The Supreme Court: Dethroning a President

Dethroning a President

Ironically President Nixon, who so much wanted to remake the Court in his own image, was forced to resign because of a landmark decision of the Supreme Court. Even Chief Justice Burger ended up siding against him in the unanimous decision of the United States v. Nixon in 1974. Rehnquist did not participate in that decision (he recused himself).

You probably remember that Nixon was reelected to office in 1972 after a landslide defeat of Democrat George McGovern. Dirty tricks played by Nixon's reelection committee ultimately destroyed his presidency. On June 17, 1972 burglars broke into the Democratic Party campaign headquarters at the Watergate complex in Washington, D.C. The actual break-in was given little notice by the press until The Washington Post investigative team led by Bob Woodward and Carl Bernstein found links to top government officials.

The Nixon administration repeatedly denied any connection to the burglary, but information connecting the administration started to dribble out. Woodward and Bernstein found a secret informant they called “Deep Throat” to help expose the Nixon administration.

The Congress and the public pressured Nixon to appoint a special prosecutor. During the special prosecutor's investigation, it was learned that Nixon secretly taped conversations in the Oval Office. On March 1974, a federal grand jury indicted seven Nixon associates for conspiracy and named President Nixon an unindicted co-conspirator. At the same hearing the prosecutor asked for a subpoena so he could hear those tapes because he believed they were relevant to the criminal investigation. Nixon turned over edited transcripts of some of tapes, but refused to turn over the tapes asserting the right of executive privilege.

The district court denied the claim for executive privilege and the case was taken to the Supreme Court. The court needed to decide two critical issues:

• Was the judiciary the ultimate arbiter of the Constitution? This was easy to reaffirm using the Marshall Court's ruling in Marbury v. Madison.
• Could the president withhold materials germane to a criminal investigation using the claim of executive privilege? The court ruled that no person, not even the president, was above the law.

Some thought Nixon would not comply, but within eight hours of the Supreme Court ruling on July 24, 1974, Nixon said he would turn over the tapes. Transcripts of 64 tape recordings were released on August 5 and damaging information was found on the tapes that linked the White House to the Watergate cover-up and the fact that Nixon was involved in that cover-up as early as June 23, 1972. Three days later, after it was clear he had lost all Congressional support, Nixon announced his resignation before he could be impeached.

In deciding the case, the Supreme Court did state that the president has limited executive privilege in areas of military or diplomatic affairs, but found that due process in criminal law took precedence over that privilege. Here's a brief quote from that decision read by Chief Justice Burger:

• “In this case we must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of the President's responsibilities against the inroads of such a privilege on the fair administration of criminal justice. The interest in preserving confidentiality is weighty indeed and entitled to great respect. However, we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution.
• “On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President's acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. The President's broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases.”

The Court's decision and the nation's first presidential resignation certainly sent shockwaves through the country. There is no question its impact is still felt to some extent politically today, but another controversial case from the Burger Court has created even more political divisions that continue to divide the country today—Roe v. Wade.