Court Creates False Equivalency

July 19, 2024

Forty years ago there was Nixon v. Fitzgerald.  Then this year along came Trump v. United States. The two proceedings are now linked forever, and not for the better.

In Nixon v. Fitzgerald, the Supreme Court granted the president absolute immunity from liability for civil damages arising from any official action taken while in office.

In Trump v. United States, the court extended the immunity to cover criminal charges for any official actions and a wide swath of unofficial actions as well.

The Roberts court of today references Nixon over and over in its ruling on Trump.  The two cases certainly have basic similarities. Both involve presidents.  Both involve actions they took, or at minimum tacitly approved.  Both landed on a Supreme Court anxious to uphold the separation of powers between branches of government.  And a court hell-bent on seeing to it that there be no further incursions on presidential prerogatives.

All this has obscured the fact that two cases differ markedly in the particulars. And it’s not just that one is a civil matter, and the other is criminal in nature. By using the logic of one as the primary precedent for its decision in the other, the court has made a legal leap to shield anything and everything that happens in the Oval Office.

Nixon v. Fitzgerald was decided in 1982 but it goes all the way back to 1968 when a whistleblower by the name of A. Ernest Fitzgerald, a civilian working for the Air Force, broke the news to Congress that there were cost overruns in the development of the C5A cargo plane.  Lyndon Johnson was president at the time but Richard Nixon was soon to take over.

It was on Nixon’s watch that Fitzgerald’s job was conveniently eliminated in an Air Force reorganization.  The facts are disputed as to whether Nixon himself was directly involved in the decision, although several of his aides certainly were.  One thing led to another, and Fitzgerald eventually sued.  Given his tangential role. Nixon’s name wasn’t added to the lawsuit until a full eight years later.

Even so, the court worried that the president could become “an easily identifiable target” of lawsuits filed by anyone harmed by a government action.  It suggested that “diversion of [the president’s] energies by concern with private lawsuits” would:

• “Raise unique risks to the effective functioning of government.”
• Impede “the maximum ability to deal fearlessly and impartially with” the duties of his office.
• “Frequently could distract [him] from his public duties.”

Those concerns resulted in immunity for the president in civil matters.  While Trump’s case is of course a criminal matter, the Roberts court quotes liberally although not always literally from Nixon.

For one example, one of the court’s stated objectives in Trump to ensure that “the president can undertake his constitutionally designated functions effectively, free from undue pressures or distortions” was said to have originated with the Nixon decision.  For some reason, however, that phraseology is nowhere to be found in Nixon.

Regardless of whether the words have been quoted properly in Trump, the use of them to justify immunity for Trump made sense to six justices but to a common man they are a drastic reach.  

Nixon was a disinterested party, or at most a barely interested party, when it came to Ernest Fitzgerald.  His aides thought they were acting in the best interests of the government, if not the public, in ousting someone they regarded as a disloyal employee.  They might not have made the best decision but regardless Nixon didn’t initiate the action and stood to gain nothing from it.

Trump on the other hand is accused of being the initiator and would have been the obvious beneficiary if the 2020 election results had been overturned.  In contrast to Nixon, the self-interest and the stakes were huge.  Trump had four more years in the White House riding on the outcome.

His actions weren’t inhibited at all, as the court fears would happen, “by needless worry as to the possibility of damages.”  And it borders on laughable that the court should seek to protect him from undue pressures and distortions, when the central point of the indictment against him is that he was the perpetrator of the pressure and distortions.

While the court utilizes the similarities between Trump and Nixon to establish the distinction between the president’s official and unofficial acts, as was discussed in this space last week, it is not troubled a whit by the differences between the two cases.

We’ve now learned that it’s not beyond the law to use the language of one proceeding to permit much or all of what happened in the second, even when the circumstances and what’s at stake are so different.  Not beyond the law, and yet well short of reason.