Chapter 21: Presidential Immunity and the Watergate Crisis

United States v. Nixon (1974)

On August 8, 1974, Richard M. Nixon announced that the following day he would resign as President of the United States, becoming the first chief executive to do so. Nixon acted in order to avoid impeachment and, in his words, to begin “that process of healing which is so desperately needed in America.”

President Nixon abandoned the White House after five years of service that were marked by unparalleled success amid deepening controversy. His accomplishments included revenue sharing between the states and the national government, the end of the draft, new anticrime laws, and a broad environmental protection program. In 1969, during his first term, American astronauts landed on the moon. Back on Earth, Nixon opened China to the West, reduced tensions with the Soviet Union, and orchestrated a landmark treaty limiting testing of strategic nuclear weapons. In January 1973, he announced that an accord had been reached with North Vietnam to end American involvement in Indochina. A year later, with the assistance of Secretary of State Henry Kissinger, Nixon spurred negotiations that produced disengagement agreements between Israel and its opponents, Egypt and Syria.

Nixon was also a controversial President, in part because of his policies, in part because of his style, and in part because of the fallout from what came to be known as Watergate. Nixon steadily battled Congress over a host of issues throughout his Presidency, and he suffered through the embarrassment of having his Vice President, Spiro T. Agnew, resign over charges of accepting bribes and filing false federal income tax returns in 1973.

The Vietnam War was at the root of Nixon’s political frustration. In the 1972 Presidential election, with protests over the Vietnam War raging around the country, Nixon’s Democratic challenger, Senator George McGovern of South Dakota, urged a timetable for withdrawal from Vietnam. To counter McGovern and the Democrats, some members of Nixon’s election team resorted to efforts to disrupt the campaigns of Nixon’s opponents, including the primary campaign of Senator Edmund Muskie. The most damaging of these efforts resulted in the Watergate scandal.

On June 17, 1972, Frank Willis, a security guard at the Watergate building in Washington, D.C., discovered that five men had illegally entered the offices of the Democratic National Committee. The men, Bernard Barker, Virgilio González, Eugenio Martínez, James W. McCord Jr., and Frank Sturgis, were caught inside the office carrying various suspicious items, including camera equipment and telephone bugging devices. It was later revealed that they had broken in three weeks earlier and then returned for another visit in order to remedy improperly functioning eavesdropping equipment. The men were found to be linked to the CIA and, even more importantly, to the White House through the Committee to Re-elect the President (CRP), which people gave the ironic acronym of CREEP. Among the telephone numbers discovered in the records of the burglars was that of E. Howard Hunt, a White House aide and CREEP official. White House spokespersons characterized the affair as a “third rate burglary”; most Americans refused to believe that President Nixon was involved.

While publicly showing an attitude of indifference toward the burglary, Nixon and his top aides scrambled to cover up White House involvement. Their efforts to do so were captured by tape recorders that the President had secretly ordered placed in the Oval Office. Nixon’s intent had been to make a thorough record of events during his administration so he could subsequently write its definitive history. The tapes, however, came to be his undoing.

On January 8, 1973, the burglars went to trial for conspiracy, breaking and entering, and wiretapping, along with Hunt and G. Gordon Liddy, who had directed the White House’s Special Investigations Unit, a secret operation that came to be known as the Plumbers. This group ran various operations against the Democrats and Vietnam War protestors with the approval of John Mitchell, Nixon’s attorney general and the head of CREEP. These included the break-in at the Watergate, and another break-in at the office of a psychiatrist who was treating Daniel Ellsberg, a former Pentagon employee who had leaked a secret and highly critical account of the war to the New York Times. The struggle over whether to allow publication of those documents resulted in the landmark Supreme Court case New York Times Co. v. United States (1971), in which the justices blocked the President’s attempts to prevent publication of the classified papers.

Four of the five Watergate burglars pleaded guilty, but Hunt and McCord went to trial. Because the burglars and the others refused to cooperate, presiding judge John Sirica, who was known for his harsh sentencing policies, gave them all thirty-year sentences. Sirica also told them that he would reduce their sentences if they cooperated. McCord did so and implicated CREEP in the burglary.

The affair might well have ended there had not the Washington Post delved more fully into it. Reporters Carl Bernstein and Bob Woodward tapped a host of government sources, including Mark W. Felt, at the time the second-ranking official in the FBI. Felt, whom Bernstein and Woodward assigned the code name Deep Throat, was not publicly identified until 2005. The reporting in the Post as well as the New York Times brought mounting pressure on the administration and eventually prompted the Senate to create a special committee, the Watergate Committee, led by Sam Ervin, a North Carolinian with a homespun style.

