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Following indictment alleging violation of
federal statutes by certain staff members of the White House and
political supporters of the President, the Special Prosecutor
filed a motion under Fed. Rule Crim. Proc. 17 (c) for a subpoena
duces tecum for the production before trial of certain tapes and
documents relating to precisely identified conversations and meetings
between the President and others. The President, claiming executive
privilege, filed a motion to quash the subpoena. The District
Court, after treating the subpoenaed material as presumptively
privileged, concluded that the Special Prosecutor had made a sufficient
showing to rebut the presumption and that the requirements of
Rule 17 (c) had been satisfied. The court thereafter issued an
order for an in camera examination of the subpoenaed material,
having rejected the President's contentions (a) that the dispute
between him and the Special Prosecutor was nonjusticiable as an
"intra-executive" conflict and (b) that the judiciary
lacked authority to review the President's assertion of executive
privilege. The court stayed its order pending appellate review,
which the President then sought in the Court of Appeals. The Special
Prosecutor then filed in this Court a petition for a writ of certiorari
before judgment (No. 73-1766) and the President filed a cross-petition
for such a writ challenging the grand-jury action (No. 73-1834).
The Court granted both petitions. Held:
1. The District Court's order was appealable
as a "final" order under 28 U. S. C. § 1291, was
therefore properly "in" the Court of Appeals, 28 U.
S. C. § 1254, when the petition for certiorari before judgment
was filed in this Court, and is now properly before this Court
for review. Although such an order is normally not final and subject
to appeal, an exception is made in a "limited class of cases
where denial of immediate review would render impossible any review
whatsoever of an individual's claims," United States v. Ryan,
402 U.S. 530, 533. Such an exception is proper in the unique circumstances
of this case where it would be inappropriate to subject the President
to the procedure of securing review by resisting the order and
inappropriate to require that the District Court proceed by a
traditional contempt citation in order to provide appellate review.
Pp. 690-692.
2. The dispute between the Special Prosecutor
and the President presents a justiciable controversy. Pp. 692-697.
(a) The mere assertion of an "intra-branch dispute," without more, does not defeat federal jurisdiction. United States v. ICC, 337 U.S. 426. P. 693.
(b) The Attorney General by regulation has conferred upon the Special Prosecutor unique tenure and authority to represent the United States and has given the Special Prosecutor explicit power to contest the invocation of executive privilege in seeking evidence deemed relevant to the performance of his specially delegated duties. While the regulation remains in effect, the Executive Branch is bound by it. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260. Pp. 694-696.
(c) The action of the Special Prosecutor within the scope of his express authority seeking specified evidence preliminarily determined to be relevant and admissible in the pending criminal case, and the President's assertion of privilege in opposition thereto, present issues "of a type which are traditionally justiciable," United States v. ICC, supra, at 430, and the fact that both litigants are officers of the Executive Branch is not a bar to justiciability. Pp. 696-697.
3. From this Court's examination of the material
submitted by the Special Prosecutor in support of his motion for
the subpoena, much of which is under seal, it is clear that the
District Court's denial of the motion to quash comported with
Rule 17 (c) and that the Special Prosecutor has made a sufficient
showing to justify a subpoena for production before trial. Pp.
697-702.
4. Neither the doctrine of separation of powers
nor the generalized need for confidentiality of high-level communications,
without more, can sustain an absolute, unqualified Presidential
privilege of immunity from judicial process under all circumstances.
See, e. g., Marbury v. Madison, 1 Cranch 137, 177; Baker v. Carr,
369 U.S. 186, 211. Absent a claim of need to protect military,
diplomatic, or sensitive national security secrets, the confidentiality
of Presidential communications is not significantly diminished
by producing material for a criminal trial under the protected
conditions of in camera inspection, and any absolute executive
privilege under Art. II of the Constitution would plainly conflict
with the function of the courts under the Constitution. Pp. 703-707.
