Speaker & Gavel

 

Volume 41/2004

 

 

 

Maintaining Institutional Power and Constitutional Principles:

A Rhetorical Analysis of United States v. Nixon

R. Scott Medsker & D. F. McDorman

 

Monticello’s Master: Sally Hemings and the Deconstruction

of the Patriot Archetype

Betsy McCann & Desireé Rowe

 

Computer Mediated Communication and Adult Learners:

A Case Study of Messages Using the Hyperpersonal Framework

Linda B. Dickmeyer & Ronda Knox

 

Points of Stasis in the 1960 and 2000 Presidential Debates

Kevin Stein

 

The Role of Spokesperson in Ambiguous and Complex Crises: The CDC and Anthrax

M. Scott Barrett, Kathryn C. Hasbargen, Anthony Ocana,

Vern Markey, Matthew P. Berg, Scott Grand & Timothy L. Sellnow

 

 

 

 

 

 

 

 

 

Journal of

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Speaker & Gavel

 

Delta Sigma Rho—Tau Kappa Alpha

National Honorary Forensic Society

www.dsr-tka.org/

 

 

EDITORIAL STAFF

 

Editor     Daniel Cronn-Mills

                Minnesota State University, Mankato

                daniel.cronn-mills@mnsu.edu

 

Office     Kathy Steiner

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Editor’s Note:

S&G went to an entire online format with volume 41/2004 of the journal. The journal will be available online at: www.dsr-tka.org/ The layout and design of the journal will not change in the online format. The journal will be available online as a pdf document. A pdf document is identical to a traditional hardcopy journal. We hope enjoy and utilize the new format.


 

Speaker & Gavel

                                http://www.dsr-tka.org/     Volume 41 / 2004

 

 

Table of Contents

 

Maintaining Institutional Power and Constitutional Principles:          1

A Rhetorical Analysis of United States v. Nixon

R. Scott Medsker

Todd F. McDorman

 

Monticello’s Master:                                                                                    20

Sally Hemings and the Deconstruction of the Patriot Archetype

Betsy McCann

Desireé Rowe

 

Computer Mediated Communication and Adult Learners:                   34

A Case Study of Messages using the Hyperpersonal Framework

Linda B. Dickmeyer

Ronda Knox

 

Points of Stasis in the 1960 and 2000 Presidential Debates                51

Kevin Stein

 

The Role of Spokesperson in Ambiguous and Complex Crises:          63

The CDC and Anthrax

M. Scott Barrett

Kathryn C. Hasbargen

Anthony Ocana,

Vern Markey

Matthew P. Berg

Scott Grand

Timothy L. Sellnow


Speaker & Gavel

Delta Sigma Rho—Tau Kappa Alpha

National Honorary Forensic Society

www.dsr-tka.org/

 

Editor

       Daniel Cronn-Mills

         230 Armstrong Hall

         Minnesota State University

         Mankato, MN 56001

         507.389.2213

         daniel.cronn-mills@mnsu.edu

 

Editorial Board

Susan J. Balther, DePauw U

Jon Bruschke, CSU, Fullerton

Ann Burnett, North Dakota State U

James Dittus, Highland CC

Lisa Flores, Arizona State U

David Gaer, Laramie County CC

JanieM. Harden Fritz, Duquesne U

Karla Leeper, Baylor U

Allan Louden, Wake Forest U

Mark Meister, North Dakota State U

Edward Panetta, U of Georgia

Jeff Pierson, Bridgewater C

Kimberely Powell, Luther C

David Williams, Texas Tech U

 

Submission Guidelines

S&G publishes refereed articles addressing all aspects of communication theory and practice. Authors should submit three copies of their manuscript prepared according to the latest edition of MLA or APA guidelines. Use minimal endnotes only for exposition or explanation, not as bibliographic citations. Include a cover letter identifying author(s) and affiliation(s). Remove all references in the manuscript to author and affiliation to facilitate blind review. S&G encourages and promotes undergraduate and graduate research. Submissions from undergraduate and graduate students should be identified as such on the cover letter. Enclose a computer disk with an accurate copy of your manuscript. Clearly label the the disk with OS platform (e.g., Macintosh, Windows 3.1) and word processing software.


