United States v. Nixon Nixon v. United States 8212 1766, 73 8212 1834

• Decision Date: 24 July 1974
• Docket Number: Nos. 73,s. 73
• Parties: UNITED STATES, Petitioner, v. Richard M. NIXON, President of the United States, et al. Richard M. NIXON, President of the United States, Petitioner, v. UNITED STATES. —1766, 73—1834
• Court: U.S. Supreme Court

418 U.S. 683

94 S.Ct. 3090

41 L.Ed.2d 1039

UNITED STATES, Petitioner,

v Richard M. NIXON, President of the United States, et al.

Richard M. NIXON, President of the United

States, Petitioner,

v. UNITED STATES.

Nos. 73—1766, 73—1834.

Argued July 8, 1974.

Decided July 24, 1974.

Syllabus

Following indictment alleging violation of federal statutes by certain staff members of the White House and political supporters of the President, the Special Prosecutor filed a motion under Fed.Rule Crim.Proc. 17(c) for a subpoena duces tecum for the production before trial of certain tapes and documents relating to precisely identified conversations and meetings between the President and others. The President, claiming executive privilege, filed a motion to quash the subpoena. The District Court, after treating the subpoenaed material as presumptively privileged, concluded that the Special Prosecutor had made a sufficient showing to rebut the presumption and that the requirements of Rule 17(c) had been satisfied. The court thereafter issued an order for an in camera examination of the subpoenaed material, having rejected the President's contentions (a) that the dispute between him and the Special Prosecutor was nonjusticiable as an 'intra-executive' conflict and (b) that the judiciary lacked authority to review the President's assertion of executive privilege. The court stayed its order pending appellate review, which the President then sought in the Court of Appeals. The Special Prosecutor then filed in this Court a petition for a writ of certiorari before judgment (No. 73—1766) and the President filed a cross-petition for such a writ challenging the grand-jury action (No. 73—1834) The Court granted both petitions. Held:

1. The District Courts order was appealable as a 'final' order under 28 U.S.C. § 1291, was therefore properly 'in' the Court of Appeals, 28 U.S.C. § 1254, when the petition for certiorari before judgment was filed in this Court, and is now properly before this Court for review. Although such an order is normally not final and subject to appeal, an exception is made in a 'limited class of cases where denial of immediate review would render impossible any review whatsoever of an individual's claims.' United States v. Ryan, 402 U.S. 530, 533, 91 S.Ct. 1580, 1582, 29 L.Ed.2d 85. Such an exception is proper in the unique circumstances of this case where it would be inappropriate to subject the President to the procedure of securing review by resisting the order and inappropriate to require that the District Court proceed by a traditional contempt citation in order to provide appellate review. Pp. 690—692.

2. The dispute between the Special Prosecutor and the President presents a justiciable controversy. Pp. 692—697.

(a) The mere assertion of an 'intrabranch dispute,' without more, does not defeat federal jurisdiction. United States v. ICC, 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451. P. 693.

(b) The Attorney General by regulation has conferred upon the Special Prosecutor unique tenure and authority to represent the United States and has given the Special Prosecutor explicit power to contest the invocation of executive privilege in seeking evidence deemed relevant to the performance of his specially delegated duties. While the regulation remains in effect, the Executive Branch is bound by it. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681. Pp. 694 696.

(c) The action of the Special Prosecutor within the scope of his express authority seeking specified evidence preliminarily determined to be relevant and admissible in the pending criminal case, and the President's assertion of privilege in opposition thereto, present issues 'of a type which are traditionally justiciable,' United States v. ICC, supra, 337 U.S., at 430, 69 S.Ct., at 1413, and the fact that both litigants are officers of the Executive Branch is not a bar to justiciability. Pp. 696—697.

3. From this Court's examination of the material submitted by the Special Prosecutor in support of his motion for the subpoena, much of which is under seal, it is clear that the District Court's denial of the motion to quash comported with Rule 17(c) and that the Special Prosecutor has made a sufficient showing to justify a subpoena for production before trial. Pp. 697—702.

