Secrecy v. Privacy: Roe v. Wade, Nixon, Trump, Smoking Guns and Smog-Filled Rooms

In a time when the most intimate details about the private lives and private thoughts of Americans are being routinely collected and analyzed by social media corporations and the government on a scale never seen before, a fundamental American conundrum involving the differences between privacy and secrecy is moving through our culture in full force once again. Over the last 20 years or so, the infinite memory and omnivorous curiosity of the internet and its algorithms has blindsided most of us about the condition of our personal privacy, which, according to some, has all but vanished.

The right to privacy in American life, and our deeply grounded antagonism toward secrecy, its dark side, is at the heart of a spectrum of long-enduring controversies ranging from abortion to presidential power.

And ironies abound. Information about our health, our reading and buying habits, our finances, all things we would assume were to be protected by our sacred privacy as Americans in a society that worships individual freedom, is being kept secret from those of us – all of us – who unwillingly or unwitting supply such data. Not only don’t we know who has our information or what has been collected or where it is stored, we have no idea how our private information is being analyzed. It is secrecy at its worst.

Privacy used to be considered sacrosanct, a right so sacred in America that some of the thorniest and most heated issues in our culture — how to check the overweening ambitions and ego of the “chief executive” and reproductive rights of women — have been contemplated through the lens of individual freedom, not necessarily a “moral,” or a constitutional, or even a “normative” perspective. Now private information is just looked upon as data to be crunched.

When it comes to personal freedom, neither the concept of “privacy” nor “executive privilege” — the contested “right” of a president to keep any information he pleases, over and above national security matters, secret from the public — is mentioned directly in the Constitution. Yet as we saw with the illegal secrecies of Watergate and are seeing now with moves in various states to violate the privacy of individual American women by banning abortion, both secrecy and privacy have come to dominate our politics and our sense of right and wrong. This is especially true with the myriad secret “troubles” of the Trump administration regarding obstruction of justice, collusion with a foreign power to rig elections, or the right of the public to know about a president’s financial dealings as they appear in his taxes.

With the Trump appointment of two associate justices to the Supreme Court, Neil Gorsuch and Brett Kavanaugh, many people, including New York Governor Andrew Cuomo, worry that the Court will attempt to overturn Roe v. Wade. Along with being one of the cornerstone rights of women, Roe v. Wade is a foundational Supreme Court decision legitimizing the constitutional right to privacy.

Last January, as Governor Cuomo was promoting his proposed “Reproductive Health Act” and “Contraception Coverage Act” in New York, he said, “Kavanaugh is going to reverse Roe v. Wade. I have no doubt. Gorsuch is going to reverse Roe v. Wade. I have no doubt.” His is a feeling shared by many.

And who would have thought that Richard Nixon’s attempts to keep secret a smoking gun in Watergate investigations by invoking an instrument of privacy in “executive privilege,” would shed light upon current American political culture? Our culture is so strained by political stunts and fabrications that President Trump declined to use executive privilege to cover up the Mueller Report on his many shenanigans because he knew that he could do everything else to obstruct it — including firing an FBI director and driving an Attorney General to resign — and get away with it. The Mueller Report has, “apparently,” found no single smoking gun like the Watergate tapes but has rather opened a smog-filled room of dark intrigue, the contents of which could drive Trump from office, much like Nixon.

And it’s really all about privacy and secrecy.

Roe v. Wade was not decided by one of our contemporary one-vote squeakers. The Supreme Court voted 7 to 2 in 1973 that a Texas law banning abortion violated the fundamental right of women to control their own bodies, which is protected by the 14^th Amendment of the Constitution that guarantees all Americans equal protection under law.

As journalist Tony Mauro points out in his book “The Supreme Court: Landmark Decisions,” the Roe. v. Wade ruling was written by Justice Harry Blackmun. Blackmun observed that the “Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as …1891, the Court has recognized that a right to personal privacy, or a guarantee of certain areas of zones of privacy, does exist under the Constitution.”

