A U.S. Supreme Court justice has demanded to know why former President Donald Trump should have immunity from prosecution if Richard Nixon did not have the same privilege for the Watergate scandal.
"What was up with the pardon for President Nixon? I think that if everybody thought that presidents couldn't be prosecuted, then what was that about?" Justice Ketanji Brown Jackson pointedly asked Trump lawyer John Sauer.
The exchange occurred during oral arguments on Thursday in Trump's Supreme Court challenge to his indictment in Washington, D.C., for alleged interference in the 2020 presidential election. Trump says that he has presidential immunity from the indictment.
Brown Jackson's question pointed to the skeptical nature of the questions directed at Sauer's claim that Trump had immunity for all official acts in office.
Nixon resigned as president as a result of the Watergate hotel burglary scandal, in which Republican operatives broke into the Democratic Party headquarters to gain information. His successor as president, Gerald Ford, pardoned Nixon.
Sauer replied: "He [Nixon] was under investigation for both his private and public conduct at the time...I think everyone has understood that the president, since President Grant's carriage-riding incident, everyone has understood that the president could be prosecuted for private conduct."
President Ulysses S. Grant was arrested in 1872 for speeding in his horse-drawn carriage.
Trump was indicted on four counts of allegedly working to overturn the results of the 2020 election in the run-up to the January 6, 2021, riot at the U.S. Capitol. The case has been frozen while the Supreme Court considered the presidential immunity issue.
It is one of four criminal cases that Trump is facing as the presumptive Republican presidential nominee. He has also pleaded not guilty to charges in the other cases, denying any wrongdoing, and has repeatedly said that they form part of a political witch hunt.
Newsweek sought email comment on Thursday from Trump's attorney.
In his opening statements, Sauer suggested that if the court did not grant Trump immunity, then "there can be no presidency as we know it."
"The implications of the court's decision here extend far beyond the facts of this case," he said.
He also said that a lack of immunity would be "incompatible with our constitutional structure" and that America relies on an "energetic" presidency that is not tampered by fear of prosecution.
Brown Jackson later suggested to Sauer that the ability to prosecute a president, rather than placing a "chill" on the presidency, is a protection from a corrupt presidency. She said that a U.S president has more power than anyone in the world so there need to be measures in place to ensure that the office is not used improperly.
Justice Elena Kagan asked Sauer if he felt a military coup by a president should have immunity from prosecution.
"How about if a president orders the military to stage a coup?" Kagan asked.
"If it's an official act, there needs to be impeachment and conviction beforehand" through Congress," Sauer replied.
Kagan then asked if the coup would be considered an "official act" of the presidency.
"On the way you described that hypothetical, it could well be," Sauer said.
"That sure sounds bad, doesn't it?" Kagan replied.
Update 4/25/24, 11:25 a.m. ET: This article was updated to include additional reporting on the Supreme Court hearing.
Uncommon Knowledge
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
fairness meter
To Rate This Article
About the writer
Sean O'Driscoll is a Newsweek Senior Crime and Courts Reporter based in Ireland. His focus is reporting on U.S. law. ... Read more
To read how Newsweek uses AI as a newsroom tool, Click here.
