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Executive Privilege (6)
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Executive Privilege (6)
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Philip W. Buchen Files
Philip Buchen's General Subject Files
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Nixon, Richard M. (Richard Milhous), 1913-1994
Executive privilege (Government information)
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The original documents are located in Box 13, folder "Executive Privilege (6)" of the Philip
Buchen Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 13 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
By, leased, the
NOTE: Where It 18 feasible, a syllabus (headnote) will be re-
as IN belng done in connection with this case. at the time
opinion Is Issued. The N3 llabus constitutes to part of the opinion
of the Court but has been prepared by the Reporter of Decisions for
the convenience of the reader. See United States Y. Detroit Lumber
Co., 200 U.S. 321, 337.
SUPREME court OF THE UNITED STATES
Syllabus
UNITED STATES v. NIXON ET AL,
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT BEFORE JUDGMENT
No. 73-1766 Argued July S, 1974-Decided July 24, 1974*
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 pro-
duction before trial of certain tapes and documents relating to
precisely identified conversations and meetings between the Presi-
dent and others. The President, claiming executive privilege, filed
a motion to quash the subpoena. The District Court, after treat-
ing 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 (ii) that the dispute between him and
the Special Prosecutor was nonjusticiable as an "intra-executive"
conflici 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 writs. Held.
I The District Court's order was appealable as a "final" order
under 28 C. S: C. § 1291, was therefore properly "in" the Court
of Appeals when the petition for certiorari before judgment was
*Together with Xo. 73-1834. Nixon V. United States, also on
certiorari before nadgment to the same court.
I
FORD is LIBRARY DERALD
II
UNITED STATES t' NIXON
Syltabus
filed in this Court, and is now properly before this Court for
review. Although such an order la normally not final and subject
to appeal, an exception is made in it "lunited 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. Such an exception is proper in the unique circum-
stances 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. 5-7.
2. The dispute between the Special Prosecutor and the President
presents a justiciable controversy. Pp. 7-12.
(a) The mere assertion of an "intra-branch dispute," without
more, does not defeat federal jurisdiction. United States V. ICC,
337 U. S. 426. P.8.
(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 ot 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. Accarch V Shaughnessy, 347
U. S. 266. Pp. 9-11
(c) The action of the Special Prosecutor within the scope of
his express authority seeking specified evidence preliminarily
determined to he relevant and admissible in the pending criminal
case, and the President's assertion of privilege []] opposition
thereto, present issues of the type which are traditionally
justiciable," United States V. ICC. supra, at 430, and the fact
that both litigants are officers' of the Executive Branch is not
14 bar to justicuibility. P. 12.
3. From this Court's serutiny of the materials 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. 13-17
4. Neither the doctrine of separation of powers nor the general-
ized need for confidentiality of high-level communications, without
more, can sustain an absolute, unqualified presidential privilege of
&
FORD
GERALD
LIBRARY
UNITED STATES v. NIXON
itt
Syllabus
immunity from judicial process under all circumstances. See,
€. (7., Marbury V. Madison. 1 Cranch 137, 177; Baker V. Carr. 369
U.S. 186, 211. Absent a claim of need to protect military, diplo-
matic, or sensitive national security secrets, the confidentiality of
presidential communications is not significantly diminished by
producing material for, a criminal trial under the protected condi-
tions 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. 18-22.
5. Although the courts will afford the utmost deference to presi
dential acts in the performance of an Art. II function, United
States 1. Burr, 25 Fed Cas. 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 Presi-
dent's generalized assertion of privilege must yield to the demon-
strated, specific need for evidence in a pending criminal trial and
the fundamental demands of due process of law in the fair adminis-
tration of justice. Pp. 22-28
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. 28-29.
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 confi-
dentiality 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 con-
versations irrelevant to or inadmissible in the eriminal 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 he-
released to anyone. Pp. 29-31
No. 73-1766, - F. Supp. -, affirmed: No. 73-1834, certiorari
dismissed as improvidently granted
BURGER, C. J., delivered the opinion of the Court, in which all
Members jowed except REHNQUIST, J, who took no part III the
consuleration or decision of the cases.
FORD is LIBRARY 03RALD
NOTICE This opinion is subject to formal registon before publication
in the preliminary print of the United States Reports. Readers are re-
quested to notify the Remarter of Decisions, Supreme Court of the
United States, Washington, D.C. 20343, of any typographical or other
formal errors, in order that corrections may be made before the pre-
liminary print goes to press.
SUPREME COURT OF THE UNITED STATES
Nos. 73-1766 AND 73-1834
United States, Petitioner,
73-1766
v
Richard M. Nixon, President
of the United States,
On Writs of Certiorari to
et al.
the United States Court
of Appeals for the Dis-
Richard M. Nixon, President
trict of Columbia Cir-
of the United States,
cuit before judgment.
Petitioner,
73-1834
V.
United States.
[July 24, 1974]
MR. CHIEF JUSTICE BURGER delivered the opinion of
the Court.
These cases present for review the denial of a motion,
filed 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 conversa-
tions with aides and advisers. The court rejected the
President's claims of absolute executive privilege, of lack
of jurisdiction. and of inilure to satisfy the requirements
of Rule 17 (c) The President appealed to the Court of
Appeals. We granted the United States' petition for cer-
tiorari before judgment.' and also the President's respon-
1 See 28 U.S. C. §§ 1254 (1) and 2101 (e) and our Rule 20 See,
R. a She's A: Tube ('n V Saleyer, 315 T. $ 037, 579,
FORD & 038870 LIBRARY
73-1766 d 73-1834-OPINION
10
UNITED STATES " NIXON
sive cross-petition for certiorari before judgment," because
of the public importance of the issues presented and the
need for their prompt resolution. - U. S. --,
---
(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 ¹ 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 CO-
584 (1952): United States V. United Mine Workers, 320 U.S. 708,
709, 710 (1946) 330-45 S. 258. 269 (1947): Carter V, Carter Coal
Co., 298 U.S. 238 (1936); Rickert Rice Mills T. Fontenot, 297 U.S.
110 (1936); Railroad Retirement Board V. Alton R. Co., 295 U.S.
330, 344 (1935); United States V. Bankers Trust Co., 294 U. S. 240,
243 (1935)
The cross-petition in No. 73-1834 raised the issue whether the
grand jury acted within its authority Iil naming the President as a
coronspirator. Since we tind resolution of this issue unnecessary to
resolution of the question whether the claim of privilege 15 to prevail,
the cross-petition for certiorari le dismissed as improvidently granted
and the remainder of this opinion is concerned with the issues raised
in No. 73-1766 On June 19. 1974, the President's counsel moved
for disclosure and transmittal to this Court of all evidence presented
to the grand jury relating to its action in naming the President as
an unindicted coconspirator. Action on this motion was deferred
pending oral argument of the case and is now denied
The seven défendants were John N. Mitchell. H. R. Haldeman,
John D. Ehrlichman. Charles W. Colson. Robert C. Mardian, Ken-
neth W. Parkmson and Gordon Strachan. Each had occupied
either a position of responsibility on the White House staff or the
Committee for the Re-Election of the President. Colson entered a
guilty plea on another charge and is no longer a defendant
*The President entered it special appearance III the District Court
on June 6 and requested that court to lift its protective order regarding
the naming of certain individuals as coronspirators and to any
additional extent deemed appropriate by the Court This motion
of the President Will based on the ground that the diselosures to
I
FURD is 0ERVLD LIBRARY
73-1766 & %-1sit-OPINION
UNITED STATES U. NIXON
3
conspirator On April 18. 1974, upon motion of the Spe-
cial Prosecutor. see 11. 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 Presi-
dent and others." The Special Prosecutor was able to fix
the time. place and persons present at these discussions
because the White House daily logs and appointment rec-
ords had been delivered to him. On April 30, the Presi-
dent publicly released edited transcripts of 43 conversa-
tions; 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." further motions to expunge the
grand jury's action naming the President as an unindieted
coconspirator and for protective orders against the dis-
closure of that information were filed or raised orally by
counsel for the President.
the news media made the reasons for continuance of the protective
order no longer meaningful. On June 7. the District Courr removed
jts protective order and, on June 10. counsel for both parties jointly
moved this Court to unscal those parts of the record which related
to the action of the grand jury regarding the President. After receiv-
ing a statement in opposition from the defendants. this Court denied
that motion on June 15. 1974. except for the grand jury's immediate
finding relating to the status of the President as an unindieted
coconspirator. - l' S - (1974).
The specific meetings and conversations are enumerated in t
schedule attached TO the subpoena. 42a-40a of the App.
is At the joint. suggestion of the Special Prosecutor and counsel for
the President, and with the approval of counsel for the defendants.
further proceedings mithe District Court were held in camero.
FORD & LIBRARY 07V830
13-1766 &
4
UNITED STATES v. NIXON
On May 20. 1974. the District Court denied the motion
to quash and the motions to expunge and for protective
orders. - F, Supp. - (1974). It further ordered
"the President or any subordinate officer, official or
employee with custody or control of the documents or
objects subpoenaed," id., at 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 char-
acter; it also rejected the contention that the judiciary
was without authority to review an assertion of executive
privilege by the President. The court's rejection of the
first challenge was based on the authority and powers
vested in the Special Prosecutor by the regulation promul-
gated by the Attorney General: the court concluded that
a justiciable controversy Was presented. The second chal-
lenge was held to be forcelosed by the decision in Nixon
V. Sirica, - U.S. App. D. C. - 487 F. 2d 700 (1973).
The District Court held that the judiciary. not the Presi-
dent, was the final arbiter of a claim of executive privi-
lege. 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 examina-
tion in chambers
-
F. Supp., at -
The
court held. finally. that the Special Prosecutor had satis-
fied the requirements of Rule 17 (c). The District Court
stayed its order mending appellate review on condition
that review was sought before 4 P. m., May 24. The
FORD is LIBRARY OERALD
73-1766 it 73-184-OPINION
UNITED STATES 1. NIXON
5
court further provided that matters filed under scal
remain under seal when transmitted as part of the record.
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 was docketed in the United
States Court of Appeals for the District of Columbia
Circuit. On the same day, the President also filed a
petition for writ of mandamus in the Court of Appeals
seeking review of the District Court order.
Later on May 24. the Special Prosecutor also filed. in
this Court. a petition for n writ of certiorari before judg"
ment. On May 31, the petition was granted with an ex-
pedited briefing schedule. ---- U.S. - (1974). 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. - U.S. - (1974). and the
case was set for argument on July 8, 1974,
T
JURISDICTION
The threshold question presented IS whether the
May 20, 1974. order of the District Court was an appeal-
able order and whether this case was properly "in." 28
U.S. C § 1254. the United States Court of Appeals when
the petition for certiorari was filed in this Court. Court
of Appeals jurisdiction under 28 C. S. C. $ 1291 encoin-
passes only "final decisions of the district courts." Since
the appeal was timely filed and all other procedural re-
quirements were met. the petition is properly before this
Court for consideration if the District Court order was
final. 28 U. S. C, $ 1254 (1) ; 28 U.S. C. $ 2101 (e)
The finality requirement of 28 U.S. C. $ 1291 embodies
a strong congressional policy against piccemeal reviews,
and against obstructing or impeding an ongoing judicial
proceeding by interlocutory appeals. See. P 11.. Cobble-
FORD is LIBRARY GERALD
73-1766 & 73-1834-OPTNTON
6
UNITED STATES ??. NIXON
dick V. United States, 309 T'. S. 323. 324-326 (1940).
This requirement ordinarily promotes judicial efficiency
and hastens the ultimate termination of litigation. 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 repeatedly held
that the order is not final and heuce not appealable.
United States V. Ryan, 402 U.S. 530, 532 (1971) ; Cobble-
dick V. United States, 309 U.S. 322 (1940) ; Alexander v.
United States, 201 U. S. 117 (1906). This Court has
"consistently held that the necessity for expedition
in the administration of the criminal law justifies
putting one who seeks to resist the production of de-
sired 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."
United States V. Ryan, 402 U. S. 530, 533 (1971).
The requirement of submitting to contempt, however, is
not without exception and in some instances the purposes
underlying the finality rule require a different result.
For example. in Perlman V. United States, 247 U. S. 7
(1918), a subpoena had been directed to a third party
requesting certain exhibits; the appellant, who owned
the exhibits. sought to raise a claim of privilege. The
Court held an order compelling production was appeal-
able because it was unlikely that the third party would
risk a contempt citation in order to allow immediate re-
view of the appellant's claim of privilege. Id., at 12-13.
That case fell within the "limited class of cases where
denial of immediate review would render impossible any
review whatsoever of an individual's claims," United
States 1. Ryan: supra. at 535,
FORD is LIBRARY 038ALD
73-1766 & 73-1831-OPINION
UNITED STATES ". NIXON
7
Here too the traditional contempt avenue to immedi-
ate appeal is peculiarly inappropriate due to the unique
setting in which the question arises. To require a Presi-
dent of the United States to place himself in the posture
of disobeying an order of a" court merely to trigger the
procedural mechanism for review of the ruling would be
unseemly. and present an unnecessary occasion for con-
stitutional confrontation between two branches of the
Government. Similarly, a federal judge should not be
placed in the posture of issuing a citation to a President
simply in order to invoke review. The issue whether a
President can be cited for contempt could itself engender
protracted litigation. and would further delay both review
on the merits of his cláim of privilege and the ultimate
termination of the underlying criminal action for which
his evidence is sought. These considerations lead us to
conclude that the order of the District Court was an
appealable order. The appeal from that order was there-
fore properly "in" the Court of Appeals, and the case is
now properly before this Court on the writ of certiorari
before judgment. 28 U. S. C. $ 1254; 28 U.S. C. $ 2101
(e). Gay V. Ruff, 292 U. S. 25, 30 (1934).'
