487 F.2d 700 (D.C. Cir. 1973), 73-1962, Nixon v. Sirica

Docket Nº:73-1962, 73-1967, 73-1989.
Citation:487 F.2d 700
Party Name:Richard M. NIXON, President of the United States, Petitioner v. The Honorable John J. SIRICA, United States District Judge, Respondent and Archibald Cox, Special Prosecutor, Watergate Special Prosecution Force, Party in Interest. UNITED STATES of America, Petitioner v. The Honorable John J. SIRICA, Chief Judge, United States District Court for the
Case Date:October 12, 1973
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 700

487 F.2d 700 (D.C. Cir. 1973)

Richard M. NIXON, President of the United States, Petitioner


The Honorable John J. SIRICA, United States District Judge, Respondent and Archibald Cox, Special Prosecutor, Watergate Special Prosecution Force, Party in Interest.

UNITED STATES of America, Petitioner


The Honorable John J. SIRICA, Chief Judge, United States District Court for the District of Columbia, Respondent and Richard M. Nixon, President of the United States, Party in Interest.


Nos. 73-1962, 73-1967, 73-1989.

United States Court of Appeals, District of Columbia Circuit.

October 12, 1973

Argued Sept. 11, 1973.

As amended Oct. 12 and Oct. 25, 1973.

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Charles Alan Wright, Austin, Tex., with whom Douglas M. Parker, and Robert T. Andrews, Washington, D. C., were on the brief, for petitioner in No. 73-1962.

Archibald Cox, Washington, D. C., with whom Philip A. Lacovara and Peter M. Kreindler, Washington, D. C., were on the brief, for petitioner in Nos. 73-1967 and 73-1989.

Anthony C. Morella, and George D. Horning, Jr., Washington, D. C., for respondent.

Sherman Cohn, Eugene Gressman, Jerome A. Barron, Samuel Dash, Chief Counsel, Rufus Edmisten, Deputy Counsel, James Hamilton, Asst. Chief Counsel, and Ronald D. Rotunda, Asst. Counsel, were on the brief as amicus curiae.

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, LEVENTHAL, ROBINSON, MacKINNON and WILKEY, Circuit Judges, sitting en banc.

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This controversy concerns an order of the District Court for the District of Columbia entered on August 29, 1973, by Chief Judge John J. Sirica as a means of enforcing a grand jury subpoena duces tecum issued to and served on President Richard M. Nixon. The order commands the President, or any subordinate official, to produce certain items identified in the subpoena so that the Court can determine, by in camera inspection, whether the items are exempted from disclosure by evidentiary privilege. 1

Both the President and Special Prosecutor Archibald Cox, acting on behalf of the grand jury empanelled by the District Court in June, 1972, 2 challenge the legality of this order. All members of this Court agree that the District Court had, and this Court has, jurisdiction to consider the President's claim of privilege. 3 The majority of the Court approves the District Court's order, as clarified and modified in part, and otherwise denies the relief requested.


We deem it essential to emphasize the narrow contours of the problem that compels the Court to address the issues raised by this case. The central question before us is, in essence, whether the President may, in his sole discretion, withhold from a grand jury evidence in his possession that is relevant to the grand jury's investigations. It is our duty to respond to this question, but we limit our decision strictly to that required by the precise and entirely unique circumstances of the case.

On July 23 of this year, Special Prosecutor Cox caused to be issued a subpoena duces tecum directed to the President. 4 The subpoena called upon the President to produce before the grand jury certain documents and objects in his possession-specifically, tape recordings of certain identified meetings and telephone conversations that had

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taken place between the President and his advisers in the period from June 20, 1972 to April 15, 1973. 5 In a letter dated July 25, 1973, addressed to the Chief Judge of the District Court, the President declined to produce the subpoenaed recordings. The President informed the Court that he had concluded "that it would be inconsistent with the public interest and with the Constitutional position of the Presidency to make available recordings of meetings and telephone conversations in which [he] was a participant. . . ." 6

