‘I am not a crook,’ said Nixon — under Trump v. US, he wouldn’t be 

It's startling how far today’s Supreme Court has moved from that unanimous decision in United States v. Nixon.

The U.S. Supreme Court’s granting of broad presidential immunity in Trump v. United States has prompted widespread speculation about what a future president might do with it. But the danger is not hypothetical.

President Richard Nixon created what were surely prosecutable criminal acts in his coverup of the Watergate burglary, and his actions highlight the grossly improper presidential behavior now permitted by this Supreme Court decision. 

In 1974, when I served as Watergate and Coverup Task Force Leader in the U.S. House Judiciary Committee Inquiry into the Impeachment of President Nixon, no one had the slightest doubt that, after the release of the “smoking gun tape,” that Nixon could be prosecuted for obstruction of justice. Today, given Trump v. U.S., any trial for the obstruction of justice committed by Nixon would be barred by presidential immunity.

The “smoking gun tape” revealed that, shortly after the break-in at the Democratic National Committee offices in the Watergate complex for the purpose of repairing previously installed electronic surveillance equipment, Nixon met with his chief of staff, H. R. Haldeman. Haldeman advised the president that former Attorney General John Mitchell, who was now heading up the president’s reelection campaign, was implicated. Nixon then directed that the CIA be told to advise the FBI to lay off the break-in investigation because of national security concerns. This claim was fictitious and motivated by a desire to obstruct discovery of the involvement of Mitchell and other campaign and White House personnel. It plainly established a violation of the federal obstruction of justice statute. 

Under Trump v. U.S., the president’s interactions with the CIA through his chief of staff would be entitled to absolute immunity as the exercise of “core” official authority. The opinion holds that interactions with the Department of Justice are absolutely immune because “investigative and prosecutorial decision-making is the special province of the Executive Branch, Heckler v. Chaney, 470 U. S. 821, 832 (1985),” and the Constitution vests the entirety of the executive power in the president. It follows that directing intelligence services is equally the special province of the executive branch.

A second reason Nixon’s obstruction of justice could not be prosecuted is that, under the Trump opinion, motive or improper purpose may not be used to criminalize even non-core official conduct. But proof of intent is an essential element in an obstruction of justice claim, as it is for most criminal offenses. The inability to prove motive or improper purpose would be fatal.  

The Supreme Court’s Trump opinion would likely also make it impossible to convict the public-sector aides and agents of the president who carried out Nixon’s directives to obstruct the Watergate investigation. The logic of the Trump decision requires that persons such as H.R. Haldeman, John Ehrlichman, Jeb Magruder and John Dean, who were all found guilty of conspiring with the president,to obstruct justice, must also have immunity so that the power of the president fearlessly to carry out his official responsibilities will not be impaired. Alternately, since under Trump v. United States there can be no inquiry into whether a pardon was given to effect a criminal scheme, the president could, if necessary, pardon those who carried out his or her criminal directives.   

Even if the president’s public-sector aides and agents do not have immunity or a pardon, the Trump decision still raises an important obstacle to their prosecution. In a portion of the Trump opinion that Justice Amy Coney Barrett declined to join, the court held that evidence of official acts and conversations of the president may not be used in a case seeking to hold the president accountable for his private conduct. Such evidence, the court opined, would “heighten the prospect that the President’s decision making would be distorted.” This same rationale applies to the president’s staff. 

In United States v. Nixon, the Supreme Court considered President Nixon’s claim that executive privilege relieved him of the obligation to turn over certain tapes of presidential conversations with his aides to the special prosecutor for use in criminal trial of those aides. The court held unanimously that, while those conversations were presumptively protected from disclosure, such presumption was overcome by what was needed to do justice in a criminal trial.   

By giving force to Nixon’s argument that it is not a crime if the president does it, the Trump opinion also weakens impeachment as a source of protection from abuse of presidential power. Some will no doubt argue that presidential conduct cannot be an impeachable high crime or misdemeanor if it is not a crime due to presidential immunity. 

The Trump decision is, therefore, radical in upending the intent of the U.S. Constitution to prevent an imperial presidency and in weakening impeachment as a recourse in the case of high crimes by the president. I had clerked for Justice Potter Stewart, who was later one of the justices who ruled unanimously in United States v. Nixon. He was considered the leading conservative on the court, and even he could not conceive of how Nixon’s behavior was protected by the Constitution. 

It's startling how far today’s Supreme Court has moved from that unanimous decision in U.S. v. Nixon. Nixon showed how morally corrupt an executive branch can become. In Trump's case, the Supreme Court effectively covers up the Watergate coverup. 

Evan Davis, a lawyer, was counsel and task force leader in the President Richard Nixon Impeachment Inquiry and is co-editor of the American Bar Association book “Ethical Standards in the Public Sector: A Guide for Government Lawyers, Clients and Public Officials, 3rd Edition.”