Editor’s Note: Timothy Naftali teaches history and public policy at New York University. He’s the former director of the Richard Nixon Presidential Library and Museum. The views expressed in this commentary are solely his.
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Judge John Sirica, a Republican, ordered tapes incriminating Nixon in Watergate be turned over to prosecutors
Timothy Naftali: If travel ban case gets to high court, Trump shouldn't imagine justices will put politics above judiciary's reputation
In late 1973, Judge John Sirica, chief judge of the US District Court for the District of Columbia, and a young clerk jointly listened to a tape of a White House conversation, which would later become infamous as the “Cancer on the Presidency” meeting between Richard Nixon and his counsel John W. Dean.
Sirica had been appointed by Dwight D. Eisenhower, and both he and his clerk were Republican. Nevertheless, when Sirica and the clerk, D. Todd Christofferson, heard Nixon telling Dean on the March 21, 1973, tape that money could be found to pay for the silence of the Watergate burglars, party didn’t matter. “(Y)ou could get a million dollars,” Nixon said. “And you could get it in cash. I know where it could be gotten.”
“We felt, both of us, like we had been hit in the gut,” Christofferson, now a member of the Quorum of the Twelve Apostles of the Church of Jesus Christ of Latter-day Saints, later recalled for the Nixon Library, “and it was hard to breathe. It was such a disillusioning experience because both of us had voted for Nixon twice … and hoped against hope as things went on that he really wasn’t a party to any of this, that it had been a conspiracy maybe involving some of his chief aides, but not him. But this for us, for the judge and myself, laid it to rest. There was no doubt after that.”
The judge then passed his aide a note, “Shouldn’t we hear this again?” They did and Nixon’s guilt was the same.
Thursday’s unanimous decision by the 9th US Circuit Court of Appeals is a matter of the constitutionality of a policy and not of a president’s involvement in a criminal conspiracy. Nevertheless, President Donald Trump’s public comments, especially his tweets, suggest a deep skepticism that the American judiciary can ever be apolitical when it disagrees with him.
In attacking Judge James Robart’s restraining order – which led to the appeal to the 9th Circuit – Trump impugned all courts: “If something bad happens blame him and court system.” Sirica’s handling of the Watergate case and later the Supreme Court’s handling of Nixon’s claim that he could shield other tapes as a matter of executive privilege are cautionary tales for chief executives who believe that the judiciary will decide constitutional violations, let alone gray areas in the law, in their favor as a matter of politics.
Sirica followed the evidence in the Watergate trials and managed his courtroom consistent with the law despite the consequence that he had to turn his back on a president he had supported. It was Sirica who ruled in May 1974 that Nixon should turn over more tapes to the special prosecutor despite the President’s claims of executive privilege. The Nixon White House then appealed directly to the Supreme Court.
If Trump chooses not to amend the executive order banning travel to the United States from seven largely Muslim nations and appeals to the Supreme Court, he shouldn’t assume the justices will align according to the party of the president who appointed them.
In 1974, a court with four Nixon appointees, including Chief Justice Warren Burger, agreed with Sirica and voted unanimously against Nixon. (Nixon appointee Associate Justice William Rehnquist, an assistant attorney general in Nixon’s first term, recused himself from the vote, which was 8-0.)
As a result of the decision in US v. Nixon, the White House had to hand over what became known as the “Smoking Gun” conversation in which Nixon approved using the CIA to thwart the FBI’s investigation into the Watergate break-in, sealing the fate of his presidency.
In 1974, the Supreme Court believed the reputation of the judiciary was at stake in a struggle over defining the limits of executive power. And in 2017, though the issue is not yet as fraught as it was four decades ago, the Roberts court may well feel the same way.
