President Richard Nixon, Citing Executive Privilege, Refuses to Hand Over the Watergate Tapes to the United States Senate

Early on the morning of June 17, 1972, five men broke into the Democratic National Committee headquarters at the Watergate Hotel and office complex in Washington DC. A security guard alerted the Metro Police, who arrested the burglars, who were found carrying more than $3500 in cash and high-end surveillance and electronic equipment. While the burglars awaited their arraignment in federal district court, the FBI launched an investigation of the incident. The dogged reporting of two Washington Post journalists, Bob Woodward and Carl Bernstein, raised questions and suggested connections between President Richard Nixon's reelection campaign and the men awaiting trial in for the burglary. The White House denied any connection to the break-in and in November 1972 the President won reelection in a landslide.

On January 10, 1973, the trial of the Watergate burglars and two accomplices began. After weeks of testimony, Chief Federal District Judge John J. Sirica expressed skepticism that all the facts in the case had been revealed. Five men pleaded guilty and two were convicted by a jury. Judge Sirica urged those awaiting sentencing to cooperate with the soon-to-be-established U.S. Senate Select Committee on Presidential Campaign Activities. That committee was established less than a month later, when on February 5, 1973, Sen. Edward Kennedy offered Senate Resolution 60 to establish it, with its task specifically being to investigate campaign activities related to the presidential election of 1972. Traditionally the sponsoring member presides over an inquiry, but Majority Leader Mike Mansfield wanted to avoid the possibility that the committee would seem unduly partisan because of Kennedy's potential presidential aspirations and instead offered the chair to Senator Sam Ervin of North Carolina. Well qualified to head the investigation, Ervin was a former North Carolina Supreme Court justice, a self-proclaimed "country lawyer" with a degree from Harvard Law School, and widely regarded as the Senate's Constitutional expert. And at 76 years old he did not aspire to the presidency. He proved to be an inspired choice.

On February 7, 1973, the Senate voted unanimously to create the Select Committee. The Resolution empowered the Committee to subpoena witnesses and materials, and required it to submit a report in about one year's time. The Resolution also granted the Committee the power to investigate the break-in and any subsequent cover-up of criminal activity, as well as "all other illegal, improper or unethical conduct occurring during the Presidential campaign of 1972, including political espionage and campaign finance practices." The Committee chief counsel, Samuel Dash, determined upon a strategy that allowed maximum access to the hearings for all of the news media. The print media focused Americans' attention on the issue with hard-hitting investigative reports, while television news outlets, often broadcasting the hearings live, brought the drama to the living rooms of American households. Over 80% of the American people saw at least some of the hearings in this way.

Events unfolded quickly. On March 17, 1973, Watergate burglar James McCord, refusing to take the fall, wrote a pre-sentencing letter to Sirica, claiming that some of  his testimony was perjured under pressure and that the burglary, though not a CIA operation, had involved government officials, thereby leading the investigation to the White House. In April, White House counsel John Dean began cooperating with federal Watergate investigators, and by month's end he had been fired and White House operatives H.R. Haldeman and John Ehrlichman had resigned. These resignations implied that the operatives had some involvement, and were leaving to distance President Nixon from themselves.

The Senate Select Committee began its nationally televised hearings on May 18, and that same day Attorney General-designate Elliot Richardson tapped former solicitor general Archibald Cox as the Justice Department’s special prosecutor for its own investigation of Watergate. A few weeks later, John Dean told investigators that he had discussed the Watergate cover-up with President Nixon at least 35 times, and this was reported in the Washington Post and caused a sensation. Then, on June 13, the investigation discovered a memo addressed to key White House operative John Ehrlichman describing in detail the plans to burglarize the office of the psychiatrist of Pentagon Papers defendant, Daniel Ellsberg. So it became clear that burglaries were in fact emanating from the White House, and the tension level rose dramatically.
However, Nixon denied all involvement, and rebuffed the Committee's attempts to gain information directly from him. Claiming a constitutional separation of powers – executive privilege – he refused to cooperate with requests for materials, nor would he initially allow his top aides to testify. Sen. Ervin insisted that executive privilege could not be extended to cover criminal behavior, and he threatened to authorize the sergeant at arms to arrest White House aides who refused to testify. Conceding to public pressure, the President gave way and allowed aides to testify, but continued to deny the Committee access to presidential papers.

Then came the biggest surprise of all, one that exploded Nixon's strategy and ultimately led to his resignation. On July 13, 1973, with much of the nation watching live, Alexander Butterfield, former presidential appointments secretary, revealed the hitherto unknown fact that since 1971 Nixon had recorded all conversations and telephone calls in his offices. Nixon quickly pulled the plug on the recording system, but it was too late, as now it was clear that there were records of Nixon's actual conversations that could be subpoenaed, and that the truth could be determined simply by listening to the tapes. Sen. Ervin subpoenaed the tapes, believing that they would either corroborate or repudiate testimony that the President had knowledge of the Watergate break-in or cover-up. On July 23, citing executive privilege, Nixon refused to turn over these tape recordings to the either the Committee or the special prosecutor. Ervin rebutted that "The Select Committee is exercising the Constitutional power of the Senate to conduct the investigation, and the doctrine of the separation of powers of government requires the President to recognize this and to refrain from obstructing the committee." Committee vice chair Howard Baker proposed that the Committee take the President to Court.

