United States v. Nixon: Presidential Privilege and Criminal Prosecution, Summaries of Law

Download United States v. Nixon: Presidential Privilege and Criminal Prosecution and more Summaries Law in PDF only on Docsity! UNITED STATES v. NIXON Syllabus UNITED STATES v. NIXON, PRESIDENT OF THE UNITED STATES, ET AL. CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 73-1766. Argued July 8, 1974-Decided July 24, 1974* Following indictment alleging violation of federal statutes by certain staff members of the White House and political supporters of the President, the Special Prosecutor filed a motion under Fed. Rule Crim. Proc. 17 (c) for a subpoena duces tecum for the pro- duction before trial of certain tapes and documents relating to precisely identified conversations and meetings between the Presi- dent and others. The President, claiming executive privilege, filed a motion to quash the subpoena. The District Court, after treat- ing the subpoenaed material as presumptively privileged, concluded that the Special Prosecutor had made a sufficient showing to rebut the presumption and that the requirements of Rule 17 (c) had been satisfied. The court thereafter issued an order for an in camera examination of the subpoenaed material, having rejected the President's contentions (a) that the dispute between him and the Special Prosecutor was nonjusticiable as an "intra-executive" conflict and (b) that the judiciary lacked authority to review the President's assertion of executive privilege. The court stayed its order pending appellate review, which the President then sought in the Court of Appeals. The Special Prosecutor then filed in this Court a petition for a writ of certiorari before judgment (No. 73-1766) and the President filed a cross-petition for such a writ challenging the grand-jury action (No. 73-1834). The Court granted both petitions. Held: 1. The District Court's order was appealable as a "final" order under 28 U. S. C. § 1291, was therefore properly "in" the Court of Appeals, 28 U. S. C. § 1254, when the petition for certiorari be- fore judgment was filed in this Court, and is now properly before this Court for review. Although such an order is normally not final and subject to appeal, an exception is made in a "limited class of *Together with No. 73-1834, Nixon, President of the United States v. United States, also on certiorari before judgment to the same court. OCTOBER TERM, 1973 Syllabus 418 U. S. cases where denial of immediate review would render impossible any review whatsoever of an individual's claims," United States v. Ryan, 402 U. S. 530, 533. Such an exception is proper in the unique circumstances of this case where it would be inappropriate to subject the President to the procedure of securing review by resisting the order and inappropriate to require that the District Court proceed by a traditional contempt citation in order to provide appellate review. Pp. 690-692. 2. The dispute between the Special Prosecutor and the President presents a justiciable controversy. Pp. 692-697. (a) The mere assertion of an "intra-branch dispute," without more, does not defeat federal jurisdiction. United States v. ICC, 337 U. S. 426. P. 693. (b) The Attorney General by regulation has conferred upon the Special Prosecutor unique tenure and authority to represent the United States and has given the Special Prosecutor explicit power to contest the invocation of executive privilege in seeking evidence deemed relevant to the performance of his specially delegated duties. While the regulation remains in effect, the Executive Branch is bound by it. United States ex rel. Accardi v. Shaughnessy, 347 U. S. 260. Pp. 694-696. (c) The action of the Special Prosecutor within the scope of his express authority seeking specified evidence preliminarily determined to be relevant and admissible in the pending criminal case, and the President's assertion of privilege in opposition thereto, present issues "of a type which are traditionally justiciable," United States v. ICC, supra, at 430, and the fact that both litigants are officers of the Executive Branch is not a bar to justiciability. Pp. 696-697. 3. From this Court's examination of the material submitted by the Special Prosecutor in support of his motion for the subpoena, much of which is under seal, it is clear that the District Court's denial of the motion to quash comported with Rule 17 (c) and that the Special Prosecutor has made a sufficient showing to justify a subpoena for production before trial. Pp. 697-702. 4. Neither the doctrine of separation of powers nor the general- ized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. See, e. g., Marbury v. Madison, 1 Cranch 137, 177; Baker v. Carr, 369 U. S. 186, 211. Absent a claim of need to protect military, diplo- matic, or sensitive national security secrets, the confidentiality of UNITED STATES v. NIXON 683 Opinion of the Court rari before judgment (No. 73-1834), 2 because of the public importance of the issues presented and the need for their prompt resolution. 