How SCOTUS turned ex-presidents into immune monarchs, made them above the law and protected by an “authoritarian constitution.”
Like a hand reaching up from the grave, the recent Supreme Court decision on presidential immunity represents the posthumous triumph of Richard Nixon, Robert Bork, and Antonin Scalia.
In a ruling that seems to place former presidents beyond the reach of criminal law, the court has breathed new life into Nixon’s infamous claim: “When the president does it, it can’t be illegal.”
On this WhoWhatWhy podcast we examine this constitutional crisis with Brown University law professor Corey Brettschneider, author of The Presidents and the People: Five Leaders Who Threatened Democracy and the Citizens Who Fought to Defend It.
Brettschneider unravels how the ghosts of conservative legal titans have shaped a ruling that threatens the very foundations of American democracy.
Brettschneider unpacks the concept of the “authoritarian constitution” — a dangerously expansive view of executive power that has gone from fringe theory to Supreme Court doctrine. He argues that the “unitary executive” theory, born in the ashes of Watergate, has evolved into a constitutional interpretation that could crown presidents as de facto monarchs.
More than an autopsy on democracy, Brettschneider offers a historical lifeline, showing how citizen movements have countered similar threats in the past. He argues that while Nixon may have won this battle from beyond the grave, the war for democracy is far from over — if “we the people” are willing to fight for it.
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Jeff Schechtman: Welcome to the WhoWhatWhy podcast. I’m your host, Jeff Schechtman. In a stunning decision that sent shock waves through the legal and political world, the Supreme Court recently ruled that former presidents are immune from prosecution for official acts committed while in office, even if those acts were criminal. This ruling, which goes beyond anything contemplated during the Nixon era, strikes at the very heart of our constitutional democracy. From the nation’s founding, a core principle has been that no one, not even the president, is above the law.
Our founding fathers, having fought against the rule of kings, deliberately created a system of checks and balances to prevent the concentration of power in any single individual or branch of government. This recent decision seems to upend that fundamental tenet, raising alarming questions about the integrity of our democratic institutions and the rule of law. To help us understand the historical context and potential consequences of this, I’m joined today by Corey Brettschneider, a professor of constitutional law and political science. In his new book, The Presidents and the People, Brettschneider examines five presidents who pushed the boundaries of executive power and the citizens who fought to defend our democratic principles.
Brettschneider’s work provides a crucial historical lens through which to view our current crisis. As we grapple with a ruling that seems to place former presidents beyond the reach of criminal law, we’ll explore how past citizen movements brought the US back from similar challenges and what lessons they might hold for us today. Corey Brettschneider is a professor at Brown University, where he teaches constitutional law and politics. And it is my pleasure to welcome Corey Brettschneider back to this program to talk about his newest work, The Presidents and the People. Corey, thanks so much for joining us here on The WhoWhatWhy podcast.
Corey Brettschneider: Thanks for having me. Looking forward to the conversation, and thanks for that great introduction.
Jeff: Well, it is a delight to have you here. When you think about this current situation, the recent Supreme Court ruling, the thing I think that comes to mind most readily for a lot of people is Richard Nixon in his conversation with David Frost when he said, “When the president does it, it can’t be illegal.” Talk a little bit about that, how people reacted to that at the time, and how legal scholars thought about that when Nixon first said it.
Corey: It’s a great jumping-off point, and it’s often cited, of course, for the idea that Nixon was unhinged, that he would say such a thing, but my take on it is different. I look not just at the statement, of course, but the wider interview, and the wider philosophical ideas that Nixon brought to the table. And what I show is that it wasn’t a one-off comment. It really was his reflected view of how to understand the presidency. And just to get in deep, he cites Lincoln and says, “I’m like Lincoln. Lincoln was in a civil war and essentially suspended the Constitution, and that’s what I’m doing.”
In times of war – and just to be clear, the civil war he was referring to was the protests that were about Vietnam – he thought that that division was so vast that it aggrandized his own power. And that might seem like an anomaly, and there’s a way to talk about it that suggests that he’s really different from every past president. But part of what I’m trying to show is that there is an unfortunate but very real trend among some presidents, in particular these five who threatened democracy, and that’s to read the Constitution as a kind of authoritarian document.
