United States v. Nixon 418 U.S. 683 (1974) Background Summary & Questions In 1972, five burglars were caught breaking into the Democratic National Headquarters in the Watergate Hotel in Washington, D.C. Among other activities, the Democratic National Headquarters was responsible for raising money for and coordinating campaigns for Democratic candidates, including the presidential candidate. Media and government investigations discovered that the burglars were connected to the White House, which at the time was occupied by President Richard Nixon, a Republican. In addition, these investigations revealed that the president and his aides probably had abused their power in other ways as well. Congress held hearings on the scandal to investigate wrongdoing by the president and his aides. During those hearings, the public discovered that President Nixon had installed a tape recorder in the Oval Office. These tape recordings probably had conversations between the president and his aides that could support some of the accusations against them. The special prosecutor in charge of the case wanted to hear these tapes, but President Nixon did not want to give them up. President Nixon even had the special prosecutor removed from his job to stop him from obtaining the tapes. However, the next special prosecutor also requested them. This time a federal court judge ruled that the president had to hand over the tape recordings. In response, the president released edited transcripts and shortened versions of the tapes, but these were not good enough to meet the court order. The special prosecutor again challenged the president in the United States District Court. The District Court again ruled against the president and ordered him to give up the complete tapes. When the president appealed the District Court's ruling to the United States Circuit Court of Appeals, the special prosecutor asked the United States Supreme Court to step in and settle the dispute. The Supreme Court agreed to hear the case. Before the Supreme Court, Nixon's lawyers argued that the courts could not hear the case because it was a dispute within the executive branch over which the courts had no power or jurisdiction. They also argued that the tapes should be protected by the president's executive privilege. Executive privilege means that the communication between the president and his aides has a certain level of confidentiality. While it is not a right specifically given to the president in the Constitution, it is based on the constitutional separation of powers. Executive privilege reflects the belief that those in the executive branch should be able to communicate with the president, sharing their ideas without concern that their opinions will become the knowledge of the other branches of the government or the public. Having this freedom encourages advisors to be as honest and forthcoming as possible, which helps the president to make an informed decision. This is particularly important in matters of national defense. President Nixon's lawyers argued that only the president should be able to decide when his communications with his aides can be revealed to the public or other branches of the government. The Department of Justice, representing the people of the United States argued, however, that executive privilege was not absolute. In this case, those normally confidential communications were very important for a criminal case. If only the president had the power to decide when his communications could be revealed to the public, then he could cover up information about illegal activities and this would be dangerous for the legal system and the rule of law. Questions to Consider: 1. Why might a president want to record conversations held in the Oval Office? Why do you think President Nixon taped his conversations even though he was discussing illegal activities with his aides? 2. Executive privilege itself cannot be found in the U.S. Constitution, but it comes from the separation of powers in the U.S. Constitution. Explain what executive privilege is and how it helps keep the executive branch independent from the other branches of government. 3. Describe a circumstance in which it would be beneficial to the nation for a president to keep communication with aides confidential. 4. Who should determine when the communications between a president and presidential aides should be revealed, the president or the courts? If the president never has to reveal conversations that are needed for a criminal trial, what effect could this have on the legal system? Decision In a unanimous decision, the Court ruled in favor of the United States and against President Nixon. Chief Justice Burger, wrote the opinion for the Court, which concluded that presidents do enjoy a constitutionally protected executive privilege, but that the privilege was not absolute. The Court decided that in this case, the President’s interest in keeping his communications secret was outweighed by the interests of the judiciary in providing a fair trial with full factual disclosure. President Nixon’s attorneys first argued that the doctrine of separation of powers prevented the Supreme Court from hearing this case at all. They asserted that because the judicial and executive branches are separate, each with its own functions, the judicial branch should not be allowed to interfere with the functioning of the executive branch. The Court rejected this argument, responding that the case raised a constitutional question, and therefore clearly fell within the functions of the judicial branch as interpreter of the Constitution. To support this ruling, the justices cited the Court’s decision in Marbury v. Madison, in which the Court declared that “it is the province and duty of the judicial department to say what the law is.” President Nixon’s lawyers also asserted that the Court should find the president was entitled to absolute executive privilege. This meant that he could not be forced to reveal any of his