U.S. Supreme Court United States v. Nixon, 418
U.S. 683 (1974) United States v.
Nixon No. 73-1766 Argued July 8, 1974 Decided July 24, 1974 418
U.S. 683 ast|>* 418
U.S. 683 CERTIORARI BEFORE JUDGMENT TO THE
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT Syllabus Following indictment alleging violation of federal statutes by
certain staff members of the White House and political supporters
of the President, the Special Prosecutor filed a motion under
Fed.Rule Crim.Proc. 17(c) for a subpoena duces tecum for
the production before trial of certain tapes and documents relating
to precisely identified conversations and meetings between the
President and others. The President, claiming executive privilege,
filed a motion to quash the subpoena. The District Court, after
treating the subpoenaed material as presumptively privileged,
concluded that the Special Prosecutor had made a sufficient showing
to rebut the presumption and that the requirements of Rule 17(c)
had been satisfied. The court thereafter issued an order for an in camera examination of the subpoenaed material, having
rejected the President's contentions (a) that the dispute between
him and the Special Prosecutor was nonjusticiable as an
"intra-executive" conflict and (b) that the judiciary lacked
authority to review the President's assertion of executive
privilege. The court stayed its order pending appellate review,
which the President then sought in the Court of Appeals. The
Special Prosecutor then filed in this Court a petition for a writ
of certiorari before judgment (No. 73-1766), and the President
filed a cross-petition for such a writ challenging the grand jury
action (No. 73-1834). The Court granted both petitions. Held: 1. The District Court's order was appealable as a "final" order
under 28 U.S.C. § 1291, was therefore properly "in" the Court of
Appeals, 28 U.S.C. § 1254, when the petition for certiorari before
judgment was filed in this Court, and is now properly before this
Court for review. Although such an order is normally not final and
subject to appeal, an exception is made in a

															"limited class of Page 418 U. S. 684 cases where denial of immediate review would render impossible
any review whatsoever of an individual's claims," United States v. Ryan, 402 U.
S. 530 , 402 U. S. 533 .
Such an exception is proper in the unique circumstances of this
case, where it would be inappropriate to subject the President to
the procedure of securing review by resisting the order and
inappropriate to require that the District Court proceed by a
traditional contempt citation in order to provide appellate review.
Pp. 418 U. S.
690 -692.

															2. The dispute between the Special Prosecutor and the President
presents a justiciable controversy. Pp. 418 U. S.
692 -697.

															(a) The mere assertion of an "intra-branch dispute," without
more, does not defeat federal jurisdiction. United States v.
ICC, 337 U. S. 426 . P. 418 U. S.
693 .

															(b) The Attorney General, by regulation, has conferred upon the
Special Prosecutor unique tenure and authority to represent the
United States, and has given the Special Prosecutor explicit power
to contest the invocation of executive privilege in seeking
evidence deemed relevant to the performance of his specially
delegated duties. While the regulation remains in effect, the
Executive Branch is bound by it. United States ex rel. Accardi
v. Shaughnessy, 347 U. S. 260 . Pp. 418 U. S.
694 -696.

															(c) The action of the Special Prosecutor within the scope of his
express authority seeking specified evidence preliminarily
determined to be relevant and admissible in the pending criminal
case, and the President's assertion of privilege in opposition
thereto, present issues "of a type which are traditionally
justiciable," United States v. ICC, supra, at 337 U. S. 430 ,
and the fact that both litigants are officers of the Executive
Branch is not a bar to justiciability. Pp. 418 U. S.
696 -697.

															3. From this Court's examination of the material submitted by
the Special Prosecutor in support of his motion for the subpoena,
much of which is under seal, it is clear that the District Court's
denial of the motion to quash comported with Rule 17(c), and that
the Special Prosecutor has made a sufficient showing to justify a
subpoena for production before trial. Pp. 418 U. S.
697 -702.

															4. Neither the doctrine of separation of powers nor the
generalized need for confidentiality of high-level communications,
without more, can sustain an absolute, unqualified Presidential
privilege of immunity from judicial process under all
circumstances. See, e.g., 5 U. S. Madison, 1 Cranch 137, 5 U. S. 177 ; Baker v. Carr, 369 U. S. 186 , 369 U. S. 211 .
Absent a claim of need to protect military, diplomatic, or
sensitive national security secrets, the confidentiality of Page 418 U. S. 685 Presidential communications is not significantly diminished by
producing material for a criminal trial under the protected
conditions of in camera inspection, and any absolute
executive privilege under Art. II of the Constitution would plainly
conflict with the function of the courts under the Constitution.
Pp. 418 U. S.
703 -707.

															5. Although the courts will afford the utmost deference to
Presidential acts in the performance of an Art. II function, United States v. Burr, 25 F. Cas. 187, 190, 191-192 (No.
14,694), when a claim of Presidential privilege as to materials
subpoenaed for use in a criminal trial is based, as it is here, not
on the ground that military or diplomatic secrets are implicated,
but merely on the ground of a generalized interest in
confidentiality, the President's generalized assertion of privilege
must yield to the demonstrated, specific need for evidence in a
pending criminal trial and the fundamental demands of due process
of law in the fair administration of criminal justice. Pp. 418 U. S.
707 -713.

															6. On the basis of this Court's examination of the record, it
cannot be concluded that the District Court erred in ordering in camera examination of the subpoenaed material, which
shall now forthwith be transmitted to the District Court. Pp. 418 U. S.
713 -714.

															7. Since a president's communications encompass a vastly wider
range of sensitive material than would be true of an ordinary
individual, the public interest requires that Presidential
confidentiality be afforded the greatest protection consistent with
the fair administration of justice, and the District Court has a
heavy responsibility to ensure that material involving Presidential
conversations irrelevant to or inadmissible in the criminal
prosecution be accorded the high degree of respect due a President,
and that such material be returned under seal to its lawful
custodian. Until released to the Special Prosecutor, no in
camera material is to be released to anyone. Pp. 418 U. S.
714 -716.

															No. 73-1766, 377
F. Supp. 1326 , affirmed; No. 73-1834, certiorari dismissed as
improvidently granted.

															BURGER, C.J., delivered the opinion of the Court, in which all
Members joined except REHNQUIST, J., who took no part in the
consideration or decision of the cases. Page 418 U. S. 686 MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

															This litigation presents for review the denial of a motion,
filed in the District Court on behalf of the President of the
United States, in the case of United States v. Mitchell (D.C.Crim. No. 7110), to quash a third-party subpoena duces
tecum issued by the United States District Court for the
District of Columbia, pursuant to Fed.Rule Crim.Proc. 17(c). The
subpoena directed the President to produce certain tape recordings
and documents relating to his conversations with aides and
advisers. The court rejected the President's claims of absolute
executive privilege, of lack of jurisdiction, and of failure to
satisfy the requirements of Rule 17(c). The President appealed to
the Court of Appeals. We granted both the United States' petition
for certiorari before judgment (No. 7 1766), [ Footnote 1 ] and also the President's
cross-petition for certiorari Page 418 U. S. 687 before judgment (No. 73-1834), [ Footnote 2 ] because of the public importance of the issues
presented and the need for their prompt resolution. 417 U.S. 927
and 960 (1974).

