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Presidential Immunity and
The Watergate Crisis
United States v. Nixon (1974)
O
n August 8, 1974, Richard M. Nixon announced that the following
day he would resign as President of the United States, becoming the
first chief executive to do so. Nixon acted in order to avoid impeachment and, in his words, to begin “that process of healing which is so desperately needed in America.”
President Nixon abandoned the White House after five years of service
that were marked by unparalleled success amid deepening controversy. His
accomplishments included revenue sharing between the states and the national government, the end of the draft, new anticrime laws, and a broad environmental protection program. In 1969, during his first term, American astronauts
landed on the moon. Back on Earth, Nixon opened China to the West, reduced
tensions with the Soviet Union, and orchestrated a landmark treaty limiting
testing of strategic nuclear weapons. In January 1973, he announced that an
accord had been reached with North Vietnam to end American involvement in
Indochina. A year later, with the assistance of Secretary of State Henry Kissinger, Nixon spurred negotiations that produced disengagement agreements
between Israel and its opponents, Egypt and Syria.
Nixon was also a controversial President, in part because of his policies,
in part because of his style, and in part because of the fallout from what came
to be known as Watergate. Nixon steadily battled Congress over a host of issues throughout his Presidency, and he suffered through the embarrassment of
having his Vice President, Spiro T. Agnew, resign over charges of accepting
bribes and filing false federal income tax returns in 1973.
The Vietnam War was at the root of Nixon’s political frustration. In the
1972 Presidential election, with protests over the Vietnam War raging around
the country, Nixon’s Democratic challenger, Senator George McGovern of
South Dakota, urged a timetable for withdrawal from Vietnam. To counter
McGovern and the Democrats, some members of Nixon’s election team resorted to efforts to disrupt the campaigns of Nixon’s opponents, including the
primary campaign of Senator Edmund Muskie. The most damaging of these
efforts resulted in the Watergate scandal.
On June 17, 1972, Frank Willis, a security guard at the Watergate building
in Washington, D.C., discovered that five men had illegally entered the offices
of the Democratic National Committee. The men, Bernard Barker, Virgilio
González, Eugenio Martínez, James W. McCord Jr., and Frank Sturgis, were
caught inside the office carrying various suspicious items, including camera
equipment and telephone bugging devices. It was later revealed that they had
United States v. Nixon (1974)
•
•
•
•
418 U.S. 683 (1974)
•
Not participating: William H.
Rehnquist
Decided: July 24, 1974
Vote: 8–0
Opinion for the Court: Warren E.
Burger
Presidential Immunity and the Watergate Crisis 171
broken in three weeks earlier and then returned for another visit in order to remedy improperly functioning eavesdropping equipment. The men were found to
be linked to the CIA and, even more importantly, to the White House through the
Committee to Re-elect the President (CRP), which people gave the ironic acronym of CREEP. Among the telephone numbers discovered in the records of the
burglars was that of E. Howard Hunt, a White House aide and CREEP official.
White House spokespersons characterized the affair as a “third rate burglary”;
most Americans refused to believe that President Nixon was involved.
While publicly showing an attitude of indifference toward the burglary,
Nixon and his top aides scrambled to cover up White House involvement. Their
efforts to do so were captured by tape recorders that the President had secretly
ordered placed in the Oval Office. Nixon’s intent had been to make a thorough
record of events during his administration so he could subsequently write its
definitive history. The tapes, however, came to be his undoing.
On January 8, 1973, the burglars went to trial for conspiracy, breaking and
entering, and wiretapping, along with Hunt and G. Gordon Liddy, who had directed the White House’s Special Investigations Unit, a secret operation that
came to be known as the Plumbers. This group ran various operations against
the Democrats and Vietnam War protestors with the approval of John Mitchell,
Nixon’s attorney general and the head of CREEP. These included the break-in
at the Watergate, and another break-in at the office of a psychiatrist who was
treating Daniel Ellsberg, a former Pentagon employee who had leaked a secret and highly critical account of the war to the New York Times. The struggle
over whether to allow publication of those documents resulted in the landmark
Supreme Court case New York Times Co. v. United States (1971), in which the
justices blocked the President’s attempts to prevent publication of the classified
papers.