5. Although the courts will afford the utmost
deference to Presidential acts in the performance of an Art. II
function, United States v. Burr, 25 F. Cas. 187, 190, 191-192
(No. 14,694), when a claim of Presidential privilege as to materials
subpoenaed for use in a criminal trial is based, as it is here,
not on the ground that military or diplomatic secrets are implicated,
but merely on the ground of a generalized interest in confidentiality,
the President's generalized assertion of privilege must yield
to the demonstrated, specific need for evidence in a pending criminal
trial and the fundamental demands of due process of law in the
fair administration of criminal justice. Pp. 707-713.
6. On the basis of this Court's examination
of the record, it cannot be concluded that the District Court
erred in ordering in camera examination of the subpoenaed material,
which shall now forthwith be transmitted to the District Court.
Pp. 713-714.
7. Since a President's communications encompass
a vastly wider range of sensitive material than would be true
of an ordinary individual, the public interest requires that Presidential
confidentiality be afforded the greatest protection consistent
with the fair administration of justice, and the District Court
has a heavy responsibility to ensure that material involving Presidential
conversations irrelevant to or inadmissible in the criminal prosecution
be accorded the high degree of respect due a President and that
such material be returned under seal to its lawful custodian.
Until released to the Special Prosecutor no in camera material
is to be released to anyone. Pp. 714-716.
JUDGES: BURGER, C. J., delivered the opinion
of the Court, in which all Members joined except REHNQUIST, J.,
who took no part in the consideration or decision of the cases.
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), 1
and also the President's cross-petition for certiorari before
judgment (No. 73-1834), 2 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 3
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. 4
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. 5
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, 6
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, 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, 159 U. S. App. D. C. 58, 487 F.2d 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 . . . ."
377 F.Supp., at 1330. The court held, finally, that the Special
Prosecutor had 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
provided 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.
Later on May 24, the Special Prosecutor also
filed, in this Court, a petition for a writ of certiorari before
judgment. On May 31, the petition was granted with an expedited
briefing schedule. 417 U.S. 927. 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, 417 U.S. 960, and
the case was set for 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" the Court
of Appeals when the petition for certiorari was filed in this
Court. 28 U. S. C. § 1254. The Court of Appeals' jurisdiction
under 28 U. S. C. § 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 U. S. C. §§ 1254 (1), 2101 (e).
The finality requirement of 28 U. S. C. §
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 U.S. 323, 324-326 (1940). This requirement
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 U.S. 530, 532 (1971); Cobbledick v. United States,
supra; Alexander v. United States, 201 U.S. 117 (1906). This Court
has
"consistently held that the necessity
for expedition in the administration of the criminal law justifies
putting one who seeks to resist the production of desired information
to a choice between compliance with a trial court's order to produce
prior to any review of that order, and resistance to that order
with the concomitant possibility of an adjudication of contempt
if his claims are rejected on appeal." United States v. Ryan,
supra, at 533.
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 U.S. 7 (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 third party would risk a contempt
citation in order to allow immediate review of the appellant's
claim of privilege. Id., at 12-13. 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.
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 would 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 conclude that the order of the District Court was an
appealable order. The appeal from that order was therefore properly
"in" the Court of Appeals, and the case is now properly
before this Court on the writ of certiorari before judgment. 28
U. S. C. § 1254; 28 U. S. C. § 2101 (e). Gay v. Ruff,
292 U.S. 25, 30 (1934). 7
II
JUSTICIABILITY
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, 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 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, § 2, Congress has vested
in the Attorney General the power to conduct the criminal litigation
of the United States Government. 28 U. S. C. § 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. §§
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. 8 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. 9 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. 10
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 regulation 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.
III
RULE 17 (c)
The subpoena duces tecum is challenged on the
ground that the Special Prosecutor failed to satisfy the requirements
of Fed. Rule Crim. Proc. 17 (c), which governs the issuance of
subpoenas duces tecum in federal criminal proceedings. If we sustained
this challenge, there would be no occasion to reach the claim
of privilege asserted with respect to the subpoenaed material.
Thus we turn to the question whether the requirements of Rule
17 (c) have been satisfied. See Arkansas Louisiana Gas Co. v.
Dept. of Public Utilities, 304 U.S. 61, 64 (1938); Ashwander v.
TVA, 297 U.S. 288, 346-347 (1936) (Brandeis, J., concurring).