															On March 1, 1974, a grand jury of the United States District
Court for the District of Columbia returned an indictment charging
seven named individuals [ Footnote
3 ] with various offenses, including conspiracy to defraud the
United States and to obstruct justice. Although he was not
designated as such in the indictment, the grand jury named the
President, among others, as an unindicted coconspirator. [ Footnote 4 ] On April 18, 1974, upon
motion of the Special Page 418 U. S. 688 Prosecutor, see n 8, infra, a subpoena duces tecum was issued
pursuant to Rule 17(c) to the President by the United States
District Court and made returnable on May 2, 1974. This subpoena
required the production, in advance of the September 9 trial date,
of certain tapes, memoranda, papers, transcripts, or other writings
relating to certain precisely identified meetings between the
President and others. [ Footnote
5 ] The Special Prosecutor was able to fix the time, place, and
persons present at these discussions because the White House daily
logs and appointment records had been delivered to him. On April
30, the President publicly released edited transcripts of 43
conversations; portions of 20 conversations subject to subpoena in
the present case were included. On May 1, 1974, the President's
counsel filed a "special appearance" and a motion to quash the
subpoena under Rule 17(c). This motion was accompanied by a formal
claim of privilege. At a subsequent hearing, [ Footnote 6 ] further motions to expunge the grand
jury's action naming the President as an unindicted coconspirator
and for protective orders against the disclosure of that
information were filed or raised orally by counsel for the
President.

															On May 20, 1974, the District Court denied the motion to quash
and the motions to expunge and for protective orders. 377 F.
Supp. 1326 . It further ordered "the President or any
subordinate officer, official, or employee with custody or control
of the documents or Page 418 U. S. 689 objects subpoenaed," id. at 1331, to deliver to the
District Court, on or before May 31, 1974, the originals of all
subpoenaed items, as well as an index and analysis of those items,
together with tape copies of those portions of the subpoenaed
recordings for which transcripts had been released to the public by
the President on April 30. The District Court rejected
jurisdictional challenges based on a contention that the dispute
was nonjusticiable because it was between the Special Prosecutor
and the Chief Executive and hence "intra-executive" in character;
it also rejected the contention that the Judiciary was without
authority to review an assertion of executive privilege by the
President. The court's rejection of the first challenge was based
on the authority and powers vested in the Special Prosecutor by the
regulation promulgated by the Attorney General; the court concluded
that a justiciable controversy was presented. The second challenge
was held to be foreclosed by the decision in Nixon v.
Sirica, 159 U.S.App.D.C. 58, 487 F.2d 700 (1973).

															The District Court held that the judiciary, not the President,
was the final arbiter of a claim of executive privilege. The court
concluded that, under the circumstances of this case, the
presumptive privilege was overcome by the Special Prosecutor's prima facie "demonstration of need sufficiently compelling
to warrant judicial examination in chambers. . . ." 377 F. Supp. at
1330. The court held, finally, that the Special Prosecutor had
satisfied the requirements of Rule 17(c). The District Court stayed
its order pending appellate review on condition that review was
sought before 4 p.m., May 24. The court further provided that
matters filed under seal remain under seal when transmitted as part
of the record.

															On May 24, 1974, the President filed a timely notice of appeal
from the District Court order, and the certified record from the
District Court was docketed in the United Page 418 U. S. 690 States Court of Appeals for the District of Columbia Circuit. On
the same day, the President also filed a petition for writ of
mandamus in the Court of Appeals seeking review of the District
Court order.

															Later on May 24, the Special Prosecutor also filed, in this
Court, a petition for a writ of certiorari before judgment. On May
31, the petition was granted with an expedited briefing schedule.
417 U.S. 927. On June 6, the President filed, under seal, a
cross-petition for writ of certiorari before judgment. This
cross-petition was granted June 1, 1974, 417 U.S. 960, and the case
was set for argument on July 8, 1974. I JURISDICTION The threshold question presented is whether the May 20, 1974,
order of the District Court was an appealable order and whether
this case was properly "in" the Court of Appeals when the petition
for certiorari was filed in this Cort. 28 U.S.C. § 1254. The Court
of Appeals' jurisdiction under 28 U.S.C. § 1291 encompasses only
"final decisions of the district courts." Since the appeal as
timely filed and all other procedural requirements were met, the
petition is properly before this Court for consideration if the
District Court order was final. 28 U.S.C. §§ 1254(1), 2101(e).

															The finality requirement of 28 U.S.C. § 1291 embodies a strong
congressional policy against piecemeal reviews, and against
obstructing or impeding an ongoing judicial proceeding by
interlocutory appeals. See, e.g., Cobbledick v. United
States, 309 U. S. 323 , 309 U. S.
324 -326 (1940). This requirement ordinarily promotes
judicial efficiency and hastens the ultimate termination of
litigation. In applying this principle to an order denying a motion
to quash and requiring the production of evidence pursuant Page 418 U. S. 691 to a subpoena duces tecum, it has been repeatedly held
that the order is not final, and hence not appealable. United
States v. Ryan, 402 U. S. 530 , 402 U. S. 532 (1971); Cobbledick v. United States, supra; Alexander v. United
States, 201 U. S. 117 (1906). 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, supra, at 402 U. S.
533 .

															The requirement of submitting to contempt, however, is not
without exception, and in some instances the purposes underlying
the finality rule require a different result. For example, in Perlman v. United States, 247 U. S.
7 (1918), a subpoena had been directed to a third party
requesting certain exhibits; the appellant, who owned the exhibits,
sought to raise a claim of privilege. The Court held an order
compelling production was appealable because it was unlikely that
the third party would risk a contempt citation in order to allow
immediate review of the appellant's claim of privilege. Id. at 247 U. S. 12 -13.
That case fell within the "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, at 402 U. S.
533 .

															Here too, the traditional contempt avenue to immediate appeal is
peculiarly inappropriate due to the unique setting in which the
question arises. To require a President of the United States to
place himself in the posture of disobeying an order of a court
merely to trigger the procedural mechanism for review of the ruling
would be Page 418 U. S. 692 unseemly, and would present an unnecessary occasion for
constitutional confrontation between two branches of the
Government. Similarly, a federal judge should not be placed in the
posture of issuing a citation to a President simply in order to
invoke review. The issue whether a President can be cited for
contempt could itself engender protracted litigation, and would
further delay both review on the merits of his claim of privilege
and the ultimate termination of the underlying criminal action for
which his evidence is sought. These considerations lead us to
conclude that the order of the District Court was an appealable
order. The appeal from that order was therefore properly "in" the
Court of Appeals, and the case is now properly before this Court on
the writ of certiorari before judgment. 28 U.S.C. § 1254; 28 U.S.C.
§ 2101(e). Gay v. Ruff, 292 U. S. 25 , 292 U. S. 30 (1934). [ Footnote 7 ] II JUSTICIABILITY In the District Court, the President's counsel argued that the
court lacked jurisdiction to issue the subpoena because the matter
was an intra-branch dispute between a subordinate and superior
officer of the Executive Branch, and hence not subject to judicial
resolution. That argument has been renewed in this Court with
emphasis on the contention that the dispute does not present a
"case" or "controversy" which can be adjudicated in the federal
courts. The President's counsel argues that the federal courts
should not intrude into areas committed to the other branches of
Government. Page 418 U. S. 693 He views the present dispute as essentially a "jurisdictional"
dispute within the Executive Branch which he analogizes to a
dispute between two congressional committees. Since the Executive
Branch has exclusive authority and absolute discretion to decide
whether to prosecute a case, Confiscation
Cases , 7 Wall. 454 (1869); United States v.
Cox, 342 F.2d 167, 171 (CA5), cert. denied sub nom. Cox v.
Hauber, 381 U.S. 935 (1965), it is contended that a
President's decision is final in determining what evidence is to be
used in a given criminal case. Although his counsel concedes that
the President ha delegated certain specific powers to the Special
Prosecutor, he has not

