In 1973, during a congressional investigation into abuses of power by the presidential administration of Richard Nixon and illegal activities by the Nixon reelection campaign, it came to light that Nixon had secretly recorded a large number of conversations in the Oval Office. The special prosecutor charged with investigating wrongdoing by administration and campaign officials demanded access to the tapes. When Nixon refused, the special prosecutor sought a court order directing Nixon to hand them over.

Whatever his personal motivations, Nixon had a serious constitutional argument that the tapes were protected by “executive privilege” – a prerogative of the President, as head of the executive branch, to protect papers, tapes, and other evidence of what his advisors had said to him and he to them in the course of making presidential decisions. According to Nixon, it would harm the presidency, and thus the country, if Presidents could not receive truly confidential advice and probe policy options on an absolutely confidential basis. Nixon, of course, acknowledged that Presidents could disclose any information that they saw fit. But he maintained, in essence, that the management of presidential deliberations was the exclusive business of the President, not the courts.