Rule 17 (c) provides:
"A subpoena may also command the person
to whom it is directed to produce the books, papers, documents
or other objects designated therein. The court on motion made
promptly may quash or modify the subpoena if compliance would
be unreasonable or oppressive. The court may direct that books,
papers, documents or objects designated in the subpoena be produced
before the court at a time prior to the trial or prior to the
time when they are to be offered in evidence and may upon their
production permit the books, papers, documents or objects or portions
thereof to be inspected by the parties and their attorneys."
A subpoena for documents may be quashed if
their production would be "unreasonable or oppressive,"
but not otherwise. The leading case in this Court interpreting
this standard is Bowman Dairy Co. v. United States, 341 U.S. 214
(1951). This case recognized certain fundamental characteristics
of the subpoena duces tecum in criminal cases: (1) it was not
intended to provide a means of discovery for criminal cases, id.,
at 220; (2) its chief innovation was to expedite the trial by
providing a time and place before trial for the inspection of
subpoenaed materials, 11
ibid. As both parties agree, cases decided in the wake of Bowman
have generally followed Judge Weinfeld's formulation in United
States v. Iozia, 13 F.R.D. 335, 338 (SDNY 1952), as to the required
showing. Under this test, in order to require production prior
to trial, the moving party must show: (1) that the documents are
evidentiary 12 and relevant;
(2) that they are not otherwise procurable reasonably in advance
of trial by exercise of due diligence; (3) that the party cannot
properly prepare for trial without such production and inspection
in advance of trial and that the failure to obtain such inspection
may tend unreasonably to delay the trial; and (4) that the application
is made in good faith and is not intended as a general "fishing
expedition."
Against this background, the Special Prosecutor,
in order to carry his burden, must clear three hurdles: (1) relevancy;
(2) admissibility; (3) specificity. Our own review of the record
necessarily affords a less comprehensive view of the total situation
than was available to the trial judge and we are unwilling to
conclude that the District Court erred in the evaluation of the
Special Prosecutor's showing under Rule 17 (c). Our conclusion
is based on the record before us, much of which is under seal.
Of course, the contents of the subpoenaed tapes could not at that
stage be described fully by the Special Prosecutor, but there
was a sufficient likelihood that each of the tapes contains conversations
relevant to the offenses charged in the indictment. United States
v. Gross, 24 F.R.D. 138 (SDNY 1959). With respect to many of the
tapes, the Special Prosecutor offered the sworn testimony or statements
of one or more of the participants in the conversations as to
what was said at the time. As for the remainder of the tapes,
the identity of the participants and the time and place of the
conversations, taken in their total context, permit a rational
inference that at least part of the conversations relate to the
offenses charged in the indictment.
We also conclude there was a sufficient preliminary
showing that each of the subpoenaed tapes contains evidence admissible
with respect to the offenses charged in the indictment. The most
cogent objection to the admissibility of the taped conversations
here at issue is that they are a collection of out-of-court statements
by declarants who will not be subject to cross-examination and
that the statements are therefore inadmissible hearsay. Here,
however, most of the tapes apparently contain conversations to
which one or more of the defendants named in the indictment were
party. The hearsay rule does not automatically bar all out-of-court
statements by a defendant in a criminal case. 13
Declarations by one defendant may also be admissible against other
defendants upon a sufficient showing, by independent evidence,
14 of a conspiracy among
one or more other defendants and the declarant and if the declarations
at issue were in furtherance of that conspiracy. The same is true
of declarations of coconspirators who are not defendants in the
case on trial. Dutton v. Evans, 400 U.S. 74, 81 (1970). Recorded
conversations may also be admissible for the limited purpose of
impeaching the credibility of any defendant who testifies or any
other coconspirator who testifies. Generally, the need for evidence
to impeach witnesses is insufficient to require its production
in advance of trial. See, e. g., United States v. Carter, 15 F.R.D.
367, 371 (DC 1954). Here, however, there are other valid potential
evidentiary uses for the same material, and the analysis and possible
transcription of the tapes may take a significant period of time.
