United States v. Nixon: “Executive Privilege” (07/24/1974)

United States v. Nixon

Is the President’s right to safeguard certain information, using his “executive privilege” confidentiality power, entirely immune from judicial review?

Argued: 07/08/1974

Decision Date: 07/24/1974

Decision Record: 8-0; no

Justices in Favor: None

Justices Dissenting: Warren Burger, William Douglas, William Brennan, Potter Stewart, Byron White, Thurgood Marshall, Harry Blackmun, Lewis Powell

Justice William Rehnquist did not participate.

Effect of the Decision

This case holds that the president does not have immunity to the power of judicial review using his/her “executive privilege.”

In Favor

In representation of the United States, attorney Leon Jaworski claimed, “On March 1 last, United States District Court grand jury, set it here, returned an indictment against seven defendants charging various offenses including among them a conspiracy to defraud the United States and also to obstruct justice.

John Mitchell, one of the defendants, was a former Attorney General of the United States and also Chairman of the Committee to Reelect the President.

Another, H.R. Haldeman, was the President’s Chief of Staff.

Another, John Ehrlichman, was Assistant to the President for Economic — for Domestic Affairs.

The others were either on the President’s staff or held responsible positions on the Reelection Committee.

In the course of its deliberations, the grand jury voted unanimously with 19 members concurring that the course of events in the formation and continuation of the conspiracy was such that President Nixon, among a number of others, should be identified as an unindicted co-conspirator in the Bill, particular as to be filed in connection with the pretrial proceedings.

Now, although this particular decision and determination on the part of the grand jury occurred in February, it was a well-kept secret for two-and-a-half months.

The grand jury, of course, knew it.

The members of the prosecution staff knew it.

It was done so to avoid affecting the proceedings in a House Judiciary Committee.

It was so kept during these two-and-a-half months until it became necessary to reveal it as a result of the President’s motion to quash a subpoena, as I will indicate subsequently in my argument.

Now, to obtain addition evidence which the Special Prosecutor has good reason to believe is in the possession of and under the control of the President and which it is believed by the Special Prosecutor as quite important to the development of the government’s proof at the trial in United States versus Mitchell.

A Special Prosecutor, on behalf of the United States, moved for a subpoena duces tecum.

And, it is the subpoena here in question.

The District Court ordered the subpoena to issue returnable on May 2 and the subpoena, of course, called for the production of tape recordings in advance of September 9, 1972, which is a trial date.

And, this was done to allow time for litigation in the event litigation was to ensue over the production of the tapes and also for transcription and authentication of any tape recordings that were produced in response to the subpoena.

On April 30, the President released to the public and submitted to the House Judiciary Committee 1,216 pages of edited transcripts of 43 conversations dealing with Watergate.

Portions of 20 of the subpoenaed conversations were included among the 43.

Then, on May 1, the President advised counsel to file a special appearance, a formal claim of privilege, and a motion to quash a subpoena.

Now for the United States to conduct a full and appropriate hearing on a motion to quash the subpoena, it became necessary to reveal the grand jury’s finding regarding the President.

And, this was first done by the Special Prosecutor calling on the Chief of Staff, General Alexander Haig, and the President’s counsel, Mr. St. Claire, and advising them of what had occurred two-and-a-half months prior.

And then, on the following morning, advising Judge Rico of what had occurred in camera and pointing out at the necessity of this being used in connection with the arguments on a motion to quash because of their relevance and the necessity of these matters being made a part of the proceeding.

Now, the Special Prosecutor joined counsel for the President in urging that matter be heard in camera, which, was done.

Three of the defendants had joined the Special Prosecutor in moving for the subpoena.

All of the defendants, at the time of argument in camera to Judge Sirica, opposed the motion to quash.”

Then, also advocating for the United States, attorney Philip A. Lacovara argued, “If I may, I would like to advert first to procedural questions that Mr. Blackmun and Mr. Justice Stewart have raised about whether the mandamus case is properly here.

Mr. Justice, we did, in our certiorari petition, refer to the fact that we were trying to bring before the court for review before judgment in the Court of Appeals the order of the District Court which we said the President had tried to obtain review of in two ways in two cases in the Court of Appeals, and we gave the docket numbers of those two cases.

And, that certiorari petition was filed on May 24 and Judge Sirica, who was the respondent as Justice Stewart properly notes in the mandamus case in the Court of Appeals, was served with a copy of the certiorari petition as he had been served with the mandamus petition as, indeed, had all the respondents who were otherwise before the court, the defendants in United States against Mitchell.

On May 28 in accordance with a motion that was filed in a Court of Appeals, a copy of which I believe is in the files of this court, the Court of Appeals transmitted to this court the records in both of those cases, the appeal, and the mandamus cases.

Now, Mr. Justice Stewart, with respect to Judge Sirica’s appearance here, he is a party before this court and I believe there is a letter on file with the clerk of this court from Judge Sirica in which he states that he will not appear separately the United States through the Special Prosecutors appearing on behalf of Judge Sirica as, indeed, we would have in the Court of Appeals to uphold his decision enforcing our subpoena.

So the case, procedurally, is properly before the court both with respect to the appeal and the mandamus proceedings.”


Then in opposition, representing President Nixon, attorney James St. Clair said, “My learning brothers approached this case I think in the traditional point of view, namely, this is an attempt by a Special Prosecutor to obtain what he thinks is desirable evidence in a criminal prosecution that he has a responsibility for.

Not once, however, did I heard him mention what I think is really involved, at least in a significant part and that is the co-pendency of the impeachment proceedings before the House of Representatives.

And, the realistic fusion that has taken place with respect to these two proceedings and the promise of continued fusion, as I understand my brother’s position.”


The decision, in this case, was unanimous in the side of the United States. Written by Justice Warren Burger, the opinion slip said, “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 [p712] administration of criminal justice. [n19] The interest in preserving confidentiality 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 possibility that such conversations will be called for in the context of a criminal prosecution. [n20]

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 court. A President’s acknowledged need for confidentiality [p713] 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 criminal case in the administration of justice. Without access to specific facts, a criminal prosecution may be totally frustrated. The President’s broad interest in confidentiality of communications will not be vitiated by disclosure 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 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.”

My Opinion:

In this case, I agree with the majority decision. Nixon committed a crime, and like any criminal, he deserved to be punished. His “executive privilege” does not grant him immunity from the power of judicial review. “Executive privilege” is a power held by the president of the United States and gives him/her the “privilege” to withhold certain information to the public. However, the crime that Nixon committed did not involve any knowledge he already had; on the contrary, actually. He was attempting to gain information illegally. Therefore, his “executive privilege” was not applicable.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

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