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    The Supreme Court’s Big Trump Test Is Here

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    A generation after the Supreme Court stepped into a disputed presidential election, America is experiencing a creeping sense of déjà vu. Twenty-three years ago, a bare majority of the justices halted a recount in Florida, effectively handing the presidency to George W. Bush.The specter of Bush v. Gore, the case that stands as a marker of how not to resolve searing political disputes, looms large as the Supreme Court is being called upon to address controversies with profound implications for the fortunes of the Republican front-runner in 2024.The justices are feeling the heat nearly a year in advance of an election rather than in the fraught weeks following the vote. The questions today are more complex — there are at least three separate matters, not one — and all revolve around the Capitol insurrection that transpired across the street from the Supreme Court Building in 2021.On Friday, the court turned down Special Counsel Jack Smith’s request for fast-track review of Donald Trump’s claim that former presidents have “absolute immunity” from criminal prosecution for their conduct while in office. But that critical question will almost certainly return to the Supreme Court soon: The D.C. federal appeals court is hearing the case on Jan. 9 and will probably rule shortly thereafter.The court has agreed to hear a case asking whether Jan. 6 rioters can be charged with obstructing an official proceeding, another key part of Mr. Smith’s Jan. 6 case against Mr. Trump. And most dramatically, the former president will surely ask the justices to reverse a ruling of the Colorado Supreme Court that, if affirmed, could pave the way for an untold number of states to erase his name from the ballot.For a tribunal that is supposed to sit far away from, not astride, politics, that’s a lot for the Supreme Court to handle. And this is happening at a rough moment for the court. In August 2000, on the eve of Bush v. Gore, 62 percent of Americans approved of how the Supreme Court was conducting itself. Now, recent polling shows that nearly that portion (58 percent) disapproves of the institution, a figure that scrapes historic lows for the court.Yet the multiplicity of cases affords the justices an opportunity to avoid pinning themselves in still further if they keep an eye on how potential decisions will — collectively — shape the political landscape. The point is not that getting the underlying legal questions “right” is irrelevant. But when the stakes are this high and the legal questions are novel, the justices have a duty to hand down decisions that resonate across the political spectrum — or at least that avoid inciting violence in the streets. That’s not subverting the rule of law; it’s preserving it.Extraordinary times call for a court that embraces the art of judicial statecraft.The trap the court finds itself in is largely a function of its own behavior, both on and off the bench. The 6-to-3 conservative supermajority has radically expanded gun rights, circumscribed the Environmental Protection Agency’s ability to protect the environment, all but eviscerated race-based affirmative action, punched holes through the wall separating church from state and — most notoriously — eliminated the constitutional right to abortion. The past year has also seen increasing public scrutiny of the justices’ apparent ethical lapses, sunlight that pushed the justices to adopt their first code of ethics.A universe in which the court somehow splits the difference — for example, keeping Mr. Trump on the ballot while refusing to endorse (if not affirmatively repudiating) his conduct and spurning his kinglike claim to total immunity — could go a long way toward reducing the temperature of the coming election cycle. Such an outcome could also help restore at least some of the court’s credibility.We understand that trying too hard to project an image of nonpartisanship carries risks. Recent reporting on the twists and turns of how the conservative majority engineered the end of Roe v. Wade shows how curating rulings can make justices look too clever by half — if not outright deceptive. Delaying the grant of review in the Dobbs v. Jackson Women’s Health Organization case, in which some of the conservative justices apparently knew they had the votes to overrule Roe, created a false impression that the court was struggling over the matter — when the reality was anything but. Indeed, the Dobbs experience and its aftermath might have led some justices to sour on the idea of judicial statecraft — especially if their internal deliberations end up getting leaked to the press. No jurist wants to be seen as a cunning manipulator of public opinion.And yet, some of the court’s most important rulings across its history have represented just the kind of high constitutional politics that we believe are called for now. The court’s recognition of its power to strike down acts of Congress in Marbury v. Madison came in a context in which the direct effect of the ruling was to restrain the court while slapping the Jefferson administration on the wrist.Its concerted effort to produce unanimous opinions in some of the landmark civil rights cases of the 1950s and 1960s reflected a view that speaking in one voice was more important than the legal nuances of what was said. (This, perhaps, is why no justice publicly dissented from Friday’s decision not to fast-track the immunity question.)The court’s landmark rejection of President Richard Nixon’s executive privilege claim in the Watergate tapes case, which helped to directly precipitate Nixon’s resignation, came in a unanimous opinion written by Nixon’s handpicked chief justice.This is also the best way to understand Chief Justice John Roberts’s much-maligned 2012 vote in the first serious challenge to the Affordable Care Act — upholding the individual mandate as a tax while rejecting it as a valid regulation of interstate commerce.What those (and other) rulings have in common was the sense, across the Supreme Court, that the country would be better off with a court that took appropriate measure of how its rulings would be received beyond the details of the legal analysis the justices provided.The court failed that test in Bush v. Gore — handing down a ruling widely perceived as Republican-appointed justices installing a Republican president via a strained (and oddly cabined) reading of the Equal Protection Clause and helping to precipitate the downturn in public opinion that figures so prominently in these cases.As the Jan. 6 cases put the justices right in the middle of the 2024 election, the question is whether they’ll understand the imperative of not letting history repeat.Ultimately, these contemporary disputes may not provide a perfect opportunity for the Supreme Court to right that wrong. But if one thing’s for certain, it’s that neither the court nor the country can afford another election-altering ruling that takes such obvious partisan sides.Steven V. Mazie (@stevenmazie) is the author of “American Justice 2015: The Dramatic Tenth Term of the Roberts Court” and is the Supreme Court correspondent for The Economist. Stephen I. Vladeck (@steve_vladeck), a professor at the University of Texas School of Law, writes the One First weekly Supreme Court newsletter and is the author of “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow the New York Times Opinion section on Facebook, Instagram, TikTok, X and Threads. More

