It “would obviously be undesirable as a matter of policy to engage in conduct” that was illegal for other executive branch employees, the future Supreme Court justice wrote.
“Failure to observe these standards will furnish a simple basis for damaging criticism, whether or not they technically apply,” he wrote in the memo (PDF).
After spending three pages digging into the technicalities of the law, Scalia suggested that if the president truly needed to violate those rules, then White House attorneys put together an internal memo explaining which sections he needed to violate and why.
In short, Scalia wanted the White House to take steps to mitigate the perception that the president engaged in shady dealings—even, potentially, going so far as following laws that don’t technically apply.
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