U.S. v. Nixon: 1974

Nixon turned over edited transcripts of 43 conversations, which included portions of 20 conversations named in the subpoena, on April 30, 1974. On May 1, 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 been publicly 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 May 20, 1974. Sirica ordered "the President or any subordinate officer, official, or employee with custody or control of the documents or objects subpoenaed" to turn them over to the court by May 31, 1974.

On May 24, 1974, a week before Sirica's deadline, St. Clair filed an appeal to the 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 May 24, 1974, Jaworski took the highly unusual step of asking 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 June 6, 1974, St. Clair also requested certiorari before judgment.

On June 15, 1974, the Supreme Court granted Jaworski's and St. Clair's requests and 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. The case was argued before Supreme Court Justices Harry A. Blackmun, William J. Brennan, Warren E. Burger, William 0. Douglas, Thurgood Marshall, Lewis F. Powell, Jr., Potter Stewart, and Byron R. White in Washington, D.C. on July 8, 1974. Justice William A. Rehnquist, a Nixon appointee to the court, recused himself from the case.

There is a popular notion that the judicial system, especially the Supreme Court, is above politics. This is a myth. When Jaworski and Lacovara went into the Supreme Court building on July 8, there were hundreds of cheering spectators on the steps. The justices themselves were obviously very involved as well, and grilled both sides during the oral argument. Justice Lewis 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 the president as a co-conspirator when the prosecutors hadn't even requested an indictment. 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 July 24, 1974, less than three weeks later. During the intervening time, the justices struggled to write an opinion on which all eight of them could agree. Although Supreme Court justices are free 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 impact of the Court's decision. Although Burger was the chief justice and nominally in charge of writing the opinion, in fact, all eight justices wrote or contributed to portions of the decision.