The Executive
Executive Privilege
United States v. Nixon (1974)
418 U.S. 683 (1974)
Decision: Affirmed
Vote: 8-0
Majority: Burger, joined by Douglas, Brennan, Stewart, White, Marshall, Blackmun, and Powell
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
This litigation presents for review the denial of a motion … to quash a third-party subpoena duces tecum issued … pursuant to Fed. Rule Crim. Proc. 17 (c). The subpoena directed the President to produce certain tape recordings and documents relating to his conversations with aides and advisers …
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. Although he was not designated as such in the indictment, the grand jury named the President, among others, as an unindicted coconspirator …
[W]e turn to the claim that the subpoena should be quashed because it demands “confidential conversations between a 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 duces tecum.
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, (1803), that “[i]t 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 authority to interpret claims with respect to powers alleged to derive from enumerated powers …
Our system of government “requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch.” Powell v. McCormack, (1969) … And in Baker v. Carr (1961), the Court stated:
“Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.”
Notwithstanding the deference each branch must