Appellant
United States
Appellee
Richard M. Nixon, President of the United States
Appellant's Claim
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 Lawyers for Appellant
Leon Jaworski, Philip A. Lacovara
Chief Lawyer for Appellee
James D. St. Clair
Justices for the Court
Harry A. Blackmun, William J. Brennan, Jr., Warren E. Burger (writing for theCourt), William O. Douglas, Thurgood Marshall, Lewis F. Powell, Jr., PotterStewart, Byron R. White
Justices Dissenting
None (William H. Rehnquist did not participate)
Place
Washington, D.C.
Date of Decision
24 July 1974
Decision
President 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 thepresident to a high degree of confidentiality from the courts if the evidenceinvolves 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 full-steam ahead. Despite PresidentRichard 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 1 March 1974,a 19-person federal grand jury indicted U.S. Attorney General John N. Mitchell for conspiracy to obstruct justice in the proceeding in United States 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 18 April 1974, Special Prosecutor Leon Jaworski, charged with the responsibility of conducting the Watergate investigation for the government, went toJudge John Sirica of the U.S District Court for the District of Columbia. Inresponse 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. Thematerial was to be turned over by 2 May 1974, for use in the trial, scheduledfor 9 September 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 the Subpoena
Nixon turned over edited transcripts of 43 conversations, which included portions of 20 conversations named in the subpoena, on 30 April 1974. On 1 May, 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 beenpublicly 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 20 May 1974. Sirica ordered "the President or any subordinateofficer, official, or employee with custody or control of the documents or objects subpoenaed" to turn them over to the court by 31 May 1974.
On 24 May 1974, a week before Sirica's deadline, St. Clair filed an appeal tothe 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 24 May 1974 Jaworski took the highly unusual step ofasking 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 6 June 1974, St. Clair also requested certiorari before judgment.
On 15 June 1974 the Supreme Court granted Jaworski's and St. Clair's requestsand 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.Justice Rehnquist, a Nixon appointee to the Court, excused himself from the case.
There is a popular notion that the judicial system, especially the Supreme Court, is above politics. This would seem to be a myth. When Jaworski and Lacovara went into the Supreme Court building on 8 July, there were hundreds of cheering spectators on the steps. The justices themselves were obviously involved as well, and grilled both sides during the oral argument. Justice Powell questioned Nixon's claim that the tapes had to be kept secret to protect the public interest:
The government's attorneys were questioned thoroughly as well, particularly on the issue of whether the grand jury set a dangerous precedent by naming thepresident as a co-conspirator when the prosecutors had not even requested anindictment. In response to Justice Powell's concerns, Lacovara stated:
The Supreme Court issued its decision on 24 July 1974, less than three weekslater. During the intervening time, the justices struggled to write an opinion on which all eight of them could agree. Although Supreme Court justices arefree 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 impactof the Court's decision. Although Burger was the chief justice and nominallyin charge of writing the opinion, in fact, all eight justices wrote or contributed to portions of the decision.
Nixon Order to Release
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 Courtrestated the principle of Marbury v. Madison (1803) that "it is emphatically the province and duty of the judicial department to say what the law is:"
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 couldbe made public, advisors would be reluctant to speak freely, and the decision-making process would suffer. Second, St. Clair argued that the very natureof the doctrine of separation of powers gave the president judicial immunity.In rejecting both arguments, the Court stated that while confidentiality wasimportant, it could be maintained by letting a judge review evidence in camera, namely alone in his or her chambers:
Further, the Court stressed that recognizing Nixon's broad claim of executiveprivilege could seriously compromise the judicial system's obligation to assure the dispensation of justice in criminal trials:
Given that Nixon had not asserted any specific reason why the courts should not have the tapes in the United States v. Mitchell trial, the justicesordered 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 ofthe 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 enforcementof 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:
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 8 August 1974, Nixon announced his resignation and Vice President Gerald Ford became president at noon on 9 August, the effective dateof the resignation. Because Ford exercised his power to pardon Nixon, Nixonnever 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.
Related Cases
Presidential Succession
After the assassination of President John F. Kennedy and the succession of Vice President Lyndon B. Johnson to the presidency, Americans became concernedabout the issue of presidential succession. For the next 14 months the vice-presidency remained vacant. Most Americans were shocked to learn that if Johnson, who had suffered a heart attack in 1955, died during 1964, John McCormack, the 73-year-old Speaker of the House of Representatives, would become president. Next in line was Carl Hayden, the 87-year-old president pro tempore of the Senate.
This situation was rectified on 10 February 1967 when the Twenty-fifth Amendment was ratified. This amendment allowed the president to nominate a new vice-president, who would take office after approval by a majority vote in each house of Congress. It also added provisions governing temporary presidential disability, specifying the circumstances and provisions by which a vice-president would become acting president.
The provisions for naming a new vice-president have only been invoked twice.In 1973 when President Richard M. Nixon selected Rep. Gerald Ford to replaceSpiro T. Agnew; and in 1974 after Nixon resigned the presidency, Ford becamepresident and Nelson A. Rockefeller of New York was chosen as the new vice president.
