Robbins: The Supreme Court decision that ended Nixon’s presidency
Editor’s note: This is the ninth installment in a series on seminal cases in American law.
In it’s time, it was tectonically disruptive.
On July 8, 1974, the case of the United States versus Richard Milhouse Nixon— President of the United States — reached the Supreme Court. What was at stake was the presidency itself.
The Watergate burglars had burgled. Woodward and Bernstein at the Washington Post were bloodhounds on the trail. Like a canary in a D.C. coalmine, Deepthroat had sung until his beak was chipped from all the clattering. Like nihilist masons, the president and his men had stonewalled and denied.
But then there were the tapes, or at least the knowledge of them.
Tricky Dick had been caught — well, almost any way — like Pooh Bear with his nose stuck in the “hunny” jar.
In February 1971, a sound-activated taping system was installed in the Oval Office, including in Nixon’s Oval Office desk, to capture audio transmitted by telephone taps and concealed microphones. The system was soon expanded to include other rooms within the White House and Camp David. Few other than the President and his closest cadre of advisors knew.
That is, at least, until Alexander Butterfield — deputy assistant to the President — when testifying before the Senate Watergate Committee on July 18, 1973, spilled the proverbial beans.
With television cameras whirring, Republican Sen. Fred Thompson from the great state of Tennessee, who, in his long and colorful career, would wear the hats of attorney, senator, presidential candidate, lobbyist, columnist, actor and radio personality, asked a fateful question, “Mr. Butterfield, are you aware of the installation of any listening device in the Oval Office of the rresident?”
Hands clasped tightly before him, Butterfield paused. His internal struggle was evident. He gulped, lifted his hands, and his head rocked towards the microphone. He looked as if he might explode. At length, he answered. “I was aware of listening devices. Yes, sir.”
Thompson: “Were you aware of any devices installed in the Executive Office Building office of the President?”
Butterfield, with a clearly heavy heart, replied, “Yes, sir.”
The Congress quickly worked up a subpoena requesting the tapes.
If Nixon is not recorded by history as responding with a, “Hell no!” one can imagine his reaction was something close to that. In any event, the White House dug its heels in.
The tapes could not be released, the president maintained, because the constitutional principle of executive privilege extended to them. Citing the separation of powers and checks and balances within the constitution, he said no and no again. Second, the president self-righteously declared, the tapes were vital to national security.
Limits of executive privilege
On Oct. 19, 1973, he offered a compromise: Nixon proposed that U.S. Senator John Stennis review and summarize the tapes and report his findings to the special prosecutor’s office. Special prosecutor Archibald Cox refused the compromise and on Saturday, Oct. 20, 1973, Nixon ordered Attorney General Elliot Richardson to fire Cox.
Richardson refused and resigned. Then, Deputy Attorney General William Ruckelshaus was asked to fire Cox. He too refused and was subsequently fired. Next, Solicitor General and acting head of the Justice Department, Robert Bork, was asked to step up and fire Cox. He did. Nixon appointed Leon Jaworski special counsel on Nov. 1, 1973.
By the time the matter wound its way to the Supremes, a grand jury had returned indictments against seven Nixon aides, including former Attorney General John Mitchell. Special Prosecutor Jaworski and the seven defendants wanted access to the tapes.
Less than three weeks after oral argument, on July 24, 1974, a unanimous court (with Justice Rehnquist recusing himself due to his prior role in the Nixon administration) ruled against the President. Chief Justice Warren Burger said in clear and unequivocal tones that the president didn’t have an absolute, unqualified privilege to withhold information.
“We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial 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 criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial,” Burger said.
As the Supreme Court drama was unfolding, the House Judiciary Committee worked on three articles of impeachment against the president. The evidence on the tapes was critical to the impending House impeachment proceedings.
The Court ordered the tapes released as soon as possible. Sixteen days after the Supreme Court’s decision, his presidency in flames, Nixon resigned from office.
The decision was momentous. The court had ruled against the president, affirming that presidential powers were less than absolute and executive privilege extended only so far but no farther.
A cautionary tale? Time, presumably, will tell. Nonetheless, to dust off the seminal case of U.S. versus Nixon and view it beneath the lens of our own troubled times may well be worth a moment’s pause and thoughtful reflection.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Mr. Robbins may be reached at 970-926.4461 or at his e-mail address: Rrobbins@CELaw.com. His new novel, "How to Raise a Shark (an apocryphal tale)", is available at Amazon.com.
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