Invoking the 'Nixon Defense'

When it comes to protecting George W. Bush and his administration, Attorney General Michael Mukasey is stretching legal arguments as far as his predecessor Alberto Gonzales ever did – now even invoking the "Nixon Defense" for justifying presidential wrongdoing.

This week, Mukasey argued that there is no legal basis to prosecute current and former administration officials for authorizing torture and warrantless domestic surveillance because those decisions were made in the context of a presidential interest in protecting national security.

"There is absolutely no evidence that anybody who rendered a legal opinion, either with respect to surveillance or with respect to interrogation policies, did so for any reason other than to protect the security in the country and in the belief that he or she was doing something lawful," Mukasey said during a Dec. 3 roundtable discussion with reporters.

Mukasey's argument is, in essence, the same as Richard Nixon's infamous declaration in his 1977 interview with David Frost that – in the context of Nixon's illegal wiretappings, black-bag jobs and infiltration of antiwar groups – "when the President does it, that means that it is not illegal."

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As with the "Nixon Defense," Mukasey maintains that – at least when Bush and his subordinates are involved – a justifiable intent negates any violation of law. In other words, if Bush or his advisers decide that some illegal act is necessary for national security, the act becomes, effectively, legal.

Mukasey is wrapping his extraordinary argument in the context of protecting Bush's subordinates – at places like the Justice Department's Office of Legal Counsel – from second-guessing for giving the President advice on what he can do in engaging in acts that would be illegal if done by someone else.

"If the word goes out to the contrary, then people are going to get the message, which is that if you come up with an answer that is not considered desirable in the future you might face prosecution, and that creates an incentive not to give an honest answer but to give an answer that may be acceptable in the future," Mukasey told the reporters.

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