U.S. Supreme Court
UNITED STATES v. NIXON, (418 U.S. 683 (1974))
UNITED STATES v. NIXON, PRESIDENT OF THE UNITED STATES, ET AL. CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT.
Argued July 8, 1974.
Decided July 24, 1974. *
[ Footnote * ] Together with No. 73-1834, Nixon, President of the United States v. United States, also on certiorari before judgment to the same court.
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. 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. On April 18, 1974, upon motion of the Special Prosecutor, 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. The subpoena required the production of certain tapes, memoranda, papers, transcripts, or other writings relating to certain precisely identified meetings between the President and others.
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.
On May 20, 1974, the District Court denied the motion to quash and the motions to expunge and for protective orders., it further ordered to deliver to the District Court, on or before May 31, 1974, the originals of all subpoenaed items, as well as an index and analysis of those items, together with tape copies of those portions of the subpoenaed recordings for which transcripts had been released to the public by the President on April 30. The District Court rejected jurisdictional challenges based on a contention that the dispute was nonjusticiable because it was between the Special Prosecutor and the Chief Executive and hence "intra-executive" in character.
The District Court held that the judiciary, not the President, was the final arbiter of a claim of executive privilege. The court concluded that, under the circumstances of this case, the presumptive privilege was overcome by the Special Prosecutor's prima facie "demonstration of need sufficiently compelling to warrant judicial examination in chambers . . . ." On May 24, 1974, the President filed a timely notice of appeal from the District Court order, and the certified record from the District Court. On May 31, the petition was granted with an expedited briefing schedule. On June 6, the President filed, under seal, a cross-petition for writ of certiorari before judgment. This cross-petition was granted June 15, 1974, and the case was set for argument on July 8, 1974.
Whether or not the subpoena duces tecum is binding upon the President of the United States based on the principles of executive privilege and separation of powers.
Yes, the subpoena is binding upon the President of the Unites States.
The threshold question presented is whether the May 20, 1974, order of the District Court was an appealable order and whether this case was properly "in" the Court of Appeals when the petition for certiorari was filed in this Court. The jurisdiction of the Court of Appeals encompasses only “final decisions of the district courts”. In applying this principle to an order denying a motion to quash and requiring the production of evidence pursuant to a subpoena duces tecum, it has been reportedly held that the order is not final and hence not appealable.
This Court has, in an earlier case:
"consistently held that the necessity for expedition in the administration of the criminal law justifies putting one who seeks to resist the production of desired information to a choice between compliance with a trial court's order to produce prior to any review of that order, and resistance to that order with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal."
This would mean that a third party who has been issued a subpoena to produce documents would basically have only 2 options: first, to comply with such order and second, to resist to the order with the possibility of being held in contempt if the third party’s claims are rejected on appeal. In the case at bar, the traditional contempt avenue to immediate appeal is peculiarly inappropriate due to the unique setting of the case. These considerations lead us to conclude that the order of the District Court was an appealable order.
In the District Court, the President’s counsel argued that the court lacked jurisdiction to issue the subpoena because the matter was an inter-branch dispute between a subordinate and superior officer of the Executive branch. Since the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case, it is contended that a President's decision is final in determining what evidence is to be used in a given criminal case. Although his counsel concedes that the President has delegated certain specific powers to the Special Prosecutor, he has not "waived nor delegated to the Special Prosecutor the President's duty to claim privilege as to all materials . . . which fall within the President's inherent authority to refuse to disclose to any executive officer."
However, the mere assertion of a claim of an "intra-branch dispute," without more, has never operated to defeat federal jurisdiction; justiciability does not depend on such a surface inquiry. The issue is the production or nonproduction of specified evidence deemed by the Special Prosecutor to be relevant and admissible in a pending criminal case. It is sought by one official of the Executive Branch within the scope of his express authority; it is resisted by the Chief Executive on the ground of his duty to preserve the confidentiality of the communications of the President. Whatever the correct answer on the merits, these issues are "of a type which are traditionally justiciable." In light of the uniqueness of the setting in which the conflict arises, the fact that both parties are officers of the Executive Branch cannot be viewed as a barrier to justiciability.
