Could a conservative Supreme Court majority promote a strict constructionist reading of the Constitution that declares the judiciary, in fact, has no authority over Trump’s actions as president?
Half a century ago, the Supreme Court ruled in the United States v. Nixon that executive privilege is not absolute.
Former President Richard Nixon had argued that he had authority to withhold sensitive information, such as the Watergate tapes, from other government branches in order to maintain confidential communications within the executive branch and to secure the national interest – setting up a fundamental question of which branch of government has power over the other. It was part of a far grander view of presidential power Nixon held that would ultimately be summed up for the benefit of history in a 1977 interview, in which Nixon said of an illegal act by the commander in chief that “when the president does it, that means that it is not illegal.”
In a unanimous decision, the Supreme Court in 1974 rejected Nixon’s argument – a ruling that marked the end of his presidency. Arguably even more important, it also dismissed Nixon’s expansive view of executive power, finding no grounds for an “absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” The decision set a precedent that among the branches of government, the judiciary has authority over a president and his actions.
But would the Supreme Court half a century later say the same?
Fast forward 50 years and former President Donald Trump finds himself in not an entirely dissimilar situation. Historians have long drawn parallels between Nixon and Trump – mostly on the impeachment front but more recently for their attempts to invoke what they perceived as a practically boundless executive immunity.
Could six conservative justices, three of whom were hand-picked by Trump himself, set aside the precedent established during the Nixon years and promote a strict constructionist reading of the Constitution that declares the judiciary, in fact, has no authority over Trump’s actions as president?
Legal experts say it’s not out of the realm of possibility – especially since the former president’s lawyers seem poised to appeal any number of procedural decisions emerging from his criminal cases that could be the vehicle for such an opinion.
“Some kind of case like this on this very issue could come to the court in the Trump cases,” says Barbara Perry, professor in presidential studies at the University of Virginia’s Miller Center, where she co-directs the Presidential Oral History Program.
“A lot of these substantive questions will come up. You can already see in the case in Washington about setting a trial date. You can see Trump’s defense team already claiming you’re not giving us enough time to prepare. And if he is to be convicted, that would be the first point in their appeal. There could be all sorts of reasons that cases involving Trump on legal procedures at the state and the federal level could end up at the Supreme Court.”
“The biggest issue of all is separation of powers.”
The track record in the courts has been mixed on the issue. Judges and justices have weighed in over the years on executive immunity as it relates to civil matters, with the Supreme Court concluding that the commander in chief has vast protection from liability for conduct even tangentially related to official duties. Notably, it has not conferred the same absolute immunity upon governors – chief executives of the states. And governors have, in fact, faced trials on criminal charges for conduct that occurred during their terms.
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But Nixon’s resignation and Gerald Ford’s subsequent pardon of him sidestepped for decades the question of executive immunity in cases of criminal prosecution for a president. Trump, in a historic first, now faces a barrage of felony counts that have reinvigorated the issue. The former president stands accused related to the mishandling of classified documents after he departed the White House, hush money payments to a porn star, efforts to prevent the peaceful transfer of power and incite a violent insurrection at the Capitol as well as attempting to overturn the results of the 2020 presidential election in Georgia – to all of which Trump has pleaded not guilty.
And in the Washington case, Trump lawyer John Lauro has already told a federal judge that he plans to file “a very, very unique and extensive motion that deals with executive immunity.”
Sounding quite Nixonian in his interpretation of the Constitution, Lauro elaborated on the rationale during an interview with “Meet the Press” last month.
“Everything that President Trump did was while he was in office as a president. He is now immune from prosecution for acts that he takes in connection with those policy decisions,” he said.
While that working theory is a long way from general acceptance, its embrace by the Supreme Court would lay waste to many of the charges against the former president and current GOP front-runner for the nomination. Trump has already flirted with testing the bounds of his executive privilege during the investigations that laid the groundwork for the eventual cases. And, as fate would have it, U.S. District Judge Tonya Chutkan – who now finds herself overseeing Justice Department special counsel Jack Smith’s case against Trump in Washington, D.C. – was the very judge to block one of his early efforts.
In November 2021, Chutkan ruled against an effort by Trump and his defense team to obtain an injunction to stop the National Archives from releasing records – with the approval of the Biden White House – that were sought by the House select committee investigating the violent insurrection at the Capitol on Jan. 6 of that year. And she didn’t mince words about the novel legal dynamic at play: “a former President asserts executive privilege over records for which the sitting President has refused to assert executive privilege.”
In a 39-page opinion, the Obama-appointed judge rejected Trump’s request, saying he “retains the right to assert that his records are privileged, but the incumbent President is not constitutionally obliged to honor that assertion.”
The most memorable and oft-quoted line of her opinion suggested she might take a dim view of Trump’s sweeping immunity claim.
