Back then, in a case connected to the deepening Watergate scandal , then-President Richard Nixon claimed that all of a president’s conversations during his term in office were confidential and could not be subpoenaed into evidence by a court, even if they contained information relevant to a criminal prosecution.
So far, the court has acted more slowly in Trump’s case, but may yet heed its own words of urgency from the past.
A slowly unfolding inquiry
By 1974, the Watergate scandal had dragged on for almost two years, tearing the country apart . It was sparked by a burglary of Democratic Party headquarters in Washington’s Watergate Complex in May 1972 and mounting evidence that Nixon had orchestrated a cover-up .
Based on evidence from logs of visits to the White House, Jaworski identified 64 additional tapes that likely contained relevant conversations and persuaded Sirica to subpoena them. Nixon’s team appealed to the U.S. Court of Appeals. On May 24, 1974, Jaworski filed a request for certiorari before judgment , a rarely used legal mechanism asking the Supreme Court to get involved before the appeals court heard the case.
On May 31, six justices, including two Nixon appointees, granted Jaworski’s request and set oral arguments for July 8. One justice, William Rehnquist, recused himself because he had worked in Nixon’s Justice Department before being appointed to the court.
After oral arguments, all eight justices rejected Nixon’s claim of absolute executive privilege . They ruled there was probable cause that the subpoenaed tapes were relevant to a criminal case, found no indication that they would compromise national security, and were reassured that a judge would review them privately before divulging their contents.
The Burger court brimmed with big egos and petty rivalries . Nevertheless, all seven of its unrecused associate justices quickly joined the chief’s opinion, which was released on July 24. No additional concurring opinions muddied the legal waters.
Nixon had hoped that a divided court or an ambiguous ruling would allow further delay. But a unanimous ruling, penned by the chief justice he had nominated, convinced him to comply. “The problem was not just that we had lost,” he wrote in his memoirs, “ but we had lost so decisively .”
Two days after the court’s ruling, on July 26, 1974, the House Judiciary Committee approved an article of impeachment against Nixon. One of its key pieces of evidence was one of the recordings the Supreme Court had ordered released. Called the “ smoking gun ,” it recorded Nixon directing his chief of staff to order the CIA to prevent the FBI from investigating the burglary. On Aug. 8, Nixon announced to the nation that he would resign the following day .
The Supreme Court had moved quickly, accepting the case at the earliest point it could have. That happened on May 31, with oral arguments 38 days later, on July 8. The court issued its ruling 16 days after that, on July 24. And just over two weeks later, Nixon was no longer president.
They scheduled oral arguments for 58 days later, on April 25. That is already more time than had elapsed between the Supreme Court accepting and deciding the case in 1974. And 1974 was not a year with a presidential election .
The importance of speed
I am not the only one who believes the Trump case is of similar – if not greater – importance to democracy.
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