“When the President does it, that means that it is not illegal.” Former President Richard M. Nixon made that stunning statement to television personality David Frost in a May 1977 interview that reached an audience of 45 million. Nixon’s quote is often cited to illustrate the epitome of his arrogance and blindness to the rule of law — his confidence that his power rose to such heights that he possessed a presidential prerogative to redefine the law. For nearly fifty years, that statement stood at the apex of presidential contempt for the law. But a new contender has emerged. Within weeks of taking office for his second term in 2025, President Donald Trump posted, “He who saves his Country does not violate any law.” Trump apparently believes that his definition of saving the country includes whatever he believes needs to be done, with the law no obstacle. The months since he made the statement are consistent with that theory.
While Trump’s statement rivals Nixon’s in placing the president above the law, a nearly forgotten postscript to Nixon’s statement reveals that Nixon made a far more nuanced argument for presidential power. Less than a month after the Frost interview, Nixon published a full-page essay in the Washington Star to correct “widespread misinterpretations of the comments I made on the inherent powers of the presidency.” Nixon’s essay was an effort to repudiate the widespread perception that he asserted a pretense to monarchical power—akin to a claim that the “king can do no wrong.” He explained that his comment to Frost reflected his belief that in emergency circumstances, a president must sometimes violate the letter of the law to preserve its spirit. According to Nixon, this view echoed positions held by former Presidents Thomas Jefferson, Abraham Lincoln, Franklin D. Roosevelt, and Harry Truman.
Nixon’s lost apologia deserves renewed attention—especially with Nixon’s recent return to the headlines. This summer, Vice President J.D. Vance expressed his admiration for Nixon while seeking to rewrite the saga of Watergate. In Vance’s eyes, Nixon was brought down by the “deep state,” and Watergate today would be “like a 12-hour news story.” But minimizing Nixon’s enormous abuses of power does not make them vanish. If anything, Vance’s effort to rehabilitate Nixon makes it all the more important to grapple with Nixon’s own explanation of his actions—and to demonstrate the flaws in a line of thinking — and an attempt at justification — that places the president above the law.
A president’s assertions of unchecked powers in a perceived emergency inherently invites abuse. But Nixon does not stand alone in claiming such powers. The view that a president has free rein in an emergency to override the law reflects a longstanding current in American views of presidential power. Taking Nixon seriously can help clarify what to expect from a president in an emergency—where unexpected circumstances pose challenges that Congress either did not anticipate or fails to address.
Our current norm-shattering presidency acknowledges no such boundaries. Nixon’s excesses may have foreshadowed Trump’s—the flagrant deception, the impoundments of appropriated funds, the denigration of Congress, the muscular use of the military, the political dirty tricks, the electoral interference, and myriad abuses of power all have Nixonian antecedents. But the brazenness and scale of Trump’s actions make Nixon’s transgressions pale by comparison. Trump has made extravagant claims of presidential power — in the political arena, in court, and in secret — often fueled by massive deceptions and power grabs, that Nixon’s seem tame. The emergence of such unchecked authority makes defining when a president has exceeded his constitutional powers a more pressing question than ever. So do the threats over the horizon, including the prospect of the president claiming emergency powers to meddle with U.S. elections.
What we learn from Nixon’s forgotten essay is this: presidential initiative may be essential, but democracy can tolerate only so much unilateral presidential action before government too closely resembles a monarchy or autocracy. Trump’s razing of legal barriers has underscored that the post-Watergate reforms adopted 50 years ago to rein in presidential power are fragile and, in some cases, ineffective. A president determined to impose his will on the nation, who has a weak or compliant Congress, and who treats laws as dispensable faces few constraints, at least in the short term, and in many realms, perhaps indefinitely. Just as the nation enacted a suite of reforms after Watergate to strengthen the rule of law, new reforms after Trump will be vital to prevent runaway executive power. No rebuilding project is more important to democracy than defining the limits to presidential power and installing practical means of enforcing them.
That is why Nixon’s forgotten essay has salience today.
I.
