. 1 j .-,

\ \

. '

To: The Chief Just i ce Mr . Justice Dou&la~ Mr. Justi. ce Brennan Mr. Justice Stewart Mr. Ju::;tice Marshall ~~Justice BlacY~un

1..-f!r. Justice Powell Mr. Justice Rehnquist

From: White, J.

Nos. 73-1766 & 73-1834 - United States v. Nixon

Circulated: -------Reoiroula ted: 1 -j.3 - ,Z,f..

The President challenges the subpoena duces tecum and the judgment of the District Court denying the motion to quash on two general grounds. First, it is urged that the Special Prosecutor has failed to satisfy the requirements of Rule 17(c) governing the issuance of subpoenas duces tecum in criminal proceedings. Second, he insists that whether or not Rule 17(c) has been satisfied, the subpoenaed materiqls may be withheld in his absolute discretion pursuant to an executive privilege, which is extended to him by the Consti­tution and is beyond review by the courts and which, if sub­ject to judicial review, need not yield in the circumstances of this case .

Because a ruling favorable to the President under Rule 17(c) would obviate our reaching major constitutional issues with respect to the existence and scope of the claimed executive privilege, we initially deal with whether the requirements of Rule 17(c) have been satisfied. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-347 (1936) (Brandeis, J., concurring).

The rule provides·:

"A subpoena may also coiiDiland the person to whbm 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 thus be quashed if their produc- l/ tion would be "unreasonable or oppressive," but not otherwise.-

,.

\

..

. ,

-1 !

. 1

-2-

In applying that standard, it has been established that it is neither unreasonable nor oppressive to require the production of documents that to a rational mind would appear to contain or constitute relevant and admissible evidence with respect to the guilt or innocence of defendants charged with crime. Whether this is the entire reach of the subpoenas issuable under 17(c), particularly where either prosec~tion or defense is seeking documents from a third party,-/ we need not decide; for we are con­vinced that the relevance and the evidentiary nature of the subpoenaed tapes were sufficiently shown as a preliminary matter to warrant the District Courtsrefusal to quash the subpoena.

Our conclusion is based on the record before us, much of which is under seal. Of course, the contents of the subpoenaed tapes cannot at this stage be accurately demonstrated by the Special Prosecutor, but there is a sufficient likelihood that each of the tapes contains con­versations relevantl/ to the Watergate case and to the proof of, or defense against, the charges against the defendants in this case. 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 timing of the conversations, taken in their total con­text, permit a rational inference that the so-called Water­gate break-in or cover-up was one of the subjects discussed .

We also think it sufficiently likely that each of the subpoenaed tapes contains evidence that is not only relevant but also admissible with respect to the charges contained in the indictment. The most cogent ~bjection to the admissi­bility of the taped conversations_/ here at issue is that they are a collection of out-of-court statements by declar­ants not subject to cross-examination and are therefore inadmissible hearsay. Plainly, however, the hearsay rule does not automatically bar from evidence any relevant out-of­court statements of a defendant in a criminal case. Such statements are not hearsay, but declarations by a party to the case. They "would surmount all objections based on the hearsay rule ... " and, at least as against the declarant himself, "would be admissible for whatever inferences" might reasonably gj drawn. United States v. Matlock, U. S. - (1974) ·-

' \

l ' · •

·-~ ·· 'I

-3-

Here most of the tapes contain conversations to which one or more of the defendants were themselves party.

Declarations by one defendant would also be admissible against other defendants if there has been a sufficient pre­liminary showing, by independent evidence, of a conspiracy among the declarant and the other defendants, and if the 61 declarations at issue were in furtherance of that conspiracy.­The same is true of declarations of co-conspirators who are not defendants in the case on trial. 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(CA 4 1973); United States v. Hoffa, 349 F. 2d 20, 41-42 (CA 6 1965), aff'd on other grounds, 385 U.S. 293 (1966); United States v. Santos, 385 F. 2d 43, 45 (CA 7 1967), cert. denied, 390 U.S. 954 (1968); United States v. Morton:-483 F. 2d 573, 576 (CA 8 1973); United States v. Spanos, 462 F. 2d 1012, 1014 (CA 9 1972); Carbo v. United States, 314 F. 2d 718, 737 (CA 9 1963), cert. denied, 377 U.S. 953 (1964). Whether the standard has been satisfied is a question o~/admissibility of evidence to be decided by the trial judge._ Here the trial judge was quite satisfied as to the evidentiary nature of each of the tapes, at least for the purposes of justifying a subpoena for documents under Rule 17. · On the basis of the record before us, we find no basis for disturbing this conclusion.

