Adams was quite aware of that problem. Consider another, less well-known statement by Adams in an 1812 letter to Jefferson. “Good God! Is a President of US to be Subject to a private Action of every Individual? This will Soon introduce the Axiom that a President can do no wrong; or another equally curious that a President can do no right.” An interesting turn of phrase. The old English line was that “the king can do no wrong.” That line was, as Adams knew, a legal principle. There was no redress against the person of the King. He could not be cashiered, even for gross misconduct, short of revolution at least. Hence, as a rule, one who was aggrieved blamed the King’s ministers. In principle, the King was only empowered to act in ways that were legal, in accord with the very law that made him King, but in practice, there was no way actually to gain redress against the person of the king. In principle, the US wanted to be different. In practice, that was difficult.
What prompted Adams’ comment to Jefferson was an 1811 lawsuit by Edward Livingston against Jefferson for acts Jefferson took when he was president. Livingston had been a Congressman in Jefferson’s party and Mayor of New York, but clashed with the President over land claims in the Louisiana territory. President Jefferson confiscated land Livingston claimed as his own, claiming it was federal property. Livingston sued Jefferson personally, and won in Louisiana’s Courts, but in an 1811 case, Chief Justice Marshall ruled against him, focusing on the question of jurisdiction. Marshall was on Circuit in Virginia, not sitting as Chief Justice in Washington, DC. Jefferson’s residence in Virginia did not, he held, make it reasonable to litigate this case in a circuit Court in Virginia. In other words, Marshall found a way to dodge the case. He understood that courts are not designed to deal with cases like this, where the line between legitimate presidential action and corrupt partisan action is almost impossible to decide in any clear way.
That Marshall found a jurisdictional dodge was in a way, an echo of Adams’ point. Marshall thought that Jefferson was extremely misguided politically. He had no personal desire to save Jefferson’s bacon. Yet he also understood executive power, and the difficult problem it presented a government of laws, not of men. That Livingston might sue Jefferson personally was the key issue, one that trumped whatever the narrow issue of the land claims case was. It was a terrible precedent to make any such action litigable in that way.