July 24th

Only July 24th, 1974, the Supreme Court found that Richard Nixon did not have authority to withhold tapes that had been subpoenaed for the special prosecutor, but upheld and formalized the broad scope of executive privilege. The case in question is United States v. Nixon.

Executive privilege has a long and dubious history. It is not spelled out in the Constitution or its amendments, and has been largely created by the bench and by declaration of the Executive Branch. The founding fathers did not particularly like the idea, based as it is on "crown privilege", and in fact, early cases asserting privilege frequently lost.

Most presidents, when they lose on an executive privilege, will comply but insist their cooperation was voluntary.

However, it has been generally agreed that the President does require some safe zone in which to make decisions. If the President has to perpetually answer to Congress about how every decision is made, he will not be willing to get open and honest advice. When upheld by the Supreme Court, that has usually been the justification, using the separation of powers doctrine.

Richard Nixon, on the other hand, was actively trying to interfere with a judicial proceeding. Which is the point where the Supreme Court tends to lose sympathy. The official stance is that need, or the absolute importance of the requested materials, will override the executive need for secrecy.