle to the story and it started for a lot of people on national television in 1977. It happened during the series of interviews of former President Richard Nixon by David Frost. If you have not seen them, you probably have heard the quote or maybe seen the clip. Richard Nixon stated with no sense of sarcasm, "When the president does it, that means it is not illegal." People went ballistic back then. He had not learned his lesson! How outrageous! He is saying the president is above the law! I still remember the commotion, but I was young and not really into all of it at the time. More than fifty million people tuned in to watch, it was big news.

So what? It's just Richard Nixon a former president that was forced to resign right? Richard Nixon was a lawyer, by most accounts quite a brilliant lawyer. He misread the American public's likely reaction to making the statement but he knew what he said was not out of the mainstream in legal circles. Nixon was essentially paraphrasing the Department of Justice policy codified in a formal memorandum from 1973. Well okay . . . but that is nearly fifty years ago, surely things have changed. No, they have not. The memorandum has been confirmed several times in the last forty-nine years and represents the formal position of the US government on the matter.

The next paragraph quotes the concluding paragraph from a Department of Justice Office of Legal Counsel memorandum to the Attorney General in 2000 on this subject. You can focus on the last sentence if you want to get to the bottom line, which states in part, "a sitting President is constitutionally immune from indictment and criminal prosecution." Let that wording sink in for a moment, constitutionally immune from criminal prosecution. This is not just some opinion of one lawyer at the DOJ. This is the formal opinion of the Department of Justice as memorialized in this formal OLC memorandum. The opinions are published and available on the internet and represent the legal opinion of the US government on key matters of law.


Concluding Paragraph 2000 OLC Memo:
"In 1973, the Department of Justice concluded that the indictment and criminal prosecution of a sitting President would unduly interfere with the ability of the executive branch to perform its constitutionally assigned duties, and would thus violate the constitutional separation of powers. No court has addressed this question directly, but the judicial precedents that bear on the continuing validity of our constitutional analysis are consistent with both the analytic approach taken and the conclusions reached. Our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution."

Source: "A Sitting President's Amenability to Indictment and Criminal Prosecution" (October 16, 2000 Volume 24 of Office of Legal Counsel Opinions Department of Justice)

I have read the entire memorandum from 2000 it is thirty-nine pages, it is an exhaustive analysis and recounts the history starting with the original 1973 memo. The first sentence gets to the central foundation of the position, the separation of powers as embodied in the US constitution. You remember first hearing about it in high school government or history class, checks and balances between the executive, legislative and judicial branches of the US government. As a quick reminder, Article I of the Constitution lays out the legislative powers vested in Congress, Article II the executive powers, and Article III the judicial powers vested in one Supreme Court. If you pull out your copy and look at the language, you will see the critical point. Article II establishes that the Executive Power shall be vested in a President. A singular person has the Executive power. The other two branches of government do not have the powers distilled into a single individual, therein lies the rub.

Maybe you know most of this or maybe you don't care, doesn't sound very intriguing. Give me a chance, I think I can get you more interested and show you a possible flaw. A fundamental problem with this policy that could be worrisome in certain circumstances. Potentially terrible consequences in a worst-case type of scenario. I hesitate to say unlikely given everything that happened in the aftermath of the 2020 presidential election. One line of reasoning of esteemed lawyers who advocate the policy is that the constitution provides for another process to deal with a president, impeachment which you can find in Section 4 of Article II. The idea is that Congress can remove the president from office using the impeachment process. Then law enforcement can arrest and prosecute the former president for criminal wrongdoing. Consider the following hypothetical and how it undercuts this rational and reasonable logic, with potentially tragic consequences. You need a certain kind of president willing to relentlessly pursue the memo's conclusion and Richard Nixon's suggestion to the extreme.


