In a recent Justia blog post, Illinois Law dean and professor Vikram David Amar wrote about United States v. Nixon, and its relevance to the ongoing investigations into members and associates of the Trump administration.
"The Court had no real choice but to rule against President Nixon. The special prosecutor had already presented evidence to the grand jury suggesting that President Nixon was a co-conspirator in the federal crimes for which others were being prosecuted, and the very conversations of which Mr. Jaworski sought the recordings would likely provide slam-dunk evidence of the conspiracies themselves—and the president’s part in them. So whether or not a broader executive privilege should have been recognized by the Court, Richard Nixon should not have benefitted from it, in the same way that other privileges do not protect persons engaged in ongoing criminality.
"That said, as commentators such as Akhil Amar have observed, there are aspects of the Court’s reasoning that don’t hold up well to careful scrutiny. Consider first the reliance on the regulation by which Mr. Jaworski was appointed to find the case justiciable. The Court said as long as the regulation was on the books, it was binding. But the president likely had the constitutional power to rescind the regulation himself anytime he wanted to. Isn’t it a bit formalistic to make him do that when his litigation stance in the Supreme Court is clear evidence that he doesn’t agree with the special prosecutor or stand behind the regulation that empowered him? At the very least, the Court never explained why the formal act of rescission ought to have carried such legal significance when the president’s intent there was so obvious."
Read the full post at verdict.justia.com.