Jeffrey Toobin is an American lawyer, author and legal commentator for CNN. His book, “The Pardon: Nixon, Ford and the Politics of Presidential Mercy,” will be published next year.
To understand how extraordinary the Supreme Court’s opinion in Trump v. United States is, go back to 1974. That was the last time a former president faced a realistic chance of prosecution for crimes committed while in office. The justices gave Donald Trump a degree of deference that was inconceivable for Richard M. Nixon a half-century ago – and one that no one on any side of Nixon’s legal battles even imagined.
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After Nixon resigned on Aug. 9, 1974, the lawyers on the staff of Leon Jaworski, the Watergate special prosecutor, were primed to charge Nixon with crimes relating to the coverup of the botched burglary at Democratic National Committee headquarters on June 17, 1972. As George Frampton, one of the prosecutors, put it in a memo to Jaworski shortly after Nixon resigned, “I fear that history may yet judge this venture a failure should your decision be to ‘call it a day’ and not indict former President Nixon.”
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At around the same time, Herbert J. Miller Jr., representing Nixon, wrote a 17-page memo to Jaworski imploring him not to file charges against the former president because of massive, prejudicial pretrial publicity against his client. Miller wrote, “The simple fact is that the national debate and two-year fixation of the media on Watergate has left indelible impressions on the citizenry, so pervasive that the government can no longer assure Mr. Nixon that any indictment sworn against him will produce” a fair trial.
But what’s most striking today about these arguments is what wasn’t said: that a former president enjoyed any sort of immunity from prosecution for acts committed in office. Chief Justice John G. Roberts Jr.’s opinion in the Trump case holds that a former president enjoys total immunity for “official” actions in office and can only be prosecuted for “unofficial” conduct. No such distinction seems even to have occurred to anyone in 1974. In those days, former presidents were not above the law — period.
This risk of prosecution was why, a month after Nixon resigned, President Gerald Ford gave “a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States” that he may have committed as president. If the law in 1974 were what the court is saying that it is now, Nixon would not have needed a pardon. Justice Ketanji Brown Jackson made this point in the oral argument of the Trump case when she asked Trump’s lawyer, “So what was up with the pardon for President Nixon? I mean, if everybody thought that presidents couldn’t be prosecuted, then what was that about?” (There wasn’t much of an answer.)
In theory, Roberts’s opinion allows for some prosecutions of former presidents, but it’s clear that Nixon could not have been prosecuted for the Watergate coverup. The strongest evidence that Nixon obstructed justice in the Watergate investigation was the so-called smoking gun tape of June 23, 1972. In that conversation, Nixon told H.R. Haldeman, his chief of staff, to instruct the CIA to tell the FBI to curtail its investigation of the Watergate break-in on spurious national security grounds. Nixon told Haldeman: “When you get ... these people in, say, ‘Look, the problem is that this will open the whole, the whole Bay of Pigs thing. ... That will uncover a lot of things. You open that scab there’s a hell of a lot of things and that we just feel that it would be very detrimental to have this thing go any further.’”
Under Trump v. United States, Nixon’s statement would not amount to obstruction of justice because it related to his “official” duties — that is, supervising the FBI and CIA. “Investigative and prosecutorial decision-making is ‘the special province of the Executive Branch,’” Roberts wrote, “and the Constitution vests the entirety of the executive power in the President.” Accordingly, “the President cannot be prosecuted for conduct within his exclusive constitutional authority.”
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Under Roberts’s reasoning, the government could not even have used the “smoking gun” conversation as evidence in any criminal case against Nixon because Nixon and Haldeman were discussing official conduct. “What the prosecutor may not do, however,” Roberts wrote, “is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety.”
Roberts’s opinion turns the lessons of Watergate on their head. He defines “official” actions so broadly, and “unofficial” ones so narrowly, that it’s difficult to imagine that any prosecution of a former president for crimes in office, including the pending cases against Trump, can ever be successfully brought to trial.
Worse yet, Roberts’s “official” vs. “unofficial” distinction cuts exactly the wrong way. A president’s unofficial actions are likely to pose modest risks for the nation and world. But because all presidents possess extraordinary official powers, they are at their most dangerous when they use them for criminal ends. As Justice Sonia Sotomayor observed in her dissenting opinion, the majority appears to offer immunity to a president who “orders the Navy’s Seal Team 6 to assassinate a political rival.” In 1974, it was the abuse of official power that made the smoking gun tape so incriminating against Nixon. Only a president had authority over the nation’s intelligence and law enforcement agencies, so only he could use them, as Nixon did, for corrupt ends.
For the current Supreme Court, it seems, Watergate is less a cautionary tale than a scale model for unaccountable criminality in the White House. The Supreme Court appears to be ratifying Nixon’s notorious statement to the interviewer David Frost: “When the president does it, that means that it is not illegal.” Presidents will no longer need pardons to guarantee that they will escape accountability for their actions in office, no matter how egregious.
