Chief Justice Burger (Opinion of the Court)
418 U.S. 683
July 24, 1974
In November 1972, Richard Nixon won a second term as president, decisively defeating the Democratic candidate, George McGovern. But toward the end of the campaign a group of burglars broke into the Democratic Party campaign headquarters in Washington’s Watergate complex. Thanks in large part to the determined investigative reporting of the Washington Post, what had been a small news story soon expanded, as reporters uncovered tracks leading to high government officials. The Nixon administration denied any wrongdoing, but it soon became clear that it had tried to cover up the burglary and connections to it, connections that might even include the president. Under congressional and public pressure, Nixon appointed a special prosecutor. When it was learned that the president had secretly taped conversations in the Oval Office, the prosecutor filed a subpoena to secure tapes he believed relevant to the criminal investigation. In March 1974, a federal grand jury indicted seven associates of President Nixon for conspiracy to obstruct justice and other offenses relating to the Watergate burglary. The president himself was named as an unindicted co-conspirator. The District Court, upon the motion of the special prosecutor, issued a subpoena to the president requiring him to produce certain tapes and documents relating to precisely identified meetings between the president and others. Although President Nixon released edited transcripts of some of the subpoenaed conversations, his counsel filed a “special appearance” and moved to quash the subpoena on the grounds of executive privilege. When the District Court denied the motion, the president appealed and the case was quickly brought to the Supreme Court. In the following portion of the Court’s unanimous opinion, the Supreme Court dealt with two key issues, the power of the judiciary as the ultimate arbiter of the Constitution, and the claim of the president that, in the name of executive privilege, he could choose to withhold materials germane to a criminal investigation. Chief Justice Burger reaffirmed the rulings of Marbury v. Madison and Cooper v. Aaron that under the Constitution the courts have the final voice in determining constitutional questions, and that no person, not even the president of the United States, is above the law. Although there had been some speculation as to whether Nixon would obey the Court, within eight hours after the decision had been handed down the White House announced it would comply. On August 5, 1974, transcripts of sixty-four tape recordings were released, including one that was particularly damaging in regard to White House involvement in the Watergate cover-up. Three days later, his support in Congress almost completely gone, Nixon announced that he would resign.
United States v. Nixon
Mr. Chief Justice Burger delivered the opinion of the Court. This litigation presents for review the denial of a motion, filed [on] behalf of the [President] in the case of United States v. Mitchell et al., to quash a third-party subpoena duces tecum…direct[ing] the President to produce certain tape recordings and documents relating to his conversations with aides and advisers. The court rejected the President’s claims of absolute executive privilege, [and] of lack of jurisdiction…. A. …we 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 other. 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 “it 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 related to the enforcement of a subpoena for confidential Presidential communications for use in a criminal prosecution, but other exercises of powers by the Executive Branch and the Legislative Branch have been found invalid as in conflict with the Constitution. In a series of cases, the Court interpreted the explicit immunity conferred by express provisions of the Constitution on Members of the House and Senate by the Speech or Debate Clause. 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 interpret claims with respect to powers.
…Notwithstanding the deference each branch must accord the others, the “judicial Power of the United States” vested in the federal courts by [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. We therefore reaffirm that it is the province and the duty of this Court “to say what the law is” with respect to the claim of privilege presented in this case.
B. In support of his claim of absolute privilege, the President’s counsel urges two grounds. The first is 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 decision-making 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 areas of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of Presidential communications has similar constitutional underpinnings.
The second ground asserted to support the claim of absolute privilege 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 court. 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 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. In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the [Framers] sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence. 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.
C. 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 right and indeed the duty to resolve that question does not free the Judiciary from according high respect to the representations made on behalf of the President.
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 the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. 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.
…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.”…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…. 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. …The [evidentiary] privileges are designed to protect weighty and legitimate competing interests… [and] 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. As to these areas of Art. II duties the courts have traditionally shown the utmost deference to Presidential responsibilities…. 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 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.
The right to the production of all evidence at a criminal trial similarly has constitutional dimensions…. It is the manifest duty of the courts to vindicate [the Sixth and Fifth Amendment] guarantees and to accomplish that it is essential that all relevant and admissible evidence be produced.
In this case we must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of his responsibilities against inroads of such 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. 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 trials. 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 interests 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.
D. …If a President concludes that a compliance with a subpoena would be injurious to the public interest he may properly, as was done here, invoke a claim of privilege on the return of the subpoena. Upon receiving a claim of privilege from the Chief Executive, it became the further duty of the District Court to treat the subpoenaed material as presumptively privileged and to require the Special Prosecutor to demonstrate that the Presidential material was “essential to the justice of the case.” …We affirm the order of the District Court that subpoenaed materials be transmitted to that court. We now turn to the important question of the District Court’s responsibilities in conducting the in camera examination of Presidential materials or communications delivered under the compulsion of the subpoena duces tecum.
E. …Statements that meet the test of admissibility and relevance must be isolated; all other material must be excised. …The District Court has a very heavy responsibility to see to it that Presidential conversation, which are either not relevant or not admissible, are accorded that high degree of respect due the President. Mr. Chief Justice Marshall sitting as a trial judge…was extraordinarily careful to point out that: “In no case of this kind would a Court be required to proceed against the president as against an ordinary individual.” 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 under Art. II of a President’s communications and activities, related to the performance of duties under that Article. Moreover, a President’s communications and activities encompass a vastly wider range of sensitive material than would be true of any “ordinary individual.” It is therefore necessary in the public interest to afford Presidential confidentiality the greatest protection consistent with the fair administration of justice. The need for confidentiality even as to idle conversation with associates in which casual reference might be made concerning political leaders within the country or foreign statesmen is too obvious to call for further treatment. We have no doubt that the District Judge will at all times accord to Presidential records that high degree of deference suggested….
Source: 418 U.S. 683 (1974).