U.S. v. Nixon: 1974

Plaintiff: United States
Defendant: President Richard M. Nixon
Plaintiff Claims: That the president had to obey a subpoena ordering him to turn over tape recordings and documents relating to his conversations with aides and advisers concerning the Watergate break-in
Chief Defense Lawyer: James D. St. Clair
Chief Lawyers for Plaintiff: Leon Jaworski and Philip A. Lacovara
Justices: Harry A. Blackmun, William J. Brennan, Warren E. Burger, William 0. Douglas, Thurgood Marshall, Lewis F. Powell, Jr., Potter Stewart, and Byron R. White. William A. Rehnquist recused himself from the case.
Place: Washington, D.C.
Date of Decision: July 24, 1974
Decision: President Nixon was ordered to turn over the tapes and other documents to the prosecutors

SIGNIFICANCE: 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 if the evidence involves matters of national security or other sensitive information, but the President cannot withhold evidence.

By the Spring of 1974, the government investigation into the Watergate break-in and the subsequent coverup was moving fullsteam ahead. Despite President Richard M. Nixon's repeated denials, it was becoming increasingly clear to Congress and the public that senior Nixon administration officials, and probably Nixon himself, had been actively involved in the coverup. On March 1, 1974, a 19-person federal grand jury indicted Attorney General John N. Mitchell for conspiracy to obstruct justice, and the proceeding was entitled U.S. v. Mitchell. Six other persons, all senior Nixon administration officials employed in the White House or the Committee to Re-Elect the President (CREEP), were indicted as co-conspirators: Charles W. Colson, John D. Ehrlichman, H.R. Haldeman, Robert C. Mardian, Kenneth W. Parkinson, and Gordon Strachan. Nixon also was included but as an unindicted co-conspirator.

On April 18, 1974, Special Prosecutor Leon Jaworski, charged with the responsibility of conducting the Watergate investigation for the government, went to Judge John Sirica of the U.S. District Court for the District of Columbia. In response to Jaworski's request, Sirica issued a subpoena ordering Nixon to produce "certain tapes, memoranda, papers, transcripts, or other writings" related to the specific meetings and conversations detailed in the subpoena. The material was to be turned over by May 2, 1974, for use in the trial, scheduled for September 9, 1974. Jaworski was able to identify the time, place, and persons present at these discussions because he already possessed the White House daily logs and appointment records.

Nixon Fights Subpoena

Nixon turned over edited transcripts of 43 conversations, which included portions of 20 conversations named in the subpoena, on April 30, 1974. On May 1, however, Nixon's attorney, James D. St. Clair, went to Sirica and asked that the subpoena be quashed. Nixon had hoped that the transcripts, which had been publicly released, would satisfy the court's and the public's demand for information without turning over the tapes. Nixon was wrong: Sirica denied St. Clair's motion on May 20, 1974. Sirica ordered "the President or any subordinate officer, official, or employee with custody or control of the documents or objects subpoenaed" to turn them over to the court by May 31, 1974.

On May 24, 1974, a week before Sirica's deadline, St. Clair filed an appeal to the U.S. Court of Appeals for the District of Columbia Circuit. Both sides realized, however, that the critical legal issue of whether the courts could subject the President to subpoenas and other forms of judicial process would ultimately have to be decided by the U.S. Supreme Court. Further, both sides were acutely aware of the political stakes and were anxious to avoid lengthy litigation. Therefore, on May 24, 1974, Jaworski took the highly unusual step of asking the Supreme Court to grant "certiorari before judgment," namely to take the case without waiting for the court of appeals to make a decision. The effect of bypassing the court of appeals would be to get a fast and final decision from the Supreme Court, and on June 6, 1974, St. Clair also requested certiorari before judgment.

On June 15, 1974, the Supreme Court granted Jaworski's and St. Clair's requests and decided to take the case from the court of appeals. St. Clair represented Nixon, and Jaworski was assisted by Philip A. Lacovara for the government. The case was argued before Supreme Court Justices Harry A. Blackmun, William J. Brennan, Warren E. Burger, William 0. Douglas, Thurgood Marshall, Lewis F. Powell, Jr., Potter Stewart, and Byron R. White in Washington, D.C. on July 8, 1974. Justice William A. Rehnquist, a Nixon appointee to the court, recused himself from the case.

There is a popular notion that the judicial system, especially the Supreme Court, is above politics. This is a myth. When Jaworski and Lacovara went into the Supreme Court building on July 8, there were hundreds of cheering spectators on the steps. The justices themselves were obviously very involved as well, and grilled both sides during the oral argument. Justice Lewis Powell questioned Nixon's claim that the tapes had to be kept secret to protect the public interest:

Mr. St. Clair, what public interest is there in preserving secrecy with respect to a criminal conspiracy?

St. Clair responded lamely:

The answer, sir, is that a criminal conspiracy is criminal only after it's proven to be criminal.

The government's attorneys were questioned thoroughly as well, particularly on the issue of whether the grand jury set a dangerous precedent by naming the president as a co-conspirator when the prosecutors hadn't even requested an indictment. In response to Justice Powell's concerns, Lacovara stated:

Grand Juries usually are not malicious. Even prosecutors cannot be assumed to be malicious.… I submit to you, sir, that just as in this case a Grand Jury would not lightly accuse the President of a crime, so, too, the fear that, perhaps without basis, some Grand Jury somewhere might maliciously accuse a President of a crime is not necessarily a reason for saying that a Grand Jury has no power to do that.