417 U. S. 927 and 960 (1974). On March 1, 1974, a grand jury of the United States District Court for the District of Columbia returned an indictment charging seven named individuals 3 with various offenses, including conspiracy to defraud the United States and to obstruct justice. Although he was not designated as such in the indictment, the grand jury named the President, among others, as an unindicted co- conspirator4 On April 18, 1974, upon motion of the Spe- 2 The cross-petition in No. 73-1834 raised the issue whether the grand jury acted within its authority in naming the President as an unindicted coconspirator. Since we find resolution of this issue un- necessary to resolution of the question whether the claim of privilege is to prevail, the cross-petition for certiorari is dismissed as improvi- dently granted and the remainder of this opinion is concerned with the issues raised in No. 73-1766. On June 19, 1974, the President's counsel moved for disclosure and transmittal to this Court of all evidence presented to the grand jury relating to its action in naming the President as an unindicted coconspirator. Action on this motion was deferred pending oral argument of the case and is now denied. 3 The seven defendants were John N. Mitchell, H. R. Haldeman, John D. Ehrlichman, Charles W. Colson, Robert C. Mardian, Ken- neth W. Parkinson, and Gordon Strachan. Each had occupied either a position of responsibility on the White House staff or a posi- tion with the Committee for the Re-election of the President. Colson entered a guilty plea on another charge and is no longer a defendant. 4The President entered a special appearance in the District Court on June 6 and requested that court to lift its protective order regarding the naming of certain individuals as coconspirators and to any additional extent deemed appropriate by the Court. This motion of the President was based on the ground that the disclosures to the news media made the reasons for continuance of the protective order no longer meaningful. On June 7, the District Court removed its protective order and, on June 10, counsel for both parties jointly moved this Court to unseal those parts of the record which related to the action of the grand jury regarding the President. After receiv- OCTOBER TERM, 1973 Opinion of the Court 418 U. S. cial Prosecutor, see n. 8, infra, a subpoena duces tecum was issued pursuant to Rule 17 (c) to the President by the United States District Court and made returnable on May 2, 1974. This subpoena required the production, in advance of the September 9 trial date, of certain tapes, memoranda, papers, transcripts, or other writings relating to certain precisely identified meetings between the Presi- dent and others.5 The Special Prosecutor was able to fix the time, place, and persons present at these discussions because the White House daily logs and appointment rec- ords had been delivered to him. On April 30, the Presi- dent publicly released edited transcripts of 43 conversa- tions; portions of 20 conversations subject to subpoena in the present case were included. On May 1, 1974, the President's counsel filed a "special appearance" and a motion to quash the subpoena under Rule 17 (c). This motion was accompanied by a formal claim of privilege. At a subsequent hearing,, further motions to expunge the grand jury's action naming the President as an unindicted coconspirator and for protective orders against the dis- closure of that information were filed or raised orally by counsel for the President. On May 20, 1974, the District Court denied the motion to quash and the motions to expunge and for protec- tive orders. 377 F. Supp. 1326. It further ordered "the President or any subordinate officer, official, or employee with custody or control of the documents or ing a statement in opposition from the defendants, this Court denied that motion on June 15, 1974, except for the grand jury's immediate finding relating to the status of the President as an unindicted coconspirator. 417 U. S. 960. 5 The specific meetings and conversations are enumerated in a schedule attached to the subpoena. App. 42a-46a. 6 At the joint suggestion of the Special Prosecutor and counsel for the President, and with the approval of counsel for the defendants, further proceedings in the District Court were held in camera. UNITED STATES v. NIXON 683 Opinion of the Court objects subpoenaed," id., at 1331, to deliver to the District Court, on or before May 31, 1974, the originals of all subpoenaed items, as well as an index and analysis of those items, together with tape copies of those portions of the subpoenaed recordings for which transcripts had been released to the public by the President on April 30. The District Court rejected jurisdictional challenges based on a contention that the dispute was nonjusticiable because it was between the Special Prosecutor and the Chief Executive and hence "intra-executive" in char- acter; it also rejected the contention that the Judiciary was without authority to review an assertion of executive privilege by the President. The court's rejection of the first challenge was based on the authority and powers vested in the Special Prosecutor by the regulation promul- gated by the Attorney General; the court concluded that a justiciable controversy was presented. The second chal- lenge was held to be foreclosed by the decision in Nixon v. Sirica, 159 U. S. App. D. C. 58, 487 F. 2d 700 (1973). The District Court held that the judiciary, not the Presi- dent, was the final arbiter of a claim of executive privi- lege. The court concluded that, under the circumstances of this case, the presumptive privilege was overcome by the Special Prosecutor's prima facie "demonstration of need sufficiently compelling to warrant judicial examina- tion in chambers . . . ." 