Introduction

In 1977, former president Richard Nixon agreed to be interviewed by British journalist David Frost for recordings broadcast on television. The interview tapes went over twenty-eight hours, and were produced as four television episodes, viewed by millions of people worldwide. In this selection, Nixon defends the Huston Plan, which included illegal efforts to monitor anti-war and countercultural activists.

In doing so, Nixon offers a theory of executive prerogative that goes beyond that offered by Jefferson and Lincoln (Letter to John B. Colvin and Letter to Albert G. Hodges). Unlike Jefferson, Nixon argues that the Constitution itself allows the president to break the law. Unlike Lincoln, Nixon assumes that this power can be used even when the Union is not at stake.


Source: Sir David Frost, Frost/Nixon: Behind the Scenes of the Nixon Interviews (New York: Harper Perennial, 2007), 254-6, 266-71.


Frost: You called a meeting on June the fifth, 1970, about the Huston plan and eventually approved it in July. It got your okay on July the fourteenth, didn’t it? And in the Huston plan it stated very clearly, with reference to the entry that was being proposed, it said very clearly, use of this technique is clearly illegal, it amounts to burglary … however, it is also one of the most fruitful tools and it can produce the type of intelligence which cannot be obtained in any other fashion. Why did you approve a plan that included an element like that … that was clearly illegal?

Nixon: Because as president of the United States … ah … I had to make a decision, as has faced most presidents, in fact, all of them, ah … in which, ah … the national security in terms of a threat from abroad, ah … and the security of the individual … individual violence at home had to be put first.[1] Ah … I think Abraham Lincoln has stated it better than anybody else, as he does in so many cases. When he said, “Must a government be too strong for the liberties of its people? Or too weak to defend or maintain its own existence?”[2] That’s the dilemma that presidents have had to face, ah … Roosevelt had to face it in World War II. Truman and Eisenhower in the Cold War period. Kennedy and Johnson as Vietnam began to come in. And Kennedy, of course, even before Vietnam began to escalate, had the beginning of the violent racial disturbances … ah … which led to some activities in this category. Now let’s first, let’s second understand what the surreptitious entry is limited to. You will note that a surreptitious entry in cases involving national security and specifically mentions, ah … two, ah … groups of, ah … internal organizations who had no foreign connections as far as we know. Ah … the Weathermen and the Black Panthers.[3]

Now, why were we concerned? Let’s look at the year, 1970. We had a situation where thirty-five thousand people, ah … had been victims of assaults. A number of them had been killed. It was a year in which we had, ah … sixteen airplane hijackings. There had been about eleven the year before. Ah … but most significantly, it was a year in which there had been thirty thousand bombings and fifty thousand …I mean, sorry, three thousands bombings, three thousand bombings and fifty thousand bomb threats … which caused, ah … the evacuation of buildings. Ah… it was a year of turbulence in American society. Ah … ’‘68 … ’69 … ’70 … the residue of the terrible period of ’68. Washing over into ’69 and continued through ’70 and then, thank God, began to go down in ’71 and ’72, when calm was restored to the campuses. The cities did cease to be burned, and bombings did go down. And while we’ve argued about our crime statistics, where at least in ’72 there was a decrease rather than an increase. Alright, now, now in 1970, in the middle of 1970, ah … we were faced with a situation here, first, where the intelligence agencies weren’t working together. Ah … there were CIA … was not speaking to the FBI … the NSA, the National Security Agency, which of course does all of our [cryptographic] work. That’s the highly sensitive, technical work, you know, to break codes and that sort of thing … had very little communication with the other two. Ah … under the circumstances I felt that we had to coordinate these activities and get a more effective program for dealing with, first, foreign-directed, ah … espionage, ah … or foreign-supported, ah… subversion. And in addition with domestic groups that used and advocated violence… .

Frost: 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: Well, when the president does it … that means that it is not illegal.[4]

Frost: By definition –

Nixon: Exactly … exactly… if the president … if, 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: So that the black-bag jobs that were authorized in the Huston plan … if they’d gone ahead, would have been made legal by your action?

Nixon: 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. That’s the way I would put it. Now, that isn’t trying to split hairs … but I do not mean to suggest the president is above the law … what I am suggesting, however, what we have to understand, is, in wartime particularly, war abroad, and virtually revolution in certain concentrated areas at home, that a president does have under the Constitution extraordinary powers and must exert them with … as little as possible. . . .

Study Questions

A. Does it matter whether the Huston Plan was designed to counteract foreign espionage or domestic opposition? Could Nixon have sought approval from Congress for this operation?
B. Nixon’s assertion of executive prerogative clearly goes beyond that of Thomas Jefferson (in his letter to John Colvin) and Abraham Lincoln (in his message to Congress or his letter to Albert Hodges). But the more interesting question is whether Lincoln and Jefferson’s arguments necessarily lead to something like Nixon’s claim. Is there a way to make their arguments without leading to what Nixon says? Or, does either Jefferson or Lincoln offer the safer path for constitutional government?

Footnotes

  1. Frost indicates the pauses characteristic of Nixon’s speaking style by means of ellipses. Hence, in this document excerpt, we indicate omitted text by means of footnotes.
  2. Nixon paraphrases a sentence from Lincoln’s Special Message to Congress on July 4, 1861 (Document 16).
  3. The Black Panther Party was founded in Oakland, California in 1966, initially to monitor police treatment of black citizens; the group espoused a Marxist, black nationalist ideology and became involved in violent conflicts with police. The Weathermen, also known as the Weather Underground, formed in 1969 as a militant faction of the campus-based socialist organization Students for a Democratic Society. Seeing themselves as leaders of a revolutionary movement that would put an end to US “imperialism,” they engaged in domestic terrorism.
  4. At this point in Frost’s published transcript of the interview, he injects an editorial comment, which we omit.