Stephen S. Trott a senior judge on the U.S. Court of
Appeals for the 9th Circuit and Reagan appointee, writing in the Washington Post:
Under the Supreme Court’s recent ruling on presidential immunity, could President
Richard M. Nixon have legally ordered his Plumbers to burgle the office of
Daniel Ellsberg’s psychiatrist? Might they all have gotten away with it?
It certainly looks that way to me, and I have a particular
interest in this matter. As a young lawyer in the Los Angeles District
Attorney’s Office in 1971, I oversaw the burglary indictment of senior White
House officials and White House operatives for breaking into the Beverly Hills
office of Dr. Lewis Fielding. In my assessment, if Trump v. U.S. had
been on the books then, the president’s agents responsible for the Fielding
burglary and related crimes, instead of going to prison, would have escaped
prosecution and punishment entirely.
Let me explain why. In its June ruling, the Supreme Court
held for the first time that a former president cannot be prosecuted for any
acts undertaken while in office if those acts fall within the core
constitutional powers of the presidency even if they constitute prima facie
crimes under the federal criminal code. Other official acts outside that core
responsibility, the court said, are at least presumptively immune.
The court grounded its decision on the perceived need to insulate
the president from chilling and debilitating worry about possible legal
jeopardy and to preserve the separation and balance of powers among the three
branches of government.
To understand the court’s holding in Trump v. U.S.,
consider the Ellsberg case. Ellsberg was on trial in Los Angeles for having
released to the New York Times and The Washington Post the “Pentagon Papers,”
classified as top secret. That 7,000-page report about the Vietnam War, which
Ellsberg had assisted in producing, had been prepared by the Defense Department
and contained a candid and embarrassing
review of the government’s mismanagement of the conflict.
Convinced by the papers that the Vietnam War was unjust and
could not be won, and that the government was lying to the public about it,
Ellsberg brought the report to the attention of several influential senators,
trying unsuccessfully to persuade them to release it. Frustrated by their
negative response, he decided to release the report himself, explaining that,
as a “responsible American citizen, he could no longer cooperate in concealing
them.”
In response to Ellsberg’s unauthorized release, an angry
Nixon created a high-level White House team under the direction of his domestic
policy adviser, John Ehrlichman. The team’s goal was to prevent further leaks
of sensitive national-security information about the ongoing conflict. Hence
the name: “the Plumbers.”
In pursuit of Nixon’s goal, Cuban American operatives
working for the Plumbers burglarized the Beverly Hills office of Fielding on
Sept. 3, 1971, nine months before the Watergate break-in in D.C. Ehrlichman had
approved the burglary on the Plumbers’ assurance that it would not be
traceable. The Plumbers’ nefarious purpose was to steal the contents of
Fielding’s file on Ellsberg and to release the doctor’s notes and records to
the press. Their ultimate objectives were to discredit Ellsberg publicly as
clinically disturbed and to discredit the media’s portrayal of him as a
patriot.
Directed against Ellsberg, Nixon’s orders to his chief of
staff, H.R. Haldeman, were “Don’t worry about his trial. Just get everything
out. Try him in the press. Try him in the press.” Ironically, the Plumbers came
up dry: Fielding kept no records about his patient’s mental condition, only
appointment information for billing purposes. Although reported to the police,
the burglary was not linked to the Plumbers and the White House until 1974,
during the Watergate trials in D.C. There is no doubt that had they found
something derogatory about Ellsberg, Charles Colson, Nixon’s special counsel,
would have found a way to disseminate it to the public anonymously.
When the Fielding burglary came to light during the
Watergate trials, I was a deputy district attorney in Los Angeles. Our office
had jurisdiction over crimes committed in Beverly Hills. When we found out
about the Fielding burglary, we called Henry Petersen, then the assistant
attorney general in charge of the Justice Department’s Criminal Division in
D.C. We wanted to know what the DOJ planned to do about this obvious federal
crime. Surprisingly, Petersen’s answer was “nothing.” Years later I found out
he was under orders from Nixon to steer clear of the Fielding case because it
was a matter of “national security.”
