Supreme Court: The President Is Not Above the Law

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For two weeks in the summer of 1974, the eight Supreme Court justices who were deciding on United States v. Nixon had been reviewing the details of the case and considering the lawyers' arguments.

Executive privilege was given as the defense's argument for not turning over the tapes that had been requested. But the real issue was: Is the president above the law?

The justices answered that question 40 years ago today.

And while the Supreme Court considered the matter, all kinds of things were happening in the Watergate case.

The day after the justices heard arguments, the House Judiciary Committee released its own versions of transcripts of eight conversations that had been released earlier by the White House. When the White House transcripts were compared to the Judiciary Committee's transcripts, it was clear that several long Watergate–related passages had been omitted in the White House version.

A week later, Nixon refused to comply with the House Judiciary Committee's last four subpoenas. In an interview that day, he called Watergate "the broadest but thinnest scandal in American history."

The day before that, the White House had furnished some John Ehrlichman notes to the Judiciary Committee, portions of which were blacked out. A few days later, Nixon attorney James St. Clair assured the committee that the deletions had been made by mistake, but the public relations damage had clearly been done.

The Judiciary Committee also made public five volumes of evidence that challenged the White House's argument that national security was the reason for the wiretaps. Without identifying which ones, Vice President Gerald Ford said he had listened to portions of two of the tapes and had reached the conclusion that it was "very understandable" that different interpretations could be made of words that were spoken on them.

Volume upon volume of evidence was released to the public, and both the majority and minority counsels on the Judiciary Committee urged a Senate trial on one or more of five impeachment charges: (1) obstruction of justice, (2) abuse of power, (3) contempt of Congress, (4) failure to adhere to the pledge to "take care that the laws be faithfully executed" and (5) denigration of the presidency through underpayment of income taxes and use of federal money for personal purposes.

In California, the president's press secretary said the majority counsel, John Doar, was running a "kangaroo court."

The minority counsel, Albert Jenner, was replaced a couple of days later — after saying the case for impeachment was persuasive.

A couple of days before the Supreme Court announced its ruling, St. Clair declined to say whether Nixon would comply if the Supreme Court ordered him to turn over the tapes.

The next day, House Judiciary Committee member Lawrence Hogan, a Republican from Maryland, announced he would vote for impeachment. Hogan had already decided not to seek re–election to the House and was instead seeking the governorship of his state.

Forty years ago today, Watergate special prosecutor Leon Jaworski told the Baltimore Sun that he was "appalled" by the White House's refusal to say whether it would obey a Supreme Court order to turn over the tapes.

And such an order was handed down later that day.

By an 8–0 vote, the justices ruled that Nixon had to turn over the records of 64 Watergate–related conversations. They acknowledged that there was a constitutional basis for executive privilege but said that, when such a claim is "based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of justice."

"In careful but clear language," Bob Woodward and Carl Bernstein wrote, "the Court ordered the president to turn over the tapes."

St. Clair, wrote Woodward and Bernstein, had been certain he would win the case. "He was shattered that he had lost. When he read the decision, it became clear to him that the tapes would have to go to [presiding Judge John] Sirica.

"'The president is not above the law. Nor does he contend that he is,' St. Clair had told the court. He hoped that the president understood what that meant. Nixon had never told him exactly what he would do if there were an adverse decision, but St. Clair knew that his own legal advice to the president had to be unqualified compliance.

"When St. Clair arrived at the residence, he told the president ... that he advised full compliance. The president was not convinced. He wondered if, in fact, to preserve the power of his office, he didn't have a constitutional duty to reject the court order."

Of Nixon's defenders, historian Theodore White wrote, "they were like German officers on the firing line in 1918 who knew long before the Kaiser that the time for surrender had come."

The president eventually agreed to a kind of compliance. He told St. Clair that he would need to time to review the tapes before turning them over — weeks, perhaps months. St. Clair wasn't sure he could arrange that. Jaworski was eager to get the tapes for use in the upcoming coverup trial.

Nixon also informed lawyer Fred Buzhardt that "there might be a problem with the June 23 tape."

U.S. v. Nixon: Is the President Above the Law?

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Forty years ago tomorrow, the Supreme Court heard arguments in United States v. Nixon, the landmark case that ultimately defined the limitations on the power of the president.

