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

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

is free to pursue his course of erroneous interpretations. What then becomes of our constitutional form of govemment? 47

This was a major question, one that went to the very "heart of our basic constitutional system," 48 a question that the justices returned to time and again over the course of the Nixon decision process.

St. Clair began his oral presentation by pointing out that Jaworski had "not once" mentioned what was really involved in this case. "That is the co-pendency of impeachment proceedings before the House of Representatives, and the realistic fusion that has taken place with these two proceedings and the promise of continued fusing." He was interrupted by a justice who asked: "Well, these are none of our problems, are they?" St. Clair's answer: "I think, sir, they really are."49

He was also asked many questions--more than 200 in the course of the first hour of argument. Given his starting point that the president is the absolute, final determiner of the use of executive privilege and that the federal judiciary could not interpose without violating the separation of powers, these interruptions were not surprising. His view that the president was not subject to the processes of the law "unless he so determines he would give evidence"50 was at odds with some of the justices' views. For St. Clair, the matter was outside the jurisdiction of the federal courts and a nonjusticiable intra-branch dispute to boot.

With oral arguments concluded, it was now time for the brethren to get down to the hard work of writing and editing the opinion of the Court in Nixon. It was to be a painful process.


NOTES
1.
Assistant Attorney General Henry E. Petersen, on April 17, 1973, told President Nixon that a person labeled an unindicted co-conspirator "means that for one reason or another we don't want to charge them at the time.... You are just as guilty [as a person who was indicted]." Quoted in Congressional Quarterly Watergate: Chronology of a Crisis ( Washington, D.C.: Congressional Quarterly Press, 1975), p. 653.

-106-

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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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