The Supreme Court spoke with one voice during the Watergate scandal. Can it do the same in the Trump case? – Canon City Daily Record
Pro-Trump supporters storm the U.S. Capitol after a rally with President Donald Trump on Wednesday, Jan. 6, 2021 in Washington, DC (SAMUEL CORUM/Getty Images/TNS)
David G. Savage | Los Angeles Times (TNS)
WASHINGTON — Fifty years ago this month, the U.S. Supreme Court considered a landmark case with profound implications for American democracy.
In the dispute over the Watergate tapes, the question for the judges was whether the president was above the law and protected from prosecutors and judges who were investigating a crime.
The court’s response was clear, bold and unanimous.
The Constitution does not provide for an “absolute, unconditional presidential immunity privilege,” the court declared in July 1974 in United States v. Nixon. The president’s claim of executive privilege for his White House tape recordings, the judges said, “cannot withstand the basic requirements of a fair administration of criminal justice.”
Chief Justice Warren Burger, an appointee of then-President Richard Nixon, wrote the court’s opinion. The Watergate case marked a high point for an often divided and contentious court and helped unify a nation in the grip of a constitutional crisis.
In Trump v. United States, the Court once again faces the same fundamental question: Are presidents above the law and forever immune from criminal prosecution for their actions in the White House? Or can they be prosecuted and held accountable for breaking the law?
The decision is likely to lead to a rewrite of the presidential powers law and cast a lasting shadow on the Supreme Court under Chief Justice John G. Roberts Jr.
Few expect the current court to rise to the occasion and deliver a clear, unanimous verdict.
When the court heard arguments in late April, the two sides of the debate showed sharp contrasts.
“Without presidential immunity from criminal prosecution,” Trump’s lawyer John Sauer said in court, “there can be no presidency as we know it.”
Veteran Attorney General Michael Dreeben responded that presidential immunity had been denied in the past and should be denied now.
“All former presidents knew they could be indicted and convicted. And Watergate cemented that understanding,” Dreeben said on behalf of special counsel Jack Smith.
If there is an ideological split among the judges and the three liberals express a dissenting opinion, the decision will certainly be condemned as party-political.
The chief justice will therefore likely try to put together a majority that includes at least one liberal and represents what could be considered a middle position.
That would mean rejecting both Trump’s claim of absolute immunity and Smith’s view that a former president is not immune from prosecution, even for truly official acts.
Trump was impeached last year on charges of conspiring to overturn the results of the 2020 presidential election, which he lost to Joe Biden. Among other things, he made false claims of voter fraud and encouraged thousands of his supporters to march on the Capitol on January 6, 2021, as the House and Senate met to certify Biden’s election.
Trump pleaded not guilty and insisted that his actions – committed while he was president – should be forever immune from prosecution.
Several judges – some of whom have worked in Washington for decades – said during hearings in April that the use of a president’s “core powers” should be off-limits in future impeachments, worried about opening the door to politically motivated criminal investigations.
Before Trump, no president had ever been impeached after leaving office, although impeachment was considered at times.
Could President Ronald Reagan have been impeached for the so-called Iran-Contra affair, a secret White House plot to supply weapons to Iran to support rebels in Nicaragua after Congress blocked funding for the affair? Could President George HW Bush have been impeached for denying knowledge of the plot while serving as vice president? Although no such charges were brought, an independent counsel investigated these allegations.
President Bill Clinton was also threatened with criminal prosecution after leaving office for lying to investigators about his relationship with a White House intern.
To take a more recent example, could a Democratic administration have investigated or prosecuted former President George W. Bush for his responsibility for the harsh treatment of prisoners at Guantánamo Bay, Cuba, or for the alleged torture of prisoners at secret CIA sites in Europe?
The Obama administration did not bring such charges, but former White House lawyers, including current Justice Brett M. Kavanaugh, expressed concern about criminally prosecuting presidents after they leave office.
A crucial question in the Trump case is: What counts as an “official” act of a president and which actions are considered private or even potentially criminal?