II
JUSTICIABILITY
In the District Court, the President's counsel argued
that the court lacked jurisdiction to issue the subpoena
because the matter was an intra-branch dispute between
a subordinate and superior officer of the Executive
Branch and hence not subject to judicial resolution.
The parties have suggested this Court has jurisdiction on other
grounds. In view of our conclusion that there is jurisdiction under
28 U. S. C. § 1954 (1) because the District Court's order was
appealable, we need not decide whether other jurisdictional vehicles
are available.
FORD is LIBRARY 078830
73-1766 & 73-1831-OPINION
8
UNITED STATES v. NIXON
That argument has been renewed in this Court with
emphasis on the contention that the dispute does not
present a "case" or "controversy" which can be adjudi-
cated in the federal courts. The President's counsel
argues that the federal courts should not intrude into
areas committed to the other branches of Government.
He views the present dispute as essentially a "jurisdic-
tional" dispute within the Executive Branch which he
analogizes to a dispute between two congressional com-
mittees. Since the Executive Branch has exclusive
authority and absolute discretion to decide whether to
prosecute a case, Confiscation Cases, .7 Wall:454 (1869);
United States v. Cox, 342 F. 2d 167. 171 (CA5), cert.
denied, 381 U. S. 935 (1965), it is contended that a
President's decision is final in determining what evi-
dence is to be used in a given criminal case. Although
his counsel concedes 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." Brief for the
President 47. The Special Prosecutor's demand for the
items therefore presents, in the view of the President's
counsel, a political question under Baker V. Carr, 369
U. S. 186 (1962). since it involves a "textually demon-
strable" grant of power under Art. II,
The more 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 In United States V. ICC, 337 U.S. 426
(1949), the Court obšerved. "courts must look behind
names that sympolize the parties to determine whether a
justiciable case or controversy is presented." Id., at 430.
See also: Powëll V. McCormack, 305 U. S. 486 (1969) :
ICC V, Jersey City, 322 U. S. 503 (1944); United States
FORD & LIBRARY QERALD
73-1760 & 73-1834-OPINION
UNITED STATES v. NIXON
9
ex rel. Chapman V. FPC, 345 U.S. 153 (1953) Secretary
of Agriculture V. United States, 347 U. S. 645 (1954) ;
FMB V. Isbrandsten Co., 356 U. S. 481, 482 n. 2 (1958) ;
United States V. Marine Bank Corp., - U.S.- (1974),
and United States V. Connecticut National Bank, -
U. S. - (1974).
Our starting point is the nature of the proceeding
for which the evidence is sought-here a pending crim-
inal prosecution. It is a judicial proceeding in a federal
court alleging violation of federal laws and is brought
in the name of the United States as sovereign. Berger
v. United States, 295 U. S. 78. 88 (1935). Under the
authority of Art. II, § 2, Congress has vested in the
Attorney General the power to conduct the criminal liti-
gation of the United States Government. 28 U. S. C.
§ 516. It has also vested in him the power to appoint
subordinate officers to assist him in the discharge of his
duties. 28 U. S. C. §§ 500. 510, 515, 533. Acting pur-
suant to those statutes, the Attorney General has dele-
gated the authority to represent the United. States: in
these particular matters to a Special Prosecutor with
unique authority and tenure." The regulation gives the
8 The regulation issued by the Attorney General pursuant to his
statutory authority, vests in the Special Prosecutor plenary authority
to control the course of investigations and litigation related to "all
offenses arising out of the 1972 Presidential Election for which the
Special Prosecutor deems it necessary and appropriate to assume
responsibility, allegations involving the President, members of the
White House staff, or Presidential appointees, and any other matters
which he consents to have assigned to him by the Attorney General."
38 Fed. Reg. 30739. as amended by 38 Fed. Reg. 32805. In partien-
lar, the Spécial Prosecutor was given full authority, inter alia, "to
contest the assertion of 'Executive Privilege'
and hand![e] all
aspects of any cases within his jurisdiction." Ibid. The regulations
then go on to provide:
"In exercising this authority. the Special Prosecutor will have the
greatest degree of imdependence that is consistent with the Attorney-
General's statutory accountability for all matters falling within the
FORD is LIBRARY GERALD
73-1766 & 73-1834-OPINION
10
UNITED STATES v. NIXON
Special Prosecutor explicit power to contest the invoca-
tion of executive privilege in the process of seeking
evidence deemed relevant to the performance of these
specially delegated duties." 38 Fed. Reg. 30739.
jurisdiction of the Department of Justice. The Attorney General
will not countermand or interfere with the Special Prosecutor's de-
cisions or actions. The Special Prosecutor will determine whether
and to what extent he will inform or consult with the Attorney Gen-
eral about the conduct of his duries and responsibilities. In ac-
cordance with assurances given by the President to the Attorney
General that the President will not exercise his Constitutional powers
to effect the discharge of the Special Prosecutor or to limit the inde-
pendence he is hereby given, the Special Prosecutor will not be re-
moved from his duties except for extraordinary improprieties on
his part and without the President's first consulting the Majority
and Minority Leaders and Chairman and ranking Minority Members
of the Judiciary Committees of the Senate and House of Representa-
tives and ascertaining that their consensus is in accord with his
proposed action."
That this was the understanding of Acting Attorney General
Robert Bork, the author of the regulations establishing the independ-
ence of the Special Prosecutor, is shown by his testimony before the
Senate Judiciary Committee:
"Although it is anticipated that Mr. Jaworski will receive cooperation
from the White House in getting any evidence he feels he needs to
conduct investigations and prosecutions, it is clear and understood
on all sides that he has the power to use judicial processes to pursue
evidence if disagreement should develop."
Hearings before the Senate Judiciary Committee on the Special
Prosecutor, 93d Cong., 1st Sess.. pt. 2, at 470 (1973). Acting Ai-
torney General Bork gave similar assurances to the House Subcom-
mittee on Criminal Justice. Hearings before the House Judiciary
Subcommittee on Criminal Justice on H. J. Res. 784 and H. R. 10937,
93d Cong., 1st Sess. 266 (1973). At his confirmation hearings, At-
torney General William Saxbe testified that he shared Acting
Attorney General Bork's views concerning the Special Prosecutor's
authority to test Any claim of executive privilege in the courts.
Hearings before the Senate Judiciary Committee on the nomination
of William B. Saxbe to be Attorney General, 93d Cong., 1st Sess 9
(1973).
FORD & LIBRARY GERALD
73-1766 & 73-1834-OPINION
UNITED STATES v. NIXON
11
So long as this regulation IS extant it has the force
of law. In Accardi V. Shaughnessy, 347 U. S. 260
(1953), regulations of the Attorney General delegated
certain of his discretionary powers to the Board of
Immigration Appeals and required that Board to exer-
cise its own discretion on appeals in deportation cases.
The Court held that so long as the Attorney General's
regulations remained operative. he denied himself the
authority to exercise the discretion delegated to the
Board even though the original authority was his and
he could reassert it by amending the regulations. Service
v. Dulles, 354 U. S. 363, 388 (1957), and Vitarelli v.
Seaton, 359 U.S. 535 (1959). reaffirmed the basic holding
of Accardi.
Here, as in Accardi, it is theoretically possible for the
Attorney General to amend or revoke the regulation de-
fining the Special Prosecutor's authority. But he has not
done so.1" So long as this regulation remains in force
the Executive Branch is bound by it. and indeed the
United States as the sovereign composed of the three
branches is bound to respect and to enforce it. More-
over, the delegation of authority to the Special Prosecutor
in this case is not an ordinary delegation by the Attorney
General to a subordinate officer: with the authorization
of the President. the Acting Attorney General provided
in the regulation that the Special Prosecutor was not to
be removed without the "consensus" of eight designated
leaders of Congress. Note 8, supra.
10 At his confirmation hearings Attorney General William Saxbe
testified that he agreed with the regulations adopted by Acting At-
torney General Bork and would not remove the Special Prosecutor
except for "gross impropriety." Hearings, Senate Judiciary Com-
mittee on the nomination of William B Saxbe to be Attorney
General, 93d Cong., 1st Sess., 5-0, S-10 (1973). There is no con-
tention here that tife Special Prosecutor is guilty of any such
impropriety.
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UNITED STATES o. NIXON
The demands of and the resistance to the subpoens
present an obvious controversy in the ordinary sense,
but that alone is not sufficient to meet constitutional
standards. In the constitutional sense, controversy means
more than disagreement and conflict; rather it means the
kind of controversy courts traditionally resolve. Here
at issue is the production or nonproduction of specified
evidence deemed by the Special Prosecutor to be rele-
vant and admissible in a pending criminal case. It is
sought by one official of the Government 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."
United States V. ICC, 337 U.S.. at 430. The independ-
ent Special Prosecutor with his asserted need for the
subpoenaed material in the underlying criminal prose-
cution is opposed by the President with his steadfast
assertion of privilege against disclosure of the material.
This setting assures there is "that concrete adverseness
which sharpens the presentation of issues upón which
the court SO largely depends "for illumination of diffi-
cult constitutional questions." Baker V. Carr, 369 U.S.,
at 204. Moreover. since the matter is one arising in the
regular course of a federal criminal prosecution, it is
within the traditional scope of Art. III power. Id., at 198.
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. It would be inconsistent with the ap-
plicable law and regulation. and the unique facts of this
case to conclude other than that the Special Prosecutor
has standing to bring this action and that a justiciable
controversy is presented for decision.
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13
III
RULE 17 (c)
The subpoena duces tecum is challenged on the ground
that the Special Prosecutor failed to satisfy the require-
ments of Fed. Rule Crim. Proc. 17 (c), which governs
the issuance of subpoenas duces tccum in federal crim-
inal proceedings. If we sustained this challenge, there
would be no occasion to reach the claim of privilege
asserted with respect to the subpoenaed material. Thus
we turn to the question whether the requirements of Rule
17 (c) have been satisfied. See Arkansas-Louisiana Gas
Co. V. Dept. of Public Utilities, 304 U.S. 61, 64 (1938);
Ashwander V. Tennessee Valley Authority, 297 U.S. 288,
346-347 (1936). (Brandeis, J., concurring.)
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 supoena if compliance would be unrea-
sonable 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 pro-
duction would be "unreasonable or oppressive," but not
otherwise. The leading case in this Court interpreting
this standard is Borman Dairy Co. V. United States, 341
U. S. 214 (1950). This case recognized certain funda-
mental characteristics of the subpoena duces tecum in
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UNITED STATES ". NIXON
criminal cases: (1) it was not intended to provide a
means of discovery for criminal cases. Id., at 220;
(2) its chief innovation was to expedite the trial by pro-
viding a time and place before trial for the inspection of
subpoenaed materials." Ibid. As both parties agree,
cases decided in the wake of Bowman have generally
followed Judge Weinfeld's formulation in United States
v. Iozia, 13 F. R. D. 335, 338 (SDNY 1952), as to
the required showing. Under this test, in order to
require production prior to trial, the moving party must
show: (1) that the documents are evidentiary 12 and
relevant; (2) that they are not otherwise procurable
reasonably in advance of trial by exercise of due dili-
11 The Court quoted a statement of D member of the advisory
committee that the purpose of the Rule WAS to bring documents into
court "in advance of the nme that they are offered in evidence, SO
that they may then be inspected in advance, for the purpose
of
enabling the party to see whether he can use [them] or whether he
wants to use [them]. 341 U. S., at 220 II. 5. The Manual for
Complex and Multi-district Litigation published by the Administra-
tive Office of the United States Courts recommends that Rule 17 (c)
be encouraged in complex criminal cases in order that each party
may be compelled to produce its documentary evidence well 11) ad-
vance of trial and III advance of the time it is to be offered. P. 142,
CCH Ed
12 The District Court found nere that it Was faced with "the more
unusual situation
when the subpoena, rather than being di-
rected to the government by the defendants, issues to what, as a
practical matter, IS a third party." United States v. Mitchell. -
F. Supp. - (D. C 1974) The Special Prosecutor suggests that the
evidentiary requirement of Bowman Dairy Co. and Lozia does not
apply in its full vigor when the subpoena duces tecum is issued to
third parties rather than to government prosecutors. Brief for the
United States 128-129 We need not decide whether a lower
standard exists because We are satisfied that the relevance and
evidentiary nature of the subpoenaed tapes were sufficiently shown
as " preliminary matter to warrant the District Court's refusal to
quash the subpoens,
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13
gence; (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; (4) that the
application is made in good faith and is not intended as
a general "fishing expédition."
Against this background, the Special Prosecutor, in
order to carry his burden. must clear three hurdles:
(1) relevancy; (2) admissibility; (3) specificity. Our
own review of the record necessarily affords a less com-
prehensive view of the total situation than was available
to the trial judge and we are unwilling to conclude that
the District Court erred in the evaluation of the Special
Prosecutor's showing under Rule 17 (c). 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 111 the indictment. United States v.