Accordingly, we cannot conclude that the District Court erred
in authorizing the issuance of the subpoena duces tecum.
Enforcement of a pretrial subpoena duces tecum
must necessarily be committed to the sound discretion of the trial
court since the necessity for the subpoena most often turns upon
a determination of factual issues. Without a determination of
arbitrariness or that the trial court finding was without record
support, an appellate court will not ordinarily disturb a finding
that the applicant for a subpoena complied with Rule 17 (c). See,
e. g., Sue v. Chicago Transit Authority, 279 F.2d 416, 419 (CA7
1960); Shotkin v. Nelson, 146 F.2d 402 (CA10 1944).
In a case such as this, however, where a subpoena
is directed to a President of the United States, appellate review,
in deference to a coordinate branch of Government, should be particularly
meticulous to ensure that the standards of Rule 17 (c) have been
correctly applied. United States v. Burr, 25 F. Cas. 30, 34 (No.
14,692d) (CC Va. 1807). From our examination of the materials
submitted by the Special Prosecutor to the District Court in support
of his motion for the subpoena, we are persuaded that the District
Court's denial of the President's motion to quash the subpoena
was consistent with Rule 17 (c). We also conclude that the Special
Prosecutor has made a sufficient showing to justify a subpoena
for production before trial. The subpoenaed materials are not
available from any other source, and their examination and processing
should not await trial in the circumstances shown. Bowman Dairy
Co. v. United States, 341 U.S. 214 (1951); United States v. Iozia,
13 F.R.D. 335 (SDNY 1952).
IV
THE CLAIM OF PRIVILEGE
A
Having determined that the requirements of
Rule 17 (c) were satisfied, 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 that 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 "[it]
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, § 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, § 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.
B
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 decisionmaking process.
15 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; 16
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.
C
Since we conclude that the legitimate needs
of the judicial process may outweigh Presidential privilege, it
is necessary to resolve those competing interests in a manner
that preserves the essential functions of each branch. The right
and indeed the duty to resolve that question does not free the
Judiciary from according high respect to the representations made
on behalf of the President. United States v. Burr, 25 F. Cas.
187, 190, 191-192 (No. 14,694) (CC Va. 1807).
The expectation of a President to the confidentiality
of his conversations and correspondence, like the claim of confidentiality
of judicial deliberations, for example, has all the values to
which we accord deference for the privacy of all citizens and,
added to those values, is the necessity for protection of the
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. These are
the considerations justifying a presumptive privilege for Presidential
communications. The privilege is fundamental to the operation
of Government and inextricably rooted in the separation of powers
under the Constitution. 17
In Nixon v. Sirica, 159 U. S. App. D. C. 58, 487 F.2d 700 (1973),
the Court of Appeals held that such Presidential communications
are "presumptively privileged," id., at 75, 487 F.2d,
at 717, and this position is accepted by both parties in the present
litigation. We agree with Mr. Chief Justice Marshall's observation,
therefore, that "[in] no case of this kind would a court
be required to proceed against the president as against an ordinary
individual." United States v. Burr, 25 F. Cas., at 192.
But this presumptive privilege must be considered
in light of our historic commitment to the rule of law. This is
nowhere more profoundly manifest than in our view that "the
twofold aim [of criminal justice] is that guilt shall not escape
or innocence suffer." Berger v. United States, 295 U.S.,
at 88. We have elected to employ an adversary system of criminal
justice in which the parties contest all issues before a court
of law. The need to develop all relevant facts in the adversary
system is both fundamental and comprehensive. The ends of criminal
justice would be defeated if judgments were to be founded on a
partial or speculative presentation of the facts. The very integrity
of the judicial system and public confidence in the system depend
on full disclosure of all the facts, within the framework of the
rules of evidence. To ensure that justice is done, it is imperative
to the function of courts that compulsory process be available
for the production of evidence needed either by the prosecution
or by the defense.
Only recently the Court restated the ancient
proposition of law, albeit in the context of a grand jury inquiry
rather than a trial,
"that 'the public . . . has a right to
every man's evidence,' except for those persons protected by a
constitutional, common-law, or statutory privilege, United States
v. Bryan, 339 U.S. [323, 331 (1950)]; Blackmer v. United States,
284 U.S. 421, 438 (1932) . . . ." Branzburg v. Hayes, 408
U.S. 665, 688 (1972).
