The Great Cases: United States v. Nixon

The View from The Oval Office in 1972

Richard Nixon was not the first President to have his own conversations recorded. That was FDR. LBJ did it too. Nixon initially resisted this practice but after about two years in office found that recordings were the only way he could ensure that conversations were accurately and fully accessible later.

Unlike either Roosevelt or Johnson, only a small number of people knew that there were noise-activated tape recorders in the Oval Office, the Cabinet Room, and a few other places around the White House. It’s thought there were seven people who knew: Nixon himself, chief of staff H.R. Haldeman, deputy chief of staff Alexander Butterfield, Nixon’s personal secretary Rose Mary Woods, and three technicians from the Secret Service who’d installed the them. Many of the phones in those areas were tapped to automatic recorders also. Woods routinely made transcriptions of the tapes, though not all of them.

By 1972, Nixon must have felt his re-election prospects were not certain. He saw a sharply divided and polarized national culture. Perhaps he never really believed in his own personal popularity, or that the economy was actually strong. He had failed to end the Vietnam war as promised (indeed, he’d expanded it into Cambodia and Laos), and inflation had begun to sap the vitality of the economy despite wage and price controls imposed at his urging. Hypothesizing such uneasiness explains what happened later that summer because, as we can see clearly in retrospect, Nixon had fretted over what was actually a very strong political hand to play, against opponents who proved unable to rally against him.

If only he’d played the campaign with more confidence than he did, history would likely be very different.

 

A Bungled Burglary

On June 17, 1974, a security guard at the Watergate office complex noticed that five nighttime delivery workers who had come in at an oddly late hour, and signed in to go to the eighth floor, were for some reason on the sixth. He summoned the police, who arrived at about 1:30 a.m. They found five men, named Bernard Barker, Virgilio González, Eugenio Martínez, James W. McCord, Jr., and Frank Sturgis, in the offices of the Democratic National Committee, planting devices in the telephones and rifling through filing cabinets. ¹

Two days later, McCord was identified by the Washington Post as a Republican Party “security aide.” In fact, he worked for the Republican National Committee and Nixon’s re-election campaign, the Committee to Re-Elect the President, “CRP” or as it was more commonly called, “CREEP”. The other burglars were soon identified with an anti-Castro Cuban liberation movement; three of them had been involved with the unsuccessful Bay of Pigs invasion of 1961. ²

The reports of McCord’s association with CRP also inspired the newly-promoted Associate Director of the FBI, Mark Felt, ³ to begin surreptitiously feeding information to two reporters from the Post, Bob Woodward and Carl Bernstein. The reporters nicknamed him “Deep Throat” to protect his anonymity as a source. Money used to pay the burglars was traced, by both FBI investigators and the Post’s reporters, to CRP.

But before that happened, there was an election.

 

Democrats Can Always Find A Way to Lose

The 1972 Democratic National Convention was fractious, divisive, and considered politically “disastrous.” Despite getting less than a plurality of votes, George McGovern was nominated, and his platform of an immediate end to Vietnam on any terms available and a universal basic income, were portrayed by the GOP as insanely liberal to the point of being somehow at odds with fundamental elements of American culture.

McGovern’s running mate, Thomas Eagleton, was attacked as being mentally unstable after his history of depression and shock therapy (prescribed according to the medical wisdom of the day) and hounded into resigning the Vice-Presidential nomination. McGovern chose former French Ambassador Sargent Shriver, the late JFK’s brother-in-law and a man who had impressive non-political achievements but had never been elected to anything in his life, as Eagleton’s replacement.

Things never got better for McGovern despite a popular “end the war” platform. In November, Nixon won a landslide re-election. Excluding George Washington’s uncontested elections in 1789 and 1792, Nixon’s re-election was either the most one-sided, or the second-most one-sided, election in American history. ⁴ Which doesn’t necessarily mean Nixon was wrong to have sensed vulnerability earlier in the year, but it does make the decision to have tried to tap the DNC’s phones and read the files there seem foolish, at least in retrospect.

The guys who’d done that bit of “wet work” had botched the job and got caught, making a lot of people think that Nixon had something to do with it. Nearly everyone at the time recognized that trying to break the law and not succeeding in the enterprise is nevertheless criminal activity; an election result as decisive as Nixon’s was not thought relevant to the pall of illegitimacy cast by committing significant crimes to get back to the White House.

