A Summary and Analysis of the Nixon Tapes Case That Still Governs Important Aspects of “Executive Privilege” Today

In light of the various ongoing investigations—some by special DOJ counsel Robert Mueller and others by various congressional committees in both houses—of members or associates of President Trump’s administration, there is a great deal of talk these days about “executive privilege” that the president may or may not enjoy to shield from view communications he has with his advisors. Discussion of executive privilege, in turn, usually triggers reference to United States v. Nixon, the landmark case decided by the Supreme Court about 43 years ago that continues to be the most important judicial word on precisely when the president can—and cannot—insulate his communications from being examined in judicial proceedings. In the space below, I provide a brief summary of the United States v. Nixon case, its understandable result, some weaknesses in its reasoning, and some lessons we should learn if and when the current investigations touching the president bring some of these privilege issues back to the Court.

Background on the Nixon Case

The United States v. Nixon ruling arose from the late stages of the Watergate investigation, which was triggered when burglars broke into the Democratic Party National Headquarters in the Watergate Hotel complex in the summer of 1972. About a year after the burglary, the United States Attorney General, Elliot Richardson, appointed a special counsel, Archibald Cox, to investigate the break-in and related matters more deeply. In October of 1973, after Mr. Cox sought copies of various taped conversations in the Oval Office, President Nixon, in the so-called Saturday Night Massacre, ordered his attorney general to fire Mr. Cox. When Mr. Richardson and his next-in-command, Deputy Attorney General William Ruckelshaus, both refused to carry out the president’s order and resigned instead, the acting head of the Department of Justice, Solicitor General Robert Bork, carried out President Nixon’s wishes and fired Mr. Cox, who then issued a press statement saying: “Whether ours shall continue to be a government of laws and not of men is now for Congress and ultimately the American people.”

Many members of Congress and a large segment of the American public were indeed outraged, and within a few weeks several articles of impeachment were introduced into the House of Representatives. In addition, at least one federal district court judge called into question the legality of Mr. Cox’s termination. Political pressure mounted on President Nixon to authorize the appointment of a replacement special prosecutor, and to give him protection from termination without cause. Mr. Bork appointed Leon Jaworski as special prosecutor, and Mr. Jaworski picked up where Mr. Cox had left off, looking not only at the Watergate break-in but also larger allegations of wrongdoing by members of the Nixon administration, including the president himself.

Mr. Jaworski brought his case to a federal grand jury, which in March of 1974 issued an indictment against seven named individuals, including President Nixon’s first attorney general (John Mitchell), the White House Chief of Staff and other key aides—charging them with various federal crimes, including conspiracy to defraud the United States and to obstruct justice. As the Supreme Court would later note, “[a]lthough [the President] was not designated as such in the indictment, the grand jury named the President, among others, as an unindicted coconspirator.”

Ostensibly to bolster his evidence for prosecuting the seven indicted persons, Mr. Jaworski then renewed the demand for Oval Office conversation tapes, and successfully moved the district court to issue a subpoena directing the president to produce “certain tapes, memoranda, papers, transcripts, or other writings relating to certain precisely identified meetings between the President and others.” After the district court rejected the president’s assertion of absolute executive privilege with respect to these materials, the Supreme Court took the case up even before the U.S. Court of Appeals had ruled on it. Oral argument in the Court was held on July 8, 1974, and the unanimous (8-0) opinion, written by Chief Justice Warren Burger, ruling against the president was issued just 16 days later, on July 24.

The Supreme Court’s Reasoning and Result

The Court began by addressing the argument made by the president that the federal courts “lacked jurisdiction . . . because the matter was an intra-branch dispute between a subordinate and superior officer of the Executive Branch.” According to the president, because “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case, . . . a President’s decision is final in determining what evidence is to be used in a given criminal case.” The Court rejected this contention, relying on the Department of Justice regulation pursuant to which Mr. Jaworski had been appointed; this regulation conferred on Jaworski certain specific powers, including the power to contest the invocation of executive privilege. According to the Court, “[s]o long as this regulation is extant, it has the force of law” and “[s]o long as this regulation remains in force, the Executive Branch is bound by it, and indeed the United States, as the sovereign composed of the three branches, is bound to respect and to enforce it.”

From there, the Court turned to the heart of the matter—the president’s claim that the subpoena ought to be rejected because it seeks “confidential conversations between a President and his close advisors that it would be inconsistent with the public interest to produce.”  The Court purported to accept one of the major premises underlying the president’s submission—the notion that candor will be chilled if people know their conversations with the president might later be made public. The Court conceded:

[T]he valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties . . . [which] is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.

