United States v. Nixon by qsb11675

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									             UNITED STATES                          on behalf of the President of the United States,
                   v.                               in the case of United States v. Mitchell et al.
                 NIXON                              (D.C.Crim. No. 74--110), to quash a third-
                                                    party subpoena duces tecum issued by the
     Supreme Court of the United States             United States District Court for the District of
                                                    Columbia, pursuant to Fed.Rule Crim.Proc.
                July 24, 1974.                      17(c). The subpoena directed the President to
                                                    produce certain tape recordings and
     Prosecution of former government               documents relating to his conversations with
officials and presidential campaign officials for   aides and advisers. The court rejected the
conspiracy to defraud United States and to          President's claims of absolute executive
obstruct justice, and for other offenses,           privilege, of lack of jurisdiction, and of failure
wherein special prosecutor caused third-party       to satisfy the requirements of Rule 17(c). The
subpoena duces tecum to be issued directing         President appealed to the Court of Appeals.
the President to produce tape recordings and        We granted both the United States' petition for
documents relating to conversations with aides      certiorari before judgment (No. 73--1766), and
and advisors. The United States District Court      also the President's cross-petition for certiorari
for the District of Columbia, denied the            before judgment (No. 73--1834), because of
President's motion to quash subpoena, 377           the public importance of the issues presented
F.Supp. 1326, and an appeal was taken.              and the need for their prompt resolution 417
Certiorari before judgment was granted to           U.S. 927 and 960, 94 S.Ct. 2637 and 3162, 41
bring matter before Supreme Court before            L.Ed.2d 231 (1974).
disposition by Court of Appeals.             The
Supreme Court, Mr. Chief Justice Burger, held            On March 1, 1974, a grand jury of the
that dispute was justiciable; that District Court   United States District Court for the District of
was not shown to have erred in determining          Columbia returned an indictment charging
that special prosecutor's showing of relevancy,     seven named individuals with various offenses,
admissibility, and specificity was sufficient to    including conspiracy to defraud the United
warrant issuance of order; and that President's     States and to obstruct justice. Although he
generalized interest in confidentiality,            was not designated as such in the indictment,
unsupported by claim of need to protect             the grand jury named the President, among
military, diplomatic, or sensitive national         others, as an unindicted coconspirator. On
security secrets, could not prevail against         April 18, 1974, upon motion of the Special
special prosecutor's demonstrated, specific         Prosecutor, see n. 8, infra, a subpoena duces
need for the tape recordings and documents.         tecum was issued pursuant to Rule 17(c) to
                                                    the President by the United States District
    Affirmed.                                       Court and made returnable on May 2, 1974.
                                                    This subpoena required the production, in
    Mr. Justice Rehnquist did not participate.      advance of the September 9 trial date, of
                                                    certain tapes, memoranda, papers, transcripts
    Mr. Chief Justice BURGER delivered the          or other writings relating to certain precisely
opinion of the Court.                               identified meetings between the President and
                                                    others. The Special Prosecutor was able to fix
    This litigation presents for review the         the time, place, and persons present at these
denial of a motion, filed in the District Court     discussions because the White House daily
                                        United States v. Nixon                                    Page 2

logs and appointment records had been                 court concluded that a justiciable controversy
delivered to him. On April 30, the President          was presented. The second challenge was held
publicly released edited transcripts of 43            to be foreclosed by the decision in Nixon v.
conversations; portions of 20 conversations           Sirica, 159 U.S.App.D.C. 58, 487 F.2d 700
subject to subpoena in the present case were          (1973).
included. On May 1, 1974, the President's
counsel, filed a 'special appearance' and a                 The District Court held that the judiciary,
motion to quash the subpoena under Rule               not the President, was the final arbiter of a
17(c). This motion was accompanied by a               claim of executive privilege. The court
formal claim of privilege. At a subsequent            concluded that under the circumstances of this
hearing, further motions to expunge the grand         case the presumptive privilege was overcome
jury's action naming the President as an              by the Special Prosecutor's prima facie
unindicted coconspirator and for protective           'demonstration of need sufficiently compelling
orders against the disclosure of that                 to warrant judicial examination in chambers .
information were filed or raised orally by            . ..' 377 F.Supp., at 1330. The court held,
counsel for the President.                            finally, that the Special Prosecutor had
                                                      satisfied the requirements of Rule 17(c). The
     On May 20, 1974, the District Court              District Court stayed its order pending
denied the motion to quash and the motions to         appellate review on condition that review was
expunge and for protective orders. 377                sought before 4 p.m., May 24. The court
F.Supp. 1326. It further ordered 'the President       further provided that matters filed under seal
or any subordinate officer, official, or              remain under seal when transmitted as part of
employee with custody or control of the               the record.
documents or objects subpoenaed,' id., at 1331
to deliver to the District Court, on or before             On May 24, 1974, the President filed a
May 31, 1974, the originals of all subpoenaed         timely notice of appeal from the District Court
items, as well as an index and analysis of those      order, and the certified record from the
items, together with tape copies of those             District Court was docketed in the United
portions of the subpoenaed recordings for             States Court of Appeals for the District of
which transcripts had been released to the            Columbia Circuit. On the same day, the
public by the President on April 30. The              President also filed a petition for writ of
District Court rejected jurisdictional challenges     mandamus in the Court of Appeals seeking
based on a contention that the dispute was            review of the District Court order.
nonjusticiable because it was between the
Special Prosecutor and the Chief Executive                  Later on May 24, the Special Prosecutor
and hence 'intra-executive' in character; it also     also filed, in this Court, a petition for a writ of
rejected the contention that the Judiciary was        certiorari before judgment. On May 31, the
without authority to review an assertion of           petition was granted with an expedited briefing
executive privilege by the President. The             schedule, 417 U.S. 927, 94 S.Ct. 2637, 41
court's rejection of the first challenge was          L.Ed.2d 231. On June 6, the President filed,
based on the authority and powers vested in           under seal, a cross-petition for writ of
the Special Prosecutor by the regulation              certiorari before judgment. This cross-petition
promulgated by the Attorney General; the              was granted June 15, 1974, 417 U.S. 960, 94
                                       United States v. Nixon                                  Page 3

