Detonating the Presidency
- GS Potter
- 5 days ago
- 27 min read
Updated: 2 days ago
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.
– James Madison, The Federalist Papers No. 47
Introduction
When I was 25, and then a sergeant in the Army, I had deployed to Iraq for Operation Iraqi Freedom. From time to time, I volunteered to travel on IED-infested roads to conduct supply missions for U.S. and allied military forces and local Iraqi populations. But on January 6, for the first time, I was more afraid working at the Capitol than during my entire Army deployment to Iraq. In Iraq, we expected armed violence because we were in a war zone. But nothing in my experience in the Army, or as a law enforcement officer, prepared me for what we confronted on January 6.
– U.S. Capitol Police Sergeant Aquilino Gonell
On January 6, 2021, President Donald Trump told a violent mob of co-conspirators, “If you don’t fight like hell, you won’t have a country anymore.”
Next, he directed that mob to sack the Capitol building, obstruct the inauguration of Joe Biden, and “stop the steal.”
Trump sat back in the Oval Office and “gleefully” watched as his seditious co-conspirators assaulted members of the Capitol police force, breached the barriers of the Capitol building, stormed the offices of legislators, and threatened to kill Vice President Mike Pence if he certified the results of the 2020 election.
Shortly after, President Biden’s Department of Justice (DOJ) appointed Special Prosecutor Jack Smith to investigate. He ultimately secured an indictment, and the case was presented to the Supreme Court. On July 1, 2024, SCOTUS issued its foundation-shattering ruling in Trump v, the United States (2024).
What happened next was part dystopian nightmare, part conspiracy to defraud the American public.
Americans recoiled, seditionists rejoiced, and the immediate practical results of the ruling overshadowed the long-term strategic advantages it presents.
Americans were correct when they interpreted the ruling to mean that Trump would not be held accountable for his crimes before the 2024 election. They were also correct when they foresaw Donald Trump being allowed to occupy the Oval Office for a second term.
Americans were deceived, though, into believing that Trump had been granted absolute immunity. In fact, Trump enjoyed all but complete freedom from indictment during his first term. In July of 2024, the Supreme Court took that freedom away.
Misreadings from the public and their pundits, coupled with misrepresentations and lies from the Trump Administration, have trapped Americans in a cycle of disinformation that has defrauded them into believing Trump has the immunity of a king. Whether intentionally deceptive or unintentionally reactionary, the results have been chilling.
In response to the Trump (2024) ruling, President Joe Biden’s principal deputy campaign manager Quentin Fulks decries, “They just handed Donald Trump the keys to a dictatorship. The Supreme Court just gave Trump a permission slip to assassinate and jail whoever he wants to gain power.”
In a similar vein, Justice Sonia Sotomayor warns in her dissent:
Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop. With fear for our democracy, I dissent.
The Trump Administration smelled blood and lunged.
Before his second term, Trump and his Administration deployed messaging strategies that described his criminal cases as partisan “witch hunts,” framing him as a victim of a weaponized Department of Justice.
Shortly after Trump took office for his second term, their propagandizing shifted. The Administration launched an unrelenting campaign, complete with AI-generated videos and memes embellished to the point of absurdity, designed to defraud the People into believing there was nothing they could do to stop their freshly coronated king.
And it worked.
Between the shock, the misunderstanding, and the misinformation, the citizens of the land of the free and the home of the brave, where all people are created equal, and no person is above the law, did the unthinkable. They surrendered.
Since the Trump (2024) ruling, not a single criminal indictment has been issued against the President. Meanwhile, he and his co-conspirators have aggressively accelerated their criminal agendas in the United States and across the globe.
The President’s power is demanding to be checked. And it can be.
Despite the widespread belief that there is no viable pathway to hold Trump accountable through the courts, the truth is that the Trump (2024) ruling contains a nuclear option that gives the People unprecedented power to hold him accountable.
That power just comes at a price.
In exchange for permission to detonate the nuclear option, the Supreme Court makes two offerings. First, it removes the monopoly that the Attorney General holds on Presidential indictment and immunity. Second, it removes the absolute immunity from indictment that was afforded to Presidents through the Department of Justice’s policy and replaces it with a tiered immunity structure that allows local and state prosecutors to indict, try, and sentence him in the lower courts.
