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United States v. Nixon, 418 U.S. 683 (1974) p.404


separation of powers


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.


Whether the president should be extended an absolute executive privilege.


It is the job of Congress not the president to make laws.


The tapes must be turned over. A subpoena can be enforced. There is no absolute executive privilege; just a qualified privilege.


This created a qualified executive privilege. Did not want president to claim an absolute executive privilege in an ongoing criminal investigation. When the ground for asserting privilege as to subpoenad materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundemental demands of due process of law in the fair administration of criminal justice.


The ruling was unanimous. Renquist did not participate.

Created on: Wednesday, September 29, 1999 at 16:15:49 (PDT)

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