377 F. Supp., at 1330. The court held, finally, that the Special Prosecutor had satis- fied the requirements of Rule 17 (c). The District Court stayed its order pending appellate review on condition that review was sought before 4 p. m., May 24. The court further provided that matters filed under seal remain under seal when transmitted as part of the record. On May 24, 1974, the President filed a timely notice of appeal from the District Court order, and the certified record from the District Court was docketed in the United OCTOBER TERM, 1973 Opinion of the Court 418 U. S. unseemly, and would present an unnecessary occasion for constitutional confrontation between two branches of the Government. Similarly, a federal judge should not be placed in the posture of issuing a citation to a President simply in order to invoke review. The issue whether a President can be cited for contempt could itself engender protracted litigation, and would further delay both review on the merits of his claim of privilege and the ultimate termination of the underlying criminal action for which his evidence is sought. These considerations lead us to conclude that the order of the District Court was an appealable order. The appeal from that order was there- fore properly "in" the Court of Appeals, and the case is now properly before this Court on the writ of certiorari before judgment. 28 U. S. C. § 1254; 28 U. S. C. § 2101 (e). Gay v. Ruff, 292 U. S. 25, 30 (1934).1 II JUSTICIABILITY In the District Court, the President's counsel argued that the court lacked jurisdiction to issue the subpoena because the matter was an intra-branch dispute between a subordinate and superior officer of the Executive Branch and hence not subject to judicial resolution. That argument has been renewed in this Court with emphasis on the contention that the dispute does not present a "case" or "controversy" which can be adjudi- cated in the federal courts. The President's counsel argues that the federal courts should not intrude into areas committed to the other branches of Government. 7 The parties have suggested that this Court has jurisdiction on other grounds. In view of our conclusion that there is jurisdiction under 28 U. S. C. § 1254 (1) because the District Court's order was appealable, we need not decide whether other jurisdictional vehicles are available. UNITED STATES v. NIXON 683 Opinion of the Court He views the present dispute as essentially a "jurisdic- tional" dispute within the Executive Branch which he analogizes to a dispute between two congressional com- mittees. Since the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case, Confiscation Cases, 7 Wall. 454 (1869); United States v. Cox, 342 F. 2d 167, 171 (CA5), cert. denied sub nom. Cox v. Hauberg, 381 U. S. 935 (1965), it is contended that a President's decision is final in deter- mining what evidence is to be used in a given criminal case. Although his counsel concedes that the President has delegated certain specific powers to the Special Prose- cuter, he has not "waived nor delegated to the Special Prosecutor the President's duty to claim privilege as to all materials ... which fall within the President's inherent authority to refuse to disclose to any executive officer." Brief for the President 42. The Special Prosecutor's demand for the items therefore presents, in the view of the President's counsel, a political question under Baker v. Carr, 369 U. S. 186 (1962), since it involves a "textually demonstrable" grant of power under Art. II. The mere assertion of a claim of an "intra-branch dispute," without more, has never operated to defeat federal jurisdiction; justiciability does not depend on such a surface inquiry. In United States v. ICC, 337 U. S. 426 (1949), the Court observed, "courts must look behind names that symbolize the parties to determine whether a justiciable case or controversy is presented." Id., at 430. See also Powell v. McCormack, 395 U. S. 486 (1969); ICC v. Jersey City, 322 U. S. 503 (1944); United States ex rel. Chapman v. FPC, 345 U. S. 153 (1953); Secretary of Agriculture v. United States, 347 U. S. 645 (1954); FMB v. Isbrandtsen Co., 356 U. S. 481, 483 n. 2 (1958); United States v. Marine Bancorporation, ante, p. 602; and United States v. Connecticut National Bank, ante, p. 656. OCTOBER TERM, 1973 Opinion of the Court 418 U. S. Our starting point is the nature of the proceeding for which the evidence is sought-here a pending crim- inal prosecution. It is a judicial proceeding in a federal court alleging violation of federal laws and is brought in the name of the United States as sovereign. Berger v. United States, 295 U. S. 78, 88 (1935). Under the authority of Art. II, § 2, Congress has vested in the Attorney General the power to conduct the criminal liti- gation of the United States Government. 28 U. S. C. § 516. It has also vested in him the power to appoint subordinate officers to assist him in the discharge of his duties. 