· Enforcement of a pre-trial subpoena duces tecum must necessarily be committed to the sound discret~on of the trial court, since the necessity for the subpoena most often turns upon a determination of factual issues. Therefore, in the absence of a finding of arbitrariness or a complete lack of support in the record, a~pellate courts will not normally disturb a District Court s determination that the applicant for a subpoena complied with the standards of Rule 17(c). See, e.g., Sue v. Chicago Transit Authority, 279 F. 2d 416, 419 (CA 7 1~); Shotkin v. Nelson, 146 F. 2d 402 (CA 10 1944). In cases such as this, however, where a subpoena is directed to the 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. From our close scrutiny of the supportive materials submitted by the Special Prosecutor to the District Court, we are fully persuaded that the District Court's denial of tg~ President's motion to quash was consistent with Rule 17(c),_/

\ ..

.. ~ ·::. • ..

FOOTNOTES

1/ The leading case in this Court interpreting Rule 17(c) is Bowman Dairy Co. v. United States, 341 U.S. 214 (1950). In dealing with a criminal defendant's access to information in the hands of government prosecutors, it recognized certain fundamental characteristics of Rule 17(c): (1) it was not intended to provide additional means of dis­covery in criminal cases; 341 U.S., at 220; and (2) its chief innovation was to expedite the trial by providing a time and place before trial for the inspection of subpoenaed materials. Ibid.

Lower federal court cases decided in the wake of Bowman Dairy Co. have essentially adopted Judge Weinfeld's four-part formulation in United States v. Iozia, 13 F.R.D. 335, 338 (SDNY 1952), for the showing a defendant must make under Rule 17(c) to obtain materials from the prosecution before trial: (1) that the documents are evidentiary 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.

2L The Special Prosecutor suggests that the evi­dentiary requirement of Bowman Dairb Co. and Iozia does not apply in its full vigor when the su poena duces tecum is issued to third parties rather than to government prosecu­tors. Brief for the United States, at 128-129. 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 the defendants, issues to what, as a practical matter, is a third party." United States v. Mitchell, ___ F. Supp. ___ (DC 1974).

31 Relevant evidence is customarily considered to be "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be with­out the evidence." Proposed Federal Rules of Evidence, Rule 401. The District Court in this criminal prosecution has understood relevance to mean "'the tendency of the evi­dence to establish a material proposition.' McCormick on Evidence§ 185 at 435 (1972 ed.)." United States v. Mitchell et al., F. Supp. , n. 5 (DC April 30, 1974) [op~n~on and order-0n motions for disqualification].

- ........... ---~--~- --·~ .. ' ~ . ...

'·

'\

'' ...

-.. ,.

FN p. 2

4/ The nature of the evidence sought here by the Special-Prosecutor--tape recordings ~f conversations--is not a bar to admissibility provided/proper showing is made of accuracy and completeness. Stubbs v. United States, 428 F. 2d 885, 888 (CA 9 1970), cart. denied, 400 U.S. 1009 (1971). "Where it is proper to testify about oral conversations, taped recordings of those conversations are admissible as probative and corroborative of the truth concerning the testimony." Nixon v. Sirica, 487 F. 2d 700, 718 (CA DC 1973).

5/ Other out-of-court declarations by a non-party are not-barred as hearsay where they are not offered to r.rove the truth of the matter asserted in the statements. 'If the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement is not hear­say." Advisory Connnittee Note, Rule 80l(c), Proposed Fed­eral Rules of Evidence. Also, of course, there are many recognized exceptions to the hearsay rules. Certain state­ments made in the presence of the defendant, "concerning assertions of fact which, if untrue, the party would under all the circumstances naturally be expected to deny," might be admissible against him as admissions by silence. C. McCormick, supra, § 270, at ~51-652.

6/ See Glasser v. United States, 315 U.S. 60, 74 (1942);-C. McCormick, supra, § 267, at 645 n. 26; Developments in the Law--Criminal Conspiracy, 72 Harv. L. Rev. 920, 984-987 (1959).

7/ This discussion is not intended to exhaust all possible theories for the subpoenaed material's admissibility. Nor do we suggest that these materials, if sought to be introduced by the Special Prosecutor, would necessarily be admissible in fact at the trial.

8/ We also think that the Special Prosecutor has clearly-made the additional showing necessary to justify a subpoena for production before trial. Bowman Dairy Co. v. United States, supra; United States v. Iozia, supra. The subpoenaed materials are not available from any other source, and their examination and processing will clearly be a time­consuming matter that should not await trial.

CHAMBERS OF

THE CHIEF .JUSTICE

,Jnpuntt (ijourl Df tlft ~~ ,Jtafts ~as!p:nght~ ~. (ij. 2!1~'1>~

July 15, 1974

Re: 73-1766 - U.S. v. Nixon 73-1834 -Nixon v. U.S.

MEMORANDUM TO THE CONFERENCE:

My effort to accommodate everyone by sending out 11first drafts 11 is not working out.

I do not contemplate sending out any more material until it is ready. This will take longer than I had anticipated and you should each make plans on an assumption that no more material will be circulated for at least one week.