Four of the five Watergate burglars pleaded guilty, but Hunt and McCord
went to trial. Because the burglars and the others refused to cooperate, presiding judge John Sirica, who was known for his harsh sentencing policies, gave
them all thirty-year sentences. Sirica also told them that he would reduce their
sentences if they cooperated. McCord did so and implicated CREEP in the burglary.
The affair might well have ended there had not the Washington Post delved
more fully into it. Reporters Carl Bernstein and Bob Woodward tapped a host
of government sources, including Mark W. Felt, at the time the second-ranking
official in the FBI. Felt, whom Bernstein and Woodward assigned the code name
Deep Throat, was not publicly identified until 2005. The reporting in the Post
as well as the New York Times brought mounting pressure on the administration
and eventually prompted the Senate to create a special committee, the Watergate
Committee, led by Sam Ervin, a North Carolinian with a homespun style.
On April 30, 1973, Nixon requested the resignations of his two top aides,
Chief of Staff H. R. Haldeman and Assistant to the President for Domestic Affairs John Ehrlichman. Nixon also fired his White House counsel, John Dean,
who in testimony before the Senate Watergate Committee said he had warned
Nixon against trying to cover up the Watergate affair. Nixon also named Elliot
Richardson attorney general to replace John Mitchell. Richardson then appointed Harvard law professor Archibald Cox to be a special prosecutor charged with
conducting an independent investigation of Watergate. These developments occurred just as televised hearings before the Senate committee began. The hear-
172 The Pursuit of Justice
ings became an absorbing national spectacle that drew more than 85 percent of
the viewing public to one or more sessions.
The defining moment in the hearings came on July 13. Deputy Assistant to
the President Alexander Butterfield made a startling disclosure: the President
had a secret system for recording everything said in the Oval Office. The existence of tape recordings opened the possibility for the Senate to learn, in the
words of Senator Howard Baker of Tennessee, “[w]hat did the president know
and when did he know it.”
President Nixon, however, refused to turn over the tapes, either to the Senate
or to Special Prosecutor Cox. The tension mounted until on Saturday, October
20, 1973, at about 8:30 P.M., Nixon forced the resignations of Richardson and
his deputy attorney general, William Ruckelshaus, for refusing to fire Cox. The
so-called Saturday Night Massacre ended only when Solicitor General Robert
Bork, who became by default the acting head of the Department of Justice, fired
Cox. Stunned reporters on network television covered these events on a minuteby-minute basis. “Whether ours shall continue to be a government of laws and
not of men is now for Congress and ultimately the American people,” Archibald
Cox stated after he was fired. Ten days later, the House of Representatives began
impeachment proceedings against the President, as the House Judiciary Committee, chaired by Representative Peter Rodino, started its preliminary investigation.
Nixon had no choice but to replace Cox with another special prosecutor;
this time he appointed Leon Jaworski, a prominent Texas lawyer and recent
American Bar Association president, to continue the investigation. A federal
grand jury indicted seven of the President’s top aides and campaign officials
for conspiracy to obstruct justice. Nixon was named as an “unindicted co-conspirator.” The President publicly dismissed allegations of wrongdoing by stating
before a large audience at Disneyland in his home state of California, “I am not
a crook.”
The question of Nixon’s guilt or innocence turned on the tapes. In response
to a subpoena for the tapes issued by Judge Sirica, Nixon again refused, on the
grounds of executive privilege, to furnish them. He also refused to comply with
Judge Sirica’s order to deliver the tapes for an in camera (private) inspection by
the court. Although Nixon’s lawyers had planned to take the issue to the federal
court of appeals, with July 1974 impeachment hearings against Nixon looming,
Jaworski asked the Supreme Court to take up the matter on an expedited review.
The Court agreed to hear the case because of its immediate importance and the
profound constitutional issues it raised. Spectators lined up two days in advance
hoping to witness the oral arguments.
