United States v. Nixon, 1974
The President and Executive Privilege
by Fidel Andrada
★★★ Background of the Case ★★★
During President Nixon’s 1972 re-election campaign, several men were caught breaking into the Democratic National Committee’s headquarters in the Watergate apartment and office complex in Washington, D.C. It turned out that the burglars were associated with the president’s campaign. A nationwide political and public outcry mushroomed into what became known as the Watergate scandal.
The United States Department of Justice appointed a special prosecutor to carry out an independent investigation of the scandal. From the investigation, trials of various White House staff members, investigative newspaper reports, and televised Senate Select committee investigative hearings, a shocked nation learned that the White House was involved in planning and covering up the burglary.
When it was revealed that the president had taped many conversations in the White House Oval Office, both the Senate investigating committee and the special prosecutor attempted to secure the tapes. The president refused to release them, claiming separation of powers and executive privilege, the right of the president to keep his conversations confidential. The special prosecutor subpoenaed the tapes, and a federal judge ordered President Nixon to release them. Nixon refused and instead turned to the Supreme Court for a judgment on executive privilege.
★★★ Constitutional Issue ★★★
The question for the Court to decide was whether the president could refuse to surrender the tapes and other information to a federal court for possible use against those charged in connection with the Watergate break-in.
★★★ The Supreme Court’s Decision ★★★
The Court agreed unanimously that the president had to turn over the tapes. Chief Justice Warren E. Burger wrote for the Court. President Nixon had argued that the courts had no jurisdiction over what he claimed was a dispute between the president and his subordinate, the special prosecutor. The Court responded that it was competent to decide the case, just as it had decided similar controversies between officers and branches of the government in the past. In addition, because the material was wanted for a normal federal criminal trial, the matter fell directly under the Court’s jurisdiction through the judicial powers spelled out in Article III of the Constitution.
The president had also claimed that executive privilege shielded him from a subpoena for two reasons. First, it was necessary to protect the confidentiality of high-level presidential communications. Second, the principle of separation of powers protects the president through the independence of the executive branch.
The Court found this argument insufficient, depending merely on a broad and undifferentiated claim of public interest that such conversations remain confidential. It might have been different, the chief justice wrote, if this had been a claim to protect “military, diplomatic or sensitive national security secrets. . . .”
Chief Justice Burger further reasoned that the claim based on the separation of powers would work to impair the balance of those powers. He wrote: “To read the Article II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in the confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of a ‘workable government’ and gravely impair the role of the courts under Article III.”
Against the president’s claim of executive privilege stood the Sixth Amendment rights of the accused to subpoena evidence and the Fifth Amendment guarantees against being deprived of liberty without due process of law. The Court weighed these claims and concluded, “without access to specific facts a criminal prosecution may be totally frustrated. The President’s broad interest in confidentiality . . . will not be vitiated by disclosure of a limited number of preliminary conversations shown to have some bearing on the pending criminal cases.” In short, the Court concluded, the president’s claim “cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.”
Finally, the Court ordered certain safeguards on the handling of the tapes while in the possession of the district court. These safeguards included that they be examined by the judge in private; that only relevant material would be used; and that confidentiality would be preserved as far as possible and that the material would be safely returned.
When Nixon still hesitated to turn the tapes over to the Senate committee, the House recommended that the president be impeached. Nixon then released the tapes, which revealed his role in the cover-up, and four days later he resigned the presidency, the first president in the history of the U.S. to do so.
★★★ Questions ★★★
1. What reasons did the president give for justifying his claim of executive privilege?
A. The special prosecutor claimed a need to protect the confidentiality of high-level communications and to protect the independence of the executive branch through the separation of powers.
B. The president claimed a need to protect the confidentiality of high-level communications and to protect the independence of the executive branch through the separation of powers.
C. The president claimed a need to protect the confidentiality of high-level communications and to protect the independence of the legislative branch through the separation of powers.
2. Did the Court hold that there are no circumstances under which executive privilege might be asserted? Which statement correctly answers and explains this question?
C. No, the Court held that executive privilege may be invoked for situations in which the president needs to protect “military, diplomatic, or sensitive national security secrets.”
D. Yes, the Court held that executive privilege may not be invoked for situations in which the president needs to protect “military, diplomatic, or sensitive national security secrets.”
E. No, the Court held that executive privilege may be invoked for situations in which the president needs to protect “military, diplomatic, or sensitive foreign security secrets.”
3. Which two statements correctly agree and disagree with the Court’s decision that a president must reveal material that he has recorded for his own use if it is needed as evidence in a criminal trial?
F. A president must reveal material for a criminal trial may say that an individual cannot receive a fair trial unless he or she has access to all relevant information and evidence concerning the crime.
G. A president needs to be able to keep conversations with others confidential, otherwise an individual cannot receive a fair trial unless he or she has access to all relevant information and evidence concerning the crime
H. A president needs to be able to keep conversations with others confidential, otherwise advisers will be hesitant to speak freely and to provide the president with needed information and advice.
4. In what way did the Court’s decision lead President Nixon to resign?
I. The Court forced President Nixon to turn the tapes over to the special prosecutor, and their contents revealed that he had violated federal laws through his efforts to withhold and cover up information pertinent to a federal crime.
J. The Court forced President Nixon to turn the tapes over to the federal trial court, and their contents revealed that he had violated federal laws through his efforts to interpret and reveal information pertinent to a federal crime.
K. The Court forced President Nixon to turn the tapes over to the federal trial court, and their contents revealed that he had violated federal laws through his efforts to withhold and cover up information pertinent to a federal crime.
5. A constitutional scholar has written that the most important contribution of the Nixon case is “in its reaffirmation that even the highest officer of government is not beyond the reach of the law and the courts.” Which statement correctly explains how this conclusion relates to the idea of a democratic government?
L. The statement means that in our government even a president is not above the law and that this case reinforced the democratic nature of our government.
M. The statement means that in our government even a Supreme Court is not above the law and that this case reinforced the democratic nature of our government.
N. The statement means that in our government even a president is not above the law and that this case reinforced the judicial nature of our government.