Judicial Branch. As such, moving forward, it would be the guidelines presented in the Trump (2024) ruling that dictate the policies surrounding Presidential indictment, not the Department of Justice memo that had provided guidance for half a century prior. This meant that Prosecutors would have to take their criminal cases against Trump back through the lower courts to be reassessed according to the Supreme Court’s new guidance. In this way, the precedent for this new process could be established.
The catch was two-pronged.
First, during the time that it would take for Prosecutors to return to the lower courts to fulfill the new requirements, Trump would remain a free man.
Second, as a result, he would be allowed to return to the campaign trail and ultimately the Oval Office. Despite the optics and subsequent propaganda campaigns, justice was delayed, not denied. The Supreme Court didn’t rule that Trump would not be held accountable for the January 6 insurrection. They ruled that they would only hold him accountable if their new demands were met. And that would take time.
As for the outcomes of four criminal cases that were active in the courts, not a single one was dismissed because of Presidential immunity.
Special Counsel Jack Smith followed the Court’s directives and returned the case to Judge Aileen Cannon and the lower court. After Trump won the election, though, Smith made the strategic decision to request a dismissal without prejudice.
Knowing Trump would remove him from his position when he took office, Smith opted to end his pursuit of a conviction and seek a dismissal without prejudice. This decision would prevent Trump’s Department of Justice from dismantling the case and left the option to refile in the future. Smith made the same decision with his classified documents case, United States v Donald J. Trump, Waltine Nauta and Carlos de Oliveira.
Similarly, New York County District Attorney Alvin Bragg’s criminal case against Donald Trump was allowed to proceed following the Trump (2024) ruling.
DA Bragg prosecuted the case involving the hush money payments Trump made Stormi Daniels in the run-up to the 2016 election. Trump was found guilty one month before the Trump (2024) ruling, but the case was also allowed to continue despite Trump’s claims of Presidential immunity.
Trump was found guilty of 34 felonies, but his requested sentence included no punishment. DA Bragg made the strategic decision to request an unconditional discharge. This offered him the clearest path to securing a conviction and preventing defeat on appeal.
Unfortunately, it also allowed the President to walk away from sentencing without suffering any tangible consequences. This outcome did not satisfy Americans demanding the restraint of their unhinged and seditious President. Still, it set a precedent allowing for the sentencing of a sitting President. In other words, while the limits of Presidential sentencing are still largely unsettled, the President does not enjoy immunity from sentencing.
Finally, the criminal case that is most reflective of America’s current state of self-imposed immobility is Fulton County District Attorney Fani Willis’s racketeering case against Donald Trump.
Willis may have had the strongest case against Trump and a number of his co-conspirators. In fact, four of these co-conspirators had already pled guilty when the Trump Administration launched a full-fledged assault on the District Attorney herself.
After the Trump Administration successfully removed DA Willis from the case, though, it was dismissed – but not immediately.
In the wake of Willis’s removal, there was an opportunity for another Prosecutor to take her place. Not one displayed the courage to do so. Without a willing Prosecutor to take the case, the attorney charged with facilitating the transition appointed himself to the position and filed for dismissal.
Fani Willis’s case was dismissed because of cowardice, not immunity.
Another common, but understandable, misconception is that the Supreme Court is completely beholden to Donald Trump and his agenda. As a result, there is no reason to use the Justice System to prosecute him. Recently, that narrative has begun to crack.
During Trump’s first term, SCOTUS only ruled against the President and his agenda four times. In his second term, that number was surpassed in the early months of his second year. These oppositional rulings follow a clear pattern. They have strategically limited the authority of the Executive Branch and reallocated it to the Legislative and Judicial Branches.
The Roberts Court specifically appears to be deploying a strategy to rebalance the federal powers in a way that restricts the President’s authority and expands their own. The Trump (2024) ruling, in fact, was one of three rulings issued in 2024 that accomplish just that.
During his second term, Trump has faced losses on issues like his illegal use of tariffs and his unconstitutional deployment of the National Guard against the American people. SCOTUS also seems prepared to rule against him in his case concerning birthright citizenship. President has not been able to restrain his contempt. He recently ranted:
“The Republican Justices don’t stick together, they give the Democrats win after win, like a 159 Billion Dollar pile of cash on a completely ridiculous Tariff decision, and nasty, one sided questions on the country destroying subject of Birthright Citizenship, something which virtually NO OTHER COUNTRY IN THE WORLD IS STUPID ENOUGH TO ALLOW…No, certain ‘Republican’ Justices have just gone weak, stupid, and bad, completely violating what they ‘supposedly’ stood for.
