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. l 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 […]. (Opening.2)
This is probably the most explicit mention of betrayal in U.S. v. Nixon, because the court is just flat out saying that Nixon's aides are accused of violating federal laws.
The action of the special prosecutor within the scope of his express authority seeking specified evidence preliminary determined to be relevant and admissible in the pending criminal case, and the President's assertion of privilege in opposition thereto, present issues of a type which are traditionally justiciable […]." (Opening.7)
This is one of the few quotes from the doc that reminds readers that this is a criminal case.
[…] when a claim of Presidential privilege as to materials subpoenaed for use in a criminal trial is based, as it is here, not on the ground that military or diplomatic secrets are implicated, but merely on the ground of a generalized interest in confidentiality […]." (Opening.10)
The Court points out that President Nixon is not claiming executive privilege to protect secret information that could harm the public, but he's claiming (or abusing) executive privilege to cover up information related to the Watergate investigation.
[…] although he was not designated as such in the indictment, the grand jury named the President, among others, as an unindicted coconspirator. (Opening.16)
The grand jury, as well as much of America, suspected that Nixon was betraying their trust big-time.
The privileges referred to by the Court are designed to protect weighty and legitimate competing interests. Thus, the Fifth Amendment to the Constitution provides that no man "shall be compelled in any criminal case to be a witness against himself." (IV.C.5)
As Dave Chappell has showed us, guilty people like to plead the fifth.
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. (Opening.2)
This is a classic power struggle between the executive and judicial branches of the U.S. government. In essence, Nixon's lawyers are saying that the court has no right to even get involved in a dispute between the special prosecutor and the prez. The Supremes begged to differ and claimed that it was their call, not Nixon's.
The dispute between the special prosecutor and the President presents a justiciable controversy. (Opening.4)
The Court's saying that they have a perfect right to intervene in the dispute between the special prosecutor and the president. It's "justiciable," meaning it can be decided in the courts, can go to trial, etc. Shmoop apologizes in advance if autocorrect changes this to "justifiable" or "Justin Timberlake."
The mere assertion of an "intra-branch dispute," without more, does not defeat federal jurisdiction. (Opening.5)
Just because the president claims that this is a disagreement within the executive branch, this does not stop the authority of the judicial branch to investigate possible federal crimes. Point by point, the Court's taking down Nixon's arguments.
The Attorney General by regulation has conferred upon the special prosecutor unique tenure and authority to represent the United States and has given the special prosecutor explicit power to contest the invocation of executive privilege in seeking evidence deemed relevant to the performance of his specially delegated duties. (Opening.6)
This line's important, because it explains how the Watergate special prosecutor got the power to subpoena the president. The power of the special prosecutor is handed down by the attorney general. It's kind of a chain-of-command argument.
The District Court held that the judiciary, not the President, was the final arbiter of a claim of executive privilege. The court concluded that, under the circumstances of this case, the presumptive privilege was overcome by the special prosecutor's prima facie "demonstration of need sufficiently compelling to warrant judicial examination in chambers […]." (Opening.16)
This throws in the president's face that the courts have the power to justify or reject a claim of executive privilege, not the president: We are the Supreme Court and you will respect our authority.
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. (Opening.2)
This is a great illustration of the rules and order of our justice system. President Nixon claimed executive privilege to get rid of the subpoena for his tapes. Instead of just accepting Nixon's privilege, we had a system of government in place to examine Nixon's claim.
Neither the doctrine of the separations of powers nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute unqualified Presidential privilege of immunity from judicial process under all circumstances. (Syllabus.4)
In trying to clarify a rule about executive privilege, the Court identifies its limits.
[…] The District Court has a heavy responsibility to ensure that material involving Presidential conversations irrelevant to or admissible in the criminal prosecution be accorded the high degree of respect due a President and that such material be returned under seal to its lawful custodian. (Opening.12)
Just because the president's tapes have been subpoenaed doesn't mean they can post it all over Facebook during the trial. If the president's tapes were seized and examined, they would have to stay secret, and then kept secret after the trial. As much as the Supremes thought it was important for the special prosecutor to get the info he needed, they knew the tapes had to be treated with the utmost care, especially since one of them had already been tampered with: the mysterious 18 ½ -minute gap.
Update: 3,000+ hours of the tapes are now available to anyone with a broadband connection and lots of free time.
