U.S. Supreme Court
United States v. Nixon
The case that led to the
first resignation of a President
in the history of the U.S.
Decided Juli 24, 1974
Tiziano Zgaga – 28.10.2013
Historical context of the case:
The Watergate Scandal
Watergate Complex in Washington, D.C.
• June 1972, before the
federal elections
• Candidates: Nixon
(Republicans) v.
McGovern(Democrats)
• Burglars broke into National
Committee of the Democrats
in the Watergate complex
• Nixon’s administration
supposed to be involved
•Scandal led to the resignation
of Nixon
The U.S. Juridicial System
involved in this case
Type of court Name
supreme court U.S. Supreme Court
appellate court U.S. Court of Appeals for the
District of Columbia Circuit
local trial court U.S. District Court
U.S. Supreme Court
• Chief Justice
• 8 Associate Judges
• Appointed by the U.S. President, with the advice and
consent of the Senate
U.S. Constitution, Art. III, section 1
“The judicial power of the United States, shall be vested
in one Supreme Court, and in such inferior courts as
the Congress may from time to time ordain and
establish […]”
U.S. Constitution, Art. III, section 2
• “The judicial Power shall extend to all Cases, in Law and Equity,
arising under this Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under their Authority;-to all
Cases affecting Ambassadors, other public ministers and Consuls;-to
all Cases of admiralty and maritime Jurisdiction;-to Controversies to
which the United States shall be a Party;-to Controversies between
two or more States;-between a State and Citizens of another State;between Citizens of different States;-between Citizens of the same
State claiming Lands under Grants of different States, and between
a State, or the Citizens thereof, and foreign States, Citizens or
Subjects.
• In all Cases affecting Ambassadors, other public Ministers and
Consuls, and those in which a State shall be Party, the supreme
Court shall have original Jurisdiction. In all the other Cases before
mentioned, the supreme Court shall have appellate Jurisdiction,
both as to Law and Fact, with such Exceptions, and under such
Regulations as the Congress shall make. […]”
Attorney General
• the highest judiciary federal official
• at the head of the United States
Department of Justice
• nominated by the President after
confirmation by the Senate
• represents the US in legal matters
and gives advice and opinions to the
President
Special Prosecutor
• selected by the Attorney General
• investigates and possibly prosecutes
a federal government official for
wrongdoing in office
• but is he really independent from the
Executive?
U.S. President
• veto power over legislation (can be overriden by
Congress)
• commander-in-chief of the armed forces (but
Congress declares war)
• power to make treaties/recognize foreign nations
(with consent of the Senate)
• appoints ambassadors, officers of the U.S., and
judges (with Senate confirmation)
• issues pardons
• informs Congress on the state of the Union and
recommends legislation
• calls Congress to special sessions
What happened?
• Special Prosecutor orders Nixon to produce before
trail some materials
• perhaps evidence that Nixon is involved
• Nixon wants to quash the order before the District
Court
• the District Court refuses and wants the release of
the materials
• Nixon appeals to the Court of Appeals
• Special Prosecutor and Nixon ask the Supreme Court
to review the order which is in the Court of Appeals
• Supreme Court hears arguments on Juli 8, 1974
Subpoena duces tecum
• Special Prosecutor wants Nixon to
appear before the District Court and
produce documents or other tangible
evidence for use at hearing or trial
(subpoena for the production of
evidence)
• Regulated by Federal Rules of Criminal
Procedure
Fed. Rule Crim. Proc. 17(c)
Rule 17. Subpoena
c) Producing documents and objects
(1) In General. A subpoena may order the witness to
produce any books, papers, documents, data, or other
objects the subpoena designates. The court may direct
the witness to produce the designated items in court
before trial or before they are to be offered in
evidence. When the items arrive, the court may permit
the parties and their attorneys to inspect all or part of
them.
Certiorari
A writ or order by which a higher court reviews the
decision of a lower court (from Legal Latin, “to
wish to be informed”).
In the U.S., also the situation in which a higher
court asks a lower court to examine the acts of a
process, in order to review the decision of the
lower court.
• Special Prosecutor and President file a writ of
certiorari before judgement to the U.S. Supreme
Court.
Jurisdiction
• Nixon files an appeal to the Court of
Appeals against the order of the
subpoena
But is this order appealable?
28 United States Code
(U.S.C.) § 1291
• “The courts of appeals ... shall have
jurisdiction of appeals from all final
decisions of the district courts of the
United States ...”