The war between the Executive Branch and Judicial Branch is becoming increasingly volatile. If Prosecutors play their cards correctly and detonate the nuclear option as directed by SCOTUS, this war could land Trump in prison.
Convicting Trump won’t be easy, though, especially in MAGA-held courts. The Supreme Court didn’t intend it to be. Chief Justice Roberts uses what some would argue is an excessively broad brush to paint the landscape for Presidential immunity. In fact, in her partial concurrence, Justice Amy Cohen Barrett discusses areas she believes the Court could have provided more specificity.
In response to the designation of all official acts as protected, she writes, “Though I agree that a President cannot be held criminally liable for conduct within his ‘conclusive and preclusive’ authority and closely related acts…the Constitution does not vest every exercise of executive power in the President’s sole discretion.”
Even so, there are clear examples of where Trump steps outside of the bounds of his official and peripheral authority. Chief Justice Roberts points to many of these examples in the ruling itself. He explains:
The indictment also contains various allegations regarding Trump’s conduct in connection with the events of January 6 itself. The alleged conduct largely consists of Trump’s communications in the form of Tweets and a public address. The President possesses “extraordinary power to speak to his fellow citizens and on their behalf.” Trump v. Hawaii, 585 U. S. 667, 701. So most of a President’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities. There may, however, be contexts in which the President speaks in an unofficial capacity—perhaps as a candidate for office or party leader. To the extent that may be the case, objective analysis of “content, form, and context” will necessarily inform the inquiry. Snyder v. Phelps, 562 U. S. 443, 453. Whether the communications alleged in the indictment involve official conduct may depend on the content and context of each. This necessarily factbound analysis is best performed initially by the District Court. The Court therefore remands to the District Court to determine in the first instance whether this alleged conduct is official or unofficial. Pp. 28–30. (3)
Similar reasoning is applied to the majority of the criminal acts Jack Smith cited in his case against Trump. For some, many of which are more than questionable at the surface level, the President enjoys immunity from indictment. For others, many of which are unquestionably outside the realm of the President’s official capacity, the President is unprotected and must be held accountable in a court of law. Justice Barrett explains in her partial concurrence:
The Constitution does not insulate Presidents from criminal liability for official acts. But any statute regulating the exercise of executive power is subject to a Constitutional challenge…a criminal statute is no exception. Thus, a President facing prosecution may challenge the Constitutionality of a criminal statute as applied to official acts alleged in the indictment. If that challenge fails, however, he must stand trial.
The number of crimes that Trump has committed outside of his official capacity are incalculable. There are no shortages of opportunities for District Attorneys and State Attorneys General to indict President Donald Trump for his crimes. There is only a lack of action. SCOTUS has installed a nuclear option in their Presidential immunity ruling that enables them to stop the President. Americans just need to press the button.
The Big Lie II: Trump’s Immunity is Absolute
In the immediate aftermath of the Trump v. the United States (2024) ruling, responses from both sides were explosive. Those seeking accountability for the crimes committed on January 6 were outraged.
They interpreted the ruling as the Supreme Court’s final declaration that Trump was king and all legal pathways to hold him accountable were closed.
Experts, analysts, and members of the Judicial Branch confirmed America’s fears that the ruling was a coronation. For example, the ACLU’s National Legal Director David Cole decries:
On purely partisan lines, the Supreme Court today for the first time in history places presidents substantially above the law. It ruled that former President Trump cannot be prosecuted for deploying Justice Department officials to pursue his own criminal ends. And with respect to other presidential actions, it announces ‘presumptive immunity,’ and offers only a vague and unworkable standard that is likely to mire the case against former President Trump in years of litigation without holding him accountable for his criminal conduct in resisting the peaceful transfer of power.
