Sun Oil Company v. United States, 806-71.

• Decision Date: 16 April 1975
• Docket Number: No. 806-71.,806-71.
• Citation: 514 F.2d 1020
• Parties: SUN OIL COMPANY and the Superior Oil Company v. The UNITED STATES, Marathon Oil Company, Intervenor.
• Court: U.S. Claims Court

514 F.2d 1020

SUN OIL COMPANY and the Superior Oil Company v. The UNITED STATES, Marathon Oil Company, Intervenor.

No. 806-71.

United States Court of Claims.

April 16, 1975.

Edgar H. Brenner, Washington, D. C., attorney of record, for plaintiff The Superior Oil Co. Abe Krash, James A. Dobkin, David Bonderman, Arnold & Porter, Washington, D. C., of counsel.

Theodore L. Garrett, Washington, D. C., for plaintiff Sun Oil Co. Henry P. Sailer, Washington, D. C., attorney of record. Covington & Burling, Washington, D. C., of counsel.

Richard A. Baenen, Washington, D. C., attorney of record for Intervenor Marathon Oil Co. Patricia Brown, Wilkinson, Cragun & Barker, Washington, D. C., of counsel.

Myles E. Flint, with whom was Asst. Atty. Gen. Wallace H. Johnson, for defendant. Andrew F. Walch, Atty., Dept. of Justice, Washington, D. C., of counsel.

Herbert J. Miller, Jr., Washington, D. C., for Richard M. Nixon. Thomas D. Rowe, Jr., William H. Jeffress, Jr., R. Stan Mortenson, Miller, Cassidy, Larroca & Lewin, Washington, D. C., of counsel.

Before COWEN, Chief Judge, and DAVIS, SKELTON, NICHOLS and BENNETT, Judges.

PER CURIAM:

The question here at issue is whether or not a former President of the United States, a private citizen, can maintain absolute privilege as to certain White House papers sought on motion for discovery by plaintiffs in a civil suit. The question does not appear to have been finally decided heretofore by a federal court.

Plaintiffs are oil companies that have leased from the United States an area off the coast of California, in the Santa Barbara channel, for exploration and drilling for oil and gas, pursuant to the Outer Continental Shelf Lands Act, 67 Stat. 462 (1953). Plaintiffs allege that their lease, OCS P-0240, expressly grants to them the right to erect in the leased area all platforms, pipelines and other works and structures necessary to the full enjoyment of the rights granted by the lease for which they have paid defendant $38,380,032 and have, in addition, expended over $70 million in exercise of their rights thereunder. Their principal claim is that defendant has both breached the contract and has taken their property rights under the lease by its delay in permitting, and refusal to permit, installation of Platform Henry, an oil drilling platform essential to operation of the lease. Plaintiffs seek to ascertain through the discovery process who made the decision to deny their application to proceed with Platform Henry, and why it was denied. Four documents are now contested by the claim of privilege. Some 30 other documents from the Executive Department have been provided to plaintiffs either voluntarily or by court order after in camera inspection by the trial judge.

On November 26, 1974, the former President's present counsel moved to file with the court a document, captioned Formal Claim of Presidential Privilege, personally signed by Richard M. Nixon.¹ We allowed the motion. The claim states in full:

I, Richard M. Nixon, have reviewed the items identified in Part D of the appendix to the affidavit of J. Fred Buzhardt dated February 26, 1974, and submitted to this Court. I hereby represent to the Court that these materials relate to the period of my term as President of the United States, constitute communications to the President from his advisors or communications among his White House advisors concerning contemplated Presidential action, and are within the constitutional privilege of the President to refuse to disclose confidential information. Thus, I must respectfully claim privilege with regard to these materials.

Part D of the Buzhardt affidavit referred to identifies the four documents, as follows:

D. Presidential documents which include briefing papers and memoranda prepared for the President for his use in meetings and in decision making regarding whether to allow drilling.

                (1) 3/27/69   Letter, Russell E. Train to the President
                              containing recommendation for
                              action to be taken in connection with
                              the oil spill
                (2) 4/ 9/70   Memorandum, Russell E. Train
                              Robert Cahn and Gordon J. MacDonald
                              (CEQ) to the President, stating
                              the CEQ's views on the position
                              of the Secretary of the Interior
                (3) 4/13/70   Memorandum, John C. Whitaker to
                              William T. Pecora discusses proposed
                              Presidential statement.
                (4) 4/15/70   Memorandum, W. T. Pecora to John
                              Whitaker: Paragraph on drilling on
                              the Dos Cuadras Structure. (Draft
                              paragraph for inclusion in Presidential
                              statement.)
                