Understanding Nixon’s essay requires revisiting Watergate. At the time of the Nixon-Frost interviews in 1977, Watergate was still a fresh wound. Nixon’s White House had served as the epicenter of unprecedented criminal acts and abuses of power. Watergate was far more than the break-in to the Democratic National Headquarters; it encompassed a vast array of misuses of executive power against perceived political adversaries and enemies. These included the unleashing of the Internal Revenue Service against foes, the creation of political slush funds, and the use of a White House unit known as the “Plumbers” to conduct dirty tricks and illegal surveillance against political opponents.
Nixon resigned after a Supreme Court decision forced him to release the so-called “smoking gun” tape. That tape exposed his longstanding lies to the nation by confirming his early participation in covering up the link between the Watergate burglary and his reelection campaign. One month later, President Gerald Ford gave Nixon a complete and unconditional pardon, thus depriving the nation of a cathartic trial and the chance to hold Nixon criminally accountable. Despite the grand jury’s naming of Nixon as an unindicted co-conspirator in the Watergate cover-up, and despite the irrefutable Oval Tapes laying bare Nixon’s deep involvement in the cover up, Nixon himself had never publicly confronted the facts, been cross-examined, or offered a real defense.
Frost’s televised interview with the disgraced former president provided that public accounting. Frost not only got Nixon to apologize for letting the nation down in Watergate, he also elicited Nixon’s startling claim about the president’s power to violate the law. The electrifying exchange took place when Frost confronted Nixon with his approval of the infamous Huston Plan, Nixon’s 1970 authorization of illegal surveillance against perceived left-wing organizations. Frost may have expected Nixon to disavow the plan. Instead, Nixon owned it with unguarded candor.
II.
The Huston Plan grew out Nixon’s obsession with political unrest in 1969 and 1970. With opposition to the Vietnam War growing vociferous and widespread, the Nixon administration watched with alarm as groups such as the Weatherman and Black Panthers threatened violence to instigate political change. At the same time, the federal government’s domestic intelligence was spotty and disjointed. On March 6, 1970, a bomb-making factory in Greenwich Village exploded, destroying a townhouse and killing two members of the Weathermen. This sent shockwaves through the Nixon Administration and prompted Nixon to demand better intelligence to combat what he perceived as a rising domestic threat to national security.
Nixon tasked White House assistant Tom Huston to lead the project. Huston was a 29-year-old conservative activist whose zeal for Nixon in the 1968 campaign catapulted him into Nixon’s inner circle. Huston convened a series of high-level meetings of the FBI, CIA, National Security Agency, and Defense Intelligence Agency to develop recommendations for enhancing surveillance operations against the rising tide of protests from the Weathermen, Black Panthers, and others on the left.
The meetings resulted in the blandly named Special Report of the Interagency Committee on Intelligence in June 1970. The long-secret report is remarkable for its unabashed recommendation that the government engage in illegal and intrusive surveillance of home-grown protestors. Among other recommendations, the Special Report endorsed enhanced electronic surveillance, illegal covert opening of mail, and resumed “use of surreptitious entry, also referred to as … ‘black bag jobs,’” which the Report frankly noted “involves illegal entry and trespass.”
J. Edgar Hoover, to the surprise and irritation of Huston and the other agency chiefs, objected to these changes in surveillance procedures as too risky for the FBI. Hoover insisted that the Special Report say that “[t]he FBI is opposed to implementing any covert mail coverage because it is clearly illegal and it is likely that, if done, information would leak out of the Post Office to the press and serious damage would be done to the intelligence community.”
Tom Huston took Hoover’s reservations to be self-protective covers and ignored them. He drafted a memo for Nixon in July 1970 that recommended that Nixon approve, among other techniques detailed in the Special Report, covert mail covers and surreptitious entries. Huston pulled no punches. His memo explained that “[c]overt [mail] coverage is illegal, and there are serious risks involved.” Of “surreptitious entry” against “urgent security targets”—meaning the Weathermen and Black Panthers—he noted that “[u]se of this technique is clearly illegal: it amounts to burglary.” Huston nevertheless claimed that the benefits outweighed the risks, and Nixon signed off on the recommendations.
