“The court has always been subject to criticism,” former Deputy Solicitor General Philip Allen Lacovara, who served as counsel to the Watergate prosecution against former President Richard Nixon, said at the outset of the hearing, arguing that the Supreme Court’s July 1 decision in Trump v. United States is “profoundly wrong for several reasons.”

Lacovara was a key witness for Democrats who have expressed outrage for months since the Supreme Court found presidents enjoy some immunities against prosecution, complicating the two federal cases against Trump as he seeks reelection. The committee is chaired by Sen. Dick Durbin (D-IL), who often balks at decisions by the high court’s Republican-appointed majority and is a leading instigator of criticism over alleged ethical lapses on the high court.

“I know from my own experience in the Watergate affair that President Nixon was under active criminal investigation for his role in the cover-up. President Clinton was, President Reagan was,” Lacovara said.

“At no time before 2024 did any serious lawyer, and nor did any of those presidents, claim that there was any kind of immunity from criminal exposure for crimes committed in office, including crimes committed allegedly in the performance of official function,” the former Watergate attorney added.

Former Watergate prosecution counsel: The Supreme Court has “always been subject to criticism.” Dred Scott, Plessy v. Ferguson, Korematsu… all have been “repudiated by history.”

Trump v. U.S. does not “deserve acquiescence.” pic.twitter.com/AMlmV9RetB

— Senate Judiciary Committee (@JudiciaryDems) September 24, 2024

The immunity ruling at the high court stemmed from special counsel Jack Smith’s 2020 election subversion case in Washington, D.C., which seeks to convict Trump on four counts related to allegations that he sought to upend his election defeat four years ago through unlawful means.

Before lawmakers began to ask questions of Lacovara and the four other expert witnesses asked to testify before the committee on Tuesday, Durbin noted that at least one or two members raised questions about the title of the hearing, which included in part a quote from Nixon: “When the president does it, it’s not illegal.”

Durbin said that while the quote came from Nixon, it could have come from Trump as well, referencing a Truth Social post from the former president in which Trump claimed, “Presidents have to be given total immunity. They have to be allowed to do their job.”

Sen. John Kennedy (R-LA) resurfaced that quote later in his questioning to law professor Jennifer Mascott, asking her if the Supreme Court ever echoed what Nixon claimed in his quote.

“No, it did not,” Mascott replied.

Kennedy later raised a hypothetical argument about “ambitious district attorneys” in jurisdictions with constituents who disfavor President Joe Biden bringing charges against Biden. Trump is facing two state-level criminal indictments in New York County and Fulton County, where Democrats make up a majority of voters and where the district attorneys leading prosecutions are Democrats.

“Can you understand what the court was talking about when it said, ‘We can’t allow the court system to have a chilling effect on a president, any president from making those decisions’?” Kennedy asked.

The Jan. 6 case against Trump was set to head to trial this spring but was stalled for nearly eight months after the justices agreed to weigh whether Trump was entitled to any presidential immunity privileges that would protect him from the charges.

Although the high court did not throw out the indictment, the justices, via a 6-3 decision, set a test that divides presidential acts into three buckets: official acts that are absolutely immune from prosecution, official acts that are presumptively immune from prosecution and would require adequate rebuttals from prosecutors to be used in court, and unofficial acts that are not immune at all. The high court gave guidance on certain acts that suggested Trump’s communication with his official staff members, for example, could be considered official conduct.

Durbin also invited former Justice Department official Mary McCord to testify on Tuesday, and McCord referenced Trump-appointed Justice Amy Coney Barrett’s partial diversion from the majority opinion, in which Barrett disagreed with barring courts from considering a president’s official acts as evidence in trials that are allowed to move forward.

“It significantly hamstrings the government,” McCord said, quoting Barrett.

Nevertheless, the Trump case in Washington has begun snaking through U.S. District Judge Tanya Chutkan’s courtroom again just weeks before the Nov. 5 election between Trump and Vice President Kamala Harris, who has sought to paint herself as a former prosecutor pushing the political case against a former president facing felony charges.

Smith has asked to file a more than 180-page brief that will seek to justify Trump’s charges in the wake of the Supreme Court’s immunity ruling.

Meanwhile, Trump’s counsel has asked Chutkan to deny Smith the ability to “litter the docket sheet with an unnecessary tome,” arguing there are still questions, such as additional discovery requests, that must be resolved before the special counsel’s extensive filing can be submitted.