Gross, 24 F. R. D. 138 (SDNY 1959). With respect
to many of the tapes. the Special Prosecutor offered the
sworn testimony or statements of one or more of the
participants in the conversations as to what was said at
the time As for the remainder of the tapes, the identity
of the participants and the time and place of the conver-
sations, taken in their total context, permit a rational
inference that at least part of the conversations relate
to the offenses charged in the indictment.
We also conclude there was a sufficient preluminary
showing that each of the subpoenaed tapes contains evi-
dence admissible with respect to the offenses charged in
the indictment The most cogent objection to the ad-
missibility of the taped conversations here at issue is that
they are & collection of out-of-court statements by declare
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ants who will not be subject to cross-examination and
that the statements are therefore inadmissible hearsay,
Here. however, most of the tapes apparently contain con-
versations 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 de-
fendant in a criminal case.15 Declarations by one defend-
ant may also be admissible against other defendants upon
a sufficient showing, by independent evidence." of a con-
spiracy aniong one or more other defendants and the
declarant and if the declarations at issue were in further-
ance of that conspiracy. The same is true of declarations
of coconspirators who are not defendants in the case on
trial. Dutton v. Evans, 400 U. S. 74, S1 (1970). Re-
corded conversations may also be admissible for the lim-
ited purpose of impeaching the credibility of any defend-
ant 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.
13 Such statements are declarations by a party defendant that
"would surmount all objections based on the hearsay rute and,
at least as to the declarant himself "would be admissible for what-
éver inferences" might be reasonably drawn United States 1. Mat-
lock, - U.S. - (1974). On Lee V. United States. 343 U. S. 747,
757 (1953). See also McCornuck on Evidence. §270, at 651-052
(1972 al).).
14 As a preliminary matter, there must be substantial. independent
evidence of the conspiracy. at least enough to take the question to
the jury. United States v. Vaught. 385 F. 2d 320. 323 (CA4 1973);
United States 1 Hoffa, 349 F. 2d 20. 41-12 (CA6 1955), aff'd on
other grounds, 385 U. S. 203 (1966); United States V. Suntos. 385 F
2d 43, 45 (CA7 1967), cert demed, 300 U. S. 954 (1968): United
States V. Morton. 483 F 20 573. 576 (CAS 1973). United States V,
Spanos, 462 F 2d 1012. 1014 (CA9 1972): Carbo v. United States,
314 F 2d 718, TB7 (CA9 1963). cart. denied, 377 U.S. 953 (1964).
Whether the standard has been satisfied IS a question of admissibility
of evidence to III décided by the trial judge.
:.
3
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17
See, e. !!., United States 1: Carter, 15 F. R. D. 367,
371 (1). D. (: 1954). 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 say that the District Court erred in authorizing
the issuance of the subpoena duces tecum.
Enforcement of a pretrial subpoena duces tecum must
necessarily be committed to the sound discretion of the
trial court since the necessity for the subpoena inost often
turns upon'a determination of factual issues. Without
determination of arbitrariness or that the trial court find-
ing was without record support, an appellate court will
not ordinarily disturb a finding that the applicant for a
subpoena complied with Rule 17 (c). See, e. g., Sue V.
Chicago Transit Authority, 279 F. 2d 410, 419 (CA7
1960); Shotkin V. Nelson, 146 F. 2d 402 (CA10 1944).
In a case such 28 this, however, where a subpoena is
directed to a President of the United States. appellate re-
view, in deference to a coordinate branch of government,
should be particularly meticulous to ensure that the
standards of Rule 17 (c) have been correctly applied.
United States 1. Burr, 25 Fed. Cas. 30, 34 (No. 14.692d)
(1807). From our examination of the materials sub-
mitted by the Special Prosecutor 11) the District Court in
support of his motion for the subpoena, we 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 3 subpoena for production
before trial. The subpoenaed materials are not available
from any other source, and their examination and process.
ing should not awnit trial in the circumstances shown.
Bowman Dairy Co., supra, United States 1: lozia, supra,
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UNITED STATES v. NIXON
V
THE CLAIM OF PRIVILEGE
A
Having determined that the requirements of Rule
17 (c) were satisfied, we turn to the claim that the sub-
poena 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." App. 4Sa. 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 dures 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, as we have noted. reads the Constitu-
tion 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, 1 Cranch 137 (1803),
that "it is emphatically the province and duty of the
judicial department to say what the law is." Id., at 177.
No holding of the Court has defined the scope of judi-
cial power specifically relating 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.
Powell V. McComnack, supra; Youngstown, supra, In a
series of cases. the Court interpreted the explicit immu-
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UNITED STATES v. NIXON
19
nity conferred by express provisions of the Constitution
on Members of the House and Senate by the Specch or
Debate Clause, U.S. Const. Art. I, $ 6. Doe V. McMil-
lan, 412 U. S. 306 (1973); Gravel v. United States, 408
U. S. 606 (1073) United States v. Brewster, 403 U.S.
501 (1972); United States V. Johnson, 383 U. S. 169
(1965). Since this Court has consistently exercised the
power to construe and delineate claims arising under
express powers, it must follow that the Court has author-
ity to interpret claims with respect to powers alleged to
derive from enumerated powers.
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, 549.
And in Baker V. Carr, 369 U.S., at 211, the Court stated:
"[d]eciding 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 com-
mitted, is itself a delicate exercise in constitutional
interpretation, and is a responsibility of this Court
as ultimate interpreter of the Constitution.
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 Con-
stitution 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 govern-
ment. The Federalist, No. 47. P. 313 (C. F. Mittel ed.
1938). We therefore reaffirm that it is "emphatically
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UNITED STATES l'. NIXON
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. Marbury V. Madison. supra, at 177.
B
In support of his claim of absolute privilege, the Presi-
dent's counsel urges two grounds one of which is common
to all governments and one of which is peculiar to our sys-
tem 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; the
importance of this confidentiality is too plain to re-
quire 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 deci-
sionmaking process." Whatever the nature of the privi-
lege of confidentiality of presidential communications in
the exercise of Art. IT powers the privilege can be said
to derive from the supremacy of each branch within its
own assigned area of constitutional duties. Certain
DOWERS and privileges flow from the nature of enumer-
ated powers; 16 the protection of the confidentiality of
15 There IS nothing novel about governmental confidentiality. The
meetings of the Constitutional Convention in 1787 were conducted
in complete privacy I Farrand, The Records of the Federal Con-
vention of 1787. (1911) Moreover. all records of those
meetings were sealed for more than 30 years after the Conven-
tion. See 3 U. S. Stat. At Large, 15th Cong. 1st Sexs., Res. S
(1818) Most of the Framers acknowledged that without secreey
no constitution of the kind that was developed could have been
written. Warren. The Making of the Constitution, 134 139 (1937).
16 The Special Prosecutor argues that there is no provision in the
Constitution for a presidential privilege as to his communications
corresponding to THE privilege of Members of Congress under the
:.
FORD & LIBRARY GERALD
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UNITED STATES v. NIXON
21
presidential communications has similar constitutional
underpinnings.
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. Humphrey's Executor V. United States, 295 U.S.
602. 629-630; Kilbourn V. Thompson, 103 U.S. 168, 190-
191 (1880), 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 communica-
tions, without more, can sustain an absolute. unqualified
presidential privilege of immunity from judicial process
under all circumstances. The President's need for com-
plete 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 conversa-
tions, 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 con-
fidentiality 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.
Speech or Debate Clause. But the silence of the Constitution on
this score is not dispositive. "The rule of constitutional interpre-
tation announced in McCulloch v. Maryland. 4 Wheat. 316, that
that which was reasonably appropriate and relevant to the exercise
of a granted power was 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).
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UNITED STATES 1. NIXON
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 prosecu-
tions would plainly conflict with the function of the
courts under Art. ITI. In designing the structure of our
Government and dividing and allocating the sovereign
power among three coequal branches, the Framers of the
Constitution sought to provide a comprehensive system,
but the separate powers were not intended to operate
with absolute independence.
"While the Constitution diffuses power the better to
secure liberty. it also contemplates that practice will
integrate the dispersed powers into a workable gov-
ernment. It enjoins upon its branches separateness
but interdependence, autonomy but reciprocity."
Youngstown Sheet & Tube Co. V. Sawyer, 343 U.S.
579, 635 (1952) (Jackson, J., concurring).
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 gen-
eralized 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 judi-
cial process may outweigh presidential privilege. it is
necessary to resolve those competing interests in a man-
ner 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,
United States v, Burr, 25 Fed. Cas. 187, 190. 191-192
(No 14,694) (1807).
LIBRARY GERALD BERALD'R. FORD
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UNITED STATES v. NIXON
23
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 fun-
damental to the operation of government and inextricably
rooted in the separation of powers under the Constitu-
tion." In Nixon V. Sirica, - U. S. App. D. C.
:
487 F. 2d 700 (1973). the Court of Appeals held that
such presidential communications are "presumptively
privileged." id., at 717, and this position is accepted by
both parties in the present litigation. We agree with
Mr. Chief Justice Marshall's observation, therefore, that
"in no case of this kind would a court be required to
proceed against the President as against an ordinary in-
dividual." United States V. Burr, 25 Fed. Cas. 187. 191
(No. 14,694) (CCD Va. 1807).
But this presumptive privilege must be considered in
light of our historic commitment to the rule of law. This
17 "Freedom of communication vital to fulfillment of wholesome
relationships is obtained only by removing the specter of compelled
disclosure [G]overnment needs open but protected channels
for the kind of plann talk that is essential to the quality of its
functioning." Carl Zeiss Stiftung V. V E B Carl Zeiss. Jena. 40
F. R. D. 318. 325 (D. C. 1966). See Nixon V. Sirica, - U.S. App.
D.C. - 487 / 2d 700, 713 (1973), Kaiser Aluminum &
Chem. Corp. v. United States. 157 F. Supp 939 (Cr Cl. 1958)
(per Reed, J.), The Federalist No 64 (S F Mittel ed 1938).
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UNITED STATES v. NIXON
is nowhere more profoundly manifest than in our view
that "the twofold aim I of criminal justice] is that guilt
shall not escape or innocence suffer." Berger V. United
States, 295 U. S. 78. 88 (1935). 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 sys-
tem 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 evi-
dence. To ensure that justice is done, it is imperative
to the function of courts that compulsory process be avail-
able for the production of evidence needed either by the
prosecution or by the defense.
Only recently the Court restated the ancient propo-
sition 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,
United States V. Bryan, 339 U.S., at 331 (1949);
Blackmer V. United States, 284 U. S. 421, 438;
Branzburg V. United States, 408 U. S. 665, 6SS
(1973)."
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 dis-
close what has been revealed in professional confidence.
These and other interests are recognized in law by privi-
&
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25
leges against forced disclosure, established in the Consti-
tution, 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 con-
strued, for they are in derogation of the search for truth. 18
In this case the President challenges a subpoena served
on him as a third party requiring the production of ma-
terials for use in a criminal prosecution on the claim that
he has a privilege against disclosure of confidential com-
munications. 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 tra-
ditionally shown the utmost deference to presidential
responsibilities. In C. & S. Air Lines V. Waterman
Steamship Corp., 333 U.S. 103. 111 (1948). dealing with
presidential authority involving foreign policy considera-
tions, the Court said:
"The President. both as Commander-in-Chief and
as the Nation's organ for foreign affairs, has avail-
able intelligence services whose reports are not and
ought not to be published to the world. It would
be intolerable that courts, without the relevant in-
formation, should review and perhaps nullify actions
of the Executive taken on information properly held
secret." Id., at 111,
3
In United States V. Reynolds, 345 U.S. 1 (1952), deal-
18 Because of the key role of the testimony of witnesses in the
judicial process, courts have historically been cantions about privi-
leges. Justice Frankfurter, dissenting in Elkins V. United States,
364 U. S. 206, 234 (1960), said of this: "Lunitations are properly
placed upon the operation of this general principle only to the very
limited extent that permitting a refusal to testify or excluding
relevant evidence thas a public good transcending the normally
predommant prinetple of utilizing all rational means for ascertaining
truth."
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UNITED STATES v. NIXON
ing with a claimant's demand for evidence in a damage
case against the Government the Court said:
"It may be possible to satisfy the court. from all
the circumstances of the case, that there is a reason-
able danger that compulsion of the evidence will
expose military matters which. in the interest of
national security. should not be divulged. When
this is the case, the occasion for the privilege is ap-
propriate, and the court should not jeopardize the
security which the privilege is meant to protect by
insisting upon an examination of the evidence, even
by the judge alone. in chambers."
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.
The right to the production of all evidence at a criminal
trial similarly has constitutional dimensions. The Sixth
Amendment explicitly confers upon every defendant in
a criminal trial the right "to be confronted with the wit-
nesses against him" and "to have compulsory process for
obtaining witnesses in his favor." Moreover. the Fifth
Amendment also guarantees that no person shall be de-
prived of liberty without due process of law. It is the
manifest duty of the courts to vindicate those 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 com-
munications in performance of his responsibilities against
the inroads of:such a privilege on the fair administration
i
FORD
GERALD
LISAVARY
73-1766 & 73-1834-OPINION
UNITED STATES v. NIXON
27
of criminal justice." The interest in preserving confi-
dentiality 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 possi-
bility 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 con-
19 We are not here concerned with the balance between the
President's generalized interest in confidentiality and the need for
relevant evidence in civil litigation, nor with that between the con-
fidentiality interest and congressional demands for information, nor
with the President's interest in preserving state secrets. We address
only the conflict between the President's assertion of a generalized
privilege of confidentiality against the constitutional need for rele-
vant evidence to eriminal trials.