S.Ct. 3162, 41 L.Ed.2d 1134, and the case                'consistently held that the necessity for
was set for argument on July 8, 1974.                    expedition in the administration of the
                                                         criminal law justifies putting one who
                       I                                 seeks to resist the production of desired
                                                         information to a choice between
              JURISDICTION                               compliance with a trial court's order to
                                                         produce prior to any review of that order,
     The threshold question presented is                 and resistance to that order with the
whether the May 20, 1974, order of the                   concomitant possibility of an adjudication
District Court was an appealable order and               of contempt if his claims are rejected on
whether this case was properly 'in' the Court of         appeal.' United States v. Ryan, supra,
Appeals when the petition for certiorari was             402 U.S., at 533, 91 S.Ct., at 1582.
filed in this Court. 28 U.S.C. s 1254. The
Court of Appeals' jurisdiction under 28 U.S.C.             The requirement of submitting to
s 1291 encompasses only 'final decisions of the      contempt, however, is not without exception
district courts.' Since the appeal was timely        and in some instances the purposes underlying
filed and all other procedural requirements          the finality rule require a different result. For
were met, the petition is properly before this       example, in Perlman v. United States, 247
Court for consideration if the District Court        U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918), a
order was final. 28 U.S.C. ss 1254(1),               subpoena had been directed to a third party
2101(e).                                             requesting certain exhibits; the appellant, who
                                                     owned the exhibits, sought to raise a claim of
     The finality requirement of 28 U.S.C. s         privilege. The Court held an order compelling
1291 embodies a strong congressional policy          production was appealable because it was
against piecemeal reviews, and against               unlikely that the third party would risk a
obstructing or impeding an ongoing judicial          contempt citation in order to allow immediate
proceeding by interlocutory appeals. See, e.g.,      review of the appellant's claim of privilege.
Cobbledick v. United States, 309 U.S. 323,           Id., at 12--13, 38 S.Ct. at 419--420. That case
324--326, 60 S.Ct. 540, 541--542, 84 L.Ed.           fell within the 'limited class of cases where
783 (1940). This requirement ordinarily              denial of immediate review would render
promotes judicial efficiency and hastens the         impossible any review whatsoever of an
ultimate termination of litigation. In applying      individual's claims.' United States v. Ryan,
this principle to an order denying a motion to       supra, 402 U.S., at 533, 91 S.Ct., at 1582.
quash and requiring the production of evidence
pursuant to a subpoena duces tecum, it has                Here too, the traditional contempt avenue
been repeatedly held that the order is not final     to immediate appeal is peculiarly inappropriate
and hence not appealable. United States v.           due to the unique setting in which the question
Ryan, 402 U.S. 530, 532, 91 S.Ct. 1580,              arises. To require a President of the United
1581, 29 L.Ed.2d 85 (1971); Cobbledick v.            States to place himself in the posture of
United States, supra; Alexander v. United            disobeying an order of a court merely to
States, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed.         trigger the procedural mechanism for review
686 (1906). This Court has                           of the ruling would be unseemly, and would
                                                     present an unnecessary occasion for
                                        United States v. Nixon                                   Page 4

constitutional confrontation between two              Executive Branch has exclusive authority and
branches of the Government. Similarly, a              absolute discretion to decide whether to
federal judge should not be placed in the             prosecute a case, Confiscation Cases, 7 Wall.
posture of issuing a citation to a President          454, 19 L.Ed. 196 (1869); United States v.
simply in order to invoke review. The issue           Cox, 342 F.2d 167, 171 (CA5), cert. denied
whether a President can be cited for contempt         sub nom. Cox v. Hauberg, 381 U.S. 935, 85
could itself engender protracted litigation, and      S.Ct. 1767, 14 L.Ed.2d 700 (1965), it is
would further delay both review on the merits         contended that a President's decision is final in
of his claim of privilege and the ultimate            determining what evidence is to be used in a
termination of the underlying criminal action         given criminal case. Although his counsel
for which his evidence is sought. These               concedes that the President has delegated
considerations lead us to conclude that the           certain specific powers to the Special
order of the District Court was an appealable         Prosecutor, he has not 'waived nor delegated
order. The appeal from that order was                 to the Special Prosecutor the President's duty
therefore properly 'in' the Court of Appeals,         to claim privilege as to all materials . . . which
and the case is now properly before this Court        fall within the President's inherent authority to
on the writ of certiorari before judgment. 28         refuse to disclose to any executive officer.'
U.S.C. s 1254; 28 U.S.C. s 2101(e). Gay v.            Brief for the President 42. The Special
Ruff, 292 U.S. 25, 30, 54 S.Ct. 608, 610, 78          Prosecutor's demand for the items therefore
L.Ed. 1099 (1934).                                    presents, in the view of the President's counsel,
                                                      a political question under Baker v. Carr, 369
                       II                             U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962),
                                                      since it involves a 'textually demonstrable'
              JUSTICIABILITY                          grant of power under Art. II.