Regards,

Ufv~

To r4t- 10 ~u:pumt <!fttu.rt cf t4t ~nitth ~tatttl

~lttl4tttghm, ~. <!f. 2Llc?JI.~

CHAMBERS OF

JUSTICE BYRON R . WHITE

~ ... ~ ~

t~ ,

July 15, 1974 ~ r--1"' Re: Nixon case

Dear Chief:

Your statement of the facts and your drafts on appealability and justiciability are satisfactory to me, although I could also subscribe to most of what is said in other versions that have been submitted to you.

My views on the Rule 17(c) issue you already have.

With respect to the existence and extent of executive I privilege, I agree with Lewis Powell that there is an executive privilege based on the need for confidentiality and that the privilege is rooted in the Constitution. In my view, however, the privilege does not extend to evidence that is relevant and aamtsSib e 1n a criminal prosecution. The public interest in enforcing its laws and the rights of defendants to make their defense supply whatever necessity or compelling need that may be required to reject a claim of privilege when there has been a sufficient showing that the President is in possession of relevant and admissible evi­dence. I cannot fathom why the President should be permitted to withhold the out-of-court statements of a defendant in a criminal case, or indeed, those of any witness in such a case if they are relevant and admissible. For me, the interest in sustaining confidentiality disappears when it is shown that the President is . in possession of out-of-court declarations of those, such as Colson and Dean, who have been sufficiently shown to be co-conspirators. To be admissible at all, such out-of-court declarations must be in furtherance of the conspiracy. Shielding such a conspiracy in the making or in the process of execution carries the privilege too _far.

I, therefore, differ with Nixon v. Sirica insofar as it held that the Special Prosecutor must make some special

-2-

showing beyond relevance and admissibility. Necessarily, then, the trial judge, who followed Nixon v. Sirica, did not apply the correct standard in this case. I would adhere to the views of the majority of the Conference that relevant and admissible evidence in the possession of the President must be submitted for in camera inspection. Of course, this leads to an affirmance-.-

Sincerely,

~~ The Chief Justice

Copies to Conference

·.~ ...

'.•

~u.prtmt <!ftntrl of tqt ~ttittb ~huts

~ 2t\l Jrittgtatt. J8 . <!f. 2ll bi '!-.;l

CHAMBERS 0,..

JUSTICE WM. J . BRENNAN, JR.

July 15, 1974

RE: No. 73-1766 United States v. Nixon No. 73-1834 Nixon v. United States

Dear Byron:

I fully agree with your expanded Sec. 17(c) treatment, recirculated July 13, 1974, and hope it can serve to cover that issue in the Court's opinion.

Sincerely,

;ltd Mr. Justice White

cc: The Conference

CHAMBERS OF

.JUSTICE POTTER STEWART

...__ .._.. .iu:prtmt <!Jou.rt of t4t 1Unittb ~tattg

~agJrittgtott. to. <!J. 20t?'~.;l

July 15, 1974

Re: Nixon Cases

Dear Chief,

I agree with Byron's revision of the discussion of the Rule 17(c) issues.

Sincerely yours,

The Chief Justice

Copies to the Conference

I

..§n:.prmu <!fonrl a£ tltt ~~ ~tatt• ,ras!p:ltghtn. ~. <If. 2ll~'!~

CHAMeERS OF

THE CHIEF' .JUSTICE

. ·.·~ .. .

Re: 73-1766 - U. S. v. Nixon 73-1834 -Nixon v. U. S.

July 15, 1974

MEMORANDUM TO THE CONFERENCE:

In my earlier memo today on our "timetable" I should

have mentioned that at Bill Douglas' urgent request I mailed him a

very rough draft of what I had worked up on the weekend on the

"privilege" section. On reviewing it Sunday I came to the conclusion

that while it may be useful to Bill at his distance to show my

11 direction" it was far too rough and incomplete for circulation

and I will not circulate it generally •

~U:Vrtmt aJttu.d ttf tlrt 1!fuitth j>t!rlts

11lasJrhtgfttn.l{l. aJ. 2llbi'~;l

CHAMBERS OF

JUSTICE THURGOOD MARSHALL

Dear Chief:

Re: Nixon Case

, \~

July y? , 1974

1. I agree with Byron's recirculation (July 13, 1974) of the section on 17(c).

2. I agree with Harry's Statement of Facts.

3. I agree with Bill Brennan's treatment of the section on Justiciability.

4. I agree with Potter's memorandum on the question of apJ:ealability.

Sincerely,

114 II T. M.

The Chief Justice

cc: The Conference

I

' I .

\ HAM BERS OF

.iu:pumt <qcurt cf tqt 'Jjlttitt~ .ihttttt ~n:ttlringtcn. ~. <q. 2Llgt'1-~

To: The~e~~tice Mr. Justice Douglas Mr. JusUce Stewart Mr. Justice WhitA Mr . Justice Marshal l Mr. Justice Blackmun Mr . Justice Powell

rf . i~sti~ ~e~nq~~~t Fro~~n~~

.JUSTICE WM . .J . B RE N N AN , .JR. July 15, 1974 Circulated: _ __ =---~---

RE: No. 73-1766 United States v. Nixon No. 73-1834 Nixon v. United States

Dear Lewis:

Recirculated: ___ _ _ _

May I suggest two changes in your proposed Part IV with which in all other respects I fully agree and can readily join.

