1. U.S. Supreme Court United States v. Nixon
The case that led to the
first resignation of a President
in the history of the U.S.
Decided Juli 24, 1974
Tiziano Zgaga –

2. Historical context of the case: The Watergate Scandal
June 1972, before the federal elections
Candidates: Nixon (Republicans) v. McGovern(Democrats)
Burglars broke into National Committee of the Democrats in the Watergate complex
Nixon’s administration supposed to be involved
Scandal led to the resignation of Nixon
Watergate Complex in Washington, D.C.

3. The U.S. Juridicial System involved in this case
Type of court
Name
supreme court
U.S. Supreme Court
appellate court
U.S. Court of Appeals for the District of Columbia Circuit
local trial court
U.S. District Court

4. U.S. Supreme Court Chief Justice 8 Associate Judges
Appointed by the U.S. President, with the advice and consent of the Senate
U.S. Constitution, Art. III, section 1
“The judicial power of the United States, shall be vested
in one Supreme Court, and in such inferior courts as
the Congress may from time to time ordain and
establish […]”

5. U.S. Constitution, Art. III, section 2
“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or more States;-between a State and Citizens of another State;-between Citizens of different States;-between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. […]”

6. Attorney General the highest judiciary federal official
at the head of the United States Department of Justice
nominated by the President after confirmation by the Senate
represents the US in legal matters and gives advice and opinions to the President

7. Special Prosecutor selected by the Attorney General
investigates and possibly prosecutes a federal government official for wrongdoing in office
but is he really independent from the Executive?

8. U.S. President
veto power over legislation (can be overriden by Congress)
commander-in-chief of the armed forces (but Congress declares war)
power to make treaties/recognize foreign nations (with consent of the Senate)
appoints ambassadors, officers of the U.S., and judges (with Senate confirmation)
issues pardons
informs Congress on the state of the Union and recommends legislation
calls Congress to special sessions

9. What happened?
Special Prosecutor orders Nixon to produce before trail some materials
perhaps evidence that Nixon is involved
Nixon wants to quash the order before the District Court
the District Court refuses and wants the release of the materials
Nixon appeals to the Court of Appeals
Special Prosecutor and Nixon ask the Supreme Court to review the order which is in the Court of Appeals
Supreme Court hears arguments on Juli 8, 1974

10. Subpoena duces tecum
Special Prosecutor wants Nixon to appear before the District Court and produce documents or other tangible evidence for use at hearing or trial (subpoena for the production of evidence)
Regulated by Federal Rules of Criminal Procedure

11. Fed. Rule Crim. Proc. 17(c)
Rule 17. Subpoena c) Producing documents and objects (1) In General. A subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them.

12. Certiorari
A writ or order by which a higher court reviews the decision of a lower court (from Legal Latin, “to wish to be informed”).
In the U.S., also the situation in which a higher court asks a lower court to examine the acts of a process, in order to review the decision of the lower court.
Special Prosecutor and President file a writ of certiorari before judgement to the U.S. Supreme Court.

13. But is this order appealable?
Jurisdiction
Nixon files an appeal to the Court of Appeals against the order of the subpoena
But is this order appealable?

14. 28 United States Code (U.S.C.) § 1291
“The courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States ...”

15. 28 U.S.C. § 1291
“Cases in which the courts of appeals may be reviewed by the Supreme Court by the following methods:
1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgement or decree ...”

16. The Supreme Court states:
inappropriate to require that the District Court makes a contempt citation of the President in order to make an appellate review possible ↓
order for the subpoena should be considered as final
order is appealable

17. Nixon’s claims - 1
Special Prosecutor filed motion for subpoena to the President ↓ dispute Special Prosecutor vs. President is intra-executive no jurisdiction of District Court

18. Supreme Court: versus Nixon 1 - A
mere assertion of an “intra-branch” dispute not sufficient to defeat federal jurisdiction by the District Court United States v. Interstate Commerce Commission (1949) “Courts must look behind names that symbolize the parties to determine whether a justiciable case or controversy is presented.”

19. Supreme Court: versus Nixon 1 - B
President (and Senate) has given to Attorney General the power to conduct criminal litigations of the United States Government
28 U.S.C. § 516. Conduct of litigation reserved to Department of Justice.
“[…] the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General.”

20. Special Prosecutor was given (38 Fed. Reg. 30739):
Attorney General has power to appoint subordinate officers to assist him in his duties ↓
Attorney General has delegated the authority to represent the United States to a Special Prosecutor with his own authority
Special Prosecutor was given (38 Fed. Reg ):
full authority to contest assertation of executive privilege
greatest degree of independence from Attorney General and from the President
Attorney General can amend/revoke regulation defining the authority of the Special Prosecutor
has not done so
Executive is bound by this regulation

21. Special Prosecutor considers Nixon’s materials relevant and wants to have them
Matter is within the traditional scope of Art. III., Section 2, of the U.S. Constitution
“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or more States;-between a State and Citizens of another State;-between Citizens of different States;-between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. […]”

22. Conclusion Supreme Court versus Nixon 1
Special Prosecutor and President both officer of the Executive Branch ↓ no barrier to justiciability

