Which of the following constitutional issues was NOT at stake in United States v. Nixon ?
Due process
Executive privilege
Limited government
Separation of powers

Supreme court

United States v. Nixon

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Decision

Cites

418 U.S. 683

United States v. Nixon (No. 73-1766)

Argued: July 8, 1974

Decided: July 24, 1974 [*]

No. 73-1766, 377 F.Supp. 1326, affirmed; No. 73-1834, certiorari dismissed as improvidently granted.

Syllabus

Opinion, Burger

Syllabus

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 production before trial of certain tapes and documents relating to precisely identified conversations and meetings between the President and others. The President, claiming executive privilege, filed a motion to quash the subpoena. The District Court, after treating 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 before 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[p684] 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.

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