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United States v Nixon (1974)

Case

The Watergate scandal began after President Richard Nixon started an investigative team in his administration known as the “Plumbers.” The Plumbers’ first purpose was to stop the information leaking in the White House after the release of the Pentagon Papers. They were funded by secret campaign contributions to the Committee to Reelect the President or CREEP. The Plumbers conducted many off-the-book activities like harassing political enemies and protestors outside of Republican events. The actions of the Plumbers hit a boiling point when top administration officials were implicated in the burglary of the Democratic Party’s headquarters at the Watergate Hotel in 1972.

A select Senate committee investigated the break-in. The Committee learned that Nixon taped his White House meetings. When Special Prosecutor Archibald Cox tried to obtain these tapes, Nixon ordered Attorney General Elliot Richardson to fire Cox. When Richardson and his deputy refused, Nixon fired them both in what came to be known as the Saturday Night Massacre. Afterward, Nixon turned over nine tapes, but one had a near twenty-minute gap. This gap was deliberate. In response to Nixon’s actions, the House Judiciary Committee began an impeachment inquiry and new Special Prosecutor Leon Jaworski demanded the missing time gap and more tapes. 

President Nixon refused to turn over the rest of the tapes, claiming executive privilege. Executive privilege is the right of the executive branch to withhold information to preserve confidentiality and maintain national security. The Court had to solve two issues, one of which was the separation of power allegations from the Nixon administration, which claimed the courts had no right to investigate the President. The other was Article II claims about broad executive privilege. The Supreme Court had to determine how to balance executive privilege with judicial review, the ability of the courts to decide the constitutionality of actions of the other two branches. 

Decision

In a unanimous decision, the Court ruled that the separation of powers claims and executive privilege claims did not withstand. While the Court acknowledged executive privilege, they stressed that it is limited and that due process is most vital. The President was told to produce the tapes. Justice Warren Burger authored the opinion for the Court writing, “The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.” Justice Rehnquist removed himself from the case since he had previously been involved in the Nixon administration. 

Impact

The Supreme Court’s decision was fatal to Nixon’s Presidency. He was forced to release the tapes and the time missing showed that the President had conspired to give millions to the Watergate Hotel burglars and wanted to claim “national security” reasons for the break-in. Nixon’s former Attorney General, John Mitchell, orchestrated the Watergate break-in. It was discovered that Nixon’s chief of staff, H.R. Haldeman, wanted to use the Central Intelligence Agency (CIA) for political espionage. 

After discovering this information, Nixon’s previous Republican allies told him to resign or risk impeachment. Nixon resigned from office on August 8, 1974. The Supreme Court decision had unusually dramatic consequences but it also was innovative as it combined claims of executive privilege and a criminal proceeding. The decision sent a message to future leaders of the United States that the president is not above the law, and cannot claim privilege when there is a reasonable suspicion they are acting unlawfully.

 In 1977, President Nixon lost another Supreme Court case in Nixon v Administrator of General Services. The Supreme Court held that the former president could not assert privilege to keep all of his papers from his presidency private. However, in Nixon v Fitzgerald (1982), the Supreme Court defended Nixon against an analyst who claimed he had been fired illegally. The Court held that the President had absolute immunity to act within the functions of his office.

Think Further

  1. The power of judicial review was cemented in Marbury v Madison (1803). How much harder would it have been for the Court to rule against Nixon in this case if judicial review wasn’t accepted as constitutional? 
  2. President Nixon had a high favorability rating before the Watergate scandal and won the election of 1972 by a landslide. Why do you think President Nixon and his team went to such lengths to protect his political standing? 
  3. In U.S. v Nixon we learned that due process claims outweigh claims of executive privilege. What other interests may outweigh claims of executive privilege? 

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  1. Gillman, Howard. American Constitutionalism, Second Edition. Volume I Structures of Government. [Virtual Source Bookshelf]. 
  2. “Looking back: The Supreme Court decision that ended Nixon’s presidency” Constitution Daily, National Constitution Center, (July 24, 2019) https://constitutioncenter.org/blog/anniversary-of-united-states-v-nixon
  3. “United States v. Nixon.” Oyez, www.oyez.org/cases/1973/73-1766