Analysis: Immune Like Putin: Trump Calls on the Shades of Watergate

It is no secret that Donald Trump is strongman Vladimir Putin’s greatest admirer, praising the Russian dictator even when he invades neighboring countries as an indicted war criminal. The tool at the disposal of despots Trump envies most, for keeping countries like North Korea and Russia in line, is their total impunity of action.

Trump is now asking for the best America can offer, for now: immunity from criminal prosecution – for sending mobs to attack the US Capitol, emptying the public coffers into his own pocket, stealing national defense secrets, and using intimidation tactics against the media and even the Georgia Secretary of State if they do not do the dear leader’s bidding.

Anything to serve himself and stay in power.

Although Trump is more comical and buffoonish in his threats against the Saturday Night Live comedy troupe, the immunity Trump says he has to have is not far removed from the example Putin set. How is Trump’s argument in a US court of law, that he must have immunity even if he orders US Special forces to murder his political opponents, any different from Putin ordering the shootings of political opponent Boris Nemtsov and investigative journalist Anna Politkovskaya, the Polonium assassination of Alexander Litvenenko, or the Skripal poisoning with Novichok nerve agent?

How is Trump’s argument that he must be immune, for ordering his head of security at Mar-a-Lago to destroy video evidence of Trump hiding classified documents from the FBI, any different from Putin shutting down the investigation of his FSB at Ryazan in the 1999 apartment bombings?

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The only difference is that, in Russia’s totalitarian regime, Putin does not even need immunity for his criminal acts. There is no rule of law that could otherwise hold him accountable.

In the US, though, some veneer of legality is still required, at least until Trump can return to office to finish the job of modeling his presidency after Putin’s; so Trump relies on two of the US Supreme Court’s most sordid precedents.

In Stump v Sparkman, decided in 1978, Indiana state court Judge Harold Stump entered a secret order, with no notice and no hearing, to have an unrepresented 15-year-old girl sterilized, just to make sure her allegedly low intelligence did not lead to trouble with boys.

As part of this “judicial action,” for which the Supreme Court granted the Indiana judge “absolute immunity” from civil damages, the girl was deceived into thinking she was having an appendectomy while a tubal ligation was performed, instead. She only learned the truth after she was married and unable to bear children.

The Supreme Court relied on a 1907 statute still on the books in Indiana, a hotbed of the eugenics movement, that allowed compulsory sterilization orders for people of inferior breeding – an idea since discredited by association with the Nazis, but perhaps making a comeback if Trump’s latest Hitler allusions are any bellwether.

In the second case Trump relies on to support total immunity for official acts at the “outer perimeter” of presidential authority, Fitzgerald v Nixon, Richard Nixon ordered Bob Haldeman to fire a government official for testifying truthfully under oath before a congressional committee about Department of Defense cost overruns.

As later occurred with the Oval Office taping system, Alexander Butterfield’s testimony revealed the real cause for the firing was not the false pretext stated by Nixon, but a lack of “loyalty” to the President – consistent with Trump’s own demonstrated modus operandi, demanding personal fealty from both the Attorney General and the FBI Director, and picking personal cronies for National Security Advisor and Director of National Intelligence.

Rather than resulting in the steady, unfettered decision-making Trump now advocates, we know the leeway only led to worse abuses – such as Nixon ordering Haldeman to terminate the FBI investigation of the Watergate break-in by fabricating a story it would interfere with an ongoing CIA operation. Nixon’s taped confession about paying hush money also foreshadowed Trump’s Stormy Daniels playbook, for which Trump is now being prosecuted in New York.

Fitzgerald v Nixon shows why the question raised in the DC Circuit Court of Appeals oral argument, though not as notorious as the hypothetical Seal Team 6 assassination, was equally important – whether the authority the president wields is not balanced by his constitutional responsibility to faithfully execute the laws?

One way Trump has already surpassed Putin in demonstrating contempt for legal accountability is pardoning his cronies who commit crimes for him. Trump has already pardoned Mike Flynn, Roger Stone, Paul Manafort, Steve Bannon, and others who could otherwise testify against Trump in a criminal prosecution. Putin was just catching up when he pardoned Politkovskaya’s murderer, but Putin did Trump one better when he exiled the convicted killer to the front in Ukraine.

This is the kind of competition in depravity we could expect between Trump and Putin, until the bounds of decency that maintain the social order disintegrate in America as they have in Russia. If Trump is granted immunity for any crime he deigns to commit, it won’t be long before – like Putin – he won’t even need it.

The views expressed in this opinion article are the author’s and not necessarily those of Kyiv Post.

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Stephen Humphreys

Stephen Humphreys is a US attorney who has spent most of the last two years volunteering in Ukraine with war crimes investigations, Legion D, humanitarian aid groups, and the Law Enforcement Committee of the Rada, as well as teaching law and history at Taras Shevchenko University.

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