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      Why Judges in the Trump Jan. 6 Trial Need a Rocket Docket

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      If Donald Trump is the Republican nominee for president in 2024, it’s now clear he will likely still have criminal indictments hanging over his head on Election Day. It’s possible that his criminal liability for the events leading up to the Jan. 6 riot at the Capitol will remain unresolved.If that happens, voters will go to the polls without knowing whether one of the candidates in the current election is criminally responsible for trying to overturn the last one and subvert the will of the voters.Having an election under such circumstances is unthinkable. As Richard Nixon might have put it, voters have a right to know whether their candidate is a crook. It can be avoided, but it’s going to require the judiciary to take some extraordinary steps. And whether it happens will be decided by a relative handful of federal jurists — including a number appointed by Mr. Trump himself.Of the four criminal cases pending against Mr. Trump, the federal election interference prosecution in Washington currently has the best chance of going to trial before the 2024 presidential vote. The trial date is set for March 4. The Federal District Court judge overseeing the case, Tanya Chutkan, has been doing an admirable job of keeping it on track. But legal developments that are out of her hands now threaten to derail that schedule: Expected pretrial appeals could push the trial date past the November election.Mr. Trump has moved to dismiss the case on various grounds, including claims of presidential immunity and violation of the double jeopardy clause. For most pretrial motions, if the motion is denied, the defendant must wait to raise the issue again on appeal following conviction, if there is one.But these two motions fall into a narrow category of claims that usually entitle a defendant to an interlocutory appeal — in this case, an appeal before trial. Because these are claims of a constitutional right not to be tried at all, a post-conviction appeal is not an adequate remedy. By that time, the right has already been lost. A defendant is allowed to appeal such claims before the government may put him on trial.If, as expected, Judge Chutkan denies these motions, Mr. Trump will have a right to appeal to the U.S. Court of Appeals for the District of Columbia Circuit. (I expect the appeals will focus primarily on the immunity claim; the double jeopardy argument seems frivolous.) If he loses before a three-judge panel there, he can ask the full court to review that decision. If that fails, he can ask the Supreme Court to review the case. While all that goes on, the trial cannot proceed.In a typical case, an appeals process like this could easily take a year or more. In the first prosecution of Senator Bob Menendez of New Jersey, appeals over his claims of constitutional immunity under the speech or debate clause delayed the trial for about 18 months, even with the Supreme Court declining to take the case.In the Trump case, delays like that would push the trial well past November. If Mr. Trump wins the election, he would be able to shut down the two federal prosecutions and could probably have the state prosecutions at least postponed while he is in office.This appears to be the primary defense strategy in Mr. Trump’s criminal cases: delay as much as possible to put off any trials until after next November, when Mr. Trump hopes to be in a position to put an end to his legal problems.Having an election with Mr. Trump on the ballot and his criminal liability for Jan. 6 unresolved could spell disaster for the rule of law. It’s also completely avoidable if the courts — and in particularly, the judges who control the schedule — are willing to do what’s necessary: put the resolution of these motions on a fast track to ensure the case can go to trial as scheduled.Typically, the judicial and political calendars do not intersect. We expect judges to ignore political considerations and campaign schedules when making their decisions. But in times of political crisis, the federal judiciary cannot simply turn a blind eye. It must respond in a way that will enable the political system to address that crisis in a timely manner. This is one of those times.This is not a proposal for the courts to act in a partisan fashion. We don’t know whether Mr. Trump’s claim of immunity will be upheld. If it is rejected, we don’t know what the result of the trial will be. The outcome of the legal process is not the point. The point is that the country deserves to know that outcome before it chooses the next leader of the free world.There is precedent for this kind of judicial rapid response. During Watergate, the appeal of the order for President Nixon to turn over the subpoenaed White House tapes was resolved in only about two months — and that included arguments before and an opinion by the Supreme Court. During the 2000 presidential election, that court heard arguments in Bush v. Gore on Dec. 11 and the very next day issued its opinion shutting down the vote recount in Florida. The usually sedate appellate courts can move with dispatch when they want to.This case requires similar urgency. The initial appeals here could be easily heard and decided within a few weeks. Whether to grant a rehearing before the full Court of Appeals is discretionary, but if it does grant such a hearing, it needs to be equally speedy.After the District of Columbia Circuit rules, the losing party will seek Supreme Court review. If Mr. Trump loses the motions, my own hunch is that the Supreme Court may not take the case. In past disputes the justices have not shown much