SCOTUS immunity decision may have protected crimes in Nixon White House, federal appeals judge says
White House “plumbers” who broke into the office of the psychiatrist treating the man who leaked the Pentagon Papers may have had immunity for their crimes if the U.S. Supreme Court’s July immunity decision had governed the cases, according to an op-ed by a federal appeals judge. (Photo of former President Richard Nixon by AP Images)
White House “plumbers” who broke into the office of the psychiatrist treating the man who leaked the Pentagon Papers may have had immunity for their crimes if the U.S. Supreme Court’s July immunity decision had governed the cases, according to an op-ed by a federal appeals judge.
Under Trump v. United States, the plumbers team might “have gotten away with it,” argued Senior Judge Stephen S. Trott of the 9th U.S. Circuit Court of Appeals at San Francisco in his article in the Washington Post.
The Trump decision held that presidents have absolute immunity when exercising core constitutional powers and at least presumptive immunity for acts “within the outer perimeter” of their official responsibilities.
The Washington Post’s Opinions newsletter called it “a big deal” that Trott “decided to write anything, let alone that the Supreme Court’s immunity ruling in the case of [former President] Donald Trump is untenable in a democracy.”
Trott has direct knowledge of the plumbers case; he oversaw the state indictment of John Ehrlichman, then the White House domestic policy adviser, who was accused of approving the 1971 burglary to dig up dirt on leaker Daniel Ellsberg, as well as others on the team involved in the break-in.
The Pentagon Papers, which showed mismanagement of the Vietnam War, had a top-secret classification. Then-President Richard Nixon created the so-called plumbers team to prevent further leaks.
Trott and others in the Los Angeles district attorney’s office pursued charges after a U.S. Department of Justice official said the department didn’t intend to prosecute. The department, it turned out, had been ordered by Nixon to stay away from the case because it was a matter of national security.
The state charges were dropped after Watergate special prosecutor Archibald Cox secured federal indictments.
If the Trump decision had been on the books in 1971, the men convicted on federal charges in the Ellsberg break-in “would have been entitled to immunity because as the president’s agents acting within the scope of his express constitutional authority, they, too, would have been cloaked with his absolute immunity,” Trott asserted. “The president’s and the plumbers’ corrupt intent and criminal purpose would have been considered immaterial.”
Second, Trott wrote, the decision gives a president “exclusive authority over the investigative and prosecutorial function of the Justice Department. In that capacity the president has ‘absolute discretion’ to decide which crimes to investigate and prosecute. Even if the president makes those decisions and pursues them with a corrupt motive and criminal intent, it is now beyond debate that those determinations cannot be formally questioned.”
Nixon wouldn’t have allowed the DOJ to investigate him or the plumbers, Trott said. A special prosecutor would never have been appointed. Nor would there be Watergate convictions.
“If Nixon had known he had the unreviewable power to fire the special prosecutors and refuse to investigate and prosecute anyone related to the Watergate scandal, no one would have had to pay the price for their crimes,” Trott wrote.
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