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The Supreme Court rewrites Watergate history: 50 years since Nixon’s resignation, immunity decision would have undone prosecutions

The Supreme Court’s decision last week granting former President Donald Trump presidential immunity for “official acts” totally obliterates the principle that no one in America, not even the president, is above the law. This principle, in existence since the founding of our Republic, was unquestioned in the Watergate era 50 years ago.

Having created this unprecedented immunity from whole cloth, Justice Sonia Sotomayor’s dissent rightly concludes that “our Constitution does not shield a former president from answering for criminal and treasonous acts.” The majority in turn accuses Sotomayor of “fear mongering on the basis of extreme hypotheticals about a future where the president ‘feels empowered to violate federal criminal law.’ ”

There is no need to speculate about the future. We can look to our past history and present circumstances to know that this decision will empower a convicted felon like Trump, should he be elected this November, to do whatever he wants, including violating criminal law, to seek retribution against his perceived enemies. Trump has already proclaimed he will suspend the U.S. Constitution and promised to be a dictator on day one.

Ironically, the same group of justices who are so obsessed with history from more than 200 years ago to interpret the scope of the Second Amendment’s right to bear arms, totally ignored the more recent history and lessons learned from Watergate that demonstrate these so-called hypotheticals are based in reality, not “fear mongering.”

FILE - In this Aug. 9, 1974 file photo, President Richard Nixon waves goodbye from the steps of his helicopter outside the White House, after he gave a farewell address to members of the White House staff. (AP Photo/Chick Harrity)
FILE – In this Aug. 9, 1974 file photo, President Richard Nixon waves goodbye from the steps of his helicopter outside the White House, after he gave a farewell address to members of the White House staff. (AP Photo/Chick Harrity)

Sotomayor’s reference to the concern that a president would be immune from criminal prosecution if he “orders the Navy’s Seal Team 6 to assassinate a political rival” is supported by a Watergate reality. The Nixon White House did in fact order a “hit” on Daniel Ellsberg, the whistleblower who had published the Pentagon Papers revealing that multiple administrations had lied to the public about U.S. involvement in the Vietnam War. Nixon viewed Ellsberg as one of his prime political enemies.

Rather than using a government military unit to do its dirty work, the Nixon White House recruited a group of Bay of Pigs veterans from Miami to attend an anti-war rally on May 3, 1972, on Capitol Hill at which Ellsberg was a featured speaker.

As an assistant special Watergate prosecutor, I interviewed one of those men from Miami. He confirmed to me, what he had earlier relayed to the FBI, that his assignment was to kill Ellsberg. Both Howard Hunt and G. Gordon Liddy, who worked for the Nixon White House and Nixon’s reelection committee, supervised this project. Fortunately, these men were unable to get close enough to Ellsberg to inflict any harm because the Capitol Police interceded.

Additionally, nearly two years earlier, in September 1971, the Nixon White House approved a burglary of Ellsberg’s psychiatrist’s office in Los Angeles. The purpose was to obtain derogatory information on Ellsberg from his psychiatric records to publicly destroy his reputation. Some of the same individuals from Miami who were involved in the attempt to kill Ellsberg participated in this burglary and were indicted along with John Ehrlichman, one of Nixon’s two principal aides. The jury found all defendants guilty on July 12, 1974.

The defense in that case was that the burglary was a legitimate effort to protect national security. Under the new Supreme Court immunity opinion, we would have been foreclosed from disproving this defense. Chief Justice John Roberts is clear that “[i]n dividing official from unofficial conduct, courts may not inquire into the president’s motives.” Thus, we would not have been able to prove that the entire motive behind the burglary was to support a political hatchet job on Ellsberg.

The Nixon White House later recruited some of the same men from Miami to break into the Democratic National Headquarters at the Watergate complex and place taps on selected phones. Would it have made a difference to our current Supreme Court that Nixon was not using executive branch employees to perform these blatantly illegal acts but instead directed a group of civilians from Miami? Probably not. It would seem, based on this new opinion, that the focus of whether an act is official is on the president’s actions as opposed to whom he uses to carry them out, particularly if national security is the justification.