 

Special Prosecution

The Watergate burglars insisted during their trial that they had acted alone. The judge presiding over their trial, John J. Sirica, didn’t believe them. Sirica was nicknamed “Maximum John” for his tendency to impose the largest sentence allowed by the sentencing guidelines, but through the promise of reduced sentences, Judge Sirica encouraged the Watergate burglars to provide more information to prosecutors.

It turned out that the money to pay for their attempted burglary had come from some good-faith donors to CRP, and from some rather shady businessmen through CRP, to accounts under the control of Barker (one of the burglars), who reported to Hugh Sloan, CRP’s treasurer (the treasurer of a political finance committee is its top officer, responsible only to and usually a surrogate for the candidate). Sloan flipped under threat of prosecution, again with substantial pressure from Judge Sirica. He implicated three more members of Nixon’s political machine, including the infamous G. Gordon Liddy.

Liddy turned out to be the conduit between CRP and the burglars. He had used a different “slush fund,” this one created by then-Attorney General John Mitchell ⁵ and used to make a variety of surreptitious payments by Nixon’s Chief of Staff, H. R. Haldeman. Which meant that there was evidence that money which was supposed to be untraceably diverted out of a political campaign’s war chest had been illegally used by Nixon’s second-in-command and third-in-command.

Nixon’s public response to all of this was to attack the “biased liberal media.” White House staffers all insisted that no one knew about the break-in and all the campaign finance stuff was just ordinary politics being inflated out of proportion by a politicized media. Congress, unimpressed, demanded the appointment of a special prosecutor. ⁶ After starting with plea bargains wheedled by Judge Sirica from the burglars themselves, the special prosecutor worked his way into Nixon’s hierarchy, from the bottom up and eventually obtained cooperation from by-then resigned deputy chief of staff Butterfield. Eventually, it became a question of, “What did the President know, and when did he know it?” Prompted by pressure from the special prosecutor’s office and published investigations from the Washington Post, Butterfield had testified about the secret tape-recording system to Congress. Once he knew that they existed, the Special Prosecutor issued a subpoena to the White House for the tapes and any transcripts of them.

The White House responded by refusing to give them over, at first stating that there were over 3,000 hours of tapes and it was simply too much to do. The trial court handling the day-to-day filings of the Watergate investigation wasn’t buying that, as courts frequently don’t – “Turn over all the evidence and let the lawyers figure it out from there,” was then as is now the mantra on such matters.

The White House then protested that some of the tapes involved sensitive matters that had to be kept secret, the President said through his lawyers, things like national security and sensitive diplomacy. The Judge then ordered that the White House create an analogue to what is commonly called a “privilege log,” a list describing the tapes over which privilege was claimed, by time of start, time of finish, location, and identity of people participating in the taped conversation.

Upon review of the privilege log, the Special Prosecutor sent a new subpoena, specifying by date, location, and identity of participant, itemizing which tapes he wanted to review for evidence, eliminating some but not most of the tapes on the list.

To this, the White House responded by again refusing to turn over the tapes, this time invoking “Executive Privilege.”

 

The Privileged Executive

As articulated by Nixon’s attorneys at the time, “Executive Privilege” is the notion that unless the President and his advisors are free to deliberate about a variety of ideas, without fear of political repercussions, they will not be able to candidly assess the options for a wide variety of matters upon which they would be required to act. Without some deference to the need for open and honest deliberation, the Executive branch would lose a great deal of its ability to exercise any kind of discretion at all.

So, the conversations were not classified, as they were not discussing matters of national security, but they were allegedly privileged. The limits of this notion of privilege – a requirement that the President be granted this degree of deference because he was the President – were the core issue put before Judge Sirica. Who promptly ruled against the President.

Who immediately appealed. The Supreme Court agreed to hear the matter on expedited review.

 

Warren Burger Takes Control of The Opinion

Critics of Nixon would have had some reason to be apprehensive of how the Court would treat the case. Nixon himself had appointed four of the nine Justices.

According to a later profile of the Supreme Court, Chief Justice Warren Burger’s initial reaction to the Watergate affair was to question what, exactly, the President had done that was wrong. Indeed, the rumor – and there was then and is now no way to confirm it – was that Burger’s initial vote was to have been in favor of Nixon, because he saw the entire matter as nothing but partisan politics. But he switched his vote, so he could assign the authorship of the opinion to himself. This was something Burger had done often before, a tactic his colleagues and their law clerks called “conniving.”

It’s worthwhile to note that the most junior of the Nixon-appointed Justices, then-Associate Justice William H. Rehnquist, did not take part in the case. He had only recently worked within the Nixon Administration and believed his association with the case, if he found in favor of Nixon, would create an appearance of impropriety. Rehnquist therefore recused himself.

According to the rumors, as the intellectual leader of the liberal faction, Associate Justice William Brennan, stepped up to do most of the writing, Burger changed his vote to invoke his status as Chief Justice and assume primacy in assigning the drafting of the opinion.

The result is an opinion with many fragmentary steps, many of no interest to any but what lawyers call “procedure junkies.” The core of the opinion initially tried to split the baby between the Executive’s power and the Judiciary’s, suggesting that Executive Privilege could be invoked and left unquestioned by the courts when it addressed a “core function” of the Presidency. Burger’s colleagues persuaded him away from that position. They could not, however, get the Chief to sign on to a punchier, more powerfully-worded rebuke of Nixon’s overreach in claiming privilege to conceal his own involvement in directing criminal activity.

The result was Burger structuring a complex opinion in multiple parts, with nearly every one of the eight participating Justices taking the lead on a different part. And the whole opinion is leaden, dull, and procedural in flavor – as though Burger were consciously trying to subsume his assertion of the Judicial Branch’s prerogatives into the soporific language of a picayune procedural dispute, and trying to ignore, as much as possible, the fact that this was likely to be the coup de gras on Richard Nixon’s Presidency.

 

What’s an Unindicted Co-Conspirator to Do?

The active prosecution in which the subpoena was issued was against Nixon associates John Mitchell and six other close Nixon associates. Nixon himself was named as their “unindicted co-conspirator”, because the grand jury had been instructed that it lacked power to indict Nixon because Nixon was a sitting President. ⁷ The Supreme Court noted that this was a questionable proposition but declined to rule on the matter as unnecessary to resolve the issue of the case before it.

A subpoena respondent generally can invoke the Fifth Amendment in response to a subpoena. It’s entirely possible that a public official cannot refuse to produce public records in response to a subpoena on the grounds that those records show that the official committed a crime. It was not necessary to resolve that issue in the Nixon case. Nixon waived any Fifth Amendment rights he might have otherwise had by failing to invoke them, trying to politically survive the scandal by insisting that he was not complicit in any crime. This narrowed the issue before the Court to whether Nixon, as President, was required to produce the tapes.  ⁸

 

“But I’m The Boss of Him!”

Nixon’s first line of defense to this was the first major invocation of what has become known as the “Unitary Executive” theory. Briefly, the theory is that there is only one President, who controls everything that happens in the executive branch atop its hierarchy. That hierarchy includes the Department of Justice, which in turn includes the office of the Special Prosecutor, rendering compliance with the subpoena an “intra-Branch dispute.”

Assuming that there is only one executive command structure, can the judiciary intervene within it? The Court said yes, because prosecution of a criminal matter is a judicial activity, not an executive one. Furthermore, the Special Prosecutor had been created pursuant to a set of laws and regulations, which delegated substantial independence and discretion to the Special Prosecutor except for “extraordinary improprieties” beyond the discretion of the President to direct and control.

So either way, the special prosecutor held authority to issue subpoenas on his own authority to develop and pursue evidence even in the event of a disagreement between himself and the Attorney General. ⁹ Note that this indicates the Court did not need to resolve whether other officials within the Executive Branch might under some legal circumstances not be ultimately responsible to the President, an issue which remains formally unresolved to this day.

 

Unreasonable Oppression and Undue Burden

Next, Nixon challenged whether the subpoena sought so many records as to be “unreasonable or oppressive,” as he’d attempted to before Judge Sirica.

And to similar result: the Court found that the Oval Office tapes were unique evidence unavailable from any other source, and had been identified with reasonable particularity by the Special Prosecutor. They were likely to contain conversations of relevance to the prosecution of Mitchell and the other political defendants. So, even if there were a lot of tapes, they had to be produced.