20 Mr. Justice Cardozo made this point in an analogous context.
Speaking for a unammous Court in Clark v. United States. 289 U.S.1
(1933), he emphasized the importance of maintaining the secrecy of
the deliberations of a petit jury in a criminal case. "Freedom of
debate might be stiffed and independence of thought checked if
jurors were made to feel that their arguments and ballots were to
be freely published in the world." Id., at 13. Nonetheless. the
Court also recognized that isolated inroads on confidentiality designed
to serve the paramount need of the criminal law would not vitiate
the interests served by secrecy
"A juror of integrity and reasonably firmness will not fear to
speak his mind if the confidences of debate bar barred to the ears
of mere impertinence or malice. He will not expect to be shielded
against the disclosure of his conduct in the event that there IS
evidence reflecting upon his honor. The chance that now and then
there may be found some timid soul who will take counsel of his
fears and give way to their repressive power IS too remote and
shadowly to shape the course of justice" W. " 16.
LIBRARY GERALD ? FORD
73-1766 & 73-1834-OPINION
28
UNITED STATES v. NIXON
fidentiality 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 crimi-
nal case in the administration of justice. Without access
to specific facts a criminal prosecution may be totally
frustrated. The President's broad interest in confiden-
tiality of communications will not be vitiated by dis-
closure 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 privi-
lege 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 privi-
lege must yield to the demonstrated, specific need for
evidence in a pending criminal trial.
D
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 sub-
poena 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 ma-
terial as presumptively privileged and to require the
Special Prosecutor to demonstrate that the presiden-
tial material was "essential to the justice of the [pend-
ing criminal] case." United States v. Burr, supra, at
192. Here the District Court treated the material as pre-
sumptively privileged. proceeded to find that the Special
Prosecutor had made a sufficient showing to rebut the
FORD
CERALD
LIBRARY
73-1766 & 73-1834-OPINION
UNITED STATES v. NIXON
29
presumption and ordered an in camera examination of
the subpoenaed material. On the basis of our examina-
tion of the record we are unable to conclude that the
District Court erred in ordering the inspection. Accord-
ingly we affirm the order of the District Court that sub-
poenaed 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
Enforcement of the subpoena duces tecum was stayed
pending this Court's resolution of the issues raised by the
petitions for certiorari. Those issues now having been
disposed of, the matter of implementation will rest with
the District Court. "[T]he guard. furnished to [Presi-
dent] to protect him from being harassed by vexatious
and unnecessary subpoenas, is to be looked for in the
conduct of the [district] court after the subpoenas have
issued; not in any circumstances which is to precede their
being issued." United States V. Burr, supra, at 34. State-
ments that meet the test of admissibility and relevance
must be isolated; all other material must be excised. At
this stage the District Court is not limited to representa-
tions of the Special Prosecutor as to the evidence sought
by the subpoena; the material will be available to the
District Court. It is elementary that in camera inspec-
tion of evidence is always a procedure calling for scrup-
ulous 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. That being true of an ordi-
nary situation, il is obvious that the District Court has
a very heavy responsibility to see to it that presidential
LIBRARY GERALD P. FORD
73-1766 & 73-1834-OPINION
20
UNITED STATES v. NIXON
conversations, which are either not relevant or not admis-
sible. are accorded that high degree of respect due the
President of the United States. Mr. Chief Justice Mar-
shall sitting as a trial judge in the Burr case, supra, was
extraordinarily careful to point out that:
"[I]n no case of this kind would a Court be required
to proceed against the President as against an ordi-
nary individual." United States V. Burr, 25 Fed,
Cases 187, 191 (No. 14.694).
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 perform-
ance 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 21 in the
public interest to afford presidential confidentiality the
greatest protection consistent with the fair administra-
tion of justice. The need for confidentiality even as to
idle conversations with associates in which casual refer-
ence 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 in United States v.
Burr, supra, and will discharge his responsibility to see to
it that until released to the Special Prosecutor no in
camera material is revealed to anyone. This burden
21 When the subpoenaed material is delivered to the District
Judge in camera questions may arise as to the excising of parts
and it lies within the discretion of that court to seek the aid of the
Special Prosecutor and the President's counsel for in camera con-
sideration of the validity of particular excisions, whether the basis
of excision is relevancy or admissibility or under such cases as
Reynolds, supra, or Waterman Steamship, supra.
LIBRADY GERALD ? FORD
73-1766 & 3-ISS-OPINION
UNITED STATES v. NIXON.
31
applies with even greater force to excised material;
once the decision is made to excise, the material is restored
to its privileged status and should be returned under seal
to its lawful custodian.
Since this matter caine before the Court during the
pendency of a criminal prosecution, and on representa-
tions that time is of the essence, the mandate shall issue
forthwith.
Affirmed
MR. JUSTICE REHNQUIST took no part in the considera-
tion or decision of these cases,
LIBRARY GERALD FORD
18
HARVARD LAW REVIEW
[Vol. 88:13
1974]
TH
refusal to expunge. The Special Prosecutor regarded this action
doctrine. Of gre
of the grand jury as helpful, though not essential, on the issue of
the term, which
the admissibility of the tapes sought.25 Without focusing on the
claims.
President, the Court was able to hold most of the tapes potentially
The privileg
admissible either as out-of-court admissions by a defendant or as
dent from legal
declarations by a co-conspirator made in the course of the con-
dent's behalf in
spiracy and in furtherance of it.26
present controv
Had the Court examined the question of admissibility with
to compulsory
greater particularity, it might have been forced to address the
son 32 by Charl
role of the President as an alleged co-conspirator. One group of
James Madison
tapes included conversations between the President and Charles
mandamus for
W. Colson, 27 who was one of those indicted but who had been dis-
in oral argumen
missed as a defendant pursuant to a plea bargain under which he
It may not be
pleaded guilty to an offense in another case. Thus, the admis-
to do it. An
sibility of these tapes would have to be based on either the Presi-
retary of stat
dent's or Colson's status as a co-conspirator. Although it is pos-
the United Si
sible that all of the recorded conversations might be admissible by
comprehensiv
virtue of Colson's status alone, the Court apparently chose not to
amenable to
address this possibility.28 Reliance on the naming of Mr. Nixon
functions, bu
constitution.
by the grand jury would have afforded clearer support for admis-
sibility, but the Court understandably may have preferred some
This concessic
measure of discreet logical blindness for the sake of greater bland-
practical alteri
ness.
stand in judgn
II. EXECUTIVE PRIVILEGE
when a subpo
himself direct]
And so we are brought to the question of "executive privilege"
Chief Justice
itself. The term appears to be of recent origin,29 but that circum-
not of legal in
stance sheds little light on the legitimacy of the concept itself,
proach, esche
just as Jeremy Bentham's invention of the term "international
in its most ele
law" 30 gave a new name, but not a new birth, to a body of received
of governance
25 Reply Brief for Petitioner at 59-64.
gubernaculum
26 94 S. Ct. at 3104 & nn.13-14.
has served as
27 Reply Brief for Respondent at 42 n.30.
of Congress
28 The tapes might conceivably be admissible for purposes of impeaching, or
of their house
rehabilitating, either Colson or President Nixon as a witness; but as the opinion
as cabinet offi
observes, without reference to the precise problem, "[g]enerally, the need for
dential direct
evidence to impeach witnesses is insufficient to require its production in advance
of trial." 94 S. Ct. at 3104. The opinion is content to state that "most of the
31 See Nixon
tapes apparently contain conversations to which one or more of the defendants
32 5 U.S. (I
named in the indictment were party." Id. Perhaps the very bulk of the materials
33 Id. at 149.
34 United Stal
subpoenaed by the Prosecutor facilitated a relatively general approach by the
Court to the question of admissibility.
33 See C. Mc
29 The earliest use which the author has discovered is in the government briefs
ed. 1947).
in the Reynolds case. Petitioner's Brief for Certiorari at II, 12, United States
36 See Powell
V. Reynolds, 345 U.S. I (1953). See R. BERGER, EXECUTIVE PRIVILEGE: A CONSTITU-
Cracken, 294 U.
TIONAL MYTH I & n.3 (1974).
custody of the
30 5 OXFORD ENGLISH DICTIONARY 409-10 (1933), citing J. BENTHAM, PRINCIPLES
ments under sub
OF LEGISLATION xvii $ 25 (1780).
37 See Young
GERALD
1974]
THE SUPREME COURT - FOREWORD
19
doctrine. Of greater concern is the problem of the meaning of
the term, which can embrace at least two distinct, though related,
claims.
The privilege might be invoked as an immunity of the Presi-
dent from legal process. This position, advanced on the Presi-
dent's behalf in the earlier tapes case,³¹ was not renewed in the
present controversy. A concession that a President is not subject
to compulsory process was made, arguendo, in Marbury v. Madi-
son 32 by Charles Lee, counsel for Marbury, in contending that
James Madison, as Secretary of State, was by contrast subject to
mandamus for the performance of a ministerial duty. Lee said
in oral argument: 33
It may not be proper to mention this position; but I am compelled
to do it. An idea has gone forth, that a mandamus to a sec-
retary of state, is equivalent to a mandamus to the President of
the United States. I declare it to be my opinion, grounded on a
comprehensive view of the subject, that the president is not
amenable to any court of judicature for the exercise of his high
functions, but is responsible only in the mode pointed out in the
constitution.
This concession could be readily made, however, because a
practical alternative existed - the President's subordinate could
stand in judgment. In the trial of Aaron Burr four years later,
when a subpoena duces tecum addressed to President Jefferson
himself directly raised the question of immunity from process,
Chief Justice Marshall, presiding on circuit, treated it as a matter
not of legal immunity but of practical convenience.³⁺ This ap-
proach, eschewing absolutes, serves to maintain the rule of law
in its most elementary aspect. In the tension between the claims
of governance and those of restraint, the ancient tension between
gubernaculum and jurisdictio,³⁵ the availability of a subordinate
has served as a way of procedural accommodation. If members
of Congress cannot be sued for their official conduct, still officers
of their house may be answerable for carrying out those actions,³⁶
as cabinet officers may be legally accountable for executing presi-
dential directions. 37 This time-honored means of accommodation
31 See Nixon V. Sirica, 487 F.2d 700, 708-12 (D.C. Cir. 1973).
32 5 U.S. (r Cranch) 137 (1803).
33 Id. at 149.
34 United States V. Burr, 25 F. Cas. 30, 34-35 (No. 14,692d) (C.C.D. Va. 1807).
33 See C. MCILWAIN, CONSTITUTIONALISM: ANCIENT AND MODERN passim (rev.
ed. 1947).
36 See Powell V. McCormack, 395 U.S. 486, 504-06 (1969) ; Jurney V. Mac-
Cracken, 294 U.S. I25 (1935) (petitioner for writ of habeas corpus being held in
custody of the Sergeant-at-Arms of the Senate on account of destruction of docu-
ments under subpoena by a Senate committee).
37 See Youngstown Sheet & Tube Co. V. Sawyer, 343 U.S. 579 (1952).
GERALD FORD LIBRARY
1974]
THE
20
HARVARD LAW REVIEW
[Vol. 88:13
require the preserv:
was made unavailable in the tapes cases by the President's action
from the demand
in formally taking sole custody of the tapes. Thus the usual suit
should be recogniz
against a subordinate became impossible, and a confrontation was
dant. Whether it
compelled.⁸⁸ In the eighteenth-century Newtonian universe that
weighing of interes
is the Constitution, an excessive force in one direction is apt to
ing relative needs
produce a corresponding counterforce. The forcing of the issue in
by the courts in fa
the tapes cases served in the end to solidify the principle of presi-
applied to the pr
dential amenability to process.
dimensions. Alth
A second possible meaning of executive privilege is the
the official sphere
evidentiary claim directly raised in the tapes case, an exemption
and frank interch
from a duty to produce testimony or documents and a legal capac-
President is a pul
ity to control the production of certain kinds of evidence by
a lawyer or phys
others. Such a privilege with respect to military secrets or sensi-
closure should we
tive diplomatic communications and intelligence, recognized in
The principal
the law of evidence, was not in issue. The controversy was limited
be derived from
to the "generalized" claim, as the brief of the Special Prosecutor 39
put thus by Chie
and the Court's opinion 40 put it, of a privilege concerning confi-
dential communications to which the President was a party. 41
The principle
instrumentaliti
In considering whether such a privilege exists, do we look to
tions. It is a
the Constitution or to the law of evidence? Actually the question
our dual systi
is not a very meaningful one. It resembles the query raised by
it does not ext
some irreverent friends of Lord Rutherford, who asked whether
he had really discovered the nucleus of the atom or had simply
If the Court ha
put it there. The privilege, unlike the immunity accorded to
dent as an unin
members of Congress under the "speech and debate" clause,4" is
have been mor
not expressly granted by the Constitution. It would, confessedly,
dential relation
be a privilege implied by the necessities of the system, in par-
munications in
ticular by the separation of powers, as intergovernmental tax
Once more, in
immunities are implied in the cause of a working federalism. If
by the Special
certain relationships, like that of lawyer and client, are deemed to
ground in supp
is true with re
38 See Nixon V. Sirica, 487 F.2d 700, 709 (D.C. Cir. 1973) 87 HARV. L. REV.
ance of intere
1557, 1562-63 (1974).