But Huston did not anticipate Hoover’s mastery of hardball politics. After Hoover learned of the president’s approval of the Huston Plan, the FBI Director exploded in protest to Attorney General John Mitchell, who had been in the dark about the intelligence plan. Given Hoover’s opposition, Mitchell told Nixon he had to back down, and Nixon, realizing that Hoover had out maneuvered him, acquiesced. Just days after he had approved Huston’s recommendations, Nixon ordered the Huston Plan shelved and all copies retrieved. But unbeknownst to Nixon, White House Counsel John Dean kept a copy in his safe and ultimately turned it over to Judge John Sirica, leading to its public disclosure.
The plan became a notorious symbol of the “White House Horrors” as John Mitchell called them and even appeared in an article of impeachment. Given the plan’s prominence, it was no surprise that Frost asked Nixon why he was willing to approve wiretapping, the opening of mail, black-bag jobs, and infiltration of domestic protest groups, even though some of these techniques were “clearly illegal.” The surprise was Nixon’s response: “Well, when the President does it, that means that it is not illegal.” Frost replied, “By definition?” to which Nixon responded, “Exactly, exactly.”
As Frost wrote in his second memoir of the Nixon interviews, Frost “could scarcely believe his ears.” Nixon had just uttered the one statement that, apart from Nixon’s admission that in Watergate he had let the nation down, “became what was probably the most quoted sentence from the Nixon interviews,” and the best single encapsulation of Nixon’s view of his alchemy to turn illegal acts into lawful ones.
III.
The press lit up with Nixon’s statement. The New York Times ran a front-page story above the fold with the headline “Nixon Says a President Can Order Illegal Actions Against Dissidents.” The outpouring of publicity apparently stung Nixon—enough so that the former president chose to respond weeks later with a full-page essay published in the Washington Star contending that he had been misunderstood.
A.
Nixon’s essay asserted that he “[did] not believe and would not argue that a President is ‘above the law.’” “To maintain that anything at all—anything without limit—which a president might order thereby became legal would be absurd.” But, he wrote, when the president exercises discretion to take “emergency actions to meet emergency situations,” he must be able to “protect subordinate officers against legal penalties.”
To bolster his core argument that a president must sometimes choose between the “letter of one law” when it “conflicts with the spirit of another,” Nixon cited statements and actions of Presidents Lincoln, Jefferson, and Truman. He drew from these historical examples the conclusion that presidents must sometimes act with discretionary power in a “gray area” because of “unforeseen circumstances which often threaten uncertain consequences.”
Nixon explained that in his view, the president’s constitutional obligation to faithfully execute the law meant being “faithful to the nation’s vital interests.” That, in turn, he interpreted to mean doing what is “necessary” when the safety of the people “or the security of the nation itself is threatened.” In wartime especially, he argued, “a President who lets himself be paralyzed by the strict letter of the law would violate his oath.” That is how he justified the Huston Plan: it aimed “at an organized, clandestine campaign of violence in which people were being killed and communities terrorized.”
Nixon’s essay loosely tracked his explanation to Frost immediately following his infamous remark. In the interview, Nixon rooted his defense of this remark in a form of emergency powers:
“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.
…
That’s the way I would put it. Now, that isn’t trying to split hairs … but I do not mean to suggest the president is above the law … what I am suggesting, however, what we have to understand, is, in wartime particularly, war abroad, and virtually revolution in certain concentrated areas at home, that a president does have under the Constitution extraordinary powers and must exert them with … as little as possible.”
B.
Nixon’s carefully scripted essay tapped into one of the oldest, deepest, and most difficult questions surrounding presidential power: When can a president act outside the law in order to address a grave threat to the nation or secure paramount national interests? The Constitution makes him responsible for executing laws that Congress enacts. But from the early days of the nation, presidents have exceeded the authority that Congress has bestowed on him. Nixon was thus not wrong in identifying precedent for his view that a president has a responsibility to secure national interests, even if it requires going beyond the law.
Where Nixon went astray, however, was in his virtually limitless reliance on emergency power as a trigger for the president to make his own law to address perceived necessities of the moment. As Justice Robert Jackson earlier wrote about a similar claim of inherent executive power, “Such power either has no beginning or it has no end. If it exists, it need submit to no legal restraint.” Jackson was “not alarmed that [recognizing such power] would plunge us straightway into dictatorship, but it is at least a step in that wrong direction.” Nixon took that step and then some.