															"waived nor delegated to the Special Prosecutor the President's
duty to claim privilege as to all materials . . . which fall within
the President's inherent authority to refuse to disclose to any
executive officer."

															Brief for the President 42. The Special Prosecutor's demand for
the items therefore presents, in the view of the President's
counsel, a political question under Baker v. Carr, 369 U. S. 186 (1962), since it involves a "textually demonstrable" grant of power
under Art. II.

															The mere assertion of a claim of an "intra-branch dispute,"
without more, has never operated to defeat federal jurisdiction;
justiciability does not depend on such a surface inquiry. In United States v. ICC, 337 U. S. 426 (1949), the Court observed, "courts must look behind names that
symbolize the parties to determine whether a justiciable case or
controversy is presented." Id. at 337 U. S. 430 . See also Powell v. McCormack, 395 U.
S. 486 (1969); ICC v. Jersey City, 322 U.
S. 503 (1944); United States ex rel. Chapman v.
FPC, 345 U. S. 153 (1953); Secretary of Agriculture v. United States, 347 U. S. 645 (1954); FMB v. Isbrandtsen Co., 356 U.
S. 481 , 356 U. S. 483 n. 2 (1958); United States v. Marine Bancorporation, ante, p. 418 U. S. 602 ; and United States v. Connecticut National Bank, ante, p. 418 U. S. 656 . Page 418 U. S. 694 Our starting point is the nature of the proceeding for which the
evidence is sought -- here, a pending criminal prosecution. It is a
judicial proceeding in a federal court alleging violation of
federal laws, and is brought in the name of the United States as
sovereign. Berger v. United States, 295 U. S.
78 , 295 U. S. 88 (1935). Under the authority of Art. II, § 2, Congress has vested in
the Attorney General the power to conduct the criminal litigation
of the United States Government. 28 U.S.C. § 516. It has also
vested in him the power to appoint subordinate officers to assist
him in the discharge of his duties. 28 U.S.C. §§ 509, 510, 515,
533. Acting pursuant to those statutes, the Attorney General has
delegated the authority to represent the United States in these
particular matters to a Special Prosecutor with unique authority
and tenure. [ Footnote 8 ] The
regulation gives the Page 418 U. S. 695 Special Prosecutor explicit power to contest the invocation of
executive privilege in the process of seeking evidence deemed
relevant to the performance of these specially delegated duties.
[ Footnote 9 ] 38 Fed.Reg. 30739,
as amended by 38 Fed.Reg. 32805.

															So long as this regulation is extant, it has the force of law.
In United States ex rel. Accardi v. Shaughnessy, 347 U. S. 260 (1954), regulations of the Attorney General delegated certain of
his discretionary powers to the Board Page 418 U. S. 696 of Immigration Appeals and required that Board to exercise its
own discretion on appeals in deportation cases. The Court held
that, so long as the Attorney General's regulations remained
operative, he denied himself the authority to exercise the
discretion delegated to the Board even though the original
authority was his and he could reassert it by amending the
regulations. Service v. Dulles, 354 U.
S. 363 , 354 U. S. 388 (1957), and Vitarelli v. Seaton, 359 U.
S. 535 (1959), reaffirmed the basic holding of Accardi. Here, as in Accardi, it is theoretically possible for
the Attorney General to amend or revoke the regulation defining the
Special Prosecutor's authority. But he has not done so. [ Footnote 10 ] So long as this
regulation remains in force, the Executive Branch is bound by it,
and indeed the United States, as the sovereign composed of the
three branches, is bound to respect and to enforce it. Moreover,
the delegation of authority to the Special Prosecutor in this case
is not an ordinary delegation by the Attorney General to a
subordinate officer: with the authorization of the President, the
Acting Attorney General provided in the regulation that the Special
Prosecutor was not to be removed without the "consensus" of eight
designated leaders of Congress. N 8, supra. The demands of and the resistance to the subpoena present an
obvious controversy in the ordinary sense, but that alone is not
sufficient to meet constitutional standards. In the constitutional
sense, controversy means more than disagreement and conflict;
rather it means the kind of controversy courts traditionally
resolve. Here Page 418 U. S. 697 at issue is the production or nonproduction of specified
evidence deemed by the Special Prosecutor to be relevant and
admissible in a pending criminal case. It is sought by one official
of the Executive Branch within the scope of his express authority;
it is resisted by the Chief Executive on the ground of his duty to
preserve the confidentiality of the communications of the
President. Whatever the correct answer on the merits, these issues
are "of a type which are traditionally justiciable." United
States v. ICC, 337 U.S. at 337 U. S. 430 .
The independent Special Prosecutor, with his asserted need for the
subpoenaed material in the underlying criminal prosecution, is
opposed by the President, with his steadfast assertion of privilege
against disclosure of the material. This setting assures there
is

															"that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of
difficult constitutional questions." Baker v. Carr, 369 U.S. at 369 U. S. 204 .
Moreover, since the matter is one arising in the regular course of
a federal criminal prosecution, it is within the traditional scope
of Art. III power. Id. at 369 U. S.
198 .

															In light of the uniqueness of the setting in which the conflict
arises, the fact that both parties are officer of the Executive
Branch cannot be viewed as a barrier to justiciability. It would be
inconsistent with the applicable law and regulation, and the unique
facts of this case, to conclude other than that the Special
Prosecutor has standing to bring this action, and that a
justiciable controversy is presented for decision. III RULE 17(c) The subpoena duces tecum is challenged on the ground
that the Special Prosecutor failed to satisfy the requirements of
Fed.Rule Crim.Proc. 17(c), which governs Page 418 U. S. 698 the issuance of subpoenas duces tecum in federal
criminal proceedings. If we sustained this challenge, there would
be no occasion to reach the claim of privilege asserted with
respect to the subpoenaed material. Thus, we turn to the question
whether the requirements of Rule 17(c) have been satisfied. See
Arkansas Louisiana Gas Co. v. Dept. of Public Utilities, 304 U. S. 61 , 304 U. S. 64 (1938); Ashwander v. TVA, 297 U.
S. 288 , 297 U. S.
346 -347 (1936) (Brandeis, J., concurring).

