United States v. Nixon, 418 U.S. 683 (1974)
[During the early morning hours of June 17, 1972, Frank Wills, a security
guard at the Watergate office/apartment complex in the Foggy Bottom area of
Washington, D.C., noticed a piece of tape covering the locks on the doors.
He searched for the possible intruders to the Watergate office complex. He
found five men in the offices of the Democratic National Committee, all of
whom were arrested. The plan to burglarize and bug the DNC was hatched in
March 1972. G. Gordon Liddy, general counsel to Nixon’s re-election
committee, along with E. Howard Hunt, another former CIA operative, and
James McCord, planned the break-in. It took place on May 28, but the bug
worked poorly. This led to the second break-in, which begins the Watergate
Shortly after the burglars were arrested, both Liddy and Hunt were arrested. In November 1972, Nixon was reelected in a landslide, losing only the electoral votes of Massachusetts and the District of Columbia. In January 1973, the trial of the Watergate burglars began. They pleaded guilty on all counts. McCord and Liddy were convicted on all counts, and the trial judge, John Sirica, sentenced them to the maximum term.
In the meantime, the Senate opened an investigation into Republican campaign tactics. On March 19, 1973, McCord sent a letter to Sirica claiming a coverup of the Watergate burglary. In fact, Richard Nixon had ordered a coverup of the burglary just days after the arrest of the burglars. The next month, Nixon aides H.R. Haldeman and John Ehrlichman resigned, as did Attorney General Richard Kleindienst. Elliot Richardson was nominated to replace Kleindienst. As a condition of his confirmation, the Senate required Richardson to appoint a special prosecutor on Watergate. Richardson settled on Archibald Cox, a noted Supreme Court litigator and constitutional law scholar who taught at Harvard Law School. On June 25, John Dean, the President’s legal counsellor, testified before the Senate committee that the President had known of the burglary cover-up as early as September 15, and that Dean had later spoken with Nixon and Nixon aided in the obstruction of justice by the cover-up. Nixon aide Alexander Butterfield testified before the Senate in July 1973 that the President taped all Oval Office conversations, and the committee requested the President give them tapes of certain crucial meetings.
The next week, both the Senate Investigating Committee and Special Prosecutor Cox requested the tapes. Cox asked Sirica for a subpoena duces tecum. Sirica signed the subpoena, and the Senate issued a subpoena as well.
Nixon’s refused to accept the court’s subpoena on separation of powers grounds. The arguments in Sirica’s court began on August 22, 1973. The first issue was whether the show cause order (requiring the President to show cause why a contempt citation should not issue) should be issued. That depended on whether the President had the constitutional power to determine without court supervision, which of the President’s materials were discoverable. Based on Marbury v. Madison, courts have the power to decide questions of constitutionality. The second, and related issue, was whether the President would comply with any judicial order, and if not, how the court would enforce the subpoena. The next week, Sirica ordered production of the requested tapes to him for in camera review to determine whether any material was privileged.
Nixon declared he would produce the tapes only upon a definitive ruling by the Supreme Court. In October, the Court of Appeals upheld Sirica’s order, the Arab-Israeli War of 1973 broke out and Vice-President Spiro Agnew resigned from office after pleading guilty to bribery charges that occurred during his tenure as Governor of Maryland. Nixon attempted to compromise the tapes issue by having Senator John Stennis of Mississippi "verify" the transcripts of the tapes, and also ordered Cox not to use the judicial process to obtain any other material. On Friday, October 19, John Dean pled guilty to one charge of obstructing justice. On Saturday, Nixon ordered Chief-of-Staff Alexander Haig to tell Richardson to fire Cox. Richardson refused and resigned. William Ruckelshaus, Deputy Attorney General, also refused and resigned. The Solicitor General, Robert Bork, on leave from his professorship at Yale, fired Cox. Nixon refused to appeal the order of the Court of Appeals or to produce the tapes. Yet, the next Tuesday, Nixon’s lawyer, Charles Alan Wright, stated that the President would comply with the court’s order for in camera inspection.
This didn’t end the saga, however, for in "complying" the President had his lawyers and staffers indicate that most of the tapes were either missing or nonexistent. To ease his political problems, Nixon announced the appointment of another special prosecutor, Leon Jaworski, a conservative Democrat and well-known lawyer from Houston. A tape from a June 20, 1972, meeting of Nixon, Haldeman and Ehrlichman (three days after the Watergate break-in) had an 18 minute erasure that appeared not to have been accidental. Rose Mary Woods, Nixon’s longtime secretary and personal assistant, accepted responsibility for the erasure, which she stated was accidental. In truth, no one knows how the tape was erased.
In January 1974, the House Judiciary Committee began its impeachment inquiry. At that time, Jaworski indicated that the President had refused to produce other relevant tapes. On March 1, Mitchell, Haldeman, Ehrlichman and others were indicted on charges of obstruction of justice and conspiracy. Nixon was named an unindicted co-conspirator, which was made public two months later. In mid-April, Jaworski requested Sirica issue a subpoena for more tapes. Sirica agreed to do so. On May 24, Nixon appealed the order to the Court of Appeals. Jaworski filed a petition for certiorari with the Supreme Court the same day, which the Court granted on May 31.
The constitutionality of Sirica’s second subpoena on the tapes was heard by the Supreme Court on July 8, 1974, at a rare July session. The following opinion was released on July 25.]
Mr. Chief Justice BURGER delivered the opinion of the Court.