1.
The challenging questions surrounding when a president may act outside of law trace their roots to John Locke’s Second Treatise of Government, written in late seventeenth century Britain. Locke saw an inherent right in the “common law of nature” for the executive “to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it.” Locke recognized that the power could be abused but saw no remedy other than for the people “to appeal to heaven.”
Thomas Jefferson’s thoughts on an unconstrained executive power contain similar Lockean beliefs. Although Jefferson’s views on presidential power shifted over time, his 1810 letter to John B. Colvin—after his presidency ended—largely echoed Locke’s view of necessity. Specifically, Jefferson explained that “[a] strict observance of the written laws is doubtless one of the high duties of a good citizen: but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation.”
During his presidency, Jefferson exercised such extra-legal powers without congressional support. The most prominent was the Louisiana purchase. Without congressional authorization and despite his doubts that the Constitution inherently gave him the power, Jefferson confirmed the Louisiana purchase, which was negotiated without his knowledge by his emissaries in Paris. In his speech to Congress, Jefferson said the purchase was to address “the danger to which our peace would be perpetually exposed while so important a key to the commerce of the western country remained under foreign power.” Jefferson also procured military supplies without a congressional appropriation after the British attacked the USS Chesapeake when Congress was not in session. In both instances, Jefferson sought and received congressional approval after the fact. But it remains true that Jefferson was prepared to and did exceed legal limits to achieve what he viewed as compelling national goals.
The presidency of Abraham Lincoln affords the most dramatic examples of unilateral presidential action. Facing secession by southern states when he assumed office in 1861 and on the brink of full-scale civil war, Lincoln embarked on wide-ranging actions that Congress had not authorized. These included assembling militia forces, increasing the strength of the army and navy, and suspending habeas corpus.
In a message to Congress on July 1, 1861, Lincoln sought to justify his actions as fulfilling his oath to preserve, protect, and defend the Constitution in the face of a crisis that threatened the nation’s existence. “To state the question more directly, are all the laws but one to go unexecuted and the Government itself go to pieces lest that one be violated?” And in 1864, Lincoln put the matter even more bluntly: “I felt that measures, otherwise unconstitutional, might become lawful by becoming indispensable to the preservation of the Constitution through the preservation of the nation.” But Lincoln, like Jefferson, told Congress what he had done and why, and he sought after-the-fact ratification.
President Franklin D. Roosevelt later seemed to embrace that view of presidential authority. Facing runaway agricultural inflation during World War II, FDR told Congress in a detailed message that if it did not enact legislation allowing him to impose agricultural price controls, he, as president, would act anyway and “accept the responsibility” for exceeding statutory authority. Roosevelt did not have to put that theory to the test, however, because Congress gave him the authority he sought.
2.
Nixon’s effort to wear the mantle of Lincoln and Jefferson in his Washington Star essay thus reflects a longstanding current in American history. But Nixon took this point well beyond his predecessors and announced a doctrine that inherently invited abuse. Jefferson saw a vital opportunity in the case of the Louisiana purchase and a dire international threat from the British attack on the Chesapeake. Lincoln and Roosevelt faced unparalleled threats to the nation. Each took decisive unilateral action but quickly sought congressional approval to ratify their actions. While these three presidents acted outside the law, they all faced the electoral and congressional checks that Nixon evaded.
Nixon, in contrast, threw off the restraints of law. In his Washington Star essay, he did not rely on even a flimsy pretext of foreign sponsorship of the Weathermen and Black Panthers to justify the Huston Plan. Nor did he claim justification for lawless action in his perception that violent antiwar unrest in the United States undermined his negotiations to end the Vietnam War. Rather, he cited only the Weathermen’s and Black Panthers’ overt adherence to violent tactics, the wave of domestic bombings in that era, and the lives he speculated might be saved through surveillance of those groups. Nixon’s concept of an “emergency” that justifies a president’s ignoring domestic law stretched well beyond the actions of any prior president. If accepted, Nixon’s doctrine would allow any president to abuse civil liberties through secret surveillance without anything close to the type of existential crisis that his predecessors confronted.