willingness to go out of their way to help Mr. Trump, and the last thing this embattled court needs right now is to wade into another controversy. But if the court does feel the need to weigh in on these novel constitutional issues, it also needs to move very swiftly.There’s no reason the entire process, including Supreme Court review, could not be completed by January. That would allow the trial date to stay on track if the motions are denied.There’s no concern about Mr. Trump being prejudiced by this relatively breakneck pace. He has vast financial and legal resources. The issues are already fully briefed before Judge Chutkan. The issues are novel — because nothing like Jan. 6 has happened before — but the questions are not extraordinarily complex; we need a rocket docket, but this is not rocket science.Some might argue that voters already have enough information about Mr. Trump’s actions and Jan. 6. But a criminal trial is different. In the aftermath of the 2020 election, Mr. Trump and his allies made repeated claims of voter fraud and a “rigged” election. Those claims uniformly failed when tested in court by the adversary system, where actual evidence is required and witnesses testify under oath. In an age of disinformation and fake news, courts remain the arena where facts still matter.Some voters will not accept the verdict of a criminal trial, no matter what the outcome. But for many it could be a critical data point when casting their ballot.It’s already not possible to have the trial completed before most of the presidential primaries; Super Tuesday, with over a dozen primaries in states and territories across the country, is March 5. Mr. Trump could have the nomination sewn up by the time the trial is over. But the trial could easily be concluded before the Republican convention in July, so the delegates could decide whether they really want to nominate a felon (if that is the outcome) to lead the country.A functioning democracy requires an informed electorate. It’s hard to imagine a more important piece of information for voters to have next November than whether a candidate is criminally culpable for trying to overturn the last presidential election.Our legal system can resolve this case expeditiously while still protecting the defendant’s rights, but the judiciary will have to step up and do its part to protect democracy.Randall. D. Eliason is the former chief of the fraud and public corruption section at the U.S. Attorney’s Office for the District of Columbia and teaches white-collar criminal law at George Washington University Law School. He blogs at Sidebarsblog.com.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Trump’s Lawyers Should Have Known Better

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      At a pivotal moment during one of the Watergate hearings in 1973, President Richard Nixon’s counsel, John Dean, asked a question that still resonates: “How in God’s name could so many lawyers get involved in something like this?”In the aftermath of Nixon’s resignation, the issue posed by Mr. Dean’s bracing question triggered a revolution in the legal profession. With so many lawyers involved in the Watergate criminal scheme, the American Bar Association started requiring law schools to provide ethics instruction or risk losing their accreditation. Exams began testing law students’ knowledge of intricate ethical rules.It wasn’t enough, if the past few weeks are any guide. In Fulton County, Ga., three of former President Donald Trump’s lawyers — Kenneth Chesebro, Sidney Powell and Jenna Ellis — have now pleaded guilty to crimes in service of Mr. Trump’s scheme to overturn the 2020 election and stay in the White House. All three have agreed to cooperate with prosecutors in the sprawling state RICO case against Mr. Trump. Two other Trump lawyers, Rudy Giuliani and John Eastman, still face criminal charges in the Georgia case. They, along with Mr. Chesebro and Ms. Powell, have also been identified as unindicted co-conspirators in the related federal prosecution of Mr. Trump, which will probably benefit from the guilty pleas in Georgia.The charges in the plea agreements vary, but the underlying story is the same: Fifty years after Watergate, the nation is once again confronted with a president who grossly abused the powers of his office, leading to criminal prosecutions. And once again, that abuse relied heavily on the involvement of lawyers. If Mr. Trump’s 2020 racket was “a coup in search of a legal theory,” as one federal judge put it, these lawyers provided the theory, and the phony facts to back it up. In doing so, they severely tarnished their profession.How in God’s name? The question is no less urgent now than in 1973. Lawyers hold immense power within the American system of government, which depends on their expertise, and their integrity, to function. Those who abuse this power pose an even greater threat to the country than some random Capitol rioter, because we count on them not only to draft and execute the laws but to follow them — to lead by example. Everyone should behave ethically, of course, but despite the “Better-Call-Saul” reputation of so many lawyers, there’s nothing wrong with holding the profession to a higher standard.One can view the guilty pleas by the Trump lawyers as evidence that the system is working as it should. They broke the law, they violated their ethical obligations, and now they are facing the music — not only in the courts, but from their chosen profession. Mr. Giuliani’s New York law license was suspended for his “demonstrably false and misleading statements” on Mr. Trump’s behalf; the District of Columbia’s bar association has recommended he lose his license there for good. Ms. Ellis was censured by Colorado state bar officials for violating the rule against “reckless, knowing, or intentional misrepresentations by attorneys,” and may face more severe consequences in light of her guilty plea.Mr. Eastman, a former law-school dean and one of the key legal architects of Mr. Trump’s bonkers plot to stay in office, is in the final days of his California disbarment trial for ethical violations. Officials there have argued that his conduct was “fundamentally dishonest and intended to obstruct the lawful certification” of President Biden’s victory.All of this is to the good. Careers are rightly ruined over such behavior. It is also the exception to the rule. In the real world, lawyers rarely face any consequences for their legal or ethical transgressions.