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Nixon, United States v.


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418 U.S. 683 (1974), argued 8 July 1974, decided 24 July 1974 by vote of 8 to 0; Burger for the Court, Rehnquist not participating. A climactic incident in a dramatic event in U.S. history—the only case of a president being driven out of office in disgrace—the decision in United States v. Nixon was also a major constitutional landmark. It established the conditional nature of presidential immunity and in turn, may have affected the later decision, in Butz v. Economou (1978), not to follow the plurality view in Barr v. Matteo (1959) of absolute administrative immunity. Above all, it reined in extravagant assertions of President Richard Nixon's lawyers, who claimed presidential power to be unlimited, especially as to foreign and defense matters, and defined solely by a president's own judgment. In forcefully refuting such claims and proclaiming that no one is above the law, Chief Justice Warren Burger's opinion nevertheless twice quoted Chief Justice John Marshall's words, in United States v. Burr (1807), to the effect that presidential accountability to the legal order does not mean courts may proceed with the president as with any other citizen. Burger also enunciated a strong presumption of executive immunity and privilege.

The background of the case is the stuff of which books, novels, and movies are (and were) made. In 1972, burglars were discovered breaking into the Democratic campaign headquarters in Washington's Watergate apartment/hotel complex. It gradually emerged that the burglars had CIA and White House connections. The legal (and illegal) efforts to protect the burglars eventually involved President Nixon, though it was never established with whom authority for the break-in ultimately rested nor why the act had been committed.

The effort to sweep matters under the rug generated complex further maneuvers, many involving payments of money to keep the arrested burglars from talking. The proliferation of illegal activity created new rumors and investigations. The courts, the Department of Justice, the FBI, and Congress all conducted investigations, and the media pursued the case thoroughly. Lower-level Nixon aides, many of whom ultimately went to jail, co-operated in order to minimize their sentences. There were flat discrepancies between their testimony and statements of the president. To quiet criticism, Nixon and Attorney General Eliot Richardson set up a special prosecutor's office with a promise of independence. Archibald Cox, who had been solicitor general under President John F. Kennedy, agreed to serve.

Congressional hearings established that Nixon had installed a voice-activated tape recorder in his office, and, armed with this knowledge along with White House appointment records, the special prosecutor sought to obtain certain tapes that he thought would establish the truthfulness or falsity of the president's statements and the testimony of his aides, especially his legal counsel, John Dean.

The president ordered Cox to desist, and, when he refused, ordered the attorney general to remove him. The attorney general and his deputy resigned rather than obey, but on their advice Solicitor General Robert Bork (who had not been a party to the original agreement) did the President's bidding as acting attorney general.

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Subjects: Law.


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