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By Sean O'Driscoll
Senior Crime and Courts Reporter
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Richard Nixon would have been cleared of the Watergate scandal under the new Supreme Court formula for presidential immunity, a constitutional law professor told Newsweek.
New York University School of Law Professor Peter Shane said he agreed with former Nixon legal counsel John Dean, who said the former president would have survived the Watergate scandal had today's Supreme Court been in place.
They were both reacting to the Supreme Court's decision on July 1, which gave former President Donald Trump broad immunity from prosecution for alleged fraud during the 2020 presidential election.
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The case arose after Trump was indicted on four counts of allegedly working to overturn the results of the 2020 election in the run-up to the January 6, 2021, riot at the U.S. Capitol. Trump was facing the charges as front-runner for the Republican presidential nomination. He has pleaded not guilty to the charges and has repeatedly said that they form part of a political witch hunt.
Newsweek reached out to Trump's attorney via email for comment on Tuesday.
The Watergate scandal erupted after Republican operatives broke into the Democratic National Committee office in the Watergate Hotel in Washington, D.C., hoping to find information that would damage the Democratic candidate in the presidential election.
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A Washington Post investigation linked Nixon to the burglars through a secret payment channel. Mark Felt, the deputy head of the FBI, was later found to have quietly helped the Post's investigation.
After it looked like Nixon would be impeached by the Senate in 1974, he resigned as president. He was replaced by Vice President Gerald Ford, who pardoned Nixon for any crimes committed in office.
Both Shane and Dean believe that the current Supreme Court's immunity formula would have protected Nixon and allowed him to remain as president.
In his comments, Dean, who was Nixon's legal counsel from July 1970 to April 1973 during much of the Watergate scandal, said he was "stunned" by the Supreme Court decision.
"As I looked at it, I realized Richard Nixon would have had a pass," Dean told reporters during a phone call on Monday organized by the nonpartisan Defend Democracy Project.
"Virtually all of his Watergate-related conduct" and "virtually all that evidence falls in what could easily be described as 'official conduct,'" Dean said.
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Shane said that the Supreme Court majority ruled that acts that have presidential immunity cannot be used as evidence to indict presidents for acts that do not have immunity.
That means that prosecutors would find it very difficult to take an obstruction of justice or bribery case against a president.
"The most troubling aspect is the assertion that evidence of acts that cannot be prosecuted may not be introduced to establish a state of mind regarding acts that can be prosecuted—consider bribery [and] obstruction of justice," Shane told Newsweek.
Obstruction of justice was one of three articles of impeachment that the House Judiciary Committee had brought against Nixon. He resigned before he could be impeached.
Shane believes that the Supreme Court decision "confirms that this is the most pro-executive branch court since World War II."
"Presumably, it gives presidents less reason to worry about being prosecuted after they leave office—but there were already strong incentives not to prosecute former presidents," he added.
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