418 U.S. 683, 710 (1974)
On March 1, 1974, a grand jury returned an indictment charging seven named individuals with offenses including conspiracy to defraud the United States and to obstruct justice.1 Although not designated in the indictment, the grand jury named President Richard M. Nixon as an unindicted co-conspirator.2 On April 18, 1974, upon motion of the Special Prosecutor, a subpoena duces tecum was issued to the President requiring production of tapes, memoranda, papers, transcripts, or other writings relating to precisely identified meetings between the President and others.3
The President publicly released edited transcripts of 43 conversations on April 30, 1974, including 20 subject to the subpoena.4 On May 1, 1974, the President's counsel filed a motion to quash the subpoena under Rule 17(c) along with a claim of privilege.5 At a subsequent hearing, further motions to expunge the grand jury's action naming the President as an unindicted co-conspirator and for protective orders were filed by counsel for the President.6
On May 20, 1974, the District Court denied the motion to quash and ordered production of the materials by May 31, 1974.7 The court rejected claims that the dispute was a nonjusticiable intra-executive conflict and that the Judiciary lacked authority to review executive privilege.8 On May 24, 1974, the President appealed to the Court of Appeals, and the Special Prosecutor petitioned for certiorari before judgment, which was granted.9
The case was set for argument on July 8, 1974.10 The proceeding is a pending federal criminal prosecution in United States v. Mitchell et al. set for trial on September 9, 1974.11
Whether the District Court's May 20, 1974 order denying the motion to quash the subpoena duces tecum was appealable?12
Ordinarily, orders denying motions to quash and requiring production pursuant to subpoenas duces tecum are not final and hence not immediately appealable.13 The usual procedural path is to comply or risk contempt to secure review.14 The finality requirement serves to avoid piecemeal appeals and to promote efficient resolution of litigation.15
However, the requirement to submit to contempt is not without exception.16 In a limited class of cases, denial of immediate review would render impossible any review whatever of an individual's claims.17 When a subpoena is directed to a third party who would be unlikely to risk contempt to secure immediate review, an appeal may be permitted.18 The unique circumstances of this case make the traditional contempt avenue particularly inappropriate.19 Requiring a President to disobey a court order to invoke review would be unseemly and could precipitate a constitutional confrontation between branches.20 Requiring a judge to cite a President for contempt simply to invoke appellate review would be equally problematic and could itself spark protracted litigation.21 The Court concluded that the District Court's order was appealable, the appeal was properly in the Court of Appeals, and the case is now properly before this Court on the writ of certiorari before judgment.22
Yes. The subpoena was directed to the President as a third party.23 The District Court denied the motion to quash on May 20, 1974.24 Requiring the President to risk contempt would be unseemly and could precipitate a constitutional confrontation between branches.25 Requiring a judge to cite the President for contempt would be equally problematic.26
Therefore, the District Court's May 20, 1974 order denying the motion to quash the subpoena duces tecum was appealable.2728
The District Court's May 20, 1974 order denying the motion to quash the subpoena duces tecum was appealable.
Whether the dispute between the Special Prosecutor and the President presented a justiciable case or controversy despite arising within the Executive Branch?29
The mere assertion of an intra-branch dispute does not defeat federal jurisdiction.30 Courts must look beyond labels to determine whether a justiciable case or controversy exists.31 The proceeding for which the evidence is sought is a pending federal criminal prosecution brought in the name of the United States.32
Under statutes implementing Article II, Congress vested in the Attorney General the power to conduct criminal litigation and to appoint subordinate officers.33 Acting pursuant to those statutes the Attorney General delegated authority to a Special Prosecutor with unique tenure and authority, including explicit power to contest claims of executive privilege in seeking evidence relevant to his duties.34 So long as that regulation remains in effect it has the force of law and binds the Executive Branch.35
The Special Prosecutor, acting within the scope of his express authority, sought specified evidence preliminarily determined to be relevant and admissible in a pending criminal prosecution, and the President asserted privilege in opposition.36 These issues are of a type traditionally justiciable, and the fact that both litigants are officers of the Executive Branch does not bar judicial resolution.37 The setting of an independent Special Prosecutor opposing the President assures the concrete adverseness necessary to sharpen presentation of issues for judicial decision.38 In light of the regulation vesting authority in the Special Prosecutor and the usual scope of Article III power to resolve federal criminal prosecutions, the Special Prosecutor has standing and a justiciable controversy is presented.39
Yes. The proceeding for which the evidence is sought is a pending federal criminal prosecution brought in the name of the United States in United States v. Mitchell et al.40 The Attorney General delegated authority to a Special Prosecutor with unique tenure and authority, including explicit power to contest claims of executive privilege.41
The Special Prosecutor sought specified evidence in the pending criminal prosecution, and the President asserted privilege in opposition.42 The setting of an independent Special Prosecutor opposing the President assures the concrete adverseness necessary to sharpen presentation of issues for judicial decision.