 

Maintaining Institutional Power

and Constitutional Principles:

A Rhetorical Analysis of United States v. Nixon

 

R. Scott Medsker and Todd F. McDorman

 

 

While president, Richard Milhouse Nixon was almost obsessive in his desire to control the flow of information. One example of Nixon’s pre-occupation is demonstrated in the lengths he went to identify who was leaking national security information contained in the Pentagon Papers. Angered by FBI Director J. Edgar Hoover’s refusal to investigate the source of these leaks, Nixon created a group to do the task himself (Kutler 112). These henchmen, known as “the Plumbers,” were subsequently used by Nixon to spy on both his own administration and his opponents in the Democratic Party; and whether one deems it fitting or ironic, eventually contributed to his loss of the presidency.

On June 17, 1972, seven Nixon neophytes broke into the Democratic National Headquarters in the Watergate complex to wiretap phones and obtain campaign information. While the seven men were arrested and eventually convicted for their crime, who orchestrated the break-in remained a mystery, although some quickly suggested that the orders came from within the White House (Apple 1). In January 1973, after the general election, enough concern remained to justify the formation of a Congressional committee to investigate allegations of White House misconduct. However, the initial witness testimony, which was identical from all involved, failed to implicate President Nixon or his administration.

During the third week of March, two members of Nixon’s team broke rank and gave critical information that did in fact implicate the president. On March 19, James McCord, a former Nixon security advisor and one of the convicted Watergate burglars, wrote to Judge Sirca, who presided over his trial, and informed Sirca that White House officials had worked to keep the seven intruders silent. On March 22, FBI Director Patrick Gray further fueled speculation by telling a Senate committee that White House counsel had “probably lied” during the investigation. Subsequently, on March 26, 1973 the Watergate grand jury convened for the first time (Apple 2-3).

As the investigation proceeded, a Special Prosecutor was appointed. He was granted sweeping power and charged to “investigate, subpoena, [and] bring suit in court against anyone suspected of criminal wrongdoing in the campaign of 1972, up to and through the White House to the President himself” (White 250). The Special Prosecutor subsequently asked the District Court to issue a subpoena duces tecum1 to compel President Nixon to supply critical information. Nixon’s resistance to the subpoena eventually brought United States v. Nixon before the Supreme Court—and provides the starting point for this analysis.

Watergate is an event that influenced a generation and their beliefs in American government. Likewise, rhetorical scholars have been fascinated with the scandal, spending considerable energy addressing the issue from multiple perspectives. These analyses have examined the apologia of Nixon (Harrell, Ware, and Linkugel; King), his resignation (Rosenfeld; Wilson), the general course of events that contributed to the cover up (Gouran; Schuetz), and the aftermath of the scandal (Blair; Klumpp and Lukehart). Noticeably absent, however, is a detailed analysis of the rhetoric that most influenced the trajectory of the crisis—the Supreme Court’s decision in United States v. Nixon. A ruling rife with social and legal implications, it has influenced political decision making for nearly thirty years. Immediately, it prompted the first resignation of a President of the United States. In terms of legal repercussions, it has been suggested that the decision “will probably become one of the most important expansions of judicial authority in the history of the Republic” (Westin xxi).

In examining these implications we argue that the Court’s Nixon decision was a uniquely strategic response to a complex rhetorical situation. In fact, the elements of the situation were so fundamental to the tenor of the Court’s response that this essay’s framework is drawn from Lloyd F. Bitzer’s construction of the rhetorical situation. The use of this system will allow for deeper consideration of the context of United States v. Nixon as well as assessment of the legal text as responsive to that context.

The analysis reveals that in resolving the case the Court was faced with concerns on two fronts. First, on an institutional front, the Court sought to maintain their ability to perform their duties against encroaching claims from the executive branch. Simultaneously, the Court worked to balance the sacred doctrine of American jurisprudence that “no man is above the law” with the status of the President as “first among equals.” Utilizing Bitzer’s rhetorical situation we examine how the Court responded to the constraints, exigencies, and audiences present in this extraordinary situation, ultimately arguing that the Court skillfully assessed a complex situation and offered a rhetorical response that not only maintained their institutional power in a tenuous time but also preserved the basic tenets of American judicial theory.

