Reading United States v. Nixon Case Excerpts

0:00 Can the President of the United States withhold certain pieces of information from legislative and judicial oversight? Hi. My name is Joshua Schmid. I’m the content specialist at the Bill of Rights Institute. And today I’m excited to be joined again by Dr. Josh Dunn as we take a look at the case of the United States versus Nixon.

0:22 Hi Josh. Josh, it’s great to be with you again. So today’s case involves what we call executive privilege. And here we have the definition, the power of the President and other members of the executive to withhold confidential communications

0:45 from legislative oversight and judicial subpoenas. So executive privilege is not explicitly mentioned anywhere in the United States Constitution. However, there is a long history of precedent of Presidents invoking this idea, starting all the way back,

1:06 I believe the first time was George Washington involving the J Treaty. The House of Representatives requested information relating to the negotiations of the Jay Treaty, and President Washington denied that request. He argued that as President, he had authority over foreign policy.

1:30 And the House of Representatives is not mentioned as having authority over treaties and treaty ratifications like the Senate has. So therefore, Washington argued he had the authority to keep that information confidential. Yes. So the idea of executive privilege goes

1:50 back to the very beginning of the United States, but probably the clearest articulation of the idea that it comes out of it comes from President William Howard Taft and then later Chief Justice Taft. What he argued is that the President must have implied powers. So it’s known as the doctrine of implied powers and the idea is that if in order to carry out a specific grant of power,

2:14 there’s some unwritten power, then it must be reasonably implied. And so executive privilege is one of those. And the argument for executive privilege, where there are three primary arguments one is that the President must have the power in order to carry out his functions in foreign affairs. Second argument would be that he relies on the candid advice of his staff

2:36 and if the staff thinks that what they’re going to say to the President could be made public, they might not give candid advice to the President. And a third argument would be that the President has the authority under separation of powers to control all communication that comes out of the executive branch. So those are the three primary arguments that have been given throughout American history

2:56 and as we’ll see in US versus Nixon, the Supreme Court rejects one of those, but really acknowledges the legitimacy of the other two. Sure. Yeah. So this case revolves around the time period of the Vietnam War and also the Watergate scandal. So could you give me some background

3:18 on what was happening at this point in history leading up to the case? Yes, well, there were members of the President’s staff who created a committee to reelect the President, came to be known as Creep and then they decided to break into the Democratic headquarters at the Watergate building.

3:40 This is one of the largest self inflicted wounds, I think you could say, in American history because the Democratic Party was in the process of nominating George McGovern, who ended up being a very uncompelling presidential candidate. And so it is strangely pointless in addition to being illegal.

4:02 So nevertheless, they decided to do this. And then it was pretty clear that President Nixon was not involved in the planning of this, but that he was involved in the cover up afterwards. And so they caught some of the people involved with this, and it led to an investigation of the president, but then also grand jury proceedings.

4:25 There’s a special prosecutor who was appointed to investigate this. Nixon demanded that the prosecutor be fired. His attorney general refused and resigned. Nixon asked the acting attorney general to do it. He refused and resigned. And then the solicitor general ended up becoming coming acting attorney general.

4:46 And he ended up and that was Robert Bork, later to be a nominee to the Supreme Court. He ended up actually doing what Nixon wanted. His argument was he was trying to protect the Justice Department, and he ended up staying on. But then they did appoint another special prosecutor, Leon Jaworski, and he subpoenaed information from the Nixon administration,

5:07 particularly conversations that Nixon had had in the Oval Office and then also tapes that they found out that Nixon had been making of his conversations in the Oval Office. And Nixon decided to turn over transcripts, edited transcripts of some of those conversations, but he refused to turn over the tapes

5:28 and made the claim that, based on executive privilege, he did not have to turn them over to be part of these grand jury proceedings. Great. So what argument did he make? What constitutional argument did he make for why he didn’t have to why was it so important, from his point of view,

5:49 that the Justice Department, the courts who are investigating the whole Watergate scandal, couldn’t see these tapes? So I listed those three arguments in defense of executive privilege earlier. Nixon gave, really, the third argument that as chief executive under

6:11 the Constitution, he had the authority to decide what information would emanate from the executive branch. So he didn’t really rely on the first two arguments that obviously this had nothing to do with carrying out his duties as commander in chief, role in foreign policy. Those things maybe a little bit

6:31 with the second argument about relying on staff, that these were confidential conversations that he was having with people. But really, the fundamental argument was that argument. Strongest and most robust defense of executive power, but perhaps not the strongest argument constitutionally. Sure.

6:53 So the case ends up going through some lower level courts. The initial district court, I believe, ruled against Nixon, and then eventually it reached the Supreme Court. The Supreme Court ended up ruling unanimously against President Nixon they argued in their opinion that Nixon did not

7:20 have this sort of unregulated, complete authority over executive matters. They generally said like, yes, we agreed that that is very important. We might actually defer to you in general, but it’s not a blanket authority.

7:42 So this is the constitutional question here that they took a look at that I essentially stated at the beginning, and they answered with a resounding no to this. It is not entirely immune from judicial power. So here we have Chief Justice Warren Burger wrote the majority opinion here.

8:08 He’s talking about three co equal branches, separation of powers. What do you see here? Right. So again, what he’s taking on here is that most expansive defense of executive privilege, that the President has this absolute authority to decide what information can be released

8:29 and not released and therefore is immune from any kind of any request from another branch of government for this information, saying, no, that doesn’t apply, or the President can’t have that form of executive privilege. So that’s really what the Chief Justice was saying.