At the hearings in April, most of the judges seemed to agree that Trump was being charged with a private conspiracy, not with the use of basic executive powers.
Judge Amy Coney Barrett, a Trump appointee, noted that the former president was accused of hiring lawyers to make “false claims of election fraud” and provide “fraudulent lists of presidential electors” to Congress.
“Sounds private,” she said.
Trump’s lawyer Sauer agreed.
“So you wouldn’t deny that these were private documents and you wouldn’t claim that they were official documents?” Barrett asked.
Here too, the lawyer agreed.
Later, under pressure from others, Sauer joined a lower court that distinguished between the conduct of a public official and that of a candidate for office. Prosecutors relied on that distinction to argue that Trump was being impeached for his actions as a failed candidate for re-election, not as a public official carrying out his official duties.
Barrett’s questions raised the possibility of a narrow ruling rejecting Trump’s claim for immunity from charges that he conspired to overturn his election defeat, something the three liberal justices could agree to.
But conservative judges Samuel A. Alito Jr., Neil M. Gorsuch and Kavanaugh said they favored more comprehensive protection for the president in the exercise of his official powers.
If this opinion prevails as the majority opinion, the court’s liberals are unlikely to agree. They have expressed concern that a president who abuses his power must be protected.
What happens if the president orders a “military coup?” asked Justice Elena Kagan during the hearing.
If a president, as commander-in-chief of the army, told the generals: “I have no desire to resign. I want to carry out a coup,” she asked, would that be an official act and thus immune from future prosecution?
“That could well be,” Sauer replied.
So the problem for the Chief Justice is that an opinion supporting presidential immunity for official acts might cause the three liberals to dissent, while some conservatives might balk and refuse to join a ruling that simply states that a former president can be prosecuted.
Four years ago, Roberts was able to fend off Trump’s claim of “absolute immunity” with a solid 7-2 majority and order the then-president to hand over financial and tax records to New York prosecutors.
The Chief Justice said the presidential supremacy claimed by Trump had never existed in American history.
“In our legal system, the public has a right to the testimony of every individual. Since the earliest days of the Republic, ‘every individual’ has included the President of the United States,” Roberts wrote in Trump v. Vance. Two conservative justices, Alito and Clarence Thomas, dissented.
Critics say that the court has already won a kind of victory for Roberts in the long decision on Trump’s request for immunity.
“This case goes to the heart of our democracy, and they have been slow to deal with it,” said Fred Wertheimer, president of Democracy21 and an advocate of campaign finance restrictions since the Watergate era. The court decided the Watergate case 16 days after oral arguments, he noted.
This year, however, it took the justices months to consider an immunity claim. That delay has stalled Trump’s federal prosecutions and almost certainly prevented a jury from deciding before the November election whether he plotted to overturn his 2020 defeat.
“The court should never have taken this case,” Wertheimer said. “Voters had a right to know whether Trump engaged in criminal conduct to overturn an election he lost.”
He is not the only Watergate-era lawyer in trouble. In 1974, Philip Lacovara, counsel to the special counsel, asked the Supreme Court to reject Nixon’s claim of executive privilege in a “final” ruling. Nixon had indicated he might oppose the decision if the justices disagreed.
Just 16 days after the court ordered him to release the tapes, Nixon resigned. A month later, President Ford granted him a full pardon after declaring that his predecessor faced “possible indictment and trial for crimes against the United States.”
In a recent interview, Lacovara warned against granting immunity from prosecution to a former president, pointing out that history has shown that sometimes strongmen without a moral compass can win elections.
“That’s why this could be the most dangerous decision the court has ever made,” he said of Trump’s case. “Once you break the case open and say the president can break laws, there’s no way to stop it. You’ve set out on a very dangerous path.”
©2024 Los Angeles Times. Visit latimes.com. Distributed by Tribune Content Agency, LLC.
DHS: Biden administration’s executive action on asylum procedures reduced the number of encounters by 40%
WestJet union cancels strike notice as collective bargaining resumes
Nike Book 1 “Sun Bleached” receives official images
About The Author