These were the issues:

1. Should the president be required to turn over the records of 64 conversations to Watergate prosecutors?

2. Did the grand jury act properly in naming Richard Nixon as an unindicted co–conspirator?

Underlying it all, though, was the real question: Is the president above the law? The prosecutors argued that the president was not above the law. Nixon's defense was, as it had been all along, that the chief executive is above the law — via the principle of executive privilege.

More than a year earlier, in fact, in February 1973, Nixon's own tapes showed that Nixon and two of his subordinates, H.R. Haldeman and John Dean, had discussed using executive privilege fraudulently — not to protect others but to protect themselves.

The executive privilege concept, while not addressed specifically in the Constitution, is based on the principle of separation of powers. A level of confidentiality is understood to be extended to a president and his aides in certain circumstances, particularly in matters involving defense and national security.

Then–Associate Justice William Rehnquist recused himself because he had served in the Nixon administration (in 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 lawyer, James St. Clair, after which they reviewed the facts of the case and returned to hand down 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's proceedings. He noted that the grand jury had named the president an unindicted co–conspirator, and then he moved haltingly to the heart of the matter. Who is the arbiter of the Constitution?"

"'Now, the president may be right in how he reads the Constitution,' Jaworski said. 'But he may also be wrong. And if he is wrong, who is there to tell him so? And if there is no one, the president, of course, is free to pursue his course of erroneous interpretations. What then becomes 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 that was extended to the president had to yield to the needs of the legal system in a criminal case. If the president were given absolute executive privilege, Jaworski said, it would be an unchecked power that could subvert the rule of law.

St. Clair argued that, under the doctrine of the separation of powers, the case shouldn't be heard in the courts at all because it involved a dispute within the executive branch of the government. He also contended, as I have said, that the president deserved absolute executive privilege and should not be forced to turn over his tapes.

Jaworski took issue with St. Clair's assertion about the matter being an internal dispute within the executive branch. "Jaworski cited the assurances of [Al] Haig, [Robert] Bork and Attorney General William B. Saxbe ... as to his indisputable right to take the president to court on the question of executive privilege," wrote Woodward and Bernstein. "It was up to the court, he said, to decide who was right, on the merits."

The justices retired to review the facts of the case — and, 16 days later, they handed down a judgment that would influence the course of history.

Releasing Nixon's Transcripts

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"In giving you these — blemishes and all — I am placing my trust in the basic fairness of the American people."

Richard Nixon
April 29, 1974

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Richard Nixon tried all sorts of strategies to keep the Watergate investigators' hands off the tapes of his Watergate–related conversations after their existence was made public in the summer of 1973.

Between February 1971 and the revelation of the existence of the taping system in 1973, Nixon secretly recorded more than 3,700 hours of conversations dealing with a wide variety of subjects. Not all of the tapes were relevant to the investigation into the Watergate burglary, but, once it was revealed that phone conversations and meetings involving Nixon had been routinely recorded, it was inevitable that members of Congress would demand to hear them. It was simply a matter of pinpointing which conversations were relevant and asking for them.

At the time, I felt Nixon had been very nimble in his strategies to keep the investigators' hands off his tapes. Of course, I was a boy, and it probably wasn't too difficult to impress me. If I had used logic to assess the situation, I would have concluded that an innocent man would not have resisted as long or as adamantly as Nixon did. The tapes could only vindicate such an individual.

By late April of 1974, Nixon was running out of options. He had consistently maintained that it was his right to decide the evidence that would be produced against him, but neither special prosecutor Leon Jaworski nor House Judiciary Committee counsel John Doar was buying it so he tried a different gambit. He offered a compromise in a speech to the nation on April 29.

Nixon released edited transcripts of the conversations that had been subpoenaed. The transcripts were not always of the complete conversations, only the "relevant portions," and profane expressions from Nixon and others were replaced with the rapidly recognizable phrase "expletive deleted."

Americans had to take Nixon at his word that all the portions of the conversations that were relevant to the investigation were included. He would not provide the tapes for the committee members to hear for themselves, but he did pledge to invite House Judiciary Committee chairman Peter Rodino and the committee's ranking Republican member to come to the White House to listen to the tapes in their entirety "so that they can determine ... that the transcripts are accurate and that everything on the tapes relevant to my knowledge and my actions on Watergate is included."

If either man found a discrepancy or inappropriate omission, Nixon said he would "meet with them personally."

