[SOUND] There is no definitive answer to the question, when may the president act without express constitutional or statutory authority. As I said, even in a single case, Youngstown Sheet and Tube vs Sawyer, the Supreme Court gave four very different answers. To see why the choice of answer matters so much, let me take a couple of examples. One occurred in the early 1970s, when then President Richard Nixon claimed the authority to impound federal funds that Congress had appropriated for particular purposes. President Nixon said that Congress has the spending power, but that the President had the authority to impound funds. So if Congress appropriated money, say for an environmental protection plan, President Nixon would say, I have the authority to impound the funds and refuse it to be spent. Or if Congress appropriated money for a particular education program or highway program, President Nixon would claim the authority to impound funds. Does the president have the power to impound? Well, the Constitution is silent about that. It doesn't say anything about impoundment. If one would take the first approach that I enumerated, Justice Black's approach in the majority opinion Youngstown, then the President would not have the power to impound. For Justice Black, the President can act only if the President can point to his Constitutional or statutory authority. Under Justice Douglas' approach, the President's impoundment of funds would likely be unconstitutional. Congress has the spending power under the Constitution. For the President to impound funds, the President impermissibly to interfere with Congress authority in this realm. The third approach would say that the president can act until and unless Congress disapproves. In 1974, Congress passed the Impoundment Control Act, and it said that presidents do not have the ability to impound funds that are appropriated by Congress. So under this approach, the president may have the power of impoundment, but once Congress passed the impoundment Control Act, that was unconstitutional. Under the fourth approach, one could say, question is, is the power to impound something inherent to presidential power so that the attempt by congress to limit the impoundment control act is unconstitutional? The president, Richard Nixon, certainly claimed that. He argued that the Empowerment Control Act was unconstitutional as interfering with presidential power. But every court has upheld it, saying that it doesn't impermissible intrude on the powers of the president. My other example here also comes from the early 1970s and I think it's one of the important Supreme Court cases in American history. The case was United States versus Nixon and it was decided in August of 1974. And it very much goes to question that I've posed, when may the president act without constitutional expressed statutory authority? United States versus Nixon arose from the Watergate break-in and the cover up that followed from it. In June of 1972, some individuals were caught breaking into the Democratic National Committee headquarters in the Watergate Building in Washington, DC. Over the course of the following year, two reporters at the Washington Post, Bob Woodward and Carl Bernstein, uncovered the links between the burglars at the Watergate Building and the campaign to re-elect the President and even to high-level executive officials. Perhaps going all the way up to the Attorney General, John Mitchell, who then was the head of the campaign to re-elect the President, a pattern developed over that year. Woodward and Bernstein would report in the Washington Post, links between the burglars and a cover up, and the campaign to re-elect the president. The White House would deny, evidence would come out corroborating Woodward and Bernstein only for another allegation to follow, followed by another allegation, and so on. There was enough pressure that Richard Nixon appointed a special prosecutor. This special prosecutor was a Harvard Law professor by the name of Archibald Cox, to look into whether or not any crimes had been committed with regard to the cover-up of the Watergate break in. In the summer of 1973, the Senate select committee on Watergate held hearings. The hearings were chaired by a relatively elderly North Carolina Senator, the folksy Sam Ervin. The country was mesmerized by the Watergate hearings. The central focus of the hearings was about, what did the President know and when did the President know it. I was not alive, I couldn't remember the army McCarthy hearings, I was too young when they went on, to know of them. The closest I can think of in more recent years to the nation being mesmerized by hearings, was in 1991, when Anita Hill accused Clarence Thomas of sexual harassment. And he responded by saying he was the victim of a high tech lynching for upidy blacks. An in 1991, like in 1973, the whole country was mesmerized by these hearings. And I remember in the summer of 1973 being one of those who watched the hearings, and watched them avidly. Well in the midst of those hearings, in the summer of 1973, a White House official by the name of Alexander Butterfield said that there was a voice activated taping system in the Oval Office in the White House. Richard Nixon had put it there because he wanted what went on to be recorded for posterity. Well, since everyone was focusing on what did the president know and when did the president know it, what better way to find out than through these tapes? Archibald Cox subpoenaed the tapes of the White House conversations. President Nixon moved to quash the subpoena. President Nixon claimed that it violated presidential power, the authority of a President to assert executive privilege, to keep conversations with advisors secret. The Federal District Court in Washington, DC, Judge John Sirica, ruled against President Nixon and the United States Court of Appeals for the District of Columbia Circuit affirmed Judge Sirica's ruling. The DC Circuit, The Federal Court of Appeals in Washington, stayed its ruling for a week, to give President Nixon the opportunity to go to the United States Supreme Court. It was a Friday night. All the media