“Presidents are not kings, and the Plaintiff is not President,” she wrote.
Still, if his social media commentary is to be believed, Trump’s legal team is all but certainly playing a longer game.
“The Supreme Court must intercede,” Trump posted to TruthSocial last month after pleading not guilty in Washington.
Charles Geyh, law professor at Indiana University, says the prospect of Trump and his defense team appealing all the way to the Supreme Court is a warranted thought exercise.
“It’s right to think about the Nixon case,” Geyh says. “There is the possibility of that happening again.”
But Geyh also underscored that Trump and his legal team would have to present a question that meets the highest legal bar for the justices to accept such an appeal – both due to the overwhelming political optics and because the court hears so few cases.
“It wouldn’t shock me to find that the Supreme Court tries to avoid a showdown,” Geyh says.
“One could see certain issues developing through the course of litigation that do present the type of constitutional question that the Supreme Court would take,” Geyh says. “But if it’s a garden variety criminal prosecution with a definitely not garden variety defendant, would that alone be enough to take the case when doing so would thrust them into the political crosshairs even more than they are already?”
“They might be looking for a way to not put themselves through that unnecessarily.”
Significantly, the legacy of Trump’s presidency is the 6-3 conservative majority on the Supreme Court. Trump appointed three justices in his one-term presidency – the most of any president since Ronald Reagan appointed four over two terms. And he’s been vocal about how they should be indebted to him for their life-long appointments on the high court.
And while the Supreme Court’s conservative justices have issued a slate of controversial decisions in recent years that overturned landmark cases – for example, on abortion, affirmative action and environmental policy – the court has also rejected Trump’s voter fraud arguments, refused to back efforts to overturn the results of the 2020 presidential election and have generally sought to preserve voter rights in the face of Republican attempts to redraw districts to their advantage. In addition, the justices rejected Trump’s request to block release of his tax records to a House investigative committee in 2020.
“Totally incompetent and weak on the massive Election Fraud that took place in the 2020 Presidential Election,” Trump tweeted about the justices in 2020 after the high court denied his emergency applications aimed at overturning the election results.
With an upcoming slate that was expected to dial down the temperature from the contentious decisions, record low public approval and ethics complaints that marked their last term, the high court might find itself thrust back into the political spotlight as the presidential campaign heats up.
“I can’t speak for the chief justice, but he must have so hoped that Donald Trump would just go gentle into the good night because it only causes problems for the court as an institution – no matter which way they would decide,” Perry says. “On the issue of Trump alone, they’re going to split the country apart on that if they vote in favor of something Trump wants or against.”
That’s on top of another very basic issue of the court safeguarding its own authority in a democratic system that employs a separation of powers, she adds.
“It’s hard for me to believe that the court would give up its own power in this realm unless it’s the only way they can figure out how to support Trump – if that should be the goal of at least five of them,” she says.
“I’m sure they don’t want to go down the road of reducing their own power and authority as a co-equal one of three branches. But if that’s their way to avoid an even worse decision on the merits, do they go down this road?”
Before the Supreme Court decided against Nixon in 1974, his claim was rejected in a lower court. The president’s attorney, James D. St. Clair, looked to have a federal judge dispatch with a subpoena for records.
“The president wants me to argue that he is as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment,” St. Clair said.
The assertion is breathtaking in a modern context and would dominate social media if uttered in a courtroom today. Yet at least one justice who favors a narrow interpretation of the Constitution according to the founder’s intent has shown he might be open to exploring the merits of an appeal by Trump.
In speaking at a roundtable discussion in 1999, Trump-appointed Justice Brett Kavanaugh reportedly posed questions about whether the Nixon case represented a “nonjusticiable interbranch dispute” and whether the Supreme Court got it wrong, or should have avoided ruling on it altogether.
The president is the country’s “chief law enforcement officer,” Kavanaugh said at the time, partly answering his own question – not the attorney general.
“Maybe Nixon was wrongly decided – heresy though it is to say so,” Kavanaugh said in a transcript of the discussion that was published in the January-February 1999 issue of the Washington Lawyer.
“Nixon took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official. That was a huge step with implications to this day that most people do not appreciate sufficiently,” he said. “Maybe the tension of the time led to an erroneous decision.”
Some 15 years later, Kavanaugh reiterated that position, writing in a 2016 law review article: “Whether it was Marbury, or Youngstown, or Brown, or Nixon, some of the greatest moments in American judicial history have been when judges stood up to the other branches, were not cowed, and enforced the law. That takes backbone – or what some call judicial engagement.”
It’s far from a given that Kavanaugh would display that backbone if presented with the constitutional question. But more certainly, such an action would upend the American judicial history to which he referred and set off just the political showdown some think the justices hope to avoid.
https://www.usnews.com/news/the-report/articles/2023-09-08/are-trump-and-his-conservative-supreme-court-on-a-collision-course