 

The Rhetorical Situation as an Approach to Legal Rhetoric

Perhaps in response to Lucaites’ challenge to rhetorical scholars, attention to the rhetorical dimensions of legal decision-making has grown in recent years. In the past decade scholars of legal rhetoric, possessing varied goals, have offered important observations about the intermingling of law and society (Hasian; Hasian, Condit, and Lucaites; Sullivan and Goldzwig; Rountree). In bringing social considerations to the reading of judicial opinions such work has reinforced Prentice’s claim that “judicial rhetoric is a form of argument that seeks to persuade listeners of the legitimacy of particular uses of power” (87). For instance, Critical Legal Studies scholars have addressed contradictions and deep-level incoherence within texts that legitimize unjust systems of power and distribution of wealth. One investigation in this tradition undertaken by Hasian examined the functions of law as sword, shield, and menace within Buck v. Bell and the eugenics controversy. Others, such as Rountree’s pentadic analysis of Korematsu v. United States, have sought to understand the relationships of actors, actions, and motives in the expression of judicial rhetorical power. Finally, numerous scholars have explored the moral implications of ideologically charged decisions (Srader; Sullivan and Goldzwig). Regardless of the approach used, it is clear that in briefs, oral arguments, and judicial opinions rhetorical expressions of power are central to understanding the meaning and implications of law.

One approach for reading rhetorical dimensions of the law that has received little attention is Bitzer’s conception of the rhetorical situation. While the idea is often dismissed as a pre-critical descriptive tool, Bitzer’s concept has a cozy fit with the operation of the law. For instance, Bitzer argues that the function of rhetoric is “ultimately to produce action or change in the world” (250). Such a function is nearly identical to that of the law in its efforts to control, regulate, or promote certain actions and behaviors. In this sense, Bitzer’s treatment of rhetoric within the rhetorical situation could be used to provide perspective on the workings of any Court ruling. However, other approaches to judicial rhetoric will often provide more nuanced analyses due to unique factors found in each decision.

Still, the mapping of the rhetorical situation in terms of exigence, audience, and constraints is also an accurate mapping of the judicial decision making process from the acceptance of a case for oral argument to the rendering of an opinion. Bitzer defines exigence as “an imperfection marked by urgency . . . a defect, an obstacle, something waiting to be done, a thing which is other than it should be” (252). Some type of exigence or “something waiting to be done” marks every Supreme Court case and each judicial decision is written in response to a specific obstacle, defect, or situation that is not as one party feels it should be (Prentice 94). Bitzer’s point that every rhetorical utterance is controlled by situational factors such as an exigence mirrors the petitioners’ presentation of a legal claim. In United States v. Nixon the exigencies include both a need to fulfill a subpoena and a threat to the Court’s status.

Attention to audience is required according to Bitzer because “rhetorical discourse produces change by influencing the decision and action of persons who function as mediators of change” (253). The practice of this principle might be observed in the opinions written by Supreme Court justices who must consider a number of separate and distinct constituencies, interests, and reactions (Prentice 95). These groups, to note only a few, may include the public, the litigants, or the other justices. What makes United States v. Nixon unique and gives special emphasis to audience is that the key constituency is the most powerful person in the political hierarchy—the president. Thus rather than a generic concern for audience, this controversy presents a particularized audience that makes the lens of the rhetorical situation particularly profound.

The final element of the rhetorical situation concerns the relevant constraints. In a judicial context, the constraints consist of “persons, events, objects, and relations” that the Court must consider when writing an opinion because “they have the power to constrain decision and action needed to modify exigence” (Prentice 98). While traditional legal constraints such as the Constitution, a lack of fiat while needing to compel compliance, and American ideology are relevant to United States v. Nixon, unique claims concerning jurisdiction and justiciability present special obstacles in the controversy. In issuing its judgment the Court must, to the best of its ability, circumvent, consider, or preferably utilize these constraints to create the most effective opinion possible (Prentice 98).