So there is this tradition of an authoritarian Constitution. Of course, there’s a response to that, a much more democratic idea, including the grand jurors who I profile in the Nixon chapter, who actually tried to indict him but were stopped by the special prosecutor, convinced to at least delay. They had a very different idea, which is a simple one and I think the common sense one that we know now, is the idea that no person is above the law. That’s how they saw it. So Nixon really did have a, you know he was a lawyer, a well thought out and deeply flawed idea of the Constitution; it fits in this authoritarian tradition. And the citizens of the grand jury tried to indict him, as well as Daniel Ellsberg, the target of most of his ire. So much of it was targeted at Ellsberg, who he saw as a leader of the civil war opposing side, protesting the war. They had this idea of a democratic Constitution, and so fundamental to it is this notion that the law applies equally to all people. And so if you have a president who commits a crime, they should be prosecuted. Now, here’s the crazy thing about the immunity decision. It’s part of the authoritarian Constitution.
But although it was common, at the time, for Nixon’s advocates and allies, including his office of legal counsel to claim a sitting president was immune, the reason this ruling is just so over the top is because it’s about a former president, and I don’t think even Nixon had that idea. But just a last thought about Nixon in that statement that he made in the interview, the book is really about how we’ve recovered in the past from authoritarian understandings of the Constitution, but clearly, we haven’t recovered from Nixon’s authoritarian idea. And so, in some ways, the book is a call for that kind of recovery.
Jeff: And yet the one thing that’s changed fundamentally since Nixon’s efforts to do this is that the Supreme Court has now put its imprimatur on these Nixonian ideas.
Corey: That’s so true. I mean, really, in the end, Nixon had these ideas, and he had allies, certainly, in Justice Scalia, and Justice Bork. And they went from Justice Bork being essentially a member of Nixon’s administration. Scalia never served under Nixon but was nominated, and certainly, did serve under Ford. And they, from the beginning, were trying to vindicate Nixon’s ideas, and as they saw themselves get increasing power, Judge Bork as an academic and as a judge, and of course, Justice Scalia the most important justice for understanding the contemporary moment, really did revive the idea.
And under the banner of the unitary executive, it really has recovered the notion that when a president does it, it’s not illegal. It turns out that under the current unfortunate ruling of the Supreme Court, it’s a vindication of Nixon. And that’s why it’s so important that we not stand for it. It’s not as if the court has spoken, and that’s the end. In the past, courts and presidents have really threatened our democracy, and we fought back. And that’s what this book is about, and it’s about the need to do so now.
Jeff: And you talk about Bork, and it is so clear when you look at the arc of Bork and the attempt to put him on the Supreme Court, that his views were considered extreme at the moment, at that particular time, and yet that’s now become the accepted wisdom of the current court.
Corey: Absolutely. Bork has had his revenge.
Justice Scalia was much quieter in his nomination unlike Bork, who really fought with Joseph Biden, who was then the chair of the judiciary committee about the unitary executive, about originalism. Scalia stayed quieter about his views and that worked out for him. He was able to get on the court, and in a case called Morrison, he was still in the minority about a case about whether or not a president can be checked by an independent counsel, the law that was created to try at least to recover from Nixon, signed by President Carter into law.
What that law did is it took an independent prosecutor and gave that person protection from firing by the president, by bringing them outside the Department of Justice. One of the things that office did is there was a memo written talking about why not just former presidents, but sitting presidents can be indicted for crimes. Now, that law was opposed by Justice Scalia in the Morrison case. It was upheld eight to one, but he wrote a fiery dissent. And really, that dissent is sort of the birth of this idea of the unitary executive that you see the court affirming in the recent immunity case.
The other ally he had – this is bipartisan, I think in some ways, the affirmation of the unitary executive, because Bill Clinton, when he found himself under criminal investigation by Ken Starr and was worried about his own indictment, his office of legal counsel wrote another memo affirming Nixon’s view that sitting presidents were immune from prosecution. And Clinton went further than that. He allowed the law to expire.
And so we’re right back to the beginning where if Trump were to win, there is no question in my mind that he would be able to fire Jack Smith and any prosecutor that was looking into his own wrongdoing because no longer is such a person outside the Department of Justice. They work for the president. Just as Nixon did fire Archibald Cox, Trump would do the same here too. And so, unfortunately, it’s not just that Nixon won over a few acolytes like Bork and Scalia, it’s that he really did win in the long term by convincing even a democratic president to take his side in the matter of independence of prosecution, of the possibility prosecuting sitting presidents, and we’re seeing the results of it now.
Jeff: Talk a little bit about this notion of the unitary executive for our listeners that don’t fully understand what that means.
Corey: Sure. The idea starts with a simple principle, it’s that we have one president, a unitary executive, literally one person who the executive power is vested in. And that part of Article 2, which creates the Constitution, is very important for that understanding of the presidency. And the unitary executive focuses on a matter that might seem obscure, hiring and firing. And they were really the creators of this view, and I think of Justice Bork as the most important, Justice Scalia as the second most important. Really, what they tried to say was that a president should have full power over hiring and firing.