Nixon insisted that because he was President he was immune from court
orders to produce documents and other materials. Nixon also claimed that the
tapes contained highly sensitive national security and intelligence information.
The President attempted to combat growing public suspicion by releasing heavily edited transcripts of the tapes; these efforts did disclose that the tapes were
punctuated with profane language and racial and ethnic slurs. The transcript
also noted that the tapes contained an eighteen-and-one-half-minute gap that
the White House claimed Nixon’s secretary, Rosemary Woods, had made accidentally. Subsequent analysis of the tapes suggested, although it could not be
proven definitively, that the erasure had been intentional.
Nixon’s conduct raised some of the most serious issues of separation of
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powers and rule of law in American history. Was there, for example, a constitutionally supported doctrine of executive privilege, and if so, how far did it extend? Did the separation of powers prevent the Court from hearing a matter that
is contained within one branch of the federal government? Can a subordinate,
the special prosecutor, prosecute the President under whom he serves? Which
takes precedence, the confidentiality of the President’s work or the availability
of evidence in a criminal investigation? And are acts of the President subject to
review by the courts, or is he supreme in his interpretation of his constitutional
duties and powers?
Leon Jaworski, whose varied experience and professional reputation protected him from any accusations of being either partisan or ideologically motivated, argued to the justices that the President had far exceeded his authority.
Nixon was acting, Jaworski observed, as the sole judge of the Constitution, a
position that conflicted with the powers and responsibilities he had been delegated under the Constitution. Executive privilege was not, Jaworski insisted,
a constitutional power, but instead a power derived from practice and custom.
That meant it had to be defined in a narrow way that limited the powers of the
President. Such privilege should not, and historically had not, included withholding evidence in a criminal matter. President Nixon, Jaworski insisted, was
attempting to place himself beyond the law, a position incompatible with the
grand concept of the rule of law, which asserts that no person can be above it.
James St. Clair, an experienced trial lawyer and partner in a prestigious
Boston law firm, represented Nixon. St. Clair told the justices that the conflict
over the subpoena was an issue between two members of the executive branch
(the President and the special prosecutor), and that it was therefore not within
the Court’s jurisdiction. The question of whether a subordinate of the President
could force a subpoena on him was entirely for the President, not the courts, to
decide. Moreover, St. Clair argued that the President alone could determine the
scope of executive privilege and that he had no need to seek the approval of the
judicial branch in general and the Supreme Court in particular. The possible
impeachment of the President, which was a political rather than a legal proceeding, made the disposition of the Watergate tapes a political issue that should be
resolved politically.
The future of the Presidency and of the nation turned on the high court’s
decision. Of its justices, the justice who most strongly supported the President
was Potter Stewart. Like Chief Justice Warren Burger, Stewart believed that the
special prosecutor lacked a sufficient connection to the harm done by Nixon, or
standing in lawyer’s terms, to present a case against the President. The Court,
therefore, could not hear the case. Byron R. White agreed that the case should be
heard and decided but, like Lewis Powell, he wanted a narrow ruling.
The rest of the Court, however, lined up against Nixon’s position. William
O. Douglas pressed Burger in conference to avoid an expansive
reading of Presidential powers. William Brennan, after realizing that all the
justices agreed that Nixon should furnish the tapes, despite their differing views
on the merits of the case, pushed for a unanimous decision that would underscore
the Court’s determination to sustain the rule of law. Thurgood Marshall favored
writing a broad opinion that would limit the concept of executive privilege.
The final decision was unanimous, 8–0, and required that Nixon turn over
the tapes. The entire Court agreed that it could hear the case because Attorney
General Bork had contact not only with the President but with Congress. Writ-
174 The Pursuit of Justice
ing for the Court, Chief Justice Burger rejected the idea that the President alone
could establish the scope of his powers and affirmed that no one, including the
President, was above the law. Burger also noted that Nixon himself had weakened his own case for the tapes’ confidentiality by releasing partial contents of
the subpoenaed material.
