Mr. Chief Justice Burger delivered the opinion of the Court.
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 (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 (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 to quash and the motions to expunge and
for protective orders. 377 F. Supp. 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...
In the District Court, the President's counsel argued that the court lacked jurisdiction to issue the
subpoena because the matter was an intra-branch dispute between a subordinate and superior
officer of the Executive Branch and hence not subject to judicial resolution. That argument has
been renewed in this Court with emphasis on the contention that the dispute does not present a
"case" or "controversy" which can be adjudicated in the federal courts. The President's counsel
argues that the federal courts should not intrude into areas committed to the other branches of
Government. He views the present dispute as essentially a "jurisdictional" dispute within the
Executive Branch which he analogizes to a dispute between two congressional committees. Since
the Executive Branch has exclusive authority and absolute discretion to decide whether to
prosecute a case, Confiscation Cases, 7 Wall. 454 (1869); United States v. Cox,
342 F. 2d 167, 171 (CA5), cert. denied sub nom. Cox v. Hauberg, 381 U.S. 935
(1965), it is contended that a President's decision is final in determining what evidence is to be
used in a given criminal case. Although his counsel concedes that the President has delegated
certain specific powers to the Special Prosecutor the President's duty to claim privilege as to all
materials...which fall within the President's inherent authority to refuse to disclose to any
executive officer." Brief for the President 42. The Special Prosecutor's demand for the items
therefore presents, in the view of the President's counsel, a political question under Baker
v. Carr, 369 U.S. 186 (1962), since it involves a "textually demonstrable" grant of power
under Art. II.
The mere assertion of a claim of an "intra-branch dispute," without more, has never operated to
defeat federal jurisdiction; justiciability does not depend on such a surface inquiry. In United
States v. ICC, 337 U.S. 426 (1949), the Court observed, "courts must look behind
names that symbolize the parties to determine whether a justiciable case or controversy is
presented." Id., at 430. See also Powell v. McCormack, 395 U.S. 486 (1969);
ICC v. Jersey City, 322 U.S. 503 (1944); United States ex rel. Chapman v.
FPC, 345 U.S. 153 (1953); Secretary of Agriculture v. United States, 347
U.S. 645 (1954); FMB v. Isbrandtsen Co., 356 U.S. 481, 483 n. 2 (1958);
United States v. Marine Bancorporation, ante, p. 602; and United States v.
Connecticut National Bank, ante, p. 656.
Our starting point is the nature of the proceeding for which the evidence is sought -- here a
pending criminal prosecution. It is a judicial proceeding in a federal court alleging violation of
federal laws and is brought in the name of the United States as sovereign. Berger v.
United States, 295 U.S. 78, 88 (1935). Under the authority of Art. II, Sec. 2, Congress
has vested in the Attorney General the power to conduct the criminal litigation of the United
States Government. 28 U.S. C. Sec. 516. It has also vested in him the power to appoint
subordinate officers to assist him in the discharge of his duties. 28 U.S. C. Sec. 509, 510, 515,
533. Acting pursuant to those statutes, the Attorney General has delegated the authority to
represent the United States in these particular matters to a Special Prosecutor with unique
authority and tenure. The regulation gives the Special Prosecutor explicit power to contest the
invocation of executive privilege in the process of seeking evidence deemed relevant to the
performance of these specially delegated duties. 38 Fed. Reg. 30739, as amended by 38 Fed. Reg.
32805.
So long as this regulation is extant it has the force of law. In United States ex rel. Accardi
v. Shaughnessy, 347 U.S. 260 (1954), regulations of the Attorney General delegated
certain of his discretionary powers to the Board of Immigration Appeals and required that Board
to exercise its own discretion on appeals in deportation cases. The Court held that so long as the
Attorney General's regulations remained operative, he denied himself the authority to exercise the
discretion delegated to the Board even though the original authority was his and he could reassert
it by amending the regulations. Service v. Dulles, 354 U.S. 363, 388 (1957), and
Vitarelli v. Seaton, 359 U.S. 535 (1959), reaffirmed the basic holding of
Accardi.
Here, as in Accardi, it is theoretically possible for the Attorney General to amend or
revoke the regulation defining the Special Prosecutor's authority. But he has not done so. So long
as this regulation remains in force the Executive Branch is bound by it, and indeed the United
States as the sovereign composed of the three branches is bound to respect and to enforce it.
Moreover, the delegation of authority to the Special Prosecutor in this case is not an ordinary
delegation by the Attorney General to a subordinate officer: with the authorization of the
President, the Acting Attorney General provided in the regulations that the Special Prosecutor
was not to be removed without the "consensus" of eight designated leaders of Congress. N. 8,
supra.