Midway through his speech, which sounded earnest and sincere, as if he were really trying to cooperate while maintaining the privilege of the executive, I felt Nixon's tone seemed to shift to one of defensiveness. That wasn't new for him.

Bob Woodward and Carl Bernstein, the Washington Post reporters whose coverage of the scandal precipitated the congressional investigations and ultimately led to this night 40 years ago, wrote that "even Nixon's most severe critics thought the speech a very good one, at the least artfully constructed. The admissions he had made in the address ... seemed to make his broader claim of innocence more believable. The speech was less strident than usual, and less self–serving."

I can't really agree with that. Virtually every word that came from Nixon's mouth seemed to be self–serving.

(Executive privilege, by the way, wasn't a new thing. Over the years, it has come to be associated with national security and the need to keep conversations and documents on national security confidential. It has its American roots in the presidency of George Washington but was not invoked by another American president after Nixon until Bill Clinton two decades after Nixon resigned. Both of Clinton's successors — George W. Bush and Barack Obama — have invoked executive privilege.)

"Ever since the existence of the White House taping system was first made known last summer," Nixon said, "I have tried vigorously to guard the privacy of the tapes. I've been well aware that my effort to protect the confidentiality or presidential conversations has heightened the sense of mystery about Watergate — and, in fact, has caused increased suspicions of the president."

He then touched on the point I just made.

"Many people assume that the tapes must incriminate the president," Nixon continued, "or that, otherwise, he wouldn't insist on their privacy."

Nixon claimed a greater principle was at stake.

"Unless a president can protect the privacy of the advice he gets," Nixon asserted, "he cannot get the advice he needs."

Nixon said it was his "constitutional responsibility" to defend the principle, which had been maintained by every American president and upheld in court cases — but it had been defended with more vigor by the executive branch once America became a world power.

But Nixon said that three factors had convinced him that an "unprecedented exception" had to be made.

1. "[T]he House of Representatives must be able to reach an informed judgment about the president's role in Watergate."
2. "I believe such action is now necessary in order to restore the principle itself."
3. "I believe all the American people, as well as their representatives in Congress, are entitled to have not only the facts but also the evidence that demonstrates those facts."

About three months later, the "smoking gun" of Nixon's involvement was made known — after the House Judiciary Committee had already drafted and approved articles of impeachment.

What Was Gained From the Saturday Night Massacre?

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"Whether ours shall be a government of laws and not of men is now for Congress and ultimately the American people to decide."

Archibald Cox

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Of all the remarkable events that led Richard Nixon and the American people through the labyrinth of the Watergate scandal and coverup to Nixon's eventual resignation, the Saturday Night Massacre may have been the most astonishing.

The Saturday Night Massacre — in which the independent special prosecutor in the Watergate investigation was dismissed by presidential order and the attorney general and deputy attorney general resigned rather than carry it out — occurred 40 years ago today.

And it ignited a constitutional crisis — the very thing Nixon said he wanted to avoid. Of course, Nixon said a lot of things.

See, the special prosecutor was appointed by and operated under the auspices of the attorney general, Elliot Richardson, and could only be removed "for cause," which meant for improper conduct of some kind. In fact, when he was confirmed by the Senate in May 1973, Richardson specifically pledged that he would not dismiss the Watergate special prosecutor except for cause.

Nearly five months later, the special prosecutor, Archibald Cox, issued a subpoena to the White House. The existence of the White House's taping system had been revealed in public hearings in July, and Cox wanted copies of certain tapes for investigators to examine. Nixon refused.

Instead, Nixon offered, on Oct. 19, 1973, to permit Sen. John Stennis (D–Miss.), who was in his 70s and hard of hearing, to listen to the tapes and sign off on summaries of them for the Watergate investigators. Nixon claimed that Stennis would be sensitive to national security issues raised in the conversations.

(I recall that TIME magazine, in one of its reports, ran a file photo of Stennis in some committee hearing cupping his hand to one ear. Stennis clearly had been signaling for whoever had been speaking to speak louder or repeat himself, but, given Stennis' known hearing issues, it was a clever illustration for the part of the story that dealt with what had been dubbed the "Stennis Compromise."

(To emphasize the point, TIME's caption read: "Technical assistance needed.")

