Nixon, United States v. 418 U.S. 683 (1974)

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NIXON, UNITED STATES v. 418 U.S. 683 (1974)

This litigation unfolded contemporaneously with congressional investigation of the Watergate affair and with proceedings in the house of representatives for the impeachment of President richard m. nixon. (See watergate and the constitution.) A federal grand jury had indicted seven defendants, including Nixon's former attorney general and closest White House aides, charging several offenses, including conspiracy to obstruct justice by "covering up" the circumstances of a burglary of Democratic party offices in Washington. The grand jury named Nixon as an unindicted co-conspirator. A special prosecutor had been appointed to handle this prosecution. To obtain evidence, the special prosecutor asked Judge John Sirica to issue a subpoena ordering Nixon to produce electronic tapes and papers relating to sixty-four White House conversations among persons named as conspirators, including Nixon himself.

Judge Sirica issued the subpoena in mid-April 1974; on May 1, Nixon's counsel moved to quash the subpoena and to expunge the grand jury's naming of the President as a co-conspirator. Sirica denied both motions and ordered Nixon to produce the subpoenaed items. When Nixon appealed, the special prosecutor asked the Supreme Court to hear the case, bypassing the court of appeals. The Court granted that motion and advanced argument to July 8. On July 24 the Court upheld the subpoena, 8–0, including the votes of three Nixon appointees. Justice william h. rehnquist, formerly a Justice Department official under the indicted ex-attorney general, had disqualified himself. A week following the decision, before Nixon had complied with it, the House Judiciary Committee recommended his impeachment. When Nixon turned over the tapes on August 5, they included a conversation that even his strongest supporters called a "smoking gun." On August 9 the President resigned.

A year earlier a White House press officer had said Nixon would obey a "definitive" decision of the Supreme Court about the tapes. At oral argument in the Supreme Court, however, Nixon's counsel, pressed to say that the President had "submitted himself" to the Court's decision, evaded any forthright promise of compliance. Even after the Court's decision, the press reported, Nixon and his aides debated for some hours whether he should comply with the subpoena. Some have reported that the Court's unanimity was an important factor influencing that decision.

The Court itself seems to have been impressed with the need for unanimity; its bland opinion, formally attributed to Chief Justice warren e. burger, bore the external marks of a document hurriedly negotiated—as investigative reporters have said it was. The Court brushed aside objections to its jurisdiction, such as the final judgment rule. Nixon also argued that the courts had no jurisdiction over an "intra-branch" dispute between the President and his subordinate, the special prosecutor. Responding, the Court emphasized the "uniqueness" of the conflict, but apart from that comment its argument bordered on incoherence. After gratuitously remarking that the executive branch had exclusive discretionary control over federal criminal prosecutions, the Court reversed field, discovering a guarantee of independence for the special prosecutor in the regulation that appointed him and promised not to remove him absent a consensus among certain congressional leaders. Both the Court's propositions were dubious. (See appointing and removal power.) Yet the Court marched on to some heroic constitutional issues concerning relations between the executive and judicial branches.

Both sides had appealed to the abstraction of separation of powers. Nixon argued first that the judiciary lacked power "to compel the President in the exercise of his discretion," and second that the President enjoyed an executive privilege to keep confidential his conversations with his advisers. The first argument blurred two separate issues: the President's immunity from judicial process and the political question issue of his discretion to control disclosure of his conversations. This latter claim of absolute executive privilege overlapped his second main argument. That argument began with an absolute privilege claim, but if that claim failed the President sought to persuade the Court to recognize a wide scope for a qualified privilege.

The special prosecutor, opposing both presidential immunity and the claim of absolute privilege, assumed the existence of a qualified privilege. That privilege was lost, he argued, when there was substantial reason to believe that the participants in a presidential conversation had been planning a crime.

The Court's opinion, like Nixon's argument, blurred the boundaries of separate issues in the case. The decision to uphold the subpoena, however, implicitly rejected the claim of presidential immunity, and the Court expressly rejected the claim of absolute privilege. A qualified privilege did exist, the Court said—by way of assumption, not demonstration—but the privilege was defeated when the specific confidential information sought was shown to be relevant, admissible evidence for a pending federal prosecution. The Court thus disposed of the case without mentioning Nixon's own possible complicity in crime; it dismissed the question whether the President could constitutionally be named as a co-conspirator.

Today some form of a qualified executive privilege is assumed to exist, but the scope of the privilege remains largely undefined. Nixon 's most important contribution to our constitutional law, however, lay elsewhere: in its reaffirmation that even the highest officer of government is not beyond the reach of the law and the courts. Nixon's brief had included this remark, designed to reassure: "it must be stressed we do not suggest the President has the attributes of a king. Inter alia, a king rules by inheritance and for life." The Nixon decision reminded us that there are also other differences.

Kenneth L. Karst


Symposium 1974 United States v. Nixon. UCLA Law Review 22:1–140.

Woodward, Bob and Armstrong, Scott 1979 The Brethren: Inside the Supreme Court. Pages 285–347. New York: Simon and Schuster.