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…