Opinion Why the Supreme Court’s immunity ruling is untenable in a democracy

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.