This litigation presents for review 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. Rule Crim. Proc. 17(c). The subpoena directed the President to produce certain tape recordings and documents relating to his conversations with aides and advisers. The court rejected the President’ claims of absolute executive privilege [and] of lack of jurisdiction.
THE CLAIM OF PRIVILEGE
[W]e turn to the claim that the subpoena should be quashed because it demands ‘confidential conversations between a President and his close advisors that it would be inconsistent with the public interest to produce.’ The first contention is a broad claim that the separation of powers doctrine precludes judicial review of a President’s claim of privilege. The second contention is that if he does not prevail on the claim of absolute privilege, the court should hold as a matter of constitutional law that the privilege prevails over the subpoena duces tecum.
In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others. The President’s counsel reads the Constitution as providing an absolute privilege of confidentiality for all Presidential communications. Many decisions of this Court, however, have unequivocally reaffirmed the holding of Marbury v. Madison, that ‘[i]t is emphatically the province and duty of the judicial department to say what the law is.’
No holding of the Court has defined the scope of judicial power specifically relating to the enforcement of a subpoena for confidential Presidential communications for use in a criminal prosecution, but other exercises of power by the Executive Branch and the Legislative Branch have been found invalid as in conflict with the Constitution. Youngstown, Sheet & Tube Co. Since this Court has consistently exercised the power to construe and delineate claims arising under express powers, it must follow that the Court has authority to interpret claims with respect to powers alleged to derive from enumerated powers.
Notwithstanding the deference each branch must accord the others, the ‘judicial Power of the United States’ vested in the federal courts by Art. III, § 1, of the Constitution can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto. Any other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government. The Federalist, No. 47. We therefore reaffirm that it is the province and duty of this Court ‘to say what the law is’ with respect to the claim of privilege presented in this case. Marbury v. Madison.
In support of his claim of absolute privilege, the President’s counsel urges the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties; the importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process. Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers;[FN 16] the protection of the confidentiality of Presidential communications has similar constitutional underpinnings.
The second ground asserted by the President’s counsel rests on the doctrine of separation of powers. Here it is argued that the independence of the Executive Branch within its own sphere, insulates a President from a judicial subpoena in an ongoing criminal prosecution, and thereby protects confidential Presidential communications.
However, neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President’s need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.
The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Art. III.
To read the Art. II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of ‘a workable government’ and gravely impair the role of the courts under Art. III.
Since we conclude that the legitimate needs of the judicial process may outweigh Presidential privilege, it is necessary to resolve those competing interests in a manner that preserves the essential functions of each branch.
The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution. We agree with Mr. Chief Justice Marshall’s observation, therefore, that ‘[i]n no case of this kind would a court be required to proceed against the president as against an ordinary individual.' United States v. Burr, 25 F.Cas., at 192.
But this presumptive privilege must be considered in light of our historic commitment to the rule of law. This is nowhere more profoundly manifest than in our view that ‘the twofold aim (of criminal justice) is that guilt shall not escape or innocence suffer.’ We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.
Only recently the Court restated the ancient proposition of law, albeit in the context of a grand jury inquiry rather than a trial, "that ‘the public . . . has a right to every man’s evidence,’ except for those persons protected by a constitutional, common-law, or statutory privilege."
The privileges referred to by the Court are designed to protect weighty and legitimate competing interests. Thus, the Fifth Amendment to the Constitution provides that no man ‘shall be compelled in any criminal case to be a witness against himself.’ And, generally, an attorney or a priest may not be required to disclose what has been revealed in professional confidence. These and other interests are recognized in law by privileges against forced disclosure, established in the Constitution, by statute, or at common law. Whatever their origins, these exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.
In this case the President challenges a subpoena served on him as a third party requiring the production of materials for use in a criminal prosecution; he does so on the claim that he has a privilege against disclosure of confidential communications. He does not place his claim of privilege on the ground they are military or diplomatic secrets.
No case of the Court, however, has extended this high degree of deference to a President’s generalized interest in confidentiality. Nowhere in the Constitution, as we have noted earlier, is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President's powers, it is constitutionally based.
In this case we must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of the President’s responsibilities against the inroads of such a privilege on the fair administration of criminal justice. The interest in preserving confidentiality is weighty indeed and entitled to great respect. However, we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution.
On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President’s acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. The President’s broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases.
We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.
[FN 16] The Special Prosecutor argues that there is no provision in the Constitution for a Presidential privilege as to the President’s communications corresponding to the privilege of Members of Congress under the Speech or Debate Clause. But the silence of the Constitution on this score is not dispositive. ‘The rule of constitutional interpretation announced in McCulloch v. Maryland, that that which was reasonably appropriate and relevant to the exercise of a granted power was to be considered as accompanying the grant, has been so universally applied that it suffices merely to state it.’ Marshall v. Gordon, 243 U.S. 521, 537 (1917).
NOTE—Less than a week later, the House Judiciary Committee voted to impeach President Nixon for obstructing justice in the Watergate burglary, misusing executive agencies and violating the constitutional rights of citizens and willfully disobeying a Congressional subpoena. Nixon agreed to make the tapes available to Jaworski on August 5, and tapes of a meeting on June 23, 1972 indicated that the President was aware of the coverup of Watergate from its beginning. Nixon resigned the Presidency on August 9. The House then abandoned its impeachment proceedings. On Sunday morning, September 8, 1974, President Gerald Ford announced on camera that he was pardoning former President Richard Nixon, thus ending the political crisis of Watergate. (The criminal trials of Watergate defendants continued until 1977.)