															Rule 17(c) provides:

															"A subpoena may also command the person to whom it is directed
to produce the books, papers, documents or other objects designated
therein. The court on motion made promptly may quash or modify the
subpoena if compliance would be unreasonable or oppressive. The
court may direct that books, papers, documents or objects
designated in the subpoena be produced before the court at a time
prior to the trial or prior to the time when they are to be offered
in evidence and may upon their production permit the books, papers,
documents or objects or portions thereof to be inspected by the
parties and their attorneys."

															A subpoena for documents may be quashed if their production
would be "unreasonable or oppressive," but not otherwise. The
leading case in this Court interpreting this standard is Bowman
Dairy Co. v. United States, 341 U. S. 214 (1951). This case recognized certain fundamental characteristics of
the subpoena duces tecum in criminal cases: (1) it was not
intended to provide a means of discovery for criminal cases, id. at 341 U. S. 220 ;
(2) its chief innovation was to expedite the trial by providing a
time and place before trial for the inspection of Page 418 U. S. 699 subpoenaed materials, [ Footnote 11 ] ibid. As both parties agree, cases
decided in the wake of Bowman have generally followed
Judge Weinfeld's formulation in United States v. Iozia, 13
F.R.D. 335, 338 (SDNY 1952), as to the required showing. Under this
test, in order to require production prior to trial, the moving
party must show: (1) that the documents are evidentiary [ Footnote 12 ] and relevant; (2) that
they are not otherwise procurable reasonably in advance of trial by
exercise of due diligence; (3) that the party cannot properly
prepare for trial without such production and inspection in advance
of trial, and that the failure to obtain such inspection may tend
unreasonably to delay the trial; and (4) that Page 418 U. S. 700 the application is made in good faith and is not intended as a
general "fishing expedition."

															Against this background, the Special Prosecutor, in order to
carry his burden, must clear three hurdles: (1) relevancy; (2)
admissibility; (3) specificity. Our own review of the record
necessarily affords a less comprehensive view of the total
situation than was available to the trial judge, and we are
unwilling to conclude that the District Court erred in the
evaluation of the Special Prosecutor's showing under Rule 17(c).
Our conclusion is based on the record before us, much of which is
under seal. Of course, the contents of the subpoenaed tapes could
not at that stage be described fully by the Special Prosecutor, but
there was a sufficient likelihood that each of the tapes contains
conversations relevant to the offenses charged in the indictment. United States v. Gross, 24 F.R.D. 138 (SDNY 1959). With
respect to many of the tapes, the Special Prosecutor offered the
sworn testimony or statements of one or more of the participants in
the conversations as to what was said at the time. As for the
remainder of the tapes, the identity of the participants and the
time and place of the conversations, taken in their total context,
permit a rational inference that at least part of the conversations
relate to the offenses charged in the indictment.

															We also conclude there was a sufficient preliminary showing that
each of the subpoenaed tapes contains evidence admissible with
respect to the offenses charged in the indictment. The most cogent
objection to the admissibility of the taped conversations here at
issue is that they are a collection of out-of-court statements by
declarants who will not be subject to cross-examination, and that
the statements are therefore inadmissible hearsay. Here, however,
most of the tapes apparently contain conversations Page 418 U. S. 701 to which one or more of the defendant named in the indictment
were party. The hearsay rule does not automatically bar all
out-of-court statements by a defendant in a criminal case.
[ Footnote 13 ] Declarations
by one defendant may also be admissible against other defendant
upon a sufficient showing, by independent evidence, [ Footnote 14 ] of a conspiracy among one or
more other defendants and the declarant and if the declarations at
issue were in furtherance of that conspiracy. The same is true of
declarations of coconspirators who are not defendants in the case
on trial. Dutton v. Evans, 400 U. S.
74 , 400 U. S. 81 (1970). Recorded conversations may also be admissible for the
limited purpose of impeaching the credibility of any defendant who
testifies or any other coconspirator who testifies. Generally, the
need for evidence to impeach witnesses is insufficient to require
its production in advance of trial. See, e.g., United States v.
Carter, 15 F.R.D. 367, Page 418 U. S. 702 371 (DC 1954). Here, however, there are other valid potential
evidentiary uses for the same material, and the analysis and
possible transcription of the tapes may take a significant period
of time. Accordingly, we cannot conclude that the District Court
erred in authorizing the issuance of the subpoena duces
tecum. Enforcement of a pretrial subpoena duces tecum must
necessarily be committed to the sound discretion of the trial
court, since the necessity for the subpoena most often turns upon a
determination of factual issues. Without a determination of
arbitrariness or that the trial court finding was without record
support, an appellate court will not ordinarily disturb a finding
that the applicant for a subpoena complied with Rule 17(c). See, e.g., Sue v. Chicago Transit Authority, 279 F.2d 416,
419 (CA7 1960); Shotkin v. Nelson, 146 F.2d 402 (CA10
1944).

															In a case such as this, however, where a subpoena is directed to
a President of the United States, appellate review, in deference to
a coordinate branch of Government, should be particularly
meticulous to ensure that the standards of Rule 17(c) have been
correctly applied. United States v. Burr, 25 F. Cas. 30,
34 (No. 14,692d) (CC Va. 1807). From our examination of the
materials submitted by the Special Prosecutor to the District Court
in support of his motion for the subpoena, we are persuaded that
the District Court's denial of the President's motion to quash the
subpoena was consistent with Rule 17(c). We also conclude that the
Special Prosecutor has made a sufficient showing to justify a
subpoena for production before trial. The subpoenaed materials are
not available from any other source, and their examination and
processing should not await trial in the circumstances shown. Bowman Dairy Co. v. United States, 341 U.
S. 214 (1951); United States v. Iozia, 13
F.R.D. 335 (SDNY 1952). Page 418 U. S. 703 IV THE CLAIM OF PRIVILEGE A Having determined that the requirements of Rule 17(c) were
satisfied, we turn to the claim that the subpoena should be quashed
because it demands "confidential conversations between a President
and his close advisors that it would be inconsistent with the
public interest to produce." App. 48a. The first contention is a
broad claim that the separation of powers doctrine precludes
judicial review of a President's claim of privilege. The second
contention is that, if he does not prevail on the claim of absolute
privilege, the court should hold as a matter of constitutional law
that the privilege prevails over the subpoena duces
tecum. In the performance of assigned constitutional duties, each
branch of the Government must initially interpret the Constitution,
and the interpretation of its powers by any branch is due great
respect from the others. The President's counsel, as we have noted,
reads the Constitution as providing an absolute privilege of
confidentiality for all Presidential communications. Many decisions
of this Court, however, have unequivocally reaffirmed the holding
of Marbury v.
Madison , 1 Cranch 137 (1803), that "[i]t is
emphatically the province and duty of the judicial department to
say what the law is." Id. at 5 U. S. 177 . No
holding of the Court has defined the scope of judicial power
specifically relating to the enforcement of a subpoena for
confidential Presidential communications for use in a criminal
prosecution, but other exercises of power by the Executive Branch
and the Legislative Branch have been found invalid as in conflict
with the Constitution. Powell v. McCormack, 395 U.
S. 486 (1969); Youngstown Sheet & Tube Co. v.
Sawyer, 343 U. S. 579 (1952). In a Page 418 U. S. 704 series of cases, the Court interpreted the explicit immunity
conferred by express provisions of the Constitution on Members of
the House and Senate by the Speech or Debate Clause, U.S.Const.
Art. I, § 6. Doe v. McMillan, 412 U.
S. 306 (1973); Gravel v. United States, 408 U. S. 606 (1972); United States v. Brewster, 408 U.
S. 501 (1972); United States v. Johnson 383 U. S. 169 (1966). Since this Court has consistently exercised the power to
construe and delineate claims arising under express powers, it must
follow that the Court has authority to interpret claims with
respect to powers alleged to derive from enumerated powers.

