377 F.Supp. 1326 (D.D.C. 1974), Crim. 74-110, United States v. Mitchell

Docket Nº:Crim. 74-110
Citation:377 F.Supp. 1326
Party Name:United States v. Mitchell
Case Date:May 20, 1974
Court:United States District Courts, District of Columbia

Page 1326

377 F.Supp. 1326 (D.D.C. 1974)



John N. MITCHELL et al.

Crim. No. 74-110.

United States District Court, District of Columbia.

May 20, 1974

Certiorari Granted June 15, 1974, See 94 S.Ct. 3162

Page 1327

James D. St. Clair, Sp. Counsel to the President, Michael A. Sterlacci, John A. McCahill, Jerome J. Murphy, Jean A. Staudt, Eugene R. Sullivan, Washington, D.C., for movants.

Leon Jaworski, Sp. Prosecutor, Philip A. Lacovara, Counsel to the Sp. Prosecutor, James F. Neal, Sp. Asst. to the Sp. Prosecutor, Richard Ben-Veniste, Asst. Sp. Prosecutor, Watergate Sp. Prosecution Force, Washington, D.C., for the United States of America.

William G. Hundley, Washington, D.C., for defendant John N. Mitchell.

John J. Wilson, Frank H. Strickler, Washington, D.C., for defendant Harry R. Haldeman.

William S. Frates, Floyd, Pearson, Stewart, Proenza & Richman, Miami, Fla., for defendant John D. Ehrlichman.

Sidney Dickstein, Washington, D.C., for defendant Charles W. Colson.

David G. Bress, Washington, D.C., for defendant Robert C. Mardian.

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Jacob A. Stein, Washington, D.C., for defendant Kenneth W. Parkinson.

John M. Bray, Washington, D.C., for defendant Gordon Strachan.


SIRICA, District Judge.

This matter comes before the Court on motion of President Richard M. Nixon to quash a subpoena duces tecum issued to him by the Watergate Special Prosecutor with leave of this Court.

On April 16, 1974, Special Prosecutor Leon Jaworski moved the Court for an order, pursuant to Rule 17(c),1 Federal Rules of Criminal Procedure, directing the issuance of a subpoena for the production of specified materials prior to trial in the case of United States v. John N. Mitchell, et al., CR 74-110, DDC. 2 The proposed subpoena, prepared by the Special Prosecutor and directed to the President 'or any subordinate officer, official, or employee with custody or control of the documents or objects' described, listed in 46 paragraphs the specific meetings and telephone conversations for which tape recordings and related writing were sought. Relying on the legal memorandum and affidavit of the Special Prosecutor in support of the motion, the Court on April 18, 1974, ordered that the subpoena issue forthwith to the President commanding production before the Court.

Prior to the May 2, 1974, return date of the subpoena, the President filed a Special Appearance and Motion to Quash (eo nomine) which included a formal claim of privilege against disclosure of all subpoenaed items generally as 'confidential conversations between a President and his close advisors that it would be inconsistent with the public interest to produce.' 3 Thereafter, within time limits fixed by the Court, the Special Prosecutor and five defendants filed papers opposing the President's motion to quash on various grounds. 4 The government's submission, containing a lengthy and detailed showing of its need for the subpoenaed items and their relevance, has been placed under seal as have the various reply briefs and motions for protective orders and to expunge that were subsequently filed. 5 The matter

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came of for oral argument in camera on May 13, 1974.

In entering a special appearance, the President contends that the Court lacks jurisdiction to enforce the instant subpoena on two grounds: First, court are without authority to rule on the scope or applicability of executive privilege when asserted by the President, and Second, a dispute between the President and Special Prosecutor regarding the production of evidence is an intra-branch controversy wholly within the jurisdiction of the executive branch to resolve. The first contention, as the President admits, is without regal force in this Circuit. 6 See Nixon v. Sirica, 159 U.S.App.D.C. 58, 487 F.2d 700 (1973).

The second argument, whatever its merits in the setting of a disagreement between the President and a cabinet officer, for example, has no application to the present situation. The current Special Prosecutor is vested with the powers and authority conferred upon his predecessor pursuant to regulations which have the force of law. 7 Among other prerogatives, the Special Prosecutor has 'full authority' to determine 'whether or not to contest the assertion of 'Executive Privilege' or any other testimonial privilege.' The Special Prosecutor's independence has been affirmed and reaffirmed by the President and his representatives, 8 and a unique guarantee of unfettered operation accorded him: 'the jurisdiction of the Special Prosecutor will not be limited without the President's first consulting with such Members of Congress (the leaders of both Houses and the respective Committees on the Judiciary) and ascertaining that their consensus is in accord with his proposed action.' 9 The President not having so consulted, to the Court's knowledge, his attempt to abridge the Special Prosecutor's independence with the argument that he cannot seek evidence from the President by court process is a nullity and does not defeat the Court's jurisdiction.

The President advances three principal arguments on the merits supporting his motion to quash. Primary among these is his assertion that the subpoena, together with the Special Prosecutor's showing of relevancy and evidentiary value filed May 10, 1974, fails to comply with the requirements of Rule 17(c). It is conceded by all parties that Rule 17(c) cannot be employed as a vehicle for discovery, and that a showing of good cause is necessary. The landmark cases interpreting Rule 17(c), Bowman Dairy Company v. United States, 341 U.S. 214, 71 S.Ct. 675, 95 L.Ed. 879 (1951) and United States v. Iozia, 13 F.R.D. 335 (S.D.N.Y.1952), are cited and relied upon by both sides. Basically, good cause under Rule 17(c) requires a showing that (1) subpoenaed materials are evidentiary and relevant; (2) they are not otherwise procurable reasonably in advance of trial; (3) the party cannot properly prepare for trial without them, and failure to obtain them may delay the trial; and (4) the application is made in good faith, and does

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not constitute a 'fishing expedition.' See United States v. Iozia, supra, 13 F.R.D. at 338. It is the Court's position that the Special Prosecutor's May 10, 1974 memorandum correctly applies the Rule 17(c) standards, particularly in the more unusual situation of this kind where the subpoena, rather than being directed to the government by defendants, issues to what, as a practical matter, is a third party. It is the Court's conclusion as well, supported again by reference to the Special Prosecutor's memorandum and appendix, that the requirements of Rule 17(c) are here met. 10

With regard to the confidentiality privilege interposed by the President, the Court agrees that his claim is presumptively valid. The Special Prosecutor's submissions, however, in the Court's opinion, constitute a prima facie showing adequate to rebut the presumption in each instance, and a demonstration...

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