United States v. Nixon 1974
Appellant: United States
Appellee: Richard M. Nixon, President of the United States
Appellant's Claim: That the president must obey a subpoena requesting him to turn over tape recordings of conversations with his aides and advisors to a special prosecutor.
Chief Lawyers for Appellant: Leon Jaworski, Philip A. Lacovara
Chief Lawyer for Appellee: James D. St. Clair
Justices for the Court: Harry A. Blackmun, William J. Brennan, Jr., Chief Justice Warren E. Burger, William O. Douglas, Thurgood Marshall, Lewis F. Powell, Jr., Potter Stewart, Byron R. White
Justices Dissenting: None (William H. Rehnquist did not participate)
Date of Decision: July 24, 1974
Decision: Ruled against Nixon and ordered him to turn over the subpoenaed tapes to prosecutors.
Significance: The ruling established a constitutional basis for executive privilege. It also held that the president is not immune from judicial process, and must turn over evidence subpoenaed by the courts. The doctrine of executive privilege entitles the president to a high degree of confidentiality from the courts if the evidence involves matters of national security or other sensitive information, but the president cannot withhold evidence involving non-sensitive information when needed for a criminal investigation.
As daylight broke over Washington, D. C. on Wednesday, July 24, 1974, the threat of rain hung heavy in the hot, humid air. At 11:00 AM inside the packed U.S. Supreme Court chamber those who came to observe the day's proceedings sat in anxious anticipation. Suddenly, through the silent stately hall with its pillars and burgundy drapes, the voice of the Court marshal crackled,
Oyey! [give ear] Oyey! Oyey! All persons having business before the Honorable the Supreme Court of the United States are admonished to draw near and give their attention for the Court is now sitting. God save the United States and this Honorable Court!
The opening word "Oyey" came from medieval France, was passed on to England, and now to the United States' highest court. Along with the words came a system of justice based on evidence. The matter of the day, involving seven close associates of President Richard M. Nixon (1969–1974), concerned whether those men could be judged fairly in a court of law when all evidence surrounding their case was not made available. Nixon held that evidence, in the form of tape recordings, and refused to release the tapes by claiming executive privilege.
Chief Justice Warren Burger, strong and steady but without expression, read the Court's decision. Upon completion, at precisely 11:20 AM, the gavel came down and the eight justices (William Rehnquist was not participating) slipped back behind the velvet curtains. The Supreme Court had decided by an 8-0 vote that the executive privilege claimed by the President was not absolute (having no restrictions). The tapes must be handed over to the special prosecutor. For a moment the chamber sat motionless in a hushed stupor, the clack of the gavel ringing in their ears.
Theodore H. White, in his 1975 book Breach of Faith, wrote:
. . . the Roman lawmakers had said, "Let Justice be done, though the heavens fall." Justice at every level of American power, was now under way: in two weeks a President would fall.
Executive privilege is the right of the president to withhold certain information, documents, and testimony of members of the government's executivePage 925 | Top of Article branch, from public and congressional investigation. Although the Constitution never mentions executive immunity, historically presidents have claimed it to keep information concerning national security confidential or to protect communications between high government officials. Presidents base their claim on the vaguely worded separation of powers principle in Article II which states, "The executive power shall be vested [guaranteed legal right] in a President of the United States of America" to "take care that the laws be faithfully executed [carried out]."
Claims of executive privilege have actually been used sparingly. Presidents have generally honored requests from Congress for information. Yet, claims do go as far back as George Washington (1789–1797), who refused to let the House see papers relating to the Jay Treaty. Likewise, Thomas Jefferson (1801–1809) withheld from the House private letters written to him concerning the Aaron Burr treason charges. Presidents Andrew Jackson (1829–1837), James K. Polk (1845–1849), Franklin Pierce (1853–1857), and Theodore Roosevelt (1901–1909) all withheld information requested by Congress. In 1927 the Supreme Court in McGrain v. Daugherty ruled that executive privilege, although the
Page 926 | Top of Article actual term was not used, did not protect the executive branch from honest legislative investigation.
During the 1950s in an effort to shield the executive branch from the bullying questions of Senator Joseph R. McCarthy in hearings on communism in the United States, President Dwight Eisenhower (1953–1961) wrote a directive on the presidential privilege. The letter stated that communications between executive branch employees must remain confidential. Not until Kaiser Aluminum & Chemical Corp. v. United States (1958) was the phrase executive privilege was actually coined.
Presidents John F. Kennedy (1961–1963) and Lyndon B. Johnson (1963–1969) assured Congress that only the president could claim executive privilege. President Nixon also agreed to this principle.
The Watergate scandal began during the 1972 presidential campaign between Democratic Senator George McGovern of South Dakota and the Republican President Nixon. On June 17, months before the election which Nixon won by a wide margin, a group of burglars broke into Democratic headquarters located in the Watergate building complex in Washington, D.C. The Washington Post after investigating the story suggested the break in could be traced to officials in the Nixon administration. Of course, the administration denied all charges but it steadily became more apparent that members of the administration and perhaps Nixon himself had been involved in an attempt to cover up the burglary.