															Our system of government

															"requires that federal courts on occasion interpret the
Constitution in a manner at variance with the construction given
the document by another branch." Powell v. McCormack, supra, at 395 U. S. 549 .
And in Baker v. Carr, 369 U.S. at 369 U. S. 211 ,
the Court stated:

															"Deciding whether a matter has in any measure been committed by
the Constitution to another branch of government, or whether the
action of that branch exceeds whatever authority has been
committed, is itself a delicate exercise in constitutional
interpretation, and is a responsibility of this Court as ultimate
interpreter of the Constitution."

															Notwithstanding the deference each branch must accord the
others, the "judicial Power of the United States" vested in the
federal courts by Art. III, § 1, of the Constitution can no more be
shared with the Executive Branch than the Chief Executive, for
example, can share with the Judiciary the veto power, or the
Congress share with the Judiciary the power to override a
Presidential veto. Any other conclusion would be contrary to the
basic concept of separation of powers and the checks and balances
that flow from the scheme of a tripartite government. The
Federalist, No. 47, p. 313 (S. Mittell ed. Page 418 U. S. 705 1938). We therefore reaffirm that it is the province and duty of
this Court "to say what the law is" with respect to the claim of
privilege presented in this case. Marbury v. Madison,
supra at 5 U. S. 177 . B In support of his claim of absolute privilege, the President's
counsel urges two grounds, one of which is common to all
governments and one of which is peculiar to our system of
separation of powers. The first ground is the valid need for
protection of communications between high Government officials and
those who advise and assist them in the performance of their
manifold duties; the importance of this confidentiality is too
plain to require further discussion. Human experience teaches that
those who expect public dissemination of their remarks may well
temper candor with a concern for appearances and for their own
interests to the detriment of the decisionmaking process. [ Footnote 15 ] Whatever the nature of
the privilege of confidentiality of Presidential communications in
the exercise of Art. II 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; [ Footnote 16 ] the protection of the confidentiality of Page 418 U. S. 706 Presidential communications has similar constitutional
underpinnings.

															The second ground asserted by the President's counsel in support
of the claim of absolute privilege rests on the doctrine of
separation of powers. Here it is argued that the independence of
the Executive Branch within its own sphere, Humphrey's Executor
v. United States, 295 U. S. 602 , 295 U. S.
629 -630 (1935); Kilbourn v. Thompson, 103 U. S. 168 , 103 U. S.
190 -191 (1881), insulates a President from a judicial
subpoena in an ongoing criminal prosecution, and thereby protects
confidential Presidential communications.

															However, neither the doctrine of separation of powers nor the
need for confidentiality of high-level communications, without
more, can sustain an absolute, unqualified Presidential privilege
of immunity from judicial process under all circumstances. The
President's need for complete candor and objectivity from advisers
calls for great deference from the courts. However, when the
privilege depends solely on the broad, undifferentiated claim of
public interest in the confidentiality of such conversations, a
confrontation with other values arises. Absent a claim of need to
protect military, diplomatic, or sensitive national security
secrets, we find it difficult to accept the argument that even the
very important interest in confidentiality of Presidential
communications is significantly diminished by production of such
material for in camera inspection with all the protection
that a district court will be obliged to provide. Page 418 U. S. 707 The impediment that an absolute, unqualified privilege would
place in the way of the primary constitutional duty of the Judicial
Branch to do justice in criminal prosecutions would plainly
conflict with the function of the courts under Art. III. In
designing the structure of our Government and dividing and
allocating the sovereign power among three co-equal branches, the
Framers of the Constitution sought to provide a comprehensive
system, but the separate powers were not intended to operate with
absolute independence.

															"While the Constitution diffuses power the better to secure
liberty, it also contemplate that practice will integrate the
dispersed powers into a workable government. It enjoins upon its
branches separateness but interdependence, autonomy but
reciprocity." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 343 U. S. 635 (Jackson, J., concurring). To read the Art. II powers of the
President as providing an absolute privilege as against a subpoena
essential to enforcement of criminal statutes on no more than 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. C . Since we conclude that the legitimate needs of the judicial
process may outweigh Presidential privilege, it is necessary to
resolve those competing interests in a manner that preserves the
essential functions of each branch. The right and indeed the duty
to resolve that question does not free the Judiciary from according
high respect to the representations made on behalf of the
President. United States v. Burr, 25 F. Cas. 187, 190,
191-192 (No. 14,694) (CC Va. 1807). Page 418 U. S. 708 The expectation of a President to the confidentiality of his
conversations and correspondence, like the claim of confidentiality
of judicial deliberations, for example, has all the values to which
we accord deference for the privacy of all citizens and, added to
those values, is the necessity for protection of the public
interest in candid, objective, and even blunt or harsh opinions in
Presidential decisionmaking. 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. [ Footnote 17 ]
In Nixon v. Sirica, 159 U.S.App.D.C. 58, 487 F.2d 700
(1973), the Court of Appeals held that such Presidential
communications are "presumptively privileged," id. at 75,
487 F.2d at 717, and this position is accepted by both parties in
the present litigation. We agree with Mr. Chief Justice Marshall's
observation, therefore, that "[i]n no case of his kind would a
court be required to proceed against the president as against an
ordinary individual." United States v. Burr, 25 F. Cas. at
192.

															But this presumptive privilege must be considered in light of
our historic commitment to the rule of law. This Page 418 U. S. 709 is nowhere more profoundly manifest than, in our view, that "the
twofold aim [of criminal justice] is that guilt shall not escape or
innocence suffer." Berger v. United States, 295 U.S. at 295 U. S. 88 . We
have elected to employ an adversary system of criminal justice in
which the parties contest all issues before a court of law. The
need to develop all relevant facts in the adversary system is both
fundamental and comprehensive. The ends of criminal justice would
be defeated if judgments were to be founded on a partial or
speculative presentation of the facts. The very integrity of the
judicial system and public confidence in the system depend on full
disclosure of all the facts, within the framework of the rules of
evidence. To ensure that justice is done, it is imperative to the
function of courts that compulsory process be available for the
production of evidence needed either by the prosecution or by the
defense.