The demands of and the resistance to the subpoena present an obvious controversy in the ordinary
sense, but that alone is not sufficient to meet constitutional standards. In the constitutional sense,
controversy means more than disagreement and conflict; rather it means the kind of controversy
courts traditionally resolve. Here at issue is the production or nonproduction of specified evidence
deemed by the Special Prosecutor to be relevant and admissible in a pending criminal case. It is
sought by one official of the Executive Branch within the scope of his express authority; it is
resisted by the Chief Executive on the ground of his duty to preserve the confidentiality of the
communications of the President. Whatever the correct answer on the merits, these issues are "of
a type which are traditionally justiciable." United States v. ICC, 337 U.S., at 430.
The independent Special Prosecutor with his asserted need for the subpoenaed material in the
underlying criminal prosecution is opposed by the President with his steadfast assertion of
privilege against disclosure of the material. This setting assures there is "that concrete adverseness
which sharpens the presentation of issues upon which the court so largely depends for illumination
of difficult constitutional questions." Baker v. Carr, 369 U.S., at 204. Moreover,
since the matter is one arising in the regular course of a federal criminal prosecution, it is within
the traditional scope of Art. III power. Id., at 198.
In light of the uniqueness of the setting in which the conflict arises, the fact that both parties are
officers of the Executive Branch cannot be viewed as a barrier to justiciability. It would be
inconsistent with the applicable law and regulation, and the unique facts of this case to conclude
other than that the Special Prosecutor has standing to bring this action and that a justiciable
controversy is presented for decision...
....we turn to the claim that the subpoena should be quashed because it demands "confidential
conversations between a President and his close advisors that it would be inconsistent with the
public interest to produce." App. 48a. The first contention is a broad claim that the separation of
powers doctrine precludes judicial review of a President's claim of privilege. The second
contention is that if he does not prevail on the claim of absolute privilege, the court should hold as
a matter of constitutional law the privilege prevails over the subpoena duces tecum.
In the performance of assigned constitutional duties each branch of the Government must initially
interpret the Constitution, and the interpretation of its powers by any branch is due great respect
from the others. The President's counsel, as we have noted, reads the Constitution as providing an
absolute privilege of confidentiality for all Presidential communications. Many decisions of this
Court, however, have unequivocally reaffirmed the holding of Marbury v.
Madison, 1 Cranch 137 (1803), that "[i]t is emphatically the province and duty of the
judicial department to say what the law is." Id., at 177.
No holding of the Court has defined the scope of judicial power specifically relating to the
enforcement of a subpoena for confidential Presidential communications for use in a criminal
prosecution, but other exercises of power by the Executive Branch and the Legislative Branch
have been found invalid as in conflict with the Constitution. Powell v.
McCormack, 395 U.S. 486 (1969); Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579 (1952). In a series of cases, the Court interpreted the explicit
immunity conferred by express provisions of the Constitution on Members of the House and
Senate by the Speech or Debate Clause, U.S. Const. Art. I, S 6. Doe v. McMillan,
412 U.S. 306 (1973); Gravel v. United States, 408 U.S. 606 (1972); United
States v. Brewster, 408 U.S. 501 (1972); United States v. Johnson,
383 U.S. 169 (1966). Since this Court has consistently exercised the power to construe and
delineate claims arising under express powers, it must follow that the Court has authority to
interpret claims with respect to powers alleged to derive from enumerated powers.
Our system of government "requires that federal courts on occasion interpret the Constitution in a
manner at variance with the construction given the document by another branch." Powell
v. McCormack, supra, at 549. And in Baker v. Carr, 369 U.S., at 211, 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, Sec. 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. 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...
In support of his claim of absolute privilege, the President's counsel urges two grounds, one of
which is common to all governments and one of which is peculiar to our system of separation of
powers. The first ground is the valid need for protection of communications between high
Government officials and those who advise and assist them in the performance of their manifold
duties; the importance of this confidentiality is too plain to require further discussion. 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
decision-making process. Whatever the nature of the privilege of confidentiality of Presidential
communications in the exercise of Art. II powers, the privilege can be said to derive from the
supremacy of each branch within its own assigned area of constitutional duties. Certain powers
and privileges flow from the nature of enumerated powers; the protection of the confidentiality of
Presidential communications has similar constitutional underpinnings.
