t Burger1974. Several presidents (including George Washington) have invoked what they described as the doctrine of “executive privilege” to justify their refusal to disclose information which they claimed to be confidential. The only SCt case to give any definitive scope to the doctrine of executive privilege was U.S. v. Nixon, the famous “WatergateTapes” case.
t Facts. In March 1974, a federal grand jury indicted seven Nixon aides on charges of conspiracy to obstruct justice and other Watergate-related offenses. The president was named as an unindicted co-conspirator. The Watergate Special Prosecutor then persuaded the federal trial court to issue a subpoena duces tecum to the president requiring him to produce various tapes and documents relating to certain meetings involving the president; these documents and tapes were to be used during the trial of the indictments. The president released transcripts of some of the tapes, but refused to produce the tapes themselves, and moved to quash the subpoena. The trial court rejected the president’s claim of privilege, and the matter was heard by the Supreme Court on an expedited basis.
t Holding. In unanimous decision, although SCt upheld the general doctrine of executive privilege, SCt held that in this case, the privilege did not apply, and ordered the president to comply with the subpoena.
n Court, not President decides. First, SCt rejected president’s claim that “the separation of powersdoctrine precludes judicial reviewof a President’s claim of privilege.” The SCt quoted Justice Marshall’s statement in Marbury v. Madisonthat it is the duty of the judicial branch to “say what the law is.” Thus, the Court, and not the President, must evaluate claims of presidential privilege.
n Privilege Exists. SCt then held that there was indeed a privilege for “confidentiality of Presidential communications in the exercise of Article II powers.” The SCt noted that confidentiality was required by the fact 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 decision-making process.” Therefore, the SCt concluded, the privilege of confidentiality “can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties.” “The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powersunder USC.”
n Privilege only qualified. However, SCt rejected President’s claim that executive privilege was absolute. At least where the claim of privilege was (as in the present case) a general one, and not related to a particular need to protect “military, diplomatic, or sensitive national security secrets,” the Court held that the privilege was merely a qualified one. As such, it was outweighed by the need to develop all relevant facts in a criminal trial. Rationale:
(1) Article III Argument. SCt observed that both President’s claim of privilege, and the criminal justice system’s need for access to all relevant evidence, were of constitutional dimension. However, the latter outweighed the former, in part because the SCt did not believe that the possibility of infrequent subpoenas like the one here would often have an adverse impact on the candor of discussions to which Presidents are parties.
(2) Rights of Defendants. Moreover, D in criminal trial has right to subpoena witnesses; he cannot be deprived of liberty without due process of law, and to guarantee these Ds due process, court must be able to consider relevant evidence.
n Duty of Trial Court. President was therefore ordered to deliver the subpoenaed tapes and documents to the federal district court. However, the district court was ordered to perform a close in camera (non-public) examination of all of the materials. Statements that were both admissible and relevant to the criminal prosecution were to be isolated, and all other statements were to be disregarded and kept secret.