"We Have a Duty": The Supreme Court and the Watergate Tapes Litigation

By Howard Ball; Paul L. Murphy | Go to book overview

ble," he wrote in a concurring opinion, "but we are infallible only because we are final." 53


NOTES
1.
United States v. Nixon, 418 U.S. 683 ( 1974). This litigation arose as a consequence of litigation in federal court, "Nixon v. Sirica", in the fall of 1973. In the earlier case, the first special prosecutor, Archibald Cox, had asked that the president, in accordance with a subpoena, turn over six tapes that were needed, it was alleged, for review by the Grand Jury that was then sitting. Cox had argued, and the federal court had agreed, that the tapes were "material and important evidence." Nixon countered with the soon-to-be-routine response that "the President is not subject to compulsory process from the courts. The independence of our three branches of government is at the very heart of our constitutional system. It would be wholly inadmissible for the Court to seek to compel some particular action from the President." In his order, Sirica dismissed the contention that there was a constitutionally based executive privilege and rejected the argument that it was the president who "finally determines whether its privilege is properly invoked... [for] that is a judicial decision. Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers." On October 12, 1973, The U.S. Court of Appeals, D.C. Circuit, in a five person per curiam opinion with two dissents, upheld Sirica's order to the president (to turn the tapes over to the federal judge for an in camera inspection and determination of usefulness to the special prosecutor.) The federal appeals court concluded that Nixon had "no justification, on confidentiality grounds, for depriving the grand jury of the best evidence of the conversations available." The president, the majority noted, "is not above the law's commands.... Incumbency does not relieve the President of the routine legal obligations that confine all citizens." With some of the tapes finally turned over to Sirica and then to the new special prosecutor, Leon Jaworski, the Grand Jury proceeded to indict a number of individuals. At that point, Jaworski sought, through the subpoena process, additional tapes held by the president for use in the upcoming ( September 1974) trial of the persons indicted.
2.
Bork's actions in the "Saturday Night Massacre" were reviewed when Bork was nominated for a seat on the U.S. Supreme Court (to replace Associate Justice Lewis F. Powell, who had resigned in June 1987) in July 1987 by President Ronald Reagan. Bork recounted, in his

-13-

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"We Have a Duty": The Supreme Court and the Watergate Tapes Litigation
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Exhibits ix
  • Preface xi
  • 1 - The Supreme Court in the Political System 1
  • Notes 13
  • 2 - The Watergate Scandal Unfolds 21
  • Notes 34
  • 3 - The Supreme Court in 1974: Personae, Process, and Politics 39
  • Notes 57
  • 4 - The Critical Issues: Separation of Powers, Executive Privilege, and Judicial Review (revisited) 61
  • Notes 69
  • 5 - U.S. V. Nixon, I: The Duty to Hear the Case 73
  • Notes 91
  • 6 - U.S. V. Nixon, Ii: Written Briefs and Oral Arguments 95
  • Notes 106
  • 7 - U.S. V. Nixon, Iii: The Substantive Debate Among the Brethren 111
  • Notes 137
  • 8 - Executive Privilege: The Court's Fashioning of an Inherent Presidential Power 143
  • Notes 150
  • Selected Bibliography 153
  • Index 161
  • About the Author 165
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