Washington Post – Opinion – Justices’ ruling in immunity case creates one legal standard for presidents and a different standard for citizens – Stephen S. Trott is a senior judge on the U.S. Court of Appeals for the 9th Circuit. He was appointed to the federal bench by Ronald Reagan. “Under the Supreme Court’s recent ruling on presidential immunity, could President Richard M. Nixon have legally ordered his Plumbers to burgle the office of Daniel Ellsberg’s psychiatrist? Might they all have gotten away with it? It certainly looks that way to me, and I have a particular interest in this matter. As a young lawyer in the Los Angeles District Attorney’s Office in 1971, I oversaw the burglary indictment of senior White House officials and White House operatives for breaking into the Beverly Hills office of Dr. Lewis Fielding. In my assessment, if Trump v. U.S. had been on the books then, the president’s agents responsible for the Fielding burglary and related crimes, instead of going to prison, would have escaped prosecution and punishment entirely. Let me explain why. In its June ruling, the Supreme Court held for the first time that a former president cannot be prosecuted for any acts undertaken while in office if those acts fall within the core constitutional powers of the presidency even if they constitute prima facie crimes under the federal criminal code. Other official acts outside that core responsibility, the court said, are at least presumptively immune. The court grounded its decision on the perceived need to insulate the president from chilling and debilitating worry about possible legal jeopardy and to preserve the separation and balance of powers among the three branches of government…As the dissenters in the case explain, it is neither necessary, wise nor appropriate to resort to the extreme of removing the president from the reach of the justice system when a less drastic prophylactic would do. It is sufficient to give former presidents the protection of an adequate defense to criminal charges, a defense that honors the special and important responsibilities of the office. Without getting into details, such defense would include an “as applied” constitutional challenge to the application of a statute to the activity at issue, a defense of “public authority” to do what is in question, and having acted on authoritative advice of counsel. In conjunction with the robust procedural safeguards that every suspect and defendant enjoys, these defenses would accomplish the majority justices’ objectives. The final safeguards, of course, would be the criminal law’s burden of proof beyond a reasonable doubt and a jury trial by the former president’s peers…”