In 1973 the Senate Watergate Committee uncovered a plan that had been hatched three years earlier by a man named Tom Charles Huston, a White House liaison to the Interagency Committee on Intelligence (ICI), a group chaired FBI Director J. Edgar Hoover to monitor “left wing radicals.” The Huston Plan, as it was known, laid out detailed operations to burglarize the homes and conduct electronic surveillance of these co-called radicals and even detain anti-war protesters in camps to be created in western states. President Richard Nixon signed off on the plan only to rescind his approval a few days later under objections from Hoover himself.
It was one of a number of nefarious plots uncovered during the investigations, including the actual burglarizing of Pentagon Papers whistle blower Daniel Ellsberg’s psychiatrist, an order to bomb the Brooking s Institute and the Watergate burglary itself. The Huston Plan was one that was never carried out but went directly to the president who signed the order.
I bring this obscure bit of Watergate lore up because it was the Huston plan that precipitated a very important historical question posed to Nixon by David Frost in their interviews in 1977. Frost asked Nixon:
So, what in a sense you’re saying is that there are certain situations and the Huston plan or that part of it was one of them where the president can decide that it’s in the best interest of the nation or something and do something illegal.
Nixon famously replied, “well, when the president does it … that means that it is not illegal.”
That answer caused a national uproar. The mere idea of a president being above the law, especially one who had been driven from office and then pardoned for his crimes by his successor was outrageous.
Nixon further explained that position in some detail. He said,:
[I]f, 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.
Frost followed up asking if the “black-bag” jobs that were authorized in the Huston plan would have been made legal by his action. Nixon said:
Well … I think that we would … I think that we’re splitting hairs here. Burglaries per se are illegal. Let’s begin with that proposition. Second, when a burglary, as you have described a black-bag job, ah … when a burglary, ah … is one that is undertaken because of an expressed policy decided by the president, ah … in the interests of the national security … or in the interests of domestic tranquility … ah … when those interests are very, very high … and when the device will be used in a very limited and cautious manner and responsible manner … when it is undertaken, then, then that means that what would otherwise be technically illegal does not subject those who engage in such activity to criminal prosecution. . .
He went on to say that he wasn’t suggesting that a president is above the law just that during war time and “virtual revolution in certain concentrated areas at home” the president does have under the Constitution extraordinary powers.
It sounded completely daft at the time and reinforced most of the country’s belief that Nixon was a tyrannical monster who never should have been anywhere near the presidency. He sounded absolutely nuts. However, there was a small group of conservative legal thinkers who agreed with Nixon’s views of presidential power and thought it was a shame that the congress and the courts had taken upon themselves to usurp the imperial power of the presidency.
The fact is that the presidency had been accumulating power ever since WWII. One of the stalest political tropes around is that once attaining power institutions and leaders rarely give it up and it’s true. By the time Nixon came along to crudely abuse the presidency to punish his political enemies, the presidency was already hurtling out of control. And sadly the reforms put in place after Watergate didn’t hold for very long.
The Reagan administration set about evading and disarming them immediately and a whole generation of young legal Reagan revolutionaries adopted the view that Nixon was right and the presidency had been inappropriately emasculated. They pushed novel new legal concepts like the “unitary executive” theory which puts strong constraints on any congressional authority to grant independent authority to executive branch agencies.
Five members of the Supreme Court came up in that legal atmosphere. Chief Justice Roberts and Justices Clarence Thomas and Samuel Alito were lawyers in the Reagan administration and Neil M. Gorsuch and Brett Kavanaugh, were in the George W. Bush administration. Justice Amy Coney Barrett didn’t work directly for a president and notably dissented in part of the majority opinion but she did work on Bush v. Gore with Kavanaugh and Roberts. This was a fundamental belief among the elite legal minds of the conservative movement.
But according to NPR Supreme Court correspondent Nina Totenberg, this isn’t just about ideology. They were also shaped by a long-standing gripe that their presidents had been unfairly constrained and harassed. It’s personal for them:
It is apparent that the Supreme Court majority, like the average MAGA voter and Donald Trump himself, is filled with bitter resentment. In fact, I would suggest that this entire unitary executive, imperial president philosophy stems from grievance over Richard Nixon being forced out of office all those years ago.
The ruling in Trump v. United States was the culmination of many years of careful, strategic planning by the right wing legal community. The six partisan justices in the majority played the long game and when they got the chance to implement their dream of an imperial presidency they did not hesitate. Not even the prospect of allowing a corrupt president unlike any other, including Richard Nixon, gave them pause.
Perhaps like Senate Majority Leader Mitch McConnell, they are counting on the Democrats to “take care of him” so they feel free to overlook his obvious criminality to advance their pet cause. Or maybe they are just grateful that his crimes gave them the opportunity to address the issue that’s animated them for so long. Either way, they have not only given the Donald Trump a get-out-of-jail free card they have weaponized the presidency knowing what criminals like Nixon and Trump are capable of. It’s not at all unfair to assume that’s exactly why they did it.
Salon