Forty years ago, on July 8, 1974, the Supreme Court heard arguments in United States vs. Nixonthe historical case that finally defined the limitations to the power of the president.
These were the topics:
1. Should the President be required to turn over records of 64 conversations to Watergate prosecutors?
2. Was the grand jury correct in naming Richard Nixon as an unindicted co-conspirator?
Behind it all, however, was the real question: Is the president above the law? Prosecutors argued that the president was No about the law. Nixon’s defense was, as it had been all along, that the CEO it is above the law – through the principle of executive privilege.
In fact, more than a year earlier, in February 1973, Nixon’s own tapes showed that Nixon and two of his subordinates, HR Haldeman and John Dean, had discussed the fraudulent use of executive privilege, not to protect others but to protect themselves.
The concept of executive privilege, although not specifically addressed in the Constitution, is based on the principle of separation of powers. It is understood that a level of confidentiality extends to a president and his assistants in certain circumstances, particularly in matters related to defense and national security.
Then-Associate Justice William Rehnquist recused himself because he had served in the Nixon administration (at the Justice Department) prior to his appointment to the Supreme Court, leaving eight justices to rule on the matter.
They heard arguments from Watergate special prosecutor Leon Jaworski and Nixon’s attorney James St. Clair, after which they reviewed the facts of the case and reissued their decision two weeks later.
“Jaworski seemed nervous”, Bob Woodward and Carl Bernstein wrote. “He spoke awkwardly as he slowly recited the history of the grand jury proceedings. He pointed out that the grand jury had named the president an unindicted co-conspirator, and then hesitantly got to the heart of the matter. Who is the arbiter of the Constitution? ?”
“‘Now, the president may be right in the way he reads the Constitution,’ Jaworski said. ‘But he may also be wrong. And if he is wrong, who is there to tell him? And if no one is there, the president You are, of course, free to follow your course of misinterpretation. What then of our constitutional form of government?'”
The defense argued that executive privilege was absolute, but the prosecution said it was not and that any confidentiality granted to the president had to yield to the needs of the legal system in a criminal case. If the president were granted absolute executive privilege, Jaworski said, it would be an unchecked power that could subvert the rule of law.
St. Clair argued that under the separation of powers doctrine, the case should not be heard in court because it involved a dispute within the executive branch of government. He also claimed, as I have already said, that the president deserved absolute executive privilege and should not be forced to hand over his tapes.
Jaworski took issue with St. Clair’s assertion that the matter was an internal dispute within the executive branch. “Jaworski cited assurances from [Al] Hayg, [Robert] Bork and Attorney General William B. Saxbe … regarding their undisputed right to sue the President on the question of executive privilege,” Woodward and Bernstein wrote. “It was up to the court, he said, to decide who was right, on the merits.”
The magistrates retired to review the facts of the case and, 16 days later, they issued a sentence that would influence the course of history.