United States v. Nixon was a landmark in the history of the nation for three
reasons. First, the public hailed the Court’s ruling because it broke the political
and legal knots into which the nation had been tied. The decision permitted the
legal investigation of Watergate affair to move forward and, as a result, clarified the President’s vulnerability to the political process of impeachment. By
requiring the President to turn over the tapes, Jaworski was able to affirm that a
cover-up of criminal behavior had occurred and that Nixon was involved in it.
Nixon ended the threat of impeachment by resigning and he escaped any future
legal liability when his successor, President Gerald Ford, pardoned him of any
criminal wrongdoing. More than twenty of his most trusted advisers, however,
including Attorney General John Mitchell, received prison sentences.
Second, the justices reaffirmed the twin concepts of judicial review and judicial sovereignty. To do so, the Court restated the principle finding of Marbury
v. Madison (1803): that it is the exclusive duty of the Court to review the law, “to
say what the law is,” and that it is sovereign, has the last word, when it interprets
the Constitution.
Third, the decision was a milestone in the history of the separation of powers. That doctrine requires each of the three branches of government to refrain
from infringing or disregarding the constitutionally based prerogatives of the
other branches. President Nixon claimed that the President should be able to
determine conclusively what information was protected by executive privilege
when he communicated with his advisers. The Supreme Court rejected that
sweeping claim; instead, it reaffirmed that it is the duty of the judiciary to determine whether the purposes and scope of executive privilege are constitutional.
The Supreme Court concluded that final interpretation of the Constitution can
no more be shared with the executive branch than the chief executive, for example, can share with the judiciary the veto power, or the Congress can share
with the judiciary the power to override a Presidential veto. “Any other conclusion,” the Court wrote, “would be contrary to the basic concept of separation
of powers and the checks and balances that flow from the scheme of a tripartite
government.”
But Burger stopped far short of pulling all the teeth of Presidential powers.
The chief justice quoted twice from John Marshall’s opinion in United States v.
Burr (1807) to make the point that the courts cannot treat the President as merely another citizen. The principle of separation of powers made the Court responsible for determining the law regarding executive privilege, just as the Court had
previously defined the limits of congressional immunity. On the critical question
of executive privilege, the justices held that executive powers were not absolute,
but instead the legitimate demands of a criminal investigation could supersede
Presidential privilege. Burger made clear that the framers of the Constitution
knew that confidentiality was necessary for the operation of government, but
they balanced that requirement against the framers’ equally strong insistence
that full evidence be available in criminal and other judicial proceedings. Due
process, as prescribed by the Fifth Amendment, Burger argued, required that all
relevant and admissible evidence be produced.
Presidential Immunity and the Watergate Crisis 175
Still, he wrote, the President was entitled to great deference, especially in
matters involving defense and national security. All presumptions about the
scope of executive privilege were to be interpreted in favor of the President.
However, in this instance, Jaworski had particularized and precisely stated a
need for the tapes, both with respect to the credibility of witnesses and for establishing the alleged crime. Burger’s carefully crafted opinion limited the sweep
of executive privilege and immunity from prosecution while leaving the President with considerable powers.
The Court’s decision posed a harsh choice for President Nixon: he could
either repudiate the federal courts by refusing to surrender the tapes or give
them up and face certain impeachment by the House of Representatives. After
Nixon’s counsel reviewed the tape made on June 23, 1972, there was no doubt
of his complicity to cover up the affair. The President was recorded ordering
his staff to use the CIA to abort the FBI’s probe, clear evidence of the crime of
obstruction of justice. On another tape made on March 21, 1973, Nixon said to
his legal counsel, John Dean: “We could get that. On the money, if you need the
money you could get that. You could get a million dollars. You could get it in
cash. I know where it could be gotten. It is not easy, but it could be done. But the
question is, Who would handle it? Any ideas on that?””
In the meantime, the House Committee on the Judiciary was preparing to
impeach the President. It voted three articles of impeachment against Nixon on
the theory that he had abused his constitutional power. Whether the committee
had adopted a proper constitutional view of the impeachment power was a matter of sharp debate, because there was disagreement about the meaning of “high
crimes and misdemeanors,” the grounds for impeaching the President in Article
II, Section 4. But it was clear in the wake of Nixon that the President was vulnerable to impeachment by the full House and conviction by the Senate on the basis
of his criminal wrongdoing. Faced with the reality that his “silent majority” was
deserting him, the President resigned.
