Power  /  Argument

Richard Nixon Would Have Loved the Court’s Immunity Decision

I would know.

Richard Nixon would have been thrilled with the ruling of the U.S. Supreme Court in Trump v. United States earlier this week.

I would know. I served as Nixon’s White House counsel until he fired me in April 1973 for seeking to end the Watergate cover-up by openly cooperating with the investigation of the White House’s involvement. Although I had fewer than 30 one-on-one sessions with President Nixon in the 1,000 days I served him, I was high enough in the pecking order to understand what was occurring and why.

The new ruling, in effect, decriminalizes Nixon’s conduct during the Watergate scandal. As Chief Justice John Roberts explains in the majority opinion, a “President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.” Nixon’s activities fit right in the sphere that the Court broadly defines as “official” or “outer perimeter” behavior. According to the Court, only “unofficial conduct” is unquestionably subject to prosecution.

Nixon believed in an unfettered presidency, the law be damned. I discovered this reality when I was directed by his chief of staff to see if I could implement a plan to remove all legal restraints on domestic intelligence-gathering after the intelligence agencies (the CIA, FBI, National Security Agency, and Defense Intelligence Agency) developed a plan so secret, its classification was classified. Rather than break the law, I found a legal solution by creating an interagency committee that addressed the communications situation among the agencies. Later, and unaware but suspecting that the orders had come directly from Nixon, I killed a plan to “firebomb” and burglarize the Brookings Institution (a Washington, D.C., think tank) in order to obtain documents the president believed it had in its safe. Under this new Supreme Court ruling, these otherwise illegal activities could well be immune to prosecution as official conduct of the president of the United States.

The high court is leaving it to the U.S. District Court for the District of Columbia to determine whether Donald Trump’s conduct related to January 6, 2021, is immune, with one exception: The Court held that Trump’s conversations with his acting attorney general, which were included in his indictment as part of his scheme to overturn his election defeat, were off-limits. The Court ruled that conversations with top Justice Department attorneys qualify as official conduct and are thus precluded from criminal prosecution. In addition, the Court held that no evidence relating to such official conduct, or “outer perimeter” conduct, can be used by prosecutors. This expands criminal immunity to theoretically provide maximum protection to the institution of the presidency, because it effectively precludes establishing a president’s state of mind, which is crucial to proving criminal conduct.