“It’s a club,” said Stephen Gillers, a legal-ethics expert at New York University School of Law who has studied the profession’s opaque and feckless disciplinary system. “The judges who make the decisions are lawyers in robes. They tend to be sympathetic to the other lawyer.”And it’s hard to gloss over the fact that a disturbing number of experienced attorneys, some of whom once held prestigious posts in government and academia, were willing and eager to tell transparent lies and concoct laughable legal arguments to help a con man stay in the White House against the will of the American people.“Part of the reason Trump had to resort to attorneys to attempt the overthrow of the election was because the military was not available to him,” Norm Eisen, a senior fellow at the Brookings Institution, told me. Recalling the notorious Dec. 18, 2020, Oval Office meeting, during which the former president openly contemplated ordering the armed forces to seize voting machines, Mr. Eisen said, “It’s a testament to our military leaders, to our military culture, that that door was closed.”The same cannot be said, alas, for America’s legal culture. It’s easy enough to understand why Mr. Trump, who was mentored by the ruthless mob lawyer Roy Cohn, would seek out lawyers who were willing to do whatever he asked, legality and ethics be damned. The more troubling question is how he was able to find so many takers.The obvious answer is the eternal seduction of money and power. Laurence Tribe, one of the nation’s foremost constitutional scholars, fell back on that explanation for the choices made by Mr. Chesebro, his former student, referring to him as a “moral chameleon” who was engaged in deeply dishonest lawyering.Related to this is the intense pressure to satisfy the demands of powerful clients, even if it means bringing lawsuits so frivolous that they can result in legal sanctions, as many of Mr. Trump’s lawyers have learned the hard way.There is an important caveat here: Many government and private lawyers in 2020, faced with Mr. Trump’s illegal and unconstitutional demands, resisted the temptation and behaved honorably. From the White House counsel’s office to the Justice Department to top law firms, some key attorneys held the line.“What was one of the determinative factors in Trump’s coup failing?” asked Ian Bassin, executive director of the advocacy group Protect Democracy. “Responsible lawyers refused to participate.”That explains why many of the lawyers caught up in Mr. Trump’s outrageous plot were not what you might call the cream of the crop. They were grifters, shysters, hair-dye-leakers, tapped primarily because Mr. Trump had trouble finding more serious people to make his case. And yet there were still those with more respectable backgrounds, like Mr. Chesebro, who chose to sell their honor to a man devoid of it, and who they should have known wasn’t going to pay them anyway. In the end, they were all smeared with the humiliation of having filed meritless, fact-free cases. With one minor exception, federal and state courts rejected every lawsuit brought on behalf of Mr. Trump.To a degree many people didn’t fully realize until the past few years, the functioning of American government depends on honor. “There are no guarantees in a democracy,” Mr. Eisen said. “Our rule of law is a central part of what defines our democratic system. Ultimately it comes down to whether the majority of people will do the right thing.”When it comes to lawyers, the choices of just a few can make all the difference.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      The Trump Documents Case Puts the Justice System on Trial

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      The former president’s efforts to defend against multiple felony counts by discrediting law enforcement pose a grave challenge to democracy.Former President Donald J. Trump has a lot at stake in the federal criminal case lodged against him. He could, in theory, go to prison for years. But if he winds up in the dock in front of a jury, it is no exaggeration to suggest that American justice will be on trial as well.History’s first federal indictment against a former president poses one of the gravest challenges to democracy the country has ever faced. It represents either a validation of the rule-of-law principle that even the most powerful face accountability for their actions or the moment when a vast swath of the public becomes convinced that the system has been irredeemably corrupted by partisanship.Mr. Trump, his allies and even some of his Republican rivals have embarked on a strategy to encourage the latter view, arguing that law enforcement has been hijacked by President Biden and the Democrats to take out his strongest opponent for re-election next year. Few if any of them bothered to wait to read the indictment before backing Mr. Trump’s all-caps assertion that it was merely part of the “GREATEST WITCH HUNT OF ALL TIME.” It is now an article of faith, a default tactic or both.Jack Smith, the special counsel, and his prosecutors knew that defense was coming and have labored to avoid any hint of political motivation with a by-the-book approach, securing the assent of judges and grand jurors along the way. Moreover, their indictment laid out a damning series of facts based on security camera video, text messages and testimony from within Mr. Trump’s own team; even some who have defended him in the past say it will be harder to brush aside the evidence in a courtroom than in the court of public opinion.In the public arena, though, it may be a one-sided fight. Mr. Trump and his allies can scream as loudly as they can that the system is unfair, but prosecutors are bound by rules limiting how much they can say in response. To the extent that Democrats defend prosecutors, it may only buttress the point Mr. Trump is trying to make to the audience he is trying to reach.“I think the verdict on democracy ultimately comes down to Republican leaders and Republican voters,” said David Jolly, a former Republican congressman from Florida who left the party during the Trump presidency. “Their current weaponization narrative is dangerous and destabilizing, but seems to reflect the party’s early consensus. If they don’t pivot soon to due process and faith in the system, I think we could have very dark days ahead. I do worry.”Mr. Trump has attacked the Justice Department and Jack Smith, the special counsel in the case, calling him a lunatic.Kenny Holston/The New York TimesPolls suggest that Mr. Trump has made headway in persuading at least his own supporters that any and all allegations against him are just political. After the Manhattan district attorney, Alvin L. Bragg, brought state charges against him related to hush money paid to an adult film actress, the former president’s support among Republicans rose, rather than fell.While 60 percent of all adults surveyed by CNN afterward approved of the charges, 76 percent agreed that politics played a role in the prosecution. As for the effect on America’s system, 31 percent said the indictment strengthened democracy, while 31 percent said it weakened it.All of which indicates that the system’s credibility is on the line in a way it has not been before. Many have criticized American justice over the years for systemic racism, excessive punishment, mistreatment of women subjected to assault or other issues, but they did not command the bullhorn of the presidency. When past presidents like Richard M. Nixon or Bill Clinton got in trouble, they defended themselves aggressively, but did not call the whole system into question.