The Critical Issues: Separation of Powers, Executive Privilege, and Judicial Review (Revisited)
What troubled the justices, in addition to the gory public spectacle of a political scandal that led directly to the White House, was the hard realization that the Court was being dragged into the very core of a set of critical and conflicting constitutional debates argued by the counsel for opposing parties.
From the very first days following the revelation that Nixon had taped conversations to the days preceding the oral arguments before the justices in Court, the lawyers for the president argued that the concept of separation of powers inherent in the Constitution conferred an absolute immunity on the president with regard to private discussions he may have had with aides and assistants in the White House. Conversations between the president and aides were confidential; furthermore, the doctrine of separation of powers precluded any judicial review of his claim. Before the Supreme Court, Nixon's lawyers argued that the White House "claim[s an] absolute executive privilege against inquiry by the coordinate Judicial Branch" into such matters. 1
The president did not have to turn over the tapes to the ju-