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richard nixon
Just in Time for Independence Day, Supreme Court Grants President Powers of a King
The court has issued an instruction manual for future lawbreaking presidents: Make sure you conspire only with other government employees. You’ll never be held to account.
Jul 02, 2024
It long had seemed that the “stall” would be the worst thing the Supreme Court could do when it came to Donald Trump’s claim of immunity from prosecution. How naive.
Delay there will be. The six justices in the Republican-appointed supermajority held, “A former president is entitled to absolute immunity from criminal prosecution for actions within his ‘conclusive and preclusive constitutional authority.’” They added, “There is no immunity for unofficial acts.” Rather than make clear that trying to overthrow the Constitution’s peaceful transfer of power is not an official act, the justices send the whole matter back to trial judge Tanya Chutkan. Expect more consideration, more parsing, more rulings, more appeals. It will all likely end up at the Supreme Court again in a year, if the whole prosecution isn’t shut down entirely.
But damage to our system goes well beyond delay. Trump v. U.S. astounds in its implications. It grants the president the power of a monarch. Richard Nixon defended his conduct in Watergate, telling interviewer David Frost, “When the president does it, that means it’s not illegal.” Effectively, the Supreme Court’s supermajority has now enshrined that brazen claim.
The presidential immunity concocted today would have blessed most of Nixon’s crimes.
To be clear, there are reasons to be nervous about prosecuting former chief executives, so some standards make sense. In this case, though, the court has issued an instruction manual for future lawbreaking presidents: Make sure you conspire only with other government employees. You’ll never be held to account.
What makes something an official act? “In dividing official from unofficial conduct, courts may not inquire into the president’s motives,” the justices ruled. And a jury cannot learn about the other parts of a criminal conspiracy that may involve official acts.
Justice Amy Coney Barrett did not agree with this last critical point. She said that of course juries can consider the context of a criminal act. Neither Justice Samuel Alito (who flew insurrectionist flags outside his two homes) nor Justice Clarence Thomas (whose wife was on the Ellipse on January 6) recused themselves. They cast the deciding votes to keep from jurors the full story of the attempted overthrow of the Constitution.
The founders said repeatedly that presidents have no special immunity, as a brief filed by the Brennan Center on behalf of top historians made plain. After all, that was one of the very things about the British monarchy that they hated and against which they rebelled.
Even more directly, this ruling undoes the restrictions on presidential abuse of power put in place by officials and jurists of both parties since the 1970s.
The imperial presidency described an age of growing executive authority and abuse of power. It came crashing to an end during Watergate and after revelations about the misuse of intelligence and law enforcement by Nixon’s predecessors.
The presidential immunity concocted today would have blessed most of Nixon’s crimes. Nixon ordered his White House counsel to pay hush money to burglars in an Oval Office meeting on March 21, 1973. Presumptively an official act? He dangled clemency before E. Howard Hunt, one of the conspirators. Use of the pardon power—entirely immune? He resigned when a tape revealed he had ordered the CIA to go to the FBI to end the investigation of the burglars sent by his campaign committee. “Play it tough,” he told his White House chief of staff. On its face, official.
What about other criminal cases involving high officials? In the Iran-Contra scandal of the late 1980s, numerous officials were charged (including the national security adviser and the defense secretary). Ronald Reagan faced no charges, but not because he was presumed immune. What if he did break the law—would he have escaped accountability? In 2001, federal prosecutors probed whether Bill Clinton sold pardons. They cleared him—but issuing a pardon is surely an official act.
In her dissent, Justice Sonia Sotomayor said it plainly: “Under [the majority’s] rule, any use of official power for any purpose, even the most corrupt purpose indicated by objective evidence of the most corrupt motives and intent, remains official and immune. Under the majority’s test, if it can be called a test, the category of presidential action that can be deemed ‘unofficial’ is destined to be vanishingly small.”
So, yes, all this will delay Trump’s trial. In that sense, he gets what he craved. But the implications are far worse for the structure of American self-government.
It is a massive failure for Chief Justice John Roberts. The other major rulings on presidential accountability for legal wrongdoing have been unanimous. U.S. v. Nixon (limiting executive privilege) was written by the Republican chief justice Nixon appointed, and it was unanimous. Clinton v. Jones (opening the president to civil suit even while in office) was unanimous. Let’s grant that Roberts is an institutionalist. He is presiding over the collapse of public trust in the very institution he purports to revere.
And Trump v. U.S. has enormous implications for the future of the presidency. Remember that utterly bonkers hypothetical from the appeals court argument—that a president could order SEAL Team Six to assassinate an opponent? Sotomayor again: “A hypothetical president who admits to having ordered the assassinations of his political rivals or critics... has a fair shot at getting immunity under the majority’s new presidential accountability model.”
