U.S. v. Nixon: Judicial Opinion Introduction Summary

What's Going Down?

• Like most literature pertaining to law, the Judicial Opinion is bloated and repetitive. But don't sweat it: we're going to break it down for you right here.
• It starts off by explaining that the Watergate special prosecutor filed a subpoena with the District Court to access President Nixon's tapes in order to investigate the men indicted in the scandal.
• They were White House staff and other associates of the president.
• In response, Nixon claimed executive privilege—i.e., everything he said was privileged communication—and attempted to quash the subpoena.
• The District Court, after first presuming the tapes to be privileged, then decided that the special prosecutor had satisfied the requirements of Rule 17(c), and that the subpoena, in the words of Matthew McConaughey, was all right, all right, all right.
• The District Court ordered the tapes to be produced, having dispensed with two arguments from Nixon's lawyers.
• First, they decided that Nixon's claim that the court had no authority in an intra-branch dispute within the executive branch was as out of touch as he was with hippies.
• They also decided that the courts had every right to review the president's claim of executive privilege.
• The order to produce the tapes was stayed until the president had a chance to appeal.
• However, before the Appellate Court could rule, both sides filed motions for the case to be heard by the Supreme Court.
• The Supremes accepted both petitions.

 The Basics

• Ordinarily the Supreme Court wouldn't hear a case until it had been decided, but they believed that this was such an important matter that they took it on.
• Plus, they didn't want the president to be put in a position to resist an order while the case was being decided.
• They state that they took the case because a dispute between the prez and the special prosecutor was in fact subject to a trial.
• Just because it was a dispute between two parties within the executive branch didn't mean that the judicial branch couldn't get involved.
• Also, the attorney general had given authority to the special prosecutor to contest the claim of executive privilege if it was necessary to prosecute his case.
• (Of course, they cite precedent cases like mad in all these opinions.)
• The Supremes state that the District Court, in denying the motion to quash the subpoena and ordering Nixon to hand over the tapes, acted appropriately.
• Ditto the special prosecutor.
• Bottom line: neither the separation of powers argument or the absolute immunity argument holds water in this case.
• It continues: when the privileged communications don't contain matters of national security or military secrets, then they have to take second place to the need to produce evidence so courts can do their job.
• All respect to the president's need for confidentiality, but a general claim of privilege doesn't cut it in the absence of highly sensitive information, they said.
• The Court also slips in at this point that this is a criminal case, not a tickling competition.
• Anyway, the District Court ordered the tapes to be reviewed by a judge in private, not tweeted out to the world.
• The District Court decided correctly.
• The Court realizes the severity and consequences of subpoenaing a president's oh-so-confidential communications.
• So until the special prosecutor gets the tapes, nobody else is to have access to them.

Burger, Well-Done

• Next we get the formal Opinion of the court, written by Chief Justice Warren Burger. It repeats a lot of what's gone before, but in greater detail.
• Fun.
• Burger starts by telling us what the case is about, namely, a lower court's denial of a motion by Nixon's lawyers to quash a subpoena by D.C. District Court ordering the president to produce tape recordings and documents relating to discussions with his advisers.
• The special prosecutor requested the tapes as part of his investigation into Watergate crimes committed by seven men associated with Nixon.
• The District Court had denied the motion to quash. They rejected the president's claims of executive privilege, lack of jurisdiction, and failure of the special prosecutor to satisfy the requirements of a subpoena.
• Burger says the Supreme Court agreed to hear the case because it was so important and needed a quick resolution—too important to wait for the case to crawl through the Appellate Court.

The Lead-In

• Burger explains that on March 1st, 1974, a grand jury for the District Court in D.C. had returned indictments against seven people with various charges including conspiracy to defraud the U.S. and obstruction of justice. Although he wasn't one of the indicted, the grand jury named President Nixon as an un-indicted co-conspirator.
• At the request of the special prosecutor, a subpoena was issued by the court to the president to produce tapes and other evidence related to very specific meetings he had with third parties.
• Burger explains that the special prosecutor knew what to ask for because he'd been given the White House appointment books and daily logs.
• Nixon responded by handing over some edited transcript of selected tapes. Then his attorneys filed a motion to quash the subpoena, claiming executive privilege, and tried to expunge the grand jury's naming of the president as an un-indicted co-conspirator.
• Just doing what good lawyers do.
• The District Court nixed all of the above. They smacked down harder than Negan did during the finale of The Walking Dead, and said that the "judiciary, not the President, was the final arbiter of a claim of executive privilege" (Opening.16).
• They ordered Nixon to hand over what the special prosecutor had asked for.
• Nixon's lawyers had challenged the District Court's jurisdiction because the matter was between two agents of the executive branch, but the court rejected that challenge, too. They decided that they were the final arbiter of whether or not the president was protected by the executive privilege in this case.
• Burn.
• The District Court stayed its order to produce the tapes pending appeal if the president filed an appeal by May 24th.
• He did.
• On the same day, the special prosecutor asked the Supreme Court to hear the case. The president petitioned the Supreme Court a couple of weeks later, and the Court granted both petitions.