															Only recently the Court restated the ancient proposition of law,
albeit in the context of a grand jury inquiry, rather than a
trial,

															"that 'the public . . . has a right to every man's evidence,'
except for those persons protected by a constitutional, common law,
or statutory privilege, United States v. Bryan , 339
U.S. [323, 339 U. S. 331 (1950)]; Blackmer v. United States, 284 U. S.
421 , 284 U. S. 438 (1932). . .
." Branzburg v. Hayes, 408 U. S. 665 , 408 U. S. 688 (1972). The privileges referred to by the Court are designed to
protect weighty and legitimate competing interests. Thus, the Fifth
Amendment to the Constitution provides that no man "shall be
compelled in any criminal case to be a witness against himself."
And, generally, an attorney or a priest may not be required to
disclose what has been revealed in professional confidence. These
and other interests are recognized in law by privileges Page 418 U. S. 710 against forced disclosure, established in the Constitution, by
statute, or at common law. Whatever their origins, these exceptions
to the demand for every man's evidence are not lightly created nor
expansively construed, for they are in derogation of the search for
truth. [ Footnote 18 ]

															In this case, the President challenges a subpoena served on him
as a third party requiring the production of materials for use in a
criminal prosecution; he does so on the claim that he has a
privilege against disclosure of confidential communications. He
does not place his claim of privilege on the ground they are
military or diplomatic secrets. As to these areas of Art. II
duties, the courts have traditionally shown the utmost deference to
Presidential responsibilities. In C. & S. Air Lines v.
Waterman S.S. Corp., 333 U. S. 103 , 333 U. S. 111 (1948), dealing with Presidential authority involving foreign
policy considerations, the Court said:

															"The President, both as Commander-in-Chief and as the Nation's
organ for foreign affairs, has available intelligence services
whose reports are not and ought not to be published to the world.
It would be intolerable that courts, without the relevant
information, should review and perhaps nullify actions of the
Executive taken on information properly held secret."

															In United States v. Reynolds, 345 U. S.
1 (1953), dealing Page 418 U. S. 711 with a claimant's demand for evidence in a Tort Claims Act case
against the Government, the Court said:

															"It may be possible to satisfy the court, from all the
circumstances of the case, that there is a reasonable danger that
compulsion of the evidence will expose military matters which, in
the interest of national security, should not be divulged. When
this is the case, the occasion for the privilege is appropriate,
and the court should not jeopardize the security which the
privilege is meant to protect by insisting upon an examination of
the evidence, even by the judge alone, in chambers." Id. at 345 U. S. 10 . No
case of the Court, however, has extended this high degree of
deference to a President's generalized interest in confidentiality.
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.

															The right to the production of all evidence at a criminal trial
similarly has constitutional dimensions. The Sixth Amendment
explicitly confers upon every defendant in a criminal trial the
right "to be confronted with the witnesses against him" and "to
have compulsory process for obtaining witnesses in his favor."
Moreover, the Fifth Amendment also guarantees that no person shall
be deprived of liberty without due process of law. It is the
manifest duty of the courts to vindicate those guarantees, and to
accomplish that it is essential that all relevant and admissible
evidence be produced.

															In this case, we must weigh the importance of the general
privilege of confidentiality of Presidential communications in
performance of the President's responsibilities against the inroads
of such a privilege on the fair Page 418 U. S. 712 administration of criminal justice. [ Footnote 19 ] The interest in preserving
confidentiality is weighty indeed, and entitled to great respect.
However, we cannot conclude that advisers will be moved to temper
the candor of their remarks by the infrequent occasions of
disclosure because of the possibility that such conversations will
be called for in the context of a criminal prosecution. [ Footnote 20 ]

															On the other hand, the allowance of the privilege to withhold
evidence that is demonstrably relevant in a criminal trial would
cut deeply into the guarantee of due process of law and gravely
impair the basic function of the court. A President's acknowledged
need for confidentiality Page 418 U. S. 713 in the communications of his office is general in nature,
whereas the constitutional need for production of relevant evidence
in a criminal proceeding is specific and central to the fair
adjudication of a particular criminal case in the administration of
justice. Without access to specific facts, a criminal prosecution
may be totally frustrated. The President's broad interest in
confidentiality of communications will not be vitiated by
disclosure of a limited number of conversations preliminarily shown
to have some bearing on the pending criminal cases.

															We conclude that, when the ground for asserting privilege as to
subpoenaed materials sought for use in a criminal trial is based
only on the generalized interest in confidentiality, it cannot
prevail over the fundamental demands of due process of law in the
fair administration of criminal justice. The generalized assertion
of privilege must yield to the demonstrated, specific need for
evidence in a pending criminal trial. D We have earlier determined that the District Court did not err
in authorizing the issuance of the subpoena. If a President
concludes that compliance with a subpoena would be injurious to the
public interest, he may properly, as was done here, invoke a claim
of privilege on the return of the subpoena. Upon receiving a claim
of privilege from the Chief Executive, it became the further duty
of the District Court to treat the subpoenaed material as
presumptively privileged and to require the Special Prosecutor to
demonstrate that the Presidential material was "essential to the
justice of the [pending criminal] case." United States v.
Burr, 25 F. Cas. at 192. Here, the District Court treated the
material as presumptively privileged, proceeded to find that the
Special Page 418 U. S. 714 Prosecutor had made a sufficient showing to rebut the
presumption, and ordered an in camera examination of the
subpoenaed material. On the basis of our examination of the record,
we are unable to conclude that the District Court erred in ordering
the inspection. Accordingly, we affirm the order of the District
Court that subpoenaed materials be transmitted to that court. We
now turn to the important question of the District Court's
responsibilities in conducting the in camera examination
of Presidential materials or communications delivered under the
compulsion of the subpoena duces tecum. E Enforcement of the subpoena duces tecum was stayed
pending this Court's resolution of the issues raised by the
petitions for certiorari. Those issues now having been disposed of,
the matter of implementation will rest with the District Court.

															"[T]he guard, furnished to [the President] to protect him from
being harassed by vexatious and unnecessary subpoenas, is to be
looked for in the conduct of a [district] court after those
subpoenas have issued; not in any circumstance which is to precede
their being issued." United States v. Burr, 25 F. Cas. at 34. Statements
that meet the test of admissibility and relevance must be isolated;
all other material must be excised. At this stage, the District
Court is not limited to representations of the Special Prosecutor
as to the evidence sought by the subpoena; the material will be
available to the District Court. It is elementary that in
camera inspection of evidence is always a procedure calling
for scrupulous protection against any release or publication of
material not found by the court, at that stage, probably admissible
in evidence and relevant to the issues of the trial for which it is
sought. That being true of an ordinary situation, it is obvious
that the District Court has Page 418 U. S. 715 a very heavy responsibility to see to it that Presidential
conversations, which are either not relevant or not admissible, are
accorded that high degree of respect due the President of the
United States. Mr. Chief Justice Marshall, sitting as a trial judge
in the Burr case, supra, was extraordinarily
careful to point out that

															"[i]n no case of this kind would a court be required to proceed
against the president as against an ordinary individual."