Samuel Breidbart of the Brookings Institute writes:
The ruling in Trump v. United States is an affront to democracy and the rule of law, forfeiting critical checks on executive power. It undermines criminal accountability for presidents if their lawbreaking occurs in the course of “official” conduct, and it endangers democratic accountability by potentially shielding presidents from prosecution for trying to overthrow elections. By inserting this opinion into a world where impeachment is no longer a viable option, the Supreme Court is licensing future presidents to subvert our democracy at will — and protecting a past president, Donald Trump, who attempted just that.
Even Justice Ketanji Brown Jackson sounded an alarm. In her dissent, she writes:
Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. Relying on little more than its own misguided wisdom about the need for “bold and unhesitating action” by the President, ante, at 3, 13, the Court gives former President Trump all the immunity he asked for and more. Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent.
Trump and his supporters, on the other hand, celebrated the ruling and launched ever-escalating propaganda campaigns in its wake. In response, Trump posted on Truth Social, "BIG WIN FOR OUR CONSTITUTION AND DEMOCRACY. PROUD TO BE AN AMERICAN!"
The month following the ruling, the Trump Administration leaned into the King Trump narrative. The Administration quickly launched a campaign designed to defraud the American people into believing they could not hold their new King accountable. And they escalated his claims that no one could check his power.
Trump boasted, “As you know, the Supreme Court ruled recently on immunity, and I’m immune from all of the stuff that they charged me with.”
Soon after, when asked about the prospect of Chicagoans engaging in nonviolent resistance against the US military, Trump told the American people:
I have the right to do anything I wanna do. I’m the President of the United States. If I think our country’s in danger — and it is in danger in these cities — I can do it…
By the Fall of 2025, the King Trump propaganda campaign was completely unhinged. In response to an impending “No Kings” rally, Trump posted an AI-generated video of himself in a crown flying a jet with “King Trump” painted in gold on the side. The jet flies over a crowd of protesters and appears to open a downpour of feces on them.
In that same month, when asked about the President’s authority to deploy the National Guard against the people of the United States, Trump’s Homeland Security Advisor Stephen Miller responded, “Under Title 10 of the U.S. Code, the president has plenary authority.”
And just two days after the second anniversary of the January 6 insurrection, after the illegal capture and detainment of Venezuelan President Nicolas Maduro, Trump was asked if there were any limits to his international authority. He responded, “Yeah, there is one thing. My own morality. My own mind. It’s the only thing that can stop me.”
Trump not only intentionally misrepresents the Supreme Court’s Trump (2024) ruling regularly, but he deploys this new Big Lie as part of a campaign to defraud the American people into believing that he, as President, has absolute immunity from criminal indictment for every crime.
Members of his Administration are eager to disseminate that deceit and to carry out crime after crime under its cover. Vice President JD Vance, for example, directly refuted SCOTUS’s new guidelines for Presidential immunity posting:
If a judge tried to tell a general how to conduct a military operation, that would be illegal. If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that's also illegal. Judges aren't allowed to control the executive's legitimate power.
Vance’s statement may have been true prior to the Supreme Court’s ruling in Trump v United States (2024). The same cannot be said today. And he likely knows that.
The Trump Administration’s goal, though, is to create an environment where the American people believe there is nothing they can do to stop the President. Their goals do not include upholding the Constitution or the rights of the People.
By the winter of 2025, the Trump Administration launched a full-blown propaganda campaign against the Judicial Branch and the American people. In the eyes of MAGA, Trump was king and despite the groundbreaking Trump (2024) ruling, no one – not even the courts – could check his power.
The President of the United States is broadcasting to the American people and the world that Democracy is dead and America now has a king. And his Administration, behaving like a network of coconspirators, is actively participating in that effort.
The effect has been chilling, as designed. Not one single District Attorney or State Attorney General has sought a grand jury indictment against Donald Trump since the Trump (2024) ruling. No protest movements are calling for Prosecutors to take action. As Trump takes his criminal enterprise global, the world watches as the People of what was once the world’s greatest Democracy do nothing to stop him.
Trump’s immunity is imaginary. In fact, Presidential immunity itself is a conjuring of the Nixon Administration in the wake of Watergate.
While the Roberts Court guidelines are strict, they dramatically depart from the blanket absolute immunity that was afforded to the President before the Trump (2024) ruling. Americans actually have more pathways to hold Trump accountable than they had before the ruling. Additionally, because of the Roberts Court, the Executive Branch has less authority than it has had in generations.