“In 1972 to 1974, the Republicans participated as good-faith members of the process,” said Garrett Graff, the author of “Watergate: A New History,” published last year. “They saw their roles as legislators first and Republicans second. They definitely were skeptical” initially of the allegations against Nixon, “but they followed the facts where they led.”Even Nixon’s sharp-tongued vice president, Spiro T. Agnew, was careful about disparaging the justice system broadly. “Agnew, of course, was Nixon’s attack dog, but mainly against the press, not the F.B.I. or the special prosecutor,” Mr. Graff said.Mr. Trump, on the other hand, is holding nothing back as he assails “the ‘Thugs’ from the Department of Injustice” and calls Mr. Smith a “deranged lunatic.” Republicans like Representative Andy Biggs of Arizona have called for dismantling the F.B.I. “We have now reached a war phase,” he wrote on Twitter on Friday. “Eye for an eye.” Elon Musk said the authorities were showing “far higher interest in pursuing Trump compared to other people in politics.”Several of Mr. Trump’s competitors for the Republican presidential nomination joined in. Former Vice President Mike Pence compared the indictment to leaders of “third-world nations” who “use a criminal justice system in their country against their predecessors.” Gov. Ron DeSantis of Florida said “the weaponization of federal law enforcement represents a mortal threat to a free society.”The former president’s defenders generally do not address the substance of the 37 counts against him, but instead make a case of selective prosecution that resonates powerfully among many Republicans: What about Mr. Biden? What about Hunter Biden? What about Hillary Clinton?They point to the origin of the Russia investigation against Mr. Trump, citing the recent report by the special counsel John H. Durham that harshly criticized the F.B.I. for its handling of the case even though it did not come up with any new blockbuster revelations of politically motivated misconduct nor result in the conviction of any major figure.They point to Republican congressional inquiries that they say hint at wrongdoing by the Bidens even without confirmation. They point to the continuing federal criminal investigation of the president’s son Hunter, suggesting it has been impeded. And they point to the fact that the president himself is also under investigation over retaining classified documents yet not charged.The differences between the cases, however, are stark, making apples-to-apples comparisons complicated. In the documents investigation, for instance, Mr. Biden’s advisers by all accounts so far returned the papers to the authorities promptly after discovering them. Mr. Pence did the same after a voluntary search found that the former vice president had kept classified documents, and he was recently cleared by the Justice Department because there was no evidence of willful violations of the law.Mr. Trump, by contrast, refused to hand over all the documents he had taken from the White House — even after being subpoenaed for them. According to the indictment, he orchestrated an expansive scheme to hide papers and feed lies to authorities seeking them. On two occasions, the indictment charged, Mr. Trump showed secret documents to people without security clearance and indicated that he knew he was not supposed to.As for seeking to weaponize the Justice Department, there was ample evidence that Mr. Trump sought to do just that while in office. He openly and aggressively pushed his attorneys general to prosecute his perceived enemies and drop cases against his friends and allies, making no pretense that he was seeking equal and independent justice. His friends-and-family approach to his pardon power extended clemency to associates and those who had access to him through them.He chipped away at so many norms during his four years in office that it is no wonder that institutions have faced credibility problems. Indeed, he has made clear that he does not respect the boundaries that constrained other presidents. Since leaving office, he has called for “termination” of the Constitution so that he could be returned to power without waiting for another election and vowed that he would devote a second term to “retribution” against his foes while pardoning supporters who stormed the Capitol on Jan. 6, 2021, to stop the transfer of power.There is no known evidence, on the other hand, that Mr. Biden has played any role in the investigations against Mr. Trump. Unlike the voluble Mr. Trump, he has made a point of not even publicly commenting on individual prosecutions, saying he respects the autonomy of the Justice Department.Attorney General Merrick B. Garland has been sensitive to the matter of perception and sought to insulate the inquiries by appointing Mr. Smith, a career prosecutor who is not registered with either political party, as a special counsel with a guarantee of independence absent manifest wrongdoing on his part.But that was never going to convince Mr. Trump or his most fervent supporters of the fairness of the process. At bottom, the former president and front-runner for his party’s nomination to be the next president is being charged by a prosecutor appointed by an appointee of the man he hopes to beat. It is a recipe for distrust, especially when stoked by a defendant who has mastered the politics of grievance and victimhood.Will that result in lasting damage to democracy? Even some who support charging Mr. Trump fear that it may. Still, some who have studied politically fraught investigations counseled patience. There will be fireworks. Many will doubt the credibility of the system. But in the end, they said, the system will survive just as it has for more than two centuries.“It’s messy and uncomfortable for the generation living through it, but the system is durable enough to win out,” said Ken Gormley, the president of Duquesne University and the author of books on Watergate and the Clinton investigations. “As painful as the next year is likely to be as the criminal justice system grinds forward toward a fair verdict in the Mar-a-Lago documents case — whatever that outcome may be — we are fortunate that our predecessors have spent 234 years shoring up the bulwark.” More