Marshall's ma
39 See Brief for Respondent at 85 n.65.
is emphaticall
40 See 94 S. Ct. at 3109-10.
to say what
41 Another possible meaning of executive privilege is a substantive immunity
declare "the 1
from liability, qualified or absolute. See, e.g., Pierson V. Ray, 386 U.S. 547, 553-55
of the need f
(1967) ; Tenney V. Brandhove, 341 U.S. 367 (1951) ; W. PROSSER, LAW OF TORTS
§ 132, at 987-92 (4th ed. 1971). Absolute immunity, designed to protect certain
Board of T
discretionary functions from even the burden of litigation, is more familiar in the
45 The Court
law of torts than of crimes, perhaps because of the greater public concern and the
challenging this
greater screening process in the bringing of actions in the latter area. Cf. Gregoire
jury's reach was
V. Biddle, 177 F.2d 579, 581 (2d Cir. 1949) (L. Hand, C.J.):
94 S. Ct. at 3097
There must indeed be means of punishing public officers who have been
18 See, e.3., 8
truant to their duties; but that is quite another matter from exposing such
torney-client pri
as have been honestly mistaken to suit by anyone who has suffered from
their errors.
47 See Brief
42 See 94 S. Ct. at 3105-06 & n.16; Gravel V. United States, 408 U.S. 606 (1972).
48 5 U.S. (I
43 See 94 S. Ct. at 3105, 3107.
FORD
HALD
1974]
THE SUPREME COURT - FOREWORD
21
require the preservation of confidentiality of communications even
from the demand of litigation, then arguably a similar privilege
should be recognized for the relationship of President and confi-
dant. Whether it ought to be recognized calls for the kind of
weighing of interests, mutatis mutandis, that is practiced in assess-
ing relative needs in other relationships. If the balance is struck
by the courts in favor of confidentiality, the resulting principle as
applied to the presidential office becomes one of constitutional
dimensions. Although the analysis is similar in the private and
the official spheres, the differences in content are significant. Full
and frank interchange is a desideratum in both spheres; but the
President is a public trustee in a sense beyond that applicable to
a lawyer or physician, and so the countervailing interest in dis-
closure should weigh more heavily.
The principal clue to a resolution of the interests at stake can
be derived from the intergovernmental tax doctrine itself. It was
put thus by Chief Justice Hughes: 44
The principle invoked by the petitioner, of the immunity of state
instrumentalities from federal taxation, has its inherent limita-
tions. It is a principle implied from the necessity of maintaining
our dual system of government. Springing from that necessity
it does not extend beyond it.
If the Court had accepted the grand jury's naming of the Presi-
dent as an unindicted co-conspirator 45 the issue of privilege could
have been more easily resolved; on the analogy of other confi-
dential relationships, the privilege would not extend to com-
munications in furtherance of a course of criminal conduct. 46
Once more, in bypassing this action of the grand jury, proferred
by the Special Prosecutor,47 the Court elected to take broader
ground in support of the Special Prosecutor's position. The same
is true with respect to the question who is to decide on the bal-
ance of interests. More than once the Court's opinion quotes
Marshall's magisterial words in Marbury V. Madison:
"
it
is emphatically the province and duty of the judicial department
to say what the law is." 48 But of course the judiciary might
declare "the law" to be that the President is the sole determiner
of the need for protecting the confidentiality of particular com-
44 Board of Trustees V. United States, 289 U.S. 48, 59 (1933) (citations omitted).
45 The Court dismissed as improvidently granted the President's cross-petition
challenging this action of the grand jury, holding that determination of the grand
jury's reach was "unnecessary to resolution" of the President's claim of privilege.
94 S. Ct. at 3097 n.2.
48 See, e.g., 8 J. WIGMORE, EVIDENCE $ 2298 (McNaughton rev. ed. 1961) (at-
torney-client privilege).
47 See Brief for Petitioner at 90-102.
48 5 U.S. (I Cranch) at 177, quoted in 94 S. Ct. at 3105, 3106.
22
HARVARD LAW REVIEW
[Vol. 88:13
1974]
TH
munications, just as "the law" grants him sole authority over
close it: not
criminate him
recognition of the legal government of a foreign state. 49 To sup-
had been in th
port such an authority in a case where there was complicity
is a fact which
between the President and the defendants would offend violently
any of the qui
against the ancient precept that no man shall be judge in his own
cause. The Court chose, however, to base its decision more imper-
The next di
sonally, and hence more broadly, on the proposition that a court
agreeing to ans'
in a criminal case possesses the ultimate authority to decide what
been done with
is required on balance to be produced in the interests of the
edge whether
administration of criminal justice.50
State Madison
In striking a balance, the degree of relevance and materiality
confrontation
of the evidence is a significant factor. It is here that the real
to answer that
problems arise, particularly where the evidence sought is docu-
become of the
mentary and may contain material of varying relevance and sen-
Madison, it W
sitivity. The problems are those of procedure and mechanics,
done with the
and they were first addressed by John Marshall, preliminarily in
And so th
Marbury v. Madison 51 and more fully in the trial of Aaron Burr.
if the question
The proceedings in Marbury v. Madison in 1803 were some-
believe that
thing of a rehearsal for the issue of executive privilege in the Burr
cluded. After
trial in 1807. A summons was issued to Levi Lincoln, then at-
the commissi
torney general, who had been secretary of state at the outset of
witnesses wb
Jefferson's administration in 1801, when the commissions signed
abouts and S
by the outgoing President Adams were allegedly withheld from
they were in
Marbury and his co-petitioners. Lincoln objected to answering
in which eve
written questions as to any facts which came officially to his
intended ren
knowledge while acting as secretary of state.52 Charles Lee, coun-
Marshall
sel for Marbury, conceded that Lincoln need not answer as to any
the Burr tri
facts which came to his knowledge in the discharge of that part of
proceedings
his duties as "an agent of the president, bound to obey his orders,
the duty of
and accountable to him for his conduct," 53 but maintained that
in a crimina
the facts concerning the commissions were within an independent
The prop
branch of his duties, as a public ministerial officer of the United
must dep
States.⁵⁺ The Court allowed Lincoln until the next day to consider
of the P8
his position, but took occasion to express its views in a monitory
way: 53
In no C:
against
[the Court] had no doubt he ought to answer. There was
nothing confidential required to be disclosed. If there had been
56 1d. at 1
he was not obliged to answer it; and if he thought that any thing
57 Id.
was communicated to him in confidence he was not bound to dis-
58 The rt
cadence of 1
49 United States V. Belmont, 301 U.S. 324, 33° (1937).
executive wl
50 See 94 S. Ct. at 3107.
id. at 166, t
51 5 U.S. (I Cranch) 137 (1803).
original juri
52 Id. at 143-44.
ing the Cov
53 Id. at 143.
sional acts.
54 Id.
59 25 F.
53 Id. at 144-45.
FORD
LIBRARY
10-4]
THE SUPREME COURT - FOREWORD
23
close it; nor was he obliged to state any thing which would
criminate himself; but that the fact whether such commissions
had been in the office or not, could not be a confidential fact; it
is a fact which all the world have a right to know. If he thought
any of the questions improper, he might state his objections.
The next day Lincoln went far toward an accommodation,
agreeing to answer all the questions except one, namely, what had
been done with the commissions. He professed to have no knowl-
edge whether they ever came into the possession of Secretary of
State Madison. 56 The Court, evidently relieved that a full-scale
confrontation could be avoided, now absolved Lincoln of a duty
to answer that question:
"
he was not bound to say what had
become of them; if they never came into the possession of Mr.
Madison, it was immaterial to the present causes what had been
done with them by others." 57
And so the issue of materiality provided an escape, although
if the question of privilege had not been involved it is difficult to
believe that the question put to Lincoln would have been ex-
cluded. After all, evidence concerning the further disposition of
the commissions might have been useful in producing further
witnesses who could throw clearer light on the previous where-
abouts and state of the documents, and on the question whether
they were in fact brought to the attention of President Jefferson,
in which event his failure to order delivery might be taken as an
intended removal from office.58
Marshall again faced the question of executive privilege at
the Burr trial, or more accurately trials. In the course of those
proceedings, he delivered the following two statements concerning
the duty of the President to respond to a subpoena duces tecum
in a criminal case: 59
The propriety of introducing any paper into a case, as testimony,
must depend on the character of the paper, not on the character
of the person who holds it.
In no case of this kind would a court be required to proceed
against the president as against an ordinary individual.
56 Id. at 145.
57 Id.
38 The recession of the Court at this stage may be compared with the
cadence of Marshall's opinion on the full case, taking occasion to castigate an
executive who would "at his discretion sport away the vested rights of others,"
id. at 166, then avoiding a collision by holding that the Court could not exercise
original jurisdiction to issue a writ of mandamus, although of course in so abstain-
ing the Court established the momentous doctrine of judicial review of congres-
sional acts.
59 25 F. Cas. at 34, 192.
FORD
LIBRAR
1974]
THE SUPREME COURT - FOREWORD
23
close it; nor was he obliged to state any thing which would
criminate himself; but that the fact whether such commissions
had been in the office or not, could not be a confidential fact; it
is a fact which all the world have a right to know. If he thought
any of the questions improper, he might state his objections.
The next day Lincoln went far toward an accommodation,
agreeing to answer all the questions except one, namely, what had
been done with the commissions. He professed to have no knowl-
edge whether they ever came into the possession of Secretary of
State Madison. The Court, evidently relieved that a full-scale
confrontation could be avoided, now absolved Lincoln of a duty
to answer that question: "
he was not bound to say what had
become of them; if they never came into the possession of Mr.
Madison, it was immaterial to the present causes what had been
done with them by others." 57
And so the issue of materiality provided an escape, although
if the question of privilege had not been involved it is difficult to
believe that the question put to Lincoln would have been ex-
cluded. After all, evidence concerning the further disposition of
the commissions might have been useful in producing further
witnesses who could throw clearer light on the previous where-
abouts and state of the documents, and on the question whether
they were in fact brought to the attention of President Jefferson,
in which event his failure to order delivery might be taken as an
intended removal from office.⁵⁸
Marshall again faced the question of executive privilege at
the Burr trial, or more accurately trials. In the course of those
proceedings, he delivered the following two statements concerning
the duty of the President to respond to a subpoena duces tecum
in a criminal case: 59
The propriety of introducing any paper into a case, as testimony,
must depend on the character of the paper, not on the character
of the person who holds it.
In no case of this kind would a court be required to proceed
against the president as against an ordinary individual.
56 Id. at 145.
57 Id.
58 The recession of the Court at this stage may be compared with the
cadence of Marshall's opinion on the full case, taking occasion to castigate an
executive who would "at his discretion sport away the vested rights of others,"
id. at 166, then avoiding a collision by holding that the Court could not exercise
original jurisdiction to issue a writ of mandamus, although of course in so abstain-
ing the Court established the momentous doctrine of judicial review of congres-
sional acts.
59 25 F. Cas. at 34, 192.
BERALD FORD LIBRARY
24
HARVARD LAW REVIEW
[Vol. 88:13
1974]
The juxtaposition, though tantalizing, is not altogether fair:
a letter from
Marshall was not suffering from judicial schizophrenia. Rather,
States, dated
he was speaking at two different points in the proceedings and
message of th
was addressing two different issues - - the issuance of a subpoena
may be mat
64
to the President, and its enforcement after the President's counsel
Bur
made a return claiming privilege.
respect to sta
The Burr trials 60 passed through four stages: the grand jury
the case: 65
inquiry (indictments for treason and misdemeanor were returned
If the letti
on June 24 and 26, 1807); the treason trial (Burr was acquitted
with the
on September r); the misdemeanor trial (Burr was acquitted on
the return
September 15); and commitment to the Federal Circuit Court for
he did sa
Ohio on a misdemeanor charge.61 Two subpoenas were issued by
tial chara
Chief Justice Marshall and the district judge sitting with him as
out such
the Circuit Court for Virginia on motion of counsel for Burr: one
not be
on June 13, addressed to President Jefferson, calling for the pro-
The Un
duction of a letter written to Jefferson by General Wilkinson on
close to Bu
October 21, 1806; the second on September 4, addressed to the
though he
United States Attorney, George Hay, for a letter from Wilkinson
turned mai
to Jefferson written on November I2, 1806. The actual content of
cide. Hay
these letters was not described or disclosed, but that of October
"stating th
21 had been referred to by Jefferson in a message to Congress as
the proprie
establishing Burr's guilt beyond doubt,6 and that of November
himself [H
12, it was intimated throughout the arguments of counsel, con-
and detern
tained scandalous charges by Wilkinson against other respectable
ing that
officials. Both letters were evidently sought to provide a basis for
having bee
impeaching the credibility of Wilkinson should he testify for the
see that it
prosecution.