Now, what about when it comes to the person looking into his or her crimes, Jack Smith or Archibald Cox in the Nixon case? And that was really the origin of the idea that, yes, Nixon was able to fire Cox, did so legally as Bork often maintained. Now, when it comes to the contemporary cases, the theory of the unitary executive could be used if Trump won, to both justify his own firing of Jack Smith. And I think its related idea is underneath the immunity ruling that a president is so singular in his or her executive power that there is no one out there that can bring charges against him or her. So the idea of immunity really stems from this broader idea of the unitary executive.
Jeff: Talk a little bit about Scalia and the way he approached this, or the way he might have approached it today if he was still in the court.
Corey: I see this ruling as very much a Scalia-like ruling. I mean, it is so extreme in the claim about former presidents being immune, but it comes right out of a lot of his ideas that the president alone has the executive power vested in him or her, that there’s a worry about separation of powers, of anyone being able to bring charges against such a person. So it might have gone further than he would have gone, but his ideas certainly gave rise to it in many ways. And as I argue in the book, this authoritarian idea that Nixon had, put in the most blunt terms, when a president does it, it’s not illegal, there’s no way that Bork or Scalia would say anything like that; they’re just way too subtle in their arguments, but what it amounts to is pretty close to those words uttered by Nixon. And that’s why, as I say, we’ve recovered.
John Adams shut down the opposition party. We recovered not by courts. Courts then, too, Samuel Chase and others not only upheld that law, but lobbied for it, saw that the editors who tried to defend themselves couldn’t even raise a free speech claim. But the way that we recovered was through politics, not through courts. And the recreation of the democratic Constitution. The election of 1800 became a referendum on democracy, and these editors really worked to elect Jefferson with the pledge that he would restore free speech, and Madison, who even during the War of 1812, didn’t shut down the opposition party.
So that’s a very different kind of example. Early in the republic, we also faced threats to democracy, and we recovered through politics. It’s not courts that did it, and now it’s certainly not going to be courts that help us to recover from this crisis of democracy. It has to come in the next election.
Jeff: Is it fair to say, using these five examples that you use in the book, that with each successive president that challenged democratic norms that pushed the envelope in terms of these areas of legality, that each time the envelope gets pushed further and further and further?
Corey: Well, I think of it more as a cycle that we have these crises of democracy caused by presidents in each of the five instances.
In the first, just to mention what they are, the shutdown of free speech by John Adams. Not just free speech, but the right to dissent, the right of an opposition party even to exist. That’s what he does with the Alien Sedition Act. He goes after his political opponents. Even Thomas Jefferson, the vice president, is worried about being prosecuted because he’s an opponent, of course, of the president.
The second, President Buchanan lobbies the Supreme Court successfully, to deny all rights to Black Americans under the Constitution in the famous Dred Scott case. He pretends to be neutral, but that’s the role that he plays, we now know through history.
Andrew Johnson tries to bring slavery back under a different name, White supremacy, and second-class citizenship. Then he claims that’s consistent with slavery.
Woodrow Wilson and the attempt to nationalize White supremacy.
And then finally, Nixon and the attack on the rule of law, the criminality way beyond Watergate. The attempt, for instance, to incapacitate Daniel Ellsberg on the Capitol steps, what we now know from the tapes, the order to break into the Brookings Institution and steal the damaging information that was in a safe there on what he calls “a thievery basis.”
All of those crises are so serious. They’re caused by presidents, but in four of them, we recover. And the way we recover is never through courts. It’s through citizens standing up for themselves. And it’s the fifth that we haven’t recovered from. So it’s a cycle idea in the book, of crisis and recovery, except for the last one.
Jeff: What seems different about our current situation, and I guess it does begin with Nixon, is that in the first four, they were fundamental issues of policy or governance or ideology that were at the core of these attempts to stretch the powers of the Constitution. In the case of Nixon, and certainly, in the current Supreme Court case, it’s really about individual power more than it is about governance or principle or ideology.
Corey: Yes, that’s interesting. I’d have to think more about it, but I appreciate the thought. It’s certainly right that there were ideological views of Adams in trying to shut down free speech. He thought the president was a constitutional monarch, and so you couldn’t criticize the president anymore you could a constitutional king. The second is, of course, about the ideology of protecting slavery by denying all rights to Black Americans. And the third and fourth are about an ideology of White supremacy. But I guess I would say that in all of them, including the Nixon case, the fifth, there’s a mix of two things.