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      What Watergate Highlights About the Jan. 6 Hearings

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      On the anniversary of the June 17, 1972, break-in, alumni of the hearings gather for a reunion. They had it easier than the Jan. 6 committee, they say.WASHINGTON — In the grandly marbled space of the Russell Senate Office Building known as the Kennedy Caucus Room, where a bipartisan select committee held nationally televised hearings to investigate the burglary of the Democratic National Committee headquarters at the Watergate a half-century ago, alumni of that inquiry gathered Friday evening to reminisce — and issue warnings.Their remarks, somber and theatrical as the room itself, were pitched to a present-day investigative body: the House select committee probing the Jan. 6 attack on the Capitol.“Some things change, and some things remain the same,” said a host of the gathering, Rufus L. Edmisten, the deputy chief counsel for the Senate select committee that investigated Watergate. “What hasn’t changed between Watergate and Jan. 6 is how money has stolen our democracy.”The Watergate inquiry, a more than two-year combined effort on the part of both Senate and House committees, the special prosecutor’s office, a federal grand jury and the media, has been widely hailed as an investigatory gold standard and potential model for the Jan. 6 committee.It is seen as a triumph of assiduous digging and partisan-free statesmanship with made-for-Hollywood heroes: There was the heavy-jowled Senate Watergate Committee chairman, Sam Ervin of North Carolina; John Dean, President Richard M. Nixon’s former counsel, an owlish figure whose riveting testimony thoroughly implicated the president in covering up the Watergate break-in that took place in the small hours of June 17, 1972; and Bob Woodward and Carl Bernstein, the two Washington Post reporters who broke the story and became household names.But the committee’s work today faces hurdles that the Watergate investigators did not.The present-day panel is racing the clock, attempting to uncover all that it can with the recognition that Republicans may win back the House majority and pull the plug on the committee’s endeavors come January. Nixon was defiant, but not at the level of former President Donald J. Trump. And truth was not up for debate in 1973.A screen above the Jan. 6 committee showing former President Donald J. Trump and his family during Thursday’s hearing.Doug Mills/The New York Times“What we investigated was understood to be substantive and real,” said Gordon Freedman, who served as a staffer on Mr. Ervin’s committee. “We now live in an era where the truth has been eroded as a standard.”Watergate investigators also had the benefit of the secret recordings made by Nixon in the Oval Office. By contrast, Mr. Trump did not tape his private conversations and he shredded White House documents while in office. Several of his former aides have defied subpoenas issued by the Jan. 6 committee, some justifying their intransigence through “executive privilege,” a phrase that entered the lexicon in the Nixon era. But none of Nixon’s top advisers invoked it and instead elected to testify before Mr. Ervin’s committee — a reflection of a Republican Party far different from the one today.“It took a lot of guts for seven Republicans on the Judiciary Committee and three conservative Southern Democrats to do the right thing and vote to impeach Nixon,” said Elizabeth Holtzman, who 50 years after being elected to Congress and serving on the House Judiciary Committee is running for Congress again. “They didn’t do it to agree with me. They did it because they followed the truth. And they did it, really, because the American public forced them to.”The Themes of the Jan. 6 House Committee HearingsMaking a Case Against Trump: The committee appears to be laying out a road map for prosecutors to indict former President Donald J. Trump. But the path to any trial is uncertain.Day One: During the first hearing, the panel presented a gripping story with a sprawling cast of characters, but only three main players: Mr. Trump, the Proud Boys and a Capitol Police officer.Day Two: In its second hearing, the committee showed how Mr. Trump ignored aides and advisers in declaring victory prematurely and relentlessly pressing claims of fraud he was told were wrong.Day Three: Mr. Trump pressured Vice President Mike Pence to go along with a plan to overturn his loss even after he was told it was illegal, according to testimony laid out by the panel during the third hearing.Nixon of course did use executive privilege to avoid handing over what would prove to be some of the most damning taped conversations. Only after Leon Jaworski, the Watergate special prosecutor, prevailed in the Supreme Court did Nixon acquiesce, resulting in his resignation on Aug. 9, 1974.Mr. Jaworski, I should note, was my grandfather. I was two weeks shy of 15 when he was appointed by Nixon on Nov. 1, 1973, after Archibald Cox was fired on Nixon’s orders in what became known as the Saturday Night Massacre.As my grandfather would later maintain in his Watergate memoir, Nixon’s resignation proved that “no one — absolutely no one — is above the law.” That assessment deserves some qualification, however.Nixon was never indicted or much less convicted of any Watergate-related crimes. Against the wishes of the federal grand jury empaneled in the wake of the burglary, my grandfather declined to bring criminal charges against the president, and later signaled to the Ford administration that he would not challenge a presidential pardon.Nixon’s fate was an ignominious one, my grandfather insisted, saying, “A pardon isn’t just a beautiful document to frame and hand-hang on the wall.”Still, Nixon was free to write a best-selling memoir and to remain something of a Republican grandee all the way up to his death nearly two decades after he resigned in disgrace. Mr. Trump, meanwhile, remains the most influential member of his party after two impeachments and an electoral defeat he contests to this day.Despite the efforts of my grandfather and his investigators, and those of the media and Watergate committees, basic questions about the scandal remain unanswered. It