The use of the rhetorical situation as an approach to legal rhetoric has been explored previously by Robert Prentice in the Arizona Law Review. For his analysis Prentice selected Brown v. Board of Education because “more is known about the decision-making process in Brown than in any other case” (102). In Brown, the inflammatory nature of the issues forced the Court to realize that the manner in which they presented their “ruling would be no less important than the substantive content of the opinion” (Prentice 103). The result of Prentice’s investigation is a quality analysis by a legal scholar that at times underestimates the importance or impact of rhetorical subtleties. In contrast, in this analysis rhetorical scholars address a legal controversy in hopes of providing a more nuanced treatment of rhetoric (while no doubt opening ourselves up to similar charges concerning legal subtleties). While the subject matter of the analyses is vastly different, the resolution of a sensitive subject with a high probability of provoking disobedience represents a parallel between Brown and Nixon. Thus for this and similar reasons this essay employs the rhetorical situation to examine United States v. Nixon.

The analysis proceeds by exploring with additional detail how the rhetorical situation can be an effective tool to evaluate strategic decisions in the legal sphere. That is rather than serving only a descriptive or pre-critical function, evaluation of complex situations can be fundamental to successful legal decision making, as the Supreme Court’s decision in United States v. Nixon demonstrates.

 

Negotiating the Constraints:

Determining Jurisdiction and Justiciability

in United States v. Nixon

In any given legal dispute there are likely to be numerous constraints operating in conflict with one another. Most importantly, each constraint has “the power to constrain decision and action needed” to address an exigence before the Supreme Court (Bitzer 254). These constraints may consist of social norms, statutes, criminal law, past precedent, or the Constitution. While constraints such as past precedent, the Constitution, and institutional rules are typical in nearly every case, in United States v. Nixon the Court effectively juggled more difficult challenges to their jurisdiction and the justiciability of the issue. These constraints initially presented barriers to the Court’s ability to review the issue and thereby resolve the exigence.

Before addressing the legal merit of claims proffered by Nixon and the Special Prosecutor, the Supreme Court had to first determine if it had jurisdiction over the case. In most respects this is a fairly generic constraint. In every case, whether it is a criminal case in a District Court or a case of national importance in the Supreme Court, the question of whether the implicated court has authority to adjudicate the controversy must be decided. In Nixon, the Court acknowledged the a priori nature of this issue by calling it the “threshold question” (690) in the case.

While jurisdiction is a requirement for any court to hear a legal controversy, additional explanation allows full appreciation of the complicated nature of this question and the challenge it presented. In appellate courts, such as the Court of Appeals or the Supreme Court, one rarely sees argument over specific motions but instead entire decisions are appealed from lower courts. This is because in order to create a judiciary that is efficient as well as to avoid piecemeal reviews of cases, the jurisdiction of the Court of Appeals encompasses only the “final decisions of the district courts” (United States v. Nixon 690), thus typically excluding motions such as the subpoena duces tecum around which this case revolved.

At first glance, therefore, jurisdiction appeared to present a constraint on the Supreme Court’s ability to review and resolve United States v. Nixon. If the Court could not hear the case, they obviously could not hand down a decision. On the other hand, by claiming jurisdiction, it was possible that the Court would appear overly eager to settle the issue. To navigate the tension, the Court turned to the precedent set by prior cases. Specifically, the Court reasoned that Nixon fell within an exception to the “finality” requirement. Utilizing United States v. Ryan, the Court concluded that the case was properly appealable because it met the conditions of a “limited class of cases where denial of immediate review would render impossible any review whatsoever of an individual’s claim” (Ryan 533; Nixon 691). With the case properly “in” the Court of Appeals, the case was also properly before the Supreme Court. Wisely, the Court realized that citing past precedent could not only establish jurisdiction, but also create the sense that the Court was obligated—that they had no choice—except to resolve the controversy. This allowed review of the matter while at the same time avoiding the appearance of a Court eager to delve into matters of the Executive Branch.

