US vs.

Nixon
From Atty. Gorospe's book:
The Nixon and post-Watergate cases established the broad contours of the presidential
communications privilege. In US vs. Nixon, the US court recognized a great public interest in
preserving "the confidentiality of conversations that take placein the President's
performance of his official duties." It thus considered presidential communications as
"presumptively privileged." Apparently, the presumption is founded on the "President's
genrralized interest in confidentiality." The privilege is said to be necessary to guarantee the
candor of presidential advisors and to provide "the President and those who assist him... With
freedom 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."

(The term Watergate has come to encompass an array of clandestine and often illegal activities
undertaken by members of the Nixon administration. Those activities included "dirty tricks," or
bugging the offices of political opponents and the harassment of activist groups and political
figures. The activities were brought to light after five men were caught breaking into Democratic
party headquarters at the Watergate complex in Washington, D.C. on June 17, 1972. The
Washington Post picked up on the story; reporters Carl Bernstein and Bob Woodward relied on an
informant known as "Deep Throat"later revealed to be Mark Felt, associate director at the FBI
to link the men to the Nixon administration. Nixon downplayed the scandal as mere politics, calling
news articles biased and misleading. A series of revelations made it clear that the Committee to
Re-elect President Nixon, and later the White House, was involved in attempts to sabotage the
Democrats. Senior aides such as White House Counsel John Dean faced prosecution; in total 48
officials were convicted of wrongdoing.)

Facts:
See Watergate scandal. Agents of CREEP broke into Democratic National Headquarters and were
caught in the act. It was slowly uncovered that President Nixon authorized the break-in, as well as
several other incidents. Former White House counsel John Dean named Nixon himself in an
ensuing investigation into the cover-up, and impeachment proceedings were brought against the
President.
As a result of a grand jury indictment against 7 defendants, most notably former Attorney General
John Mitchell, the President was named as an unindicted co-conspirator and was ordered by a
District Court upon subpoena, to produce certain tapes, memoranda, and other writings related to
specific meetings associated with the scandal.
President released transcripts to some of the tapes and then moved to quash the release of them
all together on grounds of executive privilege. District Court denied motion. The Court took the
case before the Court of Appeals could hear it, and then affirmed the lower court and remanded it
for examination of the subpoenaed documents.
Issue:
Under constitutional law, may the President of the United States, upon his non-indictment but
association with a conspiracy which violates federal law, invoke executive immunity to interpose a
District Court order which directs him to produce certain documents and recordings of meeting
associated with this conspiracy?
Held:
No. 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 law in the fair administration of justice. The generalized

assertion of privilege must yield to the demonstrated, specific need for evidence in a pending
criminal trial.
Court's Rationale/Reasoning: The Court has at the very best before this case interpreted the
explicit immunity conferred by express provisions of the Constitution on members of Congress by
the Speech and Debate Clause of the Constitution, an express power. Thus, if the Court were to
construe and delineate claims under express powers, then the Court should have the authority to
interpret claims with respect to powers alleged to derive from enumerated powers. President
claims (1) valid need for protection of higher authority and those who advise him; and (2)
separation of powers insulates the President from judicial subpoena in an ongoing criminal
investigation.
Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the
Court finds it difficult to accept the argument that even the very important interest in confidentiality
of Presidential communications is significantly diminished by production of such material for in
camera inspection with all the protection that a district court will be obligated to provide. As for
separation of powers, they were not meant to stand by themselves, as there are cases in which the
powers co-mingled with one another.
Presidential communication is protected, however when the communication is not of a
governmental nature, and there is a public interest in those communications, then the immunity
granted by the Constitution does not exist. This is important to the adversarial system we have in
this country. There must be a full disclosure of all of the facts, within the framework of the rules of
evidence. This is essential to the carrying of justice. Both the 5th amendment (due process) and
the 6th amendment (right to face adversaries is part of this carrying of justice.
In applying the balance test, Presidential communications are indeed protected generally, but in
the instance of a criminal case, the protection cannot remain, for it would cut deep into the
guarantee of due process law and gravely impair the basic function of the courts.
Rule: Balancing test weighs 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.
Important Dicta: No court has defined the scope of judicial power specifically related to the
enforcement of a subpoena for confidential Presidential communications for use in a criminal
prosecution.