Sens. Sam Ervin and Howard Baker of the Senate Watergate Committee agreed to the Stennis Compromise. But it was unacceptable to Cox, and he turned it down that evening. (I've always liked historian Theodore White's description of Cox's demeanor when he faced the press the next afternoon — "[g]angling, gentle and firm, combining the qualities of old Mr. Chips and Joan of Arc" — and tried to explain why he could not accept the president's offer.)

That Saturday, Ervin said a summary of the tapes would not be acceptable, that he had understood that he would receive verbatim language from the tapes (presumably a transcript).

Government offices were closed for the weekend, and my memory is that no one really expected any further developments until the next week.

Wrong.

Forty years ago today, after Cox's appearance before reporters, Nixon ordered Richardson to fire Cox. Richardson refused and resigned in protest. Thus, the order fell to Richardson's deputy, William Ruckelshaus. He, too, refused and resigned.

Third in line was Robert Bork, the solicitor general and, now, acting head of the Justice Department. His predecessors had promised during their confirmations that they would not interfere in the Watergate investigation, but Bork had made no such pledge so he carried out Nixon's order.

Shortly before 8:30 p.m. Washington time, White House press secretary Ron Ziegler told reporters that Cox had been fired and the special prosecutor's office had been abolished. He also announced that Richardson had resigned and Ruckelshaus had been fired (Ruckelshaus' side of the story was that he resigned before he could be fired).

Cox's office had been sealed off by the FBI, Ziegler said, to prevent any files from being removed. In what was almost an afterthought, Ziegler announced that Bork, as acting attorney general, had fired Cox.

"Nixon's move to block the special prosecutor was for most Americans their first up–close look at what the Watergate fuss, by then more than a year old, was all about: naked presidential power," wrote Susan Brenneman this week in the Los Angeles Times.

Fourteen years later, when Ronald Reagan nominated Bork for a Supreme Court vacancy, Kenneth Noble reported in the New York Times that Bork said of his role in the Saturday Night Massacre that "I get a little tired of it being portrayed as the only thing I ever did."

I'm sure there were those who knew that — among them Bill and Hillary Clinton, who were Bork's students. For most people, though, I would say that Bork first came to their attention as a result of the Saturday Night Massacre. He was in his mid–40s at the time. He had been a practicing lawyer for nearly 20 years and a Yale law professor for more than 10. Clearly, he had accomplished things before being thrust into the national spotlight.

Supposedly, he was torn. He said that he believed Nixon's order was appropriate; nevertheless, he considered resigning as Richardson and Ruckelshaus had so he would not be "perceived as a man who did the president's bidding to save my job."

That was, in fact, a popular conclusion.

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Roughly 3½ weeks after Cox's dismissal, a federal judge ruled that it was illegal because there was no evidence of "extraordinary impropriety," as was specifically required when the position was created.

Nixon's lawyers were not eager for a repeat of the Cox episode with Jaworski. When Cox was fired, it produced an avalanche of letters and telegrams to Congress calling for Nixon's impeachment, and the president's approval rating slipped below 30%.

Only a few days after the Saturday Night Massacre, 44 Watergate–related bills had been introduced in the House, and nearly two dozen resolutions called for Nixon's impeachment. A dozen called for the appointment of a new special prosecutor.

Nixon did precisely what most people probably didn't expect. He decided not to abolish the office of special prosecutor after all and agreed to release the subpoenaed tapes. Leon Jaworski was chosen to replace Cox. Speculation at the time centered on whether Jaworski would confine his investigation to the Watergate burglary or try to expand it, as Cox had, to include other White House activities. As it turned out, Jaworski followed Cox's lead.

So it is fair to ask: What did Nixon achieve with the Saturday Night Massacre?

The special prosecutor still existed. The only real change was that a different person held the title.

(Upon reflection, I am inclined to wonder if perhaps that was the point. Nixon always felt snubbed by the Eastern establishment, and "intellectuals" from Harvard definitely were on that list. Maybe all he really wanted to do was replace the Harvard law professor with the Baylor law graduate.)

Nixon still had to give up the tapes — eventually. He tried numerous tactics to avoid handing them over, all of which failed, and the Supreme Court ruled unanimously against him. When members of Congress heard what was on those tapes, even Nixon's most ardent supporters on the Hill were persuaded to support his removal.

Less than a year later, Nixon resigned and went into virtual exile in California — and spent the rest of his life rewriting history.