During Watergate, A grand jury
returned indictments against seven of President Richard Nixon's aides. The
special prosecutor, issued a subpoena seeking audio tapes of conversations
recorded by Nixon in the Oval Office.
Nixon asserted that he was
immune from the subpoena claiming executive privilege. The special prosecutor appealed to the US
Executive privilege is the right to withhold information from
other government branches to preserve confidential communications within
the executive branch or to secure the national interest.
Nixon's lawyer actually
said, "The President wants me to argue that he is as powerful a
monarch as Louis XIV, only four years at a time, and is not subject to
the processes of any court in the land except the court of
Nixon argued that the
special prosecutor was an employee of the Department of Justice, and as
such any conflict between the President and an Executive Branch employee
was an internal matter of the executive branch that the Judicial Branch
had no business interfering.
The US Supreme Court ordered
that Nixon had to turn over the tapes.
The US Supreme Court held
that neither the doctrine of separation of powers, nor the generalized need for confidentiality
of high-level communications, can by themselves sustain an absolute,
unqualified, presidential privilege.
The Court noted that there
was a limited executive privilege in areas of military or diplomatic
affairs, but gave preference to "the fundamental demands of due
process of law in the fair administration of justice." Therefore,
the president must obey the subpoena and produce the tapes and documents.
The fact that the President
is subject to the law was established by Youngstown Sheet & Tube
Co. v. Sawyer (343 U.S. 579
The Court found that the
Attorney General had the authority to fire the special prosecutor, but
had not done so, and until he did so, the special prosecutor had the
authority to seek subpoenas.
A few months before, Nixon
had ordered the Attorney General to fire the previous special
prosecutor, and there was a huge political firestorm.
The Court found that they
not only have the power established in Marbury v. Madison (5 U.S. (1 Cranch) 137 (1803)) to rule a law
invalid for conflicting with constitutional provisions, but also power to
decide how the Constitution limits the President's powers.
The Supreme Court found
that they have the final voice in determining Constitutional questions;
no person, not even the President, is completely above law; and the
President cannot use executive privilege as an excuse to withhold evidence that is, "demonstrably
relevant in a criminal trial."
Article I Section 6(1) of the Constitution says that Congress shall
be privileged from arrest for liable for anything they say in Congress.
It says nothing about the Executive Branch.
The concept of executive
privilege appears nowhere in the
Constitution. Although it could be argued that executive
privilege can be read into the Necessary
and Proper Clause.
It is rumored that there was a
dissent in this case, but it was suppressed and a unanimous opinion given
so that there would be an avoidance of a Constitutional Crisis.