     In the District Court, the President's                 The mere assertion of a claim of an 'intra-
counsel argued that the court lacked                  branch dispute,' without more, has never
jurisdiction to issue the subpoena because the        operated to defeat federal jurisdiction;
matter was an intra-branch dispute between a          justiciability does not depend on such a surface
subordinate and superior officer of the               inquiry. In United States v. ICC, 337 U.S.
Executive Branch and hence not subject to             426, 69 S.Ct. 1410, 93 L.Ed. 1451 (1949), the
judicial resolution. That argument has been           Court observed, 'courts must look behind
renewed in this Court with emphasis on the            names that symbolize the parties to determine
contention that the dispute does not present a        whether a justiciable case or controversy is
'case' or 'controversy' which can be adjudicated      presented.' Id., at 430, 69 S.Ct., at 1413. See
in the federal courts. The President's counsel        also Powell v. McCormack, 395 U.S. 486, 89
argues that the federal courts should not             S.Ct. 1944, 23 L.Ed.2d 491 (1969); ICC v.
intrude into areas committed to the other             Jersey City, 322 U.S. 503, 64 S.Ct. 1129, 88
branches of Government. He views the                  L.Ed. 1420 (1944); United States ex rel.
present dispute as essentially a 'jurisdictional'     Chapman v. FPC, 345 U.S. 153, 73 S.Ct. 609,
dispute within the Executive Branch which he          97 L.Ed. 918 (1953); Secretary of Agriculture
analogizes to a dispute between two                   v. United States, 347 U.S. 645, 74 S.Ct. 826,
congressional committees.            Since the        98 L.Ed. 1015 (1954); FMB v. Isbrandtsen
                                       United States v. Nixon                                Page 5

Co., 356 U.S. 481, 483 n. 2, 78 S.Ct. 851,           deportation cases. The Court held that so long
853, 2 L.Ed.2d 926 (1958); United States v.          as the Attorney General's regulations remained
Marine Bancorporation Inc., 418 U.S. 602, 94         operative, he denied himself the authority to
S.Ct. 2856, 41 L.Ed.2d 978; and United States        exercise the discretion delegated to the Board
v. Connecticut National Bank, 418 U.S. 656,          even though the original authority was his and
94 S.Ct. 2788, 41 L.Ed.2d 1016.                      he could reassert it by amending the
                                                     regulations. Service v. Dulles, 354 U.S. 363,
     Our starting point is the nature of the         388, 77 S.Ct. 1152, 1165, 1 L.Ed.2d 1403
proceeding for which the evidence is sought--        (1957), and Vitarelli v. Seaton, 359 U.S. 535,
here a pending criminal prosecution. It is a         79 S.Ct. 968, 3 L.Ed.2d 1012 (1959),
judicial proceeding in a federal court alleging      reaffirmed the basic holding of Accardi.
violation of federal laws and is brought in the
name of the United States as sovereign.                   Here, as in Accardi, it is theoretically
Verger v. United States, 295 U.S. 78, 88, 55         possible for the Attorney General to amend or
S.Ct. 629, 633, 79 L.Ed. 1314 (1935). Under          revoke the regulation defining the Special
the authority of Art. II, s 2, Congress has          Prosecutor's authority. But he has not done
vested in the Attorney General the power to          so. So long as this regulation remains in force
conduct the criminal litigation of the United        the Executive Branch is bound by it, and
States Government. 28 U.S.C. s 516. It has           indeed the United States as the sovereign
also vested in him the power to appoint              composed of the three branches is bound to
subordinate officers to assist him in the            respect and to enforce it. Moreover, the
discharge of his duties. 28 U.S.C. ss 509, 510,      delegation of authority to the Special
515, 533. Acting pursuant to those statutes,         Prosecutor in this case is not an ordinary
the Attorney General has delegated the               delegation by the Attorney General to a
authority to represent the United States in          subordinate officer: with the authorization of
these particular matters to a Special                the President, the Acting Attorney General
Prosecutor with unique authority and tenure.         provided in the regulation that the Special
The regulation gives the Special Prosecutor          Prosecutor was not to be removed without the
explicit power to contest the invocation of          'consensus' of eight designated leaders of
executive privilege in the process of seeking        Congress. N. 8, supra.
evidence deemed relevant to the performance
of these specially delegated duties. 38                   The demands of and the resistance to the
Fed.Reg. 30739, as amended by 38 Fed.Reg.            subpoena present an obvious controversy in
32805.                                               the ordinary sense, but that alone is not
                                                     sufficient to meet constitutional standards. In
     So long as this regulation is extant it has     the constitutional sense, controversy means
the force of law. In United States ex rel.           more than disagreement and conflict; rather it
Accardi v. Shaughnessy, 347 U.S. 260, 74             means the kind of controversy courts
S.Ct. 499, 98 L.Ed. 681 (1954), regulations of       traditionally resolve. Here at issue is the
the Attorney General delegated certain of his        production or nonproduction of specified
discretionary powers to the Board of                 evidence deemed by the Special Prosecutor to
Immigration Appeals and required that Board          be relevant and admissible in a pending
to exercise its own discretion on appeals in         criminal case. It is sought by one official of
                                        United States v. Nixon                                Page 6

