The United States v. Richard Nixon —the very title of the unprecedented case now before the Supreme Court suggests a legal conundrum, a theoretical exercise for law professors. The U.S. as party to a lawsuit has always been represented by a lawyer subordinate to the President. So how can the President's own man be suing Richard Nixon? That critical question is a vital element of Nixon's defense.
Special Prosecutor Leon Jaworski wants the Supreme Court to require the President to supply 64 specific tapes considered relevant to the Watergate investigation. The President contends that his refusal to hand over the tapes on the ground of Executive privilege transcends the needs of the criminal process. Besides, says White House Counsel James St. Clair, the court should not even consider that question because Nixon is the country's chief law-enforcement officer, head of the Executive household and ultimately Jaworski's boss. As such, St. Clair explains, the President has final authority to settle what is essentially an internal matter. Yale's respected constitutional law professor, Alexander Bickel, supports that argument. The President, says Bickel, has the power to end the legal confrontation simply by firing Jaworski. "Courts can't take on cases for the purpose of rendering advisory opinions that can be lawfully voided by one of the parties to the dispute."
Realistic Fact. Harvard Jurisdictional Expert Paul Bator disagrees vigorously. He concedes the President's firing power but adds, "There is no reason why the mere existence of this power, unexercised, should render the suit non-justiciable ... For years, different agencies of the United States have taken different positions in the same lawsuit." For example, the Supreme Court once decided a case that was originally called United States v. United States.* The reason such suits can be maintained, says Bator, is the realistic fact that "the Government does not have to be conceived as a single, indivisible entity." Another law professor illustrates the point with the example of a police officer who gives his chief a speeding ticket. The chief cannot defend against the traffic charge in court by claiming that the ticketing officer works for him.
Who is right? Is the President the head of household who is entitled to run his own family without interference from the courts, or is he the police chief who must endure the unwanted exercise of his subordinate's authority? The Constitution gives only faint help. Article II, Section 3 prescribes that the President "shall take care that the laws be faithfully executed." There is no mention of any other law-enforcement officer, including the Attorney General. Thus many experts—including a top Justice Department official—believe that the "ultimate" legal authority belongs to the President.
Others contend that the Attorney General is the "chief law officer"; in fact, the official U.S. Government Manual currently describes him in exactly that way. In Britain, after a 1924 furor in Parliament over political interference with the Attorney General, the now well-established rule gives law enforcement authorities complete insulation and independence (except, of course, that they may not sue the Crown).