360 F.Supp. 1 (D.D.C. 1973), Misc. 47-73, In re Subpoena to Nixon

Docket Nº:Misc. 47-73
Citation:360 F.Supp. 1
Party Name:In re Subpoena to Nixon
Case Date:August 29, 1973
Court:United States District Courts, District of Columbia
 
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360 F.Supp. 1 (D.D.C. 1973)

In re Grand Jury SUBPOENA Duces Tecum Issued TO Richard M. NIXON, or any Subordinate Officer, Official, or Employee with Custody or Control of Certain Documents or Objects.

Misc. No. 47-73.

United States District Court, District of Columbia.

Aug. 29, 1973

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[Copyrighted Material Omitted]

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Archibald Cox, Watergate Special Prosecutor Force, Philip A. Lacovara, Peter M. Kreindler, Washington, D. C., James F. Neal, Nashville, Tenn., for movant.

Leonard Garment, New York City, J. Fred Buzhardt, McCormick, S. C., Charles Alan Wright, Austin, Tex., Douglas M. Parker, Robert T. Andrews, Thomas P. Marinis, Jr., Washington, D. C., for respondent.

ORDER

SIRICA, Chief Judge.

This matter having come before the Court on motion of the Watergate Special Prosecutor made on behalf of the June 1972 grand jury of this district for an order to show cause, and the Court being advised in the premises, it is by the Court this 29th day of August, 1973, for the reasons stated in the attached opinion,

Ordered that respondent, President Richard M. Nixon, or any subordinate officer, official or employee with custody or control of the documents or objects listed in the grand jury subpoena duces tecum of July 23, 1973, served on respondent in this district, is hereby commanded to produce forthwith for the Court's examination in camera, the subpoenaed documents or objects which have not heretofore been produced to the grand jury; and it is

Further ordered that the ruling herein be stayed for a period of five days in which time respondent may perfect an appeal from the ruling; and it is

Further ordered that should respondent appeal from the ruling herein, the above stay will be extended indefinitely pending the completion of such appeal or appeals.

OPINION

On July 23, 1973, Watergate Special Prosecutor Archibald Cox acting on behalf of the June 1972 grand jury empanelled by this court, caused to be issued a subpoena duces tecum to the President of the United States, Richard M. Nixon. 1 The subpoena required the President, or any appropriate subordinate official, to produce for the grand jury certain tape recordings and documents enumerated in an attached schedule. The President complied with the subpoena insofar as it related to memoranda of Gordon Strachan and W. Richard Howard, but otherwise declined to follow the subpoena's directives. In a letter to the Court dated July 25, 1973, the President advised that the tape recordings sought would not be provided, and by way of explanation wrote:

... I follow the example of a long line of my predecessors as President of the United States who have consistently adhered to the position that the President is not subject to compulsory process from the courts.

Thereafter, the grand jury instructed Special Prosecutor Cox to apply for an order requiring production of the recordings. On July 26, the Special Prosecutor petitioned this Court 2 for a show cause order directed to the President.

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At the time of this application a quorum of the grand jury was polled in open court, and each juror expressed his or her desire that the Court order compliance. Subsequently, the Court ordered that the President or any appropriate subordinate official show cause "why the documents and objects described in [the subpoena] should not be produced as evidence before the grand jury."

In response to the show cause order, the President, by his attorneys, filed a special appearance contesting the Court's jurisdiction to order the President's compliance with the grand jury subpoena. 3 The Court allowed for the filing of a response by the Special Prosecutor and reply by the President, and the matter came on for hearing on August 22nd.

The parties to the controversy have briefed and argued several issues including the Court's jurisdiction in the matter of compulsory process, the existence and scope of "executive privilege" generally, applicability of "executive privilege" to the tape recordings subpoenaed, and waiver of privilege. The Court has found it necessary to adjudicate but two questions for the present: (1) whether the Court has jurisdiction to decide the issue of privilege, and (2) whether the Court has authority to enforce the subpoena duces tecum by way of an order requiring production for inspection in camera. A third question, whether the materials are in fact privileged as against the grand jury, either in whole or in part, is left for subsequent adjudication. For the reasons outlined below, the Court concludes that both of the questions considered must be answered in the affirmative.