3.
Nixon’s claim—that domestic unrest justified unlawful surveillance—also defied a Supreme Court ruling rebuffing his own administration. In 1972, the Court held in United States v. United States District Court that internal security threats provide no justification for warrantless wiretaps. The Court’s rebuke of Nixon was particularly notable because of the unrest that gripped the nation in that era. The late 1960s witnessed the assassinations of Martin Luther King Jr. and Robert Kennedy, a surge of racial tension and riots, and anti-government bombings. Yet Justice Lewis Powell—Nixon’s most recent appointee to the Court—unhesitatingly enforced constitutional commands. Nixon’s continued reliance in his Washington Star essay on internal security and domestic threats as the trigger for approving illegal surveillance represented a remarkable disregard for the Supreme Court’s repudiation of his administration’s reasoning. It is all the more remarkable as Nixon wrapped his argument in the responsibilities of the president “rooted in the Constitution,” which the Court had just interpreted contrary to his administration’s position.
Another aspect of the Supreme Court’s 1972 ruling, however, left room for Nixon and future presidents to claim extralegal surveillance powers. The Court expressly did not decide whether the president had the authority to conduct warrantless electronic surveillance of the “activities of foreign powers or their agents.” In his early defense of his authorization of otherwise-unlawful surveillance in the Huston Plan, Nixon had drawn on shadowy foreign threats to justify his actions.
The 1970 Special Report of the Interagency Committee on Intelligence that supported the Huston Plan repeatedly mentioned foreign trips by the targeted groups and their “potential for engaging in foreign-directed intelligence collection” as a reason for recommending illegal surveillance techniques—even while acknowledging that the Weathermen in particular were unlikely subjects of foreign recruitment because they operated underground and would likely draw the attention of American authorities if they worked with foreign entities. Seizing on these weak suggestions of foreign influence, Nixon cited vague “national security” concerns and “foreign support” for the violent activities of domestic groups and as justifications for the Huston Plan.
4.
Nixon’s effort to justify illegal surveillance based on attenuated foreign connections is rife with the potential for abuse. If the links that Nixon described actually justified presidential power to break legal restrictions, it would obliterate the principle that the president is to govern under the law. The pretextual use of foreign threats to justify infringements of rights at home was well known to the framers. James Madison made this point in a letter to Jefferson in 1798: “Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions [against] danger real or pretended from abroad.”
Even when presidents confront far more pressing and tangible foreign threats than Nixon asserted, the Supreme Court had made clear—decades before Nixon’s testimony in the Felt and Miller trial—that the president was not justified in taking the law into his own hands. In 1952, President Harry Truman seized the nation’s steel mills when an impending strike threatened the flow of arms and supplies to American troops engaged in battle on the Korean peninsula. Truman claimed this power as a wartime necessity: he asserted that the means Congress had given him to avert the strike were inadequate and that he had inherent power to act in his role as chief executive and as commander in chief. In its landmark decision, Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court rejected Truman’s action as a violation of the separation of powers. The Court held that the president did not have inherent authority to override legislative limits, even to avoid crippling an ongoing war effort with vulnerable U.S. troops abroad.
But Nixon drew a very different lesson from the Supreme Court’s decision. In his Washington Star essay, Nixon astonishingly cited Truman’s action as support for his own concept of emergency authority. He acknowledged the Supreme Court’s rejection of Truman’s claim of inherent power. But he cited Chief Justice Fred Vinson’s dissenting opinion, joined by two other justices, that the president had the power to take action at odds with legislation.
That Nixon found support in a dissenting justice’s views speaks volumes. The Supreme Court’s invalidation of Truman’s seizure of the nation’s steel mills, even in the face of claimed wartime necessity, still stands as one of the Court’s most resounding reaffirmations of the separation of powers and limits on executive emergency power. Nixon’s adherence to a view of presidential powers that contradicted binding Supreme Court rulings revealed the radical nature of his claims. Against that backdrop, Nixon’s Washington Star defense of his position can appear moderate and grounded only compared to the unvarnished statement in the Frost interview. At its core, Nixon’s essay articulated a jarring—and emphatically rejected—vision of unilateral presidential power in real or contrived emergencies.