28 U. S. C. §§ 509, 510, 515, 533. Acting pur- suant to those statutes, the Attorney General has dele- gated the authority to represent the United States in these particular matters to a Special Prosecutor with unique authority and tenure.' The regulation gives the 8 The regulation issued by the Attorney General pursuant to his statutory authority, vests in the Special Prosecutor plenary authority to control the course of investigations and litigation related to "all offenses arising out of the 1972 Presidential Election for which the Special Prosecutor deems it necessary and appropriate to assume responsibility, allegations involving the President, members of the White House staff, or Presidential appointees, and any other matters which he consents to have assigned to him by the Attorney General." 38 Fed. Reg. 30739, as amended by 38 Fed. Reg. 32805. In particu- lar, the Special Prosecutor was given full authority, inter alia, "to contest the assertion of 'Executive Privilege' . . . and handl[e] all aspects of any cases within his jurisdiction." Id., at 30739. The regulation then goes on to provide: "In exercising this authority, the Special Prosecutor will have the greatest degree of independence that is consistent with the Attorney General's statutory accountability for all matters falling within the jurisdiction of the Department of Justice. The Attorney General will not countermand or interfere with the Special Prosecutor's de- cisions or actions. The Special Prosecutor will determine whether and to what extent he will inform or consult with the Attorney Gen- eral about the conduct of his duties and responsibilities. In ac- cordance with assurances given by the President to the Attorney UNITED STATES v. NIXON 683 Opinion of the Court at issue is the production or nonproduction of specified evidence deemed by the Special Prosecutor to be rele- vant and admissible in a pending criminal case. It is sought by one official of the Executive Branch within the scope of his express authority; it is resisted by the Chief Executive on the ground of his duty to preserve the confidentiality of the communications of the President. Whatever the correct answer on the merits, these issues are "of a type which are traditionally justiciable." United States v. ICC, 337 U. S., at 430. The independ- ent Special Prosecutor with his asserted need for the subpoenaed material in the underlying criminal prose- cution is opposed by the President with his steadfast assertion of privilege against disclosure of the material. This setting assures there is "that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of diffi- cult constitutional questions." Baker v. Carr, 369 U. S., at 204. Moreover, since the matter is one arising in the regular course of a federal criminal prosecution, it is within the traditional scope of Art. III power. Id., at 198. In light of the uniqueness of the setting in which the conflict arises, the fact that both parties are officers of the Executive Branch cannot be viewed as a barrier to justiciability. It would be inconsistent with the ap- plicable law and regulation, and the unique facts of this case to conclude other than that the Special Prosecutor has standing to bring this action and that a justiciable controversy is presented for decision. III RULE 17 (c) The subpoena duces tecum is challenged on the ground that the Special Prosecutor failed to satisfy the require- ments of Fed. Rule Crim. Proc. 17 (c), which governs OCTOBER TERM, 1973 Opinion of the Court 418 U. S. the issuance of subpoenas duces tecum in federal crim- inal proceedings. If we sustained this challenge, there would be no occasion to reach the claim of privilege asserted with respect to the subpoenaed material. Thus we turn to the question whether the requirements of Rule 17 (c) have been satisfied. See Arkansas Louisiana Gas Co. v. Dept. of Public Utilities, 304 U. S. 61, 64 (1938); Ashwander v. TVA, 297 U. S. 288, 346-347 (1936) (Brandeis, J., concurring). Rule 17 (c) provides: "A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unrea- sonable or oppressive. The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys." A subpoena for documents may be quashed if their pro- duction would be "unreasonable or oppressive," but not otherwise. The leading case in this Court interpreting this standard is Bowman Dairy Co. v. United States, 341 U. S. 214 (1951). This case recognized certain funda- mental characteristics of the subpoena duces tecum in criminal cases: (1) it was not intended to provide a means of discovery for criminal cases, id., at 220; (2) its chief innovation was to expedite the trial by pro- viding a time and place before trial for the inspection of UNITED STATES v. NIXON 683 Opinion of the Court subpoenaed materials," ibid. As both parties agree, cases decided in the wake of Bowman have generally followed Judge Weinfeld's formulation in United States v. lozia, 13 F. R. D. 335, 338 (SDNY 1952), as to the required showing. Under this test, in order to require production prior to trial, the moving party must show: (1) that the documents are evidentiary"l and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due dili- gence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that "The Court quoted a statement of a member of the advisory committee that the purpose of the Rule was to bring documents into court "in advance of the time that they are offered in evidence, so that they may then be inspected in advance, for the purpose ... of enabling the party to see whether he can use [them] or whether he wants to use [them]." 