63
the Presid
In support of his demand for the first letter Burr submitted his
what pap
affidavit stating simply that "he hath great reason to believe that
mits to be
60 Recent discussions of the Burr trials include: Berger, The President, Congress,
of my rea
and the Courts, 83 YALE L.J. IIII, IIII-22 (1974) Nathanson, From Watergate
all occasi
to Marbury V. Madison: Some Reflections on Presidential Privilege in Current
Then, ref
and Historical Perspectives, 16 ARIZ. L. REV. 59, 61-65 (1974); Rhodes, What
devolved
Really Happened to the Jefferson Subpoenas, 60 A.B.A. J. 52 (1974); Wills, Execu-
tive Privilege: Jefferson & Burr & Nixon & Ehrlichman, The New York Review
But as
of Books, July 18, 1974, at 36; R. BERGER, supra note 29, at 187-94; 5 D. MALONE,
beg let
JEFFERSON AND HIS TIME: JEFFERSON THE PRESIDENT, SECOND TERM, 1805-08, at
it wou
215-370 (1974).
comm
The trials are reported in two shorthand transeriptions: T. CARPENTER, THE
mater
TRIAL OF CoL. AARON BURR (1807) (three volumes) [hereinafter cited as CAR-
PENTER]; D. ROBERTSON. THE TRIALS OF COLONEL AARON BURR (1808) (two vol-
A furthe
umes) [hereinafter cited as ROBERTSON]. The opinions of Chief Justice Marshall
plained
and some of the arguments of counsel are reported at 25 F. Cas. 2-207 (Nos.
64
14,692a-14,694a) (C.C.D. Va. 1807).
25
F
61 See Berger, supra note 60, at III2; Rhodes, supra note 60, at 52-53.
65 25 F
62 See I J. RICHARDSON, MESSAGES AND PAPERS OF THE PRESIDENTS 412 (1896).
68 I R
63 See 25 F. Cas. at 31-32; 2 ROBERTSON 512-27. Wilkinson testified before
67 Lett
the grand jury, but he was not in fact called as a witness in the two trials. See
210.
5 D. MALONE, supra note 60, at 336, 344.
68 Id.
SERALD
LIBRARY
1974]
THE SUPREME COURT - FOREWORD
25
a letter from General Wilkinson to the president of the United
States, dated 21st October, 1806, as mentioned in the president's
message of the 22d January, 1807, to both houses of congress
may be material in his defence, in the prosecution against him
64 Burr's argument to the court contained a concession with
respect to state secrets and to confidential matters not relevant to
the case: 65
If the letter contained state secrets which it would be inconsistent
with the public safety to disclose, the president could say SO in
the return to the subpoena; but it was not to be assumed until
he did say SO. Or, if the letter contained anything of a confiden-
tial character, not relating to the case, the president could point
out such parts as he did not wish to have exposed, and they need
not be read in court.
The United States Attorney, George Hay, was remarkably
close to Burr's position on when disclosure was appropriate, al-
though he resisted the issuance of a subpoena. The difference
turned mainly on whether the executive or judiciary should de-
cide. Hay informed the court that he had written the President
"stating the motion that was to be made this day, and suggesting
the propriety of sending on the papers required; but reserving to
himself [Hay] the right of retaining them, till the court saw them,
and determined their materiality.' 66 Jefferson, in response, stat-
ing that the letter in question was no longer in his possession,
having been entrusted to Attorney General Rodney, undertook to
see that it was delivered to Hay, but insisted on the principle that
the President must "decide, independently of all other authority,
what papers coming to him as president, the public interest per-
mits to be communicated, and to whom." He added, "I assure you
of my readiness, under that restriction, voluntarily to furnish, on
all occasions, whatever the purposes of justice may require." 67
Then, referring to his lack of actual possession of the letter, he
devolved discretion regarding materiality upon Hay: 68
But as I do not recollect the whole contents of that letter, I must
beg leave to devolve on you, the exercise of that discretion which
it would be my right and duty to exercise, by withholding the
communication of any parts of the letter which are not directly
material for the purposes of justice.
A further message from Jefferson to Hay, read to the court, ex-
plained that he had written to Attorney General Rodney but had
64 25 F. Cas. at 31; I ROBERTSON 119.
63 25 F. Cas. at 31.
66 I ROBERTSON 120.
FORD
67 Letter from Thomas Jefferson to George Hay, June 12, 1807, I ROBERTSON
210.
68 Id.
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LISBERT
26
HARVARD LAW REVIEW
[Vol. 88:13
1974]
received no information concerning Wilkinson's letter; Jefferson
It is not ea
the conduct
referred to certain other letters and orders that were wanted,
stating, "[t]he receipt of these papers has, I presume, so far
president.
consideration
anticipated, and others this day forwarded, will have substantially
fulfilled the object of a subpoena from the district court of Rich-
The issue
mond
" 69 He repeated his insistence that with respect to
the October
papers not in the public domain the President "must be the sole
States Attorn
judge of which of them the public interest will permit publica-
trial rendere
tion." 70 Jefferson managed a delicate thrust at what he regarded
questions wt
as judicial pretensions: 71
the arbiter C
The respect mutually due between the constituted authorities in
cedures wou
their official intercourse, as well as sincere dispositions to do for
Although
every one what is just, will always insure from the executive, in
2I at the 0
exercising the duty of discrimination confided to him, the same
now to Will
candour and integrity, to which the nation has in like manner
sented to th
trusted in the disposal of its judiciary authorities.
rassing to
against cert
Meanwhile, between Hay's letter to Jefferson and the receipt
sued a sub
of the latter's responses, Marshall had proceeded to issue the sub-
although M
poena, with an opinion, already quoted, 72 taking broad ground
The Chief
concerning the amenability of the President to the court's process,
he observed
but adding that any claim of privilege would be considered in due
seen the le
course if made on the return. Marshall adumbrated the criteria
not so sig
he would apply if a claim were made that disclosure would be
might sugg
incompatible with the public interest: 73
It is W
That there may be matter, the production of which the court
stances
would not require, is certain; but, in a capital case, that the ac-
are wit
cused ought, in some form, to have the benefit of it, if it were
pose; a
really essential to his defence, is a position which the court would
suspicio
very reluctantly deny
There is certainly nothing before
ject of
the court which shows that the letter in question contains any
with W
matter the disclosure of which would endanger the public safety.
If it does contain such matter, the fact may appear before the
Discu
disclosure is made. If it does contain any matter which it would
and mate
be imprudent to disclose, which it is not the wish of the executive
procedur
to disclose, such matter, if it be not immediately and essentially
not the C
applicable to the point, will, of course, be suppressed.
75 A CO
And then, in an obvious reference to Jefferson's public denuncia-
court, see 3
tion of Burr, Marshall thrust the rapier: 74
proceeding
counsel, it
69 Letter from Thomas Jefferson to George Hay, June 17, 1807, I ROBERTSON
unclear fr.
were made
254-55.
70 Id. at 255.
to the dis
71 Id.
document
72 See p. 23 supra.
76 R
73 25 F. Cas. at 37.
77 2 R
74 Id.
73 Id.
FORD
1974]
THE SUPREME COURT - -- FOREWORD
27
It is not easy to conceive that SO much of the letter as relates to
the conduct of the accused can be a subject of delicacy with the
president. Everything of this kind, however, will have its due
consideration on the return of the subpoena.
The issue proceeded no further, however, for the original of
the October 21 letter seems never to have come into the United
States Attorney's possession, and Burr's acquittal in the treason
trial rendered the matter academic in that context. 75 Thus, the
questions whether disclosure would be compelled, who would be
the arbiter of privilege, what criteria would apply, and what pro-
cedures would be adopted, were not finally resolved at this stage.
Although Burr renewed his demand for the letter of October
2I at the outset of the trial for misdemeanor, attention turned
now to Wilkinson's letter of November 12, which had been pre-
sented to the grand jury. Evidently it contained material embar-
rassing to Jefferson in that Wilkinson made serious charges
against certain of the President's political friends. 76 Marshall is-
sued a subpoena for the letter to the United States Attorney,
although Marshall had doubts about its materiality to the defense.
The Chief Justice was evidently familiar with it, since at one point
he observed that "[w]e must consider the subject as if we had not
seen the letter. 77 He intimated broadly that the contents were
not so significant as the spirited contest over their production
might suggest: 78
It is with regret that I decide a question under such circum-
stances, because it is probable that those parts of the letter which
are withheld, are of much less importance than gentlemen sup-
pose; and that the effect of their production would be to dissipate
suspicions which are now entertained, and to shew that the sub-
ject of the controversy is by no means proportioned to the zeal
with which it has been maintained.
Discussion turned to the mechanics by which the character
and materiality of passages objected to might be decided. On this
procedural problem the defense maintained that "the party, and
not the court, judges of the materiality of witnesses or documents;
75 A copy of the October 21 letter was apparently delivered to the clerk of the
court, see 3 CARPENTER II2 (statement of Aaron Burr), and during the commitment
proceedings a portion of that copy was quoted by John Wickham, one of Burr's
counsel, in his cross-examination of General Wilkinson. Id. at 265-66. It is
unclear from the trial transcript whether the whole letter or only portions of it
were made available to the defense, but Hay's remark that he no longer objected
to the disclosure of all of the letter, see 2 ROBERTSON 505, suggests that the entire
document was turned over.
76 2 ROBERTSON 529-30; Rhodes, supra note 60, at 53-
77 2 ROBERTSON 5II.
78 Id. at 533-34.
1020
1974]
THE SUPREME COURT - FOREWORD
29
The opinion proceeds to set forth dialectically Marshall's
analysis. In an ordinary case an affidavit of materiality would
suffice to order production. But the President may have sufficient
reasons for withholding a document whose exposure would be of
"manifest inconvenience." It would be "a very serious thing,"
however, to withhold from the accused "any information material
to the defence." But "on objections being made by the president
to the production of a paper, the court would not proceed further
in the case without such an affidavit as would clearly shew the
paper to be essential to the justice of the case." On the weight to
be given to the President's objection, "the court would unques-
tionably allow their full force to those reasons." If a reservation
of certain portions of a paper were made by the President, "all
proper respect" would be paid to it. Here, however, no objection
had been interposed by the President himself, but only by his
delegate, the United States Attorney. With the case in this pos-
ture, and because "[t]he only ground laid for the court to act
upon is the affidavit of the accused," "the court is induced to
order that the paper be produced, or the cause be continued.' 85
President Jefferson subsequently sent a copy of the letter,
with his own deletions, to the United States Attorney, but Burr
did not press his demand, probably because his acquittal on the
misdemeanor charge, as on the trial for treason, was confidently
expected (and did occur). Demand for the letter was renewed,
however, in the final stage of the proceedings, on motion to com-
mit Burr to the custody of the federal marshal for transfer for
trial in Ohio. At this stage Marshall delivered no further opin-
ion but made rulings in the course of colloquies with counsel.
The Chief Justice's private knowledge of the contents of the let-
ter was shared by Burr's counsel,⁸⁸ and doubtless by Burr himself,
and Marshall was manifestly annoyed that the defense offered
no further statement of its materiality; the contest over produc-
tion had become a protracted bout of shadowboxing. But Mar-
shall did reassert his opinion that it was his responsibility to
weigh the President's claim. Addressing Burr, he said: 87
After such a certificate from the president of the United States
as has been received, I cannot direct the production of those
parts of the letter, without sufficient evidence of their being
relevant to the present prosecution. I should suppose, however,
that the same source, which informed you of the existence of
this paper, might inform you of the particular way in which it
was relevant.
85 Id. at 192.
86 See 3 CARPENTER 282.
87 Id. at 280-81.
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30
HARVARD LAW REVIEW
[Vol. 83:13
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I
In the end Marshall refrained from ordering production, ruling
tions to which ;
instead that the omitted parts of the letter might be taken to sup-
claim of privil
port the defendant's assumption regarding them: 88
to the Presider
teriality of the
After a long and desultory argument, the Chief Justice deter-
duction. (3)
mined that the correct course was, to leave the accused all the
required, the n
advantages which he might derive from the parts already pro-
in camera insp
duced; and to allow all the advantages of supposing that the
sel and, it seer
omitted parts related to any particular point. The accused may
the court may
avail himself as much of them, as if they were actually produced.
the accused, C
In the tap
I have already decided this question. It is certainly fair to
and the mech
supply the omitted parts by suppositions, though such ought
the President
not to affect General Wilkinson's private character. If this were
poena, the dis
a trial in chief, I should perhaps think myself bound to continue
tively privile
the cause, on account of the withholding the parts of this paper:
Special Prose!
and I certainly cannot exclude the inferences which gentlemen
justice of the
may draw from the omissions.
