Watergate's lesson: In the end, the people decide

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Special counsel Jack Smith has rolled the dice of democracy in a way that hasn't been seen in 50 years. He requested the Supreme Court provide an expedited ruling regarding whether former President Donald Trump is immune from charges he attempted to overturn the 2020 election.

Fifty years ago, Watergate special prosecutor Archibald Cox set in motion a landmark confrontation testing how seriously we take the principle that no one, not even the president, is above the law.

Cox was my constitutional law professor. We corresponded occasionally and I interviewed him 25 years ago on the 25th anniversary of the so-called Saturday Night Massacre for Minnesota Law & Politics. His insight into the ethereal nature of a bedrock principle of democracy, the rule of law, is as vital as ever.

Watergate's constitutional crisis began with a subpoena. Only two presidents, Jefferson and Monroe, had ever been subpoenaed, and no president had ever been forced to comply with one. What would happen if the president refused to obey a court order?

Cox subpoenaed President Richard Nixon for nine tape recordings. Nixon refused and the dispute went to court. A U.S. Court of Appeals upheld the lower court and rejected Nixon's claim of presidential immunity and absolute executive privilege. Cox was entitled to direct access to the tapes. But Nixon still refused to comply. What could Cox do?

"On the other hand," Cox conceded "if the people didn't rise up when there was a confrontation, wouldn't it have been a terrible mistake to press a confrontation? … I worried about the truths of Winston Churchill's remark: Democracy must never expose its weakness."

After failed negotiations, Cox received an ultimatum: accept the so-called Stennis compromise. This would have meant Nixon wouldn't turn over the tapes, he would only provide a summary of them prepared by a third party.

I asked Cox, "Given the potential constitutional conflict of a standoff, how difficult was it to reject the Stennis compromise?" Cox, stressing his deep respect for the presidency responded, "It was an anguishing decision." Then he reflected back to his childhood.

"I kept remembering a conversation with my father when I was a boy about 12, 13. A friend of his had given up a trip he wanted very badly to take, because President [Calvin] Coolidge had asked him to do something which he wasn't anxious to do. But he did it. I said, 'Father, why did Mr. So-and-so give up this trip?' My father very seriously said, 'When the president of the United States asks you to do something, you do it.' That kept echoing in my mind."

Nonetheless, as a 61-year-old constitutional scholar charged with enforcing the law, Cox rightfully placed the rule of law above his respect for the presidency. He rejected the Stennis compromise. Nixon ordered Cox fired the next day in what became known as the Saturday Night Massacre.

I asked Cox, "Ultimately, does the foundation of our constitutionalism, of the rule of law, rest upon the shoulders of us as citizens?" He concluded, "Yes, as Watergate showed. And Watergate showed that in an extreme case one could rely on the people — at that time, anyway."

The facts of today's special counsel case before the Supreme Court concerning presidential conduct can be contested and need to be fully adjudicated. The principle that we all should at least aspirationally be accountable, however, can't be in doubt.