is still unclear what, if any, advance knowledge Nixon had of the break-in. Though the president is on tape approving hush money payments to the defendants, it remains unknown whether he personally played a role in raising the funds. For that matter, the degree to which H.R. Haldeman, the White House chief of staff, and Attorney General John Mitchell directed illegal activities on a day-to-day basis has not come to light.Such questions, of course, are analogous to those currently faced by the Jan. 6 committee.Richard Ben-Veniste, one of my grandfather’s top deputies who was at the reunion, said he was asked by the Jan. 6 committee to offer advice. “Jan. 6 was the Saturday Night Massacre on steroids,” he said. “It was far more dangerous than what we thought was unthinkable: the appearance of a coup d’état when raw power replaced the rule of law. Nixon, for all his criminality and authoritarian sensibilities, possessed a sense of shame.”The continuum that stretches from Watergate to the present features a few ironies. During and after the Nixon scandals, congressional checks on executive power were enacted, including the War Powers Act of 1973 and modifications to the Federal Election Campaign Act. Those legislative initiatives led to charges of overreach and a counter-movement by some Republicans who wanted to restore power to the executive branch.One of them, a former Nixon White House aide named Dick Cheney, was elected to Congress four years after Nixon’s resignation. Mr. Cheney, of course, was vice president during the George W. Bush administration and his daughter, Liz Cheney, is the vice chair of the Jan. 6 committee who has sharply criticized Mr. Trump as an abuser of executive power.An additional irony following Nixon’s secretive presidency was the push for greater transparency in government: more sunlight, less smoke-filled rooms. But that effort has not necessarily translated into more efficient governance. To take a recent example, House conservatives led by Representative Marjorie Taylor Greene, the far-right Georgia freshman who was born three months before Nixon’s resignation, have used the virtue of legislative transparency as an argument for slowing the House Democrats’ agenda by insisting on roll call votes for everything on the legislative calendar.At the reunion, Representative Deborah Ross, a North Carolina Democrat, was mingling among the guests as she recalled listening to the Senate Watergate hearings at the age of 10 while driving cross-country in her family’s station wagon. Noting the coincidence of the Watergate anniversary taking place in the middle of the Jan. 6 committee hearings, Ms. Ross said that “the obvious thing the two scandals had in common was that we’re talking about two men who wanted to hang onto power no matter what. The irony is that Nixon would have won in 1972 anyway, if he hadn’t been so paranoid about the Democrats.”“And if not for the tapes!” chimed in Judi Dash, whose late father, Sam Dash, served as the chief counsel for the Senate Watergate Committee.Two former members of the Watergate Special Prosecution Force, Jill Wine-Banks and George Frampton, were at the reunion discussing the work of the Jan. 6 committee over cocktails. “I was very skeptical at first about the committee only televising six or eight hearings,” Ms. Wine-Banks said. “But I think they’ve done an excellent job, even without having the narrator we had, John Dean.”Turning to Mr. Frampton, she said, “For all that Nixon did, I’m not sure I ever felt democracy was in danger like it is now. Did you?”“Oh, certainly a little bit,” Frampton said. More

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      G. Gordon Liddy, Mastermind Behind Watergate Burglary, Dies at 90

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      Unlike other defendants in the scandal that brought down Richard Nixon, Mr. Liddy refused to testify and drew the longest prison term.G. Gordon Liddy, a cloak-and-dagger lawyer who masterminded dirty tricks for the White House and concocted the bungled burglary that led to the Watergate scandal and the resignation of President Richard M. Nixon in 1974, died on Tuesday in Mount Vernon, Va. He was 90. His death, at the home of his daughter Alexandra Liddy Bourne, was confirmed by his son Thomas P. Liddy, who said that his father had Parkinson’s disease and had been in declining health.Decades after Watergate entered the lexicon, Mr. Liddy was still an enigma in the cast of characters who fell from grace with the 37th president — to some a patriot who went silently to prison refusing to betray his comrades, to others a zealot who cashed in on bogus celebrity to become an author and syndicated talk show host.As a leader of a White House “plumbers” unit set up to plug information leaks, and then as a strategist for the president’s re-election campaign, Mr. Liddy helped devise plots to discredit Nixon “enemies” and to disrupt the 1972 Democratic National Convention. Most were far-fetched — bizarre kidnappings, acts of sabotage, traps using prostitutes, even an assassination — and were never carried out.But Mr. Liddy, a former F.B.I. agent, and E. Howard Hunt, a former C.I.A. agent, engineered two break-ins at the Democratic National Committee offices in the Watergate complex in Washington. On May 28, 1972, as Mr. Liddy and Mr. Hunt stood by, six Cuban expatriates and James W. McCord Jr., a Nixon campaign security official, went in, planted bugs, photographed documents and got away cleanly.A few weeks later, on June 17, four Cubans and Mr. McCord, wearing surgical gloves and carrying walkie-talkies, returned to the scene and were caught by the police. Mr. Liddy and Mr. Hunt, running the operation from a Watergate hotel room, fled but were soon arrested and indicted on charges of burglary, wiretapping and conspiracy.In the context of 1972, with Mr. Nixon’s triumphal visit to China and a steam-rolling presidential campaign that soon crushed the Democrat, Senator George S. McGovern, the Watergate case looked inconsequential at first. Mr. Nixon’s press secretary, Ron Ziegler, dismissed it as a “third-rate burglary.”But it deepened a White House cover-up that had begun in 1971, when Mr. Liddy and Mr. Hunt broke into the office of the psychiatrist of Daniel Ellsberg, who leaked the Pentagon Papers to The New York Times, looking for damaging information on him. Over the next two years, the cover-up unraveled under pressure of investigations, trials, hearings and headlines into the worst political scandal — and the first resignation by a sitting president — in the nation’s history.G. Gordon Liddy after his release from prison in Danbury, Conn., on Sept. 7, 1977.Fred R. Conrad/The New York TimesUnlike the other Watergate defendants, Mr. Liddy refused to testify about his activities for the White House or the Committee to Re-elect the President, and drew the longest term among those who went to prison. He was sentenced by Judge John J. Sirica to 6 to 20 years, but served only 52 months. President Jimmy Carter commuted his term in 1977.