United States v. Nixon (1974)
Gordon Lloyd, Ph.D.
“Watergate Break-In.” “Enemies List.” “Pentagon Papers.” “CREEP.” “Watergate Cover-Up.” “The Plumbers.” “Deep Six.” “Deep Throat.” “The Cubans.” “Dirty Tricks.” “Hush Money.” “Follow the Money.” “Third-Rate Burglary.” “The President’s Men.” “Ethical Compass.” “18 ½ minute gap.” “Cancer on the Presidency.” “Stonewall it.” “At this point in time.” “White House Horrors.” “Senator Sam.” “Saturday Night Massacre.” “Maximum John.” “I am not a crook.” “Expletive Deleted.” “What did the President know, and when did he know it?” “Special Prosecutor.” “Executive Privilege.” “Smoking Gun.” “The Magnificent Seven.” “Our long national nightmare is over.”
These are memorable phrases and addictive words for those of us who lived through the two-year Watergate saga.
On June 17 1972, the break-in of the offices of the Democratic Party headquarters in the Watergate complex occurred—committed by officials of the Committee to Re-elect the President and several Cubans. August 9, 1974, Richard Nixon became the first President to resign and, subsequently, be pardoned by his successor, Gerald Ford, in an effort to end the “nightmare” of Watergate. But the Watergate story in general and United States v Nixon in particular lived way beyond this two-year period. Scandals came to known as “gates,” such as Irangate, journalists swore they would never be caught napping again, the office of Independent Council became a fixture of American politics and the Supreme Court became even bolder in telling the executive what it could and could not do under the Constitution. The ultimate judicial impact of United States v Nixon is Clinton v Jones where executive privilege was left in an even more ambiguous condition. Now, of course, all this was not known in the 1970s. Few people recognized the landmark quality of United States v Nixon at the time because it was one of many activities that were taking place in rapid succession.
There are many Watergate myths, the most persistent of which is that the press saved American democracy from the imperial presidency and brought about the demise of a President. But the key to the saga is not what Deep Throat leaked to Bob Woodward and Carl Bernstein of the Washington Post in “a dark parking garage.” Deep Throat suggested they “follow the money” in their investigation of the clandestine actions of the President’s most trusted men. (It was revealed in June 2005 that Deep Throat was W. Mark Felt, who thirty-three years earlier was the second in command at the FBI.) What is not mythical about the Watergate saga is what we shall call: follow the power. And by follow the power, I don’t just mean the quest to distinguish between appropriate and inappropriate Presidential power, but also the proper exercise of Congressional and Judicial power.
The issue of the proper exercise of power reached its climax during a two-week period in late July and early August 1974. Between July 27-30, the House Judiciary Committee approved three articles of impeachment against the President: 1) obstruction of justice: the Watergate cover-up; 2) contempt of Congress: refusing to turn over possible incriminating information; and 3) abuse of constitutional powers. This was the culmination of hearings in both the Senate, led by “old country lawyer” Sam J. Ervin of North Carolina on the Select (Watergate) Committee to Investigate Presidential Campaign Practices during Summer of 1973. As part of that effort, Congress created the Office of Independent Counsel (OIC). Its chief officer—the Special Prosecutor—could only be removed “for extraordinary improprieties” and after “consulting” Congressional leaders. (Archibald Cox, the first Special Prosecutor, was fired by Nixon in the “Massacre” of October 1973.) The House of Representatives Impeachment Committee led by Peter Rodino began hearings, and wrote to the President to obtain information concerning possible misconduct in the 1972 election by the Executive Office.
President Nixon refused to turn over notes, papers, and secretly recorded conversations deemed important by the OIC. The District Court also was pursuing its own investigation of misconduct by the “President’s men,” under the leadership of Judge John Sirica, who had a reputation for handing down maximum sentences. Nixon was named as an “unindicted co-conspirator” in the cover-up. He declined to fully cooperate with these requests for information on the grounds that the actual tapes were under his control and custody, and, furthermore, he contended that the contents were protected by “executive privilege.” He did release edited transcripts of several tapes, but this was deemed to be insufficient by the District Court and the OIC. The Supreme Court heard the arguments and issued its decision on July 24, 1974.