the Executive Branch within the scope of his          Crim.Proc. 17(c), which governs the issuance
express authority; it is resisted by the Chief        of subpoenas duces tecum in federal criminal
Executive on the ground of his duty to                proceedings. If we sustained this challenge,
preserve the confidentiality of the                   there would be no occasion to reach the claim
communications of the President. Whatever             of privilege asserted with respect to the
the correct answer on the merits, these issues        subpoenaed material. Thus we turn to the
are 'of a type which are traditionally                question whether the requirements of Rule
justiciable.' United States v. ICC, 337 U.S., at      17(c) have been satisfied. See Arkansas
430, 69 S.Ct., at 1413. The independent               Louisiana Gas Co. v. Dept. of Public Utilities,
Special Prosecutor with his asserted need for         304 U.S. 61, 64, 58 S.Ct. 770, 771, 82 L.Ed.
the subpoenaed material in the underlying             1149 (1938); Ashwander v. TVA, 297 U.S.
criminal prosecution is opposed by the                288, 346--347, 56 S.Ct. 466, 482--483, 80
President with his steadfast assertion of             L.Ed. 688 (1936) (Brandeis, J., concurring).
privilege against disclosure of the material.              Rule 17(c) provides:
This setting assures there is 'that concrete
adverseness which sharpens the presentation of            'A subpoena may also command the
issues upon which the court so largely depends            person to whom it is directed to produce
for illumination of difficult constitutional              the books, papers, documents or other
questions'. Baker v. Carr, 369 U.S., at 204,              objects designated therein. The court on
82 S.Ct., at 703. Moreover, since the matter              motion made promptly may quash or
is one arising in the regular course of a federal         modify the supoena if compliance would
criminal prosecution, it is within the traditional        be unreasonable or oppressive. The court
scope of Art. III power. Id., at 198, 82 S.Ct.            may direct that books, papers, documents
691.                                                      or objects designated in the subpoena be
                                                          produced before the court at a time prior
     In light of the uniqueness of the setting in         to the trial or prior to the time when they
which the conflict arises, the fact that both             are to be offered in evidence and may
parties are officers of the Executive Branch              upon their production permit the books,
cannot be viewed as a barrier to justiciability.          papers, documents or objects orportions
It would be inconsistent with the applicable              thereof to be inspected by the parties and
law and regulation, and the unique facts of this          their attorneys.'
case to conclude other than that the Special
Prosecutor has standing to bring this action               A subpoena for documents may be
and that a justiciable controversy is presented       quashed if their production would be
for decision.                                         'unreasonable or oppressive,' but not
                                                      otherwise. The leading case in this Court
                                                      interpreting this standard is Bowman Dairy
                       III                            Co. v. United States, 341 U.S. 214, 71 S.Ct.
                                                      675, 95 L.Ed. 879 (1951). This case
                   Rule 17(c)                         recognized certain fundamental characteristics
     The subpoena duces tecum is challenged           of the subpoena duces tecum in criminal cases:
on the ground that the Special Prosecutor             (1) it was not intended to provide a means of
failed to satisfy the requirements of Fed.Rule        discovery for criminal cases, id., at 220, 71
                                       United States v. Nixon                                  Page 7

S.Ct. 675; (2) its chief innovation was to           one or more of the participants in the
expedite the trial by providing a time and place     conversations as to what was said at the time.
before trial for the inspection of subpoenaed        As for the remainder of the tapes, the identity
materials, ibid. As both parties agree, cases        of the participants and the time and place of
decided in the wake of Bowman have                   the conversations, taken in their total context,
generally     followed Judge Weinfeld's              permit a rational inference that at least part of
formulation in United States v. Iozia, 13            the conversations relate to the offenses
F.R.D. 335, 338 (SDNY 1952), as to the               charged in the indictment.
required showing. Under this test, in order to
require production prior to trial, the moving             We also conclude there was a sufficient
party must show: (1) that the documents are          preliminary showing that each of the
evidentiary and relevent; (2) that they are not      subpoenaed tapes contains evidence admissible
otherwise procurable reasonably in advance of        with respect to the offenses charged in the
trial by exercise of due diligence; (3) that the     indictment. The most cogent objection to the
party cannot properly prepare for trial without      admissibility of the taped conversations here at
such production and inspection in advance of         issue is that they are a collection of out-of-
trial and that the failure to obtain such            court statements by declarants who will not be
inspection may tend unreasonably to delay the        subject to cross-examination and that the
trial; and (4) that the application is made in       statements are therefore inadmissible hearsay.
good faith and is not intended as a general          Here, however, most of the tapes apparently
'fishing expedition.'                                contain conversations to which one or more of
                                                     the defendants named in the indictment were
     Against this background, the Special            party. The hearsay rule does not automatically
Prosecutor, in order to carry his burden, must       bar all out-of-court statements by a defendant
clear three hurdles: (1) relevancy; (2)              in a criminal case. Declarations by one
admissibility; (3) specificity. Our own review       defendant may also be admissible against other
of the record necessarily affords a less             defendants upon a sufficient showing, by
comprehensive view of the total situation than       independent evidence, of a conspiracy among
was available to the trial judge and we are          one or more other defendants and the delarant
unwilling to conclude that the District Court        and if the declarations at issue were in
erred in the evaluation of the Special               furtherance of that conspiracy. The same is
Prosecutor's showing under Rule 17(c). Our           true of declarations of coconspirators who are
conclusion is based on the record before us,         not defendants in the case on trial. Dutton v.
much of which is under seal. Of course, the          Evans, 400 U.S. 74, 81, 91 S.Ct. 210, 215, 27
contents of the subpoenaed tapes could not at        L.Ed.2d 213 (1970). Recorded conversations
that stage be described fully by the Special         may also be admissible for the limited purpose
Prosecutor, but there was a sufficient               of impeaching the credibility of any defendant
likelihood that each of the tapes contains           who testifies or any other coconspirator who
conversations relevant to the offenses charged       testifies. Generally, the need for evidence to
in the indictment. United States v. Gross, 24        impeach witnesses is insufficient to require its
F.R.D. 138 (SDNY 1959). With respect to              production in advance of trial. See, e.g.,
many of the tapes, the Special Prosecutor            United States v. Carter, 15 F.R.D. 367, 371
offered the sworn testimony or statements of         (DC 1954). Here, however, there are other
                                      United States v. Nixon                                 Page 8

