U.S. Supreme CourtUnited States v. Nixon

The case that led to the first resignation of a President

in the history of the U.S.

Decided Juli 24, 1974

Tiziano Zgaga – 28.10.2013

Historical context of the case:The Watergate Scandal

• June 1972, before the federal elections• Candidates: Nixon (Republicans) v. McGovern(Democrats)• Burglars broke into National Committee of the Democrats in the Watergate complex• Nixon’s administration supposed to be involved•Scandal led to the resignation of Nixon

Watergate Complex in Washington, D.C.

The U.S. Juridicial System involved in this case

Type of court Namesupreme court U.S. Supreme Courtappellate court U.S. Court of Appeals for the

District of Columbia Circuitlocal trial court U.S. District Court

U.S. Supreme Court• Chief Justice• 8 Associate Judges• Appointed by the U.S. President, with the advice and

consent of the Senate

U.S. Constitution, Art. III, section 1

“The judicial power of the United States, shall be vestedin one Supreme Court, and in such inferior courts asthe Congress may from time to time ordain andestablish […]”

U.S. Constitution, Art. III, section 2• “The judicial Power shall extend to all Cases, in Law and Equity, arising

under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or more States;-between a State and Citizens of another State;-between Citizens of different States;-between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

• In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. […]”

Attorney General• the highest judiciary federal official• at the head of the United States

Department of Justice • nominated by the President after

confirmation by the Senate• represents the US in legal matters

and gives advice and opinions to the President

Special Prosecutor

• selected by the Attorney General • investigates and possibly prosecutes

a federal government official for wrongdoing in office • but is he really independent from the

Executive?

U.S. President• veto power over legislation (can be overriden by

Congress)• commander-in-chief of the armed forces (but Congress

declares war)• power to make treaties/recognize foreign nations (with

consent of the Senate)• appoints ambassadors, officers of the U.S., and judges

(with Senate confirmation)• issues pardons• informs Congress on the state of the Union and

recommends legislation• calls Congress to special sessions

What happened?

• Special Prosecutor orders Nixon to produce before trail some materials

• perhaps evidence that Nixon is involved• Nixon wants to quash the order before the District

Court• the District Court refuses and wants the release of

the materials• Nixon appeals to the Court of Appeals• Special Prosecutor and Nixon ask the Supreme Court

to review the order which is in the Court of Appeals• Supreme Court hears arguments on Juli 8, 1974

Subpoena duces tecum

• Special Prosecutor wants Nixon to appear before the District Court and produce documents or other tangible evidence for use at hearing or trial (subpoena for the production of evidence)• Regulated by Federal Rules of Criminal

Procedure

Fed. Rule Crim. Proc. 17(c)Rule 17. Subpoena

c) Producing documents and objects

(1) In General. A subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them.

CertiorariA writ or order by which a higher court reviews the

decision of a lower court (from Legal Latin, “to wish to be informed”).

In the U.S., also the situation in which a higher court asks a lower court to examine the acts of a process, in order to review the decision of the lower court.

• Special Prosecutor and President file a writ of certiorari before judgement to the U.S. Supreme Court.

Jurisdiction• Nixon files an appeal to the Court of

Appeals against the order of the subpoena

But is this order appealable?

28 United States Code (U.S.C.) § 1291

• “The courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States ...”

28 U.S.C. § 1291

• “Cases in which the courts of appeals may be reviewed by the Supreme Court by the following methods:

1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgement or decree ...”

inappropriate to require that the District Court makes a contempt citation of the President in order to make

an appellate review possible

↓

order for the subpoena should be considered as final

↓

order is appealable

The Supreme Court states:

Nixon’s claims - 1

Special Prosecutor filed motion for subpoena to the President

↓dispute Special Prosecutor vs. President is

intra-executive↓

no jurisdiction of District Court

Supreme Court: versus Nixon 1 - A

mere assertion of an “intra-branch” dispute not sufficient to defeat federal jurisdiction by the

District Court

United States v. Interstate Commerce Commission (1949)“Courts must look behind names that symbolize the parties to determine whether a justiciable case or controversy is presented.”

Supreme Court: versus Nixon 1 - BPresident (and Senate) has given to Attorney General

the power to conduct criminal litigations of the United States Government

28 U.S.C. § 516. Conduct of litigation reserved to Department of Justice.“[…] the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General.”

Attorney General has power to appoint subordinate officers to assist him in his duties

↓Attorney General has delegated the authority to represent the United States to a Special Prosecutor with his own authority

↓Special Prosecutor was given (38 Fed. Reg. 30739):

• full authority to contest assertation of executive privilege• greatest degree of independence from Attorney General and

from the President

Attorney General can amend/revoke regulation defining the authority of the Special Prosecutor

↓has not done so

↓Executive is bound by this regulation

Special Prosecutor considers Nixon’s materials relevant and wants to have them

Matter is within the traditional scope of Art. III., Section 2, of the U.S. Constitution

“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or more States;-between a State and Citizens of another State;-between Citizens of different States;-between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. […]”

Conclusion Supreme Courtversus Nixon 1

Special Prosecutor and President both officer of the Executive Branch

↓

no barrier to justiciability

Nixon’s claims - 2

Special Prosecutor does not satisfy Fed. Rule Crim. Proc. 17(c) for the

subpoena↓

subpoena must be quashed

Characteristics of subpoena duces tecum in criminal cases - IBowman Dairy Co. v. United States (1951)