															25 F. Cas. at 192. Marshall's statement cannot be read to mean
in any sense that a President is above the law, but relates to the
singularly unique role under Art. II of a President's
communications and activities, related to the performance of duties
under that Article. Moreover, a President's communications and
activities encompass a vastly wider range of sensitive material
than would be true of any "ordinary individual." It is therefore
necessary [ Footnote 21 ] in
the public interest to afford Presidential confidentiality the
greatest protection consistent with the fair administration of
justice. The need for confidentiality even as to idle conversations
with associates in which casual reference might be made concerning
political leaders within the country or foreign statesmen is too
obvious to call for further treatment. We have no doubt that the
District Judge will at all times accord to Presidential records
that high degree of deference suggested in United States v.
Burr, supra, and will discharge his responsibility to see
to Page 418 U. S. 716 it that, until released to the Special Prosecutor, no in
camera material is revealed to anyone. This burden applies
with even greater force to excised material; once the decision is
made to excise, the material is restored to its privileged status,
and should be returned under seal to its lawful custodian.

															Since this matter came before the Court during the pendency of a
criminal prosecution, and on representations that time is of the
essence, the mandate shall issue forthwith. Affirmed. MR. JUSTICE REHNQUIST took no part in the consideration or
decision of these cases.

															* Together with No. 73-1834, Nixon, President of the United
States v. United States, also on certiorari before judgment to
the same court.

															[ Footnote 1 ] See 28 U.S.C. §§ 1254(1) and 2101(e) and our Rule 20. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952); United States v. United Mine Workers, 330 U.
S. 258 (1947); Carter v. Carter Coal Co, 298 U. S. 238 (1936); Rickert Rice Mills v. Fontenot, 297 U.
S. 110 (1936); Railroad Retirement Board v. Alton R.
Co., 295 U. S. 330 (1935); Norman v. Baltimore & Ohio R. Co, 294 U.
S. 240 (1935)

															[ Footnote 2 ]

															The cross-petition in No. 73-1824 raised the issue whether the
grand jury acted within its authority in naming the President as an
unindicted coconspirator. Since we find resolution of this issue
unnecessary to resolution of the question whether the claim of
privilege is to prevail, the cross-petition for certiorari is
dismissed as improvidently granted and the remainder of this
opinion is concerned with the issues raised in No. 73-1766. On June
19, 1974, the President's counsel moved for disclosure and
transmittal to this Court of all evidence presented to the grand
jury relating to its action in naming the President as an
unindicted coconspirator. Action on this motion was deferred
pending oral argument of the case, and is now denied.

															[ Footnote 3 ]

															The seven defendants were John N. Mitchell, H. R. Haldeman, John
D. Ehrlichman, Charles W. Colson, Robert C. Mardian, Kenneth W.
Parkinson, and Gordon Strachan. Each has occupied either a position
of responsibility on the White House Staff or a position with the
Committee for the Re-election of the President. Colson entered a
guilty plea on another charge, and is no longer a defendant.

															[ Footnote 4 ]

															The President entered a special appearance in the District Court
on June 6 and requested that court to lift its protective order
regarding the naming of certain individuals as coconspirators and
to any additional extent deemed appropriate by the Court. This
motion of the President was based on the ground that the
disclosures to the news media made the reasons for continuance of
the protective order no longer meaningful. On June 7, the District
Court removed its protective order and, on June 10, counsel for
both parties jointly moved this Court to unseal those parts of the
record which related to the action of the grand jury regarding the
President. After receiving a statement in opposition from the
defendants, this Court denied that motion on June 15, 1974, except
for the grand jury's immediate finding relating to the status of
the President as an unindicted coconspirator. 417 U.S. 960.

															[ Footnote 5 ]

															The specific meetings and conversations are enumerated in a
schedule attached to the subpoena. App. 42a-46a.

															[ Footnote 6 ]

															At the joint suggestion of the Special Prosecutor and counsel
for the President, and with the approval of counsel for the
defendants, further proceedings in the District Court were held in camera. [ Footnote 7 ]

															The parties have suggested that this Court has jurisdiction on
other grounds. In view of our conclusion that there is jurisdiction
under 28 U.S.C. § 1254(1) because the District Court's order was
appealable, we need not decide whether other jurisdictional
vehicles are available.

															[ Footnote 8 ]

															The regulation issued by the Attorney General pursuant to his
statutory authority vests in the Special Prosecutor plenary
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 appropriate 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 Attorney
General."

															38 Fed.Reg. 30739, as amended by 38 Fed.Reg. 32805. In
particular, the Special Prosecutor was given full authority, inter alia, "to contest the assertion of Executive
Privilege' . . . and handl[e] all aspects of any cases within his
jurisdiction." Id. at 30739. The regulation then goes on
to provide: "In exercising this authority, the Special Prosecutor 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 that 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 the Minority Leaders
and Chairmen and ranking Minority Members of the Judiciary
Committees of the Senate and House of Representatives and
ascertaining that their consensus is in accord with his proposed
action."

															[ Footnote 9 ]

															That this was the understanding of Acting Attorney General
Robert Bork, the author of the regulation establishing the
independence of the Special Prosecutor, is shown by his testimony
before the Senate Judiciary Committee:

															"Although it is anticipated that Mr. Jaworski will receive
cooperation from the White House in getting any evidence he feels
he needs to conduct investigations and prosecutions, it is clear
and understood on all sides that he has the power to use judicial
processes to pursue evidence if disagreement should develop."

															Hearings on the Special Prosecutor before the Senate Committee
on the Judiciary, 93d Cong., 1st Sess., pt. 2, p. 450 (1973).
Acting Attorney General Bork gave similar assurances to the House
Subcommittee on Criminal Justice. Hearings on H. J Res. 784 and
H.R. 10937 before the Subcommittee on Criminal Justice of the House
Committee on the Judiciary, 93d Cong., 1st Sess., 266 (1973). At
his confirmation hearings, Attorney General William Saxbe testified
that he shared Acting Attorney General Bork's views concerning the
Special Prosecutor's authority to test any claim of executive
privilege in the courts. Hearings on the Nomination of William B.
Saxbe to be Attorney General before the Senate Committee on the
Judiciary, 93d Cong., 1st Sess., 9 (1973).

															[ Footnote 10 ]

															At his confirmation hearings, Attorney General William Saxbe
testified that he agreed with the regulation adopted by Acting
Attorney General Bork, and would not remove the Special Prosecutor
except for "gross impropriety." Id. at 5-6, 8-10. There is
no contention here that the Special Prosecutor is guilty of any
such impropriety.

															[ Footnote 11 ]

															The Court quoted a statement of a member of the advisory
committee that the purpose of the Rule was to bring documents into
court

															"in advance of the time that they are offered in evidence, so
that they may then be inspected in advance, for the purpose . . .
of enabling the party to see whether he can use [them] or whether
he wants to use [them]."

															341 U.S. at 341 U. S. 220 n. 5. The Manual for Complex and Multidistrict Litigation published
by the Federal Judicial Center recommends that use of Rule 17(c) be
encouraged in complex criminal cases in order that each party may
be compelled to produce its documentary evidence well in advance of
trial and in advance of the time it is to be offered. P. 150.

