Does the United States v. Nixon case still matter today?

Answer 1

In United States v. Nixon, the Supreme Court held that the President is not above the law, and can't use "Executive Privilege" as an excuse to withhold material evidence (the "Watergate tapes") that is "demonstrably relevant in a criminal trial."

The Watergate investigation was originally launched by Nixon, himself, in response to public and political pressure to solve the Washington DNC headquarters break-in. Had he realized he would be implicated in a cover-up, he may not have authorized a special prosecutor to look into the matter.

The ruling hasn't been challenged in recent years, and the current Court is more conservative and Federalist-leaning than the Burger Court was in 1974, so the relevance question is valid, if unanswerable. The Nixon case is established precedent that could be used to argue against withholding evidence (for example, White House memos written during the Bush administration), but only if the United States government initiates an investigation into a President's or former President's actions, which they seem disinclined to do.

However, certain fundamental constitutional interpretations may stand the test of time, particularly those that relate to the separation of powers and the authority of the judiciary. For example, the Supreme Court acknowledged the validity of invoking Executive Privilege in general, but held that it did not provide absolute and unqualified protection, except possibly in the case of military and diplomatic affairs, which were irrelevant to the case. The Court also argued the judiciary had jurisdiction over the matter under Article III because the constitution was not intended to protect the President from legitimate criminal prosecution.

The tapes, which were used as evidence in the criminal conspiracy investigation and trial were determined to be fundamental to the exercise of the defendants' Fifth Amendment rights under the Due Process Clause and Sixth Amendment protection under the Confrontation Clause. This decision, too, is likely to hold in principle, unless the evidence involves military, diplomatic, or national security secrets (in which case, the evidence would be unavailable for evaluation).

Bear in mind the Watergate episode involved domestic politics, not foreign affairs or national security. In the opinion of United States v. Nixon, Chief Justice Burger defined the areas subject to absolute privilege, any or all of which could be invoked after September 11.

"However, neither the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide."

Case Citation:

United States v. Nixon, 418 US 683 (1974)

For more information about United States v. Nixon, see Related Questions, below.