It all [the Unitary executive legal theory] started with Richard Nixon. It was the summer of 1974, and Watergate was closing in on his presidency. A grand jury had subpoenaed secret recordings of Nixon and his aides that would show the president had been involved in the criminal conspiracy. A judge had ordered Nixon to honor the subpoena. The president’s lawyers faced a daunting task: block the release of those damning tapes.
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Led by Boston trial attorney James St. Clair, Nixon’s legal team cooked up a theory that rejected nearly 200 years of consensus about the separation of powers and the Constitution. They argued the president controls the entire executive branch such that no individual member of that branch—including the federal prosecutor pursuing Watergate—can take any action that the president disagrees with. In short: The executive branch, c’est Nixon.
Unitary Executive
That July, St. Clair made his case in Supreme Court oral arguments, that no federal prosecutor could pursue any lawbreaker if the president didn’t wish it, and that the attorney general himself is “nothing but a surrogate for the president.” Further, St. Clair argued, because the dispute over the tapes was taking place within the executive branch between Nixon and a Justice Department prosecutor, it was out of courts’ reach. The hearing lasted three hours. Newspapers published pages of transcripts, as the nation anxiously waited to see what kind of presidency the court would embrace—one subject to the criminal justice system, or one above it.
Two weeks later, the justices rejected Nixon’s arguments. Writing for a unanimous court, Chief Justice Warren Burger warned that under Nixon’s theory, the US would risk losing its “workable government,” and affirmed that “the separate powers were not intended to operate with absolute independence.” Nixon abided by the order, and the release of the tapes sealed his fate. One recording captured Nixon conspiring to get the FBI to stop its Watergate investigation—obstruction of justice that, under Nixon’s theory of executive power, would not only have been legal, but possibly even beyond the review of any court. But Nixon had failed. Two weeks later, he resigned.
“When Nixon lost eight-nothing, there was no interest in that argument,” says Jed Shugerman, a Boston University law professor and historian who has been examining St. Clair’s briefs for an for an upcoming book on executive power.
“The lesson for most of the country of Watergate is that presidential power can be dangerous,” Shugerman explains. But the lesson that Republican lawyers took, he adds, “was that checks and balances are dangerous.”
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