28 U.S.C. § 1291
• “Cases in which the courts of appeals
may be reviewed by the Supreme Court
by the following methods:
1) By writ of certiorari granted upon the
petition of any party to any civil or
criminal case, before or after rendition
of judgement or decree ...”
The Supreme Court states:
inappropriate to require that the District Court makes
a contempt citation of the President in order to make
an appellate review possible
↓
order for the subpoena should be considered as final
↓
order is appealable
Nixon’s claims - 1
Special Prosecutor filed motion for
subpoena to the President
↓
dispute Special Prosecutor vs. President is
intra-executive
↓
no jurisdiction of District Court
Supreme Court: versus Nixon 1 - A
mere assertion of an “intra-branch” dispute not
sufficient to defeat federal jurisdiction by the
District Court
United States v. Interstate Commerce Commission
(1949)
“Courts must look behind names that symbolize
the parties to determine whether a justiciable case
or controversy is presented.”
Supreme Court: versus Nixon 1 - B
President (and Senate) has given to Attorney
General the power to conduct criminal litigations of
the United States Government
28 U.S.C. § 516. Conduct of litigation reserved to
Department of Justice.
“[…] the conduct of litigation in which the United
States, an agency, or officer thereof is a party, or is
interested, and securing evidence therefor, is
reserved to officers of the Department of Justice,
under the direction of the Attorney General.”
Attorney General has power to appoint subordinate officers to
assist him in his duties
↓
Attorney General has delegated the authority to represent the
United States to a Special Prosecutor with his own authority
↓
Special Prosecutor was given (38 Fed. Reg. 30739):
• full authority to contest assertation of executive privilege
• greatest degree of independence from Attorney General and
from the President
Attorney General can amend/revoke regulation defining the
authority of the Special Prosecutor
↓
has not done so
↓
Executive is bound by this regulation
Special Prosecutor considers Nixon’s materials relevant and wants to have
them
Matter is within the traditional scope of Art. III., Section 2, of the U.S.
Constitution
“The judicial Power shall extend to all Cases, in Law and Equity, arising under
this Constitution, the Laws of the United States, and Treaties made, or which
shall be made, under their Authority;-to all Cases affecting Ambassadors,
other public ministers and Consuls;-to all Cases of admiralty and maritime
Jurisdiction;-to Controversies to which the United States shall be a Party;-to
Controversies between two or more States;-between a State and Citizens of
another State;-between Citizens of different States;-between Citizens of the
same State claiming Lands under Grants of different States, and between a
State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and
those in which a State shall be Party, the supreme Court shall have original
Jurisdiction. In all the other Cases before mentioned, the supreme Court
shall have appellate Jurisdiction, both as to Law and Fact, with such
Exceptions, and under such Regulations as the Congress shall make. […]”
Conclusion Supreme Court
versus Nixon 1
Special Prosecutor and President both
officer of the Executive Branch
↓
no barrier to justiciability
Nixon’s claims - 2
Special Prosecutor does not satisfy
Fed. Rule Crim. Proc. 17(c) for the
subpoena
↓
subpoena must be quashed
Characteristics of subpoena
duces tecum in criminal cases - I
Bowman Dairy Co. v. United States (1951)
• not intended to provide a means of
discovery for criminal cases
• expedites the trail by providing a time and
place before trail for the inspection of
subpoenaed materials
Characteristics of subpoena
duces tecum in criminal cases - II
United States v. Iozia (1952)
• documents are evidentiary and relevant
• not otherwise procurable reasonable in advance of trail
by exercise of due diligence
• party cannot properly prepare for trail without such
production and inspection in advance of trail; failure to
obtain such inspection may tend unreasonably to delay
the trail
• application is made in good faith
Special Prosecutor must
consider if the materials
of the subpoena are:
1. relevant ✔
2. admissible ✔
3. specific ✔
Conclusion Supreme Court
versus Nixon 2
• Special Prosecutor has made a sufficient
showing to justify the subpoena
• District Court correctly denied
President’s motion to quash the
subpoena
• District Court did not err in authorizing
the issuance of the subpoena
Nixon’s claims - 3
materials of the subpoena are confidential
conversations between President and close
advisors
↓
President claims executive privilege for all his
communications
↓
no judicial review in case of executive privilege
(independence of the Executive Branch)
What is Executive Privilege?
