[Deschler's Precedents, Volume 4, Chapters 15 - 17]
[Chapter 15. Investigations and Inquiries]
[B. Inquiries and the Executive Branch]
[Â§ 4. Litigation to Enforce a Subpena; Senate Select Committee v Nixon]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 2335-2342]
 
                               CHAPTER 15
 
                      Investigations and Inquiries
 
                 B. INQUIRIES AND THE EXECUTIVE BRANCH
 
Sec. 4. Litigation to Enforce a Subpena; Senate Select Committee v 
    Nixon

    A review of recent litigation to enforce congressional subpenas may 
help reveal the issues involved in reconciling the congressional 
authority to seek information with the Chief Executive's claim of right 
to deny access to information in some circumstances.

    The stage for a historic confrontation was set when the Senate 
Select Committee on Presidential Campaign Activities, created on Feb. 
7, 1973, by unanimous approval of Senate Resolution 60,(19)  
with authority to investigate and study illegal, improper, or unethical 
activities in connection with the 1972 Presidential campaign and to 
issue subpenas,(20)  discovered that

[[Page 2336]]

President Nixon had tape recorded conversations at the White House. 
After failing to obtain certain information by informal means, the 
select committee issued two subpenas duces tecum, one for tape 
recordings of five meetings between the President and White House 
Counsel John W. Dean III, and another for documents and materials 
relating to alleged criminal acts by a list of 25 persons. When the 
President failed to disclose the recordings and other materials, the 
select committee filed a civil actiont (1) for declaratory 
judgment, mandatory injunction, mandamus, and summary judgment in the 
District Court of the District of Columbia to enforce its subpenas and 
compel the President to transmit these materials to the select 
committee.(2) 
---------------------------------------------------------------------------
19. See Sec. 1.46, supra, and 119 Cong. Rec. 3830-51, 93d Cong. 1st 
        Sess. for a discussion of this resolution.
20. Authority to issue subpenas, originally granted by S. Res. 60, was 
        buttressed and clarified by S. Res. 194, which expressed the 
        sense of the Senate that issuance of a subpena to the President 
        was authorized by S. Res. 60, and ratified that issuance. 
        Furthermore, S. Res. 194 expressed the sense of the Senate that 
        the select committee's initiation and pursuit of the lawsuit to 
        compel disclosure of the subpenaed materials did not require 
        prior approval of the Senate, and that in seeking this 
        information which was of vital importance the select committee 
        furthered a valid legislative purpose. See 119 Cong. Rec. 
        36094, 36095, 93d Cong. 1st Sess., Nov. 7, 1973.
 1. This case, captioned as Senate Select Committee on Presidential 
        Campaign Activities, suing in its own name and in the name of 
        the United States, et al. v Richard M. Nixon, individually and 
        as President of the United States, was the subject of three 
        judicial pronouncements discussed here, two in the District 
        Court of the District of Columbia, an opinion entered by Chief 
        Judge John J. Sirica and reported at 366 F Supp 51 (Oct. 17, 
        1973), and an order and memorandum entered by Judge Gerhard A. 
        Gesell and reported at 370 F Supp 521 (Feb. 8, 1974); and one 
        in the Court of Appeals for the District of Columbia Circuit, 
        an opinion written by Chief Judge David L. Bazelon for the 
        court sitting en banc and reported at 498 F2d 725 (May 23 
        1974).
 2. In seeking these civil remedies, the select committee rejected as 
        ``unseemly and inappropriate'' two traditional procedures to 
        enforce subpenas, a contempt proceeding under 2 USC Sec. 192 
        and common law powers permitting the Sergeant at Arms forcibly 
        to secure attendance of a subpenaed person. See Senate Select 
        Committee on Presidential Campaign Activities, et al. v Nixon, 
        366 F Supp 51, 54 (D.D.C., Oct. 17, 1973), John J. Sirica, 
        Chief Judge.
---------------------------------------------------------------------------

    In an order dated Oct. 17, 1973, the trial court dismissed the 
select committee's prayer for enforcement of its subpena after deciding 
only one of the several issues raised, that existing statutes did not 
grant jurisdiction to decide

[[Page 2337]]

such a controversy.(3)  To remedy this inhibition, Congress, 
at the instance of the select committee, expressly conferred special 
jurisdiction on the District Court of the District of Columbia to 
consider civil actions brought by the select committee to enforce its 
subpenas.(4) 
---------------------------------------------------------------------------
 3. Senate Select Committee on Presidential Campaign Activities, et al. 
        v Nixon, 366 F Supp 51, 61 (D.D.C.) John J. Sirica Chief Judge.
 4. This jurisdictional statute, Pub. L. No. 93-190 (Dec. 19, 1973), 
        appears in Senate Select Committee on Presidential Campaign 
        Activities, Presidential Campaign Activities of 1972, S. Res. 
        60, appendix to the hearings, 93d Cong. 2d Sess. (1974).
---------------------------------------------------------------------------

    After rehearing the case and considering the contentions of the 
parties, the district court (5)  made several findings: 
first, a controversy between two branches of government in which one 
sought information from the other was justiciable (appropriate for 
resolution by the courts) and was not, as suggested by the President's 
counsel, a nonjusticiable political question; second, that in a 
controversy of this kind, the court, after determining justiciability, 
had a ``duty to weigh the public interest protected by the President's 
claim of privilege against the public interest that would be served by 
disclosure to the Committee in this particular instance''; 
(6) third, that the select committee failed to demonstrate 
either a pressing need for the subpenaed tapes or that further public 
hearings concerning the tapes would serve the public interest; fourth, 
the President's claim that the public interest was best served by a 
blanket unreviewable claim of confidentiality over all communications 
was rejected; and fifth, that the pending criminal prosecutions had to 
be safeguarded from the prejudicial effect which might arise if the 
select committee subpenaed the materials. On the basis of these 
holdings, the court declined to issue an injunction directing the 
President to comply with the subpena requiring information about the 25 
listed individuals, and instead directed the President to submit a 
particularized statement as to selected portions of the subpenaed tape 
recordings.
---------------------------------------------------------------------------
 5. See Senate Select Committee on Presidential Campaign Activities, et 
        al. v Nixon, 370 F Supp 521 (D.D.C., Feb. 8, 1974), Gerhard A. 
        Gesell, District Judge.
 6. 370 F Supp 521, 522 (D.D.C. 1974); the quoted language was taken 
        from Nixon v Sirica, 487 F2d 700, 716-718 (D.C. Cir., 1973), 
        the suit brought by the Special Prosecutor to obtain certain 
        evidence from the President.
---------------------------------------------------------------------------

    The President refused to submit such a statement and reasserted

[[Page 2338]]

his generalized claim of privilege on the grounds of confidentiality 
and his duty to prevent the possibly prejudicial effects on criminal 
prosecutions which might result from disclosure of the materials to the 
select committee. The trial court dismissed the select committee's suit 
to compel disclosure of the tapes.(7)
---------------------------------------------------------------------------
 7. 370 F Supp 521, 524 (D.D.C. 1974).
---------------------------------------------------------------------------

    The select committee did not contest the decision to quash the 
subpena for materials relating to the 25 named individuals, but 
appealed the dismissal of the action to compel disclosure of the tapes. 
The United States Court of Appeals for the District of Columbia Circuit 
applying the reasoning it had used in Nixon v Sirica,(8) in 
which the Special Prosecutor was granted access to certain Presidential 
tapes for use in grand jury investigations, rejected the select 
committee's argument that a district court, once it had determined that 
a generalized claim of privilege failed, lacked authority to balance 
public interests. The court of appeals also rejected the district 
court's rulings that the President's generalized claim of privilege 
failed and that the Chief Executive must submit subpenaed materials to 
the court accompanied by particularized claims to be weighed against 
the public interest.
---------------------------------------------------------------------------
 8. Nixon v Sirica, 487 F2d 700 (D.C. Cir. 1973) [hereinafter cited as 
        Nixon].
---------------------------------------------------------------------------

    Restating its belief expressed in Nixon v Sirica, that Presidential 
communications are ``presumptively privileged,'' (9) and 
that the privilege is analogous to the privilege ``between a 
congressman and his aides under the speech and debate clause; to that 
among judges and their law clerks; and . . . to that contained in the 
fifth exemption to the Freedom of Information Act,'' (10) 
the court held that, ``. . . the presumption that the public interest 
favors confidentiality can be defeated only by a strong showing of need 
by another institution of government, a showing that the 
responsibilities of that institution cannot responsibly be fulfilled 
without access to records of the President's deliberations. . . .'' 
(11) Such a showing ``turns not on the nature of the 
Presidential conduct the subpenaed materials might reveal, but

---------------------------------------------------------------------------
 9. Senate Select Committee on Presidential Campaign Activities, et al. 
        v Nixon, 498 F2d 725, 730 (D.C. Cir. 1974) [hereinafter cited 
        as Select Committee]; see also Nixon, at 705, 717, and 718.
10. Select Committee, at 729; see also Nixon, at 717.
11. Select Committee, at 730; see also Nixon, at 722.
---------------------------------------------------------------------------

[[Page 2339]]

rather on the nature and appropriateness of the function in the 
performance of which the material was sought and the degree to which 
the material was necessary to its fulfillment.'' (12)

---------------------------------------------------------------------------
12. Select Committee, at 731; see also Nixon, at 717, 718.
---------------------------------------------------------------------------

    The court applied these tests to the select committee's functions 
and asserted needs. The select committee maintained that it needed 
subpenaed materials to resolve conflicts in the voluminous testimony it 
had received so that it could responsibly exercise its duty to oversee 
activities and ascertain malfeasance in the executive department. 
Without denying the congressional role to exercise a general oversight 
power or defining the limits of that power, the court found that the 
select committee's oversight authority was subordinate to the 
constitutionally prescribed method of ascertaining malfeasance by 
executive officials, impeachment. Because the House Committee on the 
Judiciary had commenced an impeachment inquiry, the Select Committee's 
immediate need for the subpenaed materials was ``merely cumulative'' 
from a congressional perspective. The need for the subpenaed materials 
to fulfill its legislative responsibility, to determine whether 
Congress should enact laws to regulate political activities, also 
failed because the court believed that legislative judgments, unlike 
grand jury determinations of probable cause, depend more on predicted 
consequences of proposed legislative actions and their political 
acceptability than on precise reconstruction of past 
events.(13)
---------------------------------------------------------------------------
13. Select Committee, at 732.
---------------------------------------------------------------------------

    The court indicated that the President's obligation to respond to a 
subpena would not require him to submit particularized claims of 
privilege to the court to be weighed against the public interest in 
disclosure unless the select committee made a ``showing of the order 
made by the grand jury'' in Nixon v Sirica.(14) Applying 
this standard, the court concluded that the need demonstrated by the 
select committee in the circumstances of this case and in light of the 
impeachment investigation by the House Committee on the Judiciary, was 
``too attenuated and too tangential'' to permit a judicial judgment 
that the President was required to comply with the committee's 
subpena.(15)
---------------------------------------------------------------------------
14. Select Committee, at 729, 730; in Nixon, at 715, the Special 
        Prosecutor was found to have made a ``uniquely powerful 
        showing'' of need for subpenaed materials.
15. Select Committee, at 733.
---------------------------------------------------------------------------

    The court of appeals affirmed the order dismissing the select

[[Page 2340]]

committee's suit without prejudice, although on grounds different from 
those announced by the district court.(16)
---------------------------------------------------------------------------
16. Id.
---------------------------------------------------------------------------

    A review of the Chief Executive's refusal to disclose information 
on the basis of privilege would not be complete without a discussion of 
certain aspects of the 8-0 Supreme Court decision in United States v 
Nixon,(17) in which the President was ordered to respond to 
a subpena issued by the Special Prosecutor for tape recordings by 
submitting them to the district court for judicial inspection. Because 
the opinion expressly stated that the court was ``not here concerned 
with the balance . . . between the confidentiality interest of the 
executive and congressional demands for information,'' (18) 
its holding would not control a future suit brought to enforce a 
congressional subpena. Nonetheless, an analysis of the court's 
reasoning and approach demonstrates the limits and foundation of 
executive privilege, factors which would be involved in such an action. 
Reaffirming that ``it is emphatically the province and duty of the 
Supreme Court to `say what the law is','' (19) the court 
rejected the President's claim of absolute discretion exclusively to 
determine what information may be withheld under the shield of 
executive privilege. However, in one of the most significant holdings 
of the opinion, the court at three points alluded to a constitutional 
foundation for a claim of executive privilege based on confidentiality 
of Presidential communications:
---------------------------------------------------------------------------
17. 418 U.S. 683 (1974) [hereinafter cited as U.S. v Nixon]; Mr. 
        Justice Rehnquist took no part in the consideration or decision 
        of this case. See Constitution of the United States of America: 
        Analysis and Interpretation, S. Doc. No. 92-82, 92 Cong. 2d 
        Sess., 1975 Supplement, p. S 20-22, for a discussion of this 
        decision.
18. U.S. v Nixon, at 712 n. 19.
19. U.S. v Nixon, at 705; the internal quotes were taken from Marbury v 
        Madison, 1 Cranch 137 (1803).
---------------------------------------------------------------------------

        Whatever the nature of the privilege of confidentiality of 
    presidential communications in the exercise of Art. III powers the 
    privilege can be said to derive from the supremacy of each branch 
    within its own assigned area of constitutional duties. Certain 
    powers and privileges flow from the nature of enumerated powers; 
    (20) the protection

---------------------------------------------------------------------------
20. In a footnote at this point the court dealt with the Special 
        Prosecutor's contention that no constitutional provision 
        authorized the Executive to assert privilege by stating that 
        silence of the Constitution is not dispositive. To support this 
        position, the following passage from Marshall v Gordon, 243 
        U.S. 521, 537 (1937), was cited: ``The rule of constitutional 
        interpretation announced in McCulloch v Maryland, 4 Wheat. 316, 
        that that which was reasonably appropriate and relevant to the 
        exercise of a granted power was considered as accompanying the 
        grant, has been so universally applied that it suffices merely 
        to state it.'' See U.S. v Nixon, at 705, n. 16.
---------------------------------------------------------------------------

[[Page 2341]]

    of the confidentiality of presidential communications has similar 
    constitutional underpinnings.(1)

---------------------------------------------------------------------------
 1. U.S. v Nixon, at 705, 706.
---------------------------------------------------------------------------

        A President and those who assist him must be free to explore 
    alternatives in the process of shaping policies and making 
    decisions and to do so in a way many would be unwilling to express 
    except privately. These are the considerations justifying a 
    presumptive privilege for presidential communications. The 
    privilege is fundamental to the operation of government and 
    inextricably rooted in the separation of powers under the 
    Constitution.(2)
---------------------------------------------------------------------------
 2. Here the Court cited Carl Zeiss Stiftung v V.E.B. Carl Zeiss, Jena, 
        40 F.R.D. 318, 325 (DDC 1966), [aff'd. 384 F2d 979, cert. 
        denied 389 U.S. 952 (1967)]; Nixon v Sirica, 487 F2d 700, 713 
        (D.C. Cir. 1973); Kaiser Aluminum and Chem. Corp. v U.S., 157 F 
        Supp 939 (Ct. Cl. 1958); and The Federalist No. 64 (S.F. Mittel 
        ed. 1938). U.S. v Nixon, at 708, n. 17.
---------------------------------------------------------------------------

        Nowhere in the Constitution, as we have noted earlier, is there 
    any explicit reference to a privilege of confidentiality, yet to 
    the extent this interest relates to the effective discharge of a 
    President's powers, it is constitutionally based.(3)
---------------------------------------------------------------------------
 3. U.S. v Nixon, at 711.
---------------------------------------------------------------------------

    The court's willingness to balance competing interests depends on 
the nature of the claim of executive privilege. Although it found that 
a generalized claim of privilege based on confidentiality must yield to 
a need of the Special Prosecutor to obtain information for use in a 
pending criminal trial, the court indicated that it would not be as 
willing to balance interests or reject a claim of executive privilege 
based on the President's need to protect military, diplomatic or 
sensitive national security secrets. ``As to these areas of Art. II 
duties the courts have traditionally shown the utmost deference to 
presidential responsibilities.'' (4)
---------------------------------------------------------------------------
 4. U.S. v Nixon, at 710; the court cited C. & S. Air Lines v Waterman, 
        333 U.S. 103, 111 (1948) and U.S. v Reynolds, 345 U.S. 1 
        (1952), two cases where the Supreme Court deferred to 
        Presidential claims of secrecy in foreign policy and military 
        affairs, respectively.
---------------------------------------------------------------------------

    Another factor in the authority of courts to review claims of 
executive privilege is the nature of the asserted need for information. 
Because claims of executive privilege either on grounds of 
confidentiality or diplomatic, military, or national security secrets 
are constitutionally based, the claim of need based on the Constitution 
is more likely to be reviewed than

[[Page 2342]]

one which is not. The fact that the Special Prosecutor's claim of need 
for information needed in a pending criminal trial was based on the 
fifth amendment guarantee of due process of law and the sixth amendment 
right to be confronted with witnesses against him and have compulsory 
process (subpenas) for obtaining witnesses in his favor was accorded 
great weight by the court in balancing the need for evidence against 
the requirement of confidentiality. Linking these constitutional bases 
to the responsibilities of the judicial branch tipped the balance in 
favor of requiring the President to submit subpenaed materials for a 
judicial inspection.

        The impediment that an absolute, unqualified privilege would 
    place in the way of the primary constitutional duty on the Judicial 
    Branch to do justice in criminal prosecutions would plainly 
    conflict with the function of the courts under Art. III. . . .
        To read the Art. II powers of the President as providing [such] 
    privilege [on the basis merely of] a generalized claim of the 
    public interest in confidentiality of nonmilitary and nondiplomatic 
    discussions would upset the constitutional balance of ``a workable 
    government'' and gravely impair the role of the courts under Art. 
    III.(5)
---------------------------------------------------------------------------
 5. U.S. v. Nixon, at 707.
---------------------------------------------------------------------------

    Additional factors in the decision were the court's unwillingness 
to conclude that advisors would temper the candor of their remarks 
because of the possibility of occasional disclosure; (6) and 
its belief that a judge in chambers could protect the confidentiality 
of Presidential communications consistent with the fair administration 
of justice.(7)
---------------------------------------------------------------------------
 6. U.S. v. Nixon, at 712.
 7. U.S. v. Nixon, at 714.
---------------------------------------------------------------------------