BUTTERFIELD'S ODYSSEY: PRESIDENTIAL POWER AND THE CASE OF UNITED STATES v. NIXON
This is “My Constitution,” a podcast from the Center for C-SPAN Scholarship & Engagement at Purdue University. In this podcast, we’ll discuss the powers of the presidency.
Senate Watergate Committee, July 16th, 1973.
THOMPSON: Mr. Butterfield, are you aware of installation of any listening devices in the Oval Office of the president?
BUTTERFIELD: I was aware of listening devices. Yes, sir.
Alexander Butterfield was a Deputy Assistant to President Richard Nixon, and he was being questioned by Republican counsel, Fred Thompson.
THOMPSON: When were those devices placed in the Oval Office?
BUTTERFIELD: Approximately the summer of 1970? I cannot begin to recall the precise date. My guess, Mr. Thompson, is that the installation was made between—and this is a very rough guess—April or May of 1970 and perhaps the end of the summer or early fall 1970.
THOMPSON: Are you aware of any devices that were installed in the executive office building office of the President?
BUTTERFIELD: Yes, sir, at that time.
THOMPSON: Were installed at the same time?
BUTTERFIELD: They were installed at the same time.
In order to understand what happened to Richard Nixon in the early 1970s, we need to take a deep dive into the period of the making of our Constitution, specifically to Article II which outlines the powers of the presidency. With the exception of the veto, this Article grants few specific functions to the president.
In separating itself from Great Britain, the revolutionary generation distanced itself from what it saw as a relationship that had broken down on the jagged rocks of executive abuse. Early in the Declaration of Independence, Thomas Jefferson wrote, “The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states.”
This concern over the dangers of executive power can also be seen in early state constitutions as well as the first national constitution, called the Articles of Confederation. For example, with the exception of New York, state executives possessed limited powers.
As we discussed in an earlier podcast, to a large extent, the authors of the Articles of Confederation created a national government in name only. Here’s James Madison University history professor, Chris Arndt:
The Articles placed enormous power in the hands of the state. Each state was sovereign except power that it was expressly delegated to the national government. And the powers of the central government were greatly limited when compared with the later constitution, with which we're all much more familiar. For example, only the central government under the Confederation was allowed to conduct political or commercial relations and declare war. The Confederation defined the sole and exclusive right and power of the United States and Congress assembled to determine peace and war, to exchange ambassadors, to enter into treaties and alliances with a few provisos, and for Congress to serve as the final court for dispute between states. Now that sounds like they have a lot of power, but when you begin to look at it, they're really there to serve as a referee and to manage things that are essentially offshore. For example, to approve a treaty, 9 of the 13 states had to approve. To change the Articles, it was unanimous, all 13 states had to agree. And although the Articles were declared perpetual, there were no powers of taxation, could not regulate trade, foreign or domestic.,
The new nation faced numerous problems after winning the Revolutionary War and successfully separating itself from Great Britain. The failure of the Articles of Confederation to deal with the problems, ultimately led to a Constitutional Convention in Philadelphia and the creation of a new constitutional document that included a relatively robust executive.
The Framers debated a number of issues which helped define the type of executive the new constitution would endow on the country. Under the Virginia Plan, the executive was to be chosen by the legislature. Together with others, the executive could veto laws. However, the legislature had the power to override a veto. But the structure and powers of the executive were imprecisely drawn in the Virginia Plan. For example, it did not specify whether the executive was to consist of one, or more than one person. Can you imagine the United States today with multiple presidents?
The Virginia Plan proposed that the country’s leader or leaders should “enjoy the Executive rights vested in Congress by the Confederation.” But what were these “Executive rights”? The phrase lacked clarity. It was as if Leonardo da Vinci had been interrupted before he painted the features of the Mona Lisa. That was the executive branch under the Virginia Plan: something of a mystery.
While early American history was characterized by opposition to a powerful executive, a number of the members of the founding generation favored a strong executive. One of these was Alexander Hamilton. Here’s Political Scientist, Robert Scigliano:
There's a clear understanding of the need of executive power in Hamilton and clearer than Madison had. That is, that this society could only be held together by an energetic government and that meant an energetic executive.
Why was this type of executive important to Hamilton? He believed that an energetic executive would protect the country against foreign powers. Power in the executive was also believed to protect property rights and liberty.
In the end, the delegates to the Constitutional Convention created an executive headed by one person who could seek reelection. That person had to be at least 35 years of age and be resident of the United States for at least 14 years. Candidates for the office must also be natural born citizens. The president also became Commander-in-Chief, meaning that they were the head of the armed forces.
Here are some of the other powers given to the president by the Framers of the Constitution. The president has the power, with Senate approval, to make treaties; the power to pardon individuals, except in cases of impeachment; the power to recommend legislation; the power to veto legislation, though Congress can override it; and the power to nominate individuals to government positions.
Now back to the 1970s.
