Executive privilege: following indictment
alleging violation of federal statutes by certain staff members of the White House
and political supporters of the President, the Special Prosecutor filed a
motion under Fed. Rule Crim. Proc. 17 (c) for a subpoena duces tecum for the
production before trial of certain tapes and documents relating to precisely
identified conversations and meetings between the President and others. The
President, claiming executive privilege, filed a motion to quash the subpoena.
The District Court, after treating the subpoenaed material as presumptively
privileged, concluded that the Special Prosecutor had made a sufficient showing
to rebut the presumption and that the requirements of Rule 17 (c) had been
satisfied. The court thereafter issued an order for an in camera examination of
the subpoenaed material, having rejected the President's contentions (a) that
the dispute between him and the Special Prosecutor was nonjusticiable as an
"intra-executive" conflict and (b) that the judiciary lacked
authority to review the President's assertion of executive privilege. The court
stayed its order pending appellate review, which the President then sought in
the Court of Appeals. The Special Prosecutor then filed in this Court a
petition for a writ of certiorari before judgment (No. 73-1766) and the
President filed a cross-petition for such a writ challenging the grand-jury
action (No. 73-1834). The Court granted both petitions; neither the doctrine of
separation of powers nor the generalized need for confidentiality of high-level
communications, without more, can sustain an absolute, unqualified Presidential
privilege of immunity from judicial process under all circumstances. See, e.
g., Marbury v. Madison, 1 Cranch 137, 177; Baker v. Carr, 369 U.S. 186, 211. Absent
a claim of need to protect military, diplomatic, or sensitive national security
secrets, the confidentiality of Presidential communications is not
significantly diminished by producing material for a criminal trial under the
protected conditions of in camera inspection, and any absolute executive
privilege under Art. II of the Constitution would plainly conflict with the
function of the courts under the Constitution. Although the courts will afford
the utmost deference to Presidential acts in the performance of an Art. II
function, United States v. Burr, 25 F. Cas. 187, 190, 191-192 (No. 14,694),
when a claim of Presidential privilege as to materials subpoenaed for use in a
criminal trial is based, as it is here, not on the ground that military or
diplomatic secrets are implicated, but merely on the ground of a generalized
interest in confidentiality, the President's generalized assertion of privilege
must yield to the demonstrated, specific need for evidence in a pending
criminal trial and the fundamental demands of due process of law in the fair
administration of criminal justice. On the basis of this Court's examination of
the record, it cannot be concluded that the District Court erred in ordering in
camera examination of the subpoenaed material, which shall now forthwith be
transmitted to the District Court (BURGER, C. J., delivered the opinion of the
Court, in which all Members joined except REHNQUIST, J., who took no part in
the consideration or decision of the case) (U.S.S.Ct., United States v. Nixon,
418 U.S. 683 (1974)).
Privilège du
Président des Etats-Unis d'Amérique à conserver la confidentialité de ses
documents et de ses communications : ce privilège est posé comme principe de
base, avec des exceptions en cas de procédures pénales où la consultation des
informations est nécessaire au Tribunal pénal. Dans ce cas, la divulgation des
informations sera soumise au huis clos. Toutefois, les informations ne seront
pas divulguées si la nécessité de protéger des secrets militaires,
diplomatiques, ou relevant de la sécurité nationale est alléguée.
