WASHINGTON (AP) — Fifty years ago, three of Richard Nixon’s Supreme Court appointees joined an 8-0 ruling in the Watergate tapes case that ended his presidency, issuing the decision just 16 days after hearing the case. Nixon resigned from office a little more than two weeks later.
Now, three judges appointed by then-President Donald Trump sit on the highest US court as it weighs whether and when he should be tried on criminal charges that he conspired to overturn his 2020 election loss, a case they heard seven weeks ago. Two others also appointed by Republican presidents have rejected criticism that they should step away from the case because of questions about their impartiality.
The outcome of the case, as well as a separate dispute over the criminal charges facing Trump and the hundreds of his supporters who violently stormed the federal Capitol on January 6, 2021, could further damage the court’s already diminished credibility if the justices They are divided by ideology. Or it could provide a needed boost in the unlikely event that conservatives and liberals can reach a consensus.
Any pro-Trump court majority 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 calls to recuse himself from the case after flags similar to those carried by Jan. 6 rioters were seen flying from their 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 loss to Democrat Joe Biden in 2020.
The moment suggests that there is no consensus on a court with six conservative and three liberal judges. Trump, the virtual Republican presidential candidate, has already achieved much of what he wanted because the court’s decision to intervene in the case halted the trial that was scheduled to begin in March. His inability to resolve the issue has reduced the chances of him being tried before the November election.
The legitimacy of the Supreme Court has already been affected, said Elizabeth Wydra, president of the progressive Constitutional Accountability Center.
“The court has already delayed the decision too long and risks appearing to be playing politics with the timing of its rulings, giving Trump a victory through delay, even if he essentially loses in the end,” Wydra said.
The dispute over the Watergate tapes — the 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 fight.
Both involved the power of the president and the question of how accountable he is to the judicial system, with criminal trials pending. In 1974, Nixon’s advisers were going to stand trial and special prosecutor Leon Jaworski issued a subpoena for the tapes to use in his case.
Nixon resisted, claiming that he had a constitutional privilege as president to keep his conversations with his top advisers confidential.
The justices heard arguments on July 8 and issued their ruling just over two weeks later.
The then Chief Justice of the Supreme Court, Warren Burger, appointed by Nixon, recognized that presidents must be able to count on the unambiguous opinions of their aides.
“However, neither the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute and unconditional presidential privilege of immunity from judicial process in all circumstances,” Burger wrote to the order the tapes to be delivered.
William Rehnquist, a fourth Nixon appointee, was not involved in the case due to his previous work in the Justice Department under President Nixon.
Special prosecutor Jack Smith noted in court papers that today’s court could act with the same determination and speed it showed at the time of the Watergate affair. The court has not acted with unusual speed.
Other examples of quick decisions by the Supreme Court include similarly momentous cases, such as the 2000 presidential showdown in Bush v. Gore and the 1971 Pentagon Papers case.
Even during this period, in a separate case involving Trump, the justices issued 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 election. of 2020. The court unanimously said they could not.
The immunity case is part of a dozen or more important decisions that should be handed down in the coming weeks. The January 6 case is also awaiting resolution, along with cases on abortion, guns, social media, regulatory power and the environment.