The Supreme Court has remained alert to the declaration of an emergency as fictional cover for presidential power grabs. Earlier this year, in rejecting President Trump’s unprecedented imposition of worldwide tariffs under the International Emergency Economic Powers Act, Chief Justice John Roberts quoted Robert Jackson to make the point that the drafters of the Constitution recognized that “emergencies can ‘afford a ready pretext for usurpation’ of congressional power.” Nixon’s claims of emergency power prove the truth of that insight.
IV.
Nixon’s theory of emergencies, as unfounded as it was and as extravagantly as he practiced it, remained the pinnacle of presidential assertions of power of the modern era—until today. In his second term, Donald Trump has claimed executive power to act unilaterally and in disregard of the law, with or without the pretense of an emergency.
The distinction is important: Nixon framed an argument about what the Constitution permits; Trump claims that the Constitution is effectively irrelevant.
The examples are legion, evidenced in the opening salvo of executive orders, and they grow by the day. In the first days of his second presidency, Trump virtually abolished a federal agency in clear defiance of the law and froze federal funds that Congress had approved, particularly for foreign aid. This was only the beginning. As the New York Times’s Peter Baker wrote in December 2025, “In his first year back in the White House, President Trump has greatly expanded executive power while embracing the trappings of royalty in ways not seen in the modern era.”
To the extent that Trump claims emergencies as justifications for these actions, he generates them out of whole cloth. Perhaps the clearest expression of this appeared when Trump’s Secretary of the Treasury, Scott Bessent, tried to explain why tariffs could be imposed under an emergency law to advance the president’s desire to take over Greenland. “The national emergency is avoiding a national emergency,” Mr. Bessent said.
The Constitution never contemplated that a president would have such unrestrained and law-defying powers; rather, it presupposed that if he claimed them, he would face impeachment and removal from office. The Framers devised a careful system of checks and balances between three branches of government, recognizing, as James Madison wrote in Federalist No. 51, that “if men were angels, no government would be necessary,” and “if angels were to govern men, neither external nor internal controls on government would be necessary.” But humans are not angelic, so controls were essential.
The difficulty is that the Constitution was designed to cabin the power, first and foremost, of the legislature and secondarily of the president. In light of their experience, the Founders believed that, in a hereditary monarchy, the executive posed the greatest threat to liberty, but in a republic, the greatest threat came from the legislature. The Constitution accordingly strengthens the executive’s hand, while dividing the legislature into two chambers to dilute its power.
This scheme responded to problems in past eras; the Constitution’s drafters did not foresee the problems looming in the future. Perhaps they placed trust that George Washington, the inevitable choice for president, would not abuse his power. But over the course of American history, power has flowed to the president with seemingly irresistible force. Whether because of national crises, congressional lassitude, the ambition of presidents, political polarization, and/or sheer will, presidents and Article II have become more than first among equals. Arthur Schlesinger titled his 1973 book documenting the rise and expansion of presidential power, “The Imperial Presidency,” and he argued that the apex of executive power grabs was personified by Nixon. It is no accident that a recent work on the Trump presidency by Maggie Haberman and Jonathan Swan is titled “Regime Change: Inside the Imperial Presidency of Donald Trump.”
Nixon’s transgressions were finally too much for the nation, but they almost form a playbook for Trump. The power to impound funds that Congress directed to be spent provides an apt example. Justice Antonin Scalia once described Nixon as “the Mahatma Gandhi of all impounders,” claiming an “absolute right” not to spend funds. Scalia noted that the Supreme Court proved Nixon wrong, and Congress later enacted a statute to constrain presidential impoundments. But Trump has long disdained that law. And during his second term, he has taken impoundment to a new level, exploiting gaps, loopholes, and congressional passivity to enforce his will. The Supreme Court thus far has kept the judiciary from enforcing congressional boundaries, largely leaving it to the political branches to sort out.