Generally
• power claimed by the President and other members
of the executive branch to resist certain subpoenas
and other interventions by the legislative and the
judicial branches of government
Specifically (U.S.)
• members of the executive branch of government –
and especially the President – cannot legally be
forced to disclose their confidential communications
when such disclosure would adversely affect the
operations or procedures of the executive branch
Executive Privilege
• Constitution does not mention it
explicitly
• Historically considered to derive
from the constitutional principle of
separation of the three powers
(Legislative, Executive, Judiciary)
Supreme Court about
Executive Privilege - I
• The Court must «say what law is» (Marbury v.
Madison) also with respect to the claim of
privilege
“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
decisionmaking process.” (U.S. Supreme Court)
Supreme Court about
Executive Privilege - II
• Executive Privilege can be invoked only when
there is a need to protect military, diplomatic
or sensitive national security secrets
• Nixon did not base claim of Executive
Privilege on those categories
• President does not have an absolute,
unqualified privilege of immunity from
judicial process
• Judiciary, not the President, is final arbiter of
a claim of executive privilege
• Separation of powers does not operate with
absolute independence
Youngstown Sheet & Tube Co. v. Sawyer
“While the Constitution diffuses power the
better to secure liberty, it also contemplate that
practice will integrate the dispersed powers into
a workable government. It enjoins upon its
branches separateness but interdependence,
autonomy but reciprocity."
Conclusion Supreme Court
versus Nixon 3
general interest in confidentiality of
communications is not sufficient
↓
general and constitutional need for
evidence in a pending criminal trial must
prevail over generalized assertion of
privilege by the President
production of materials for in camera
inspection of the District Court will not
damage the interest in confidentiality
of Presidential communications
↓
no Executive Privilege in this case
• President properly invoked a claim of privilege
on the return of the subpoena
• he thought the materials would be injurious to
the public interest
• District Court has the duty to treat the
subpoenaed material as presumptively
privileged and to require the Special
Prosecutor to demonstrate that the
Presidential material was “essential to the
justice of the pending criminal case” (United
States v. Burr)
• Special Prosecutor has done so
The subpoenaed materials
• statements that meet the test of
admissibility and relevance must be
isolated
• all other material must be excised
• material not found probably admissible in
evidence and relevant to the issues of the
trial must neither be released nor
published
• Chief Justice Warren E. Burger delivered
the opinion of the U.S. Supreme Court
• All Members joined in except Mr. Justice
Rehnquist, who took no part in the
consideration or decision of this case,
because he had been an advisor of Nixon
The work of the
Supreme Court
1. U.S. courts usually make reference only
to U.S. law/precedents
2. judges deliver their opinions separately,
and in case of disagreement decide by
majority
3. literature/doctrine only sporadically
quoted, not in a favourable light
This case was decided on Juli 24, 1974.
Nixon resigned 15 days later.
It was the first and only time in the history of
the U.S. that a President resigned.
Nixon announces the release of edited transcripts of the Watergate tapes,
April 29, 1974
References
• Rosenfeld, M. & Sajó A. (2012), The Oxford Handbook of
Comparative Constitutional Law. Oxford: Oxford
University Press
• U.S. Constitution, retrieved October 22, 2013, from
http://constituteproject.org
• Attorney General, retrieved October 25, 2013, from
http://www.justice.gov/ag/about-oag.html
• The President and the Cabinet, retrieved October 25,
2013, from
http://usgovinfo.about.com/od/thepresidentandcabinet/
a/execpriv.htm
• Bowman Dairy Co. v. United States - 341 U.S. 214 (1951),
retrieved October 25, 2013, from
http://supreme.justia.com/cases/federal/us/341/214/cas
e.html
• United States v. ICC, 337 U.S. 426 (1949), retrieved
October 25, 2013, from
http://supreme.justitia.com/cases/federal/us/337/42
6/case.html
• United States v. Iozia, 13 F.R.D. 335, 338 (SDNY 1952)
• Marbury v. Madison, retrieved October 25, 2013,
from
http://supreme.justitia.com/cases/federal/us/5/137/
case.html
• Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.,
retrieved October 25, 2013, from
http://supreme.justitia.com/cases/federal/us/343/57
9/case.html
• United States v. Burr, 25 F.Cas. 187, 190, 191-192 (No.
14,694) (CC Va. 1807)
• Cornell University Law School, retrieved October 25,
2013, from
http://www.law.cornell.edu/rules/frcrmp/rule_17
Thank you
for your attention