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United States v. Nixon – An Important Reminder

In these days of political turmoil, it is always important to know specific and relevant events from our country’s past. I was fascinated by the Watergate scandal and was enamored with the role played by prosecutors and Congressional investigations that eventually uncovered the full scope of President Nixon’s involvement in the Watergate burglary and cover-up.

One of the more significant events, with continuing ramifications today, was the Supreme Court’s decision on July 24, 1974, in United States v. Nixon (decision here). The Supreme Court’s decision, 8 to 0 (Justice Rehnquist did not participate), was the catalyst to events that quickly caused President Nixon to resign on August 9, 1974. The setting for this decision was important to understanding the significance of the Court’s decision.

Prior to the Supreme Court’s release of this decision, several events had occurred.

First, the Senate Watergate Committee had investigated the Watergate burglary and the cover-up for over one year. White House counsel, John Dean, was the sole witness incriminating President Nixon in the Watergate scandal. There was no specific evidence that corroborated Dean’s dramatic testimony.

Second, President Nixon’s defense team released edited snippets of thirty or so recorded conversations, relying on carefully manicured transcripts of the recordings with “expletives deleted,” and significant omissions.

Third, on October 20, 1973, President Nixon fired Watergate Special counsel Archibald Cox, who had been appointed by prior Attorney General Patrick Gray because of an obvious conflict of interest between Attorney General Gray and DOJ’s ability to investigate President Nixon. In the infamous “Saturday Night Massacre,” President Nixon ordered then Attorney General Richardson to fire Special Prosecutor Cox, but Attorney General Richardson declined to do so and resigned. President Nixon then ordered Deputy Attorney General William Ruckelshaus to fire Special Prosecutor Cox and he refused.  President Nixon fired him.  It was only after these two actions that President Nixon found Solicitor General William Bork who agreed to fire Special Prosecutor Cox.

Beginning in February 1974, the House of Representatives authorized the House Judiciary Committee to investigate whether there was sufficient grounds to impeach President Nixon.  Three days after the Supreme Court’s decision, the House Judiciary Committee reported three counts to impeach President Nixon.  The House never considered the resolutions because President Nixon resigned on August 8, 1974.

After dismissing Archibald Cox on October 20, 1973, President Nixon was forced to appoint a new Special Prosecutor, Leon Jaworski, who agreed to continue the investigation of President Nixon with certain assurances of independence to protect against his firing. Special Prosecutor Jaworski issued a criminal subpoena in April 1974 to secure tape recordings of conversations, asserting that the conversations were likely to contain relevant evidence against former Nixon Administration officials who were awaiting trial for indicted criminal offenses and possibly the President himself.

In this context, the stakes of the Supreme Court’s consideration of the Special Prosecutor’s request for production of these important tapes could not have been higher. President Nixon’s argument before the Court claimed that the President  has an absolute right to assert a blanket claim of executive privilege against criminal subpoenas. In support of this assertion, President Nixon argued that a President was entitled to rely on the confidentiality of internal discussions and communications in order to foster unrestrained conversations and deliberations of important  executive issues. Prior to this case, the Supreme Court had never specifically recognized the validity of a President’s claim of executive privilege.

Special Prosecutor Jaworski argued that a criminal investigation of a President must take precedence over any blanket claim of executive privilege, and that the President’s executive privilege did not prevent the President from responding to criminal subpoenas. At bottom, Special Prosecutor Jaworski’s argument boiled down to the basic proposition that no one, including the President, was above the law, especially when a criminal investigation focused on allegations that the President engaged in criminal conduct.

Less than three weeks after oral argument before the Supreme Court, the Court unanimously rejected President Nixon’s claim of an absolute assertion of  executive privilege. Instead, the Court emphatically explained that the President could not hide behind a shield of executive privilege to frustrate a criminal investigation of a President’s conduct. Interestingly, however, the Court recognized the claim of executive privilege for the first time and suggested that courts may, in the future, assign weight to national security interests that may arise when considering a President’s executive privilege claim in responding to a criminal subpoena against a sitting President.

Shortly after the Supreme Court’s decision, President Nixon reluctantly produced the subpoenaed tapes. Among the tapes was the smoking gun recording on June 23, 1972, in which President Nixon issued important instructions to his staff to make sure the CIA intervened in the FBI’s investigation and directed the FBI to halt its investigation because of national security interests.   This critical evidence confirmed President Nixon’s involvement in the Watergate scandal. The Supreme Court’s 8-0 decision was the critical catalyst to President Nixon’s resignation and will forever stand as an important reminder that no one, including the President, is above our country’s laws.

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