The privileges referred to by the Court are
designed to protect weighty and legitimate competing interests.
Thus, the Fifth Amendment to the Constitution provides that no
man "shall be compelled in any criminal case to be a witness
against himself." And, generally, an attorney or a priest
may not be required to disclose what has been revealed in professional
confidence. 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. 18
In this case the President challenges a subpoena
served on him as a third party requiring the production of materials
for use in a criminal prosecution; he does so on the claim that
he has a privilege against disclosure of confidential communications.
He does not place his claim of privilege on the ground they are
military or diplomatic secrets. As to these areas of Art. II duties
the courts have traditionally shown the utmost deference to Presidential
responsibilities. In C. & S. Air Lines v. Waterman S. S. Corp.,
333 U.S. 103, 111 (1948), dealing with Presidential authority
involving foreign policy considerations, the Court said:
"The President, both as Commander-in-Chief
and as the Nation's organ for foreign affairs, has available intelligence
services whose reports are not and ought not to be published to
the world. It would be intolerable that courts, without the relevant
information, should review and perhaps nullify actions of the
Executive taken on information properly held secret."
In United States v. Reynolds, 345 U.S. 1 (1953),
dealing with a claimant's demand for evidence in a Tort Claims
Act case against the Government, the Court said:
"It may be possible to satisfy the court,
from all the circumstances of the case, that there is a reasonable
danger that compulsion of the evidence will expose military matters
which, in the interest of national security, should not be divulged.
When this is the case, the occasion for the privilege is appropriate,
and the court should not jeopardize the security which the privilege
is meant to protect by insisting upon an examination of the evidence,
even by the judge alone, in chambers." Id., at 10.
No case of the Court, however, has extended
this high degree of deference to a President's generalized interest
in confidentiality. Nowhere in the Constitution, as we have noted
earlier, 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.
The right to the production of all evidence
at a criminal trial similarly has constitutional dimensions. The
Sixth Amendment explicitly confers upon every defendant in a criminal
trial the right "to be confronted with the witnesses against
him" and "to have compulsory process for obtaining witnesses
in his favor." Moreover, the Fifth Amendment also guarantees
that no person shall be deprived of liberty without due process
of law. It is the manifest duty of the courts to vindicate those
guarantees, and to accomplish that it is essential that all relevant
and admissible evidence be produced.
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. 19 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. 20
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.
D
We have earlier determined that the District
Court did not err in authorizing the issuance of the subpoena.
If a President concludes that compliance with a subpoena would
be injurious to the public interest he may properly, as was done
here, invoke a claim of privilege on the return of the subpoena.
Upon receiving a claim of privilege from the Chief Executive,
it became the further duty of the District Court to treat the
subpoenaed material as presumptively privileged and to require
the Special Prosecutor to demonstrate that the Presidential material
was "essential to the justice of the [pending criminal] case."
United States v. Burr, 25 F. Cas., at 192. Here the District Court
treated the material as presumptively privileged, proceeded to
find that the Special Prosecutor had made a sufficient showing
to rebut the presumption, and ordered an in camera examination
of the subpoenaed material. On the basis of our examination of
the record we are unable to conclude that the District Court erred
in ordering the inspection. Accordingly we affirm the order of
the District Court that subpoenaed materials be transmitted to
that court. We now turn to the important question of the District
Court's responsibilities in conducting the in camera examination
of Presidential materials or communications delivered under the
compulsion of the subpoena duces tecum.
E
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.
"[The] guard, furnished to [the President] to protect him
from being harassed by vexatious and unnecessary subpoenas, is
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
"[in] 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 mean
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 21 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.
---- Begin EndNotes ----
1 See 28
U. S. C. §§ 1254 (1) and 2101 (e) and our Rule 20. See,
e. g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579
(1952); United States v. United Mine Workers, 330 U.S. 258 (1947);
Carter v. Carter Coal Co, 298 U.S. 238 (1936); Rickert Rice Mills
v. Fontenot, 297 U.S. 110 (1936); Railroad Retirement Board v.
