Trump and Jack Smith are both citing Richard Nixon. Here’s why.

The Supreme Court is weighing whether to fast-track arguments about presidential immunity relating to the indictment of former president Donald Trump over his actions during the Jan. 6, 2021, insurrection. Special counsel Jack Smith has argued that Trump’s presidential immunity does not extend to the criminal justice system; Trump’s legal team, in a lower-court filing, has argued that it does.

And both sides are citing Richard M. Nixon.

Smith and Trump’s lawyers have both referred to Supreme Court rulings concerning the 37th president to bolster their arguments. But they’re citing two very different cases with very different outcomes.

The special counsel is pointing to the better-known of the two, United States v. Nixon, the 1974 decision requiring Nixon to comply with a criminal subpoena for his White House tapes in the Watergate scandal. In April 1974, special counsel Leon Jaworski, charged with investigating the 1972 Watergate break-in, subpoenaed Nixon’s tapes and other documents, believing they could contain evidence against the seven men already indicted.

Nixon stalled, then released heavily edited transcripts of the tapes. Jaworski said that wasn’t good enough, and a federal district court agreed. Both the special counsel and Nixon appealed directly to the Supreme Court, which heard their arguments on July 8, 1974.

Nixon’s attorneys threw everything they could at the wall in the hopes something would stick. The Supreme Court didn’t even have jurisdiction, they claimed, because this was a dispute between two parties in the executive branch. Plus, there were two issues not spelled out but alluded to in the Constitution, those of executive privilege and presidential immunity. The former implied the president’s private communications in performance of his duties could not be made public, they said; the latter implied the president was immune from all judicial processes.

The justices didn’t buy any of it. Two weeks later, they ruled against Nixon. “(A)n absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances” does not exist, the court ruled.

Nixon handed over the tapes, which included damning evidence of his involvement in a coverup, and soon resigned.

Trump’s legal team is invoking the lesser-known case of Nixon v. Fitzgerald, which in 1982 gave the president absolute immunity from at least one type of judicial process.

It all started with a man named A. Ernest Fitzgerald, an engineer working for the U.S. Air Force. Though a World War II Navy veteran, he was a civilian in his Air Force role, acting as something like an efficiency expert to improve workplace functions and keep spending under control.

In 1968, when Lyndon B. Johnson was still president, Fitzgerald testified before Congress — against the wishes of his Air Force colleagues — to report rampant overspending on a transport plane program to the tune of $2 billion and the Pentagon’s efforts to hide it from the public. He testified again the next year, this time with Nixon as commander in chief. Fitzgerald was fired in 1970. He sued and was eventually reinstated, a cycle he and the military would continue for decades. (His boss once called him “the most hated person in the Air Force.”)

Then, in 1978, tapes from Nixon’s time in the White House were released, revealing that the president himself had ordered Fitzgerald’s firing, telling aides to “get rid of that son of a (expletive).”

This time, Fitzgerald sued Nixon personally. Nixon’s team argued that a sitting president was immune from personal damage lawsuits, the same way judges and prosecutors are. Judges and prosecutors can be punished for misconduct, but those are separate procedures from a civil suit filed by an aggrieved party. For example, an alleged crime victim cannot sue a prosecutor for declining to prosecute the crime’s alleged perpetrator.

Even though Nixon settled with Fitzgerald for $144,000, the issue of the president’s immunity in the case still made it to the Supreme Court. In 1982, the court agreed with Nixon in a 5-4 decision. “Because of the singular importance of the President’s duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government,” the court ruled. If a president acting within the “outer perimeter” of his job description could get him sued by anyone at all — say, the mother of a U.S. soldier or a commercial pilot delayed by Air Force One — then he would be hindered from carrying out his duties for fear of lawsuits.

The Supreme Court narrowed the president’s absolute immunity in the 1990s, ruling in Clinton v. Jones that a sitting president could still be sued for alleged misconduct that occurred before he was president.

But back to the Fitzgerald case. In its ruling, the court noted that, as with judges and prosecutors accused of misconduct, there are other methods to check a president’s power besides lawsuits. “There is no cause for concern that the President will be above the law, since impeachment and other processes impose checks on his powers,” the court ruled, citing other checks such as the press, the risk of being voted out of office and concern for his legacy.

So do those “other processes” include the criminal justice system, as in this case against Trump? The Supreme Court has never ruled on this.

If — and it’s a big if — the court’s comparisons to judges and prosecutors in the Fitzgerald case were extended to this question, the answer could be yes. In rare cases, judges and prosecutors have been jailed for crimes committed in the course of their job duties — for example, the two Pennsylvania judges involved in the “kids for cash” scandal in the 2000s, who handed down harsh sentences on thousands of children to boost the occupancy of a privately owned juvenile detention center nearby.

The Constitution does actually comment on presidents and criminal liability, but it’s packed into one of those maddening, clause-heavy run-on sentences characteristic of the 18th century that leaves its true meaning up to debate. Here’s the passage:

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Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

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The special counsel’s team argues this means presidents are absolutely subject to criminal prosecution as a separate proceeding from impeachment, which is only for removal and not punishment. Trump’s team argues this means presidents are only subject to criminal prosecution if they have been convicted and removed in an impeachment trial, which Trump has not.

Trump is the first president to be indicted, but he is not the first to be arrested. Ulysses S. Grant was arrested in 1872, while he was in office, for speeding in his horse-drawn carriage. According to press accounts, Grant was friendly with the officer — a Black veteran of the Civil War — and did not ask for any special treatment on account of his position. He also didn’t show up for court the next day. No further action was taken, leaving unanswered the question of a sitting president’s immunity to the law.