Therefore, the dispute presented a justiciable case or controversy despite arising within the Executive Branch.43
The dispute between the Special Prosecutor and the President presented a justiciable case or controversy despite arising within the Executive Branch.44
Whether the Special Prosecutor satisfied the requirements of Fed. R. Crim. P. 17(c) for pretrial production of the subpoenaed materials?45
To require production prior to trial the moving party must show that the documents are evidentiary and relevant.46 The documents must not be otherwise procurable reasonably in advance of trial by due diligence.47 The party cannot properly prepare for trial without such production and inspection in advance and the failure to obtain inspection may unreasonably delay trial.48 The application must be made in good faith and is not a fishing expedition.49
In this case the Special Prosecutor had to clear three hurdles of relevancy, admissibility, and specificity.50 The Court examined the record, much of which is under seal, and was unwilling to conclude the District Court erred in its evaluation under Rule 17(c).51 There was a sufficient likelihood that each tape contained conversations relevant to the offenses charged.52 For many tapes the Special Prosecutor offered sworn testimony or statements of participants as to what was said.53 For the remainder, the identity of participants and the time and place of conversations permitted a rational inference that at least parts related to the offenses charged.54
There was also a sufficient preliminary showing that each tape contains evidence admissible with respect to the offenses charged.55 The principal admissibility objection of hearsay does not automatically bar taped conversations.56 Many tapes contained conversations to which one or more defendants were party.57 Statements by a defendant are admissible against that defendant.58 Declarations by a coconspirator may be admissible against others upon independent evidence of a conspiracy and a showing the declarations were in furtherance of the conspiracy.59 Recorded conversations may additionally be admissible for impeachment of witnesses who testify.60
Given the potential evidentiary uses of the material and the time required for analysis and transcription, the District Court did not err in authorizing the subpoena duces tecum.61 Enforcement of a pretrial subpoena duces tecum lies in the sound discretion of the trial court because necessity often turns on factual determinations.62 Ordinarily an appellate court will not disturb a trial court's discretionary finding absent arbitrariness or lack of record support.63 Because this subpoena is directed to the President, appellate review should be particularly meticulous.64 Upon review of the materials submitted to the District Court the Court was persuaded the denial of the motion to quash was consistent with Rule 17(c) and that the Special Prosecutor made a sufficient showing to justify pretrial production.65
Yes. The Special Prosecutor had to clear three hurdles of relevancy, admissibility, and specificity under Rule 17(c).66 There was a sufficient likelihood that each tape contained conversations relevant to the offenses charged. For many tapes the Special Prosecutor offered sworn testimony or statements of participants as to what was said.
For the remainder, the identity of participants and the time and place of conversations permitted a rational inference that at least parts related to the offenses charged. There was also a sufficient preliminary showing that each tape contains evidence admissible with respect to the offenses charged. Statements by a defendant are admissible against that defendant. Declarations by a coconspirator may be admissible against others upon independent evidence of a conspiracy and a showing the declarations were in furtherance of the conspiracy.