I

A search of the Constitution and the history of its creation reveals a general disfavor of government privileges, or at least uncontrolled privileges. Early in the Convention of 1787, the delegates cautioned each other concerning the dangers of lodging immoderate power in the executive department. 4 This attitude persisted throughout the Convention, and executive powers became a major topic in the subsequent ratification debates. 5 The Framers regarded the legislative department superior in power and importance to the other two and felt the necessity of investing it with some privileges and immunities, but even here an attitude of restraint, as expressed by James Madison, prevailed:

Mr. Pinkney moved a clause declaring "that each House should be the judge of the privilege of its own members."

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Mr. Madison distinguished between the power of Judging of privileges previously & duly established, and the effect of the motion which would give a discretion to each House as to the extent of its own privileges. He suggested that it would be better to make provision for ascertaining by law, the privileges of each House, than to allow each House to decide for itself. He suggested also the necessity of considering what privileges ought to be allowed to the Executive. 6 (Emphasis in original)

The upshot of Madison's final suggestion regarding a definition of executive privileges was that none were deemed necessary, or at least that the Constitution need not record any. As Charles Pinckney, the South Carolina delegate, later explained in a Senate speech:

I assert, that it was the design of the Constitution, and that not only its spirit, but letter, warrant me in the assertion, that it never was intended to give Congress, or either branch,

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any but specified, and those very limited, privileges indeed. They well knew how oppressively the power of undefined privileges had been exercised in Great Britain, and were determined no such authority should ever be exercised here. They knew that in free countries very few privileges were necessary to the undisturbed exercise of legislative duties, and those few only they determined that Congress should possess; they never meant that the body who ought to be the purest, and the least in want of shelter from the operation of laws equally affecting all their fellow citizens, should be able to avoid them; they therefore not only intended, but did confine their privileges within the narrow limits mentioned in the Constitution.

... Let us inquire, why the Constitution should have been so attentive to each branch of Congress, so jealous of their privileges, and have shewn [sic] so little to the President of the United States in this respect. ... No privilege of this kind was intended for your Executive, nor any except that which I have mentioned for your Legislature. The Convention which formed the Constitution well knew that this was an important point, and no subject had been more abused than privilege. They therefore determined to set the example, in merely limiting privilege to what was necessary and no more. 7 (Ellipsis in original)

Pinckney's words just quoted, "They therefore determined to set the example, in merely limiting privilege to what was necessary and no more," constitute an apt description of the Convention's purpose and outlook. Are there, then, any rights or privileges consistent with, though not mentioned in, the Constitution which are necessary to the Executive? One answer may be found in the Supreme Court decision, United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953). The Court recognized an executive privilege, evidentiary in nature, for military secrets. Reynolds held that when a court finds the privilege is properly invoked under the appropriate circumstances, it will, in a civil case at least, suppress the evidence. Thus, it must be recognized that there can be executive privileges that will bar the production of evidence. The Court is willing here to recognize and give effect to an evidentiary privilege based on the need to protect Presidential privacy. 8

The Court, however, cannot agree with Respondent that it is the Executive that finally determines whether its privilege is properly invoked. The availability of evidence including the validity and scope of privileges, is a judicial decision.

Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers. 9

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It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule, to particular cases must of necessity expand and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. 10

In all the numerous litigations where claims of executive privilege have been interposed, the courts have not hesitated to pass judgment. 11 Executive fiat is not the mode of resolution. 12 As has been stated most recently in this Circuit:

[N]o executive official or agency can be given absolute authority to determine what documents in his possession may be considered by the court in its...

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