Americans like to say that no man is above the law. And yet what we saw this week from the U.S. Supreme Court was a ruling that confirms that one person is definitely above the law — the president of the United States.
There is little argument that a president should be shielded from lawsuits and legal challenges while in office. But blocking criminal investigations of a president’s conduct — even after leaving office — is a new twist.
It was 50 years ago this month that the U.S. Supreme Court heard arguments on whether President Richard Nixon had to hand over certain Oval Office tape recordings to the Watergate special prosecutor.
While the current Supreme Court took more than two months to hear arguments and write a divided opinion on former President Donald Trump’s immunity case, the justices back in 1974 delivered their 8-0 decision against Nixon in just 16 days.
When the verdict was announced on July 24, 1974, Watergate prosecutor Leon Jaworski came down the court’s steps to cheers from hundreds of people gathered outside.
The American people instinctively knew that no president is above the law, and the Supreme Court decision against Nixon reaffirmed that.
“Neither the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications … can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances,” Chief Justice Warren Burger wrote.
But the message was somewhat different in the Trump case. The conservative majority, led by Chief Justice John Roberts, specifically said no evidence from inside the White House can be used to prosecute Trump in the Jan. 6 investigation.
“Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial,” Roberts wrote.
If you applied this week’s decision to 1974, it could have allowed Nixon to hold onto the Watergate tapes. The ‘Smoking Gun’ tape would never have become public, and Nixon might have stayed in office.
In 1974, the justices stood tall against Nixon — sending a message with a unanimous voice that no president is above the law.
Fifty years later, the court’s message was no president is above the law, with a huge exception: A president can conceivably do illegal things — with no consequences — as long as they’re considered “official” acts.
You could almost take the court’s ruling and view it as a road map for how a president could commit wrongdoing in office but be shielded from any investigation or prosecution.
Somewhere, Richard Nixon must be thinking that he was born 50 years too early.
Jamie Dupree has covered national politics and Congress from Washington since the Reagan administration. His column appears weekly in The Atlanta Journal-Constitution. For more, check out his Capitol Hill newsletter at http://jamiedupree.substack.com.
