A CASE STUDY

United States v. Nixon

Separation of Powers

The division of the powers of government among the different branches

Separation of powers is a primary strategy of promoting constitutional or limited government by ensuring that no one individual or branch can abuse its powers

Intertwined with the concept of checks and balances

Executive Privilege

Right of the President to withhold information from the other branches to preserve confidential communications within the executive branch or to secure the national interest.

Not explicitly mentioned in the Constitution.

Human Continuum

When a President receives a court order to turn over evidence, should he have the power to refuse under executive privilege?

Write down your answer and why. Line up by Yes or No on opposite sides of the

room.Provide reasoning.

The Case

June 17, 1972 Watergate Break-in

Five men were arrested inside the Democratic National Committee’s offices in the Watergate complex in Washington, D.C. at 2:30 am. They were trying to bug the offices.

Former Attorney General John Mitchell, head of the Nixon reelection campaign denies any link to the break-in.

Image from http://wwwimage.cbsnews.com/images/2005/02/15/image674276x.jpg

Nixon Reelected

October 1972: FBI agents establish that the Watergate break-in stems from a massive campaign of political spying and sabotage conducted on behalf of the Nixon reelection effort, The Washington Post reports.

November 1972: Nixon is reelected in one of the largest landslides in American political history, taking more than 60 percent of the vote and crushing the Democratic nominee, Sen. George McGovern of South Dakota

The Case Continues

• January 1973: Former Nixon aides G. Gordon Liddy and James W. McCord Jr. were indicted. They were convicted of conspiracy, burglary and wiretapping in the Watergate incident. Five other men pled guilty, but mysteries remain.

Resignations and Firings

• April 1973: Nixon’s top White House staffers, H.R. Haldeman and John Ehrlichman, and Attorney General Richard Kleindienst resign over the scandal. White House counsel John Dean is fired.

Investigation

• The Senate Watergate committee begins its nationally televised hearings. Former solicitor general Archibald Cox is chosen as the Justice Department’s special prosecutor for Watergate.

Image from http://upload.wikimedia.org/wikipedia/commons/thumb/7/72/ThompsonWatergate.jpg/300px-ThompsonWatergate.jpg

Timeline

• June 1973: John Dean (former White House Counsel who was fired) told Watergate investigators that he discussed the Watergate cover-up with President Nixon at least 35 times, The Post reports.

The Tapes

Former presidential appointments secretary, reveals in congressional testimony that since 1971 Nixon had recorded all conversations and telephone calls in his offices.

President Nixon refused to release the tapes to Congress or the Special Prosecutor. He claimed they were

protected under “executive privilege”.

Image from http://www.pimall.com/nais/pivintage/images/ovalofficerecorder.jpg

Timeline

• October 1973: Saturday Night Massacre: Nixon fires Archibald Cox (Special Prosecutor) and abolishes the office of the special prosecutor. Attorney General Richardson and Deputy Attorney General William D. Ruckelshaus resign. Pressure for impeachment mounts in Congress.

• November 1973: Nixon declares, “I’m not a crook,” maintaining his innocence in the Watergate case.

The Release of the Tapes

Nixon finally released some of the tapes, but portions of them were blank.

Watch a short review of the Watergate scandal.

http://www.newseum.org/digital-classroom/video/watergate/default.aspx

Transcripts

• April 30, 1974: The White House releases more than 1,200 pages of edited transcripts of the Nixon tapes to the House Judiciary Committee, but the committee insists that the full tapes themselves must be turned over.

Executive Privilege?

NIXON ASSERTED THAT HE WAS IMMUNE FROM THE SUBPOENA CLAIMING "EXECUTIVE

PRIVILEGE," WHICH IS THE RIGHT TO WITHHOLD INFORMATION FROM OTHER GOVERNMENT BRANCHES TO PRESERVE

CONFIDENTIAL COMMUNICATIONS WITHIN THE EXECUTIVE BRANCH OR TO SECURE THE

NATIONAL INTEREST.