On April 30, 1973, Nixon requested the resignations of his two top aides, Chief of Staff H. R. Haldeman and Assistant to the President for Domestic Affairs John Ehrlichman. Nixon also fired his White House counsel, John Dean, who in testimony before the Senate Watergate Committee said he had warned Nixon against trying to cover up the Watergate affair. Nixon also named Elliot Richardson attorney general to replace John Mitchell. Richardson then appointed Harvard law professor Archibald Cox to be a special prosecutor charged with conducting an independent investigation of Watergate. These developments occurred just as televised hearings before the Senate committee began. The hearings became an absorbing national spectacle that drew more than 85 percent of the viewing public to one or more sessions.

The defining moment in the hearings came on July 13. Deputy Assistant to the President Alexander Butterfield made a startling disclosure: the President had a secret system for recording everything said in the Oval Office. The existence of tape recordings opened the possibility for the Senate to learn, in the words of Senator Howard Baker of Tennessee, “[w]hat did the president know and when did he know it.”

President Nixon, however, refused to turn over the tapes, either to the Senate or to Special Prosecutor Cox. The tension mounted until on Saturday, October 20, 1973, at about 8:30 P.M., Nixon forced the resignations of Richardson and his deputy attorney general, William Ruckelshaus, for refusing to fire Cox. The so-called Saturday Night Massacre ended only when Solicitor General Robert Bork, who became by default the acting head of the Department of Justice, fired Cox. Stunned reporters on network television covered these events on a minuteby-minute basis. “Whether ours shall continue to be a government of laws and not of men is now for Congress and ultimately the American people,” Archibald Cox stated after he was fired. Ten days later, the House of Representatives began impeachment proceedings against the President, as the House Judiciary Committee, chaired by Representative Peter Rodino, started its preliminary investigation.

Nixon had no choice but to replace Cox with another special prosecutor; this time he appointed Leon Jaworski, a prominent Texas lawyer and recent American Bar Association president, to continue the investigation. A federal grand jury indicted seven of the President’s top aides and campaign officials for conspiracy to obstruct justice. Nixon was named as an “unindicted co-conspirator.” The President publicly dismissed allegations of wrongdoing by stating before a large audience at Disneyland in his home state of California, “I am not a crook.”

The question of Nixon’s guilt or innocence turned on the tapes. In response to a subpoena for the tapes issued by Judge Sirica, Nixon again refused, on the grounds of executive privilege, to furnish them. He also refused to comply with Judge Sirica’s order to deliver the tapes for an in camera (private) inspection by the court. Although Nixon’s lawyers had planned to take the issue to the federal court of appeals, with July 1974 impeachment hearings against Nixon looming, Jaworski asked the Supreme Court to take up the matter on an expedited review. The Court agreed to hear the case because of its immediate importance and the profound constitutional issues it raised. Spectators lined up two days in advance hoping to witness the oral arguments.

Nixon insisted that because he was President he was immune from court orders to produce documents and other materials. Nixon also claimed that the tapes contained highly sensitive national security and intelligence information. The President attempted to combat growing public suspicion by releasing heavily edited transcripts of the tapes; these efforts did disclose that the tapes were punctuated with profane language and racial and ethnic slurs. The transcript also noted that the tapes contained an eighteen-and-one-half-minute gap that the White House claimed Nixon’s secretary, Rosemary Woods, had made accidentally. Subsequent analysis of the tapes suggested, although it could not be proven definitively, that the erasure had been intentional.

Nixon’s conduct raised some of the most serious issues of separation of powers and rule of law in American history. Was there, for example, a constitutionally supported doctrine of executive privilege, and if so, how far did it extend? Did the separation of powers prevent the Court from hearing a matter that is contained within one branch of the federal government? Can a subordinate, the special prosecutor, prosecute the President under whom he serves? Which takes precedence, the confidentiality of the President’s work or the availability of evidence in a criminal investigation? And are acts of the President subject to review by the courts, or is he supreme in his interpretation of his constitutional duties and powers?

Leon Jaworski, whose varied experience and professional reputation protected him from any accusations of being either partisan or ideologically motivated, argued to the justices that the President had far exceeded his authority. Nixon was acting, Jaworski observed, as the sole judge of the Constitution, a position that conflicted with the powers and responsibilities he had been delegated under the Constitution. Executive privilege was not, Jaworski insisted, a constitutional power, but instead a power derived from practice and custom. That meant it had to be defined in a narrow way that limited the powers of the President. Such privilege should not, and historically had not, included withholding evidence in a criminal matter. President Nixon, Jaworski insisted, was attempting to place himself beyond the law, a position incompatible with the grand concept of the rule of law, which asserts that no person can be above it.

