My Second Constitutional Law Brief


The Case Brief on United States v. Nixon
418 U.S. 683 (1974)

Facts: The Special Prosecutor investigating the Watergate affair filed a motion for a subpoena to produce certain tapes and documents relating to conversations and meetings between President Nixon and others. President Nixon, claiming executive privilege, filed a motion to quash the subpoena. A district judge rejected that motion and issued an order for an in camera [in the privacy of a judge’s chambers] examination of the subpoenaed material. This order was stayed pending appellate review.

in camera: in the privacy of a judge’s chambers
Rule 17 (c): 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.
Quashing or Modifying the Subpoena. On motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive.
Subpoena for Personal or Confidential Information About a Victim. After a complaint, indictment, or information is filed, a subpoena requiring the production of personal or confidential information about a victim may be served on a third party only by court order. Before entering the order and unless there are exceptional circumstances, the court must require giving notice to the victim so that the victim can move to quash or modify the subpoena or otherwise object.
Duces tecum: subpoena
The Overlapping/Underlying Cases:
United States v. Mitchell
Baker v. Carr
Marbury v. Madison
Berger v. United States

Issues: What is/are the constitutional question(s) at hand?

The constitutional questions at hand are as follows: In this case the President challenges a subpoena served on him as a third party requiring the production of materials for use in a criminal prosecution; he does so on the claim that he has a privilege against disclosure of confidential communications. He does not place his claim of privilege on the ground that they are military or diplomatic secrets, however.

In support of this 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 President’s broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminary shown to have some bearing on the pending criminal cases.
The Special Prosecutor was able to fix the time, place, and persons present at these discussions because the White House daily logs and appointment records had been delivered to him.
Although his counsel concedes that the President has delegated certain specific powers to the Special Prosecutor, he has not “waived nor delegated to the Special Prosecutor the President’s duty to claim privilege as to all materials…which fall within the President’s inherent authority to refuse to disclose to any executive officer.” …
***The mere assertion of a claim of an “intrabranch dispute,” without more, has never operated to defeat federal jurisdiction; justiciability does not depend on such a surface inquiry….
No holding of the Court has defined the scope of judicial power specifically relating to the enforcement of a subpoena for confidential Presidential communications for use in a criminal prosecution, but other exercises of power by the Executive Branch and the Legislative Branch have been found invalid as in conflict with the Constitution.
***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.
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. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution…. But this presumptive privilege must be considered in light of our historic commitment to the rule of law. This is nowhere more profoundly manifest than in our view that “the twofold aim [of criminal justice] is that guilt shall not escape or innocence suffer.”

Concurring/Held: What has the Supreme Court decided?
Affirmed…in accordance with Mr. Chief Justice Burger’s delivery of the opinion of the Court.

Reasoning: Why did the Supreme Court rule/hold the way that it did?

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.
Since this matter came before the Court during the pendency of a criminal prosecution, and on representations that time is of the essence, the mandate shall issue forthwith.
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. On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deep into the guarantee of due process of law and gravely impair the basic function of the courts.

Dissent: In the District Court, the President’s counsel argued that the court lacked jurisdiction to issue the subpoena because the matter was an intrabranch dispute between a subordinate and superior officer of the Executive Branch and hence not subject to judicial resolution. The President’s counsel argues that the federal courts should not intrude into areas committed to the other branches of Government.

Significance: Human experience teaches 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. Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of Presidential communications has similar constitutional underpinnings.
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.


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