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During Watergate, the Supreme Court spoke with one voice. Can it do the same in Trump's case?

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During Watergate, the Supreme Court spoke with one voice. Can it do the same in Trump's case?

Fifty years ago this month, the U.S. Supreme Court was mulling a landmark case with profound implications for America’s democracy.

The question before justices in the Watergate tapes dispute was whether the president was above the law, shielded from prosecutors and a judge who were investigating a crime.

The court’s answer was clear, unflinching and unanimous.

A unanimous Supreme Court ruling helped resolve another constitutional crisis in 1974, when President Nixon claimed executive privilege over his White House tapes during the Watergate investigation.

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(Associated Press)

The Constitution has no “absolute, unqualified presidential privilege of immunity,” the court said in July 1974 in United States vs. Nixon. The president’s claim of executive privilege for his White House tapes, justices said, “cannot prevail over the fundamental demands of … the fair administration of criminal justice.”

Chief Justice Warren Burger, an appointee of then-President Nixon, wrote the court’s opinion. The Watergate case marked a high point for an often divided and contentious court and helped bring together a nation that was in the grip of a constitutional crisis.

The same basic issue is before the court again in Trump vs. United States: Are presidents above the law, immune forever from criminal charges for their actions in the White House? Or can they be prosecuted and held to account for breaking the law?

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The decision figures to rewrite the law on the powers of the president and a cast a lasting shadow on the Supreme Court led by Chief Justice John G. Roberts Jr.

Few are predicting the current court will rise to the occasion and deliver a clear, unanimous ruling.

The two sides of the debate drew a sharp contrast when the court heard arguments in late April.

“Without presidential immunity from criminal prosecution,” Trump’s attorney John Sauer told the court, “there can be no presidency as we know it.”

Justice Department veteran Michael Dreeben replied that presidential immunity had been rejected in the past and should be rejected now.

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“All former presidents have known that they could be indicted and convicted. And Watergate cemented that understanding,” Dreeben said, arguing on behalf of special counsel Jack Smith.

A multicolored drawing of Supreme Court justices seated at a long table as a man stands and addresses them before an audience

The Justice Department’s Michael Dreeben, speaking to justices on April 25 in this artist’s sketch, argued that “all former presidents have known that they could be indicted and convicted. And Watergate cemented that understanding.”

(Dana Verkouteren / Associated Press)

If the justices split along ideological lines, with the three liberals in dissent, the decision is sure to be condemned as partisan.

So the chief justice is likely to try to put together a majority that includes at least one liberal for what could be seen as a middle-ground position.

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That would mean rejecting Trump’s claim of absolute immunity as well as Smith’s view that a former president has no shield from being prosecuted, even for truly official acts.

Trump was indicted last year on accusations of conspiring to overturn the results of the 2020 presidential election he’d lost to Joe Biden, including by making false claims of election fraud and encouraging thousands of his supporters to march to the Capitol on Jan. 6, 2021, when the House and Senate met to confirm Biden’s election.

Trump pleaded not guilty and insisted that his actions — taken while he was president — should be forever immune from prosecution.

Several Justices — some of whom have worked in Washington for decades — said during arguments in April that a president’s use of his “core executive powers” should be off-limits to future charges. They are wary of opening the door to politically driven criminal investigations.

Prior to Trump, no president had been indicted after leaving office, though at times charges were contemplated.

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Could President Reagan have been prosecuted for the so-called Iran-Contra affair, a secret White House scheme to sell arms to Iran to support rebels in Nicaragua after Congress blocked their funding? Could President George H.W. Bush have been prosecuted for denying he knew about the scheme when he was vice president? While no such charges were brought, an independent counsel looked into those allegations.

President Reagan, eyes closed, holds his right fist to his forehead, his other hand on a lectern with the presidential seal

President Reagan, seen in 1987, and his vice president and successor, George H.W. Bush, were investigated for possible charges in the Iran-Contra scandal, but were not among the 13 people indicted.

(Dennis Cook / Associated Press)

President Clinton was also threatened with prosecution after leaving office for having lied to investigators about his relationship with a White House intern.

To take a more recent example, could former President George W. Bush have been investigated or prosecuted by a Democratic administration for his responsibility in the harsh treatment of detainees at Guantanamo Bay, Cuba, or over the alleged torture of prisoners at secret CIA sites in Europe?

