This week’s Supreme Court ruling on Presidential immunity from criminal prosecution is the latest “worst thing to ever happen” in a constant cycle of “worst things to ever happen”. But it did not have to happen this week. This is a decision that is coming at least 50-years too late and at most two years too late. The United States, and the Supreme Court could have settled this issue in 1974 or 1975, if it had not been for the actions of the President at that time.
While much is made about Donald Trump being the first former President to face criminal charges, in 1974, then-President Richard Nixon was on the path to claim that inglorious title. Congressional hearings and FBI investigations had uncovered clear evidence linking Nixon to a conspiracy to cover up criminal activity by those involved in his re-election committee in 1972–famously capped off with the attempted bugging of the Democratic National Committee headquarters in the Watergate building.
Documents unsealed in 2018 reveal that a federal grand jury in 1974 was ready to return an indictment against Nixon on four charges: bribery, conspiracy, obstruction of justice, and obstruction of a criminal investigation. Those were charges that several of his top aides like former Attorney General John Mitchell, Chief of Staff H.R. Haldeman, Domestic Affairs Advisor John Erlichman, Counsel John Dean, Presidential Secretary Dwight Chapin, Former Commerce Secretary Maurice Stans, and Nixon’s personal attorney Herbert Kalmbach were all convicted on–some being sentenced to prison.
While he was not complicit in the planning, funding, or execution of the Watergate break-in, Nixon chose not to “come clean” with the American people by professing no knowledge of the burglary and allowing the justice system to follow its course against those that did–even if they were some of his most trusted advisors and friends. Instead, Nixon (believing Watergate would cost him the 1972 election) actively took part in multiple discussions on how to either coverup the activities and discredit the reporting being done by the Washington Post and the New York Times. Nixon also directly approved a 120-thousand dollar payment to E. Howard Hunt to lie to investigators about the planning that went into the Watergate burglary. When Special Prosecutor Archibald Cox started making connections between people within the White House and Watergate, Nixon ordered his then-Attorney General Elliot Richardson to fire Cox–which led Richardson and his Assistant Attorney General William Ruckelshaus to resign–an incident later dubbed the “Saturday Night Massacre”.
But that grand jury never had a chance to hand down that indictment. Just a month after Nixon’s resignation, President Gerald Ford issued a full pardon for his predecessor–ending any possibility of criminal prosecution. At the time, Ford cited a desire to allow the country to “heal” from the Watergate scandal and to work on rebuilding the trust of the American people in those they had elected to lead them. Those were certainly noble ideas at the time, and achieved short-term goals (although, one could argue there will never be that same level of trust in Government prior to incidents like Watergate or the Pentagon Papers). However, Ford’s decision short-circuited a chance for the justice system to determine just what a President can “get away with”, and what he or she cannot.
Much like the criminal prosecutions of Donald Trump, any legal action against Richard Nixon would have seen endless defense challenges requiring appeals court rulings and appeals of those appeals to the Supreme Court. And those appeals would have met with a very different Supreme Court than we have now. Under Chief Justice Warren Burger, the high court had already taken a powerful stance that the President is NOT above the laws of the land.
While Congress was investigating Watergate, Deputy Assistant to the President Alexander Butterfield testified before the committee that there was a secret recording system in the Oval Office that taped all conversations in the room. When the new Special Prosecutor Leon Jaworski learned of the recordings, he subpoenaed the President to turn them over. Nixon fought that subpoena all the way to the Supreme Court arguing “executive privilege” in protecting his private conversations. In one appeals court hearing, Nixon’s defense attorney James St. Clair told the judge:
“The President wants me to argue that he is as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment.”
If some of that phrasing sounds familiar, it’s because the same line of defense has been used by Donald Trump’s attorneys in arguments pertaining to the Stormy Daniels payment, the stealing of classified documents, and the President’s role in the January 6th insurrection.
