Trump's defense in 2020 election case could conjure ghost of Nixon once more

The multiple criminal charges against former President Donald Trump are often described as unprecedented, and so they are. But Trump is not the first president to be named in a criminal indictment.

That distinction, such as it is, belongs to Richard Nixon, the 37th president of the United States, still in office in March 1974 when a specially appointed prosecutor named Leon Jaworski indicted Nixon aides and advisers for their roles in the Watergate scandal. They were all the president's men, but Nixon himself was named as an "unindicted co-conspirator."

That phrase was back in the news this week when Trump's latest indictment also identified (but did not name) six unindicted co-conspirators. Some of those individuals might still be charged in the ongoing prosecution, which alleges Trump led a multi-faceted effort to overturn the results of the 2020 election that he lost.

This is far from the first time the common elements of Trump's case and Nixon's have come into view. Nixon was the subject of lengthy congressional hearings in 1973 and an impeachment process in 1974 that ended only because he resigned from office. For his part, Trump was impeached twice, with the Senate acquitting him both times for want of a two-thirds majority.

Half a century apart in time, the cases against both men raised crucial constitutional questions about authority within the three branches of the federal government — questions about the legal culpability of presidents and the limits on their individual power.

How far could a president go to stay in office if convinced his reelection was crucial to the nation? And what would be his legal liability for the actions he chose to take?

And most important of all is the haunting question of how much stress the fragile structure of a democracy can stand.

The Nixon episode had a huge impact in its day, but when he left Washington he largely left the public eye. The Trump trajectory is still drawing its arc. He currently dominates the polls for the 2024 Republican presidential nomination and has vowed to press on, whatever happens in the courts. Even from prison, he says.

That would mean the current, elevated levels of stress on the system – stress evident in many facets of everyday life in America – will only rise higher in the months (and possibly years) ahead.

The Nixon-Trump parallels

Both Nixon and Trump, in pursuit of a second term in office, took it upon themselves to find means to ensure their success – even it meant going beyond the usual processes of a campaign and an election.

In Nixon's case, he directed a cover-up of his own campaign's extensive illegal "black bag jobs" that included wiretapping and other forms of unlawful surveillance. The most famous of these was a bungled burglary at the Democratic Party headquarters in the Watergate office complex in June of 1972.

Trump is accused of seeking to alter vote counts in individual states, promoting alternative electors to supplant the ones chosen by the voters and attempting to disrupt the reporting of the Electoral College votes to Congress. All are felonies with potential sentences of years in federal prison.

Jaworksi did not charge Nixon in 1974 because a legal memo fresh from the Justice Department's Office of Legal Counsel said a sitting president could not be criminally charged while in office.

But later that year, pressured by a pending impeachment in the House (and a warning from Republican senators that the Senate would vote to convict him), Nixon resigned.

Jaworksi could have indicted him at that point, but the new president, Gerald R. Ford, promptly weighed in with a full pardon. Case closed, at least for Nixon.

But in a larger, historical sense, the case against Nixon has been tried and retried in countless ways.

And that case remains open today, as witness some of the arguments Trump and his lawyers are considering in his defense.

Nixon never went to court to defend himself after the pardon. But he did speak to a delegation from the special grand jury that was considering cases against some of his former subordinates in 1975. On that occasion, under questioning, he admitted to making mistakes, but insisted he did nothing others had not done before him, calling himself a victim of "selective prosecution."

Biographer John A. Farrell reported from the transcript in Richard Nixon: The Life.

There have been indications that Trump and his lawyers will try to make his trial in Washington, D.C., an opportunity to attack actions by predecessors such as Barack Obama and Bill Clinton, and to readjudicate his own claims of election fraud and even his allegations of influence peddling on the part of current President Joe Biden and his son Hunter.

Another argument likely to re-emerge from the Nixon era is the contention that presidents have unique responsibilities for the nation's security and well-being and thus must, at least at times, exercise extraordinary powers to execute those responsibilities.

In 1977, almost three years after he had left office, Nixon was still telling BBC host David Frost that certain actions might be against the law, but that "when the president does it, that means that it is not illegal."

That assertion of an overriding right to supersede the law under certain circumstances may well figure in Trump's defense, whether in court or in the media, when he goes to court to face the charges released this week by Special Counsel Jack Smith regarding Trump's effort to overturn the 2020 election.

The defense of sincere belief (even if mistaken)

Then there is the idea that Trump did all the things he did in the sincere belief that he was correcting error, that he was blameless because he genuinely believed he was "stopping the steal." Convinced of his "sacred landslide victory," for whatever reason, he was simply carrying out his own distorted sense of justice.

In that imaginary scenario, why not tell the secretary of state in Georgia to "find another 11,780 votes"? Why not call the relevant leaders in the state legislatures and urge them to call special sessions to reverse the decision of the voters?

In this sense, the question would become the famous question posed in the Watergate hearings on Capitol Hill in 1973: "What did the president know, and when did he know it?"

There are two problems with this defense, of course. One is that it does not matter what Trump thought because it would not excuse his actions. Even if Trump did think he had won, it would not insulate Trump against the charges Smith has brought.

William Barr, who was Trump's attorney general in 2020, spelled this out on CNN this week: "They are not attacking [Trump's] First Amendment right [to free speech]. He can say whatever he wants, he can even lie. He can even tell people the election was stolen when he knew better."

The problem is that Trump went much further, not just in words but in actions, to overturn the result of the election. Those actions, Barr stressed, would not be protected – regardless of what Trump believed

The other problem with the "sincere belief" defense is the evidence to the contrary.

"At first I wasn't sure," Barr said, "but I have come to believe he knew well he had lost the election." Barr said he thought Smith would be loaded for bear on this issue, calling the evidence in the indictment "the tip of the iceberg."

Trump ultimately poses yet another challenge

In a sense, the Trump prosecution poses an even more fundamental question than the Nixon case. That is because Trump is insisting that his perception of a stolen election should prevail over all evidence. He is in essence insisting that his reality — his version of the facts, his view of the situation — should take precedence over any other.

It is pure assertion on his part that he won. And if the polling among Republican voters is any indication, it has been working for him.

We cannot say we were not warned. At crucial moments in his first campaign in 2016, Trump signaled his intent to behave in just this fashion — to revise reality and insist on his version. For example, in September 2016, after five years of harassing Obama over his birth certificate, Trump insisted he and he alone had resolved at long last the controversy he had promoted. He wanted credit for doing this.

It was a challenge at the time and it brought into sharp relief at that moment to every news organization, election observer, academic and parent: What do you do with a man on the brink of the presidency of the United States peddling such an outrageous distortion? At the time, given the generations of its traditions in such matters, most of American mainstream journalism refused to use the word lie.

We had always assumed that once the word lie was attached to political speech, it would become devalued. And so indeed it has. We see it used in the media routinely and the shock value it once carried is long gone. And that has, too, has proven to be a tool and a weapon for Trump.

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