A Scary Hypothetical

Imagine an incredibly belligerent, amoral, and authoritarian President willing to take the position to the extreme, anything he does is not illegal. We will use a male pronoun for the president in this little story, think House of Cards Frank Underwood as a model, but Claire Underwood would work just as well. As a first step shortly after he is elected, he issues a series of executive orders that establish a new command and control structure for the military, intelligence agencies, and federal law enforcement. The heads of the agencies will all report to him directly and anyone who disobeys an order from the president is subject to public execution by firing squad or hanging. The execution orders are fully within the discretion of the president, there is no court proceeding or means of appeal. Remember the president's reasoning, anything he does is not illegal.

The supreme court rules that the Executive Orders are invalid when a lawsuit is brought to block them. The President's immediate response to the court decision. "I don't care what the court says, if I do it then it's legal." This is his mantra for anyone who wants to stop him, inside or outside of government.

At the same time as the executive orders are issued, the president orders the DOJ Office of Counsel to issue a new opinion. The memo concludes that since the president is immune from indictment and prosecution while he is in power, so is anyone who is following the president's orders. Days later the director of the FBI and attorney general are shot by a military firing squad on live television for failing to carry out direct orders of the president. They refused to carry out his orders to arrest and detain the justices of the supreme court. This is the president's object lesson to anyone who might try to stand in the way.

You see where this goes if you assume complete immunity from criminal jeopardy for any criminal act, even murder. How would anyone be able to stop this president? Remember the policy says he cannot be arrested and put in jail. Ah yes, impeachment! That's the answer from the legal scholars. The president has a simple solution when congress starts impeachment proceedings. He orders the military and law enforcement to forcibly stop impeachment proceedings, most everyone has learned their lesson after the firing squad killed the FBI director and attorney general.

I know what you are thinking, outrageous and illegal! Not outrageous to this tyrant and remember his mantra, if he does it then it's legal. Just like Nixon said and remember the current DOJ policy says he is immune from prosecution. Do you see the problem now?

You just need a narcissistic sociopath and enough sociopathic enablers to carry out his execution orders. People will start to fall in line when threatened with a firing squad. After they shut down the impeachment hearings, he orders certain members of congress to be put in jail for treason. The possibility of the death penalty hanging over their heads, until they agree to fall in line. Soon even decent people in the chain of command begin to believe in this dystopian order or at least will follow orders from above. It makes sense that if everything the President orders is legal, then following his orders must be legal. Besides, who wants to end up dead? It is an internally consistent logic and the president points out he is following a policy position that has been in place for more than fifty years.

Impeachment didn't work, you have another trick up your sleeve right, the twenty-fifth amendment. It provides a legal means to remove a president from office. Just get the VP and a majority of the cabinet to remove him from power. You are going to have the same problem as impeachment, a madman like this with a group of powerful supporters will use enablers in the military and law enforcement to stop the implementation of the twenty-fifth amendment. Even if they need to use force.

You realize you are out of options. You decide to wait him out for eight years, term limits. Sorry, the president decides to ignore the constitution's twenty-second amendment limiting the president to two terms. Anyone who tries to stop him in the courts faces a firing squad. Following each presidential election cycle, the president uses the levers of power to replace electors with a loyal group of hand-picked electors. He can perversely use this policy to stay in power for the rest of his life, so long as he remains in power he cannot be arrested or prosecuted.

In short, he uses the reasoning of the Office of Legal Counsel memo to become a lifetime tyrannical dictator. According to the memo, he is fully immune from criminal liability while he is a sitting president, he just needs to ensure he remains president. If he is willing to use any means to remain in power and he can find a group of disciples to follow along, how would you stop him?

Impossible you say, it could never happen. Maybe Frank or Claire Underwood on TV, but not in real life. A president could never find a group of people to follow him down such a dark path, not to attack and threaten people. That would be like an assault on democracy, it's impossible. A president would never find people to replace electors or attack congress as they count the votes to certify the election in the capitol. Hmmm....are you forgetting recent events? Are you sure it is impossible? Can you imagine real people who want the power of the president for more than eight years, and be willing to do almost anything to keep it? Does that memo look a little more ominous now?