Richard Nixon Would Have Loved the Court’s Immunity Decision
7 min read
Richard Nixon would have been thrilled with the ruling of the U.S. Supreme Court in Trump v. United Statesearlier this week.
I would know. I served as Nixon’s White House counsel until he fired me in April 1973 for seeking to end the Watergate cover-up by openly cooperating with the investigation of the White House’s involvement. Although I had fewer than 30 one-on-one sessions with President Nixon in the 1,000 days I served him, I was high enough in the pecking order to understand what was occurring and why.
The new ruling, in effect, decriminalizes Nixon’s conduct during the Watergate scandal. As Chief Justice John Roberts explains in the majority opinion, a “President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.” Nixon’s activities fit right in the sphere that the Court broadly defines as “official” or “outer perimeter” behavior. According to the Court, only “unofficial conduct” is subject to prosecution.
Nixon believed in an unfettered presidency, the law be damned. I discovered this reality when I was directed by his chief of staff to see if I could implement a plan to remove all legal restraints on domestic intelligence-gathering after the intelligence agencies (the CIA, FBI, National Security Agency, and Defense Intelligence Agency) developed a plan so secret, its classification was classified. Rather than break the law, I found a legal solution by creating an interagency committee that addressed the communications situation among the agencies. Later, and unaware but suspecting that the orders had come directly from Nixon, I killed a plan to “firebomb” and burglarize the Brookings Institution (a Washington, D.C., think tank) in order to obtain documents the president believed it had in its safe. Under this new Supreme Court ruling, these otherwise illegal activities could well be immune to prosecution as official conduct of the president of the United States.
The high court is leaving it to the U.S. District Court for the District of Columbia to determine whether Donald Trump’s conduct related to January 6, 2021, is immune, with one exception: The Court held that Trump’s conversations with his acting attorney general, which were included in his indictment as part of his scheme to overturn his election defeat, were off-limits. The Court ruled that conversations with top Justice Department attorneys qualify as official conduct and are thus precluded from criminal prosecution. In addition, the Court held that no evidence relating to such official conduct, or “outer perimeter” conduct, can be used by prosecutors. This expands criminal immunity to theoretically provide maximum protection to the institution of the presidency, because it effectively precludes establishing a president’s state of mind, which is crucial to proving criminal conduct.
While reading Roberts’s opinion, I could not escape thinking about Nixon’s “smoking gun” tape. Nixon decided to resign after a secret recording of his Oval Office conversation with his chief of staff surfaced on August 5, 1974, a bit more than two years after scandal had erupted with the June 17, 1972, arrest of operatives from Nixon’s reelection committee for breaking into the Democratic National Committee offices at the Watergate complex. This conversation, which the Watergate special prosecutor had subpoenaed and the Supreme Court had unanimously ordered Nixon to produce, ended his presidency. Here was conclusive proof of his involvement in the cover-up from the outset.
Today’s Supreme Court would likely call Nixon’s recorded actions on June 23, 1972, six days after the arrests at the Watergate, “official conduct.” What could be more official than Nixon doing what only a president had the power to do by ordering his chief of staff to tell the CIA to block the FBI’s Watergate investigation? Under Trump v. United States, Nixon’s motive is to be ignored.
No exhaustive catalog exists of Nixon’s purported criminal behavior, but I am familiar with much of it: I wrote a book, The Nixon Defense: What He Knew and When He Knew It, for which I spent almost five years transcribing some 1,000 secretly recorded Nixon Watergate conversations, fewer than 100 of which had surfaced before his resignation. It would not require a particularly skilled attorney to make the case that they all involved official conduct, with perhaps a few falling within the so-called outer perimeter of official conduct. (When a president has immunity, and evidence about those activities is also precluded, neither his official nor his outer-perimeter conduct can even be subjected to investigation.) However, because the Court did not fully define these terms, it will take the judiciary years to fully clarify their meaning. Undoubtedly, Trump’s attorneys will try to recast much of his scheme to overturn the 2020 election as official or outer-perimeter conduct.