Given Petersen’s answer, we convened a state grand jury in
Los Angeles and secured an indictment charging burglary. The defendants were
Ehrlichman and Colson, and Plumbers David Young, Egil Krogh and Gordon Liddy,
all White House operatives. Shortly thereafter, Archibald Cox, recently
appointed the Justice Department’s Watergate special prosecutor, secured federal
indictments against all but Young, who was granted immunity. Eventually the
federal defendants were convicted of, and sentenced to prison for, a conspiracy
to obstruct justice, as well as other federal crimes.
Colson, once characterized by Haldeman as “Nixon’s hit man,”
pleaded guilty to attempting to obstruct justice by interfering with the
Ellsberg trial. By agreement with the special prosecutor, I dismissed our state
case. By then, Judge Matthew Byrne had dismissed the federal case against
Ellsberg because of governmental misconduct arising from the Fielding burglary,
illegal wiretaps targeting the defendant and the Plumbers’ attempt to corrupt
his trial.
Now, think about what would have happened if Trump v.
U.S. had been on the books in 1971.
First, Nixon was acting as commander in chief, a core
constitutional power, when he launched the Plumbers’ mission, which he
considered a matter of national security. The mission arose during the Vietnam
War from an unauthorized release of Defense Department classified information
about the hostilities. Accordingly, the Plumbers’ activities, including the
burglary, would have fallen squarely within the president’s unreviewable,
conclusive and preclusive core constitutional authority. The men convicted and
sent to prison 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. The president’s and
the Plumbers’ corrupt intent and criminal purpose would have been considered
immaterial.
Second, the Supreme Court held that “the Constitution vests
the entirety of the power of the executive branch in the President,” giving him
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 would not have permitted the Justice Department to
investigate himself and the Plumbers for any of their acts pursuant to his
orders. The appointment of a special prosecutor to do so would have been out of
the question. Moreover, any official resisting the president’s orders could
have been fired on the spot.
The same fate would have befallen the entire mission of Cox
and his successor, Leon Jaworski. After the Watergate break-in by White House
burglars on June 17, 1972, Cox assembled a crack team of prosecutors to assist
him. By the time the dust had settled, the Watergate Special Prosecution Force,
operating within the Justice Department, had secured 40 felony convictions of
government officials, including John Mitchell, Nixon’s former attorney general.
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.
Presumably, the president has the same bulletproof authority
over the Treasury Department and the IRS. Nixon kept a political “enemies
list.” In 1972, White House Counsel John Dean urged the IRS to investigate 575
people on that list. Dean’s objective on behalf of the president was “to use
the available machinery [of government] to screw our political enemies.”
Presumably, that gross abuse of executive power would also have been
unreviewable and entitled to immunity? As an aside, where does the court’s
imprecise language leave the jurisdiction of federal inspectors general and
congressional oversight of the executive branch?
This is not how previous courts have understood the powers
of the presidency. In 1882, the Supreme Court declared that “No man in this
country is so high that he is above the law. No officer of the law may [defy]
that law with immunity. All the officers of the government, from the highest to
the lowest, are creatures of the law and bound to obey it.”
Are we to believe that in 1882 the court silently intended
to exclude the president from this unequivocal statement of principle? The
Trump ruling is irreconcilable with this long-standing postulate, a precept
understood by all since 1788 until now, that ours is a government of laws, not
of the officials who enforce it.
The court majority’s convoluted answer to the charge that
they have unjustifiably placed the president above the law is that the
president is not above the law because it is the law itself that says he is
above it. No matter how cleverly articulated, the result is the same: The
president and his agents are free to break the laws that apply to every other
person in the nation. This newly minted imperial power is difficult to
reconcile with an explicit presidential responsibility in Article II of the
Constitution to “take Care that the Laws be faithfully executed.”
The court’s paradoxical holding is that the person we choose
every four years to faithfully enforce our laws does not have to follow them.