															[ Footnote 12 ]

															The District Court found here that it was faced with

															"the more unusual situation . . . where the subpoena, rather
than being directed to the government by defendants, issues to
what, as a practical matter, is a third party." United States v. Mitchell, 377
F. Supp. 1326 , 1330 (DC 1974). The Special Prosecutor suggests
that the evidentiary requirement of Bowman Dairy Co. and Iozia does not apply in its full vigor when the subpoena duces tecum is issued to third parties, rather than to
government prosecutors. Brief for United States 128-129. We need
not decide whether a lower standard exists, because we are
satisfied that the relevance and evidentiary nature of the
subpoenaed tapes were sufficiently shown as a preliminary matter to
warrant the District Court's refusal to quash the subpoena.

															[ Footnote 13 ]

															Such statements are declarations by a party defendant that
"would surmount all objections based on the hearsay rule . . ."
and, at least as to the declarant himself, "would be admissible for
whatever inferences" might be reasonably drawn. United States
v. Matlock, 415 U. S. 164 , 415 U. S. 172 (1974). On Lee v. United States, 343 U.
S. 747 , 343 U. S. 757 (1952). See also C. McCormick, Evidence § 270, pp. 651-652
(2d ed.1972).

															[ Footnote 14 ]

															As a preliminary matter, there must be substantial, independent
evidence of the conspiracy, at least enough to take the question to
the jury. United States v. Vaught, 485 F.2d 320, 323 (CA4
1973); United States v. Hoffa, 349 F.2d 20, 412 (CA6
1965), aff'd on other grounds, 385 U.
S. 293 (1966); United States v. Santos, 385
F.2d 43, 45 (CA7 1967), cert. denied, 390 U.S. 954 (1968); United States v. Morton, 483 F.2d 573, 576 (CA8 1973); United States v. Spanos, 462 F.2d 1012, 1014 (CA9 1972); Carbo v. United States, 314 F.2d 718, 737 (CA9 1963), cert. denied, 377 U.S. 953 (1964). Whether the standard
has been satisfied is a question of admissibility of evidence to be
decided by the trial judge.

															[ Footnote 15 ]

															There is nothing novel about governmental confidentiality. The
meetings of the Constitutional Convention in 1787 were conducted in
complete privacy. 1 M. Farrand, The Records of the Federal
Convention of 1787, pp. xi-xxv (1911). Moreover, all records of
those meetings were sealed for more than 30 years after the
Convention. See 3 Stat. 475, 15th Cong., 1st Sess., Res. 8
(1818). Most of the Framers acknowledged that, without secrecy, no
constitution of the kind that was developed could have been
written. C. Warren, The Making of the Constitution 134-139
(1937).

															[ Footnote 16 ]

															The Special Prosecutor argues that there is no provision in the
Constitution for a Presidential privilege as to the President's
communications corresponding to the privilege of Members of
Congress under the Speech or Debate Clause. But the silence of the
Constitution on this score is not dispositive.

															"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 to be considered as
accompanying the grant, has been so universally applied that it
suffices merely to state it." Marshall v. Gordon, 243 U. S. 521 , 243 U. S. 537 (1917).

															[ Footnote 17 ]

															"Freedom of communication vital to fulfillment of the aims of
wholesome relationships is obtained only by removing the specter of
compelled disclosure. . . . [G]overnment . . . needs open but
protected channels for the kind of plain talk that is essential to
the quality of its functioning." Carl Zeiss Stiftung v. v. E. B. Carl Zeis, Jena, 4
F.R.D. 318, 325 (DC 1966). See Nixon v. Sirica, 159
U.S.App.D.C. 58, 71, 487 F.2d 700, 713 (1973); Kaiser Aluminum
& Chem. Corp. v. United States, 141 Ct.Cl. 38, 157 F.
Supp. 939 (1958) (Reed, J.); The Federalist, No. 64 (S. Mittell
ed.1938).

															[ Footnote 18 ]

															Because of the key role of the testimony of witnesses in the
judicial process, courts have historically been cautious about
privileges. Mr. Justice Frankfurter, dissenting in Elkins v.
United States, 364 U. S. 206 , 364 U. S. 234 (1960), said of this:

															"Limitations are properly placed upon the operation of this
general principle only to the very limited extent that permitting a
refusal to testify or excluding relevant evidence has a public good
transcending the normally predominant principle of utilizing all
rational means for ascertaining truth."

															[ Footnote 19 ]

															We are not here concerned with the balance between the
President's generalized interest in confidentiality and the need
for relevant evidence in civil litigation, nor with that between
the confidentiality interest and congressional demands for
information, nor with the President's interest in preserving state
secrets. We address only the conflict between the President's
assertion of a generalized privilege of confidentiality and the
constitutional need for relevant evidence in criminal trials.

															[ Footnote 20 ]

															Mr. Justice Cardozo made this point in an analogous context.
Speaking for a unanimous Court in Clark v. United States, 289 U. S. 1 (1933),
he emphasized the importance of maintaining the secrecy of the
deliberations of a petit jury in a criminal case.

															"Freedom of debate might be stifled and independence of thought
checked if jurors were made to feel that their arguments and
ballots were to be freely published to the world." Id. at 289 U. S. 13 .
Nonetheless, the Court also recognized that isolated inroads on
confidentiality designed to serve the paramount need of the
criminal law would not vitiate the interests served by secrecy:

															"A juror of integrity and reasonable firmness will not fear to
speak his mind if the confidences of debate are barred to the ears
of mere impertinence or malice. He will not expect to be shielded
against the disclosure of his conduct in the event that there is
evidence reflecting upon his honor. The chance that now and then
there may be found some timid soul who will take counsel of his
fears and give way to their repressive power is too remote and
shadowy to shape the course of justice." Id. at 289 U. S. 16 .

															[ Footnote 21 ]

															When the subpoenaed material is delivered to the District Judge in camera, questions may arise as to the excising of
parts, and it lies within the discretion of that court to seek the
aid of the Special Prosecutor and the President's counsel for in camera consideration of the validity of particular
excision, whether the basis of excision is relevancy or
admissibility or under such cases as United States v.
Reynolds, 345 U. S. 1 (1953),
or C. & S. Air Line v. Waterman S.S. Corp., 333 U. S. 103 (1948).

Summary:
Here is a summary of the key points from the case:

- The case involves a conflict between the Special Prosecutor and the President of the United States regarding the subpoena of certain tapes and documents related to conversations and meetings between the President and others.
- The President claimed executive privilege and filed a motion to quash the subpoena, but the District Court ordered an in camera examination of the materials.
- The Supreme Court granted both the Special Prosecutor's and the President's petitions for a writ of certiorari before judgment.
- The Court held that the District Court's order was appealable and properly before the Court for review.
- The dispute between the Special Prosecutor and the President presents a justiciable controversy, and the Court rejected the President's argument that it was an "intra-executive" conflict.
- The Court recognized the importance of confidentiality in the presidential decision-making process but also emphasized the need for relevant evidence in criminal trials.
- The Court suggested that the District Court may seek the aid of both parties for in camera consideration of the validity of particular excisions of the subpoenaed materials.