United States
v. Nixon
A CASE STUDY
Separation of Powers
 The division of the powers of
government among the different
branches
 Separation of powers is a primary
strategy of promoting
constitutional or limited
government by ensuring that no
one individual or branch can abuse
its powers
 Intertwined with the concept of
checks and balances
KNOW: Executive Privilege
 Right of the President to
withhold information from the
other branches to preserve
confidential communications
within the executive branch or
to secure the national interest.
 Not explicitly mentioned in the
Constitution.
The Case
June 17, 1972 Watergate Break-in
 Five men were arrested
inside the Democratic
National Committee’s
offices in the Watergate
complex in Washington,
D.C. at 2:30 am. They were
trying to bug the offices.
 Former Attorney General
John Mitchell, head of the
Nixon reelection campaign
denies any link to the
break-in.
Image from http://wwwimage.cbsnews.com/images/2005/02/15/image674276x.jpg
Nixon Reelected
 October 1972: FBI agents establish that the
Watergate break-in stems from a massive campaign
of political spying and sabotage conducted on behalf
of the Nixon reelection effort, The Washington Post
reports.
 November 1972: Nixon is reelected in one of the
largest landslides in American political history,
taking more than 60 percent of the vote and crushing
the Democratic nominee, Sen. George McGovern of
South Dakota
The Case Continues
• January 1973: Former Nixon aides G. Gordon
Liddy and James W. McCord Jr. were indicted. They
were convicted of conspiracy, burglary and
wiretapping in the Watergate incident. Five other
men pled guilty, but mysteries remain.
Resignations and Firings
• April 1973: Nixon’s top White House staffers, H.R.
Haldeman and John Ehrlichman, and Attorney
General Richard Kleindienst resign over the
scandal. White House counsel John Dean is
fired.
Investigation
• The Senate Watergate
committee begins its
nationally televised
hearings. Former solicitor
general Archibald Cox is
chosen as the Justice
Department’s special
prosecutor for Watergate.
Image from http://upload.wikimedia.org/wikipedia/commons/thumb/7/72/ThompsonWatergate.jpg/300px-ThompsonWatergate.jpg
Timeline
• June 1973: John Dean (former White House
Counsel who was fired) told Watergate investigators
that he discussed the Watergate cover-up with
President Nixon at least 35 times, The Post reports.
The Tapes
 Former presidential appointments
secretary, reveals in congressional
testimony that since 1971 Nixon had
recorded all conversations and
telephone calls in his offices.
 President Nixon refused to
release the tapes to Congress
or the Special Prosecutor.

Image from http://www.pimall.com/nais/pivintage/images/ovalofficerecorder.jpg
He claimed they were
protected under “executive
privilege”.
Timeline
• October 1973: Saturday Night Massacre: Nixon
fires Archibald Cox (Special Prosecutor) and
abolishes the office of the special prosecutor.
Attorney General Richardson and Deputy Attorney
General William D. Ruckelshaus resign. Pressure for
impeachment mounts in Congress.
• November 1973: Nixon declares, “I’m not a crook,”
maintaining his innocence in the Watergate case.
The Release of the Tapes
 Nixon finally released
some of the tapes, but
portions of them were
blank.
 Watch a short review of
the Watergate scandal.
 http://www.newseum.org
/digitalclassroom/video/waterga
te/default.aspx
Transcripts
• April 30, 1974: The White House releases more
than 1,200 pages of edited transcripts of the Nixon
tapes to the House Judiciary Committee, but the
committee insists that the full tapes themselves must
be turned over.
KNOW: Summary
 Called the “Watergate Scandal”
 Because the Democratic National Committee was located in
the Watergate building
 People involved in President Nixon’s reelection were caught
trying to “bug” the offices to get information and help him get
reelected
 President Nixon stated that “executive privilege” was in place
and he did not have to share recordings of conversations in his
office (turned over recording and transcripts with pieces
missing and/or deleted)
Executive Privilege?
NIXON ASSERTED THAT HE WAS IMMUNE
FROM THE SUBPOENA CLAIMING
"EXECUTIVE PRIVILEGE," WHICH IS THE
RIGHT TO WITHHOLD INFORMATION
FROM OTHER GOVERNMENT BRANCHES
TO PRESERVE CONFIDENTIAL
COMMUNICATIONS WITHIN THE
EXECUTIVE BRANCH OR TO SECURE THE
NATIONAL INTEREST.
WANT TO KNOW:
 Take a few minutes and reflect on what we have
learned. What more do you WANT to know? What
are some specific questions you have about the case?
Does it make you question anything?
WHAT DO YOU THINK: Question
IS THE PRESIDENT'S RIGHT TO
SAFEGUARD CERTAIN INFORMATION,
USING HIS "EXECUTIVE PRIVILEGE"
CONFIDENTIALITY POWER, ENTIRELY
IMMUNE FROM JUDICIAL REVIEW?
HYPOTHESIZE: DO YOU THINK THE
PRESIDENT SHOULD HAVE THIS RIGHT OR
NOT? WHY??? CAN YOU GIVE ANY
HISTORICAL EXAMPLES?
Precedent
KNOW: Marbury v. Madison
 This case established the
court’s power of judicial
review.
 Judicial review: The power
of the courts to declare
laws and actions of the
local and state government
or the national government
invalid if they are found to
contradict the US
Constitution.
United States v. Burr
 Burr
requested the court to subpoena the President
during grand jury proceedings so he could view the
evidence that would be used against him. Burr was
being tried for treason.
 The arguments Jefferson offered for not fully
complying with the subpoena included the President's
executive privilege and his duty to preserve national
security by maintaining the confidentiality of certain
negotiations.
Decision
 Chief Justice John Marshall’s (presided in this
federal circuit case – not US Supreme Court) ruling
established that no man, not even the President is
above the law.
 President Jefferson followed Chief Justice Marshall’s
orders.
Historical Examples Outside the Court
 George Washington refused to turn over to the
House certain documents related to treaty
negotiations between US and Great Britain.
 President Eisenhower in a stand-off with Senator
Joseph McCarthy wrote that the President could
refuse to turn over any document he felt was
privileged or confidential. Coined the term
Executive Privilege.
WANT TO KNOW:
 Take a few minutes and reflect on what we have
learned. What more do you WANT to know? What
are some specific questions you have about the case?
Does it make you question anything?
The US Supreme Court
Two Arguments
United States
 Executive privilege is not an
absolute power.
 Executive privilege cannot be
used to deny the Court’s access
to evidence.
 The President should not be
able to be the final arbiter of
what the Constitution means.
 This does not involve
confidential national security
interests.
President Nixon
 The US Constitution allows the
President the power of
executive privilege.
 The power to withhold
information is the President’s
absolute power. The President
must have this power to
maintain national security
interests.
 The dispute should be resolved
in the executive branch.
Now it is your turn to be the judge
Individually Answer the Question
YES or NO based on…
 The facts of the case
 The Constitution
 Precedent
Give 3 Reasons in Writing
Is there an executive privilege in this case?
If you answer YES…