Why? Because if he must comply with our laws, it might render him fearful and
cautious in office to the detriment of the responsibilities of the executive
branch. The court cited no evidence or examples to support this concern. As
Justice Ketanji Brown Jackson observed in dissent, this unsupported,
counterintuitive holding allows a president to do whatever he wants as long as
he uses his official powers to do so. The court has uprooted the principle that
it is the law that is supreme, not our officeholders.
There is a conspicuous flaw in the court’s constitutional analysis.
Although the Constitution provides impeachment as a method to remove a person
from office for criminal behavior, the framers of the Constitution did not
consider the remedy of removal alone to be sufficient. It provides that a
person removed from office by impeachment “shall nevertheless be liable and
subject to indictment, trial, judgment and punishment according to law.”
The Trump majority evades the plain meaning of this text by noting
that the clause “does not indicate whether a former president may, consistent
with the separation of powers, be prosecuted for his official conduct in
particular.” The court’s reasoning is unconvincing.
Alexander Hamilton participated in drafting the
Constitution. In 1788 and before ratification, he and James Madison wrote a
series of essays in the Federalist, articles designed to explain the workings
of the new government and to quell critics’ fears about its various provisions.
One major objection was that the president of the new nation would resemble the
king of Great Britain in his unfettered powers. Not so, wrote Hamilton. Unlike
a hereditary monarch, the president would serve a term of only four years,
after which he would have to stand for reelection or rejection. More to the
point, he elaborated on the generic judgment impeachment clause as it would
apply to the president himself.
Hamilton wrote: “The President of the United States would be
liable to be impeached, tried, and, upon conviction of treason, bribery or
other high crimes and misdemeanors, removed from office, and would afterward be
liable to prosecution and punishment in the ordinary course of law. The person
of the King of Great Britain [by comparison] is sacred and inviolable; there is
no constitutional tribunal to which he is amenable; no punishment to which he
can be subject without involving the crisis of a national revolution.”
We learned from Watergate that Nixon’s coverup was as
serious as the crimes he was attempting to conceal. Now, the court has given
the president the constitutional tools to accomplish the equivalent of a
successful coverup in plain sight: a safe harbor against justice. The court’s
decision will embolden the president because he will no longer have anything to
fear from the law. The court’s holding that the president has “unreviewable and
absolute discretion” over prosecutorial decisions means that if Donald Trump is reelected president, he can and most
likely will dismiss all federal charges against himself. One seriously doubts
that such a corrupt and egotistical act is what the framers had in mind when
they called for an “energetic independent Executive.”
Will the public on whose support our institutions depend
accept one set of rules for the president and his agents but another for
themselves — a constitutional double standard?
As the dissenting justices acknowledged, it is one thing —
and entirely appropriate — to protect a president from criminal prosecution for
the good-faith exercise of his or her legitimate power, even when the president
is mistaken. The same considerations do not apply, however, when the evidence
shows that the president intentionally violated clearly established criminal
law, not in good faith, not to serve the nation, but to benefit himself.
As the dissenters in the case explain, it is neither necessary,
wise nor appropriate to resort to the extreme of removing the president from
the reach of the justice system when a less drastic prophylactic would do. It
is sufficient to give former presidents the protection of an adequate defense
to criminal charges, a defense that honors the special and important
responsibilities of the office. Without getting into details, such defense
would include an “as applied” constitutional challenge to the application of a
statute to the activity at issue, a defense of “public authority” to do what is
in question, and having acted on authoritative advice of counsel. In
conjunction with the robust procedural safeguards that every suspect and
defendant enjoys, these defenses would accomplish the majority justices’
objectives. The final safeguards, of course, would be the criminal law’s burden
of proof beyond a reasonable doubt and a jury trial by the former president’s
peers.
It would seem to come down to this consideration: Either we
trust our justice system to resolve challenging cases and controversies
appropriately, or we do not.
Nowhere in the Constitution or the Federalist is there any
provision, suggestion, or hint that the president can with impunity commit
crimes against the state or lawlessly abuse citizens without recourse. But that
is what the Supreme Court has left us: a kingdom within our republic.
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