First, at page 18, revise the sentence now reading "Subpoenaed materials are 'essential to the justice of the case' if they are a·dmissible, probative, not otherwise obtainable, or merely cumula­tive, and relevant and material to the resolution of the issues at hand", (1) to delete the underscored words "or merely cumulative_"_ (otherwise we'd give the appearance of accepting St. Clair's argu­ment that Jaworski already has all the evidence he needs and con­vert the whole proceeding before Judge Sirica into a fight over whether he does or doesn't), and (2) to substitute for the under­scored "at hand" the words "to be decided" and introduce the sentence with the words "In the context of a criminal proceeding" (this is to carry through our basic theme that what we say is confined to criminal cases).

Second, Reword that part of page 20 beginning at the middle of the page with the sentence "We think the District Court applied the correct standard" and substitute

"We take this to be a conclusion that the Special Prosecutor has demonstrated a strong likelihood that the subpoenaed materials contain evidence that is not only relevant but also admissible with respect to the charges made in the indictment. (I wholly agree with you that there must be a constitutional standard be­cause the presidential privilege of confidentiality has a constitutional source. But I think that this showing satisfies the constitutional standard.) On the basis of our own review of the Special Prosecutor's

. \

i~'· .~ I!' , ... ~. f

- 2 -

showing, we cannot say that the District Court erred in ordering the President, on the basis of that con­clusion, to submit the subpoenaed material to in camera inspection. The District Court's conclusion establishes that the production is 'essential to the justice of the case', United States v. Burr, supra, and in that circum­stance we hold that the presidential claim of privilege must yield."

I also attach a suggested concluding part (I've numbered it V. but that may not be the right figure). You will recognize it as-a revision of pages 3 and 4 of my initial suggested Part IV circulated on July 8. I call your particular attention to the concluding sentence "The mandate shall issue forthwith." If the present time­table for trial on September 9 is maintained, I suppose we should try to the extent we can to accommodate it.

Sincerely,

;M Mr. Justice Powell

cc: The Conference

.:· ,.

' l

. ···~ ". '

;-..;, , ..

16.

* * * * * * * * * * * * Proposed Part IV

In determining whether to order the President

to produce records of confidential communication for

use in a criminal trial, a court should be guided by

a solicitous concern for the effective discharge of

his duties and the dignity of his high office. Of course,

no citizen should be subjected to unwarranted inroads

on his time or interruptions of his affairs, but the

-:·public interest in preserving the confidentiality of ·'

the Oval Office and in avoiding vexatious haras sment

of an incumbent President is of an entirely different

order of importance. Consequently, we believe that

"[i]n 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 Fed. Cas. 187,

191 (No. 14964) (CCD Va. 1807)(per Marshall, C.J.).

Rather, courts should follow standards and procedures

designed to afford appropriate protection

··/

·.

17.

for the legitimate interests of the presidency

consistent with the overriding duty to ensure that

justice is done.

Ordering the President to produce confidential

records for use in a criminal proceeding involves

three decisional stages: issuance of the subpoena,

response to the subpoena, · and in camera inspection.

The decision whether to issue a subpoena duces tecum

to the President is governed by the same standard

applicable to citizens generally. "The guard, furnished

to this high officer, is to be looked for in the conduct

·"" of the court after the subpoenas have issued; not in

any circumstance which is to proceed their being issued."

United States v. Burr, 25 Fed. Cas. 30, 34 (No. 14,692d)

(CCD Va. 1807)(~ Marshall, C.J.). Faced with a judicial

demand for production of evidence for use in a criminal

trial, the President may well forego any claim of executive

privilege. After all, he is charged by the Constitution

with the duty to "take Care that the Laws be faithfully

executed" and will doubtless be aware of the needs of

·.'9··.

·~ ·-

" . ... .

I I

18.

the criminal justice system. If, however, the President

decides that release of the subpoenaed materials would

prove injurious to the public interest, he may invoke

executive privilege for his confidential communications

and so indicate in his response to the subpoena.

It is at this stage that the court must require

a special showing from the moving party. As Chief

Justice Marshall stated, "on objections being made by

the president to the production of a paper, the court

would not proceed further in the case without such an

111 ~e.. [ OIJfeKt tf ~ cr ,-,.;\ {'y,r;,

.t?ro ce~J, ~. l q J )

. affidavit as would clearly shew the paper to be

essential to the justice of the case". United States v.

Burr (No. 14,694), supra, at 192. ['iubpoenaed ~;t-~rials are "essential to the justice of the case" if they are ---- --admissible, probative , not otherwise obtainable.Js:t

~Y----CtlHM~ and relevant and material to the ( +o b~ J~ c. 1 'o1-::!_j

resolution of the issue s~ .:J;t;: b-and.... The· movant: must satisfy

the court of a strong likelihood that the materials sought

meet these criteria. Cf. United States v. Reynolds, 345

U.S. 1, 11 (1953). The court's inauiry may have to occur

.... . . - _, e; , .. ~ ... ... .

