only justice rhenquist, who worked in the justice department in the nixon era recused himself. and didn't participate at all in the final vote. otherwise, everyone else was unanimous including the chief justice himself. the argument they make is that material relevant to a criminal case is not governed by executive privilege. that there are limits to a president's control of information. the president then had a choice to make. was he going to accept the supreme court's decision or was he going to try to fight it in some way? the president decided, gratefully for the entire country, he decided to turn over the tapes. now, among those tapes that he turns over is a tape of a conversation on june 23, 1972. that's going to be known forever as the smoking gun conversation. let me walk you back to the cover up section of the time line. we highlight, describe it as obstruction of justice. that's the way it was understood time and later. three conversations on june 23rd, 1972, the president approved the use of the cia to obstruct the fbi's criminal investigation. there was a hint that

ever since william rhenquist, when he was chief justice, set up an informal rule that good fences makeood neighbors, that didn't interact very much. so oral argument became the time they used to communicate with one another, to lobby one another. >> so while they were questioning the lawyers. >> exactly. they used their questions as arguments. so you don't see a lot of playing of devil's advocate in the supreme court. that's why i thought the questioning, the hostile questioning of the solicitor general was so significant is that 100% of the time? absolutely not. i think the oral argument in the immigration case showed a more hostile court to the government than the decision turned out to be. i think the government did somewhat better than you might have expected based on the argument in the immigration case. however, the justices, the conservatives, were much more hostile, i thought, in the health care case than the immigration case. so it would be a bigger surprise if the justices turned around and affirmed the law in its entirety. but that's certainly a possibility. >> we'll find ou