We read sonorous language in the majority opinion that “the president is not above the law.” But just in time for Independence Day, the Supreme Court brings us closer to having a king again.
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Thank You, President Biden. Now Do the Right Thing.
Don't let history fool you. Trump can be destroyed, but only if those in a position of power show the courage that's needed. It’s now up to Biden's inner circle and the leaders of the Democratic Party to make the correct decision.
Jun 30, 2024
By showing his age and fragility in the debate, President Joe Biden did us all a big favor. There now is a possibility, still slight but higher than before, that he will bow out of the race and not run again.
On November 20, 2023, I wrote a column—titled "Who Has the Courage to Tell Joe Biden Not to Run?"—that asked Biden to drop out. I took heat for that, even from my friends and colleagues. I heard all kinds of arguments, ranging from “He’s a great president and deserves another term,” to “It’s too late to do anything about it.” I was also accused of being a defeatist and some said that my attitude would weaken Biden and help Trump win.
After Biden gave his energetic State of the Union address, the finger wagging accelerated: “See, Biden clearly has the wherewithal to crush Trump,” friends said. I was not convinced. But, after Biden’s Thursday night debate performance, a lot more people became unconvinced. He looked old and spoke even older, that was undeniable.
It’s now up to Biden and the leaders of the Democratic Party. Do they have the guts to tell Biden not to run? Do any of the younger presidential hopefuls have the nerve to speak out? Does Biden have the guts to withdraw?
It is past time to listen to what the Democratic rank and file have been saying all along. They want someone younger to do combat with Trump. While I’m usually a poll skeptic, Biden’s approval numbers are pathetic. The president stood at just 37 percent as of June 24, and that number hardly budged even after the surprisingly strong SOTU address. That polling weakness, I believe, reflects less on the president’s job performance than on how he looks and acts on the job.
Unfortunately, the primaries have been completed and no significant Democrat has showed the nerve to oppose him. That leaves it up to Biden to decide, and in the aftermath of the debate debacle, he and his team say they’re running harder than ever... right over the cliff!
But that could change if his poll numbers further deteriorate and if enough Democratic leaders feel they might lose as well in the fall if Biden heads the ticket.
Misreading History
Pundits have encouraged the Democrat’s cowardice by claiming that defeat always follows when a sitting president is challenged by one of his own party. The poster child for this story is 1968, when Democratic Senator Eugene McCarthy of Minnesota took on President Lyndon Johnson in the primaries. McCarthy’s strength led Johnson to withdraw, and for party regulars to engineer the nomination of Vice President Hubert Humphrey. This ended with the victory of Richard Nixon in the general election.
That’s not the way I see it. I challenge all comers to a historical duel about 1968 politics. I think that election was entirely winnable by Humphrey had he taken a mild anti-Vietnam War position a bit sooner during his fall campaign.
That pivotal year is worth reviewing. In 1968, there were 536,000 U.S. troops in Vietnam killing and being killed in large numbers. The Tet Offensive showed the American public that the Johnson administration had been lying when describing our success conducting the war. It was clear that America was not winning. McCarthy challenged the sitting president with a strong anti-war message, appealing to the support of young people in the growing anti-war movement. (About one million men were drafted into the armed forces from 1965 to 1968.) Thousands flocked to his campaign, going door-to-door in New Hampshire where McCarthy gained 42 percent of the Democratic primary vote. The next primary was to take place in Wisconsin and following his New Hampshire scare Johnson knew he was sure to lose. On March 30, LBJ dropped out of the race, and on April 2 McCarthy won Wisconsin by 57 to 35 percent.
With Johnson out, Humphrey became the Democratic Party establishment candidate, but then Robert Kennedy jumped in, making it a three-man race. On April 4, Dr. Martin King Jr. was assassinated in Memphis and riots broke out in 100 cities across the country, leading to 43 deaths and the mobilization of National Guard units and the military occupation of several U.S. cities. Disruption and chaos had the upper hand, and by the time of the California primary, on June 4, it was clear that Kennedy, would defeat McCarthy and become the leader of the anti-war Democrats. Sadly, he was assassinated that night in Los Angeles, greatly weakening the anti-war electoral efforts.
The August 26-29 Democratic convention, held in Chicago, turned into a riot, a police riot, as the Chicago police—under the control of Mayor Richard Daley—viciously attacked the generally peaceful anti-war demonstrators. Anti-war convention delegates, and even CBS’s Dan Rather, were beaten as Daley turned his political machine into a ramrod for the Humphrey campaign. The carnage was broadcast live on TV.