James St. Clair, an experienced trial lawyer and partner in a prestigious Boston law firm, represented Nixon. St. Clair told the justices that the conflict over the subpoena was an issue between two members of the executive branch (the President and the special prosecutor), and that it was therefore not within the Court’s jurisdiction. The question of whether a subordinate of the President could force a subpoena on him was entirely for the President, not the courts, to decide. Moreover, St. Clair argued that the President alone could determine the scope of executive privilege and that he had no need to seek the approval of the judicial branch in general and the Supreme Court in particular. The possible impeachment of the President, which was a political rather than a legal proceeding, made the disposition of the Watergate tapes a political issue that should be resolved politically.

The future of the Presidency and of the nation turned on the high court’s decision. Of its justices, the justice who most strongly supported the President was Potter Stewart. Like Chief Justice Warren Burger, Stewart believed that the special prosecutor lacked a sufficient connection to the harm done by Nixon, or standing in lawyer’s terms, to present a case against the President. The Court, therefore, could not hear the case. Byron R. White agreed that the case should be heard and decided but, like Lewis Powell, he wanted a narrow ruling.

The rest of the Court, however, lined up against Nixon’s position. William O. Douglas pressed Burger in conference to avoid an expansive reading of Presidential powers. William Brennan, after realizing that all the justices agreed that Nixon should furnish the tapes, despite their differing views on the merits of the case, pushed for a unanimous decision that would underscore the Court’s determination to sustain the rule of law. Thurgood Marshall favored writing a broad opinion that would limit the concept of executive privilege.

The final decision was unanimous, 8–0, and required that Nixon turn over the tapes. The entire Court agreed that it could hear the case because Attorney General Bork had contact not only with the President but with Congress. Writing for the Court, Chief Justice Burger rejected the idea that the President alone could establish the scope of his powers and affirmed that no one, including the President, was above the law. Burger also noted that Nixon himself had weakened his own case for the tapes’ confidentiality by releasing partial contents of the subpoenaed material.

United States v. Nixon was a landmark in the history of the nation for three reasons. First, the public hailed the Court’s ruling because it broke the political and legal knots into which the nation had been tied. The decision permitted the legal investigation of Watergate affair to move forward and, as a result, clarified the President’s vulnerability to the political process of impeachment. By requiring the President to turn over the tapes, Jaworski was able to affirm that a cover-up of criminal behavior had occurred and that Nixon was involved in it. Nixon ended the threat of impeachment by resigning and he escaped any future legal liability when his successor, President Gerald Ford, pardoned him of any criminal wrongdoing. More than twenty of his most trusted advisers, however, including Attorney General John Mitchell, received prison sentences.

Second, the justices reaffirmed the twin concepts of judicial review and judicial sovereignty. To do so, the Court restated the principle finding of Marbury v. Madison (1803): that it is the exclusive duty of the Court to review the law, “to say what the law is,” and that it is sovereign, has the last word, when it interprets the Constitution.

Third, the decision was a milestone in the history of the separation of powers. That doctrine requires each of the three branches of government to refrain from infringing or disregarding the constitutionally based prerogatives of the other branches. President Nixon claimed that the President should be able to determine conclusively what information was protected by executive privilege when he communicated with his advisers. The Supreme Court rejected that sweeping claim; instead, it reaffirmed that it is the duty of the judiciary to determine whether the purposes and scope of executive privilege are constitutional. The Supreme Court concluded that final interpretation of the Constitution can no more be shared with the executive branch than the chief executive, for example, can share with the judiciary the veto power, or the Congress can share with the judiciary the power to override a Presidential veto. “Any other conclusion,” the Court wrote, “would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government.”

But Burger stopped far short of pulling all the teeth of Presidential powers. The chief justice quoted twice from John Marshall’s opinion in United States v. Burr (1807) to make the point that the courts cannot treat the President as merely another citizen. The principle of separation of powers made the Court responsible for determining the law regarding executive privilege, just as the Court had previously defined the limits of congressional immunity. On the critical question of executive privilege, the justices held that executive powers were not absolute, but instead the legitimate demands of a criminal investigation could supersede Presidential privilege. Burger made clear that the framers of the Constitution knew that confidentiality was necessary for the operation of government, but they balanced that requirement against the framers’ equally strong insistence that full evidence be available in criminal and other judicial proceedings. Due process, as prescribed by the Fifth Amendment, Burger argued, required that all relevant and admissible evidence be produced.

Still, he wrote, the President was entitled to great deference, especially in matters involving defense and national security. All presumptions about the scope of executive privilege were to be interpreted in favor of the President. However, in this instance, Jaworski had particularized and precisely stated a need for the tapes, both with respect to the credibility of witnesses and for establishing the alleged crime. Burger’s carefully crafted opinion limited the sweep of executive privilege and immunity from prosecution while leaving the President with considerable powers.

