‘Five alarm fire’: Supreme Court immunity ruling raises fears about future lawless presidents

WASHINGTON — When President Gerald Ford pardoned Richard Nixon in 1974 it was under the assumption that his predecessor could have been prosecuted for his efforts to impede the investigation into the Watergate scandal.

But under the new rule implemented by the Supreme Court on Monday that partially immunized Donald Trump in his election interference case, there may not have been any need for such a pardon.

“Richard Nixon would have had a pass,” John Dean, Nixon’s White House Counsel, said on a call with reporters Monday.

The Supreme Court said core presidential functions such as communicating with other officials are absolutely immune from prosecution. And other acts that may straddle the line are presumptively immune, meaning a defendant can assume they are immune unless a prosecutor can prove otherwise.

Future presidents, unlike Nixon, will enter office knowing they can insulate themselves from prosecution as long as their allegedly illegal acts can be defended as exercises of a bedrock presidential power. Presidents who commit criminal acts can still face removal from office via the impeachment process.

Under the new test, “virtually all of the evidence” against Nixon in relation to the cover-up of the break-in at the Democratic National Committee offices in 1972 could have been off-limits, Dean added.

Among the conduct at issue would have been Nixon’s attempts to enlist the CIA in the scheme, including asking it to stop the FBI 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 on the verge of being impeached.

The Watergate comparison illustrates how Monday’s ruling has broad repercussions that affect more than just 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 consume democratic self-governance.”

Although Chief Justice John Roberts, who wrote the majority opinion, downplayed the impact, chiding Jackson and her liberal colleagues for the “tone of chilling doom” they adopted, legal experts expressed concern about the practical repercussions the decision could have.

Some returned to a hypothetical question asked during the Trump appeal about whether a president could order SEAL Team 6 to assassinate a political rival. Lower courts had ruled that such conduct could clearly be prosecuted.