Revisiting 'United States v. Nixon,' four decades later

Forty years ago next week, Richard M. Nixon became the only person ever to resign as president of the United States. He did so largely because of the Supreme Court's historic decision in United States v. Nixon, 418 U.S. 683 (1974), which contributed quickly to the end of the Nixon presidency and what President Ford aptly called the "long national nightmare" that was Watergate.

The unanimous ruling, at a time when the Supreme Court was far less polarized and polarizing, reiterated that nemo est supra legis ("no man is above the law"); affirmed the bedrock principle that the court can, should and will decide constitutional disputes; and, while recognizing a constitutional basis for the doctrine of executive privilege, nonetheless effectively caused Nixon to resign in disgrace as his own words - that he preserved on tape for his own financial benefit - were soon used against him to establish his criminal role in the infamous Watergate cover-up.

This is how the case got to the Supreme Court.

On March 1, 1974, a grand jury indicted former U.S. Attorney General John N. Mitchell and six others for conspiracy to defraud the United States and to obstruct justice, all in the wake of CREEP's (the Committee to Re-Elect the President) 1972 break-in at the Democratic Party's headquarters at the Watergate Hotel in Washington. The grand jury also named Nixon and others as unindicted co-conspirators.

In April, the Watergate special prosecutor, Leon Jaworski, asked the District Court to issue a subpoena for Nixon to produce audiotapes and documents of specific conversations he had in the White House - and that likely constituted evidence of the charges against the defendants. From there, events moved quickly.

The Watergate trial judge, John J. Sirica, allowed Jaworski's motion, a subpoena issued, Nixon moved to quash it, Sirica denied his motion, Nixon appealed, and the Supreme Court decided to hear the appeal directly.

So, on July 8 the parties' attorneys made their way through boisterous crowds outside the courthouse to argue in a packed courtroom and before eight justices (with Justice William H. Rehnquist not participating due to his former role working for Nixon and Mitchell).

Nixon, represented by the late Boston attorney James D. St. Clair (then of Hale and Dorr), argued that the subpoena was improper for three reasons, all of which the court, through an opinion written by Chief Justice Warren E. Burger, rejected just 16 days later.

First, Nixon claimed that the District Court had no jurisdiction to authorize a subpoena from the special prosecutor to the president because both parties were within the executive branch. Such an "intra-branch dispute," Nixon argued, was a non-justiciable political question, and not a "case or controversy" as required by Article III.

Burger, however, wrote that because the special prosecutor asserted a specific need for the evidence, the president asserted a privilege against producing it, and the issue arose "in the regular course of a federal criminal prosecution," deciding who wins was within "the traditional scope" of what federal judges do under the Constitution.

Second, Nixon sought to toss the subpoena under the provision of the federal criminal rules that makes an "unreasonable or oppressive" subpoena invalid. Pointing out that the sealed record of the District Court proceedings created "a rational inference" that the taped conversations "relate to the charges in the indictment," that the tapes "apparently contain conversations to which one or more of the defendants named in the indictment were party," and that the tapes were not "available from any other source," Burger concluded that the subpoena was not a fishing expedition and was neither unreasonable nor oppressive.

With two strikes against him, Nixon - who had appointed Burger to the court as chief justice in 1969 - swung for the fences with his claim of executive privilege, i.e., that conversations between any president and his close advisors are privileged from disclosure, just as attorney-client and priest-penitent conversations are. Nixon boldly argued that the separation of powers doctrine barred any court from even being able to review his claim of executive privilege, and that in any event a claim of privilege trumps a subpoena.

Not so fast, Burger wrote. Invoking Marbury v. Madison, Burger cited to its famous line penned by Chief Justice John Marshall: "It is emphatically the province and the duty of the judicial department to say what the law is."

Armed with that language, Burger said that the court and not Nixon would say what the law is on executive privilege. Burger then said respect for the presidency certainly meant that a president has a presumptive executive privilege to protect confidential conversations, especially about military, diplomatic or sensitive national security secrets. However, even a presumptive privilege cannot justify "an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances."

No, Burger said, "this presumptive privilege must be considered in the light of our historic commitment to the rule of law," which includes the general right to everyman's evidence, the goal of determining guilt and innocence, and the court system's need to have evidence that is "demonstrably relevant in a criminal trial."

"The generalized assertion of privilege must yield," Burger concluded, "to the demonstrated, specific need for evidence in a pending criminal trial."

Accordingly, Burger affirmed Sirica's rulings that 1) the subpoenaed materials were presumptively privileged, 2) the special prosecutor had made a showing to rebut the presumption, and 3) the materials should be produced for an in camera review to determine admissibility and relevance.

Burger cautioned Sirica that while a president is not "above the law," respect for his "singularly unique role" under the Constitution required a "high degree of deference" in reviewing the materials.

Nixon, in classic Nixonian fashion, briefly flirted with ignoring the ruling. But, he decided to comply and told his attorneys that the June 23, 1972, tapes - just days after the break-in - would be a problem. He was right. Those tapes were the smoking gun showing that he sought to cover up the FBI investigation of Watergate from the get-go.

At the end of July, after weeks of nationally televised hearings, the House Judiciary Committee approved three articles of impeachment, and on Aug. 5 the contents of the subpoenaed tapes were made public. The reaction was swift: Nixon must resign or face certain impeachment, trial, conviction and removal from office.

On Aug. 9, Nixon resigned and flew off to California.

According to Bob Woodward and Scott Armstrong's "The Brethren," Justice Potter Stewart told his law clerks that Burger's first draft of the decision would have received a "D" in law school, but that he and other justices had raised it to a "B." That may have been the case. The bottom line, however, is that it was an "A" in terms of what it accomplished for the rule of law and the nation.

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Robert M. Mendillo is the litigation manager at Harmon Law Offices in Newton.

Published: Wed, Aug 06, 2014

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