The decision in Nixon and the Watergate scandal were inseparably linked.
Journalists, for example, placed the chief executive and all politicians under
intense scrutiny. Woodward and Bernstein became the role models for a new
generation of investigative journalists, each determined to get the goods on public figures.
The Nixon decision and the Watergate scandal also temporarily eroded the
“imperial Presidency,” the idea that the President is a power unto himself. This
vision of Presidential authority began to develop when Franklin D. Roosevelt
entered the White House and boldly asserted his prerogatives, first to end the
Great Depression and later to support England against Germany in the early
days of World War II. Yet strong Presidents have dotted American history.
George Washington, Abraham Lincoln, and Woodrow Wilson each asserted extraordinary Presidential powers to deal with the crises of their own times. The
modern imperial Presidency was notable, however, because the escalating threat
of a nuclear exchange with the Soviet Union during Cold War placed a premium
on strong executive leadership that in turn depended on secrecy.
The increased accountability of the Presidency, following Watergate and
Nixon, was a new fact of political life. The press, for example, winked at the
personal indiscretions of President John Kennedy while in the White House.
Bill Clinton, however, came of political age in a new media era. That point
was driven home by the case of Clinton v. Jones (1997). The justices permitted
176 The Pursuit of Justice
Paula Corbin Jones, an employee of the state of Arkansas while Bill Clinton
was governor, to pursue a civil law suit against the President while he was still
in office. Clinton was subsequently impeached in the House of Representatives
but not convicted in the Senate for giving false grand jury testi mony about his
relationship with White House intern Monica Lewinsky while he was President. He apologized to the nation, agreed to pay a $25,000 court fine, settled his
sexual harassment lawsuit with Paula Jones for $850,000, and was temporarily
disbarred from practicing law in Arkansas and before the U.S. Supreme Court.
Still, the perception that Presidential authority had been eroded by the Nixon
case was relative and short-lived. Chief Justice Burger’s opinion, by acknowledging that a high degree of discretion was due the President, laid the constitutional ground for this reemergence. Presidents Ronald Reagan and George H. W.
Bush reasserted the prerogatives of the chief executive to interact confidentially
with his advisers in order to conduct the nation’s foreign policy.
America clearly required strong Presidential leadership in a hostile world, a
point made forcefully as a result of the attacks on the United States of September 11, 2001. In response to the terrorist threat, President George W. Bush made
claims in favor of Presidential power that were as broad or broader than those
made by Nixon, including the right to withhold from the public, on national
security grounds, communications with his advisers. President Bush ordered
suspected terrorists to be held without charges and without any limit on their incarceration. He ordered the creation of military tribunals to try alleged terrorists
that did not adhere to traditional American judicial practices and established a
program of electronic eavesdropping that mirrored similar Cold War programs.
He did so under what he considered the inherent authority of the President to
conduct war and provide for the nation’s defense and the authorization by Congress for him to use military force to prosecute the war on terror. In Hamdan v.
Rumsfeld (2006), however, the Supreme Court found the President had exceeded his authority to create the military tribunals without explicit authorization by
Congress. As was true in Nixon, the high court declared that the “executive is
bound to comply with the rule of law.”
Although the actions of President Bush have served to remind the nation
that the Court’s decision in Nixon was limited, President Nixon’s experience
before the Supreme Court made it clear that the most powerful office and the
most powerful person on Earth are not above the law. As has no other decision
in the history of the Court, United States v. Nixon taught that basic constitutional
lesson to an entire nation.
Presidential Immunity and the Watergate Crisis 177
Articles of Impeachment
The House Committee on the Judiciary considered five articles of impeachment against
President Richard M. Nixon. The committee ultimately agreed on three, all of which turned
on Nixon’s abuse of his Presidential power. It rejected two articles: one on his secret bombing of Cambodia and another on the corruption in the President’s personal and Republican
Party finances. Nixon was vulnerable to impeachment by the full House and conviction
before a trial in the Senate based on his criminal wrongdoing. Faced with that reality, he
resigned on August 8, 1974.
