Executive Privilege: The Court's Fashioning of an inherent Presidential Power
Special Prosecutor Leon Jaworski argued before the justices at the oral argument and in his written briefs that executive privilege was not in the Constitution. It was a common-law privilege at best, he argued, and it should not be elevated to the status and standing of a constitutional principle. His arguments, however, did not prevail in the case. Because a majority of the brethren, especially two Nixon appointees ( Chief Justice Burger and Justice Powell), had insisted that the presidency had to have the constitutional prerogative, the St. Clair argument was adopted. As a consequence, the Court unanimously created a new constitutional standard.
Justice William O. Douglas was quite concerned about the direction his colleagues were going with executive privilege. He believed that it was a "travesty to think of the case in terms of executive privilege." As he wrote in a letter to Powell, with