Assistant Professor in the Department of Government
The Watergate break-in and the Nixon administration’s actions after the break-in presented a challenge to the basic structure of constitutional democracy in the United States. Most centrally, these events raised questions about the rule of law itself. Could President Nixon define the limits of executive power himself, as he argued in U.S. v. Nixon, or did the system of checks and balances created by the Framers set effective and enforceable limits on presidential power?
In refusing to produce tape recordings and other documents in response to a subpoena issued by the Watergate special prosecutor, President Nixon advanced a theory of executive power that threatened to subvert the constitutional structure of checks and balances. Nixon’s lawyers argued before the Supreme Court that the principle of separation of powers meant that the President could independently define the scope of executive privilege under the Constitution. If the Court has accepted this argument, it would mean that the President would effectively have the ability to define the limits of presidential power when it comes to protecting presidential communications from review by a court: if the President independently concluded communications were confidential, for any reason, this decision could not be reviewed by a court. The Supreme Court rejected this argument, citing Marbury v. Madison, and concluding that the President’s position “would upset the constitutional balance of a workable government” and gravely impair the role of the courts under Article III.” Nixon’s position would prevent the courts from performing their constitutional function because he would be able to withhold, without sufficient justification, evidence relevant to criminal prosecutions.
President Nixon also argued that he could not be required to testify before the grand jury investigating the Watergate burglary. Nixon ultimately testified before the grand jury, but only after he resigned from office. If Nixon had remained in office, deciding whether he could be required to testify before the grand jury would proceed along lines similar to those outlined in U.S. v. Nixon. Nixon argued that requiring him to testify would undermine the independence of the executive branch, giving the courts impermissible power to control his actions. However, in U.S. v. Nixon, the Court had made clear that Nixon’s view of the separation of powers was flawed. The principle of separation of powers cannot “insulate” the President from interaction with the other branches of government. In fact, the Framers’ notion of the separation of powers depended on the different branches of government having overlapping functions, rather than operating in hermetically sealed spheres. In U.S. v. Nixon, the Court recognized that there are times when the President’s actions must be protected from review by the other branches of government; however, this principle is not absolute. In another case decided years after Nixon left office, the Court drew a line between official and unofficial conduct as president: the President is immune from legal process associated with official conduct in office only. Applying this standard to testimony sought by the Watergate grand jury, President Nixon’s testimony could have been required even while he was still in office. This would not have been the first time that a sitting President testified in an ongoing case: President Grant provided testimony (though voluntarily) through a deposition in a criminal case (the prosecution of an official in his administration).
With the benefit of hindsight, I can also observe that several presidents have testified since Nixon left office: President Carter provided testimony in two criminal prosecutions and also gave depositions in two cases; President Ford gave a deposition while in office and, probably most prominently, President Clinton gave a deposition in the Paula Jones case after the Supreme Court ruled he was not immune from judicial process while in office. The Court, in Clinton v. Jones, ruled that litigation involving “questions that relate entirely to the unofficial conduct” of the President may proceed while the President is in office. This case was, of course, decided more than 20 years after Nixon left office, but helps provide support for the conclusion that Nixon could have been compelled to testify before the Watergate grand jury even if he had remained in office.
 Other actions taken by President Nixon and his administration presented similar constitutional challenges, but this discussion focuses on the Watergate break-in.
 Executive privilege is not expressly described in the Constitution, but has been recognized by the Supreme Court as an implicit constitutional principle.
 For instance, the Court suggested, when the President makes decisions involving matters of national security. Critics, however, might view even this concession as opening a dangerous area of unilateral presidential authority.
 Nixon v. Fitzgerald (1982).