After Kennedy’s murder it was a forgone conclusion that Humphrey would become the Democratic nominee. But the key political event at the tumultuous convention turned out to be the vote on a rather mild peace plank for the Democratic Party platform, something that the Kennedy and McCarthy delegates hoped to salvage for their efforts. But LBJ, pulling the strings, refused to compromise and the plank was narrowly defeated.
I try to avoid the prediction game, but I am willing to go out on a limb on this one: If Biden stays in, we get Trump. If a younger Democrat becomes the nominee, Trump will get crushed.
That fall, Vice President Humphrey ran against the former Vice President Nixon, who based his campaign on law and order, scaring the newly concocted “Silent Majority,” and criticizing the riots and anti-war demonstrations that were ripping through the country. Nixon also claimed to have a plan to end the war in Vietnam that he would reveal at his inauguration, which turned out to be an appealing lie. Humphrey, an organization man nearly to the end, stayed loyal to the unpopular LBJ positions and fell behind by 44 to 27 percent in a September 27 Gallop poll.
On September 30, 1968, Humphrey finally broke ranks with LBJ in a nationwide speech. He announced that he would put an end to the bombing in Vietnam and would call for a ceasefire. This brought McCarthy and many of his supporters, as well as Kennedy supporters, into the Humphrey campaign, quickly narrowing the gap. But with only a month to go Humphrey didn’t quite get there: Nixon won 43.4 percent to Humphrey’s 42.7 percent, with segregationist George Wallace netting 15.5 percent.
I believe any objective analyst would conclude that had Democrats supported the peace plank at the convention or had Humphrey offered his peace plan sooner, he would have won. So please don’t use 1968 to tell us that if Biden withdraws, the Democrats are sure to lose, (which is what Kaitlin Collins said on CNN the night after the debate.)
I try to avoid the prediction game, but I am willing to go out on a limb on this one: If Biden stays in, we get Trump. If a younger Democrat becomes the nominee, Trump will get crushed.
It’s now up to Biden and the leaders of the Democratic Party. Do they have the guts to tell Biden not to run? Do any of the younger presidential hopefuls have the nerve to speak out? Does Biden have the guts to withdraw?
President Biden, we thank you for your service. Now give us the chance to thank you again for protecting democracy by stepping aside.
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1968 and 2024: Déjà Vu All Over Again?
The Gaza War has not created the kind of turmoil that nearly ripped apart the country in 1968, at least not yet.
May 11, 2024
The similarities are eerie:
Then and now, student anti-war demonstrations disrupted college campuses.
Then and now, the police were called in to arrest students, and often used excessive force.
Then and now, the Democratic sitting president was unpopular, and the Republican challenger was an extreme law and order conservative out for revenge against liberals.
Then and now, there were major ideological differences about a war between the young and the old.
But these similarities are largely superficial. 1968 was different.
Then there were 536,000 U.S. troops stationed in Vietnam, and the American population was deeply divided about not only whether the war should be continued, but whether it was justified in the first place. The Vietnam War was the salient political issue of the day, and young had to decide whether to serve or dodge the draft.
So far, despite the campus protests and coverage of the devastation, the war in Gaza ranks near the bottom on the list of concerns of the average American, even among young voters.
In 1968, the anti-war movement was part of a widespread rebellion against the anti-communist, hierarchical structure of society. The edifice of traditional authority was under siege. Sex, drugs, and rock and roll were perceived as forms of liberation and a direct threat to the established order. Having long hair could get you pulled in by the police or beat up by a hard-hat.
The threat of violence was palpable, and eruptions were not rare. Two of the most prominent anti-war and civil rights leaders of the era, Martin Luther King Jr. and Robert F. Kennedy, were assassinated in 1968. The Democratic Convention in Chicago turned into a sprawling police riot. Convention delegates and journalists, as well as protestors, were punched and manhandled. (I was an eyewitness to both.)
Some groups, like the Weathermen, believed that violent acts were necessary to “bring the war home.” Bank of America branches were attacked with some regularity, often by bombing.
Perhaps the biggest difference between then and now is politics. Lyndon Baines Johnson (LBJ), the sitting president, had crushed the ultra-conservative Barry Goldwater in the 1964 election, winning 60 percent of the popular vote and 496 of the 548 electoral votes. Johnson, who had been John F. Kennedy’s vice-president and took office after Kennedy’s assassination in 1963, went on to pass major civil rights and anti-poverty legislation. He was viewed as the most progressive president since Franklin Roosevelt. Many believed he was even more progressive because of his courage enacting strong anti-segregation legislation that he knew would turn the Southern states away from the Democratic Party.