I. RESOLVED, That Richard M. Nixon, Presi
dent of the United States, is impeached for high
crimes and misdemeanors, and that the following articles of impeachment to be exhibited to the Senate:
ARTICLES OF IMPEACHMENT EXHIBITED BY THE HOUSE OF REPRESENTATIVES
OF THE UNITED STATES OF AMERICA IN THE
NAME OF ITSELF AND OF ALL OF THE PEOPLE OF THE UNITED STATES OF AMERICA,
AGAINST RICHARD M. NIXON, PRESIDENT OF
THE UNITED STATES OF AMERICA, IN MAINTENANCE AND SUPPORT OF ITS IMPEACHMENT AGAINST HIM FOR HIGH CRIMES AND
MISDEMEANORS.
Article 1: Obstruction of Justice. In his conduct
of the office of the President of the United States,
Richard M. Nixon, in violation of his constitutional oath faithfully to execute the office of President
of the United States and, to the best of his ability,
preserve, protect, and defend the Constitution of the
United States, and in violation of his constitutional
duty to take care that the laws be faithfully executed,
has prevented, obstructed, and impeded the administration of justice, in that: On June 17, 1972, and
prior thereto, agents of the Committee for the ReElection of the President committed unlawful entry of the headquarters of the Democratic National
Committee in Washington, District of Columbia, for
the purpose of securing political intelligence. Subsequent thereto, Richard M. Nixon, using the powers
of his high office, engaged personally and through
his subordinates and agents in a course of conduct or
plan designed to delay, impede and obstruct investigations of such unlawful entry; to cover up, conceal
and protect those responsible and to conceal the existence and scope of other unlawful covert activities.
178 The Pursuit of Justice
The means used to implement this course of conduct
or plan have included one or more of the following:
(1) Making or causing to be made false or
misleading statements to lawfully authorized investigative officers and employees of the United States.
(2) Withholding relevant and material evidence or information from lawfully authorized investigative officers and employees of the United
States.
(3) Approving, condoning, acquiescing in,
and counseling witnesses with respect to the giving
of false or misleading statements to lawfully authorized investigative officers and employees of the
United States and false or misleading testimony in
duly instituted judicial and congressional proceedings.
(4) Interfering or endeavoring to interfere
with the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation, the office of Watergate Special
Prosecution Force and congressional committees.
(5) Approving, condoning, and acquiescing
in, the surreptitious payments of substantial sums
of money for the purpose of obtaining the silence
or influencing the testimony of witnesses, potential
witnesses or individuals who participated in such
unlawful entry and other illegal activities.
(6) Endeavoring to misuse the Central Intelligence Agency, an agency of the United States.
(7) Disseminating information received
from officers of the Department of Justice of the
United States to subjects of investigations conducted by lawfully authorized investigative officers and
employees of the United States for the purpose of
aiding and assisting such subjects in their attempts
to avoid criminal liability.
(8) Making false or misleading public statements for the purpose of deceiving the people of
the United States into believing that a thorough and
complete investigation has been conducted with respect to allegation of misconduct on the part of personnel of the Executive Branch of the United States
and personnel of the Committee for the Re-Election
of the President, and that there was no involvement
of such personnel in such misconduct; or
(9) Endeavoring to cause prospective defendants, and individuals duly tried and convicted, to
expect favored treatment and consideration in return
for their silence or false testimony, or rewarding individuals for their silence or false testimony.
In all of this, Richard M. Nixon has acted in a
manner contrary to his trust as President and subversive of constitutional government, to the great
prejudice of the cause of law and justice and to the
manifest injury of the people of the United States.
Wherefore Richard M. Nixon, by such conduct,
warrants impeachment and trial, and removal from
office.
[Approved by a vote of 27-11 by the House Judiciary Committee on Saturday, July 27, 1974.]
Presidential Immunity and the Watergate Crisis 179