23. Nixon’s claims - 2
Special Prosecutor does not satisfy Fed. Rule Crim. Proc. 17(c) for the subpoena ↓ subpoena must be quashed

24. Characteristics of subpoena duces tecum in criminal cases - I
Bowman Dairy Co. v. United States (1951)
not intended to provide a means of discovery for criminal cases
expedites the trail by providing a time and place before trail for the inspection of subpoenaed materials

25. Characteristics of subpoena duces tecum in criminal cases - II
United States v. Iozia (1952)
documents are evidentiary and relevant
not otherwise procurable reasonable in advance of trail by exercise of due diligence
party cannot properly prepare for trail without such production and inspection in advance of trail; failure to obtain such inspection may tend unreasonably to delay the trail
application is made in good faith

26. Special Prosecutor must consider if the materials of the subpoena are:
relevant ✔
admissible ✔
specific ✔

27. Conclusion Supreme Court versus Nixon 2
Special Prosecutor has made a sufficient showing to justify the subpoena
District Court correctly denied President’s motion to quash the subpoena
District Court did not err in authorizing the issuance of the subpoena

28. Nixon’s claims - 3
materials of the subpoena are confidential conversations between President and close advisors ↓ President claims executive privilege for all his communications no judicial review in case of executive privilege (independence of the Executive Branch)

29. What is Executive Privilege?
Generally
power claimed by the President and other members of the executive branch to resist certain subpoenas and other interventions by the legislative and the judicial branches of government
Specifically (U.S.)
members of the executive branch of government – and especially the President – cannot legally be forced to disclose their confidential communications when such disclosure would adversely affect the operations or procedures of the executive branch

30. Executive Privilege Constitution does not mention it explicitly
Historically considered to derive from the constitutional principle of separation of the three powers (Legislative, Executive, Judiciary)

31. Supreme Court about Executive Privilege - I
The Court must «say what law is» (Marbury v. Madison) also with respect to the claim of privilege
“Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.” (U.S. Supreme Court)

32. Supreme Court about Executive Privilege - II
Executive Privilege can be invoked only when there is a need to protect military, diplomatic or sensitive national security secrets
Nixon did not base claim of Executive Privilege on those categories
President does not have an absolute, unqualified privilege of immunity from judicial process
Judiciary, not the President, is final arbiter of a claim of executive privilege

33. Separation of powers does not operate with absolute independence
Youngstown Sheet & Tube Co. v. Sawyer
“While the Constitution diffuses power the better to secure liberty, it also contemplate that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity."

34. Conclusion Supreme Court versus Nixon 3
general interest in confidentiality of communications is not sufficient ↓ general and constitutional need for evidence in a pending criminal trial must prevail over generalized assertion of privilege by the President

35. production of materials for in camera inspection of the District Court will not damage the interest in confidentiality of Presidential communications ↓ no Executive Privilege in this case

36. President properly invoked a claim of privilege on the return of the subpoena
he thought the materials would be injurious to the public interest
District Court has the duty to treat the subpoenaed material as presumptively privileged and to require the Special Prosecutor to demonstrate that the Presidential material was “essential to the justice of the pending criminal case” (United States v. Burr)
Special Prosecutor has done so

37. The subpoenaed materials
statements that meet the test of admissibility and relevance must be isolated
all other material must be excised
material not found probably admissible in evidence and relevant to the issues of the trial must neither be released nor published

38. Chief Justice Warren E. Burger delivered the opinion of the U. S
Chief Justice Warren E. Burger delivered the opinion of the U.S. Supreme Court
All Members joined in except Mr. Justice Rehnquist, who took no part in the consideration or decision of this case, because he had been an advisor of Nixon

39. The work of the Supreme Court
U.S. courts usually make reference only to U.S. law/precedents
judges deliver their opinions separately, and in case of disagreement decide by majority
literature/doctrine only sporadically quoted, not in a favourable light

40. This case was decided on Juli 24, 1974. Nixon resigned 15 days later
This case was decided on Juli 24, Nixon resigned 15 days later. It was the first and only time in the history of the U.S. that a President resigned.

41. Nixon announces the release of edited transcripts of the Watergate tapes,
April 29, 1974

42. References
Rosenfeld, M. & Sajó A. (2012), The Oxford Handbook of Comparative Constitutional Law. Oxford: Oxford University Press
U.S. Constitution, retrieved October 22, 2013, from
Attorney General, retrieved October 25, 2013, from
The President and the Cabinet, retrieved October 25, 2013, from
Bowman Dairy Co. v. United States U.S. 214 (1951), retrieved October 25, 2013, from

43. United States v. ICC, 337 U.S. 426 (1949), retrieved October 25, 2013, from
United States v. Iozia, 13 F.R.D. 335, 338 (SDNY 1952)
Marbury v. Madison, retrieved October 25, 2013, from
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S., retrieved October 25, 2013, from
United States v. Burr, 25 F.Cas. 187, 190, (No. 14,694) (CC Va. 1807)
Cornell University Law School, retrieved October 25, 2013, from

44. Thank you for your attention