NOTE: I’ve finally completed “Have To” History: Landmark Supreme Court Cases. The following is an excerpt from this work, inspired only by my love of sharing and having nothing to do with current events. (We work very hard in history education to make sure there’s as little connection as possible between what we cover in class and what’s happening in the real world around us. Otherwise – phone calls!) 

Stuff You Don’t Really Want To Know (But For Some Reason Have To) About U.S. v. Nixon (1974)

Three Big Things:

1. In 1972, five men working for the Nixon Administration were caught breaking into Democratic National Headquarters. Investigations revealed much wider-spread wrongdoing by the White House – and efforts by the President himself to cover it all up.

2. When it was revealed that the President recorded his conversations, the tapes were subpoenaed by Congress; Nixon refused, claiming “executive privilege.”

3. The Supreme Court ruled against the President, who resigned to avoid impeachment. “Watergate” became shorthand for all things corrupt, especially in reference to major political scandals.

Background

President Nixon was a very naughty man. Or, at least, he did some very naughty things (and then lied about it).

Richard M. Nixon began his political career in the House of Representatives, where he served the 12^th District of California from 1947 – 1950. In 1950 he successfully ran for one of the state’s two Senate seats, which he held until asked to be the running mate of Dwight D. Eisenhower in the Presidential Election of 1952. While Eisenhower focused on the positives – what he wanted to do for the country – Nixon handled the negatives, attacking opponents and criticizing Democratic policies. It was a successful strategy; Nixon became Vice President in 1953.

Nixon’s involvement in the Eisenhower Administration was much more active than had been typical with prior VPs. He chaired security meetings when the President was absent and interacted with foreign leaders around the world. Nixon was virulently anti-Communist, but surprisingly diplomatic and seemingly unflappable in the face of protests, violence, or other challenges from detractors. He served under President Eisenhower for eight years.

Nixon attempted to ride this momentum to his own administration in 1960 but lost to John F. Kennedy in one of the most famous elections of the 20^th century. JFK was young, optimistic, handsome, and Catholic, while Nixon was, well… himself.  Nixon next sought the governorship of California in 1962, but again fell short. During his concession speech, Nixon’s frustration boiled over as he told the reporters that they wouldn’t “have Nixon to kick around anymore.” He was done with politics.

He probably meant it at the time, but it didn’t last long. Six short years later, in 1968, he was elected President.

President Nixon

By 1968, the Vietnam War was beginning to look to many Americans like nightmarish quagmire we remember today. The Civil Rights movement was in full swing but faced violence and ugly backlash with every success. JFK had been assassinated in 1963, Malcolm X in 1965, MLK in April of 1968, and Robert Kennedy – on his way to becoming the Democratic nominee for President – in June. These were days of sex and hippies and drugs and war protests, and while pop culture too often overlooks the many folks simply going to school or work and trying to live their daily lives as best they could, the nation was arguably in its most self-destructive phase since the Civil War.

When times are good, Americans want freedom. When things turn chaotic and dark, however, most people want structure. Decency. A return to “normalcy.” It was out of such times that Nixon re-emerged, promising to restore law and order. He appealed to the “silent majority” he believed still knew how to be proper Americans. His “southern strategy” played on white resentment of black progress and used thinly veiled nativism to secure the support of conservatives and a shaken middle class in whatever part of the country they resided.

It seems to have worked. Nixon won by a substantial majority of electoral votes and the Republican Party picked up seats in both the House and the Senate.

Nixon’s victory did nothing to reduce his hostility towards the press, however. He blamed them for Kennedy’s victory eight years before. He was angry over the 1971 release of the Pentagon Papers which proved that President Lyndon B. Johnson had lied about the Vietnam War – not just a little, but a LOT, and not just to the public, but to Congress. (It wasn’t that Nixon felt particularly protective of Johnson; it was just inconvenient to deal with the resulting skepticism and heightened scrutiny of the office – particularly when trying to do shady, illegal things.)

It wasn’t just the press. He was paranoid about the Democratic Party, war protestors, and his own place in history as well. A covert group of trusted minions known as CREEP (the Committee to Re-Elect the President) engaged in a variety of illegal activities attempting to thwart Nixon’s many perceived enemies. They broke into offices, stole secrets, infiltrated opposition groups – whatever it took to enforce unquestioned loyalty with little regard for either decency or the law. As Nixon would later tell interviewer David Frost, “when the President does it, that means it’s not illegal.”

Clearly these were different times. We’re fortunate to have evolved so far beyond such things.