In explaining its reasoning the Court was also careful to pay deference to the high office Nixon held. For instance, in referencing Ryan’s determination that to risk contempt for defying a court’s order is not an undue burden for the ordinary citizen, the Court acknowledged the special standing of the president. Preserving the maxim that the president is the “first among equals,” the Court used precedent to demonstrate their desire to prevent an “unnecessary occasion for constitutional confrontation between two branches of government” (United States v. Nixon 692) by requiring Nixon to “place himself in the posture of disobeying an order of a court simply to trigger the procedural mechanism for review” (691). Such a result would not only be “unseemly” but “the issue [of] whether a President can be cited for contempt could itself engender protracted litigation, and would further delay both review . . . and the ultimate termination” of the controversy (691-92). By delicately crafting an opinion that created a clear attempt to present the image of facilitating the needs of the President, the Court maneuvered to combine the power of precedent with calculated deference to both Nixon and the office of the presidency in order to navigate what could have been a barrier to resolving the exigence.

The second key constraint for the Court was the question of justiciability. In order for the Court to hear a case it must present a resolvable issue that is not a strictly political question (Baker v. Carr). If the issue was an intra-branch dispute, as Nixon’s counselors contended, the Court would have no authority to intervene. Just as they did in addressing the question of jurisdiction, the Court carefully chose its words so as to not offend the President, even going so far as to suggest that the Executive Branch could have avoided the legal controversy.

Arguing in the Court of Appeals, Nixon’s attorneys contended the matter was an intra-branch dispute between the President and the Special Prosecutor, who serves as an extension of the Department of Justice, a section of the Executive Branch, therefore leaving the Court without jurisdiction. After this argument was rejected by the Court of Appeals it was renewed before the Supreme Court in an alternative form, with Nixon’s attorneys arguing that the political nature of the matter was beyond the purview of the Court and hence not justiciable. To put it differently, since the chain of command flows through the Executive Branch from President to Attorney General to Special Prosecutor, Nixon’s counselors argued that the Court could not tell the President how to manage his branch, effectively barring the Court from providing any relief to the exigence.

To refute this claim and negotiate their way around the barrier of justiciability, the Court relied upon the Constitution and sections of U.S. Code which define the ability of the Attorney General to appoint subordinate officers to discharge relevant duties. The Court explains:

Acting pursuant to those statutes, the Attorney General has delegated the authority to represent the United States in these particular matters to a Special Prosecutor with unique authority and tenure. The regulation gives the Special Prosecutor explicit power to contest the invocation of executive privilege in the process of seeking evidence deemed relevant to the performance of these specially delegated duties. (United States v. Nixon 694-95)

Here the Court explained that while it is true that the Special Prosecutor is an agent of the Executive Branch, his duties allow him to turn to the Judicial Branch for aid should he be hindered in gathering the evidence needed to complete his function.

While this passage is certainly important as it validated the actions of the Special Prosecutor, footnote 8 registered the fatal blow to Nixon’s argument. In that footnote the Court cited federal register rules defining the power of the Special Prosecutor, which was given full authority “to contest the assertion of ‘Executive Privilege.’” Moreover, the footnote explained the existence of “assurances given by the President to the Attorney General that the President will not exercise his Constitutional powers . . . to limit the independence that he [the Special Prosecutor] is hereby given” (United States v. Nixon 694-95). The footnote removes any ambiguity that might exist in the text of the opinion. The question of justiciability is resolved—the Special Prosecutor has the right to turn to the Judicial Branch for help in completing his task. To include this footnote in the body of the text, in plain sight if you will, might have been perceived as charging that either Nixon’s counsel was so incompetent in their briefs that they did not know of this assurance or that they knowingly presenting the Court false information. Regardless of which was true, either would be an insult and an embarrassment to the President, making him hostile to any decision from the Court. Given that the condition was too important to omit the Court wisely placed it in the footnote, thus preserving the record while also allowing the President to keep his dignity.