• not intended to provide a means of discovery for criminal cases

• expedites the trail by providing a time and place before trail for the inspection of subpoenaed materials

Characteristics of subpoena duces tecum in criminal cases - II

United States v. Iozia (1952)

• documents are evidentiary and relevant• not otherwise procurable reasonable in advance of

trail by exercise of due diligence• party cannot properly prepare for trail without such

production and inspection in advance of trail; failure to obtain such inspection may tend unreasonably to delay the trail

• application is made in good faith

Special Prosecutor must consider if the materials

of the subpoena are:

1. relevant ✔2. admissible ✔

3. specific ✔

Conclusion Supreme Courtversus Nixon 2

• Special Prosecutor has made a sufficient showing to justify the subpoena

• District Court correctly denied President’s motion to quash the subpoena

• District Court did not err in authorizing the issuance of the subpoena

Nixon’s claims - 3materials of the subpoena are confidential conversations between President and close

advisors↓

President claims executive privilege for all his communications

↓no judicial review in case of executive privilege

(independence of the Executive Branch)

What is Executive Privilege?Generally• power claimed by the President and other members

of the executive branch to resist certain subpoenas and other interventions by the legislative and the judicial branches of government

Specifically (U.S.)• members of the executive branch of government –

and especially the President – cannot legally be forced to disclose their confidential communications when such disclosure would adversely affect the operations or procedures of the executive branch

Executive Privilege

• Constitution does not mention it explicitly• Historically considered to derive

from the constitutional principle of separation of the three powers (Legislative, Executive, Judiciary)

Supreme Court aboutExecutive Privilege - I

• The Court must «say what law is» (Marbury v. Madison) also with respect to the claim of privilege

“Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.” (U.S. Supreme Court)

Supreme Court aboutExecutive Privilege - II

• Executive Privilege can be invoked only when there is a need to protect military, diplomatic or sensitive national security secrets

• Nixon did not base claim of Executive Privilege on those categories

• President does not have an absolute, unqualified privilege of immunity from judicial process

• Judiciary, not the President, is final arbiter of a claim of executive privilege

• Separation of powers does not operate with absolute independence

Youngstown Sheet & Tube Co. v. Sawyer

“While the Constitution diffuses power the better to secure liberty, it also contemplate that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity."

Conclusion Supreme Courtversus Nixon 3

general interest in confidentiality of communications is not sufficient

↓general and constitutional need for

evidence in a pending criminal trial must prevail over generalized assertion of

privilege by the President

production of materials for in camera inspection of the District Court will not damage the interest in confidentiality

of Presidential communications

↓

no Executive Privilege in this case

• President properly invoked a claim of privilege on the return of the subpoena

• he thought the materials would be injurious to the public interest

• District Court has the duty to treat the subpoenaed material as presumptively privileged and to require the Special Prosecutor to demonstrate that the Presidential material was “essential to the justice of the pending criminal case” (United States v. Burr)

• Special Prosecutor has done so

The subpoenaed materials

• statements that meet the test of admissibility and relevance must be isolated

• all other material must be excised• material not found probably admissible in

evidence and relevant to the issues of the trial must neither be released nor published

• Chief Justice Warren E. Burger delivered the opinion of the U.S. Supreme Court

• All Members joined in except Mr. Justice Rehnquist, who took no part in the consideration or decision of this case, because he had been an advisor of Nixon

The work of the Supreme Court

1. U.S. courts usually make reference only to U.S. law/precedents

2. judges deliver their opinions separately, and in case of disagreement decide by majority

3. literature/doctrine only sporadically quoted, not in a favourable light

This case was decided on Juli 24, 1974.Nixon resigned 15 days later.

It was the first and only time in the history of the U.S. that a President resigned.

Nixon announces the release of edited transcripts of the Watergate tapes,April 29, 1974

References• Rosenfeld, M. & Sajó A. (2012), The Oxford Handbook of

Comparative Constitutional Law. Oxford: Oxford University Press• U.S. Constitution, retrieved October 22, 2013, from

http://constituteproject.org• Attorney General, retrieved October 25, 2013, from http://www.justice.gov/ag/about-oag.html • The President and the Cabinet, retrieved October 25, 2013, from

http://usgovinfo.about.com/od/thepresidentandcabinet/a/execpriv.htm

• Bowman Dairy Co. v. United States - 341 U.S. 214 (1951), retrieved October 25, 2013, from http://supreme.justia.com/cases/federal/us/341/214/case.html

• United States v. ICC, 337 U.S. 426 (1949), retrieved October 25, 2013, from http://supreme.justitia.com/cases/federal/us/337/426/case.html

• United States v. Iozia, 13 F.R.D. 335, 338 (SDNY 1952)• Marbury v. Madison, retrieved October 25, 2013, from

http://supreme.justitia.com/cases/federal/us/5/137/case.html

• Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S., retrieved October 25, 2013, from http://supreme.justitia.com/cases/federal/us/343/579/case.html

• United States v. Burr, 25 F.Cas. 187, 190, 191-192 (No. 14,694) (CC Va. 1807)

• Cornell University Law School, retrieved October 25, 2013, from http://www.law.cornell.edu/rules/frcrmp/rule_17

Thank youfor your attention