19.

in stages, for instances may arise in which the requisite

determination can be made intelligently only after the

issues have crystallized during the course of the trial.

If the required showing has been made, and only

then, the court should order production of the subpoenaed

materials for in camera inspection. The court's primary

functions in in camera proceedings are identification and

excision. It must identify those statements that meet

the foregoing criteria and release them for introduction

into evidence, and it must excise all other material

and provide whatever summaries and abstracts are needed

to render the whole comprehensible. Due care must be

taken to avoid release of extraneous material.

In the instant case the District Court first

evaluated the Special Prosecutor's showing by reference

to the standards that courts have read into Rule 17(c) of

the Fed. Rules of Grim. Proc. for subpoenas duces tecum

by defendants against the Government. See Bmvman Dairy

Company v. United States, 341 U.S. 214 (1951); United

States v. Iozi~, 13 F.R.D. 335 SDNY (1952). Pursuant

to this inouiry, the District Court found that the

subpoenaed materials are evidentiary and relevant, not

Proposed Part V

On the basis of our conclusions in Parts I, II, III and

IV our decision is that the President shall transmit all of

the subpoenaed materials to the District Court for in camera

inspection, except that the President may initially withhold

production of materials concerning national defense, foreign

affairs or state secrets for which the President asserts a

specific claim that the public interest requires their non­

disclosure. However, in order for the District Judge to

determine whether to require submission of some or all of

such materials for an in camera inspection, the President,

on or before a date fixed by the District Judge, shall justify

,· the withholding by a written analysis .outlining the basis for

his claim. To aid the District Court, the Special Prosecutor

may be shown the analysis and heard in camera on the legiti­

macy of the President's claims. The District Court should,

of course, accord the respect necessarily due the President's

judgment that disclosure would directly affect national de­

fense, foreign affairs or state secrets. If, however, the

President's analysis fails to satisfy the District Judge that

the specific claims asserted are "real and not merely colorable,"

Alderman v. United States, 394 U.S. 165, 199 (Harlan, J.,

concurring in part and dissenting in part), the District Court

shall order production, for an in camera inspection, of the

withheld materials as to which the District Court makes that

2.

determination. See United States v. Reynolds, 345 U.S. 1, 10

(1953). If following the in camera inspection, the District

Judge concludes that a reasonable basis for the specific claim

has not been shown, he shall order transmittal of the inspected

materials to the Special Prosecutor. He shall, however, stay

the order for a reasonable time to provide the President an

opportunity to appeal. See Nixon v. Sirica, 487 F.2d 700,

721 n.lOO (1973). To insure confidentiality on appeal, ap­

propriate orders shall be entered sealing the record. The

Courts of Appeals and this Court shall also stand ready to

enter such further orders as may be requi~ed to prevent un­

warranted disclosure of subpoenaed materials.

The President shall transmit directly to the District

Court forthwith, or within such additional time as the District

Court may fix for good cause shown, those materials for which

no specific claim limited to national defense, foreign affairs

or state secrets is made. The District Court shall thereupon

excise all irrelevant, inadmissible, and extraneous matter,

see Dennis v. United States, 384 U.S. 855, 875 (1966), but

otherwise shall transmit all materials to the Special Prose­

cutor. See Alderman v. United States, supra, at .181-182.

In the performance of this function, the District Court should

take care not to ursurp the responsibilities of the trial

advocates. For the significance of an ''innocent phrase, a

- -Rider A, p. 20

ot

fo

a

cc

tr a

aJ ne .

pJ

de

tl

tl 't

m

t

• "T pt n [

l. t 0 0 0

i

Sp

D trict C ..11. t

tl n th

de

c . T t war .. n

-. ~::-~~ .. ~~~1>4~' ,...vwrt· • '• •. -~-~,

l.n ord r' ~ the: ·es ___ ____ , ~H ~ .. .__ &JU.;).J..;:)

of that conclusion, to submit the subpoenaed material to

i • • Th f} • • ~i£._) I 1 • b n camera l.nspectl.on. .. ~ 1s~~oure ~ cone usl.on esta -

lishes that the production is "essential to the justice of

the case," United States v. Burr, supra, and in that circum-

stance we hold that the presidential claim of privilege must t - 1 _,

)

,..,.,~ ~1!,...~ .... e

3.

chance remark, or a reference to what appears to be a neutral

person or event," id., at 182, may be known, or later become

known, only to the lawyer who has fully prepared the prose­

cution or defense for trial. Of course unwarranted use of

disclosed materials may be protected against by appropriate

protective orders.

The mandate shall issue forthwith.

Affirmed.

