Constitutional Law Class Notes 3/1/04


Executive privilege and Watergate – United States v. Nixon


What’s relevant about Watergate for this case?  What happened in 1972 with Watergate?  Some dudes (“The Committee to Reelect the President”) broke into a Democratic office and stole information about their campaign.  They were trying to beat McGovern.  The Vietnam War was going on.  Nixon wanted some dirt on McGovern.  Did Nixon order the break-in?  Is there any evidence that Nixon ordered the break-in?  Is there any evidence that he knew about the break-in ahead of time?  He was deemed an unindicted co-conspirator by the grand jury.


Breaking into the headquarters of the Democratic Party is a big deal.  The FBI started to investigate, but Nixon called them off.  The issue was this cover-up.  We know that Nixon, in connection with high-ranking administration officials, engaged in a criminal conspiracy to obstruct justice and prevent the FBI from investigating who was responsible for the break-in.


So Nixon was criminally involved in the cover-up.  Does that mean that he knew about the break-in ahead of time?  We don’t have allegations in front of us that Nixon ordered the break-in ahead of time or knew about it ahead of time.  But that doesn’t matter for our purposes.  It only matters that people involved with the break-in were working for the campaign.  The question was: how high up does this go?  It starts with low-level people, but higher and higher level people were implicated.


Why were the tapes relevant?  They were a big deal!  They found out that Nixon had been taping all his conversations!  But what were the conversations supposed to prove?  To the extent that Nixon himself was involved in the cover-up, there would have been conversations on the tape related to the organization of the cover-up.


The tapes might contain the actual conspiracy to engage in the obstruction of justice!


This case gets to the Supreme Court.  How does that happen?  What’s the procedural posture?  What was the appellate court doing with this case?


The special prosecutor has issued a subpoena.  The special prosecutor at this time is Jaworski.  Why does Jaworski want these tapes?  What is Jaworski going to do with these tapes if he gets them?  What if they have evidence of who was involved with the cover-up?  John Dean, the head lawyer in the White House, ultimately fessed up to what was going on.  He had been involved in the cover-up and he turned around and broke the “wall of silence”.  But was Dean telling the truth?  The tapes would show whether Dean was telling the truth or not.


The chief law enforcement officer of the United States is now a defendant!  The case is now United States v. John Mitchell!  It’s like prosecuting John Ashcroft!  These are the most senior aides to the president!


But why is the president not indicted?  They weren’t clear whether they could indict him so long as he was president.  The basic procedure for putting the president on trial is by impeachment in the House and trial in the Senate.  Articles of impeachment were drawn up in the House, but people wanted the tapes so they could see whether Dean’s allegations were true!


What is Nixon’s basis for refusing to hand over the tapes to the special prosecutor?  He claims, among other things, executive privilege.  And this isn’t really such a crazy idea!  It makes sense!  How come?  The president could use confidential communications!  It might be very important to doing his or her job!  The Supreme Court itself has strict confidentially that they value.


Why can’t the public sit in on these types of deliberations?  We want the decision makers to be able to be more candid with each other.  We want people to be able to test out ideas and change their minds in midstream.


So there are reasonable reasons for executive privilege.  Who is allowed to order the President of the United States around?  Who should be in a position to break the “veil of secrecy” of the Oval Office?  Who might try to order the president around?  Could the Supreme Court do that?  Why would the Supreme Court have occasion to want to invade presidential confidentiality.  But what about Congress?  You don’t want Congress to be able to force the president to testify in front of committees about what is said in the Oval Office.  If the president was forced to do so, it would mess up our checks and balances!  We don’t have a parliamentary system!  Congress can order the president to give the State of the Union address, but other than that, Congress has only limited powers to push the president around.  Congress can subpoena pretty much any other citizen, but not the president!


So we recognize the need for executive privilege.  Congress is the body most likely to want to snoop its way into this privilege.


If executive privilege is such a good idea, then why did Nixon lose this case?


Congress can’t drag the president to Capitol Hill pursuant to its subpoena power.  Then why should the Supreme Court be able to?  Before we get to the merits of the privilege claim, there’s a much more basic question in this case.  What entitles the judiciary to order the president around?  Is the president obligated to obey that order?  How is the president susceptible to this kind of judicial order given the Separation of Powers doctrine?  If Nixon can’t be indicted in the ordinary way, how can the president be subject to the subpoena power of the Court?


Is Marbury v. Madison sufficient to answer this question?  Is this a responsive answer to the president’s position in this case?  The president says that he can’t be ordered around.  The Court says that it has the power to say what the law is.


This is a lousy, lousy, lousy, lousy opinion.  Foley thinks that the decision was right, but the opinion was poorly written.  He says there are a lot of platitudes but not a lot of analysis.


“No man is above the law” but the president can’t be indicted: he must be impached.


Foley says that what’s going on is that by the time the case gets to the Supreme Court, the justices realize that Nixon is guilty and that all he’s doing here is trying to save his own skin and hide behind the claim of executive privilege.  He doesn’t have a good claim for privilege.  It doesn’t involve national security.  What is Nixon’s need to keep this information secret?  He refuses to say and deflects any questions about the information.  Nixon argues that he can’t be ordered around by a court of law.  The Court almost never really addresses this question.  The Court wants to get to executive privilege and deny the president’s claim.  After they jump over the hurdle of “susceptibility to judicial process”, they are met with the next defense: the president has an absolute and general right to executive privilege.  Therefore, Nixon argued, he alone got to decide what information should be released and what shouldn’t be released.


Nixon is caught red-handed on the tape!  He has no real justification for executive privilege.  He’s doing it to avoid being found out.  There is a need for these tapes: to substantiate Dean’s claim that there was a conspiracy in the Oval Office.


The real reason that the Court says that they won’t let Nixon get away with this was that the crime that Nixon was committing was a crime that goes right to the heart of our system of government.  There are other scandals that are serious, but they pale in comparison to Watergate.  Watergate is the mother of all Gates!  It’s the real one!  Foley claims that the big deal is that Watergate threatened the freedom and fairness of elections.  The “Committee to Reelect the President” was trying to subvert the Democratic Process.  This turned out to be just part of a pattern of behavior on the part of Nixon.  It’s bad that Nixon was trying to use the power of the presidency to try to subvert the democratic system.


Foley asserts that “Nixon is evil” because he tried to subvert our system of government.  Foley says that the worst crime from the point of view of Constitutional Law is trying to illegally influence democratic elections.


The Supreme Court orders the tapes to be released.  The big question, then, was what if Nixon refuses to release the tapes?  In a regular criminal trial, he could be held in contempt.  But this isn’t a regular criminal trial.  Foley assumes that if Nixon had refused to turn over the tapes, he would have been impeached and convicted.


But was the decision in this case as necessary as the Court felt it was at the time to protect the Constitution?  If the Court thinks that Nixon is guilty, isn’t the right remedy to allow the Congress to impeach and convict?


Both this case and Bush v. Gore represent cases where the Supreme Court intervened because it thought it had to protect the Constitution and the system of elections.  Some people thought that the Supreme Court should stand aside and let other processes play out.


Under what conditions should a request for executive privilege be honored?  Not in this one.


Tomorrow, we’ll look at the fight over Cheney and his committee about national energy policy.


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