The Supreme Court issued its decision on July 24, 1974, less than three weeks later. During the intervening time, the justices struggled to write an opinion on which all eight of them could agree. Although Supreme Court justices are free to dissent as they see fit, they wanted a unanimous decision in this case because of the important issues at stake concerning the relationship between the executive and the judiciary. A split decision would weaken the impact of the Court's decision. Although Burger was the chief justice and nominally in charge of writing the opinion, in fact, all eight justices wrote or contributed to portions of the decision.

Nixon Ordered to Release Tapes

After dispensing with some initial procedural issues, the court went to the main issue, namely whether the president was cloaked with immunity from judicial process under the doctrine called "executive privilege." First, the Court restated the principle of Marbury v. Madison (see separate entry) that "it is emphatically the province and duty of the judicial department to say what the law is:"

[Notwithstanding] the deference each branch must accord the others, the judicial power of the United States vested in the federal courts by Article III, section 1, of the Constitution can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto. Any other conclusions would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government. We therefore reaffirm that it is the province and the duty of this Court to say what the law is with respect to the claim of privilege presented in this case.

Next, the court addressed Nixon's two principal arguments in favor of executive privilege. First, St. Clair argued that for the presidency to function, conversations and other communications between high government officials and their advisors had to be kept confidential. Otherwise, if every statement could be made public, advisors would be reluctant to speak freely, and the decision-making process would suffer. Second, St. Clair argued that the very nature of the doctrine of separation of powers gave the President judicial immunity. In rejecting both arguments, the Court stated that while confidentiality was important, it could be maintained by letting a judge review evidence in camera, namely alone in his or her chambers:

The President's need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a District Court will be obliged to provide.

Further, the court stressed that recognizing Nixon's broad claim of executive privilege could seriously compromise the judicial system's obligation to assure the dispensation of justice in criminal trials:

The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Article III [of the Constitution].… In this case the President challenges a subpoena served on him as a third party requiring the production of materials for use in a criminal prosecution; he does so on the claim that he has a privilege against disclosure of confidential communications. He does not place his claim of privilege on the ground they are military or diplomatic secrets.

Given that Nixon had not asserted any specific reason why the courts should not have the tapes in the U.S. v. Mitchell trial, the justices ordered Nixon to turn them over to Judge Sirica for in camera inspection.

Ordering a president to do something is one thing; enforcing that order is another. The judicial branch is a co-equal branch of government, but as one of the framers of the Constitution commented, it "possesses neither sword nor purse," meaning that it is without the military power of the executive branch or the taxing power of the legislative branch. The judiciary depends ultimately on its stature and public respect for the democratic system for enforcement of its orders. During oral argument, St. Clair had hinted darkly that Nixon "had his obligations under the Constitution," leaving it unclear whether Nixon would obey the Court's order to turn over the tapes to Sirica.

Nixon was in San Clemente, California, when he received word of the Supreme Court's unanimous decision from his aide, Alexander Haig. Within a day, however, Nixon issued a public statement that he would comply with the Court's order. The relevant part of Nixon's statement was:

While I am, of course, disappointed in the result, I respect and accept the court's decision, and I have instructed Mr. St. Clair to take whatever measures are necessary to comply with that decision in all respects.

Nixon turned over 64 tapes to Sirica, some of which included highly incriminating conversations between Nixon and his aides shortly after the Watergate break-in. Congress was ready to impeach him, and Nixon realized that his presidency was doomed. On August 8, 1974, Nixon announced his resignation and Vice President, Gerald Ford became president at noon on August 9, the effective date of the resignation. Because Ford later exercised his power to pardon Nixon, Nixon never stood trial. Nevertheless, the case established an important precedent, namely that if there is any executive privilege, it does not permit the president to withhold evidence needed by the courts. Finally, the case sounded the death knell for the political career of Richard Nixon, who had formerly been one of America's most popular and successful presidents.

—Stephen G. Christianson

Suggestions for Further Reading

Ball, Howard. "We Have a Duty": the Supreme Court and the Watergate Tapes Litigation. New York: Greenwood Press, 1990.

Berger, Raoul. Executive Privilege: a Constitutional Myth. Cambridge, Mass.: Harvard University Press, 1974.

Carlson, Margaret. "Notes from Underground: a Fresh Batch of White House Tapes Reminds a Forgiving and Forgetful America Why Richard Nixon Resigned in Disgrace." Time (June 17, 1991): 27-28.

Doyle, James. Not Above the Law: the Battles of Watergate Prosecutors Cox and Jaworski: a Behind the Scenes Account. New York: William Morrow & Co., 1977.

Friedman, Leon. United States v. Nixon: the President Before the Supreme Court. New York: Chelsea House Publishers, 1974.

Jaworski, Leon. The Right and the Power: the Prosecution of Watergate. New York: Reader's Digest Press, 1976.

Woodward, Bob. The Brethren: Inside the Supreme Court. New York: Simon & Schuster, 1979.