valid potential evidentiary uses for the same       341 U.S. 214, 71 S.Ct. 675, 95 L.Ed. 879
material, and the analysis and possible             (1951); United States v. Iozia, 13 F.R.D. 335
transcription of the tapes may take a               (S.D.N.Y. 1952).
significant period of time. Accordingly, we
cannot conclude that the District Court erred                             IV
in authorizing the issuance of the subpoena
duces tecum.                                               THE CLAIM OF PRIVILEGE

     Enforcement of a pretrial subpoena duces                              A
tecum must necessarily be committed to the
sound discretion of the trial court since the            Having determined that the requirements
necessity for the subpoena most often turns         of Rule 17(c) were satisfied, we turn to the
upon a determination of factual issues.             claim that the subpoena should be quashed
Without a determination of arbitrariness or         because it demands 'confidential conversations
that the trial court finding was without record     between a President and his close advisors that
support, an appellate court will not ordinarily     it would be inconsistent with the public
disturb a finding that the applicant for a          interest to produce.' App. 48a. The first
subpoena complied with Rule 17(c). See, e.g.,       contention is a broad claim that the separation
Sue v. Chicago Transit Authority, 279 F.2d          of powers doctrine precludes judicial review of
416, 419 (CA7 1960); Shotkin v. Nelson, 146         a President's claim of privilege. The second
F.2d 402 (CA10 1944).                               contention is that if he does not prevail on the
                                                    claim of absolute privilege, the court should
     In a case such as this, however, where a       hold as a matter of constitutional law that the
subpoena is directed to a President of the          privilege prevails over the subpoena duces
United States, appellate review, in deference       tecum.
to a coordinate branch of Government, should
be particularly meticulous to ensure that the            In the performance of assigned
standards of Rule 17(c) have been correctly         constitutional duties each branch of the
applied. United States v. Burr, 25 F.Cas. pp.       Government must initially interpret the
30, 34 (No. 14,692d) (CC Va.1807). From             Constitution, and the interpretation of its
our examination of the materials submitted by       powers by any branch is due great respect
the Special Prosecutor to the District Court in     from the others. The President's counsel, as
support of his motion for the subpoena, we are      we have noted, reads the Constitution as
persuaded that the District Court's denial of       providing an absolute privilege of
the President's motion to quash the subpoena        confidentiality     for   all    Presidential
was consistent with Rule 17(c). We also             communications. Many decisions of this
conclude that the Special Prosecutor has made       Court, however, have unequivocally reaffirmed
a sufficient showing to justify a subpoena for      the holding of Marbury v. Madison, 1 Cranch,
production before trial. The subpoenaed             137, 2 L.Ed. 60 (1803), that '(i)t is
materials are not available from any other          emphatically the province and duty of the
source, and their examination and processing        judicial department to say what the law is.'
should not await trial in the circumstances         Id., at 177, 2 L.Ed. 60.
shown. Bowman Dairy Co. v. United States,
                                       United States v. Nixon                                   Page 9

