United States v. Nixon, 418 U.S. 683 

Supreme Court of the United States

1974

Chapter

4

Title

Distribution of National Powers

Page

400

Topic

Domestic Affairs

Quick Notes

o    During the 1972 presidential campaign, Democratic National Headquarters in the Watergate Hotel was burglarized. Investigation of the burglary revealed White House involvement, and several Nixon associates were indicted on charges of conspiracy to obstruct justice and other offenses. 

o    Nixon refused to turn over tape recordings and documents which were subpoenaed in the course of the Watergate investigation. 

o    Nixon argued that it was critical to maintain the confidentiality of the president's communications, and that separation of powers prohibited the judicial branch from evaluating privilege claims and forcing the executive to produce such communications.

Rule

o         The president does not enjoy an absolute generalized privilege which would allow him to shield all communications from a subpoena in a criminal proceeding.

Application

o         The President does not have an absolute privilege against judicial subpoenas.

o         Although the Supreme Court did not explicitly discuss the issue of presidential amenability to judicial process, Nixon seems to stand for the proposition that there is not general immunity from such process.

Court Youngstown (Courts can invalidate executive and legislative acts)

o         Past decisions such as Youngstown show that the courts do have the power to invalidate acts of the executive and legislative branches.

Court It is the job of the judiciary say what the Law is (Marbury v. Madison)

o         It is the job of the judiciary and no other branch to determine what the law is; thus, the present claim of executive privilege may be evaluated by the courts.

Administration of justice would be impaired

o         To withhold evidence would cut deeply into the guarantee of [5th Amendment] due process of law and gravely impair the basic functions of the court.

Book Name

Constitutional Law : Stone, Seidman, Sunstein, Tushnet.  ISBN:  978-0-7355-7719-0

Issue

o         Does the President of the U.S. enjoy an absolute privilege of confidentiality for all presidential communications?  No.

Procedure

District

o         Cross-petitions were granted for immediate review of the denial of a motion to quash a third-party subpoena duces tecum issued by the United States District Court for the District of Columbia, pursuant to Fed. R. Crim. P. 17(c), directing the President of the United States to produce certain tape recordings and documents relating to his conversations with aides and advisers

Supreme

o         Affirmed

Facts

Discussion

Key Phrases

Rules

Pl United States

Df Nixon

Description

o     During the 1972 presidential campaign, Democratic National Headquarters in the Watergate Hotel was burglarized.

o    Investigation of the burglary revealed White House involvement, and several Nixon associates were indicted on charges of conspiracy to obstruct justice and other offenses.

o    The indictments named President Nixon himself as an unindicted co-conspirator.

o    The District Court hearing the case issued a subpoena for audio tapes and documents relating to meetings between Nixon and others.

o    Nixon produced edited versions of those materials, then moved to quash the subpoena, claiming executive privilege.

Separations of Powers Arg

o    Nixon argued that it was critical to maintain the confidentiality of the president's communications, and that separation of powers prohibited the judicial branch from evaluating privilege claims and forcing the executive to produce such communications.

o    The District Court denied the motion, and the Supreme Court subsequently granted certiorari.

Justice Burger

President does not enjoy an absolute generalized privilege

o         The President does not enjoy an absolute generalized privilege which would allow him to shield all communications from a subpoena in a criminal proceeding.

Nixon's Arg - separation of powers bars the judiciary from evaluating his claim

o         Nixon's first claim, that separation of powers bars the judiciary from evaluating his claim of privilege, must fail.

Court Youngstown (Courts can invalidate executive and legislative acts)

o         Past decisions such as Youngstown show that the courts do have the power to invalidate acts of the executive and legislative branches.

Court It is the job of the judiciary say what the Law is (Marbury v. Madison)

o         It is the job of the judiciary and no other branch to determine what the law is; thus, the present claim of executive privilege may be evaluated by the courts.

Court Claims a broad absolute privilege without assertion a reason

o         Nixon is claiming a broad, absolute privilege, without any assertion that it is necessary for the protection of military, diplomatic, or national security secrets.

Judicial branch has a constitutional duty to do justice

o         The need for confidentiality in presidential communications is important, but it does not outweigh the constitutional duty of the judicial branch to do justice in criminal prosecutions, especially where the information will be protected by an in camera review [in private review of chambers].

o         Presidents privilege is outweighed

Administration of justice would be impaired

o         To withhold evidence would cut deeply into the guarantee of [5th Amendment] due process of law and gravely impair the basic functions of the court.

o         The fair administration of justice would be severely impaired by a generalized presidential privilege, whereas it is unlikely that advisors would temper their remarks to the President based on the slim chance that the contents of their conversations might later be subpoenaed.

Prosecution has the burden to show statements are essential for justice

o         If privilege is claimed by the President, the burden should be on the prosecution to show that the presidential communications are essential to the justice of its case.

District Court should only consider relevant and admission statements

o         In the in camera review, the district court must take care to isolate for production only those statements which are relevant and admissible and eliminate the rest.

o         At all times, courts must be mindful of the unique role of the President and his communications, and give both the respect they are due.

Court - Holding

o         The district court was correct in ordering the tapes and documents produced.

o         Affirmed.

Rules

Rule

o         The president does not enjoy an absolute generalized privilege which would allow him to shield all communications from a subpoena in a criminal proceeding.

Application

o         The President does not have an absolute privilege against judicial subpoenas.

o         Although the Supreme Court did not explicitly discuss the issue of presidential amenability to judicial process, Nixon seems to stand for the proposition that there is not general immunity from such process.

Class Notes