Forty years ago, on August 9, 1974, President Richard Nixon became the only chief executive in our history to resign mid-term. He did so two weeks after a Supreme Court ruling that his secret tapes of Oval Office discussions be handed over to a Justice Department-appointed special prosecutor who was investigating White House involvement in a 1972 burglary of Democratic presidential campaign headquarters. Within days of this ruling, the House Judiciary Committee approved three articles of impeachment against Nixon. A week later, the newly released audio tapes showed Nixon to have been deeply involved in the cover-up of the Watergate break-in. Anticipating that the full House would approve the articles of impeachment, triggering a Senate trial, Nixon decided to step down.
In its decision in United States V. Nixon, the Supreme Court first cited Marbury v. Madison, reaffirming “that it is the province and the duty of this Court ‘to say what the law is’ with respect to the claim of privilege presented in this case.” Then it examined Nixon’s claim of executive privilege. While granting that the public interest requires that the President be able to discuss matters of state in secrecy with his advisors, the Court refused to privilege private speech of the Chief Executive that could show his involvement in criminal activity:
The President’s need for complete candor and objectivity from advisers calls for great deference from the court. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument . . . .
In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the [Framers] sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence. To read the Art. II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of “a workable government” and gravely impair the role of the courts under Art. III.