The Watergate Break-In

In June of 1972, a group of men known as “The Plumbers,” who worked for CREEP, broke into the Watergate Office Building which housed, among other things, Democratic National Committee Headquarters. It’s not clear specifically what they hoped to accomplish, but it seemed they might be looking to bug some phones and steal a few files. The break-in was reported the next day in the press, but considered relatively minor news at first. The White House denied all knowledge of or involvement in the effort.

Over time, however, persistent investigation and reporting – particularly that of Bob Woodward and Carl Bernstein at the Washington Post, began to uncover deeper shenanigans in and around the Oval Office. While Nixon had not necessarily ordered the break-in, he had clearly been involved in covering it up. The President used a strategy of repeated denials, constant misdirection, and hyperbolic accusations regarding the motives of his accusers to offset each new revelation. Eventually, the average American was both too numb to know what to believe and tired of hearing about it or trying to make sense of it. Nixon was re-elected easily in 1974, but the issue refused to die.

Eventually a Special Prosecutor was appointed (Archibald Cox) and the Senate began hearings into the break-in and related events. During these hearings, it was unexpectedly revealed that the President secretly recorded every discussion taking place in the Oval Office or on the Oval Office phone. “Hmm,” the Senate thought. “Those sure would be handy to have.” So, they subpoenaed the tapes.

Nixon at this point insisted that the Special Prosecutor to drop the investigation. He wouldn’t, so Nixon ordered his Attorney General to fire Cox. He refused, so Nixon accepted his resignation. He then ordered the Deputy Attorney General to fire Cox, with the same results. Finally, Nixon tried the Solicitor General, Robert Bork, at that point the Acting Attorney General. Bork fired Cox and kept his job, thus concluding the “Saturday Night Massacre.” (Bork was later nominated to the Supreme Court by President Reagan but could not secure Senate approval.)

Nixon tried to pacify Congress with heavily edited transcripts, summaries, and audio excerpts, but the Senate wanted it all. More and more, the public was beginning to agree. In 1974, the issue reached the Supreme Court.

United States v. Nixon (1974)

Attorneys for the President argued that the separation of powers as mandated by the U.S. Constitution meant the Judicial Branch lacked justiciability in this case, which was strictly between the President and Special Prosecutor – both members of the Executive Branch. In short, it was a family matter. The Court had no role.

Their slightly more plausible argument was that “executive privilege” protected the President from being forced to release the tapes. High level politicians, foreign leaders, and advisors must be able to speak with candor to the President, knowing their privacy would be protected. If high-level conversations were subject to public scrutiny, people would speak less openly and honestly. Politics would trump effective leadership.

Attorneys for the rest of the U.S. government argued that even if executive privilege did require some discretion as to what information could be made public, there was a nevertheless substantial state interest in a fair and complete criminal investigation. It wasn’t just the President; men were going to prison for their roles in the break-in, the cover-up, and whatever else was being revealed along the way. There was every reason to believe these tapes contained specific information related to the investigation; justice demanded their release.

In other words, they weren’t looking for launch codes or wanting to publish ‘behind-the-scenes” dirt on controversial foreign policy decisions. They wanted to know if there was a record of the President saying, “Let’s break the law and then cover it up” or “Hey, Dean – nice job on that felony offense!”

The Decision

In their unanimous decision, penned by Chief Justice Warren Burger, the Supreme Court ordered the President to turn over the tapes. They’d be listened to “in camera” – in chambers, privately, to determine which parts were relevant to the case without revealing state secrets or other privileged information to the public.

The “separation of powers” argument, it turned out, did not mean what the President’s attorneys wanted it to mean:

In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence.

While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.

Besides, the Chief Justice added, the issue was before the Court not in spite of the separation of powers, but specifically because of them. Quoting Chief Justice John Marshall’s opinion in Marbury v. Madison (1803), he concluded, “it is the duty of the courts to say what the law is.”

As to executive privilege, the Court acknowledged that the Executive requires some expectation of confidentiality. Military secrets, national security, difficult policy choices, all required the sort of blunt debate and absolute honesty impossible without it. But the President wasn’t claiming that national defense secrets were involved, or sensitive foreign policy choices, or complex policy debates. He was claiming a blanket right to operate in absolute isolation and without accountability. That, the Court said, is not how it works.

Aftermath

Twelve days later, the White House released the tapes. It was soon discovered that some sections had been erased, despite the Court’s order. The rest, however, provided more than enough damning information to eliminate any chance of Nixon surviving impeachment. A few days after the release of the tapes, the President resigned. Gerald Ford became President, and later pardoned Nixon.

Although Nixon lost his case, the Court’s decision in United States v. Nixon did acknowledge for the first time a degree of executive privilege. Numerous administrations since have made similar claims, looking to protect themselves in the name of protecting the country. At the same time, “Watergate” or anything with “-gate” tacked on to the end has become popular shorthand for any number of political scandals or controversies.