ArtII.S3.4.6 Prosecutorial and Grand Jury Access to Presidential Information

Article II, Section 3:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Recognizing that the “public has a right to every man’s evidence,” the Supreme Court has held that the President may be required to testify or produce documents in criminal proceedings when required by the courts.1 This principle dates to the earliest days of the Republic, when Chief Justice John Marshall presided as the Circuit Justice for Virginia over the infamous treason trial of Aaron Burr. In that case, Chief Justice Marshall concluded that President Thomas Jefferson could be subject to a subpoena to provide a document relevant to the trial.2 Specifically, he declared that, in contrast to common law privileges afforded the King of England, the President was not “exempt from the general provisions of the constitution,” like the Sixth Amendment, that provide for compulsory process for the defense.3 Nonetheless, Chief Justice Marshall recognized that while the President could be subject to a criminal subpoena, the President could still withhold specific information from disclosure based on the existence of a privilege.4 In the two centuries since the Burr trial, historical practice by the Executive Branch5 and Supreme Court rulings “unequivocally and emphatically endorsed” Chief Justice Marshall’s position that the President was subject to federal criminal process.6 In 2020, the Court extended the precedent developed in federal criminal proceedings to state criminal proceeding in Trump v. Vance, concluding that the President was not absolutely immune from state criminal subpoenas.7

While the President is subject to criminal process, the question remains as to the limits on that process. The Court has recognized several constraints on the ability of a prosecutor to obtain evidence from the President through the use of a criminal subpoena.8 First, like any citizen, the President can challenge a particular subpoena on the grounds that it was issued in bad faith or was unduly broad.9 Second, the timing and scope of criminal discovery must be informed by the nature of the office of the President—for example, granting deference in scheduling proceedings to avoid significant interference with the President’s official responsibilities.10 Third, the President can raise subpoena-specific constitutional challenges, arguing that compliance with a particular subpoena would significantly interfere with his efforts to carry out an official duty.11 As the Court first recognized in United States v. Nixon, one particularly notable constitutionally based challenge that a President can lodge against a criminal subpoena is a claim of executive privilege in certain presidential communications.12

In Nixon,13 the Court confirmed several fundamental principles of the privilege protecting presidential communications.14 First, Nixon recognized an implied constitutional privilege protecting presidential communications.15 The Court stated that the “privilege of confidentiality of presidential communications” is “fundamental to the operation of Government and inextricably rooted in the separation of powers” and “the supremacy of each branch within its own assigned area of constitutional duties.” 16 The Court held that the Communications Privilege, however, must not be “expansively construed” as it, like other privileges, is “in derogation of the search for truth.” 17

Second, the Court explicitly reaffirmed its role as the “ultimate interpreter of the Constitution” and the privileges emanating from it, noting that it was the Court, and not the President, that must have the final say on the Communications Privilege.18

Third, the Court held that the underlying justification for the Communications Privilege related to the “public interest” in the integrity of presidential decisionmaking.19 “Human experience,” the Court reasoned, “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.” 20 The Court added that there is a

public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.21

As such, the Court held that “[t]he President’s need for complete candor and objectivity from advisers calls for great deference from the courts” and justified a “presumptive privilege for Presidential communications” made in “the exercise of Art. II powers.” 22

Fourth, the Court emphasized that the implied constitutional Privilege was not “absolute” or “unqualified,” at least not when founded upon a “generalized” need for confidentiality in “nonmilitary and nondiplomatic discussions.” 23 Instead, when the Communications Privilege is invoked in response to a judicial subpoena, a “confrontation with other values arise[s]” requiring courts to “resolve those competing interests in a manner that preserves the essential functions of each branch.” 24 The President’s interest, therefore, would need to be balanced against the “fundamental and comprehensive” need to “develop all relevant facts” and evidence in a criminal case.25 In weighing these interests, the Court held the following:

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 functions of the courts.

