H. Separation of Powers U.S. v. NIXON 41 L. Ed. 2d 1039 (1974) APPEARANCES OF COUNSEL Leon Jaworski and Philip A. Lacovara argued the cause for the United States. James D. St. Clair argued the cause for the President. OPINION OF THE COURT Mr. Chief Justice Burger delivered the opinion of the Court. This case (No. 73-1766) presents for review the denial of a motion, filed on behalf of the President of the United States, in the case of United States v. Mitchell (DC Crim No. 74-110), tó quash a third party subpoena duces tecum issued by the United States District Court for the District of Columbia, pursuant to Fed Rul 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 or jurisdiction, and of failure to satisfy the requirements of Rule 17(c). The President appealed to the Court of Appeals. We granted the United States' petition for certiorari before judgment, and also the President's responsive cross-petition for certiorari before judgment, because of the public importance of the issued presented and the need for their prompt resolution, --US--, --, 41 L Ed 2d 231, 1134, 94 S Ct, (1974). On March 1, 1974, a grand jury of the United States 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. The 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. -- F Supp (1974). It further ordered "the President or any subordinate officer, official or employee with custody or control of the documents or objects subpoenaed," id., at --, 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, US App DC 487 F2d 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 chambers . . . F Supp, at The court held, finally, that the Special Prosecutor ahd satisfied the requirements of Rule 17 (c). The District Court stayed its order pending appellate review on condition that review was sought before 4 p. m., May 24. The court further privided 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. - US On Later on May 24, the Special Prosecutor also filed, in this Court, a petition for a writ of certiorari before judgment. May 31, the petition was granted with an expedited briefing schedule. 41 L Ed 2d 231, 94 S Ct -- (1974). 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, US (1974), and the case was set for 41 L Ed 2d 1134, 94 S Ct argument on July 8, 1974. I. JURISDICTION The threshold question presented is whether the May 20, 1974, order of the District Court was an appealable order and whether this case was properly "in," 28 USC 1254 [28 USCS 1254], the United States Court of Appeals when the petition for certiorari was filed in this Court. Court of Appeals jurisdiction under 28 USC § 1291 [28 USCS @ 1291] encompasses only "final decisions of the district courts." Since the appeal was timely filed and all other procedural requirements were met, the petition is properly before this Court for consideration if the District Court order was final. 28 USC § 1254(1) [28 USCS § 1254 (1)]; 28 USC § 2101(e) [28 USCS § 2101(e)]. The finality requirement of 28 USC § 1291 [28 USCS § 1291] embodies a strong congressional policy against piecemeal reviews, and against obstructing or impeding an ongoing judicial proceeding by interlocutory appeals. See, e. g., Cobbledick v. United States, 309 US 323, 324-326, 84 L Ed 783, 60 S Ct 540 (1940). This require ment ordinarily promotes judicial efficiency and hastens the ultimate termination of litigation. In applying this principle to an order denying a motion to quash and requiring the production of evidence pursuant to a subpoena duces tecum, it has been repeatedly held that the order is not final and hence not appealable. United States v. Ryan, 402 US 530, 532, 29 L Ed 2d 85, 91 S Ct 1580 (1971); Cobbledick v. United States, 309 US 323, 84 L Ed 783, 60 S Ct 540 (1940): Alexander v. United States, 201 US 117, 50 Ĺ Ed 686, 26 S Ct 356 (1906). This Court has L "consistently held that the necessity for expedition in the produce prior to any review of that order, and resistance to The requirement of submitting to contempt, however, is not without exception and in some instances the purposes underlying the finality rule require a different result. For example, in Perlman v. United States, 247 US 7, 62 L Ed 950, 38 S Ct 417 (1918), a subpoena had been directed to a third party requesting certain exhibits; the appellant, who owned the exhibits, sought to raise a claim of privilege. The Court held an order compelling production was appealable because it was unlikely that the their party would risk a contempt citation in order to allow immediate review of the appellant's claim of privilege. Id., at 12-13, 62 L Ed 950. That case fell within the "limited class of cases where denial of immediate review would render impossible any review whatsoever of an individual's claims." United States v. Ryan, supra, at 533, 29, L Ed 2d 85. Here too the traditional contempt avenue to immediate appeal is peculiarly inappropriate due to the unique setting in which the question arises. To require a President of the United States to place himself in the posture of disobeying an order of a court merely to trigger the procedural mechanism for review of the ruling would be unseemly, and present an unnecessary occasion for constitutional confrontation between two branches of the Government. Similarly, a federal judge should not be placed in the posture of issuing a citation to a President simply in order to invoke review. The issue whether a President can be cited for contempt could itself engender protracted litigation, and would further delay both review on the merits of his claim of privilege and the ultimate termination of the underlying criminal action for which his evidence is sought. These considerations lead us to conlcude that the order of the District Court was an appealable order. The appeal from that order was there fore properly "in" the Court of Appeals, and the case is now properly before this Court on the writ of certiorari before judgment. 28 USC § 1254 [28 USCS § 1254]; 28 USC § 2101(e) [28 USCS § 2101(e)]. Gay v. Ruff, 292 US 25, 30, 78, L. Ed 1099, 54 S Ct 608, 92 ALR 970 (1934). II 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 Well 454, 19 L Ed 196 (1869), United States v. Cox, 342 F2d 167, 171 (CA5), cert denied, 381 US 935, 14 L Ed 2d 700. 85 S Ct 1767 (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 the President has delegated certain specific powers to the Special Prosecutor, he has not "waived nor delegated 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 47. The Special Prosecutor's demand for the items there fore presents, in the view of the President's counsel, a political question under Baker v. Carr, 369 US 186, 7 L Ed 2d 663, 82 S Ct 691 (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 US 426, 93 L Ed 1451, 69 S Ct 1410 (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, 93 L Ed 1451. at 430, 93 L Ed 1451. See also: Powell v. McCormack, 395 US 486, 23 L Ed 2d 491, 89 S Ct 1944 (1969); ICC v. Jersey City, 322 US 503, 88 L Ed 1420, 64 S Ct 1129 (1944); United States ex rel. Chapman v. FPC, 345 US 153, L Ed 918, 73 S Ct 609 (1953); Secretary of Agriculture v. United States, 347 US 645 347 US 645, 98 L Ed 1015, 74 S Ct 826 (1954); FMB v. Isbrandsten Co. 356 US 481, 482 n 2, 2 L Ed 2d 926, 78 S Ct 851 (1958); United States v. Marine Bancorporation, US, 41 L Ed 2d 978, 94 S Ct - (1974), and United States v. Connecticut National Bank, 41 L Ed 2d 1016, 94 S Ct -- (1974). US - 97 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 US 78, 88, 79 L Ed 1314, 55 S Ct 629 (1935). Under the authority of Art II, § 2, Congress has bested in the Attorney General the power to conduct the criminal litigation of the United States Government. 28 USC |