On March 1, 1974, a grand jury indicted seven former aides toU.S. President Richard Nixon for attempting to cover up White Houseinvolvement in a burglary of the Democratic National Committee atthe Watergate complex in Washington. On April 18, the judge in thecase, John Sirica, issued a subpoena for tapes of President Nixon’sconversations with the defendants. The President’s attorney, JamesSt. Clair, attempted to delay responding to the subpoena. Theprosecutor, Leon Jaworski, then used an unusual procedure to appealdirectly to the Supreme Court and request that the Court order thePresident to supply the tapes. The Court heard oral arguments onJuly 8, and the justices met on July 9 to decide the case. Onejustice, William Rehnquist, withdrew from the case, probablybecause he had worked in President Nixon’s Justice Department. Ofthe remaining eight justices, six quickly agreed to uphold theprosecutor’s request. Two justices, Warren Burger and HarryBlackmun, were reluctant to uphold the prosecutor’s request,because they thought his direct appeal to the Supreme Court wasimproper. Also on July 9, President Nixon’s attorney said that thePresident had “not yet decided” whether he would supply the tapesif the Supreme Court ordered him to. This statement was probablyintended to pressure the Court into backing down from theconfrontation. At minimum, it was probably intended to encouragesome justices to vote against upholding the prosecutor’s request.If the vote was split, the President could argue that it was notsufficiently definitive for a matter of this magnitude. Jaworskibelieved that in the event of a split vote, the President would “goon television and tell the people that the presidency should not beimpaired by a divided Court.” We will regard this as a two-playergame. Player 1 is Justices Burger and Blackmun, whom we assume willvote together; we therefore treat them as one player. Player 2 isPresident Nixon. First, Justices Burger and Blackmun decide how tovote. If they vote to uphold the prosecutor’s request, the resultis an 8-0 Supreme Court decision in favor of the prosecutor. Ifthey vote to reject the prosecutor’s request, the result is a 6-2Supreme Court decision in favor of the prosecutor. After theSupreme Court has rendered its decision, President Nixon decideswhether to comply by supplying the tapes, or to defy thedecision.
President Nixon’s preferences are as follows: • Best outcome(payoff 4): 6-2 decision, President defies the decision. •Second-best outcome (payoff 3): 6-2 decision, President suppliesthe tapes. • Third-best outcome (payoff 2): 8-0 decision, Presidentsupplies the tapes. • Worst outcome (payoff 1): 8-0 decision,President defies the decision. Explanation: The President’s bestoutcome is a divided decision that he can defy while claiming thedecision is not really definitive. His worst outcome is an 8-0decision that he then defies; this would probably result inimmediate impeachment. As for the two intermediate outcomes, thePresident is better off with the weaker vote, which should give himsome wiggle room. Justices Burger and Blackmun’s preferences are asfollows: • Best outcome (payoff 4): 6-2 decision, Presidentsupplies the tapes. • Second-best outcome (payoff 3): 8-0 decision,President supplies the tapes. • Third-best outcome (payoff 2): 8-0decision, President defies the decision. • Worst outcome (payoff1): 6-2 decision, President defies the decision. Explanation: Intheir best outcome, Burger and Blackmun get to vote their honestlegal opinion that the prosecutor’s direct appeal to the Court waswrong, but a Constitutional crisis is averted because the Presidentcomplies anyway. In their second-best outcome, they votedishonestly, but they succeed in averting a major Constitutionalcrisis. In their third-best outcome, the crisis occurs, but becauseof the strong 8-0 vote, it will probably quickly end. In the worstoutcome, the crisis occurs, and because of the weak vote, it maydrag out. In addition, in the last outcome, the President maysucceed in establishing the principle that a 6-2 Court decisionneed not be followed, which no member of the Court wants. 1. Drawan extensive form game tree for the situation described, providingclear labels and payoffs for each player. 2. Use backward inductionto make a prediction about the outcome. 3. Find out what actuallyhappened and write a brief summary.
