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Nixon v. Sirica

United States Court of Appeals for the District of Columbia Circuit · Constitutional Law

Constitutional LawExecutive PrivilegeSeparation of PowersGrand JuryMandamusexecutive privilegepresidential communicationsgrand jury subpoena

Facts

A grand jury investigating Watergate-related matters issued a subpoena duces tecum to President Nixon for tape recordings of identified meetings and phone calls between the President and his advisers. The President formally refused production, asserting that disclosure of recordings of conversations in which he participated would be inconsistent with the public interest and the constitutional position of the Presidency. The Special Prosecutor then made a particularized showing that each subpoenaed tape was directly relevant to the grand jury's work, including possible conspiracy and perjury, and that the need was well documented and imposing. The district court ordered production of the tapes for in camera inspection to determine whether they were privileged from disclosure to the grand jury.

Issue

Whether the President may, in his sole discretion, withhold from a grand jury relevant evidence in his possession by asserting executive privilege, and whether the district court had authority to order production of the subpoenaed tapes for in camera inspection to determine the privilege claim.

Rule

The President is not absolutely immune from judicial process in these circumstances, and executive privilege over presidential communications is not absolute. Presidential conversations in the performance of official duties are presumptively privileged, but the privilege must yield when a grand jury makes a uniquely powerful and particularized showing that the evidence is directly relevant and critical to its investigation and no effective substitute is available; the court, not the President alone, determines the privilege's applicability, and may use in camera inspection with protective procedures to resolve disputed claims.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

A federal grand jury in Washington, D.C. is investigating possible bribery and perjury involving several senior officials. It subpoenas audio recordings of three specifically identified meetings between the President and advisers. The President refuses production, arguing that any conversation occurring during official duties is absolutely immune from disclosure because presidential confidentiality is constitutionally complete.

How should a court most likely rule on the President's claim?

Explanation. The majority recognized a strong public interest in confidentiality of presidential communications and treated such conversations as presumptively privileged. But it rejected the position that the President may conclusively withhold relevant evidence by mere assertion of an absolute privilege. The court, not the President alone, determines applicability of the privilege, and the privilege may yield in an appropriate case. (Derived from Nixon v. Sirica (n.d.).)