341 U. S., at 220 n. 5. The Manual for Com- plex and Multidistrict Litigation published by the Federal Judicial Center recommends that use of Rule 17 (c) be encouraged in com- plex criminal cases in order that each party may be compelled to produce its documentary evidence well in advance of trial and in ad- vance of the time it is to be offered. P. 150. 2 The District Court found here that it was faced with "the more unusual situation . . . where the subpoena, rather than being di- rected to the government by defendants, issues to what, as a practical matter, is a third party." United States v. Mitchell, 377 F. Supp. 1326, 1330 (DC 1974). The Special Prosecutor suggests that the evidentiary requirement of Bowman Dairy Co. and Iozia does not apply in its full vigor when the subpoena duces tecum is issued to third parties rather than to government prosecutors. Brief for United States 128-129. We need not decide whether a lower standard exists because we are satisfied that the relevance and evidentiary nature of the subpoenaed tapes were sufficiently shown as a preliminary matter to warrant the District Court's refusal to quash the subpoena. OCTOBER TERM, 1973 Opinion df the Court 418 U. S. 371 (DC 1954). Here, however, there are other valid potential evidentiary uses for the same material, and the analysis and possible transcription of the tapes may take a significant period of time. Accordingly, we can- not conclude that the District Court erred in authorizing the issuance of the subpoena duces tecum. Enforcement of a pretrial subpoena duces tecum must necessarily be committed to the sound discretion of the trial court since the necessity for the subpoena most often turns upon a determination of factual issues. Without a determination of arbitrariness or that the trial court find- ing was without record support, an appellate court will not ordinarily disturb a finding that the applicant for a subpoena complied with Rule 17 (c). See, e. g., Sue v. Chicago Transit Authority, 279 F. 2d 416, 419 (CA7 1960); Shotkin v. Nelson, 146 F. 2d 402 (CA10 1944). In a case such as this, however, where a subpoena is directed to a President of the United States, appellate re- view, in deference to a coordinate branch of Government, should be particularly meticulous to ensure that the standards of Rule 17 (c) have been correctly applied. United States v. Burr, 25 F. Cas. 30, 34 (No. 14,692d) (CC Va. 1807). From our examination of the materials sub- mitted by the Special Prosecutor to the District Court in support of his motion for the subpoena, we are persuaded that the District Court's denial of the President's motion to quash the subpoena was consistent with Rule 17 (c). We also conclude that the Special Prosecutor has made a sufficient showing to justify a subpoena for production before trial. The subpoenaed materials are not available from any other source, and their examination and process- ing should not await trial in the circumstances shown. Bowman Dairy Co. v. United States, 341 U. S. 214 (1951); United States v. lozia, 13 F. R. D. 335 (SDNY 1952). UNITED STATES v. NIXON 683 Opinion of the Court IV THE CLAIM OF PRIVILEGE A Having determined that the requirements of Rule 17 (c) were satisfied, we turn to the claim that the sub- poena should be quashed because it demands "confidential conversations between a President and his close advisors that it would be inconsistent with the public interest to produce." App. 48a. The first contention is a broad claim that the separation of powers doctrine precludes judicial review of a President's claim of privilege. The second contention is that if he does not prevail on the claim of absolute privilege, the court should hold as a matter of constitutional law that the privilege prevails over the subpoena duces tecum. In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others. The President's counsel, as we have noted, reads the Constitu- tion as providing an absolute privilege of confidentiality for all Presidential communications. Many decisions of this Court, however, have unequivocally reaffirmed the holding of Marbury v. Madison, 1 Cranch 137 (1803), that "[i]t is emphatically the province and duty of the judicial department to say what the law is." Id., at 177. No holding of the Court has defined the scope of judi- cial power specifically relating to the enforcement of a subpoena for confidential Presidential communications for use in a criminal prosecution, but other exercises of power by the Executive Branch and the Legislative Branch have been found invalid as in conflict with the Constitution. Powell v. McCormack, 395 U. S. 486 (1969); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952). In a OCTOBER TERM, 1973 Opinion of the Court 418 U. S. series of cases, the Court interpreted the explicit immu- nity conferred by express provisions of the Constitution