In their views of presidential prerogative, Trump and Nixon seem cut from a similar cloth. Indeed, after Nixon’s resignation, Trump struck up a friendship with Nixon and the two corresponded. Trump framed a note that Nixon wrote in December 1987 stating that his wife, Pat Nixon, “predicts that whenever you decide to run for office you will be a winner!” Trump reciprocated the admiration, writing in 1993, “[Y]ou are a great man, and I have had and always will have the utmost respect and admiration for you.”
The Nixon and Trump presidencies are eerily similar. In their wars on the bureaucracy, their attacks on journalists, their determination to punish their perceived enemies, their zeal to control elections, their misuse of the IRS and Department of Justice, and in many other areas, they hold similar views of presidential power. But Nixon could only have dreamed about the power that Trump has flexed. A critical difference is that Trump has even less personal restraint. And his political dominance of a Republican party that controls both houses of Congress means that Trump seemingly believes that he can act with complete impunity. Nixon would likely only view with amazement and admiration how much further Trump has taken Nixon’s own imperial project.
The constitutional design depends on Congress playing its role as the constraining counterweight to presidential ambition. Congress is equipped with the power to push back: it has the sole authority to make laws; it has the power of the purse; the Senate must ratify treaties and confirm appointments; and the two Chambers, acting together, can resort to the ultimate power of impeachment when other checks fail. But Congress has at critical times in American history abdicated its role.
In a 1973 New Yorker article chronicling the Nixon presidency, the political journalist Elizabeth Drew described the impediments to Congress living up to its role as a co-equal branch. She observed that its 535 “egos,” its “limited attention span,” “its primary motivation … to get reelected,” and “its primary instinct to play it safe” all contributed to it being a “reactive branch.” Nixon, she wrote, understood these institutional inhibitions and exploited Congress’s “unheroic streak, its cumbersome ways, and its institutional confusion.” Ultimately, of course, the 1970s Congress rose to the occasion. The relentless revelations of the abuses of power in Watergate turned political momentum against Nixon and produced a rare consensus for impeachment that forced Nixon from office.
But the lessons learned from Watergate have faded. In the wake of Watergate, Congress enacted a “long and extraordinary” list of major pieces of legislation intended to check executive power and prevent a recurrence of Watergate’s abuses, as Justice Brett Kavanaugh noted in collecting those laws in his dissent in Learning Resources, Inc. v. Trump. These ranged from campaign finance reform—to restrict the slush funds that Nixon used to fund illegal activities and address quid pro quo corruption and its appearance—to ethics reform, to privacy protections, to regulation of government spending, to assertion of control over presidential papers, and much more. That legal structure, however, is currently under withering attack by Trump. In any event, legal restrictions may not prove equal to a president determined to press beyond constitutional limits as Trump is doing. And Trump has the added benefit of a supine Congress controlled by a party held in his iron grip.
* * *
Trump’s actions may make it easy to regard Nixon as almost benign. We remember Nixon’s transgressions and efforts to consolidate power in the White House through the lens of Watergate and Nixon’s downfall. The system held; the courts stood firm; Congress did its job. When we look back at Nixon, it is easy to see him as power-hungry president whose hubris was epitomized by his bald statement to Frost that when the president does it, his acts are, by definition, not illegal. Exactly. Nixon’s later effort in his Washington Star essay to walk that statement back has faded from memory. But it deserves another look.
For all of his lawless abuses, Nixon tried to situate himself in a tradition that recognized that extraordinary presidential powers can justify extraordinary acts. He sought to explain himself under the Constitution, not apart from it. Nixon’s distortions of historical tradition failed to support his overt lawlessness. But the current discussion of presidential power is taking place on another plane entirely. The distinction is important: Nixon framed an argument about what the Constitution permits; Trump claims that the Constitution is effectively irrelevant.
As evidenced by his rampant disregard for law, Trump sees few, if any, constitutional limits to his power. Instead, in describing his exercise of global powers, Trump has said that the only thing that can stop him is his “own morality.” This is the antithesis of a government of laws, not of men, as John Adams stated. For all of his grandiosity, even Nixon did not go that far. Only time will tell if Trump’s far more dangerous challenge to our constitutional system will meet the same fate as Nixon’s.
