WASHINGTON (CN) — Donald Trump is looking to a kindred spirit to escape criminal liability for his efforts to interfere in the 2020 election.
The former president claims his four years of residence on Pennsylvania Ave should shield him from charges from a special prosecutor using a Supreme Court ruling favoring Richard Nixon.
In 1982, the justices said Nixon was immune from a civil suit from a civilian employee working in the Air Force. Nixon fired the government employee after he testified before Congress about inefficiency and cost overruns in the production of a military transport plane. The employee sued Nixon after he lost his job, but the high court concluded that presidents are entitled to absolute immunity from damages liability linked to official acts.
Nixon v. Fitzgerald is now at the center of Trump’s immunity fight to avoid charges from Special Counsel Jack Smith for his actions to overturn the election leading up to the Jan. 6, 2021 insurrection at the Capitol. For Nixon, the immunity applied to a civil suit. Trump claims the ruling extends to criminal charges as well.
The brewing fight over presidential prosecution not only harkens back to major Supreme Court rulings from the Nixon era but also to a time when the executive office was held by someone who sought to use his position as a shield.
“With Nixon, the cliche was that the system worked, right,” Matt Dallek, a professor and political historian at George Washington University, said. “With Watergate the system held. The checks and balances, the court, and Congress and the American public all ultimately came together.”
Like any good cliche, there is truth to that thinking. There were charges for the burglars who broke into the Watergate building and the Nixon administration officials who tried to cover it up. A Senate committee was formed to investigate the scandal. Articles of impeachment were lodged against the president, and, most consequential of all, Nixon resigned.
Battle wounds to the country aside, the system seemed to survive the attack. The wrongdoing was rooted out and accounted for — at least in some sense.
It’s not clear the same will be said after Trump.
“With Trump, we're seeing the system is not as stable,” Dallek said. “The guardrails are not totally toppled, they still exist, but they are wobbly and they feel a lot wobblier than they did in the 1970s when Nixon was forced to resign. That's true for all kinds of reasons, including, of course, in many ways, the ultimate fear that a very partisan, very ideological Supreme Court will ultimately weigh in and shield Trump in some ways from prosecution.”
The Trump-to-Nixon comparison is easy to make. Besides representing the Republican party, both men have a similar view of presidential power, mostly that it was absolute.
“Nixon and Trump stand out for their willingness to jettison all norms and laws and viewed themselves essentially as above the law,” Dallek said. “Trump I think, is sort of a Nixon on steroids in that sense.”
Both men thought they could use the levers of government to not only win elections but protect themselves from accountability.
But of course, their stories diverge. Nixon resigned. This is in part because he had to. There was willingness — unlike with Trump — from Republicans in Congress to impeach the president for his crimes.
“I think the biggest difference is not that Nixon had more integrity per se, but that the political context around him was going to undo him; basically it was going to push them out of office anyway,” Dallek said. “Whereas with Trump, he has always been able to use the Republican Party as his shield and his battering ram.”
Nixon left office at odds with many in his party. He did not have the political power to maintain influence and there was no chance he’d run for office again. Above all these other factors, however, was that Nixon moved on because he could. President Gerald Ford pardoned him for any offense committed while president.
Controversial as it was, Ford’s pardon eliminated the conversation being had today about whether or not to prosecute Trump. Will indictments and charges lead to a more divided nation where one-half of the country thinks of government prosecutors as out to get one political party? Is that better or worse for democracy than not bringing charges against someone just because they were president?
These questions have already consumed headlines for years and will likely continue to do so. In Nixon’s case, Ford made the choice for the country. He took office by declaring that the country’s “long national nightmare is over.”
Trump left office under much different circumstances, notably in the wake of the Jan. 6 insurrection, a very visual example of democracy under attack.
“Trump in many ways is a walking advertisement for the holes and flaws in our system of government because he's exposed all kinds of weaknesses in the system of modern American politics, this system of government and in the Constitution that I think many people prior to Trump did not even know existed or they didn't worry about them so much,” Dallek said.
In the years following Trump’s departure, the country has investigated how the beating heart of democracy came to be under attack. Congress held impeachment hearings and appointed a select committee. Prosecutors across the country have indicted individuals for attempting to thwart free and fair elections. The Department of Justice brought charges against hundreds of rioters who stormed the Capitol.
But the question of Trump’s accountability remains. There is no precedent for holding a president liable for these kinds of acts. The Ford pardon didn’t give the country the chance to get there.
Under Trump’s defense against criminal prosecution, there’s an argument that Nixon didn’t need the pardon if the Supreme Court’s ruling in Fitzgerald granted the executive officeholder absolute immunity. That question has yet to be put to the test, until now.
Trump's immunity defense is barreling toward Supreme Court review — guided of course by Nixon’s high court trip to shield his White House tapes from prosecutors. The justices will decide if absolute immunity for presidents really means just that.
Follow @KelseyReichmann
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