Perhaps most importantly, in an attempt to again show that they are not zealous to encroach on the Executive Branch, the Court noted that it was “theoretically possible for the Attorney General to amend or revoke the regulation defining the Special Prosecutor’s authority. But he has not done so” (United States v. Nixon 696). The Court simultaneously reminds the reader that so long as the regulation delegating the Special Prosecutor “remains in force the Executive Branch is bound by it, and indeed the United States as the sovereign composed of the three branches is bound to respect and to enforce it” (696, emphasis added). By suggesting that the Executive could have avoided the problem if the Attorney General had amended the Special Prosecutor’s responsibilities, the Court not only displaced some of the responsibility for the decision, but also showed the executive branch that future better management of the Special Prosecutor might avoid similar situations.2

The Court concluded their answer to the question of justiciability with a basic judicial lesson on the meaning of the concept. Of course there was the “controversy” or “conflict” over whether or not the Special Prosecutor could take his boss to court, but the Court writes “controversy means more than disagreement and conflict; rather it means the kind of controversy courts traditionally resolve” (United States v. Nixon 696). The use of the word “traditionally” reasserts that what the Court did was nothing radical, but rather was the continuing function of their constitutional role. The Court quotes U.S. v. ICC, another benchmark in legal history, when they say “Whatever the correct answer on the merits, these issues are ‘of a type which are traditionally justiciable’” (430; United States v. Nixon 697). In doing so the Court declared that it is their role, as specified by precedent, to decide such conflicts.

Thus ultimately the Court effectively confronted issues related to its institutional authority and American jurisprudence. In preserving the institutional authority and power of the Court, they invoked their history and precedents and cited federal regulations and sections of U.S. Code to assert that their action in this case was not revolutionary. Without explicitly stating it, the Court created the perception that rather than encroaching upon the territory of the Executive Branch they were simply maintaining their institutional authority and power as granted by the Constitution. At the same time, in their effort to preserve American jurisprudence, the Court argued that to allow the subpoena to go unfulfilled “would be inconsistent with the applicable law and regulation” (United States v. Nixon 697). They understood that despite the unique facts of the case, precedent must be upheld because “no man is above the law,” not even the Chief Executive.

From the very beginning of the opinion, the Court had to skillfully navigate the constraints, namely jurisdiction and justiciability, to put itself in a position to consider the exigence. To do so, the Court used language that was concrete and left little room for interpretation while saving Nixon from an embarrassing blow to his reputation. Further, the Court cited binding federal regulations, binding precedent, and the actions of the Executive and Legislative branch to help nullify imminent criticism that they were practicing judicial statecraft. With the constraints eliminated the Court turned its collective mind towards the exigencies of the controversy.

 

Resolving the Exigence:

Enforcing the Subpoena and Defining Executive Privilege

In United States v. Nixon the Court was required to address profound questions about the American political system. More specifically, the Court addressed questions of institutional authority and the enforcement of long held constitutional principles in determining how to treat the serving of a subpoena duces tecum and the meaning and extent of executive privilege. This required the Court to judge whether a subpoena duces tecum has the power to compel presidential compliance, assess its own power to review and limit executive action, and to confront Nixon’s claim of an absolute executive privilege. These issues emerged from the exigencies in the case, which, apart from the acts that instigated the general Watergate crisis, are two in number: (1) how a subpoena issued against the president should be evaluated and (2) the immense and immediate threat to the Court’s ability to perform its constitutional duty by Nixon’s assertion of an absolute executive privilege.

The special prosecutor charged with investigating the Watergate scandal issued the subpoena to obtain certain tapes or documents relating to precisely identified conversations and meetings between the President and others involved in the indictment. President Nixon responded by claiming that executive privilege protected the release of these documents and tapes and thus moved to quash the motion. The conflicting stances created an institutional imperfection—an exigence—that the Supreme Court sought to relieve. The case before the Court, an appeal of the District Court’s decision that had upheld the subpoena duces tecum, had to resolve the question of the power and validity of the subpoena in order to determine if the criminal case could proceed.

