Brief Background:

In 1972, President Richard Nixon, a Republican, was running for re-election against Senator George McGovern, a Democrat. Five months before
the election, an alert security guard found burglars in the Democratic Party headquarters, which was located in Washington's Watergate
apartment complex. Reporters following the story connected the burglars to high-ranking officials in the White House. Nixon denied any
connection to the break-in. However, an independent congressional investigation revealed the existence of audiotapes of the President discussing
the break-in with its organizers.

The Watergate scandal was a major political scandal that occurred in the United States during the early 1970s, following a break-in by 4 Cuban
Americans and 1 American at the Democratic National Committee (DNC) headquarters at the Watergate office complex in Washington, D.C. on
June 17, 1972, and President Richard Nixon’s administration's subsequent attempt to cover up its involvement. After the 5 burglars were caught
and the conspiracy was discovered, Watergate was investigated by the U.S. Congress; meanwhile Nixon's administration resisted its probes, which
led to a constitutional crisis.

The term Watergate, by metonymy, has come to encompass an array of clandestine and often illegal activities undertaken by members of the
Nixon administration. Those activities included such “dirty tricks” as bugging the offices of political opponents and people of whom Nixon or his
officials were suspicious. Nixon and his close aides also ordered investigations of activist groups and political figures, using the Federal Bureau of
Investigation (FBI), the Central Intelligence Agency (CIA), and the Internal Revenue Service (IRS).

The scandal led to the discovery of multiple abuses of power by members of the Nixon administration, an impeachment process against the
president that led to articles of impeachment,[2] and the resignation of Nixon. The scandal also resulted in the indictment of 69 people, with
trials or pleas resulting in 48 being found guilty, many of whom were Nixon’s top administration officials.[3]

The affair began with the arrest of five men for breaking and entering into the DNC headquarters at the Watergate complex on Saturday, June
17, 1972. The FBI investigated and discovered a connection between cash found on the burglars and a slush fund used by the Committee for the
Re-Election of the President (CRP), the official organization of Nixon's campaign.[4][5] In July 1973, evidence mounted against the president’s
staff, including testimony provided by former staff members in an investigation conducted by the Senate Watergate Committee. The investigation
revealed that Nixon had a tape-recording system in his offices and that he had recorded many conversations.[6][7]

After a series of court battles, the U.S. Supreme Court unanimously ruled that the president was obliged to release the tapes to government
investigators (United States v. Nixon). The tapes revealed that Nixon had attempted to cover up activities that took place after the break-in, and
to use federal officials to deflect the investigation.[5][8] Facing virtually certain impeachment in the House of Representatives and equally certain
conviction by the Senate, Nixon resigned the presidency on August 9, 1974, preventing the House from impeaching him.[9][10] On September 8,
1974, his successor, Gerald Ford, pardoned him.

The name “Watergate” and the suffix “-gate” have since become synonymous with political and non-political scandals in the United States, and
some other parts of the world.

Facts

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 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-conspirator.

On April 18, 1974, upon motion of the Special Prosecutor, 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. The subpoena required the production of certain tapes, memoranda, papers,
transcripts, or other writings relating to certain precisely identified meetings between the President and others.

On April 30, the President publicly released edited transcripts of 43 conversations; 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.

On May 20, 1974, the District Court denied the motion to quash and the motions to expunge and for protective orders., it further ordered 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 non justiciable because it was between
the Special Prosecutor and the Chief Executive and hence "intra-executive" in character.

The District Court held that the judiciary, not the President, was the final arbiter of a claim of executive privilege. 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 examination in chambers . . . ."
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. On
May 31, the petition was granted with an expedited briefing schedule. On June 6, the President filed, under seal, a cross-petition for writ of
certiorari before judgment. This cross-petition was granted June 15, 1974, and the case was set for argument on July 8, 1974.

Issue:

Is the President’s Article II constitutional privilege absolute?

Ruling

The President’s executive privilege is not absolute and must bend to Amendment 4 and Amendment 5 requirements of speedy and fair trials and
of the ability of defendants to face their accusers.

Courts are not required to proceed against the President as if the President was any other individual. Courts should review communications
claimed to be privileged in camera (by the judge only in chambers).

The Supreme Court of the United States (“Supreme Court”) had to balance the executive privilege against the rights of citizens to face their
accusers and to have a speedy and fair trial. The Court made the point that the President is not a normal citizen, and therefore should receive
great deference regarding executive claims of privilege. However, executive privilege is not absolute and must be balanced against the right of
the accused in criminal proceedings. The Court took great care to limit its opinion because it was delving into a political dispute between the
President and Congress, something the Supreme Court is loath to do.

Facts of the case

A grand jury returned indictments against seven of President Richard Nixon's closest aides in the Watergate affair. The special prosecutor
appointed by Nixon and the defendants sought audio tapes of conversations recorded by Nixon in the Oval Office. Nixon asserted that he was
immune from the subpoena claiming "executive privilege," which is the right to withhold information from other government branches to
preserve confidential communications within the executive branch or to secure the national interest. Decided together with Nixon v. United
States.

Question

Is the President's right to safeguard certain information, using his "executive privilege" confidentiality power, entirely immune from judicial
review?

Conclusion

No. The Court held that neither the doctrine of separation of powers, nor the generalized need for confidentiality of high-level communications,
without more, can sustain an absolute, unqualified, presidential privilege. The Court granted that there was a limited executive privilege in areas
of military or diplomatic affairs, but gave preference to "the fundamental demands of due process of law in the fair administration of justice."
Therefore, the president must obey the subpoena and produce the tapes and documents. Nixon resigned shortly after the release of the tapes.

Holding: No. When the ground for asserting privilege 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 law in the fair administration of justice. The generalized
assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.

Court's Rationale/Reasoning: The Court has at the very best before this case interpreted the explicit immunity conferred by express provisions
of the Constitution on members of Congress by the Speech and Debate Clause of the Constitution, an express power. Thus, if the Court were to
construe and delineate claims under express powers, then the Court should have the authority to interpret claims with respect to powers alleged
to derive from enumerated powers. President claims (1) valid need for protection of higher authority and those who advise him; and (2) separation
of powers insulates the President from judicial subpoena in an ongoing criminal investigation.

Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the Court finds it difficult to accept the argument
that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such
material for in camera inspection with all the protection that a district court will be obligated to provide. As for separation of powers, they
were not meant to stand by themselves, as there are cases in which the powers co-mingled with one another.

Presidential communication is protected, however when the communication is not of a governmental nature, and there is a public interest in
those communications, then the immunity granted by the Constitution does not exist. This is important to the adversarial system we have in this
country. There must be a full disclosure of all of the facts, within the framework of the rules of evidence. This is essential to the carrying of justice.
Both the 5th amendment (due process) and the 6th amendment (right to face adversaries is part of this carrying of justice.

In applying the balance test, Presidential communications are indeed protected generally, but in the instance of a criminal case, the protection
cannot remain, for it would “cut deep into the guarantee of due process law and gravely impair the basic function of the courts.”
Rule: Balancing test weighs the importance of the general privilege of confidentiality of Presidential communications in performance of the
President's responsibilities against the inroads of such a privilege on the fair administration of criminal justice.

Important Dicta: No court has defined the scope of judicial power specifically related to the enforcement of a subpoena for confidential
Presidential communications for use in a criminal prosecution.