The U.S. Supreme Court has granted the President broad immunity from criminal liability. Trump vs. the United States There’s been a lot of speculation about how a future president might handle this, but the danger isn’t hypothetical.
President Richard Nixon certainly committed prosecutable crimes in his Watergate robbery cover-upAnd his actions highlight the deeply inappropriate presidential conduct that is now upheld by this Supreme Court decision.
In 1974, when I was the head of the Watergate and Cover-up Task Force, House Judiciary Committee Inquiry into the Impeachment of President Nixon,no one”Conclusive evidence tapePresident Nixon first enacted the provision in the executive order that said, “President Nixon may be prosecuted for obstruction of justice,” but in light of Trump v. United States, any prosecution of President Nixon for obstruction of justice would be blocked by presidential immunity.
The “Smoking Gun Tapes” revealed that President Nixon met with his Chief of Staff, H.R. Haldeman, shortly after breaking into the Democratic National Committee offices at the Watergate complex and repairing previously installed electronic surveillance equipment. Haldeman informed the President that former Attorney General John Mitchell, who was then running the President’s reelection campaign, was involved. President Nixon then instructed the CIA to advise the FBI to drop the investigation into the break-in due to national security concerns. This allegation was false and motivated by a desire to prevent the discovery of the involvement of Mitchell and other campaign and White House officials. This clearly established a violation of federal obstruction of justice laws.
In Trump v. United States, the president’s interactions with the CIA through his chief of staff are considered to be “core” public powers and are therefore granted absolute immunity. The ruling states that interactions with the Department of Justice are “a special domain of the executive branch, Heckler v. Cheney, 470 US 821, 832 (1985),” and that the Constitution vests all executive powers in the president, so absolute immunity is granted. Thus, the command of intelligence agencies is also a special domain of the executive branch.
The second reason Nixon’s obstruction of justice was not prosecuted is that the Trump ruling means that motive or improper purpose cannot be criminalized, even for non-core official acts. But in obstruction of justice claims, as in most criminal offenses, proof of intent is an essential element. Failure to prove motive or improper purpose would be fatal.
A Trump Supreme Court decision would also likely make it impossible to convict the president’s public aides and agents who carried out Nixon’s instructions to obstruct the Watergate investigation. By the logic of the Trump decision, men such as H.R. Haldeman, John Ehrlichman, Jeb Magruder, and John Dean would be held liable for criminal convictions. He was convicted of conspiring with the president.Those guilty of obstruction of justice must also be given immunity and the power of the President to carry out his official duties without fear must not be undermined. Alternatively, in Trump v. United States, there is no investigation into whether a pardon was granted to carry out a criminal plan, so the President can pardon those who carried out his criminal instructions if necessary.
Even if the president’s public aides and agents did not have immunity or pardons, the Trump ruling creates significant obstacles to their prosecution. In the portion of the Trump ruling in which Justice Amy Coney Barrett disagreed, the court held that evidence of a president’s public acts or conversations cannot be used in a lawsuit seeking to hold him accountable for his private actions. Such evidence, the court wrote, “increases the likelihood that the president’s decision-making will be distorted.” The same logic applies to the president’s staff.
in United States v. NixonThe Supreme Court considered President Nixon’s argument that executive privilege exempted him from the obligation to turn over to a special prosecutor certain tapes of the president’s conversations with his aides for use in the aides’ criminal trials. The Court unanimously ruled that those conversations were presumptively protected from disclosure, but that such presumption could be overridden as a necessity for the doing of justice in a criminal trial.
By giving force to Nixon’s argument that acts committed by the president are not crimes, Trump’s opinion also weakens impeachment as a source of protection against abuse of presidential power. Some might argue that if a president’s actions are not crimes under presidential immunity, then they cannot be impeachable high crimes or misdemeanors.
Therefore, Trump’s decision United States Constitution To curb the president’s imperial power and weaken impeachment if the president committed a serious crime, I clerked for Justice Potter Stewart, who later wrote the unanimous decision in United States v. Nixon. He was considered the leader of the Supreme Court’s conservative wing, but even he couldn’t understand how Nixon’s actions were protected by the Constitution.
It is amazing how far today’s Supreme Court has come from its unanimous decision in United States v. Nixon, which showed how morally corrupt the executive branch is. With Trump, the Supreme Court is effectively covering up the cover-up of Watergate.
Attorney Evan Davis served as counsel and task force leader for the impeachment investigation of President Richard Nixon and is co-editor of the American Bar Association book Public Sector Ethical Standards: A Guide for Government Lawyers, Clients, and Public Servants, Third Edition.
