The issue in United States v. Richard Nixon was whether the president and his closest aides had conspired to obstruct justice in the Watergate break-in coverup.
Just sixteen days later, the Court concluded that, while Nixon could claim a limited privilege for some confidential communications, that privilege could be overcome by the overarching public interest in prosecuting federal crimes. Thus, the people of the United States, in whose name all federal criminal proceedings are brought, prevailed.
Nixon was ordered to produce the evidence, which showed his own complicity, as the grand jury had alleged in naming him an “unindicted co-conspirator.” He resigned two weeks later, still the only president to have done so.
Dramatically different in tone and content was last week’s decision in Donald Trump v. United States fabricating immunity for Trump from criminal liability to the people he and other presidents are sworn to serve.
First, there is a remarkable disparity in the justices’ approach to promoting public respect for the integrity of the Supreme Court as an institution.
Only eight justices sat in Nixon, because the most junior justice, William Rehnquist, concluded that his brief service as an assistant attorney general in the Nixon administration was sufficient to require his recusal. But in Trump, two of the six justices who made up the majority, Clarence Thomas and Samuel Alito, had the appearance of partisan support for Trump in connection with the very conduct before the Court. Under any honorable sense of judicial ethics, their conduct should have forced them to stand down.
In Nixon, the three other Nixon appointees (Chief Justice Warren Burger, Justice Harry Blackmun, and Justice Lewis Powell) joined in voting against the president. By contrast, all three of Trump’s appointees (Alito, Brett Kavanaugh, and Amy Coney Barrett) voted to immunize him from criminal culpability. Their votes were decisive in handing him this victory.
A decision of such monumental importance affecting the constitutional prerogatives of the president should command actual or virtual unanimity, if it is to be broadly accepted. During Watergate, Nixon had publicly declared that he might feel free to disregard an adverse decision, unless the Court spoke “definitively.” In my closing words, therefore, I urged the Court to uphold the order to Nixon “fully, explicitly, and decisively, and definitely.” The Court’s unanimous opinion left no room for Nixon to question the constitutional soundness of the ruling against him