At the beginning of this podcast, we heard a key moment in Alexander Butterfield’s testimony before the Select Committee on Presidential Campaign Activities, known as the Senate Watergate Committee. Three days prior to that testimony, Alexander Butterfield testified about the president’s taping system for the first time.
It was Friday, July 13, 1973. The things he said on that day, and to that committee, triggered discussions of executive power and impeachment. They also helped bring down a president. What led to this series of events?
In June 1972, five individuals were caught attempting to plant listening devices at the Democratic National Committee’s offices in the Watergate complex in Washington, DC. One of the individuals detained worked for the Committee for the Re-Election of the President. The next election was scheduled for November 1972. President Richard Nixon was seeking a second term in the White House, an election he ultimately won.
A year after the break-in at the Watergate, counsel to President Nixon, John Dean, testified under oath that the President was an active participant in the attempt to cover-up the Watergate break-in. Following Dean’s testimony, and the revelation of the existence of a transcript of a conversation between Dean and the President, Alexander Butterfield testified in private before staff members of the Senate Watergate committee.
Friday, July 13, 1973, was a hot day in the Nation’s capital. Part way through his testimony to staff members of the Senate Watergate Committee, Donald Sanders, a Republican lawyer, asked Butterfield the following question: “Was there any other kind of taping system in the president’s office?” Beginning with the words, “I was hoping you all wouldn’t ask that question,” Butterfield revealed the existence of the White House taping system. Years later, he reflected:
We had the Technical Security Division of the Secret Service and no other Secret Service people knew about this installation, but the Technical Security Division installed the tapes and, and we were off and running, and I had no idea that this would be a red- letter day or a black day in history.
Why did the President install a taping system? To keep an accurate record of meetings? To provide grist for presidential memoirs? Both of these are likely true. But former Nixon Presidential Library Director, Timothy Naftali, also believes there was another reason, and that involved Nixon’s chief foreign policy advisor, Henry Kissinger.
The reason he puts the system in is that he is competing with Kissinger. He's afraid that when the presidency is over that people will think that Kissinger was the source of his great foreign policy ideas. So he's saying, I want to prove to people that I'm the reason for these great foreign policy breakthroughs because remember, in February of 1971, we're on the cusp of him going to China, announcing that he's gonna go to China. We're on the cusp of him starting detente with the Soviet Union, and he's the one pushing for them. So he says to his people, to Haldeman and the Secret Service, “I wanna wire this place so that when I write my memoirs, I have the detailed proof that it's me and not Kissinger, who's beyond, is behind the structure of peace.”
Why was Butterfield’s testimony about the White House taping system important? After all, other presidents, including John F. Kennedy and Lyndon Johnson, had recorded their conversations. It was important because taped conversations might shed light on any involvement by the President in attempting to hinder the investigation into the break-in at the Watergate.
Following Butterfield’s revelation, a complicated dance took place between those requesting access to the White House tapes and President Nixon. Following President Nixon’s refusal to hand over a large number of tapes, the special prosecutor appealed to the United States Supreme Court. The case that emerged from that appeal was called United States v. Nixon. At the heart of the matter was President Nixon’s claim that the conversations he had with his closest aides were privileged. But what is executive privilege? Here’s political scientist, Mark Rozell:
When we define “executive privilege,” essentially, what we're talking about is the right of the president to withhold information from those who have compulsory power—the courts, Congress, you know, those who have an interest in getting information out of the White House.
Arguments in favor of withholding information can be found as early as the presidency of George Washington. Even though such claims have a rich history, the phrase “executive privilege” cannot be found in the Constitution. The Court noted this in US v. Nixon.
Chief Justice Warren Burger’s opinion for the Court included this comment: “Nowhere in the Constitution . . . is there any explicit reference to a privilege of confidentiality.” But in that case, Chief Justice Burger also described executive privilege as “constitutionally based.” The Supreme Court argued that the Constitution not only gifted the president the enumerated powers found in Article II, but it also supported claims of executive privilege.
Today, executive privilege is considered an inherent power of the presidency. Scholars argue that it can be inferred from the discussion of the “executive power” of the president found in Article II, Section 1. With the exception of the veto found in Article I, those powers are relegated to Article II, but they grant few specific functions to the president.
While the Court’s decision in United States v. Nixon can be seen as a victory, of sorts, for the Executive Branch, the Court also took the position that the right was not an absolute one. It ordered the President to hand over the tapes, noting their role in an ongoing criminal investigation.
One of the tapes revealed that the President was involved in the attempt to cover-up the events at Watergate. Just over two weeks after he was ordered to release the tapes, and under threat of impeachment, President Nixon resigned from the presidency. He was succeeded by his vice president, Gerald Ford.
Debates about the power of the presidency are legion. The development of a strong presidency has been linked to the increasing global reach of the United States. An argument has been made that the power of the presidency is greater in some areas of policy, notably foreign affairs, than in others. It has also been suggested that presidential power waxes and wanes depending upon the character of the individual who sits in the Oval Office. The willingness of the other branches of government to cede power to the executive has also been highlighted in scholarly debates about executive power.
