This is the 10th and final column in a Politics Daily series complementing C-SPAN's broadcasts this fall of audiotape recordings of some of the most famous and important Supreme Court oral arguments of the past 50 years. The broadcasts afford most Americans their first opportunity to hear the actual words spoken by the justices and the lawyers before them in arguments that shaped the laws that have shaped our lives in countless ways. The last tape in the series focuses on the epic
United States v. Nixon, a case that effectively ended a presidency in 1974. It will be heard on C-SPAN Radio at 6 p.m. ET on Saturday, Dec. 18. Earlier columns in this series may be found here
Above the Law? Executive Privilege and the Supreme Court
In United States v. Nixon
, argued and decided
in July 1974 under extraordinary circumstances, the United States Supreme Court ruled unanimously that President Richard M. Nixon was required by law to turn over audiotaped recordings of White House conversations that had been subpoenaed by a federal prosecutor as part of a criminal case relating to the Watergate scandal. The ruling led directly (just three days later
) to the approval of an impeachment count against Nixon by the House Judiciary Committee, which in turn prompted the president to resign on Aug. 9, 1974. When you listen to the argument -- and it's a long one -- remember that it occurred on July 8, 1974 and that Nixon would be gone from the White House only 32 days later.
The fight that brought one of president's men to the Supreme Court -- "United States of America against Nixon" is how the chief justice called the case that day in court -- centered on the president's role as an "unindicted co-conspirator" in one of the cases stemming from the break-in of the Democratic National Committee's offices at the Watergate Hotel in 1972. From this "co-conspirator," special prosecutor Leon Jaworski wanted audiotapes that he believed were material and relevant to his investigation and to the case. U.S. District Judge John Sirica
agreed and ordered the White House to produce the tapes. The president refused to do so.
Nixon's defense centered on his claim that the tapes were exempt from discovery in a criminal case because they contained "privileged" communications between him and his staff -- an "executive privilege." Nixon's lawyers went one step further, too, arguing that "it is not the function of the court to direct or rule what evidence will be presented to it by the executive in the executive's duty of prosecuting." In other words, Nixon argued, because both the federal prosecutor and the president were part of the executive branch, and because the president's power superseded that of the prosecutor, the dispute over the tapes was none of the court's business.
Indeed, of all the other surreal elements that unfolded during the oral argument, perhaps the most compelling was the fact that no one inside the courtroom knew what was on the famous presidential audiotapes. The justices didn't know what was on them. Jaworski
, the prosecutor, certainly didn't know. And neither did Nixon's white-shoe attorney, James St. Clair
. That led to this Monty Pythonesque-exchange between Justice Thurgood Marshall and St. Clair:
Marshall: "Well, I don't know what's in the tapes. I assume you do."
St. Clair: "No, I don't."
Marshall: "You don't know either. Well, how do you know that they're subject to executive privilege?"
St. Clair: "Well, I do know that there's a preliminary showing that they are conversations between the president and his close aides."
It's been said a million times that the ruling that followed stands for the proposition that no person, even the president, is above the law. I see it just a little differently, a little bit more specifically. To me, United States v. Nixon
, still cited in executive privilege cases when they crop up, stands for the proposition that every person, including
the president, must turn over evidence when a judge orders him to do so. Chief Justice Warren Burger, a Nixon appointee, wrote for the court. The decision was 8-0 because Justice William Rehnquist, also a Nixon appointee, had recused himself from the case because he had worked at the Justice Department during the Nixon administration. Here is part of what Burger wrote:
"[N]either the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. 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."
The court also asserted its own relevance and the vital power of federal trial judges to control cases in their courtrooms. Burger wrote: "In light of the uniqueness of the setting in which the conflict arises, the fact that both parties are officer (sic) of the Executive Branch cannot be viewed as a barrier to justiciability. It would be inconsistent with the applicable law and regulation, and the unique facts of this case, to conclude other than that the Special Prosecutor has standing to bring this action, and that a justiciable controversy is presented for decision."
When you listen
to the argument, realize first that you are listening to legal royalty. In July 1974, Jaworski was already an important lawyer
with the law firm that ultimately would bear the name, Fullbright & Jaworski. The Watergate case, of course, would secure his fame long past his death in 1982. Jaworski spoke first that day in July, on behalf of the federal government, in a slow Texas drawl, and it was clear that he was trying to convince the justices just how far the president had gone in asserting executive power over judicial functions. "Now, the president may be right in how he reads the Constitution. But he may also be wrong. And if he is wrong, who is there to tell him so? And if there is no one, then the president of course is free to pursue his course of erroneous interpretation. What then becomes of our constitutional form of government?"
Nixon's attorney, St. Clair, tried to answer that question when he took his turn at the podium. He doggedly insisted that his client had the power to interpret the scope of his executive branch powers in his own way, as the sole arbiter of those powers, without any interference from the federal courts. At times, especially when St. Clair was tousling with the justices over the scope of their review, he made arguments about the power of the presidency that would wow even today's fans of the "unitary executive theory
." But he wrapped up his case smoothly: "As I said earlier, the president is not above the law, nor does he contend that he is. But he does contend that as president the law can be applied to him in only one way, and that's by impeachment, not by naming as a co-conspirator in a grand jury indictment, not by indictment, or in any other way."
Finally, the fallout (for you young 'uns coming late to this story): The tapes were turned over by the White House and they did, in fact, directly implicate Nixon in the Watergate coverup. Nixon's successor, Gerald Ford, then pardoned his old boss to avoid the spectacle of a criminal trial. Nixon moved to California. In 1977, in a famous interview with David Frost, an interview that generated its own movie
a few years ago, Nixon finally explained his warped view of the Constitution and its separation of powers. "When the president does it," Nixon told Frost
, "that means it is not illegal."