When ‘The President Knew’ Was No Defense

Lawyers for John M. Poindexter argue that President Reagan knew about the activities that led to Poindexter’s indictment in the Iran-Contra affair and even approved them. Is that a defense? Can the President authorize someone to break the law? Can Poindexter compel Reagan to appear at trial? Are individuals responsible for their actions?

These questions were raised in a much earlier period by another military man on trial, and answered on the side of individual accountability. Col. William S. Smith, prosecuted by the Jefferson Administration for violating the Neutrality Act, claimed that his military expedition against Spain “was begun, prepared and set on foot with the knowledge and approbation of the executive department of the government.” Smith subpoenaed Secretary of State James Madison and several other officials to appear as witnesses at the trial in New York.

When Madison and the others refused to comply with the subpoenas, Smith thought that the prosecution might be dropped. Even if the trial proceeded and the defense of presidential authorization proved futile, Smith hoped that his claim would help mitigate the penalty. As noted in one study: “The argument essentially was that one who in good faith obeys an illegal order of the President should suffer at most a nominal punishment.” At the trial, the government denied that the President could suspend a law or authorize an illegal act. If President Thomas Jefferson had authorized the expedition against the Spanish, the government said, his action would have been unconstitutional. The federal court also rejected Smith’s argument. With regard to his claim that he acted with the knowledge and approbation of the executive branch, the judge said the Neutrality Act permitted no such discretion. Even if “every syllable” of Smith’s affidavit were true, the judge decided, it was of no use or benefit to a defendant in a court of law. It could never justify the acts leading to Smith’s indictment.

The judge spoke bluntly: “The President of the United States cannot control the statute, nor dispense with its execution, and still less can he authorize a person to do what the law forbids. If he could, it would render the execution of the laws dependent on his will and pleasure, which is a doctrine that has not been set up, and will not meet with any supporters in our government.”

The court ruled in 1807 that the allegations against the Jefferson Administration were not pertinent to the issue before the court “nor material by way of justification or defense against the facts charged in the indictment.” The absence of Madison and the other executive officials was not a “legal excuse” to put on the trial.

Smith’s defense has been tried by others. During the Watergate prosecutions, John Ehrlichman argued in court that his involvement in the break-in at a psychiatrist’s office was protected because it had been authorized by President Richard M. Nixon. A federal court held in 1974 that acceptance of this principle “would give the Executive a blank check to disregard the very heart and core of the Fourth Amendment and the vital privacy interests that it protects.”

Poindexter may have other reasons for raising his claims. He may hope that the request for sensitive documents may force the Justice Department to intervene and ask the independent counsel to drop the case. These are matters of tactics. On the legal issue, we should insist that individuals exercise independent judgment and accept personal responsibility for the legality of their actions.