WASHINGTON — When Chairman Gerald Ford to forgive Richard Nixon In 1974, it was believed that his predecessor might be prosecuted for his efforts to obstruct the investigation into the Watergate scandal.
But under the new rule that the Supreme Court introduced on Monday, which is partially immunized Donald Trump in his election interference case there may have been no need for such a pardon.
“Richard Nixon would have had a free pass,” John DeanNixon’s White House counsel said during a telephone call with reporters on Monday.
The Supreme Court said that key presidential functions, such as communicating with other officials, are absolutely immune from prosecution. And other acts that cross the line are presumptive immune, meaning a defendant can assume he is immune unless a prosecutor can prove otherwise.
Future presidents, unlike Nixon, will enter office knowing that they can protect themselves from prosecution as long as their alleged illegal acts can be defended as an exercise of fundamental presidential power. Presidents who commit criminal acts can still be removed through the impeachment process.
Under the new test, “virtually all of the evidence” against Nixon related to the cover-up surrounding the 1972 break-in at the Democratic National Committee offices could be inaccessible, Dean added.
Among the conduct in question were Nixon’s attempts to implicate the CIA in the plan, including a request to halt the FBI’s investigation into the break-in. Dean himself pleaded guilty to obstruction of justice for his role in the scandal.
Nixon was pardoned after he resigned as president, facing impeachment.
The Watergate comparison illustrates how Monday’s ruling has far-reaching implications beyond whether Trump’s prosecution will ever go to trial.
It was a theme seized upon by the court’s three liberal justices, who vociferously objected to the ruling.
Justice Ketanji Brown Jackson wrote in a dissenting opinion that the ruling constitutes a “five-alarm fire that threatens to destroy democratic self-government.”
although Chief Justice John Robertswho wrote the majority opinion, downplayed the impact and criticized Jackson and her liberal colleagues for the “chilling tone” they adopted. Legal experts expressed concern about the practical implications the decision could have.
Some returned to a hypothetical question posed during the Trump appeal about whether a president could order SEAL Team 6 to assassinate a political rival. Lower courts had ruled that such behavior was clearly prosecutable.
But the Supreme Court ruling appears to indicate it does fall under immunity, legal experts said.
“Under this view, I think that’s actually true now,” said Randall Eliason, a former prosecutor who teaches at George Washington University Law School. “Commanding the military is a core function of the president, so that order would be entitled to absolute immunity.”
Matthew Seligman, an attorney who has closely followed the Trump case and filed a brief supporting the prosecutors, said the ruling is “extraordinarily dangerous” because of the message it sends to future presidents.
“The lesson for future autocrats is that next time they abuse official power,” he said, ensuring that their behavior is seen as a presidential duty and therefore enjoys immunity.
Liberal Justice Sonia Sotomayor took up this theme in her own dissent, saying that the SEAL Team 6 hypothesis, a coup attempt, or accepting bribes for a pardon would all be immune.
“Even if these nightmare scenarios never happen, and I pray they never do, the damage has already been done,” she wrote.
Roberts, he said, rejected the dissenting justices’ “fear-mongering based on extreme hypotheses.” He said the alternative — a president “unable to discharge his duties in a bold and fearless manner” — would be even worse.
As conservative Justice Samuel Alito, who was in the majority, noted during oral argument in response to the SEAL Team 6 scenario, military personnel have an obligation not to obey unlawful orders.
John Malcolm, vice chairman of the Heritage Foundation’s conservative Institute for Constitutional Government, praised the ruling, saying presidents should not be criticized for making hasty decisions under pressure.
“I don’t think we, for the most part, elect mafiosi and gang members as presidents,” he added. “Most of them are honorable people.”
This article was originally published on NBCNews.com