IV.

t/_ - . - - 't• Q/ ' I

(~~ /U-~ t)1~ ~ !7/6) UJ~~~4

Having determined that the requirements of Rule 17(c)

have been satisfied in this case, we must confront the Presi-

dent's claim that he is nonetheless entitled to have the subpoena

quashed because of a constitutional privilege to refuse to dis-

close confidential conversations with and among his aides and

advisers. The President's first and broadest contention is

that the judiciary is without power to review this claim of

privilege once he has formally asserted it. He argues alter-

natively that, even if his claim of privilege is subject to judicial

review, the courts should hold as a matter of constitutional law

that the privilege he has asserted must prevail over the sub-

poena duces tecum in this case.

- 2 -

A.

We unreservedly reject the claim that the President

alone, by simple assertion of privilege, had the unreviewable

power to decide not to deliver the subpoenaed materials to the

District Court. Under our Constitution, it is only the Judicial

Branch that is ultimately empowered to determine questions

of law, even though those questions may involve the scope of

*I the other branches' powers.-

This basic postulate of our constitutional system was

strikingly confirmed a generation ago in Youngstown Sheet &

Tube Co. v. Sawyer, 343 U.S. 579, where this Court held

invalid the President's asserted power to seize the nation's

* The only limiting principle is that expressed in l\1issi­

ssippi v. Johnson, 4 Wall. 475, which held that it is not for the judiciary to determine whether or not the President is faith­fully executing the laws. The Court there noted that "the duty thus imposed [by Art. II] on the President is in no just sense ministerial. It is purely executive and political. "

- 3-

steel mills. Perhaps even more relevantly, several recent

decisions of this Court have made clear that it is for the

judiciary alone to delineate the scope of constitutional immunity

or privilege, even the explicit immunity conferred upon members

of the Legislative Branch by the Speech and Debate Clause,

U. S. Canst. Art. I, sec. 6. Doe v. Mcl\!Iillan, 412 U.S. 306,

318, n. 12; Gravel v. United States, 408 U.S. 606; United

· States v. Brewster, 408 U.S. 501; United states v. Johnson,

329 u.s. 503.

As the Court stated in Baker v. Carr, 369 U.S. 186,

211, and reaffirmed in Powell v. McCormack, 395 U.S. 486,

521, "[ d] eciding 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

- 4-

has been committed, is itself a delicate exercise in constitu-

tional interpretation, and is a responsibility of this Court as

ultimate interpreter of the Constitution:' .. :'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. The alleged eonflict

that such an adjudication may cause cannot justify the courts'

avoiding their constitutional responsibility. " Powell v.

McCormack, supra, at 549 (footnote omitted).

We hold, in short, that no part of the "judicial power

of the United States" which Art. Ill, §1, of the Constitution

vests in the federal courts can by insistence of the President

on "executive privilege" be shared by him. Any other view

would be false to the basic concept of the separation of powers

·;,

'.~

- 5-

that lies at the very heart of our constitutional structure --

a structure whose primary purpose was to insure against

*I tyranny. As James Madison made the point, "[t]he accumu-

lation of all powers, legislative, executive, and judiciary, in

the same hands, whether of one, a few, or many, and whether

hereditary, appointed, or elective, may justly be pronounced

the very definition of tyranny. " The Federalist, No. 47, p. 313

(S. F. Mittel ed. 1938).

Under our Constitution, "no man can be judge in his

own case, however exalted his station, however righteous his

motives .... " Walker v. City of Birmingham, 388 U.S. 307,

320-321. As the Court put the matter in United states v. Lee,

*I In the words of Mr. Justice Brandeis, "[t]he doc­

trine of separation of powers was adopted by the Convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. " Myers v. United States, 272 U.S. 42, 293.

~· ·.·•

- 6-

106 u.s. 196, 220:

"No man in this country is so high that he is above the

law. No officer of the law may set that law at defiance

with impunity. All the officers of the government, from

the highest to the lowest, are creatures of the law, and

are bound to obey it. "

And, in the classic words of Chief Justice Marshall in Marbury

v. Madison, 1 Cranch 137, 177: "It is emphatically the province

and the duty of the judicial department to say what the law is. "

The existence and scope of Presidential privilege is thus

a judicial question for the Judicial Branch alone to decide. It

is a question that must, therefore, be decided here and now.

,.·

.. '

- 7-

B.

If, as we have held, it is for the judiciary alone to de-

termine the existence and scope of Presidential privilege in any

given context, the President argues that we should determine

that the privilege must prevail over the subpoena duces tecum

issued in this case by the District Court at the request of the

Special Prosecutor in anticipation of a forthcoming criminal

trial.

We are a nation governed by the rule of law. Nowhere

is our commitment to this principle more profound than in the

enforcement of the criminal law, "the twofold aim of which is

that guilt shall not escape or innocence suffer." Berger v.

United States, 295 U.S. 78, 88 (1935). Conviction of the guilty

and exoneration of the innocent are matters of the greatest

.. ,· ··.,

- 8-

consequence for a people devoted to equal justice under law.

Individuals are subject to criminal penalties for conduct pro-

scribed by society. The imposition of such penalties turns on

what was done and by whom and with what intent. Enforcement

of the criminal law requires ascertainment of these facts. It

is, in short, a search for truth.