Alton R. Co., 295 U.S. 330 (1935); Norman v. Baltimore & Ohio
R. Co, 294 U.S. 240 (1935).
2 The cross-petition
in No. 73-1834 raised the issue whether the grand jury acted within
its authority in naming the President as an unindicted coconspirator.
Since we find resolution of this issue unnecessary to resolution
of the question whether the claim of privilege is to prevail,
the cross-petition for certiorari is dismissed as improvidently
granted and the remainder of this opinion is concerned with the
issues raised in No. 73-1766. On June 19, 1974, the President's
counsel moved for disclosure and transmittal to this Court of
all evidence presented to the grand jury relating to its action
in naming the President as an unindicted coconspirator. Action
on this motion was deferred pending oral argument of the case
and is now denied.
3 The seven
defendants were John N. Mitchell, H. R. Haldeman, John D. Ehrlichman,
Charles W. Colson, Robert C. Mardian, Kenneth W. Parkinson, and
Gordon Strachan. Each had occupied either a position of responsibility
on the White House staff or a position with the Committee for
the Re-election of the President. Colson entered a guilty plea
on another charge and is no longer a defendant.
4 The President
entered a special appearance in the District Court on June 6 and
requested that court to lift its protective order regarding the
naming of certain individuals as coconspirators and to any additional
extent deemed appropriate by the Court. This motion of the President
was based on the ground that the disclosures to the news media
made the reasons for continuance of the protective order no longer
meaningful. On June 7, the District Court removed its protective
order and, on June 10, counsel for both parties jointly moved
this Court to unseal those parts of the record which related to
the action of the grand jury regarding the President. After receiving
a statement in opposition from the defendants, this Court denied
that motion on June 15, 1974, except for the grand jury's immediate
finding relating to the status of the President as an unindicted
coconspirator. 417 U.S. 960.
5 The specific
meetings and conversations are enumerated in a schedule attached
to the subpoena. App. 42a-46a.
6 At the
joint suggestion of the Special Prosecutor and counsel for the
President, and with the approval of counsel for the defendants,
further proceedings in the District Court were held in camera.
7 The parties
have suggested that this Court has jurisdiction on other grounds.
In view of our conclusion that there is jurisdiction under 28
U. S. C. § 1254 (1) because the District Court's order was
appealable, we need not decide whether other jurisdictional vehicles
are available.
8 The regulation
issued by the Attorney General pursuant to his statutory authority,
vests in the Special Prosecutor plenary authority to control the
course of investigations and litigation related to "all offenses
arising out of the 1972 Presidential Election for which the Special
Prosecutor deems it necessary and appropriate to assume responsibility,
allegations involving the President, members of the White House
staff, or Presidential appointees, and any other matters which
he consents to have assigned to him by the Attorney General."
38 Fed. Reg. 30739, as amended by 38 Fed. Reg. 32805. In particular,
the Special Prosecutor was given full authority, inter alia, "to
contest the assertion of 'Executive Privilege' . . . and [handle]
all aspects of any cases within his jurisdiction." Id., at
30739. The regulation then goes on to provide:
"In exercising this authority, the Special
Prosecutor will have the greatest degree of independence that
is consistent with the Attorney General's statutory accountability
for all matters falling within the jurisdiction of the Department
of Justice. The Attorney General will not countermand or interfere
with the Special Prosecutor's decisions or actions. The Special
Prosecutor will determine whether and to what extent he will inform
or consult with the Attorney General about the conduct of his
duties and responsibilities. In accordance with assurances given
by the President to the Attorney General that the President will
not exercise his Constitutional powers to effect the discharge
of the Special Prosecutor or to limit the independence that he
is hereby given, the Special Prosecutor will not be removed from
his duties except for extraordinary improprieties on his part
and without the President's first consulting the Majority and
the Minority Leaders and Chairmen and ranking Minority Members
of the Judiciary Committees of the Senate and House of Representatives
and ascertaining that their consensus is in accord with his proposed
action."