confidential communications unless he chose to. The lawyers set out two reasons to support their argument. First, the president needed honest advice from his advisors, and these advisors might be uncomfortable giving advice if they knew that it could become public. Second, these confidential communications were essential for the president to carry out the duties assigned to the executive branch by the Constitution. The Court acknowledged the validity of theses interests and that the president was entitled to a degree executive privilege. This privilege was not determined to be absolute. In this case, the interest of President Nixon in keeping his communications secret conflicted with the interests of the judicial branch in providing a full and fair trial. A fair trial required full disclosure of all facts and relevant information. The justices asserted that the interests of the president must be balanced against the interests of the judicial branch when these interests conflict. The justices reasoned that the judiciary’s interest in the “fair administration of criminal justice” outweighed President Nixon’s interest in keeping the content of his tapes secret. One reason for this was that the only issue before the Court was whether the trial judge could privately inspect the tapes to determine whether they were essential to a fair trial. The justices further stated that there would be cases in which the president’s need for confidentiality would outweigh the interests of the judicial branch, such as when the secret communication involved “military, diplomatic or sensitive national security secrets.” Key Excerpts from the Opinion The case was decided 8 to 0. Justice Rehnquist did not participate. Chief Justice Burger delivered the opinion of the Court. [W]e turn to the claim that the subpoena should be quashed because it demands "confidential conversations between and President and his close advisors that it would be inconsistent with the public interest to produce" . . . The first contention is a broad claim that the separation of powers doctrine precludes judicial review of a President's claim of privilege. The second contention is that if he does not prevail on the claim of absolute privilege, the court should hold as a matter of constitutional law that the privilege prevails over the subpoena. . . . 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 Constitution as providing an absolute privilege of confidentiality for all Presidential communications. Many decisions of this Court, however, have unequivocally reaffirmed the holding of Marbury v. Madison . . . that "it is emphatically the province and duty of the judicial department to say what the law is". Since this Court has consistently exercised the power to construe and delineate claims arising under express powers, it must follow that the Court has the authority to interpret claims with respect to powers alleged to derive from enumerated powers. In support of his claim of absolute privilege, the President's counsel urges two grounds, one of which is common to all governments and one of which is peculiar to our system of separation of powers. The first ground is the valid need for protection of communications between high government officials and those who advise and assist them in the performance of their manifold duties; the importance of this confidentiality is too plain to require further discussion. 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 . . . insulates a president from a judicial subpoena in an ongoing criminal prosecution, and thereby protects confidential presidential communications. However, neither the doctrine of separation of powers, nor the need for confidentiality of high level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide. The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Art. III. Since we conclude that the legitimate needs of the judicial process may outweigh Presidential privilege, it is necessary to resolve those competing interests in a manner that preserves the essential functions of each branch. 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. But this presumptive privilege must be considered in light of our historic commitment to the rule of law. . . . 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 system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. 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 evidence. In this case we must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of the President's responsibilities against the inroads of such a privilege on the fair administration of criminal justice. We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial. Questions to Consider: 1. What does the Supreme Court of the United States say about President Nixon's contention that the courts have no jurisdiction in this case? What was the power of the courts established by the case of Marbury v. Madisoncited in this case? 2. Does the Court question the need for confidential communications between the president and his advisors? 3. The Court claims that the president's confidential communications must be balanced against, or considered in light of, other values. With what values, in this case, must the president's confidentiality be balanced? According to the Court, which values take precedence in this case? 4. If the Supreme Court of the United States had allowed President Nixon to keep the tapes private, Chief Justice Burger claimed that "the very integrity of the judicial system and public confidence in the system" was at risk. Do you agree with Chief Justice Burger? Explain your answer. 5. In the case of United States v. Burr (1807), Chief Justice John Marshall stated that "[I]n no case of this kind would a court be required to proceed against the president as against an ordinary individual." Has the Supreme Court in United States v. Nixonproceeded against the president as an ordinary individual? Why or why not? 6. Should the president be treated as an ordinary individual? Why or why not?