Trump looks to Nixon in high court case
Justices to consider presidential immunity
WASHINGTON — At landmark arguments Thursday in Donald Trump’s long-shot Supreme Court bid for presidential immunity, his test case is Richard Nixon.
First, Nixon avoided criminal charges from Watergate through a presidential pardon. Several years later, he set the standard for whether presidents can face civil lawsuits.
An Air Force weapons analyst sued Nixon, claiming he’d been fired in retaliation for telling Congress about massive cost overruns in the Defense Department. A closely divided Supreme Court said in 1982 Nixon couldn’t be held liable for official actions taken during his presidency. They said the prospect of civil suits would be too distracting and make a president unnecessarily cautious.
Now the Supreme Court will hear arguments on whether the same logic should apply to Trump’s attempt to throw out the federal criminal charges he faces for attempting to steal the 2020 election. It is a novel question because Trump is the first president – former or current – to be criminally charged.
Many experts think the justices are likely to reject Trump’s claim of absolute immunity. But even if they do, how long it takes them to issue an opinion and whether a majority finds that presidents have some immunity will determine whether Trump can be tried before the November election.
“The first and most important pivotal question is whether the court will rule in a way that allows the case to then continue immediately,” said Harry Litman, a former U.S. attorney and deputy assistant attorney general.
Trial already delayed
The Supreme Court’s decision to hear the appeal of the presumptive GOP nominee has already diminished the chances that special prosecutor Jack Smith’s case, which was supposed to go to trial in March, can be completed before the election. The delay has critics charging that the court may have already effectively granted Trump immunity if there’s no trial and Trump wins election, putting him in a position to halt the Justice Department’s prosecution.
“I think there have been some absolutely indefensible choices on the part of the United States Supreme Court that have effectively immunized Donald Trump,” New York University law professor Melissa Murray said at a recent event sponsored by the Brennan Center for Justice at New York University.
But Stanley Brand, a former House general counsel who has represented Trump aides in legal fights, said there’s no expectation in criminal law that cases involving candidates fit into an election schedule.
“The notion that the criminal justice system is designed to give the electorate a reason to vote or not to vote is a complete abomination and distortion of what the criminal justice system is about,” Brand said. “It’s about the defendant’s rights and whether the government has met its burden.”
Brand said even run-of-the-mill, white-collar cases he’s been involved in can take years to go to trial. “The expectation has been created that this is a fast process,” he said. “Generally, it’s not.”
‘Citizen Trump’
In Nixon v. Fitzgerald, the court said presidents are immune both while in office and after from civil damages for official acts, including those on the “outer perimeter of a president’s official responsibilities.”
Trump wants that same protection extended to criminal cases. Otherwise, his lawyers argue, the threat of future prosecution “would become a political cudgel to influence the most sensitive and controversial presidential decisions, taking away the strength, authority, and decisiveness of the presidency.”
The federal district judge overseeing Trump’s trial and the D.C. Circuit Court of Appeals didn’t buy it.
“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” the unanimous three-judge appeals panel court wrote in a resounding rejection of Trump’s claim.
Even if Trump’s actions were done in his official capacity, rather than in his personal one as a candidate, the public’s interest in the enforcement of criminal laws is significant, the court said. That’s particularly true in a case involving a presidential election, they wrote.
Smith argues the fact that President Gerald Ford pardoned Nixon shows that presidents have never expected to be immune from criminal prosecution.
‘Hard case to game out’
Alex Reinert, a criminal law expert at the Benjamin N. Cardozo School of Law in New York, said the Supreme Court likely agreed to hear Trump’s appeal because the importance of the presidential immunity issue.
Reinert, who clerked for former Justice Stephen Breyer, said the justices will try to probe what level of immunity would balance the rule of law against the need for presidential protection against baseless and harassing prosecutions.
Some hope the court will issue a narrow ruling specific to Trump’s case and not explore other scenarios.
“Donald Trump has articulated an outrageous, unprecedented, and ahistorical assertion of absolute immunity,” said former Obama White House ethics czar Norm Eisen. “The Supreme Court need not stray into other questions just because Trump has made it easy for them. They should decide this case.”
If the Supreme Court rules that presidents enjoy criminal immunity only in specific circumstances, Trump wants the protection to spread as broadly as possible and wants the court to direct that any test be applied through additional proceedings before his trial can start.
Smith has told the court any qualifications it puts on immunity should not delay the trial. If the justices agree, a trial could start before the election though it might not finish, Reinert said.
“I think it would take a lot to get to a trial before November,” he said. “But I do think it’s possible.”