1. United States v. Nixon (The Nixon Tapes Case), (1974)
2. Facts: Several of Nixon’s top aids were indicted in a criminal conspiracy proceeding in relation to the Watergate burglary.
3. Procedural Posture: The District Court, acting on motion of the special prosecutor, ordered that the President produce taped conversations with the aids in order to determine who was involved to what extent. The President refused to comply with the subpoena duces tecum, invoking executive privilege. The District Court rejected his privilege, and the President appealed. While the case was before the Court of Appeals, the Supreme Court granted cert. before judgment.
4. Issue: Whether an assertion of Presidential privilege as to subpoenaed materials for use in a criminal trial is valid when it is based solely on the general interest in confidentiality of Presidential communications.
5. Holding: No.
6. Reasoning: The President does not have the power to determine the scope of his own privilege. Thus, this is a jusiticialbe question. It is the function of the court to say what the law is, and thus separation of powers [Marbury] supports judicial review of executive privilege. Although the executive privilege is broad in scope, 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 interests of the Presidential privilege must be weighed against the interests of criminal justice. Since, the Presidential interest is low in this case [because these are not national security related matters], and the interests of the criminal justice system are high, the executive privilege must yield to the need for evidence in the pending criminal trial.
