Constitutional
Law Class Notes
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
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
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.