Trump is weak. He is vulnerable. And he cannot be protected by the Department of Justice. If ever there was a time to act, it is now.
Ch. 1
The Origins of Presidential Immunity
The Constitution didn’t give Donald Trump Presidential Immunity. Richard Nixon Did.
On September 24, 1973, President Nixon’s Assistant Attorney General, Robert Dixon, produced the Memorandum Re: Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution while in Office. The memo was written in the wake of the Watergate scandal and in response to VP Spiro Agnew’s claim that a sitting Vice President could not be indicted for criminal acts. It gave a sitting President absolute immunity from criminal indictment, and until the Trump (2024) ruling, the Nixon-Dixon memo dictated the nation’s policy on checking the power of the President.
The Conspiracy to Defraud the Nation into Believing Nixon was Immune from Indictment
The Nixon Administration could best be described as a network of criminal co-conspirators. Ultimately, forty officials, including seven top aides, would be indicted for crimes related to the Watergate scandal. Their criminal activity wasn't limited to their time in the Executive Branch, though.
Vice President Spiro Agnew, for example, was under a federal investigation in Maryland for crimes extending back to his time as a state official. These crimes included bribery, extortion, and tax evasion. Agnew’s lawyers argued that a sitting Vice President could not be criminally indicted because of Executive immunity.
Nixon's Department of Justice argued otherwise. Nixon's Attorney General, Elliot Richardson, faced the possibility that both the President and the Vice President could be criminally indicted and removed from office. Vice President Agnew was being investigated in Maryland by US Attorney George Beale for crimes he committed as a state official. President Nixon was under criminal investigation by the Department of Justice for his role in the Watergate scandal.
Should they both be found guilty, the Executive Branch would be handed over to Speaker of the House Carl Albert, a Democrat from Oklahoma. Handing the Executive Branch, the Department of Justice and the Watergate investigations over to the Democratic Party was not an option for the criminally burdened Nixon Administration.
Denying the Vice President immunity and finding an unindicted replacement for Agnew would allow the Republicans to keep the White House if and when Nixon vacated office. Granting the President immunity would keep Nixon out of prison, and preventing the case from going to trial would allow the Nixon Administration to sidestep the release of information that could have led to additional indictments.
This strategy was codified in two separate memos. The memo granting President Nixon absolute immunity was Assistant AG Robert Dixon's Memorandum Re: Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution while in Office, released on September 24, 1973. The memo solidifying Agnew’s denial of immunity was Solicitor General Robert Bork's Memorandum for the United States Concerning the Vice President’s Claim of Constitutional Immunity, filed on Oct. 5, 1973.
Four days after Assistant Attorney General Robert Dixon released his guidance on Presidential Immunity, Agnew's lawyers filed a formal petition arguing that a sitting Vice President was immune from indictment. A week later, Solicitor General Robert Bork responded with his guidance on indicting a sitting Vice President, denying Agnew absolute immunity.
These directives were revisited in 2000 when then-President Bill Clinton was under criminal investigation and facing impeachment. Clinton's Assistant Attorney General Randolph Moss published a review of Presidential immunity for the Clinton Administration entitled A Sitting President's Amenability to Indictment and Criminal Prosecution. This review clarified and validated the immunity guidelines published by the Nixon Administration in 1973. It reads:
The OLC memorandum concluded that all federal civil officers except the President are subject to indictment and criminal prosecution while still in office; the President is uniquely immune from such process. Second, the Department addressed the question later that same year in connection with the grand jury investigation of then-Vice President Spiro Agnew. In response to a motion by the Vice President to enjoin grand jury proceedings against him, then-Solicitor General Robert Bork filed a brief arguing that, consistent with the Constitution, the Vice President could be subject to indictment and criminal prosecution. Application of Spiro T. Agnew, Vice President of the United States. In so arguing, however, Solicitor General Bork was careful to explain that the President, unlike the Vice President, could not constitutionally be subject to such criminal process while in office.
This strategy worked.
Less than a week after Solicitor General Bork released his Vice-Presidential immunity memo, Spiro Agnew resigned. He pleaded no contest to one charge of felony tax evasion and was able to secure a plea deal that included a $10,000 fine and three years of unsupervised probation, but no prison time.