Public and congressional pressure forced Nixon to appoint a special prosecutor, Archibald Cox, to look into the matter. Cox filed a subpoena to secure tapes Nixon had secretly taped in the Oval Office of the White House which he believed would shed light on the Watergate burglary. A subpoena is an order issued by a court requiring a person to do something. Furious, Nixon refused the request and immediately had Cox fired. However, public outrage forced Nixon to appoint a new special prosecutor, Leon Jaworski. Jaworski was charged with the responsibility of conducting the Watergate investigation for the government.
On March 1, 1974 a grand jury indicted (charged) U.S. Attorney General John N. Mitchell and six other persons, all senior Nixon administration officials or members of the Committee to Re-elect the President. They were charged with conspiracy to obstruct (get in the way of) justice by covering up White House involvement in the break-in at DemocraticPage 927 | Top of Article headquarters in the Watergate complex. A conspiracy is a combination of two or more persons to commit a crime or unlawful act. Nixon was named as an unindicted co-conspirator.
In April 1974, Jaworski obtained a subpoena ordering Nixon to release certain tapes and papers related to specific meetings between the President and those indicted by the grand jury. Those tapes and the conversations they revealed were believed to contain damaging evidence involving the indicted men and perhaps the President himself.
Hoping Jaworski and the public would be satisfied, Nixon turned over edited transcripts of forty-three conversations, including portions of twenty conversations demanded by the subpoena. James D. St. Clair, Nixon's attorney, then requested Judge John Sirica of the U.S. District Court for the District of Columbia to "squash" (stop) the subpoena. Sirica denied St. Clair's motion and ordered the president to turn the tapes over by May 31.
Both St. Clair and Jaworski appealed directly to the Supreme Court which heard arguments on July 8. St. Clair argued the matter should not be subject to "judicial [court] resolution" since the matter was a dispute within the executive branch. The branch should resolve the dispute itself. Also, he claimed Special Prosecutor Jaworski had not proven the requested materials were absolutely necessary for the trial of the seven men. Besides, he claimed Nixon had an absolute executive privilege to protect communications "between high Government officials and those who advise and assist them" in carrying out their duties.
Less than three weeks later the Court issued its decision. The justices struggled to write an opinion that all eight could agree to. The stakes were so high, in that the tapes most likely contained evidence of criminal wrongdoing by the President and his men, that they wanted no dissent. All contributed to the opinion and Chief Justice Burger delivered the unanimous decision. After ruling that the Court could indeed resolve the matter and that Jaworski had proven a "sufficient likelihood that each of the tapes contains conversations relevant [important] to the offenses charged in the indictment," the Court went to the main issue of executive privilege. The Court rejected Nixon's claim to an absolute, unqualified executive privilege from the judicial process under all circumstances.
The Court Says What the Law Is
In their discussion of executive privilege, the justices first restated the principle in Marbury v. Madison (1803), "We therefore reaffirm that it isPage 928 | Top of Article the province and duty of this Court 'to say what the law is' with respect to the claim of privilege presented in this case."
Next, the Court confirmed that the concept of executive privilege, although not specifically named, is rooted in the Constitution. Burger stated,
the protection of the confidentiality of Presidential communications has . . . constitutional underpinnings . . . A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive [supposed to be true] privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably [forming a tangle] rooted in the separation of powers under the Constitution . . . to the extent . . . [the privilege] relates to the effective discharge [carrying out] of a President's powers, it is constitutionally based.
However, Burger found that the claim of absolute privilege in the absence of "a claim of need to protect military, diplomatic, or sensitive national security secrets" failed when weighed against the need for evidence in criminal proceedings. Burger wrote, "the President's generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial." Burger ordered Nixon to turn over the tapes to Judge Sirica for inspection.
Nixon, in San Clemente, California at the time, issued a statement that he would obey the Court's order. He turned over sixty-four tapes to Sirica. Portions of indeed revealed the president himself had clearly been involved in attempts to cover-up White House involvement in the Watergate burglary. One tape, recorded on June 23, 1972, produced the voice of Nixon directing the Central Intelligence Agency (CIA) to stop a Federal Bureau of Investigation (FBI) investigation of the burglary. This was a clear obstruction of justice. Realizing Congress was ready to impeach him and, his presidency doomed, Nixon resigned on August 9, 1974.
No Man Above the Law
United States v. Nixon established the constitutional basis for executive privilege but recognized it was not an absolute privilege covering all presidential communication. The doctrine could not prevent disclosure of evidence needed in criminal prosecution.
Interviewing Jaworski over lunch within an hour of the decision, White related in his book that Jaworski said he had pursued this process to the end not for fame but for America's young people. He observed that young people must believe in America's system of justice for it to survive. White quoted Jaworski, "What happened this morning proved what we teach in schools, it proved what we teach in colleges, it proved everything we've been trying to get across — that no man is above the law."
Suggestions for further reading
Friedman, Leon, editor. United States v. Nixon: The President Before the Supreme Court. New York: Chelsea House Publishers, 1974.
Kutlen, Stanley I., editor. Abuse of Power: The New Nixon Tapes. New York: Simon & Schuster, 1998.
White, Theodore H. Breach of Faith: The Fall of Richard Nixon. New York: Atheneum Publishers, 1975.
Woodward, Bob, and Carl Bernstein. The Final Days. New York: Simon & Schuster, 1976.