In responding to this exigence the Court methodically addressed the possible reasons for quashing a subpoena duces tecum, as set out in Federal Rule of Criminal Proceedings 17 (c). They refuted each possible objection to the subpoena’s enforcement and explained why the reasons did not suffice in United States v. Nixon. First, “a subpoena for documents may be quashed if their production would be ‘unreasonable or oppressive,’ but not otherwise” (698). As support, previous rulings in Bowman Dairy Co. v. United States and United States v. Iozia were referenced to set out the tests that govern such situations. Second, it is noted that “the Special Prosecutor, in order to carry his burden, must clear three hurdles: (1) relevancy; (2) admissibility; (3) specificity” (700). With much of the prior record placed under seal, the Supreme Court strategically defered to the District Court, explaining that their own review “necessarily affords a less comprehensive view of the total situation than was available to the trial judge” (700). Here the Court is careful rather than brash, a move that both bolstered the legitimacy of the subpoena and established limits to the Court’s power.

Moreover, as United States v. Nixon was not the first occasion the Court had to examine the power of a duces tecum subpoena in a case involving a president, the Court was able to rely upon past doctrine in evaluating the power of the subpoena. In United States v. Burr, which concerned a treason charge against former Vice President Aaron Burr, Thomas Jefferson offered excerpts of a document that would guarantee Burr’s conviction. In resolving the validity of a subpoena duces tecum in that case the Court ruled that the president could not release only certain items as he wished, instead demanding that he provide the whole text, or nothing (McGurn 14).

In resolving Nixon, the Court references Burr a total of seven times in order to serve numerous functions. First, the decision is cited to demonstrate that the Court was meticulous in its review of the subpoena (702). Second, and more importantly, Burr is used to assert that it is the Court’s “right and indeed duty to resolve” the issue (707, 708). Finally, and perhaps most interestingly, United States v. Burr is the only case relied upon in the text of the final five pages of the decision. There it is used as a guide for the execution of the subpoena duces tecum since the Court had a case that was similar to United States v. Nixon in important respects. The parallel illustrates that not only was this issue justiciable, but it was executed without incident in the past. Thus through the use of precedent the Court reaffirmed its authority, rather than the President’s, to determine what information was pertinent and necessary in the proceedings (McGurn 16). With the legitimacy of the subpoena thoroughly addressed, the question posed by the first exigence was resolved. The manner of resolution, allowing the case to continue forward, forced the justices to address the second exigence—Nixon’s claim of an absolute executive privilege.

Addressing the exigence of executive privilege presented a potentially explosive institutional battle between the executive and the judiciary and posed a threat to the Court’s status similar to that encountered in Brown v. Board of Education and Bush v. Gore. While the phrase “executive privilege” first appeared in 1958 in an opinion by Justice Stanley F. Reed, presidents since George Washington, who denied the House of Representatives the right to see papers related to the negotiation of the Jay Treaty, have appealed to its existence (Biskupic and Witt 217). However, United States v. Nixon is certainly the most important case regarding executive privilege and it was the first time the Court found a constitutional basis for it (Biskupic and Witt 219).

To accept Nixon’s claim of a broad and absolute executive privilege would have barred the judiciary from carrying out its duties under the Constitution (Fisher 214) and it would have granted the Executive Branch a tool to hide nearly anything from the reaches of review. At the same time, the desire to prevent an omnipotent chief executive was balanced by fears of hampering the Executive Branch too much and restricting the candor of advisors to the president. Such concerns demanded that the Court not restrict the powers of executive privilege by too great of a magnitude. This concern is demonstrated in footnote twenty of United States v. Nixon where the Court suggested a parallel between the candor of a juror and the openness of a presidential advisor. The note states:

A juror (or advisor in our case) of integrity and reasonable firmness will not fear to speak his mind if the confidences of debate are barred to the ears of mere impertinence or malice. He will not expect to be shielded against the disclosure of his conduct in the event that there is evidence reflecting upon his honor. The chance that now and then there may be found some timid soul who will take counsel of his fears and give way to their repressive power is too remote and shadowy to shape the course of justice. (712)

Thus while the Court considered the candor of advisors, concerns over candor did not determine their final stance on executive privilege. After being weighed by the justices, the potential constraint posed by hampering the executive with a partial privilege was not deemed significant enough to outweigh the risks of an unfettered executive.