Reconsidering United States v. Nixon

Fifty years ago today, President Richard Nixon resigned. His resignation came shortly after the Supreme Court unanimously decided United States v. Nixon. This decision is often held up as an exemplar of Supreme Court jurisprudence at its best. Justice Kavanaugh, for example, often stresses that Nixon was joined by three Nixon appointees. (Justice Rehnquist recused because former Attorney General John Mitchell, one of the defendants, had been Rehnquist’s boss.)

But I’m not sure Nixon has stood the test of time. The argument that the Court had jurisdiction to resolve what was, in effect, a dispute within the executive branch, never persuaded me. This theory led inexorably to the concept of the independent counsel, an anathema to the separation of powers. Moreover, to the extent that Nixon said anything at all about the Appointments Clause, that analysis has been overcome by Buckley v. Valeo, Bowsher v. Synar, and other cases. (Seth Barrett Tillman and I explain why the holding of Nixon, whatever it is, was limited to some “unique” facts—which is precisely what the decision repeatedly stated.) I’ve long seen Nixon v. Fitzgerald as a something of a correction to Nixon. Fitzgerald was decided nearly a decade after Nixon during a more sober time.

There’s more. Today’s Wall Street Journal includes an Op-Ed by Kenneth L. Khachigian, who served as an aide to President Nixon. He argues, provocatively, that Nixon should not have resigned, and that he could have survived an impeachment vote–or at least that he should have taken a principled stand and forced Congress to impeach him. But more relevant for my purposes are behind-the-scene machinations. Khachigian speaks to some of the questionable legal issues lurking in the background:

I hope new generations are open to some different thinking—or at least a balanced treatment that goes beyond the story of bungling burglars and political damage control. It must include how the “Watergate affair” was also the culmination of Nixon’s political opponents’ long-yearned-for goal of destroying him. Nixon had a political target on his back from his congressional days of vanquishing the communist Alger Hiss, a favorite of Washington’s intellectual left. Through his entire presidency, Congress was controlled by opposition Democrats, with confrontation aggravated further by Nixon’s determination to end the Vietnam War he had inherited from the Kennedy and Johnson administration planners at the State and Defense departments.

Sen. Edward Kennedy set up the Senate Watergate Committee. Three months later John F. Kennedy’s 1960 campaign director of opposition research against Nixon, Archibald Cox, was hired as Watergate special prosecutor with a staff seeded from the ranks of Robert F. Kennedy’s Justice Department. The subsequent special prosecutor, Leon Jaworski, expressed concern in an internal memorandum that his chief deputy reflected “an attitude I discussed with you before—the subjective conviction that the president must be reached at all cost.”

Watergate scholar Geoff Shepard has unearthed further damning evidence that the special prosecutors had several unethical private meetings with Judge John Sirica in the absence of attorneys for Nixon and Watergate defendants—each violating the most basic legal protections. Nixon’s adversaries weren’t looking only for the truth. They were looking for a scalp.

I didn’t know these things. Did you?

There is also the entire fever pitch of the time. Every element of government was focused on getting Nixon out of office. And from what I’ve researched, we still have no idea what the burglars were looking for in the Watergate Hotel. Nixon had no role in, or even knowledge of, the break-in before it happened. But he later became aware of the break-in. My sense is that Nixon did the sorts of things that  many of his predecessors had done, and gotten away with, but Nixon was recorded. I was not alive at the time, but I have to imagine that Watergate felt something like the resistance to the Trump Presidency.

After half a century, perhaps the members of the Trump v. United States majority have come to second-guess the Nixon majority. The immunity case, I’ve written, culminated from years of lawfare against Trump. James Piereson makes this point at City Journal:

Pushback against the Watergate legacy is evident in efforts to curtail independent prosecutors and partisan “lawfare,” conservative attacks on the politics of the nation’s capital, and Trump’s current presidential campaign, supported in great part by voters who believe that they have been shut out of influence in Washington and (inferentially) that Watergate promoted political rules that reward insiders. The Supreme Court recently broke new ground in ruling that a president is immune from criminal prosecution for acts undertaken while carrying out the core powers of the presidential office. That opinion may partly reflect a recognition of the lawfare that a Democratic administration is waging against its Republican opponent. It is, in addition, an opinion that works against Watergate sensibilities in regard to presidential conduct and accountability. It’s a worthy question whether the current justices would have ruled as their predecessors did in 1974′s United States v. Nixon regarding the White House tapes. Today’s Court might have permitted Nixon to keep those tapes, in the belief that Watergate represented a form of lawfare against an elected president.

Maybe the Roberts Court was right and the Burger Court was wrong.

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