One is certainly personal ambition. Adams is regarded as the premier constitutional thinker of his time, but it’s not like he’s just a pure philosopher. He’s upset, for instance, about attacks by these editors on his family members, including his son, and Abigail Adams, his famous spouse, urges him in part to defend his son. And so there’s a personal element in that, too. And Buchanan, why is he hiding his views and lobbying the Supreme Court? Publicly, he’s proclaiming neutrality. There’s a personal ambition in that, too, not just an ideological one. And I’d say the same with Wilson when you see him confronted by William Monroe Trotter, one of the great citizen heroes of my book, who calls him out on his re-segregation of the federal government and his nationalization of the culture of White supremacy. He reacts by extremely dismissive, “How dare you challenge me?”
So there is a personal element, I think, in the first four, although you’re also right. I don’t want to say it’s just that, that it’s certainly about ideas, and authoritarian ideas, not just authoritarian attitudes and feelings.
And in the Nixon case, I’d say the same, too, that we know so much about his paranoia. We hear about his ranting and his drunkenness, but he was a lawyer. And if you listen to that interview, it’s crude. But the idea that no person is above the law really gives rise to an ideology. And the ideology or philosophy of the unitary executive is the philosophy of this current Supreme Court. I’m obligated when I teach first-year law students, for instance, at Fordham Law School, where I teach every year, too, to teach them about this theory and the cases that go along with them. I wish I could just say it’s a bad attitude, but it’s law.
So I’d say in each of them, it’s depending on what we have tended to know, and the book is trying to correct this, it’s a mix of both personal ambition. And Adams was really caught up in ego, I think, in a similar way to Nixon, even though he was much more scholarly about it. So it’s about personality, but it also certainly, in all five, I think, is also about ideology.
Jeff: Are there similarities in looking at the first four in particular, historically, similarities in the way the public reacted and began to address these, those citizen movements that you talk about?
Corey: Yes, absolutely. And that’s a core claim of the book, that what these citizens did in fighting back, and it was not public officials who did it.
Part of the idea, just to recap for listeners, of course, many of whom haven’t read it yet, although I hope they will, is that we’re taught in grade school, in middle school, in high school, about the famous system of checks and balances. And the idea is the Supreme Court is supposed to check an authoritarian president, or Congress is supposed to check an authoritarian president. And the thesis of the book really goes back to Patrick Henry, who says, “Look, these checks aren’t going to work. The presidency is so powerful that if you get a good person in power, fine, they’ll work. They’ll listen to the checks. What if you get a criminal president of the kind that I talked about?”
Henry’s warning is that person is going to realize the checks don’t work. And, in fact, as they realize the checks don’t work, they start to see that they’re going to become more criminal, more ambitious until – and this is the radical claim that might have seemed paranoid, until the court’s recent decision and recent events, and of course, the presidency of Donald Trump – that person might crown themself a monarch, he says, that that’s how ambitious and how weak the checks will be. So the book tries to take that claim seriously. And I do argue that the checks of the Supreme Court, the checks of Congress, really haven’t worked in the way they’re supposed to work.
What has worked? It’s these citizen movements galvanizing behind a recovery president to recover from the authoritarian ideas, to recover a democratic constitution. And that works in the four cases because the newspaper editors who find themselves prosecuted turn their own trials, publicize them into a trial of John Adams’s authoritarianism, and a call for the election of Jefferson, and subsequently, Madison, who promised to restore the democratic constitution. And that happens in the other cycles as well, I’ll mention briefly in the second. Buchanan is opposed by Frederick Douglass, a citizen, a formerly enslaved person who appeals to the Constitution.
That’s the common element. It’s galvanizing a constituency behind the citizens to elect a recovery president using a democratic idea of the Constitution. That’s crucial. They’re not just trying to defeat authoritarianism, they’re trying to restore a democratic idea. In the case of Johnson, there’s a recovery with Grant. In the case of Wilson, the recovery takes decades. But I talk about some unknown heroes of the Civil Rights Movement. Most importantly, Sadie Alexander, who uses the Civil Rights Committee that she’s appointed to by Truman, to really advocate for a serious recovery from Wilson, laying out an agenda of not just reversal of Plessy versus Ferguson, not just a demand, which Truman complies with, with the desegregation of the federal government, but also most importantly, the use of financial incentives to demand desegregation in America’s public schools, what becomes Title VI of the 1964 Civil Rights Act. She comes up with that, the citizen.
So the recoveries aren’t happening in court, the real recoveries. They’re happening with these citizens, with movements behind them. In Sadie Alexander’s case, of course, the Civil Rights Movement, the NAACP is backing up what she’s doing in this committee. And in fact, that’s the reason why the committee is appointed in the first place. Walter White is able to convince Truman to appoint a committee to look into recovery, essentially, from Wilson’s nationalization of White supremacy. So that’s the pattern. It’s citizens standing up to an authoritarian president to recover a democratic idea of the Constitution.
