Nixon didn’t break the Constitution. Will Trump?
President Trump has now made clear he believes he is above the law, posting on social media, “He who saves his country does not violate any Law.”
This is not the first time that the U.S. has faced the danger of a president ignoring the law and potentially even defying a court order. Over 50 years ago, we escaped that risk during Watergate. But unless the public better understands the dangers of an “I am above the law” president, the result today will not be the same.
In October 1973, the Court of Appeals in Washington upheld a District Court order directing President Richard Nixon to turn over tapes of presidential conversations to Watergate Special Prosecutor Archibald Cox. Would he comply with the court order?
Nixon directed the special prosecutor to accept a “compromise.” Cox said no and explained why the “compromise” was unworkable and non-compliant with the court order. The result was the so-called "Saturday Night Massacre," in which Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus each resigned rather than follow Nixon's order to fire Cox. Solicitor General Robert Bork then fired Cox.
The result was a firestorm of criticism, including from the public and from Democratic and many Republican office holders. As a result, within days Nixon reversed course and produced the tapes. A constitutional crisis had been avoided.
We obviously no longer live in 1973. Trump is an effective demagogue, and he has created a climate of fear that has led to a Republican Party dominated by officeholders fearful of meaningfully challenging him or who share his disdain for constitutional norms. In 1973, the non-print media reporting the news was largely three respected national television networks. Today we have Fox News, many other right-wing media and parts of social media that are all willing to parrot Trump’s propaganda rather than challenge the legality of his actions.
Most important, however, we have a large percentage of the public seemingly not sufficiently motivated to rise up in protest to demand action from their elected leaders when Trump — and his “co-president,” Elon Musk — simply ignore the law or threaten to defy court orders. The changed media environment and Trump’s demagogic skills reinforce this.
As Trump and Musk take a sledgehammer to government programs and effectively dismantle entities that were created by statute, much of the public only sees a generalized cutting of spending, which they like. For many Americans struggling with the pressures of everyday life, the threat to our system of checks and balances seems too abstract to be their focus.
We thus must find better ways to warn all Americans of the dangers of a president ignoring the requirements of statutes passed by Congress or the orders of courts declaring executive actions illegal. That leads to chaos, where laws are either ignored or enforced depending on who is in the White House.
Here are some questions that Americans who support Trump’s actions should consider.
Trump has used a dubious declaration of national emergency to enhance his immigration enforcement powers. What if the next president declares a national emergency because we lack sufficient workers to operate our farms and other essential industries, ordering that enforcement of all immigration laws be suspended for six months?
What if the next president decides that statutes forbidding federal dollars from being used for abortion-related services represents bad policy, and without bothering to get the law changed, issues an executive order declaring that those restrictions will no longer be followed? And then what if that president decides to ignore court orders declaring his actions illegal?
Or what if a new president, finding that the cycle of gun violence constitutes a national emergency, announces he doesn’t believe the Second Amendment applies to assault weapons and, without going to Congress, authorizes a program to seize all such weapons?
Whatever we think about the underlying policies, in America we should not want a president to have the unilateral ability to take any of these actions. The same is true of the actions being taken by the Trump administration.
Our democracy has flourished for nearly 250 years because the respective roles of the three branches of government were respected. The Congress makes the law, the president implements and enforces the law and the Supreme Court both interprets the law and makes sure the other branches abide by any legal or constitutional restrictions.
With all the problems that now exist in America, this system of government has enabled us to become the most successful nation in history. It is up to all of us to do all that we can to preserve it.
Richard J. Davis is an attorney. He was assistant secretary of the Treasury in the Carter administration and an assistant Watergate special prosecutor.
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