Ivan Hoffman, B.A., J.D.

          Sooner or later, this case (418 U.S. 683 (1974)) will likely be front and center in legal matters related to claims against the President of the United States.  The case of course arises out of the Watergate investigation of the early 1970s related to the production of the White House tapes. 

          The Congress, as part of its impeachment proceedings, had subpoenaed these tapes and President Nixon refused to turn them over to the Congress, making a number of claims including that the production of the tapes would violate the “separation of powers” structure of the Constitution and that they were protected by “executive privilege.” (see the discussion about “separation of powers” in “Discovery Of Presidential And Other Parties’ Tax Returns.”) 

          The Court, in a unanimous decision (Justice Rehnquist recused himself and thus did not participate in the decision), ruled against the President on both claims. 

Separation of Powers 

          President Nixon’s claim was that the Supreme Court did not have the power to hear or decide any case involving the executive branch because of the separation of powers.   The claim was that, because the 3 branches of government are all equal, one branch could not interfere with the workings of the other branches.  The Court ruled against the President on that point, citing the legendary case of Marbury vs. Madison, 1 Cranch 137 (1803).  The Supreme Court in that case, which stems from very early in our national history, stated that “it is emphatically the province and duty of the judicial department to say what the law is.” We take this doctrine for granted today but as the nation evolved in its early form, it was not at all clear that the judiciary could make such rulings.  The other choice would have been that each branch was the sole determinate of the validity of its own rules.

          The Court stated:

Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.

Notwithstanding the deference each branch must accord the others, the "judicial Power of the United States" vested in the federal courts by Art. III,  1, of the Constitution can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto. Any other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government. The Federalist, No. 47, p. 313 (S. Mittell ed.[p705] 1938). We therefore reaffirm that it is the province and duty of this Court "to say what the law is" with respect to the claim of privilege presented in this case. Marbury v. Madison, supra at 177. [emphasis added] 

Executive Privilege 

          There is nothing expressly stated in the Constitution about such privilege. 

          The first known incident involving this claimed privilege also came early in our history.  In 1792, just 3 years after the adoption of the Constitution, President Washington was asked to provide to Congress certain information about an expedition against Indian tribes which was a military disaster.   The internal discussion among Washington and his advisors was that the President should provide documents which were deemed good for the public to know but refuse to produce any documents that could be deemed to injure the public. 

          Over the centuries, the doctrine has evolved to include claims of “national security” and “candid conversations,” the latter arising out of the “Communists are Coming!” McCarthy era and was broadened to include administrative agencies and not just the President. 

          In Kaiser Aluminum & Chemical Corp. vs. United States, 157 F.Supp. 939 (1958), the Court of Appeals ruled that determinations of this privilege are within the province of the judicial branch of government.  (see discussion above about Marbury vs. Madison) 

          President Nixon argued that he (and the office of President) had a privilege that protected confidential communications from being discovered.  The President claimed that without such privilege, he could not get full and frank advice if his advisors were concerned that their communications could be open to public scrutiny.   

          Although the Court agreed that, under the Constitution, Presidents do have an executive privilege to prevent intrusion into the inner workings of the Presidency by allowing the President to maintain the secrecy of communications, that privilege, like many other privileges, is not absolute and involves a balancing of the interests of judicial branch of government to provide a full and fair trial on the merits which necessarily involves disclosure of what might otherwise be privileged communications.   

          The Court stated: 

However, neither the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.

          The Court ruled that in the instance of that case, the balance swung in favor of that judiciary’s interest.  What is interesting is that the legal position of the case was whether a judge could hear those tapes in private to make that determination and as such, the Court found that balance in favor of the judiciary.  It might have been a different outcome if the issue was whether those tapes involved a claim of a need to protect military, diplomatic, or sensitive national security secrets, for example. 

         The Court further stated: 

The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Art. III. In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence.


          It is important to remember that the Court ruled as it did because it felt that on balance, the production of the tapes was not protected by the Constitution.   The balance could go the other way.  Balance under the law is a subjective thing and depends on the point of view of the observer.   The Court’s composition today is quite different than it was during Watergate.

Copyright © 2018 Ivan Hoffman.  All Rights Reserved. 

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Ivan Hoffman has been practicing intellectual property law for over 45 years and has written extensively about that topic. (www.ivanhoffman.com). 


This article is not legal advice and is not intended as legal advice.  This article is intended to provide only general, non-specific legal information.  This article is not intended to cover all the issues related to the topic discussed.  You should not rely on this article in any manner whatsoever and you should not draw any conclusions of any sort from this article.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article is based on United States laws but the laws of other countries may be different.  You should consult with an attorney familiar with the issues and the laws of your country.  This article does not create any attorney client relationship and is not a solicitation.




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