Prosecutor h:
Marshall's ruling at this stage appears to have been com-
in order to a
pounded of exasperation, desire to avoid an outright collision
ably this furti
with Jefferson, and conviction that commitment proceedings were
During the it
not an appropriate forum for resolution of difficult legal questions.
for the safels
He stated a preference for leaving such questions to the trial
particular pq
judge, who could certify them to a higher court.89
may call upa
The Burr trials may be taken to have established four prin-
appears to be
ciples, all pertinent to and important for the tapes case: (I)
ensure that I
There is no absolute privilege in a criminal case for communica-
where a genu
judgment ab
88 Id. at 281-82, 284.
A ruling such as Marshall's might conceivably reflect an opinion that the mat-
90 The Nixo:
ter was indeed privileged but that the prosecution was, in effect, estopped from
taking advantage of the privilege. See United States V. Beekman, I55 F.2d 580,
mitting evidenti
584 (2d Cir. 1946) (Frank, J.) ("When the government institutes criminal pro-
duction of evi
ceedings in which evidence, otherwise privileged under a statute or regulation, be-
evident: the m:
comes importantly relevant, it abandons the privilege."). Marshall, however, gave
and others and
no indication that he was silently renouncing his position that the judge, not the
their actual COI
President, was the ultimate arbiter, and his remarks to Burr, quoted in the text,
were being sou
trial in chief.
indicate the contrary. Moreover, in context Marshall's ruling was as helpful to
the defense as actual delivery of the letter would have been. See note 90 infra.
outcome of tb
89 See 3 CARPENTER 409. Marshall appeared anxious to terminate his part in
actual letter: t]
the Burr affair. Shortly afterwards, he wrote to Judge Peters of Philadelphia,
sought solely ir
and most impe
thanking him for a volume of Admiralty Reports and revealing something of his
and to Marsha
feelings about the Burr trials:
I have as yet been able only to peep into the book
whether to COI
I received it
while fatigued, and occupied with the most unpleasant case which has ever
91 94 S. Ct
been brought before a judge in this or, perhaps, in any other country which
F. Cas. at 192.
affected to be governed by laws; since the decision of which I have been
92 See p. I:
entirely from home. The day after the commitment of Colonel Burr
93 See 94 s
I galloped to [his vacation home in] the mountains
94 See id. a
J. THAYER, JOHN MARSHALL 97 (Phoenix ed. 1967).
FORD
LIBRAST
1974]
THE SUPREME COURT - FOREWORD
31
tions to which the President is a party. (2) Upon a particularized
claim of privilege by the President the court, giving due respect
to the President's judgment, will weigh the claim against the ma-
teriality of the evidence and the need of the accused for its pro-
duction. (3) For purposes of determining whether disclosure is
required, the material sought may be ordered to be produced for
in camera inspection by the court, with the participation of coun-
sel and, it seems, of the accused. (4) In lieu of such production,
the court may direct that inferences shall be drawn favorable to
the accused, or that the prosecution be dismissed.
In the tapes case these principles were largely confirmed,90
and the mechanics of an in camera inspection were refined. If
the President invokes a claim of privilege in response to a sub-
poena, the district judge should treat the materials as "presump-
tively privileged" and order in camera inspection only if the
Special Prosecutor demonstrates that they are "essential to the
justice of the [pending criminal] case.' 91 Since the Special
Prosecutor had already been required to demonstrate relevancy
in order to obtain the subpoena in the first instance,⁹² presum-
ably this further requirement calls for a stronger showing of need.
During the inspection the judge should exercise the utmost care
for the safekeeping of the materials. In determining whether
particular portions are to be excised, the judge in his discretion
may call upon the aid of counsel for both sides, although neither
appears to be entitled to participate as of right. 94 Such procedures
ensure that presidential confidentiality will not be broken except
where a genuine need exists; enable the court to make an informed
judgment about the need for disclosure of specific segments of
90 The Nixon Court nowhere expresses any view as to the propriety of per-
mitting evidentiary inferences on behalf of the accused in lieu of requiring pro-
duction of evidence. In Nixon the inappropriateness of that alternative was
evident: the materials sought included conversations between indicted conspirators
and others and therefore would be likely to relate to central elements in the case;
their actual contents were unknown and in some, instances in dispute; and they
were being sought for use by both the prosecution and the defense in a criminal
trial in chief. In Burr, however, it appeared to make little real difference in the
outcome of the proceedings whether the defense received the inference or the
actual letter: the letter was only marginally relevant to the defendant's case, being
sought solely in order to impeach the veracity of a witness, see 3 CARPENTER 280-81;
and most important, the actual contents were already known both to the defense
and to Marshall, who was sitting without a jury and would be the sole judge of
whether to commit Burr for a new trial. See id. at 280, 282; 2 ROBERTSON 509.
91 94 S. Ct. at 3110 (brackets in original), quoting United States V. Burr, 25
F. Cas. at 192.
92 See p. I7 supra.
93 See 94 S. Ct. at 3110-II.
94 See id. at 3110-11 & n.21.
HARVARD LAW REVIEW
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32
[Vol. 83:13
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subpoenaed materials; and protect against disclosure of irrelevant
survivors them
portions.
95
were available
In the tapes case the Court was not called upon to deal with
circumstance et
materials that contain military or diplomatic secrets. Neverthe-
completeness a
less, citing Chicago & Southern Air Lines, Inc. v. Waterman
The Reyno
Steamship Corp.⁹⁶ and United States v. Reynolds, 07 the opinion
merely on the
observes that the "high degree of deference" shown to the ex-
a forceful pre
ecutive's judgment in such cases need not be shown where the
hearing to det
privilege claimed is only the generalized one in confidentiality.98
formation may
The apparent approval given to the Reynolds decision may be
Reynolds was
disquieting. There the Court held that in a tort action by the
Court was ex
widows of three civilian engineers who were killed in the crash
litigant's dem
of an Air Force plane on which experimental and secret electronic
cause his suit
equipment was carried, the plaintiffs were not entitled to the pro-
consent as m
duction, even for in camera inspection by the trial court, of a
may be, an
report of an official board of inquiry investigating the airplane
Chief Justice
accident. There was no suggestion that the electronic equipment
diplomatic
figured in the cause of the crash. The decision reversed a strong
purposes of
court of appeals (Judges Maris, Goodrich, and Kalodner) 99 and
somewhat gr
drew a dissent from Justices Black, Frankfurter, and Jackson.
ion indicates
Particularly surprising was Chief Justice Vinson's observation
under subpc
that production of the report was of dubious necessity since the
100
345
U.S.
93 There is, of course, one conspicuous difference between the Burr case and
101 Compar
the tapes case: in the latter the documents were sought not by the accused but by
game, whose a
the prosecution. The difference, however, is more conspicuous than significant. Not
review of the
only does the pursuit of justice have a double aspect, but in fact the interests of
CUTTING EDGE
the accused may be served by production at the instance of the prosecution. Under
Reid when a
the doctrine of Brady V. Maryland, 373 U.S. 83 (1963), the accused is entitled to
No doubt
access to evidentiary material of an exculpatory nature in the possession of the
be reasons
closed, but
prosecution, and several of the defendants were asserting rights under that doctrine.
to be give
As Mr. Justice Douglas pointed out at the oral argument, the rights of the
the facts.
accused were lurking not far beneath the surface of the case:
Conway V. R
Question: I thought the heart of this case was the rights of defendants in a
102 94.S.
criminal trial to that evidence. It may be exculpatory and free them of all
103 So Sta
liability
Mr. Jaworski: Well, it certainly is in the case. Now, of course what you
States V. Rey
have reference to also, I am sure, Mr. Justice Douglas, is Brady
Respon
has been
Question: And the question of whether or not the defendants, under the
at the pr
Brady doctrine, are entitled to subpoena information and material that is
cases is
not now in your possession but is in the possession of the President, was an
the duty
issue that was left undecided by the District Court.
undertak
Mr. Jaworski: That is correct, sir.
the accu
Transcript of Oral Argument at 41-42. The Special Prosecutor freely stated that he
rationale
would make available to defendants any material to which they were entitled
moving
under Brady, and that the obligations "extend even to 'privileged' evidence."
104 Whe
question
Reply Brief for Petitioner at 64 n.37.
of that
98 333 U.S. 103 (1948).
counsel
97 345 U.S. I (1953).
whether
98 94 S. Ct. at 3108-09.
cases a:
99 192 F.2d 987 (3d Cir. 1951).
94 S. Ct. a
FORD
LIBRATE
1974]
THE SUPREME COURT - FOREWORD
33
survivors themselves, who had been interviewed by the board,
were available as witnesses; 100 one might have thought that this
circumstance enhanced the value of the report in the interest of
completeness and confrontation. 101
The Reynolds Court's willingness to honor a claim of privilege
merely on the basis of the executive's judgment is not, however,
a forceful precedent for the inappropriateness of an in camera
hearing to determine whether production of national security in-
formation may be compelled in the course of criminal proceedings.
Reynolds was a civil case - a situation with which the Nixon
Court was expressly not concerned 102 - and one in which the
litigant's demand for evidence was arguably less appealing be-
cause his suit was permissible only by virtue of the Government's
consent as manifested in the Tort Claims Act. 103 However that
may be, an important and reassuring footnote near the end of
Chief Justice Burger's opinion assimilates claims of military and
diplomatic secrets to those of general confidentiality for the
purposes of the availability of an in camera procedure. 104 The
somewhat greater deference to the executive that the Nixon opin-
ion indicates is appropriate when national security information is
under subpoena thus appears to go to the weight to be accorded
100 345 U.S. at II.
101 Compare the remark of George S. Kaufman in the course of a bridge
game, whose application to the tapes case need not be labored: "I would like a
review of the bidding, with the original intonations." L. KRONENBERGER, THE
CUTTING EDGE 169 (1970). Possibly more authoritative is the statement of Lord
Reid when a similar ground was suggested for exclusion of official reports:
No doubt if a report contains more than a statement of the facts there may
be reasons at least for withholding that part which ought not to be dis-
closed, but I fail to see what public interest is served by permitting evidence
to be given but withholding the contemporary report of the witness about
the facts.
Conway V. Rimmer, [1968] A.C. 910, 946.
102 94 S. Ct. at 3109 n.19.
103 60 Stat. 842 (codified in scattered sections of 28 U.S.C. (1970)). See United
States V. Reynolds, 345 U.S. I, I2 (1953) (footnote omitted):
Respondents have cited to us those cases in the criminal field, where it
has been held that the Government can invoke its evidentiary privileges only
at the price of letting the defendant go free. The rationale of the criminal
cases is that, since the Government which prosecutes an accused also has
the duty to see that justice is done, it is unconscionable to allow it to
undertake prosecution and then invoke its governmental privileges to deprive
the accused of anything which might be material to his defense. Such
rationale has no application in a civil forum where the Government is not the
moving party, but is a defendant only on terms to which it has consented.
104 When the subpoenaed material is delivered to the District Judge in camera
questions may arise as to the excising of parts and it lies within the discretion
of that court to seek the aid of the Special Prosecutor and the President's
counsel for in camera consideration of the validity of particular excisions,
whether the basis of excision is relevancy or admissibility or under such
cases as Reynolds, supra, or Waterman Steamship, supra.
94 S. Ct. at 3111 n.21 (emphasis added).
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34
[Vol. 88:13
the needs of confidentiality versus the needs of litigants, rather
brief for Presi
than to the procedures for striking that balance. A litigant may
camera inspection, 103 but such an inspection remains the pri-
1974] transforming the irreparable decision decision panaceas of courts of and of again
the of
be required to make a stronger showing of need before a district
that W
judge will order production of national security material for in
foundly in
specters dis
mary method of resolving the conflicting claims of the executive
as
branch and the criminal process.
and their aut
The British rule, too, is that no absolute Crown privilege can
lessons exp
be claimed on the ground of confidentiality. 106 It was so decided
of
by the House of Lords in 1968, in a unanimous decision repudiat-
ing an earlier statement of Lord Simon accepting as conclusive a
tions deepe
claim of privilege by a principal Minister. 107 That practice had
borrow
proved quite unacceptable, for the reason put concisely in Lord
in
Pearce's speech: 'It is not surprising,' it has been said
Montesquieu
,
'that the Crown, having been given a blank cheque, yielded to
passage of a
the temptation to overdraw.' 108 There is no reason to suppose
at work that
that this is a peculiarly British phenomenon. 109
or law." But
Most "great" cases, those that, in Justice Holmes' words, "deal
firmance of
with the Constitution or a telephone company," 110 are argued
stronger reas
with prophecies of doom. The tapes case was no exception. The
alteration in
103 Indeed, the Reynolds Court went so far as to state that "even the most
compelling necessity cannot overcome the claim of privilege if the court is ulti-
mately satisfied that military secrets are at stake." 353 U.S. at II.
The opir
106 Conway V. Rimmer, [1968] A.C. 910. The Scottish law is in accord.
was concern
See Glasgow Corp. V. Central Land Bd., [1956] S.C. (H.L.) I.
criminal law
In Conway the House of Lords analyzed the claim of governmental privilege
115
for confidential documents as a "class" privilege, a characterization essentially the
Congress.
same as the Supreme Court's phrase "generalized privilege." See 94 S. Ct. at 3109-
IO. In each case, the assertion of such privilege was held insufficient to preclude in
111 Brief fo
camera review. Each court also left room for more specific claims, the House of
112 See, e.g.
Lords speaking of "contents" and the Supreme Court of "particular excisions" in
in The Gold G
referring to the examining judge's authority to excise portions of the documents.
United States,
See 94 S. Ct. at 3111 n.21; [1968] A.C. at 952-53, 994-96.