The court rejected the President's claims of absolute executive privilege, of lack of jurisdiction, and of failure to satisfy the requirements of Rule 17(c). (Opening.15)
This is the court straight out telling Nixon that the special prosecutor did indeed have the jurisdiction to subpoena and examine his tapes. For the specifics of Rule 17(c), you can refer to our "Detailed Summary" section.
On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. (IV.C.13)
This (prophetic) quote warns of the dangers of unlimited executive privilege, which could undermine the rule of law and paralyze the function of the courts. For investigations to be carried out, certain rules have to be in place to make it possible for prosecutors to gather evidence. They had no idea at this point about the extent of the criminal activities that their decision would uncover.
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. (IV.B.2)
The president claims that the he's protected by the separation of powers doctrine from the power of the judicial branch, even in a criminal case. This is pretty scary, if you think about it. Unless he's impeached, there's nothing anyone can do.
But this presumptive privilege must be considered in light of our historic commitment to the rule of law. (IV.C.3)
The Supremes are clear that the president's privilege isn't the only consideration in this case. There's those pesky issue of the rule of law and due process.
The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. (IV.C.7)
The Court cites an earlier case that stated that a court has no authority to subpoena the president's tapes without knowing for sure what is on the tapes. Unfortunately for Nixon, the special prosecutor did have a pretty good idea of what was on those tapes, based on testimony some White House staffers gave to the Watergate Committee. And it definitely wasn't about foreign affairs.
The President's counsel, as we have noted, reads the Constitution as providing an absolute privilege of confidentiality for all Presidential communications. (IV.A.2)
This is the Court reiterating Nixon's claim to absolute privilege of confidentiality. We just know this argument's going down.
If a President concludes that compliance with a subpoena would be injurious to the public interest he may properly, as was done here, invoke a claim of privilege on the return of the subpoena. (IV.D.1)
The Court isn't at all contesting the fact that the president has the right to challenge a subpoena on the basis of executive privilege. That's just not what was on the menu.
The need for confidentiality even as to idle conversations with associates in which casual reference might be made concerning political leaders within the country or foreign statesmen is too obvious to call for further treatment. (IV.E.3)
Again, the Court wants to convey that it completely understands a president's need to have conversations protected, even casual ones.
Since a President's communications encompass a vastly wider range of sensitive material than would be true of an ordinary individual, the public interest requires that Presidential confidentiality be afforded to the greatest protection consistent with the fair administration of justice […]. (Opening.12)
Even though he's not above the law, the Court is saying it can't deny that you can't treat the president as if he's just a regular guy. If Shmoop admits to binge-watching The British Baking Show, nobody cares. If the president says it, it could cause an international incident.
At a subsequent hearing, 6 further motions to expunge the grand jury's action naming the President as an unindicted coconspirator and for protective orders against the disclosure of that information were filed or raised orally by counsel for the President. (Opening.16)
During U.S. v. Nixon, the president's lawyer tried to have his charge of being an un-indicted co-conspirator erased by the courts and hidden from disclosure. It didn't work.
It further ordered the President or any subordinate officer, official, or employee with custody or control of the documents or objects subpoenaed to deliver to the District Court, on or before May 31, 1974, the originals of all subpoenaed items, as well as an index and analysis of those items, together with tape copies of those portions of the subpoenaed recordings for which transcripts had been released to the public by the President on April 30. (Opening.16)
This is the Court's reiteration of the original subpoena, which got this whole case rolling.
On March 1, 1974, a grand jury of the United States District Court for the District of Columbia returned an indictment charging seven named individuals with various offenses, including conspiracy to defraud the United States and to obstruct justice. (Opening.16)
H.R. Haldeman, John Ehrlichman, Charles Colson, John Mitchell, Robert C. Mardian, Kenneth Parkinson, and Gordon Strachan were those seven individuals. The purpose of the contested subpoena was to get information to prosecute these cases. Without the info on the tapes, it would be harder to bring these guys to justice, not to mention their un-indicted co-conspirator—Nixon himself.
The burden applies with even greater force to excised material; once the decision is made to excise, the material is restored to its privileged status and should be returned under seal to its lawful custodian. (IV.E.3).
The Court's saying that the district court has no right to keep subpoenaed material that's irrelevant to the case. It's once again considered privileged and it's the responsibility of the court to return it to the legal owner. They're trying to be very fair about this even while requiring the release of information that is relevant.
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. (Syllabus.5)
This is the Court's final decision that the use of executive privilege can't get in the way of the investigation of a criminal trial. This is probably what Nixon was afraid of: that the Supreme Court, being a judicial body, would think that the administration of justice was the most important thing. Imagine.