III. RULE 17(c)
The subpoena duces tecum is challenged on the ground that the Special Prosecutor failed to satisfy the requirements of Fed. Rule Crim. Proc. 17 (c), which governs. the issuance of subpoenas duces tecum in federal criminal proceedings. If we sustained this challenge, there would be no occasion to reach the claim of privilege asserted with respect to the subpoenaed material.
Rule 17 (c) provides:
"A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys."
A subpoena for documents may be quashed if their production would be "unreasonable or oppressive," but not otherwise. This case recognized certain fundamental characteristics of the subpoena duces tecum in criminal cases: (1) it was not intended to provide a means of discovery for criminal cases of subpoenaed materials. Under this test, in order to require production prior to trial, the moving party must show: (1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general "fishing expedition."
Our conclusion is based on the record before us, much of which is under seal. Of course, the contents of the subpoenaed tapes could not at that stage be described fully by the Special Prosecutor, but there was a sufficient likelihood that each of the tapes contains conversations relevant to the offenses charged in the indictment. We also conclude there was a sufficient preliminary showing that each of the subpoenaed tapes contains evidence admissible with respect to the offenses charged in the indictment. The most cogent objection to the admissibility of the taped conversations here at issue is that they are a collection of out-of-court statements by declarants who will not be subject to cross-examination and that the statements are therefore inadmissible hearsay. Here, however, most of the tapes apparently contain conversations to which one or more of the defendants named in the indictment were party. The hearsay rule does not automatically bar all out-of-court statements by a defendant in a criminal case. Declarations by one defendant may also be admissible against other defendants upon a sufficient showing, by independent evidence, of a conspiracy among one or more other defendants and the declarant and if the declarations at issue were in furtherance of that conspiracy. The same is true of declarations of coconspirators who are not defendants in the case on trial. Recorded conversations may also be admissible for the limited purpose of impeaching the credibility of any defendant who testifies or any other coconspirator who testifies. Generally, the need for evidence to impeach witnesses is insufficient to require its production in advance of trial. Here, however, there are other valid potential evidentiary uses for the same material, and the analysis and possible transcription of the tapes may take a significant period of time. Accordingly, we cannot conclude that the District Court erred in authorizing the issuance of the subpoena duces tecum.
[w]e are persuaded that the District Court's denial of the President's motion to quash the subpoena was consistent with Rule 17 (c). We also conclude that the Special Prosecutor has made a sufficient showing to justify a subpoena for production before trial. The subpoenaed materials are not available from any other source, and their examination and processing should not await trial in the circumstances shown.
IV. THE CLAIM OF PRIVILEGE
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.
Our system of government "requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch." Powell v. McCormack, supra, at 549. And in Baker v. Carr, 369 U.S., at 211 , the Court stated:
"Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution."
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.
In support of his claim of absolute privilege, the President's counsel urges two grounds, one of which is common to all governments and one of which is peculiar to our system of separation of powers. The first ground 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. 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.
The second ground asserted by the President's counsel in support of 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, it insulates a President from a judicial subpoena in an ongoing criminal prosecution, and thereby protects confidential Presidential communications.
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. 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.
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.
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. The presumptive privilege [confidentiality of his conversations] must be considered with the historic commitment of the rule of law, specifically the twofold aim that guilt shall not escape or innocence shall not suffer. The Sixth Amendment explicitly confers upon every defendant in a criminal trial the right "to be confronted with the witnesses against him" and "to have compulsory process for obtaining witnesses in his favor." Moreover, the Fifth Amendment also guarantees that no person shall be deprived of liberty without due process of law.
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 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.
We have earlier determined that the District Court did not err in authorizing the issuance of the subpoena. If a President concludes that 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 [pending criminal] case."