9 That this
was the understanding of Acting Attorney General Robert Bork,
the author of the regulation establishing the independence of
the Special Prosecutor, is shown by his testimony before the Senate
Judiciary Committee:
"Although it is anticipated that Mr. Jaworski
will receive cooperation from the White House in getting any evidence
he feels he needs to conduct investigations and prosecutions,
it is clear and understood on all sides that he has the power
to use judicial processes to pursue evidence if disagreement should
develop."
Hearings on the Special Prosecutor before the
Senate Committee on the Judiciary, 93d Cong., 1st Sess., pt. 2,
p. 450 (1973). Acting Attorney General Bork gave similar assurances
to the House Subcommittee on Criminal Justice. Hearings on H.
J. Res. 784 and H. R. 10937 before the Subcommittee on Criminal
Justice of the House Committee on the Judiciary, 93d Cong., 1st
Sess., 266 (1973). At his confirmation hearings, Attorney General
William Saxbe testified that he shared Acting Attorney General
Bork's views concerning the Special Prosecutor's authority to
test any claim of executive privilege in the courts. Hearings
on the Nomination of William B. Saxbe to be Attorney General before
the Senate Committee on the Judiciary, 93d Cong., 1st Sess., 9
(1973).
10 At
his confirmation hearings, Attorney General William Saxbe testified
that he agreed with the regulation adopted by Acting Attorney
General Bork and would not remove the Special Prosecutor except
for "gross impropriety." Id., at 5-6, 8-10. There is
no contention here that the Special Prosecutor is guilty of any
such impropriety.
11 The
Court quoted a statement of a member of the advisory committee
that the purpose of the Rule was to bring documents into court
"in advance of the time that they are offered in evidence,
so that they may then be inspected in advance, for the purpose
. . . of enabling the party to see whether he can use [them] or
whether he wants to use [them]." 341 U.S., at 220 n. 5. The
Manual for Complex and Multidistrict Litigation published by the
Federal Judicial Center recommends that use of Rule 17 (c) be
encouraged in complex criminal cases in order that each party
may be compelled to produce its documentary evidence well in advance
of trial and in advance of the time it is to be offered. P. 150.
12 The
District Court found here that it was faced with "the more
unusual situation . . . where the subpoena, rather than being
directed to the government by defendants, issues to what, as a
practical matter, is a third party." United States v. Mitchell,
377 F.Supp. 1326, 1330 (DC 1974). The Special Prosecutor suggests
that the evidentiary requirement of Bowman Dairy Co. and Iozia
does not apply in its full vigor when the subpoena duces tecum
is issued to third parties rather than to government prosecutors.
Brief for United States 128-129. We need not decide whether a
lower standard exists because we are satisfied that the relevance
and evidentiary nature of the subpoenaed tapes were sufficiently
shown as a preliminary matter to warrant the District Court's
refusal to quash the subpoena.
13 Such
statements are declarations by a party defendant that "would
surmount all objections based on the hearsay rule . . ."
and, at least as to the declarant himself, "would be admissible
for whatever inferences" might be reasonably drawn. United
States v. Matlock, 415 U.S. 164, 172 (1974). On Lee v. United
States, 343 U.S. 747, 757 (1952). See also C. McCormick, Evidence
§ 270, pp. 651-652 (2d ed. 1972).
14 As
a preliminary matter, there must be substantial, independent evidence
of the conspiracy, at least enough to take the question to the
jury. United States v. Vaught, 485 F.2d 320, 323 (CA4 1973); United
States v. Hoffa, 349 F.2d 20, 41-42 (CA6 1965), aff'd on other
grounds, 385 U.S. 293 (1966); United States v. Santos, 385 F.2d
43, 45 (CA7 1967), cert. denied, 390 U.S. 954 (1968); United States
v. Morton, 483 F.2d 573, 576 (CA8 1973); United States v. Spanos,
462 F.2d 1012, 1014 (CA9 1972); Carbo v. United States, 314 F.2d
718, 737 (CA9 1963), cert. denied, 377 U.S. 953 (1964). Whether
the standard has been satisfied is a question of admissibility
of evidence to be decided by the trial judge.