The Burger Court ruled UNANIMOUSLY (with William Rehnquist, a former Nixon attorney, recusing himself–a novel concept in today’s jurisprudence) that any President could not claim an “absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” It was the evidence contained in those recordings–even with the 18-and-a-half minute gap that just happened to correspond with the day that Haldeman and Nixon first met to discuss the Watergate arrests–that led Nixon to resign a couple of weeks later.
No doubt, Nixon would have tried to make the same immunity claims against any criminal charges filed against him. Almost as undoubtedly, the Burger Court would have shot them down–CLEARLY stating that directing cover-up efforts, offering bribes, demanding Justice Department officials end criminal investigations into those associated with his re-election campaign, and erasing recorded evidence are NOT “official functions” or “constitutional duties” of the President.
Prosecution of Nixon likely would have opened serious discussion of legal repercussions for subsequent Presidential activity that may have been illegal. In 1987, indictments were handed down in connection with the Iran-Contra Affair–where the US sold weapons to Iran in hopes that they would influence their puppet group Hezbollah, which was holding Americans hostage in Lebanon at the time. The money generated was then paid to the Contras in Nicaragua in direct violation of a law approved by Congress in 1984.
Then-Secretary of Defense Casper Weinberger turned over notes that showed President Ronald Reagan was briefed on the operation and that “he could answer charges of illegality, but he couldn’t answer charges that ‘big strong President Reagan passed up a chance to free hostages.'” Weinberger, National Security Council member Oliver North, National Security Advisor Robert McFarlane, National Security Advisor John Poindexter, and Assistant Secretary of State Elliott Abrams were all indicted and convicted (though they would later be pardoned by President George HW Bush). Reagan was never indicted.
Rulings on executive power and privilege stemming from a Nixon prosecution likely could have been used in civil legal action brought against President Barack Obama in connection with his authorization of drone strikes to kill American citizens in countries at which the US was not in a state of war. Instead, those claims were dismissed at the lowest federal court level. It’s easy to assume that Obama wanted the executive order requirement because as a “constitutional scholar”, he knew that Presidential immunity protected him from any legal action.
While we didn’t get rulings from the Supreme Court on Presidential immunity in 1974 or ’75, we didn’t need to wait until 2024 either. Criminal investigations into Donald Trump started within the Department of Justice shortly after Attorney General Merrick Garland was sworn into office in 2021. But as he has done throughout his term, Garland moved slowly, deliberately, and cautiously. Frustrated Democrats in Congress, aware they were likely to lose majority rule in both houses in 2022, convened their own January 6th commission in hopes of speeding up the process and providing the DOJ with more material with which to work. But as you recall, that commission didn’t release its findings and recommendations until December of 2022, after mid-term elections cost Democrats the majority in the House, and Trump had officially announced his candidacy again–making prosecution of him look like the “targeting of a political opponent”.
And so no charges were filed until June of 2023 on the classified documents case, and until August of 2023 on the insurrection charges. Federal court scheduling issues, legal challenges and subsequent appeals, and the Supreme Court waiting until the absolute last day of its session to release its opinion on Presidential immunity mean there will likely be no resolution to any of Trump’s federal cases before the election. And a Trump win means he can direct the DOJ to drop all the cases against himself.
The most-frustrating aspect of this week’s ruling is not that it took until four months before an election involving the man at the heart of dozens of federal indictments and convictions on several state felonies for us to get a decision. It’s that the decision treats the man with dozens of federal indictments and convictions on several state felonies like he is “normal” President, and not like a person that would gladly use unfettered immunity to do whatever the hell he wants, regardless of what it means for the country.
Historical scholars can scold the framers of the Constitution for failing to include clear language in their document on everything for which the chief executive can be considered “immune from prosecution”. But it would have been very hard for them to imagine that a man like Donald Trump would even be nominated for President, much less elected. And if Gerald Ford had known some one more dishonest, power-hungry, paranoid, and immoral than Richard Nixon was coming 50-years later, he may have chosen to let America deal with a little more pain in 1974 to spare us the potential for a lot more of it in 2024 and beyond.
