AUG23 1971
By MARY C. TUTTLE Deputy Clerk


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Criminal No. 532


On application of defendant, a subpoena was issued to the President of the United States, Richard Milhous Nixon, to appear as a witness in this case on August 25, 1971. On August 23, 1971, President Nixon by and through his attorney, Otis L. Packwood, United States Attorney for the District of Montana, moved this Court to quash said subpoena. This is a memorandum in support of the Motion To Quash.

It is first submitted that the President is not personally and formally subject to the jurisdiction of the Court in this case. It has long been held that the President is not amenable to service of process or subject to the jurisdiction of a Court while acting within his presidential powers. Under the separation of powers doctrine, the President is beyond the reach of judicial discretion in the exercise of any of his executive and discretionary powers, whether constitutional or statutory, political or otherwise. State of Mississippi v. Johnson, 4 wall 475, (1887). As long ago as 1803, the Supreme Court of the United States speaking through Chief Justice Marshal said in Marbury v. Madison, 1 Cranch 137, 146, 2L. Ed. 60, 64: "I declare it to be my opinion, given on a comprehensive view of the subject that the President is not amenable to any Court of judicature for the exercise of his high functions, but is responsible only in the mode pointed out in the Constitution."

This was and is no more or less than an expression by the Court of its view respecting the principle of the separation no more or less than an expression by the Court of it's view respecting the principal of separation of powers of the three branches of the Federal Government, and that one is neither inferior or superior to the other. See also Suskin v. Nixon, 304 F. Supp. 71 (N.D. Ill. - 1969). The language in the above cases refers to instances where the chief executive was attempted to be restrained from the performance of presidential duties. By analogy, the reasoning of these cases that the President is not subject to the jurisdiction of the Court is equally applicable to the situation where the president is attempted to be subpoenaed as a witness. In this vein, the language of the case of Trimble v. Johnson, 173 F. Supp. 651, 653 (D.C. Dist. - 1959), an opinion by the eminent judge and scholar, District Judge Holtzoff is extremely pertinent:

"Similarly, the courts may not enjoin or restrain the President, or compel him by means of a mandatory injunction or a writ of mandamus, to perform some act. It is recognized that he may not be required to respond to a subpoena. In the early years of the Republic an attempt was made to subpoena Thomas Jefferson when he was President, to testify as a witness at the trial of Aaron Burr. Chief Justice Marshall, who presided at the trial ruled that the subpoena should issue, but expressed some doubts as to whether the President's attendance could be compelled. Jefferson took the position that he was not obliged to comply on the theory that it was not consonant with his office as President to do so, and the matter was dropped.

It is no part of the judicial function to supervise or: control the business of the executive or legislative departments of the Government. Otherwise the judiciary, instead of being one of three coordinate branches, would be supreme over the other two. We would then have a government by the courts, instead of by the Congress and the President. Manifestly the Founding Fathers did not contemplate such a result."

Moreover, it is patently obvious that the President has no personal knowledge of the problems and issues in this case. The subpoena in this case is burdensome and oppressive. president Nixon has no relevant relation whatsoever to the charge of defendant violating 50 App. U.S.C. §462.

The cogent reasoning of the District Judge in United States v. Camp. 285 F. Supp. 400 (N.D. Georgia, 1967) is applicable here. In Camp the Court quashed a subpoena duces tecum issued against the Director of the Selective Service. The Court stated on pages 402 and 403:

"However, the court is aware of the announced intention of various other persons through the country to so multiply the amount of selective service litigation and so harass and impede the Selective Service System itself that it will collapse. Considering the number of Selective Service cases on this court's docket alone, it requires little imagination to see the consequences of. opening the door to bringing in any Selective Service official who may have dealt with defendant's case on so little showing as exists: there of the materiality or relevance of his evidence. Selective Service officials and board members (most of them unpaid volunteers) would become professional witnesses, and the draft would in fact collapse. General Hershey, for instance, would be subpoenaed to appear at every selective service trial throughout the United States in the hope that, somehow, something could be extracted to defendant's advantage. The undesirability of the precedent that would be established here weighs heavily in favor of the Government's motion."

On the authority of Camp and Capitol Vending Co. V. Baker, 36 F.R.D. 45 (D.C. Dist. - 1964) another significant decision by District Judge Holtzoff, it is submitted that there is no showing in the instant case that the President has any knowledge of any matters germane to the litigation and that therefore it would be oppressive and vexatious to require him to attend this trial.

For each of the above reasons it is respectfully submitted that the Motion to quash the subpoena issued to Richard Milhous Nixon be granted.

United States Attorney for the
District of Montana

Assistant United States Attorney