The opening of Frost/Nixon on Broadway has given reviewers the opportunity to remind us of the most famous line from the famous interviews:
FROST: So what in a sense, youre saying is that there are certain situations, … where the president can decide that its in the best interests of the nation or something, and do something illegal.
NIXON: Well, when the president does it that means that it is not illegal.
FROST: By definition.
NIXON: Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the presidents decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise theyre in an impossible position.
I ran across the quote in the New Yorkers gushing profile of the plays author (compiler? editor?), Peter Morgan, who also wrote or co-wrote The Queen and The Last King of Scotland, and ought to be steeling himself for the coming backlash.
New Yorks review praised Frank Langella – who will always be Dracula to me – for letting audiences in on the secret that Nixon had tremendous voter appeal:
Because this is a rare depiction of a Nixon I can imagine people voting for—if not enough to elect him president twice—it’s shocking (and timely) when Langella declares, “I’m saying that when the president does it, that means it’s not illegal.”
The International Herald-Tribune also marveled at the charisma of an actor who can remind people why Nixon, over the course of his career, received more than 110 million votes for President:
Taller and far more commanding than one remembers Nixon himself, Langella forsakes all facile attempts at mimicry to take us far inside the wounded psyche of a leader adrift in a hubristic landscape of his own devising – a politician who can declare on air, "When the president does it, that means its not illegal."
(Nixon, like all our recent Presidents except Carter, was above average height.)
The LA Times quotes the same line, and Time leads with it, and ABC News features it in a story about the upcoming movie. Part of the compulsive quoting is disguised Bush-bashing, of course, but something about that line still has the power to shock, or at least to produce indignation.
But theres an easy way to take the sting out of the line. Minimal editing is required to make it not only acceptable to modern political sensitivities but mundane. Who would have difficulty accepting Nixons pronouncement as self-evident truth if for "the President" we substituted "the Supreme Court"?
In 1992, Chief Justice Rehnquist observed: "Over the past 21 years, … the Court has overruled in whole or in part 34 of its previous constitutional decisions." As Ive suggested before, this ought to imply that on 34 occasions over 21 years the Court admitted that it had violated the Constitution. Worse than that, it had ordered all the lower courts of the nation to violate the Constitution, too. (See post 254.)
But that, of course, is not how American judges and lawyers, or the general public, perceive it. Weve somehow learned to accept the idea that each of those 34 decisions was correct, right up until the moment it was suddenly incorrect. Such instantaneous reversals of polarity hardly even disconcert us any more. Weve internalized the idea that if the Supreme Court does something, that means its not illegal, even if its exactly the opposite of what the Court did just a few years before.
The Supreme Court Historical Society sponsors an indoctrination site for schoolchildren, which includes Nixons infamous line and offers this suggested discussion topic:
It has often been said that in the United States we have the rule of law, not men. What do you think this means? Does President Nixons statement that "when the president does it [something illegal], that means that it is not illegal" support the idea that the United States has the rule of law, not men? Why or why not?
Heres my suggested discussion topic. Was the Supreme Court Historical Society being hypocritical, or just weirdly oblivious, when it put that question on its website? Which is more discreditable in an organization ostensibly devoted to the history of the Court? Why?
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