     No holding of the Court has defined the             government, or whether the action of that
scope of judicial power specifically relating to         branch exceeds whatever authority has
the enforcement of a subpoena for confidential           been committed, is itself a delicate
Presidential communications for use in a                 exercise in constitutional interpretation,
criminal prosecution, but other exercises of             and is a responsibility of this Court as
power by the Executive Branch and the                    ultimate interpreter of the Constitution.'
Legislative Branch have been found invalid as
in conflict with the Constitution. Powell v.              Notwithstanding the deference each
McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23           branch must accord the others, the 'judicial
L.Ed.2d 491 (1969); Youngstown, Sheet &              Power of the United States' vested in the
Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct.           federal courts by Art. III, s 1, of the
863, 96 L.Ed. 1153 (1952). In a series of            Constitution can no more be shared with the
cases, the Court interpreted the explicit            Executive Branch than the Chief Executive,
immunity conferred by express provisions of          for example, can share with the Judiciary the
the Constitution on Members of the House and         veto power, or the Congress share with the
Senate by the Speech or Debate Clause,               Judiciary the power to override a Presidential
U.S.Const. Art. I, s 6. Doe v. McMillan, 412         veto. Any other conclusion would be contrary
U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912              to the basic concept of separation of powers
(1973); Gravel v. United States, 408 U.S. 606,       and the checks and balances that flow from the
92 S.Ct. 2614, 33 L.Ed.2d 583 (1972); United         scheme of a tripartite government. The
States v. Brewster, 408 U.S. 501, 92 S.Ct.           Federalist, No. 47, p. 313 (S. Mittell ed.
2531, 33 L.Ed.2d 507 (1972); United States v.        1938). We therefore reaffirm that it is the
Johnson, 383 U.S. 169, 86 S.Ct. 749, 15              province and duty of this Court 'to say what
L.Ed.2d 681 (1966). Since this Court has             the law is' with respect to the claim of privilege
consistently exercised the power to construe         presented in this case. Marbury v. Madison,
and delineate claims arising under express           supra, 1 Cranch. at 177, 2 L. Ed. 60.
powers, it must follow that the Court has
authority to interpret claims with respect to                                B
powers alleged to derive from enumerated
powers.                                                   In support of his claim of absolute
                                                     privilege, the President's counsel urges two
    Our system of government 'requires that          grounds, one of which is common to all
federal courts on occasion interpret the             governments and one of which is peculiar to
Constitution in a manner at variance with the        our system of separation of powers. The first
construction given the document by another           ground is the valid need for protection of
branch.' Powell v. McCormack, supra, 395             communications between high Government
U.S., at 549, 89 S.Ct., at 1978. And in Baker        officials and those who advise and assist them
v. Carr, 369 U.S., at 211, 82 S.Ct., at 706, the     in the performance of their manifold duties; the
Court stated:                                        importance of this confidentiality is too plain
                                                     to require further discussion.          Human
    '(D)eciding whether a matter has in any          experience teaches that those who expect
    measure been committed by the                    public dissemination of their remarks may well
    Constitution to another branch of                temper candor with a concern for appearances
                                        United States v. Nixon                                  Page 10

and for their own interests to the detriment of       difficult to accept the argument that even the
the decisionmaking process. Whatever the              very important interest in confidentiality of
nature of the privilege of confidentiality of         Presidential communications is significantly
Presidential communications in the exercise of        diminished by production of such material for
Art. II powers, the privilege can be said to          in camera inspection with all the protection
derive from the supremacy of each branch              that a district court will be obliged to provide.
within its own assigned area of constitutional
duties. Certain powers and privileges flow                 The impediment that an absolute,
from the nature of enumerated powers; the             unqualified privilege would place in the way of
protection of the confidentiality of                  the primary constitutional duty of the Judicial
Presidential communications has similar               Branch to do justice in criminal prosecutions
constitutional underpinnings.                         would plainly conflict with the function of the
                                                      courts under Art. III. In designing the
     The second ground asserted by the                structure of our Government and dividing and
President's counsel in support of the claim of        allocating the sovereign power among three
absolute privilege rests on the doctrine of           co-equal branches, the Framers of the
separation of powers. Here it is argued that          Constitution      sought    to     provide    a
the independence of the Executive Branch              comprehensive system, but the separate
within its own sphere, Humphrey's Executor v.         powers were not intended to operate with
United States, 295 U.S. 602, 629--630, 55             absolute independence.
S.Ct. 869, 874--875, 79 L.Ed. 1611 (1935);
Kilbourn v. Thompson, 103 U.S. 168, 190--                 'While the Constitution diffuses power the
191, 26 L.Ed. 377 (1881), insulates a                     better to secure liberty, it also
President from a judicial subpoena in an                  contemplates that practice will integrate
ongoing criminal prosecution, and thereby                 the dispersed powers into a workable
protects        confidential      Presidential            government. It enjoins upon its branches
communications.                                           separateness     but     interdependence,
                                                          autonomy but reciprocity.' Youngstown
     However, neither the doctrine of                     Sheet & Tube Co. v. Sawyer, 343 U.S., at
separation of powers, nor the need for                    635, 72 S.Ct., at 870 (Jackson, J.,
confidentiality of high-level communications,             concurring).
without more, can sustain an absolute,
unqualified Presidential privilege of immunity             To read the Art. II powers of the
from judicial process under all circumstances.        President as providing an absolute privilege as
The President's need for complete candor and          against a subpoena essential to enforcement of
objectivity from advisers calls for great             criminal statutes on no more than a generalized
deference from the courts. However, when              claim of the public interest in confidentiality of
the privilege depends solely on the broad,            nonmilitary and nondiplomatic discussions
undifferentiated claim of public interest in the      would upset the constitutional balance of 'a
confidentiality of such conversations, a              workable government' and gravely impair the
confrontation with other values arises. Absent        role of the courts under Art. III.
a claim of need to protect military, diplomatic,
or sensitive national security secrets, we find it                            C
                                        United States v. Nixon                                 Page 11