Which brings us to the reason U.S. v. Nixon is really legally interesting: we see the limits of the concept of “executive privilege” as one of the inherent powers of the presidency.

 

Justiciability of Executive Privilege

The first section of the analysis of the executive privilege argument shows signs of some pushback against Burger’s efforts to render the decision as anodyne as possible. There is a callback to Marbury v. Madison and Youngstown Sheet & Tube Co. v. Sawyer, assertions of the importance of judicial independence as the ultimate arbiter of the Constitution’s meaning. But the sneakiest thing is this bit of description of Nixon’s arguments:

Since this Court has consistently exercised the power to construe and delineate claims arising under express powers, it must follow that the Court has authority to interpret claims with respect to powers alleged to derive from enumerated powers.

It’s subtle, to be sure, but this passage points out that executive privilege – the shielding of deliberations within the presidency from public scrutiny – is an implied power, not an enumerated power. For Burger, who had been appointed as a “strict constructionist,” that becomes a logical trap foisted upon him, to deny the existence of executive privilege altogether, and a challenge to supporters of Nixon for hypocrisy in critique of other decisions (e.g., the previous year’s still-controversial Roe v. Wade decision) relying upon the notion of implied powers and penumbral extensions of express powers, which was the motive intellectual force behind the intellectual legal doctrine of “originalism” and the founding of the Federalist Society in 1982 as that school of thought’s principal exponent.

Personally, I can’t believe Burger wrote this with his own pen. There’s no real way to know, but to me this smacks of the political wit of Thurgood Marshall. I’m a little surprised Burger agreed to leave it in, but he may have had no choice but either do that or lose control of the majority.

 

The Limit to Permissible Executive Deliberation

After all of this jumping around, looking for places to avoid having to make a decision and finding none, Burger then recognizes that yes, there is such a thing as executive privilege: a president can insulate a document from disclosure in judicial process. Burger states several times that internal deliberative documents of the president are “presumptively” privileged. However,

…neither the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President’s need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.

So, the president needs to indicate, truthfully, that the contents of a communication address “military, diplomatic, or sensitive national security secrets” in order to protect it from disclosure. Otherwise, it goes to an in camera review. That means that the president turns over the non-national security protected documents to a judge, and the judge reviews them all. At that point, upon what scale is the judge to decide? Whether the conversation is incriminating.

There is much language about the need of the president to have candid, thorough, and even brusque discussions of political options which might be politically unpopular, and great deference to be afforded to the Executive as the co-equal branch of government.¹⁰ But “…we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution.”

In other words, you can discuss something unpopular but legal, Mr. President, and expect that the judge won’t let that go to the prosecution. But if you discuss something that is potentially legally incriminating, cough it up. “The President’s broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases.”

The Oval Office tapes had to be released to Judge Sirica, and he would decide if there was anything incriminating in them or not. It is not for Richard Nixon to decide what evidence could be released in a criminal prosecution implicating himself.

And thus, many tapes and transcripts were released to Judge Sirica. The legal case ended there: Nixon lost.

 

What Was on Those Tapes Anyway?

The critical tape was the one with eighteen minutes missing, ostensibly erased on accident by Woods. The surviving portions of the ninety-minute conversation between Nixon and Haldeman have been transcribed and can be read today courtesy of the Richard M. Nixon Presidential Library.

Reading this “smoking gun” transcript may seem a little dense. Keep in mind a few things as you work your way through the confusing discussion of Cubans, Mexican banks, and bussing that the key part comes on page five:

HALDEMAN: Well, if they will. But then we’re relying on more and more people all the time. That’s the problem. And ah, they’ll stop if we could, if we take this other step.
PRESIDENT: All right. Fine.
HALDEMAN: And, and they seem to feel the thing to do is get them to stop?
PRESIDENT: Right, fine.
HALDEMAN: They say the only way to do that is from White House instructions. And it’s got to be to [Director of the CIA Richard] Helms and, ah, what’s his name…? [Deputy Director of the CIA Vernon] Walters.
PRESIDENT: Walters.
HALDEMAN: And the proposal would be that Ehrlichman [coughs] and I call them in.
PRESIDENT: All right, fine.

(Emphases added.)

