Not since Brown vs. The Board of Education has there been a unanimous Supreme Court decision as important as the one decided this week (July 24) in 1974. In United States vs. Nixon, the Supreme Court ordered President Richard Nixon to surrender tape recordings of White House conversations that many believed would prove he had participated in what became known as the “Watergate” scandal — so named because in 1972, members of Nixon’s re-election campaign were caught burglarizing the Democratic National Committee headquarters in the Watergate office complex in Washington, D.C.
Nixon had earlier released transcripts of the tape recordings in question, but Leon Jaworski, the special prosecutor appointed to investigate Watergate, understandably wanted to review the tapes themselves, so he got a court order requiring Nixon to turn them over. Nixon, citing “executive privilege,” refused, so the Supreme Court was asked to weigh in.
During arguments, Nixon’s lawyers claimed executive privilege protects the president from undue search warrants and other “encroachments” that might prevent him from doing his job. If a president can’t presume a “confidentiality” protection, for example, then neither he nor his aides would feel comfortable speaking freely, especially when the topic was national security. Releasing the tapes, Nixon’s lawyers argued, would violate such a confidentiality protection and could compromise national security.
Jaworski’s lawyers argued that executive privilege was not “absolute privilege,” especially when the information being sought might affect the judicial process. Nixon’s tapes were such information, these lawyers argued, because they could well be evidence in the trials of those many Nixon political aides who had been indicted for crimes related to Watergate.
Which is the argument that prevailed. In the unanimous opinion, Chief Justice Warren Burger agreed that presidents have a right to confidentiality in their “high level communications,” but that did not give them blanket immunity from the judicial process, especially when — as was the case here — executive privilege was based on a broad, non-specific interpretation of what (the president claimed) was in the public interest. The president, Burger ruled, “must yield to the demonstrated, specific need for evidence in a pending criminal trial.” Nixon was ordered to surrender the tapes, and he complied.
Two interesting asides. First, before the trial began Nixon had said he would abide by “a definitive order” by the court, which most justices took to mean that if they produced a split decision, Nixon might defy the ruling. Therefore, even though the justices were divided on many issues, they voted unanimously to impress upon Nixon that the court must be obeyed.
Second, the tapes did indeed provide the smoking gun that brought Nixon down. In the tape of June 23, 1972, Nixon clearly orders the obstruction of the FBI’s investigation of Watergate.