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What the Supreme Court’s presidential immunity ruling may have meant for Nixon

AILSA CHANG, HOST:

This week, for the first time, the Supreme Court granted presidents substantial immunity from prosecution for their actions in the White House. It's the kind of immunity that would have likely barred prosecutors from charging President Nixon for his role in the Watergate scandal. NPR justice correspondent Carrie Johnson has been doing some reporting about that, and she's here now to talk more about it. Hey, Carrie.

CARRIE JOHNSON, BYLINE: Hey, Ailsa.

CHANG: OK. So essentially, the Supreme Court here has just given Donald Trump kind of a legal shield, right? What do you think that does now to the special counsel's case against Trump?

JOHNSON: At least part of the election interference case against Donald Trump is now dead, according to the Supreme Court majority. This is after they ruled presidents get absolute immunity for things like replacing an attorney general. In fact, the majority opinion said it would be no problem for presidents to discuss opening criminal investigations with top Justice Department officials, and that's something most presidents have avoided since the Watergate scandal.

It got me thinking about Watergate and what might have happened to Richard Nixon if this Supreme Court ruling had been on the books back in 1974. Nixon resigned to avoid impeachment. Then he hired a law firm to defend him in the criminal investigation. William Jeffress was a young defense lawyer at that firm. I caught him by phone today to ask about the Nixon probe.

WILLIAM JEFFRESS: He was accused of orchestrating an obstruction of justice using his Attorney General Mitchell, his chief of staff, Bob Haldeman, his assistant for domestic affairs, John Ehrlichman, not to mention the White House counsel, John Dean.

JOHNSON: Within a month, Nixon accepted a pardon, so his criminal exposure never got litigated. Jeffress says the Supreme Court ruling this week would have completely reshaped Nixon's legal predicament. Former White House counsel John Dean put it bluntly.

(SOUNDBITE OF ARCHIVED RECORDING)

JOHN DEAN: Richard Nixon would have had a pass.

JOHNSON: Dean, who pleaded guilty to a conspiracy charge and served prison time, spoke to reporters this week after the high court ruling on immunity.

(SOUNDBITE OF ARCHIVED RECORDING)

DEAN: Virtually all of his Watergate-related conduct and virtually all that evidence falls in what could easily be described as official conduct.

JOHNSON: Official and thus presumptively immune, according to the Supreme Court majority. Philip Lacovara worked for the Watergate special prosecutor. Lacovara says it was unthinkable back then that Nixon would be forever immune for any criminal acts he committed during his presidency - things like misusing the CIA to block an FBI investigation into the Watergate burglary and cover-up.

PHILIP LACOVARA: Even such things as illegal wiretapping and the break-in at the psychiatrist's office of Daniel Ellsberg - those were all done in the name of national security, which this court would certainly view as a core presidential function.

JOHNSON: Lacovara says the high court decision reflects a dangerous endorsement of an imperial presidency.

LACOVARA: Decision by the Roberts court was explicit that the president's motives for exercising his constitutional functions may not be examined by the courts. And I think that's another one of the aspects of this decision that is so destructive of all of the concepts of justice that we've come to cherish in this country.

JOHNSON: As for what the case means now and in the future, Lacovara says...

LACOVARA: It basically puts a blowtorch in the hands of an arsonist by declaring that any acts within the outer perimeter of presidential functions is either absolutely immune from criminal prosecution or effectively immune from criminal prosecution.

CHANG: All right. We have Carrie Johnson joining us again in the studio. That was so interesting to revisit history through the lens of yesterday's Supreme Court decision. And before we let you go, I mean, there's been more fallout today from that immunity decision, right?

JOHNSON: That's right. Trump's sentencing in the New York hush money case had been set for next week. Now it's delayed to September 18 as Donald Trump tries to argue the Supreme Court decision on immunity helps him there in that case.

CHANG: That is NPR's Carrie Johnson. Thank you so much, Carrie.

JOHNSON: My pleasure. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Carrie Johnson is a justice correspondent for the Washington Desk.

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