The Supreme Court ruling on presidential immunity is a win for Richard Nixon — and Roger Ailes
Written by Matt Gertz
Published
Somewhere — probably in hell — Roger Ailes, the Richard Nixon acolyte who co-founded Fox News, is smiling at the Supreme Court’s decision in Trump v. United States. The majority’s ruling is another strike against the institutions that brought accountability to Ailes’ old boss over the Watergate scandal. And Ailes’ fingerprints are all over the result.
The court’s decision gifts presidents with extraordinary immunity from criminal prosecution that will hamstring the prosecution of Donald Trump over his 2020 election subversion plot. Chief Justice John Roberts, writing for himself and the other five justices appointed by Republican presidents, declared that Trump and other presidents “may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.” Roberts stipulates that Trump’s efforts to pressure Justice Department officials to support his false claims of election fraud fall under the former category, while the then-president’s attempts to get then-Vice President Mike Pence to throw out electoral vote slates are an example of the latter.
This is a new and radical doctrine. The majority defies “an established understanding, shared by both Presidents and the Justice Department, that former Presidents are answerable to the criminal law for their official acts,” as Justice Sonia Sotomayor notes in her dissent.
“Consider Watergate, for example,” Sotomayor continues. “After the Watergate tapes revealed President Nixon’s misuse of official power to obstruct the Federal Bureau of Investigation’s investigation of the Watergate burglary, President Ford pardoned Nixon. Both Ford’s pardon and Nixon’s acceptance of the pardon necessarily ‘rested on the understanding that the former President faced potential criminal liability.’”
Observers are noting — in horror or with glee — that Nixon would likely have been immune from prosecution for Watergate under the majority’s doctrine. That’s not a coincidence, but the result of a decades-long effort by the right to delegitimize and defang the institutions that stymied the Republican president — the press, the Congress, and the criminal justice system.
Ailes was part of a generation of Nixon aides who blamed the supposed depravations of liberal journalists for driving Nixon from office. Rather than accept that the former president had committed crimes and abuses of power, they organized and strategized, building the right’s massive parallel information ecosystem.
Fox is the crown jewel of that apparatus. As the network grew and solidified its audience over the years following its 1996 launch, it evolved from a right-wing propaganda machine to a GOP power center. But part of Fox’s key function is preventing Republican presidents from suffering the indignities of another Watergate. And no one has benefited more from that effort than Trump, as demonstrated by the aborted efforts to secure accountability for his attempted coup.
Diligent reporting revealed Nixon’s Watergate corruption. But Fox has spent decades working to undermine trust in the press, ensuring that its viewers would not accept negative reporting about a Republican president at face value. The network’s stars respond to any damaging news story about Trump by trying to delegitimize its source — and they tell their audience that only Trumpist propagandists like themselves are worthy of trust.
When it came to Trump’s coup attempt, that meant aiding and abetting the then-president’s lies about widespread fraud rigging the election against him, and then, after his supporters violently stormed the U.S. Capitol in response, creating a nonsensical counternarrative that the rioters had been victims set up by the federal government. Republicans largely bought the lies, “showing increased loyalty to the former president as he campaigns for reelection and fights criminal charges over his attempt to stay in power after losing in 2020,” as The Washington Post noted early this year.
Nixon stepped down when Republican congressional leaders told him that the impeachment inquiry triggered by the Watergate reporting would lead to his removal from office. But Fox rendered such actions unfathomable in the present.
Trump maintained the support of GOP leaders through not one but two unsuccessful Senate impeachment trials, in no small part because his loyal supporters were attuned to Fox’s propagandistic narratives. Sen. Mitt Romney (R-UT) explained that many of his colleagues feared that Republican voters, inflamed by right-wing media lies, might harm them or their families if they broke with Trump and supported his second impeachment, over the coup attempt. So Trump was acquitted — and then, with Fox’s help, he went to work purging Republican members of Congress who had sought his removal from office.
That left the criminal justice system, which then-Senate Majority Leader Mitch McConnell argued was the proper venue for ensuring Trump faced accountability for trying to stage a coup.
“He didn’t get away with anything yet,” McConnell said in 2021, explaining why he would vote to acquit Trump. “We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being accountable by either one.”
That had been true for Nixon, as Sotomayor explained in her dissent. But Nixon himself offered a different view — one that generations of observers have treated as radical — when he told the public three years after he stepped down that “when the president does it, that means it is not illegal.”
The majority of the Supreme Court largely seems to agree.
“Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today,” Sotomayor writes in her dissent.
Here, too, we see the ramifications of Ailes and his Fox apparatus. His network helped elect Presidents George W. Bush and Trump, who appointed five of the six justices who signed on to the opinion. And the three Trump appointees in particular were heavily supported by Ailes’ foot soldiers during their nomination fights, smoothing their way to the bench.
Nixon’s depravities made him vulnerable to the press, Congress, and the criminal justice system. But thanks to Fox, Trump has a level of protection his predecessor lacked.