After Nixon resigned on August 9, 1974, lawyers for Watergate Special Prosecutor Leon Jaworski were preparing to indict Nixon on charges related to the cover-up of the June 17, 1972 break-in at the Democratic National Committee headquarters. In a memo to Jaworski shortly after Nixon’s resignation, one of the prosecutors, George Frampton, wrote, “We are concerned that if you decide to ‘call it a day’ and not indict former President Nixon, history may judge the effort to have been a failure.”
Around the same time, Nixon’s attorney, Herbert J. Miller, Jr., wrote Jaworski a 17-page memo imploring him not to indict the former president because of the extensive and biased pretrial coverage of Nixon. “The simple fact is that the national debate and two-year media obsession with Watergate have left an indelible impression on the nation and are so pervasive that the Government can no longer assure Mr. Nixon that any charges brought against him will result in a fair trial,” Miller wrote.
But what is most shocking today about these arguments is what was not said: that former presidents enjoyed immunity from prosecution for acts committed while in office. In the opinion of Chief Justice John G. Roberts Jr. in Trump, former presidents enjoyed complete immunity from prosecution for “official” acts committed while in office and could only be prosecuted for “unofficial” acts. No one seems to have thought of such a distinction in 1974. Former presidents were not above the law then.
Because of this risk of prosecution, a month after Nixon resigned, President Gerald Ford granted Richard Nixon a “full, free, and absolute pardon for all crimes against the United States” he may have committed as president. If the 1974 law had been as the court now states it, Nixon would not have needed a pardon. Judge Ketanji Brown Jackson made this point during oral argument in the Trump case, asking Trump’s lawyers, “So what was a pardon for President Nixon? I mean, if everyone assumed the president wouldn’t be prosecuted, what was the point of it?” (Few answers were given.)
While Roberts’ opinion in theory allows for the prosecution of a former president, it is clear that Nixon was never prosecuted for covering up Watergate. The strongest evidence that Nixon obstructed the Watergate investigation is the so-called smoking gun tape of June 23, 1972. In that conversation, Nixon tells his chief of staff, H.R. Haldeman, to instruct the CIA to tell the FBI to drop the Watergate investigation for bogus national security reasons. Nixon told Haldeman, “I’m going to get these people together and say, ‘The thing is, this is going to open up the whole Bay of Pigs thing. … This is going to open up a lot of stuff. If you open up the scabs, you’re going to find some pretty damn nasty stuff. I think it’s going to be very damaging to go any further with this.'”
under Trump vs. the United StatesNixon’s comments did not constitute obstruction of justice because they related to his “official duties” overseeing the FBI and CIA. “Investigative and prosecutorial decisions are ‘the special domain of the executive branch,’ and the Constitution vests the entirety of executive power in the President,” Roberts wrote. Thus, “the President cannot be prosecuted for acts that are within the scope of his exclusive constitutional powers.”
According to Roberts’ reasoning, because Nixon and Haldeman were discussing official conduct, the government could not even use the “smoking gun” conversations as evidence in the criminal case against Nixon. “What prosecutors may not do, however, is admit testimony or private records of the president or his advisers investigating the official conduct itself,” Roberts wrote. “Admitting such evidence would force a jury to scrutinize the motives for the president’s official actions and question their legitimacy.”
Roberts’ opinion reverses the lessons of Watergate: He defined “official” conduct so broadly and “unofficial” conduct so narrowly that it is difficult to imagine that prosecutions of former presidents for crimes committed while in office, including the pending case against Trump, could ever succeed in court.
Worse, Roberts’s distinction between “official” and “unofficial” is entirely off the mark. A president’s unofficial actions may pose some risk to the nation and the world. But every president has extraordinary official powers that are most dangerous when they are used for criminal purposes. As Justice Sonia Sotomayor pointed out in her dissent, the majority seems to grant immunity to a president who “orders Navy SEAL Team Six to assassinate a political opponent.” It was the abuse of official power that led to Nixon’s conviction in 1974, with the conclusive tapes. Only the president has authority over the nation’s intelligence and law enforcement agencies, and only the president can use them for nefarious purposes, as Nixon did.
For the current Supreme Court, Watergate seems less like a cautionary tale and more like a scale model of inexplicable crimes in the White House. The Court seems to approve of President Nixon’s infamous remark to interviewer David Frost: “If the president does it, it means it’s not illegal.” Presidents will no longer need to be pardoned to escape responsibility for their actions in office, no matter how egregious.