United States
Appellee
Richard M. Nixon, President of the United States
Appellant's Claim
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 Lawyers for Appellant
Leon Jaworski, Philip A. Lacovara
Chief Lawyer for Appellee
James D. St. Clair
Justices for the Court
Harry A. Blackmun, William J. Brennan, Jr., Warren E. Burger (writing for theCourt), William O. Douglas, Thurgood Marshall, Lewis F. Powell, Jr., PotterStewart, Byron R. White
Justices Dissenting
None (William H. Rehnquist did not participate)
Place
Washington, D.C.
Date of Decision
24 July 1974
Decision
President 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 thepresident to a high degree of confidentiality from the courts if the evidenceinvolves 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 full-steam ahead. Despite PresidentRichard 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 1 March 1974,a 19-person federal grand jury indicted U.S. Attorney General John N. Mitchell for conspiracy to obstruct justice in the proceeding in United States 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 18 April 1974, Special Prosecutor Leon Jaworski, charged with the responsibility of conducting the Watergate investigation for the government, went toJudge John Sirica of the U.S District Court for the District of Columbia. Inresponse 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. Thematerial was to be turned over by 2 May 1974, for use in the trial, scheduledfor 9 September 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 the Subpoena
Nixon turned over edited transcripts of 43 conversations, which included portions of 20 conversations named in the subpoena, on 30 April 1974. On 1 May, 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 beenpublicly 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 20 May 1974. Sirica ordered "the President or any subordinateofficer, official, or employee with custody or control of the documents or objects subpoenaed" to turn them over to the court by 31 May 1974.
On 24 May 1974, a week before Sirica's deadline, St. Clair filed an appeal tothe 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 24 May 1974 Jaworski took the highly unusual step ofasking 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 6 June 1974, St. Clair also requested certiorari before judgment.
On 15 June 1974 the Supreme Court granted Jaworski's and St. Clair's requestsand 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.Justice Rehnquist, a Nixon appointee to the Court, excused himself from the case.
There is a popular notion that the judicial system, especially the Supreme Court, is above politics. This would seem to be a myth. When Jaworski and Lacovara went into the Supreme Court building on 8 July, there were hundreds of cheering spectators on the steps. The justices themselves were obviously involved as well, and grilled both sides during the oral argument. Justice 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 thepresident as a co-conspirator when the prosecutors had not even requested anindictment. 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 24 July 1974, less than three weekslater. During the intervening time, the justices struggled to write an opinion on which all eight of them could agree. Although Supreme Court justices arefree 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 impactof the Court's decision. Although Burger was the chief justice and nominallyin charge of writing the opinion, in fact, all eight justices wrote or contributed to portions of the decision.
Nixon Order to Release
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 Courtrestated the principle of Marbury v. Madison (1803) 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 byArticle 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 tooverride a Presidential veto. Any other conclusions would be contrary to thebasic 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 tothe 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 couldbe made public, advisors would be reluctant to speak freely, and the decision-making process would suffer. Second, St. Clair argued that the very natureof the doctrine of separation of powers gave the president judicial immunity.In rejecting both arguments, the Court stated that while confidentiality wasimportant, 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 interestin confidentiality of Presidential communications is significantly diminishedby production of such material for in camera inspection with all theprotection that a District Court will be obliged to provide.
Further, the Court stressed that recognizing Nixon's broad claim of executiveprivilege 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 ArticleIII [of the Constitution] . . . In this case the President challenges a subpoena served on him as a third party requiring the production of materials foruse 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 United States v. Mitchell trial, the justicesordered 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 ofthe 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 enforcementof 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 tocomply 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 8 August 1974, Nixon announced his resignation and Vice President Gerald Ford became president at noon on 9 August, the effective dateof the resignation. Because Ford exercised his power to pardon Nixon, Nixonnever 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.
Related Cases
- Marbury v. Madison, 5 U.S. 137 (1803).
- Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936).
- Baker v. Carr, 369 U.S. 186 (1962).
- United States v. Mitchell, 386 U.S. 972 (1967).
- United States v. United Stated District Court, 407 U.S. 297 (1972).
- Clinton v. Jones, 520 U.S. 681 (1997).
Presidential Succession
After the assassination of President John F. Kennedy and the succession of Vice President Lyndon B. Johnson to the presidency, Americans became concernedabout the issue of presidential succession. For the next 14 months the vice-presidency remained vacant. Most Americans were shocked to learn that if Johnson, who had suffered a heart attack in 1955, died during 1964, John McCormack, the 73-year-old Speaker of the House of Representatives, would become president. Next in line was Carl Hayden, the 87-year-old president pro tempore of the Senate.
This situation was rectified on 10 February 1967 when the Twenty-fifth Amendment was ratified. This amendment allowed the president to nominate a new vice-president, who would take office after approval by a majority vote in each house of Congress. It also added provisions governing temporary presidential disability, specifying the circumstances and provisions by which a vice-president would become acting president.
The provisions for naming a new vice-president have only been invoked twice.In 1973 when President Richard M. Nixon selected Rep. Gerald Ford to replaceSpiro T. Agnew; and in 1974 after Nixon resigned the presidency, Ford becamepresident and Nelson A. Rockefeller of New York was chosen as the new vice president.
User Comments Add a comment…