On July 26, at the instruction of the grand jury, the Special Prosecutor applied to the District Court for an order requiring production of the evidence. Having determined by poll in open court the grand jury's desire for the evidence, the District Judge ordered the President, or any appropriate subordinate official, to show cause "why the documents and objects described in [the subpoena] should not be produced . . .." On August 7, in answer to the order, the President filed a Special Appearance and Brief in Opposition, stating that the letter of July 25 constituted a "valid and formal claim of executive privilege" and that, therefore, the District Court "lack[ed] jurisdiction to enter an enforceable order compelling compliance with the subpoena. . ." 7

The District Court then allowed the Special Prosecutor to submit a memorandum in response to that of the President and in support of the Court's order. This memorandum contains a particularized showing of the grand jury's need for each of the several subpoenaed tapes 8-a need that the District Court subsequently and, we think, correctly termed "well-documented and imposing." 9

The strength and particularity of this showing were made possible by a unique intermeshing of events unlikely soon, if ever, to recur. The President had previously declared his intention to decline to assert any privilege with respect to testimony by his present and former aides, whether before the grand jury or the Select Committee of the Senate on Presidential Campaign Activities, concerning what has come to be known as the "Watergate" affair. 10 As a result, detailed testimony by these aides before the Senate Committee enabled the Special Prosecutor to show a significant likelihood that there existed conspiracies among persons other than those already convicted of the Watergate break-in and wiretapping, not only to commit those offenses, but to conceal the identities of the persons involved. Moreover, the Special Prosecutor was able to show from the public testimony that important evidence relevant to the existence and scope of the purported conspiracy was contained in statements made by the President's advisers during certain conversations that took place in his office. Most importantly, perhaps, significant inconsistencies in the sworn testimony of these advisers relating to the content of the conversations raised a distinct possibility that perjury had been committed before the Committee and, perhaps, before the grand jury itself.

Thus, the Special Prosecutor was able to show that the tape recordings of the disputed conversations-conversations specifically identified as to time, place,

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and content-were each directly relevant to the grand jury's task. Indeed, the Memorandum demonstrates, particularly with respect to the possible perjury offenses, that the subpoenaed recordings contain evidence critical to the grand jury's decisions as to whether and whom to indict.

On August 29th, the Chief Judge of the District Court entered the order at issue in this case. In the accompanying opinion, 360 F.Supp. 1, he rejected the President's challenge to the Court's jurisdiction and to its authority to enter orders necessary to the enforcement of the subpoena. The President, petitioner in No. 73-1962, asks this Court for a writ of mandamus commanding the District Court to vacate its August 29th order. In No. 73-1967, the United States, through the Special Prosecutor and on behalf of the grand jury, petitions for a writ commanding the District Court to order full and immediate disclosure of the tapes to the grand jury and, in the alternative, for instructions to govern any in camera inspection that takes place. The United States has, in addition, filed an appeal from the order below. 11

Because of the public interest in their prompt resolution, we consolidated the cases and ordered briefing on an expedited schedule. For the reasons stated herein, we decline to command the District Court to vacate its order, and dismiss both the petition and appeal of the United States. We direct, however, that the District Court modify its order in certain respects, and that it conduct further proceedings in this case in a manner consistent with the criteria and procedures defined in this opinion.


In their petitions for relief, both the President and the Special Prosecutor invoke this court's statutory authority to issue "all writs necessary or appropriate in aid of" its jurisdiction. 12 As the Supreme Court has noted, the peremptory writ of mandamus, one of the group authorized by the All Writs Act, "has traditionally been used in the federal courts only 'to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so."' 13 And although jurisdiction, for purposes of the writ, need not be defined in its narrow, technical sense, "it is clear that only exceptional circumstances amounting to a judicial 'usurpation of power' will justify the invocation of this extraordinary remedy." 14 Beyond these considerations, the writ may not be used as a substitute for an appeal, nor to subvert the general congressional policy against appeals from interlocutory orders, 15 a policy that is particularly strong in criminal cases. 16

With these general parameters in mind, we turn first to the President's petition, which seeks to accommodate a well settled limitation on direct appeals challenging subpoenas. As recently restated by the Supreme Court, ordinarily "one to whom a subpoena is directed may not appeal the denial of a motion to quash that subpoena but must either obey its commands or refuse to do so

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and contest the validity of the subpoena if he is subsequently cited for contempt on account of his failure to obey." 17...

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