In 1970, then-President Richard Nixon briefly authorized an illegal plan to spy on left-wing activists within the United States. His defense is rarely quoted except as an example of presidential villainy.
“When the president does it,” Nixon told journalist David Frost in 1977, “that means that it is not illegal.”
Now, former President Donald Trump wants the Supreme Court to do two seemingly contradictory things. He wants the justices to turn Nixon’s long-ago defense of a largely forgotten spy program into a constitutional rule protecting former presidents from federal prosecution. And he wants the Court to drag its feet as much as possible while doing so.
This uniquely Trumpy proposal — to shut down the federal criminal case arising out of his efforts to steal the 2020 election, and to do so very, very slowly — is now before the Supreme Court in the case United States v. Trump.
Meanwhile, on Monday, Special Counsel Jack Smith, the lead prosecutor in two federal criminal cases against Trump, effectively asked the Supreme Court to do the opposite of what Trump wants. Smith wants the Supreme Court to decide that Trump is not immune from being prosecuted for his attempted election theft, and he wants the Court to do so as quickly as possible.
This is the first dispute involving the criminal allegations against Trump to reach the Supreme Court, but it is unlikely to be the last. On Wednesday, the Court announced that it would hear a different case involving one of the individuals who invaded the US Capitol on January 6, 2021, which could potentially undercut many of the charges against Trump.
No former president has ever been indicted, not to mention a former president who is likely to be his party’s candidate for the White House again. The Trump prosecutions raise novel legal issues, many under the First Amendment, that have never arisen before. And if the Supreme Court does not provide answers to these open questions — and quickly — Trump…
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