Breyer as an Assistant Special Prosecutor in the Watergate Scandal

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Updated: Mar 27, 2023
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Justice Paper Justice Breyer was appointed during the Clinton administration in 1994. He originally lost to Ruth Bader Ginsburg (RBG). Institutional power and constraints note that the Rehnquist Court was overall conservative. Breyer served in three branches of government. Breyer is a democrat and is liberal-leaning. Breyer claims that “the constitution is a living document.” Breyer’s judicial philosophy on constitutional interpretation is pragmatic. A pragmatic interpretation is when the court determines its’ own precedent. Pragmatism weighs the potential cost. Justice Breyer’s decisions have hints of other constitutional interpretations, such as moral reasoning and ethos.

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Pragmatism is a sharp contrast between textualists and originalists. There are several legal questions in U.S. vs. Grump, such as executive privilege and separation of powers.

There is a legal question about whether Congress can create and delegate powers to the executive branch. Breyer was an assistant special prosecutor in the Watergate scandal. President Nixon would not hand over the tapes subpoenaed by the court. Nixon argued Breyer argues that Watergate was a political test. I would argue that, in some regards, this strengthens the power of the court. This power to investigate (and prosecute) was given in accordance with The Ethics in Government Act of 1978. Morrison v. Olsen (1988) is where the court explicitly states that the Ethics in Government Act does not violate the separation of power. Therefore, Breyer would unapologetically agree that the creation of HURAC is constitutional and within Congress’s power. He has a firm stance on removal power. Since then, the Supreme Court has established legitimacy when it comes to the checking power of other branches. Breyer is in favor of federal policies. Breyer would agree that President Trump cannot invoke executive privilege and immunity.

Breyer would use stare decisis and pragmatism interpretation. Executive privilege and immunity cannot be used in criminal cases. (U.S. v Nixon 1974) It is imperative that there are checks and balances in place for the executive office. I argue that Breyer would agree that democracy is in a shaky place currently. It is the job of the Supreme Court to uphold the Constitution but also democracy itself. No one should be above the law, especially in a criminal manner. As a Supreme Court Justice, Breyer has always had a stance on protecting the rights of individuals. There is a keen interest in keeping the faith and fairness of our judicial system. Scandal in high places is popping up across all branches of government. “The people’s interest in the fair administration for criminal justice outweighs the President’s interest in confidentiality.” In the decision to fire Miller, Breyer would argue that HURAC itself should not have the power to fire him. The Deputy Attorney General should have removal power.

Humphrey’s Executor v. U.S. and Myers v. U.S. both set a precedent for Grump v. U.S. The appointment clause allows Congress to delegate other officers for administrative positions. HURAC delegated an inferior position to be created. Congress cannot remove inferior officers. There is a test to determine whether any officer is inferior or principal. There needs to be limited tenure, limited scope, and limited jurisdiction. In this case, jurisdiction would be investigating criminal behavior solely in the executive branch. If Congress fired Breyer during the Watergate Scandal, it would be inappropriate and unconstitutional. On the issue of jurisdiction, Breyer would consent. Marbury v. Madison sets a clear and unquestioned precedent. Courts have appellate jurisdiction. There is a clear need to answer where items in the HURAC memo were constitutional. I don’t expect the court to even respond to the justiciability or jurisdiction of this case. There was an injury; Miller was fired. He suffered financially. It would be an injury to the American people not to hold the executive accountable or at least check. During Breyer’s Judiciary hearing, then-senator Joe Biden gave a compelling speech and introduction. He (Biden) urged to continue an economic analysis to provide solutions to injuries.

In Breyer’s own speech, he vows to carefully interpret the Constitution. He also vows not to be isolated from the people. He acknowledges that every decision made affects the American people. His stance suggests that he is in favor of checks and balances. He supports laws made by the legislature. Judges are supposed to be impartial and unbiased, but that is not the case. Grump’s conservative nature may clash with the liberal side. Breyer was also a law professor. He has written many books. He takes the initiative to educate regular people on the power and decisions of the court. He is an inherent teacher. He also welcomes opposition from both sides. He and Justice Scalia traveled across the country, igniting spirited debates on how the Constitution should be interpreted. Breyer makes it very clear that he makes decisions based on the intention of the framers. Breyer also welcomes the overturning precedent. He claims that sometimes they are absolutely needed it.

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Breyer as an Assistant Special Prosecutor in the Watergate Scandal. (2023, Mar 27). Retrieved from