Blackmun continued, “this right of privacy, whether it is founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or…in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Blackmun grounded the decision of Roe v. Wade in the primacy of a woman’s right to full citizenship and rights to privacy that goes with it, just exactly like any man. By passing the right of a woman to seek an abortion during the first trimester of her pregnancy, the Court implied that nothing supersedes the fundamental rights of women to equal justice under law, to be fully equal in citizenship and rights to men. Roe v. Wade did away with the underlying double standards of America’s hidden misogyny. Women are not mere reproductive chattel of the state or their husbands. Blackmun goes on to write that following the first trimester, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.”

If the current Supreme Court decides to revisit Roe v. Wade, its conservative members will argue, I suspect, that the “rights” of a potential human life somehow outrank and supersede the rights of an individual woman endowed with her full humanity and protected by the sacred meaning of “equal rights under law.” Roe v. Wade opponents have always been about “keeping women in their place,” in a second-class status where their right to privacy and equal protection is subordinate to that of men, the state and the potential existence of an undeveloped fetus.

In an odd way United States v. Nixon foreshadows the amazing chutzpah of a president who has so little regard for his office, and the public’s right to know everything about its operations, except for national security matters, that he’s created a complicated web of secrecy around his business dealings while invested with the power of office and his general political machinations. It feels that he’s virtually guiding the ship of state like a Wizard of Oz, hidden behind a veil of nonsense stories, fibs, stonewalls, and spin doctoring. It is in this general political and cultural context of Trumpist America that Roe v. Wade might be in danger of being overturned.

In a unanimous decision in 1971, the Supreme Court in United States v. Nixon ruled that the president could not disobey a subpoena for “smoking gun” audiotapes regarding his role in the botched Watergate burglaries. The tapes would prove that the president discussed ways to obstruct the FBI’s investigation of Republican operatives raiding Democratic headquarters in a pure and simple felonious attempt to gain political advantage. Nixon knew the tapes would confirm charges of obstruction of justice and that House of Representatives would impeach him. President Trump declined to hide his activities behind “executive privilege,” I’m sure, because of the Supreme Court’s decision against President Nixon.

Journalist Tony Mauro wrote in his book that “the court unanimously ruled that it had authority to rule on the executive privilege claim. Conservative Supreme Court Chief Justice Warren Burger said “presidents deserve the ‘utmost deference’ in keeping their communications private, especially on military, diplomatic, or national security matters. But in the rare occasion when documents are subpoenaed as part of a criminal investigation, that deference falls away.” Berger wrote that “Neither the doctrine of separation of powers not the need for confidentially of high level communications … can sustain an absolute unqualified Presidential privilege of immunity from judicial process under all circumstances.”

According to United States v. Nixon, President Trump’s secrecy over taxes, his involvement with Russia to rig elections, his taking of “emoluments” and other matters cannot be protected by a mere claim of privacy. He would have to comply with a subpoena on any number of his actions while still in office. As Mauro writes, the Nixon decision “reinforced” the maxim that “No man is above the law,” that even the executive branch of government is subject to the checks and balances provided by Congress and the Courts.

Privacy and secrecy are linked by the logic of democracy in American culture. Privacy, and its protections in the Constitution, defend personal liberty, the foundation of our view of a free society. Secrecy offends public trust of government because the citizenry is denied its democratic right, as Thomas Jefferson said, to “consent to be governed.” Citizens cannot give consent to be governed if they are denied information about those exercising the power of governing.

And now, with the distinction between corporate and governmental data gathering in cyberspace having been blurred beyond comprehension by technological complexity, it’s possible that the secrecy of data gathering corporations is also the secrecy of data crunching government agencies. When our own private information is collected and analyzed in ways that we know nothing about, our personal liberty is threatened. Our ability to give consent is sacrificed and replaced with a vision of each of us not as persons with inalienable rights but as passive sources of data to be mined and exploited by anyone with the technological wizardry to do so.

Public trust of government is built on the personal liberty of each of us to give an informed consent to be governed. That is why Roe v. Wade, United States v. Nixon and what evolves from the Mueller Report are, and will be, critical to the existence of a free society in America.

*Nullius in verba: take nobody’s word for it