Jeff: But more than citizens, these were not just pure grassroots efforts, you talk about recovery presidents, that each of these required really charismatic leadership to counter this.
Corey: Absolutely. What a great point. In court, it’s supposed to be just the best argument wins, and that’s really not how these constitutional constituencies operate. They themselves made use of rhetoric. They were charismatic, the leaders of them. They galvanized people behind them – of course, you need charisma to do so. And then they demanded of presidents who had to after all lead the country, not just the small legal reform, but the restoration of an idea.
And in the case of Jefferson, wow, what a moment when, in the first inaugural, he says, famously, “We’re all federalists, we’re all Republicans,” meaning we all have aspects of the party I just defeated. “And my party, the Democratic-Republicans, I’m not going to shut down the opposition. America is about multi-party democracy.” Two of the most important sentences ever uttered by a president.
And we see that in these other cases too. The partnership, for instance, that I talk about in that 1964 Civil Rights Act between Martin Luther King, who really goes from being a theologian to stressing the importance of an anti-tyranny principle at the core of the Constitution, echoed by Lyndon Johnson in, for instance, his most famous speech about voting rights after the passage of the 1965 Voting Rights Act.
Those recovery presidents alongside these charismatic citizens who were their allies, really, is what saved the democratic constitution from the authoritarian one. And my hope is certainly that that will help in the future again.
Jeff: Do you see anything in the political or media environment today that has the potential to either enhance this recovery in the way you’ve shown it historically or to impede the kind of recovery that we’ve seen in the past?
Corey: Well, I think one thing people often point out is that during the Nixon era, which is true, that media was more consolidated. So, lots of people watched the Watergate hearings, and they were aired, of course, on the three networks. Now we’re much more diffuse. But my response to that is that everything that might look like a weakness, actually, a lot of it was present during the past recovery. So during Adams, those newspapers are certainly partisan and fragmented. During the recovery led by Frederick Douglass, his newspapers, The North Star, and Frederick Douglass’s paper really are read by a few thousand people, not millions, certainly. And William Monroe Trotter, similarly, his audience is not anything like a modern audience, even in fragmented media.
So things that might make it seem impossible to have such a recovery now, I think when you look closely there were challenges then, too. Of course, we’re facing a distinct threat in a few ways. One is these crises presidents, as I call them, the five who threaten democracy, do disappear from the scene after their presidency. In the case of Donald Trump, who really captures the danger of all five of them, he’s come back. And so that’s unique in the moment.
And the sort of disinformation that you see now is a challenge. I wouldn’t say it’s totally unique. There’s a lot of argument about facts and fake news. They don’t use that phrase, but certainly, from the founding when you have these partisan outlets. So there is a difference in that this person, former President Trump, might come back. That didn’t happen before. There is a challenge in the threat to questions of fact that is not unique. I guess the one thing that really is a little different, not totally unprecedented, and I’ll say why, is the undermining of faith in the electoral institutions.
Now, why I say it’s not totally unprecedented is because one of the things that I uncover about John Adams is that there was a plot by his party to steal the election of 1800 in an eerily similar way to the way that Trump tried to do it four years ago. What Adams’s party does is they come up with a scheme where there’ll be a committee appointed that will have the power to deny the certification of electoral votes, with the plot that they’ll throw the election as the Constitution requires, without enough certified electoral votes, to the House of Representatives. And there are enough Federalist votes in the House of Representatives for Adams to win. When that plot is uncovered that’s what triggers the Sedition Act. That’s why all these editors are prosecuted. So even that, although there are elements that are unique, has eerie similarity with past examples.
Jeff: So history does repeat itself, or in the words of Mark Twain, it certainly rhymes.
Corey: Yes exactly. I think that’s, if I had to have a theme of the book, that would be it, absolutely.
Jeff: Corey Brettschneider, his book is The Presidents and the People: Five Leaders Who Threatened Democracy and the Citizens Who Fought to Defend It. Corey, I thank you so much for spending time with us today here on the WhoWhatWhy podcast.
Corey: What a pleasure. Thanks for these great questions and for really paying such attention to the details of the book, and I look forward to hearing from your listeners.
Jeff: Thank you so much, and thank you for listening and joining us here on the WhoWhatWhy podcast. I hope you join us next week for another radio WhoWhatWhy podcast. I’m Jeff Schechtman. If you like this podcast, please feel free to share and help others find it by rating and reviewing it on iTunes. You can also support this podcast and all the work we do by going to whowhatwhy.org/donate.
