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

  • During Watergate, A grand jury returned indictments against seven of President Richard Nixon’s aides. The special prosecutor, issued a subpoena seeking audio tapes of conversations recorded by Nixon in the Oval Office.
  • Nixon asserted that he was immune from the subpoena claiming executive privilege. The special prosecutor appealed to the US Supreme Court.
    • Executive privilege is the right to withhold information from other government branches to preserve confidential communications within the executive branch or to secure the national interest.
    • Nixon’s lawyer actually said, “The President wants me to argue that he is as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment.”
    • Nixon argued that the special prosecutor was an employee of the Department of Justice, and as such any conflict between the President and an Executive Branch employee was an internal matter of the executive branch that the Judicial Branch had no business interfering.
  • The US Supreme Court ordered that Nixon had to turn over the tapes.
    • The US Supreme Court held that neither the doctrine of separation of powers, nor the generalized need for confidentiality of high-level communications, can by themselves sustain an absolute, unqualified, presidential privilege.
    • The Court noted that there was a limited executive privilege in areas of military or diplomatic affairs, but gave preference to “the fundamental demands of due process of law in the fair administration of justice.” Therefore, the president must obey the subpoena and produce the tapes and documents.
      • The fact that the President is subject to the law was established by Youngstown Sheet & Tube Co. v. Sawyer (343 U.S. 579 (1952)).
    • The Court found that the Attorney General had the authority to fire the special prosecutor, but had not done so, and until he did so, the special prosecutor had the authority to seek subpoenas.
      • A few months before, Nixon had ordered the Attorney General to fire the previous special prosecutor, and there was a huge political firestorm.
    • The Court found that they not only have the power established in Marbury v. Madison (5 U.S. (1 Cranch) 137 (1803)) to rule a law invalid for conflicting with constitutional provisions, but also power to decide how the Constitution limits the President’s powers.
      • The Supreme Court found that they have the final voice in determining Constitutional questions; no person, not even the President, is completely above law; and the President cannot use executive privilege as an excuse to withhold evidence that is, “demonstrably relevant in a criminal trial.”
  • Article I Section 6(1) of the Constitution says that Congress shall be privileged from arrest for liable for anything they say in Congress. It says nothing about the Executive Branch.
    • The concept of executive privilege appears nowhere in the Constitution. Although it could be argued that executive privilege can be read into the Necessary and Proper Clause.
  • It is rumored that there was a dissent in this case, but it was suppressed and a unanimous opinion given so that there would be an avoidance of a Constitutional Crisis.