The Court’s decision posed a harsh choice for President Nixon: he could either repudiate the federal courts by refusing to surrender the tapes or give them up and face certain impeachment by the House of Representatives. After Nixon’s counsel reviewed the tape made on June 23, 1972, there was no doubt of his complicity to cover up the affair. The President was recorded ordering his staff to use the CIA to abort the FBI’s probe, clear evidence of the crime of obstruction of justice. On another tape made on March 21, 1973, Nixon said to his legal counsel, John Dean: “We could get that. On the money, if you need the money you could get that. You could get a million dollars. You could get it in cash. I know where it could be gotten. It is not easy, but it could be done. But the question is, Who would handle it? Any ideas on that?””

In the meantime, the House Committee on the Judiciary was preparing to impeach the President. It voted three articles of impeachment against Nixon on the theory that he had abused his constitutional power. Whether the committee had adopted a proper constitutional view of the impeachment power was a matter of sharp debate, because there was disagreement about the meaning of “high crimes and misdemeanors,” the grounds for impeaching the President in Article II, Section 4. But it was clear in the wake of Nixon that the President was vulnerable to impeachment by the full House and conviction by the Senate on the basis of his criminal wrongdoing. Faced with the reality that his “silent majority” was deserting him, the President resigned.

The decision in Nixon and the Watergate scandal were inseparably linked. Journalists, for example, placed the chief executive and all politicians under intense scrutiny. Woodward and Bernstein became the role models for a new generation of investigative journalists, each determined to get the goods on public figures.

The Nixon decision and the Watergate scandal also temporarily eroded the “imperial Presidency,” the idea that the President is a power unto himself. This vision of Presidential authority began to develop when Franklin D. Roosevelt entered the White House and boldly asserted his prerogatives, first to end the Great Depression and later to support England against Germany in the early days of World War II. Yet strong Presidents have dotted American history. George Washington, Abraham Lincoln, and Woodrow Wilson each asserted extraordinary Presidential powers to deal with the crises of their own times. The modern imperial Presidency was notable, however, because the escalating threat of a nuclear exchange with the Soviet Union during Cold War placed a premium on strong executive leadership that in turn depended on secrecy.

The increased accountability of the Presidency, following Watergate and Nixon, was a new fact of political life. The press, for example, winked at the personal indiscretions of President John Kennedy while in the White House. Bill Clinton, however, came of political age in a new media era. That point was driven home by the case of Clinton v. Jones (1997). The justices permitted Paula Corbin Jones, an employee of the state of Arkansas while Bill Clinton was governor, to pursue a civil law suit against the President while he was still in office. Clinton was subsequently impeached in the House of Representatives but not convicted in the Senate for giving false grand jury testimony about his relationship with White House intern Monica Lewinsky while he was President. He apologized to the nation, agreed to pay a $25,000 court fine, settled his sexual harassment lawsuit with Paula Jones for $850,000, and was temporarily disbarred from practicing law in Arkansas and before the U.S. Supreme Court.

Still, the perception that Presidential authority had been eroded by the Nixon case was relative and short-lived. Chief Justice Burger’s opinion, by acknowledging that a high degree of discretion was due the President, laid the constitutional ground for this reemergence. Presidents Ronald Reagan and George H. W. Bush reasserted the prerogatives of the chief executive to interact confidentially with his advisers in order to conduct the nation’s foreign policy.

America clearly required strong Presidential leadership in a hostile world, a point made forcefully as a result of the attacks on the United States of September 11, 2001. In response to the terrorist threat, President George W. Bush made claims in favor of Presidential power that were as broad or broader than those made by Nixon, including the right to withhold from the public, on national security grounds, communications with his advisers. President Bush ordered suspected terrorists to be held without charges and without any limit on their incarceration. He ordered the creation of military tribunals to try alleged terrorists that did not adhere to traditional American judicial practices and established a program of electronic eavesdropping that mirrored similar Cold War programs. He did so under what he considered the inherent authority of the President to conduct war and provide for the nation’s defense and the authorization by Congress for him to use military force to prosecute the war on terror. In Hamdan v. Rumsfeld (2006), however, the Supreme Court found the President had exceeded his authority to create the military tribunals without explicit authorization by Congress. As was true in Nixon, the high court declared that the “executive is bound to comply with the rule of law.”

Although the actions of President Bush have served to remind the nation that the Court’s decision in Nixon was limited, President Nixon’s experience before the Supreme Court made it clear that the most powerful office and the most powerful person on Earth are not above the law. As has no other decision in the history of the Court, United States v. Nixon taught that basic constitutional lesson to an entire nation.