There’s been much talk about the gravity and impact of this month’s Supreme Court finding granting a former U.S. president presumptive immunity for “official” acts, and absolute immunity when exercising “core constitutional powers.” In the oral arguments preceding this decision, and in the dissenting opinion of Justice Sonia Sotomayor, the justices raised the scenario of a president getting away with ordering Navy SEALS to kill a political opponent, using the military to stage a coup or accepting a bribe in exchange for a pardon. Chief Justice John Roberts called his colleagues’ remonstrations “extreme hypotheticals” and” fearmongering.”
Chief Justice John Roberts called his colleagues’ remonstrations “extreme hypotheticals” and” fearmongering.”
There was nothing extreme in Sotomayor’s concerns, and her fears were justified. As a national security analyst, with 25 years as an FBI agent, I know we don’t need to engage in hypotheticals to lay out this ruling’s likely consequences. All we need to understand what a criminally immune Trump might do, with even one executive branch agency given carte blanche, is to remind ourselves what the nation learned about the FBI during the 1970s.
The great unraveling started in 1971, when a group of peace activists broke into a small FBI office in Media, Pa., and stole whatever files they could carry out. They suspected that the FBI was spying on anti-Vietnam war protestors, especially on college campuses. The files confirmed their suspicions, but unsure of what exactly they were looking at, they handed some of the files to reporters. One journalist, then-NBC reporter Carl Stern, was intrigued by a code word in the files: “COINTELPRO.” It would take years of dogged reporting, lawsuits to uncover documents and a number of congressional committee inquiries to fully learn the details of FBI Director J. Edgar Hoover’s secret counterintelligence program to covertly address anything and anyone deemed to be a threat by Hoover or the presidents he served under.
For over a year, a special Senate committee chaired by Idaho Democrat Frank Church conducted 800 interviews, demanded documents and held public and closed-door hearings. What they learned shocked the nation. The Church Committee and other investigations confirmed that the FBI, the CIA and the NSA had been unlawfully spying on American citizens.
The FBI, with the approval of Attorney General Robert F. Kennedy, and later with the encouragement of President Lyndon Johnson, illegally wiretapped Martin Luther King Jr. and other civil rights leaders. The FBI sent a letter to King, using details uncovered in the wiretap, essentially blackmailing King and suggesting he kill himself. There were countless other “black bag jobs” where the FBI, without court authorization, broke into people’s homes, took evidence, opened and read mail, and planted microphones — all outside the law, because someone in power deemed those American citizens to pose some kind of threat.
Hoover claimed the Black Panther Party was “the greatest threat to internal security of the United States.” (It wasn’t.)
In 1968 and into the 1970s, Hoover claimed the Black Panther Party was “the greatest threat to internal security of the United States.” (It wasn’t.) Hoover discussed the Black Panthers with then-President Richard Nixon and got the green light to go after them, when, as Nixon directed, “you sort of had the scent of the smell of a national conspiracy thing. You know, the kind of thing like the Panthers, and all that … ” The FBI developed an informant to penetrate the Panthers’ Illinois chapter. In the evening of Dec. 3, 1969, the informant drugged Fred Hampton, one of the chapter’s rising leaders. Chicago police officers, coordinating with the bureau, raided Hampton’s apartment and fatally shot him as he slept.
Unsurprisingly, these sorts of actions did not stop at the Panthers. Nixon ordered the FBI to unlawfully wiretap members of the media without benefit of lawful court orders, simply because Nixon didn’t like those reporters. And, during the Watergate scandal, he ordered the CIA to tell the FBI to end their investigation into the illegal break-in directed by Nixon’s campaign.
Remember, it was Nixon who infamously said during an interview, “When the president does it, that means it is not illegal.” Nixon’s assertion was wrong back in the 1970s. Yet, with this month’s court ruling on absolute immunity, an American president can make that declaration with a straight face. If a president is acting within his Constitutional powers, they can tell the FBI to do almost anything to suppress any “threat” — real or imagined, political or not.
According to a Reuters report, Trump’s allies are already planning to give their candidate direct control of DOJ and the FBI so that they will no longer function independent of the White House. “Two prominent Trump allies told Reuters they support eliminating the FBI’s general counsel” — the office that flashes a red light whenever the bureau is about to do something unlawful. If that red light is removed, there'd be nothing standing between a president and a crime spree.
Do Sotomayor’s hypotheticals seem “extreme” now? They shouldn’t, because we’ve already “been there, done that” as a nation.
The Church Committee’s findings resulted in numerous regulations and policies that established guardrails to prevent the FBI and other intelligence agencies from unlawfully spying on Americans. The committee also established the Foreign Intelligence Surveillance Act (FISA) court to ensure that federal judges approve all national security wiretaps and covert search warrants. Today, a president could tell the FBI to ignore the formalities of the FISA court and simply spy on his enemies — without fear of criminal liability.
Do Sotomayor’s hypotheticals seem “extreme” now? They shouldn’t, because we’ve already “been there, done that” as a nation. If none of this troubles you, you’re not paying attention. Because some day, a president you don’t support can designate you, your friends, your employer or your favorite organization or news platform a threat. That president could direct the FBI to spy on those entities and people, and you won’t know about it until it’s too late. It’s happened before, and it can happen again.