However, the opinion is crystal clear that when it comes to the president committing crimes with members of the executive branch, a president’s dealings with his subordinates such as the attorney general are entitled to absolute immunity. As to Trump, Roberts held that “the president cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.”

If the Roberts opinion had been the law in the 1970s, the Watergate special prosecutor’s office would not have been able to investigate Nixon for obstruction of justice, and there would have been no need for President Ford to pardon him.

There were two key pieces of uncontested tape-recorded evidence proving that Nixon had orchestrated the obstruction. On June 23, 1972, less than a week after the arrest of the Watergate burglars at Democratic National Headquarters, Nixon directed his Chief of Staff H.R. Haldeman to call the director and deputy director of the CIA to have them in turn call the FBI to halt the investigation into the break-in at the Democratic National Headquarters for ostensibly national security reasons.

The public release of this recording led to a delegation of prominent Republican senators meeting with Nixon that resulted in Nixon’s resignation on August 9, 1974. Under the Supreme Court’s new opinion, Nixon would have been immune from prosecution, and there would have been no reason for him to resign. Indeed, under this decision, Nixon did not even need to create a national security subterfuge to have the CIA call the FBI. Nixon could have just picked up the phone and directed the FBI to terminate its investigation.

Second, on March 21, 1973, nine months after Haldeman’s call to the CIA, Nixon met with his closest advisors, including Haldeman and White House counsel, John Dean, and approved the payment of $1 million in cash hush money to the Watergate burglars who were demanding funds to pay their lawyers. Nixon and Dean agreed that former Attorney General John Mitchell, then Nixon’s campaign manager, should raise the funds.

Subsequently, Dean pled guilty to obstructing justice, and Haldeman and Mitchell and others were convicted of obstruction and perjury before the Watergate grand jury and the Senate Watergate Committee.

Since Nixon would have been immune to obstruction charges under the new Supreme Court opinion, it is possible that none of his subordinates could have been prosecuted. It would not necessarily make sense for the president to have immunity for directing the crime of obstruction, yet his subordinates who carry out his immunized directions could be prosecuted. Thus, based on the new opinion, most of the 48 individuals convicted of Watergate crimes could conceivably not have been charged.

The one crime clearly not an official act for which Nixon could have been prosecuted was tax fraud in connection with his gift of vice presidential papers to the National Archives. Since Harry Truman, presidents who donated their papers to the U.S. Government obtained a substantial tax deduction based on the appraised value of the papers. That deduction was eliminated in the 1969 Tax Reform Act. Nixon fraudulently backdated the deed underlying the gift to make it falsely appear that his gift of papers was made prior to the effective date of the change in the tax law to support a large deduction on his tax returns.

A key piece of evidence showing that Nixon knew he was no longer entitled to a deduction for the gift of papers was testimony from his subordinates that Nixon had lobbied Congress to maintain the deduction prior to the passage of the Tax Reform Act. Lobbying of Congress under Roberts’ opinion is clearly an official act, which evidence cannot be considered “for limited and specified purposes” to prove knowledge “on charges that purport to be based only . . . [a president’s] unofficial conduct.”

Thus, if the immunity created by the Roberts Court had existed in the 1970s, the case against Nixon for an unofficial act of tax fraud would have been made more difficult to prove.

The court’s sole justification for creating this presidential immunity is the “prospect of an executive branch that cannibalizes itself, with each successive president free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next.”

Again, the history before and after Watergate negates this concern. Even though Nixon likely would have been indicted for serious federal crimes but for his pardon, no other president, except for Trump, has been criminally prosecuted, never mind already been convicted on 34 felonies. For the Supreme Court to carve out a special extra-legal status to protect Trump, already proven to be a serial fraudster who may regain the presidency, is beyond outrageous.

Akerman was formerly an assistant special Watergate prosecutor and an assistant U.S. attorney for the Southern District of New York.


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