You want to know what fascism in America might look like? It was 1968 in Chicago.
Biden, who won a much narrower victory over Trump in 2016, has gained fame among progressives and labor leaders through the passage of his infrastructure and climate bills. He also provided more labor support in key agencies like that National Labor Relations Board, and is being hailed as the greatest labor-oriented president since Franklin Roosevelt.
Johnson’s opponent in 1968 was expected to be Richard Nixon, a polarizing conservative political figure who few believed stood a chance against such a popular sitting president. The Vietnam War, however, eroded Johnson’s popularity as he bore the blame for the continued death and destruction. The chant he often heard from protestors was, “Hey! Hey LBJ! How many kids did you kill today?!”
The political establishment in 1968, as in 2024, refused to challenge the sitting president even as his popularity plummeted. But one maverick senator, Eugene McCarthy (D: MN), threw his hat in the ring and drew the more moderate anti-war students into his campaign under the banner of “Get Clean for Gene.” By the thousands they knocked on doors during the New Hampshire primary, and the results shocked the country, with McCarthy gaining a 42 percent share of the votes compared to Johnson’s 50 percent.
Even though Johnson won New Hampshire, he was in serious political trouble. He realized he likely would lose the next primary in Wisconsin to McCarthy, and he faced a formidable challenge from Bobby Kennedy, who jumped into the race after the New Hampshire close call. Johnson then did the unthinkable – he withdrew. This was quite unbelievable. In less than four years, one of the most popular presidents in American history was forced out of office by the anti-Vietnam War movement.
Hubert Humphry, Johnson’s V.P., and former liberal senator from Minnesota, became the Democratic establishment candidate and was tightly controlled by Johnson. “I’ve got his pecker in my pocket,” Johnson supposedly said. Kennedy, who was assassinated the night he beat McCarthy in the June California primary, would have been a formidable challenger to Humphry, but McCarthy didn’t have the votes at the convention to defeat the vice president.
The Democratic convention was a nightmare, one I experienced first-hand. The police were out to beat up anyone who looked like a protester. They even pummeled reporters and attacked McCarthy delegates at the convention. You want to know what fascism in America might look like? It was 1968 in Chicago.
The Johnson/Humphry forces, fully in control, refused to compromise with the anti-war faction and shot down a rather mild platform peace plank that called for an end to the bombing of North Vietnam and a negotiated withdrawal of American troops. The anti-war delegates and protesters left Chicago with nothing, beaten and in despair.
As a result of the violent convention, captured live on TV, Nixon was way up in the polls, and seemed to be cruising to an easy victory. Even though the police caused nearly all of the violence in Chicago, it looked like an enormous breakdown of law and order, a key element in Nixon’s platform.
But in the last few weeks before the November 1968 election, Humphry moved towards the peace plank that had been rejected at the convention, and his poll numbers improved to the point where Nixon’s enormous lead evaporated. Had Humphry got his pecker out of Johnson’s pocket a month or so earlier, I’m quite certain he would have won.
Ultimately it was an election about the Vietnam War and law and order. Nixon had the edge in the former by pretending to be more of a dove than Humphry, who had so much difficulty separating himself from Johnson’s war. Nixon gained, too, on the latter issue, as images of the Chicago riots and the Black revolts in dozens of cities across the country after King was assassinated made his “silent majority” fearful.
The Gaza War has not created the kind of turmoil that nearly ripped apart the country in 1968, at least not yet. Even the current campus conflicts, fortunately, don’t match the catastrophic clashes that reached their peak in 1970 when National Guardsmen fired into a crowd of demonstrators at Kent State, killing four and wounding nine unarmed students.
Today, there are no courageous and credible Democratic challengers willing to take on a sitting president, even a president who is 81 years old and running behind the election-denying Donald Trump in the polls.
I’m struck by the contemporary sound of the words Johnson used to announce his withdrawal from his re-election campaign on March 31, 1968.
“… I would ask all Americans, whatever their personal interests or concern, to guard against divisiveness and all of its ugly consequences.
What we won when all of our people united just must not now be lost in suspicion, and distrust, and selfishness, and politics among any of our people.
And believing this as I do, I have concluded that I should not permit the Presidency to become involved in the partisan divisions that are developing in this political year. …
I do not believe that I should devote an hour or a day of my time to any personal partisan causes or to any duties other than the awesome duties of this office–the Presidency of your country.
Accordingly, I shall not seek, and I will not accept, the nomination of my party for another term as your President.”
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