Safatul Islam

AP Government

United States v Nixon (1974)

            Perhaps the most notorious political scandal of all time was the Watergate Scandal during the Nixon administration. At a time when the nation was barely recovering from the follies of the Vietnam War and there was a steady rise in invenstigative reporting to unearth any conspiracies that may be occurring, the scandal dealt a huge blow to the already waning trust in the federal government. On the evening of June 17, 1972, a group of men were found spying on the Democratic National Committee. These five guys, all of whom were convicted, mysteriously had ties to CREEP – the Committee to Re-elect the President (Richard Nixon). This break-in led to a whole series of investigations, largely spearheaded by two Washington Post reporters, Bob Woodward and Carl Bernstein, and their secret source, Deep Throat. Over the next few months, dozens of members of the Executive Branch were found to have ties to this illegal activity. The trail of evidence naturally led up to the head honcho – the president himself.

            Hoping to resolve the issue once and for all, Special Prosecutor Leon Jaworski, appointed by the government to investigate the matter, entreated one of the district judges, Judge Sirica, to issue a subpoena demanding that President Nixon release "certain tapes, memoranda, papers, transcripts, or other writings" relevant to the case. Jaworski included specific conversations, revealed by prior evidence, that he wanted to study. Judge Sirica issued the subpoena, but, unsurprisingly, Nixon and his crew objected immediately. Fearing the negative consequences that may result from the prosecutor gaining this evidence, Nixon released some edited versions of the tapes but refused to give the real deal. This only led to further dispute because Jaworski and Sirica demanded the actual tapes be engendered. Ultimately Nixon and his lawyer, James St. Clair, chose to take the issue to the Supreme Court by means of a writ of certiorari, praying that the Court would acknowledge Nixon’s absolute executive privilege to conceal evidence and refuse the subpoena ^[1].

            The Supreme Court at this time was under the new leadership of Chief Justice Burger. In 1969, Burger was chosen by Nixon in hopes of curtailing the relatively liberal decisions enacted by his predecessor, Earl Warren. In fact, coming into the office, Burger was hailed for his strict interpretation of the Constitution and his conservative tendencies. Hence, it was no surprise that Nixon rested his last bit of hope in the Court, despite all the evidence against him. In actuality, however, the Burger Court proved to preserve and extend the precedents set by the Warren Court, promoting individual liberties (eg Griswold v. Connecticut) and continuously expanding the Supreme Court’s power in dictating law. Nonetheless, this Court consisted of a fairly split group of justices – many of the decisions were made by 5-4 majorities ^[2].

            Such a slight deciding factor was impossible in United States v Nixon. Due to the severity of the case and its impact on national government, the Supreme Court wished to produce a consensus opinion, thereby showing their own authority and relieving some of the tension and uncertainty among the American people. At the same time, a strong majority decision would also mean creating a definite precedent, so the opinion would have to be craftily designed ^[3].

            The Court was faced with difficult issues regarding the separation of powers and executive authority. James St. Clair argued that the President had no need to obey the subpoena issued by the Special Prosecutor because of the executive privilege implicitly granted to him by Article II in the Constitution; since the President had the power to safeguard the nation, he could censor information available only to him. This privilege, they argued, was supported by two factors central to this case. First of all, the President has an obligation to protect his communications with high-ranking officials to ensure confidentiality in many matters. Public interference with the President’s actions would undoubtedly impede decision-making and create chaos and instability in government. The defense (or respondents) also argued that the entire case involves issues within the Executive Branch and, by virtue of the separation of powers, has to stay within this Branch. Thus, they can ignore the subpoena in the criminal investigation altogether because it would take away from the insulation and privacy the Executive Branch (and any Branch) possesses. The essential message was that the President and henchmen lie above the law.^[4]

            This proved a hazy argument at best. It immediately contradicted many of the other statutes in the Constitution, particularly those in Article III outlining the Judiciary’s responsibility to do justice in criminal prosecutions. If the Court were to rule in favor of Nixon, then, they would by default weaken their own power. This issue of Judicial power did bring in some precedents, most notably Marbury v Madison. In that decision, Justice Marshall affirmed that "[i]t is emphatically the province and duty of the judicial department to say what the law is." Thus, the Executive Branch cannot operate in their own sphere with their own laws. Furthermore, the concept of separation of powers set up a system where each government entity had a specific duty. For instance, only the Legislature can write laws, and the President can veto them. The Judicial Branch’s overarching power was upholding these laws and the Constitution. Hence, Nixon’s argument that the President need not listen to a subpoena was thoroughly invalid.^[5] Finally, the Court pointed to the case of United States v Burr, where the Marshall Court was also faced with the question of whether President Jefferson could reject a subpoena requesting him to reveal information regarding his evidence of Burr's treasonous actions. Burr had been a long time opponent of Jefferson and was accused of wanting to take command of the Western states and secede from the Union. Even though this has some national security ramifications in it, Justice Marshall decided that Jefferson did have to obey the subpoena.^[6] 

            Yet the issue of Presidential privacy was not that simple. The Court acknowledged that just as citizens have their right to privacy – only recently established in Griswold v Connecticut – the President should have an ever greater degree of confidentiality to allow him to do his job without infractions. Nonetheless, in a criminal case like this, there were no pressing military and foreign matters in question, so the President should have no reason to hide anything. To still award deference to the President, the Court said that the subpoena would release the information only to the Special Prosecutor and not the general public. Indeed, this was what happened.

            In an unanimous 8-0 vote(Rehnquist did not participate because he was only recently appointed into the bench by Nixon), the Supreme Court mandated that the President listen to the subpoena, and by doing so, asserted that he nor any Branch of government, is above the law. The decision still acknowledged the President’s rights, however. But, in this criminal investigation, the justice process enacted by the Judiciary superseded all. This put some important limitations on the President's arbitrary powers. ^[7]

            Personally, I have little to argue with in this decision. I appreciate that the Justices were sensible enough to make this a unanimous vote because anything less than that would have still shrouded the case and our government in uncertainty. The fact is that the Framers never intended anyone to be beyond the jurisdiction of law in our country. The President does need confidentiality, as the Court realized, but his actions should still have some limits. As a nation that pledges for democracy and good will, it is ludicrous to think we would allow our President to commit crimes secretly. Unfortunately they do and this decision was comforting in the sense that it asserted the President can be prosecuted just as any normal citizen. The Court did not infringe to deeply into the privacy of the Executive, however, and this was also a good decision because if the already obnoxious media were to gain access to such top-secret affairs, our whole democratic system would be in chaos. Essentially, some things, so long as they are not illegal, need to be done behind closed doors. Hence, the choice to have only an impartial ‘Special Prosecutor’ examine the evidence was a logical compromise. Justice can thus be established.