The thing Nixon and Haldeman want stopped is the investigation into the Watergate break-in, which had happened five and a half days beforehand. Because – as the remainder of the conversation makes clear – Nixon knows full well that if they continue investigating it, they’re going to find that the burglary was paid for with CRP money that had been hap-handedly laundered through a Mexican bank.

Nixon says that Haldeman should instruct the director of the CIA to falsely tell the FBI that it’s a national security issue and demand that the FBI stop investigating the burglary.

That’s why they called it the “smoking gun”: reduced into simpler words, it means “Haldeman, you and Erlichman go use my authority as President and stop the FBI from further investigating the Watergate break-in.”

 

Read It for The Articles

In compliance with the Court’s ruling, this and sixty-three other tapes were released in response to the Supreme Court’s ruling on August 5, 1974. Nixon initially claimed that in prior public statements denying any wrongdoing or obstruction of the investigation, he had suffered a “lapse of memory,” and indicated that he would fight against impeachment proceedings.

By then, three articles of impeachment had been passed by the House Judiciary Committee, on July 27, 1974. The first of these read:

On June 17, 1972, and prior thereto, agents of the Committee for the Re-election of the President committed unlawful entry of the headquarters of the Democratic National Committee in Washington, District of Columbia, for the purpose of securing political intelligence. Subsequent thereto, Richard M. Nixon, using the powers of his high office, engaged personally and through his close subordinates and agents, in a course of conduct or plan designed to delay, impede, and obstruct the investigation of such illegal entry; to cover up, conceal and protect those responsible; and to conceal the existence and scope of other unlawful covert activities.

Six Republicans joined twenty-one Democrats on that article. A separate article of impeachment passed by an even wider margin for not complying with Congress’ subpoena on the theory that Nixon had improperly withheld the tapes until the Supreme Court had ordered their release to the Special Prosecutor’s office.

Before the ”smoking gun” tape was released, there was a good chance that more than one-third of the Senate would have acquitted Nixon of any article of impeachment; though Democrats controlled the Senate, they didn’t have enough of a super majority to remove Nixon from office without help from their Republican colleagues. But after the tape was released, the political landscape began to change. Quickly.

 

The Endgame

On August 7, a day and a half after the tapes were released, Senate Minority Leader Hugh Scott of Pennsylvania met with Nixon in the White House. It’s easy to imagine Scott taking his trademark pipe out of his mouth and waving it about in his hand while he delivered the bad news. Words to the effect of, “Mr. President, you don’t have the votes.” Nixon withdrew to his private chambers early that night.

At nine p.m. (eastern time) on August 8, Nixon summoned a television camera to the Oval Office, and all three networks and most radio stations broke into regularly-scheduled programming to broadcast his remarks. Nixon announced on live T.V. that he would resign, effective at noon the next day. ¹¹

A month later, President Ford issued a “full, free, and unconditional pardon” to Nixon for any crime against the United States Nixon had committed while serving as president. Nixon briefly hesitated, but then accepted the pardon. The very active talk of indicting now-private-citizen Nixon immediately ceased, and Ford’s popularity rating immediately dropped from 71% to 50%. Ford lost his bid for election in 1976, insisting until his dying day that it was runaway inflation, not the pardon, that was responsible for Jimmy Carter unseating him.

Nixon kept a low public profile for about ten years, and then began writing books and giving lectures about foreign policy, presenting himself as an “elder statesman” able to opine about the pending issues facing the world from “above the fray.” He died in 1994.

 

A National Excision

Chief Justice Burger’s opinion was not a clarion call for the moral right in the manner of Brown v. Board of Education, but it did attempt to make a legal ruling rather than a political one. Burger had to be persuaded and perhaps cajoled and manipulated by his colleagues to getting there, or perhaps he had to compromise his preferences and vote against his own patron, but however he did get there, he got there.

It would overstate the case to say that the Supreme Court unmade a President with its decision in U.S. v. Nixon. Nixon was already in a great deal of political trouble, before the Court made its decision. But had this case been decided differently, it is within the realm of imagination that at least 34 Republican Senators would have stood by their party’s president and called him the victim of malfeasance by his overeager advisors, or at least insisted that there was a “reasonable doubt” that Nixon knew what was going on. The “smoking gun” conversation, where Nixon authorized Haldeman to tell the CIA Director to lie and stop the FBI investigation of the burglary, denied them the ability to make such a claim, leading to Senator Scott’s no doubt awkward conversation with Nixon (which was not recorded; Nixon had ordered the recorders turned off the day after Butterfield testified about them.)

