Senate Select Com. on Pres. Campaign Activities v. Nixon

• Decision Date: 17 October 1973
• Docket Number: Civ. A. No. 1593-73.
• Citation: 366 F. Supp. 51
• Parties: SENATE SELECT COMMITTEE ON PRESIDENTIAL CAMPAIGN ACTIVITIES, suing in its own name and in the name of the United States, and Sam J. Ervin, Jr., et al., Plaintiffs, v. Richard M. NIXON, Individually and as President of the United States, Defendant.
• Court: U.S. District Court — District of Columbia

366 F. Supp. 51

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

Civ. A. No. 1593-73.

United States District Court, District of Columbia.

October 17, 1973.

COPYRIGHT MATERIAL OMITTED

Samuel Dash, Chief Counsel, Fred D. Thompson, Minority Counsel, Rufus Edmisten, Deputy Counsel, James Hamilton, Assistant Counsel, Richard B. Stewart, Sp. Counsel, Donald S. Burris, William T. Mayton, Ronald D. Rotunda, Asst. Counsels, Washington, D. C., for the Senate Select Committee; Sherman Cohn, Eugene Gressman, Jerome A. Barron, Washington, D. C., Arthur S. Miller, Chief Consultant to the Select Committee, Washington, D. C., of counsel.

Leonard Garment, J. Fred Buzhardt, Washington, D. C., Charles Alan Wright, Austin, Tex., Douglas M. Parker, Washington, D. C., Thomas Marinis, Jr., Houston, Tex., for Richard M. Nixon; Richard A. Hauser, K. Gregory Haynes, Paul S. Trible, Jr., George P. Williams, Washington, D. C., of counsel.

OPINION

SIRICA, Chief Judge.

The Court presently has before it a motion for summary judgment filed by plaintiffs. Plaintiffs are the Senate Select Committee on Presidential Campaign Activities, established by Senate Resolution 60, 93rd Congress, 1st Session (1973), and the seven United States Senators who compose the Select Committee. Richard M. Nixon, President of the United States, is defendant. The action is styled "Complaint for declaratory judgment, mandatory injunction and mandamus."

Facts concerning the origin of this action are not controverted. The Senate Select Committee on Presidential Campaign Activities (Select Committee) became a duly authorized and constituted committee of the United States Senate on February 7, 1973, "empowered to investigate and study `illegal, improper or unethical activities' in connection with the Presidential campaign and election of 1972 and to determine the necessity of new legislation `to safeguard the electoral process by which the President of the United States is chosen.'"¹ In the course of its investigatory procedures, the Select Committee heard one Alexander P. Butterfield, formerly a Deputy Assistant to the defendant. Mr. Butterfield testified that the President had electronically recorded conversations occurring in various of his offices during a period of time that included the campaign and election of 1972. This testimony was later confirmed by Presidential counsel, J. Fred Buzhardt.²

Upon learning that among these recorded conferences were a series which they regarded as highly relevant to their investigation, plaintiffs commenced informal efforts to secure the pertinent tape recordings as well as various written documents. Plaintiffs were and remain convinced that the recorded account of these presidential conversations, together with written White House documents alluded to by witnesses at their hearings, would undoubtedly contain information having an important bearing on their investigation and would probably resolve critical conflicts in the testimony of several key witnesses.

When informal attempts proved unsuccessful, the Select Committee directed two subpoenas duces tecum to the defendant President. Both were served on July 23, 1973, and together with proof of service, are attached as exhibits to the complaint herein. The first required production of the tape recordings of five meetings which were in each instance attended by the defendant President and then White House counsel, John W. Dean, III. Other persons had also been present during some of these conferences. As noted in the subpoena, the meetings occurred on September 15, 1972, February 28, 1973, March 13, 1973, and March 21, 1973, with two meetings on the last mentioned date. The second subpoena sought documents and other materials "relating directly or indirectly to an attached list of 25 individuals and to their activities, participation, responsibilities or involvement in any alleged criminal acts related to the Presidential election of 1972." Defendant filed no objection to either subpoena or to service thereof, although in a subsequent filing counsel have characterized the second subpoena as oppressive. Defendant's sole response consisted of a letter to Select Committee Chairman Senator Sam J. Ervin, Jr., expressing the President's intention not to comply with the subpoenas and the reasons for his decision. The President's letter is also appended to the complaint herein as an exhibit. It is understood that although the subpoenaed tape recordings had previously been in the custody of others, at the time the subpoenas were issued, and at present, they are within the sole possession, custody and control of the defendant President.³

