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Landmark Cases of the U.S. Supreme Court

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Key Excerpts from the Opinion

The case was decided 8 to 0. Justice Rehnquist did not participate. Chief Justice Burger delivered the opinion of the Court.

[W]e turn to the claim that the subpoena should be quashed because it demands "confidential conversations between and President and his close advisors that it would be inconsistent with the public interest to produce" . . . The first contention is a broad claim that the separation of powers doctrine precludes judicial review of a President's claim of privilege. The second contention is that if he does not prevail on the claim of absolute privilege, the court should hold as a matter of constitutional law that the privilege prevails over the subpoena. . . .

In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others. The President's counsel as we have noted, reads the Constitution as providing an absolute privilege of confidentiality for all Presidential communications. Many decisions of this Court, however, have unequivocally reaffirmed the holding of Marbury v. Madison . . . that "it is emphatically the province and duty of the judicial department to say what the law is".

Since this Court has consistently exercised the power to construe and delineate claims arising under express powers, it must follow that the Court has the authority to interpret claims with respect to powers alleged to derive from enumerated powers.

In support of his claim of absolute privilege, the President's counsel urges two grounds, one of which is common to all governments and one of which is peculiar to our system of separation of powers. The first ground is the valid need for protection of communications between high government officials and those who advise and assist them in the performance of their manifold duties; the importance of this confidentiality is too plain to require further discussion.

The second ground asserted by the President's counsel in support of the claim of absolute privilege rests on the doctrine of separation of powers. . . . Here it is argued that the independence of the Executive Branch within its own sphere . . . insulates a president from a judicial subpoena in an ongoing criminal prosecution, and thereby protects confidential presidential communications.

However, neither the doctrine of separation of powers, nor the need for confidentiality of high level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic or sensitive national security secrets, we find 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 obliged to provide.

The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Art. III.

Since we conclude that the legitimate needs of the judicial process may outweigh Presidential privilege, it is necessary to resolve those competing interests in a manner that preserves the essential functions of each branch.

A President and those who assist him must be free 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.

But this presumptive privilege must be considered in light of our historic commitment to the rule of law. . . . We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence.

In this case we must weigh 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.

We conclude that 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 of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.

Questions to Consider:
  1. What does the Supreme Court of the United States say about President Nixon's contention that the courts have no jurisdiction in this case? What was the power of the courts established by the case of Marbury v. Madisoncited in this case?
  2. Does the Court question the need for confidential communications between the president and his advisors?
  3. The Court claims that the president's confidential communications must be balanced against, or considered in light of, other values. With what values, in this case, must the president's confidentiality be balanced? According to the Court, which values take precedence in this case?
  4. If the Supreme Court of the United States had allowed President Nixon to keep the tapes private, Chief Justice Burger claimed that "the very integrity of the judicial system and public confidence in the system" was at risk. Do you agree with Chief Justice Burger? Explain your answer.
  5. In the case of United States v. Burr (1807), Chief Justice John Marshall stated that "[I]n no case of this kind would a court be required to proceed against the president as against an ordinary individual." Has the Supreme Court in United States v. Nixonproceeded against the president as an ordinary individual? Why or why not?
  6. Should the president be treated as an ordinary individual? Why or why not?
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