What Were They Thinking?

Fifty years ago this month the House Judiciary Committee was preparing for the impeachment of President Richard Nixon. The committee ultimately charged Nixon with obstruction of justice, abuse of power and contempt of Congress.

Nixon had participated in the cover-up of crimes committed by his agents—the Watergate break-in, the burglary of the offices of Daniel Ellsberg’s psychiatrist—and the attempt to use federal agencies to punish his political enemies.

It’s fair to say that many—perhaps most—Americans were shocked and appalled by Nixon’s behavior. Obstruction of justice was and is a federal crime; using federal agencies, such as the Internal Revenue Service, for personal reasons—e.g., to punish political opponents, was and is a federal crime.  On July 24, 1974, the Supreme Court—moving with dispatch—ordered Nixon to turn over to the Watergate Special prosecutor subpoenaed White House tapes of presidential conversations that Nixon had withheld.  One of those tapes revealed Nixon ordering his chief of staff to tell the CIA to fabricate a bogus reason to stop an FBI investigation in the Watergate scandal. That order was a federal crime. The revelation of this act was the final straw that drove Nixon to resign on August 9, 1974. The heart of the ruling by a unanimous Supreme Court ordering Nixon to surrender the fatal tape was in two paragraphs:


“Neither the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. . . Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the confidentiality of Presidential communications is not significantly diminished by producing material for a criminal trial under the protected conditions of in camera inspection, and any absolute executive privilege under Art. II of the Constitution would plainly conflict with the function of the courts under the Constitution..

“We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”

For fifty years, Nixon’s crimes and subsequent resignation have stood as a monument to the principle that in the United States of America no person is above the law—including the President of the United States.

Had the current Supreme Court been sitting in 1974 it is arguable that that ruling might have gone in Nixon’s favor. Beyond that, it is entirely possible that Nixon, swathed in immunity for official acts, would have escaped criminal prosecution for two of the three impeachment articles. He would have been de-criminalized. Safeguarded by his immunity, Nixon might not have been impeached or resigned at all.

That was then. This is now. We don’t yet know the full impact of the Court’s ruling in Trump v. United States—whether Trump’s actions before and during January 6, 2021 were official acts, which under this ruling are immune from criminal prosecution, or unofficial acts which are not. We do know that if Trump is reelected, or any future President, will be immune from criminal prosecution after leaving office for any official act because the Court has declared “absolute immunity” from prosecution for those acts.

It doesn’t stop there, however. Even when trying to determine whether an act is official or not, the Court precluded any investigation into trying to ascertain why a President did what he or she did: “In dividing official from unofficial conduct, courts may not inquire into the President’s motives,” Chief Justice John Roberts wrote.

Justice Amy Coney Barrett objected to going that far. Consider a bribe, for example, she wrote. “…excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution. To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and the quo….” Her opinion and qualification, however, did not prevail. Delving into motive is prohibited.

While we’re on the subject of bribing officials, consider the Court’s ruling in a case a week earlier. The mayor of a small Indiana city had accepted a payment from a contractor who had previously been awarded a lucrative contract from the city. The Court ruled that because the payment to the mayor had been paid after the fact, rather than before, the payment was a “gratuity”, a tip, rather than a bribe. The mayor’s conviction was overturned.

I bring that case up as one example of what could happen with the apparent blank check the Court has given Trump and all his successors. The justices, heady with the realization that they were, in Justice Neil Gorsuch’s phrase “writing for the ages,” recklessly whacked away, using a cleaver instead of a scalpel. The majority apparently was concerned about a vengeful President going after his predecessor, but it lacked the imagination to see that it was handing the chief executive a license to steal—or worse.

We might well ask “What were they thinking?” This country has survived for almost 250 years without explicitly granting a President absolute immunity for anything. We have prided ourselves in declaring that no one, including a President, is above the law. And now, the Court has declared—for the ages—that a President in a wide variety of circumstances, acting under the color of law, is above that law.

One more note, under the heading of coulda, woulda, shoulda.

It may be recalled, during the second impeachment trial of Donald Trump growing out of the events of January 6, that Senate Minority Leader Mitch McConnell (R-KY), after voting not to convict Trump in the Senate trial, rose to say, “There is no question that President Trump is practically and morally responsible for provoking the events of that day.” McConnell gave his reasons for voting to acquit Trump, but then he asserted, “President Trump is still liable for everything he did while he was in office, as an ordinary citizen, unless the statute of limitations has run, still liable for everything he did while in office, didn’t get away with anything yet – yet. We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one.” (emphasis added)

We now have every reason to ponder the opportunity lost when the Senate had the chance not only to bar Donald Trump from ever taking public office again, but also to prevent the Supreme Court from handing him carte blanche to work his will in a second presidential term.

A phrase attributed to Otto von Bismarck comes to mind: “There is a Providence that protects idiots, drunkards, children and the United States of America.” We can only hope that it’s true.

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