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.

Through the Looking Glass ... Again

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"History doesn't repeat itself, but it does rhyme."

Mark Twain

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Forty years ago this summer, the Watergate scandal swallowed the presidency of Richard Nixon.

I was a boy when that happened, and I'll admit that I didn't understand all the issues involved, but there was one very simple fact that seemed obvious to me.

When Alexander Butterfield revealed the existence of the White House taping system in July 1973, it was obvious that there was a completely neutral eyewitness to the White House conversations about which lawmakers were asking — the tapes that had been made of those conversations.

Congressional investigators did not have to rely on flawed human memories. They could listen to the tapes, and those tapes could verify what was said and by whom. Anyone who had answered truthfully when asked about his involvement in the coverup would be exonerated. Anyone who had not answered those questions truthfully would be exposed as dishonest.

When the taping system's existence was revealed, I heard many of Nixon's defenders say that they wished he would release the tapes. They would prove he had been telling the truth, and the Watergate scandal would go away.

Well, that was the thinking, but Nixon steadfastly refused to release the tapes — and the longer he did, the more his support tended to erode. Then as now, perception was reality, and the growing perception was that Nixon had something to hide.

That perception turned out to be correct, but the American people, the vast majority of whom had voted for Nixon's re–election two years earlier, were hesitant to believe it. At the time — and still today — I believed that hesitance enabled Nixon to drag the scandal out a few more months.

If Nixon had been blessed with an engaging personality, like the present occupant of the White House, he might have been able to drag his feet long enough to finish his term. But Nixon's was a dark, brooding kind of personality, cold and prickly, not warm and fuzzy. He didn't inspire much loyalty — except from those who, for whatever reason, did his bidding (and paid for it).

Barack Obama, however, does have a warm and fuzzy personality. That is the real secret of his success. His ratings on that question about whether a president (or presidential candidate) cares about people like the respondent are always through the roof. That's what Obama's 2012 campaign was about, wasn't it? It was designed to persuade swing voters that Mitt Romney and the Republicans were elitist snobs who didn't care about ordinary folks — or, to be more precise, blacks, women, gays, immigrants, the poor.

Re–election campaigns tend to be about achievements, those that are finished and those that are works in progress. Well, that's the way they used to be.

While the fact that Obama made history as the first nonwhite president was a pleasant bonus, it wasn't the main reason why most people voted for him in 2008. He was elected mostly because of the terrible economy and the escalating jobs crisis, and Americans wanted to be out of two wars that were sucking up American lives and treasure at an alarming rate.

When times are bad, voters go for the other option.

In short, there were serious problems that needed to be resolved. Certain expectations came with the job, and voters decided, as they almost always do in such a situation, to go with the other party's nominee.

Economists later told America that the recession actually ended after about six months of Obama's presidency, and some kind of recovery should have taken place — but, if asked about it today, most Americans will say that they don't believe the recession ever ended — or, if it did, they don't believe there has been a recovery.

Obama couldn't run on his economic record. He had a more stable foreign policy record in September 2012 — and he may well have intended to run on that record — but then there was that attack on the embassy in Benghazi, and four Americans were killed, including the ambassador. He and Joe Biden continued to mention the fact that Osama bin Laden had been killed on his watch, but the race was close in the autumn of 2012.

Perhaps the Democrats felt the truth about Benghazi would undermine the case they had been making that Obama's foreign policy was succeeding. That is the argument the president's detractors have made, anyway.

That didn't work too well in 2012, but a lot has happened since then. Obama's second–term agenda hasn't been getting any traction — whether that is due, as the president contends, to obstructionism or his administration's own shortcomings, as in the rollout of Obamacare, is a subject for a different debate — and his party already is facing mounting problems in what always (from the perspective of history) figured to be a problematic sixth–year midterm election.

And now the release of emails from September 2012 have raised new and troubling questions about the administration's actions on the night of the attack — and how those actions may have been motivated by domestic political concerns.

House Republicans want to assemble a select committee to investigate, to ask the questions that the emails have raised, but their Democratic colleagues are not sure they will participate.

Seems to me that would be a lot like when Nixon refused to release the tapes.

My understanding is that the Democrats cannot be compelled to participate in the committee's hearings, but the Republicans still would hold them. Do the Democrats really want to let every assertion that is made go unchallenged? And in a midterm election year?

As I understand it, a select committee does not have the authority to charge anyone with anything, but, like the Senate Watergate Committee 40 years ago, it can call witnesses and issue subpoenas.

If no one is there to defend the administration, it will feed a perception that can only add to Democrats' electoral woes.

On the other hand, Republicans need to be careful. The wind is at their backs on this one, but they need to avoid appearing too political. If they make their argument about transparency and good, law–abiding government, it will help their cause.

As will Nixon's true legacy in all of this — the case of United States v. Nixon.