“I have lived as I believed I ought to have lived,” Mr. Liddy, a small dapper man with a baldish pate and a brushy mustache, told reporters after his release. He said he had no regrets and would do it again. “When the prince approaches his lieutenant, the proper response of the lieutenant to the prince is, ‘Fiat voluntas tua,’” he said, using the Latin of the Lord’s Prayer for “Thy will be done.”Disbarred from law practice and in debt for $300,000, mostly for legal fees, Mr. Liddy began a new career as a writer. His first book, “Out of Control,” (1979) was a spy thriller. He later wrote another novel, “The Monkey Handlers” (1990), and a nonfiction book, “When I Was a Kid, This Was a Free Country” (2002). He also co-wrote a guide to fighting terrorism, “Fight Back! Tackling Terrorism, Liddy Style” (2006), and produced many articles on politics, taxes, health and other matters.In 1980, he broke his silence on Watergate with his autobiography, “Will.” The reviews were mixed, but it became a best seller. After years of revelations by other Watergate conspirators, there was little new in it about the scandal, but critics said his account of prison life was graphic. A television movie based on the book was aired in 1982 by NBC.Mr. Liddy found himself in demand on the college-lecture circuit. In 1982 he teamed with Timothy Leary, the 1960s LSD guru, for campus debates that were edited into a documentary film, “Return Engagement.” The title referred to an encounter in 1966, when Mr. Liddy, as a prosecutor in Dutchess County, N.Y., joined a raid on a drug cult in which Mr. Leary was arrested.In the 1980s, Mr. Liddy dabbled in acting, appearing on “Miami Vice” and in other television and film roles. But he was better known later as a syndicated talk-radio host with a right-wing agenda. “The G. Gordon Liddy Show,” begun in 1992, was carried on hundreds of stations by Viacom and later Radio America, with satellite hookups and internet streaming. It ran until his retirement in 2012. He lived in Fort Washington, Md.Mr. Liddy, who promoted nutritional supplements and exercised, was still trim in his 70s. He made parachute jumps, took motorcycle trips, collected guns, played a piano and sang lieder. His website showed him craggy-faced with head held high, an American flag and the Capitol dome in the background.George Gordon Battle Liddy was born on Nov. 30, 1930, in Brooklyn to Sylvester J. and Maria (Abbaticchio) Liddy. He grew up in Hoboken, N.J., a fearful boy with respiratory problems who learned to steel himself with tests of will power. He lifted weights, ran and, as he recalled, held his hand over a flame as an act of self-discipline. He said he once ate a rat to overcome a repulsion, and decapitated chickens for a neighbor until he could kill like a soldier, “efficiently and without emotion or thought.”Like his father, a lawyer, Gordon attended all-male St. Benedict’s Prep School in Newark and Fordham University in the Bronx. After graduating from Fordham in 1952, he took an Army commission with hopes of fighting in Korea, but was assigned to an antiaircraft radar unit in Brooklyn. In 1954, he returned to Fordham and earned a law degree three years later.In 1957, he married Frances Ann Purcell. The couple had five children. Along with his son Thomas and daughter Alexandra, he is survived by another daughter, Grace Liddy; two other sons, James Liddy and Raymond J. Liddy; a sister, Margaret McDermott; 12 grandchildren and two great-grandchildren. Mr. Liddy’s wife died in 2010.From 1957 to 1962, Mr. Liddy was an F.B.I. field agent in Indianapolis, Gary, Ind., and Denver, and a supervisor of crime records in Washington. He then worked in patent law for his father’s firm in New York for four years. He joined the Dutchess County district attorney’s office as an assistant prosecutor in 1966.In 1968, he began a dizzying, three-year rise from obscurity in Poughkeepsie to the White House. Challenging Hamilton Fish Jr. in a primary for the Republican nomination for Congress in what was then New York’s 28th District, he fell short, but his consolation prize was to take charge of the Nixon campaign in the mid-Hudson Valley, which the president won handily.His reward was a job at the Treasury Department in Washington as a special assistant for narcotics and gun control. He helped develop the sky marshal program to counteract hijackers. Impressed, Egil Krogh, a deputy assistant to the president, recommended him in 1971 to John N. Mitchell, the attorney general, who recommended him to John D. Ehrlichman, the president’s domestic policy adviser.Mr. Nixon, furious over the disclosure of the Pentagon Papers, had directed Mr. Ehrlichman to set up the “plumbers” to plug leaks and punish opponents. Among other operations, Mr. Liddy and Mr. Hunt, who were in charge of the unit, broke into the Beverly Hills office of Daniel Ellsberg’s psychiatrist, Dr. Lewis Fielding, for material to discredit the military analyst. They found none.When the group was disbanded in 1971, Mr. Liddy went to work for the Nixon campaign. His title was general counsel, but his role was to plot more dirty tricks under a code name, “Gemstone.” They included kidnapping radicals who might disrupt the Republican convention, sabotaging the air-conditioning at the Democratic convention in Miami, hiring prostitutes to entrap Democrats with hidden cameras, and killing the syndicated columnist Jack Anderson, whom Mr. Liddy viewed as a national security risk.But only the Watergate burglaries were carried out. It was a piece of tape over the lock on a garage-level door that tripped up the burglars. A security guard called the police, and a crackling walkie-talkie in Mr. Liddy’s hotel room told the tale:“It looks like … guns!” one burglar whispered. “They’ve got guns. It’s trouble.”The team’s lookout in an apartment across the street, broke in: “Now I can see our people. They’ve got their hands up. Must be the cops. More cops now. Uniforms … ”“They got us!”It was all over. Mr. Liddy and Mr. Hunt went home. It was 3 a.m. when Mr. Liddy got in, and his wife awoke. “Anything wrong?” she asked.“There was trouble,” he said. “Some people got caught. I’ll probably be going to jail.”Neil Vigdor contributed reporting, and Jack Begg contributed research. More