The Judicial Power Grab That Followed Watergate: Rethinking United States v. Nixon

Every schoolchild knows the moral of the Watergate story. The president is not above the law. The Supreme Court forced Richard Nixon to surrender his secret tapes, proving that no man, not even the most powerful, can defy the Constitution. That version is true as far as it goes. But it leaves out the part that should trouble every believer in limited government and the separation of powers. The decision that brought down Nixon, United States v. Nixon in 1974, also handed the judiciary a weapon it was never meant to hold. It gave the courts final authority to decide what the president must reveal and what he may keep confidential.

Let me be clear from the start. Nixon's conduct was indefensible. He used executive privilege not to protect legitimate policy deliberations, but to conceal a conspiracy to obstruct justice. That is an abuse of power by any measure. But the remedy the Supreme Court chose, inventing a constitutional doctrine, declaring it judicially reviewable, and reserving the final word for itself, set a precedent more corrosive to the Founders' design than Nixon's original sin.

The visible effect of United States v. Nixon was a unanimous Court ordering the president to hand over the tapes, and Nixon resigning in disgrace a few weeks later. Good riddance. But Henry Hazlitt taught us to examine not just the immediate visible effects of a policy, but its long-term, less visible consequences. The unseen effect was the permanent transfer of power from the executive branch to the judiciary over the most sensitive internal communications of the presidency.

Chief Justice Burger's opinion acknowledged that executive privilege exists as an implied constitutional protection. Correct so far. But then he announced that it is not absolute. The courts, Burger wrote, must balance the privilege against the legitimate needs of the judicial process. And who does that balancing? The courts themselves. Let me put it plainly. The Supreme Court claimed the power to decide when the president can keep a secret. That is a power no court wielded before 1974, and one the Constitution's text nowhere grants.

The Textualist Case Against the Nixon Decision

Justice Scalia, had he been on the Court in 1974, would have shredded this reasoning. Scalia was a textualist and originalist. He believed the Constitution means what it says, and what it does not say matters. Article II of the Constitution says nothing about executive privilege, nor about judicial review of such a privilege. The very notion of a balancing test for an unwritten constitutional doctrine is exactly the kind of free-form judicial activism Scalia spent his career opposing.

The better constitutional argument, and one that Scalia advanced in his dissent in Morrison v. Olson in 1988, is that the separation of powers creates political, not legal, mechanisms for resolving inter-branch disputes. If Congress believes the president is withholding information improperly, it can investigate, hold hearings, demand compliance, and if necessary, begin impeachment proceedings. That is the constitutional remedy. The president, for his part, can resist, citing the need for confidentiality. The conflict is supposed to be resolved through political struggle, not by handing the gavel to the judiciary.

The Founders understood that each branch would guard its own prerogatives. James Madison wrote in Federalist 51 that ambition must be made to counteract ambition. He did not write that judges would referee every dispute. The system depends on each branch having the will to defend its power. By inviting the courts to settle executive privilege questions, the Nixon decision short-circuited that design.

The Road from Watergate to Permanent Investigation

The unseen consequence I mentioned has played out across every presidency since. Because United States v. Nixon established a judicial framework for reviewing executive privilege claims, every subsequent White House has had to operate under the shadow of court-ordered disclosure. The result is a presidency that cannot fully protect the confidentiality essential to candid advice.

Consider the Clinton years. Independent Counsel Kenneth Starr used the Nixon precedent to demand notes from White House lawyers discussing the Monica Lewinsky affair, eventually forcing the president to testify before a grand jury via closed-circuit television. The courts consistently ruled against Clinton's claims of attorney-client privilege and executive privilege. Whether you think Clinton got what he deserved, and many Americans did, the principle at stake was profound. The judiciary was now deeply involved in policing the boundaries of presidential communication, and the boundaries kept shrinking.

Under George W. Bush, congressional committees subpoenaed internal White House documents related to the firing of U.S. attorneys. The Bush administration resisted, citing executive privilege. Eventually a court battle loomed, and the administration ultimately settled by providing some documents, a pattern that has become routine.

The Obama years saw similar dynamics. Congressional investigators demanded documents from the Fast and Furious gunrunning operation. The Obama White House claimed executive privilege over some of them. A federal judge ordered the administration to produce them anyway, citing United States v. Nixon.

And Donald Trump's presidency was a nonstop legal war over executive privilege, with the House of Representatives subpoenaing everything from his tax returns to his White House visitor logs. The courts rejected most of Trump's privilege claims, often citing Nixon as the controlling precedent.

Notice the pattern. Every president, Republican and Democrat alike, has seen his power to protect confidential communications eroded. The judiciary has become the permanent overseer of the executive's most sensitive functions. The knowledge problem Friedrich Hayek identified applies here. No judge sitting in a D.C. courtroom can fully appreciate the chilling effect that compelled disclosure has on the advice a president receives from his advisors. National security discussions, foreign policy deliberations, legal strategy, all are now conducted with the knowledge that a congressional subpoena and a federal judge could make them public.

The Real Lesson: Political Accountability, Not Judicial Supremacy

I said Nixon was wrong. I mean it. Using executive privilege to hide a crime is a betrayal of the public trust. But the answer to a political abuse is a political remedy. The House Judiciary Committee voted articles of impeachment against Nixon. The Supreme Court did not need to invent a new constitutional framework to force him out. The political process was working, slowly, imperfectly, but working. The Court's intervention short-circuited that process and, in doing so, established a permanent judicial role in policing the presidency.

The irony is thick. The very decision that forced a criminal president from office has made it harder for subsequent presidents to govern effectively. Every time a court orders disclosure of internal presidential communications, it makes future presidents more cautious, more guarded, and more inclined to avoid putting sensitive advice in writing. The quality of decision-making declines. The confidentiality that makes for honest debate evaporates.

None of this means presidents should be above accountability. It means the Founders designed a specific mechanism for accountability. Impeachment by the House, trial by the Senate, and ultimately judgment by the people at the ballot box. That system is messy. It requires political courage. It does not give tidy, dramatic resolutions like a Supreme Court ruling. But it preserves the independence of each branch and respects the Constitution as written.

The Conservative Case for Limiting Judicial Power

Conservatives often celebrate United States v. Nixon as a victory for the rule of law. We should be more careful. The rule of law means the Constitution is supreme, not that judges are supreme. A decision that expands judicial power at the expense of the executive, while popular in its immediate effect, can weaken the constitutional structure over time.

Thomas Sowell warned us to judge policies by their long-term consequences, not their good intentions. The good intention in 1974 was to hold a corrupt president accountable. The long-term consequence has been a judiciary that now sets itself up as the final arbiter of what the president may keep confidential. That is not the separation of powers the Founders gave us.

The next time you hear someone invoke United States v. Nixon as a glorious precedent, ask them two questions. First, does the Constitution's text actually empower judges to decide executive privilege claims? Second, has the endless cycle of court battles over presidential confidentiality made the presidency stronger or weaker, and does a weaker presidency serve the national interest?

The answers tell you everything about whether you believe in the Constitution as written or in a living document that judges can reshape as they see fit. I know which side the Founders took. And I know which side serves liberty in the long run.