This litigation unfolded contemporaneously with congressional investigation of the Watergate affair and with proceedings in the HOUSE OF REPRESENTATIVES for the IMPEACHMENT of President RICHARD M. NIXON. (See WATERGATE AND THE CONSTITUTION.) A federal GRAND JURY had indicted seven defendants, including Nixon's former attorney general and closest White House aides, charging several offenses, including conspiracy to obstruct justice by "covering up" the circumstances of a burglary of Democratic party offices in Washington. The grand jury named Nixon as an unindicted co-conspirator. A special prosecutor had been appointed to handle this prosecution. To obtain evidence, the special prosecutor asked Judge John Sirica to issue a SUBPOENA ordering Nixon to produce electronic tapes and papers relating to sixty-four White House conversations among persons named as conspirators, including Nixon himself.
Judge Sirica issued the subpoena in mid-April 1974; on May 1, Nixon's counsel moved to quash the subpoena and to expunge the grand jury's naming of the President as a co-conspirator. Sirica denied both motions and ordered Nixon to produce the subpoenaed items. When Nixon appealed, the special prosecutor asked the Supreme Court to hear the case, bypassing the court of appeals. The Court granted that motion and advanced argument to July 8. On July 24 the Court upheld the subpoena, 8?0, including the votes of three Nixon appointees. Justice WILLIAM H. REHNQUIST, formerly a Justice Department official under the indicted ex-attorney general, had disqualified himself. A week following the decision, before Nixon had complied with it, the House Judiciary Committee recommended his impeachment. When Nixon turned over the tapes on August 5, they included a conversation that even his strongest supporters called a "smoking gun." On August 9 the President resigned.
A year earlier a White House press officer had said Nixon would obey a "definitive" decision of the Supreme Court about the tapes. At ORAL ARGUMENT in the Supreme Court, however, Nixon's counsel, pressed to say that the President had "submitted himself" to the Court's decision, evaded any forthright promise of compliance. Even after the Court's decision, the press reported, Nixon and his aides debated for some hours whether he should comply with the subpoena. Some have reported that the Court's unanimity was an important factor influencing that decision.
The Court itself...