UNITED STATES, PETITIONER, V. RICHARD M. NIXON, PRESIDENT OF THE UNITED STATES, ET AL.

RICHARD M. NIXON, PRESIDENT OF THE UNITED STATES, PETITIONER, V. UNITED STATES:

Argued July 8, 1974.

Decided July 24, 1974.

Mr. Chief Justice Burger delivered the opinion of the Court.

[1, 2] This litigation presents for review the denial of a motion, filed in the District Court on behalf of the President of the United States, in the case of United States v. Mitchell et al. (D.C. Crim. No. 74- 110), to quash a third-party subpoena duces tecum issued by the United States District Court for the District of Columbia, pursuant to Fed. Rule Crim.Proc. 17(c). The subpoena directed the President to produce certain tape recordings and documents relating to his conversations with aides and advisers. The court rejected the President's claims of absolute executive privilege, of lack of jurisdiction, and of failure to satisfy the requirements of Rule 17(c). The President appealed to the Court of Appeals. We granted both the United States' petition for certiorari before judgment (No. 73-1766), and also the President's cross-petition for certiorari before judgment (No. 73-1834), because of the public importance of the issues presented and the need for their prompt resolution 417 U.S. 927 and 960, 94 S.Ct. 2637 and 3162, 41 L.Ed.2d 231 (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 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 coconspirator. On April 18, 1974, upon motion of the Special 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 President and others. The Special Prosecutor was able to fix the time, place, and persons present at these discussions because the White House daily logs and appointment records had been delivered to him. 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. 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 disclosure of that information were filed or raised orally by counsel for the President.

On May 20, 1974, the District Court denied the motion of quash and the motions to expunge and for protective orders. 377 F.Sup. 1326. It further ordered ''the President or any subordinate officer, official, or employee with custody or control of the documents or 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 character; 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 promulgated by the Attorney General; the court concluded that a justiciable controversy was presented. The second challenge 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 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 chamber . . . '' 377 F.Supp., at 1330. The court held, finally, that the Special Prosecutor had satisfied the requirements of Rule 17(c). The District Court stayed its order pending appellate review of 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 States Court of Appeals for the District of Columbia Circuit. On the same day, the President also filed a petition for writ of mandamus in the Court of Appeals seeking review of the District Court order.

Later on May 24, the Special Prosecutor also filed, in this Court, a petition for a writ of certiorari before judgment. On May 31, the petition was granted with an expedited briefing schedule, 417 U.S. 927, 94 S.Ct. 2637, 41 L.Ed.2d 231. 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, 417 U.S. 960, 94 S.Ct. 3162, 41 L.Ed.2d 1134, and the case was set for argument on July 8, 1974.