Summary of United States v. Nixon (1974)
Relevant Facts: Agents of CREEP broke into Democratic National Headquarters and were
caught in the act. It was slowly uncovered that President Nixon authorized the break-in, as well
as several other incidents. Former White House counsel John Dean named Nixon himself in an
ensuing investigation into the cover-up, and impeachment proceedings were brought against the
President.
As a result of a grand jury indictment against 7 defendants, most notably former Attorney
General John Mitchell, the President was named as an unindicted co-conspirator and was ordered
by a District Court upon subpoena, to produce certain tapes, memoranda, and other writings
related to specific meetings associated with the scandal.
President released transcripts to some of the tapes and then moved to quash the release of them
all together on grounds of executive privilege. District Court denied motion. The Court took the
case before the Court of Appeals could hear it, and then affirmed the lower court and remanded it
for examination of the subpoenaed documents.
Issue: Under constitutional law, may the President of the United States, upon his non-indictment
but association with a conspiracy which violates federal law, invoke executive immunity to
interpose a District Court order which directs him to produce certain documents and recordings
of meeting associated with this conspiracy?
Holding: No. 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 law in the fair administration of
justice. The generalized assertion of privilege must yield to the demonstrated, specific need for
evidence in a pending criminal trial.
Court's Rationale/Reasoning: The Court has at the very best before this case interpreted the
explicit immunity conferred by express provisions of the Constitution on members of Congress
by the Speech and Debate Clause of the Constitution, an express power. Thus, if the Court were
to construe and delineate claims under express powers, then the Court should have the authority
to interpret claims with respect to powers alleged to derive from enumerated powers. President
claims (1) valid need for protection of higher authority and those who advise him; and (2)
separation of powers insulates the President from judicial subpoena in an ongoing criminal
investigation.
Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the
Court finds 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 obligated to
provide. As for separation of powers, they were not meant to stand by themselves, as there are
cases in which the powers co-mingled with one another.
Presidential communication is protected, however when the communication is not of a
governmental nature, and there is a public interest in those communications, then the immunity
granted by the Constitution does not exist. This is important to the adversarial system we have in
this country. There must be a full disclosure of all of the facts, within the framework of the rules
of evidence. This is essential to the carrying of justice. Both the 5th amendment (due process)
and the 6th amendment (right to face adversaries is part of this carrying of justice.
In applying the balance test, Presidential communications are indeed protected generally, but in
the instance of a criminal case, the protection cannot remain, for it would “cut deep into the
guarantee of due process law and gravely impair the basic function of the courts.”
Rule: Balancing test weighs 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.
Important Dicta: No court has defined the scope of judicial power specifically related to the
enforcement of a subpoena for confidential Presidential communications for use in a criminal
prosecution.