Of the four criminal cases that Donald Trump is facing, the one unfolding in Manhattan is generally considered the weakest. Its legal foundation is complex. Its key witness is a felon. Its details are the sort of stuff that the tabloids splash across their front pages.
Worst of all, it doesn’t speak to Mr. Trump’s actions as president, as the other cases do. But as the Supreme Court oral arguments on immunity last week made clear, it is likely to be the only one the country will see resolved before Election Day.
As a historian who has written about the wrenching events of the 1960s and early 1970s, I can’t help seeing Mr. Trump’s legal troubles through the lens of an earlier Republican president, Richard Nixon. He spent more than two years, from the summer of 1972 to the summer of ’74, trying to prevent investigators from uncovering the tangle of crimes that made up the Watergate affair. But unlike Mr. Trump, Mr. Nixon never faced criminal charges. For that, justice suffered, and the nation suffered, too.
So here we are, watching unfold in Justice Juan Merchan’s utilitarian courtroom the narrow, tawdry version of the trials the nation ought to have had this year and the trial the nation should have had 50 years ago.
Mr. Nixon won the presidency in 1968 promising to be tough on crime. And he was. From 1961 to 1968 the nation’s prison population fell by 15 percent. By the time Mr. Nixon left office in 1974, it was almost back to where it was in 1962 — the start of a spiral fueled by the furious politics of law and order that his administration had helped to unleash.
The punitive turn struck poorer people and communities of color with particular force, an outcome that a majority of Americans didn’t seem to mind. But when the Watergate investigation exposed Mr. Nixon’s own potential criminality, they thought that the law ought to apply to him, too. As the crisis reached its peak in the summer of 1974, that belief hardened: By almost two to one, Americans wanted the House of Representatives to impeach the president, the Senate to try him and prosecutors to secure his indictment, so that his case could move into open court.
None of that happened. In early July 1974, Mr. Nixon’s lawyer presented to the Supreme Court his client’s claim of presidential immunity. The justices took just two weeks to issue their ruling against the president’s position, by a vote of 8 to 0.
In light of the Supreme Court’s conduct this year, it’s worth underlining that timing: The case was argued on July 8. The justices issued a decision on July 24.
Between July 27 and 30, the House Judiciary Committee approved articles of impeachment. Mr. Nixon resigned nine days later, with the articles pending. President Gerald Ford waited a month and then gave his predecessor “a full, free and absolute pardon” for the crimes he had yet to be charged with committing. And something started to shift for Americans.
In April 1974, the month the Watergate cover-up started to unravel, 71 percent of Americans had at least a fair amount of confidence in the legal system. In the weeks after Mr. Nixon’s pardon, the share of people who felt that way fell to 67 percent. A year later it was down to 64 percent. That growing sense of disillusionment can’t be explained purely by the failure to bring Mr. Nixon to trial. But a revealing set of long-forgotten surveys suggests that it played a part.
In 1971 the Roper Organization, then one of the nation’s leading pollsters, asked a randomly selected sample of adults to say which groups the courts treated too leniently. Respondents put “dope peddlers” at the top of the list, followed by “heroin users,” “marijuana users” and “revolutionists, anarchists, agitators” — almost precisely the people Mr. Nixon had promised to bring to justice by restoring law and order. Roper asked the same question two years after he was pardoned. “Dope peddlers” came in first again. “Government officials” was second.
Americans’ view of the Nixon pardon gradually softened, while their underlying distrust of the legal system solidified, a dynamic undoubtedly driven by the nation’s rapidly rising levels of economic inequality. When Roper revived its question in 1987, government officials still ranked right behind drug dealers as the group most likely to get special treatment in court. This time, “top business executives” finished fourth (tied with “marijuana users” and “frequent offenders”), barely below “heroin users.” There the public’s perception remained, as the wealth gap widened and the apparently endless war on crime locked up a greater and greater share of the nation’s poor.
By 2001, as indicated in a poll from Greenberg Quinlan Rosner Research/American Viewpoint, 62 percent of Americans had come to believe that there were two justice systems in the United States: one for the rich and powerful and another for everyone else. By 2019, in a similarly worded question from a Willow poll, that figure had reached 70 percent, just a point below the proportion of people who had confidence in the courts in the spring of 1974.
Since then, the cracks that run through the system have been torn wide open by the 2020 protests against police brutality and the fierce law-and-order response that the Trump administration mounted against them — combat-ready federal agents on the streets of Portland, Ore., tear gas in Lafayette Square in Washington. Add to that pile of tinder Mr. Trump’s manic subversion of the electoral process and the peaceful and effective transfer of power, which has led to three of the four criminal cases he’s facing.
Mr. Trump has met the charges against him with a blatant display of the privileges that wealth and power create. Over the past two years, he has spent about $76 million of other people’s money on legal fees, much of it to pay for motions and appeals that have stalled the three most damning cases from coming to trial. He persuaded the Supreme Court to treat his immunity claim — far more sweeping than Mr. Nixon’s — with a deference, at least in oral arguments, greatly out of step with the precedents the lower courts followed.
Perhaps most striking, Mr. Trump repeatedly ignored the gag orders that prohibit him from publicly attacking judges, clerks, prosecutors and witnesses — as well as their families — because he seems to believe he can do whatever he wants without fear of consequences. (On Tuesday he was held in contempt of court by Justice Merchan on nine counts and fined $9,000.) All the while, he’s marched toward the Republican nomination with a campaign infused with yet another version of law-and-order politics, this one focused on undocumented immigrants and asylum seekers rather than dope peddlers and drug addicts.
Now he’s spending his days at the defendant’s table, glowering at the judge whose daughter he endangered, as prosecutors working for the district attorney whom he has called an “animal” and a “criminal” lay out the lurid case against him. However the trial unfolds, it’s unlikely to change many people’s opinions of Mr. Trump — or of the legal system.
In polling, almost half of registered voters said they thought the charges Mr. Trump faces were politically motivated, and over two-thirds said that the outcome wouldn’t change their votes or that they would be more likely to vote for him if he was convicted.
No verdict in the Manhattan Trump case can undo the disillusionment with the system of justice that followed Mr. Ford’s pardon of Mr. Nixon. But the trial can, in its imperfect way, right the wrong of half a century ago, when the system last had its chance to prove that even the most powerful man in America is subject to its laws — especially when that man is so eager to take advantage of the politics of law and order. And there is a measure of justice in that.
The New York Times