on Members of the House and Senate by the Speech or Debate Clause, U. S. Const. Art. I, § 6. Doe v. McMil- lan, 412 U. S. 306 (1973); Gravel v. United States, 408 U. S. 606 (1972); United States v. Brewster, 408 U. S. 501 (1972); United States v. Johnson, 383 U. S. 169 (1966). Since this Court has consistently exercised the power to construe and delineate claims arising under express powers, it must follow that the Court has author- ity to interpret claims with respect to powers alleged to derive from enumerated powers. Our system of government "requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch." Powell v. McCormack, supra, at 549. And in Baker v. Carr, 369 U. S., at 211, the Court stated: "Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been com- mitted, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution." Notwithstanding the deference each branch must accord the others, the "judicial Power of the United States" vested in the federal courts by Art. III, § 1, of the Con- stitution can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto. Any other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite govern- ment. The Federalist, No. 47, p. 313 (S. Mittell ed. UNITED STATES v. NIXON 683 Opinion of the Court The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecu- tions would plainly conflict with the function of the courts under Art. III. In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence. "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable gov- ernment. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity." Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S., at 635 (Jackson, J., concurring). To read the Art. II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a gen- eralized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of "a workable government" and gravely impair the role of the courts under Art. III. C Since we conclude that the legitimate needs of the judi- cial process may outweigh Presidential privilege, it is necessary to resolve those competing interests in a man- ner that preserves the essential functions of each branch. The right and indeed the duty to resolve that question does not free the Judiciary from according high respect to the representations made on behalf of the President. United States v. Burr, 25 F. Cas. 187, 190, 191-192 (No. 14,694) (CC Va. 1807). OCTOBER TERM, 1973 Opinion of the Court 418 U. S. The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision- making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is funda- mental to the operation of Government and inextricably rooted in the separation of powers under the Constitu- tion.'7 In Nixon v. Sirica, 159 U. S. App. D. C. 58, 487 F. 2d 700 (1973), the Court of Appeals held that such Presidential communications are "presumptively privileged," id., at 75, 487 F. 2d, at 717, and this position is accepted by both parties in the present litigation. We agree with Mr. Chief Justice Marshall's observation, therefore, that "[i]n no case of this kind would a court be required to proceed against the president as against an ordinary individual." United States v. Burr, 25 F. Cas., at 192. But this presumptive privilege must be considered in light of our historic commitment to the rule of law. This 17 "Freedom of communication vital to fufillment of the aims of wholesome relationships is obtained only by removing the specter of compelled disclosure. . . . [G]overnment . . . needs open but pro- tected channels for the kind of plain talk that is essential to the quality of its functioning." Carl Zeiss Stiftung v. V. B. B. Carl Zeiss, Jena, 40 F. R. D. 318, 325 (DC 1966). See Nixon v. Sirica, 159 U. S. App. D. C. 58, 71, 487 F. 2d 700, 713 (1973); Kaiser Aluminum & Chem. Corp. v. United States, 141 Ct. Cl. 38, 157 F. Supp. 939 (1958) (Reed, J.); The Federalist, No. 64 (S. Mittell ed. 1938). UNITED STATES v. NIXON 683 Opinion of the Court is nowhere more profoundly manifest than in our view that "the twofold aim [of criminal justice] is that guilt shall not escape or innocence suffer." Berger v. United States, 295 U. S., at 88. We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evi- dence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be avail- able for the production of evidence needed either by the prosecution or by the defense. Only recently the Court restated the ancient propo- sition of law, albeit in the context of a grand jury inquiry rather than a trial, "that 'the public . . . has a right to every man's evidence,' except for those persons protected by a constitutional, common-law, or statutory privilege, United States v. Bryan, 339 U. S. [323, 331 (1950) ] ; Blackmer v. United States, 284 U. S. 421, 438 (1932) . . . ." Branzburg v. Hayes, 408 U. S. 665, 688 (1972). The privileges referred to by the Court are designed to protect weighty and legitimate competing interests. Thus, the Fifth Amendment to the Constitution provides that no man "shall be compelled in any criminal case to be a witness against himself." And, generally, an attorney or a priest may not be required to dis- close what has been revealed in professional confidence. These and other interests are recognized in law by privi- OCTOBER TERM, 1973 Opinion of the Court 