Senate Select Committee on Pres. Cam. Act. v. Nixon

• Decision Date: 23 May 1974
• Docket Number: No. 74-1258.,74-1258.
• Parties: SENATE SELECT COMMITTEE ON PRESIDENTIAL CAMPAIGN ACTIVITIES, suing in its own name and in the name of the United States, et al., Appellants, v. Richard M. NIXON, Individually and as President of the United States.
• Court: U.S. Court of Appeals — District of Columbia Circuit

498 F.2d 725 (1974)

SENATE SELECT COMMITTEE ON PRESIDENTIAL CAMPAIGN ACTIVITIES, suing in its own name and in the name of the United States, et al., Appellants, v. Richard M. NIXON, Individually and as President of the United States.

No. 74-1258.

United States Court of Appeals, District of Columbia Circuit.

Argued April 2, 1974.

Decided May 23, 1974.

Samuel Dash, Chief Counsel, Senate Select Committee on Presidential Campaign Activities, Washington, D. C., with whom Rufus Edmisten, Deputy Counsel, James T. Hamilton, Asst. Chief Counsel, Richard B. Stewart, Sp. Counsel, Ronald D. Rotunda, Asst. Counsel, Senate Select Committee on Presidential Campaign Activities, Washington, D. C., Sherman L. Cohn, Eugene Gressman and Jerome A. Barron, Washington, D. C., were on the brief for appellants.

John J. Chester, Washington, D. C., with whom James St. Clair, Boston, Mass., Michael A. Sterlacci, Jerome J. Murphy, Loren A. Smith, Washington, D. C., and Charles Alan Wright, Austin, Tex., was on the brief, for appellee. George P. Williams, Washington, D. C., also entered an appearance for appellee.

Philip A. Lacovara, Counsel to the Sp. Prosecutor, Washington, D. C., with whom Leon Jaworski, Sp. Prosecutor and Peter M. Kreindler, Executive Asst. to the Sp. Prosecutor, Washington, D. C., were on the brief for the Sp. Prosecutor as amicus curiae.

Irving Jaffe, Acting Asst. Atty. Gen., Robert E. Kopp, Washington, D. C., and Thomas G. Wilson, Alexandria, Va., filed a brief on behalf of the United States as amicus curiae.

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

BAZELON, Chief Judge:

In this suit, the United States Senate Select Committee on Presidential Campaign Activities seeks a declaration that President Richard M. Nixon has a legal duty to comply with its subpoena duces tecum, directing him to produce "original electronic tapes" of five conversations between the President and his former Counsel, John W. Dean, III. By memorandum and order of February 8, 1974, the District Court for the District of Columbia denied the Committee's motion for summary judgment and dismissed the suit without prejudice.¹ The Committee appeals. For the reasons stated herein, we affirm.

I.

The Select Committee was created on February 7, 1973, by a resolution of the Senate empowering the Committee to investigate "illegal, improper or unethical activities" occurring in connection with the presidential campaign and election of 1972, and "to determine ... the necessity or desirability of new congressional legislation to safeguard the electoral process by which the President of the United States is chosen."² In testimony before the Committee on July 16, 1973, Alexander Butterfield, a former Deputy Assistant to the President, stated that certain presidential conversations, presumably including those about which Mr. Dean and others had previously testified, had been recorded on electronic tapes. The Committee thereupon attempted informally to obtain certain tapes and other materials from the President. When these efforts proved unsuccessful, the Committee issued the subpoena that is the subject of this appeal.³

This subpoena directed the President to make available to the Committee taped recordings of five conversations that had occurred on specified dates "between President Nixon and John Wesley Dean, III, discussing alleged criminal acts occurring in connection with the Presidential election of 1972."⁴ The subpoena was duly served on the President, together with a second subpoena duces tecum, requiring production of all records that concerned, directly or indirectly, the "activities, participation, responsibilities or involvement" of twenty-five named persons "in any alleged criminal acts related to the Presidential election of 1972."⁵ Both subpoenas were returnable on July 26. By letter dated July 25, 1973, addressed to Senator Ervin as chairman of the Select Committee, the President declined to comply with either subpoena, asserting in justification the doctrine of executive privilege. The President stated that, although he had directed "that executive privilege not be invoked with regard to testimony by present and former members of his staff concerning possible criminal conduct," executive privilege was being asserted with respect to "documents and recordings that cannot be made public consistent with the confidentiality essential to the functioning of the Office of the President."⁶