Mr. Nixon suggests that a distinction may be drawn between traditional "executive privilege," which could not be asserted by a private person because it relates to military, State, and national security matters, on the one hand, and on the other, absolute "presidential privilege" which may be asserted by a former President as to other documents generated during his Administration. The Government, it is said, represented by an incumbent President, has a primary interest in the former. Also, it is argued, there is a big difference between civil and criminal cases as to privilege because it can be invoked in the latter only at the price of letting defendant go free, and because a criminal defendant will frequently have constitutional claims for the production of privileged material which would be infrequent in civil cases. It is argued that any breakdown in privilege would encourage interminable civil litigation because the actions of a President in today's society have such a direct bearing on happenings in the market place. Any balancing of competing claims on a motion for discovery under such circumstances would violate the privilege and render it meaningless under this view. The public interest in protecting confidentiality of advice given to a President and the potential chill on free expression of opinions by aides, as well as the right of personal privacy, outweigh any possible interest a plaintiff might have in discovery of presidential papers in a civil case, according to the former President. It is pointed out that if only an incumbent President can claim privilege, a former President could be put at great disadvantage because his successor might be politically hostile or have other conflicting interests and, knowing of this possibility, a President's aides, fearing potential disclosure of their recommendations soon after he leaves office, would not in some cases give a President the candid advice he needs for proper, objective discharge of his decision-making powers and responsibilities under the Constitution. Finally, Mr. Nixon says that plaintiffs have, in any event, made no showing of necessity sufficient to support this discovery, even assuming it is possible to overcome the privilege claimed. The foregoing are Mr. Nixon's principal arguments, and in support of his position he relies principally upon United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953); Senate Select Committee v. Nixon, 498 F.2d 725, 729-30 (D.C. Cir.1974); Nixon v. Sirica, 159 U.S.App.D.C. 58, 487 F.2d 700 (1973); Committee for Nuclear Responsibility, Inc. v. Seaborg, 149 U.S.App.D.C. 385, 463 F.2d 788, 794 (1971); Kaiser Alum. & Chem. Corp. v. United States, 157 F.Supp. 939, 944, 141 Ct.Cl. 38, 45 (1958); and United States v. Burr, 25 F.Cas. pp. 187, 192 (No. 14,694) (C.C. D.Va.1807).

Defendant United States has withdrawn its initial claim of privilege respecting the contested documents but supports Mr. Nixon's claim of privilege because "it has a strong institutional interest in the protection to be afforded Presidential materials once the President leaves office." Defendant states that there is a presumptive privilege for the confidentiality of presidential communications, that it is fundamental to the operation of Government and inextricably rooted in logic and the separation of powers under the Constitution, and cannot simply disappear overnight because a President leaves office. Defendant believes this position to be in accord with United States v. Nixon, supra.

Defendant also refers to the so-called Truman precedent. The Un-American Activities Committee of the United States House of Representatives subpoenaed former President Harry S. Truman to testify before it in 1953. Mr. Truman declined to testify, stating that he was following "a long line of precedents" of presidential refusals to respond to congressional demands for information, and that the doctrine of separation of powers has validity as to a former President. The Committee did not press the issue and it never reached a court.

Defendant, however, takes the position that while the presumptive privilege of confidentiality extends to a former President, it is not inviolate, and that it is proper for the court to undertake a balancing process to determine the competing rights. Defendant admits that if plaintiffs are able to show that the documents are relevant to this litigation and that plaintiffs have demonstrated a proper need for them to establish facts, the court must consider whether such a showing overcomes the need for confidentiality embraced within the presumptive privilege afforded the documents. No sensitive national security matters are involved. Thus, on the extent of the privilege, defendant disagrees with Mr. Nixon who holds that it is absolute and beyond the court's inquiry.

All contestants here are agreed that since the papers sought are in possession of defendant, the United States, as to the issue of whether they should be produced by discovery, the question of their ownership is irrelevant.

Finally, we turn to a statement of plaintiffs' contentions, which will also be summarized. At the outset, plaintiffs reject the notion that there can be any viable...