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
The indictments named President
Nixon himself as an unindicted co-conspirator.
The District Court hearing the case
issued a subpoena for audio tapes and documents relating to
meetings between Nixon and others.
Nixon produced edited versions of
those materials, then moved to quash the subpoena, claiming
Separations of Powers Arg
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.
The District Court denied the
motion, and the Supreme Court subsequently granted certiorari.
President does not enjoy an absolute generalized privilege
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
Nixon's first claim, that separation
of powers bars the judiciary from evaluating his claim of
privilege, must fail.
Youngstown (Courts can invalidate executive and legislative
Past decisions such as Youngstown
show that the courts do have the power to invalidate acts of the
executive and legislative branches.
It is the job of the judiciary say
what the Law is (Marbury
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.
Claims a broad absolute privilege without assertion a reason
Nixon is claiming a broad, absolute
privilege, without any assertion that it is necessary for the
protection of military, diplomatic, or national security
Judicial branch has a constitutional duty to do justice
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].
Presidents privilege is outweighed
Administration of justice would be impaired
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.
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
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
District Court should only consider relevant and admission
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
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.
The district court was correct in
ordering the tapes and documents produced.