Chief Justice Warren Burger delivered the 8-0 opinion of the Court in United States v Nixon. (William Rehnquist didn’t take part in the consideration or the decision.) The Court, having dismissed the White House procedural challenges, decided that the Presidential claim of executive privilege does not trump a right of the judiciary to review the merits of that claim. The Court ruled that the President must release, among other “tapes, memoranda, papers, transcripts, or other writings relating to certain precisely identified meetings between the President and others,” a June 23, 1972, recording of a conversation that took place in the White House between the President and his chief of staff, H.R. Bob Haldeman. This tape, and other in-house tape recordings, had been requested by the new Independent Prosecutor, Leon Jaworski, the Congress, and the District Court in an attempt to answer the question asked by Senator Howard Baker: “what did the President know, and when did he know it?” Nixon reluctantly released the tape on August 5, 1974.
On the tape, Nixon is heard agreeing to tell the FBI to halt its investigation of the Watergate break-in because this was a CIA matter involving some Cubans. This conversation took place one week after the Watergate break-in and conflicted with Nixon’s public declarations during the two year period that 1) “I neither took part in nor knew about the subsequent cover-up activities. That was and is the simple truth,” and 2) “People have got to know whether their president is a crook. Well, I am not a crook.” Armed with “the smoking gun,” tape that they had demanded, however, leaders of the Republican Party in Congress paid Nixon an urgent visit. The President announced on August 8, before the largest television audience yet, that he had lost his political base and would resign on August 9.
On the one hand, the Burger Court endorsed the right of the President to withhold information by claiming that “great deference” and “high respect” should be shown to Presidential claims of confidentiality: A President is constitutionally permitted, said the Court, by the doctrine of the separation of powers, to receive frank and confidential advice from members of the executive branch of government as part of his “effective discharge” of Presidential powers even though the phrase executive privilege is not explicitly stated in Article II. The Court noted “the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in presidential decision making.” The case for “confidentiality” in the executive office is “too plain to require further discussion.”
On the other hand, despite this support of “presumptively privileged” communication within the presidential branch, Burger wrote that executive privilege is neither absolute nor unqualified. “Absent a claim of need to protect military, diplomatic, or sensitive national security secrets the very important interest in confidentiality is significantly diminished.” And, citing Marshall’s bold claim in Marbury that it is “emphatically the province and duty of the judicial department to say what the law is,” Burger states that it is the judicial branch, rather than the executive branch, that is constitutionally empowered to ultimately decide what claims of executive privilege are and are not legitimate and, thus, what evidence the President must provide in the “pending criminal trial” of “seven named individuals” charged with the violation of federal statutory law. Executive privilege, said Burger, “must yield to the demonstrated, specific need for evidence in a pending criminal trial.”
However narrowly, or broadly, one interprets this decision—does it restrict or endorse executive privilege?--what is indisputable is that all eight justices in Nixon, regardless of their political affiliation, concurred that the Supreme Court is the exclusive and supreme interpreter of the powers of the other branches of the federal government in particular and the Constitution in general. And the claim is that this is granted to the Court by Marbury. So even though a prominent minority of scholars dispute this interpretation of Marbury, it didn’t play any part in the decision of the Burger Court. The impact of the Burger Court decision is that it henceforth placed a burden of proof on the executive to demonstrate that it is acting in an executive fashion when it invokes the notion of privilege. The key to the decision is that the Court invokes a sort of judicial supremacy, even though it also recognizes the validity of executive privilege, albeit it in the end restrictive.
On the surface, it might appear that the Judiciary upheld the rule of law—not even the President is above the law—but one is left wondering that something more consequential is taking place. Has the Court undermined one understanding of the separation of powers, namely, “the supremacy of each branch within its own assigned area of constitutional duties,” a sort of rule of law understanding of the role of the judiciary, for another one: that we have a constitutional separation of powers but that doctrine means what the Court says it means, and it doesn’t have to come up with a good argument to support this assertion. Apparently, citing Marbury is sufficient.