As a result, the Communications Privilege, when based “only on a generalized interest in confidentiality,” “cannot prevail over the fundamental demands of . . . the fair administration of justice” and therefore “must yield to the demonstrated, specific need for evidence in a pending criminal trial.” 26

Finally, Nixon approved a “staged decisional structure.” If a President determines that “compliance with a subpoena would be injurious to the public interest he may properly . . . invoke a claim of privilege.” 27 Such an invocation creates “presumptive” protections for the subpoenaed material. As a result of these initial protections, a court may only order in camera review when the party has “made a sufficient showing to rebut the presumption.” 28 Once the presumptively privileged material is reviewed in camera, a court may then direct the further disclosure of all “relevant” and “admissible” information.29

The Nixon opinion made two additional points worth noting. First, the Court repeatedly suggested that its analysis may have been different if instead of a generalized interest in the confidentiality of his communications, the President had asserted a claim of “military or diplomatic secrets.” 30 “As to these areas of Art. II duties the courts have traditionally shown the utmost deference to Presidential responsibilities.” 31 Second, the Court explicitly disclaimed any attempt to assess the application of the Communications Privilege in a congressional investigation: “we are not here concerned with the balance between the President’s generalized interest in confidentiality . . . and congressional demands for information.” 32

See Trump v. Vance, No. 19-635, slip op. (U.S. July 9, 2020). back
United States v. Burr, 25 F. Cas. 30, 34 (C.C.D. Va. 1807) (No. 14,692D). back
See id. (observing that while the King is born to power and can “do no wrong,” the President, by contrast is “of the people” and subject to the law). back
United States v. Burr, 25 F. Cas. 187, 192 (C.C.D. Va. 1807) (No. 14,694). back
Vance, No. 19-635, slip op. (discussing historical practices of Presidents Monroe, Grant, Ford, Carter, and Clinton). back
Clinton v. Jones, 520 U.S. 681, 704 (1997) (citing United States v. Nixon, 418 U.S. 683, 706 (1974)). In rejecting separation of powers challenges to claims that the President is immune from federal criminal process, the Court rejected the argument that criminal subpoenas “rise to the level of constitutionally forbidden impairment of the Executive’s ability to perform its constitutionally mandated functions.” Id. at 702–03. back
See Vance, No. 19-635 (rejecting the categorical argument that state criminal subpoenas would unduly distract the President, impose a stigma on the presidency, or result in harassment by state prosecutors). The Vance Court also rejected the argument that a state prosecutor should have to satisfy a heightened standard of need before seeking a sitting President’s records, absent any constitutional privileges. Id . Importantly, in Vance, the state prosecutor was seeking private presidential records, and no claim of executive privilege was at stake. Id. (Kavanaugh, J., concurring in the judgment). The Court refused to extend the heightened-need standard established in Nixon to private records, discussed infra, reasoning that: (1) Burr and its progeny foreclosed that argument; (2) the heightened-need standard was unnecessary to allow the President to fulfill his Article II functions; and (3) the public interest in fair and effective law enforcement favors “comprehensive access to evidence.” Id. (majority opinion). back
See id. back
Id. back
Id. back
Id. back
418 U.S. 683, 708 (1974) back
United States v. Nixon, 418 U.S. 683 (1974). The Nixon opinion, which was before the Court on expedited direct appeal from the district court decision in Mitchell, was issued with some urgency. Noting the “public importance of the issues presented and the need for their prompt resolution,” the Court issued its opinion only sixteen days after oral argument. back
Id. at 706 ( “[N]either 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.” ). back
Id. at 711 ( “Nowhere in the Constitution . . . is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President’s powers, it is constitutionally based.” ). back
Id. at 708, 705. back
Id. at 709–10 ( “These and other interests are recognized in law by privileges against forced disclosure, established in the Constitution, by statute, or at common law. Whatever their origins, these exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.” ). back
Id. at 704. back
Nixon, 418 U.S. at 705. back
Id. at 705. back
Id. at 708. back
Id. at 706. back
Id. at 707. back
Id. back
Nixon, 418 U.S. at 711–12 ( “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.” ). back
Id. at 713. back
Id. back
Id. at 714. back
During that review (at least when the Privilege is asserted in response to a criminal trial subpoena) a court must distinguish between material that is both “probably admissible in evidence and relevant” and that which is not. Id. at 714. The latter material must be “restored to its privileged status” and “accorded that high degree of respect due the President of the United States,” while the former would be provided to the requesting party. Id. at 714–16. back
Id. at 710. back
Id. at 710. back
Id. at 712 n.19. Shortly after the Supreme Court’s opinion in Nixon, the House Judiciary Committee voted to recommend articles of impeachment against President Nixon for obstruction of justice, abuse of power, and contempt of Congress for his refusal to comply with congressional subpoenas. The contempt of Congress allegation was based on the President’s failure to comply with subpoenas issued by the House Judiciary committee as part of its impeachment investigation. H.R. Rep. No. 93–1305, at 4 (1974). On August 9, 1974, before the full House considered the articles of impeachment but after determining that he had lost support in Congress and would not survive impeachment, President Nixon resigned. back