The Committee, in its own name and in the name of the United States, then brought this action to enforce the subpoenas. It alleged in its complaint that "the subpoenaed electronic tapes and other materials are vitally and immediately needed if the Select Committee's mandate and responsibilities ... are to be fulfilled."⁷ On August 29, the Committee filed a motion for summary judgment, seeking a declaration that the subpoenas were lawful and that the President's refusal to honor them, on the ground of executive privilege or otherwise, was illegal. On October 17, the District Court dismissed the Committee's action for want of statutory subject matter jurisdiction.⁸ The Committee appealed to this Court.

While the appeal was pending, the Senate on November 2 passed a resolution stating that the Select Committee is authorized to subpoena and sue the President and that the Committee, in subpoenaing and suing the President, was acting with valid legislative purposes and seeking information vital to the fulfillment of its legitimate legislative functions.⁹ The Select Committee asked this Court to hold its appeal in abeyance pending action on a bill, then before Congress, which conferred jurisdiction on the District Court for the District of Columbia in any civil action that the Committee theretofore or thereafter brought "to enforce or secure a declaration concerning the validity of any subpoena." This bill was enacted by Congress and the President having failed to exercise his veto, took effect on December 19, 1973.¹⁰ On December 28, in light of this new jurisdictional statute, we remanded the case to the District Court for further consideration.¹¹

Following the remand, on January 25, 1974, the District Court issued an order quashing the Committee's subpoena concerning twenty-five individuals. The Court found the subpoena "too vague and conclusory to permit a meaningful response" and, referring to our intervening opinion in Nixon v. Sirica,¹² held the subpoena "wholly inappropriate given the stringent requirements applicable where a claim of executive privilege has been raised."¹³ No appeal was taken from this order and the matter is not before us.

At the same time, the District Court issued two orders concerning the subpoena of the five identified tapes. In the first, the Court requested the Watergate Special Prosecutor to submit a "statement concerning the effect, if any, that compliance with the subpoena would, in his opinion, be likely to have upon pending criminal cases or imminent indictments under his supervision."¹⁴ In the second order, finding the President's claim of executive privilege "too general and not sufficiently contemporaneous to enable the Court to determine the effect of that claim under the doctrine of Nixon v. Sirica," the Court requested the President to submit "a particularized statement addressed to specific portions of the subpoenaed tape recordings indicating whether he still wishes to invoke executive privilege as to these tapes and, with regard to those portions as to which the privilege is still asserted, if any, the factual ground or grounds for his determination that disclosure to the Select Committee would not be in the public interest."¹⁵ The President responded to this order by letter dated February 6, 1974. Rather than setting forth the particularized claims and reasons for which the District Court had called, the President reasserted executive privilege generally as to all of the subpoenaed material, citing as the bases for his claim the need for confidentiality of conversations that take place in the performance of his constitutional duties, and the possibly prejudicial effects on Watergate criminal prosecutions should the contents of the subpoenaed conversations become public.¹⁶ The latter concern was raised with reference to the President's constitutional duty to see that the laws are faithfully executed.

On February 8, the District Court entered the order at issue here. In the memorandum accompanying the order, the Court dealt first with the President's assertion that the matter before it constituted a non-justiciable political question. Finding the reasoning of this Court in Nixon v. Sirica, which concerned a grand jury subpoena, "equally applicable to the subpoena of a congressional committee," the District Court held that, under that case and the relevant Supreme Court precedents, the issues presented to it were justiciable.¹⁷ The Court then turned, in the terms of Nixon v. Sirica, to a weighing of "the public interests protected by the President's claim of privilege against the public interests that would be served by disclosure to the Committee in this particular instance." The Court found, first, that the Select Committee had failed to demonstrate either "a pressing need for the subpoenaed tapes or that further public hearings before the Committee concerning the content of those tapes will at this time serve the public interest." At the same time, however, the Court rejected the President's claim of privilege insofar as it was premised on the public interest in confidentiality, because, in its view, "the President's unwillingness to submit the tapes for the Court's in camera ex parte inspection or in any other fashion to particularize his claim of executive privilege precludes judicial recognition of that privilege on confidentiality grounds."¹⁸ The Court then, in the discharge of its duty as a court of equity, undertook independently to...