RESPONDENT: Richard M. Nixon, et al.
LOCATION: The White House
DOCKET NO.: 73-1766
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit
CITATION: 418 US 683 (1974)
ARGUED: Jul 08, 1974
DECIDED: Jul 24, 1974
James D. St. Clair - Argued the cause for the President
Leon Jaworski - Argued the cause for the United States
Philip A. Lacovara - Argued the cause for the United States
Facts of the case
A grand jury returned indictments against seven of President Richard Nixon's closest aides in the Watergate affair. The special prosecutor appointed by Nixon and the defendants sought audio tapes of conversations recorded by Nixon in the Oval Office. Nixon asserted that he was immune from the subpoena claiming "executive privilege," which is the right to withhold information from other government branches to preserve confidential communications within the executive branch or to secure the national interest. Decided together with Nixon v. United States.
Is the President's right to safeguard certain information, using his "executive privilege" confidentiality power, entirely immune from judicial review?
Media for United States v. NixonAudio Transcription for Oral Argument - July 08, 1974 in United States v. Nixon
Audio Transcription for Opinion Announcement - July 24, 1974 in United States v. Nixon
Warren E. Burger:
I have the disposition to announce for the Court in number 73-1766, United States against Nixon together with 73-1834, Nixon against the United States.
We granted certiorari before judgment in these cases to review certain pre-trial orders of the District Court for the District of Columbia in the case of United States against Mitchell and others.
In that case, several former aides of the President were indicted by a federal grand jury for crimes including conspiracy to obstruct justice.
Prosecution for the Government was commenced by a Special Prosecutor who had been appointed by the Attorney General pursuing to federal regulation.
The Special Prosecutor had been given broad authority.
He moved for a subpoena duces tecum to secure from the President as a third-party certain 6 specifically described material, chiefly records of various conversations between the President and others including named defendants in pending cases.
The District Court authorized the subpoena pursuant to Rule 17 (C) of the Federal Rules of Criminal Procedure.
Counsel for the President moved to quash the subpoena on the grounds first that the court lack jurisdiction of the case and second that the courts did not have the power to review the claim of executive privilege as asserted here.
The District Court, after hearing, denied the motion to quash the subpoena.
The President appealed to the United States Court of Appeals for the District of Columbia Circuit and on the same day the Special Prosecutor filed a petition for certiorari before a judgment in this Court.
The grand jury which had issued the indictment in United States against Mitchell and others had also named the President as an unindicted co-conspirator. Shortly after the Special Prosecutor had filed his petition for certiorari in this Court, Counsel for the President filed a cross-petition for certiorari before a judgment also challenging the action of the grand jury as improper and as being unsupported by the evidence.
We granted both petitions for certiorari, expedited the consideration, and heard arguments on July 8.
At the outset we should say that we conclude that the cross-petition raises an issue which it is not necessary to decide in order to resolve the issues of this case and the cross-petition is therefore, dismissed as having been improvidently granted.
The President is not a party to the proceedings for which the evidence has sought.
He is a third-party who has, in his possession or under his control, material the Special Prosecutor claims he needs to proceed with the cases now pending in the District Court.
The Special Prosecutor made a preliminary showing to the District Court satisfying that court that the evidence he wanted was probably relevant to these cases and probably would be admissible.
The Special Prosecutor was able to describe what he wanted in the subpoena duces tecum, because the daily logs and diaries which are routinely kept in the White House were supplied to him.
The Special Prosecutor’s petition to this Court, advised that the case for which the evidence was sought would be tried in the District Court early in September and that he needed time to analyze the large amount of material involved.
The first question that we decided is whether we have jurisdiction to review the District Court’s order denying the motion to quash the subpoena.
If it was a final order, it would be an appealable order.
Ordinarily, an order of this kind is not regarded as final and, therefore, not appealable.
And the party is not permitted to challenge it in an Appellate Court until it has becomes certain that the District Court will, in fact, command compliance on pain of contempt.
There are, however, some expectations to this, and this is one occasion for such an exception.
To follow the ordinary procedure in this case, would very likely produce more delay and defeat the very purpose of the rule that only final orders are appealable.
For this and other reasons we, therefore, conclude that this Court has jurisdiction.
The President’s counsel contends in this case that it presents a dispute between the Special Prosecutor and the President and that since both are part of the Executive Branch, it is an intra-branch, a jurisdictional dispute which can be resolved only within the Executive Branch and not in the courts.
However, the Special Prosecutor in this case is not an ordinary subordinate officer of the Attorney General, because, by regulation of the Attorney General, the Special Prosecutor was given unique authority and tenure concerning specific investigations and prosecutions.
His authority is to represent the United States as a sovereign and it did include expressed authority to contest any privilege asserted by the Executive Branch.
It is now well established that when the government or its department promulgate regulations, the government is bound by those regulations even though they may be revoked or modified.
But until they are revoked or until they are modified, they have the force of law.