In 1974, the power of the presidency was curtailed by the decision of a court. While the U.S. Supreme Court rooted executive privilege in the Constitution, it is significant that presidential claims of privilege are not without limit. Alexander Butterfield was a reluctant player in this drama. His role, however, was not a minor one.
Further information on some of the issues discussed in this program, including questions to ponder, our sources, and additional clips from the C-SPAN Archives, can be found on the website of the Center for C-SPAN Scholarship & Engagement. The address is cla.purdue.edu/cspan. The Center is affiliated with the Brian Lamb School of Communication at Purdue University.
PODCAST GOAL
To acquaint the student with presidential power.
NOTE
The listener should be aware that claims of inherent executive powers extend beyond claims of executive privilege. For example, the umbrella of inherent power has been extended to the issuing of executive orders by presidents. Executive orders have touched upon some of the most compelling issues in American politics (e.g. affirmative action, integration of the armed forces). Claims of additional powers have also been frequently made by presidents in the area of foreign policy.
QUESTIONS TO PONDER
At the heart of United States v. Nixon (1974) is the issue of executive privilege. What arguments support claims of executive privilege? Do you think the Court was right in only providing the president with a qualified right to executive privilege? Additional information on this topic can be found in the “Supreme Court Cases" section of this document and in the “Additional Materials” section.
In the podcast, we noted that the delegates to the Constitutional Convention created an executive headed by one person who could seek re-election. That person had to be at least 35 years of age and be resident in the United States for at least 14 years. Candidates for the office must also be natural born citizens. Would you modify any of these provisions? Why or why not? Note: Before you begin thinking about your response to the issue of presidential re-election, you must read the Twenty-second Amendment ratified in 1951.
The Virginia Plan did not specify whether the executive was to consist of one, or more than one, person. What advantages and disadvantages do you think would result from a plural executive?
One of the continuing areas of conflict between the Congress and presidents revolves around the issue of war powers. Article I, Section 8 provides that Congress declares war. Article II, Section 2 highlights the role of the President as Commander in Chief. In response to presidential power in this area, Congress passed the War Powers Resolution in 1973. Who should play the dominant role in war powers? Why? Should we simply amend the Constitution to resolve this seemingly ambiguous area of who possesses power in this area? Note: A discussion of the War Powers Resolution can be found on the Library of Congress website. Please visit https://www.loc.gov/law/help/usconlaw/war-powers.php
OUR SOURCES
Executive Privilege. (n.d.). Legal Information Institute.
Fiorina, M. P., Peterson P. E., Johnson, B., & Mayer, W. G. (2011). The new American democracy (7th ed., pp. 381-382, 588-589). New York City, NY: Pearson.
Franklin, D. (n.d.). Executive privilege. Encyclopedia Britannica. <href="#ref1078285">www.britannica.com/topic/executive-privilege#ref1078285
Looking back: The Supreme Court decision that ended Nixon's presidency. (2019). National Constitution Center. constitutioncenter.org/blog/anniversary-of-united-states-v-nixon
Milkis, S. M., & Nelson, M. (2007). The American presidency: Origins and development, 1776-2007 (5th ed., pp.1-25, 26–67). Washington D.C.: CQ Press.
O'Brien, D. M. (2017). Constitutional law and politics: Civil rights and civil liberties (10th ed., Vol. Two, pp. 227–232, 339-340, 454-469). New York, NY: Norton & Company.
U.S. v. Nixon. (1974). PBS Newshour Extra. www.pbs.org/newshour/extra/app/uploads/2013/11/U-S-v-Nixon.pdf
Waxman, O. B. (13 June 2019). President Trump invoked executive privilege. Here's the history of that presidential power. Time. time.com/5605930/executive-privilege-history/
Woodward, B. (2016). The last of the president's men. New York, NY: Simon & Schuster Paperbacks.
UNITED STATES SUPREME COURT CASES
United States v. Nixon (1974) --https://www.oyez.org/cases/1973/73-1766. On this page, you can find links to oral argument, Chief Justice Burger’s decision announcement, and the Court’s opinion. The page also includes a summary of the facts, the legal question, and a summary of the Court’s decision.
ADDITIONAL CLIPS AND PROGRAMS FROM THE C-SPAN ARCHIVES
40th Anniversary of United States v. Nixon Oral Argument (2014). In addition to providing access to oral argument in United States v. Nixon, this program features an interview with Evan Davis who was a staff member on the House Judiciary Impeachment Inquiry Committee. Davis’s comments can be found at the beginning of the program and following the oral argument.
Jeffrey Rosen on the Constitutional Battle Between Congress and the White House (2019). This program begins with a discussion of executive privilege and United States v. Nixon. Jeffrey Rosen is CEO of the National Constitution Center.
Nixon Library Watergate Exhibit (2011). Timothy Naftali, former Director of the Richard Nixon Presidential Library and Museum, discusses Watergate and its aftermath.