Those issues now having been disposed of, the matter of implementation will rest with the District Court. "[T]he guard, furnished to [the President] to protect him from being harassed by vexatious and unnecessary subpoenas, is to be looked for in the conduct of a [district] court after those subpoenas have issued; not in any circumstance which is to precede their being issued." Statements that meet the test of admissibility and relevance must be isolated; all other material must be excised. It is elementary that in camera inspection of evidence is always a procedure calling for scrupulous protection against any release or publication of material not found by the court, at that stage, probably admissible in evidence and relevant to the issues of the trial for which it is sought.
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 conversations 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.
THE PRESIDENT AND THE VICE-PRESIDENT SHALL BE ELECTED BY DIRECT VOTE OF THE PEOPLE FOR A TERM OF SIX YEARS WHICH SHALL BEGIN AT NOON ON THE THIRTIETH DAY OF JUNE NEXT FOLLOWING THE DAY OF THE ELECTION AND SHALL END AT NOON OF THE SAME DATE, SIX YEARS THEREAFTER. THE PRESIDENT SHALL NOT BE ELIGIBLE FOR ANY RE-ELECTION. NO PERSON WHO HAS SUCCEEDED AS PRESIDENT AND HAS SERVED AS SUCH FOR MORE THAN FOUR YEARS SHALL BE QUALIFIED FOR ELECTION TO THE SAME OFFICE AT ANY TIME.
NO VICE-PRESIDENT SHALL SERVE FOR MORE THAN TWO SUCCESSIVE TERMS. VOLUNTARY RENUNCIATION OF THE OFFICE FOR ANY LENGTH OF TIME SHALL NOT BE CONSIDERED AS AN INTERRUPTION IN THE CONTINUITY OF THE SERVICE FOR THE FULL TERM FOR WHICH HE WAS ELECTED.
UNLESS OTHERWISE PROVIDED BY LAW, THE REGULAR ELECTION FOR PRESIDENT AND VICE-PRESIDENT SHALL BE HELD ON THE SECOND MONDAY OF MAY.
THE RETURNS OF EVERY ELECTION FOR PRESIDENT AND VICE-PRESIDENT, DULY CERTIFIED BY THE BOARD OF CANVASSERS OF EACH PROVINCE OR CITY, SHALL BE TRANSMITTED TO THE CONGRESS, DIRECTED TO THE PRESIDENT OF THE SENATE. UPON RECEIPT OF THE CERTIFICATES OF CANVASS, THE PRESIDENT OF THE SENATE SHALL, NOT LATER THAN THIRTY DAYS AFTER THE DAY OF THE ELECTION, OPEN ALL THE CERTIFICATES IN THE PRESENCE OF THE SENATE AND THE HOUSE OF REPRESENTATIVES IN JOINT PUBLIC SESSION, AND THE CONGRESS, UPON DETERMINATION OF THE AUTHENTICITY AND DUE EXECUTION THEREOF IN THE MANNER PROVIDED BY LAW, CANVASS THE VOTES.
THE PERSON HAVING THE HIGHEST NUMBER OF VOTES SHALL BE PROCLAIMED ELECTED, BUT IN CASE TWO OR MORE SHALL HAVE AN EQUAL AND HIGHEST NUMBER OF VOTES, ONE OF THEM SHALL FORTHWITH BE CHOSEN BY THE VOTE OF A MAJORITY OF ALL THE MEMBERS OF BOTH HOUSES OF THE CONGRESS, VOTING SEPARATELY.
THE CONGRESS SHALL PROMULGATE ITS RULES FOR THE CANVASSING OF THE CERTIFICATES.
THE SUPREME COURT, SITTING EN BANC, SHALL BE THE SOLE JUDGE OF ALL CONTESTS RELATING TO THE ELECTION, RETURNS, AND QUALIFICATIONS OF THE PRESIDENT OR VICE-PRESIDENT, AND MAY PROMULGATE ITS RULES FOR THE PURPOSE.