4. Neither the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute unqualified presidential privilege of immunity from judicial process under all circumstances. See, e.g., Murbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60; Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 706, 7 L.Ed.2d 663. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the confidentiality of presidential communications is not significantly diminished by producing material for a criminal trial under the protected conditions of in camera inspection, and any absolute executive privilege under Art. II of the Constitution would plainly conflict with the function of the courts under the Constitution. Pp. 703 707.

5. Although the courts will afford the utmost deference to presidential acts in the performance of an Art. II function, United States v. Burr, 25 F.Cas. pp. 187, 190, 191—192 (No. 14,694), when a claim of presidential privilege as to materials subpoenaed for use in a criminal trial is based, as it is here, not on the ground that military or diplomatic secrets are implicated, but merely on the ground of a generalized interest in confidentiality, the President's generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial and the fundamental demands of due process of law in the fair administration of criminal justice. Pp. 707—713.

6. On the basis of this Court's examination of the record, it cannot be concluded that the District Court erred in ordering in camera examination of the subpoenaed material, which shall now forthwith be transmitted to the District Court. Pp. 713—714.

7. Since a President's communications encompass a vastly wider range of sensitive material than would be true of an ordinary individual, the public interest requires that presidential confidentiality be afforded the greatest protection consistent with the fair administration of justice, and the District Court has a heavy responsibility to ensure that material involving presidential conversations irrelevant to or inadmissible in the criminal prosecution be accorded the high degree of respect due a President and that such material be returned under seal to its lawful custodian. Until released to the Special Prosecutor no in camera material is to be released to anyone. Pp. 714—716.

No. 73—1766, 377 F.Supp. 1326, affirmed; No. 73—1834, certiorari dismissed as improvidently granted.

Leon Jaworski and Philip A. Lacovara, Washington, D.C., for United States.

James D. St. Clair, Washington, D.C., for the President.

Mr. Chief Justice BURGER delivered the opinion of the Court.

This litigation presents for review the denial of a motion, filed in the District Court on behalf of the President of the United States, in the case of United States v. Mitchell et al. (D.C.Crim. No. 74—110), 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's claims of absolute executive privilege, of lack of jurisdiction, and of failure to satisfy the requirements of Rule 17(c). The President appealed to the Court of Appeals. We granted both the United States' petition for certiorari before judgment (No. 73—1766),¹ and also the President's cross-petition for certio- rari before judgment (No. 73—1834),² because of the public importance of the issues presented and the need for their prompt resolution 417 U.S. 927 and 960, 94 S.Ct. 2637 and 3162, 41 L.Ed.2d 231 (1974).

On March 1, 1974, a grand jury of the United States District Court for the District of Columbia returned an indictment charging seven named individuals ³ with various offenses, including conspiracy to defraud the United States and to obstruct justice. Although he was not designated as such in the indictment, the grand jury named the President, among others, as an unindicted coconspirator.⁴ On April 18, 1974, upon motion of the Spe- cial Prosecutor, see n. 8, infra, a subpoena duces tecum was issued pursuant to Rule 17(c) to the President by the United States District Court and made returnable on May 2, 1974. This subpoena required the production, in advance of the September 9 trial date, of certain tapes, memoranda, papers, transcripts or other writings relating to certain precisely identified meetings between the President and others.⁵ The Special Prosecutor was able to fix the time, place, and persons present at these discussions because the White House daily logs and appointment records had been delivered to him. On April 30, the President publicly released edited transcripts of 43 conversations; portions of 20 conversations subject to subpoena in the present case were included. On May 1, 1974, the President's counsel, filed a 'special appearance' and a motion to quash the subpoena under Rule 17(c). This motion was accompanied by a formal claim of privilege. At a subsequent hearing,⁶ further motions to expunge the grand jury's action naming the President as an unindicted coconspirator and for protective orders against the disclosure of that information were filed or raised orally by counsel for the President.

On May 20, 1974, the District Court denied the motion to quash and the motions to expunge and for protective orders. 377 F.Supp. 1326. It further ordered 'the President or any subordinate...