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United States v. Nixon - Nixon Order To Release

court privilege president executive

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 Court restated 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 by Article 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 to override a Presidential veto. Any other conclusions would be contrary to the basic 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 to the 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 could be made public, advisors would be reluctant to speak freely, and the decision-making process would suffer. Second, St. Clair argued that the very nature of the doctrine of separation of powers gave the president judicial immunity. In rejecting both arguments, the Court stated that while confidentiality was important, 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 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.

Further, the Court stressed that recognizing Nixon's broad claim of executive privilege 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 Article III [of the Constitution] . . . In this case the President challenges a subpoena served on him as a third party requiring the production of materials for use 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 justices ordered 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 of the 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 enforcement of 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 to comply 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 date of the resignation. Because Ford exercised his power to pardon Nixon, Nixon never 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.

United States v. Nixon - Presidential Succession [next] [back] United States v. Nixon - Nixon Fights The Subpoena

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