Too bad President Nixon isn’t around to offer President Biden some advice over what to do about the special counsel the attorney general just launched. For the investigation could yet turn against Mr. Biden. Nixon was the first modern president in that predicament, and when he saw the constitutional contradiction, as he did in October 1973, he had the character to turn around and order his attorney general to fire the special prosecutor.

The attorney general, Elliot Richardson, couldn’t comply. That’s because he was in a Catch-22 of his own making. In May 1973, as the Watergate storm was gathering, Nixon nominated Richardson, who had been defense secretary, to be attorney general. Before Richardson was confirmed, he agreed to name a Harvard professor, Archibald Cox, to be special prosecutor. The Congress had sought that, and Richardson buckled.

To get confirmed, though, Richardson — in a shocking move — struck a deal with the Senate. He promised not to fire the special prosecutor save for cause. In other words, to get confirmed as attorney general, Richardson agreed to undercut the power of the president who nominated him. This is no speculative thing. It was well-marked by, among others, Senator Edward Kennedy, in an interview with the Miller Center in 2006.

“I had talked to Richardson at the time of his confirmation,” Kennedy recalled, “and had been very clear that he wasn’t going to get confirmed unless he appointed a special prosecutor.” Kennedy called it “a quid pro quo for his being able to get through,” adding that Richardson wanted Cox “very badly” but “only at the very end agrees that the only condition under which he can fire Archie Cox is if there’s extraordinary impropriety.”

That’s how the Senate — the potential jury in an impeachment — set about undercutting the president’s powers while Nixon was still in office. Five months after Richardson got confirmed, Cox, in a shocking grab for powers he didn’t have, wheeled on the President. That is, with Richardson’s hands tied, Cox went after the sole person in whom the Constitution vests the power to take care that our laws are faithfully executed.

Meaning, all of the executive powers granted in the Constitution are vested solely in the president. So when Nixon ordered Richardson to fire Cox, Richardson knew he had to do it but couldn’t because of his promise to the Senate. So he resigned, as did his deputy, William Ruckelshaus. This left the firing to the solicitor general, Robert Bork, who was not compromised by promises to the Senate and thus was able to do his duty.

Richardson and Ruckelshaus tried to put the best face on this default on their constitutional duties. Tom Vance, in a book about Richardson, says that Richardson and Ruckelshaus even “convinced” Bork to carry out the firing, to protect “some stability” of the government. In the deal with the Senate, they’d given away their own ability to protect that very stability in the government. 

Which brings us back to President Biden. It takes some brass for Attorney General Garland to set up a special counsel to look at the classified documents reportedly stashed in a garage along with the president’s Corvette. And so far his decision is being well received. We’ll see how that prospers, though, if the special counsel wheels on Mr. Biden at, say, five months into his investigation, which is when Professor Cox betrayed Nixon.

We, for one, are not so all-fired worried about what Mr. Biden was doing with those classified papers, though if they turn out to have something to do with his son’s alleged influence peddling, it would be huge. We are, though, worried about the enormous stink the Justice Department has tried to stir up over the classified papers that President Trump allegedly removed to Mar-a-Lago. At least Mr. Trump was president when those papers were moved.

Our sense is that Americans deserve to have any of their presidents being probed for possession of classified papers held to one standard. The way we spell out that standard is C-o-n-s-t-i-t-u-t-i-o-n. Let us just note that only three senators voted against the confirmation of Elliot Richardson. The most famous of the three did it on the grounds that Richardson was “tainted” by his closeness to administration. That senator was one Joseph Biden.