Recorded conversations may additionally be admissible for impeachment of witnesses who testify. Given the potential evidentiary uses of the material and the time required for analysis and transcription, the District Court did not err in authorizing the subpoena duces tecum. Upon review the denial of the motion to quash was consistent with Rule 17(c) and the Special Prosecutor made a sufficient showing to justify pretrial production.67
The Special Prosecutor satisfied the requirements of Fed. R. Crim. P. 17(c) for pretrial production of the subpoenaed materials.68
Whether the President may assert an absolute executive privilege to withhold confidential conversations from judicial process in a pending criminal prosecution?69
It is indisputable that each branch must initially interpret the Constitution in performing assigned duties.70 Interpretations by one branch merit great respect from the others.71 Marbury v. Madison established that it is emphatically the province and duty of the Judicial Branch to say what the law is.72 This Court has authority to construe and delineate claims arising under express powers.73
Deciding whether a matter is committed by the Constitution to another branch or whether a branch's action exceeds authority is itself an exercise of constitutional interpretation entrusted to the courts.74 The judicial power vested by Article III cannot be shared with the Executive Branch.75 The President's counsel urged two grounds for an absolute privilege.76 The first ground is the need for protection of communications between high Government officials and advisers to ensure candid advice.77 The second ground is the doctrine of separation of powers which insulates the President from a judicial subpoena in ongoing criminal prosecutions.78
The Court recognizes the importance of confidentiality to candid advice.79 The Court accepts that presidential communications are presumptively privileged.80 Neither separation of powers nor the generalized need for confidentiality, without more, can sustain an absolute, unqualified privilege of immunity from judicial process under all circumstances.81 When the claim of privilege is based only on a generalized interest in confidentiality and does not implicate military, diplomatic, or other sensitive national security secrets, production for in camera inspection under protective procedures does not significantly diminish confidentiality.82 An absolute privilege would conflict with the judicial function.83
The judicial role in criminal prosecutions requires access to relevant evidence to vindicate Sixth and Fifth Amendment guarantees.84 Privileges are narrowly construed because they are in derogation of the search for truth.85 Where the ground for asserting privilege as to materials subpoenaed for use in a criminal trial is only the generalized interest in confidentiality, it cannot prevail over the demonstrated, specific need for evidence in a pending criminal trial.86 The generalized assertion of presidential privilege must yield to the fundamental demands of due process in the fair administration of criminal justice.87
Upon receipt of a presidential claim of privilege the District Court must treat the subpoenaed material as presumptively privileged and require the Special Prosecutor to demonstrate that the presidential material is essential to the justice of the pending criminal case.88 The District Court did so here.89 The District Court treated the material as presumptively privileged.90 The District Court found the Special Prosecutor had made a sufficient showing to rebut the presumption.91 The District Court ordered in camera examination of the subpoenaed material.92 On the basis of its examination of the record the Court could not conclude the District Court erred in ordering inspection.93 The Court affirms the District Court's order that the subpoenaed materials be transmitted to that court.94
No. The President advanced a separation-of-powers ground that judicial review of a President's claim of privilege is precluded.95 As a fallback the President argued that even if review is permitted the privilege should prevail over the subpoena as a constitutional matter.96 The judicial power vested by Article III cannot be shared with the Executive Branch.
Although presidential communications are presumptively privileged, neither separation of powers nor the generalized need for confidentiality can sustain an absolute, unqualified privilege of immunity from judicial process under all circumstances.97 The claim of privilege is based only on a generalized interest in confidentiality and does not implicate military, diplomatic, or other sensitive national security secrets.98
The judicial role in criminal prosecutions requires access to relevant evidence to vindicate Sixth and Fifth Amendment guarantees. Privileges are narrowly construed because they are in derogation of the search for truth. The District Court treated the material as presumptively privileged. The District Court found the Special Prosecutor had made a sufficient showing to rebut the presumption. The District Court ordered in camera examination.99
Therefore, the President may not assert an absolute executive privilege to withhold confidential conversations from judicial process in a pending criminal prosecution.100101
The President may not assert an absolute executive privilege to withhold confidential conversations from judicial process in a pending criminal prosecution.