The second ground asserted by the President's counsel in support of the claim of absolute
privilege rests on the doctrine of separation of powers. Here it is argued that the independence of
the Executive Branch within its own sphere, Humphrey's Executor v. United
States, 295 U.S. 602, 629-630 (1935); Kilbourn v. Thompson, 103 U.S. 168,
190-191 (1881), insulates a President from a judicial subpoena in an ongoing criminal
prosecution, and thereby protects confidential Presidential communications.
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 President's need for
complete candor and objectivity from advisers calls for great deference from the courts. However,
when the privilege depends solely on the broad, undifferentiated claim of public interest in the
confidentiality of such conversations, a confrontation with other values arises. Absent a claim of
need to protect military, diplomatic, or sensitive national security secrets, we find 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 obliged to provide.
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.
"While the Constitution diffuses power the better to secure liberty, it also contemplates that
practice will integrate the dispersed powers into a workable government. It enjoins upon its
branches separateness but interdependence, autonomy but reciprocity." Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S., at 635 (Jackson, J., concurring).
To read the Art. II powers of the President as providing an absolute privilege as against a
subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the
public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the
constitutional balance of "a workable government" and gravely impair the role of the courts under
Art. III...
In this case we must weigh 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. The interest in preserving
confidentiality is weighty indeed and entitled to great respect. However, we cannot conclude that
advisers will be moved to temper the candor of their remarks by the infrequent occasions of
disclosure because of the possibility that such conversations will be called for in the context of a
criminal prosecution.
On the other hand, the allowance of the privilege to withhold evidence that is demonstrably
relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely
impair the basic function of the courts. A President's acknowledged need for confidentiality in the
communications of his office is general in nature, whereas the constitutional need for production
of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a
particular criminal case in the administration of justice. Without access to specific facts a criminal
prosecution may be totally frustrated. The President's broad interest in confidentiality of
communications will not be vitiated by disclosure of a limited number of conversations
preliminarily shown to have some bearing on the pending criminal cases.
We conclude that 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 of law in the fair administration of criminal justice.
The generalized assertion of privilege must yield to the demonstrated, specific need for evidence
in a pending criminal trial...
Enforcement of the subpoena duces tecum was stayed pending this Court's resolution of the issues
raised by the petitions for certiorari. Those issues now having been disposed of, the matter of
implementation will rest with the District Court. "[T]he guard, furnished to [the President] to
protect him from being harassed by vexatious and unnecessary subpoenas, it to be looked for in
the conduct of a [district] court after those subpoenas have issued; not in any circumstance which
is to precede their being issued." United States v. Burr, 25 F. Cas., at 34.
Statements that meet the test of admissibility and relevance must be isolated; all other material
must be excised. At this stage the District Court is not limited to representations of the Special
Prosecutor as to the evidence sought by the subpoena; the material will be available to the District
Court. It is elementary that in camera inspection of evidence is always a procedure calling for
scrupulous protection against any release or publication of material not found by the court, at that
stage, probably admissible in evidence and relevant to the issues of the trial for which it is sought.
That being true of an ordinary situation, it is obvious that the District Court has a very heavy
responsibility to see to it that Presidential conversations, which are either not relevant or not
admissible, are accorded that high degree of respect due the President of the United States. Mr.
Chief Justice Marshall, sitting as a trial judge in the Burr case, supra, was extraordinarily
careful to point out that
"[i]n no case of this kind would a court be required to proceed against the president as against an
ordinary individual." 25 F. Cas., at 192.
Marshall's statement cannot be read to man in any sense that a President is above the law, but
relates to the singularly unique role under Art. II of a President's communications and activities,
related to the performance of duties under that Article. Moreover, a President's communications
and activities encompass a vastly wider range of sensitive material than would be true of any
"ordinary individual." It is therefore necessary in the public interest to afford Presidential
confidentiality the greatest protection consistent with the fair administration of justice. The need
for confidentiality even as to idle conversations with associates in which casual reference might be
made concerning political leaders within the country or foreign statesmen is too obvious to call
for further treatment. We have no doubt that the District Judge will at all times accord to
Presidential records that high degree of deference suggested in United States v.
Burr, supra, and will discharge his responsibility to see to it that until released to the
Special Prosecutor no in camera material is revealed to anyone. This burden applies with even
greater force to excised material; once the decision is made to excise, the material is restored to
its privileged status and should be returned under seal to its lawful custodian.
Since this matter came before the Court during the pendency of a criminal prosecution, and on
representations that time is of the essence, the mandate shall issue forthwith.
Affirmed.
Mr. Justice Rehnquist took no part in the consideration or decision of these cases.
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