Anniversary Post: Richard Nixon’s Watergate Subpoena

Nixon Fights BackOn this day in 1974, Richard Nixon refused to provide materials to the Senate Watergate Committee, which it had subpoenaed. This led eventually to the Supreme Court case United States v Nixon, where a unanimous Court found on 24 July 1974 that the president did have to turn over those materials. Nixon resigned two weeks later.

I have two thoughts on the matter. First, part of Nixon’s defense was that there was an executive privilege for the president to protect “those who advise and assist them in carrying out their duties.” This is exactly what we heard again and again during the George W Bush administration. And now we’ve added the argument that releasing audio of the president urinating would risk the nation security. I’ve long thought that Nixon went down more because he just wasn’t liked than that there was anything that the power elite actually had a problem with. I’m not saying that Nixon shouldn’t have been thrown out of office; I’m saying that a hell of a lot of other people should have been thrown out too.

The second thing is that I just don’t see the current Supreme Court finding unanimously against the president with regard to Watergate. The court at that time worked very hard to come up with a unanimous opinion. I would have thought that the same would have been true in Bush v Gore. That was a clear case where everyone should have agreed that the count should have continued. Certainly David Souter thought the decision a sham. Here’s what Jeffrey Toobin wrote about him regarding the case:

Toughened, or coarsened, by their worldly lives, the other dissenters could shrug and move on, but Souter couldn’t. His whole life was being a judge. He came from a tradition where the independence of the judiciary was the foundation of the rule of law. And Souter believed Bush v Gore mocked that tradition. His colleagues’ actions were so transparently, so crudely partisan that Souter thought he might not be able to serve with them anymore. Souter seriously considered resigning. For many months, it was not at all clear whether he would remain as a justice. That the Court met in a city he loathed made the decision even harder. At the urging of a handful of close friends, he decided to stay on, but his attitude toward the Court was never the same. There were times when David Souter thought of Bush v Gore and wept.

And that Supreme Court was far more reasonable than today’s Court. I suspect that if the Watergate case came before the Court today and it were a Democratic president, it would be a unanimous decision. But if it were another Republican, the president would win 5-4. Maybe I’m too cynical. But after Bush v Gore, it’s hard to imagine the conservative justices not finding a way to make sure that their “side” wins.

7 thoughts on “Anniversary Post: Richard Nixon’s Watergate Subpoena

  1. I wonder what would have happened had he resigned in protest. It is not like he would have suffered for it but it would have definitely changed the tenor even more then it was.

    • I think it wouldn’t have meant a thing to the conservative justices and it would have meant that Bush got to appoint 3 justices. It would have been terrible. Although I have little doubt that Sandra Day O’Connor regrets a lot in retrospect. She’s said as much regarding Bush v Gore. She retired to take care of her husband, who ended up dying only a couple of years later. Then Rehnquist died, giving Bush even more power, which I suspect she regretted right away. And she was replaced by Alito who is an anti-feminist and who she must hate. If Souter had stepped down, maybe she wouldn’t have. But I think that’s a stretch. I always thought rather highly of her, but siding with the conservatives on Bush v Gore really spoiled me on her. I don’t know what she was thinking.

      • It was politics-she wanted to retire but be replaced by a Republican president. However…she had not been paying attention to what was going on with the Republicans since she entered the ratified world of the judiciary. A lot of judges unsurprisingly ignore political winds.

        • I understand that. But her stated reason was her husband. I think she was blinded by the politics of it after it was all over. But Bush v Gore should have done that for her. I hate to keep bringing it up, but she and Souter were kind of team. And she showed a total lack of ethics in that case. It was a sad ending to admirable career.

          • It was a sad ending. I do think that she exemplified the reason that former politicians should be appointed to the Court. I think you get better results when someone has had the experience of having to balance the interests of many groups.

            My favorite Justice-Earl Warren showed that. He did a horrible thing as governor but I think he made his judicial career about making up for it.

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