WASHINGTON (AP) — Fifty years ago, three of Richard Nixon’s Supreme Court justices joined in an 8-0 decision in the Watergate tapes case, effectively ending his presidency. He ruled just sixteen days after hearing the case. Just over two weeks later, Nixon resigned.
Now three judges appointed by then-President Donald Trump are on the court, which is weighing whether and when he should stand trial on criminal charges he conspired to overturn his 2020 election loss, a case they spent seven weeks heard ago. Two others, also named by Republican presidents, have rejected criticism that they had to set aside the case because of questions about their impartiality.
The outcome of the case, as well as a separate dispute over the criminal charges against Trump and the hundreds of his supporters who violently attacked the Capitol on January 6, 2021, could further damage the court’s already diminished credibility if the justices are divided ideology. Or it could provide a necessary boost in the unlikely event that conservatives and liberals can reach an agreement.
Any majority on the court that favors Trump is likely to include at least two of his three nominees: Justices Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh, as well as conservative Justices Samuel Alito and Clarence Thomas.
Alito has rejected demands that he withdraw from the case after flags similar to those used by the Jan. 6 rioters flew over his homes in Virginia and New Jersey. Thomas has ignored calls to step aside because of the role his wife, Ginni, played in supporting efforts to overturn Trump’s 2020 loss to Democrat Joe Biden.
The timing suggests there is no consensus on a court with six conservative and three liberal justices. Trump, the presumptive Republican presidential nominee, has already gotten much of what he wants as the court’s decision to take up the case halted preparations for a trial scheduled to begin in March. The failure to resolve the issue has reduced the likelihood that he will face trial before the November elections.
The court’s legitimacy has already taken a hit, said Elizabeth Wydra, president of the progressive Constitutional Accountability Center.
“The Court has delayed issuing a decision for far too long and risks the appearance of playing politics with the timing of its decisions – handing Trump a victory through delay even if he ultimately loses on the merits,” Wydra said.
The dispute over the Watergate tapes — Oval Office recordings of Nixon’s conversations with his aides, including one discussing the cover-up of the Watergate investigation — has close parallels to the immunity battle.
Both involved the president’s power and his responsibility within the judiciary, while criminal trials were still pending. In 1974, Nixon’s aides were on trial, and special prosecutor Leon Jaworski subpoenaed the tapes for use in his case.
Nixon pushed back, claiming that as president he had a constitutional prerogative to maintain the confidentiality of his conversations with top aides.
The justices heard arguments on July 8 and issued their opinion just over two weeks later.
Then-Chief Justice Warren Burger, who was appointed to the court by Nixon, recognized that presidents must be able to trust the unvarnished views of their aides.
“However, neither the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can under all circumstances sustain an absolute, unqualified presidential prerogative of immunity from judicial proceedings,” Burger wrote when he ordered that the tapes would be recorded. turned around.
A fourth Nixon appointee, William Rehnquist, did not participate in the case because of his previous work at the Justice Department under Nixon.
Special counsel Jack Smith suggested in court papers that the current court could act with the same deliberateness and speed as in the Watergate era. The court did not act with unusual haste.
Other examples of quick turnarounds include equally momentous cases, including the 2000 presidential showdown in Bush v. Gore and the 1971 Pentagon Papers case.
Even this term, in a separate case involving Trump, the justices made their decision less than a month after hearing arguments over whether states could kick Trump off the ballot in 2024 because of his actions after the 2020 election. The court unanimously ruled that this was not possible.
The immunity case is among a dozen or more major decisions to be made in the coming weeks. The January 6 case also awaits resolution, along with cases involving abortion, guns, social media, regulatory power and the environment.
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