“Throw himself on the justice of his country”

Josh Marshall, who earned a doctorate in American history before founding the Talking Points Memo political website, recently quoted Thomas Jefferson on the question of whether the responsibilities of U.S. Presidents put them above the law.

I think the Founders would have been aghast at the idea that any government officials weren’t subject to the rule of law. That was the whole point of founding a republic without a monarch or a hereditary nobility with its own separate court system.

Until recently, only a small fraction of people disagreed with that notion, most of them with deep personal interests at stake—like Richard Nixon.

As a former chief executive Jefferson had experience with the choice of acting for what he perceived as the public good or staying strictly within defined law.

In a letter to John B. Colvin dated 20 Sept 1810, Jefferson wrote:

Whether circumstances do not sometimes occur which make it a duty in officers of high trust to assume authorities beyond the law, is easy of solution in principle, but sometimes embarrasing in practice. a strict observance of the written laws is doubtless one of the high duties of a good citizen: but it is not the highest. the laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. to lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property & all those who are enjoying them with us; thus absurdly sacrificing the end to the means.

But once a President or other high officials make such a decision, Jefferson went on to say, they also have the responsibility to subject themselves to public inquiry, including in the courts.

the officer who is called to act on this superior ground, does indeed risk himself on the justice of the controuling powers of the constitution, and his station makes it his duty to incur that risk. but those controuling powers, and his fellow citizens generally, are bound to judge according to the circumstances under which he acted. they are not to transfer the information of this place or moment to the time & place of his action: but to put themselves into his situation. . . .

it is incumbent on those only who accept of great charges, to risk themselves on great occasions, when the safety of the nation, or some of it’s very high interests are at stake. an officer is bound to obey orders: yet he would be a bad one who should do it in cases for which they were not intended, and which involved the most important consequences. the line of discrimination between cases may be difficult; but the good officer is bound to draw it at his own peril, & throw himself on the justice of his country and the rectitude of his motives.

If an executive’s reasons were really so good, Jefferson felt confident in saying, he’d be able to “throw himself on the justice of his country” and make a case for himself.