On August 9, 1973, the Committee took the unprecedented step of suing the President of the United States in Federal District Court for access to the tapes and other documents. It requested a declaratory judgment, mandatory injunction, mandamus, and summary judgment to enforce its subpoenas and compel the President to transmit these materials. The case was captioned as "Senate Select Committee on Presidential Campaign Activities, suing in its own name and in the name of the United States, and Samuel J. Ervin, Jr.; Howard H. Baker, Jr.; Herman E. Talmadge; Daniel K. Inouye; Joseph M. Montoya; Edward J. Gurney; and Lowell P. Weicker, Jr., and United States Senators who are members of the Senate Select Committee…v. Richard M. Nixon, individually and as President of the United States." The complaint states that the Committee had sought specified material in the defendant President's sole control, specifically the tapes; it further recited that the Committee had "directed" the President to make available documents and materials relating to various individuals and their "activities, participation, responsibilities or involvement in any alleged criminal acts related to the presidential election of 1972, which the Committee has been authorized by the Senate to investigate". It accused Pres. Nixon of acting unlawfully by refusing to make available the tapes and other materials, and claimed that if there is a doctrine of executive privilege that protects materials in the President's custody or control, it "does not extend to the protection of materials relating to alleged criminal acts and cannot justify the refusal of the president to respond or comply with the two subpoenas." The complaint went on to cite "the public interest in, and need for, the swift completion of the functions of the Select Committee, and the unique and critical Constitutional considerations raised by the actions of the defendant President warrant expedition of this action at all stages and prompt resolution of the dispute." The filing of this lawsuit placed the matter of Watergate on a different footing and grabbed the nation's attention in an entirely new way. It went from being a serious hearing to an unprecedented legal case and confrontation asserting major questions of Constitutional law.

On August 29, 1973, President Nixon's attorneys filed his Answer. In it, they denied on his behalf that Senate Committees "are empowered to issue supoenas to the President of the United States," thus avoiding any necessity for the President to respond to them, or that the Committee was entitled to investigate criminal conduct. Nixon "further denies that plaintiffs are empowered to bring suit against the President of United States," and also "Denies that the President of the United States can be sued in his capacity." The Answer further denied both the truth of the Committee's allegations and that the court had jurisdiction to hear the case. President Nixon had met the challenge of the United States Senate without blinking.

This is that very Answer of President Nixon, asserting the Constitutional issues and denials detailed above. It is truly historic in every way. Document Signed, Washington, August 29, 1973, executed by J. Fred Buzhardt as White House Counsel for Watergate Matters, whose job it was to prepare and file pleadings and take other actions in all of the Watergate cases involving the President. Attached to the Answer is still found the Certificate of Service signed by Buzhardt, certifying that he had "served the foregoing Answer on counsel for the plaintiffs by causing copies thereof to be hand delivered to the office of Samuel Dash…" A few months later, Buzhardt was the man delegated to listen to the White House tapes, and who discovered the famous "gap" in them. It is the only original pleading in any Watergate case we have ever seen reach the public market.

In the days before electronic filings, legal pleadings, such as answers to complaints, were prepared in signed counterparts. One copy was filed with the clerk of court, and that became part of the case record. Another signed copy (or sometimes more) was retained by the party filing the pleading; when there are multiple lead attorneys on a case, they might each have a signed counterpart in their files. And the filing party was obligated to send a signed counterpart to the opposing attorney or attorneys, which gave them legal notice of the filing. Recipients would sometimes date stamp their copies. Most likely this copy was sent to the Senate Committee and was ultimately received by one of the Senators who was a party to the case. That recipient hole punched the top of the Answer, showing that it was filed with a binder clip, and date stamped the receipt. The document must have arrived early on the 29th, as the date stamp had not yet been changed from August 28 to August 29, and that fact was noted manually.

This was not the only legal action in process or building at the time. Judge Sirica had ordered Nixon to turn over some tapes, and in Nixon v. Sirica, the Court of Appeals, though acknowledging that the President could, under certain circumstances, successfully assert a claim of executive privilege, held that this privilege was not absolute and that courts would be the entities to decide. Sirica's order to produce some of the tapes would stand. By then it was expected that the House of Representatives would open an investigation for impeachment, with full subpoena powers (because impeachment is an actual trial), and in February 1974 it did so. Soon it also demanded the tapes. In April 1974, Special Watergate Prosecutor Leon Jaworski obtained a court subpoena ordering Nixon to release certain tapes and papers related to specific meetings between the President and those indicted by the grand jury. When Nixon was insufficiently forthcoming, the prosecutor opened the case of United States v. Nixon, a case that went all the way to the Supreme Court. When on July 24, 1974, the Supreme Court held that Nixon must turn over the tapes, Nixon decided to throw in the towel. He resigned two weeks later.

As for the Senate's case, the court issued a series of complicated rulings that were much affected by the other legal cases proceeding at the time. In essence, it affirmed its acknowledgment that executive privilege is not absolute, thus negating Nixon's claims. But with another matter ongoing in which the President was already under an order to produce the tapes, the court felt that the Senate had failed to show sufficient cause for an order in its case. And it did not grant one.

The Senate's hearings were the linchpin of Watergate, and its lawsuit the gauntlet that lead directly to Nixon's resignation. This is indeed an extraordinary piece of history.