But the Court believed the president’s argument cut too broadly:

Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera [that is, private, in-chambers] inspection [by a judge] with all the protection that a district court will be obliged to provide.

Moreover, the Court highlighted the weighty need for evidence in a criminal case:

The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts . . . . The right to the production of all evidence at a criminal trial similarly has constitutional dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal trial the right ‘to be confronted with the witnesses against him’ and ‘to have compulsory process for obtaining witnesses in his favor.’ Moreover, the Fifth Amendment also guarantees that no person shall be deprived of liberty without due process of law. It is the manifest duty of the courts to vindicate those guarantees, and to accomplish that it is essential that all relevant and admissible evidence be produced.

Based on this identification of the competing values, the Court attempted to craft a privilege doctrine that balances the president’s need for candor with the system’s need for evidence. According to the Court, the need for confidentiality is ordinarily outweighed if the evidence sought for a criminal proceeding is specific, admissible, and relevant.

Was the Case Correctly Decided?

The Court had no real choice but to rule against President Nixon. The special prosecutor had already presented evidence to the grand jury suggesting that President Nixon was a co-conspirator in the federal crimes for which others were being prosecuted, and the very conversations of which Mr. Jaworski sought the recordings would likely provide slam-dunk evidence of the conspiracies themselves—and the president’s part in them. So whether or not a broader executive privilege should have been recognized by the Court, Richard Nixon should not have benefitted from it, in the same way that other privileges do not protect persons engaged in ongoing criminality.

That said, as commentators such as Akhil Amar have observed, there are aspects of the Court’s reasoning that don’t hold up well to careful scrutiny. Consider first the reliance on the regulation by which Mr. Jaworski was appointed to find the case justiciable. The Court said as long as the regulation was on the books, it was binding. But the president likely had the constitutional power to rescind the regulation himself anytime he wanted to. Isn’t it a bit formalistic to make him do that when his litigation stance in the Supreme Court is clear evidence that he doesn’t agree with the special prosecutor or stand behind the regulation that empowered him? At the very least, the Court never explained why the formal act of rescission ought to have carried such legal significance when the president’s intent there was so obvious.

Next, consider the Court’s invocation of the Fifth and Sixth Amendments to prove how important it is to uncover all evidence bearing on a criminal case. Crucially, those amendments are designed to uncover evidence that might aid the defendant, not the government. In prosecuting someone, the government is not entitled to everyman’s evidence, or else we wouldn’t have a Fifth Amendment ban against compelled self-incrimination; often the defendant’s brain holds the most directly relevant evidence—knowledge of guilt or innocence. So it is odd, at the least, to invoke provisions in the Constitution designed to protect defendants in a case where the prosecutor—not a defendant—is seeking incriminating, not exculpatory, evidence.

Finally, turn to the privilege the Court did end up recognizing: the president can resist on the ground that the evidence sought in a criminal case is not specific or relevant. Is that any kind of privilege? Can’t anyone—whether he is the president or not—resist any subpoena on the ground that the evidence sought is insufficiently specific or relevant? While the Court purported to split the loaf, the president ended up with crumbs.

Why is all this potentially problematic? Because not all presidents are crooks like Richard Nixon. Consider the following hypothetical drawn from Akhil Amar’s essay on the Nixon case:

On [Chief Justice] Burger’s logic, essential and wholly proper (but politically sensitive) conversations in the Oval Office [are] entitled to less legal protection than conversations between spouses or between attorneys and clients. For example, suppose the President is considering whether to appoint Jane Doe to some high post. This is a key part of his job, as specified by the Constitution’s Article Appointments Clause. Aides brief the President on possible dirt on Doe, her friends, and family, reporting both facts and rumors. This information might bear on Doe’s fitness and also might come up in the press or in a Senate confirmation. For the President to do the job the Constitution assigns him, it is necessary and proper—indeed imperative—that he receive this confidential information. But the Tapes Case, if we take its logic seriously, suggests that any county prosecutor in a state criminal case . . . could subpoena this conversation in a lawsuit designed to embarrass Doe and/or the President. If so, aides will hesitate to tell the President what he needs to know to do his job.

Nor does the fact that courts can review information privately (in camera) provide much protection in an era where leaks are to be expected in virtually every politically charged setting.

To be sure, a key component of the rule of law is that no one person (even a president) is above the law. But another aspect of the rule of law is that the generally applicable rules of law (legal doctrine) should not be crafted with one personality in mind. By adopting a set of rules that fails to adequately protect presidential communications for presidents who have committed no crimes—rather than explaining why a robust presidential privilege ought not to protect Mr. Nixon in particular because of the evidence of his own criminality that had already been adduced—the Nixon Court distorted the larger doctrine in a way that still haunts us today.