240 (1935):
107 See Duncan V. Cammell Laird & Co., [1942] A.C. 624.
may confident
108 [1968] A.C. at 983, quoting H. WADE, ADMINISTRATIVE LAW 285 (2d ed.
dissent in The
1967).
omitted):
109 Compare the statement of the Special Prosecutor:
Our form
In oral argument before the district court on the enforceability of the grand
but, as lon
jury's subpoena, counsel representing the President stated that "the Presi-
may survi'
dent has told me that in one of the tapes that is the subject of the present
113 Burnet
subpoena there is national security material so highly sensitive that he does
not feel free even to hint to me what the nature of it is." Transcript of
J., dissenting
Hearing on August 22, 1973, at 56, In re Grand Jury Subpoena Duces Tecum
The Pri
Issued to Richard M. Nixon, 360 F. Supp. I (D.D.C. 1973). Nevertheless,
an admitt
when the recordings were submitted to the district court in compliance with
should nc
later orders of that court and the court of appeals, counsel for the President
hypothesis
no longer asserted that any of the subpoenaed conversations included mat-
Every pu
ters relating to the national security and no such information was found.
right, is a
Reply Brief for Petitioner at 45 n.23.
for the fit
110 John Marshall, reprinted in THE OCCASIONAL SPEECHES OF JUSTICE OLIVER
114 Law
WENDELL HOLMES 131, 134 (M. Howe ed. 1962) [hereinafter cited as OCCASIONAL
FORD
168, 172.
SPEECHES].
115 94 S.
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THE SUPREME COURT FOREWORD
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brief for President Nixon closed with these words, referring to
the decision of Judge Sirica in the district court: "If sustained,
that decision will alter the nature of the American Presidency pro-
foundly and irreparably.' 111 History has a way of mocking these
specters of disaster forecast from judicial decisions. 112 So long
as the courts retain their resourcefulness in applying precedents,
and their authority to reconsider doctrine in the light of "the
lessons of experience and the force of better reasoning," 113 fears
of irreparable harm are likely to prove exaggerated. Moreover,
transforming decisions, however dramatic, are generally reflec-
tions of deeper currents in the national thought and culture. To
borrow again from the wisdom of Holmes: 114 "I have no belief
in panaceas and almost none in sudden ruin. I believe with
Montesquieu that if the chance of a battle - I may add, the
passage of a law - has ruined a state, there was a general cause
at work that made the state ready to perish by a single battle
or law." But the short answer to the apprehensions over an af-
firmance of Judge Sirica's decision is that it could be said with
stronger reason that a reversal would have marked a fundamental
alteration in our standards of criminal justice.
III. BEYOND THE TAPES CASE
The opinion of the Supreme Court was careful to state that it
was concerned with executive privilege only in the context of the
criminal law, and not in the setting of presidential relations with
Congress.¹¹⁵ Nevertheless, the rejection of a generalized privilege
111 Brief for Respondent at 137.
112 See, e.g., Justice McReynolds' dissenting opinion delivered from the bench
in The Cold Clause Cases, Perry V. United States, 294 U.S. 330 (1935) ; Nortz V.
United States, 294 U.S. 317 (1935); Norman V. Baltimore & Ohio R.R., 294 U.S.
240 (1935): "Shame and humiliation are upon us now. Moral and financial chaos
may confidently be expected." 334 U.S. at xi. Or witness Chief Justice Fuller's
dissent in The Lottery Case, Champion V. Ames, 188 U.S. 321, 375 (1903) (footnote
omitted):
Our form of government may remain notwithstanding legislation or decision,
but, as long ago observed, it is with governments, as with religions, the form
may survive the substance of the faith.
113 Burnet V. Coronado Oil & Gas Co., 285 U.S. 393, 407-08 (1932) (Brandeis,
J., dissenting). See F. CORNFORD, MICROCOSMOGRAPHIA ACADEMICA IS (1908):
The Principle of the Dangerous Precedent is that you should not now do
an admittedly right action for fear you, or your equally timid successors,
should not have the courage to do right in some future case, which, ex
hypothesi, is essentially different, but superficially resembles the present one.
Every public action which is not customary, either is wrong, or, if it is
right, is a dangerous precedent. It follows that nothing should ever be done
for the first time.
114 Law and the Court, reprinted in OCCASIONAL SPEECHES, supra note IIO, at
FORD
163, 172.
115 94 S. Ct. at 3109 n.19.
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36
HARVARD LAW REVIEW
[Vol. 88:13
1974]
in the President's discretion, and the adoption of a standard of
Similar
weighing the need for information against the injury to the na-
under active
tional interest through disclosure, will doubtless have a radiating
quire an exe
effect. Indeed the United States Court of Appeals for the District
ords within
of Columbia Circuit, in judging the Watergate Committee's suits
committee a
for presidential tapes, applied essentially the same standards it
ment signed
had employed in the first Special Prosecutor's suit, though with a
privileged.
13
different outcome. 116
which the
The issue of executive privilege is one aspect of a reexamina-
the need to
tion by Congress of the larger subject of relations between
mation who
Congress and the President. A rationalization of congressional
to the vital
procedures, long overdue, has been seen as a necessary element in
ions concer
congressional oversight. The purse and the sword are the instru-
ernment.
122
ments of national policy that have been of most acute concern to
sion, might
Congress, and in each of these fields new legislative controls have
a provision
been devised.
vestigatory
Out of these recent efforts a pattern seems to be emerging,
All sue
one that would replace the isolation of the two branches, their
laudable,
unilateral acts and recriminations, with a procedure for consul-
Act, 124
tation and for informed review by Congress. With respect to
against see
presidential impoundment of appropriated funds, 117 a statute now
efforts are
requires the President to communicate his reasons to Congress,
attention
which in turn must approve the impoundment (if it constitutes
the need
more than a deferral) as a condition of its becoming effective. 118
the asserti
With respect to military action, the War Powers Resolution of
tween the
1973 recognizes the power of the President to commit troops to
public jud
hostilities abroad in certain emergencies without a declaration of
The m
war, but requires a ratifying vote by Congress within sixty days. 119
develop, I
A like proposal regarding presidential proclamations of states of
and appr
national emergency is before Congress.¹ 120
contest 0'
turn to t]
116 Compare Senate Select Comm. on Presidential Campaign Activities V. Nixon,
disputes
498 F.2d 725 (D.C. Cir. 1974) (en banc), with Nixon V. Sirica, 487 F.2d 700
counsel a
(D.C. Cir. 1973) (en banc) (per curiam).
case aro:
117 See Baade, Mandatory Appropriations of Public Funds: A Comparative
Study, Parts I, II, 60 VA. L. REV. 393, 611 (1974) ; Note, Impoundment of Funds, 86
HARV. L. REV. 1505 (1973).
121 See
118 See Pub. L. No. 93-344, tit. X, 88 Stat. 297, 332 (U.S. CODE CONG. & AD.
192 See
NEWS 1720, 1761 (93d Cong., 2d Sess. July I2, 1974)).
35 OHIO S1
119 See Pub. L. No. 93-148, 87 Stat. 555, (U.S. CODE CONG. & AD. NEWS
Analysis an
614 (93d Cong., Ist Sess. Nov. 7, 1973)). The 60-day waiting period before con-
(1974)-
gressional ratification is required may give the administration the opportunity to
123 See
argue with some plausibility that the resolution gives the President a free hand,
124 5 U
independent of congressional opinion, to conduct military actions of less than two
125 See
months duration. See T. EAGLETON, WAR AND PRESIDENTIAL POWER: A CHRONICLE
tion Act a
OF CONGRESSIONAL SURRENDER 216, 218-21 (1974).
(1973). S.
120 See S. 3957, 93d Cong., 2d Sess. (1974), reprinted at 120 CONG. REC. 15788-89
of the Cit
(daily ed. Aug. 22, 1974).
Legis. Reg
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THE SUPREME COURT - FOREWORD
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Similar procedures for dealing with executive privilege are
under active consideration. In general, the proposals would re-
quire an executive department to furnish any information or rec-
ords within thirty days of receipt of a request from a House or
committee of Congress, unless the department can supply a state-
ment signed by the President explaining why the material is
privileged. 121 Some of the proposals would detail the grounds
which the President could legitimately advance for nondisclosure:
the need to withhold, for example, military secrets, other infor-
mation whose disclosure might create grave and irreparable harm
to the vital interests of the United States, and advice and opin-
ions concerning policy in relation to legitimate functions of gov-
ernment. 122 Provision for limited disclosure, as in executive ses-
sion, might further narrow the scope of the privilege, just as such
a provision might warrant a request for otherwise privileged in-
vestigatory files in connection with appointments and removals. 123
All such efforts to provide standards and procedures are
laudable, though experience with the Freedom of Information
Act, 124 applicable to private demands for information, cautions
against seeking clear and distinct solutions by codification. 125 The
efforts are nonetheless praiseworthy because they compel closer
attention to standards which serve the public interest, recognize
the need for restraint both in the demand for information and in
the assertion of privilege, encourage rational communication be-
tween the two branches, and furnish a basis for more informed
public judgment if in the end confrontation occurs.
The more troublesome question is whether, if an impasse does
develop, resort should be had to the courts. Given the widespread
and appreciative acceptance of the courts' role in resolving the
contest over production of the tapes, it seems natural enough to
turn to the judiciary for settlement of congressional-presidential
disputes as well. There are, however, significant differences that
counsel against an easy transference of judicial review. The tapes
case arose in the setting of a criminal proceeding. That factor
121 See H.R. 12462, 93d Cong., 2d Sess. (1974).
122 See Dorsen & Shattuck, Executive Privilege, the Congress and the Courts,
35 OHIO Sr. L.J. I, II-33 (1974) Committee on Civil Rights, Executive Privilege:
Analysis and Recommendations for Congressional Legislation, 29 THE RECORD 177
(1974).
123 See Dorsen & Shattuck, supra note 122, at 24-29.
124 5 U.S.C. § 552 (1970).
125 See EPA V. Mink, 410 U.S. 73, 79 (1973) ; Note, The Freedom of Informa-
tion Act and the Exemption for Intra-Agency Memoranda, 86 HARV. L. REV. 1047
(1973). See also Committee on Federal Legislation of the Association of the Bar
ot the City of New York, Amendments to the Freedom of Information Act, Fed.
Legis. Rep. No. 74-1 (April 22, 1974).
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38
HARVARD LAW REVIEW
[Vol. 88:13
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gives rise to three distinctive characteristics that bear on the ap-
touch is likely
propriateness of judicial review. In the first place, there was a
al order, when
conventional case already lodged in the court, not a plenary pro-
to give scope
ceeding between two branches of government. Second, and related
good."
120
TH
to the first characteristic, is the fact that private interests of the
in the freer
most acute kind - the potential loss of liberty of the defendants
the vision ant
- were at stake. Third, the weighing of the need for disclosure
123
Cf.
McC
is more congruent with the judicial function, and more comfortably
129 Gibbons
performed, in a criminal case than in a legislative investigation:
curring).
relevance and materiality are more focused in the search for de-
fined facts than in a wide-ranging inquiry either to furnish a basis
for legislation or to probe into maladministration. 126
If a prosecution were brought against an executive officer for
contempt of Congress in refusing to give evidence or produce rec-
ords, or if a House itself committed an officer to custody on that
ground, a court ought not to refrain from deciding the issue; basic
personal rights would have been put in jeopardy by a solemn act
of the legislative body. Short of that kind of collision, at the very
least there ought to be a considered resolution of the full House
before a legislative committee would seek, and a court would pro-
vide, judicial review. 127 But adoption of such legislation at this
time may be premature. The whole subject of executive privilege
is under close scrutiny; executive cooperation is likely to be more
forthcoming, and Congress, for its part, is sensitive to criticisms
of past excesses of some of its committees. A pattern of com-
munication and better understanding, together with the force of
public opinion, ought to be allowed to have its day. Routine
resort to the courts could stunt these promising developments,
draw the judiciary into intragovernmental controversies in their
raw, politically-tinged state, and expose the courts to the risk of
rendering unsatisfactory judgments on matters where the judicial
128 See C. MOSHER et al., WATERCATE: IMPLICATIONS FOR RESPONSIBLE GOVERN-
MENT I21-22 (1974) ; Nathanson, supra note 60, at 77.
Those especially who would look to the courts to vindicate the legislature's
right to obtain information may reflect on the unanimous decision of the court of
appeals against the Senate Watergate Committee. The court ruled that production
of the tapes was not vitally necessary to the Committee on two grounds: that these
tapes would probably come into the possession of another legislative group
charged with investigative and reporting responsibilities similar to that Com-
mittee's, and that fulfillment of the Committee's lawmaking responsibilities did
not require access to such detailed information as the tapes held. See Senate
Select Comm. on Presidential Campaign Activities V. Nixon, 498 F.2d 725, 732-33
(D.C. Cir. 1974). This result may well be disquieting to supporters of broad judicial
review to vindicate congressional authority.
127 Cf. O'Brien V. Brown, 409 U.S. I, 5 (1972) (per curiam) (denying review
of action of credentials committee of Democratic National Convention).
is
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THE SUPREME COURT - FOREWORD
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touch is likely to be unsure. Here, as elsewhere in our constitution-
al order, when personal rights are not in jeopardy, 128 it is well
to give scope for "a frank and candid co-operation for the general
good. " 129 The vision may be too ideal, the hope misplaced. But
in the freer and healthier atmosphere into which we are emerging
the vision and the hope deserve a trial.
123 Cf. McCulloch V. Maryland, I7 U.S. (4 Wheat.) 315, 401 (1819).
129 Gibbons V. Ogden, 22 U.S. (9 Wheat.) I, 238 (1824) (Johnson, J., con-
curring).
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