The Supreme Court’s decision last week to grant former President Donald Trump immunity for “official duties” completely erases the principle that no one in America, not even the president, is above the law — a principle that has existed since our nation’s founding and that was never questioned during the Watergate scandal 50 years ago.
Justice Sonia Sotomayor’s dissent created this unprecedented immunity from the ground up, correctly concluding that “our Constitution does not exonerate former presidents from criminal or treasonable conduct,” while the majority accused her of “fear-mongering based on extreme hypotheticals about a future in which a president will ‘feel empowered to violate federal criminal law.'”
There is no need to speculate about the future. History and the current situation show that this decision will allow a convicted felon like Trump, if elected president this November, to do whatever he wants, including breaking criminal laws and retaliating against those he considers his enemies. Trump has already declared that he will suspend the Constitution of the United States and promised to be a dictator from day one.
Ironically, the same group of justices who clung to over 200 years of history to interpret the scope of the Second Amendment right to bear arms completely ignored recent history and lessons learned from Watergate that show that so-called hypotheticals are based in reality and not “fear mongering.”
FILE – In this Aug. 9, 1974 file photo, President Richard Nixon waves goodbye from the steps of a helicopter outside the White House after giving farewell speeches to White House staff. (AP Photo/Chick Harrity)
Sotomayor noted the concern that a president could avoid criminal prosecution by “ordering Navy SEAL Unit 6 to assassinate a political opponent,” a claim borne out by the facts of Watergate. The Nixon administration did indeed order the “assassination” of Daniel Ellsberg, the whistleblower who released the Pentagon Papers, which revealed that multiple administrations had lied to the public about U.S. involvement in the Vietnam War. Nixon considered Ellsberg one of his biggest political opponents.
Instead of using the government’s military forces to do the dirty work, the Nixon administration recruited a group of Bay of Pigs veterans from Miami to attend an anti-war rally at the Capitol on May 3, 1972, where Ellsberg was the keynote speaker.
As assistant special counsel in the Watergate investigation, I interviewed one of the men from Miami, who confirmed to me that the mission, as he had previously told the FBI, was to kill Ellsberg. Both Howard Hunt and G. Gordon Liddy, who worked for the Nixon administration and the Nixon reelection committee, oversaw the plan. Fortunately, the Capitol Police intervened and the two men were unable to get close enough to harm Ellsberg.
Furthermore, nearly two years earlier, in September 1971, President Nixon’s White House had authorized a burglary of Ellsberg’s psychiatrist’s office in Los Angeles in order to obtain compromising information about Ellsberg based on his psychiatric history and to publicly discredit him. Several of the Miami men who plotted to kill Ellsberg also participated in the burglary and were indicted along with John Ehrlichman, one of Nixon’s two top aides. A jury returned guilty verdicts on July 12, 1974.
The defense in this case was that the robbery was a legitimate act of national security. Under the Supreme Court’s new immunity rules, this defense would be impossible to disprove. Chief Justice John Roberts wrote:[i]”Without distinguishing between official and unofficial conduct, a court cannot inquire into the President’s motives.” Thus, it would not have been possible to prove that the entire motive behind the theft was to support the political smears against Ellsberg.
The Nixon administration later hired some of the same men from Miami to break into the Democratic National Headquarters in the Watergate complex and wiretap certain telephone calls. If Nixon had directed a group of private citizens in Miami rather than using executive branch agents to carry out these blatantly illegal acts, would that have made any difference to the Supreme Court today? Probably not. Based on this new view, the focus on whether an act is official seems to be on the president’s actions, not on who he uses to carry them out, especially when national security justifies it.
But the opinion is crystal clear that when a president commits a crime with a member of the executive branch, he is entitled to absolute immunity for his interactions with subordinates, such as the attorney general. With regard to Trump, Roberts held that “the president cannot be prosecuted for acts that are within the scope of his exclusive constitutional powers. Thus, Mr. Trump enjoys complete immunity from prosecution for his alleged conduct involving discussions with Justice Department officials.”
If Roberts’ opinion had been law in the 1970s, the Watergate special counsel’s office would not have been able to investigate Nixon for obstruction of justice, and President Ford would not have had to pardon Nixon.
There were two key pieces of undisputed recorded evidence that proved Nixon orchestrated the obstruction: On June 23, 1972, less than a week after the Watergate burglars were arrested at Democratic National Headquarters, Nixon instructed his Chief of Staff, H.R. Haldeman, to call the Director and Deputy Director of the CIA, who in turn instructed them to call the FBI, dropping the investigation into the break-in at Democratic National Headquarters, ostensibly for national security reasons.
The release of these recordings led a group of Republican senators to meet with Nixon, who resigned on August 9, 1974. According to the Supreme Court’s new ruling, Nixon would have been immune to prosecution and would have had no reason to resign. In fact, according to the ruling, Nixon did not even need to orchestrate a national security ploy to get the CIA to call the FBI. Nixon simply had to pick up the phone and tell the FBI to drop the investigation.
Second, on March 21, 1973, nine months after Haldeman’s call to the CIA, Nixon met with aides, including Haldeman and White House counsel John Dean, to approve a $1 million cash payment to the Watergate burglars who were demanding payment for their legal fees. Nixon and Dean agreed that former Attorney General John Mitchell, who was Nixon’s campaign manager at the time, should raise the money.
Dean subsequently pleaded guilty to obstruction of justice, and Haldeman, Mitchell and others were convicted of obstruction of justice and perjury by the Watergate Grand Jury and the Senate Watergate Committee.
The Supreme Court’s new ruling means that Nixon is immune from obstruction prosecution, so none of his subordinates could have been prosecuted. It doesn’t necessarily make sense for a president to be immune from obstruction orders, but subordinates who carried out the orders that were exonerated could still be prosecuted. So, based on the new ruling, most of the 48 people convicted in Watergate may not have been prosecuted.
One clearly non-official crime for which Nixon could have been charged was tax evasion in connection with his donation of the vice presidential papers to the National Archives. Since Harry Truman, presidents who donated papers to the U.S. government had received a large tax deduction based on the appraised value of the papers. This deduction was eliminated by the Tax Reform Act of 1969. Nixon fraudulently backdated the deeds underlying the gifts to make it appear as if the donations of the papers had occurred before the effective date of the tax change in order to receive a large deduction on his tax return.
The key evidence showing that Nixon knew he was no longer eligible for the paper gift deduction was the testimony of subordinates that Nixon lobbied Congress to preserve the deduction before the tax reform law was passed. In Roberts’ opinion, lobbying Congress was clearly an official act, and that evidence could not be considered to prove knowledge “of the allegations allegedly based solely on …” for a “limited and specific purpose.” [a president’s] “Informal conduct”
Thus, if the immunity created by the Roberts Court had existed in the 1970s, Nixon’s informal tax evasion would have been much harder to prove.
The sole reason the Supreme Court created presidential immunity was to protect the executive branch from “the threat that it could consume itself, as successive presidents could indict their predecessors but could not carry out their duties boldly and fearlessly, for fear that they might be indicted next.”
History before and after Watergate refutes this concern. Nixon would likely have been indicted on federal charges without the pardon, but no other president has ever been criminally charged, let alone convicted of 34 felonies. It would be outrageous for the Supreme Court to create extraordinary status to protect President Trump, who has already proven to be a serial con man who could return to office.
Ackerman previously served as assistant special counsel in the Watergate scandal and as an assistant US attorney for the Southern District of New York.