The House Minority Leader, Gerald Ford, was nominated by President Nixon to replace Vice President Agnew. He was easily confirmed by the House and the Senate. And despite unquestionable evidence that Nixon orchestrated the break-in and spying efforts at the Democratic Party’s headquarters, he was able to escape indictment for his role in the Watergate Scandal by citing the memo Dixon produced.
Conjuring Immunity and Cleaning up a Massacre
To successfully conjure a Presidential immunity policy, Dixon would have to deploy a two-pronged strategy. First, he would need to convince the Judicial Branch, the Legislative Branch, and the public that, without any Constitutional or legislative foundation, the Executive Branch should have the sole authority to indict itself. Second, he would need to convince them that the Constitution prevented them from doing so. To succeed, Dixon would have to make both the Judicial Branch and America’s system of Checks and Balances disappear. He would also have to put the Executive Branch in a straitjacket.
Illusion 1: Only Co-Conspirators Can Indict the President
Checks and balances present a significant challenge to Presidential immunity.
While Congress has always clearly held the power to impeach, in 1973, there was no clear Constitutional directive or legal precedent dictating whether the Judicial Branch or the Executive Branch could or should hold a sitting President accountable for engaging in criminal activity. The same can be said for the state of Presidential immunity in 2000 when Clinton’s Assistant Attorney General Randolph Moss reviewed the 1973 memo as President Clinton faced criminal accusations. He writes:
…under our constitutional plan it cannot be said either that the courts have the same jurisdiction over the President as if he were an ordinary citizen or that the President is absolutely immune from the jurisdiction of the courts in regard to any kind of claim”.… As a consequence, “ [t]he proper approach is to find the proper balance between the normal functions of the courts and the special responsibilities and functions of the Presidency.”
Dixon and Moss both used this lack of Constitutional foundation to assert that the President’s coconspirators cannot indict him because a criminal proceeding may hinder him from doing his job. They failed to consider that criminal prosecution may also hinder the President from committing more crimes. Moss explains:
The OLC memorandum then proceeded to the second part of its constitutional analysis, examining whether criminal proceedings against a sitting President should be barred by the doctrine of separation of powers because such proceedings would “ unduly interfere in a direct or formal sense with the conduct of the Presidency.” OLC Memo at 27. It was on this ground that the memorandum ultimately concluded that the indictment or criminal prosecution of a sitting President would be unconstitutional.
Illusion 2: Co-Conspirators Cannot Bring Their Boss in Front of a Judge
The first three Articles of the Constitution establish the three Branches of government and separate their powers. Article I creates the Legislative Branch. Article II creates the Judicial Branch. And Article III creates the Executive Branch.
When it comes to checking the power of the Executive Branch, Article I clearly outlines the role of the Legislative Branch. It reads:
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
The role of the Judicial Branch, dictated by Article III, is less direct but far more encompassing. For example, Article III, Section 2 gives the Judicial Branch authority over all cases under the Constitution, reading:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects....
...The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Article III Section 3 addresses the role of the Court as it relates to treason specifically. It reads:
...No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
Finally, the Executive Branch is created through Article II of the Constitution. The Framers were very deliberate when they delineated authority to the President. Except in cases of pardons and appointees, the powers of the President are clearly bound to and derivative of the powers of the Legislative and Judicial Branches. For example, Article II, Section 2 reads:
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
More concerned with preventing the President from resembling a monarch than protecting him from indictment for criminal acts, the Framers did not give the President immunity from indictment, especially for Criminal Acts. To the contrary, Article II, Section 4 reads:
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
The only other time that Article II discusses the Executive Branch in relation to criminal accountability is when the Framers describe how the President can be removed for many reasons, and when this happens, there is a process to replace them. Article II, Section 1 reads:
In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
Logic and a brief review of the Federalist Papers would suggest that bestowing the Executive Branch with the authority to protect itself from indictment would be an irrefutable marker of tyranny. Dixon was undeterred.
A stroke of wizardry would be needed to convince the average American, let alone the Supreme Court, that if the President decided to use Executive Branch officials to detain and/or end the life of any and every opposing member of the Legislative and Judicial Branches, then a jury could not possibly hold them accountable because it would take too long. But magical language is exactly what Dixon would rely upon to give the illusion that the Constitution demands the Executive Branch hold a monopoly on Presidential accountability.
