President Richard Nixon famously said: “When the president does it, that means it is not illegal.” A more recent occupant of the White House apparently took that to heart and applied it to many actions taken while in office.
But what is and isn’t illegal for the president to do — and when should those questionable actions be viewed as crimes and prosecuted as such? How can anyone, from reporters to their audience, really know what’s politically motivated and what’s justifiable investigation and prosecution?
Kristy Parker and Anne Tindall work for Protect Democracy, a watchdog organization focused on raising the alarm against authoritarian threats, while bringing to light the importance of protecting democratic ideals and principles upon which the United States was founded. They’ve recently written a report, with Justin Florence, entitled “How to tell whether a government investigation or prosecution is ‘weaponized’.”
“When we think about what Protect Democracy’s mission is, preventing our democracy from sliding to a more authoritarian form of government, one of the things we focus on is how to hold up the fundamental democratic ideal that no one is above the law, including those who occupy the highest positions in our politics,” Parker says. “We came to an organizational conclusion that in order to foster and further that principle, that no one is above the law, and we live in a rule of society. We needed to advocate for the idea that if the president of the United States does something unlawful, he or she needs to be held accountable for that. We also needed to balance that against the concerns the people who founded our government had from the beginning, that government powers would be used inappropriately to further political objectives.”
Of course, 200+ years ago, the Founding Fathers didn’t have social media and a 24-hour news cycle to contend with, driving political divisions and increasing stress and tension within the nation. The prosecution of Nixon had bipartisan support from a more united nation that shared the same views on breaking the law; the investigations into former president Trump’s actions don’t have that same unity of support.
“Often you see in reporting on the indictments we’ve seen in the last week and over the summer, a suggestion that because an investigation has political ramifications it is necessarily politically motivated. That’s just not true,” Tindall says. “If we can’t accept investigations and prosecutions where there are political consequences — there’s no question that being indicted will have some impact on Donald Trump’s ability to run a presidential campaign — if the standard is that if it has political implications it is overly politicized and shouldn’t be done, that means our candidates for office and office holders can’t be prosecuted. That can’t be the rule in a system that is ostensibly based on the rule of law.”
The form of democracy in the United States also established a system of checks and balances designed to keep each separate branch of government from overstepping its limits of power.
“Those are the most fundamental and crucial checks we have. When we have a faction in Congress that’s more loyal to a president of the same party than to Congress as an institution, the checks stop working as well,” Parker says. “The most effective congressional investigations are certainly those where there is bipartisan support and a commitment to uphold the institution’s prerogatives in order to play the proper role of congressional overseers. When that breaks down by party instead of institution, it’s just not as effective.”
The law applies to everyone equally, regardless of status or position or political affiliation, or there are fundamental weaknesses in the system of law that cannot be remedied before those weaknesses are exploited.
Kristy Parker and Anne Tindall from Project Democracy discuss a new report they co-authored with Justin Florence entitled “How to tell whether a government investigation or prosecution is ‘weaponized.‘”
