U.S. Supreme Court United States v. Nixon

1. U.S. Supreme CourtUnitedStates v. Nixon The case that led to the first resignationof a President in the historyof the U.S. DecidedJuli 24, 1974 Tiziano Zgaga – 28.10.2013

2. Historicalcontextof the case:The WatergateScandal • June 1972, before the federalelections • Candidates: Nixon (Republicans) v. McGovern(Democrats) • Burglarsbrokeinto National Committeeof the Democratsin the Watergatecomplex • Nixon’s administrationsupposedtobeinvolved • Scandal led to the resignationofNixon WatergateComplex in Washington, D.C.

3. The U.S. Juridicial System involved in this case

4. U.S. Supreme Court • ChiefJustice • 8 Associate Judges • Appointedby 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 vested in one Supreme Court, and in such inferior courtsas the Congress may from time to time ordain and establish […]”

5. U.S. Constitution, Art. III, section2 • “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. […]”

6. AttorneyGeneral • the highest judiciary federal official • at the head of the United States Department of Justice • nominatedby the Presidentafterconfirmation by the Senate • represents the US in legal matters and gives advice and opinions to the President

7. SpecialProsecutor • selected by the Attorney General • investigates and possibly prosecutes a federal government official for wrongdoing in office • butishereallyindependentfrom the Executive?

8. U.S. President • veto powerover legislation (can be overriden by Congress) • commander-in-chief of the armedforces (butCongressdeclares war) • power to maketreaties/recognizeforeignnations (with consent of the Senate) • appointsambassadors, officers of the U.S., and judges(with Senateconfirmation) • issuespardons • informsCongresson the state of the Union and recommendslegislation • callsCongress to special sessions

9. Whathappened? • SpecialProsecutororders Nixon toproducebeforetrail some materials • perhapsevidencethatNixon isinvolved • Nixon wantstoquash the orderbefore the District Court • the District Court refusesand wants the releaseof the materials • Nixon appealsto the Court ofAppeals • SpecialProsecutor and Nixon ask the Supreme Court toreview the orderwhichis in the Court ofAppeals • Supreme Court hearsarguments on Juli8, 1974

10. Subpoenaducestecum • SpecialProsecutorwants 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) • RegulatedbyFederal Rules of Criminal Procedure

11. Fed. RuleCrim. Proc. 17(c) Rule 17. Subpoena c) Producingdocuments 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.

12. Certiorari A writor orderbywhich ahigher 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. • SpecialProsecutor and President file a writofcertioraribeforejudgementto the U.S. Supreme Court.

13. Jurisdiction • Nixon filesanappeal to the Court ofAppealsagainstthe orderof the subpoena Butisthisorderappealable?

14. 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 ...”

15. 28 U.S.C. § 1291 • “Cases in which the courtsofappealsmaybereviewedby the Supreme Court by the followingmethods: 1) Bywritofcertiorarigrantedupon the petitionofany party toanycivil or criminal case, before or afterrenditionofjudgement or decree...”

16. The Supreme Court states: 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

17. Nixon’sclaims - 1 Special Prosecutor filedmotion for subpoena to the President ↓ dispute Special Prosecutor vs. Presidentis intra-executive ↓ no jurisdictionof District Court

18. Supreme Court: versus Nixon 1 - A mere assertion of an “intra-branch” dispute notsufficient 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.”

19. Supreme Court:versus Nixon 1 - B President (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.”

20. 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 wasgiven (38 Fed. Reg. 30739): • full authority to contest assertationof 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 • ↓ • hasnot done so • ↓ • Executive is bound by this regulation

21. Special Prosecutor considersNixon’smaterialsrelevantand wants to havethem Matteriswithin the traditional scope of Art. III., Section2, 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. […]”

22. Conclusion Supreme Courtversus Nixon 1 Special Prosecutor and Presidentbothofficer of the Executive Branch ↓ no barrier to justiciability

23. Nixon’sclaims - 2 Special Prosecutor doesnotsatisfy Fed. Rule Crim. Proc. 17(c) for the subpoena ↓ subpoena must be quashed

24. Characteristics of subpoenaducestecumin criminalcases - I Bowman Dairy Co. v. United States (1951) • not intended to provide a means of discovery for criminal cases • expeditesthe trail by providing a time and place before trail for the inspection of subpoenaed materials

25. Characteristics of subpoenaducestecumin 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; failureto obtain such inspection may tend unreasonably to delay the trail • application is made in good faith

26. Special Prosecutor must considerif the materialsof the subpoena are: • relevant ✔ • admissible ✔ • specific ✔

27. Conclusion Supreme Courtversus Nixon 2 • Special Prosecutor has made a sufficient showing to justifythe subpoena • District Court correctly denied President’s motion to quash the subpoena • District Court did not err in authorizing the issuance of the subpoena

28. Nixon’sclaims - 3 materials 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)

29. Whatis Executive Privilege? Generally • power claimed by thePresidentand 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

30. Executive Privilege • Constitutiondoesnotmentionitexplicitly • Historicallyconsidered to derive from the constitutionalprinciple of separation of the threepowers(Legislative, Executive, Judiciary)

31. Supreme Court aboutExecutive Privilege - I • The Court must «saywhat 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)

32. 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 • Nixondid 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

33. Separation of powersdoesnotoperate with absoluteindependence 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 branchesseparateness but interdependence, autonomy but reciprocity."

34. 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

35. production of materials for in camera inspectionof the District Court will not damage the interest in confidentiality of Presidential communications ↓ no Executive Privilege in this case

36. President properly invoked a claim of privilege on the return of the subpoena • he thought the materials would be injurious to the publicinterest • District Court has the duty to treat the subpoenaed material as presumptively privileged and to require the SpecialProsecutor 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

37. The subpoenaedmaterials • 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

38. Chief Justice Warren E. Burger delivered the opinion of the U.S. Supreme Court • All Members joined inexcept Mr. Justice Rehnquist, who took no part in the consideration or decision of this case, because he had been an advisor of Nixon

39. The work of the Supreme Court • U.S. courts usually make reference only to U.S. law/precedents • judges deliver their opinions separately, and in case of disagreement decide by majority • literature/doctrineonly sporadically quoted, not in a favourable light

40. This case wasdecided on Juli 24, 1974. Nixon resigned15 dayslater. Itwas the first and only time in the history of the U.S. that a Presidentresigned.

41. Nixon announces the release of editedtranscripts of the Watergatetapes, April 29, 1974

42. References • Rosenfeld, M. & Sajó A. (2012), The Oxford Handbookof Comparative ConstitutionalLaw. Oxford: Oxford University Press • U.S. Constitution, retrievedOctober 22, 2013, fromhttp://constituteproject.org • AttorneyGeneral, retrievedOctober 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 • BowmanDairy Co. v. UnitedStates- 341 U.S. 214 (1951), retrievedOctober 25, 2013, fromhttp://supreme.justia.com/cases/federal/us/341/214/case.html

43. UnitedStates v. ICC, 337 U.S. 426 (1949), retrievedOctober 25, 2013, fromhttp://supreme.justitia.com/cases/federal/us/337/426/case.html • United States v. Iozia, 13 F.R.D. 335, 338 (SDNY 1952) • Marburyv. Madison, retrievedOctober 25, 2013, fromhttp://supreme.justitia.com/cases/federal/us/5/137/case.html • Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S., retrievedOctober 25, 2013, fromhttp://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

44. Thankyouforyourattention