Within two weeks of the outbreak of the Civil War, President Lincoln suspended the right to habeas corpus between Philadelphia and Washington. There was a danger that rebels might actually seize the nation’s capital, and Lincoln had ordered some regular army units and Northern state militias to rush down to Washington, lest it fall to Southern insurgents. Problem was, those troops were met by violent opposition from mobs as they entered Baltimore. Hence Lincoln’s order, which enabled federal authorities to lock up the Maryland rebels, no questions asked.
One of those arrested and held without charges was John Merryman, who’d apparently been involved in pulling down telegraph lines linking Washington to points north. As he’d not been charged, he petitioned for release, and the case quickly ascended to U.S. Chief Justice Roger Taney, whose regional injunctive powers covered the mid-Atlantic states. Taney ruled that Lincoln had no power to suspend habeas corpus, even though the Constitution permitted such actions in certain times of war and kindred emergencies. The power to suspend, Taney wrote, was the prerogative solely of Congress, not the president. Lincoln then noted that Congress was not going to convene until December, which at the time of Taney’s ruling lay six months in the future.
So Lincoln ignored Taney’s order. Congress did in fact eventually suspend habeas corpus, but not until 1863, two years after Lincoln had issued his order. At the time he received word of Taney’s decision, however, Lincoln famously posed the following question:
“Are all the laws but one to go unexecuted, and the government itself to go to pieces, lest that one be violated?”
I was put in mind of this question by the Supreme Court’s ruling last week that nothing a president may do in his (or her) official capacity can be illegal—or, as Richard Nixon (also famously) opined, “Well, when the president does it, that means that it is not illegal.” What particularly sent me back to Lincoln was Roberts’s ruling that Trump was immune from prosecution for his discussions with Vice President Pence, in which he urged Pence to overturn the outcome of the election by refusing to accept the electoral votes of a number of states.
A president’s discussions with their vice president, Roberts argued, fall within the category of the president’s official powers and responsibilities, and the vice president’s role in presiding over the tally of electoral votes is likewise official.