It was painful for the nation to live through the consequence of the decision – painful but necessary, such that even his most fervid supporters had no choice but to see Richard Nixon for who he truly was. The “smoking gun” tape alone demonstrates the extent to which Nixon tried to subvert the rule of law, so that he personally could hold on to political power.

Two generations’ worth of perspective allows us to see with some clarity that removal of such a man from the government’s highest office, from the position of trust and honor inherent in the presidency, was necessary.

U.S. v. Nixon was, beyond doubt, the most consequential decision Burger ever wrote and probably the most politically consequential decision between Brown v. Board of Education and Bush v. Gore. However inelegantly he did it, Warren Burger may well have been the man who held the United States of America together as a lawful nation for the next two generations, contrary to the political pressures that had propelled him into that position.

 

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Would You Like to Know More?

If you’re interested in reading further, the full text of the case can be found at U.S. v. Nixon (1974) 418 U.S. 683. Perhaps more interesting than Warren Burger’s leaden prose in the opinion proper would be Woodward & Armstrong’s The Brethren (1979) which includes much spilt tea about the making of this decision as well as the general internal dysfunction of collegiality and depressing operational cynicism that characterized the Burger Court. Numerous books have been written about Watergate and Richard Nixon’s disgrace.

1. In fact, they had previously entered, but had improperly installed the wiretaps. The 1:30 a.m. entry was an attempt to correct their mistakes from the previous break-in, and their entry was delayed for several hours because a 21-year-old DNC intern decided to work late that night.
2. Martínez’s post-conviction account of the burglary, if credited, indicates that at least three of the burglars believed they were engaged in CIA-sponsored anti-Castro activity being directed by Republican operatives G. Gordon Liddy and E. Howard Hunt, searching for Cuban money being funneled into McGovern’s campaign.
3. There was tumult at the FBI as well – longtime director J. Edgar Hoover had died on May 4 of 1972, 12 days before the Watergate arrests; rather than promote Hoover’s lieutenant Clyde Tolson, Nixon instead promoted L. Patrick Gray, a Nixon loyalist. Gray recommended Felt for the #2 position, whereupon Tolson resigned. Gray would become seriously implicated in the events that followed.
4. It is only rivalled by Ronald Reagan defeating Walter Mondale in 1984.
5. President Nixon had caused the FBI to waive a background investigation of Mitchell before his appointment to Attorney General in early 1969, and then in 1972, Mitchell resigned to manage Nixon’s re-election campaign full-time.
6. For brevity’s purposes, I elide the also-fascinating story of how three different men filled that position and how wrestling with the special prosecutor brought people like Richard Cheney, Robert Bork, Donald Rumsfeld, Antonin Scalia, and Roger Stone to national prominence, at least within the conservative movement.
7. This was pursuant to a policy of the Justice Department, written by John Mitchell himself, after the Watergate burglary, which remains DoJ policy to this day.
8. I skip herein Burger’s discussion of whether the case was properly “in” the Court of Appeal, which indeed involved spilling over 1,100 words interpreting the word “in” before concluding that, the parties having stipulated and the case being of obvious importance, the Supreme Court could indeed review the matter in the first place.
9. This law has since been repealed; its contemporary successor allows for a “Special Counsel,” who is functionally a U.S. Attorney working on a subject matter rather than geographical delegation of power from the Attorney General.
10. Again, I see Burger calling for the more liberal and more conservative Nixon-appointed Justices to join forces produces a bland reference to “the Executive” rather than to “the President,” sidestepping any embrace of the “Unitary Executive” theory discussed above.
11. My favorite bit of Watergate trivia is that Nixon’s last meal in the White House was a bowl of cottage cheese and a few slices of grayish, disappointing-looking pineapple, served to him at the Challenger desk on White House flatware, with a glass of milk. I imagine he also washed it down with black coffee. To this day, when I enjoy a meal of cottage cheese and pineapple, I call it a “Nixon salad,” although I’m probably in my own private Idaho for doing this.