United States v. Nixon; Nixon v. United States
Decided on July 24, 1974; 418 US 683

In a criminal trial "absent a claim of need to protect military, diplomatic, or sensitive national security secrets," an absolute presidential executive privilege from judicial process does not exist.



A. Issues Discussed: Executive privilege, discovery and inspection 

B. Legal Question Presented:

Does the U.S. President possess an "executive privilege" of unqualified immunity from judicial process?

A. Background:

"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...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...

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 and the President filed a cross-petition for such a writ challenging the grand-jury action. The Court granted both petitions."

On certiorari, the U.S. Supreme Court affirmed the judgment of the United States Court of Appeals for the District of Columbia Circuit.

B. Counsel of Record:
Opposing Side
 Unavailable Unavailable
C. The Arguments:
Opposing Side
"The President is not above the law, and he is subject to judicial orders. Executive privilege does not provide the President with absolute unreviewable discretion to withhold evidence. Executive privilege cannot be invoked in order to withhold evidence in a case where there is overwhelming supplementary evidence that the subpoenaed material relates to a crime."
"The separation of powers doctrine prevents the judicial branch from interfering with the discretionary powers vested in the executive and legislative branches. The case at hand presents an intra-executive disagreement, relating to evidentiary material being requested by one part of the department from another. There is no federally justiciable controversy here. The separation of powers doctrine prohibits judicial review of the President's claim of executive privilege. Absolute confidentiality is essential to executive decision-making."
Opposing Side
Leon Jaworski and Philip A. Lacovara argued the cause and filed briefs for the United States in both cases.

Norman Dorsen and Melvin L. Wulf filed a brief for the American Civil Liberties Union as amicus curiae urging affirmance of the District Court judgment.

James D. St. Clair argued the cause for the President in both cases. With him on the briefs were Charles Alan Wright, Leonard Garment, Michael A. Sterlacci, Jerome J. Murphy, Loren A. Smith, James R. Prochnow, Theodore J. Garrish, James J. Tansey, and Larry G. Gutterridge.
"...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. 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.

Although the courts will afford the utmost deference to Presidential acts in the performance of an Art. II function, 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.

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."

The United States Supreme Court affirmed the United States Court of Appeals for the District of Columbia Circuit judgment.

Justice Vote: 8 Pro vs. 0 Con
    • Burger, W. Pro (Wrote majority opinion)
    • Powell, L. Pro (Joined majority opinion)
    • White, B. Pro (Joined majority opinion)
    • Blackmun, H. Pro (Joined majority opinion)
    • Douglas, W. Pro (Joined majority opinion)
  • Brennan, W. Pro (Joined majority opinion)
  • Stewart, P. Pro (Joined majority opinion)
  • Marshall, T. Pro (Joined majority opinion)
  • Rehnquist, W. Took no part in decision

The ACLU, as amicus curiae, urged affirmance of the judgment of the Court of Appeals for the District of Columbia Circuit; the Supreme Court affirmed in a 8-0 vote, giving the ACLU an apparent win.