It is worth taking a pause here to sit with the example given. In the 1973 Presidential Immunity Memo, Dixon argues:
It is not to be forgotten that the modern Presidency, under whatever party, has had to assume a leadership role undreamed of in the eighteenth and early nineteenth centuries. The spectacle of an indicted President still trying to serve as Chief Executive boggles the imagination.
If the Founders could not conceive of the responsibilities of a modern President, nor could they or Americans of the 1970s conceive of an indicted President, it would be very unlikely that they had the foresight to imagine a President who has engaged in the criminality that defines Donald Trump’s presidency. Threats of violence against political competitors should not be taken lightly in general, but they have become commonplace under the banner of MAGA. They have also become more than just threats.
Donald Trump violently attempted to overturn the results of the 2020 election. He has overseen the use of violence, detainment, and legal retribution against public officials. He has directed the murder and detainment of leaders from sovereign nations, and he has launched a war with Iran without buy-in from the People, formal approval from Congress, or consultation with our global allies. And just recently, he equated the Democratic Party with a nation whose leaders he just had killed, posting:
While it may have been unfathomable for the Founders and former Administrations to envision a President willing to physically harm his political opponents for purely selfish and vile reasons, that threat is all too real today.
It is not out of the bounds of reality to ask if an unconditional discharge, or a sentencing without punishment, would be suitable for a President who used ICE agents to detain members of Congress or specific Supreme Court Justices who didn’t bow to his will.
Would it be considered an official act if the President directed the “Secretary of War” to drop munitions on a dinner boat party attended by Democratic candidates and funders?
How do we protect the People from a President with violently seditious compulsions and control of all three branches of government?
These are questions that can no longer be left in the realm of the unfathomable. But this is where the Dixon memo left it.
Continuing with the farce that the Executive Branch should hold a monopoly on indicting itself, Assistant Attorney General Dixon leaned on the legally baseless theory that if a Special Prosecutor is appointed by a Presidential appointee, in this case the Attorney General, the second degree of separation replaces the Separation of Powers.
Dixon likely knew that creating an escape route for Nixon to evade indictment was evidence to the contrary. Still, he proceeded with dismantling the nation’s most important protections against authoritarianism He even went so far as to cite the Watergate scandal as an example of this theory’s purity. As the 2000 Moss Memo describes:
…the memorandum explained that, on the one hand, “ it could be argued that a President’s status as defendant in a criminal case would be repugnant to his office of Chief Executive, which includes the power to oversee prosecutions. In other words, just as a person cannot be judge in his own case, he cannot be prosecutor and defendant at the same time.” … This contention “would lose some of its persuasiveness where, as in the Watergate case, the President delegates his prosecutorial functions to the Attorney General, who in turn delegates them [by regulation] to a Special Prosecutor."
At the time of publication, there may have been the smallest chance that Dixon did not see the error in his theory, but the same cannot be said for the Clinton Administration and Assistant Attorney General Moss. Dixon did not have the benefit of watching the Saturday Night Massacre unfold before authoring his guidance on Presidential immunity. Moss did.
Moss knew that the Special Prosecutor was not the only important actor in the Presidential indictment process. There was another member of the Executive Branch that played a role just as critical: the Attorney General.
Immunity After a Massacre:
The Court of the Attorney General
It was going to be challenging to convince the American public that the President was above the law. Fortunately, Dixon had help.
Much like Donald Trump, President Nixon intentionally set out to destabilize the national balance of power by rebalancing the Supreme Court. Nixon campaigned on ending the era of the liberal Warren Court and followed through on that promise.
To date, Donald Trump, with assistance from billionaire Leonard Leo, has been able to hand-pick three Supreme Court Justices. Richard Nixon was able to appoint four. He had reason to believe that they would uphold the Department of Justice’s policy on immunity.
Weeks after Dixon released his immunity memo, President Nixon set out to test the limits of his authority. This test would go on to be known as the Saturday Night Massacre.
In May of 1973, the third of Nixon’s four Attorneys General, Elliot Richardson, made a commitment to the House Judiciary and Senate to appoint a special prosecutor to investigate the Watergate scandal. He assigned Archibald Cox to that role.
