Nixon, United States v.

Nixon, United States v., 418 U.S. 683 (1974), argued 8 July 1974, decided 24 July 1974 by vote of 8 to 0; Burger for the Court, Rehnquist not participating. A climactic incident in a dramatic event in U.S. history—the only case of a president being driven out of office in disgrace—the decision in United States v. Nixon was also a major constitutional landmark. It established the conditional nature of presidential immunity and in turn, may have affected the later decision, in Butz v. Economou (1978), not to follow the plurality view in Barr v. Matteo (1959) of absolute administrative immunity. Above all, it reined in extravagant assertions of President Richard Nixon's lawyers, who claimed presidential power to be unlimited, especially as to foreign and defense matters, and defined solely by a president's own judgment. In forcefully refuting such claims and proclaiming that no one is above the law, Chief Justice Warren Burger's opinion nevertheless twice quoted Chief Justice John Marshall's words, in United States v. Burr (1807), to the effect that presidential accountability to the legal order does not mean courts may proceed with the president as with any other citizen. Burger also enunciated a strong presumption of executive immunity and privilege.

The background of the case is the stuff of which books, novels, and movies are (and were) made. In 1972, burglars were discovered breaking into the Democratic campaign headquarters in Washington's Watergate apartment/hotel complex. It gradually emerged that the burglars had CIA and White House connections. The legal (and illegal) efforts to protect the burglars eventually involved President Nixon, though it was never established with whom authority for the break‐in ultimately rested nor why the act had been committed.

The effort to sweep matters under the rug generated complex further maneuvers, many involving payments of money to keep the arrested burglars from talking. The proliferation of illegal activity created new rumors and investigations. The courts, the Department of Justice, the FBI, and Congress all conducted investigations, and the media pursued the case thoroughly. Lower‐level Nixon aides, many of whom ultimately went to jail, cooperated in order to minimize their sentences. There were flat discrepancies between their testimony and statements of the president. To quiet criticism, Nixon and Attorney General Eliot Richardson set up a special prosecutor's office with a promise of independence. Archibald Cox, who had been solicitor general under President John F. Kennedy, agreed to serve.

Congressional hearings established that Nixon had installed a voice‐activated tape recorder in his office, and, armed with this knowledge along with White House appointment records, the special prosecutor sought to obtain certain tapes that he thought would establish the truthfulness or falsity of the president's statements and the testimony of his aides, especially his legal counsel, John Dean.

The president ordered Cox to desist, and, when he refused, ordered the attorney general to remove him. The attorney general and his deputy resigned rather than obey, but on their advice Solicitor General Robert Bork (who had not been a party to the original agreement) did the president's bidding as acting attorney general.

The public outcry was so great, however, that a new special prosecutor, Leon Jaworski, was appointed; Jaworski reinstated the request for tapes. Federal District Court Judge John Sirica then issued a subpoena to the president, demanding that he produce the tapes.

In the Supreme Court, Nixon's attorneys argued that the matter was nonjusticiable. They reasoned that it was a dispute among departments within the executive branch and that, as such, it was a matter to be resolved by the president, not by the courts; they compared the dispute to one between congressional committees, which would be resolved by Congress without judicial interference. The Court rejected this argument, noting that Bork's agreement with Jaworski had, in fact, included consultation with Congress. The decision also relied on cases such as Peters v. Hobby (1955) and United States ex rel. Accardi v. Shaughnessy (1953), which had made clear that executive regulations that were thoroughly repealable nonetheless had legal effect and created rights enforceable in court so long as they were still in effect. The Court's agreement with the special prosecutor thus gave him authority to proceed. The courts had assumed in prior decisions on congressional immunity that they, and not Congress, defined its boundaries, and were in parallel fashion the appropriate forum as to the executive's prerogatives.

On the basic questions of executive immunity and privilege the Supreme Court held that the president was entitled to great deference, especially in matters of defense and national security, and that all presumptions were in his favor. But the prosecutor had particularized and precisely stated needs for specific tapes, both with respect to credibility of witnesses and for establishing the alleged crime. In addition, Nixon's claim of confidentiality had already been weakened by his release of the partial contents of the subpoenaed tapes and others.

At odds, then, were the enfeebled and diffuse claims of the executive branch versus the specific claims of the justice system in prosecuting a criminal case.

Burger's opinion emphasized throughout the need for deference and accommodation and cautioned that courts must not take lightly the presumptions protecting the privilege and immunity of the president. Nonetheless, it unequivocably rendered such privileges conditional, dependent on circumstances. Nixon was ordered to give up the tapes, which, it turned out, contained the “smoking gun” linking him to the conspiracy to obstruct justice. Less than three weeks later, he resigned from office.

See also Executive Immunity; Executive Privilege; Inherent Powers.

Samuel Krislov