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The Obama administration did not pursue any such charges, but former White House lawyers, including now-Justice Brett M. Kavanaugh, voiced concern about subjecting presidents to criminal charges after they leave office.

A critical question in the Trump case is: What qualifies as an “official” act by a president, and what sort of actions are considered private, even potentially criminal?

Most of the justices appeared to agree during arguments in April that Trump had been indicted over a private scheme, not for the use of any core executive powers.

Justice Amy Coney Barrett, a Trump appointee, noted that the former president was accused of enlisting lawyers to submit “false claims of election fraud” and to send “fraudulent slates of presidential electors” to Congress.

“Sounds private,” she said.

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Justice Amy Coney Barrett, in an orange-red dress, sits and addresses a small group, reflected in the window behind her

Trump appointee Amy Coney Barrett was among a majority of justices in April who seemed to agree that the former president had been indicted over a private scheme as a candidate, not for official presidential actions.

(Morry Gash / Associated Press)

Sauer, the Trump attorney, agreed.

“So you would not dispute those were private, and you wouldn’t raise a claim that they were official?,” Barrett asked.

Again, the lawyer agreed.

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Later, when pressed by others, Sauer agreed with a lower court that had drawn a distinction between the conduct of an officeholder and that of a candidate for office. Prosecutors relied on that distinction, arguing that Trump was indicted for his actions as a failed candidate for reelection, not as an officeholder carrying out his official duties.

Barrett’s questions hinted at the possibility of a narrow ruling rejecting Trump’s claim of immunity from charges that he conspired to overturn his election defeat. The three liberal justices could agree with that.

But conservative Justices Samuel A. Alito Jr., Neil M. Gorsuch and Kavanaugh said they favored a broader shield for presidents when they use their official powers.

If that becomes the majority opinion, the court’s liberals may well refuse to go along. They voiced concern about shielding a president who abuses his power.

What if the president orders a “military coup?” Justice Elena Kagan asked during the arguments.

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As commander in chief, if a president “told the generals: ‘I don’t feel like leaving office. I want to stage a coup,’” she asked, would that be an official act, shielded from future prosecution?

“It could well be,” Sauer replied.

Former President Trump, flanked by two men in suits, stands and speaks in a white room with blue accents and two U.S. flags

John Sauer, right, with the former president and fellow Trump lawyer John Lauro in January, said in April that a president “could well be” be shielded from prosecution for ordering a military coup to stay in office.

(Susan Walsh / Associated Press)

So the problem facing the chief justice is that an opinion supporting a president’s immunity for official acts could drive the three liberals to dissent, while some conservatives may balk and refuse to join a ruling if it only holds that an ex-president can be prosecuted.

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Four years ago, Roberts had a solid 7-2 majority rule against a Trump claim of “absolute immunity” and order the then-president to turn over financial and tax records to New York prosecutors.

The chief justice said the presidential supremacy claimed by Trump had never been part of America’s history.

“In our judicial system, the public has a right to every man’s evidence. Since the earliest days of the republic, ‘every man’ has included the president of the United States,” Roberts wrote in Trump vs. Vance. Two conservative justices, Alito and Clarence Thomas, dissented.

Critics say the Roberts court has already delivered a victory of sorts for Trump by taking so long to decide on his immunity claim.

“This case goes to the heart of our democracy, and they’ve been slow-walking it,” said Fred Wertheimer, president of Democracy21 and a champion of campaign funding limits since the Watergate era. The court decided the Watergate case 16 days after the oral argument, he noted.

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This year, by contrast, the justices have taken months to ponder a claim of immunity, a delay that has postponed Trump’s federal prosecutions and is almost certain to prevent a jury from deciding before the November election whether he conspired to overturn his defeat in the 2020 election.

“The court should never have taken this case,” Wertheimer said. “The voters were entitled to know whether Trump engaged in criminal conduct to overturn an election he lost.”

He’s not the only Watergate-era lawyer who is troubled. In 1974, Philip Lacovara, as counsel to the special prosecutor, urged the Supreme Court to reject Nixon’s claim of executive privilege with a “definitive” ruling. Nixon had hinted he may defy the decision if the justices were divided.

A black-and-white photo of officials at a table in an ornate room, Gerald Ford in the foreground across from Richard Nixon

Vice President Gerald R. Ford, in the foreground at Nixon’s final Cabinet meeting before his August 1974 resignation, would go on to pardon his former boss ahead of his “possible indictment and trial for offenses against the United States.”