Plaintiffs next proceeded to file with the Court the present civil action. They deliberately chose not to attempt an adjudication of the matter by resort to a contempt proceeding under Title 2, U.S. C. § 192, or via Congressional commonlaw powers which permit the Sergeant at Arms to forcibly secure attendance of the offending party. Either method, plaintiffs state, would here be inappropriate and unseemly. On the day defendant filed his answer to the complaint, plaintiffs submitted a motion for summary judgment. A response to the motion and other memoranda were subsequently filed, and the matter came on for oral argument on October 4, 1973. In their subsequent pleadings and at oral argument, plaintiffs have emphasized that portion of the complaint which seeks a declaratory judgment. It is urged that such judgment include the following statements:

(1) That the two subpoenas were lawfully issued and served by plaintiffs and must be complied with by defendant President;

(2) That defendant President may not refuse compliance on the basis of separation of powers, executive privilege, Presidential prerogative or otherwise;

(3) That defendant President by his action to date has breached the confidentiality of the materials subpoenaed and waived any privilege that might have applied to them.

The prayer for a mandatory injunction and/or relief by way of mandamus has been referred to the Court's discretion and otherwise ignored by plaintiffs.

The case presents a battery of issues including jurisdiction, justiciability, invocation of the declaratory judgment statute, executive privilege, waiver of privilege, validity of the Select Committee's investigation, and authority of the Select Committee to subpoena and bring suit against the President. Because of its ruling, the Court has found it necessary to consider only one question, that being whether the Court has jurisdiction to decide the case. The Court has concluded, for the reasons outlined below, that it lacks such jurisdiction, and the action is therefore dismissed with prejudice.

I.

The Court has recently decided another case involving some of the same tape recordings that are here at issue.⁴ As its caption indicates, that matter concerned a subpoena duces tecum issued to the President by a grand jury. It was there ruled that compliance with the subpoena could be judicially required as to unprivileged matter and that the Court was empowered to determine the applicability of any privilege. The case is presently the subject of appellate review.

This present case, by contrast, is a civil complaint, and in such actions particularly, jurisdiction is a threshold issue. Some elementary principles perhaps need restating here. For the federal courts, jurisdiction is not automatic and cannot be presumed. Thus, the presumption in each instance is that a federal court lacks jurisdiction until it can be shown that a specific grant of jurisdiction applies. Federal courts may exercise only that judicial power provided by the Constitution in Article III and conferred by Congress. All other judicial power or jurisdiction is reserved to the states. And although plaintiffs may urge otherwise, it seems settled that federal courts may assume only that portion of the Article III judicial power which Congress, by statute, entrusts to them.⁵ Simply stated, Congress may impart as much or as little of the judicial power as it deems appropriate and the Judiciary may not thereafter on its own motion recur to the Article III storehouse for additional jurisdiction. When it comes to jurisdiction of the federal courts, truly, to paraphrase the scripture, the Congress giveth, and the Congress taketh away.⁶ Finally, the principle is firmly established that jurisdictional requirements cannot be waived.

II.

Plaintiffs have cited four statutory bases any and all of which, according to their submission, grant jurisdiction here. Before proceeding to analyze these provisions, however, it should be noted that the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, and Rule 57 of the Federal Rules of Civil Procedure do not themselves confer jurisdiction. These statutes, as defendant points out, are procedural only and do not constitute the jurisdictional statute necessary to consideration of a specific declaratory judgment action.⁷

A

One of the four statutory bases of jurisdiction cited by plaintiffs is 28 U.S.C. § 1345 which reads:

§ 1345. United States as plaintiff

Except as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress.

Plaintiffs have disclaimed any attempt to classify themselves as an "agency or officer" within the meaning of this section. Rather they purport to bring suit in the name of the United States. Reference, however, to common practice and related statutory provisions belies the soundness of such a claim. Title 28 U. S.C. § 516, in language similar to that of § 1345, reserves to the Attorney General and Department...