The Missing Word in Trump v. United States

The Court's opinion says that history is silent on the question of prosecuting former Presidents. This is both true and not true. It's not true in that the issue was widely discussed during Watergate. It's true in the sense that no prosecution was brought.

When I think about a constitutional problem, I start with the most relevant historical precedent if there is one. Thus, my analysis of any immunity would start with "Watergate is an example where the President was not immune from criminal liability." This still leaves room for some presidential immunity. (For instance, I think that the Court was probably right to say that ex-Presidents should have immunity in Youngstown Category Three situations.)

The Court, though, does not mention the word "Watergate" in its opinion. That strikes me as a total failure of professional rigor. It's not as if Watergate is an obscure event. Some of the Justices were in college or law school during that time. Now maybe they think that Nixon should have been immune (at least in part), but then they should say something about that. The dissents did not call them out on this lapse though, which may explain the omission.