U.S. v. Nixon: IV: The Claim of Privilege Summary

I Got the Presidential Seal

• Being defeated on challenging the subpoena, Nixon's lawyers then tried to assert the claim of executive privilege on two grounds.
• First, they claim that there's a legit need for the protection of all, and we mean all, communications between high ranking government officials.
• Second, the doctrine of the separation of powers allows the executive branch to act as its own "sphere," and "insulates a president from a judicial subpoena in an ongoing criminal prosecution […]" (IV.B.2).

We Are the Deciders

• That might be their interpretation of the Constitution, says the court, but we're the ones to decide what the Constitution says or doesn't say.
• The Court says they've never been in the position of having to rule on a claim of executive privilege when it comes to a criminal investigation, but their previous rulings support the idea that they can intervene in a case like this.
• The justices reiterate that they're the ones with judicial authority in this governmental system, not the president. He can't give them veto power, and they can't give him the power to decide what's constitutional.
• Any other conclusion would upset the whole checks-and-balances thing.
• It's a boundaries thing.

Hail to the Chief

• The Court has the utmost respect for the need to protect the president's confidential communications. They know that even idle conversations might need to be protected it if they contain references to foreign leaders or national security matters.
• Far be it from them not to honor the office of the president.
• The president might need to say things in the course of doing his job that might come off as extreme or nasty, but that's the nature of the job and he's gotta feel free to speak candidly.
• The Court knows that in cases like this, the president can't be treated as just another individual.
• Still, to be sure that justice is done in a criminal investigation, all the relevant facts need to be disclosed.
• Now, the court realizes there are exceptions to this.
• For example, the Fifth Amendment gives people the right not to have to testify against themselves.
• Plus, some classes of people, like clergy and attorneys, don't have to disclose information given to them in confidence.
• But these privileges were only given after careful consideration and are rare exceptions.
• In this case, the president is claiming executive privilege in a criminal investigation of a third party.
• The court reviews precedent that allows executive privilege in situations where disclosure might reveal military secrets or jeopardize national security.
• (This is probably why we'll never know what really happened in Roswell.)
• But the Court has never had to rule on a case where such a broad interpretation of the privilege has been claimed. Like, anything and everything is safe from disclosure.
• In fact, guess what? The Constitution doesn't even mention the existence of executive privilege. But the Court gives it to him anyway based on the fact that he needs some assurance of confidentiality to do his job.

Having Said That…

• The Court says there's another issue to consider, though: the right of a defendant in a criminal case to know all the evidence and witnesses that can be brought against him, and have a way to have those witnesses brought into the case.
• That's just good, plain old due process of law that's guaranteed to everyone under the Constitution.
• It's the Court's job to see that everyone gets his fair day in court; and to do that, all relevant and admissible information must be produced.
• So the Court is weighing two different considerations: the president's right to confidential communication, which they totally respect, vs. impairing the function of the courts by limiting due process.
• What's a court to do?
• Hmmm…let's see. First of all, these subpoenaed communications have nothing to do with national security or military secrets. Also, what are the chances that a president would feel limited in speaking freely in private on the extremely unlikely chance that his conversations might be made public for a criminal case? The court doesn't see that happening.
• OTOH, what are the chances of the whole due process thing getting hammered if there's no way to force someone to produce evidence in a criminal investigation? That would be disastrous to the justice system.
• The president's need for confidentiality is a general concern, but the right of a defendant to have all the relevant facts and witnesses produced—well, that's the very heart of the system. Without it, no one could ever be prosecuted for anything.
• You can see where this is going.
• It's due process for the win.

The Ruling Stands

• The Court concludes that the District Court handled things just right.
• First, they assumed the president's communications were confidential, and made the special prosecutor prove that they met the requirements for disclosure and was essential for the prosecution of the case.
• He did.
• They also believe the District Court was correct in ordering an in camera inspection of the evidence, i.e. not to post it on Gawker.

Now What?

• The District Court's ruling was stayed until the Supreme Court could look at the case.
• Now that they've affirmed that court's decision, it's up to the lower court to take it from here.
• But they have to be very careful and scrupulous with the evidence and only consider what's relevant and admissible. Plus, the court has to review it in private.
• That's the precedent set by United States v. Burr way back in 1807 when Aaron Burr tried to subpoena documents from the president.
• The chief justice at the time noted how important it was for the president not to be treated like an "ordinary" individual with regard to legal matters.
• The court has total confidence that the District Court will treat the president's claims with the proper respect and deference, and that nobody will get their hands on the evidence until the judge looks at it in private—especially the excised portions of the evidence that aren't relevant.
• Once any information is excised, it reverts back to being privileged and is returned to the president.
• Since this ruling is part of an important criminal matter, it has to be dealt with right away.
• P.S. Justice Rehnquist was not part of this decision.