                                                      president as against an ordinary individual.'
     Since we conclude that the legitimate            United States v. Burr, 25 F.Cas., at 192.
needs of the judicial process may outweigh
Presidential privilege, it is necessary to resolve         But this presumptive privilege must be
those competing interests in a manner that            considered in light of our historic commitment
preserves the essential functions of each             to the rule of law. This is nowhere more
branch. The right and indeed the duty to              profoundly manifest than in our view that 'the
resolve that question does not free the               twofold aim (of criminal justice) is that guilt
Judiciary from according high respect to the          shall not escape or innocence suffer.' Berger
representations made on behalf of the                 v. United States, 295 U.S., at 88, 55 S.Ct., at
President. United States v. Burr, 25 F.Cas.           633. We have elected to employ an adversary
pp. 187, 190, 191--192 (No. 14,694)                   system of criminal justice in which the parties
(CCVa.1807).                                          contest all issues before a court of law. The
                                                      need to develop all relevant facts in the
      The expectation of a President to the           adversary system is both fundamental and
confidentiality of his conversations and              comprehensive. The ends of criminal justice
correspondence, like the claim of                     would be defeated if judgments were to be
confidentiality of judicial deliberations, for        founded on a partial or speculative
example, has all the values to which we accord        presentation of the facts. The very integrity of
deference for the privacy of all citizens and,        the judicial system and public confidence in the
added to those values, is the necessity for           system depend on full disclosure of all the
protection of the public interest in candid,          facts, within the framework of the rules of
objective, and even blunt or harsh opinions in        evidence. To ensure that justice is done, it is
Presidential decisionmaking. A President and          imperative to the function of courts that
those who assist him must be free to explore          compulsory process be available for the
alternatives in the process of shaping policies       production of evidence needed either by the
and making decisions and to do so in a way            prosecution or by the defense.
many would be unwilling to express except
privately.     These are the considerations                Only recently the Court restated the
justifying a presumptive privilege for                ancient proposition of law, albeit in the context
Presidential communications. The privilege is         of a grand jury inquiry rather than a trial,
fundamental to the operation of Government
and inextricably rooted in the separation of              'that 'the public . . . has a right to every
powers under the Constitution. In Nixon v.                man's evidence,' except for those persons
Sirica, 159 U.S.App.D.C. 58, 487 F.2d 700                 protected by a constitutional, common-
(1973), the Court of Appeals held that such               law, or statutory privilege, United States
Presidential         communications           are         v. Bryan, 339 U.S. (323, 331, 70 S.Ct.
'presumptively privileged,' id., at 75, 487 F.2d,         724, 730 (1949)); Blackmer v. United
at 717, and this position is accepted by both             States, 284 U.S. 421, 438 (52 S.Ct. 252,
parties in the present litigation. We agree with          76 L.Ed. 375) (1932). . . .' Branzburg v.
Mr. Chief Justice Marshall's observation,                 Hayes, United States, 408 U.S. 665, 688
therefore, that '(i)n no case of this kind would          (92 S.Ct. 2646, 33 L.Ed.2d 626) (1972).
a court be required to proceed against the
                                       United States v. Nixon                                Page 12

     The privileges referred to by the Court are
designed to protect weighty and legitimate                In United States v. Reynolds, 345 U.S. 1,
competing interests.         Thus, the Fifth         73 S.Ct. 528, 97 L.Ed. 727 (1953), dealing
Amendment to the Constitution provides that          with a claimant's demand for evidence in a
no man 'shall be compelled in any criminal case      Tort Claims Act case against the Government,
to be a witness against himself.' And,               the Court said:
generally, an attorney or a priest may not be
required to disclose what has been revealed in           'It may be possible to satisfy the court,
professional confidence. These and other                 from all the circumstances of the case,
interests are recognized in law by privileges            that there is a reasonable danger that
against forced disclosure, established in the            compulsion of the evidence will expose
Constitution, by statute, or at common law.              military matters which, in the interest of
Whatever their origins, these exceptions to the          national security, should not be divulged.
demand for every man's evidence are not                  When this is the case, the occasion for the
lightly created nor expansively construed, for           privilege is appropriate, and the court
they are in derogation of the search for truth.          should not jeopardize the security which
                                                         the privilege is meant to protect by
     In this case the President challenges a             insisting upon an examination of the
subpoena served on him as a third party                  evidence, even by the judge alone, in
requiring the production of materials for use in         chambers.' Id., at 10.
a criminal prosecution; he does so on the claim
that he has a privilege against diclosure of              No case of the Court, however, has
confidential communications. He does not             extended this high degree of deference to a
place his claim of privilege on the ground they      President's      generalized     interest     in
are military or diplomatic secrets. As to these      confidentiality. Nowhere in the Constitution,
areas of Art. II duties the courts have              as we have noted earlier, is there any explicit
traditionally shown the utmost deference to          reference to a privilege of confidentiality, yet
Presidential responsibilities. In C. & S. Air        to the extent this interest relates to the
Lines v. Waterman S.S. Corp., 333 U.S. 103,          effective discharge of a President's powers, it
111, 68 S.Ct. 431, 436, 92 L.Ed. 568 (1948),         is constitutionally based.
dealing with Presidential authority involving
foreign policy considerations, the Court said:            The right to the production of all evidence
                                                     at a criminal trial similarly has constitutional
    'The President, both as Commander-in-            dimensions. The Sixth Amendment explicitly
    Chief and as the Nation's organ for              confers upon every defendant in a criminal trial
    foreign affairs, has available intelligence      the right 'to be confronted with the witnesses
    services whose reports are not and ought         against him' and 'to have compulsory process
    not to be published to the world. It             for obtaining witnesses in his favor.
    would be intolerable that courts, without        Moreover, the Fifth Amendment also
    the relevant information, should review          guarantees that no person shall be deprived of
    and perhaps nullify actions of the               liberty without due process of law. It is the
    Executive taken on information properly          manifest duty of the courts to vindicate those
    held secret.'                                    guarantees, and to accomplish that it is
                                        United States v. Nixon                                Page 13