You are siding with
President Nixon
If you answer NO…

You are siding with
the United States
Unanimous Decision, 8-0
Burger
Douglas
Brennan
Stewart
White
Marshall
Blackmun
Powell
Outcome of US v Nixon
July 24, 1974: The Supreme
Court rules unanimously that
Nixon must turn over the tape
recordings of 64 White House
conversations, rejecting the
president’s claims of executive
privilege.
Decision
The US Supreme Court held that neither the
doctrine of separation of powers, nor the
generalized need for confidentiality of high-level
communications, without more, can sustain an
absolute, unqualified, presidential privilege.
The Court granted that there was a limited
executive privilege in areas of military or
diplomatic affairs, but gave preference to "the
fundamental demands of due process of law in
the fair administration of justice."
The Decision
 Nixon had to release the tapes
(there was no executive privilege)
 The Court has jurisdiction in this
case
 Executive privilege conflicts with
the constitutional obligation of
the judicial branch and the
functions of the court
 In order to ensure due process, all
“relevant and admissible
evidence” must be produced
Image from http://www.minnpost.com/_asset/nkwrw0/mp_main_half/WarrenBurger212.jpg
Significance
 The RULE OF LAW
 United States v Nixon reinforced the rule of law
establishing that no one, even the President of the
United States, is above the law.
 Concept that citizens are governed by the law and
institutions, not individuals. The law supersedes all
else an dis intended to be constant, predictable, and
just.
Listen to oral arguments and opinion
 http://www.oyez.org/cases/1970-
1979/1974/1974_73_1766
Resignation
• July 27, 1974: House Judiciary Committee passes
the first of three articles of impeachment, charging
obstruction of justice.
• August 8, 1974: Richard Nixon becomes the first
U.S. president to resign. Vice President Gerald R.
Ford assumes the country’s highest office.
Image Citations
 http://riverdaughter.files.wordpress.com/2010/12/pentagon-papers.jpg
 http://www.pophistorydig.com/wp-content/uploads/2009/07/soldiers
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bayonets-50.jpg
http://wwwimage.cbsnews.com/images/2005/02/15/image674276x.jpg
http://obscurantist.com/images/e_howard_hunt.jpg
http://www.gizmotastic.com/wpcontent/uploads/2008/09/g_gordon_liddy.jpg
http://upload.wikimedia.org/wikipedia/commons/thumb/7/72/ThompsonWa
tergate.jpg/300px-ThompsonWatergate.jpg
http://www.pimall.com/nais/pivintage/images/ovalofficerecorder.jpg
http://www.minnpost.com/_asset/nkwrw0/mp_main_half/WarrenBurger212
.jpg
http://www.oyez.org