The Roberts Court has codified the infamous statement Nixon made after leaving office, when he acknowledged his perception of the presidency: “When the president does it, that means that it is not illegal.” Nixon also further pointed out that presidents give orders for others to execute decisions, so they, too, must be immunized if the actions are criminal. As he put it, “The president’s decision in that instance is one that enables those who carry it out without violating a law. Otherwise they’re in an impossible position.”
Remarkably, Nixon’s statement about the way the presidency works was ignored by the Court this week in immunizing only the president. Must the president now abuse the pardon power (clearly an official act under Trump v. United States) to immunize his Cabinet and staff when carrying out an illegal order? There is no suggestion in the Court’s ruling that his appointees fall under his presidential immunity. How about members of the American military, who are trained to defy orders when they are conspicuously illegal? Can a president force them to commit crimes? Conservatives in Congress have long claimed that only criminal offenses qualify as impeachable “high crimes and misdemeanors.” Has the Supreme Court now made it impossible to impeach and remove a president as the Constitution allows? Many fundamental questions are raised but not answered by this ruling.
Most crimes are immoral, which means that a president who is hell-bent on revenge and retribution against his perceived political enemies will need a Cabinet and a White House staff that have no morals whatsoever to implement any of his criminal directives. Appointing a Cabinet and hiring aides willing to engage in criminal behavior is more than unfathomable; it is contrary to all that this country once believed was acceptable for top government officials. I am sure that the code of the Mafia is not what our Founders had in mind for the American presidency.
For me, this radical ruling was not surprising. It is the work of a radical Court, one that has blithely dispatched with long-standing landmark decisions such as Roe v. Wade (which had been on the books for five decades) and, most recently, Chevron U.S.A. v. Natural Resources Defense Council (which had been on the books for four).
The dissents written by Justices Sonia Sotomayor and Ketanji Brown Jackson, and joined by Justice Elena Kagan, are stark warnings. While expressing “fear for our democracy,” Sotomayor notes: “Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law.” Sotomayor explains the impact of the ruling: “The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.”
Jackson adds her own warning: “The practical consequences [of the majority’s ruling] are a five-alarm fire that threatens to consume democratic self-governance and the normal operations of our Government.” She continues: “In its purest form, the concept of immunity boils down to a maxim—‘the King can do no wrong’—a notion that was firmly ‘rejected at the birth of [our] Republic’ … Thus, being immune is not like having a defense under the law. Rather, it means that the law does not apply to the immunized person in the first place.”
Rather than address the concerns of the dissenters, Chief Justice Roberts dismissed them as “fear mongering,” claiming that they overlook “the more likely prospect of an Executive Branch than cannibalizes itself, with each successive President free to prosecute his predecessors”—a Fox News/Trump-rally view of America.
As I see it, there are two immediate remedies. First, we must trust the lower courts to conclude that Trump’s conduct fell outside this ruling’s broad definitions of official conduct and outer-perimeter conduct. This is a loosely written and poorly reasoned majority opinion. But it does provide a path for prosecutors. It states that where prosecutors can show that applying a criminal prohibition to a presidential action would pose no “dangers of intrusion on the authority and functions of the Executive Branch,” they can “rebut the presumption of immunity.” Lawyers everywhere must offer analysis that could assist in the court of public opinion. Fortunately, the judges of the federal courts in the D.C. Circuit have regularly shown more intellect and commonsense wisdom than their cloistered judicial superiors who rendered this absurd and dangerous ruling.
Second and more important, Americans must speak to this ruling in November, with their ballots. Elect a president of unquestionable character, not a man who has declared that he will ignore the Constitution and laws, after surviving two impeachments on a partisan vote and having been charged with 88 felonies in four different jurisdictions and convicted of 34 of them so far. Thinking voters can stop America’s steady slide toward authoritarianism.