15 There
is nothing novel about governmental confidentiality. The meetings
of the Constitutional Convention in 1787 were conducted in complete
privacy. 1 M. Farrand, The Records of the Federal Convention of
1787, pp. xi-xxv (1911). Moreover, all records of those meetings
were sealed for more than 30 years after the Convention. See 3
Stat. 475, 15th Cong., 1st Sess., Res. 8 (1818). Most of the Framers
acknowledged that without secrecy no constitution of the kind
that was developed could have been written. C. Warren, The Making
of the Constitution 134-139 (1937).
16 The
Special Prosecutor argues that there is no provision in the Constitution
for a Presidential privilege as to the President's communications
corresponding to the privilege of Members of Congress under the
Speech or Debate Clause. But the silence of the Constitution on
this score is not dispositive. "The rule of constitutional
interpretation announced in McCulloch v. Maryland, 4 Wheat. 316,
that that which was reasonably appropriate and relevant to the
exercise of a granted power was to be considered as accompanying
the grant, has been so universally applied that it suffices merely
to state it." Marshall v. Gordon, 243 U.S. 521, 537 (1917).
17 "Freedom
of communication vital to fulfillment of the aims of wholesome
relationships is obtained only by removing the specter of compelled
disclosure. . . . [Government] . . . needs open but protected
channels for the kind of plain talk that is essential to the quality
of its functioning." Carl Zeiss Stiftung v. V. E. B. Carl
Zeiss, Jena, 40 F.R.D. 318, 325 (DC 1966). See Nixon v. Sirica,
159 U. S. App. D. C. 58, 71, 487 F.2d 700, 713 (1973); Kaiser
Aluminum & Chem. Corp. v. United States, 141 Ct. Cl. 38, 157
F.Supp. 939 (1958) (Reed, J.); The Federalist, No. 64 (S. Mittell
ed. 1938).
18 Because
of the key role of the testimony of witnesses in the judicial
process, courts have historically been cautious about privileges.
Mr. Justice Frankfurter, dissenting in Elkins v. United States,
364 U.S. 206, 234 (1960), said of this: "Limitations are
properly placed upon the operation of this general principle only
to the very limited extent that permitting a refusal to testify
or excluding relevant evidence has a public good transcending
the normally predominant principle of utilizing all rational means
for ascertaining truth."
19 We
are not here concerned with the balance between the President's
generalized interest in confidentiality and the need for relevant
evidence in civil litigation, nor with that between the confidentiality
interest and congressional demands for information, nor with the
President's interest in preserving state secrets. We address only
the conflict between the President's assertion of a generalized
privilege of confidentiality and the constitutional need for relevant
evidence in criminal trials.
20 Mr.
Justice Cardozo made this point in an analogous context. Speaking
for a unanimous Court in Clark v. United States, 289 U.S. 1 (1933),
he emphasized the importance of maintaining the secrecy of the
deliberations of a petit jury in a criminal case. "Freedom
of debate might be stifled and independence of thought checked
if jurors were made to feel that their arguments and ballots were
to be freely published to the world." Id., at 13. Nonetheless,
the Court also recognized that isolated inroads on confidentiality
designed to serve the paramount need of the criminal law would
not vitiate the interests served by secrecy:
"A juror of integrity and reasonable firmness
will not fear to speak his mind if the confidences of debate are
barred to the ears of mere impertinence or malice. He will not
expect to be shielded against the disclosure of his conduct in
the event that there is evidence reflecting upon his honor. The
chance that now and then there may be found some timid soul who
will take counsel of his fears and give way to their repressive
power is too remote and shadowy to shape the course of justice."
Id., at 16.
21 When
the subpoenaed material is delivered to the District Judge in
camera, questions may arise as to the excising of parts, and it
lies within the discretion of that court to seek the aid of the
Special Prosecutor and the President's counsel for in camera consideration
of the validity of particular excisions, whether the basis of
excision is relevancy or admissibility or under such cases as
United States v. Reynolds, 345 U.S. 1 (1953), or C. & S. Air
Lines v. Waterman S. S. Corp., 333 U.S. 103 (1948).
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