As part of his investigation, Special Investigator Cox sought access to a collection of tapes that held thousands of hours of secret recordings from President Nixon's offices. Nixon knew that if he turned over the tapes, his Presidency would end.
Of particular concern was the "Smoking Gun" tape, recorded on June 23, 1972. This tape contained irrefutable evidence that President Nixon personally ordered the CIA to pressure the FBI to end the investigation against him. Nixon was brazenly defiant, armed with immunity, and he had a few more tricks left up his sleeve. To protect himself, President Nixon refused to comply with Cox's subpoena, citing executive privilege.
The US Court of Appeals for the DC Circuit upheld Cox's subpoena, ruling that executive privilege does not protect evidence that is of importance to a criminal investigation. In other words, the Judicial Branch's duty to uphold due process overrides the Executive Branch's general need for confidentiality.
The President was not prepared to concede.
President Nixon offered to release transcripts of the tapes, but only if they were transcribed by Senator John Stennis. Senator Stennis of Mississippi's most notable accomplishments include submitting false evidence against three Black teenagers as a trial lawyer, voting against the Civil Rights Act of 1964 while serving in Congress, and being one of the most vocal opponents of desegregation. He was also severely hard of hearing.
Special Prosecutor Archibald Cox rejected the President's ingenuine offer. Nixon responded by directing Attorney General Elliot Richardson to fire Cox the next day.
What happened next would shock the nation and change the trajectory of the Nixon Administration.
Attorney General Richardson rejected Nixon's request and resigned his position. Undeterred, President Nixon turned to Deputy Attorney General William Ruckelshaus and directed him to fire Cox. To his credit, Ruckelshaus also refused to fire Cox and resigned his position.
In his self-righteous obstinacy, Nixon turned to Solicitor General Robert Bork next. This time, he added a carrot to the stick.
President Nixon sent a limousine to pick up Bork at the Department of Justice and transport him to the White House. Bork revealed in his posthumous memoir that he was also offered a seat on the Supreme Court in exchange for firing Cox. It was an offer he could not refuse, but Nixon would not have the opportunity to live up to his end of the bargain. Bork conceded to the President’s demands and carried out Cox's termination. This night of Executive Branch upheaval would come to be known as the Saturday Night Massacre.
President Nixon ultimately prevailed in his efforts to fire Special Prosecutor Cox, but he lost what little public approval he had left. Americans were appalled.
Under intense scrutiny, Nixon allowed for the appointment of a new Special Prosecutor. Acting Attorney General Robert Bork appointed Leon Jaworski. Special Prosecutor Jaworski immediately submitted a request asking the Supreme Court to review the case. They agreed.
Attorney General Leon Jaworski conducted an investigation and summoned a grand jury, but he had no intention of signing an indictment against Nixon. That’s exactly why Nixon allowed for his appointment.
The grand jury Jaworski summoned would have, to their credit, unanimously voted to indict the President had they been afforded the opportunity. In a 20/20 television interview recorded in 1982, seven of those members broke their silence and told the American people that despite a unanimous decision, Jaworski refused to sign an indictment against the President.
A United Press International (UPI) report summarizing the interview describes:
Grand jury deputy foreman Harold Evans said Jaworski argued against indictment citing such things as 'the trauma of the country' and the lack of legal precedent for indicting a sitting president.
'And foremost, we were told point blank, perhaps not in these very words, that an indictment would not be signed,' grand jury foreman Vladimar Pregelj said.
Asked by whom it would not be signed, Pregelj said, 'By Jaworski.'
Jaworski would go no farther than labeling Nixon as an unindicted co-conspirator – just as expected.
Attorney General Jaworski believed that a sitting President could not be indicted. As a result of this one man’s “belief,” President Nixon would go on to resign, but he would never face criminal charges.
In light of the Saturday Night Massacre and the Trump Administration’s policy to obstruct any effort to hold the Executive Branch accountable, there should be no question that Intra-Branch independence is both unattainable and Constitutionally unsound. Still, in 1973 and 2000, Dixon and Moss were allowed to assert otherwise. Nixon and Clinton both benefited from those assertions.
Today, Trump no longer enjoys that same level of privilege that Nixon and Clinton enjoyed, or that he himself enjoyed during his first term. And the explosive potential of this vulnerability cannot be overstated.
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