was crowded around the Supreme Court, waiting for Nixon's filing there, but President Nixon surprised everyone by not appealing to the Supreme Court. Instead, Nixon announced to his press secretary Ronald Ziegler, that Nixon would make available edited transcripts of the tapes that been subpoenaed. That Nixon would allow the senator James Eastland from Mississippi, to listen to the tapes to make sure the transcripts were accurate. The media then quickly pick up that Eastland was almost completely deaf at that point and time. And Nixon ordered Archibald Cox, the special prosecutor, to seek no further tapes of White House conversations. The next day, Saturday, Archibald Cox held a press conference. He said he wanted the tapes, not transcripts. He said the federal district court had subpoenaed the tapes. The United States Court of Appeals had upheld that. Nothing but the tapes were going to be sufficient. And he said, if he believed that further tapes were necessary, he would subpoena those, as well. Nixon was furious. He turned to his Attorney General, Elliott Richardson, and said fire Archibald Cox. Richardson refused, he resigned rather than fire Cox. Nixon then went to the number two person in the Justice Department, the name of William Ruckelshaus and said fire Archibald Cox. Ruckelshaus refused, he resigned rather than do so. President Nixon then went to the number three person in the Justice Department, the Solicitor General of the United States Robert Bork and asked him to fire Archibald Cox. And Bork did so. This became known as the Saturday Night Massacre. It led to the first impeachment resolutions introduced against Richard Nixon. The new special prosecutor came to be appointed. It was a man by the name of Leon Jaworski, a lawyer from Houston, former president of the American Bar Association. And he came to then subpoena tapes of White House conversations. On March 1st, 1974, a grand jury in Washington DC indicted a number of individuals for having participated in obstruction of justice, the Watergate cover up. The Grand Jury named Richard Nixon an unindicted co-conspirator. The Grand Jury said it would have indicted Nixon for obstruction of justice, but it didn't know if it could indict a sitting President. The special prosecutor them subpoenaed more tapes of White House conversations. Nixon moved to quash the subpoena. The District Court ruled against Nixon. The United States Government, in an unusual move, said to the Supreme Court, skip the Federal Court of Appeals. This case is so important, you need to take the case. And the Supreme Court did. And in July of 1974 the supreme court heard oral arguments and two famous and impressive lawyers argued. James Saint Clair represented Richard Nixon, he was a Boston lawyer. And he said that this was about the power of the president to carry out the presidency. That executive privilege was crucial. That a president needed the ability to have secret advice from advisors, be able to deal with foreign policy and handle diplomacy in secret. Leon Jaworski argued on behalf of himself, the special prosecutor. His basic point was that no one, not even the president, is above the law and that executive privilege has to yield to those important compelling government interests. The Supreme Court unanimously ruled in favor of the special prosecutor and against Richard Nixon. The Supreme Court's decision was 8-0. William Rehnquist had been the Assistant Attorney General in the Nixon Justice Department, so he recused himself from participating. The Supreme Court's opinion said, presidents have executive privilege, the authority to keep secret conversations with a of advisors, but Executive privilege is not absolute. The Court said Executive privilege must yield when it interferes with the powers of another branch of government. The Court said here President Nixon's invoking Executive Privilege undermine the ability of the judiciary to function. The court said, it's the role of the federal courts to provide a fair trial. In order for the federal courts to do so, they need to have access to all of the evidence. Executive privilege, therefore, cannot be invoked in a way that keeps the federal courts from having the needed evidence to be able to supply a fair trial. So, notice the approach that the court took in the United States versus Nixon, relative to the four that I've mentioned. The Supreme Court said, there is inherent power. Executive privilege, not mentioned in the Constitution. But the court recognized that it exists. But this court said this inherent power must yield when it's used in a way that usurps or interferes with the powers of another branch of government. The court said here Executive privilege would interfere with the ability of the Judiciary to provide a fair trial and thus, it's unconstitutional. Not long after the Supreme Court's decision in United States versus Nixon, President Nixon released the subpoenaed tapes. One of the tapes President Nixon is heard to say, he would tell the FBI not to investigate the Watergate burglary because it was a CIA matter. President Nixon did this, this of course is obstruction of justice. This was the smoking gun that President Nixon had violated federal law. As soon as this tape came out, pressure immediately mounted on President Nixon to resign from office. On Monday the tape came out on Thursday morning President Nixon became the first United States president, in fact the only United States president ever to resign from office. United States versus Nixon expressly cited to the Supreme Court decision in Marbury versus Madison because Nixon, like Marbury, established the proposition that it is the providence and duty of the judiciary department to say what the law is. Nixon, like Marbury, establishes no one. Not even the president of the United States is above the law. And as I'll continue to discuss with regard to executive power, there are cases that take the other approaches that I've mentioned. As I've said, even two and a quarter century of American history, there is no definitive answer to the question, when may the president act without express constitutional or statutory authority?
