Fifty years ago today, President Richard Nixon resigned. His resignation came shortly after the Supreme Court unanimously decided United States v. Nixon. This decision is often held up as an exemplar of Supreme Court jurisprudence at its best. Justice Kavanaugh, for example, often stresses that Nixon was joined by three Nixon appointees. (Justice Rehnquist recused because former Attorney General John Mitchell, one of the defendants, had been Rehnquist's boss.)
But I'm not sure Nixon has stood the test of time. The argument that the Court had jurisdiction to resolve what was, in effect, a dispute within the executive branch, never persuaded me. This theory led inexorably to the concept of the independent counsel, an anathema to the separation of powers. Moreover, to the extent that Nixon said anything at all about the Appointments Clause, that analysis has been overcome by Buckley v. Valeo, Bowsher v. Synar, and other cases. (Seth Barrett Tillman and I explain why the holding of Nixon, whatever it is, was limited to some "unique" facts—which is precisely what the decision repeatedly stated.) I've long seen Nixon v. Fitzgerald as a something of a correction to Nixon. Fitzgerald was decided nearly a decade after Nixon during a more sober time.
There's more. Today's Wall Street Journal includes an Op-Ed by Kenneth L. Khachigian, who served as an aide to President Nixon. He argues, provocatively, that Nixon should not have resigned, and that he could have survived an impeachment vote–or at least that he should have taken a principled stand and forced Congress to impeach him. But more relevant for my purposes are behind-the-scene machinations. Khachigian speaks to some of the questionable legal issues lurking in the background:
