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To

4th DRAFT

SUPREME COURT OF THE UNITED STATES

Nos. 73-1766 AND 73-1834 CilCUl

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Recirculated:_? 4 --United States, Petitioner, 73-1766 v. Richard M. Nixon, President

of the United States, et al.

Richard M. Nixon, President of the United States,

Petitioner, 73-1834 v.

United States.

On Writs of Certiorari to the United States Cburt of Appeals for the District of Columbia Cir• cuit.

[July-, 1~74]

Memorandum from MR. JusTICE DouGLAS.

On April 18. 1974. at the request of the Special Prose .. cutor, the District Court issued a subpoena duces tecum to respolldent Richard M. Nixon, President of the United States. directing him to produce tape recordings and documents relating to 64 conversatiom; between the President and his advisors. These materials were sought by the Special Prosecutor for use at the impending trial m United States v. Mitchell et al., Cr. No. 74-110 (D. D. C.); the subpoena was issued pursuant to Rule 17 (c) of the Federal Rules of Criminal Procedure.

On May 1, 1974, respondent filed a Special Appearance aud Motion to Quash the subpoena, claiming that the materials sought "are within the constitutional privilege of the President to refuse to disclose confidential information when disclosure would be contrary to the public interest." On May 13, 1974, respondent further moved for an order expunging the grand jury's naming

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UNITED STATES v. NIXON'

of respondent as an unindicted co-conspirator in United State.s v. Mitchell .

On May 20, 1974, the District Court denied both the motion to quash and the motion to expunge, and ordered respondent to produce the subpoenaed materials.

On May 24, 1974, respondent filed a notice of appeal in the District Court, docketed the appeal in the Court of Appeals for the District of Columbia Circuit, and filed a petition for a writ of mandamus in that same Court of Appeals.

On that same date, petitioner requested that this Court issue a writ of certiorari before judgment to the Court of Appeals, as authorized by 28 U. S. C. § 1254 (1) and by Rule 20 of the Rules of this Court. In view of the public importance of the issues presented and of the desirability of a prompt resolution of those issues by this Court, the petition was granted and the case set for oral argument. - - U. S. - (May 31, 1974).

On June 6. 1974, a cross-petition for certiorari before judgment was filed by respondent; for the same reasons set forth above, the cross-petition was likewise granted. - U. S. - (June 15, 1974) .

On June 19, 1974, respondent filed with this Court a motion seeking disclosure to respondent and his counsel and transmittal to this Court of all evidence presented to the grand jury relating to the grand jury's action in naming respondent as an unindicted co-conspirator, Disposition of the motion was deferred pending oral argument of the case.

Respondents Strachau and Ehrlichman, named defendants in United State.s v. Mitchell et al., subsequently sought to present certain additional questions concerning the availability to them, as defendants, of any potentially exculpatory materials in the President's possession, Disposition of these issues was likewise deferred pending oral argumcn t.

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UNITED STATES v. NIXON

I One of the questions presented is whether the Dis

trict Court's order of May 20, 1974, was an appealable order.

By the express terms of 28 U. S. C. § 1291, the courts of appeals are given jurisdiction over appeals from "final decisions of the district courts" (emphasis added). This requirement of finality as a precondition of review is designed to promote judicial efficiency in the administration of justice; it embodies a strong congressional policy against piecemeal review and against the obstruction or impediment of ongoing judicial proceedings by interlocutory appeals. See, e. g., Cobbledick v. United States, 309 U. S. 323, 324-326 (1940).

In applying this policy to the appealability of orders concerning the production of documents or other information before a grand jury or at trial, this Court has

"Consistently held that the necessity for expedition in the administration of the criminal law justifies putting one who seeks to resist the production of desired information to a choice between compliance with a trial court's order to produce prior to any review of that order, and resistance to that order with the concomitant possibility of an adjudication of contempt if his claims are reJected on appeal."

United States v. Ryan, 402 U. S. 530, 533 (1971), and cases cited therein . Only upon an adjudication of contempt does "the witness' situation [become] so severed from the main proceeding as to permit an appeal," Cobbledick v United States, supra, 309 U. S., at 328; pnor to that point. any challenge to the production of information is regarded as an integral part of the initial proceedings, and a denial of such a challenge is merely mterlocutory in nature. Ibid.; Alexander v. United Btates, 201 U, S, 117, 121-122 (1906).

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Exceptions to this principle have been recognized in a "limited class of cases where denial of immediate review would render impossible any review whatsoever of an individual's claims." United States v. Ryan, supra. Thus in Perlrnan v. United States, 247 U. S. 7 (1918), where the appellant sought to raise a claim of privilege against the production of exhibits belonging to him but in the custody of a third party, the Court permitted immediate review of an order compelling production of the exhibits; in so doing, the Court noted that denial .of immediate review would preclude appellant from ever obtaining effective review of his claim of privilege, since the custodian of the property could not have been expected to undergo contempt proceedings in order to preserve appellant's right to judicial review of his claims. 247 U. S., at 12-13. The instant case, however, presents no such danger; the subpoenaed materials are within respondent's personal custody, and respondent would undoubtedly have full opportunity to obtain prompt appellate review of his claim of privilege subsequent to any adJudication of contempt for his refusal to comply with the subpoena in question.

Nevertheless. a requirement that the President personally place himself in contempt of a court ruling in order to secure review of that ruling would present an unfortunate and unnecessary risk of constitutional confrontation between two branches of the Government. As was recognized by the court in Nixon v. Sirica, -U. S. App. D. C -, 487 F. 2d 700 (1973),

" In the case of the President, contempt of a judiCial order-even for the purpose of enabling a constitutional test of the order-would be a course· unseemly at best." 487 .F . 2d, at 707 n. 21.

Moreover, it IS clear that the interests protected by the final order principle, namely, judicial efficiency and the

UNITED STATES v. NlXO:N

expeditious conduct of ongoing proceedings, would be frustrated rather than served by a requirement in this case that the President place himself in contempt of the court in order to obtain review of his constitutional claims of privilege. Such a requirement would be likely to engender protracted litigation over the contempt power and unduly delay any opportunity for a review on the merits of the underlying claim of privilege.

For these reasons, I would hold that in the unique circumstances presented by the case, the order entered by the District Court was an appealable order, and that respondent's appeal from that order is therefore properly before this Court under a writ of certiorari before final judgment.

II

It was argued by the President in the District Court that the Special Prosecutor has no standing to bring this action, and that the court has no jurisdiction · over it, because it is an "intra-exccutive1

' dispute. There are essentially two elements to this argument: first, that as an inferior officer in the Executive Branch the Special Prosecutor may not sue his superior over a matter of Executive Branch policy, and second, that in effect this is a suit in which the government is suing itself, and must necessarily fail to present a case or controversy under the well established proposition that no man may sue himself.

Although the very title of the case may seem anomalous, this would certainly not be the first time that this Court has decided a case which on the surface appeared to be one in which the government was on both sides. Thus, in Secretary of Agriculture v. United States, 347 U. S. 645, the Secretary intervened in Interstate Commerce Commission proceedings on behalf of various agricultural interests, and when the case ultimately came to court the United States was required to be named a8

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6 UNITED STATES v. NIXON

a defendant under 28 U. S. C. § 2322. The Court did not even pause to consider whether any difficulty was presented by the apparent anomaly of the United States appearing on both sides of the case, for there was no question but that a concrete controversy between the parties was presented by the Secretary's challenge to various Commission orders. The issue, it would seem, had been decided by the earlier case of United States v. Interstate Commerce Commission, 337 U. S. 426, in which the government, as a shipper, sought review of the Commission's determination that various railroads need not make reparations to the government for charges allegedly in violation of the Interstate Commerce Act. Again the United States was required to be named as a defendant in the suit, so that it literally appeared on both sides of the case. The Attorney General was required to appear for the United States as defendant, under 28 U.S. C. § 2322, yet the Attorney General also brought this suit on the government's behalf. Thus the Attorney General was also quite literally the attorney for parties on either side of the action. On this basis the three-judge District Court had dismissed the action without reaching the merits, on the theory that the Government could not maintain a suit against itself. This Court reversed.

The opinion for the Court by Justice Black is instructive, and is based upon the proposition that "courts must look behind the names that symbolize the parties to determine whether a justiciable case or controversy is presented." 337 U. S., at 430. It was clear that the basic question presented, whether the railroads had illegally extracted sums of money from the United States, "was a question of the type which are traditionally justiciable," ibid., and the formal appearance of the Attorney General for the Government as a statutory defendant was held no bar because in reality the Commission and the Railroads,

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as the real parties in interest, "vigorously defended." I d., at 432. The Court rejected the notion that Congress, by making the Government a statutory defendant in all cases brought against the I. C. C., "intended to make it impossible for the Government to press a just claim which could be vindicated only by a court challenge of a Commission order." !d., at 431.

Considered in this light it would seem that there is the requisite "adversity" here between the parties presenting a genuine case or controversy, and the underlying issue, whether a trial subpoena under Rule 17 (c) of the Federal Rules of Criminal Procedure ought to be quashed, is clearly "a question of the type which are traditionally justiciable." There is certainly no doubt that each party is vigorously represented. If this case is different, therefore, it must be because the Special Prosecutor somehow stands on a different footing than the Interstate Commerce Commission, an independent agency. Close examination of this point, however, compels the contrary conclusion.

The Special Prosecutor is not an appointee of the President, but of the Attorney General, and the Attorney General's authority to create and fill this position derives directly from Congress rather than the President. See 28 U. S. C. §§ 509, 510, 515, 533, and 535. This is in accord with the Congress' constitutional authority under Art. II, § 2, "to vest the appointment of such inferior officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." Congressional power over these 11inferior officers" is rather <Wmplete, and this Court has held that when exercising its power under this clause the Congress may, for example, provide restraints on the Department Head's power to remove the officer. United States v. Perkins, 116 U. S, 483; Additionally, because the power to appoint has

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been placed in the Department Head, he only has the power to remove absent any contrary rule established by Congress. Myers v. United States, 272 U.S. 52, 161-162, disapproved on other grounds, Humphrey's Executor v. United States, 295 U. S. 602, 626.

Thus, although the President has the constitutional obligation to see that the laws are faithfully executed, he does not have the power directly to remove an inferior officer appointed by the Attorney General under his statutory authority; nor does he have the authority to direct the course of any individual litigation, for Congress has explicitly vested that authority in the Attorney General. 28 U. S. C. § 516. This reality was demonstrated in rather practical terms when the President sought the termination of Special Prosecutor Archibald Cox; his only means of obtaining it was to secure an Attorney General who would carry out his wishes. The famous battle of President Jackson over the Bank of the United States illustrates the same point; the President sought withdrawal of deposits from the Bank, but Congress had entrusted that function to the Secretary of the Treasury, and Jackson went through three secretaries before finding one who would follow his wishes. Van Deusen, The Jacksonian Era, 1828-1848. at 80-82 (1959).

In the present case the Attorney General has explicitly exercised his authority under 28 U. S. C. § 510, authorizing him to delegate any of his functions, to make a very broad delegation to the Special Prosecutor. That delegation is spPlled out in regulations issued by the Attorney General pursuant to his authority under 5 U. S. C. § 501, and vest in the Special . Prosecutor virtually all of the Attorney General's statutory authority to control the course of investigations and litigation related to "all offenses arising out of the 1972 Presidential Election for which the Special Prosecutor deems it necessary and ap~

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UNITED STATES v. NIXON 9

propriate to assume responsibility, allegations involving the President, members of the White House staff, or Presidential appointees, and any other matters which he consents to have assigned to him by the AttorneyGeneral." 38 Fed. Reg., at 30739. In particular, the Special Prosecutor was given full authority, inter alia, for "determining whether or not to contest the assertion of 'Executive Privilege' or any other testimonial privi• lege.'' Ibid. The regulations then go on to provide:

"In exercising this authority, the Special Pros~ ecutor will have the greatest degree of independence that is consistent with the Attorney-General's statutory accountability for all matters falling within the jurisdiction of the Department of Justice. The Attorney General will not countermand or interfere with the Special Prosecutor's decisions or actions. The Special Prosecutor will determine whether and to what extent he will inform or consult with the Attorney General about the conduct of his duties and responsibilities. In accordance with assurances given by the President to the Attorney General that the President will not exercise his Constitutional powers to effect the discharge of the Special Prosecutor or to limit the independence he is hereby given, the Special Prosecutor will not be removed from his duties except for extraordinary improprieties on his part and without the President's first consulting the Majority and Minority Leaders and Chairman and ranking Minority Members of the Judiciary Committees of the Senate and the House of Representatives and ascertaining that their consensus is in accord with his proposed action."

A subsequent amendment to the regulations added at the t>nd of the above quoted paragraph that "the jurisdiction of the Special Prosecutor will not be limitec!

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without the President's first consulting with such members of Congress and ascertaining that their consensus is in accord with his proposed action." 38 Fed. Reg. 32,805. Thus not only has the Attorney General vested broad authority in his appointee, the Special Prosecutor, but he has provided by regulation , "in accordance with assurances given the Attorney General by the President," that the President will not direct him to terminate or limit the authority of the Special Prosecutor without first obtaining the approval of specified members of Congress.

There can be no question that the delegation of author~ ity to the Special Prosecutor is lawful. and that the regulations so providing have the force of law, Accardi v. Shaughnessy, 347 U.S. 260, 265. In Accardi the Attorney General had issued regulations creating three admiuistrative levels below himself to consider, inter alia, applications to suspend the deportation of an alien, an exercise of discretion entrusted to the Attorney General by Congress. Although the regulations provided for the possibility of ultimate review by the Attorney General, the regulations clearly required that the initial decisions be made at a lower level, with appeal to a Board of Immigration Appeals which had been delegated by the Attorney General "such discretion and power conferred upon the Attorney General by law . . . '' !d., at 266. The Board was appointed by the Attorney General and served at his pleasure, ibid., and in Accardi he had in effect instructed the Board to deny the petitioner's application for suspension. The Court held that the Board's resulting denial was unlawful because it had been deprived of the discretion which the Attorney General had delegated to it. "[A]s long as the regulations remain operative, the Attorney Genera] denies himself the right to sidestep the Board

'or dictate its decision in any mam1.er." !d. , at 267.

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Accardi is but one of a number of cases requiring a •department to honor the regulations it has promulgated. In Vitarelli v. Seaton, 359 U. S. 535, the Secretary of State dismissed an employee without affording him certain procedural safeguards guaranteed by department regulations as to dismissals based upon grounds of national security. Although by statute the Secretary was authorized to dismiss employees in petitioner's class summarily, the Court held the dismissal unlawful. "Having chosen to proceed against petitioner on security grounds, the Secretary ... was bound by the regulations which he himself had promulgated for dealing with such cases, even though without such regulations he could have discharged petitioner summarily." !d., at 539-540. And see Service v. Dulles, 354 U. S. 363; Peters v. Hobby, 349 U.S. 331.

The result is that the Attorney General is clearly bound by his own regulations regarding the Special Prosecutor, and by law the Attorney General is the only person with authority to either terminate or limit the Special Prosecutor's authority. It is on this basis that the termination of former Special Prosecutor Archibald Cox, to whom almost identical regulations applied, was held unlawful. Nader v. Bark, 366 F. Supp. 104 (D. D. C. 1973). So long as these regulations remain in effect, then the Watergate Special Prosecution Force is effectively a quasi-independent agency, and the Special Prosecutor is vested with the final and exclusive authority under 28 U. S. C. ~ 516 to secure evidence for a prosecution within his jurisdiction. His decisions in these matters is by law reviewable only by the Attorney Gen~ eral, and the Attorney General has by valid regulations delegated all his authority in the matter to the Special Prosecutor. Without doubt the President could cause the regulations to be revoked either by so directing the

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then incumbent Attorney General, or by finding a new Attorney General if the present incumbent refuses to follow such a directive. But of course the President has not chosen to follow such a course, and this case must be decided by reference to the law and regulations currently in force, not those which might at some future time be enacted or promulgated.

It therefore necessarily follows that the present case presents a genuine controversy within the jurisdiction of the court. The parties are truly adverse. The Special Prosecutor, as the only party with authority to act on behalf of the United States in this matter, seeks evidence in connection with the trial in United States v. Mitchell et al., currently pending in the District Court for the District of Columbia, and the President is an adverse party opposing the production of that evidence. The question of whether the subpoena should be quashed is clearly a justiciable one. and this Court therefore has jurisdiction.1

This is the only conclusion which comports with the realities of the situation. The office of the Special Prosecutor was established explicitly to be an independent agency in response to the public demand for a prosecutor who was not subject to the direction of the President whose activities are intertwined with the investigations which need be conducted. Following the illegal firing of the previous Special Prosecutor, Nader v. Bark, supra, various bills were introduced in the Congress to re-estab-

1 As .Tusticr Frnnkfur1rr once ~aid, ' 'So strongly werr the framers of the Constitution brut on securin~ a reign of law 1hat they endowed the judicial officr with rxtraordinar~· safeguard;.; and precitigc. No onC', 110 ma ttrr how exalted his public office or how righteous his pnvatr motivC', can be judge in his own ca::;e . That is what courts arP for . And no typr of controversy i~ more peculiarly fit for jn(hcwl drtrrmmation than a controversy that calls into question tho powl'r of a court to deC!Cle" United States v. Mine Workers, 330 u. s. 258, :30~309.

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lish th() office as agency which by law would be wholly independent of the President, see S. Rep. No. 93-595 and No. 93-596, 93d Cong., 1st Sess. That legislation was dropped on the basis of assurances to the Congress that the current regulations would provide the same result, and that this Special Prosecutor would be wholly independent under them. See Hearings before the Senate Committee on the Judiciary on the Special Prosecutor, 93d Cong., 1st Sess., pt. 2, at 571-573. On this basis the regulations included the extraordinary provisions requir .. ing the President to obtain the consent of specified Members of Congress 2 before exercising his authority to direct the Attorney General to terminate or limit the Special Prosecutor's authority. See letter from Acting Attorney General Bork to Special Prosecutor Leon Jaworski, November 21, 1973. Indeed, the central concern was to guarantee the Special Prosecutor's freedom to determine on his own authority if there was evidence in the President's possession which was necessary to carry on his duties and his right to seek judicial process if necessary to secure that evidence. See Hearings, supra. The Attorney General has repeatedly given assurances that the Special Prosecutor is wholly independent in this regard.3

The regulations were carefully drafted to ensure the Special Prosecutor's independence in response to these

2 Cf. HumJJhrey's Exenttor v. United States. 295 U. S. 602, and Wiener v. United States, 357 U. S. 349, limiting the power of the President to remove a commissioner who has been confirmed by the Srnatr nne! perform~ ndjudicatory functions.

3 "Q. Mr. Bork, you may have ~tated in generally, but so it is perfectly clear and specific, it is clenrly understood by you nnd by Mr. Jaworski that he is free to go to court to press for additional tapes or Presidential papers if he deems it necessary?

"THE ACTING ATTORNEY GENERAL. That is absolutely clear."

Press conference of Acting Attorney General Bork, November 1, 1973.

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concerns, and they are unambiguous. It would be inconsistent with the law, those regulations, and the facts of this case to conclude anything other than that the Special Prosecutor has standing to bring this action on behalf of the United States, and that a justiciable case or controversy is presented for the Court's decision.

III

The words "Executive Privilege" do not appear in the Constitution. Article II, § 1 vests "the executive power" in the President. Whether in some circumstances the executive power carries with it an "executive privilege" to be immune from process running either from the Congress or the federal courts is a question we need not reach in this case. For this case in its starkest and simplest terms involves a narrow and it would seem almost a frivolous question. It is whether any part of the "judicial power of the United States" which Art. III, § 1 vests in the federal courts can by insistence of the President on "executive privilege" be shared by him.

That is the central issue in this case. There has been aQ indictment against named individuals aud an actual trial of six of them underway for alleged violations of federal laws. Article II, § 3 provides that the President "shall take care that the laws be faithfully executed." The "laws" of the United States plainly include not only Acts of Congress but judgments of the federal courts. His power of nomination of federal judges granted by Art. II, § 2 gives him a nexus with the federal judicial system. And the power bestowed by the same section "to grant reprieves and pardons for offenses against the United States, except in cases of impeachment" empowers him to act to relieve convicts of judgments rendered against them. But there is nothing in the Constitution that allows him to shape, condition, or par ..

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ticipate in the judicial process. Nor does it contain a statement of any immunity that he has from the duty to obey Acts of Congress or judgments of courts.

When the Fifth Amendment speaks of due process, it speaks in terms of "any person." When the Sixth Amendment speaks of "criminal prosecutions," it speaks of "the accused." The federal laws enacted by Congress custotomarily contain these generalities-excepting neither judges, Senators, Congressmen, Ambassadors, cabinet of· fleers, or any federal civil or military personnel. Income tax evasion, smuggling of drugs into the country, accept· nnce of bribes to perform official duties, election frauds, deprivation of civil rights of others-these theoretically could all be committed by any person from the President on down. The Speech or Debate Clause of § 6 of Art. I gives Members of Congress protection for liability for what they say "in either House." Moreover, a President no more than a judge can be sued for action taken in good faith but later found to have been erroneous as where a trial judge is overruled on appeal or a President who removes a commissioner from a bureau is later held to have acted beyond the scope of his authority. But any official-whether a President or one of a lowlier statuswho conspires to violate a federal law stands on the same footing as any common criminal, so far as indictments by grand juries are concerned. Whether there are limitations on criminal prosecutions of a President are ques. tions that need not be reached here. They need mention solely because of the possible rivalry between a common criminal prosecution of a President and the impeachment procedure prescribed by Art. I of the Constitution.

The President appoints with the advice and consent of the Senate an Attorney General. It was once assumed by virtue of Myers v. United States, 272 U. S. 52, that one nominated by the President could be removed by the

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President. But subsequent decisions have altered that doctrine. Humphrey, removed by Franklin D. Roosevelt from the Federal Trade Commission, was held to be lawfully entitled to the office, Humphrey's Executor v. United States, 295 U. S. 602, and later a War Claims Commissioner removed by Eisenhower was held to have been unlawfully removed. Wiener v. United States, 357 U. S. 349. In both the Humphrey and the Wiener cases, the person removed had not only been confirmed by the Senate but also was performing adjudicatory functions as commissioner, comparable to a judicial function. An Attorney General serves a different role. As chief law enforcement official, he operates to see to it that the laws are enforced equally and honestly against all. Whether if he moved to indict a President for violating a federal law the President could end the matter by removing the Attorney General is an unresolved question we need not reach. For here the person seeking aid of the "judicial power" of Art. III to obtain documents the President has is a Special Prosecutor, named by the President after the President had removed from that office Archibald Cox. The present Special Prosecutor was chosen by the President with a promise to the Congress that he would not be removed except with the concurrence of the Congress. No effort has been made to remove him. The source of the authority behind the present Special Prosecutor is relevant here only to empha~ size the weight of his authority, there being nothing in the background of his designation to indicate that the procedures he follows are to be less pervasive than those which the law of the land both permits and requires.

As noted by the Court of Appeals in Nixon v. Sirica, 487 F. 2d 700, 708 et seq., this Court has, on numerous occasions, found it appropriate to issue compulsory proc· ess against officials of the Executive Branch. See, e. g.,

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Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 ( 1952) , Kendall v. United States ex rel. Stokes, 12 Pet. ( 37 U. S.) 524 ( 1838). This has been true even when the clear and explicit thrust of the Court's action has been to restrain the desires or commands of the President himself, as in Youngstown Sheet & Tube Co. v. Sawyer, supra. Of course, considerations of comity have normally resulted in process being directed to lower executive officials rather than to the President himself; nevertheless, where the President has taken personal custody of disputed property and thereby placed himself personally in the midst of the controversy, the interests of justice may require that comity give way and that process issue, if necessary, against the President himself.

Such was the result in United States v. Burr, 25 Fed. Cas. 30 (No. 14,692d) (C. C. D. Va. 1807), in which Chief Justice Marshall approved the issuance of a subpoena duces tecum to President Jefferson for the production of certain correspondence between the President and one General Wilkinson. The Chief Justice found no basis for any Presidential immunity to process:

"In the provisions of the constitution, and of the statute, which give to the accused a right to the compulsory process of the court, there is no exception whatever. The obligation, therefore, of those provisions is general; . . . if an exception to the general principle exist, it must be looked for in the law of evidence." !d., at 34.

Any attempt to analogize the situation of the President to that of the king, to whom English law granted immunity from process, was rejected. The Chief Justice found the only possible objection to issuance of a subpoena against the President to be the practical consideration that compliance might interfere with his duties as

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18 UNITED STATES v. NIXON'

chief executive; and even this consideration was found to be no bar to the issuance of a subpoena, since

" [ t] he guard, furnished to this high officer, to pro., teet him from being harassed by vexatious and unnecessary subpoenas, is to be looked for in the conduct of a court after those subpoenas have issued; not in any circumstance which is to precede their being issued." Ibid. ( ~mphasis added).

He therefore concluded, with solne reluctance, that a subpoena could and must issue:

11It cannot be denied that to issue a subpoena to a person filling the exalted position of the chief magistrate is a duty which would be dispensed with more cheerfully than it would be performed; but, if it be a duty, the court cau have no choice in the case." Ibid.

As noted by the Chief Justice, supra, the Constitution makes no express mention of any Presidential immunities; this silence is in marked contrast to the specific immunities from arrest and inquiry granted to legislators by the "~peech and Debate" Clause, Art. I, s 6, cl. 1 of the Constitution. Nor can the principle of separation of powers be read to confer such immunity on the President; for his position as guardian and executor of the laws does not authorize him to flout or disregard those laws, but rather dictates that he be scrupulous in observing and abiding by them. As this Court stated in United States v. Lee, 106 U. S. 196, 220 ( 1882):

"No man in this country is so high that he is above the law. No officer of the law may set that law at defiance, with impunity. All the officers of the Gov., erument, from the highest to the lowest, are creature& of the law and are bound to obey it,

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"It is the only supreme power in our system of government, and every man who, by accepting. office, participates in its functions, is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives."

Respondent contends that, even if process may properly issue to him, he has an absolute privilege to withhold the subpoenaed information if he determines that disclosure would be contrary to the public interest. He further contends that, by virtue of the absolute nature of that privilege, the courts have no power to review or question his decision to invoke the privilege. Petitioner, on the other hand, contends that it is for the courts to assess the validity of a claim of privilege interposed to prevent disclosure of evidence for use in a criminal prosecution.

In support of their respective contentions, both parties have gathered and presented a considerable quantity of historical precedent and critical comment. Nearly 200 years of disputes have produced a pattern marked by Executive assertions of absolute privilege to withhold information, rejection of such assertions by the Judicial and Legislative Branches, and a general reluctance of any of the branches to pursue the issue to an apocalyptic resolution. The historical path is, for the most part, littered with practical compromises and practical retreats. Kcvertheless. as far as the Judicial Branch is concerned, it is clear that the courts have neither recognized nor enforced an absolute privilege against disclosure by the Executive.

Iu United States v. Burr, 25 Fed. Cas. 187 (No. 14,694) (C. C. D. Va. 1807), Chief Justice Marshall was confronted with further proceedings concerning the correspondence between General Wilkinson and President Jefferson. The United States Attoruey, acting on behalf of

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the President, sought to withhold portions of one letteron the ground that the contents ought not to be made public. The Chief Justice was evidently troubled by the idea of second-guessing the President's determination that the matter should not be disclosed; nevertheless, he clearly indicated his belief that the President's claim of privilege was subject to review by the courts, and would be enforced only where the reasons asserted appeared sufficient to the court:

"The president, although subject to the general rules which apply to others, may have sufficient motives for declining to produce a particular paper, and those motives may be such as to restrain the court from enforcing its production. . . . I can readily con~ ceive that the president might receive a letter which it would be improper to exhibit in public, because of the manifest inconvenience of its exposure. The occasion for demanding it ought, it such a case, to be very stron{J, and to be fully shown to the court before its production could be insisted on . ...

" Perhaps the court ought to consider the rea-sons which would induce the president to refuse to exhibit such a letter as conclusive ou it, unless such letter could be shown to be absolutely necessary in the defence. The president may himself state the particular reasons which may have induced him to withhold a paper, and the court would unquestionably allow their full force to those reasons. At the same time, the court could not refuse to pay proper attention to the affidavit of the accused. But on objections being made by the president to the production of a paper, the court would not proceed further in the caRe w·ithout such an affidavit as would clearly shew the paper to be essential to the justice oj the case . ..•

/":f-l7G(i' & 7"3-1834-~IEMb


" Had the president, when he transmitted it, subjected it to certain restrictions, and stated that in his judgment the public interest required certain parts of it to be kept secret, and had accordingly made a reservation of them, all proper respect would have been paid to it .... " 25 Fed. Cas., at 191-Hl2 (emphasis added).

It is evident from the quoted passages that while the ( 'hief Justice was willing to give all d"ue consid-eration to the justifications advanced oy the President for withholding the evidence in question, he fully recognized that the ultimate determination as to the sufficiency of those reasons. when balanced· against the materiality of the t•vidence to the d-efense. would- have to be made by the <·ourt

That principle was followed by this Court in United States v. Reynolds, 345 U. S. 1 (1953), in which the Government sought to rely on a claimed Execntive power to withhold documents in order to bar production of certam Air Force documents at the request of a private tort plaintiff. While recognizing the existence of a privilege protecting military and state secrets, the Court stated that "[j] udicial control over the evidence in a case canuot be ahd1cated to the caprice of executive officers." ld., at 0-10.

ln the instant case, of course, respondent does not cont<>ncl that the subpoenaed materials contain military or state secrets but claims a privilege for "intra-governmental documents reflecting advisory opinions, recommenclations and deliberations comprising part of a process by whwh governmental decisions and policies are formufated." Carl Zeiss Stiftung v. V. E. B . Carl Zeiss, Jena, 40 F. R. D. :318. 324 (D. D. C. 1966), aff'd on opinion below, - F. S. App. D. C. -, 384 F. 2d 979 (1967). Yet as we recently noted in Environmental Protection

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Agency v. Mink, 410 U. S. 73 (1973), disputed memoranda have normally been required to be produced for in camera inspection in order to determine whether they should be disclosed or withheld on the basis of a claimed privilege.' I d., at 87-88 and n. 15.

In Xixon v. Sirica, supra, the Special Prosecutor sought to obtain specified tape recordings of presidential conversations for presentation to a grand jury. The Court of Appeals found that the Special Prosecutor had made a "uniquely powerful showing" that the requested tapes \vcre essential to the performance of the grand jury's function; ancl the court further found that a particularly compelling public interest would be served by disclosure, in light of tho grand jury's vital dual function of not only indicting those as to whom probable cause to bchevr that they engaged in criminal activity may be shown, but also refusing to indict persons as to whom probable cause cannot be shown and thereby sparing such persons the ordeal of an unwarranted trial. 487 F 2d, at 717.

The instant case, of course, involves materials sought by the Special Prosecutor for use in impending criminal JH'08ecutions. The bulk of the cases in which executive pnvilcge has been discussed have been civil suits. In thr context of a criminal prosecution, however, recent d<'eJ!:liOilS of th1s Court seem clearly to compel the conclusion that no executive privilege can be recognized as a JUstification for the suppression of evidence material to the issues of guilt or innocence. Where the liberty of an accused 1s at stake, the Government's desire for secr<'CY cannot be permitted, in the name of executive

'Surh a prorrdurr i~, of ron1se, impermissiblr wllC'rr a privilrgo holder rrhrs npou h1~ Fifth Amendmrnt privilege ngain~t ~elf~ inrnmuwtwn Tlw Prc~1dent, however, apparently made no effort (o llltl·oducc thaL particular pnvilege into the~;c procecding8.

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UNITED STATES v . NIXON 23

privilege, to override the constitutional demands for a fair trial."

Under our decision Brady v. M arylan:d, 373 U. S. 83, a prosecutor who has in his possession or available information of an exculpatory nature commits reversible error if he does not submit that evidence to the defense. The error is kin to allowing the trial to go forward on evidence known to the prosecutor to be false. Mooney v. Holohan, 294 U. S. 103. In neither case is due process satisfied unless full disclosure is made.

If there is a doubt whether the undisclosed evidence is exculpatory and aids the defense or is incriminatory and aids the prosecution, the practice is to deliver the material in camera to the trial court who makes the necessary finding on materiality and relevance of the secret information or data. That was the procedure we adopted in Alderman v. United States, 394 U. S. 165, for examining the content of wiretaps which were alleged to have been unlawfully made.

The present case is technically different from our earlier ones dealing with information in the possession of the prosecutor. He does not have the material sought. The President has it and refuses to turn it over to the Special Prosecutor or to Judge Sirica, who is presiding over the criminal cases against the six defendants. The Brady and Alderman procedures are protective of the rights of an accused under the Fifth and Sixth Amendments. They help make sure that by executive tactics the right to a fair trial is not impaired. The President is the Chief Executive who is charged by Art. I, § 3 with taking "care that the laws be faithfully executed." It would be a travesty to twist or qualify that command by the addition of an "unless" clause which permits a President to say

"·See Gmvel v. United States, 408 U. S. 606, 644--646 (DouaLA&, ~t, di:ssentmg).

. .. ~'

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that his "executive privilege'' can withhold those docuc ments or which says that the President, rather than the court, will pass on the materiality or relevance of the withheld material in the trial of the defendants. In either case the grant of any such authority to the President would be to allow him to share the "judicial power" of Art. III. For then it would be an unreviewable "in camera!' inspection by the President which would determine the relevance and materiality of tl1e documents in his pgss€ssion. The President is, for constitutional purposes, the chief law enforc€rrt~nt ahd prasi:lcutoriai officer in the Nation; to allow him to conceal from a court information which may be critical to ilie fairness of a trial of named defendants would be a monstrous affront to the rule of law Ui1der which we live.

There is another aspect of the requirements of a fair trial which delivery of the informatioh in possessidh of the President to the trial court would serve.

We held in Jencks v. United States, 353 U. S. 657, that the defense in a federal criminal prosecution was entitled generally to obtain for impeachment purposes statements which had been made to government agents by goverumcnt witnesses. These statements were to be turned over to the defense in time for cross-examination if their contents related to the subject matter of the witness' direct testimony. That decision was followed by an Act of Congress, 18 U. S. C. § 3500, which like the Jencks decision rested not on constitutional grounds but discovery procedures appropriate for federal criminal trials. Section 3500 applies not only to written statements of the witness but "mechanical, electrical, or other recording, or a transcription thereof . , . record contemporaneously with the making of such oral statements." Section 3500 permits a court to inspect the statements in camera where it contains matter not rele ..

l'~lTED STATI·:S 11. :\lXO~ 2.~

vant to tlw cas(j at !Jar. When vve sustained § 3500 111

PalerlllO \". United States, 360 r. s. 343, MH. JuSTICE

BH~<:NNAN pertinclltly observed:

"This responsibility of the federal trial judge, it goes without saying. is not to be delegated to the 1wosecutor. Questions of production of statententR arc not to be solved through one party's determination that interview reports fall without the statute and hence that tlwy are not to 0(' produced to d(!~ feni'C' couns0l or to the trial judge for his determina,tion as to their coverag0. I am confident that feclNal trial judges will devise procPdural methods ,\'lwreby their responsibility is not abdicated in favor of the unilateral detNtnination of the prosecuting arm of the GovNnmcnt.'' I d., at 361.

.\nd S('(' Crunpbell Y. ['uited States, 3()5 P. S. R5; 37:i r. N. 487.

The reason for the Act may assure insofar as possil..Jle another aspect of the fairness of a trial. The federal agent or employee testifying as to events long past may have inaccurate recollections or may be confusi11g 011e 0pisode with another. and the like. The Jencks Act is part of the arsenal of the law to help test the credibility and rcliability of witnesses.

The six defendants in the case from Judge Sirica s court w<•re f(•dcra 1 agents in various capacities. They may wc•ll tah the f'talld as witnPsses. lf so, th0 docutllC'nts in pos:-C'ssion of the President should be in poss<'ssion of th(' trial judge, so that a trial need not he delayed \' ·!tile protracted collateral litigation is pursu0d to gain posse~sioll of thos<' docUllH'IItR .

.Much has b('ell argued about the relevanc<' or matPnalit:v of thi" infonnation.

·'

..

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A factual questiOn raised by counsel for the Presiden t ·IS whether the Special Prosecutor made an adequate showing under the applicable standards to obtain a subpoena under Rule 17 (c)." The District Court in its order of May 20 applied the standards set out in the kading cases under Rule 17 (c). Bowman Dairy Co v Cnded States, :341 P. S. 214, and United States '. lozia, 1:3 F. R. D. :3:30. The order states that the Special Prose~ cutor did m0ct the standards set up by these cas<'S. Moreowr, the District Court properly relied on the fact that the materials were being sought from a third party rather than from an opposing party, and thus the subpoena could not be regarded as an impermissible attempt to circumvent the discovery limitations applied to partiPs

. hy Rule 16. If there arc questions concerning the adequacy of the

showing, they will be open on remand of the cases. We nr<' far removed from the trial and not sufficiently ac~ quaintPd with the ramifications of the issues which are <'nwrging and C'annot say on this record that the showing undrr Huk 17 (C') was not adequate.

•· H ule 1 i ( !') of t lw B'<'ckra I Hulr~ of Crnnl!lal Proredur<' pro\ ' HlP>' ' ·A "'uhpc>e'lla maY al~o !'ommnud thr Jlf'rHlll to wbom Jt ~~

rl!l'PC't Pd to produc1• t lw hook~. paprr~, documrnt~ or othc•r oh.wct~

dr•,;Jgnat<'d tlwr<'lll Tlw court on motwn made promptb· may qua,.;h or nwchf\ t lH' "'uhpo!'lla 11' romplianrr would br unrrasonalJir or oppr<'s,.;Jv!' Th<' comt m:1~· d!rC'rt that bookl', papers, dorumPnts oJ oh.wrt :-; dr•s1gna t <'d Ill t ht• ;;uhpoPna br producrd brforc' t lw t·ourt 11 n timt· pnor to tlw trw! or prior to thr timr wlwn tlwy nrr to lw

ofYPr!'d n1 Pv!dc•nec· and mnY 11pon tlwir production prrmit t hr boob, Jl:IJlf'l'", do!'lllll!'nts or objPct~ or portion:< thrn·of to lw in,.;p<'ctt•d h\' tlw pnrtll'" and tlwn attol'llC'\'1'"

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