8:50 There was a lot of back and forth on the Court, and even though Chief Justice Burger was the primary author of the opinion, many justices contributed in writing it in different parts of it. You could say we’re really the responsibility of some of the other Justices. This actually didn’t make Chief Justice Burger very happy, but he was known for being a little sensitive on those things.

9:15 But again, this is just rejecting the idea that the President’s executive privilege is absolute. They admitted and recognized that some of the other arguments for executive privilege were in fact true and constitutional and that the President obviously should have to be able to withhold sensitive

9:36 communications and diplomatic efforts because otherwise you couldn’t carry on diplomacy when you’re negotiating with other nations. If they knew that what they were saying was going to be splashed across the front of the Washington Post, they would probably not be willing to negotiate in good faith with you. So they conceded this, but they rejected this, again, absolute claim.

9:57 And what they were arguing as well is that the requirements of the criminal justice process, in particular in this case, mandate that the President has to turn over this material because otherwise the criminal justice process wouldn’t be able to function in this particular case. So we have here another part of that opinion,

10:20 and we see here the Court is really, like you said, trying to strike some sort of maybe balance isn’t the right word, but they are saying that the President really should have a lot of a general privilege of confidentiality like you said. The President is one man, of course,

10:45 and with that comes certain powers that Congress, for example, doesn’t have. And one of those is Hamilton talks about in the Federalist Papers dispatch, expediency, I believe, things like that, where you want someone who can move quick and move with secrecy and just decision.

11:08 However, on the other hand, of course, this idea that there’s a blanket ability to avoid the courts, Justice Burger argues, that would cut deeply into the guarantee of due process. Is there anything else that stands out to you in this section?

11:30 No. Again, what the court is saying is that the president’s claim would then actually intrude into the judicial branch of government and the judicial power. And so that’s why the president’s claim of executive privilege has to relent in this case because it directly affects the ability of another branch

11:51 of government to accomplish its purpose and function and to exercise its powers. This case was back in the 70s. Has there been any changes since then in this whole idea of executive privilege and how the constitutional interpretations have defined that term since then?

12:16 So this framework still, I think, generally applies. There can be disagreements in particular cases about executive privilege, but I think that this is largely regarded as settled, that, yes, the president does have executive privilege. Otherwise he couldn’t perform his functions as chief executive, as a chief organ of discourse in foreign affairs.

12:40 And also that in order to get reliable and candidate advice from a staff, there must be some requirements or largely guarantee of confidentiality. But in certain circumstances, particularly ones that are criminal in nature, that’s not going to apply.

13:01 This whole idea of executive privilege has come up multiple times, even since Nixon, specifically the impeachment of President Bill Clinton. I believe the question came up when some prosecutors were wanting to put him basically on trial to directly answer questions within court, I believe.

13:25 And Clinton was considering this idea of executive privilege and how much immunity it gave him from disclosing communications. Is that correct? All right so there’s another implied power of the president that’s implicated there, which is presidential immunity, particularly presidential immunity from civil litigation.

13:46 And so what happened with the Clinton impeachment is he had been charged with sexual harassment, and there were legal proceedings. Paula Jones had filed a case against him, and it went to the Supreme Court. And the Supreme Court said, yes, the president is largely immune from litigation, civil litigation, as long as it’s within the outer perimeter of the president’s authority.

14:10 But they said that this did not apply in this case because sexual harassment is not within the outer perimeter of the president’s authority. And again, that was a unanimous decision. But you can see there’s nothing in the Constitution as well, just like executive privilege, that says the president has presidential immunity. But you can also see why the president probably needs immunity from much

14:33 civil litigation because otherwise people could just bring lawsuits that would then occupy the president, and they could use that to really undermine the functioning of the executive branch and the president himself. So again, that’s a power that the President has, an implied power that the president has.

14:53 But like executive privilege, it’s not absolute, but I wouldn’t be surprised if every president it’s been a while since I’ve gone back and looked at this, but probably every president since Nixon has actually raised the question of executive privilege, or perhaps threatened to invoke executive privilege in certain circumstances when Congress is asking for information and those kinds of things.

15:18 Yep. Yeah, it has a long history throughout going all the way back to President Washington. So that certainly was not a new topic with President Nixon. Lots of presidents, because they’re involved in foreign policy, even potentially just basic conversations

15:42 with their aides for whatever reason they might want to keep secret. So it’s always been talked about, and I’m sure it will continue to come up with future presidents. So let’s return to this constitutional question quick. The court unanimously said no.

16:04 Unequivocally no. The President is not entirely immune from judicial power, is that correct? Yes. The President has executive privilege, but it’s not absolute. The President can rely on claims of executive privilege in certain circumstances.

16:26 But in this case, where the criminal justice process depends on the production of information that the President has, the President’s claim of executive privilege does not apply. So thank you again for joining me, Josh, as we take a look at this very interesting and important case of US v. Nixon.

16:46 The Bill of Rights Institute is going to be releasing a Homework Help video on this case. That one is directed to help your students. We hope that this specific video can help you as you dive deeper into the case. Try and get into the constitutional arguments behind that case, but be on the lookout for that homework

17:09 help video as it’s going to be coming out soon. We have a variety of other content on YouTube for you, whether it be Scholar Talks, BRIdge from the Past, where one of my colleagues takes a look at artwork from US history and analyzes them, or just other Close Reads like this one.

17:32 So we hope you check all those out. We have them up for you. They’re dedicated to helping you in your classroom. Josh, thanks again for joining me. It’s great being with you. Oh no. The video’s over. Oh, come on, don’t be so sad. Don’t you know that the Bill of Rights Institute has tons of videos on American history, government and civics,

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