(David Hume Kennerly / Getty Images)

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Just 16 days after the court ordered him to disclose the tapes, Nixon resigned. A month later, President Ford granted him a full pardon, after saying his predecessor was facing “possible indictment and trial for offenses against the United States.”

In a recent interview, Lacovara warned against making a former president immune from criminal prosecution, noting that history has shown that sometimes strong men with no moral compass can win election.

“That’s why this could be the most dangerous decision the court has ever made,” he said of Trump’s case. “Once you crack it open and say the president gets to violate some laws, there’s no way to constrain it. You have started down a very dangerous road.”

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Video: Pete Hegseth’s Confirmation Hearing

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Video: Pete Hegseth’s Confirmation Hearing

In a hearing that stretched more than four hours, Democrats pressed Pete Hegseth, President-elect Donald J. Trump’s pick for defense secretary, on numerous allegations of misconduct, his views about women in combat and his ability to lead the department. Eric Schmitt, national security correspondent for The New York Times, explains a moment that stood out in the hearing.

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Trump Energy Sec pick to share American 'energy dominance' vision at confirmation hearing: 'Agent for change'

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Trump Energy Sec pick to share American 'energy dominance' vision at confirmation hearing: 'Agent for change'

Chris Wright, President-elect Trump’s nominee to lead the U.S. Department of Energy, is planning to tell senators in charge of his confirmation that he will focus on restoring American “energy dominance” at home and abroad. 

Wright, a fossil fuel executive who in the past has been critical of the media blaming climate change for repeated wildfires, is expected to deliver his opening statement before the Senate Energy and Natural Resources Committee on Wednesday morning. Fox News Digital obtained a copy of the statement in advance ahead of the hearing scheduled to start at 10 a.m. ET.

“I am humbled by the great responsibility this position holds,” Wright is expected to say in his opening statement. “America has a historic opportunity to secure our energy systems, deliver leadership in scientific and technological innovation, steward our weapons stockpiles, and meet Cold War legacy waste commitments.” 

Describing himself as a “science geek, turned tech nerd, turned lifelong energy entrepreneur,” Wright will tell the committee how his “fascination with energy started at a young age in Denver, Colorado.” His opening statement discusses how he enrolled at MIT “specifically to work on fusion energy” and later started graduate school at the University of California at Berkeley where he worked “on solar energy as well as power electronics.”

TRUMP EYES AN END TO NEW WINDMILL PRODUCTION UNDER SECOND TERM, SAYS THEY ARE ‘DRIVING THE WHALES CRAZY’

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Liberty Oilfield Services Inc. CEO Chris Wright laughs as he celebrates the companies IPO on the floor of the New York Stock Exchange, January 12, 2018. (Reuters)

“Energy is the essential agent of change that enables everything that we do. A low energy society is poor. A highly energized society can bring health, wealth, and opportunity for all,” Wright will say. “The stated mission of the company that I founded – Liberty Energy – is to better human lives through energy. Liberty works directly in oil, natural gas, next generation geothermal and has partnerships in next-generation nuclear energy and new battery technology.” 

“Energy has been a lifelong passion of mine, and I have never been shy about that fact,” Wright plans to tell the committee. “Then again, I have never been shy about much. President Trump shares my passion for energy and, if confirmed, I will work tirelessly to implement his bold agenda as an unabashed steward for all sources of affordable, reliable and secure American energy.”

On Tuesday, committee Democrats led by Sen. Martin Heinrich of New Mexico called for Wright’s confirmation hearing to be delayed by at least a week, citing how they had not yet received “the standard financial disclosure report, ethics agreement, or the opinions from the designated agency ethics officer and the Office of Government Ethics stating that the nominee is in compliance with the ethics laws.” 

Chairman Mike Lee, R-Utah, has already pushed back the confirmation hearing for Doug Burgum, Trump’s pick for interior secretary, by two days until Thursday due to an OGE paperwork delay, but Wright’s remained on the schedule Wednesday. 

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Wright CEO headshot

Liberty Oilfield Services CEO Chris Wright at Liberty January 17, 2018.  (Andy Cross/The Denver Post via Getty Images)

If approved as secretary, Wright would manage energy policy and production in the United States, as well as the nation’s nuclear weapon stockpile. He would also work with Burgum on the National Energy Council, where they would develop Trump’s energy dominance policy involving increased production of U.S. oil and gas.