We have committed that pursuit to an adversary system

in which the parties contest all issues before a court of law.

To develop their opposing contentions of fact, the parties are

entitled to invoke the court's authority to compel production of

relevant evidence. Because the adversary nature of our system

is tempered by an overriding concern for fairness to the indi-

vidual, the prosecutor has an obligation to reveal evidence

that may be favorable to the defense. "The United States Attorney

- 9 -

is the representative not of an ordinary party to a controversy,

but of a sovereignty whose obligation to govern impartially is

as compelling as its obligation to govern at all; and whose

interest, therefore, in a criminal prosecution is not that it

shall win a case, but that justice shall be done." Berger v.

United States, supra, at 88. In addition, the accused has the

right to a fair trial by making the best possible defense on the

basis of all material evidence. And the court itself has the

paramount duty to ensure that justice is done. Accordingly,

the need to develop all relevant facts is both elemental and

comprehensive, for the ends of the criminal law would be de-

feated if judgments were founded on a fragmentary or specula-

tive presentation of the facts. To the extent that the search

for truth is restrained, the integrity of the process of criminal

~. '

l · .. ··,

- 10-

justice is impaired. As a general proposition, therefore, the

law is entitled to every man's evidence. See Branzburg v.

Hayes, 408 U.S. 665, 688 (1972).

This rule, however, is not absolute. It admits of excep-

tions designed to protect weighty and legitimate competing inter-

ests. 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 an attorney may not be required to reveal

what his client has told him in confidence. These and other in-

terests are recognized at law by evidentiary privileges against

forced disclosure. Such privileges may be 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.

. . '

- 11 -

In this case the President challenges a subpoena re-

quiring the production of materials for use in certain criminal

prosecutions. He claims that he has a privilege against com-

pliance with that subpoena. He does not contend that disclosure

of the subpoenaed material would compromise state secrets.

There is no claim that the conversations at issue involved mat-

ters of military planning or intelligence, sensitive aspects of

foreign affairs, or any other data whose disclosure would be

contrary to the national interest. Rather, the President grounds

his assertion of privilege in the generalized interest in pre-

serving the confidentiality of his discussions with his advisers.

Because maintaining confidentiality for such discussions is

essential to his high office, he claims a privilege against forced

disclosure. The President further argues that only he can

- 12 -

assess accurately the degree to which disclosure in a particu-

lar case would impair the effective performance of his consti-

tutional duties.

The President's argument rests in part on the nature

of government itself and in part on the tripartite division of

sovereign powers within our government. All nations find it

necessary to shield from public scrutiny some of the delibera-

tions that constitute the process of government. Those selected

to conduct the affairs of state must be free to speak plainly to

one another and to seek honest and forthright advice on matters

of national policy. Yet human experience teaches that those who

expect public dissemination of their remarks may temper candor

with a concern for appearances. The willingness to advance

tentative ideas, to play the devil' s advocate, and to reveal the

ultimate basis for a particular view may succumb to public

,.·

- 13-

posturing and a reticence born of the fear of appearing foolish.

That consequence would distort and impair the search for sound

public policy. Accordingly, a general expectation of confi-

dentiality for deliberations among the officers of government

*I and their advisers serves the public good.-

The framers of our Constitution understood this point.

When they undertook to draft the Charter for a fledgling nation,

they chose not to hold their debates in public. Rather, they

maintained the secrecy of their discussions until well after

ratification of the Constitution by the States. Modern practice

reflects continued appreciation of the insight of the framers.

*I - "Freedom of communication vital to fulfillment of

wholesome relationships is obtained only by removing the specter of compelled disclosure .... [ G J overnment ... 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 (DDC 1966). See Nixon v. Sirica, u-:-s.-App. D. C. , , 487 F. 2d 700, 713 (1973); Kaiser AlUminum & Chern. COrp:-Vo United States, 157 F. Supp. 939 (Ct. Cl. 1958) (per Reed, J.); The Federalist No. 64 (S. F. Mittel ed. 1938). -

- 14-

For example, the House-Senate Conference Committees that

meet to resolve differences in bills that have passed both Houses

hold their proceedings in confidence. Similarly, the delibera-

tions of this Court are conducted in utmost secrecy. In these

and other instances, officers of government need to be able to

rely on an expectation of confidentiality to facilitate plain talk.

That the need for confidentiality exists in any govern-

ment does not mean, however, that it must always prevail over

competing societal interests. See, e. g., Conway v. Rimmer,

1 All E. R. 874 (1968). Some greater public good may warrant

occasional inroads into the principle of confidentiality. The

Constitution does not explicitly mention the President's interest

in confidentiality. Yet to the extent that the interest in confi-

dentiality pertains to the President's effective exercise of his

-!!: • ...

- 15-

executive powers, it is nevertheless constitutionally based.