To understand how extraordinary the Supreme Court’s opinion in Trump v. United States is, go back to 1974. That was the last time a former president faced a realistic chance of prosecution for crimes committed while in office. The justices gave Donald Trump a degree of deference that was inconceivable for Richard M. Nixon a half-century ago – and one that no one on any side of Nixon’s legal battles even imagined.
Sign up for the Prompt 2024 newsletter for opinions on the biggest questions in politicsAfter Nixon resigned on Aug. 9, 1974, the lawyers on the staff of Leon Jaworski, the Watergate special prosecutor, were primed to charge Nixon with crimes relating to the coverup of the botched burglary at Democratic National Committee headquarters on June 17, 1972. As George Frampton, one of the prosecutors, put it in a memo to Jaworski shortly after Nixon resigned, “I fear that history may yet judge this venture a failure should your decision be to ‘call it a day’ and not indict former President Nixon.”
ADVERTISING
At around the same time, Herbert J. Miller Jr., representing Nixon, wrote a 17-page memo to Jaworski imploring him not to file charges against the former president because of massive, prejudicial pretrial publicity against his client. Miller wrote, “The simple fact is that the national debate and two-year fixation of the media on Watergate has left indelible impressions on the citizenry, so pervasive that the government can no longer assure Mr. Nixon that any indictment sworn against him will produce” a fair trial.
But what’s most striking today about these arguments is what wasn’t said: that a former president enjoyed any sort of immunity from prosecution for acts committed in office. Chief Justice John G. Roberts Jr.’s opinion in the Trump case holds that a former president enjoys total immunity for “official” actions in office and can only be prosecuted for “unofficial” conduct. No such distinction seems even to have occurred to anyone in 1974. In those days, former presidents were not above the law — period.
This risk of prosecution was why, a month after Nixon resigned, President Gerald Ford gave “a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States” that he may have committed as president. If the law in 1974 were what the court is saying that it is now, Nixon would not have needed a pardon. Justice Ketanji Brown Jackson made this point in the oral argument of the Trump case when she asked Trump’s lawyer, “So what was up with the pardon for President Nixon? I mean, if everybody thought that presidents couldn’t be prosecuted, then what was that about?” (There wasn’t much of an answer.)
In theory, Roberts’s opinion allows for some prosecutions of former presidents, but it’s clear that Nixon could not have been prosecuted for the Watergate coverup. The strongest evidence that Nixon obstructed justice in the Watergate investigation was the so-called smoking gun tape of June 23, 1972. In that conversation, Nixon told H.R. Haldeman, his chief of staff, to instruct the CIA to tell the FBI to curtail its investigation of the Watergate break-in on spurious national security grounds. Nixon told Haldeman: “When you get ... these people in, say, ‘Look, the problem is that this will open the whole, the whole Bay of Pigs thing. ... That will uncover a lot of things. You open that scab there’s a hell of a lot of things and that we just feel that it would be very detrimental to have this thing go any further.’”
Under Trump v. United States, Nixon’s statement would not amount to obstruction of justice because it related to his “official” duties — that is, supervising the FBI and CIA. “Investigative and prosecutorial decision-making is ‘the special province of the Executive Branch,’” Roberts wrote, “and the Constitution vests the entirety of the executive power in the President.” Accordingly, “the President cannot be prosecuted for conduct within his exclusive constitutional authority.”
http://www.washingtonpost.com/opini...mc_magnet-opsupremecourt_inline_collection_18
http://www.washingtonpost.com/opini...mc_magnet-opsupremecourt_inline_collection_19
http://www.washingtonpost.com/opini...mc_magnet-opsupremecourt_inline_collection_20
Under Roberts’s reasoning, the government could not even have used the “smoking gun” conversation as evidence in any criminal case against Nixon because Nixon and Haldeman were discussing official conduct. “What the prosecutor may not do, however,” Roberts wrote, “is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety.”
Roberts’s opinion turns the lessons of Watergate on their head. He defines “official” actions so broadly, and “unofficial” ones so narrowly, that it’s difficult to imagine that any prosecution of a former president for crimes in office, including the pending cases against Trump, can ever be successfully brought to trial.
Worse yet, Roberts’s “official” vs. “unofficial” distinction cuts exactly the wrong way. A president’s unofficial actions are likely to pose modest risks for the nation and world. But because all presidents possess extraordinary official powers, they are at their most dangerous when they use them for criminal ends. As Justice Sonia Sotomayor observed in her dissenting opinion, the majority appears to offer immunity to a president who “orders the Navy’s Seal Team 6 to assassinate a political rival.” In 1974, it was the abuse of official power that made the smoking gun tape so incriminating against Nixon. Only a president had authority over the nation’s intelligence and law enforcement agencies, so only he could use them, as Nixon did, for corrupt ends.
For the current Supreme Court, it seems, Watergate is less a cautionary tale than a scale model for unaccountable criminality in the White House. The Supreme Court appears to be ratifying Nixon’s notorious statement to the interviewer David Frost: “When the president does it, that means that it is not illegal.” Presidents will no longer need pardons to guarantee that they will escape accountability for their actions in office, no matter how egregious.