Wright has indicated that he plans to resign as CEO and chairman of his fracking company, Liberty Energy, if approved.

DEMS BLAME LA FIRE ON ‘CLIMATE CHANGE’ DESPITE CITY CUTTING FIRE DEPARTMENT BUDGET

Burgum on Capitol Hill

Trump’s nominee to be Secretary of the Interior Doug Burgum rides an elevator in the Dirksen Senate Office Building on Dec. 10, 2024 in Washington, DC.  (Anna Moneymaker/Getty Images)

In his opening statement, Wright identifies three “immediate” tasks that he would focus his attention on if confirmed.

“The first is to unleash American energy at home and abroad to restore energy dominance,” Wright will say. “The security of our nation begins with energy. Previous administrations have viewed energy as a liability instead of the immense national asset that it is. To compete globally, we must expand energy production, including commercial nuclear and liquified natural gas, and cut the cost of energy.” 

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“Second, we must lead the world in innovation and technology breakthroughs,” the statement continues. “Throughout my lifetime, technology and innovation have immeasurably enhanced the human condition. We must protect and accelerate the work of the Department’s national laboratory network to secure America’s competitive edge and its security. I commit to working with Congress on the important missions of the national laboratories.” 

“Third, we must build things in America again and remove barriers to progress,” Wright will say. “Federal policies today make it too easy to stop projects and very hard to start and complete projects. This makes energy more expensive and less reliable. President Trump is committed to lowering energy costs and to do so, we must prioritize cutting red tape, enabling private sector investments, and building the infrastructure we need to make energy more affordable for families and businesses.” 

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Column: He lost everything in a wildfire. Here's one city councilman's practical advice

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Column: He lost everything in a wildfire. Here's one city councilman's practical advice

Jeff Okrepkie wants to make one thing perfectly clear.

Yes, his home burned to the ground after he fled a galloping wall of flames with his wife, their toddler, two dogs and the few items they managed to cram into their cars. But no, Okrepkie insisted, he is not a fire victim.

“I’m a survivor,” he said. “It seems kind of ticky-tacky, but it helps with my mental state to think of myself that way … I survived something that many people haven’t.”

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Okrepkie and his wife lost their home and virtually everything they owned in the 2017 Tubbs fire, which turned a wide swath of the Wine Country — including Santa Rosa’s middle-class Coffey Park neighborhood — into a heap of cinder and ash. At the time, it was the most destructive wildfire in California history. Soon, it may rank a mere third, with the still-blazing Los Angeles County inferno topping the list.

Okrepkie, 45, a commercial real estate agent, was displaced through ill fortune. He was elected years later to the Santa Rosa City Council by popular vote. He became an advocate for wildfire survivors, their champion and a clearinghouse of recovery tips by choice and his lived experience.

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“How can you have all this information and not share it?” he said during a conversation this week a few blocks from City Hall and a short drive from the subdivision where he returned nearly 2½ years after fire chased him out. “It’s almost seems selfish not to.”

The October weekend that forever changed Okrepkie’s life began in what now seems like blessed normalcy.

He and his wife, Stephanie, attended a wedding on Saturday, a welcome bit of alone time in adult company. Their son was nearly 2 years old and had lately “started scaling the walls,” so Sunday was spent converting his crib into “a big-boy bed.” After it was made up, Okrelie took a picture because they were all so excited.

The rest transpired in a flash.

Reports of a fire breaking out in Napa, 40 miles away. His wife nodding off in front of the TV news. Okrepkie falling asleep. His sister calling and waking him with word of another fire, in Calistoga, 16 miles distant and spreading on powerful winds.

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Not much later, the flames leapt Highway 101 and its six lanes and bore down on Coffey Park. Stephanie Okrepkie drove away with her son, the family’s black Lab mix and their Cavalier King Charles Spaniel. Jeff stayed behind, grabbing what he could, until a giant ember landed at his feet, spitting sparks. He took off.

City Councilman Jeff Okrepkie stands in front of Santa Rosa City Hall

Santa Rosa City Councilman Jeff Okrepkie

(Mark Z. Barabak)

He dispenses his wildfire wisdom in two parts, before and after disaster strikes.

