Wednesday, July 24, 1974

United States v. Nixon, 418 U.S. 683 (1974)

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.

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