United States v. Nixon

Chief Justice Warren E. Burger wrote the opinion for a unanimous court, joined by Justices William O. Douglas, William J. Brennan, Potter Stewart, Byron White, Thurgood Marshall, Harry Blackmun and Lewis F. Powell. Burger, Blackmun, and Powell were appointed to the Court by Nixon during his first term. Associate Justice William Rehnquist recused himself as he had previously served in the Nixon administration as an Assistant Attorney General.^[1]

Opinion of the Court[edit]

Less than three weeks after oral arguments, the Court issued its decision.


On July 9, the day following oral arguments, all eight justices (Justice William H. Rehnquist recused himself due to his close association with several Watergate conspirators, including Attorneys General John Mitchell and Richard Kleindienst, prior to his appointment to the Court) indicated to each other that they would rule against the president.^[11] The justices struggled to settle on an opinion that all eight could agree to, however, with the major issue being how much of a constitutional standard could be established for what executive privilege meant.


Burger's first draft was deemed problematic and insufficient by the rest of the Court, leading the other Justices to criticize and re-write major parts of the draft. The final draft would eventually heavily incorporate Justice Blackmun's re-writing of Facts of the Case, Justice Douglas' appealability section, Justice Brennan's thoughts on standing, Justice White's standards on admissibility and relevance, and Justices Powell and Stewart's interpretation of the executive privilege.^[12]


The stakes were so high, in that the tapes most likely contained evidence of criminal wrongdoing by the President and his men, that they wanted no dissent.^[13] Despite the Chief Justice's hostility to allowing the other Justices to participate in the drafting of the opinion, the final version was agreed to on July 23, the day before the decision was announced, and would contain the work of all the Justices.^[14] The Court's opinion found that the courts could indeed intervene on the matter and that Special Counsel Jaworski had proven a "sufficient likelihood that each of the tapes contains conversations relevant to the offenses charged in the indictment". While the Court acknowledged that the principle of executive privilege did exist, the Court would also directly reject President Nixon's claim to an "absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances."


The Court held that a claim of Presidential privilege as to materials subpoenaed for use in a criminal trial cannot override the needs of the judicial process if that claim is based, not on the ground that military or diplomatic secrets are implicated, but merely on the ground of a generalized interest in confidentiality.


It concluded that "when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice."^[15]


Nixon was then ordered to deliver the subpoenaed materials to the District Court.


Nixon resigned sixteen days later, on August 9, 1974.^[16]