418 U. S. administration of criminal justice.19 The interest in pre- serving confidentiality is weighty indeed and entitled to great respect. However, we cannot conclude that ad- visers will be moved to temper the candor of their re- marks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution." On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President's acknowledged need for con- 19We are not here concerned with the balance between the President's generalized interest in confidentiality and the need for relevant evidence in civil litigation, nor with that between the con- fidentiality interest and congressional demands for information, nor with the President's interest in preserving state secrets. We address only the conflict between the President's assertion of a generalized privilege of confidentiality and the constitutional need for rele- vant evidence in criminal trials. 2 0 Mr. Justice Cardozo made this point in an analogous context. Speaking for a unanimous Court in Clark v. United States, 289 U. S. 1 (1933), he emphasized the importance of maintaining the secrecy of the deliberations of a petit jury in a criminal case. "Freedom of debate might be stifled and independence of thought checked if jurors were made to feel that their aiguments and ballots were to be freely published to the world." Id., at 13. Nonetheless, the Court also recognized that isolated inroads on confidentiality designed to serve the paramount need of the criminal law would not vitiate the interests served by secrecy: "A juror of integrity and reasonable firmness will not fear to speak his mind if the confidences of debate are barred to the ears of mere impertinence or malice. He will not expect to be shielded against the disclosure of his conduct in the event that there is evidence reflecting upon his honor. The chance that now and then there may be found some timid soul who will take counsel of his fears and give way to their repressive power is too remote and shadowy to shape the course of justice." Id., at 16. UNITED STATES v. NIXON 683 Opinion of the Court fidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular crimi- nal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. The President's broad interest in confiden- tiality of communications will not be vitiated by dis- closure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases. We conclude that when the ground for asserting privi- lege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privi- lege must yield to the demonstrated, specific need for evidence in a pending criminal trial. D We have earlier determined that the District Court did not err in authorizing the issuance of the subpoena. If a President concludes that compliance with a sub- poena would be injurious to the public interest he may properly, as was done here, invoke a claim of privilege on the return of the subpoena. Upon receiving a claim of privilege from the Chief Executive, it became the further duty of the District Court to treat the subpoenaed ma- terial as presumptively privileged and to require the Special Prosecutor to demonstrate that the Presiden- tial material was "essential to the justice of the [pend- ing criminal] case." United States v. Burr, 25 F. Cas., at 192. Here the District Court treated the material as pre- sumptively privileged, proceeded to find that the Special OCTOBER TERM, 1973 Opinion of the Court 418 U. S. Prosecutor had made a sufficient showing to rebut the presumption, and ordered an in camera examination of the subpoenaed material. On the basis of our examina- tion of the record we are unable to conclude that the District Court erred in ordering the inspection. Accord- ingly we affirm the order of the District Court that sub- poenaed materials be transmitted to that court. We now turn to the important question of the District Court's responsibilities in conducting the in camera examination of Presidential materials or communications delivered under the compulsion of the subpoena duces tecum. E Enforcement of the subpoena duces tecum was stayed pending this Court's resolution of the issues raised by the petitions for certiorari. Those issues now having been disposed of, the matter of implementation will rest with the District Court. "[T]he guard, furnished to [the President] to protect him from being harassed by vexa- tious and unnecessary subpoenas, is to be looked for in the conduct of a [district] court after those subpoenas have issued; not in any circumstance which is to precede their being issued." United States v. Burr, 25 F. Cas., at 34. Statements that meet the test of admissibility and rele- vance must be isolated; all other material must be excised. At this stage the District Court is not limited to represen- tations of the Special Prosecutor as to the evidence sought by the subpoena; the material will be available to the District Court. It is elementary that in camera inspec- tion of evidence is always a procedure calling for scru- pulous protection against any release or publication of material not found by the court, at that stage, probably admissible in evidence and relevant to the issues of the trial for which it is sought. That being true of an ordi- nary situation, it is obvious that the District Court has