During the Watergate crisis, as special prosecutors, Congress, and the courts ordered that Nixon release his White House tapes, he observed at a press conference that Lincoln was “a very strong President.” Lincoln, he added, did not hesitate to “move in the national interest in a way that many thought was perhaps in violation of the law—the suspension of the writ of habeas corpus, for example.” Perhaps with this in mind, Nixon refused to say whether he would comply with anything less than a “definitive” ruling—a term he left vague. On July 24, 1974, the Supreme Court ruled unanimously that Nixon had to produce the tapes. This was definitive enough. Nixon resigned two weeks later.
Yet, in the end, the check on Nixon came not from the Court but from Congress. When Jefferson, Lincoln, and F.D.R. defied court rulings (or considered doing so), they all had Congress on their side. Nixon quit the Presidency because he did not. He could see that his impeachment by the House, conviction by the Senate, and forced removal from office had become inevitable. Today, however, Congress is with Trump. House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell have been quick to shrug off or explain away Trump’s transgressions; their posture toward the President has so far been supine. If Trump’s travel ban goes before the Supreme Court and is overturned—or if some other order or action or bill, down the line, meets that fate—congressional Republicans might be ready to condone “nonacquiescence.” “We’re going to see what happens,” Trump said at the White House, on Tuesday, musing about the legal challenges to his ban. “You know, some things are law, and I’m all in favor of that. And some things are common sense. This is common sense.”