Somewhere — probably in hell — Roger Ailes, the Richard Nixon acolyte who co-founded Fox News, is smiling at the Supreme Court’s decision in Trump v. United States. The majority’s ruling is another strike against the institutions that brought accountability to Ailes’ old boss over the Watergate scandal. And Ailes’ fingerprints are all over the result.
The court’s decision gifts presidents with extraordinary immunity from criminal prosecution that will hamstring the prosecution of Donald Trump over his 2020 election subversion plot. Chief Justice John Roberts, writing for himself and the other five justices appointed by Republican presidents, declared that Trump and other presidents “may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.” Roberts stipulates that Trump’s efforts to pressure Justice Department officials to support his false claims of election fraud fall under the former category, while the then-president’s attempts to get then-Vice President Mike Pence to throw out electoral vote slates are an example of the latter.
This is a new and radical doctrine. The majority defies “an established understanding, shared by both Presidents and the Justice Department, that former Presidents are answerable to the criminal law for their official acts,” as Justice Sonia Sotomayor notes in her dissent.
“Consider Watergate, for example,” Sotomayor continues. “After the Watergate tapes revealed President Nixon’s misuse of official power to obstruct the Federal Bureau of Investigation’s investigation of the Watergate burglary, President Ford pardoned Nixon. Both Ford’s pardon and Nixon’s acceptance of the pardon necessarily ‘rested on the understanding that the former President faced potential criminal liability.’”
Observers are noting — in horror or with glee — that Nixon would likely have been immune from prosecution for Watergate under the majority’s doctrine. That’s not a coincidence, but the result of a decades-long effort by the right to delegitimize and defang the institutions that stymied the Republican president — the press, the Congress, and the criminal justice system.