David G. Savage | Los Angeles Times (TNS)
WASHINGTON — Fifty years ago this month, the U.S. Supreme Court was mulling a landmark case with profound implications for America’s democracy.
The question before justices in the Watergate tapes dispute was whether the president was above the law, shielded from prosecutors and a judge who were investigating a crime.
The court’s answer was clear, unflinching and unanimous.
The Constitution has no “absolute, unqualified presidential privilege of immunity,” the court said in July 1974 in United States v. Nixon. The president’s claim of executive privilege for his White House tapes, justices said, “cannot prevail over the fundamental demands of … the 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 bring together a nation that was in the grip of a constitutional crisis.
The same basic issue is before the court again in Trump v. United States: Are presidents above the law, immune forever from criminal charges for their actions in the White House? Or can they be prosecuted and held to account for breaking the law?
The decision figures to rewrite the law on the powers of the president and a cast a lasting shadow on the Supreme Court led by Chief Justice John G. Roberts Jr.
Few are predicting the current court will rise to the occasion and deliver a clear, unanimous ruling.
The two sides of the debate drew a sharp contrast when the court heard arguments in late April.
“Without presidential immunity from criminal prosecution,” Trump’s attorney John Sauer told the court, “there can be no presidency as we know it.”
Justice Department veteran Michael Dreeben replied that presidential immunity had been rejected in the past and should be rejected now.
“All former presidents have known that they could be indicted and convicted. And Watergate cemented that understanding,” Dreeben said, arguing on behalf of special counsel Jack Smith.
If the justices split along ideological lines, with the three liberals in dissent, the decision is sure to be condemned as partisan.
So the chief justice is likely to try to put together a majority that includes at least one liberal for what could be seen as a middle-ground position.
That would mean rejecting Trump’s claim of absolute immunity as well as Smith’s view that a former president has no shield from being prosecuted, even for truly official acts.
Trump was indicted last year on accusations of conspiring to overturn the results of the 2020 presidential election he’d lost to Joe Biden, including by making false claims of election fraud and encouraging thousands of his supporters to march to the Capitol on Jan. 6, 2021, when the House and Senate met to confirm Biden’s election.
Trump pleaded not guilty and insisted that his actions — taken while he was president — should be forever immune from prosecution.
Several justices — some of whom have worked in Washington for decades — said during arguments in April that a president’s use of his “core executive powers” should be off-limits to future charges. They are wary of opening the door to politically driven criminal investigations.
Prior to Trump, no president had been indicted after leaving office, though at times charges were contemplated.
Could President Ronald Reagan have been prosecuted for the so-called Iran-Contra affair, a secret White House scheme to sell arms to Iran to support rebels in Nicaragua after Congress blocked their funding? Could President George H.W. Bush have been prosecuted for denying he knew about the scheme when he was vice president? While no such charges were brought, an independent counsel looked into those allegations.
President Bill Clinton was also threatened with prosecution after leaving office for having lied to investigators about his relationship with a White House intern.
To take a more recent example, could former President George W. Bush have been investigated or prosecuted by a Democratic administration for his responsibility in the harsh treatment of detainees at Guantanamo Bay, Cuba, or over the alleged torture of prisoners at secret CIA sites in Europe?
The Obama administration did not pursue any such charges, but former White House lawyers, including now-Justice Brett M. Kavanaugh, voiced concern about subjecting presidents to criminal charges after they leave office.
A critical question in the Trump case is: What qualifies as an “official” act by a president, and what sort of actions are considered private, even potentially criminal?
Most of the justices appeared to agree during arguments in April that Trump had been indicted over a private scheme, not for the use of any core executive powers.
Justice Amy Coney Barrett, a Trump appointee, noted that the former president was accused of enlisting lawyers to submit “false claims of election fraud” and to send “fraudulent slates of presidential electors” to Congress.
“Sounds private,” she said.
Sauer, the Trump attorney, agreed.
“So you would not dispute those were private, and you wouldn’t raise a claim that they were official?,” Barrett asked.
Again, the lawyer agreed.
Later, when pressed by others, Sauer agreed with a lower court that had drawn a distinction between the conduct of an officeholder and that of a candidate for office. Prosecutors relied on that distinction, arguing that Trump was indicted for his actions as a failed candidate for reelection, not as an officeholder carrying out his official duties.
Barrett’s questions hinted at the possibility of a narrow ruling rejecting Trump’s claim of immunity from charges that he conspired to overturn his election defeat. The three liberal justices could agree with that.
But conservative Justices Samuel A. Alito Jr., Neil M. Gorsuch and Kavanaugh said they favored a broader shield for presidents when they use their official powers.
If that becomes the majority opinion, the court’s liberals may well refuse to go along. They voiced concern about shielding a president who abuses his power.
What if the president orders a “military coup?” Justice Elena Kagan asked during the arguments.
As commander in chief, if a president “told the generals: ‘I don’t feel like leaving office. I want to stage a coup,’” she asked, would that be an official act, shielded from future prosecution?
“It could well be,” Sauer replied.
So the problem facing the chief justice is that an opinion supporting a president’s immunity for official acts could drive the three liberals to dissent, while some conservatives may balk and refuse to join a ruling if it only holds that an ex-president can be prosecuted.
Four years ago, Roberts had a solid 7-2 majority rule against a Trump claim of “absolute immunity” and order the then-president to turn over financial and tax records to New York prosecutors.
The chief justice said the presidential supremacy claimed by Trump had never been part of America’s history.
“In our judicial system, the public has a right to every man’s evidence. Since the earliest days of the republic, ‘every man’ has included the president of the United States,” Roberts wrote in Trump v. Vance. Two conservative justices, Alito and Clarence Thomas, dissented.
Critics say the Roberts court has already delivered a victory of sorts for Trump by taking so long to decide on his immunity claim.
“This case goes to the heart of our democracy, and they’ve been slow-walking it,” said Fred Wertheimer, president of Democracy21 and a champion of campaign funding limits since the Watergate era. The court decided the Watergate case 16 days after the oral argument, he noted.
This year, by contrast, the justices have taken months to ponder a claim of immunity, a delay that has postponed Trump’s federal prosecutions and is almost certain to prevent a jury from deciding before the November election whether he conspired to overturn his defeat in the 2020 election.
“The court should never have taken this case,” Wertheimer said. “The voters were entitled to know whether Trump engaged in criminal conduct to overturn an election he lost.”
He’s not the only Watergate-era lawyer who is troubled. In 1974, Philip Lacovara, as counsel to the special prosecutor, urged the Supreme Court to reject Nixon’s claim of executive privilege with a “definitive” ruling. Nixon had hinted he may defy the decision if the justices were divided.
Just 16 days after the court ordered him to disclose the tapes, Nixon resigned. A month later, President Ford granted him a full pardon, after saying his predecessor was facing “possible indictment and trial for offenses against the United States.”
In a recent interview, Lacovara warned against making a former president immune from criminal prosecution, noting that history has shown that sometimes strong men with no moral compass can win election.
“That’s why this could be the most dangerous decision the court has ever made,” he said of Trump’s case. “Once you crack it open and say the president gets to violate some laws, there’s no way to constrain it. You have started down a very dangerous road.”
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