Question

IS THE PRESIDENT'S RIGHT TO SAFEGUARD CERTAIN INFORMATION, USING HIS

"EXECUTIVE PRIVILEGE" CONFIDENTIALITY POWER, ENTIRELY IMMUNE FROM JUDICIAL

REVIEW?

Precedent

Marbury v. Madison

This case established the court’s power of judicial review.

Judicial review: The power of the courts to declare laws and actions of the local and state government or the national government invalid if they are found to contradict the US Constitution.

United States v. Burr

Burr requested the court to subpoena the President during grand jury proceedings so he could view the evidence that would be used against him. Burr was being tried for treason.

The arguments Jefferson offered for not fully complying with the subpoena included the President's executive privilege and his duty to preserve national security by maintaining the confidentiality of certain negotiations.

Decision

Chief Justice John Marshall’s (presided in this federal circuit case – not US Supreme Court) ruling established that no man, not even the President is above the law.

President Jefferson followed Chief Justice Marshall’s orders.

Historical Examples Outside the Court

George Washington refused to turn over to the House certain documents related to treaty negotiations between US and Great Britain.

President Eisenhower in a stand-off with Senator Joseph McCarthy wrote that the President could refuse to turn over any document he felt was privileged or confidential. Coined the term Executive Privilege.

The US Supreme Court

United States President Nixon

Executive privilege is not an absolute power.

Executive privilege cannot be used to deny the Court’s access to evidence.

The President should not be able to be the final arbiter of what the Constitution means.

This does not involve confidential national security interests.

The US Constitution allows the President the power of executive privilege.

The power to withhold information is the President’s absolute power. The President must have this power to maintain national security interests.

The dispute should be resolved in the executive branch.

Two Arguments

Now it is your turn to be the judge

Individually Answer the Question

YES or NO based on…

The facts of the case

The Constitution

Precedent

Give 3 Reasons in Writing

Is there an executive privilege in this case?

If you answer YES…

If you answer NO… You are siding

with President Nixon

You are siding with the United States

Unanimous Decision, 8-0

Burger StewartBrennanDouglas

PowellBlackmunMarshallWhite

Outcome of US v Nixon

July 24, 1974: The Supreme Court rules unanimously that Nixon must turn over the tape recordings of 64 White House conversations, rejecting the president’s claims of executive privilege.

Decision

The US Supreme Court held that neither the doctrine of separation of powers, nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified, presidential privilege.

The Court granted 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."

The Decision

Nixon had to release the tapes (there was no executive privilege)

The Court has jurisdiction in this case

Executive privilege conflicts with the constitutional obligation of the judicial branch and the functions of the court

In order to ensure due process, all “relevant and admissible evidence” must be produced

Image from http://www.minnpost.com/_asset/nkwrw0/mp_main_half/WarrenBurger212.jpg

Significance

The RULE OF LAW

United States v Nixon reinforced the rule of law establishing that no one, even the President of the United States, is above the law.

Concept that citizens are governed by the law and institutions, not individuals. The law supersedes all else an dis intended to be constant, predictable, and just.

Listen to oral arguments and opinion

http://www.oyez.org/cases/1970-1979/1974/1974_73_1766

Resignation

• July 27, 1974: House Judiciary Committee passes the first of three articles of impeachment, charging obstruction of justice.

• August 8, 1974: Richard Nixon becomes the first U.S. president to resign. Vice President Gerald R. Ford assumes the country’s highest office.

Image Citations

http://riverdaughter.files.wordpress.com/2010/12/pentagon-papers.jpg http://www.pophistorydig.com/wp-content/uploads/2009/07/soldiers-

bayonets-50.jpg http://wwwimage.cbsnews.com/images/2005/02/15/image674276x.jpg http://obscurantist.com/images/e_howard_hunt.jpg http://www.gizmotastic.com/wp-content/uploads/2008/09/

g_gordon_liddy.jpg http://upload.wikimedia.org/wikipedia/commons/thumb/7/72/

ThompsonWatergate.jpg/300px-ThompsonWatergate.jpg http://www.pimall.com/nais/pivintage/images/ovalofficerecorder.jpg http://www.minnpost.com/_asset/nkwrw0/mp_main_half/

WarrenBurger212.jpg http://www.oyez.org