essential that all relevant and admissible            of due process of law in the fair administration
evidence be produced.                                 of criminal justice. The generalized assertion
                                                      of privilege must yield to the demonstrated,
     In this case we must weigh the importance        specific need for evidence in a pending
of the general privilege of confidentiality of        criminal trial.
Presidential communications in performance of
the President's responsibilities against the                                 D
inroads of such a privilege on the fair
administration of criminal justice. The interest           We have earlier determined that the
in preserving confidentiality is weighty indeed       District Court did not err in authorizing the
and entitled to great respect. However, we            issuance of the subpoena. If a President
cannot conclude that advisers will be moved to        concludes that compliance with a subpoena
temper the candor of their remarks by the             would be injurious to the public interest he
infrequent occasions of disclosure because of         may properly, as was done here, invoke a
the possibility that such conversations will be       claim of privilege on the return of the
called for in the context of a criminal               subpoena. Upon receiving a claim of privilege
prosecution.                                          from the Chief Executive, it became the further
                                                      duty of the District Court to treat the
     On the other hand, the allowance of the          subpoenaed material as presumptively
privilege to withhold evidence that is                privileged and to require the Special
demonstrably relevant in a criminal trial would       Prosecutor to demonstrate that the Presidential
cut deeply into the guarantee of due process of       material was 'essential to the justice of the
law and gravely impair the basic function of          (pending criminal) case.' United States v.
the courts. A President's acknowledged need           Burr, 25 Fed.Cas., at 192. Here the District
for confidentiality in the communications of his      Court treated the material as presumptively
office is general in nature, whereas the              privileged, proceeded to find that the Special
constitutional need for production of relevant        Prosecutor had made a sufficient showing to
evidence in a criminal proceeding is specific         rebut the presumption, and ordered an in
and central to the fair adjudication of a             camera examination of the subpoenaed
particular criminal case in the administration of     material. On the basis of our examination of
justice. Without access to specific facts a           the record we are unable to conclude that the
criminal prosecution may be totally frustrated.       District Court erred in ordering the inspection.
The President's broad interest in confidentiality     Accordingly we affirm the order of the District
of communications will not be vitiated by             Court that subpoenaed materials be
disclosure of a limited number of                     transmitted to that court. We now turn to the
conversations preliminarily shown to have             important question of the District Court's
some bearing on the pending criminal cases.           responsibilities in conducting the in camera
                                                      examination of Presidential materials or
     We conclude that when the ground for             communications delivered under the
asserting privilege as to subpoenaed materials        compulsion of the subpoena duces tecum.
sought for use in a criminal trial is based only
on the generalized interest in confidentiality, it                           E
cannot prevail over the fundamental demands
                                        United States v. Nixon                                     Page 14

      Enforcement of the subpoena duces tecum         under Art. II of a President's communications
was stayed pending this Court's resolution of         and activities, related to the performance of
the issues raised by the petitions for certiorari.    duties under that Article. Moreover, a
Those issues now having been disposed of, the         President's communications and activities
matter of implementation will rest with the           encompass a vastly wider range of sensitive
District Court. '(T)he guard, furnished to (the       material than would be true of any 'ordinary
President) to protect him from being harassed         individual.' It is therefore necessary in the
by vexatious and unnecessary subpoenas, is to         public interest to afford Presidential
be looked for in the conduct of a (district)          confidentiality the greatest protection
court after those subpoenas have issued; not in       consistent with the fair administration of
any circumstance which is to precede their            justice. The need for confidentiality even as to
being issued.' United States v. Burr, supra, at       idle conversations with associates in which
34.     Statements that meet the test of              casual reference might be made concerning
admissibility and relevance must be isolated; all     political leaders within the country or foreign
other material must be excised. At this stage         statesmen is too obvious to call for further
the District Court is not limited to                  treatment. We have no doubt that the District
representations of the Special Prosecutor as to       Judge will at all times accord to Presidential
the evidence sought by the subpoena; the              records that high degree of deference
material will be available to the District Court.     suggested in United States v. Burr, supra and
It is elementary that in camera inspection of         will discharge his responsibility to see to it that
evidence is always a procedure calling for            until released to the Special Prosecutor no in
scrupulous protection against any release or          camera material is revealed to anyone. This
publication of material not found by the court,       burden applies with even greater force to
at that stage, probably admissible in evidence        excised material; once the decision is made to
and relevant to the issues of the trial for which     excise, the material is restored to its privileged
it is sought. That being true of an ordinary          status and should be returned under seal to its
situation, it is obvious that the District Court      lawful custodian.
has a very heavy responsibility to see to it that
Presidential conversations, which are either               Affirmed.
not relevant or not admissible, are accorded
that high degree of respect due the President
of the United States. Mr. Chief Justice
Marshall, sitting as a trial judge in the Burr        Found at: 94 S.Ct. 3090, 418 U.S. 683, 41 L.Ed.2d 1039
case, supra, was extraordinarily careful to
point out that

    '(i)n no case of this kind would a court be
    required to proceed against the president
    as against an ordinary individual.' at 192.

    Marshall's statement cannot be read to
mean in any sense that a President is above the
law, but relates to the singularly unique role

								
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