The Constitution does confer the right upon every defendant

"to be confronted with the witnesses against him" and "to

have compulsory process for obtaining witnesses in his favor. "

(Am. VI) And, of course, the Constitution also guarantees that

no person shall be deprived of liberty without due process of

law. (Am. V) Because the production of all material evidence

in a criminal trial furthers those guarantees, it too is a matter

of constitutional import.

We must balance the essentiality of the privilege to the

President's performance of the responsibilities vested in him

I

- 16-

against the inroads of such a privilege on the fair administra-

*I tion of criminal justice.- The interest in confidentiality, as

distinct from the preservation of state secrets, is a generalized

concern. The goal is to promote candor by maintaining an

expectation of confidentiality rather than to preserve secrecy

for the substance of any particular communication. The assert-

ed need to refuse to comply with a subpoena presumes that rare

and isolated instances of disclosure would negate the general

expectation of confidentiality and thus defeat the ability of the

President to obtain candid advice. We think that this assump-

tion is unfounded. The willingness to speak plainly is not so

*I - We wish to emphasize the narrow scope of this inquiry.

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 that between the President's interest in preserving state secrets and any other concern, whether originating in Congress or the courts. We address only the conflict between the President's assertion of a privilege not to divulge confiden­tial conversations and the constitutional need for evidence ma­terial to criminal trials.

- 17-

fragile that it would be undermined by some remote prospect

of disclosure in narrowly defined and isolated circumstances.

At least this is true where the prospect of disclosure is limited

to demands for evidence demonstrably material to a criminal

no prosecution. It requires/clairvoyance to foresee that such

demands will arise with the greatest infrequency nor any

special insight to recognize that few advisers will be moved to

temper the candor of their remarks by such an unlikely possi-

*I bility.- Thus, while the general interest in confidentiality

*I lVIr. 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 mmnUiining 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 thei.r arg-uments and ballots were to be freely published to the world. " Id. , at 13. Nonetheless, the Court also recognized tnat isolated inroads on ctmfiden­tiality 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. "_!?. , at 16.

- 18-

is weighty indeed, it is not significantly impaired by the damands

of criminal justice.

On the other hand, an unqualified privilege against dis-

closure of evidence demonstrably relevant to a criminal trial

would cut deeply into the guarantee of due process of law. While

the President's interest in confidentiality is general in nature,

the constitutional need for production of material evidence in a

criminal proceeding is not. The enforcement of the criminal laws

does not depend on an assessment of the broad sweep of events

but on a limited number of specific historical facts concerning the

conduct of identified individuals at given times. The President's

broad interest in confidentiality would not be vitiated by dis-

closure of a limited number of confidential conversations, but

nondisclosure of those same conversations could gravely impair

the pursuit of truth in a criminal prosecution.

- 19-

Thus where the President's ground for withholding sub-

poenaed materials from use in a criminal trial is only the gen-

-~ ~~~~~ ~ o-x--Muc.dLL~; eralized interest in coilfidentialit~ it cannot prevail over the

~trU/.V~ .A needs of due process of law in a federal criminal trial. The

privilege of his office, although of constitutional dimensions,

is qualified in nature. He may be ordered, therefore, upon a

*I proper showing, to produce the requested materials.- We

*I - No prior case from this or any other court resolves

the precise issue before us. Earlier prece~ts cited by the parties have dealt with state secrets, e. g. , United States v. Reynolds, 345 U.S. 1 (1953), with claims of executive privilege by subordi~e executive officers in the context of civil trials, e. g., ibid; Committee for Nuclear Responsibility c. v. "Se'"aborg,- App. D. C. , 463 F. d 788 97· ; aiser Alum-inum & Chemical Corp. T."United States, 157 F. Supp. 939 (Ct. Cl. 1958); Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, 40 F.R.D. 318 (CD 1966), aff'd on opinion below, 384 F.2d 979 (CADC 1967), cert. denied, 389 U.S. 952 (1968), or with the unique responsibilities and powers of a grand jury. See Nixon v. Sirica, App. D. C. , 487 F ~ 2d 700 (1973). Neverthe-less, our conclusion is in full accord with the principle under- J

tJ a ~ lying all of those cases -- that(fue privilege is faf' fpa~abso-ru""' lute as a matter of constitutional la~

j-{)~~ .P.~ f<.,~ . AJ,I-'~.~ .• ,.,..- I .

~ ~-1~ v1-' v~--/ cJ ~~ /~·~c:~~ ~1 ~· ~~XP~~

- 20-

do not reach this conclusion lightly nor do we wish to suggest

that courts may presume to order the President of the United

States to produce confidential materials absent sufficient justi-

fication. The avoidance of unnecessary harassment of our

Chief Executive, the importance of the expectation of confiden-

tiality for his discussions with his advisers, and proper

deference to the head of a coordinate branch of government who

is himself charged by the Constitution to "take Care that the

Laws be faithfully executed" suggest that courts should be as

reluctant to tread this ground as the sound discharge of their

constitutional responsibilities will allow. Courts must follow

certain standards and procedures to assure that the President's

legitimate interests are adequately protected. It is to those

requirements that we now turn.