U.S. v. Nixon (418 U.S.

683) (1974)

Concept discussed: Executive Privilege

FACTS: In 1972, President Richard Nixon, a Republican, was running for re-election against
Senator George McGovern, a Democrat. On June 17, 1972, McCord and four other men
working for the COmmittee to re-elect the President broke into the Democratic Party’s
headquarters in Watergate, a hotel-office building in Washington, DC (Watergate Scandal).
They got caught going through files and trying to plant listening devices. Five days later, Nixon
denied any knowledge of it or that his administration played a role in it. The burglars went to trial
in 1973, and either pled guilty or were convicted. Before sentencing, McCord wrote a letter to
Judge Sirica, contending that high Republican and White House officials knew about the break
in and had paid the defendants to keep quiet or lie during the trial.

On July 16, 1973, Alexander Butterfield, a former White House staff member, testified that there
were secret recordings of presidential conversations discussing the break in with its organizers.
A subpoena was issued directing President to produce tape recordings and documents. Nixon’s
motion to quash subpoena was denied. Nixon refused to turn over the tapes to Congress,
claiming that the tapes were covered by “executive privilege.” The subpoena demands
confidential conversations between President and his close advisors that it would be
inconsistent with public interest to produce. The privilege prevails over the subpoena.
Moreover, Nixon claims the separation of powers doctrine which precludes judicial review of a
President’s claim of privilege

ISSUE: Whether or not Nixon’s executive privilege is absolute.

HELD: NO. The Court has the authority to interpret claims with respect to powers elleged to
derive from enumerated powers. It is the duty of the Court to say what the law is with respect to
the claim of privilege of the President.

RULING: As a general rule, Presidential communications are privileged. As an exception,

however, it is not privileged when the communication is NOT governmental in nature, and there
exists a public interest in the communication. With the this, the immunity granted by the
Constitution does not exist. It acts together with the 5th and 6th amendment, highlighting both
due process and the right to face adversaries, respectively. In criminal cases, the immunity
CANNOT remain, for it “would cut deep into the guarantee of due process of law and gravely
impair the basic function of the courts.” Only under certain circumstances can immunity under
the principle of privileged presidential communications can it be absolute, namely the need to
protect information on: (1) military, (2) diplomacy, and/or (3) national security. Absent these,
executive privilege cannot protect the President from the citizens’ right to the defendant’s
accusers.