Two Supreme Court cases involving former President Richard Nixon are being tossed around quite a bit during Tuesday’s hearing, as both sides point to the pair of immunity disputes decided by the high court decades ago to bolster their arguments in the latest immunity controversy.
Former President Donald Trump’s team has pointed to a 1982 Supreme Court case involving Nixon in which a 5-4 court said the then-former president was “entitled to absolute immunity from damages liability predicated on his official acts.”
The decision handed a win to Nixon, who was trying to fend off a civil lawsuit brought against him and two White House aides by a former Defense Department whistleblower who claimed his ousting was in retaliation for damning congressional testimony about government cost overruns.
More than 40 years later, Trump’s team is citing the ruling, authored by Justice Lewis Powell, to reinforce their argument that he should be shielded from criminal prosecution.
“The President’s ‘unique position in the constitutional scheme,’ … guarantees him immunity from trial,” they wrote.
But the special counsel’s team pushed back strongly on those arguments, writing in their own brief that the court’s decision in the Nixon civil matter “does not render a former President immune from criminal liability when charged with violations of generally applicable federal criminal statutes.”
The other immunity case expected to get a lot of play during the hearing, US v. Nixon, is likely more familiar to the general public. In that case, the Supreme Court in 1974 unanimously rejected Nixon’s claims of presidential privilege in a subpoena fight over Oval Office tapes sought by prosecutors in one of the Watergate-era criminal cases.
“Judicial review of Presidential compliance with the law continues to the present,” special counsel Jack Smith’s teams told the appeals court, citing the 1974 case. “And significantly here, courts have conclusively rejected Presidential claims of unreviewable power to resist criminal process.”