Okrepkie suggested starting with a list of things to grab before you’re forced to go. Figure out what you can get your hands on in five minutes or less and start there, beginning with “the things that are crucial to your life” — passports, birth certificates, marriage certificates, insurance policies, wills, trusts. Expand the list to items you can conceivably gather in 10, 15 and 30 minutes.

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Focus, Okrepkie said, on things that are irreplaceable — “an urn with your parents remains, wedding rings” — or that have sentimental value. Clothes, shoes, underwear, pet food; those types of things can be purchased later.

Okrepkie particularly regrets leaving behind a photo of his grandparents, which his late grandmother carried with her everywhere. His wife lost the military fatigues her father wore when he was killed in Iraq, though the couple recovered his dog tags and “challenge coin.”

If you lose your home, Okrepkie went on, don’t wait to find temporary housing. “As soon as you get stabilized somewhere,” he advised, “start calling apartments.” And if it’s unfurnished, make do with used or donated items. “When you get back into your house,” Okrepke said, “that’s when you start spending on the dining room table … that looks nice in your home.”

Beyond that, he counseled patience.

Take as much time as you need to catalog your losses for insurance purposes. If you can collect, say, up to $700,000 and devote 10 hours to compiling a thorough list, that works out to $70,000-an-hour. “That’s a pretty well-paying job,” Okrepkie said. “Think of it that way.”

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Also, he said, carefully document every interaction with your insurance company. You’re likely to deal with a number of adjusters, some of whom will move on before your claim is settled. It’s important to have written proof of what was said or promised, so you don’t have to start each time with someone new.

When it comes to rebuilding — if that’s your plan — don’t hurry. Yes, Okrepkie said, there’s an understandable urge to return home as quickly as possible. But he warned against making decisions in haste — in part because rules and regulations can change, affecting what and how you’re able to rebuild. “If you’re rushing, you could be doing something to fit into a box that all of a sudden just became bigger three weeks later.”

He was glad he purchased his new home from a “mass builder” — a developer that goes through the permitting and legal process, then offers buyers a range of floor plans and options — rather than going it alone with an individual architect and builder.

“Most people have never built a house,” Okrepkie said. “They just bought a house that already exists. And so they don’t know what goes together” — carpets, countertops, cabinets, tiles and on. “Whereas these guys were like, ‘Yep, we have this and this and this and this and this.’ It’s a lot easier to comprehend when you have limited choices.”

Through it all, Okrepkie said, building and nurturing a sense of community was vital.

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“I can sit here and tell you my entire fire story,” he said over lunch at a cantina in downtown Santa Rosa, “and you’ll empathize with it.” But even the most caring and compassionate person can’t relate “in the same way as someone who’s going through what you’re going though.”

A friend started a gathering that jokingly came to be called “Whine Wednesdays,” where survivors got together — at first on camping chairs set amid the ruins — to drink beer and wine “and just talk to each other,” Okrepkie said. “Not bitching and complaining. Just having conversations.”

His activism on behalf of the burned-out neighborhood led to a seat on the city Planning Commission, which in turn led to Okrepkie’s election in 2022 to the Santa Rosa City Council.

As someone with experience on both sides of disaster — as a wildfire survivor as well as a government official dealing with its aftermath — he offered several suggestions for those in public office.

“Be careful with your messaging, because people can take things very personally,” Okrepkie said. “Don’t call people homeless … We have a home. It burnt.”

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Be patient. Very patient. Even as months and years pass and the initial trauma has faded, you’re facing people still grappling with perhaps the worst experience of their life. “Be careful about being too dismissive,” Okrepie said, or coming across as unfeeling.

Don’t be afraid to act boldly if your action can hasten the recovery, he continued. “With electeds there’s always a fear of, ‘Am I going to piss off too many people?’ I don’t think there’s a more altruistic thing you can do than put your neck on the line for people that lost everything.”

Not least, don’t treat survivors as though they’re seeking anything more than they had before.

“We’re not asking to build mansions,” Okrepkie said over his taco salad. “If you have a car you really like and someone hits it, you’re not going to be like, ‘I want a Maserati.’ Just give me what I had … I’m not trying to game the system. There always bad apples that will try to. But most are good people in a crap situation.”

It’s pretty straightforward, he suggested. Be caring. Be kind.

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